Arvayo v. U.S.

• Decision Date: 26 June 1985
• Docket Number: No. 84-1479,84-1479
• Citation: 766 F.2d 1416
• Parties: Jose M. ARVAYO, etc., et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1416

766 F.2d 1416

Jose M. ARVAYO, etc., et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.

No. 84-1479.

United States Court of Appeals,

Tenth Circuit.

June 26, 1985.

Rehearing Denied Aug. 13, 1985.

Mark B. Hutton, Wichita, Kan. (Andrew W. Hutton, Wichita, Kan., with him on brief), of Michaud, Cordry, Michaud, Hutton & Hutton, Wichita, Kan., for plaintiffs-appellees.

Alleen S. Castellani, Asst. U.S. Atty., Topeka, Kan. (Benjamin L. Burgess, Jr., U.S. Atty., Topeka, Kan., with her on the brief), for defendant-appellant.

Before BARRETT and McKAY, Circuit Judges, and WINDER, ^* District Judge.

BARRETT, Circuit Judge.

This malpractice case against the United States was commenced by Jose and Tina Arvayo under the Federal Tort Claims Act (FTCA) on behalf of their son, Jose, Jr. Following trial to the court, damages in amount of $1,950,000 were awarded in the Arvayos' favor. 580 F.Supp. 753. The dispositive issue on appeal is whether the administrative claim filed by the Arvayos was timely. ¹

The relevant facts are not in dispute. On January 30, 1979, Tina Arvayo brought Jose, Jr., then five months old, to Dr. DePoe at the McConnell Air Force Base Hospital because he was cranky and had been suffering from a fever for nine days. After briefly examining Jose, Dr. DePoe diagnosed his condition as an upper respiratory infection (URI)--a virus--for which he prescribed Triaminic Concentrate, and directed Tina Arvayo to return with Jose in a week if his condition had not improved.

By 11:00 a.m. the next morning, January 31, 1979, Jose's condition had worsened significantly. His eyes were crossed, and he was suffering from convulsions. Tina Arvayo returned with him to the McConnell hospital, where an emergency room physician, Dr. Pascua, immediately recognized that Jose's condition was critical. Preliminarily diagnosing Jose's condition as bacterial meningitis, Dr. Pascua transferred Jose to St. Joseph's Hospital, a civilian hospital, for more specialized care. At St. Joseph's several doctors examined Jose during the course of the afternoon. Their "working diagnosis" of bacterial meningitis was confirmed at approximately 6:00 p.m. after Dr. Butler, who had taken Jose's history from Tina Arvayo earlier that afternoon, performed a spinal tap.

The history taken by Dr. Butler and signed by him and Dr. Abbas, a neurologist primarily in charge of Jose's care at St. Joseph's, reveals that both doctors were aware Jose had been taken to McConnell the day before and had been given Triaminic for treatment. They also were aware that within the prior two weeks, though not the day before, doctors at McConnell had diagnosed his condition as an URI. (R.Vol. 1 at 7; Vol. 15 at 370.)

By August, 1979, the Arvayos were aware that Jose had suffered significant brain damage from the meningitis. Between January, 1979, and August, 1981, however, the Arvayos made no inquiries as to the propriety, or impropriety, of Dr. DePoe's diagnosis and treatment on January 30, 1979. Furthermore, no doctor familiar with the case volunteered such information. In August, 1981, Tina Arvayo consulted her attorney in the present case because she and her husband were dissatisfied with the government insurance coverage of Jose's medical expenses. The attorney was with a medical malpractice firm that had previously handled cases involving delayed diagnosis of meningitis. After informing Tina Arvayo of the possible connection between delayed diagnosis of meningitis and mental retardation, the attorney and his firm were retained to handle the case. Thereafter, on December 16, 1981, the Arvayos filed their administrative claim.

After their administrative claim was denied, the Arvayos brought suit in federal district court alleging that Dr. DePoe's failure to timely diagnose and treat the meningitis was the cause of Jose's retardation. Rejecting as biased the testimony of Government doctors that Dr. DePoe's diagnosis and treatment had not fallen below prevailing community standards, the district court found that Jose was suffering from meningitis on January 30, 1979, that the standard in the community would have been to diagnose the condition, and that had the condition been diagnosed and treated the day before, Jose probably would not have suffered the severely disabling injuries he now lives with. Memorandum and Order, United States District Court for the District of Kansas (February 23, 1984), at 19 [hereinafter "Memorandum Opinion"]. Further, the district court found that "the [Arvayos] were never timely apprised of any reason to suspicion the significance of the event with Dr. DePoe on January 30, 1979, until [Tina Arvayo] visited an attorney in the summer of 1981." Id. at 36. This finding was based upon the court's observation of the Arvayos and conclusion that they were "quite young, wholly trusting of authority, particularly medical persons," and that "[n]o one has suggested any relationship between the child's plight and a delay in diagnosis. It is doubtful if any of the treating physicians had even heard of Dr. DePoe, the extent of his care and treatment; and most assuredly, no one had volunteered a relationship." Id. The district court thus ruled that the cause of action accrued in August, 1981, when the Arvayos were informed of the significance of delay in the diagnosis of meningitis cases. Id. at 38.

