                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-1417


MELISSA CLUTTER-JOHNSON,

                    Plaintiff - Appellant,

             v.

UNITED STATES OF AMERICA,

                    Defendant - Appellee.



Appeal from the United States District Court for the Southern District of West Virginia,
at Bluefield. David A. Faber, Senior District Judge. (1:16-cv-04041)


Submitted: September 19, 2017                                Decided: November 1, 2017


Before MOTZ, DUNCAN, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


R. Dean Hartley, David B. Lunsford, HARTLEY LAW GROUP, PLLC, Wheeling, West
Virginia, for Appellant. Carol A. Casto, United States Attorney, Matthew C. Lindsay,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Melissa Clutter-Johnson appeals from the district court’s judgment, entered

pursuant to Fed. R. Civ. P. 54(b), granting summary judgment to Defendant the United

States in her civil action under the Federal Tort Claims Act (FTCA), 28 U.S.C.

§§ 1346(b)(1), 2671-80 (2012), seeking damages based on the claimed negligence of

health care providers in connection with an intrauterine device (IUD). The district court

determined that Clutter-Johnson’s claim for wrongful pregnancy was barred under the

applicable statute of limitations and that equitable tolling of the limitations period was

unwarranted. On appeal, Clutter-Johnson challenges as erroneous the district court’s

determination that her wrongful pregnancy claim accrued when she learned she was

pregnant with twins. Finding no reversible error, we affirm.

       This court “review[s] de novo a district court’s award of summary judgment,

viewing the facts and inferences reasonably drawn therefrom in the light most favorable

to the nonmoving party.” Core Commc’ns, Inc. v. Verizon Md. LLC, 744 F.3d 310, 320

(4th Cir. 2014). “A summary judgment award is appropriate only when the record shows

‘that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). The relevant inquiry

on summary judgment is “whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that one party must prevail as a

matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Further,

this court may affirm on any ground apparent in the record.         United States ex rel.

Drakeford v. Tuomey, 792 F.3d 364, 375 (4th Cir. 2015).

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       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); Kerns v. United States,

585 F.3d 187, 193–94 (4th Cir. 2009). The FTCA acts as such a waiver, but it “permits

suit only on terms and conditions strictly prescribed by Congress.” Gould v. U.S. Dep’t.

of Health & Human Servs., 905 F.2d 738, 741 (4th Cir. 1990) (en banc). 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, 2675(a); Gould, 905 F.2d at 741. The relevant portion of the statute

of limitations in the FTCA provides, however, that 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.” 28 U.S.C. § 2401(b).

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

that a claim “accrues” for purposes of the FTCA in the context of injuries caused by

medical malpractice when a claimant knows of both the existence of the injury and the

cause of the injury. Actual knowledge of negligent treatment, however, is not necessary

to trigger the running of the limitations period; rather, once the claimant is “in possession

of the critical facts that [s]he has been hurt and who has inflicted the injury,” the claimant

has a duty to make a diligent inquiry into whether the injury resulted from a negligent act.

Id. at 122. This court has held that “[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 [her] injury.” Gould,

905 F.2d at 742. Even if a claimant seeks the advice of other medical providers and is

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incorrectly advised that she did not receive negligent treatment, such advice will not

prevent the accrual of the claim. Kubrick, 444 U.S. at 124. Further, a claim will accrue

even if the claimant does not know the precise medical reason for the injury, provided

that she 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).

      After reviewing the record and the parties’ briefs, we conclude that the district

court did not reversibly err in determining that Clutter-Johnson’s wrongful pregnancy

claim was time-barred. In 2009, Clutter-Johnson had an IUD placed in her body as a

means of birth control. The placement procedure occurred at Access Health-OB/GYN

(Access Health), a federally-funded medical facility whose employees are deemed federal

employees. Following that procedure, Clutter-Johnson became pregnant with twins. She

returned to Access Health on October 24, 2012, and was found to be eight weeks

pregnant. As Clutter-Johnson concedes, she had notice on October 24 of her injury—a

pregnancy. We further conclude that, at this point, Clutter-Johnson knew, or, in the

exercise of due diligence, should have known, that some aspect of the procedure she

underwent to have the IUD inserted was the cause of the injury. Employees of Access

Health performed the placement procedure.        At this point, Clutter-Johnson was in

possession of the “critical facts” needed for her claim to accrue. Consistent with Kubrick,

Clutter-Johnson then had the obligation to inquire whether her pregnancy resulted from

any negligent act by a government employee. Clutter-Johnson, however, presented her

administrative tort claim to the Department of Health and Human Services on May 8,

2015, over two and one-half years later.

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       Clutter-Johnson’s arguments on appeal do not establish reversible error in the

district court’s judgment. She concedes that she is not able to pinpoint a date on which

her wrongful pregnancy claim accrued under Kubrick yet also contends that her claim

was timely under Kubrick. Her timeliness argument is premised on the notion that she

did not know (or should not have been charged with knowledge) that improper placement

by a federal employee—rather than a potentially defective IUD—was the cause of her

injury. As evidence in support, she points to the facts that a consulting physician did not

inform her of his conclusion regarding the placement of the IUD and that another Access

Heath physician informed her that the IUD was potentially defective. Clutter-Johnson’s

argument is flawed, however, because it assumes an FTCA claimant cannot be charged

with knowing the cause of an injury until she has been actually informed of its specific

cause. That, however, is not the relevant inquiry for accrual purposes. Rather, the proper

inquiry is whether she “knows or, in the exercise of due diligence, should have

known . . . [of] the cause of [her] injury.”    Gould, 905 F.2d at 742.      Further, that

Clutter-Johnson was informed by another physician that the IUD was potentially

defective is also a nonstarter; incorrect advice from an additional medical provider that a

claimant did not receive negligent medical treatment will not prevent accrual of an FTCA

claim. Kubrick, 444 U.S. at 124.

       We also reject as without merit Clutter-Johnson’s contention that the continuous

treatment doctrine applies and saves her wrongful pregnancy claim from a rigid

application of Kubrick’s accrual rule. The continuous treatment doctrine serves to toll the

running of the FTCA’s statute of limitations for a medical negligence claim as “long as

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the claimant remains under the ‘continuous treatment’ of a physician whose negligence is

alleged to have caused the injury; in such circumstances, the claim only accrues when the

‘continuous treatment’ ceases.” Miller v. United States, 932 F.2d 301, 304 (4th Cir.

1991). The rationale undergirding the doctrine “is that a rigid application of the Kubrick

rule can effectively deprive a medical patient of her right to place trust and confidence in

[her] physician; and the solution is to excuse the patient from challenging the quality of

care being rendered until the confidential relationship terminates.” Id. (internal quotation

marks omitted). The rationale for the doctrine, however, “only permits its application

when the treatment at issue is for the same problem and by the same doctor, or that

doctor’s associates or other doctors operating under his direction.” Id. at 305. The record

evidence of Clutter-Johnson’s medical treatment following the discovery of her

pregnancy through her last appointment at Access Health on July 1, 2013, does not

support the conclusion that Clutter-Johnson received continuous treatment to correct her

injury. The continuous treatment doctrine, therefore, does not render timely the wrongful

pregnancy claim.

       We therefore affirm the district court’s judgment.         We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.



                                                                               AFFIRMED




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