463 F.

3d 266

Vicki MILLER, Administratrix of the Estate of Henry S.

Miller, Appellant
v.
PHILADELPHIA GERIATRIC CENTER; Charles Bongiorno;
Phil Markowitz; John Doe; Jane Doe; United States of
America.
No. 04-3132.

United States Court of Appeals, Third Circuit.

Argued June 29, 2005.
Filed September 12, 2006.

COPYRIGHT MATERIAL OMITTED James L. Griffith, Esq., (Argued),

Fox Rothschild, Philadelphia, PA, for Appellant.
K.T. Newton, Esq., (Argued), Office of the United States Attorney,
Philadelphia, PA, for Appellee United States of America.
Jill B. Clarke, Esq., (Argued), McKissock & Hoffman, Philadelphia, PA,
for Appellee Phil Markowitz.
Before NYGAARD, SMITH, and FISHER, Circuit Judges. 1
OPINION OF THE COURT
NYGAARD, Circuit Judge.

This appeal raises issues of some complexity concerning the timeliness of an

action brought under the Federal Tort Claims Act and various other state
statutes. Vicki Miller, the sister of a mentally retarded man and administratrix
of his estate, filed a lawsuit sounding in tort against her brother's physicians and
the medical/geriatric facility that provided her brother's care. Specifically, she
filed both a survival claim of negligence and a wrongful death claim under the
Federal Tort Claims Act arguing that her brother died because his doctors
administered a combination of psychiatric drugs to the point of toxicity, and
then failed to diagnose the extent of the toxicity before it became irreversible

and terminal. The District Court granted summary judgment, dismissing the
claims as untimely. Miller filed a timely appeal and has assigned numerous
errors. We will reverse.
I.
2

The facts surrounding this appeal require a rather detailed recitation. Decedent
Henry Miller was born severely retarded. Although he reached a chronological
age of sixty-four, his mental age remained that of a four year old child. Despite
this severe impairment, no one was ever appointed his legal guardian. See
District Ct. Op., at 9. In 1988, he was placed in a Community Living
Arrangement through Jewish Educational and Vocational Services. While at
JEVS, Dr. Philip Markowitz provided the decedent with psychiatric treatment,
including the prescription of psychiatric medications, primarily a combination
of Lithium and Haldol. From June 16, 1994 though September 22, 1995, Dr.
Carlos Moreno was the decedent's primary physician. During this period
Moreno monitored the decedent's blood levels and reported abnormal Lithium
levels to the medical coordinator at the JEVS home. Moreno did not prescribe
any medication for the decedent.

In October 1995, the decedent was admitted to Frankford Hospital. While

hospitalized, the attending physician repeatedly advised Miller that her
brother's condition was caused by an adverse reaction to the combination of
medication that had been prescribed at the JEVS home by Markowitz. On
November 27, 1995, the decedent was transferred to the Philadelphia Geriatric
Center, where Dr. Charles Bongiorno was his attending physician. While at
PGC, the decedent's condition deteriorated rapidly. He developed a continuous
fever, the cause of which was never diagnosed. On September 9, 1997, after his
condition became unstable, the decedent was transferred from PGC to Temple
University Hospital. He died on September 24, 1997. The cause of death was
listed as sepsis.

On September 21, 1999, Miller commenced legal action against the

Philadelphia Geriatric Center, Bongiorno, Markowitz and Moreno by filing a
praecipe for a writ of summons in the Court of Common of Philadelphia
County. Her complaint was filed on March 1, 2000. Moreno was an employee
of Greater Philadelphia Health Action Inc., a federally funded health center.
Because the GPHA is a grantee of the federal Department of Health and Human
Services, its employees are considered employees of the Public Health Service,
a federal agency. Federal jurisdiction existed, therefore, under the Federal Tort
Claims Act ("FTCA"), 28 U.S.C. 1346. The matter was removed to the
United States District Court for the Eastern District of Pennsylvania. The

United States was subsequently properly substituted for Moreno as a party to

this litigation. On October 20, 2000 the District Court dismissed Miller's claims
against the United States without prejudice because she failed to exhaust the
available administrative remedies. The remaining claims were later remanded
to state court.
5

Miller then filed an administrative claim with the United States Department of
Health and Human Service on December 12, 2000. Not having received a
decision from the Department after waiting more than six months, Miller filed
an action in the District Court on October 24, 2001 in which she named the
United States as a defendant pursuant to the FTCA. On February 26, 2002,
Markowitz filed an answer and cross-claim against Moreno in the remanded
state court action, and the state court claims were removed to the District Court
and consolidated with her newly filed federal court action.2

The Government moved for summary judgment, arguing that Miller's claims
were barred by the FTCA's two-year statute of limitations. The Government
alleged that the decedent became aware of his injury and its probable cause on
October 31, 1995. This date reflects a period in which the decedent was
admitted to Frankford Hospital with possible acute rhabdomyolyosis, a serious
disease characterized by muscle breakdown. Miller argues that the date from
which the statute of limitations should be calculated is September 24, 1997
the date of decedent's death. Miller appeals from two orders of the District
Court which disposed of her claims against Appellees Markowitz and the
United States. The first order granted summary judgment in favor of Appellee
the United States, holding that Miller failed to present her claims against the
United States to the Department of Health and Human Services within the two
year statute of limitations period outlined in the FTCA. See 28 U.S.C.
2401(b). In the second order, the District Court entered judgment in favor of
Appellee Markowitz based on Pennsylvania's statute of limitations.3

II.
7

As our late colleague Judge Max Rosenn aptly noted in Hughes v. United
States, 263 F.3d 272, 273 (3d Cir.2001), "determining when the statute of
limitations begins to run in a case is sometimes difficult, especially in cases
claiming medical malpractice." This is particularly so where, as here, Miller
brings both survival and wrongful death claims under the FTCA as well as
survival and wrongful death claims pursuant to Pennsylvania law all based on
the alleged medical malpractice of the appellees. We turn first to the FTCA
claims.

A. The Federal Tort Claims Act

8

Under the FTCA, a claim against the United States is barred unless it is
presented to the appropriate federal agency "within two years after such claim
accrues." 28 U.S.C. 2401(b). The determination of when a claim accrues for
the purposes of the FTCA is a question of federal law. Tyminski v. United
States, 481 F.2d 257, 262-63 (3d Cir.1973). The District Court's factual
findings regarding the date on which Miller's claims accrued will remain
undisturbed unless its findings are clearly erroneous. Anderson v. City of
Bessemer, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518, 528
(1985). Our review is plenary, however, where the District Court's
determinations involve the application and interpretation of legal precepts. D &
G Equip. Co. v. First Nat'l Bank, 764 F.2d 950, 954 (3d Cir.1985).

