          United States Court of Appeals
                        For the First Circuit

No. 16-2064

        LUZ Z. MORALES-MELECIO; MARÍA I. MARTÍNEZ-ORTIZ;
           EMILIO MATOS-PÉREZ; MARIELA MATOS-MARTÍNEZ,

                       Plaintiffs, Appellants,

                                  v.

    UNITED STATES (Department of Health and Human Services),

              Defendant/Third-Party Plaintiff, Appellee,

                                  v.

         EMERGENCY PRACTICE MANAGEMENT, P.S.C.; HOSPITAL
     UNIVERSITARIO DR. RAMÓN RUIZ ARNAU; DR. LUIS E. MEJÍAS-
       BETANCOURT; DR. RICARDO ROSARIO-MENDOZA; DR. MINELY
         MARTÍNEZ-VELÁSQUEZ; DR. LUIS RODRÍGUEZ-ROSELLÓ,

                       Third-Party Defendants.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

     [Hon. Salvador E. Casellas, U.S. Senior District Judge]


                                Before

                    Torruella, Lipez, and Kayatta,
                            Circuit Judges.


     José F. Velázquez-Ortiz and Velázquez Law Offices, PSC on
brief for appellants.
     John A. Mathews II, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, on brief for appellee.
May 21, 2018




    -2-
            TORRUELLA, Circuit Judge.              This case once again calls

for this Court to determine the accrual date of a claim arising

under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b),

2671-2680,       and    the   potential        application    of     the   so-called

"discovery rule."

                                          I.

            On March 1, 2010, Emilio Matos-Martínez ("Matos") died

at the Puerto Rico Medical Center ("PRMC") after having been

diagnosed    with      septic   shock   and      multiple    organ    failure,    and

suffering two cardiorespiratory attacks.                   Prior to his death at

PRMC,    Matos    was    treated   at   two      other    medical    facilities    on

February 27 and February 28, 2010.                At some point after Matos's

death,    Matos's       parents,   sister,       and     daughter    (collectively,

"Appellants") became aware that the first medical facility at which

Matos was treated was a federally supported entity.                        Appellants

filed an administrative claim with the United States Department of

Health and Human Services ("USDHHS" or the "government") on April

16, 2012, followed by a medical malpractice complaint pursuant to

the FTCA against USDHHS in the district court on April 22, 2013.

The district court granted summary judgment in favor of the

government, holding that Appellants' claims were time-barred for

failing to file compulsory administrative claims within the FTCA's

two-year statute of limitations.               See 28 U.S.C. § 2401(b).


                                        -3-
          Appellants now appeal the dismissal of their complaint,

arguing that their FTCA claims did not begin to accrue until they

received Matos's autopsy report on July 28, 2010.      After careful

review of the record, we agree with the district court that

Appellants' claims are time-barred.      We therefore affirm.

                                   II.

          The facts are largely undisputed.1 On February 27, 2010,

at 4:55 p.m., Matos, a thirty-six year old man weighing 370 pounds2

with a history of hypertension, arrived at Salud Integral en la

Montaña, Inc. ("SIM"), a health center located in Naranjito, Puerto

Rico, complaining of abdominal pain that had persisted for five

days, constipation, and fever.   SIM is a covered entity under the

Federally Supported Health Centers Assistance Act of 1995, Pub. L.

104-73, 109 Stat. 777 (codified at 42 U.S.C. § 233).            After

triaging Matos, a resident nurse at SIM determined that his

condition was such that he needed to be promptly evaluated by a


1 Appellants state that the district court "made a partial, however
good synthesis of some of the undisputed material facts in this
case," and point to several facts not contained within the district
court's analysis.    None of these purportedly omitted facts are
material to our determination of the accrual date of Appellants'
action.
2  Appellants and the government both assert that Matos weighed
330 pounds, a fact that the district court seems to have adopted.
However, an autopsy report shows that Matos weighed 370 pounds
when he died. This distinction, too, has no effect on this Court's
analysis.


