UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 95-50269

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DAVID JOHNSTON, Individually and as

representative of the estate of

Richard J. Johnston; GLORIA JOHNSTON,

Plaintiffs - Appellants,

versus

UNITED STATES OF AMERICA,

Defendant - Appellee.

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Appeal from the United States District Court for the

Western District of Texas

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March 11, 1996

Before POLITZ, Chief Judge, JONES and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This is a wrongful death suit brought under the Federal Tort

Claims Act ("FTCA"). 28 U.S.C. § 1346(b). The plaintiffs appeal

the dismissal of their lawsuit for lack of subject matter

jurisdiction. Because as a matter of substantive state law the

plaintiffs do not have a cause of action under Texas law, we must

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 4, 1990, Richard Johnston had coronary artery bypass

surgery at Brooke Army Medical Center. Dr. Greg Bowman was the1 The phrenic nerve is the nerve that stimulates movement in the

diaphragm. A diagnosis of "bilateral phrenic nerve apraxia"

indicates that the phrenic nerve was injured resulting in inability

to use the diaphragm to pump oxygen in and out of the lungs.

2 The Johnstons also argue on appeal that the Government's

motion to dismiss for lack of subj ect matter jurisdiction was

untimely under the district court's scheduling order. This point

is meritless. It is well-settled that subject matter jurisdiction

can be raised at any time or even sua sponte by the court. FTCA

t ime limitations are jurisdictional. H ouston v. United State s

Postal Serv. , 823 F.2d 896, 902 (5th Cir. 1987).

2 primary surgeon. Following surgery, Johnston experienced

respiratory difficulty requiring use of a respirator. On June 19,

1990, a fluoroscopy of Johnston's diaphragm suggested that he had

a condition called bilateral phrenic nerve apraxia as a result of

injury to his phrenic ner ve. 1 Dr. Bowman told Johnston's wife,

Gloria Johnston, that her husband's phrenic nerve had been damaged

in the earlier surgery and that treatment would be necessary at a

different facility. On July 11, 1990, Johnston was transferred to

Ven-Care South Texas Hospital. At Ven-Care, Johnston developed

pneumonia and died on July 18, 1990.

On July 17, 1992, one day shy of the two-year anniversary of

Johnston's death, his son, David Johnston, filed an administrative

claim with the Government. Subsequently, Gloria and David Johnston

sued the Government under the FTCA alleging medical malpractice by

the physicians at Brooke Army Medical Center. Prior to trial, the

Government moved to dismiss the suit for lack of subject matter

j urisdiction on the grounds that the medical malpractice claim

accrued, at the latest, on July 11, 1990. 2 As such, the Government

maintained the Johnstons' claim was bar red by the two-year FTCA

statute of limitations. The district court agreed and dismissed3

the suit. This appeal ensued.

DISCUSSION

Congress enacted the FTCA as a limited waiver of the sovereign

immunity of the United States. U nited States v. Kubrick

, 444 U.S.

111, 117-18 (1979). Subject to some exceptions, the United States

is liable in tort for certain damages caused by the negligence of

any employee of the Government "if a private person, would be

liable to the claimant in accor dance with the law of the place

where the act or omission occurred." 28 U.S.C. § 1346(b).

Liability of the United States under the FTCA arises only when the

law of the state would impose it. J ohnson v. Sawyer

, 47 F.3d 716,

727 (5th Cir. 1995) (en banc). If substantive state law recognizes

a cause of action, federal law determines when that claim accrues.

Quinton v. United States

, 304 F.2d 234, 235 (5th Cir. 1962). A

two-year statute of limitations from the accrual date then applies

for FTCA claims. 28 U.S.C. § 2401(b).

Applying this rubric, the Johnstons contend that the district

court erred in dismissing their timely-filed suit. Initially, they

argue that they have a wrongful death claim under Texas law.

Noting that federal law, rather than state law, controls accrual,

the Johnstons posit that their wrongful death acti on accrued at

death . Consequently, the FTCA two-year statute of limitations

began to run on July 18, 19 90, the date of Richard Johnston's

death. Accordingly, their claim was timely because it was filed on

July 17, 1992. The Johnstons contend that the district court erred

because it improperly applied Texas state law when it held that

their claim accrued prior to Richard Johnston's death. The3 See Fisk v. United States , 657 F.2d 167, 170 (7th Cir. 1981)

(holding that when a state statute creates an independent cause of

action for wrongful death, it cannot accrue for FTCA purposes until

death); see also Washington v. United States , 769 F.2d 1436, 1439

(9th Cir. 1985) (holding that FTCA claim accrued at death where

decedent had been in a 14-year coma); Garrett v. United States

, 640

F.2d 24, 26 (6th Cir. 1981) (holding that FTCA limitations runs from date of death, not when autopsy report is released).

4 Johnstons, citing authority from other circuits, 3 ask us to hold

that, as a matter of federal law, a wrongful death claim accrues

only at death.

We do not reach the issue of when a properly asserted wrongful

death claim accrues because this appeal resolves at an analytically

earlier stage. As a threshold matter, this FTCA claim is viable

only if Texas state law provides the Johnstons with a c ause of

action. The premise of the Johnstons' argument is that they have

a wrongful death cause of action. Texas state law, however, is to

the contrary.

