304 F.2d 234 (5th Cir. 1962), 19354, Quinton v. United States

Docket Nº:19354.
Citation:304 F.2d 234
Party Name:Lee QUINTON, Appellant, v. UNITED STATES of America, Appellee.
Case Date:June 14, 1962
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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304 F.2d 234 (5th Cir. 1962)

Lee QUINTON, Appellant,

v.

UNITED STATES of America, Appellee.

No. 19354.

United States Court of Appeals, fifth Circuit.

June 14, 1962

         Edward B. Winn, Dallas, Tex., Lane, Savage, Counts & Winn, Dallas, Tex., of counsel, for appellant.

         Joseph McElroy, Jr., Asst. U.S. Atty., Dallas, Tex., Jerome I. Levenson, Atty., Dept. of Justice, Washington, D.C., William H. Orrick, Jr., Asst. Atty. Gen., Barefoot Sanders, U.S. Atty., John G. Laughlin, Attorney, Department of Justice, Washington, D.C., for appellee.

         Before TUTTLE, Chief Judge, and HUTCHESON and WISDOM, Circuit Judges.

         TUTTLE, Chief Judge.

         This is a tort action against the United States brought pursuant to 28 U.S.C. § 1346(b). It is based on the alleged malpractice of certain Government employees in treating the plaintiff's wife at an Air Force base hospital in May, 1956. The District Court dismissed the complaint on the ground that it was barred

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by the two year statute of limitations contained in 28 U.S.C. § 2401(b).

         Under Section 2401(b), a tort claim against the United States must be asserted within two years after the 'claim accrues.' The primary question in this appeal is whether state or federal law determines when a 'claim accrues' under that section. After resolving this choice of law problem, we must then decide whether, under the applicable law, a claim for malpractice accrued when the alleged negligent acts took place or when the injured party discovered or, in the exercise of reasonable care should have discovered, the existence of these alleged negligent acts.

         The District Court held that state law controlled as to when the statute of limitations commenced to run, and it dismissed the complaint on the ground that, under the applicable state law, the plaintiff's claim against the Government accrued more than two years prior to the filing of suit.

          We have concluded that the District Court erred in so holding. We hold (1) that federal law fixes the date upon which the Tort Claims period of limitations commences to run and (2) that, under federal law, a malpractice action against the United States can be maintained within two years after the claimant discovered, or in the exercise of reasonable diligence should have discovered, the existence of the acts of malpractice upon which his claim is based.

         The facts giving rise to this litigation are simple and undisputed. In 1956, the appellant was serving in the United States Air Force and was stationed at Larson Air Force Base in the State of Washington. On May 17, 1956, while appellant's wife was under base hospital care, she was given three transfusions of RH Positive blood, although her correct blood type was RH Negative. It appears that the appellant and his wife did not learn of and, in the exercise of reasonable care, could not have learned of, this error until June 1959, during the wife's pregnancy. The complaint, which was filed on August 29, 1960, alleged that, as a 'direct result of the transfusions of incompatible blood,' appellant's wife gave birth to a stillborn child on December 17, 1959, and that she cannot safely bear other children without, in all probability, their being stillborn, blind, or mentally defective.

         The Government moved to dismiss the claim on the ground that the suit was filed more than two years after the claim accrued and was therefore barred under the terms of 28 U.S.C. § 2401(b). By order dated August 29, 1961, the District Court granted the Government's motion. In its opinion, the District Court noted that, since the alleged negligent act which caused the injury, i.e., the blood transfusions, took place in the State of Washington, Washington law controlled on the issue of when the claim accrued. The Court's decision on this issue was based primarily on the fact that, under the Tort Claims Act, the United States is liable in tort only 'under circumstances where * * * a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.' 28 U.S.C. §§ 1346(b) and 2674. Having decided that the law of Washington controlled the issue, the District Court then found that, under Washington law, appellant's claim accrued when the Government's alleged negligence took place on May 17, 1956. The Court therefore held that the action was barred by 28 U.S.C. § 2401(b).

         What law determines when a claim accrues under § 2401(b)?

         It must be conceded that the Government's argument on this point has the merit of logical consistency. Undeniably if state law controls as to whether a claim has accrued against the Government for the purpose of determining whether the claimant can sue under the Tort Claims Act in the first instance, it is reasonable to contend that state law should likewise govern as to when the claim accrued for the purpose of applying the two year period of limitations contained in Section 2401(b). But, however

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much this view might meet with a logician's approval, we think there are compelling reasons for holding otherwise.

         By enacting what is now Section 2401(b), Congress clearly and unmistakably manifested its intention to have a single statute of limitations govern all tort claims asserted against the United States under the Tort Claims Act. While it was left to an analysis of state law to determine whether the Government was liable to the claimant in the first instance, Section 2401(b) was designed to insure that, once the Government's liability under the applicable state law was established, the FTCA claimant would have a fixed period of time within which to institute suit on his claim, regardless of where the acts giving rise to the liability occurred.

         It is readily apparent, however, that the proposition urged by the Government and adopted by the District Court would seriously frustrate this clear Congressional policy underlying Section 2401(b). Obviously, if the various states' rules could severally determine when a claim accrued against the Government under Section 2401(b), the uniformity which cOngress sought by enacting that section would be, for all practical purposes, a goal impossible of attainment. Differing state rules as to when a particular tort claim accrues would necessarily produce diverse decisions as to the effect of Section 2401(b). The mere alteration by a state of its rule as to the accrual of a particular claim would alter Section 2401(b) just as effectively as if Congress itself had formally amended that section. Thus, acceptance of the Government's view would permit the states to do indirectly what Congress clearly forbids them to do directly by increasing or decreasing their statutes of limitations on particular claims; and, contrary to the express purpose of Section 2401(b), claimants under the Tort Claims Act would have varying periods within which to bring suit against the Government depending solely on where their claims arose.

         Interestingly enough, the field of malpractice claims presents a striking illustration of the ill effects which would be produced were we to accept the Government's theory. A majority of states adhere to the rule that a claim for malpractice accrues at the time of the wrongful act which constitutes the malpractice. 1 In many of these states, however, exceptions have been engrafted upon this general rule. Thus, a number of states hold that, where the negligent physician continues to treat the injured patient after the initial negligent act, the statute of limitations begins to run from the date this treatment is terminated. 2 Still other jurisdictions permit the injured patient to assert his claim for malpractice in the form of an action for breach of contract, 3 or in the form of an action for fraud. 4 A number of states, on the other hand, recognizing the injustice of the majority rule, have expressly rejected it in favor of a rule which permits the injured party to sue within a certain period after he has discovered, or in the exercise of reasonable diligence should have discovered, the facts upon which his claim is based. 5 It is quite apparent, that application of these diverse rules under Section 2401(b) would produce diverse results as to the effect of that section, and would thereby discriminate among claimants solely on the basis of where the operative facts giving rise to their claims arose. We cannot believe that this is what Congress intended.

         Nor is there any lack of precedent for the view that federal law should determine when a claim accrues under Section 2401(b). Strong support for such a view is found in those cases holding that federal and not state law determines whether an action for wrongful death has been timely instituted against the

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