                             In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 04-3753
RONALD WARRUM, in his capacity as
Personal Representative of the Estate of
JOSEPH F. SAYYAH, Deceased,
                                      Plaintiff-Appellant,

                                v.

UNITED STATES OF AMERICA,
                                             Defendant-Appellee.

                         ____________
           Appeal from the United States District Court
     for the Southern District of Indiana, Evansville Division.
             No. 02 C 92—Richard L. Young, Judge.
                         ____________
  ARGUED APRIL 11, 2005—DECIDED OCTOBER 25, 2005
                    ____________



 Before POSNER, RIPPLE, and SYKES, Circuit Judges.
  SYKES, Circuit Judge. Ronald Warrum appeals the
district court’s dismissal of this wrongful death action
brought under the Federal Tort Claims Act (“FTCA”), 28
U.S.C. § 2671 et seq. Warrum, as personal representative of
the estate of Joseph Sayyah, alleges that in 1998 Dr. Asif
Ali, a physician at the Department of Veterans Affairs
(“VA”) clinic in Evansville, Indiana, failed to properly
2                                              No. 04-3753

diagnose Sayyah’s esophageal cancer and that the
misdiagnosis caused Sayyah’s death in 2002.
  The district court dismissed the action for failure to
comply with the administrative exhaustion requirement of
28 U.S.C. § 2675(a), which prohibits the initiation of an
action against the United States under the FTCA unless an
administrative claim is first presented to the appropriate
federal agency. Although Sayyah submitted a medical
malpractice administrative claim to the VA after his cancer
was diagnosed, a claim for wrongful death was never
presented to the agency after Sayyah died. The district
court concluded that because a wrongful death claim does
not accrue for purposes of the FTCA until the date of death,
the prior administrative claim for medical malpractice did
not satisfy the exhaustion requirement of § 2675(a) for the
wrongful death claim. We affirm.


                     I. Background
  The complaint alleges that in September 1998 Sayyah
was treated at the Evansville VA clinic by Dr. Ali, who
failed to properly diagnose his medical condition. Sayyah
was correctly diagnosed in March 1999 as suffering from
Stage III cancer of the esophagus. On December 19, 2000,
Sayyah filed an administrative tort claim notice with the
VA, alleging that the doctors and staff at the Evansville VA
clinic failed to timely diagnose his cancer, resulting in a
decreased chance of favorable treatment. This claim was
denied on November 27, 2001. Sayyah died on February 4,
2002. On May 22, 2002, Warrum, as personal representa-
tive of Sayyah’s estate, brought this wrongful death action
against the United States under the FTCA, alleging that
the misdiagnosis by Dr. Ali and his staff at the Evansville
VA clinic resulted in Sayyah’s death.
  The government moved to dismiss based upon failure to
comply with the administrative exhaustion requirements of
No. 04-3753                                                3

§ 2675(a)—specifically, the failure to file an administrative
claim following Sayyah’s death and prior to initiating this
FTCA suit for wrongful death. The district court granted
the motion, concluding that Sayyah’s administrative notice
of claim for medical malpractice did not satisfy the adminis-
trative claim requirement for the wrongful death action.
Relying on our decision in Fisk v. United States, 657 F.2d
167, 170 (7th Cir. 1981), the court held that because a cause
of action for wrongful death under the FTCA does not
accrue until the date of death, the earlier medical malprac-
tice administrative claim did not suffice as an administra-
tive claim for the wrongful death. Warrum appeals.


                     II. Discussion
  The FTCA is a limited waiver of the sovereign immunity
of the United States and imposes liability “under circum-
stances where the United States, if a private person, would
be liable to the claimant in accordance with the law of the
place where the act or omission occurred.” 28 U.S.C.
§ 1346(b)(1); United States v. Kubrick, 444 U.S. 111, 117-18
(1979); Charlton v. United States, 743 F.2d 557, 558 (7th
Cir. 1984). Accordingly, we look to state law—here,
Indiana—to determine the substantive nature of the
plaintiff’s cause of action. White v. United States, 148 F.3d
787, 793 (7th Cir. 1998); Fisk, 657 F.2d at 170. However,
the FTCA imposes its own procedural rules—including the
administrative exhaustion provision at issue here.
  The FTCA’s administrative exhaustion requirement
provides that no action may be brought against the United
States unless the claimant first presents the claim to the
appropriate federal agency:
    An action shall not be instituted upon a claim against
    the United States for money damages for injury or loss
    of property or personal injury or death caused by the
    negligent or wrongful act or omission of any employee
4                                               No. 04-3753

