                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 07-1343


BERTRAM HAHN,

                Plaintiff - Appellant,

           v.

UNITED STATES OF AMERICA,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:06-cv-03179-PJM)


Argued:   September 25, 2008                 Decided:   November 5, 2008


Before WILLIAMS, Chief Judge, GREGORY, Circuit Judge, and James
C. CACHERIS, Senior United States District Judge for the Eastern
District of Virginia, sitting by designation.


Affirmed by unpublished opinion.      Judge Gregory wrote the
opinion, in which Chief Judge Williams and Senior Judge Cacheris
joined.


ARGUED:   Clifford   John   Shoemaker,  Vienna,    Virginia,   for
Appellant.    Alex Samuel Gordon, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.    ON BRIEF: Timothy
Litka, Washington, D.C., for Appellant.       Rod J. Rosenstein,
United States Attorney, John W. Sippel, Jr., Assistant United
States   Attorney,  OFFICE   OF   THE  UNITED   STATES   ATTORNEY,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
GREGORY, Circuit Judge:

     The Appellant, Bertram Hahn (“Hahn”), appeals the district

court’s decision to dismiss his Federal Tort Claims Act (“FTCA”)

lawsuit against the United States.                    Hahn had initially filed an

administrative complaint with the Department of the Army Claims

Services (“DACS”) and the Department of the Navy Claims Services

(“DNCS”),     alleging         that    he     had     received    negligent        medical

treatment.        Hahn’s claim was denied by DACS on the ground that

Hahn had failed to file an administrative complaint within two

years     after    the    claim        accrued,      as    required     by    28    U.S.C.

§ 2401(b) (2000).          Hahn subsequently filed the instant lawsuit.

Upon motion by the United States, the district court dismissed

Hahn’s     complaint      for     lack       of     subject    matter     jurisdiction,

relying on the same ground as DACS.

     Because Hahn should have known of the existence and likely

cause of his injury more than two years before he filed his

administrative complaint, we affirm the decision of the district

court.



                                             I.

     On    May     17,    2000,       Hahn   went     to   the   emergency         room   at

Bethesda National Naval Medical Center (“BNNMC”) complaining of

severe    weakness       in    the     limbs.        Medical     personnel     at    BNNMC

diagnosed    Hahn    as       having    Guillain-Barré         Syndrome      (“GBS”),     an

                                              3
acute auto-immune neurological disorder.               The medical personnel

at BNNMC ordered that Hahn receive intravenous immunoglobulin

(“IVIg”) treatment for five days.                 Later that day, Hahn was

transferred to Walter Reed Army Medical Center (“WRAMC”), where

his diagnosis and course of treatment were confirmed.                    Medical

personnel at WRAMC began IVIg treatment on May 18, 2000.                      That

same day, Hahn was transferred back to BNNMC and admitted to an

intensive care unit with orders to continue the five days of

IVIg treatment.       According to Hahn, medical personnel at BNNMC

failed to follow these instructions and only administered IVIg

treatment for one more day.         At that time, Hahn was unaware that

he was scheduled to receive five days of IVIg treatment.                      Hahn

remained in the intensive care unit at BNNMC until May 21, 2000,

when he was transferred to the medical ward at BNNMC.                       On May

23, 2000, Hahn was transferred to the rehabilitation ward at

WRAMC, where he remained until his discharge in June 2001.

     After   Hahn   was     discharged     from    WRAMC,    he   continued     to

suffer from residual weakness.         Hahn had been told that some GBS

patients   continue    to   have    residual      weakness    after    receiving

treatment.     Nevertheless,        Hahn   consulted    with      several    other

doctors    regarding      further     rehabilitation         because    he     was

dissatisfied with his level of recovery.             Hahn acknowledges that

he began receiving consultations from these other doctors in

June 2001.    (Supp. J.A. 21.)         According to Hahn, these doctors

                                       4
asked     him    whether          he    had        been     given       any     subsequent       IVIg

treatments       or    whether         he     had        been    given     a    plasma     exchange

following       the    initial         IVIg        treatment.            Hahn    answered       these

questions       in    the     negative,             after       which    the     doctors     either

responded by saying “Oh?” or remained completely silent.                                     (Supp.

J.A. 90.)

     In August 2003, Hahn met with Dr. Jay Meythaler regarding

enrollment       in    a    clinical          drug       trial     for     treatment       of    GBS.

Although the initial meeting with Dr. Meythaler was similar in

many respects to Hahn’s prior consultations, this consultation

differed crucially because Hahn provided Dr. Meythaler with his

medical records as part of the assessment for the clinical drug

trial.       Three         days    after           receiving       these       medical   records,

Dr. Meythaler         advised          Hahn    that        BNNMC    medical       personnel       had

failed to administer the full five days of IVIg treatment and

that this failure may have caused his residual weakness.

