Barnhart v. US, IP 88-274-C.

Citation721 F. Supp. 176
Decision Date28 November 1988
Docket NumberNo. IP 88-274-C.,IP 88-274-C.
PartiesStephen BARNHART, Plaintiff, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — Southern District of Indiana

721 F. Supp. 176

Stephen BARNHART, Plaintiff,
UNITED STATES of America, Defendant.

No. IP 88-274-C.

United States District Court, S.D. Indiana, Indianapolis Division.

November 28, 1988.

721 F. Supp. 177

Raymond F. Fairchild, Indianapolis, Ind., for plaintiff.

Harold R. Bickham, Asst. U.S. Atty., Office of the U.S. Atty., Indianapolis, Ind., for defendant.


BARKER, District Judge.

This matter is before the court on a motion for summary judgment filed by the defendant, United States of America, on July 20, 1988. The plaintiff, Stephen Barnhart, responded on August 8, 1988, to which the government replied on August 17, 1988. A hearing on the motion for summary judgment was held on November 7, 1988. For the reasons set forth below, the defendant's motion is GRANTED.


The plaintiff, Stephen Barnhart, who was born on March 15, 1949, served in the United States Army from September 1967 through March 1968. Near the end of his military service, Barnhart suffered a psychotic episode and was diagnosed as schizophrenic by Veterans Administration ("VA") hospital personnel. Over the next twelve years, with only occasional breaks, Barnhart was treated for his condition with large doses of anti-psychotic medication prescribed at various VA facilities. Although most of Barnhart's hospitalization occurred at a San Diego, California, VA hospital, he also received treatment at Louisville and Lexington, Kentucky. The medication taken by Barnhart in accordance with doctors' instructions consisted primarily of Thorazine, but also included other neuroleptic drugs such as Mellaril, Prolexin, Haldol, Taractin and Stellazine. Administered to Barnhart in doses reaching 400 to 800 miligrams a day, the medication was used to control his psychotic behavior. Unfortunately, as a result of being given large doses of tranquilizers over long periods of time, Barnhart developed an affliction known as tardive dyskinesia.

Tardive dyskinesia, identified and documented as such since approximately 1973, is an irreversible neurological disorder induced by ingestion of major tranquilizers for extended periods of time. The disease may reverse itself if drug therapy is immediately terminated upon the onset of its symptoms. If drug therapy is discontinued and the symptoms persist, the symptoms will become permanent. They include a slight quivering of the tongue, loss of voluntary musculature, including the muscles of the face, head, neck, limbs, hands, feet and torso. Respiration and swallowing also may be affected. The disease may also cause abnormal spasms, tics, contortions and bizarre slow, writhing movements. Although the symptoms range in severity, the disease can become totally disabling and is very disfiguring, even in mild forms.

In an affidavit, Dr. Peter Breggin, a psychiatrist, testified that he examined the plaintiff on March 1, 1986, reviewed patient records, and talked with the plaintiff and his mother in numerous telephone conversations. He noted that the plaintiff exhibited symptoms of mental deterioration typical of organic brain disease associated with tardive dyskinesia. Dr. Breggin observed the following symptoms in plaintiff: difficulty

721 F. Supp. 178
concentrating and focusing attention; difficulty planning ahead and anticipating the future or handling complex decision-making; short term memory impairment and retrograde amnesia; and emotional instability, especially increased irritability. Breggin further opined that these symptoms have severely impaired the plaintiff and rendered him unable to exercise control over his own legal interests since the diagnosis of tardive dyskinesia. With regard to the plaintiff's underlying schizophrenia, Dr. Breggin stated that the plaintiff's schizophrenia is "in remission," meaning that the more severe manifestations of the disease are no longer present. However, some of the plaintiff's schizophrenic symptoms have remained, including paranoia, irrational fear of the VA, and extreme personal helplessness with a passive-dependent character

Currently, Barnhart is rated by the VA as having a 100% service-related disability, consisting of schizophrenia and tardive dyskinesia. He receives disability payments for his support and the support of his mother, with whom he lives. Barnhart is considered competent by the VA.

It is undisputed that neither the plaintiff nor his mother, with whom he resided, were initially advised that the plaintiff was suffering from tardive dyskinesia. It was not until the plaintiff was examined by Dr. Charles Rehn in a neurological consultation that the condition became known. Dr. Rehn, in a letter written on July 13, 1983, stated that he had seen the plaintiff and concluded that "he has severe tardive dyskinesia from major tranquilizer treatment for schizophrenia in the past." In the letter, Dr. Rehn related that he discussed at length the plaintiff's case with the plaintiff's attorney. The letter also indicates that a copy was sent to plaintiff's attorney.

On March 22, 1985, the plaintiff filed an action in federal district court against Smithkline Beckman Corporation ("Smithkline Beckman"), a manufacturer and seller of the drug Thorazine. In that action, plaintiff alleged that he developed tardive dyskinesia and other conditions as a direct result of taking the Thorazine manufactured and sold by Smithkline Beckman. The action was subsequently settled.

On February 2, 1987, the plaintiff filed an administrative tort claim with the VA. In his claim, the plaintiff alleged that the VA's negligent medical care resulted in the development of tardive dyskinesia. On January 19, 1988, the VA denied the claim on the grounds that it had been untimely filed.

The plaintiff then filed, on March 8, 1988, the complaint in this action against the defendant United States. He alleges that he developed tardive dyskinesia as a result of the VA's negligent medical care. The government has responded with its motion to dismiss, maintaining that the plaintiff's action is barred because the plaintiff's administrative tort claim, which is the prerequisite to his judicial action, was not filed in a timely manner.


The court notes at the outset that the government has requested to transform what is captioned its motion for summary judgment into a motion to dismiss for lack of subject matter jurisdiction. Fed.R. Civ.P. 12(b)(1). The court accedes to the government's request to treat the motion as a motion to dismiss, agreeing that the statute of limitations under the Federal Tort Claims Act is a jurisdictional issue which must be resolved before proceeding to trial. Crawford v. United States, 796 F.2d 924, 927-28 (7th Cir.1986). Accordingly, the court now turns to the issue to be resolved and a determination of the motion to dismiss.

It is well-established that the United States enjoys immunity from suit unless it specifically consents to be sued. United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 357, 62 L.Ed.2d 259 (1979); Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct....

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