United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-3830

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Malinka Wilson, by and through her *

next friend and mother, Veronica *

Wilson, *

*

 * Appeal from the United States Appellant,

* District Court for the Eastern

v. * District of Missouri.

*

Delores J. Gunn, M.D.; Joseph B. *

Shumway, M.D.; Beverly Jean Hoehn, *

M.D.; Charles Dahm, M.D.; Edie M. *

Pohl, M.D.; St. Louis University; *

Tenet Healthsystem DI, Inc., doing *

business as Forest Park Hospital, *

*

Defendants, *

*

United States of America, *

*

Appellee. * 

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Submitted: February 15, 2005

Filed: April 6, 2005

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Before WOLLMAN, McMILLIAN, and BENTON, Circuit Judges. 

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BENTON, Circuit Judge.
1

The Honorable Rodney W. Sippel, United States District Judge for the Eastern

District of Missouri.

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Malinka L. Wilson, by her mother, Veronica D. Wilson, sued the United States

under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq., alleging

malpractice by a government-funded physician. The district court1

 granted summary

judgment for the government, due to the statute of limitations, 28 U.S.C. § 2401(b).

Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

Wilson delivered Malinka on January 17, 2000, at Forest Park Hospital in St.

Louis. On January 25, 2002, Wilson sued for medical malpractice in state court,

alleging that Malinka suffered serious brain and arm injuries during delivery. On

January 28, 2002, Wilson made an administrative claim with the Department of

Health and Human Services, stating that at least one physician who treated Malinka

was employed by a recipient of federal grant money. Defendant Delores J. Gunn, an

employee of People's Health Center, a federally-funded medical facility, removed the

case to federal court, where the United States was substituted as a defendant. The

district court, concluding that Wilson failed to bring the administrative claim within

the two-year statute of limitations of the FTCA, granted summary judgment to the

United States. The court rejected Wilson's assertion that the statute was tolled until

she turned 18 on October 3, 2000, the age when Wilson could herself bring suit. The

district court then remanded other claims to state court.

This court reviews de novo the grant of summary judgment, giving Wilson the

most favorable reading of the record and the benefit of any reasonable inferences

from the record. See Uhiren v. Bristol-Myers Squibb Co., 346 F.3d 824, 827 (8th

Cir. 2003). "Summary judgment is appropriate only when the pleadings, depositions

and affidavits submitted by the parties indicate no genuine issue of material fact and

show that the moving party is entitled to judgment as a matter of law." Id.
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Under the FTCA: "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). "This statute is a limitation on the

government's waiver of sovereign immunity that must be strictly construed." K.E.S.

v. United States, 38 F.3d 1027, 1029 (8th Cir. 1994), citing Soriano v. United States,

352 U.S. 270, 276 (1957). See also United States v. Sherwood, 312 U.S. 584, 590-91

(1941). Since Wilson's administrative claim was presented on January 28, 2002, it

is time-barred if it accrued before January 28, 2000.

"[T]he general rule under the [FTCA] has been that a tort claim accrues at the

time of the plaintiff's injury." United States v. Kubrick, 444 U.S. 111, 120 (1979).

However, "if the plaintiff has been in 'blameless ignorance' of the injury, the cause

of action does not accrue until the plaintiff knows of the fact of injury and its cause."

K.E.S., 38 F.3d at 1029, citing Kubrick, 444 U.S. at 120-22 & n.7. See also Urie v.

Thompson, 337 U.S. 163, 169-70 (1949). "The cause of action accrues at that time

even if plaintiff does not know that the injury is legally redressable – if plaintiff fails

to act despite knowledge of the harm and its cause, defendant is entitled to the

limitations defense." K.E.S., 38 F.3d at 1029. 

Infancy does not ordinarily toll the FTCA statute of limitations. Clifford v.

United States, 738 F.2d 977, 980 (8th Cir. 1984). See generally Romualdo P.

