Caron v. U.S.

• Decision Date: 23 December 1976
• Docket Number: No. 76-1194,76-1194
• Citation: 548 F.2d 366
• Parties: Monique G. CARON et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 366

548 F.2d 366

Monique G. CARON et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.

No. 76-1194.

United States Court of Appeals First Circuit.

Argued Sept. 8, 1976.

Decided Dec. 23, 1976.

Everett C. Sammartino, Asst. U. S. Atty., Providence, R. I., with whom Lincoln C. Almond, U. S. Atty., Providence, R. I., was on brief, for defendant-appellant.

John F. Dolan, Providence, R. I., with whom Leonard A. Kiernan, Jr., Providence, R. I., was on brief, for plaintiffs-appellees.

Before COFFIN, Chief Judge, CLARK, Associate Justice, U. S. Supreme Court (Ret.), ^* CAMPBELL, Circuit Judge.

Mr. Justice CLARK:

Ernest Caron and his wife, Annette, brought this medical malpractice action against the United States on behalf of themselves and their twelve-year-old daughter, Monique, under the provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671-2680. The case was tried to the court without a jury, and the District Judge found that while the Carons were stationed at the Custer Air Force Base in Battle Creek, Michigan, on August 12, 1963, Monique, then a normal four-month-old baby, was negligently given immunization injections, by an airman stationed at the Base dispensary, consisting of diphtheria, pertussis and tetanus shots (DPT), oral polio serum and typhoid shot, adult dose. The shots brought on convulsions and have resulted in Monique having continual grand mal seizures, permanent mental retardation of marked severity with disturbed behavior and a very guarded outlook; together with the mentality of a four and one-half-year-old child. The Court awarded the parents $49,280 and Monique $656,326.00.

The Government raises three points of error: (1) The cause of action was not brought within two years of the time that it accrued under 28 U.S.C. § 2401(b); (2) the Carons did not sustain the burden of proving the Government was negligent; and (3) the damage award is not supported by the evidence and is excessive. We affirm the judgment. The District Judge has filed two detailed opinions, one on liability and a subsequent one on damages, both reflecting careful and prudent consideration and obviating the necessity of a full-dress opinion here. We therefore go immediately into our consideration of the claimed errors.

1. The Carons' claims were barred on 28 U.S.C. § 2401(b) :

( a) We start with the proposition that the Federal Tort Claims Act itself provides that the Carons' causes of action must be filed "within two years after such claim accrues." In determining when the Carons' claims accrued, the trial judge applied the law of Michigan, following a decision of the First Circuit in Tessier v. United States, 269 F.2d 305 (1959) and Portis v. United States, 483 F.2d 670 (4th Cir. 1973). He found that Michigan followed the "discovery rule," under which the cause of action accrues when the malpractice is discovered or in the exercise of reasonable diligence should have been discovered. Dyke v. Richard, 390 Mich. 739, 747, 213 N.W.2d 185 (1973). The Government urges us to ignore Dyke as violative of the separation of powers doctrine. The short answer to this is that separation of power principles do not apply to the States, cf. Dreyer v. Illinois, 187 U.S. 71, 84, 23 S.Ct. 28, 47 L.Ed. 79 (1902), and under Erie v. Tomkins, 304 U.S. 64, 58 S.Ct 817, 82 L.Ed. 1188 (1938), we cannot second-guess the interpretation of the Michigan Supreme Court. The Government urges that we apply federal law citing cases in six circuits. ¹ However, our examination of these cases reveals that Michigan and federal law are identical on the point, each applying the "discovery rule." We, therefore, hold that the District Court was correct in applying the "discovery rule."

(b) The Government admits that the alleged act of malpractice occurred on August 12, 1963 when the combination of the DPT, oral polio serum and typhoid shots were administered to Monique at the Air Force Base dispensary. The trial court found that the Carons did not discover the cause of the convulsions until 1973 when they enlisted the assistance of Dr. Yazbak, Monique's doctor from 1965-1972, in placing Monique in the Ladd School, a Rhode Island state institution for the mentally retarded. He was able to secure from the Air Force the medical records of the Air Force Base dispensary, which were previously unobtainable, and those of the Leila Post Montgomery Hospital at Grand Rapids, Michigan, where Monique had been hospitalized for a week in February 1964. Upon examination of these records, Dr. Yazbak concluded that the combination of the DPT, oral polio and typhoid shots was the cause of Monique's convulsions. He so advised Mrs. Caron on November 21, 1973. Claim was thereafter made to the Air Force on January 18, 1974, and suit was filed on May 31, 1974.

