Bridgford v. U.S.

• Decision Date: 28 February 1977
• Docket Number: No. 76-1538,76-1538
• Citation: 550 F.2d 978
• Parties: Clifford Roy BRIDGFORD, Appellee, v. UNITED STATES of America, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 978

550 F.2d 978

Clifford Roy BRIDGFORD, Appellee, v. UNITED STATES of America, Appellant.

No. 76-1538.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 10, 1976.

Decided Feb. 28, 1977.

Walter A. Oleniewski, Atty., Civ. Div., Dept. of Justice, Washington, D. C. (Rex E. Lee, Asst. Atty. Gen., Washington, D. C., Jervis S. Finney, U. S. Atty., Baltimore, Md. and Ronald R. Glancz, Atty., Civ. Div., Dept. of Justice, Washington, D. C., on brief), for appellant.

Laurence T. Scott, Washington, D. C. (Leo A. Roth, Jr., Washington, D. C., on brief), for appellee.

Before WINTER and CRAVEN, Circuit Judges, and FIELD, Senior Circuit Judge.

CRAVEN, Circuit Judge:

In this medical malpractice suit brought under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), the Government appeals from a $65,000 judgment entered against it. It contends that the suit was barred by the statute of limitations, 28 U.S.C. § 2401(b), ¹ and that the district court's finding of negligence on the part of the government employee was clearly erroneous. Rejecting both of these contentions, we affirm.

I.

Bridgford, the dependent of a retired military officer, developed varicose veins in his left leg when he was 19 years old. Doctors at both Walter Reed Army Medical Center and Bethesda Naval Hospital (Bethesda) advised him to undergo a vein stripping operation to alleviate this condition. He was told that he would be incapacitated for no more than two weeks following the surgery.

On June 9, 1964, Bridgford underwent the operation at Bethesda. The surgical procedure consisted of tying off and severing each varicose vein which was to be removed. Then a stripping rod was inserted and run through the vein, and it was pulled from the patient's leg. This operation was performed on Bridgford by Dr. James Ryskamp, Jr., a fourth-year surgical resident, and Dr. Nicholas Raffaelly, a first-year resident.

During the operation Dr. Raffaelly, who was working on Bridgford's upper leg, noticed that it had become swollen and that blood was not exiting from it. He called over a vascular surgeon, Dr. James McClenathan, to examine Bridgford. Dr. McClenathan discovered that a major leg vein, the common femoral, had been severed. Although this vein is normally much further below the surface of the leg than the superficial ones that are stripped, Dr. Raffaelly had apparently mistaken it for one which was to be removed. To remedy the error, Dr. McClenathan immediately joined the remaining portion of the severed femoral vein to an intact portion of the greater saphenous vein. This surgical procedure, known as an anastomosis, restored the drainage of blood from Bridgford's leg. Drs. Ryskamp and Raffaelly then completed the vein stripping operation.

Following the operation Dr. Ryskamp explained to Bridgford and his mother that a vein had been mistakenly severed and that it had been sewn back together. He assured them that the blood was flowing properly through the vein. When Bridgford experienced greater postoperative pain and swelling than he had anticipated, he was told by the doctors that it was probably due to some nerve damage caused by the stripping of the veins and that he was just healing at a slower rate than most people.

Bridgford was discharged from Bethesda on June 24, 1964, but about a week later was readmitted because he had not been making satisfactory progress at home. During this hospital stay doctors told him that the continued pain he was experiencing might be due to emotional problems. He was reassured, however, that he would get better.

During the months following the operation, Bridgford continued to experience pain and difficulty in walking. By 1967 his condition had improved, but he still had swelling and discomfort. His condition remained about the same until August 1969, at which time he noticed a vein in his left buttock getting more enlarged and painful. He consulted a private physician, Dr. James Boland, who recommended that he have a venogram performed. He did so in August 1970. After examining the venogram, Dr. Boland concluded that the femoral vein, which had been severed during the vein stripping operation, had become blocked, probably within a few days or weeks after the anastomosis. Dr. Boland and another doctor who was consulted, Dr. Joseph Schanno, both agreed that this blockage could not be corrected by surgery and that the only possible treatment was the continued use of supportive stockings. As a result of these doctors' findings, Bridgford filed an administrative claim with the Navy on July 17, 1971. Following the Navy's failure to act on the claim, the present suit was filed on November 20, 1972.

The district court noted that there was no contention that Dr. McClenathan had done anything wrong in performing the anastomosis. In fact, plaintiff's experts testified that blockage was a common result of such a procedure. Rather the central issue was whether the severance of the common femoral vein which had necessitated the anastomosis was due to negligence on the part of Dr. Raffaelly. The court concluded that Bridgford had established by his experts that Dr. Raffaelly had breached the applicable standard of care in two respects: (1) he failed adequately to locate and identify the relevant anatomical structures before ligating and dividing Bridgford's veins, and (2) he dissected too deeply. The district court also concluded that the suit was not barred by the statute of limitations because any delay in filing the suit was the result of Bridgford's "blameless ignorance."

The phrase "blameless ignorance" originated with the Supreme Court's decision in Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 1025, 93 L.Ed. 1282 (1949). In that case involving the Federal Employers' Liability Act, the Court rejected a harsh construction of the statute of limitations, stating:

We do not think the humane legislative plan intended such consequences to attach to blameless ignorance. Nor do we think those consequences can be reconciled with the traditional purposes of statutes of limitations, which conventionally require the assertion of claims within a specified period of time after notice of the invasion of legal rights.

II.

The statute of limitations governing a tort action brought against the United States provides that "(it) 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). ² The point at which the claim accrues is governed by federal law. Portis v. United States, 483 F.2d 670, 672 n.4 (4th Cir. 1973). In the case of a malpractice claim against the Government, the often stated rule of accrual is that it accrues "when the claimant discovered, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice." Quinton v. United States, 304 F.2d 234, 240 (5th Cir. 1962). Although this formula for accrual was intended to prevent the harsh result of the statute's running before the patient was even aware that any negligent acts had been committed, if applied literally as the Government here urges, it can result in the equally harsh result of the statute's running before the patient realizes that the negligent acts on the part of the government employee caused him harm.

In Portis, supra, this court recognized the possible harshness of the rule and modified its application. There parents of the minor plaintiff learned in October 1963 that an Air Force nurse had erroneously administered Neomycin hypodermically rather than orally as instructed. They did not learn, however, until 1969 that this earlier negligence on the part of the government employee had caused their daughter's loss of hearing. Rather than holding that the statute of limitations began to run in 1963 when they learned of the acts constituting the alleged negligence as a literal application of the accrual rule would require we held that "(the) cause of action for malpractice resulting in deafness did not accrue until 1969." 483 F.2d at 673. The basis of our decision was that until 1969 the plaintiff and her parents were blamelessly ignorant of the fact that the improper administration of Neomycin was the proximate cause of plaintiff's deafness. It therefore would have been unreasonable to require them to bring suit...