Zulay Rendon, individually and as parent and natural guardian of Garcia, a minor v. Philadelphia Health Services

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 01-1668
ZULAY RENDON, individually and as parent
and natural guardian of Garcia, a minor,
Appellant
v.
PHILADELPHIA HEALTH SERVICES; EPISCOPAL HOPSITAL;
DR. HARSHAD; K. PATEL; LEHIGH AVENUE RADIOLOGY ASSOCIATES, INC.;
UNITED STATES OF AMERICA
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action No. 99-cv-05912)
District Judge: Honorable Edmund V. Ludwig
Argued May 23, 2002
BEFORE: MCKEE, STAPLETON and WALLACE,* Circuit Judges
(Opinion filed June 24, 2002 )
* Honorable J. Clifford Wallace, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
Joan E. London
Kozloff Stoudt
2640 Westview Drive
P. O. Box 6286
Wyomissing, PA 19610
John E. Muir (Argued)
Roland & Schlegel
627 North Fourth Street
P. O. Box 902
Reading, PA 19603-0902
Attorneys for Appellant
Michael L. Levy
United States Attorney
James G. Sheehan
Asst. United States Attorney

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Chief, Civil Division
Annetta F. Givhan (Argued)
Asst. United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106-1250
Attorneys for Appellee
United States of America
Nancy K. Raynor
O’Brien & Ryan
Suite 300 Hickory Pointe
Plymouth Meeting, PA 19462
Attorney for Appellee
Episcopal Hospital James L. Moore, Jr.
Kent & McBride
18th & Arch Streets
Two Logan Square, Suite 600
Philadelphia, PA 19103
Attorney for Appellees
K. Patel and
Lehigh Avenue Radiology Associates, Inc.
OPINION OF THE COURT
STAPLETON, Circuit Judge:
When the District Court granted summary judgment to the defendants in
this medical malpractice case brought under the Federal Tort Claims Act, it did not have
the benefit of our deicsion in Hughes v. United States, 263 F.3d 272 (3d Cir. 2001).
That FTCA case, like this one, involved a malpractice claim based on allegations that the
defendants caused the plaintiff’s injuries by negligently failing to diagnose and/or treat a
condition that needed medical attention.
We held for the first time in Hughes that "the FTCA’s statute of limitations
is not jurisdictional" and that "[f]ailure to comply with the statute is an affirmative
defense which the defendant has the burden of establishing." Id. at 278. The District
Court in this case understandably treated the limitations issue as a jurisdictional one with
the burden of proof on the plaintiff, and this approach may well have influenced its
ultimate conclusions. Moreover, Hughes also provides new guidance on the application
of the Supreme Court’s decision in United States v. Kubrick, 444 U.S. 111 (1979) to a
situation in which the alleged malpractice is a failure to diagnose and/or treat. Id. at 276-
78.
We will vacate the judgment of the District Court and remand to provide an
opportunity for the District Court to consider the issues here raised in light of the
development of the relevant law in Hughes, 263 F.3d 272 (3d Cir. 2001). ______________________
TO THE CLERK:
Please file the foregoing Not Precedential opinion.
/s/Walter K. Stapleton

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____________________________________
Circuit Judg

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