FTCA Administrative “Relation Back” Requires the Same Chain of Events; Continuous-Treatment Tolling Remains Unadopted in the Fifth Circuit

Introduction

In Levias v. United States (5th Cir. Dec. 30, 2025) (per curiam) (unpublished), Scottie Levias and Ursella Levias sued the United States under the Federal Tort Claims Act (FTCA), alleging malpractice at the Michael E. DeBakey VA Medical Center in Houston. The core procedural question was not medical causation but administrative exhaustion and timeliness: whether the Leviases presented (i.e., exhausted) their renal-failure malpractice theory to the Department of Veterans Affairs (VA) within the FTCA’s two-year administrative limitations period, and if not, whether that theory could be “saved” either (1) by relating back to an earlier administrative claim about a different injury, or (2) via the continuous-treatment doctrine.

The Leviases filed an administrative claim in January 2021 focused on delayed spinal surgery after a May 2018 MRI showing cauda-equina syndrome, alleging resulting permanent injuries (including bowel and bladder incontinence). After the VA denied that claim in January 2023, they sought reconsideration and filed a July 12, 2023 “amended” administrative claim shifting to a renal-failure theory (long-term mismanagement of kidney disease and prescription of nephrotoxic NSAIDs leading to total renal failure). The VA denied the renal claim as time-barred, and the district court dismissed the subsequent FTCA suit.

Summary of the Opinion

The Fifth Circuit affirmed dismissal. Assuming the most plaintiff-favorable accrual date offered at oral argument—April 2021, when Ursella told the VA she believed NSAIDs were worsening Scottie’s kidney function—the court held the renal-failure administrative claim presented in July 2023 fell outside the FTCA’s two-year limitations period in 28 U.S.C. § 2401(b). The court further held:

• The July 2023 renal-failure theory did not relate back to the January 2021 spinal-compression administrative claim because the original notice did not set forth facts that would reasonably prompt the VA to investigate kidney injury as part of the same sequence of events.
• The Fifth Circuit has not decided whether to adopt the continuous-treatment doctrine for FTCA limitations purposes; and even if it applied, it would not toll limitations where the claimant knew of the factual predicate before treatment ended.

Analysis

Precedents Cited

1) The FTCA notice standard and constructive notice

The opinion framed relation back through the Fifth Circuit’s established notice principle: an FTCA administrative claim satisfies its purpose if it provides facts sufficient to allow the government to investigate and negotiate settlement. The court quoted Pleasant v. U.S. ex rel. Overton Brooks Veterans Admin. Hosp., 764 F.3d 445, 449 (5th Cir. 2014), for the proposition that the notice requirement is served when the claim brings to the government’s attention facts sufficient to “thoroughly” investigate potential liability and conduct settlement negotiations.

2) Relation back is limited to theories arising from the same factual sequence

The court relied heavily on Rise v. United States, 630 F.2d 1068 (5th Cir. 1980), and Frantz v. United States, 29 F.3d 222 (5th Cir. 1994), to define the boundary of constructive notice. While Rise v. United States includes language that an agency investigation “should have revealed” other theories, the panel emphasized that Fifth Circuit doctrine does not require open-ended investigation into any possible malpractice suggested by the broader medical record.

• In Rise v. United States, the new theory (negligent referral/transfer and failure to supervise treatment at a civilian hospital) related back because the transfer was expressly mentioned and was “part of the chain of events” culminating in death—i.e., it sat within the same factual continuum as negligent diagnosis/treatment.
• In Frantz v. United States, an informed-consent claim related back to a negligence-in-surgery claim because it arose from the same surgical event; investigation into the surgery would reasonably encompass whether consent was properly obtained for the procedure and its risks.

The limiting counterexample was Portillo v. United States, No. 93-8275, 1994 WL 395174 (5th Cir. 1994) (per curiam) (unpublished). There, the original claim (post-operative monitoring failures after ankle surgery causing urological injuries) did not place the government on notice of a distinct anesthesia-negligence theory allegedly causing spinal injury and diabetes. The panel treated Portillo v. United States as illustrating that merely sharing a hospital encounter (or tangential overlap) is insufficient; the new theory must follow from the same complained-of sequence of events.

3) Accrual and the continuous-treatment doctrine

The panel placed accrual within the familiar FTCA framework tied to knowledge of injury and cause. It discussed Beech v. United States, 345 F.2d 872 (5th Cir. 1965), but noted later Fifth Circuit readings align with United States v. Kubrick, 444 U.S. 111 (1979), i.e., accrual turns on when the plaintiff knows or should know of the injury and its cause, not when treatment ends.

Citing In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 191 (5th Cir. 2011), the court reiterated that “claim accrual under the FTCA is based on awareness of the injury, not when the alleged conduct ends.” (It noted that case was abrogated on other grounds by United States v. Wong, 575 U.S. 402 (2015), without altering the accrual point relied upon here.)