                                 -4-
doctor.        After    the    duty    physician,       Dr.    María    Román-Bruno

("Dr. Román"), conducted a cursory examination of Matos that did

not    involve      x-rays,   laboratory      tests,    or    other    imaging,   she

diagnosed Matos with "abdominal pain" and prescribed him Maalox

and Enulose for his constipation,3 and Bentyl for his abdominal

pain.4      Dr. Román then discharged Matos and instructed him to see

his primary doctor in two days.

              The next day, Matos's sister, Mariela Matos, took Matos

to    the   Hospital     Universitario     Ramón       Ruiz-Arnau      ("HURRA"),   a

regional hospital in Bayamón, because his symptoms had worsened

overnight.       Upon arrival, Matos was diagnosed with abdominal pain,

dehydration, and hematuria.5            Medical tests revealed that Matos

had    a    bowel    obstruction,     which    prompted       the   emergency     room

physician to request a surgical evaluation.                   However, the head of

HURRA's surgery department, Dr. Ricardo Rosario ("Dr. Rosario"),

refused to evaluate Matos because he believed that the surgical

tables at the hospital would not support Matos's weight.6                    Due to



3    Maalox is an antacid.       Enulose is a laxative.
4  According to Dr. Román's testimony, Bentyl is used in small
amounts to "alleviate abdominal pain."
5    Hematuria is the medical term for blood in the urine.
6  In his deposition, Dr. Rosario denied that he had ever refused
to partake in a consultation because of a patient's weight.
Matos's medical progress note, however, indicates otherwise.


                                        -5-
HURRA's inability to properly evaluate Matos, the staff at HURRA

attempted to transfer Matos to another medical facility but was

unable to do so until the next day.

             On March 1, 2010, Matos was transferred to the PRMC where

he was diagnosed with septic shock and multiple organ failure.

Shortly thereafter, Matos suffered two consecutive cardiac arrests

and, at 4:15 p.m., was declared dead.          Immediately after Matos's

death, a PRMC physician appears to have informed his father, Emilio

Matos-Pérez, that Matos died of a heart attack.            That same day,

Matos's mother, María Martínez-Ortiz ("Martínez"), authorized PRMC

to perform an autopsy of Matos's body.         The autopsy was performed

on March 2, 2010.

             On March 6, 2010, Matos's body was cremated.         Two days

later, Martínez was given Matos's ashes along with a copy of his

death certificate.      The death certificate listed Matos's immediate

cause   of   death    as   "septic   shock,   secondary   to   peritonitis,

secondary to intestinal perforation."          On May 26, 2010, Martínez

requested a certified copy of Matos's complete PRMC medical file.

She received the file, along with the final autopsy report, on

July 28, 2010.       The autopsy report matched the death certificate

findings as to the septic shock and the peritonitis.7              However,


7  Specifically, the final autopsy report listed the following
under its final pathologic diagnosis: (1) Septic Shock; (2) Morbid
obesity; (3) Congestive Heart Failure; and, (4) Renal Failure.

                                     -6-
rather than listing "intestinal perforation," the autopsy report

went into further detail about Matos's torn intestine, listing

"diverticulitis,    perforated   with     peritonitis   with    abscess

formation."    The narrative section of the autopsy report labeled

"Laboratory Findings" reads that "[a]n intestinal perforation in

the Colon at 192 cm from the ileo-cecal valve (distal portion)

measuring 0.5 cm corresponded to a diverticuli (Sigmoid Colon)."

At an unidentified time after obtaining possession of the medical

file, Appellants hired an attorney to explore their legal options.

          On    March   16,   2011,    Appellants   filed   a   medical

malpractice suit in the Puerto Rico Court of First Instance against

SIM, HURRA, and several physicians, alleging the wrongful death of

Matos.   On June 30, 2011, Appellants voluntarily dismissed their

state court lawsuit.    At some point thereafter, Appellants became

aware that SIM was a federally covered entity and, on April 16,

2012, they filed an administrative claim with the USDHHS.8        While

that administrative claim was still pending, on April 22, 2013,

Appellants filed this FTCA medical malpractice claim against the

USDHHS, as the representative of SIM and Dr. Román (as SIM's



Each diagnosis is further detailed in the autopsy report.
8  In their complaint, Appellants asserted that they filed their
administrative claim on April 9, 2012.    Both parties on appeal
acknowledge that the administrative claim was filed on April 16,
2012.