Texas does have a wrongful death statute. S ee Tex. Civ. Prac.

& Rem. Code Ann. §§ 71.001-.011 (West 1986). It provides a

statutory cause of action for damages ari sing from a negligently

inflicted injury that causes an individual's death. I d. § 71.002.

This cause of action may be brought by the surviving spouse,

children or parents. I d. § 71.004. Texas law further provides

that a two-year statute of limitations exists for a wrongful death

claim and that such a claim accrues on the death of the injured

person. Id. § 16.003(b).

However, the existence of this statute does not mean that

there is always a cause of ac tion to accrue. A wrongful death

action in Texas is purely a derivative suit. The Texas Wrongful5

Death Statute allows a cause of action "only if the individual

injured would have been entitled to bring an action for the injury

if he had lived." I d. § 71.003(a). The Texas Supreme Court

specifically addressed the interplay between the derivative nature

of the Wrongful Death Statute and the accrual date of such a claim

in Russell v. Ingersoll-Rand Co.

, 841 S.W.2d 343, 348 (Tex. 1992).

In 1981, Russell was diagnosed with chronic pulmonary disease

caused by on-the-job exposure to silica. Russell died in 1988.

Within weeks of his death, his family filed a wrongful death suit.

This lawsuit was dismissed on limitations grounds. The plaintiffs

argued to the Texas Supreme Court that their wrongful death action

could not accrue until death. The court rejected this argument:

Section 16.003(b) sets the time when a wrongful death

action accrues, if it exists. It does not, however,

provide that there is always an action to accrue. The

Wrongful Death Statute allows an action by a decedent's

beneficiaries "only if the individual injured would have

been entitled to bring an action for the injury if he had

lived." Tex. Civ. Prac. & Rem. Code § 71.003(a). If a

wrongful de ath action exists, it accrues, not when the

decedent was injured, but at his death, and the

limitations period on that action begins to run at death.

But if a wrongful death action does not exist because the

decedent could not maintain an action in his own right

immediately prior to his death, for whatever reason, then

no wrongful death action ever accrues. If a decedent's

own cause of action were barred by governmental immunity,

or statute, or release, or res judicata, or any other

affirmative defense, there is no wrongful death action to

accrue.

841 S.W.2d at 348. Thus, the Texas Supreme Court explains that, as

a matter of substantive state l aw, if a decedent has no viable

cause of action at the time of death, for whatever reason, then no

wrongful death action exists.6

Conseq uently, we must determine if Richard Johnston had a

cause of action at the time of his death that his widow and son

could later assert under the Texas Wrongful Death Statute and the

FTCA. The Johnstons' claim is based upon allegations of medical

malpractice stemming from the negligent severing of Richard

Johnston's phrenic nerve during bypass surgery. It is undisputed

that Johnston's surgeon, Dr. Bowman, told Gloria Johnston that the

phrenic ne rve was injured following the fluoroscopy on June 19,

1990. Additionally, Richard Johnston's course of treatment at

Brooke Army Medical Center terminated on July 11, 1990 with his

transfer to another facility.

Richard Johnston's claim, if any, was a health care liability

claim as defined by Texas statute. Tex. Rev. Civ. Stat. Ann. art.

4590i, § 1.03 (a)(4) (West Supp. 1996). Such a claim must be

commenced within two years from the breach or tort or from the date

the medical or health care treatment that is the subje ct of the

claim is completed. I d. § 10.01. Consequently, Richard Johnston's

health care liability claim expired, at the latest, on July 11,

1992, two years after his treatment at Brooke Army Medical Center

ceased.

Under the Texas Wrongful Death Statute, Gloria and David

Johnston could only have the statutory state law claim that Richard

Johnston had at the time of his death. R ussell makes clear that if

the decedent had no cause of action for whatever reason, including

limitations, the decedent's heirs have no cause of action to assert

under the statute. Because Richard Johnston had no cause of action

after July 11, 1992, Gloria and David Johnston had none after such4 The Texas Supreme Court has recently held that, despite the

language of section 16.003 that wrongful death clai ms accrue at

death, wrongful death claims premised on health care liability

claims must accrue at the time of the alleged breach. S ee Bala v.

Maxwell

, 909 S.W.2d 889, 892-93 (Tex. 1995). We express no opinion

on when a properly asserted wrongful death claim would accrue as a

matter of federal law for FTCA purposes. Such a circumstance could

arise when a decedent had a cause of action under Texas law at the

t ime of his death, but his survivors did not timely file suit

alleging wrongful death until after the time allotted for filing a health care liability claim had he survived.

7 date. Thus, the Johnstons have no claim to assert under the FTCA.

CONCLUSION

Under Texas state law, the Johnstons did not have a wrongful

dea th claim because the decedent's health care liability claim

expired before his death. As such, the issue presented is not one

of accrual of a properly asserted wrongful death claim because

there was no clai m to accrue. 4 In this case, the district court

properly dism issed the claim for lack of subject matter

jurisdiction. We therefore AFFIRM.