     On     February         26,        2004,        Hahn        filed     an     administrative

complaint with DACS and DNCS.                        Hahn’s claim was denied by DACS

on February 1, 2006.               On April 19, 2006, Hahn filed this lawsuit

against the United States under the FTCA, 28 U.S.C. §§ 2671-2680

(2000), in the United States District Court for the District of

Columbia.            Upon    motion           by     the    United        States,    the        court

transferred the case to the United States District Court for the

District of Maryland.                  The United States then filed a motion to

                                                     5
dismiss the complaint for lack of subject matter jurisdiction

because Hahn had failed to bring his administrative complaint

within    two     years    after    the     claim    accrued,    as     required      by

28 U.S.C. § 2401(b).          The district court granted the motion to

dismiss.    Hahn appeals.



                                           II.

     Hahn contends that the district court erred in granting the

motion    to     dismiss    for    lack     of    subject    matter     jurisdiction

because    his     claim    did    not     accrue    until    August     2003,    when

Dr. Meythaler told Hahn that his residual weakness may have been

caused by his medical treatment.                 We review de novo the district

court’s grant of a motion to dismiss for lack of subject matter

jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil

Procedure.        Richmond,       Fredericksburg      &     Potomac    R.R.     Co.   v.

United    States,    945    F.2d    765,    768-69    (4th    Cir.     1991).      When

deciding a 12(b)(1) motion, “the district court is to regard the

pleadings’ allegations as mere evidence on the issue, and may

consider evidence outside the pleadings without converting the

proceeding to one for summary judgment.”                  Id. at 768.      The party

asserting subject matter jurisdiction has the burden of proving

that the court has jurisdiction over the case.                        Adams v. Bain,

697 F.2d 1213, 1219 (4th Cir. 1982).                 “Unlike the procedure in a

12(b)(6) motion where there is a presumption reserving the truth

                                            6
finding role to the ultimate factfinder, the court in a 12(b)(1)

hearing weighs the evidence to determine its jurisdiction.”                                Id.

       As   a    sovereign,       the   United     States       is    immune    from       suit

unless it consents to being sued.                       United States v. Sherwood,

312 U.S. 584, 586 (1941).                 When the United States consents to

suit for a class of cases, the terms of its consent circumscribe

the court’s jurisdiction to entertain a particular suit.                                 Id. at

586-87.         Congress created such a limited waiver of sovereign

immunity in enacting the FTCA.                     See 28 U.S.C. §§ 2671-2680.

Under the FTCA, the United States consents to suit for injuries

caused      by    the     negligent      acts      or    omissions       of    government

employees acting within the scope of their official employment.

28 U.S.C. § 2674; Gould v. U.S. Dep’t of Health & Human Servs.,

905 F.2d 738, 741 (4th Cir. 1990) (en banc).                           Congress further

prescribed        a     statute    of     limitations          that    operates          as    a

jurisdictional prerequisite to suit under the FTCA, 28 U.S.C.

§ 2401(b).        Gould, 905 F.2d at 741.                 According to § 2401(b),

“[a]   tort      claim    against       the    United    States       shall    be    forever

barred       unless       it      is     presented         in        writing        to        the

appropriate Federal            agency         within     two     years        after        such

claim accrues . . . .”

       In United States v. Kubrick, 444 U.S. 111, 123-24 (1979),

the Supreme Court first articulated the standard for determining

when a claim “accrues” for the purposes of the FTCA in the

                                               7
context of injuries caused by medical malpractice, holding that

such   a   claim    “accrues”     when   a   claimant   knows    of    both    the

existence of the injury and the cause of the injury.                        Actual

knowledge of negligent treatment is not necessary in order to

trigger the running of the statute of limitations; rather, once

the claimant is “in possession of the critical facts that he has

been hurt and who has inflicted the injury,” the claimant has a

duty to make diligent inquiry into whether the injury resulted

from a negligent act.           Id. at 122; accord Gould, 905 F.2d at

743.    According to this Court, “[t]he clear import of Kubrick is

that a claim accrues within the meaning of § 2401(b) when the

plaintiff knows or, in the exercise of due diligence, should

have known both the existence and the cause of his injury.”

Gould, 905 F.2d at 742.          Even if a claimant seeks the advice of

other medical providers and is incorrectly advised that he did

not receive negligent treatment, such advice will not prevent

the    accrual     of   the     claim.       Kubrick,   444     U.S.   at     124.

Furthermore, a claim will accrue even if the claimant does not

know the precise medical reason for the injury, provided that he

knows or should know that some aspect of the medical treatment

caused the injury.            See Kerstetter v. United States, 57 F.3d

362, 364-65 (4th Cir. 1995).