                                 -7-
agent), seeking compensatory damages for their own suffering as a

result of Matos's death.         In the same complaint, Matos's minor

daughter, Z.M.M., as heir of her deceased father, also asserted an

inherited action for Matos's pain and suffering before his death

as a result of the alleged medical malpractice.9                The government

brought    a    third-party    complaint     against    HURRA    and   several

physicians that cared for or evaluated Matos in the events leading

up to his death, seeking to add them as additional parties to the

lawsuit.       On May 3, 2013, the USDHHS denied the administrative

claims against SIM.

             After discovery was complete in the district court,

Appellants      filed   a   motion   for    partial    summary    judgment   on

November 27, 2015, claiming there was no factual dispute as to the

negligence of the government's agent.           On November 30, 2015, the

government filed its own motion for summary judgment, positing


9  While a tort claim under the FTCA substantively follows state
law liability, its statute of limitations provisions are governed
by federal law, not state law. Domínguez v. United States, 799
F.3d 151, 154 (1st Cir. 2015).      Therefore, state law tolling
statutes do not apply to the FTCA statute of limitations. See,
e.g., Santos ex. rel. Beato v. United States, 559 F.3d 189, 193
(3d Cir. 2009); Arteaga v. United States, 711 F.3d 828, 830 (7th
Cir. 2013). Unlike Puerto Rico tort claims, for which the statute
of limitations governing both personal and inherited tort actions
by minors are suspended until the minor becomes of legal age, De
Jesús v. Chardón, 16 P.R. Offic. Trans. 290, 308-09 (1985), the
FTCA includes no such tolling provision, see 28 U.S.C. §§ 2401(b),
2671-2680. Thus, we treat Z.M.M.'s claims in the same manner as
those of the remaining Appellants.


                                      -8-
that the Appellants' claims were barred by their failure to file

an administrative claim within two years after their causes of

action accrued, as mandated by 28 U.S.C. § 2401(b).           Appellants

countered     that   there   was   undisputed   evidence   that   Matos's

diverticulitis triggered his death, and that they could not have

known of that evidence and possibly connected Matos's death to any

governmental malfeasance until they received the autopsy report on

July   28,   2010.     Therefore,    Appellants   asserted,   under   the

"discovery rule," they had until July 28, 2012, to file their

federal claim, and, because their administrative claim was filed

before that, their claim was timely.

             The district court agreed with the government, holding

that by March 1, 2010, Appellants had sufficient knowledge as to

the probable cause of Matos's death such that the statute of

limitations began to run that same day.           As Appellants had not

filed their administrative claims until April 16, 2012,10 the

district court dismissed Appellants' claims with prejudice on

June 6, 2016.    Appellants filed a motion to reconsider on June 10,




10  In its opinion and order, the district         court used April 15,
2012, as the date on which Appellants filed         their administrative
motion. As previously noted, both parties          agree on appeal that
the administrative claim was filed on April        16, 2012. See supra
note 8.


                                    -9-
2016,   which   the   district   court   denied   on   August   3,   2016.

Appellants timely appealed.

                                  III.

            It is axiomatic that, absent an explicit waiver, the

United States is safeguarded from suit in any court in accordance

with its sovereign immunity.       FDIC v. Meyer, 510 U.S. 471, 475

(1994).    The FTCA constitutes a limited waiver of that sovereign

immunity, allowing, in relevant part, for damages claims to be

brought against the United States for any "injury or loss of

property, or personal injury or death caused by the negligent or

wrongful act or omission of any employee of the Government while

acting within the scope of his office or employment."           28 U.S.C.

§ 1346(b)(1).      One limitation of this waiver, however, requires

that "[a] tort claim against the United States . . . is presented

in writing to the appropriate Federal agency within two years after

such claim accrues," otherwise that claim is "forever barred."

Id. § 2401(b).11    "[I]n construing the statute of limitations . . .


