Brown v. United States

• Decision Date: 16 November 1965
• Docket Number: No. 19446.,19446.
• Citation: 353 F.2d 578
• Parties: Betty Jean BROWN, a minor, by Owen Walter Brown, her guardian ad litem, and Owen Walter Brown, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

353 F.2d 578 (1965)

Betty Jean BROWN, a minor, by Owen Walter Brown, her guardian ad litem, and Owen Walter Brown, Appellants, v. UNITED STATES of America, Appellee.

No. 19446.

United States Court of Appeals Ninth Circuit.

November 16, 1965.

Maurice V. Boudreau, Schall, Nielsen, Boudreau & Price, San Diego, Cal., for appellants.

Manuel L. Real, U. S. Atty., Donald A. Fareed, Asst. U. S. Atty., Chief, Civil Sec., Dzintra I. Janavs, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS, JERTBERG and ELY, Circuit Judges.

ELY, Circuit Judge:

This is an appeal from a judgment in favor of the defendant below, the United States of America. By stipulation of the parties the sole issue in a separate trial was whether the appellants' claims under the Federal Tort Claims Act, 28 U.S.C. § 1346, were barred by the two-year limitations period specified for such actions in 28 U.S.C. § 2401(b). The District Court held that the action was barred. We agree.

Betty Jean Brown, a minor, was born prematurely on February 21, 1955, in the United States Naval Hospital at Corpus Christi, Texas. Weighing only one pound ten ounces at birth, the infant was placed in an incubator, and oxygen was administered to save her life. The life-saving oxygen was heavily administered, and when Betty was released from the hospital on May 5, 1955, her parents were told that her vision would be impaired because of its use. In 1956 Betty was taken by her parents to the United States Naval Hospital at Bethesda, Maryland, where the parents were told that Betty was totally blind, suffering from retrolental fibroplasia, and that in all likelihood, the affliction was permanent. They were also told that the blindness was due to the use of oxygen after her birth.

Betty's father, appearing in this case as his child's guardian ad litem and also for himself individually, has been in the Navy since 1946. Both parents testified that they had never consulted a private physician for the child's treatment, that at all times she had been attended by naval doctors, and that at no time were they told that there was negligent treatment. It was not until 1962, when the parents were consulting an attorney regarding an insurance claim involving Betty's blindness, that they learned that a claim against the Government might possibly lie. The action was filed on June 14, 1963, approximately seven years and four months after the alleged negligence occurred.

In medical malpractice actions brought under the Federal Tort Claims Act, the claim "accrues against the Government when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice." Hungerford v. United States, 307 F.2d 99, 102 (9th Cir. 1962); Quinton v. United States, 304 F.2d 234 (5th Cir. 1962). It is well established that minority does not toll the limitations period prescribed in the Federal Tort Claims Act. Pittman v. United States, 341 F.2d 739 (9th Cir. 1965); United States v. Glenn, 231 F.2d 884 (9th Cir.), cert. denied, 352 U.S. 926, 77 S.Ct. 223, 1 L.Ed.2d 161 (1956). Implicit in the Pittman decision is that the parents or guardians of a minor must preserve the minor's claim by timely action. As Chief Judge Chambers put it in Pittman, "We would be blind if we didn't know that when there is money around just about all of the claims will get to court through guardians ad litem. * * * One can see that Congress was alarmed about stale claims when it passed the Act. * * * We do not believe that Congress could have intended that infants have up to 21 years for a statute of limitations." Pittman v. United States, supra, 341 F.2d at 741.

Appellants, confronted with the existing state of the law, are left only with their contentions that they were entitled to place trust and confidence in government doctors and thus were not...