United States Court of Appeals 

For the First Circuit 

No. 16-2064 

LUZ Z. MORALES-MELECIO; MARÍA I. MARTÍNEZ-ORTIZ; 

EMILIO MATOS-PÉREZ; MARIELA MATOS-MARTÍNEZ, 

Plaintiffs, Appellants, 

v. 

UNITED STATES (Department of Health and Human Services), 

Defendant/Third-Party Plaintiff, Appellee, 

v. 

EMERGENCY PRACTICE MANAGEMENT, P.S.C.; HOSPITAL 

UNIVERSITARIO DR. RAMÓN RUIZ ARNAU; DR. LUIS E. MEJÍASBETANCOURT; DR. RICARDO ROSARIO-MENDOZA; DR. MINELY 

MARTÍNEZ-VELÁSQUEZ; DR. LUIS RODRÍGUEZ-ROSELLÓ, 

Third-Party Defendants. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Salvador E. Casellas, U.S. Senior District Judge] 

Before 

Torruella, Lipez, and Kayatta, 

 Circuit Judges. 

José F. Velázquez-Ortiz and Velázquez Law Offices, PSC on 

brief for appellants. 

John A. Mathews II, Assistant United States Attorney, Rosa 

Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. 

Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate 

Division, on brief for appellee. 
May 21, 2018 

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-3- 

TORRUELLA, Circuit Judge. This case once again calls 

for this Court to determine the accrual date of a claim arising 

under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 

2671-2680, and the potential application of the so-called 

"discovery rule." 

I.

On March 1, 2010, Emilio Matos-Martínez ("Matos") died 

at the Puerto Rico Medical Center ("PRMC") after having been 

diagnosed with septic shock and multiple organ failure, and 

suffering two cardiorespiratory attacks. Prior to his death at 

PRMC, Matos was treated at two other medical facilities on 

February 27 and February 28, 2010. At some point after Matos's 

death, Matos's parents, sister, and daughter (collectively, 

"Appellants") became aware that the first medical facility at which 

Matos was treated was a federally supported entity. Appellants 

filed an administrative claim with the United States Department of 

Health and Human Services ("USDHHS" or the "government") on April 

16, 2012, followed by a medical malpractice complaint pursuant to 

the FTCA against USDHHS in the district court on April 22, 2013. 

The district court granted summary judgment in favor of the 

government, holding that Appellants' claims were time-barred for 

failing to file compulsory administrative claims within the FTCA's 

two-year statute of limitations. See 28 U.S.C. § 2401(b).
-4- 

Appellants now appeal the dismissal of their complaint, 

arguing that their FTCA claims did not begin to accrue until they 

received Matos's autopsy report on July 28, 2010. After careful 

review of the record, we agree with the district court that 

Appellants' claims are time-barred. We therefore affirm. 

II. 

The facts are largely undisputed.1 On February 27, 2010, 

at 4:55 p.m., Matos, a thirty-six year old man weighing 370 pounds2

with a history of hypertension, arrived at Salud Integral en la 

Montaña, Inc. ("SIM"), a health center located in Naranjito, Puerto 

Rico, complaining of abdominal pain that had persisted for five 

days, constipation, and fever. SIM is a covered entity under the 

Federally Supported Health Centers Assistance Act of 1995, Pub. L. 

104-73, 109 Stat. 777 (codified at 42 U.S.C. § 233). After 

triaging Matos, a resident nurse at SIM determined that his 

condition was such that he needed to be promptly evaluated by a 

 

1 Appellants state that the district court "made a partial, however 

good synthesis of some of the undisputed material facts in this 

case," and point to several facts not contained within the district 

court's analysis. None of these purportedly omitted facts are 

material to our determination of the accrual date of Appellants' 

action. 

2 Appellants and the government both assert that Matos weighed 

330 pounds, a fact that the district court seems to have adopted. 

However, an autopsy report shows that Matos weighed 370 pounds 

when he died. This distinction, too, has no effect on this Court's 

analysis.
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doctor. After the duty physician, Dr. María Román-Bruno 

("Dr. Román"), conducted a cursory examination of Matos that did 

not involve x-rays, laboratory tests, or other imaging, she 

diagnosed Matos with "abdominal pain" and prescribed him Maalox 

and Enulose for his constipation,3 and Bentyl for his abdominal 

pain.4 Dr. Román then discharged Matos and instructed him to see 

his primary doctor in two days.