11 Congress passed the Westfall Act of 1988, Pub. L. No. 100-694,
102 Stat. 4563, which amended the FTCA to require that "any civil
action or proceeding commenced upon such claim in a State court
shall be removed . . . to the district court of the United
States . . . . Such action or proceeding shall be deemed to be an
action or proceeding brought against the United States . . . and
the United States shall be substituted as the party defendant."
28 U.S.C. § 2679(d)(2). Further,

          Whenever an action or proceeding in which the United
          States is substituted as the party defendant under

                                  -10-
we should not take it upon ourselves to extend the waiver beyond

that which Congress intended," United States v. Kubrick, 444 U.S.

111, 117-18 (1979), nor "should we assume the authority to narrow

the waiver," id. (citing Indian Towing Co. v. United States, 350

U.S. 61, 68-69 (1955)).

          This Court had long interpreted the timely filing of an

administrative claim pursuant to § 2401(b) as a jurisdictional

prerequisite to vesting the district court with subject matter

jurisdiction over an FTCA suit against the United States.       See

Skwira v. United States, 344 F.3d 64, 71 (1st Cir. 2003); González



       this subsection is dismissed for failure first to
       present a claim pursuant to section 2675(a) of this
       title [requiring that an administrative claim be first
       filed], such a claim shall be deemed to be timely
       presented under section 2401(b) of this title if --

       (A) the claim would have been timely had it been filed
       on the date the underlying civil action was commenced,
       and

       (B) the claim is presented to the Federal agency
       within 60 days after the dismissal of the civil
       action.

Id. § 2679(d)(5). Here, Appellants filed a medical malpractice
suit against SIM and others in Puerto Rico court on March 16, 2011,
which they voluntarily dismissed on June 30, 2011.       Appellants
neither state that their local claims were brought pursuant to the
FTCA nor that the United States was substituted as the party
defendant. Further, Appellants acknowledge that they did not file
a claim with the USDHHS within sixty days of their voluntarily
dismissal of that local suit. Accordingly, § 2679(d)(5) provides
no protection to Appellants' claims, and they make no argument
otherwise.


                               -11-
v. United States, 284 F.3d 281, 288 (1st Cir. 2002); Attallah v.

United States, 955 F.2d 776, 779 (1st Cir. 1992); González-Bernal

v. United States, 907 F.2d 246, 248 (1st Cir. 1990).        However, in

2015, the Supreme Court clarified that the FTCA's statute of

limitations is nonjurisdictional.      United States v. Kwai Fun Wong,

135 S. Ct. 1625, 1638 (2015).    Given the nonjurisdictional nature

of § 2401(b), we must now view the FTCA's statute of limitations

as an affirmative defense to be asserted by the defendant.            See

Skwira, 344 F.3d at 71 n.8 (citing Hughes v. United States, 263

F.3d 272, 278 (3d Cir. 2001), for the proposition that other

pre-Kwai-Fun   Wong   cases   considered    the    FTCA's   statute    of

limitations to be a nonjurisdictional affirmative defense asserted

by the defendant); see also Trinity Marine Prod., Inc. v. United

States, 812 F.3d 481, 486 (5th Cir. 2016); Fed. R. Civ. P. 8(c)(1);

cf. Midland Funding, LLC v. Johnson, 137 S. Ct. 1407, 1417-18

(2017) (stating that, in ordinary civil cases the statute of

limitations is an affirmative defense); Weil v. Elliot, 859 F.3d

812, 815 (9th Cir. 2017) (finding in the bankruptcy context that

"[a] non-jurisdictional time bar is an affirmative defense that

may be forfeited if not timely raised").          Here, the government

repeatedly raised the statute of limitations in its motion to

dismiss filed on August 1, 2013, in the "Affirmative Defenses"




                                -12-
section of its answer to Appellants' complaint filed on February 3,

2014, and again in its motion for summary judgment.

            Ultimately, the district court resolved the dispute on

summary judgment.       We take this opportunity to note that, post-

Kwai Fun Wong, motions to dismiss based on the FTCA's statute of

limitations should now be brought under Federal Rule of Civil

Procedure 12(b)(6) (failure to state a claim upon which relief can

be granted), or considered pursuant to Rule 56 (summary judgment).