The FTCA is a limited waiver of the sovereign immunity of the United States.
The Supreme Court has admonished that the courts should carefully construe
the time limitations of the FTCA so as not to extend that limited waiver beyond
that which Congress intended. United States v. Kubrick, 444 U.S. 111, 117-18,
100 S.Ct. 352, 356-57, 62 L.Ed.2d 259 (1979). Normally, a tort claim accrues
at the time of injury. Gonzalez v. United States, 284 F.3d 281, 288 (1st
Cir.2002). However, in Kubrick, the Supreme Court carved out a "discovery
rule" exception for FTCA claims involving medical malpractice. Kubrick, 444
U.S. at 111, 100 S.Ct. 352. Such claims, therefore, accrue not at the time of
injury, but rather when a plaintiff knows of both the existence and the cause of
his injury. Id. at 119-122, 100 S.Ct. 352. Importantly, however, accrual does
not await the point at which a plaintiff also knows that the acts inflicting the
injury may constitute medical malpractice. Id. at 122, 100 S.Ct. 352.
B. FTCA Wrongful Death Claims

10

Before calculating the time limitations for Miller's federal claims, we must first
address an issue she has raised concerning the actual characterization of her
claims. In her brief, she argues that the District Court failed to recognize that
she was bringing both survival and wrongful death claims, presumably in her
capacity as the administratrix of her brother's estate. She argues that the
majority of the District Court's discussion of the FTCA claims focused on
negligence. See e.g., District Ct. Op. at 8 ("Therefore, the cause of action
against the United States alleging the negligence of Moreno, accrued at the
latest by December 1995 . . .").

11

In determining whether a wrongful death claim is distinct from a survival

claim, we look to state law. Miller v. United States, 932 F.2d 301, 303 (4th Cir.
1991) ("[S]tate law determines whether there is an underlying cause of action;
but federal law defines the limitations period and determines when that cause of
action accrued."); see also Chomic v. United States, 377 F.3d 607, 611 (6th
Cir.2004). The wrongful death action is distinct from a survival action under
Pennsylvania law. 42 PA. CONS. STAT. Section 8302.4 Pennsylvania law
creates an "independent" cause of action for wrongful death. 42 PA. CONS.
STAT. Section 8301. An "independent" wrongful death action is one which is
created for the benefit of and is held by statutorily specified survivors and is
intended to compensate them for the pecuniary loss suffered because of the
decedent's death. Put another way, the action remedies the loss sustained by the
survivors who are deprived of the decedent's earnings, companionship, etc.5
We agree that the District Court's opinion does appear to conflate Miller's
claims. Miller pleaded "negligence"nothing more specific than that.
However, while she has not clearly delineated her claims, she is correct in
pointing out that the federal rules of pleading require only that a plaintiff set
forth a "short and plain statement" of his claim for relief. Fed.R.Civ.P. 8(a)(2).
Moreover, under the rules, "(a)ll pleadings . . . (are to) be so construed as to do
substantial justice." Fed.R.Civ.P. 8(f). Pleadings need not be construed most
strongly against the pleader, rather we should make a determined effort to
understand what she is attempting to set forth.
12

The complaints filed in this matter demonstrate that Miller was indeed alleging
a wrongful death claim in addition to her survival action. For example, her
complaint naming the United States as a defendant alleges that the defendant's
actions "caused the decedent to endure pain and suffering and contributed to
the cause of his untimely death." Plaintiff's complaint at 4, 20. Further, her
"Claim for Damage, Injury, or Death" filed with the United States Department
of Health and Human Services indicates that she "seeks compensation and
damages related to the death of Henry Miller." App. at 69a. The letter from
counsel accompanying the filing of this form additionally makes it clear that
Miller was making a wrongful death claim ("we are submitting this wrongful
death claim . . ."). App. at 71a. Having determined that Miller has pleaded a
separate wrongful death action under the FTCA, we now must determine if that
claim is timely.

13

As noted earlier, the accrual date for wrongful death claims brought under the
FTCA is determined under federal law. See e.g. Miller, 932 F.2d at 303;
Chomic, 377 F.3d at 611. Where a state statute creates such an independent
cause of action, it cannot accrue for FTCA purposes until the date of death,
which gives rise to the underlying action. Fisk v. United States, 657 F.2d 167,
171 (7th Cir.1981) (holding that while state law created the wrongful death

cause of action, the accrual question was one of federal law); see also Warrum
v. United States, 427 F.3d 1048, 1052 (2005) (re-affirming that for purposes of
the FTCA, because Indiana law creates a wrongful death claim substantively
independent of the personal injury claim possessed by the decedent before
death, the wrongful death claim cannot accrue until the date of the decedent's
death).
14

We now join those circuits that have concluded, albeit under a wide variety of
factual scenarios, that wrongful death claims, for FTCA purposes, cannot
accrue prior to death. See e.g., Warrum, 427 F.3d at 1051; Johnston v. United
States, 85 F.3d 217 (5th Cir.1996); Washington v. United States, 769 F.2d 1436
(9th Cir., 1985); Fisk, 657 F.2d at 167. Here, Henry Miller died on September
24, 1997, and his sister filed her wrongful death action against the United
States on September 21, 1999. Because Miller brought her wrongful death
action within two years of the decedent's death, her claims are timely.
C. FTCA Survivor Claims

15

Miller further claims that the District Court erred by holding her survival
claims against the United States and Markowitz to be time barred. These claims
were also brought under the Federal Tort Claims Act. See 42 U.S.C. 2401(b).

16

The same two dates are once again at issue here: October 31, 1995the date
when the doctors at the Franklin Hospital informed Miller of the cause of her
brother's health problems, and September 24, 1997, the date of his death. Miller
again argues that the statute of limitations begins to run on the date of her
brother's death. The Government asserts that the claims accrued when Miller
knew of both the existence and the cause of Henry's injury, October 31, 1995.
Relying on this date would render Miller's claims time-barred. If the date of
accrual is the date of the decedent's death, however, Miller's claims are timely.
The District Court concluded that October 31, 1995 was the date the claims
accrued because it was on this date that Miller knew both the cause and
existence of her brother's illness. Miller argues that the District Court erred by
looking to her rather than to the decedent as the proper person to whom the
reasonable person standard of the FTCA discovery rule applies. We agree.