The next day, Matos's sister, Mariela Matos, took Matos 

to the Hospital Universitario Ramón Ruiz-Arnau ("HURRA"), a 

regional hospital in Bayamón, because his symptoms had worsened 

overnight. Upon arrival, Matos was diagnosed with abdominal pain, 

dehydration, and hematuria.5 Medical tests revealed that Matos 

had a bowel obstruction, which prompted the emergency room 

physician to request a surgical evaluation. However, the head of 

HURRA's surgery department, Dr. Ricardo Rosario ("Dr. Rosario"), 

refused to evaluate Matos because he believed that the surgical 

tables at the hospital would not support Matos's weight.6 Due to 

 

3 Maalox is an antacid. Enulose is a laxative. 

4 According to Dr. Román's testimony, Bentyl is used in small 

amounts to "alleviate abdominal pain." 

5 Hematuria is the medical term for blood in the urine.

6 In his deposition, Dr. Rosario denied that he had ever refused 

to partake in a consultation because of a patient's weight. 

Matos's medical progress note, however, indicates otherwise.
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HURRA's inability to properly evaluate Matos, the staff at HURRA 

attempted to transfer Matos to another medical facility but was 

unable to do so until the next day.

On March 1, 2010, Matos was transferred to the PRMC where 

he was diagnosed with septic shock and multiple organ failure. 

Shortly thereafter, Matos suffered two consecutive cardiac arrests 

and, at 4:15 p.m., was declared dead. Immediately after Matos's 

death, a PRMC physician appears to have informed his father, Emilio 

Matos-Pérez, that Matos died of a heart attack. That same day, 

Matos's mother, María Martínez-Ortiz ("Martínez"), authorized PRMC 

to perform an autopsy of Matos's body. The autopsy was performed 

on March 2, 2010.

On March 6, 2010, Matos's body was cremated. Two days 

later, Martínez was given Matos's ashes along with a copy of his 

death certificate. The death certificate listed Matos's immediate 

cause of death as "septic shock, secondary to peritonitis, 

secondary to intestinal perforation." On May 26, 2010, Martínez 

requested a certified copy of Matos's complete PRMC medical file. 

She received the file, along with the final autopsy report, on 

July 28, 2010. The autopsy report matched the death certificate 

findings as to the septic shock and the peritonitis.7 However, 

 

7 Specifically, the final autopsy report listed the following 

under its final pathologic diagnosis: (1) Septic Shock; (2) Morbid 

obesity; (3) Congestive Heart Failure; and, (4) Renal Failure. 
-7- 

rather than listing "intestinal perforation," the autopsy report 

went into further detail about Matos's torn intestine, listing 

"diverticulitis, perforated with peritonitis with abscess 

formation." The narrative section of the autopsy report labeled 

"Laboratory Findings" reads that "[a]n intestinal perforation in 

the Colon at 192 cm from the ileo-cecal valve (distal portion) 

measuring 0.5 cm corresponded to a diverticuli (Sigmoid Colon)." 

At an unidentified time after obtaining possession of the medical 

file, Appellants hired an attorney to explore their legal options.

On March 16, 2011, Appellants filed a medical 

malpractice suit in the Puerto Rico Court of First Instance against 

SIM, HURRA, and several physicians, alleging the wrongful death of 

Matos. On June 30, 2011, Appellants voluntarily dismissed their 

state court lawsuit. At some point thereafter, Appellants became 

aware that SIM was a federally covered entity and, on April 16, 

2012, they filed an administrative claim with the USDHHS.8 While 

that administrative claim was still pending, on April 22, 2013, 

Appellants filed this FTCA medical malpractice claim against the 

USDHHS, as the representative of SIM and Dr. Román (as SIM's 

 

Each diagnosis is further detailed in the autopsy report. 