    of the Government while acting within the scope of his
    office or employment, unless the claimant shall have
    first presented the claim to the appropriate Federal
    agency and his claim shall have been finally denied by
    the agency in writing and sent by certified or registered
    mail.
28 U.S.C. § 2675(a) (emphasis added). The Supreme Court
has noted that the purpose of the FTCA’s exhaustion
requirement is to facilitate the administrative evaluation of
tort claims by the agency whose activity gave rise to the
claim and permit settlement of meritorious claims more
quickly and without litigation. McNeil v. United States, 508
U.S. 106, 112, n.7 (1993); see also Kanar v. United States,
118 F.3d 527, 531 (7th Cir. 1997). “The most natural
reading of the statute indicates that Congress intended to
require complete exhaustion of Executive remedies before
invocation of the judicial process.” McNeil, 508 U.S. at 112.
  Although Sayyah filed a medical malpractice administra-
tive claim notice with the VA after his cancer was diag-
nosed, an administrative claim for wrongful death was
never presented to the agency. Warrum argues that the
malpractice administrative claim should suffice for the
FTCA’s exhaustion requirement for the wrongful death
action because it is well known that death often results
from cancer. The VA, he argues, had notice in 2000 of the
claim related to Sayyah’s cancer misdiagnosis and should
have known that his death—and a wrongful death
suit—might ensue. The government argues that under
Indiana law a claim for wrongful death is separate and
distinct from a personal injury claim for medical malprac-
tice, and the federal rule is that a wrongful death claim
under the FTCA does not accrue until the date of death.
Thus, says the government, in a wrongful death case,
§ 2675(a) requires the presentation of an administrative
claim for the death before a wrongful death suit under the
FTCA may be initiated.
No. 04-3753                                                  5

  A straightforward reading of the statute supports the
government’s position: “[a]n action shall not be instituted
upon a claim against the United States for money damages
for . . . personal injury or death . . . unless the claimant
shall have first presented the claim to the appropriate
Federal agency. . . . ” 28 U.S.C. § 2675(a) (emphasis added).
This is an action on a claim against the United States for
money damages for a death, but it was not preceded by an
administrative claim for a death.
  Our case law on the FTCA’s statute of limitations also
supports the government’s position. We addressed the
question of wrongful death claim accrual under the FTCA
in Fisk. There, the plaintiff was subjected to negligent
medical treatment in 1950, but his death did not occur until
complications from the malpractice surfaced nearly thirty
years later. Id. at 169. The government argued (in contrast
to the present case) that Fisk’s wrongful death claim was
time-barred by the FTCA’s two-year statute of limitations
because the wrongful death claim had accrued at the same
time as Fisk’s medical malpractice claim—in 1950. We
disagreed.
  We began our analysis in Fisk by referring to the general
rule of wrongful death claim accrual under the FTCA: “in
an ‘ordinary’ wrongful death action under the FTCA[,] the
federal rule is that the cause of action accrues upon the
date of death.” Id. at 170. We then noted that in Indiana, a
claim for wrongful death is independent and not derivative
of the underlying claim for personal injury, and the occur-
rence of a death was an essential element of a wrongful
death cause of action. Id. at 170-71. “[U]ntil the death of the
plaintiff’s decedent there can be no claim for wrongful
death, because until that event occurs, the damages the
statute is intended to remedy have not been inflicted on the
plaintiff.” Id. at 171 (citing Louisville, Evansville, & St.
Louis R.R. v. Clarke, 152 U.S. 230, 238 (1894)).
6                                               No. 04-3753

  We noted in Fisk that “[t]he purpose of the [Indiana
Wrongful Death] statute is not to compensate for the injury
to the decedent, but rather to create a cause of action to
provide a means by which the decedent’s survivors may be
compensated for the loss they have sustained by reason of
the death.” Id. at 170; see also Reeder v. Harper, 788 N.E.2d
1236, 1242 (Ind. 2003). Thus, because Indiana treats a
wrongful death claim as substantively distinct from the
underlying personal injury claim, we held that a wrongful
death claim stemming from medical malpractice does not
accrue for purposes of the FTCA’s statute of limitations
until the date of death. Fisk, 657 F.2d at 170-72. “[T]he
wrongful acts of 1950 gave rise to two separate claims: a
personal injury claim of the decedent, to which the Govern-
ment was exposed for two years after it accrued, . . . and a
wrongful death claim of the decedent’s survivors, to which
the Government was exposed for two years after it accrued.”
Id. at 172. See also Johnston v. United States, 85 F.3d 217,
222 (5th Cir. 1996); but cf. Chomic v. United States,
377 F.3d 607 (6th Cir. 2004) (holding that in states with
derivative rather than independent wrongful death causes
of action, claim accrues when person knows of injury and
cause).
  Applying the reasoning of Fisk to the present case, we
agree with the district court that the wrongful death claim
at issue here did not accrue and could not have been
presented to the VA until the date of Sayyah’s death. As
such, the earlier medical malpractice administrative claim
did not suffice as a death “claim” under § 2675(a). Warrum
never presented an administrative claim to the VA for
damages for Sayyah’s death. Accordingly, this action was
properly dismissed for failure to comply with the FTCA’s
administrative exhaustion requirement.
  This result comports with the exhaustion requirement’s
purpose of allowing the relevant government agency the
opportunity to investigate and settle meritorious claims
No. 04-3753                                               7

