563 F.2d 418 (10th Cir. 1977), 75-1931, Exnicious v. United States

Docket Nº:75-1931.
Citation:563 F.2d 418
Party Name:Jules J. EXNICIOUS, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Case Date:September 19, 1977
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 418

563 F.2d 418 (10th Cir. 1977)

Jules J. EXNICIOUS, Plaintiff-Appellant,

v.

UNITED STATES of America, Defendant-Appellee.

No. 75-1931.

United States Court of Appeals, Tenth Circuit

September 19, 1977

Argued and Submitted Sept. 24, 1976.

Rehearing and Rehearing In Banc Denied Nov. 7, 1977.

Page 419

Blaine A. Rutenbeck, Denver, Colo., for plaintiff-appellant.

Carolyn J. McNeill, Asst. U. S. Atty., Denver, Colo. (James L. Treece, U. S. Atty. and Richard J. Spelts, First Asst. U. S. Atty., Denver, Colo., on the brief), for defendant-appellee.

Before HOLLOWAY and McWILLIAMS, Circuit Judges, and CHRISTENSEN, District Judge. [**]

HOLLOWAY, Circuit Judge.

Plaintiff Jules Exnicious appeals from the dismissal of his action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (1970), to recover damages for injuries resulting from the alleged malpractice of doctors employed by the Veterans Administration (VA). Plaintiff asserts two basic claims: (1) that a permanent left shoulder disability he suffered was caused by surgery being performed while plaintiff had a streptococcal pharyngeal infection; 1 and (2) that the shoulder disability was also negligently diagnosed as traumatic or degenerative arthritis rather than necrosis. 2

The trial court granted summary judgment for the Government. Essentially the court concluded that the plaintiff in May, 1972, discovered the "acts" constituting the alleged malpractice, that this was more than two years before filing of his administrative claim under 28 U.S.C. § 2401(b), 3 and that the action is thus time barred.

Page 420

In 1959 plaintiff was admitted to the VA Hospital in Houston, Texas, where he underwent a closed manipulation of his left shoulder and a surgical procedure known as a Bankart arthroplasty 4 for correction of frequent shoulder dislocation. A second closed manipulation was performed in March, 1960, after considerable pain and difficulty following the first procedure. Plaintiff contends that sometime prior to the first surgery he had contracted a streptococcal pharyngeal infection and that the VA physicians did not delay the surgery for sufficient time after treating this infection. (XI R. 28). As a result, plaintiff claims that his shoulder was infected, which ultimately led to necrosis of the left humerus. (XI R. 29, 31-33).

Plaintiff asserts that it was not until about August 1 or 2, 1972, that he was first made aware of the diagnosis of his condition as necrosis 5 and that the VA's 1960 diagnosis of traumatic arthritis was incorrect, and that he later learned his condition may have been attributable to infection. (XI R. 85-86). He says that it was not until February, 1974 (when Dr. Wells questioned him about whether he had been ill shortly before the 1959 surgery) that he first had an indication that his shoulder problem could be related to his 1959 operation. (XI R. 101-02). For these reasons plaintiff maintains that the filing of his administrative claim was not untimely.

The details concerning the plaintiff's awareness of his claim will be developed later in discussing the limitations question.

I

The limitations principles

Section 2401(b) provides in relevant part:

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 . . .

The issue is whether it was proper for the trial court to grant summary judgment on the question of when Exnicious' claim accrued within the meaning of this section. 6 The federal courts generally follow the rule that a claim for malpractice accrues when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the alleged malpractice. Casias v. United States, 532 F.2d 1339, 1340 (10th Cir.); Quinton v. United States, 304 F.2d 234, 240 (5th Cir.); Reilly v. United States, 513 F.2d 147, 148 (8th Cir.); Portis v. United States, 483 F.2d 670, 672 n.5 (4th Cir.); Ashley v. United States, 413 F.2d 490, 492 (9th Cir.); Brown v. United States, 353 F.2d 578, 579-80 (9th Cir.). Limitations should not bar a claimant before he has a reasonable basis for believing he has a claim. Therefore until a claimant has had a reasonable opportunity to discover all of the essential elements of a possible cause of action for malpractice damages, duty, breach and causation his claim against the Government does not accrue. 7 Bridgford v. United States, 550 F.2d 978, 981-82 (4th

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Cir.). And where a claimant is given a "credible explanation" of his condition not pointing to malpractice, he may not be found to have failed to exercise reasonable diligence because he did not earlier pursue his claim. Jordan v. United States, 503 F.2d 620, 624 (6th Cir.).

With these principles in mind we first consider the trial court's opinion and the basis it cites for the summary judgment, and the plaintiff's position on the appeal from the judgment.

II

The trial court's analysis and the plaintiff's position on the appeal

In its opinion granting summary judgment for the Government the trial court stated that the question was whether the plaintiff discovered or in the exercise of reasonable diligence should have discovered the acts constituting malpractice before July 10, 1972. 8 The court stated (XI R. 124-25):

And while we might well conclude that plaintiff should have discovered these acts by May 1961 in the exercise of reasonable diligence, our ruling is based upon the fact that plaintiff actually did discover the acts constituting the malpractice (whether interpreted to be the 1959 operation alone or taken together with the 1960 diagnosis) on May 2, 1972 in his consultations with Drs. Fischer and Granberry.

Thus, the court's primary holding was that plaintiff had actual knowledge of acts constituting malpractice in May, 1972, from the consultation with Dr. Fischer and Dr. Granberry.

In addition, however, the court concluded that the plaintiff's claim was barred due to constructive knowledge more than two years before filing of his administrative claim. In that connection the court first noted there must be discernible some legally cognizable injury or damage, even though the ultimate damage is unknown or unpredictable. The court said the plaintiff had reason to believe, even in March, 1960, when he was first given a...

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