8 In their complaint, Appellants asserted that they filed their 

administrative claim on April 9, 2012. Both parties on appeal 

acknowledge that the administrative claim was filed on April 16, 

2012.
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agent), seeking compensatory damages for their own suffering as a 

result of Matos's death. In the same complaint, Matos's minor 

daughter, Z.M.M., as heir of her deceased father, also asserted an 

inherited action for Matos's pain and suffering before his death 

as a result of the alleged medical malpractice.9 The government 

brought a third-party complaint against HURRA and several 

physicians that cared for or evaluated Matos in the events leading 

up to his death, seeking to add them as additional parties to the 

lawsuit. On May 3, 2013, the USDHHS denied the administrative 

claims against SIM. 

After discovery was complete in the district court, 

Appellants filed a motion for partial summary judgment on 

November 27, 2015, claiming there was no factual dispute as to the 

negligence of the government's agent. On November 30, 2015, the 

government filed its own motion for summary judgment, positing 

 

9 While a tort claim under the FTCA substantively follows state 

law liability, its statute of limitations provisions are governed 

by federal law, not state law. Domínguez v. United States, 799 

F.3d 151, 154 (1st Cir. 2015). Therefore, state law tolling 

statutes do not apply to the FTCA statute of limitations. See, 

e.g., Santos ex. rel. Beato v. United States, 559 F.3d 189, 193 

(3d Cir. 2009); Arteaga v. United States, 711 F.3d 828, 830 (7th 

Cir. 2013). Unlike Puerto Rico tort claims, for which the statute 

of limitations governing both personal and inherited tort actions 

by minors are suspended until the minor becomes of legal age, De 

Jesús v. Chardón, 16 P.R. Offic. Trans. 290, 308-09 (1985), the 

FTCA includes no such tolling provision, see 28 U.S.C. §§ 2401(b), 

2671-2680. Thus, we treat Z.M.M.'s claims in the same manner as 

those of the remaining Appellants. 
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that the Appellants' claims were barred by their failure to file 

an administrative claim within two years after their causes of 

action accrued, as mandated by 28 U.S.C. § 2401(b). Appellants 

countered that there was undisputed evidence that Matos's 

diverticulitis triggered his death, and that they could not have 

known of that evidence and possibly connected Matos's death to any 

governmental malfeasance until they received the autopsy report on 

July 28, 2010. Therefore, Appellants asserted, under the 

"discovery rule," they had until July 28, 2012, to file their 

federal claim, and, because their administrative claim was filed 

before that, their claim was timely.

The district court agreed with the government, holding 

that by March 1, 2010, Appellants had sufficient knowledge as to 

the probable cause of Matos's death such that the statute of 

limitations began to run that same day. As Appellants had not 

filed their administrative claims until April 16, 2012,10 the 

district court dismissed Appellants' claims with prejudice on 

June 6, 2016. Appellants filed a motion to reconsider on June 10, 

 

10 In its opinion and order, the district court used April 15, 

2012, as the date on which Appellants filed their administrative 

motion. As previously noted, both parties agree on appeal that 

the administrative claim was filed on April 16, 2012. See supra 

note 8. 
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2016, which the district court denied on August 3, 2016. 

Appellants timely appealed. 

III. 

It is axiomatic that, absent an explicit waiver, the 

United States is safeguarded from suit in any court in accordance 

with its sovereign immunity. FDIC v. Meyer, 510 U.S. 471, 475 

(1994). The FTCA constitutes a limited waiver of that sovereign 

immunity, allowing, in relevant part, for damages claims to be 

brought against the United States for any "injury or loss of 

property, or personal injury or death caused by the negligent or 

wrongful act or omission of any employee of the Government while 

acting within the scope of his office or employment." 28 U.S.C. 

§ 1346(b)(1). One limitation of this waiver, however, requires 

that "[a] tort claim against the United States . . . is presented 

in writing to the appropriate Federal agency within two years after 

such claim accrues," otherwise that claim is "forever barred." 

Id. § 2401(b).11 "[I]n construing the statute of limitations . . . 

 

11 Congress passed the Westfall Act of 1988, Pub. L. No. 100-694, 

102 Stat. 4563, which amended the FTCA to require that "any civil 

action or proceeding commenced upon such claim in a State court 

shall be removed . . . to the district court of the United 

States . . . . Such action or proceeding shall be deemed to be an 

action or proceeding brought against the United States . . . and 

the United States shall be substituted as the party defendant." 

