Bennett v. United States

44 F.4th 929

Bette BENNETT, Plaintiff-Appellee,

v.UNITED STATES of America, Defendant-Appellant.

No. 21-35941

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 7, 2022 Seattle, Washington

Filed August 11, 2022

Daniel Tenny (argued) and Mark B. Stern, Appellate Staff; Nicholas W. Brown, United States Attorney; Brian M. Boynton, Acting Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendant-Appellant.

Darrin E. Bailey (argued), Bailey Onsager PC. Seattle, Washington, for Plaintiff-Appellee.

Before: Richard R. Clifton and Patrick J. Bumatay, Circuit Judges, and Richard Seeborg,^* District Judge.

SEEBORG, District Judge:

This interlocutory appeal presents the question of whether the claims presentation timing requirements of the Federal Tort Claims Act (FTCA) override a state statute of repose. While there is no dispute that the FTCA's timing provisions act as a statute of limitations that supersedes any state statute of limitations, courts have not uniformly agreed on whether those provisions also override state statutes of repose. Because the better reading of the FTCA is that it incorporates and applies state laws that serve as statutes of repose rather than overriding them, we reverse the trial court's determination that this action was not subject to dismissal for having been filed outside the applicable statute of repose. We remand for further proceedings to determine the constitutionality of the statute under Washington's state constitution.

I.

Plaintiff Bette Bennett brought suit alleging medical malpractice by government physicians at Naval Hospital Bremerton, in the state of Washington. Bennett had first submitted a timely administrative claim to the Navy under the FTCA, which was denied. She filed her complaint in the Western District of Washington within six months thereafter, as required by the FTCA. See 28 U.S.C. § 2401(b).

The Government sought dismissal on grounds that Bennett's claim nevertheless had been extinguished by a Washington statute of repose, Wash. Rev. Code § 4.16.350 ( Section 4.16.350 ), which prohibits the filing of professional negligence claims against health care providers more than eight years after the act or omission that allegedly caused injury. Because Bennett's alleged injury from a 2009 medical procedure was not diagnosed until 2017, both her tort claim filed in 2018 and this action filed in 2020 were well outside the eight-year period of the statute of repose, even though, under the FTCA's requirement that tort claims be filed within two years of "accrual," the claim was timely.

The Government contends that because the Washington statute of repose applies, and the FTCA waives sovereign immunity only "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred," 28 U.S.C. § 1346(b)(1), the district court lacked subject matter jurisdiction and should have granted the motion to dismiss. Bennett insists the FTCA preempts or otherwise overrides the Washington statute of repose, but does not contest that if it does apply, the FTCA's waiver of sovereign immunity would be ineffective in this case, and dismissal for lack of jurisdiction would be appropriate, unless she prevails on her alternate contention that the statute of repose in Section 4.16.350 is unconstitutional under the Washington state constitution.¹

The complaint alleges Bennett is the civilian wife of a Navy service member. In May of 2009, Bennett underwent sinus surgery at Naval Hospital Bremerton to treat her chronic sinusitis. A week later, Bennett experienced significant bleeding from her nose and was taken to the naval hospital emergency room by ambulance. The on-call ENT physician placed nasal packing into Bennett's nasal cavity. When the doctor inserted the packing, Bennett heard a noise that sounded like cracking, felt acute pain, and passed out. Bennett was then rushed to the operating room to control her ongoing nosebleed under anesthesia. Bennett was discharged soon thereafter, but returned to the hospital a few days later to have the nasal packing removed.

Bennett subsequently developed a complex constellation of symptoms including migraines, malaise, light sensitivity, memory loss, and other neurocognitive impairments. She saw a series of neurologists and other specialists who were unable to diagnose the cause of her symptoms.

In August of 2017, Bennett was treated by a neuropsychologist who found that she suffered deficits consistent with a traumatic brain injury. Bennett was then referred to the University of Washington Medical Center to see a specialist in brain injuries. In December of 2017, the specialist diagnosed Bennett as suffering from a traumatic brain injury to her prefrontal cortex, caused by the nasal pack insertion in 2009.