17

The record is quite clear that, although Miller closely monitored her brother's
health and treatment, she was not his legal guardian. Even though she was not
his legal guardian, the District Court nonetheless looked to Miller to determine
when any lawsuit should have been filed. This was error. Miller would not have
had the authority to file a suit on the decedent's behalf while he was alive

unless she was appointed his guardian. Hence, the District Court's discussion of
what Miller knew or what a reasonable person with Miller's knowledge should
have known is irrelevant to a determination of when the statute of limitations
ran.
18

We are left to look at what the decedent Henry Miller knew or what a
reasonable person with the decedent's knowledge should have known. But this
is problematic. As noted earlier, the decedent was mentally impaired, with the
approximate mental age of a four year old child. In deciding not to look to
Henry's knowledge, the District Court recognized the difficulty presented:

19

Admittedly, for purposes of determining the date upon which the statute of
limitations commences in a survival action, one inquiry is when the decedent
became aware of his injury and its cause. Although it is unclear what decedent
was specifically told about his injury and it is clear that someone suffering
from mental retardation to the extent that he was would be unable to
comprehend whatever he was told about his injury and its cause

20

...

21

District Ct. Op. at 8 (citing Barren v. United States, 839 F.2d 987 (3rd Cir.
1988)).

22

On first blush it would seem that, as Kubrick instructs, we should apply the
objective reasonable person standard to Henry Miller to determine when he
should have known of his injury. See Kubrick, 444 U.S. at 111, 100 S.Ct. at
360. In Kubrick, the Supreme Court made no exception to the discovery rule
for persons suffering from a mental illness and so it would seem that it should
control here. However, Kubrick is not absolute in its application. A consistent
but narrow exception to the Kubrick rule has been carved out by a number of
courts of appeal for situations in which the plaintiff has no culpability in failing
to bring a timely claim. See Clifford by Clifford v. United States, 738 F.2d 977
(8th Cir., 1984); Washington v. United States, 769 F.2d 1436 (9th Cir.1985).
After all, the Court in Kubrick was clearly concerned with the plaintiff who
"armed with the facts about the harm done to him, can protect himself by
seeking advice in the medical and legal community." Kubrick, 444 U.S. at 123,
100 S.Ct. at 360. The objective standard the Court adopted sought to enforce
this maxim.

23

In Barren, over a vigorous dissent, we applied the Kubrick objective standard,

refusing to carve out any exception for a plaintiff whose ability to perceive that

the government injured him was destroyed by the government's own actions.
The plaintiff in Barren was initially competent, although he suffered from
serious mental illness, but he was rendered completely incompetent through the
government's malfeasance in attempting to treat his mental conditions. In
applying the Kubrick objective standard to the plaintiff, we noted that allowing
persons with mental illnesses to file suit later than the objectively reasonable
person would be "tantamount to ruling that a plaintiff's mental infirmity can
extend the statute of limitations," and that "[s]uch extensions have been
uniformly rejected by this and other courts of appeals." Barren, 839 F.2d at
992. We also refused to consider the effect of a delay in the appointment of a
guardian, stating that "[t]here is no reason why such a delay in the appointment
of a guardian should work to the detriment of the Government." Id. at 991 n. 7.
24

Our reluctance in Barren to allow the plaintiff an exception to the Kubrick

objective standard stemmed from the concern that plaintiffs who were injured
by the government could then attempt to take advantage of the "exception" by
arguing about when they became incompetent. In other words, the court did not
want disputes over when a plaintiff became incompetent to overtake or
subsume the objective reasonable person standard in Kubrickespecially when
the Government was the cause of the injury that led to the incompetency.
Barren, 839 F.2d at 991. Additionally, we refused to address the effect of a lack
of a guardian for fear that "[a] deliberate delay" in appointing one might also
encourage extending the statute of limitations to the government's detriment.

25

However, on its facts, Barren addresses only the specific class of plaintiffs who
were not only injured by the government, but were also prevented from
recognizing their injuries by the government's malfeasance and we do not find
its logic controlling here. Miller's incapacity was not caused by the
Government's malfeasance. Instead, he was born totally incompetent and
remained so his entire life. Consequently, the concerns suggested in Barren are
simply not implicated here. The Government did not cause Miller's retardation,
although they did injure him. Thus, because Miller's mental retardation
predated the government's negligence, there can be no concern that finding
Kubrick inapplicable here will encourage disputes over when a plaintiff was
rendered incompetent. Nor might it facilitate the intentional delay in appointing
a guardian because, again, plaintiffs in Miller's position are incompetent before
the government's negligence occurs.

26

To reiterate, we are not dealing with a person who, like in Barren, was mentally
ill but competent and then, because of the government's malpractice, progressed
into total mental incapacity. Henry Miller, from his birth to his death, possessed
the intellectual ability of a four year old. His profound disability predating the

government's malfeasance places him outside the purview of Barren and into
somewhat uncharted waters. Analogous to Henry Miller's position, and
instructive for the resolution of this case, we believe that his position most
closely resembles a plaintiff who is a legal minor.
27

For minors, it is of course true that in most situations the Kubrick objective
standard unequivocally applies. See Crawford v. United States, 796 F.2d 924
(7th Cir. 1986). But, minors are not subject to the Kubrick objective standard
because they are thought to be capable of recognizing their injury and thus
should be held responsible for investigating its cause, which is the justification
that underlies Kubrick. Rather, minors are subject to Kubrick's standard
because we look to their parent or legal guardian. That is, we impute to their
parents or guardian the knowledge of their injury. We do this precisely because
a legal minor is not in a position to either understand her injuries or even to
bring a claim if she wanted to. It follows that, in the rare instance where a
minor did not have either a parent or a guardian, the Kubrick standard should
not be applied to them because there would be no one to whom we could
impute knowledge and, also because the minor herself could not have
understood, let alone brought, the claim. Here, we are essentially dealing with a
minoran individual who is so severely mentally incapacitated that his
intelligence equates to that of a four-year-old child. Moreover, this "minor"
lacked an appropriate legal guardian. Accordingly, we will not apply the
Kubrick objective standard to this plaintiff.

28

Having determined that Kubrick's standard does not apply, we now turn to a
determination of when the claims accrued. We find instructive a class of cases
the coma casesidentified by Judge Becker in his dissenting opinion in
Barren. For example, in Clifford v. United States, the Court of Appeals for the
Eighth Circuit held that the statute of limitations accrued when Clifford's father
was appointed his guardian and not, as the government had argued, when
Clifford fell into a coma. Clifford, 738 F.2d 977. Specifically, the court held
that because Clifford had reached the age of majority, and had not yet had a
guardian appointed on his behalf, the knowledge of his family members could
not be imputed to the plaintiff himself. See Barren, 839 F.2d at 997 (citing
Clifford, 738 F.2d at 980).

29

Also citing Clifford, the Court of Appeals for the Ninth Circuit, in Washington
v. United States, held that a cause of action accrued on the date when a
comatose patient died, not on the date she entered into a fourteen-year coma.
Washington, 769 F.2d at 1439. The court reasoned that because the plaintiff
was never aware of her injury or its cause, the statute of limitations began to run
on the date of her death. Id. at 1438. Further, the court found the knowledge of

the plaintiff's husband irrelevant to her ability to file suit. Id.

