Gould v. U.S. Dept. of Health & Human Services

• Decision Date: 18 June 1990
• Docket Number: No. 88-3091,88-3091
• Citation: 905 F.2d 738
• Parties: Regis Ann GOULD, as Parent Guardian and next of friend of Aaron Russell Gould and Adrienne Marie Gould, Regis Ann Gould, as Special Administrator of the Estate of Gary Francis Gould; Regis Ann Gould, Plaintiffs-Appellants, v. U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES; Public Health Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 738

905 F.2d 738

Regis Ann GOULD, as Parent Guardian and next of friend of Aaron Russell Gould and Adrienne Marie Gould, Regis Ann Gould, as Special Administrator of the Estate of Gary Francis Gould; Regis Ann Gould, Plaintiffs-Appellants, v. U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES; Public Health Service, Defendants-Appellees.

No. 88-3091.

United States Court of Appeals Fourth Circuit.

Argued Feb. 5, 1990.

Decided June 8, 1990.

As Amended June 18, 1990.

Joseph Cornelius Ruddy, Jr., Hyattsville, Md., for plaintiffs-appellants.

Lowell V. Sturgill, Jr., U.S. Dept. of Justice, Washington, D.C., for defendants-appellees.

Breckinridge L. Willcox, U.S. Atty., Juliet A. Eurich, Asst. U.S. Atty., Baltimore, Md., Sally K. Trebbe, Office of the Gen. Counsel, Dept. of Health and Human Services, on brief, Washington, D.C., for defendants-appellees.

Before ERVIN, Chief Judge, and RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, CHAPMAN, WILKINSON, and WILKINS, Circuit Judges, sitting en banc.

CHAPMAN, Circuit Judge:

Regis Ann Gould filed this action individually, and in the dual capacity as special administrator of the estate of her late husband, Gary Francis Gould, and as a parent guardian and next friend of her minor children, Aaron Russell Gould and Adrienne Marie Gould, seeking damages for the alleged wrongful death of Gary Francis Gould resulting from alleged medical malpractice. The district court granted the defendants' motion for summary judgment and found that the claim was time barred under 28 U.S.C. Sec. 2401(b). Appellant asserts that her claim was timely because such claim did not accrue until she learned that one of the treating physicians was a federal employee. We find that the cause of action accrued when the plaintiffs learned of both the existence and the cause of the decedent's injury, and we affirm.

I

On August 27, 1980, the decedent, Gary Francis Gould, began experiencing headache, fever, nausea, stiff neck and other symptoms of illness. These conditions persisted and on the morning of August 30, 1980, he went to the South County Family Health Care Corporation in Anne Arundel County, Maryland, and was treated by James Kevin O'Rourke, M.D., a commissioned officer of the United States Public Health Service assigned to the National Health Service Corps and working at the health center. The Commissioned Corps of the Public Health Service is established and administered pursuant to the Public Health Service Act, 42 U.S.C. Secs. 204 et seq. The National Health Service Corps is established pursuant to 42 U.S.C. Sec. 254d. The purpose of the Corps is to provide health care providers in areas designated as health manpower shortage areas, and the Public Health Service is an agency in the Department of Health and Human Services.

After being treated by Dr. O'Rourke, Mr. Gould returned home, but his condition deteriorated. He called Dr. O'Rourke again, and on the afternoon of August 30, 1980, he was admitted to the Anne Arundel General Hospital where Dr. Barry R. Nathanson, M.D., a civilian employee of the United States Public Health Service in the National Health Service Corps, consulted with Dr. O'Rourke about Mr. Gould's condition. Each of these doctors was a federal employee assigned to the South County Family Health Care Corporation in a health manpower shortage area.

Numerous tests were performed with negative results and it was thought that the symptoms were from a viral syndrome. However, when a rash developed on September 3, Dr. O'Rourke suspected Rocky Mountain Spotted Fever, and a consultation with an infectious disease specialist confirmed this diagnosis. Antibiotic therapy was immediately begun, but Mr. Gould died at the hospital on September 4, 1980. During the course of treatment, particularly prior to the diagnosis of Rocky Mountain Spotted Fever, members of the Gould family complained about the deterioration in Gould's condition and were advised that the condition was a virus.