See Trinity Marine Prod., Inc., 812 F.3d at 486 ("[T]he district

court should have considered the Government's motion to dismiss

under Rule 12(b)(6) rather than 12(b)(1)."); see also Holloway v.

United States, 845 F.3d 487, 489 (1st Cir. 2017) (acknowledging

post-Kwai    Fun   Wong   that    the     magistrate    judge     treated    the

Government's 12(b)(1) motion to dismiss for lack of subject matter

jurisdiction as one for summary judgment); Torres v. United States,

612 F. App'x 37, 39 (2d Cir. 2015) (unpublished) (affirming the

district court's dismissal under Rule 12(b)(1) but noting 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").

            As   the   district   court    properly    analyzed    this     claim

utilizing the appropriate summary judgment test, "[w]e review the

district court's decision to grant defendant's motion for summary


                                    -13-
judgment on statute of limitations grounds de novo, construing the

record in the light most favorable to the non-moving party."

Rodríguez v. Suzuki Motor Corp., 570 F.3d 402, 405-6 (1st Cir.

2009) (citation omitted).       The district court's decision will be

affirmed if, "based on our independent review of the evidentiary

record,   there   is   no   genuine   issue   of   material    fact   and   the

undisputed facts indicate that the moving party is entitled to

judgment as a matter of law."            Id. at 406.     However, summary

judgment is improper when the "record is sufficiently open-ended

to permit a rational factfinder to resolve a material factual

dispute in favor of either side."            Pierce v. Cotuit Fire Dist.,

741 F.3d 295, 301 (1st Cir. 2014).

                                      IV.

           In general, a tort claim under the FTCA accrues when a

plaintiff is injured.        Ramírez-Carlo v. United States, 496 F.3d

41, 46 (1st Cir. 2007).      Both parties agree that the date of injury

in question, Matos's death, was March 1, 2010.                But, under the

Supreme Court's "discovery rule" exception for FTCA claims, the

statute of limitations clock does not begin to run until the

putative plaintiff knows of the factual basis of both his injury

and its cause.    Kubrick, 444 U.S. at 119-22; see also Nicolazzo v.

United States, 786 F.2d 454, 455 (1st Cir. 1986).                 The Court

explained that two major concerns necessitated this rule:


                                      -14-
         One is the fact that . . . since many of the
         consequences of medical malpractice often do not
         become apparent for a period longer than that of the
         statute [of limitations], the injured plaintiff is
         left without a remedy. The second reason is that the
         nature of the tort itself and the character of the
         injury will frequently prevent knowledge of what is
         wrong, so that the plaintiff is forced to rely upon
         what he is told by the physician or surgeon.

Kubrick, 444 U.S. at 120 n.7 (quoting Restatement (Second) of Torts

§ 899 cmt. e (1979)).        Once aware of the probable cause and

existence    of   the   injury,   that    putative   medical   malpractice

plaintiff bears the burden of seeking further advice from the

medical and legal communities to decide whether he has a viable

cause of action.        See Ramírez-Carlo, 496 F.3d at 47 (citing

Callahan v. United States, 426 F.3d 444, 451 (1st Cir. 2005)); see

also Sánchez v. United States, 740 F.3d 47, 52 (1st Cir. 2014);

Skwira, 344 F.3d at 76.      "Knowing the cause and existence of an

injury is not the same as knowing that a legal right has been

violated."     Motley v. United States, 295 F.3d 820, 822 (8th Cir.

2002).

                                    V.

             Appellants contend that their claims did not accrue

until July 28, 2010, the date that they received the autopsy

report. Unlike the death certificate, they assert that the autopsy

report revealed that the "most significant" cause of Matos's death

was diverticulitis, which a reasonable person could not have known


                                   -15-
on the day that he died.    Therefore, Appellants allege that they

"became aware that the patient's death was possibly caused by

mistreatment of his condition . . . only after the issuance on

July 28, 2010[,] of the PRMC medical records with the autopsy

report that revealed [Matos's] diverticulitis disease."        Thus, the

clock to file their FTCA claims should not have expired until

July 28, 2012, rendering timely their administrative claims filed

on April 16, 2012. Further, Appellants assert that PRMC's "extreme

delay" in providing the autopsy report precluded them from learning

the factual basis to assert their causes of action any earlier,

and that, prior to receiving it, no one could have anticipated any

litigation resulting from Matos's death.       We disagree.