30

Henry Miller presents a legal situation akin to those plaintiffs in Clifford and
Washington. Not only was no guardian ever appointed for him, his profound
mental retardation prevented him from any awareness of his injury or its cause.
The objective reasonable person inquiry annunciated by the Supreme Court in
Kubrick does not apply here. Assuredly, had Vicki Miller been appointed legal
guardian for her brother at some time before the government's alleged
malpractice, Kubrick would most likely apply. Admittedly, Henry Miller's legal
position is a unique one, and our holding in this appeal is narrow as a result.
However, we are certainly not alone among those courts which have carved a
narrow equitable exception to Kubrick's reasonable person standard for
mentally incapacitated persons who, for whatever reason, do not have a legally
appointed guardian to act in their stead. See Clifford, 738 F.2d at 977;
Washington, 769 F.2d at 1439; Zeidler v. United States, 601 F.2d 527 (10th
Cir.1979). We will therefore reverse the grant of summary judgment on Miller's
FTCA survival claims.

III.
31

Miller also brings survival and wrongful death claims under Pennsylvania law.
She again asserts that the statute of limitations for the state law survival claim
against Dr. Markowitz did not begin to run until the decedent's death. She also
asserts that there were genuine issues as to when the statute of limitations began
to run. We agree that there are genuine issues of material fact as to when
Miller's state law survival claims against Markowitz accrued.

32

Under the Pennsylvania discovery rule, the statute of limitations begins to run
when the complaining party "knows, or reasonably should know (1) that he has
been injured, and (2) that his injury has been caused by another party's
conduct." Bohus v. Beloff, 950 F.2d 919, 924 (3d Cir.1991). A plaintiff need not
know the exact medical cause of the injury, that his injury is due to another's
negligent conduct or that he has a cause of action. Id. at 925. The "polestar" of
the discovery rule is not the plaintiff's actual knowledge, but rather "whether
the knowledge was known, or through the exercise of diligence, knowable to
[the] plaintiff." Id. (citing O'Brien v. Eli Lilly & Co., 668 F.2d 704, 711 (3d
Cir.1981)); see also Vitalo v. Cabot Corp., 399 F.3d 536, 545 (3d Cir. 2005)
(reiterating that plaintiffs must exercise reasonable diligence to invoke the "safe
harbor" of the discovery rule).

33

Consequently, Pennsylvania's discovery rule is objective. Statutes of limitations

are generally strictly construed because their exclusive purpose is to expedite

litigation and discourage stale claims so the defendant will not be prejudiced by
having to locate evidence and witnesses to defend a long-passed wrong.
Gustine Uniontown Assocs. v. Anthony Crane Rental, Inc., 577 Pa. 14, 842
A.2d 334, 346 (2004). Because the discovery rule tolls the otherwise strict
application of the statute of limitations, diligence is evaluated under the
reasonable person standard. It matters not what the particular plaintiff actually
knew, but what he reasonably should have known. Until recently, no
adjustments to this objective analysis were made for mental illness. See Lake v.
Arnold, 232 F.3d 360, 371 (3d Cir.2000) (citing Walker v. Mummert, 394 Pa.
146, 146 A.2d 289, 291 (1958)); Pearce v. Salvation Army, 449 Pa.Super. 654,
674 A.2d 1123, 1126 (1996). However, under a recent Pennsylvania Supreme
Court decision, "[w]hile reasonable diligence is an objective test, it is
sufficiently flexible to take into account the differences between persons and
their capacity to meet certain situations and the circumstances confronting them
at the time in question." Fine v. Checcio, 582 Pa. 253, 870 A.2d 850, 858
(2005) (citing Crouse v. Cyclops Indus., 560 Pa. 394, 745 A.2d 606, 611
(2000) (internal citations omitted)). "Under this test, a party's actions are
evaluated to determine whether he exhibited `those qualities of attention,
knowledge, intelligence and judgment which society requires of its members
for the protection of their own interest and the interest of others.'" Id.
34

Whether a damaged party, exercising reasonable diligence, could ascertain that

he has been injured, and by what cause, is a factual determination. As discussed
earlier, the decedent's knowledge is relevant for the survival claim because it is
his claim that survives his death brought by his personal representative due to
his decease. Carroll v. Avallone, 869 A.2d 522, 528 (2005) (citing Kiser v.
Schulte, 538 Pa. 219, 648 A.2d 1 (1994)). We believe that because the decedent
had the mental age of a four-year-old, this is a "difference between persons"
that must be taken into account under Fine v. Checcio, 582 Pa. 253, 870 A.2d
850, 858 (2005), to determine whether the decedent knew, or, more accurately,
was even capable of knowing, that he was injured and the cause of his injury.
Because this presents a genuine issue of a material fact, we will reverse the
grant of summary judgment on Miller's state law survival claim.

35

Miller also asserts that the District Court erred by failing to recognize the state
law wrongful death component of her claims. We agree. Generally, the right of
action for wrongful death shall exist only for the benefit of the spouse, children,
or parents of the deceased. See 42 PA. CONS. STAT. 8301(b). However, a
wrongful death action may also be brought by the personal representative of a
decedent to recover damages for reasonable hospital, nursing, medical, funeral
expenses and expenses of administration necessitated by reason of injuries
causing death. See 42 PA. CONS. STAT. 8301(d). Hence, Miller, as

administratrix of her brother's estate, is a proper party to bring this claim.

Carroll v. Avallone, 869 A.2d 522, 528 (Pa.Super.Ct.2005) (citing
Commonwealth v. Opperman, 780 A.2d 714 (2001)).
36

The decedent's wrongful death actions accrued on September 24, 1997, the date
of his death. See Gallick v. United States, 542 F.Supp. 188, 191 (1982). It is
undisputed that the statute of limitations is two years for wrongful death
actions. 42 PA. CONS. STAT. 5524(2). Therefore, Miller's wrongful death
claims filed on September 21, 1999 were timely. Accordingly, we will reverse
the grant of summary judgment on Miller's wrongful death claims.

IV.
37

The Judgment of the District Court is reversed and this matter is remanded for
further proceedings consistent with this opinion.