28 U.S.C. § 2679(d)(2). Further, 

Whenever an action or proceeding in which the United 

States is substituted as the party defendant under 
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we should not take it upon ourselves to extend the waiver beyond 

that which Congress intended," United States v. Kubrick, 444 U.S. 

111, 117-18 (1979), nor "should we assume the authority to narrow 

the waiver," id. (citing Indian Towing Co. v. United States, 350 

U.S. 61, 68-69 (1955)).

This Court had long interpreted the timely filing of an 

administrative claim pursuant to § 2401(b) as a jurisdictional 

prerequisite to vesting the district court with subject matter 

jurisdiction over an FTCA suit against the United States. See 

Skwira v. United States, 344 F.3d 64, 71 (1st Cir. 2003); González 

 

this subsection is dismissed for failure first to 

present a claim pursuant to section 2675(a) of this 

title [requiring that an administrative claim be first 

filed], such a claim shall be deemed to be timely 

presented under section 2401(b) of this title if -- 

(A) the claim would have been timely had it been filed 

on the date the underlying civil action was commenced, 

and 

(B) the claim is presented to the Federal agency 

within 60 days after the dismissal of the civil 

action. 

Id. § 2679(d)(5). Here, Appellants filed a medical malpractice 

suit against SIM and others in Puerto Rico court on March 16, 2011, 

which they voluntarily dismissed on June 30, 2011. Appellants 

neither state that their local claims were brought pursuant to the 

FTCA nor that the United States was substituted as the party 

defendant. Further, Appellants acknowledge that they did not file 

a claim with the USDHHS within sixty days of their voluntarily 

dismissal of that local suit. Accordingly, § 2679(d)(5) provides 

no protection to Appellants' claims, and they make no argument 

otherwise. 
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v. United States, 284 F.3d 281, 288 (1st Cir. 2002); Attallah v. 

United States, 955 F.2d 776, 779 (1st Cir. 1992); González-Bernal 

v. United States, 907 F.2d 246, 248 (1st Cir. 1990). However, in 

2015, the Supreme Court clarified that the FTCA's statute of 

limitations is nonjurisdictional. United States v. Kwai Fun Wong, 

135 S. Ct. 1625, 1638 (2015). Given the nonjurisdictional nature 

of § 2401(b), we must now view the FTCA's statute of limitations 

as an affirmative defense to be asserted by the defendant. See 

Skwira, 344 F.3d at 71 n.8 (citing Hughes v. United States, 263 

F.3d 272, 278 (3d Cir. 2001), for the proposition that other 

pre-Kwai-Fun Wong cases considered the FTCA's statute of 

limitations to be a nonjurisdictional affirmative defense asserted 

by the defendant); see also Trinity Marine Prod., Inc. v. United 

States, 812 F.3d 481, 486 (5th Cir. 2016); Fed. R. Civ. P. 8(c)(1); 

cf. Midland Funding, LLC v. Johnson, 137 S. Ct. 1407, 1417-18 

(2017) (stating that, in ordinary civil cases the statute of 

limitations is an affirmative defense); Weil v. Elliot, 859 F.3d 

812, 815 (9th Cir. 2017) (finding in the bankruptcy context that 

"[a] non-jurisdictional time bar is an affirmative defense that 

may be forfeited if not timely raised"). Here, the government 

repeatedly raised the statute of limitations in its motion to 

dismiss filed on August 1, 2013, in the "Affirmative Defenses" 
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section of its answer to Appellants' complaint filed on February 3, 

2014, and again in its motion for summary judgment. 

Ultimately, the district court resolved the dispute on 

summary judgment. We take this opportunity to note that, postKwai Fun Wong, motions to dismiss based on the FTCA's statute of 

limitations should now be brought under Federal Rule of Civil 

Procedure 12(b)(6) (failure to state a claim upon which relief can 

be granted), or considered pursuant to Rule 56 (summary judgment). 