       In deciding whether such claims are timely filed, we must

keep in mind that § 2401(b) represents “the balance struck by

                                         8
Congress in the context of tort claims against the Government;

and we are not free to construe it so as to defeat its obvious

purpose,     which     is    to     encourage          the     prompt    presentation           of

claims.”       Kubrick,           444     U.S.        at     117.       While       a     strict

interpretation of § 2401(b) “often works a substantial hardship

on plaintiffs and may have a harsh impact on a party innocent of

any impropriety,” such an interpretation is necessary to avoid

“rewriting    the     FTCA     to       allow       broad,     open-ended     exceptions.”

Gould, 905 F.2d at 747.

     Based    on     the     precedent          of    the     Supreme    Court      and        this

Circuit, it is clear that Hahn’s claim accrued in June 2001, at

the time that Hahn began consulting with other doctors upon his

discharge from the hospital.                   Hahn first contends that he had no

knowledge     of     the    existence          of     his     injury    at    the       time    of

discharge because his condition had appreciably improved as a

result of the medical treatment.                           While it is true that some

medical treatments might not produce a complete recovery even if

non-negligently administered, Hahn admits that he consulted with

other      doctors         because        he         was     dissatisfied        with          his

rehabilitation and wanted to see if other doctors could effect a

more complete recovery.                 Given Hahn’s dissatisfaction with his

level of recovery at the time of discharge, together with his

subsequent    consultations             with     other       doctors,    he     was      put    on

notice of the existence of an injury.

                                                9
      Hahn next contends that even if he had knowledge of the

existence of an injury, he had no knowledge that the injury was

caused     by    BNNMC’s        failure        to       administer         the    initial      IVIg

treatment for five days.                 In support of this contention, Hahn

points    to     the    fact      that    he       consulted         with     several     doctors

regarding       his    rehabilitation              and       that    none    of    the    doctors

specifically informed him that his residual weakness was caused

by the incomplete IVIg treatment.                             Hahn’s argument is flawed

because    it     assumes       that     a     claimant          cannot     be    charged      with

knowing    the    cause      of     an   injury          until      the    claimant      has   been

actually informed of its specific cause.                             However, the relevant

inquiry is not whether the plaintiff actually knows of the cause

of the injury, but whether he “knows or, in the exercise of due

diligence,       should      have    known         .     .   .   [of]      the    cause   of    his

injury.”       Gould, 905 F.2d at 742.

      Hahn consulted with several doctors beginning in June 2001,

and those doctors directly asked him whether he had been given

any subsequent IVIg treatments or a plasma exchange following

the   initial         IVIg   treatment.                 When     Hahn      responded      in    the

negative, the doctors’ consistent, nonplussed reactions should

have put him on notice that his medical treatment might have

been the cause of his residual weakness.                                  A reasonable person

exercising due diligence under the same circumstances would have

provided    the       doctors     with       his       medical      records      and   asked   the

                                                10
doctors whether some aspect of his treatment might have caused

his incomplete recovery.                   Hahn admits that he did not inquire

further or provide any of the doctors with his medical records

until his meeting with Dr. Meythaler in August 2003.                                      In fact,

Hahn’s     consultation       with     Dr.       Meythaler      demonstrates              that   had

Hahn   exercised        the   same         due    diligence        when       he       first   began

consulting       with    other     doctors,           he    would    have      been       able    to

ascertain the precise medical reason for his injury and file his

claim well within the two-year statute of limitations.

       If this Court were to adopt Hahn’s interpretation of the

Kubrick standard, it would effectively eliminate the requirement

that   a    claimant      exercise         due     diligence        in    ascertaining           the

existence of an injury and its likely cause.                                  See Gould, 905

F.2d at 742; Kerstetter, 57 F.3d at 364.                        Such an interpretation

is   directly     contrary       to    our       precedent     and       at    odds       with   the

public      policy      concerns       of        timely     claim        presentation            that

underlie     §    2401(b).            We     do       not   hold     that          a    person    is

automatically put on inquiry notice merely from the fact that he

received medical treatment and did not make a complete recovery.

We   only    conclude     that,       under       these     particular         circumstances,

Hahn was put on notice of an injury and would have discovered

the likely cause of this injury had he exercised due diligence.

       Since Hahn’s claim accrued in June 2001 for purposes of

the FTCA,        his    filing        of     the       administrative              complaint      on

                                                 11
February 26,    2004   was     outside    of   the   two-year   statute    of

limitations    provided   by    §   2401(b).    Since   §   2401(b)   is   a

jurisdictional prerequisite to suit under the FTCA, the district

court lacked subject matter jurisdiction to hear the suit.



                                    III.

     For the foregoing reasons, we affirm the judgment of the

district court.

                                                                   AFFIRMED




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