Notes:
1

Judge Richard L. Nygaard assumed Senior Status on July 9, 2005

Henry Miller died on September 24, 1997, and Vicky Miller filed her suit on
September 21, 1999, within the limitations period. The United States was
substituted for Dr. Carlos Moreno for the FTCA claims pursuant to 28 U.S.C.
2679 which governs suits against federal employees acting in the scope of their
employment. The District Court then dismissed Miller's case for failure to
exhaust her administrative remedies on October 20, 2000. Under 28 U.S.C.
2679(5)(A) and (B), whenever the United States is substituted as the defendant
under this section and the action is dismissed for failure to first present the
claim to the appropriate federal agency, the claim is deemed timely under 28
U.S.C. 2401(b) "if the claim would have been timely had it been filed on the
date the underlying civil action was commenced and the claim is presented to
the appropriate Federal agency within 60 days after the dismissal of the civil
action."Id. Miller filed her administrative claim with the Department of Health
and Human Services on December 12, 2000, within the 60 day statutory
requirement. See 28 U.S.C. 2679(5)(B). Therefore, after failing to get a
response from the agency, her suit against the United States, refiled on October
24, 2001, was treated as if it was filed on September 21, 1999.

After a jury trial, the District Court entered summary judgment in favor of
defendants Philadelphia Geriatric Center and Bongiorno. Miller did not appeal
from this order and, as such, Philadelphia Geriatric Center and Bongiorno are

not parties to this appeal

4

A survival action is a continuation of the personal injury action held by the

decedent at the time of his or her death and may be brought by the personal
representative of their estateSee Moyer v. Rubright, 438 Pa.Super. 154, 651
A.2d 1139, 1140 (1994); Pastierik v. Duquesne Light Co., 514 Pa. 517, 526
A.2d 323, 326 (1987).

A wrongful death action under Pennsylvania law does have a distinct curiosity
to it. While technically an independent cause of action, Pennsylvania wrongful
death actions are, in some sense, derivative. While not derivative of the
decedent's personal injury action, such causes of action have been deemed
derivative of the original tort which resulted in injury and eventual death.
Therefore, if, on the date of the decedent's death, the statute of limitations had
run on the underlying tort, his survivors are barred from bringing a wrongful
death claimSee Moyer v. Rubright, 438 Pa.Super. 154, 651 A.2d 1139, 1142-43
(1994); Baumgart v. Keene Bldg. Prod. Corp., 430 Pa.Super. 162, 633 A.2d
1189 (1993); Ingenito v. AC & S Inc., 430 Pa.Super. 129, 633 A.2d 1172, 1176
(1993); Anthony v. Koppers, 496 Pa. 119, 436 A.2d 181, 185 (1981). However,
if the survivors can bring a wrongful death claim, the statute of limitations
begins to run on the date they sustain the pecuniary loss, i.e., the date of the
decedent's death. Moyer, 651 A.2d at 1142.

38

SMITH, Circuit Judge, dissenting.

39

I respectfully dissent from the majority's conclusion that Vicki Miller's survival
action against the United States pursuant to the Federal Tort Claims Act
(FTCA) is not time-barred. In my view, we are bound by the Supreme Court's
decision in United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d
259 (1979), and this Court's decision in Barren by Barren v. United States, 839
F.2d 987 (3d Cir.1988), to apply an objective test in determining when the
statute of limitations began to run on Miller's survival claim under the FTCA.
Because Barren applied the objective test and refused to toll the statute even
though the government's negligence aggravated the plaintiff's mental illness to
such an extent that he was unable to perceive that he had been injured, there is
no basis to create an exception which would allow tolling here where Henry
Miller's inability to recognize the fact that he had been injured was not
attributable to the government's conduct.

40

The majority ignores Kubrick's admonition that the FTCA's statute of

limitations must be narrowly construed in order to avoid "extend[ing] the
waiver [of sovereign immunity] beyond that which Congress intended." 444

U.S. at 118, 100 S.Ct. 352. Furthermore, the majority misreads Barren en route
to creating an exception to Kubrick's objective test which allows tolling for a
mentally incapacitated adult if the record fails to establish that he has an
appointed guardian. The lack of an appointed guardian is not an exception to
Kubrick's objective test, and I have found no case law that would support
creating such an exception. For that reason, I write separately to explain why
the objective reasonable person standard applied in Kubrick and Barren is
controlling and compels the conclusion that the District Court correctly
dismissed Miller's FTCA survival claim as time-barred.
41

I also disagree, for the reasons explained below, with the majority's
determination that the District Court improperly dismissed Vicki Miller's state
law survival action against Dr. Markowitz, and that it conflated her wrongful
death claims with her survival actions.

I.
42

The facts set forth by the majority are not in dispute. The decedent, Henry
Miller, was born severely retarded in 1933 and attained the mental age of a four
year old. In his mid-fifties, Henry was placed in a community living
arrangement and his sister, Vicki Miller, regularly visited him. Due to a toxic
Lithium level, Henry became seriously ill in 1995. His sister was "repeatedly
advised that her brother's condition was caused by an adverse reaction to the
combination of medication that had been prescribed. . . ." Maj. op. at 269.
Despite treatment, Henry did not recover, and he died on September 24, 1997.

43

Vicki Miller filed suit on September 21, 1999. Pursuant to the FTCA, Miller
asserted a survival action against the United States. The question is: when did
Miller's survival action accruein October of 1995 when she learned of the
cause of her brother's injuryor in September of 1997 when he died?

44

The majority determines that the survival claim accrued when Henry died in
September of 1997. I disagree. My analysis leads me to conclude that Vicki
Miller's survival claim accrued when Henry was hospitalized in 1995 and she
was repeatedly informed that his illness was caused by a reaction to his
medication. In my view, the majority disregards the Supreme Court's teaching
in Kubrick and misapplies this Court's decision in Barren.

A.
45

In United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259
(1979), the Supreme Court determined that an FTCA claim accrues when the

plaintiff knows both the existence of his injury and who has caused the injury.
Id. at 123. Kubrick established the general rule which the majority
acknowledgesthat the inquiry is an objective one requiring a determination
of whether a reasonable person should have known of the injury and who
caused it. See Barren by Barren v. United States, 839 F.2d 987, 990 (3d
Cir.1988) (discussing Supreme Court's analysis in Kubrick).
46

In Barren, the plaintiff, a veteran, suffered a service-related mental disability.

839 F.2d at 987. Although he sought treatment from the Veterans
Administration (VA) in 1973, he was advised that his mental infirmity was not
service-related and he was denied admission for in-patient treatment.
Recognizing that Barren needed treatment, his sister, Henrietta, and his family
sought alternate treatment in several private facilities in 1974. In October of
1977, the VA reversed its prior determination that Barren's mental condition
was not service-related and awarded him a partial disability, subsequently
increasing his disability to 100 percent. In September of 1979, Henrietta filed
two FTCA claims, one on behalf of her brother and the other in her own right,
seeking reimbursement for medical expenses she incurred on her brother's
behalf. She alleged that the VA had negligently failed to admit her brother for
in-patient treatment and that its psychiatric treatment was substandard.
Henrietta was not appointed her brother's guardian, however, until June of 1981.