Discussion

The purpose behind 28 U.S.C. Sec. 2401(b)--the limitations provision of the FTCA--"is to require the reasonably diligent presentation of tort claims against the Government." United States v. Kubrick, 444 U.S. at 111, 123, 100 S.Ct. at 352, 360, 62 L.Ed.2d at 259 (1979). Section 2401(b), like statutes of limitations generally, represents a "legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time," id. at 117, 100 S.Ct. at 356, and that "the right to be free of stale claims in time comes to prevail over the right to prosecute them." Railway Telegraphers v. Railway Express Agency, 321 U.S. at 342, 349, 64 S.Ct. at 582, 586, 88 L.Ed. at 788 (1944). Furthermore, because the statute waives the sovereign immunity of the United States, courts should be mindful to construe it in a manner which neither extends nor narrows the waiver Congress intended. Kubrick, supra, 444 U.S. at 117-118, 100 S.Ct. at 356-357, and cases cited therein.

Unfortunately, however, the legislative history to Sec. 2401(b) is silent as to the meaning of "accrues." See Kubrick, supra, 444 U.S. at 119, 100 S.Ct. at 357. Consequently, the Court in Kubrick adopted the "general rule" prevailing among the circuits at the time that a cause of action accrues under the FTCA when "the plaintiff has discovered both his injury and its cause." Id. at 120, 100 S.Ct. at 358. Kubrick's cause of action was held to have accrued when he was informed by a civilian doctor that the neomycin treatment prescribed by a VA doctor for treatment of a femur infection following surgery had caused his hearing loss. Accrual, according to the Court, did not await Kubrick's awareness that prescription of neomycin for the infection was improper (a negligent act). Once Kubrick was aware of these "critical facts" underlying his injury and its cause, reasoned the Court, he could inquire in the medical and legal community as to whether his injury had been negligently inflicted. Id. at 123, 100 S.Ct. at 360.

Both the Government and the Arvayos rely on Kubrick for their respective positions. Although they agree as to the injury in this case--mental retardation--they disagree as to the "cause" of the injury. The Government argues that the cause of Jose's retardation was bacterial meningitis. Because the Arvayos were informed by doctors as early as January 31, 1979, that Jose was suffering from meningitis, and because those same doctors informed the Arvayos throughout Jose's treatment at St. Joseph's of the probability of brain damage as a result of the meningitis, the Government contends that the claim accrued no later than August, 1979, when the Arvayos were informed that Jose had in fact suffered brain damage. The Government asserts that such a result is dictated by this court's holding in Gustavson v. United States, 655 F.2d 1034 (10th Cir.1981).

The Arvayos, on the other hand, argue that the Government's chacterization of the cause of the injury is overly simplistic. They contend that the cause of Jose's retardation was not simply the meningitis; the cause of his injury was also Dr. DePoe's failure to diagnose his condition as meningitis and to treat it appropriately on January 30, 1979. The Arvayos assert that there is a basic theoretical distinction between malpractice cases involving a "commission"--an affirmative act which results in clearly identifiable injuries--and malpractice cases involving an "omission," i.e., a failure to diagnose, treat, or warn. Kubrick, the Arvayos assert, involved a situation in which the neomycin treatment--an affirmative act--administered by the VA doctors resulted in Kubrick's clearly identifiable hearing loss. Such is a case of "commission," argue the Arvayos, and should be distinguished from cases in which a plaintiff is aware of the bare medical cause of his or her injury, but is unaware of the omissions, or misdiagnoses, on the part of the treating physicians that exacerbated a previous condition. In fact, argue the Arvayos, the Supreme Court recognized such a distinction in Kubrick:

That [a plaintiff] has been injured in fact may be unknown or unknowable until the injury manifests itself; and the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or very difficult to obtain. The prospect is not so bleak for a plaintiff in possession of the critical facts that he has been hurt and who has inflicted the injury. He is no longer at the mercy of the latter. There are others who can tell him if he has been wronged, and he...