           The court employs an objective standard to determine

whether a plaintiff knew of sufficient facts for his action to

accrue,   contemplating   "whether   a   reasonable   person   similarly

situated to the plaintiff would have known the necessary facts,"

or reasonably could have obtained sufficient facts through the

exercise of reasonable diligence.        Cascone v. United States, 370

F.3d 95, 104 (1st Cir. 2004) (emphasis omitted) (citing McIntyre

v. United States, 367 F.3d 38, 60 (1st Cir. 2004)); see also

Skwira, 344 F.3d at 81-82.       This Court has clarified that a

plaintiff need not know the "full extent of the injury," González,

284 F.3d at 289 (citing Marrapese v. Rhode Island, 749 F.2d 934,


                                -16-
940 n.10 (1st Cir. 1984)), "or that it was negligently inflicted,"

id. (citing Kubrick, 444 U.S. at 124), in order for the statute of

limitations to begin to run.        Further, "definitive knowledge of

the cause of injury is not required to trigger the accrual of a

medical malpractice claim."             Skwira, 344 F.3d at 78 (citing

Kubrick, 444 U.S. at 118); see also Callahan, 426 F.3d at 451.               A

plaintiff    need   only   be   aware    of    his   injury   and   the   facts

establishing the probable cause of the injury for the claim to

accrue.   See Kubrick, 444 U.S. at 118; see also González, 284 F.3d

at 289.     While knowing the factual basis of the cause of action

includes knowing "the identity of the part[y] that caused the

injury," McIntyre, 367 F.3d at 52, "knowledge of the legal status

of the physician as a federal employee is not required for claim

accrual," Skwira, 344 F.3d at 76.

            Applying these principles, we find that, at least by

March 8, 2010, when Appellants received Matos's death certificate,

they knew of sufficient facts to raise an alarm in a reasonable

person that the probable cause of Matos's death was connected to

the defendants' treatment (or failure to provide treatment) of

Matos's   medical    condition.         Upon   receipt   of   Matos's     death

certificate, Appellants were aware that Matos had experienced five

days of abdominal pain, constipation, and fever by the time that

he arrived at SIM on February 27, 2010; that a nurse at SIM deemed


                                   -17-
his condition to be "urgent"; and that Dr. Román simply diagnosed

him with "abdominal pain" and prescribed him a laxative, an

antacid, and a pain reliever without ordering any laboratory tests

or x-rays.      Appellants were also aware that after Dr. Román

discharged Matos, his condition worsened overnight, prompting his

family to take him to HURRA, where medical tests revealed a bowel

obstruction that required a surgical evaluation.      Additionally,

Appellants knew that after HURRA transferred Matos to PRMC on

March 1, 2010, less than two days after SIM discharged him, Matos

was diagnosed with septic shock, multiple organ failure, and

suffered two consecutive cardiac arrests ultimately resulting in

his death.    Finally, upon receiving the death certificate on March

8, 2010, Appellants were aware of Matos's direct, medical cause of

death: septic shock, caused by peritonitis, which itself was caused

by a perforated intestine.    The knowledge of these vital facts was

more than sufficient to trigger Appellants' burden to inquire

amongst the relevant medical and legal communities as to whether

there was a causal connection between SIM's lack of treatment and

Matos's death, and whether Appellants had a viable cause of action.

See Kubrick, 444 U.S. at 124; González, 284 F.3d at 290.

             The essence of Appellants' argument is that they could

not have known that the defendants may have committed malpractice

by missing Matos's diverticulitis until they received the autopsy


                                 -18-
report. But, as Appellants themselves acknowledge in their opening

brief, the "FTCA two year limitation period allows a plaintiff to

investigate, [and to] confer [with] medical professionals for the

purpose of assessing whether there has been negligence and decide

whether to sue." (emphasis added). The FTCA statute of limitations

does not wait until a plaintiff knows that the challenged action

legally constitutes medical malpractice.        Cascone, 370 F.3d at

104; see also Skwira, 344 F.3d at 75-76.      Nor does the claim wait

to accrue while a malpractice plaintiff gathers medical reports

when that plaintiff already has in his possession the critical

information necessary to ascertain the probable cause of the

relevant injury.   See Sánchez, 740 F.3d at 53 (citing T.L. ex rel.