47

The District Court dismissed Henrietta's claim as untimely. Barren's FTCA

claim, the District Court ruled, was viable because his diminished mental
capacity, caused by the VA's negligence, had prevented him from appreciating
the fact that he had been injured. After conducting a bench trial, the District
Court found that the VA was negligent and awarded damages to Barren.

48

The United States appealed. It did not dispute that its negligence had caused
Barren's inability to perceive his injury. Rather, the VA asserted that Barren's
claim was time-barred and that the District Court erred by considering Barren's
mental infirmity instead of applying Kubrick's objective standard. The Barren
majority viewed Barren's sister, even though she was not a guardian at the
relevant time, as an objectively reasonable person. 839 F.2d at 991. It
concluded that, in light of the fact that Henrietta and Barren's family sought
alternate treatment for Barren in 1974, a reasonable person should have known
at that time that the VA's care was inadequate and that Barren had been harmed
by the VA's refusal to admit him for treatment. The question was whether
Barren's mental infirmity was a factor in the determination of when his claim
accrued.

49

The Barren panel agreed that Kubrick's objective test generally controls the

determination of when a FTCA claim accrues. The panel also agreed that an
individual's mental infirmity is not a factor that may be considered under
Kubrick's objective test. 839 F.2d at 995 (Becker, J., dissenting) (noting
agreement with the majority that the "general rule" is that Kubrick's objective
test governs the determination of when a statute of limitations begins to run and
that tolling is not permitted "by reason of infancy or mental disability"). Even
though dissenting, Judge Becker vigorously argued for a narrow exception in
which the statute of limitations is tolled for "a plaintiff whose ability to
perceive that the government injured him was destroyed by the government's
negligent care until the plaintiff is affirmatively informed of the injury in a way
he can understand, or until a guardian is appointed." Id.
50

As support for this narrow exception, Judge Becker relied on two cases
presenting FTCA claims on behalf of adults who suffered from a coma induced
by the government's negligence, and who, because of their mental incapacity,
were unable to recognize that they had been injured. Id. at 997 (discussing
Clifford by Clifford v. United States, 738 F.2d 977 (8th Cir.1984), and
Washington v. United States, 769 F.2d 1436 (9th Cir.1985)). As a result of the
plaintiffs' inability to detect that they were injured, the FTCA claims in these
two coma cases were filed beyond the two year limitations period. Although
the government argued that the claims were time-barred, in each case the Court
determined that the claim did not accrue until either a guardian was appointed,
Clifford, 738 F.2d at 980, or the plaintiff died, Washington, 769 F.2d at 1439.
The Clifford Court pointed out that it was presented with more than just a
plaintiff suffering from a mental infirmity. 738 F.2d at 979-980. Rather, the
government's conduct caused both the mental infirmity and the inability to
perceive that he had sustained an injury. This extraordinary situation warranted
tolling the statute of limitations because tolling prevented the government from
profiting from its own wrong. Clifford, 738 F.2d at 980; Washington, 769 F.2d
at 1439 (following Clifford). Consistent with this analysis, Judge Becker
stressed that he advocated for the exception "not because of Barren's mental
incompetency simpliciter, but because of the government's conceded
participation in Barren's inability to perceive his injury." Id. at 1000.

51

Although the Barren majority found that Barren's injury, and the reason for his
inability to recognize the same, were a "compelling reason to excuse" Barren's
untimely claim, it concluded that "Kubrick makes clear[] the rule cannot be
subjectively applied." 839 F.2d at 992, 994 (Sloviter, J., concurring)
(acknowledging that "fairness requires that we relax the rule," but that "is an
issue for Congress"). To allow Barren to file later than an objectively
reasonable person, we explained, "would be tantamount to ruling that a
plaintiff's mental infirmity can extend the statute of limitations." Id. at 992, 994

(Sloviter, J., concurring) (finding that inclusion of plaintiff's mental disability

"interposes an impermissible subjective element into the reasonable person
standard"). Mindful that "limitations periods must be strictly construed,
especially those involving a waiver of sovereign immunity," the Barren
majority refused to embrace the exception urged by the dissent. Id. As a result,
irrespective of the fact that the government's negligence caused Barren's
inability to perceive that he had been injured, Barren's case was viewed and
resolved on the basis that it involved a mental infirmity, nothing more. Because
Barren's FTCA claim was filed after the two year limitations period, the
majority determined it was time-barred.
B.
52

In my view, Barren governs this case. The facts are nearly identical. 6 In
Barren, the FTCA action was filed on behalf of an adult who suffered from a
mental disability such that it prevented him from recognizing that he had been
injured at the hands of the government. Although Barren's mental infirmity was
substantial, he lacked a legal guardian at the time he was negligently treated.
His sister, however, was aware of the facts regarding his condition, his
unsuccessful attempts to obtain treatment from the VA, and that, as a result of
the VA's refusal to treat him, she and her family had to obtain treatment for her
brother elsewhere. These facts, the Barren majority concluded, were sufficient
to demonstrate that a reasonable person should have known in 1974 that Barren
was injured by the VA's substandard care.

53

Similarly, in this case, we are presented with an FTCA claim filed on behalf of
an adult, Henry Miller, who suffered from a mental disability that prevented
him from recognizing that he had been injured as a result of the government's
conduct. As in Barren, the disabled party's sister, here Vicki Miller, was not his
guardian at the time he suffered an injury as a result of the government's
negligence. Nor was she his guardian before this FTCA suit was filed, a fact
that also parallels Barren. Vicki Miller, who regularly visited her brother, was
aware of her brother's longstanding mental incapacity, his sudden physical
illness requiring hospitalization, the cause of his illness, and the course of his
medical treatment.

54

Because the facts in this case are nearly identical to those in Barren, I cannot
accede to the majority's view that Barren is not controlling because it
"addresses only the specific class of plaintiffs who were not only injured by the
government, but were also prevented from recognizing their injuries by the
government's malfeasance. . . ." Maj. op. at 274. Barren, contrary to the
majority's reading, treated this very class of plaintiffs in the same fashion as any

other plaintiff suffering from a mental infirmity which precluded that person
from recognizing that he had been injured at the hands of the government. See
Barren, 839 F.2d at 996 (Becker, J., dissenting) (emphasizing that the Barren
majority's decision "ignores the added special factor of the government's
participation in Barren's inability to comprehend his injury and its cause").
Indeed, Barren explicitly rejected the argument that the government's
connection with the plaintiff's inability to perceive his injury warranted an
exception to the application of Kubrick's objective test. In short, the
"difference" between Barren and the instant case is that in the former, the
circumstances favoring an exception to Kubrick were more compelling than
those before us. Still, this Court in Barren declared that Kubrick's objective
reasonable person test governed the timeliness of Barren's FTCA claim
regardless of the nature or cause of the plaintiff's mental incapacity.
55

Thus, in my view, the District Court correctly applied Kubrick's objective test,
as we did in Barren, without regard to the nature or cause of Henry Miller's
mental incapacity. Because a reasonable person, like Vicki Miller, was aware
of Henry's condition, his sudden illness and the cause of his demise more than
two years before the filing of this suit in 1999, Miller's FTCA survival action
should be time-barred.