Eclavea, Annotation, Statute of Limitations Under Federal Tort Claims Act, 29

A.L.R. Fed. 482, § 10(a) (1976 & Supp. 2004). "When a person is an infant, there

are others legally responsible for his or her well-being. The parents or guardians

would be under a duty to investigate the injury and its cause, and to take legal action

within the time prescribed." Clifford, 738 F.2d at 980. Nonetheless, Wilson argues

that because she was an infant parent when Malinka was born – with no "legal

knowledge" of Malinka's condition or "legal duty" to act on Malinka's behalf – the

limitations period should not begin until her eighteenth birthday, October 3, 2000.
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Wilson mainly invokes Clifford, where a comatose adult's claim did not accrue

until a guardian was appointed. Id. See also Washington v. United States, 769 F.2d

1436, 1438-39 (9th Cir. 1985). Before the guardian was appointed, no one who knew

of the injury and its cause had a duty to act on Clifford's behalf. Clifford, 738 F.2d

at 980. The Clifford court explicitly distinguishes cases where the statute ran on

infants' claims. Id. Further, the Clifford court limits its holding to "that rare situation

where the alleged malpractice itself . . . has prevented the claimant from ever

obtaining" the knowledge needed to begin the limitations period. Clifford, 738 F.2d

at 980. See also Zeidler v. United States, 601 F.2d 527, 531 (10th Cir. 1979).

Here, Malinka's parent and guardian knew of the alleged injuries and cause by

January 19, 2000. True, Veronica Wilson was an "infant" who could not herself

commence a civil suit from January 19, 2000 to October 2, 2000, by the terms of Mo.

Rev. Stat. § 507.115 and Fed. R. Civ. P. 17(b). She emphasizes that infants have

"little if any understanding of the complexities of our legal system." See Strahler v.

St. Luke's Hosp., 706 S.W.2d 7, 10 (Mo. banc 1986). But the record here shows that

she was responsible for Malinka's well-being. Contrary to Wilson's argument, there

is no genuine issue of material fact as to when she knew the existence and probable

cause of Malinka's injuries. Wilson's sworn deposition statements demonstrate that

by January 19, 2000, she knew of Malinka's injuries and believed they would not

have occurred if the doctors had performed a cesarean section. Wilson cites general

statements of healthcare workers that she had incomplete understanding of Malinka's

condition and health needs, but these statements do not contradict her own specific

deposition testimony.

Infancy did not prevent Wilson from making an administrative claim. See

Zavala v. United States, 876 F.2d 780, 784 (9th Cir. 1989), citing Crawford v. United

States, 796 F.2d 924, 926 (7th Cir. 1986). Because the claim accrued by January 19,

2000, and more than two years passed before the administrative claim was filed,

summary judgment is proper.
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Wilson further claims that the summary judgment violated Malinka's right to

due process under the fifth amendment. Malinka's right to sue under the FTCA is a

property interest protected by due process. See Logan v. Zimmerman Brush Co.,

455 U.S. 422, 428-29 (1982). A statute "adjusting the burdens and benefits of

economic life" violates due process if the claimant establishes "the legislature has

acted in an arbitrary and irrational way." Honeywell, Inc. v. Minnesota Life and

Health Ins. Guar. Assoc., 110 F.3d 547, 554 (8th Cir.), cert. denied, 522 U.S. 858

(1997), quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976). Wilson

states: "Under a statute of limitation that allows for tolling while an adult patient is

comatose, there can be no rational explanation for denying infants whose parents are

children the right to assert their tort claims against the government." In this case,

Wilson had the opportunity to pursue Malinka's administrative claim before the

section 2401(b) period expired. All parties agree that after turning 18, Wilson had

15 months to act on behalf of Malinka before the statute of limitations ran. Wilson

does not show that Congress acted in an arbitrary and irrational manner. 

The judgment of the district court is affirmed.

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