Ulrich v. Veterans Admin. Hosp., s. 954

• Citation: 853 F.2d 1078
• Decision Date: 17 August 1988
• Docket Number: D,1055,Nos. 954,s. 954
• Parties: John T. ULRICH, Plaintiff-Appellant, Cross-Appellee, v. VETERANS ADMINISTRATION HOSPITAL and United States of America, Defendants- Appellees, Cross-Appellants. ockets 87-6291, 88-6029.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1078

853 F.2d 1078

John T. ULRICH, Plaintiff-Appellant, Cross-Appellee, v. VETERANS ADMINISTRATION HOSPITAL and United States of

America, Defendants- Appellees, Cross-Appellants.

Nos. 954, 1055, Dockets 87-6291, 88-6029.

United States Court of Appeals,

Second Circuit.

Argued April 27, 1988.

Decided Aug. 17, 1988.

Robert B. Nichols, Buffalo, N.Y. (Paul William Beltz, P.C., Buffalo, N.Y., of counsel), for plaintiff-appellant, cross-appellee.

Kathleen M. Mehltretter, Asst. U.S. Atty., W.D.N.Y., Buffalo, N.Y. (Roger P. Williams, U.S. Atty., of counsel), for defendants-appellees and cross-appellants.

Before CARDAMONE, PRATT and MAHONEY, Circuit Judges.

CARDAMONE, Circuit Judge:

Plaintiff John T. Ulrich appeals from the December 1, 1987 judgment and modified order of the United States District Court for the Western District of New York (Curtin, J.), which awarded him damages for injuries incurred at defendant Veterans Administration (VA) Hospital. The VA and the United States cross-appeal from the district court's January 14, 1980 order denying their motion to dismiss plaintiff's complaint on statute of limitations grounds. In its December 1, 1987 order the district court decreased Ulrich's original award for past and future pain and suffering because of certain VA benefits the plaintiff already was receiving. Because in this case the diminishment improperly took away with one hand what had been rightly given with the other, it may not be sustained.

FACTS

Ulrich was classified in 1971 as a 100 percent disabled veteran as a result of service-related catatonic schizophrenia. He entered the Psychiatric Service division of the VA Hospital in Buffalo, N.Y. (VA Buffalo) on May 5, 1976 for treatment related to this disability. On or about May 7, 1976--two days after being admitted--Ulrich fell or jumped from a smoke stack on hospital property and suffered serious injuries. He was taken to the Emergency Room at VA Buffalo, where doctors performed emergency surgery. Plaintiff remained hospitalized in the care of the surgical staff until July 22, 1976, when he transferred to another VA hospital for rehabilitative therapy. As a result of his fall, Ulrich is now a paraplegic with loss of bowel and bladder control.

Prior to the May 7, 1976 incident, Ulrich received VA benefits pursuant to 38 U.S.C. Sec. 314(j) (1982 & Supp. IV 1986) on account of his total mental disability. On November 4, 1976 the VA reviewed those benefits and found the paraplegia and related medical problems to be "disabilit[ies] directly due to and proximately the result of" Ulrich's service-related psychiatric disability and therefore substantially increased his benefits under Sec. 314(o ), retroactive to the date of the accident. The VA estimates the value of these added disability benefits, calculated in light of a 30-year life expectancy, to be $361,800. The VA also awarded plaintiff a sum to be used for home health services ("Aid and Attendance allowance") under Sec. 314(r). Further, plaintiff now qualifies for other ancillary VA benefits, such as sums to be applied toward the purchase of a home and car, as well as their adaptive modifications. As of April 1987 Ulrich had received, according to the government, an additional $192,921 in total benefits resulting from the VA's reclassification of his status.

On July 14, 1978 plaintiff submitted a formal notice of claim to the VA and the claim was denied as untimely. On February 5, 1979, he commenced the instant action against the defendants Veterans Administration Hospital and the United States in the Western District of New York pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 2401-2416 (1982). In his complaint plaintiff alleged that the defendants' negligence was the proximate cause of his paraplegia. The trial court originally granted defendants' motion to dismiss the complaint, but after reconsideration denied defendants' motion and reinstated the complaint. It is this January 14, 1980 order from which the government cross-appeals.

After a bifurcated non-jury trial, the district court found defendants liable for plaintiff's May 7, 1976 injuries based upon the VA's failure to supervise him following admission to the Psychiatric Service of VA Buffalo. On May 14, 1987 the trial court awarded Ulrich $500,000 for past and future pain and suffering, of which $125,000 was allocated to past pain and suffering and $375,000 to future pain and suffering. It made no award for past or future wages or past medical expenses, but did request more information from the parties as to plaintiff's future medical expenses.