56

The majority further misapplies Barren by reasoning that Vicki Miller's

knowledge was "irrelevant to a determination of when the statute of limitations
ran" because she was not his guardian. Maj. op. at 273. The Court in Barren
instructed that, in deciding when the limitations period begins to run, the
critical inquiry is what an objectively reasonable person should have known.
839 F.2d at 991. To that end, we viewed Barren's sister, Henrietta, as an
objectively reasonable person, not because she had been appointed Barren's
guardian years after the negligence occurred, but because she was familiar with
the circumstances surrounding her brother's treatment over the years.7 839 F.2d
at 991, and at 994 (Sloviter, J., concurring) (applying the reasonable person
standard and noting that the only distinction between plaintiff and his sister was
his mental incapacity). In fact, in viewing Barren's sister as an objectively
reasonable person, we attached little, if any significance, to the fact that she was
appointed Barren's guardian. We acknowledged that a guardian's knowledge
may be imputed to the incapacitated person, 839 F.2d at 991 n. 7, but we
rejected the argument that the lack of a guardian "could allow an incompetent
plaintiff to circumvent the statute of limitations." Id. Thus, Barren taught that
guardianship status is not determinative of whether the knowledge a person
possesses is on a par with that of the objectively reasonable person.
Restatement (Second) of Torts 283 comment c (1965). For that reason, I
cannot agree with the majority that the District Court erred by viewing Vicki

Miller as an objectively reasonable person for purposes of ascertaining when

Miller's FTCA survival action accrued.
57

The majority, however, finds the fact that Henry lacked a guardian to be of
critical importance. It reasons that Henry's situation is like that of the plaintiffs
in the two coma cases identified by Judge Becker in his dissent in Barren, 839
F.2d at 997 (discussing Clifford, 738 F.2d at 979-80, and Washington, 769 F.2d
at 1436). Because the statute of limitations was tolled for those plaintiffs, who
like Henry suffered from a mental disability and lacked guardians, the majority
concludes that the statute should also be tolled for Henry.

58

In my view, these two coma cases are distinguishable in several important

respects. In Clifford and Washington, as in Barren, the determination of when
the FTCA claims accrued involved more than just a consideration of the
plaintiffs' mental infirmity. Clifford, 738 F.2d at 980; Washington, 769 F.2d at
1439; see also Barren, 839 F.2d at 996 (Becker, J., dissenting) (explaining that
this case involved more than a mere mental incapacity). In these cases, there
was a mental infirmity caused by the government plus the fact that the mental
infirmity caused by the government's negligence prevented the plaintiff from
appreciating that he had been injured and by whom. In light of these
circumstances and the fact that these formerly competent adults had no one to
represent their interests, the Courts of Appeals for the Eighth and Ninth
Circuits concluded that their FTCA claims did not accrue until either a guardian
was appointed or the plaintiff died.8 See Barren, 839 F.2d at 997 (discussing
Clifford, 738 F.2d at 979-80, and Washington, 769 F.2d at 1438). Under those
extraordinary circumstances, tolling was appropriate, as the Clifford Court
explained, to prevent the government from profiting from its own wrong. 738
F.2d at 980.

59

Indeed, the Clifford Court pointed out that its holding was limited to the "rare
situation where the alleged malpractice itself (and not some preexisting mental
condition unconnected with the government) has prevented the claimant from
ever obtaining that knowledge." Id. Thus, tolling was not warranted simply
because these mentally incapacitated adults had no guardian.

60

Unlike the plaintiffs in Clifford and Washington, Henry Miller was not
competent at any point in time before the government's conduct caused his
Lithium to reach a toxic level. Henry was born severely retarded and attained
the mental age of a four year old. As a result, the government's negligent
conduct neither caused nor aggravated Henry's mental infirmity and Henry's
inability to recognize his injury was not attributable to the government's
conduct. Thus, application of Kubrick's objective test here would not allow the

government to profit from its own wrong. In short, we are not confronted with
the extraordinary circumstances present in Clifford and Washington, where the
government's conduct is the reason that the plaintiff was unable to perceive his
injury and timely initiate suit. For that reason, I do not believe that these two
cases support creating an exception in the case sub judice to the FTCA's statute
of limitations, which would allow tolling simply on the basis that this record
fails to establish that Henry had a guardian in the latter years of his life.
61

Indeed, in Barren, we explicitly rejected the concept that the lack of a guardian
for a mentally infirm adult plaintiff could toll the statute of limitations. We
observed that "[a] deliberate delay in the appointment of a guardian, under
plaintiff's view of the statute of limitations, could allow an incompetent
plaintiff to circumvent the statute of limitations." 839 F.2d at 991 n. 7. We
declared that "[t]here is no reason why such a delay in the appointment of a
guardian should work to the detriment of the government." Id. My research has
failed to unearth any case law holding that the absence of a guardian, without
more, warrants tolling the FTCA's statute of limitations for a mentally
incapacitated plaintiff.

62

In my view, this novel exception created by the majority in the absence of truly
extraordinary circumstances like those in the coma cases not only lacks any
legal support, it erodes the well-settled rule that the FTCA's two year
limitations period is not tolled by reason of mental incapacity. As a result, this
exception fails to heed the Supreme Court's admonition that the FTCA's
limitations period must be carefully construed to avoid "extend[ing] the waiver
[of sovereign immunity] beyond that which Congress intended." Kubrick, 444
U.S. at 118, 100 S.Ct. 352. Moreover, the majority's approach ignores the fact
that this Court's decision in Barren binds us until it is set aside by an en banc
panel of this court. See Third Cir. I.O.P. 9.1.

