                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                        No. 17-1552



MERCY DEWS; IAN DEWS,

             Plaintiffs – Appellants,

      v.

UNITED STATES OF AMERICA,

             Defendant – Appellee.


Appeal from the United States District Court for the District of Maryland, at Baltimore.
J. Frederick Motz, Senior District Judge. (1:16-cv-03980-JFM)


Submitted: February 13, 2018                                      Decided: April 12, 2018


Before DUNCAN and AGEE, Circuit Judges, and Leonie M. BRINKEMA, United States
District Judge for the Eastern District of Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


E. Dale Adkins, III, Emily C. Malarkey, BEKMAN, MARDER & ADKINS LLC,
Baltimore, Maryland, for Appellants. Stephen M. Schenning, Acting United States
Attorney, Evelyn Lombardo Cusson, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Mercy and Ian Dews (the “Appellants”) appeal the district court’s dismissal of

their untimely Federal Tort Claims Act (“FTCA”) medical malpractice action against the

United States for injuries that their son, J. Dews, sustained during his delivery at the

Walter Reed National Military Medical Center (“Walter Reed”). The Appellants urge us

to overturn Raplee v. United States, 842 F.3d 328 (4th Cir. 2016), in which we held that

filing a claim in the Maryland Health Care Alternative Dispute Resolution Office

(“HCADRO”) does not begin an FTCA action for the purposes of its statute of

limitations. See 28 U.S.C. § 2401(b). Alternatively, they urge us to apply to the FTCA,

the Maryland state law tolling provision that tolls the statute of limitations for claims

against healthcare providers for minors and the mentally disabled. See Md. Code Ann.,

Cts. & Jud. Proc. § 5-201. Although we are sympathetic to the Appellants’ situation, our

precedent compels us to reject both of their arguments. Accordingly, we affirm the

district court’s dismissal.



                                           I.

       On October 23, 2012, Mercy Dews arrived at the Obstetrical Clinic of Walter

Reed for a scheduled appointment experiencing extreme lower pelvic pain and decreased

fetal movement. Doctors performed a cesarean section nearly two hours later. At the

time of his birth, J. Dews was in severe distress--he was not breathing and his heart was

not beating.    Appellants’ Br. at 6.   He was later diagnosed with hypoxic ischemic

encephalopathy or intrapartum asphyxia, a severe brain condition caused by lack of

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oxygen in utero. 1   Id.   Since birth, J. Dews has experienced significant cognitive,

physical, and behavioral delays. Id. The Appellants allege that J. Dews’s disabilities are

the result of the fact that the employees at Walter Reed waited too long to perform a

cesarean section.

       On October 2, 2014, Appellants brought an administrative tort claim against the

United States Department of the Navy (the “Navy”) alleging medical malpractice. The

Navy denied the claim on April 20, 2016. The denial informed the Appellants that they

had six months from the date of the mailing of the letter to file suit in the appropriate

federal district court. As required by Maryland law, the Appellants filed a claim form

and statement of claim with HCADRO on October 5, 2016. 2 On October 20, 2016, they

filed two certificates of qualified experts and an expert report, as well as an election to

waive arbitration. HCADRO then issued an order on October 24, 2016, transferring the

case to the United Stated District Court for the District of Maryland. J.A. 49.




       1
          He was also diagnosed with a number of other health conditions including:
gastritis, poor feeding, bloody stools, bilateral pneumothoraces, persistent pulmonary
hypertension, atrial septal defect, hypotension, septal hypertrophy, seizures, anemia,
sepsis, thrombocytopenia, coagulopathy, hematuria, subcutaneous fat necrosis,
hypoglycemia, hypokalemia, hyponatremia, hypomagnesemia, narcotic drug withdrawal
symptoms, and other conditions. Id. at 7.
       2
          Under Maryland’s Health Care Claims Act, a Maryland plaintiff must first file a
malpractice lawsuit with HCADRO and submit a “certificate of a qualified expert,”
“attesting to departure from standards of care, and that the departure from standards of
care is the proximate cause of the alleged injury.” Md. Code Ann., Cts. & Jud. Proc. § 3-
2A-04(a)(1)(i). The plaintiffs may then elect to waive arbitration and proceed in the
appropriate state or federal court. Id. at § 3-2A-06B (b)(1), (f)(1).


