Miller v. U.S.

Decision Date06 May 1991
Docket NumberNo. 90-2628,90-2628
Citation932 F.2d 301
PartiesKaren P. MILLER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

Clifford John Shoemaker, Vienna, Va., for plaintiff-appellant.

Gill Paul Beck, Office of the Judge Advocate Gen., Dept. of the Army, Washington, D.C., argued (Henry E. Hudson, U.S. Atty., Robert C. Erickson, Asst. U.S. Atty., Alexandria, Va., on brief), for defendant-appellee.

Before POWELL, Associate Justice (Retired), U.S. Supreme Court, sitting by designation, and PHILLIPS and WILKINS, Circuit Judges.

PHILLIPS, Circuit Judge:

The question is whether a wrongful death action brought under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346, by Karen Miller as executrix of the estate of Milica Petzak against the United States, claiming medical malpractice by government doctors as the cause of Mrs. Petzak's death, was time-barred. The district court held that it was and dismissed the claim by summary judgment.

We conclude that under Virginia law, which defines the nature of the claim, and federal law which defines the limitations period and the time of the claim's accrual, the action was time-barred, and could not be saved here by a "continuous treatment" theory. We therefore affirm.

I

On June 1, 1983, Mrs. Petzak, a military dependent, went to see Dr. W. Lamar Bomar, a physician employed by the federal government, at the Rader Health Clinic in Ft. Myer, Virginia. At the time, Mrs. Petzak was concerned about urinary frequency, and pain in her toes, left hip, and lower back. Dr. Bomar gave Mrs. Petzak a physical, during which he noted that her breasts were "within normal limits." He did not order a mammogram for Mrs. Petzak. She returned to Dr. Bomar several times in 1983, but not for any problems related to breast cancer. By the fall of 1983, Mrs. Petzak noticed a change in her left breast. She set up an appointment for a mammogram in December 1983, but canceled it when her husband suffered a stroke.

While visiting her husband at Walter Reed Army Medical Center (WRAMC) on January 3, 1984, Mrs. Petzak consulted a physician there for treatment of a cold. At this time, she also asked the physician to give her a breast examination. He found a suspicious area in her left breast and referred her to a surgeon. Mrs. Petzak met with the surgeon during the third week in that January, and he referred her for a mammogram. She had the mammogram performed on February 16, 1984, and on February 22, doctors informed her that the mammogram showed cancer in her left breast. Mrs. Petzak then went to see Dr. Bomar for the last time on February 28, 1984. At that visit Dr. Bomar refilled one of Mrs. Petzak's prescriptions and noted that doctors had performed a mammogram on Mrs. Petzak. Mrs. Petzak then underwent a mastectomy at WRAMC on March 9, 1984, and Dr. Bomar did not participate any further in her treatment.

On March 8, 1984, one day before her mastectomy, Mrs. Petzak wrote a letter to her daughter, Karen Miller, in which she stated that she had the option of proceeding with her mastectomy as scheduled, or trying to keep her left breast by delaying the operation and undergoing radiation treatment. Mrs. Petzak wrote that she planned to go through with the surgery, explaining that "[r]ight now, I think delay may be a factor of first importance." In this same letter, Mrs. Petzak expressed doubts about her future, and gave her daughter instruction about what to do if she died. Joint Appendix at 202.

One month later, on April 8, 1984, Mrs. Petzak wrote in her notes that "On 1 June 83, I had a physical.... In retrospect, a mammogram should have been ordered [by Dr. Bomar]...." Joint Appendix at 145. Mrs. Petzak died two years and one day later, on April 9, 1986.

Miller, as Mrs. Petzak's executrix, commenced a wrongful death action against the government under the FTCA on January 7, 1988, alleging that the negligence of government doctors in failing timely to diagnose her breast cancer proximately caused Mrs. Petzak's death. As indicated, the district court gave summary judgment for the government on the basis that the action was barred by the applicable two-year statute of limitations.

This appeal followed.

II

A plaintiff has an FTCA cause of action against the government only if she would also have a cause of action under state law against a private person in like circumstances. 28 U.S.C. Sec. 1346(b); Corrigan v. United States, 815 F.2d 954, 955 (4th Cir.1987). State law determines whether there is an underlying cause of action; but federal law defines the limitations period and determines when that cause of action accrued. Washington v. United States, 769 F.2d 1436, 1437-38 (9th Cir.1985). The limitations period under the FTCA is two years. 28 U.S.C. Sec. 2401(b). A medical malpractice claim under the FTCA accrues when the claimant first knows of the existence of an injury and its cause. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979).