63

In sum, Kubrick must guide our analysis. The reasonable person is that
individual who is armed with the facts regarding the injuries sustained. 444
U.S. at 123, 100 S.Ct. 352. Barren confirms as much by observing that the
Supreme Court's concentration in Kubrick was on the objective aspects of the
test and "whether [the plaintiff] possessed the facts such that, as a reasonable
person, he should have known of" the injury and who caused it. Barren, 839
F.2d at 990; see also Restatement (Second) of Torts 12 (stating that "the
words `should know' . . . denote the fact that a person of reasonable prudence
and intelligence or of the superior intelligence of the actor would ascertain the
facts in question . . . or would govern his conduct upon the assumption that
such fact exists") (emphasis added). Because Vicki Miller was repeatedly
advised in October of 1995 that Henry's medical status was caused by a

reaction to his medications, and because these facts demonstrate that a

reasonable person should have known at that time that Henry had been injured
by the government, the District Court correctly concluded that the FTCA
survival action filed more than two years later was time-barred.9
II.
64

I also disagree with the majority's conclusion that Miller's state survival action
against Dr. Markowitz was timely filed. The majority reaches this conclusion,
in my view, by misreading Fine v. Checcio, 582 Pa. 253, 870 A.2d 850 (2005),
as authority to apply a subjective test to determine whether the statute of
limitations had run. By applying a subjective test, the majority takes account of
the fact that the decedent had the mental age of a four year old and concludes
that there is a genuine issue of fact as to whether the "decedent knew, or, more
accurately, was even capable of knowing, that he was injured and the cause of
his injury." Maj. op. at 276.

65

Fine, contrary to the majority's analysis, did not concern whether an objective
or subjective test is to be employed in the application of the discovery rule to a
statute of limitations dispute. Thus, the Fine Court did not abandon the
objective test used in determining whether the statute of limitations may be
tolled by Pennsylvania's discovery rule. Rather, Fine concerned two mentally
competent adults who did not discover until late in the two year limitations
period that they had been injured by the negligence of their treating medical
practitioners. The question before the Court was whether these plaintiffs had to
file their cause of action within the remaining time in the two-year limitations
period, or within two years of the discovery that they had been injured. The
Court held that

66

it is not relevant to the discovery rule application whether or not the prescribed
period has expired; the discovery rule applies to toll the statute of limitations in
any case where a party neither knows nor reasonably should have known of his
injury and its cause at the time his right to institute suit arises.

67

Id. at 859 (emphasis added). Indeed, by focusing on "where a party . . .

reasonably should have known," the Pennsylvania Supreme Court did not
change the course of Pennsylvania's discovery rule. Because application of the
objective test shows that a reasonable person would have known of the
decedent's injury and its cause more than two years before this suit was filed, I
cannot agree with the majority that Miller's state law survival action against Dr.
Markowitz was timely filed.

III.
68

The majority also concludes that Miller sufficiently pleaded wrongful death
claims against Dr. Markowitz and the United States by alleging nothing more
specific than negligence. I can discern no wrongful death claims, even liberally
construing the pleadings. The amended complaint, prepared and signed by
experienced counsel, clearly states on the first page that Miller was bringing
this action "pursuant to the Pennsylvania Survival Act, 42 Pa. Cons.Stat.
8302." Thereafter, she asserts six counts alleging that the negligence of various
persons caused the decedent to sustain various maladies and that he eventually
died. In my view, the mere reference to death in the amended complaint,
without more, is insufficient to put the defendants on notice that Miller was
asserting, in addition to her clearly articulated survival action, a wrongful death
claim under a separate statutory provision of Pennsylvania law, i.e., 42
Pa.Cons.Stat. 8301. See Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2
L.Ed.2d 80 (1957) (instructing that Rule 8 requires a statement of the claim
"that will give the defendant fair notice of what the plaintiff's claim is and the
grounds upon which it rests").

69

Indeed, my review of the record fails to reveal any action by Miller, either
before or after the District Court granted the motion for summary judgment,
that indicated that Miller was in fact prosecuting a wrongful death action. The
absence of a wrongful death claim would not have been surprising in light of
the fact that Miller did not qualify as one of the enumerated beneficiaries for
whom the statute created a right of action. See 42 Pa.Cons.Stat. 8301(b)
(stating that the "right of action created by this section shall exist only for the
benefit of the spouse, children or parents of the deceased"). Although
subsection (d) allows a personal representative, such as Miller, to bring a
wrongful death action, any recovery is limited to specific types of damage that
may have been incurred as a result of the injuries causing death. 42
Pa.Cons.Stat. 8301(d) (specifying that the personal representative "may bring
an action to recover damages for reasonable hospital, nursing, medical, funeral
expenses and expenses of administration necessitated by reason of injuries
causing death").

70

Thus, the District Court understandably addressed only the merits of Miller's
survival action. After the District Court entered judgment in favor of the United
States and Dr. Markowitz and closed the case, Miller still did not take any
action to notify the District Court that it had erred by dismissing her wrongful
death claim. Instead of filing a motion for reconsideration, which would have
provided the District Court with its first opportunity to address the viability of a
wrongful death claim, Miller filed this appeal alleging error by the District

Court. In light of the failure to plead a wrongful death action and the absence of
any conduct which would have notified the District Court that this separate
cause of action was at issue, I cannot subscribe to the majority's conclusion that
the District Court erred by conflating the two causes of actions. Indeed, in my
view, there were not two causes of action to conflate.
IV.
71

In sum, I submit that Miller's FTCA and state law survival actions were timebarred because the cause of action accrued more than two years before she filed
suit. Because Miller did not allege a wrongful death claim under the FTCA or
state law, remand is unnecessary. I would affirm the judgment of the District
Court.

Notes:
6

It is true that the nature of Henry's mental incapacity is distinguishable to a

degree from that suffered by Barren and that, as the majority notes, "Henry's
position most closely resembles a plaintiff who is a legal minor." Maj. op. at
274. This difference, however, is irrelevant for purposes of this appeal. Infancy
does not toll the statute, and Henry's similarity to that of a minor requires
application of the objective reasonable person testBarren, 839 F.2d at 995
(Becker, J., dissenting) (agreeing with the majority that the two year limitations
period for FTCA claims is not tolled by reason of one's infancy).

Restatement (Second) of Torts, 283 comment c (1965) (stating that the

"reasonable man is a fictitious person"); and comment d (explaining that the
"qualities of a reasonable man which are of importance differ with the various
situations . . . [and] are those which are necessary for theperception of the
circumstances existing at the time of his act or omission) (emphasis added).

The majority does not explicitly state when Miller's FTCA survival claim
accrued. Inasmuch as the majority explains that the coma cases are instructive
and that "Henry Miller presents a legal situation akin to those plaintiffs
inClifford and Washington," maj. op. at 275, and because the record does not
indicate that Henry had a guardian, I must assume that the majority determines
that Miller's claim accrued on Henry's date of death.

I also note that the record demonstrates that Vicki Miller appreciated the cause
of her brother's illness in December of 1995 when she wrote to Dr. Bongiorno, a
physician at a health care facility to which her brother had been transferred. In
her letter, she explained that, according to another physician, "Henry's condition

was brought about by an adverse reaction to drugs that were prescribed for him.
. . ." This evidence further supports the conclusion that a reasonable person
should have known by late 1995 that Henry's illness was attributable to the
government's medical care