See Trinity Marine Prod., Inc., 812 F.3d at 486 ("[T]he district 

court should have considered the Government's motion to dismiss 

under Rule 12(b)(6) rather than 12(b)(1)."); see also Holloway v. 

United States, 845 F.3d 487, 489 (1st Cir. 2017) (acknowledging 

post-Kwai Fun Wong that the magistrate judge treated the 

Government's 12(b)(1) motion to dismiss for lack of subject matter 

jurisdiction as one for summary judgment); Torres v. United States, 

612 F. App'x 37, 39 (2d Cir. 2015) (unpublished) (affirming the 

district court's dismissal under Rule 12(b)(1) but noting that 

"the district court's order is technically incorrect, insofar as 

the dismissal should be for failure to state a claim, not for lack 

of jurisdiction"). 

As the district court properly analyzed this claim 

utilizing the appropriate summary judgment test, "[w]e review the 

district court's decision to grant defendant's motion for summary 
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judgment on statute of limitations grounds de novo, construing the 

record in the light most favorable to the non-moving party." 

Rodríguez v. Suzuki Motor Corp., 570 F.3d 402, 405-6 (1st Cir. 

2009) (citation omitted). The district court's decision will be 

affirmed if, "based on our independent review of the evidentiary 

record, there is no genuine issue of material fact and the 

undisputed facts indicate that the moving party is entitled to 

judgment as a matter of law." Id. at 406. However, summary 

judgment is improper when the "record is sufficiently open-ended 

to permit a rational factfinder to resolve a material factual 

dispute in favor of either side." Pierce v. Cotuit Fire Dist., 

741 F.3d 295, 301 (1st Cir. 2014). 

IV. 

In general, a tort claim under the FTCA accrues when a 

plaintiff is injured. Ramírez-Carlo v. United States, 496 F.3d 

41, 46 (1st Cir. 2007). Both parties agree that the date of injury 

in question, Matos's death, was March 1, 2010. But, under the 

Supreme Court's "discovery rule" exception for FTCA claims, the 

statute of limitations clock does not begin to run until the 

putative plaintiff knows of the factual basis of both his injury 

and its cause. Kubrick, 444 U.S. at 119-22; see also Nicolazzo v. 

United States, 786 F.2d 454, 455 (1st Cir. 1986). The Court 

explained that two major concerns necessitated this rule:
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One is the fact that . . . since many of the 

consequences of medical malpractice often do not 

become apparent for a period longer than that of the 

statute [of limitations], the injured plaintiff is 

left without a remedy. The second reason is that the 

nature of the tort itself and the character of the 

injury will frequently prevent knowledge of what is 

wrong, so that the plaintiff is forced to rely upon 

what he is told by the physician or surgeon. 

Kubrick, 444 U.S. at 120 n.7 (quoting Restatement (Second) of Torts 

§ 899 cmt. e (1979)). Once aware of the probable cause and 

existence of the injury, that putative medical malpractice 

plaintiff bears the burden of seeking further advice from the 

medical and legal communities to decide whether he has a viable 

cause of action. See Ramírez-Carlo, 496 F.3d at 47 (citing 

Callahan v. United States, 426 F.3d 444, 451 (1st Cir. 2005)); see 

also Sánchez v. United States, 740 F.3d 47, 52 (1st Cir. 2014); 

Skwira, 344 F.3d at 76. "Knowing the cause and existence of an 

injury is not the same as knowing that a legal right has been 

violated." Motley v. United States, 295 F.3d 820, 822 (8th Cir. 

2002). 

V. 

Appellants contend that their claims did not accrue 

until July 28, 2010, the date that they received the autopsy 

report. Unlike the death certificate, they assert that the autopsy 

report revealed that the "most significant" cause of Matos's death 

was diverticulitis, which a reasonable person could not have known 
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on the day that he died. Therefore, Appellants allege that they 

"became aware that the patient's death was possibly caused by 

mistreatment of his condition . . . only after the issuance on 

July 28, 2010[,] of the PRMC medical records with the autopsy 

report that revealed [Matos's] diverticulitis disease." Thus, the 

clock to file their FTCA claims should not have expired until 

July 28, 2012, rendering timely their administrative claims filed 

on April 16, 2012. Further, Appellants assert that PRMC's "extreme 

delay" in providing the autopsy report precluded them from learning 

the factual basis to assert their causes of action any earlier, 

and that, prior to receiving it, no one could have anticipated any 

litigation resulting from Matos's death. We disagree. 