In a letter of August 8, 1983, plaintiffs' counsel requested information from the Department of Public Health regarding the "exact work status" of Dr. O'Rourke. The Department of Health and Human Services (HHS) was promptly notified of this request and responded to the inquiry. On September 2, 1983, a HHS attorney notified plaintiffs' attorney by telephone of Dr. O'Rourke's status as a federal employee at the time he treated the decedent. ¹ The following day, plaintiffs' counsel was advised by HHS that Dr. Nathanson was also a federal employee at the time of such treatment. Plaintiffs' attorney received written confirmation of Dr. O'Rourke's employment status on September 26, 1983, and a similar notice of Dr. Nathanson's status on December 16, 1983.

The plaintiffs took no action against the United States at this time, but on September 2, 1983, within hours of the expiration of the claim under Maryland's three-year statute of limitations, plaintiffs initiated a claim against the individual physicians before the Health Claims Arbitration Board alleging negligent care and treatment of the decedent. On December 16, 1985, the action before the Health Claims Arbitration Board was dismissed upon a finding that the doctors were employed by the United States Public Health Service and the alleged wrongdoing fell within the scope of their employment, and they were not subject to suit in a state court or forum pursuant to 28 U.S.C. Sec. 1346(b).

In early August 1985, prior to dismissal of the claim before the Health Claims Arbitration Board, an administrative tort claim was presented to the Department of Health and Human Services, Division of Public Health Service, alleging negligence by National Health Service Corp physicians in failing to expeditiously diagnose and treat Gary F. Gould for Rocky Mountain Spotted Fever. This claim was denied in August 1986 on the ground that it was barred by the statute of limitations applicable to claims prosecuted under the Federal Tort Claims Act, 28 U.S.C. Sec. 2401(b).

In February 1987, plaintiffs initiated the present action in the United States District Court for the District of Maryland. The defendants raised the bar of the two-year limitation provision contained in 28 U.S.C. Sec. 2401(b). Plaintiffs countered that she had neither direct nor implicit knowledge of the status of the physicians as federal employees, and that the statute of limitations should be tolled until plaintiffs were made aware of the fact that the physicians were federal employees, because the exercise of due diligence would not have revealed this fact. The district court rejected this argument and found that the statutory period had expired, and that the court lacked jurisdiction as a matter of law. We agree and affirm.

II

It is well established that the United States Government, as sovereign, is immune from suit unless it consents to be sued. The terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). Congress created a limited waiver of sovereign immunity in the FTCA. 28 U.S.C. Secs. 2671-2680. This waiver permits suit only on terms and conditions strictly prescribed by Congress. Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 1197, 18 L.Ed.2d 244 (1967).

Although the FTCA gives limited consent to suits against the federal government for torts committed by its employees while acting within the scope of their official duties, the Act specifically requires an initial presentation of a claim to the appropriate federal agency within two years of the accrual of the cause of action and a final denial by that agency as a jurisdictional prerequisite to suit under the Act. 28 U.S.C. Secs. 2401(b), 2675(a); Kielwien v. United States, 540 F.2d 676, 679 (4th Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 491, 50 L.Ed.2d 588 (1976); West v. United States, 592 F.2d 487, 492 (8th Cir.1979).

The applicable statute of limitation within the framework of the FTCA provides: "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...." 28 U.S.C. Sec. 2401(b). This time limitation is jurisdictional and nonwaivable. Kielwien, 540 F.2d at 679.

Statutes of limitation, which "are found and approved in all systems of enlightened jurisprudence," Wood v. Carpenter, 101 U.S. 135, 139, 25 L.Ed. 807 (1879), represent a legislative determination that "even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them." Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944). While affording plaintiffs what legislatures deem reasonable time to present claims, statutes of limitation give defendants and courts a degree of protection from having to confront controversies in which the search for truth may be thwarted by the loss of evidence, whether by the death or disappearance of witnesses, fading memories, loss of physical evidence, or the like. United States v. Marion, 404 U.S. 307, 322 n. 14, 92 S.Ct. 455, 464 n. 14, 30 L.Ed.2d 468 (1971); Burnett v. New York Central Railroad Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941 (1965).

Section 2401(b) represents a deliberate balance struck by Congress whereby a limited waiver of sovereign immunity is conditioned upon the prompt presentation of tort claims against the government. The Supreme Court, in recognizing this balance, has instructed the judiciary to abstain from extending or narrowing Sec. 2401(b) beyond that which Congress intended and thereby defeating its obvious purpose. United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 356, 62 L.Ed.2d 259 (1979).

Applying these principles, ...