Virginia's wrongful death statute does not create a new cause of action, but only a right of action in a personal representative to enforce the decedent's claim for any personal injury that caused death. See Va.Code Sec. 8.01-50; Grady v. Irvine, 254 F.2d 224, 227 (4th Cir.1958). 1 For this reason, a wrongful death action under Virginia law is necessarily time-barred if at the time of the decedent's death her personal injury claim based on the tortious conduct that ultimately caused death is already time-barred. Lawrence v. Craven Tire Co., 210 Va. 138, 169 S.E.2d 440, 441 (1969).

The government asserts here that Mrs. Petzak's claim for the personal injury that allegedly caused her death accrued no later than April 8, 1984, when she wrote in her notes that "[o]n 1 June 83, I had a physical.... In retrospect, a mammogram should have been ordered because of previous breast biopsies, family history, and post-menopausal age 59." Joint Appendix at 145. Thus, according to the government, by April 8, 1984, at the latest, Mrs. Petzak knew of her cancerous condition and believed that its then advanced state resulted from the failure of Dr. Bomar to have ordered a mammogram which would have detected it earlier. Because Mrs. Petzak died on April 9, 1986, the two-year statute of limitations by then already had run on any claim based on negligence in failing to make a timely diagnosis. It was on this basis that the district court dismissed the wrongful death action as time-barred.

On this appeal, Miller makes two principal arguments that her claim was not time-barred. First, she contends that Mrs. Petzak's personal injury claim accrued later than April 8, 1984, because at that time she did not know she was going to die, and in fact, by 1985 optimistically believed that she was cancer-free. Second, Miller argues that the continuous treatment doctrine applies to Mrs. Petzak's case. Under that theory, as applied here, because government doctors continued up until the date of Mrs. Petzak's death to treat her, the statute of limitations had not commenced to run at the time of her death.

We consider these two theories in turn.

A

Although her executrix does not dispute that as of April 8, 1984, Mrs. Petzak realized that she had breast cancer that an early mammogram would have detected, she argues that Mrs. Petzak's claim could not have accrued on that date because Mrs. Petzak did not then realize that the failure to make early diagnosis was going to cause her death. In support of this argument Miller asserts that in the spring of 1985, Mrs. Petzak in fact believed that she was cancer-free and was therefore optimistic about eventual recovery. From this, she contends that it would be "absurd" to expect Mrs. Petzak to file a malpractice action when she thought that she was cancer-free and was going to recover. She concludes from this that the claim could not have accrued until Mrs. Petzak realized that she was not cured.

There is some surface appeal to this argument, but it fails, as do many arguments against the seeming harshness of limitations defenses, in the face of the Kubrick first-discovery rule. Under Kubrick, a medical malpractice claim such as that here in issue accrues when a claimant first knows of an injury and its cause, and not only later when it is first realized that a particular legal claim may be maintainable in consequence of the injury. The question under Kubrick and Virginia wrongful death law in combination is not, therefore, whether at the critical time Mrs. Petzak knew that she had a personal injury that would eventually cause her death, but only whether she then knew that she had an injury and, as is now alleged, an injury caused by the failure of Dr. Bomar to have diagnosed her condition in time to prevent or minimize the injury that she indisputably then knew to exist. 2

Unless the application of Kubrick 's first-discovery rule to the undisputed facts above summarized can somehow be avoided, the district court was correct in finding the action barred by Mrs. Petzak's discovery two years and a day before her death of the condition that finally caused her death, and of the cause of the condition in the failure to make timely diagnosis of its existence.

B

As indicated, Mrs. Petzak's executrix seeks to avoid application of the Kubrick rule, by invoking the "continuous treatment" theory. Under that theory as applied by some courts, the statute of limitations does not begin to run on a medical malpractice claim upon a claimant's initial discovery of an injury and its cause so long as the claimant remains under the "continuous treatment" of a physician whose negligence is alleged to have caused the injury; in such circumstances, the claim only accrues when the "continuous treatment" ceases.

We are among the courts that have recognized and applied this theory, though it effectively trumps a rigid...

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