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       The Appellants filed the instant action against the United States in the United

States District Court for the District of Maryland pursuant to the FTCA on December 13,

2016. On February 10, 2017, the United States moved to dismiss Appellants’ claims,

arguing that under Raplee, the Appellants’ action was untimely.          The district court

granted the United States’ motion on April 24, 2017, on that basis.

       Appellants timely appealed. They urge us to overturn Raplee or, alternatively, to

equitably toll the statute of limitations because of J. Dews’s minority and disabilities. We

are constrained by precedent to affirm the district court.



                                             II.

       We review a dismissal for failure to state a claim de novo. Schatz v. Rosenberg,

943 F.2d 485, 489 (4th Cir. 1991). Under the FTCA, tort claims against the United States

are “forever barred . . . unless action is begun within six months after the date of mailing,

by certified or registered mail, of notice of final denial of the claim by the agency to

which it was presented.” 28 U.S.C. § 2401(b). Appellants filed the instant suit after the

six-month FTCA limitation period. They urge us to find their suit timely because they

filed an HCADRO claim within the six-month period.             We explicitly rejected this

argument in a precedential opinion in Raplee. There, we found that the language of the

FTCA was clear and that “[t]he only way to begin a federal civil action is by filing a

complaint with a federal district court.” Raplee, 842 F.3d at 333. Therefore, a filing in

HCADRO did not save an untimely complaint to the federal district court. Appellants

urge us to overturn established circuit precedent. “[W]e cannot, as a panel of the court,

                                              4
overrule the decision of another panel; only the en banc court may overrule a prior panel

decision.” Jones v. Angelone, 94 F.3d 900, 905 (4th Cir. 1996). Because we are bound

by Raplee, the Appellants’ federal lawsuit is untimely as it was filed more than six

months after the Navy denied their claim.



                                            III.

      Alternatively, Appellants urge us to engraft the Maryland provision for equitable

tolling, Md. Code Ann., Cts. & Jud. Proc. § 5-201, onto the FTCA statute of limitations.

We cannot. 3

      In FTCA cases, substantive state law creates the underlying cause of action, but

“federal law defines the limitations period and determines when that cause of action

accrues.”   Miller v. United States, 932 F.2d 301, 303 (4th Cir. 1991).          We have

previously held that the Maryland statute of limitations for claims against healthcare

providers, Md. Code Ann., Cts. & Jud. Proc. § 5-109(a)(1), was inapplicable to the

FTCA. Anderson v. United States, 474 F. App’x 891, 892 (4th Cir. 2012); see also

Anderson v. United States, 669 F.3d 161, 162, 164–65 (4th Cir. 2011) (certifying the

question of whether Md. Code Ann., Cts. & Jud. Proc. § 5-109(a)(1) was a statute of


      3
         Our review here is de novo because “to the extent a challenge to the denial of
tolling is not to the existence of certain facts, but instead rests on whether those facts
demonstrate a failure to bring a timely claim, resolution of th[e] challenge . . . turns on
questions of law which are reviewed de novo.” Cruz v. Maypa, 773 F.3d 138, 143 (4th
Cir. 2014) (quoting Smith v. Pennington, 352 F.3d 884, 892 (4th Cir. 2003) (internal
quotation marks and alternations omitted).


                                             5
limitations, or a statute of repose creating a substantive right), certified question

answered, 46 A.3d 426, 442 (Md. 2012) (holding that Md. Code Ann., Cts. & Jud. Proc.

§ 5-109(a)(1) was a statute of limitations as evidenced, in part, by the fact that its running

could be tolled). The Maryland provision for equitable tolling, Md. Code Ann., Cts. &

Jud. Proc. § 5-201, at issue here is an exception to the statute of limitations for claims

against healthcare providers.      Because federal law, not state law, determines the

limitations period for FTCA claims and because the equitable tolling provision at issue

here is an exception to Maryland’s statute of limitations for claims against healthcare

providers, Maryland’s equitable tolling provision is not applicable to the instant case.

Accordingly, we find that the district court did not err in that regard either.




                                             IV.

       For the foregoing reasons, the judgment of the district court is

                                                                                  AFFIRMED.




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