McCoy v. U.S., 00-1375

• Decision Date: 13 November 2000
• Docket Number: No. 00-1375,00-1375
• Citation: 264 F.3d 792
• Parties: (8th Cir. 2001) STEVEN MCCOY, PLAINTIFF - APPELLANT, v. UNITED STATES OF AMERICA, DEFENDANT - APPELLEE. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

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264 F.3d 792 (8th Cir. 2001) STEVEN MCCOY, PLAINTIFF - APPELLANT,
v.
UNITED STATES OF AMERICA, DEFENDANT - APPELLEE. No. 00-1375 UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Submitted: November 13, 2000
Filed: August 31, 2001

Appeal from the United States District Court for the Western District of Missouri

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Before McMILLIAN, Richard S. Arnold, and Bye, Circuit Judges.

Bye, Circuit Judge.

Steven McCoy appeals from the grant of summary judgment to the government on his claim pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2672. We affirm.

I.

McCoy was convicted of drug conspiracy charges and incarcerated in various federal penal facilities from 1993 to April 16, 1999. Sometime in 1994, he was bitten on the right leg by a spider and he sought treatment at the infirmary. Several attempts to treat the infection failed. Eventually, doctors diagnosed peripheral vascular disease and attempted an arterial bypass. When this too failed, McCoy's right leg was amputated in 1995.

In June 1996, McCoy noticed lesions on the heel of his left foot. He again sought treatment, and again the treatment was unsuccessful. McCoy was transferred to several different medical facilities, and received treatment from several different doctors. While one doctor had recommended that he be evaluated for vascular disease, he did not receive treatment for vascular disease in the left leg until January 1997. A vascular bypass and other attempts to clear the artery failed. He developed gangrene in his left foot. On January 23, 1997, doctors at the United States Medical Center for federal prisoners in Springfield, Missouri amputated his left leg below the knee.

Subsequent to the amputation, the stump wound on McCoy's left leg did not heal. He underwent several more surgeries to close the wound, to attempt skin grafts, for a stump revision and for a bone resection. In March 1997, his doctors first began to suspect Buerger's disease;¹ however, they did not inform him of this suspicion until April 1997. He was not advised to quit smoking, which is the only known effective treatment for Buerger's disease. He continued to receive treatment for complications from the amputation until his release from the federal system in April 1999.

On February 1, 1999, McCoy filed an administrative claim with the Bureau of Prisons (BOP). He alleged malpractice which resulted in the amputation of his left leg.² McCoy's claim also states that

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"[s]ince that time he has suffered from repeated open sores in the stumps of both legs and he has undergone several procedures for debridement and revision of open areas on his stumps." The BOP rejected the claim as untimely, since the amputation occurred more than two years before McCoy filed his claim.

McCoy filed suit in federal district court on August 5, 1999, alleging negligent failure to diagnose and treat vascular disease resulting in the amputation of his left leg, past and ongoing pain and suffering, medical bills, permanent disability, loss of future wages, and loss of enjoyment of life. The government filed a motion for summary judgment, asserting that his claim was time-barred since he had filed his administrative claim more than two years after the amputation. McCoy argued that the "continuing treatment" doctrine tolled the limitations period. The district court originally accepted McCoy's argument, but later granted the government's motion for reconsideration and entered summary judgment for the government. McCoy now appeals the sole issue of whether the statute of limitations bars his action.

II.

An action may not be commenced in federal court under the FTCA unless the plaintiff has first presented his claim to the appropriate federal agency, and that claim has been denied. See 28 U.S.C. § 2675(a). Further, "[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...." 28 U.S.C. § 2401(b). A plaintiff's compliance with the two-year limitations period is a jurisdictional prerequisite, since the FTCA acts as a waiver of the federal government's sovereign immunity. See Walker v. United States, 176 F.3d 437, 438 (8th Cir. 1999).

The Supreme Court has held that an FTCA claim for medical malpractice accrues when a plaintiff becomes aware of his injury and its probable cause. United States v. Kubrick, 444 U.S. 111, 122 (1979). The district court found that McCoy's claim was barred by the statute of limitations in § 2401(b) because McCoy knew of the government's "breach of duty" as soon as his leg was amputated. The district court also determined that McCoy's claim of continuing treatment had "nothing to do with the claim." It is undisputed that McCoy filed his administrative claim more than two years after the amputation of his left leg.

McCoy argues that his claim is not time-barred. He argues that his administrative claim alleged more than mere negligence in the amputation of his leg, and included a claim of negligence in failing to diagnose and treat his Buerger's disease. Because the entire course of diagnosis and treatment including the post-amputation treatment of the stump wounds was negligent, he argues that the "continuous treatment" doctrine tolls the statute of limitations during that period. As a matter of policy, McCoy asserts that he should not have to file a claim against his doctors while he is being continuously treated by those same doctors.

The government asserts that McCoy's claim did not allege malpractice in the diagnosis and treatment of Buerger's disease, but only malpractice resulting in the loss of his leg, and that he is bound by the claims made in his administrative claim. Negligent treatment of his vascular disease thus cannot be raised in federal court, because McCoy did not raise it in his administrative claim and therefore did not exhaust his administrative remedies with regard to that claim. The government

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further argues that since McCoy did not allege continuing negligent treatment in his administrative claim, the continuous treatment doctrine will not apply. Because the date his leg was amputated was a date certain, and because there could be no continuing "treatment" to correct the error resulting in the loss of his leg, he was therefore required to file his administrative claim within two years of the amputation.

The continuous (or continuing) treatment doctrine will, in certain cases, toll the statute of limitations during the course of treatment. There are two variations of the continuing treatment doctrine in use in the circuits. We have previously examined both. See Wehrman v. United States, 830 F.2d 1480 (8th Cir. 1987); Reilly v. United States, 513 F.2d 147 (8th Cir. 1975).

In Wehrman, we described the doctrine as follows: "Under the continuing treatment doctrine, a plaintiff's cause of action does not accrue until the tortious continuing treatment ends, even if the plaintiff is aware of the facts constituting negligence before that time." Id. at 1483. The panel specifically noted that "'where the tortious conduct is of a continuous nature, the Kubrick rule does not apply.'" Id. at 1485 (quoting Gross v. United States, 676 F.2d 295, 300 (8th Cir. 1982)). Wehrman provides no assistance to McCoy because he failed to raise an issue of continuing negligent treatment in his administrative claim.³ A litigant may not base any part of his tort action against the United States on claims that were not first presented to the proper administrative agency. See Provancial v. United States, 454 F.2d 72, 74-75 (8th Cir. 1972). Because McCoy did not plead continuous negligent treatment, he has not tolled the statute under the Wehrman rule.

A different version of the continuing treatment doctrine has been adopted in other circuits, although not in ours. These circuits do not require that the entire course of treatment be negligent, but only that some portion of the ongoing treatment be negligent. The statute of...