Ingram v. United States, 443 F.3d 956, 964-65 (8th Cir. 2006))

(finding that delay in obtaining medical reports did not toll

limitations period where plaintiff failed to show "how their

absence precluded him from timely filing his claim").        While the

autopsy report further detailed that the "intestinal perforation"

was a torn diverticula in Matos's colon, the information contained

in Matos's death certificate -- coupled with Appellants' knowledge

of Matos's treatment at SIM and HURRA -- was more than sufficient

to trigger Appellants' duty to investigate.      See Rotella v. Wood,

528 U.S. 549, 555-56 (2000) ("A person suffering from inadequate

treatment   is   thus   responsible    for   determining   within   the


                                -19-
limitations       period     then    running     whether   the    inadequacy      was

malpractice.").

              Appellants further contend that, in light of Matos's

morbid obesity and hypertension, it was unreasonable for the

district court to require them to know the cause of Matos's death

before they received the autopsy report.                Appellants state that,

unlike in Sánchez, in which the court found that "[t]he death of

a generally healthy woman in childbirth is sufficiently rare in

this country today as to make most reasonable people ask why it

happened," 740 F.3d at 52, a reasonable person would not have

questioned why an unhealthy person, such as Matos, died, especially

given   the      frequency    with   which      hospitalized     patients   die   of

sepsis.12       It was only when they learned that Matos suffered from

diverticulitis, uncommon in a man of his age,13 that Appellants

believe     a    reasonable     person     would    have   questioned       whether

malpractice occurred.




12  Appellants point to several studies, including one from an
agency within the USDHHS, to support their contention that
septicemia is both a common and deadly disease.
13  In support of this argument, Appellants cite a 2014 research
paper from the undergraduate Radiographic Science program at Idaho
State University. Chris Van Orden, Diverticulitis, Idaho State
Univ.,    http://www2.isu.edu/radsci/papers14/18_2014.pdf    (last
visited April 9, 2018).


                                         -20-
          This argument, however, ignores the full scope of the

information provided in Matos's death certificate, as well as the

timing of Matos's death.     The death certificate provided to

Appellants on March 8, 2010, listed not only that Matos died of

sepsis, but that the sepsis was secondary to peritonitis, which

was secondary to intestinal perforation. Even if we were to assume

that knowledge that Matos died of septic shock, without more, was

insufficient to trigger Appellants' duty to investigate, in this

case they were armed with far more to raise their suspicions. They

knew the symptoms that Matos suffered (severe abdominal pain,

constipation, and fever), the treatment given (or, more precisely,

not given), and the direct, medical cause of death (septic shock,

secondary to peritonitis, secondary to intestinal perforation).

Appellants also knew that this resulted in Matos's death only two

days after Dr. Román diagnosed him with "abdominal pain" and

discharged him within approximately two hours and forty minutes of

his arrival at SIM.   Appellants had sufficient information14 to

require them to begin to investigate their claims, and could have

"file[d] an administrative claim and preserve[d their] rights


14 Appellants' inclusion of the fact that, on the day of Matos's
death, "an unidentified doctor told family members that Mr. Matos
ha[d] died due to a heart attack," provides no support for their
claim. It is undisputed that Appellants received a copy of Matos's
death certificate, informing them of the information described
above, on March 8, 2010.


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under the FTCA" within the two-year statute of limitations ending,

at the latest, on March 8, 2012.        Skwira, 344 F.3d at 81.

                                     VI.

          Despite     the   tragic    death   of   their   loved   one,   we

unfortunately must conclude -- like the district court before us

-- that Appellants' action seeking compensatory damages for the

allegedly negligent act of a federal employee is time-barred under

the FTCA's statute of limitations.

          Affirmed.




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