Unpublished Disposition, 898 F.2d 157 (9th Cir. 1990)

MEMORANDUM^** 

More than two years after the stillbirth of their child, appellants Dale and Carleen Vandersloot presented an administrative claim pursuant to the Federal Tort Claims Act (FTCA) against the United States of America, the U.S. Public Health Service and the Public Health Service of Crow Indian Hospital. The district court granted the defendants' motion to dismiss for lack of jurisdiction, and we affirm.

The FTCA provides a tort claim against the federal government must be presented to the appropriate agency "within two years after such claim accrues." 28 U.S.C. § 2401(b). A medical malpractice claim under the FTCA accrues when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the fact of injury and its cause. United States v. Kubrick, 444 U.S. 111, 122 (1979); Herrera-Diaz v. United States, 845 F.2d 1534, 1536-37 (9th Cir. 1988); Davis v. United States, 642 F.2d 328, 331 (9th Cir. 1981). Knowledge of cause is knowledge of immediate physical cause, not knowledge of culpability. Kubrick, 444 U.S. at 123; Gibson v. United States, 781 F.2d 1334, 1344 (9th Cir. 1986).

Once the Vandersloot's baby was stillborn, they definitely knew they had suffered an injury, and they knew its cause, an umbilical cord prolapse. The later development of a theory that the earlier chemical termination of labor when the fetus was full-term increased the risk of complications in delivery is irrelevant to the determination of when the claim accrued.

Rosales v. United States, 824 F.2d 799 (9th Cir. 1987), Raddatz v. United States, 750 F.2d 791 (9th Cir. 1984), and Augustine v. United States, 704 F.2d 1074 (9th Cir. 1983), cited by appellants, do not support a contrary result. Each of these cases involved the failure to diagnose a preexisting medical condition such as brain damage, an infection or cancer. The plaintiffs in those cases did not know their condition was abnormal or they had in fact suffered an injury.

There was no dispute when the stillbirth occurred, and plaintiffs knew the immediate physical cause was an umbilical cord prolapse. The district court needed no other facts to decide whether the case had been timely filed. Therefore, the district court properly dismissed the claim without an evidentiary hearing.

AFFIRMED.