    14–3880
    Torres v. United States


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second
    Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,
    in the City of New York, on the 12th day of May, two thousand fifteen.

    PRESENT:
                          PIERRE N. LEVAL,
                          GERARD E. LYNCH,
                          RAYMOND J. LOHIER, JR.,
                               Circuit Judges.

    _____________________________________

    MADELINE TORRES,

                               Plaintiff-Appellant,
                          v.                                             14-3880

    UNITED STATES OF AMERICA,

                               Defendant-Appellee,

    Lutheran Medical Center,

                               Defendant.*

    _____________________________________


               *
            The Clerk of Court is respectfully directed to amend the caption to conform to the
    caption above.
FOR PLAINTIFF-APPELLANT:                     JOHN T. WISELL, JR., Wisell & McGee, L.L.P.,
                                             Kew Gardens, NY.

FOR DEFENDANT-APPELLEE:                      JAMES R. CHO, Assistant United States Attorney
                                             (Varuni Nelson, Assistant United States
                                             Attorney, on the brief) for Kelly T. Currie,
                                             Acting United States Attorney, Eastern District
                                             of New York, Brooklyn, NY, for the United
                                             States.
       Appeal from an order of the United States District Court for the Eastern District of
New York (Nicholas G. Garaufis, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of the district court is VACATED, and the case is
REMANDED to the district court for entry of a judgment dismissing the complaint for
failure to state a claim.
       Plaintiff-appellant Madeline Torres appeals from the district court’s dismissal of
her medical malpractice claim against the United States as barred by the Federal Tort
Claims Act’s (“FTCA”) two-year statute of limitations. See 28 U.S.C. § 2401(b).1 We
agree with the district court, substantially for the reasons stated by that court in its
thorough opinion, that the claim is time-barred. The order appealed from, however,
grants the government’s motion to dismiss for lack of jurisdiction.2 Because intervening
Supreme Court authority holds that the statute of limitations in the FTCA is not
jurisdictional, it is now clear that the district court’s order is technically incorrect, insofar
as the dismissal should be for failure to state a claim, not for lack of jurisdiction.

       1
        Torres’s claims against Lutheran Medical Center were dismissed in a separate
order that is not challenged in this appeal. See Torres v. United States, ECF No. 52, Dkt.
No. 12-6011 (E.D.N.Y. Dec. 8, 2014).
       2
        Because no separate judgment was entered, the order appealed from is the district
court’s memorandum and order of September 25, 2014, which grants the government’s
motion to dismiss for lack of jurisdiction and orders that the complaint be dismissed with
prejudice.
                                                2
       We assume the parties’ familiarity with the facts and procedural history, and
address those matters only as necessary to explain our decision.
       Torres alleges that Dr. Irina Karban, who is deemed to be a federal employee
under the Federally Supported Health Centers Assistance Act of 1995, Pub. L. No. 104-
73, 109 Stat. 777, negligently failed to properly diagnose and treat her ulcerative colitis,
and that the worsening of her condition over the period between January 26, 2009 to
February 1, 2009, after Dr. Karban failed to recognize the condition, led to serious and
avoidable medical consequences, including drastic surgery, a nearly fatal cardiac arrest,
lengthy hospitalization, and the loss of her unborn child.3
       As a precondition for suit under the FTCA, an administrative claim must be filed
with the responsible federal agency within two years of a plaintiff’s alleged injury.
Torres first made her claim in a state-court malpractice action filed on February 25,
2011.4 Her medical malpractice claim is therefore untimely if it accrued prior to February
25, 2009.
       Although a tort claim generally accrues under the FTCA at the time of a plaintiff’s
injury, accrual of a medical malpractice claim “may be postponed until the plaintiff has or
with reasonable diligence should have discovered the critical facts of both his injury and
its cause.” Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998) (internal
quotation marks omitted). Even under this more liberal “diligence-discovery” standard,

