Sexton v. U.S.

• Citation: 832 F.2d 629
• Decision Date: 06 November 1987
• Docket Number: No. 86-5677,86-5677
• Parties: Mary Sue SEXTON, et al., Appellants, v. UNITED STATES of America.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 629

832 F.2d 629

266 U.S.App.D.C. 17

Mary Sue SEXTON, et al., Appellants, v. UNITED STATES of America.

No. 86-5677.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 28, 1987.

Decided Nov. 6, 1987.

Arthur H. Bryant, with whom Robert M. Hausman, Washington, D.C., was on the brief, for appellants.

Evelyn D. Sahr, Atty., Dept. of Justice, with whom Richard K. Willard, Asst. Atty. Gen., Dept. of Justice, Joseph E. diGenova, U.S. Atty. and Ralph H. Johnson, Atty Before RUTH BADER GINSBURG and WILLIAMS, Circuit Judges, and AUBREY E. ROBINSON, ^* Chief Judge.

Dept. of Justice, Washington, D.C., were on the brief, for appellee.

Opinion for the Court filed by Circuit Judge WILLIAMS.

WILLIAMS, Circuit Judge:

Plaintiffs Mary Sue and Talmon Sexton have suffered as severe a loss as a parent can. Their son Dwayne died of leukemia at the age of six, after a three-year struggle against the disease. They and their son's estate have brought suit against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Sec. 2671 et seq. (1982), claiming medical malpractice by federal government doctors at a clinic run by the Oak Ridge Institute for Nuclear Studies (later Oak Ridge Associated Universities) ("Oak Ridge"), a corporation conducting research under contract with the federal government. The negligence alleged consists essentially of the doctors' failure to provide chemotherapy as promptly and as continuously as they should have, and their use of radiation therapy techniques improperly exposing Dwayne to risks of infection. ¹ Dwayne died on December 29, 1968, and the plaintiffs gave the government notice of their claim on June 14, 1983. The controlling statute of limitations, 28 U.S.C. Sec. 2401(b) (1982), bars a claim of this sort unless it is presented "within two years after such claim accrues." The district court found that the claim accrued on Dwayne's death and that accordingly the suit was barred. It granted summary judgment. Sexton v. United States, 644 F.Supp. 755 (D.D.C.1986). We affirm.

I

The relevant facts are neither complex nor seriously in dispute. In July 1965 the Sextons' family doctor diagnosed Dwayne as having aplastic anemia and referred the family to the Oak Ridge clinic. Joint Appendix ("J.A.") Exhibit ("Exh.") 1 at 35. (Citations to exhibits are numbered as in the Joint Appendix.) When the Sextons admitted Dwayne to the clinic they were aware that it was funded by the Atomic Energy Commission and that it was an experimental research hospital. Id. at 45; Exh. 3 at 36-37. Both parents signed an admittance agreement which stated, in part, that "any treatments administered ... may be experimental." Exh. 4 at 19.

After conducting several tests on Dwayne, the doctors at Oak Ridge rejected the earlier diagnosis and told the Sextons that Dwayne in fact had leukemia. Exh. 1 at 50-51. Independently of any discussion with the doctors, the Sextons believed at the time that the disease was fatal. As Mrs. Sexton later testified, "I knew leukemia was fatal. I knew that myself." Exh. 4 at 15; see also Exh. 1 at 61. That understanding appears to have been essentially correct. The only data in the record indicate that according to figures of the American Cancer Society, in the period 1965-69 the one-year survival rate for children under 15 with acute leukemia was 40 percent and the five-year survival rate was three percent. Exh. 4 at 207. None of Mrs. Sexton's testimony would support a claim that the doctors ever gave her a picture of the prospects under conventional Over the several days following this news, the doctors discussed several alternative methods of treating the disease. They explained to the Sextons that chemotherapy, the "standard treatment," would most probably offer Dwayne a lifespan of only three to five more years. They also described an experimental treatment called immunotherapy, which involved removing bone marrow from Dwayne, injecting the cells into a compatible donor, and re-injecting the cells into Dwayne. According to Mrs. Sexton, the doctors presented the experimental immunotherapy treatment as highly promising and a possible cure for leukemia. Id. at 58-61; Exh. 3 at 45-49. The doctors expressly told the Sextons that if they elected to try the immunotherapy, maintenance chemotherapy would be withheld in order to analyze the effects of the experimental treatment. Id. at 52; Exh. 1 at 78-79. They then took blood tests of both parents, and decided that Mrs. Sexton was the more compatible donor. The Sextons elected to try the experimental immunotherapy. They signed a form consenting to the treatment, acknowledging awareness that it was experimental and carried risks for both mother and child. Exh. 4 at 20.

treatment more gloomy than the reality. See, e.g., Exh. 1 at 68-69.