lodged against it. See Romulus v. United States, 160 F.3d
131, 132 (2d Cir. 1998) (per curiam) (“A claim must be
specific enough to serve the purpose of the FTCA to enable
the federal government to expedite the fair settlement of
tort claims.”); see also Kanar, 118 F.3d at 531; Charlton,
743 F.2d at 559-60. As we have discussed, under Indiana
law, a wrongful death claim “is designed to compensate for
the loss to the survivors caused by the decedent’s death,
and not the underlying injury.” Holmes v. ACandS, Inc., 709
N.E.2d 36, 39 (Ind. Ct. App. 1999). Such a claim necessarily
involves causation and damages questions distinct from
those at issue in a malpractice claim that does not involve
a death. In order to meaningfully evaluate the extent of its
liability in a death case, the federal agency must have
notice of the death, not merely an assertion of medical
malpractice. Indeed, in the case of a claim based on death,
the applicable regulations allow the government to request
the names of the decedent’s survivors as well as the
“[d]egree of support afforded by the decedent to each
survivor dependent upon him for support at the time of his
death.” 28 C.F.R. § 14.4(a)(3)-(4). This information bears
directly on the damages potentially arising out of a wrong-
ful death cause of action under Indiana law.
  Warrum seeks to get around Fisk by invoking a change in
Indiana law since Fisk was decided. In particular, he notes
that Indiana law now requires wrongful death actions based
on medical malpractice to be brought under Indiana’s
medical malpractice statutory scheme, which includes a
statute of limitations that requires claims to be brought
within two years of the act of medical negligence. See
Hopster v. Burgeson, 750 N.E.2d 841, 852-53 (Ind. Ct. App.
2001); Frady v. Hedgcock, 497 N.E.2d 620, 622 (Ind. Ct.
App. 1986). Warrum argues this development means that
in the medical malpractice context, Indiana law no longer
recognizes wrongful death actions as independent claims.
We disagree. The change in the applicable statute of
8                                                    No. 04-3753

limitations for wrongful death claims based upon medical
malpractice did not alter the substantive nature of a
wrongful death claim under Indiana law.1 What was true at
the time of Fisk is still true today: Indiana law regards a
wrongful death claim as independent of a personal injury
claim that might have been possessed by the decedent
before death. See Chamberlain v. Walpole, 822 N.E.2d 959,
963 (Ind. 2005) (holding that the Indiana Medical Malprac-
tice Act did not create new claims for relief, but “merely
requires that claims for medical malpractice that are
otherwise recognized under tort law and applicable statutes
be pursued through the procedures” of the Act).
  In any event, as we specifically noted in Fisk, the issue “is
not one of choice between conflicting [state] statutes of
limitations or accrual dates, but rather one of ascertaining
the intent of Congress in enacting the FTCA and its
limitations period.” Fisk, 657 F.2d at 171. Although this
case concerns the FTCA’s exhaustion requirement and not
its limitations period, the point is the same: the change in
Indiana’s statute of limitations for medical malpractice
death claims does not affect the administrative exhaustion
requirement of § 2675(a). Because under Fisk the wrongful
death claim did not accrue until Sayyah’s death in 2002, the
presentation of Sayyah’s malpractice administrative claim
notice in 2000 did not satisfy the exhaustion requirement of
§ 2675(a) for purposes of this FTCA wrongful death action.
  A final point: Warrum argues that the complaint can be
read not just as a wrongful death action but also as a



1
  We note that there is some question as to whether Indiana’s
medical malpractice statute of limitations scheme violates the
state constitution. See Morrison v. Sadler, 821 N.E.2d 15, 22 n.7
(Ind. App. 2005); Ellenwine v. Fairly, 818 N.E.2d 961, 969-70 (Ind.
App. 2004). See generally Martin v. Ritchey, 711 N.E.2d 1273 (Ind.
1999).
No. 04-3753                                                9

survival claim based on Indiana’s “increased risk of harm”
or “loss of chance” doctrine. This theory allows recovery
against a defendant “whose negligence significantly in-
creases the probability of the ultimate harm, even if the
likelihood of incurring that injury was greater than fifty
percent in the absence of the defendant’s negligence.”
Cahoon v. Cummings, 734 N.E.2d 535, 539 (Ind. 2000). But
the Indiana Supreme Court held in Cahoon that “a plaintiff
cannot recover on both a wrongful death claim and a claim
of an increased risk of harm caused by the same wrong.” Id.
at 544. Warrum concedes this, but argues that a survivor
can bring an increased risk of harm claim if the death
resulted from another cause. For instance, if the death
resulted from a separate, unrelated cause—suppose the
decedent were struck by a car—a plaintiff could pursue both
causes of action because in that instance the wrongful death
claim would not subsume the negligence claim for increased
risk of harm. But “[i]f the alleged result of the defendant’s
acts that increase the risk of harm is death itself,” then a
separate claim based on increased risk of harm is unavail-
able. Id. Here, the complaint plainly alleges that the cancer
misdiagnosis caused Sayyah’s death; it cannot be construed
to allege a cause of action based upon the increased risk of
harm doctrine.
  The judgment of the district court is AFFIRMED.
A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—10-25-05