The court employs an objective standard to determine 

whether a plaintiff knew of sufficient facts for his action to 

accrue, contemplating "whether a reasonable person similarly 

situated to the plaintiff would have known the necessary facts," 

or reasonably could have obtained sufficient facts through the 

exercise of reasonable diligence. Cascone v. United States, 370 

F.3d 95, 104 (1st Cir. 2004) (emphasis omitted) (citing McIntyre 

v. United States, 367 F.3d 38, 60 (1st Cir. 2004)); see also 

Skwira, 344 F.3d at 81-82. This Court has clarified that a 

plaintiff need not know the "full extent of the injury," González, 

284 F.3d at 289 (citing Marrapese v. Rhode Island, 749 F.2d 934, 
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940 n.10 (1st Cir. 1984)), "or that it was negligently inflicted," 

id. (citing Kubrick, 444 U.S. at 124), in order for the statute of 

limitations to begin to run. Further, "definitive knowledge of 

the cause of injury is not required to trigger the accrual of a 

medical malpractice claim." Skwira, 344 F.3d at 78 (citing 

Kubrick, 444 U.S. at 118); see also Callahan, 426 F.3d at 451. A 

plaintiff need only be aware of his injury and the facts 

establishing the probable cause of the injury for the claim to 

accrue. See Kubrick, 444 U.S. at 118; see also González, 284 F.3d 

at 289. While knowing the factual basis of the cause of action 

includes knowing "the identity of the part[y] that caused the 

injury," McIntyre, 367 F.3d at 52, "knowledge of the legal status 

of the physician as a federal employee is not required for claim 

accrual," Skwira, 344 F.3d at 76. 

Applying these principles, we find that, at least by 

March 8, 2010, when Appellants received Matos's death certificate, 

they knew of sufficient facts to raise an alarm in a reasonable 

person that the probable cause of Matos's death was connected to 

the defendants' treatment (or failure to provide treatment) of 

Matos's medical condition. Upon receipt of Matos's death 

certificate, Appellants were aware that Matos had experienced five 

days of abdominal pain, constipation, and fever by the time that 

he arrived at SIM on February 27, 2010; that a nurse at SIM deemed 
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his condition to be "urgent"; and that Dr. Román simply diagnosed 

him with "abdominal pain" and prescribed him a laxative, an 

antacid, and a pain reliever without ordering any laboratory tests 

or x-rays. Appellants were also aware that after Dr. Román 

discharged Matos, his condition worsened overnight, prompting his 

family to take him to HURRA, where medical tests revealed a bowel 

obstruction that required a surgical evaluation. Additionally, 

Appellants knew that after HURRA transferred Matos to PRMC on 

March 1, 2010, less than two days after SIM discharged him, Matos 

was diagnosed with septic shock, multiple organ failure, and 

suffered two consecutive cardiac arrests ultimately resulting in 

his death. Finally, upon receiving the death certificate on March 

8, 2010, Appellants were aware of Matos's direct, medical cause of 

death: septic shock, caused by peritonitis, which itself was caused 

by a perforated intestine. The knowledge of these vital facts was 

more than sufficient to trigger Appellants' burden to inquire 

amongst the relevant medical and legal communities as to whether 

there was a causal connection between SIM's lack of treatment and 

Matos's death, and whether Appellants had a viable cause of action. 

See Kubrick, 444 U.S. at 124; González, 284 F.3d at 290. 

The essence of Appellants' argument is that they could 

not have known that the defendants may have committed malpractice 

by missing Matos's diverticulitis until they received the autopsy 
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report. But, as Appellants themselves acknowledge in their opening 

brief, the "FTCA two year limitation period allows a plaintiff to 

investigate, [and to] confer [with] medical professionals for the 

purpose of assessing whether there has been negligence and decide 

whether to sue." (emphasis added). The FTCA statute of limitations 

does not wait until a plaintiff knows that the challenged action 

legally constitutes medical malpractice. Cascone, 370 F.3d at 

104; see also Skwira, 344 F.3d at 75-76. Nor does the claim wait 

to accrue while a malpractice plaintiff gathers medical reports 

when that plaintiff already has in his possession the critical 

information necessary to ascertain the probable cause of the 

relevant injury. See Sánchez, 740 F.3d at 53 (citing T.L. ex rel. 

