Burgess v. U.S.

• Decision Date: 18 October 1984
• Docket Number: No. 83-8727,83-8727
• Citation: 744 F.2d 771
• Parties: Omar Reshad BURGESS, a minor by father and next friend, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 771

744 F.2d 771

Omar Reshad BURGESS, a minor by father and next friend Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 83-8727.

United States Court of Appeals Eleventh Circuit.

Oct. 18, 1984.

Billy G. Fallin, Moultrie, Ga., for plaintiff-appellant.

Gregory J. Leonard, Asst. U.S. Atty., Macon, Ga., Jack Hood, Macon, Ga., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before KRAVITCH and CLARK, Circuit Judges, and ALLGOOD ^*, District Judge.

PER CURIAM:

Omar Reshad Burgess, through his father and next friend, brought this suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346(b) and 28 U.S.C. Sec. 2674, for damages allegedly resulting from negligence on the part of Army doctors in connection with his birth. The district court granted the government's motion to dismiss, holding that Burgess had failed to file timely notice of his claim pursuant to 28 U.S.C. Sec. 2401(b) which bars any tort claim against the United States unless it is presented in writing to the appropriate federal agency within two years after such claim accrues. Because we find that Burgess did comply with the requirements of 28 U.S.C. Sec. 2401(b) we reverse and remand for further proceedings.

I. BACKGROUND

Appellant Burgess was born on September 5, 1978 at the United States Army Hospital, Fort Stewart, Georgia. His delivery was complicated when his head emerged but his shoulders could not follow. After several procedures failed, the attending physician finally broke both of appellant's clavicles. The fracture injured the right brachial plexus and caused what is known as Erb's Palsy. ¹

Appellant's parents learned, either on the day of their child's birth or on the next day, that appellant's clavicles had been broken. They did not know at that time that sustained nerve damage would result. ² In her affidavit, appellant's mother states that while she was fully aware that the child's arm was not functional on September 6, 1978, "she was reassured that all would be okay with her son's arm and she had every reason to believe that it would." Appellant's father states in his affidavit that although he knew of his son's broken bones, "he had no reason to believe there was any permanent injury to his son." Hospital records indicate that, upon her release from the hospital on September 8, 1978, Burgess' mother was instructed on how to perform physical therapy for her son, but these records do not show that she was told of possible damage to the infant's brachial plexus at that time. On September 18, 1978, the physician in charge suggested "counseling and reassurance" for appellant's mother. It was not until the September 29, 1978 entry, however, that the Chronological Report of Medical Care first reflects the physicians' explanation to appellant's parents of the possible nerve damage. On October 4, 1978, the parents discussed the results of tests with a neurosurgeon. They contend that it was not until these September 29 and October 4 discussions with physicians that they became aware that, because of damage to his right brachial plexus, their son would not fully have the use of his right arm.

On September 3 and September 12, 1980, appellant's attorney sent letters to the Army making a demand for damages. Only the September 12, 1980 letter specified a sum certain in damages. ³ This letter was received by the Army on September 15, 1980. The United States Army Claims Service denied Burgess' administrative claim for failure to file such claim in a timely manner and appellant filed the action giving rise to this appeal. The United States moved to dismiss based on lack of subject matter jurisdiction; this motion was granted by the district court. The district court ruled that the actionable injury, if any, was the breaking of appellant's clavicles which took place at the time of his birth. The court further found that appellant's parents knew that the clavicles were broken and that their child's arm was not functioning properly as of September 6, 1978, and that such knowledge was all that was required for the statute of limitations to begin to run.

II. PERIOD FOR FILING FTCA CLAIM AND STATUTE OF LIMITATIONS

The government argues, and appellant concedes, that Burgess' claim is controlled by the two-year statute of limitations of 28 U.S.C. Sec. 2401(b). That section provides in relevant part:

A tort 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 ....

The disputed issue here is when the claim accrued.

This court has adopted the general rule that claims for malpractice under the FTCA accrue when a claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice. Coyne v. United States, 411 F.2d 987 (5th Cir.1969); Beech v. United States, 345 F.2d 872 (5th Cir.1965); Quinton v. United States, 304 F.2d 234 (5th Cir.1962). ⁴ See also Waits v. United States, 611 F.2d 550 (5th Cir.1980). This approach, followed by a number of other circuits, ⁵ recognizes that injury in medical malpractice cases may not manifest itself until many years after the event which causes the injury. The rule is based on the Supreme Court decision in Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), in which the Court held that a claim under the Federal Employers Liability Act did not accrue until the plaintiff's injury manifested itself because of the "unknown and inherently unknowable" effects of silica dust. Id. at 169, 69 S.Ct. at 1024. The Court found that the claimant should not be barred because of his "blameless ignorance." Id. at 170, 69 S.Ct. at 1024. In the more recent case of United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), the Supreme Court refined this standard. Distinguishing knowledge of the existence and cause of any injury from knowledge of legal rights pursuant to that injury, the Court found that only knowledge of the cause and existence of an injury is required before the statute of limitations begins running in a FTCA claim. ⁶ This distinction was based on what the Court deemed knowable by the claimant:

That he had been injured in fact may be unknown or unknowable until the injury manifests itself; and the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain.

Id. at 122, 100 S.Ct. at 359.

In the present case, it is precisely the appellant's parents' inability to know the existence of appellant's injury that is at issue. Appellee claims that the only injury to appellant was the breaking of his clavicles on September 5, 1978, which the parents had knowledge of by September 6, 1978, and that knowledge of permanent injury as a result of the broken bones is irrelevant to the running of the statute of limitations. This Court finds, however, that the injury in question is the damage to the infant's right brachial plexus which caused Erb's Palsy. Although the injury to the brachial plexus occurred on September 5, 1978, when the infant's bones were broken, the record supports appellant's contention that his parents were not aware of this injury and the resulting nerve damage until at least September 29, 1978. ⁷ Nothing that appellant's parents were told prior to that date would lead a reasonable person to suspect that the breaking of the clavicle would cause Erb's Palsy. ⁸ Rather, any information concerning the nerve damage was within the exclusive knowledge of the government's physicians at that time. The Burgesses acted reasonably in relying upon the government's representations and assurances concerning appellant's condition. Thus, since appellant's parents did not know of the existence of the injury until the physicians made them aware of it on September 29, 1978, ⁹ the statute of limitations commenced running at that time and appellant properly filed his claim within the two-year period.

For the foregoing reasons, the judgment of the district court is REVERSED and REMANDED for a trial on the merits of Burgess' malpractice claim.

* Honorable Clarence W. Allgood, U.S. District Judge for the Northern District of Alabama, sitting by designation.

1 Erb's Palsy, or brachial plexus palsy, is defined as paralysis of the muscles of the upper arm (deltoid, biceps, brachialis, anterior, etc.) due to a lesion of the brachial plexus or of the roots of the fifth and sixth cervical nerves. Stedman's Medical Dictionary, 21st Edition.

2 It is unclear when the physicians involved learned of appellant's nerve injury. Hospital records indicate that appellant's condition was in the process of being diagnosed throughout the month of September. Notwithstanding certain records reporting a "normal" birth, this process began as early as September 5, 1978, when one doctor requested a radiological report on appellant. In addition, the discharge record on September 8, 1978, states that the infant has "Total right brachial plexus palsy...." There is no evidence, however, that appellant's parents were privy to this information.

3 Appellee claims that only the September 12, 1980 notice was valid because the first notice failed to designate a sum certain as required by 28 C.F.R. Sec. 14.2(a) which provides:

(a) For purposes of the provisions of 28 U.S.C. Sec. 2401(b) and 2672, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal...