Jordan v. U.S., 74-1240

• Decision Date: 24 September 1974
• Docket Number: No. 74-1240,74-1240
• Citation: 503 F.2d 620
• Parties: Rex E. JORDAN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 620

503 F.2d 620

Rex E. JORDAN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 74-1240.

United States Court of Appeals, Sixth Circuit.

Argued June 5, 1974.

Decided Sept. 24, 1974.

Ralph H. Adams, Detroit, Mich., on brief, for plaintiff-appellant.

Ralph B. Guy, Jr., U.S. Atty., Michael D. Gladstone, Asst. U.S. Atty., Detroit, Mich., on brief, for defendant-appellee.

Before WEICK, PECK and MILLER, Circuit Judges.

JOHN W. PECK, Circuit Judge.

This appeal was perfected from the district court's order granting defendant-appellee's motion to dismiss plaintiff-appellant's malpractice claim on the grounds that it was barred by the lapse of 28 U.S.C. 2401(b), ¹ the two year statute of limitation applicable to tort claims filed against the United States under the Federal Tort Claims Act. The sole question for consideration here is whether the district court correctly found that appellant's claim 'accrued' sometime in 1969 rather than on June 7, 1971, as he contended.

Appellant, Rex E. Jordan, is a one-eyed ² World War II veteran who relied on Veterans Administration facilities for all his medical needs after 1968. In November of that year, after being treated for chronic sinusitis for the previous four years by the personnel of the Allen Park, Michigan, Veterans Administration Hospital, appellant underwent nose surgery at that facility in the hopes of alleviating his sinus condition. Immediately thereafter his upper face became bruised and swollen, and his right eye was swollen shut to such an extent that it was impossible for him to see at all. Four or five days later when he was again able to see, appellant noted that there were bruised, discolored areas below both his good right eye and his artificial left one. At this time he also observed that the pupil of his right eye wandered to the right and his vision seemed to be reduced. In response to his questions about his right eye, a doctor, who was not the one who performed the operation, informed appellant, after first conducting a brief bedside examination, that the eye problems were the result of muscle damage caused by procedures required to deal with the unanticipated 'severity' of his sinus condition. Shortly thereafter appellant was examined by personnel he assumed were 'eye' doctors and, prior to his discharge from the hospital, he was told to return early the next year for corrective eye surgery.

The first eye operation was performed at the Allen Park Hospital in January, 1969 and did not improve appellant's vision. He was then informed that another operation would be necessary. During this period he prompted the Rehabilitative Service of the Veterans of Foreign Wars to make efforts to get his disability rating increased since his loss of vision in the right eye was the result of his sinus operation. Appellant was operated on again in February, 1969, but this operation was also unsuccessful. He was then told to return to the Hospital every three months for eye examinations.

In the following months appellant's eyesight grew progressively worse. During this period he was examined by the Post Office medical officer, a Dr. Blough, who indicated that in his opinion appellant was no longer fit to work due to his reduced sight. Finally, in February, 1970, appellant was forced to retire from his job with the Post Office because his eyesight had become so poor.

Appellant continued to return to the VA hospital for treatment of his sinus condition and for his eye examinations. On June 7, 1971, during one of these tri-monthly eye examinations, appellant was told by the examining doctor that such visits were no longer necessary as there was nothing more they could do for the eye, and that it was 'too bad they screwed up your eye when they operated on your nose.' Appellant then retained a lawyer and on June 1, 1972, a formal claim was filed on his behalf with the Veterans Administration. This claim was denied on October 20, 1972, and four days later this suit was initiated. Appellee then moved to dismiss appellant's complaint on the ground that the statute of limitations had run, and the district court ordered a hearing on the issue. ³

At this hearing, appellant, who was the only witness called by either party, testified that prior to June 7, 1971, he had no idea that his eye problem could have been caused by an act of malpractice committed during the November, 1968 surgery. On cross-examination, he admitted that he had been told that the 'severity' of the nose operation led to the eye injury. He also admitted that the signature on a Report of Medical Examination for Disability Evaluation was his, but denied any recognition of the form, or of the handwriting comprising the body of the Report, ⁴ and testified further that the VFW representative had his medical records and 'took care of that (his correspondence in this matter) for me.' Counsel for appellee then offered into evidence a letter dated March 10, 1970, which had been submitted to the VA by the VFW on appellant's behalf, and, after it was received, he read the following paragraph:

'Further, we would like to bring to your attention that your rating action, dated August 20, 1969, failed to answer the question presented in our letter of February 24, 1969. If you will note, this service had contended that the veteran's right eye condition was directly due to the operation for his service connected chronic sinusitis. This letter was supported by a medical statement from Glen A. Brough, M.D., which showed, 'There is considerable hemorrhage about the inter aspect of the right eye which is completely out of balance and points to the outer side.' In addition, this report also contended that this condition was of such a severe nature, the vereran was unfit for duty.'

Thereafter the hearing was terminated. Subsequently the district court found that appellant's claim accrued at some unspecified time in 1969, and granted appellee's motion to dismiss. ⁵ This appeal followed.

In medical malpractice actions brought against the United States under the Federal Tort Claims Act, it is well established that federal law governs when a 'claim accrues' under 28 U.S.C. 2401(b) for the purpose of fixing the point at which the two year limitation period begins to run against a claimant. See Ytreberg, State or Federal Law as Controlling When Cause of Action Accrues or Statute of Limitations Begins to Run under the Federal Tort Claims Act, 7 A.L.R.3d 2 at 734 (1966). The test applied in making this determination is that the 'claim accrues' against the government, and consequently the statute begins to run 'when the claimant discovered, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice.' Hungerford v. United States, 307 F.2d 99, 102 (9th Cir. 1962); Quinton v. United States, 304 F.2d 234, 240 (5th Cir. 1962). Implicit in the federal cases applying this 'discovery' rule is the requirement that the claimant must have received some information, either by virtue of acts he has witnessed or something he has heard, or a combination of both, which should indicate to him, when reasonably interpreted in light of all the circumstances, that his injury was the result of an act which could constitute malpractice. Toal v. United States, 438 F.2d 222 (2d Cir. 1971); Ashley v. United States, 413 F.2d 490 (9th Cir. 1969); Kossick v. United States, 330 F.2d 933 (2d Cir. 1964); Hungerford v. United States, supra; Quinton v. United States, supra; Johnson v. United States, 271 F.Supp. 205 (W.D.Ark.1967); Bizer v. United States, 124 F.Supp. 949 (N.D.Cal.1954). Thus the specific question confronted by the district court in this case was when did this claimant receive sufficient information to be chargeable with the knowledge that the acts which damaged his eye muscles could constitute malpractice. Unless it is 'clearly erroneous,' the district court's answer must be affirmed. Fed.R.Civ.P. 52(a).

The district court concluded, and the government argued here, that particularly after the two unsuccessful eye operations in 1969 and the consequences resulting thereafter from the continuing loss of sight, 'there came knowledge of facts sufficient to alert a reasonable person that there may have been negligence . . ..' Jordan v. United States, Civil Action No. 39100 (E.D.Mich., filed September 28, 1973), citing Brown v. United States, 353 F.2d 578, 580 (9th Cir. 1965). Thus they reasoned that appellant should have been 'alerted' in 1969, and the subsequent delay in commencing his action was due to his lack of reasonable diligence. Initially we note that we are not persuaded that the standard quoted above is an accurate substitute for the...