Ingram v. United States, 443 F.3d 956, 964-65 (8th Cir. 2006)) 

(finding that delay in obtaining medical reports did not toll 

limitations period where plaintiff failed to show "how their 

absence precluded him from timely filing his claim"). While the 

autopsy report further detailed that the "intestinal perforation" 

was a torn diverticula in Matos's colon, the information contained 

in Matos's death certificate -- coupled with Appellants' knowledge 

of Matos's treatment at SIM and HURRA -- was more than sufficient 

to trigger Appellants' duty to investigate. See Rotella v. Wood, 

528 U.S. 549, 555-56 (2000) ("A person suffering from inadequate 

treatment is thus responsible for determining within the 
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limitations period then running whether the inadequacy was 

malpractice."). 

Appellants further contend that, in light of Matos's 

morbid obesity and hypertension, it was unreasonable for the 

district court to require them to know the cause of Matos's death 

before they received the autopsy report. Appellants state that, 

unlike in Sánchez, in which the court found that "[t]he death of 

a generally healthy woman in childbirth is sufficiently rare in 

this country today as to make most reasonable people ask why it 

happened," 740 F.3d at 52, a reasonable person would not have 

questioned why an unhealthy person, such as Matos, died, especially 

given the frequency with which hospitalized patients die of 

sepsis.12 It was only when they learned that Matos suffered from 

diverticulitis, uncommon in a man of his age,13 that Appellants 

believe a reasonable person would have questioned whether 

malpractice occurred. 

 

12 Appellants point to several studies, including one from an 

agency within the USDHHS, to support their contention that 

septicemia is both a common and deadly disease.

13 In support of this argument, Appellants cite a 2014 research 

paper from the undergraduate Radiographic Science program at Idaho 

State University. Chris Van Orden, Diverticulitis, Idaho State 

Univ., http://www2.isu.edu/radsci/papers14/18_2014.pdf (last 

visited April 9, 2018). 
-21- 

This argument, however, ignores the full scope of the 

information provided in Matos's death certificate, as well as the 

timing of Matos's death. The death certificate provided to 

Appellants on March 8, 2010, listed not only that Matos died of 

sepsis, but that the sepsis was secondary to peritonitis, which 

was secondary to intestinal perforation. Even if we were to assume 

that knowledge that Matos died of septic shock, without more, was 

insufficient to trigger Appellants' duty to investigate, in this 

case they were armed with far more to raise their suspicions. They 

knew the symptoms that Matos suffered (severe abdominal pain, 

constipation, and fever), the treatment given (or, more precisely, 

not given), and the direct, medical cause of death (septic shock, 

secondary to peritonitis, secondary to intestinal perforation). 

Appellants also knew that this resulted in Matos's death only two 

days after Dr. Román diagnosed him with "abdominal pain" and 

discharged him within approximately two hours and forty minutes of 

his arrival at SIM. Appellants had sufficient information14 to 

require them to begin to investigate their claims, and could have 

"file[d] an administrative claim and preserve[d their] rights 

 

14 Appellants' inclusion of the fact that, on the day of Matos's 

death, "an unidentified doctor told family members that Mr. Matos 

ha[d] died due to a heart attack," provides no support for their 

claim. It is undisputed that Appellants received a copy of Matos's 

death certificate, informing them of the information described 

above, on March 8, 2010. 
-22- 

under the FTCA" within the two-year statute of limitations ending, 

at the latest, on March 8, 2012. Skwira, 344 F.3d at 81. 

VI. 

Despite the tragic death of their loved one, we 

unfortunately must conclude -- like the district court before us 

-- that Appellants' action seeking compensatory damages for the 

allegedly negligent act of a federal employee is time-barred under 

the FTCA's statute of limitations. 

Affirmed.