UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit. 
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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