       3
         Contrary to Torres’s contention on appeal, the district court correctly recognized
that the injury of which she complains was not the underlying ulcerative colitis itself, but
rather the worsening of her condition due to the allegedly negligent failure to diagnose the
condition and promptly undertake appropriate treatment. See Torres v. United States, No.
12-CV-6011(NGG)(RLM), 2014 WL 4805035, at *5 (E.D.N.Y. Sept. 26, 2014).
       4
         Under the Westfall Act, 28 U.S.C. § 2679(d)(5), a plaintiff who erroneously sues
a federal employee in state court within the two-year limitations period is permitted to
exhaust administrative remedies after the case is removed by the government to federal
court under the FTCA. Thus, the date of the filing of the state court action is the effective
date for determining whether Torres took action within the two-year limitations period.
                                              3
such a claim accrues when the plaintiff “knows, or should know, enough to protect
h[er]self by seeking legal advice.” A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135,
142 (2d Cir. 2011) (internal quotation marks omitted).
       As the district court correctly observed, Torres knew by February 1, 2009 the
“critical facts” that would lead a reasonable person, and that eventually led her, to consult
a lawyer to investigate whether the worsening of her condition was caused by inadequate
medical care: that she had visited Dr. Karban complaining of abdominal symptoms on
January 26, that her symptoms had worsened drastically over the next several days, and
that she was suffering from ulcerative colitis, a condition that had not been diagnosed by
Dr. Karban. Torres argues that she did not know the critical facts about her injury until a
meeting with Dr. Michael Harris in April 2009. As Torres herself states in her affidavit in
opposition to the government’s motion, however, Dr. Harris did not say anything negative
about the treatment she had received, and did not provide her with any information she
had not already possessed months before. He merely asked her questions about when her
symptoms first occurred, and in responding to those questions, “it occurred to” Torres
that Dr. Karban might have misdiagnosed her. J.A. 208. Thus, by Torres’s own
testimony, all of the facts that made her realize that she had possibly been injured by
medical malpractice were available to her before the meeting with Dr. Harris. Because
she did not learn anything additional about her condition after she was diagnosed with
ulcerative colitis on February 1, 2009, that is the date her claim accrued.5 The district


       5
         Our decision in Valdez ex rel. Donely v. United States, 518 F.3d 173 (2d Cir.
2008), is not to the contrary. There, we remanded to the district court because we were
unable to determine what prompted the plaintiff to retain counsel. Id. at 180-81. Here,
Torres does not suggest that she learned of critical facts that led her to the conclusion that
her injury was iatrogenic on any occasion between her diagnosis on February 1 and her
April meeting with Dr. Harris. Instead, she argues that Dr. Harris’s questions led her to
reach that conclusion. The accrual date under the diligence discovery rule is not when a
plaintiff realizes that she may have a claim, but when she possesses the facts that would
lead a reasonable person to that conclusion. Torres identifies no facts relevant to her
conclusion that she learned from Dr. Harris or that were not available to her on February
1, 2009.
                                              4
court therefore correctly determined that her claim was time-barred.6
       Having correctly concluded that Torres’s FTCA claim was barred by the statute of
limitations, the district court dismissed the case for want of jurisdiction. After the district
court’s decision, however, the Supreme Court made clear that the FTCA’s statute of
limitations is not jurisdictional and may be subject to equitable tolling. See United States
v. Kwai Fun Wong, Nos. 13-1074, 13-1075, 2015 WL 1808750, at *5-6 (U.S. Apr. 22,
2015). The district court determined that, assuming arguendo that equitable tolling was
available, it was not warranted on the facts here, and Torres does not challenge that
conclusion on appeal. Accordingly, although the district court was correct that the statute
of limitations bars Torres’s FTCA claim, that conclusion requires a dismissal on
substantive, not jurisdictional, grounds. The district court’s order was therefore
technically incorrect insofar as it granted the government’s motion to dismiss for want of
jurisdiction.
       For the reasons set forth above, and because we have considered all of Torres’s
remaining arguments and find them to be without merit, we VACATE the order of the
district court to the extent it dismissed Torres’s claim against the United States, and
REMAND the case for entry of a judgment dismissing that claim with prejudice for
failure to state a claim upon which relief may be granted.

                                            FOR THE COURT:
                                            Catherine O=Hagan Wolfe, Clerk




       6
         Torres argues that this standard unfairly requires her to have evaluated the
adequacy of her medical care while she was too severely ill to do so. Of course, it does
nothing of the sort. The accrual date is not a date on which a plaintiff is required to do
anything; it merely starts the running of a two-year period during which she has ample
time to ponder her situation, consult counsel, and determine with the assistance of legal
and medical experts whether a claim should be filed. Torres was fully able to do that
within a few months after the accrual date, and she has not argued on appeal that her
incapacity was so severe or long-lasting as to warrant equitable tolling of the limitations
period.
                                               5
