“Injury notice” needed for accrual of cause of action that starts the limitations period under FTCA

October 25, 2013

Amburgey v. United States— F.3d —, 2013 WL 5745866 (6th Cir. 2013)

Under FTCA, 28 U.S.C. § 2401(b), a person’s right to sue the government for tort damages expires within two years after the accrual of the cause of action. During this period, an aggrieved person must file a claim for damages with the appropriate agency. The Sixth Circuit has recently held that “accrual” incorporates “injury notice.”  That is, a plaintiff’s medical-malpractice claim accrues not only when she becomes actually or reasonably aware of her injury, but when she also knows or has a reason to suspect that this injury was caused by malpractice. The Court based that interpretation on United States v. Kubrick, 444 U.S. 111 (1979).

Based on that interpretation, the Court held that the plaintiff’s wrongful-death claim accrued only after she had received a coroner’s autopsy report indicating that her husband’s death may have resulted from medical malpractice. Beforehand, she justifiably believed a doctor who told her that her husband had died as a result of aspirating a blood clot associated with lung cancer.

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