Michigan  Wrongful Death Statute And Tort Claims

The Federal Tort Claims Act (FTCA) effects a waiver of sovereign immunity for tort claims against the United States, with certain limitations and exceptions, where a private individual would be liable under state law. 28 U.S.C. 1346(b), 2674. Under Section 2401(b) of the FTCA, an otherwise permissible claim against the United States is barred unless it is presented in writing to the appropriate federal agency "within two years after such claim accrues." 28 U.S.C. 2401(b). The issue in this case is as follows:

Whether, under Section 2401(b), a "wrongful death" claim accrues when the injury resulting in death is known or when death occurs, where the applicable state law authorizes only survival claims for the underlying injuries causing the decedent's death, and not an independent cause of action that third parties can assert for the wrongful death itself.

The court of appeals affirmed. Pet. App. 1a-18a. Citing Kubrick, the court of appeals concluded that "a negligence or medical malpractice claim accrues within the meaning of § 2401(b) when a plaintiff knows of both the existence and the cause of his injury." Id. at 6a. Petitioner could not, the court stated, treat Gorjup's death as the relevant injury, because Michigan law did not recognize an independent cause of action for his death; under Michigan law, petitioner could assert only Gorjup's claim for "the underlying wrong which caused the death." Id. at 8a-9a. Thus, the court held, "as Michigan law does not create an independent cause of action for wrongful death, and as the record in this case is clear that on October 21, 1998, both the existence of Gorjup's injury and its alleged cause were known," petitioner's claim "accrued on the date of injury and not at the later date of death." Id. at 9a.

In light of these principles, the court of appeals in this case correctly held that petitioner's survival claim is barred under Section 2401(b) of the FTCA. The Michigan Supreme Court's precedents establish that claims for personal injuries resulting in death must proceed under the State's Wrongful Death Act. Hardy, 416 N.W.2d at 304. That Act authorizes a decedent's personal representative only to "stand[] in the [dece dent's] shoes" to assert a claim for the underlying tortious injury that resulted in death. Xu v. Gay, 668 N.W.2d 166, 174 (Mich. Ct. App. 2003) (internal quota tion marks and citation omitted). Petitioner's claim under the Michigan Wrongful Death Act is thus not an independent cause of action arising from Gorjup's death, but a survival claim, specifically the tort action Gorjup could have asserted had he not died.

Petitioner errs in contending (Pet. 5-7) that the court of appeals should not have applied this Court's decision in Kubrick, which considered when medical malpractice and negligence claims accrue, to the wrong ful death claim at issue here. This Court acknowledged the broad application of its decision in Kubrick when it observed that the rule that "a tort claim accrues at the time of the plaintiff's injury" is not limited in application but is "the general rule under the [FTCA]." 444 U.S. at 120 (emphasis added). In any event, because Michigan law operates solely to transfer a pre-existing right of action from the decedent to the decedent's estate and the decedent's claim in this case is a medical malpractice action, Kubrick would define the accrual rule applicable here even if its precedential value were limited to medical malpractice claims.

Petitioner is the personal representative of the estate of James Gorjup, who died after receiving care at a government-run medical facility. Petitioner contends that on October 21, 1998, while Gorjup was a resident at a Department of Veterans Affairs Medical Center in Michigan, he fell and fractured his hip. Pet. App. 3a. Although Gorjup underwent surgery to repair the fracture, his condition deteriorated, and he died on November 23, 1998.

The court rejected the argument that petitioner's claim necessarily accrued on the date of Gorjup's death. Pet. App. 23a-25a. The Michigan Wrongful Death Act, the court stated, governed petitioner's claim, and it did "not create a new cause of action" for wrongful death. Id. at 25a. It merely "provide[d] for the survival of [any] previously existing cause of action" that the decedent could have asserted but for death. Ibid. (emphasis added) (citing Hardy v. Maxheimer, 416 N.W.2d 299, 307 n.17 (Mich. 1987)). Thus, the court con cluded that petitioner's "action must be characterized by the underlying claim for negligence or malpractice" "in determining the relevant limitations period."

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