Marjorie Winn, Personal Representative of the Estate of Homer A. Winn, Deceased v. United States

This appeal seeks reversal of a decision by the United States District Court for the District of Oregon which granted a motion for summary judgment in favor of the United States. Plaintiff sought recovery against the Veterans Administration for the alleged wrongful death of her husband on a theory of medical malpractice. The district court interpreted the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680 (1970), as one which does not create any new federal torts, but which instead borrows liability provisions from the law of the state where the wrong occurred. Because the underlying Oregon claim was time-barred, the district court ruled that there was no existing cause of action to which the federal statute of limitations might attach. 28 U.S.C. § 2401 (b) (1970). We agree and affirm the dismissal of the action.

The FTCA does not create a cause of action for wrongful death independent of state law. Feres v. United States, 340 U.S. 135, 141 , 71 S.Ct. 153 , 95 L.Ed. 152 (1950); Richards v. United States, 369 U.S. 1, 6-7 , 82 S.Ct. 585 , 7 L.Ed.2d 492 (1962). Although plaintiff denominates her claim as one for wrongful death, the gravamen of her complaint is an allegation of…