For the continuous-treatment doctrine itself, the panel referenced the doctrine as stated in Ulrich v. Veterans Admin. Hosp., 853 F.2d 1078, 1080 (2d Cir. 1988), and also noted district-court recognition that the Fifth Circuit has not yet addressed adoption, citing Madrid v. United States, No. 3:22-cv-0982, 2023 WL 8435244 (N.D. Tex. Dec. 5, 2023), appeal dismissed, No. 24-10568, 2024 WL 5265307 (5th Cir. July 12, 2024).

Even if the doctrine existed in the circuit, the panel observed other circuits’ limits: Outman v. United States, 890 F.2d 1050, 1053 (9th Cir. 1989), and McCoy v. United States, 264 F.3d 792, 795 (8th Cir. 2001), both rejecting tolling where the plaintiff already knew of the negligence predicate before treatment ended.

Legal Reasoning

1) Timeliness and accrual under 28 U.S.C. § 2401(b)

The court treated July 12, 2023 as the presentation date for the renal-failure claim. Because 28 U.S.C. § 2401(b) requires presentment “within two years after [the claim] accrues,” the dispositive inquiry became whether accrual occurred on or after July 12, 2021.

The panel assumed—without deciding—the latest accrual date suggested in the record: April 2021, when Ursella voiced concern to the VA that NSAIDs were worsening kidney function. On that assumption, the two-year period expired in April 2023, rendering the July 2023 presentment untimely.

2) Why relation back failed

The Leviases attempted to tie renal-failure malpractice to the earlier spinal-compression administrative claim by pointing to overlapping timeframe, the same facility, and shared urinary symptoms (incontinence). The court rejected that framing as too expansive.

Applying Rise v. United States and Frantz v. United States as “same chain of events” cases—and Portillo v. United States as the limiting case—the court held that the original January 2021 claim gave notice of a specific sequence: MRI findings, delayed lumbar decompression surgery, and certain neurologic/orthopedic sequelae. Kidney injury from NSAID prescribing and renal-disease management did not follow from that alleged sequence; at most, it was “orthogonal,” i.e., an incidental issue potentially discoverable in a broad medical-record review, which the FTCA notice regime does not compel.

In short, the panel treated relation back as turning on whether the initial administrative claim’s facts would reasonably direct an agency investigator toward the later theory—not whether the later theory might be unearthed by exhaustive chart review.

3) Why continuous-treatment could not save the claim

The Leviases argued the VA continued prescribing NSAIDs into 2024, seeking to toll limitations. The panel gave two independent reasons for rejecting that attempt:

• The Fifth Circuit has not decided whether to adopt the continuous-treatment doctrine for FTCA cases, and Fifth Circuit authority emphasizes United States v. Kubrick-style accrual based on knowledge.
• Even where recognized, other circuits (as in Outman v. United States and McCoy v. United States) refuse to toll when the claimant already knows the factual predicate; here, the assumed accrual date (April 2021) reflected such knowledge.

Impact

Although unpublished, the decision reinforces several practical and doctrinal points for FTCA litigants in the Fifth Circuit:

• Administrative presentment must be theory-complete (or at least fact-complete) within two years. Claimants cannot assume an agency must comb the entire medical record for unrelated or only loosely related malpractice theories.
• “Relation back” is constrained by factual continuity. The key question is whether the later theory arises from the same sequence of events described in the original administrative claim—not whether the claims share a provider, timeframe, or a symptom that can have multiple etiologies.
• Continuous-treatment tolling remains uncertain in the Fifth Circuit. Even if adopted, this opinion signals that knowledge-based accrual (per United States v. Kubrick) will significantly limit any tolling argument where plaintiffs recognized causation earlier.

Complex Concepts Simplified

• FTCA administrative exhaustion (28 U.S.C. § 2675(a)): Before suing the United States for torts (including medical malpractice), you must first file a claim with the responsible federal agency so it can investigate and possibly settle.
• Accrual and the two-year clock (28 U.S.C. § 2401(b)): The claim must be presented to the agency within two years of when the claim “accrues,” generally when the claimant knows (or should know) of the injury and its cause.
• Relation back (in the FTCA administrative context): A later “amended” administrative claim can sometimes be treated as part of the earlier claim if the earlier claim’s facts would have led a reasonable investigation to the later theory—because the later theory is part of the same factual chain.
• Constructive notice: The government can be treated as “on notice” of a theory not explicitly stated if it naturally emerges from the facts provided, but not merely because it exists somewhere in the claimant’s broader medical history.
• Continuous-treatment doctrine: In some jurisdictions, limitations may be tolled while a patient continues treatment with the same provider for the same injury; this opinion underscores that the Fifth Circuit has not adopted the doctrine and that many courts do not toll once the patient already knows the key facts.

Conclusion

Levias v. United States affirms a disciplined view of FTCA administrative notice: a claimant cannot resurrect an untimely, newly framed malpractice theory by labeling it an “amendment” unless the original administrative claim’s facts would reasonably have revealed that theory as part of the same chain of events. The decision also underscores that, in the Fifth Circuit, knowledge-driven accrual under United States v. Kubrick remains the anchor, and continuous-treatment tolling—unadopted and, in any event, limited where the claimant already knows the claim’s factual predicate—will rarely rescue late-presented theories.