On December 1, 1987 the trial court modified its previous order and issued its final judgment and order. In light of Rufino v. United States, 829 F.2d 354 (2d Cir.1987), it stated that the pain and suffering award also reflected an award for plaintiff's loss

of enjoyment of life. Taking into account the extra VA benefits that Ulrich received and will receive due to his injury, the court then reduced the May 14th $500,000 pain and suffering award to $125,000: $15,625 for past pain and suffering; $15,625 for past loss of enjoyment of life; $46,875 for future pain and suffering; and $46,875 for future loss of enjoyment of life. It held further that plaintiff's increased benefits were sufficient to cover his future medical needs and therefore refused to make an award for future medical expenses. The $125,000 award was discounted by the standard two percent rate. Ulrich appeals from the December 1, 1987 order.

DISCUSSION

The defendants' liability for the May 7, 1976 fall and the ensuing paraplegia is not contested on appeal. Rather, Ulrich challenges the court's reduction of the original $500,000 pain and suffering award to $125,000. He also argues that it was error to refuse to award any damages for future medical expenses. The VA and the United States contend that the trial court erred in denying their motion to dismiss the plaintiff's complaint on statute of limitations grounds. We first consider defendants' contention.

I Statute of Limitations

A cause of action under the FTCA must be brought within two years after the claim accrues. 28 U.S.C. Sec. 2401(b) (1982). Federal law determines when the period of limitations in Sec. 2401(b) begins to run. Kossick v. United States, 330 F.2d 933, 934-35 (2d Cir.), cert. denied, 379 U.S. 837, 85 S.Ct. 73, 13 L.Ed.2d 44 (1964); Kelly v. United States, 554 F.Supp. 1001, 1003 (E.D.N.Y.1983). Ulrich was injured on May 7, 1976 and filed his initial administrative claim with the VA more than two years later on July 14, 1978. The district court held that although the FTCA claim accrued on the date of injury, the statute of limitations was tolled under the "continuous treatment doctrine" until July 22, 1976--the date of Ulrich's discharge from VA Buffalo--and that his claim therefore was timely.

An FTCA action accrues when the plaintiff in the exercise of reasonable diligence knows both the existence and the cause of his injury. See United States v. Kubrick, 444 U.S. 111, 122-25, 100 S.Ct. 352, 359-61, 62 L.Ed.2d 259 (1979). Nonetheless, a number of courts--including our own--have recognized that where the plaintiff is in the continuing care of the negligent actor for the same injury out of which the FTCA cause of action arose, the statute of limitations may be tolled under certain circumstances until the end of the course of treatment. See, e.g., Wehrman v. United States, 830 F.2d 1480, 1485-86 (8th Cir.1987); Otto v. National Inst. of Health, 815 F.2d 985, 988 (4th Cir.1987); see also Kossick, 330 F.2d at 936 (discussing in dicta application of doctrine).

Two rationales support the "continuous treatment doctrine." One rationale is that it is not reasonable to expect a patient who is in the continuing care of a doctor to discover that the doctor's acts may be the cause of his injuries. See Kelly, 554 F.Supp. at 1003. This rationale in turn rests on four interrelated concerns. First, during treatment a negligent doctor may conceal important information from a patient. Ashley v. United States, 413 F.2d 490, 493 (9th Cir.1969); Kelly, 554 Supp. 1003. Second, the confidential relationship that exists between doctor and patient might inhibit the patient from questioning the care given during the existence of the relationship. Brown v. United States, 353 F.2d 578, 580 (9th Cir.1965); see Otto, 815 F.2d at 988; Kelly, 554 F.Supp. at 1003; Barrella v. Richmond Memorial Hosp., 88 A.D.2d 379, 383, 453 N.Y.S.2d 444 (2d Dept. 1982). Third, the chance that investigating the cause of an injury will interrupt care weighs against requiring a patient to discover an injury during a course of continuous treatment. Tyminski v. United States, 481 F.2d 257, 264 & n. 5 (3d Cir.1973); Kelly, 554 F.Supp. at 1003. Finally, the rationale is supported by the need for flexibility in determining the cause of a latent injury. Barrella, 88 A.D.2d at 383, 453 N.Y.S.2d 444. This first rationale is in large part consistent with the determination The second rationale for the doctrine holds it absurd to expect a patient being treated by a doctor or hospital to interrupt corrective treatment by instituting suit against either while under their continuing care. Borgia v. City of New York, 12 N.Y.2d 151, 156, 237 N.Y.S.2d 319, 187 N.E.2d 777 (1962), quoted with approval in Kossick, 330 F.2d at 936; see Kelly, 554 F.Supp. at 1004; Barrella, 88 A.D.2d at 383, 453 N.Y.S.2d 444. The patient's relationship with those caring for him is based upon trust in their medical skills. Where corrective treatment is needed, it often would be so plainly contrary to the patient's own interests in his cure and recovery to disrupt his relationship by serving a summons and complaint on those caring for him as to make the requirement to sue nonsensical. See Otto, 815 F.2d at 988; Barrella, 88 A.D.2d at 383, 453 N.Y.S.2d 444.

                of when a FTCA claim accrues under the Kubrick rule because a

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