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Christian Arroyo, et al v. United States of America

September 1, 2011

CHRISTIAN ARROYO, ET AL., PLAINTIFFS-APPELLEES,
v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 07 C 4912-Amy St. Eve, Judge.

The opinion of the court was delivered by: Cudahy, Circuit Judge.

ARGUED JANUARY 6, 2011

Before EASTERBROOK, Chief Judge, and CUDAHY and POSNER, Circuit Judges.

Christian Arroyo contracted a bacterial infection from his mother during his birth. The physicians involved in Christian's delivery and post-delivery care failed to diagnose and treat this infection in a timely manner, which caused the newborn to suffer severe brain injuries. Several years later, Christian's parents filed suit against the United States under the Federal Tort Claims Act. The district court found the United States liable for Christian's injuries, rejecting the United States' claim that the Arroyos' claims were untimely. We affirm.

I. Background

In 2002, Maria Solorzano Arroyo and Carlos Arroyo conceived a child (collectively referred to as the Arroyos). During the course of Solorzano Arroyo's pregnancy, she received low cost medical care at the Erie Family Health Center, Inc. (Erie Center), a health clinic that received federal funds for the purpose of treating low income, underinsured individuals. The Erie Center's doctors did not detect any problems with Solorzano Arroyo's preg-nancy when providing her with prenatal care and forecasted her due date for June 12, 2003.

On May 16, 2003, Solorzano Arroyo went into labor. She went to Northwestern Memorial Hospital and gave birth to her son, Christian Arroyo in the early morning hours of May 17, 2003. Because Christian's birth was more than a month premature, Solorzano Arroyo had not undergone the battery of diagnostic tests, including a test for Group B Streptococcus (GBS), that women typically undergo in the month prior to delivery. These diagnostic tests are extremely important, as they indicate whether an infant will be at risk of contracting any diseases from his or her mother's blood during birth and allow health care practitioners to take steps to reduce the risks that such incidents will harm the infant.

When a mother has not had these diagnostic tests, medical professionals protect infants by utilizing a two-pronged approach. First, at the delivery stage, doctors are required to observe the presence or absence of four risk factors. Second, after the baby is born, doctors are required to be vigilant in looking for signs indicating the presence or absence of neonatal sepsis (a bacterial infection of the baby's bloodstream). If a medical professional finds any indications of infection, then she must immediately administer antibiotics to prevent the spread of infection. Because GBS is fairly benign in adults, mothers can carry it asymptomatically during pregnancy. Newborns can contract the disease during birth and, unless it is treated immediately, it can cause severe and permanent brain injuries.

Shortly after birth, Christian exhibited several symptoms indicating that exposure to his mother's blood had infected him with GBS. However, the obstetrician, Rahda B. Reddy, M.D. (Dr. Reddy), and pediatrician, Verlainna Callentine, M.D. (Dr. Callentine), responsible for taking care of Solorzano Arroyo failed to detect the infection and treat Christian with antibiotics. Because of this failure, Christian suffered severe and permanent brain injuries. If the doctors had promptly treated Christian, it is likely that the damage done to Christian's brain would have been significantly reduced.

On July 11, 2003, Christian was discharged from North-western Memorial hospital. At the time of discharge, doctors informed the Arroyos that Christian had suffered brain injuries and that the injuries were caused by his exposure to his mother's blood during birth. The Arroyos were not told that Christian's injuries could have been prevented if the GBS infection had been treated at an earlier point in time. As a result of the injuries to his brain, Christian suffers from cerebral palsy, spastic quadriplegia, a seizure disorder, an inability to swallow, a communications deficit, incontinence and permanent pain.

In July of 2004, Christian's mother gave birth to her second son and it was at this time that she first heard about the use of neonatal antibiotics. In approximately October of 2004, the Arroyos saw a lawyer's television commercial that indicated that Christian's injuries could have been caused by his doctors and that they might have grounds for a lawsuit. After seeing this commercial, the Arroyos contacted a law firm and began to investigate the cause of Christian's injuries.

On December 30, 2005, the Arroyos filed a state court lawsuit, naming Drs. Reddy and Callentine as defendants, alleging that both doctors failed to provide proper prenatal care at the Erie Center and during the time surrounding Christian's birth. At the time of Christian's injuries, both Dr. Reddy and Dr. Callentine were affiliated with the Erie Center and were on the Northwestern Memorial Hospital medical staff. The United States Department of Health and Human Services (HHS) has deemed the Erie Center and its employees to be employees of the U.S. Public Health Service, pursuant to the Federally Supported Health Centers Assistance Act, 42 U.S.C. § 233(g)-(n), as amended by the Federally Sup- ported Health Centers Assistance Act of 1995, Pub. L. No. 104-73. Accordingly, the Federal Tort Claims Act (FTCA) shields the Erie Center's employees, which include Dr. Reddy and Dr. Callentine, from liability while acting within the scope of their duties, with the United States assuming liability for any negligent acts they commit. See 42 U.S.C. § 233(g)(1).

On April 19, 2006, while their suit in state court was pending, the Arroyos filed an administrative claim with HHS. See 28 U.S.C. § 2675 (requiring a claimant instituting an action against the United States for injury caused by a negligent act or omission of any employee of the Government to first present the claim to the appropriate Federal agency). HHS denied the Arroyos' claim, as well as their subsequent request for reconsideration.

On August 30, 2007, within six months of HHS's final written denial, the Arroyos' state court suit was removed to the Northern District of Illinois and the United States was substituted as the defendant, as required by federal statute. See 28 U.S.C. § 2679(d) (requiring a claimant's tort suit against a federal employee to be removed to a federal court in the district and division in which the action was pending as well as requiring the substitution of the United States as the defendant).

In January of 2010, the district court conducted a week-long bench trial. At the conclusion of trial, the court found in favor of the Arroyos. It held that both Drs. Reddy and Callentine negligently failed to recognize and act upon risk factors and signs indicating GBS infection, and as such, caused Christian's injuries by failing to administer antibiotics. Even though the court found that the government was liable for Christian's injuries, it ordered the parties to file post-trial briefs addressing the issues of damages and the government's statute of limitations defense.

On April 2, 2010, the district court issued a written opinion concluding that the Arroyos' claim was filed within the two year statute of limitations for claims filed pursuant to the FTCA. See 28 U.S.C. § 2401(b) (barring a tort claim against the United States unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues). The court awarded the Arroyos over $29 million in damages for various past and future losses and expenses. The government filed a timely appeal from this decision and requests that we reverse the district court's statute of limitation finding.

II. Analysis

The only part of the district court's decision that the government challenges on appeal is the court's rejection of its statute of limitations defense. The government argues that the district court's decision should be reversed on two grounds: (1) the court failed to apply the proper test for determining when the Arroyos' FTCA claim accrued and (2) several of the court's factual determination were erroneous.

The parties dispute whether the district court's statute of limitations holding constitutes a legal or a factual finding. The district court's finding regarding the gov- erning claim accrual rule is a legal determination and, as such, is subject to de novo review. See Jones v. General Electric Co., 87 F.3d 209, 211 (7th Cir. 1996), cert. denied, 519 U.S. 1008 (1996). The district court's determination of the date that the Arroyos knew that Christian's injuries could have been caused by his doctors, or the date that a reasonably diligent person would have discovered the same, constitutes a factual finding. We review such findings for clear error. See Rush v. Martin Peterson Co., 83 F.3d 894, 896 (7th Cir. 1996) (reviewing a finding of actual knowledge for clear error); Brock v. TIC Intern. Corp., 785 F.2d 168, 171 (7th Cir. 1986) (reviewing a "reasonable person" finding ...


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