When Does the FTCA Clock Start After a Birth Injury at a VA or Federal Hospital?

Last Updated: October 20, 2026

When a child is injured at birth in a VA or federal medical setting, the two-year FTCA clock does not start at delivery by default. It starts when the claim "accrues," and under United States v. Kubrick, 444 U.S. 111 (1979), a claim accrues when the plaintiff knows both the existence and the cause of the injury, not necessarily when anyone knows the care was negligent. In birth-injury cases, the injury and its cause can come into focus months or years apart, which is why the date a family treats as "the day we found out" needs to be examined early and conservatively.

When Does the FTCA Clock Start in a Birth-Injury Case?

The FTCA clock is set by 28 U.S.C. § 2401(b), which says a tort claim against the United States "shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues" or unless suit is begun within six months after the agency mails its final denial (28 U.S.C. § 2401). The statute does not define "accrues." The Supreme Court did, in Kubrick: a claim accrues "when the plaintiff knows both the existence and the cause of his injury," and not at a later time when he also knows that the acts inflicting the injury may constitute medical malpractice (444 U.S. 111).

That rule has two halves. The first protects a family from a clock that runs before anyone could know an injury exists. The second is less forgiving: once the injury and its probable cause are known, the family cannot wait for a doctor or lawyer to say "malpractice." The Court reasoned that a plaintiff armed with the facts about the harm can protect themselves by seeking advice in the medical and legal community, and must decide within the limitations period whether to sue.

Kubrick was a veteran's claim about a VA hospital. The injured person there was an adult patient. A newborn cannot report symptoms, and a parent usually learns about brain injury through a series of clinical conversations, which makes the "existence and cause" question harder to answer for a birth injury than for most surgical errors.

Why Is Accrual Harder to Pin Down for a Birth Injury?

Because the harm is often a process, not an event. The Centers for Disease Control and Prevention explains that cerebral palsy is caused by abnormal development of the brain or damage to the developing brain, and that the abnormal development or damage "can happen before birth, during birth, within a month after birth, or during the first years of a child's life" (CDC). The CDC also describes diagnosis as a multi-step process that begins with developmental monitoring, moves to developmental screening when concerns arise, and then to referrals for developmental and medical evaluations.

For a family, that sequence can look like this:

1. Delivery. The newborn is transferred to a neonatal unit or an outside hospital. A parent is told it was a difficult delivery.
2. Early concern. A clinician mentions a low score, a seizure, or a need for monitoring. The cause is not explained.
3. Developmental milestones. Months later, a child misses motor milestones and is referred for evaluation.
4. Diagnosis. A diagnosis such as cerebral palsy is made, and a physician may or may not connect it to events in labor and delivery.

Each step is a candidate for the moment a court says the family knew "the existence and the cause" of the injury. There is no single answer that fits every family, and we are not aware of any rule that makes the date of the final diagnosis the automatic start of the clock. What Kubrick directs courts to ask is what the plaintiff knew, and about what, at each point.

Does the Child's Age or Legal Disability Extend the Deadline?

Do not assume so. Subsection (a) of 28 U.S.C. § 2401, which governs civil actions against the United States generally, contains this sentence: "The action of any person under legal disability or beyond the seas at the time the claim accrues may be commenced within three years after the disability ceases." Subsection (b), the FTCA presentment provision quoted above, contains no comparable sentence in its text.

Whether and how any tolling doctrine applies to a child's FTCA claim is a question courts decide on the specific facts and the law of the circuit where suit would be filed, and a family should never plan around it. The Supreme Court has held that the FTCA's time limits are "just time limits, nothing more" and can be equitably tolled in some cases (United States v. Kwai Fun Wong, 575 U.S. 402 (2015)), but later required a litigant to show both diligence and an extraordinary circumstance, and rejected a claim built on the litigant's own mistaken belief (Menominee Indian Tribe of Wisconsin v. United States, 577 U.S. 250 (2016)). Our article on missing the two-year FTCA deadline walks through that test.

Practical rule: treat the earliest date a parent was told something was wrong with the baby as the date the clock may have started, and file within two years of it.

What Must Be Filed Before Suing?