Before the doctors started the experimental immunotherapy treatment, they gave Dwayne 17 days of chemotherapy. Id. at 208. In late August 1965 they performed the immunotherapy procedure on Dwayne and Mrs. Sexton, apparently successfully: Dwayne was in remission by mid-September. Id. at 208. In November 1965, however, he suffered a relapse and was readmitted to Oak Ridge. Id. at 208. Although the doctors suggested that immunotherapy be tried once again, with his father as the donor, the Sextons refused, fearing that Mr. Sexton might himself contract leukemia. Id. at 12; Exh. 1 at 119-20; Exh. 3 at 65-67. Dwayne was put on chemotherapy for the next three years. Exh. 4 at 205.

From late 1965 until late 1968, Dwayne underwent chemotherapy as an outpatient at Oak Ridge, alternating between remission and relapse at least four times. During this period, the Oak Ridge doctors forwarded Dwayne's medical records to the Sextons' family physician, Dr. Northrop, Exh. 1 at 107, 129, and discussed Dwayne's treatment and prognosis with him on several occasions. Id. at 129-30. In addition, Dr. Northrop sometimes administered chemotherapeutic drugs to Dwayne between outpatient visits to Oak Ridge. Id. at 129. During these visits Dwayne's parents discussed the treatment with Dr. Northrop. Id. at 140-41. Mrs. Sexton also set out to educate herself about leukemia. During the 1965-68 period she read many magazine and newspaper articles about the disease and possible treatments, id. at 133; by mid-1966 she was aware that even a short delay in treatment could harm the chances of a leukemia patient. Id. at 184. ²

In November 1968 Dwayne suffered his final relapse and, now gravely ill, was admitted again to Oak Ridge. The physicians told his mother that Dwayne's leukemia was no longer responding to the treatment. Id. at 157. They suggested three alternatives: blood transfusions, which might only prolong his life by a matter of days or weeks; experimental chemotherapy; or experimental total-body radiotherapy. Id. at 157. They recommended the latter, suggesting that it might bring about a total remission. Id. at 158. They told the Sextons, however, that infection was a serious risk and must be avoided. Id. at 171; Exh. 3 at 76. After their review of the hazards and potential benefits of each, Exh. 4 at 208, Mrs. Sexton agreed to try total-body radiation. Again she signed a form which described the risks and experimental nature of the treatment and noted that it was not usual, that it was unproven, and that "the consequences may be unpredictable." Id. at 21.

Dwayne underwent total-body radiation therapy in the Medium Exposure Total Soon after he was placed in the LETBI chamber, Dwayne developed an infection. His condition deteriorated rapidly, and on December 29, 1968 he died of uncontrollable staphylococcus aureus and streptococcal infections circulating through his bloodstream. Exh. 4 at 206.

Body Irradiator chamber at the clinic for three-and-one-half hours on December 5, 1968. Id. at 5. He was then taken to the Low Exposure Total Body Irradiator ("LETBI") chamber. Id. at 208. This, his parents were told, would provide the sterile environment necessary for his weakened immune system. Exh. 3 at 76. The Sextons noticed that the device monitoring Dwayne's vital signs bore the symbol of the National Aeronautics and Space Administration and thus learned of NASA's involvement. Id. at 103-104; Exh. 4 at 11. Mrs. Sexton also noticed that, despite the representations about the chamber's sterile environment, the clinic maintained some mice in the same general area. Exh. 1 at 307-09. ³

This lawsuit was precipitated by the activities in the spring of 1981 of an investigative journalist on the staff of Jack Anderson. In that period he and the Sextons were in frequent communication, by telephone, interview, and correspondence. See generally Exh. 1 at 206-53, 264-76. By some time that spring the Sextons came to take a far dimmer view of Dwayne's treatment than they formerly had. Id. at 198, 204. To some extent the parties invite us to engage in a sort of photo-finish analysis--did the Sextons, by June 14, 1981, have sufficient knowledge so as to be out of time in giving notice on June 14, 1983? Under our view of the law, however, they had acquired enough knowledge by December 1968, mooting the issues theoretically raised by the events of 1968-81.

II

Plaintiffs claim negligence by the government doctors at Oak Ridge (and by those in control of the program there). Their complaint states that the doctors conducted "unethical and improper medical experimentation involving nuclear radiation" on Dwayne and Mrs. Sexton, and treated them as "human guinea pigs without their or Mr. Sexton's full knowledge or informed consent." J.A. at 12. Their complaint describes the resulting injuries as follows:

Dwayne suffered extreme physical, emotional, and psychological damage from the experiments conducted on him, was deprived of his best chance of survival, and died at the age of six. Mary Sue Sexton also suffered severe physical, emotional, and psychological damage from her participation in the experiment and, among...