In reviewing the District Judge's finding that the Carons did not discover the cause of Monique's condition until 1973, we must consider the entire record in this case. We must reverse if we are left with a definite and firm conviction that the trial court erred in its finding. See United States v. U. S. Gypsum, 333 U.S. 364, 395-399, 68 S.Ct. 525, 92 L.Ed. 746 (1948). Here, our review of the record persuades us that no mistake was made.

However, the Government insists that the Carons had always questioned whether 'the shots' caused Monique's condition . . . As early as February, 1964, the Carons had related to a physician that 'the shots' possibly had caused Monique's convulsions.

It supports this statement by Exhibit 9 of the records of the Leila Post Montgomery Hospital.

However an examination of Exhibit 9 shows that the Government has outspoken itself. It has totally ignored the report of Dr. Levy dated February 2, 1964, on the third page, entitled "Physical Examination", where the doctor finds:

Impression: Convulsive seizure. Cause undetermined. (Emphasis supplied)

The Government has also overlooked the glaring omission in all of the medical reports of the Leila Post Montgomery Hospital (Exhibit 9) that Monique was also given an adult shot of typhoid serum at the same time that she received the DPT and oral polio immunization on August 12, 1963. All of the medical testimony emphasized that it was the combination of shots that caused the convulsions and subsequent brain damage to Monique. As Dr. Peter testified:

With respect to the DPT which the child received in the normal dosage I would say there was no obvious negligence; however in the case of typhoid I think this was gross negligence.

It was Dr. Goulet, the Custer Air Force Base physician, who examined Monique on August 12, 1963, soon after the immunization was given. He found:

Patient convulsed in grand mal fashion for almost forty five minutes . . . Examination essentially negative . . . Presumed this is a febrile convulsion secondary to typhoid inoculation.

It was the Custer Air Force Base Dispensary that arranged for Monique to be admitted to the Leila Post Montgomery Hospital on February 1, 1964 for "investigation." However, it failed to advise the hospital that Monique had been given an adult shot of typhoid along with the DPT and polio vaccine on August 12, 1963.

It is true that Exhibit 9 also relates: "The mother states that the post convulsive seizures began with the first DPT injection". But this is not to say that the DPT shots caused the convulsions. Indeed, in the whole record, not a single doctor diagnosed the convulsions as stemming from the inoculations. Even Dr. Goulet, the sole witness for the Government, testified that he thought that it was a febrile convulsion, benign type. He assured the Carons everything would be all right. On August 29, 1963, when Mrs. Caron advised Dr. Goulet that she was going to take Monique to a private physician, again he assured her that she was going to be all right; that there was no need for her to consult a private physician; consequently she did not further press her request for the Dispensary records. Significantly those records include a report from Dr. Goulet covering the August 29th visit as follows:

Mother quite hostile and blames change in child's eating behavior on recent convulsive episode. Belligerent Mother wants records.

Not only did Dr. Goulet persuade Mrs. Caron not to secure a private physician, but Mr. Caron's Commanding Officer had him report to the Commander's office where Monique's condition was discussed, and the Commanding Officer told Ernest, "Don't worry about it, everything is alright." Furthermore, in December 1963, when the Carons were going to visit their parents in Rhode Island for Christmas, Dr. Goulet arranged for them to see Dr. Julius Stoll, a neurosurgeon in Rhode Island. The doctor gave Monique a careful examination on December 21, 1963. He was advised of the typhoid shot given Monique along with the DPT and polio vaccine; still his findings were negative. He declared her normal. The only "clinical clue" as a possible causation that he could find "are the skin lesions" which he found over her left tibial region and over the scalp and neck. These he said, "might be present on brain as well as a possible cause." And Dr. Goulet, when asked on cross-examination his reaction to the Stoll report, testified:

Well, we continued to be concerned but we were somewhat mortified by the fact that he didn't think that there appeared to be any extraneous cause, that this fell into a large category of seizures of unexplained etiology.

The record shows that despite all of these negative medical findings, the Carons continued to take Monique to a score or more of private doctors who had Monique admitted to a half dozen different hospitals, all of whom were told by the Carons that the onset of the convulsions was soon after the combination DPT, polio vaccine and typhoid shots. But at no time did the Carons state that this was the cause of the convulsions. Still not one doctor was able to advise what caused the convulsions nor how they...