932 F.2d 301 (4th Cir. 1991), 90-2628, Miller v. United States

Docket Nº:90-2628.
Citation:932 F.2d 301
Party Name:Karen P. MILLER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Case Date:March 06, 1991
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 301

932 F.2d 301 (4th Cir. 1991)

Karen P. MILLER, Plaintiff-Appellant,

v.

UNITED STATES of America, Defendant-Appellee.

No. 90-2628.

United States Court of Appeals, Fourth Circuit

March 6, 1991

        Argued Oct. 31, 1990.

        Amended by order filed May 6, 1991.

Page 302

        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

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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...

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