David Johnston, Individually and as Representative of the Estate of Richard J. Johnston Gloria Johnston v. United States

BENAVIDES, Circuit Judge:

This is a wrongful death suit brought under the Federal Tort Claims Act (“FTCA”). 28 U.S.C. § 1346(b). The district court dismissed the lawsuit for lack of jurisdiction on the basis that the wrongful death action accrued prior to death and was therefore barred by the two-year FTCA statute of limitations. Because we hold as a matter of federal law that a wrongful death claim cannot accrue prior to death, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

On June 4, 1990, Richard Johnston had coronary artery bypass surgery at Brooke Army Medical Center. Dr. Greg…