Nancy McGraw Individually and as the Personal Representative of the Estate of Kenneth Place, and Kenneth Place, Estate of v. United States

This case calls upon us to refine our longstanding rule regarding the accrual of certain medical malpractice claims brought under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680 . In Augustine v. United States, 704 F.2d 1074, 1078 (9th Cir.1983), we held that a plaintiff alleging a failure-to-diagnose theory must file an administrative claim with the appropriate government agency, pursuant to 28 U.S.C. § 2401 (b), within two years after learning that a pre-existing condition has transmuted into a more serious ailment. We have not, however, had occasion to address when such a claim accrues if the doctors never informed the plaintiff about the existence of such a condition.

Here, Nancy McGraw, suing individually and as personal representative of the estate of her deceased father, Kenneth Place (collectively “McGraw”), brought wrongful death and survival claims against the government. She maintained that military doctors failed to diagnose a cancerous growth in her father’s lung, an omission that resulted in Place’s death after the cancer spread throughout his body. The district court found that McGraw’s claims accrued when she first learned that her father had…