Before any lawsuit, the claim has to go to the agency. Under 28 U.S.C. § 2675(a), an action cannot be instituted "unless the claimant shall have first presented the claim to the appropriate Federal agency" and the claim has been finally denied in writing, or the agency has failed to make final disposition within six months, which the claimant may treat as a denial (28 U.S.C. § 2675). The standard vehicle is Standard Form 95, and the sequence that follows is laid out in our step-by-step FTCA claim guide.

Two points matter for timing. First, it is the written presentment to the right agency, within two years of accrual, that stops the § 2401(b) clock for the first deadline. Second, the later six-month window to sue runs from the agency's mailed denial, so a family that presents a claim on time still needs to calendar the denial date. For a claim presented to the wrong agency, see our explanation of wrong-agency presentment.

Which Birth-Injury Claims Fall Under the FTCA?

Claims against the United States for personal injury caused by the negligent act or omission of a federal employee acting within the scope of employment are within the FTCA's jurisdictional grant, 28 U.S.C. § 1346(b)(1). That includes care delivered by VA clinicians. Whether a particular provider counts as a federal employee or an independent contractor is a separate question that can change the defendant and the deadline, which our article on the Brian Tally Act and VA contractor status explains.

If the delivery took place at a military hospital rather than a VA facility, a second threshold question arises: whether the Feres doctrine affects the claim, which depends on the status of the person bringing it. That is a distinct analysis, covered in our Feres doctrine explainer and our discussion of how courts decide whether an injury is incident to service. Do not assume either that Feres bars a child's claim or that it does not; ask before the deadline, not after.

What Should a Family Do First?

1. Write down the timeline now. Record the date of delivery, each conversation in which a clinician mentioned a problem, and the date a diagnosis was given. These dates are the raw material for the accrual question.
2. Get the complete delivery and neonatal records. The records process is covered in our guides on requesting VA medical records and obtaining the audit trail and full records a general request misses.
3. Do not wait for someone to use the word "malpractice." Under Kubrick, that is not what starts the clock.
4. Calendar the earliest plausible accrual date plus two years. Use the conservative date, not the favorable one.
5. Have the timeline reviewed before the deadline approaches. Our companion guide on placental abruption birth injuries covers one of the clinical scenarios that frequently leads to these claims.

Frequently Asked Questions

When does the FTCA deadline start for a birth injury? When the claim accrues. Under Kubrick, a claim accrues when the plaintiff knows both the existence and the cause of the injury, not when the plaintiff learns the care may have been malpractice (28 U.S.C. § 2401(b); 444 U.S. 111).

Does the clock start on the date of birth? Not automatically. The accrual date turns on what the family knew about the injury and its cause, which in a birth-injury case may be well after delivery. Because courts decide this on the facts, the safer approach is to use the earliest date a parent was told something was wrong.

Does the two-year deadline pause while a child is a minor? Do not rely on it. The disability provision in 28 U.S.C. § 2401(a) is not repeated in the text of § 2401(b), and whether any tolling doctrine applies is decided by the courts case by case.

Do I have to file with the agency before suing? Yes. 28 U.S.C. § 2675(a) requires that the claim first be presented to the appropriate federal agency and finally denied, or that six months pass without a final disposition.

What if the delivery was at a military hospital instead of a VA hospital? The FTCA analysis is similar, but the Feres doctrine may also apply depending on who is bringing the claim. See our Feres explainer.

Related Articles

• Understanding Birth Injuries Caused by Placental Abruption →: the clinical side of one common scenario
• The FTCA Statute of Limitations →: the two-year and six-month rules
• Missed the FTCA's 2-Year Deadline? →: when equitable tolling may apply
• Standard Form 95 Explained →: what presentment requires
• How to Get Your VA Medical Records →: the records process
• Veterans Medical Malpractice & the FTCA →: our national FTCA practice overview
• Birth injury cases →: injury overview
• Browse by state →: state-by-state FTCA information

The information provided on this website does not, and is not intended to, constitute legal advice. All information, content, and materials available on this site are for general informational purposes only. Readers should contact their attorney to obtain advice concerning any legal matter.

The author, EJ Archuleta, J.D., is a 13-year federal practice lawyer. He is licensed to practice law in the courts of the State of Texas, is a member of the State Bar of Texas, and is admitted to the United States District Court for the Western District of Texas. He has helped hundreds of military service members, veterans, and their families receive compensation for injuries and wrongful death caused by the Department of Veterans Affairs.