In August of 2018, Bennett filed her administrative claim with the Navy, as required by the FTCA. See 28 U.S.C. § 2675(a). The Navy denied the claim in October of 2019, finding that the Navy health care providers had met the applicable standard of care and that the alleged damages did not result from the act or omission of any United States employee. Bennett filed this action within the six-month deadline of the FTCA.

The Government moved to dismiss for lack of subject matter jurisdiction, arguing that Washington's statute of repose applicable to professional negligence claims against health care providers, Section 4.16.350, barred Bennett's claims. The court initially deferred ruling on the merits of the motion, instead certifying to the Washington Supreme Court two questions related to whether Section 4.16.350 is constitutional under the state constitution.

Because the district court had not yet ruled on whether the FTCA precluded application of Section 4.16.350, the Washington Supreme Court declined "as a matter of comity" to answer the certified questions. The district court then took up the Government's motion to dismiss again, ultimately holding that applying the statute of repose here would conflict with federal law, and that therefore the FTCA statute of limitations preempts Section 4.16.350. The court concluded Bennett's suit was thus timely filed, and denied the Government's motion to dismiss.

The district court certified its ruling for interlocutory review and this court's motions panel granted permission to appeal.² We have jurisdiction pursuant to 28 U.S.C. § 1292(b) and review de novo the district court's denial of the motion to dismiss. Reese v. BP Expl. (Alaska) Inc. , 643 F.3d 681, 690 (9th Cir. 2011).

II.

The FTCA provides a limited waiver of the Government's sovereign immunity for tort claims. See 28 U.S.C. §§ 1346(b)(1), 2671 – 2680. With certain exceptions not implicated here, the United States may be held liable in tort for the actions or omissions of its employees "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Id. § 1346(b)(1) ; see also id. § 2674 (United States is liable "in the same manner and to the same extent as a private individual under like circumstances").

The FTCA thus incorporates substantive state law as federal law to determine liability. The FTCA, however, establishes its own administrative claim procedure and statute of limitations provisions that apply uniformly in all states. See Poindexter v. United States , 647 F.2d 34, 36–37 (9th Cir. 1981) ("It is long settled, however, that the statute of limitations in the FTCA, 28 U.S.C. § 2401, governs in FTCA actions, even when the state period of limitations is longer or shorter." (citations omitted)).

The FTCA provides 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 addition, claims are barred "unless action is begun within six months" of the date the relevant agency denies the claim. Id. Claimants cannot file actions in court until the agency has finally denied their claims, except that they are entitled to "deem[ ]" the agency's "failure ... to make final disposition of a claim within six months after it is filed" to be "a final denial" at any time after the six months has elapsed. Id. , § 2675(a).

Under the FTCA, a claim for medical malpractice does not accrue "until a plaintiff knows of both the existence of an injury and its cause." Hensley v. United States , 531 F.3d 1052, 1056 (9th Cir. 2008) (citing United States v. Kubrick , 444 U.S. 111, 122–23, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) ). Here, there is no dispute that Bennett's claim did not accrue before December of 2017, when she was first diagnosed with a traumatic brain injury to her prefrontal cortex, purportedly caused by the nasal pack insertion in 2009. Her tort claim filed with the Navy in 2018 was well within the two-year time period provided by § 2401(b), and she filed this action within the requisite six-month period after that claim was denied. Accordingly, all agree that Bennett complied with the procedural and timing requirements specified in the FTCA, and that those requirements apply in lieu of any Washington state law statute of limitations that might otherwise apply.

Section 4.16.350 is, in fact, what has sometimes been referred to as a "bifurcated" or "hybrid" statute—it includes both a statute of limitations and a statute of repose.

See Augutis v. United States , 732 F.3d 749, 752 (7th Cir. 2013) (noting Illinois courts referred to the state statute as "bifurcated"); Bagley v. United States , 215 F. Supp. 3d 831, 835 (D. Neb. 2016) (referring to a "hybrid statute," containing both a one-year statute of limitations and a "three-year repose period").

Section 4.16.350 provides, in pertinent part, that

[a]ny civil action for damages for injury occurring

...