Colleen v. U.S.
| Decision Date | 01 April 1988 |
| Docket Number | No. 86-4232,86-4232 |
| Citation | 843 F.2d 329 |
| Parties | Michelle COLLEEN by her guardian Ad Litem Ronald Dearing, Ronald Dearing and Marcia Dearing, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Bruce H. Erickson, Spokane, Wash., for plaintiffs-appellees.
Jeffrey A. Clair, Washington, D.C., for defendant-appellant.
Appeal from the United States District Court for the Eastern District of Washington.
Before CANBY, REINHARDT and BEEZER, Circuit Judges.
Michelle Dearing and her parents sued the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2674, for negligent medical treatment at the time of Michelle's birth. The government contends that the Dearings' claim is barred by the statute of limitations and that the award of damages is excessive. We affirm in part, vacate in part, and remand for further proceedings.
On November 4, 1978, Michelle Dearing was born at Fairchild Air Force Base Hospital. It is undisputed that the hospital's negligence in failing to provide an anesthesiologist promptly and in performing the delivery, deprived Michelle of oxygen during birth and caused permanent brain damage. At trial the magistrate found, and the government does not dispute, that the delivering physician and the anesthesiologist told Mr. Dearing that they had delivered Michelle in time and that she was going to be fine.
Two hours after birth, Michelle began to have seizures and was transferred to Sacred Heart Medical Center. At Sacred Heart, the Dearings were told that the seizures were the result of Michelle's "rough birth." The Dearings were also told that Michelle's breathing had slowed, but that this was not a cause for alarm, and that Michelle might later be slow in reading or there might be absolutely nothing wrong. Michelle was released from Sacred Heart after sixteen days, with phenobarbital prescribed as a precaution against seizures. Michelle was seen periodically by a pediatrician thereafter. At no time were the Dearings told that Michelle had suffered brain damage or that she had been deprived of oxygen during birth. Michelle's medical records were not shown to the Dearings.
In September 1979, Michelle's pediatrician suggested that the Dearings have Michelle tested at a school for crippled children. In late September 1979, the Dearings were told that Michelle was developmentally disabled or handicapped. On July 9, 1981, the Dearings filed an administrative claim for medical malpractice. The Air Force rejected the claim on March 2, 1982, and the Dearings then filed suit.
The case was tried to a United States magistrate, who ruled that: (1) plaintiffs had filed an administrative claim within the two year statute of limitations governing FTCA actions; (2) plaintiffs' injuries were proximately caused by the defendant's negligent delay in summoning an anesthesiologist and in performing the caesarean delivery; and (3) plaintiffs suffered damages in the amount of approximately $4.5 million as a result of the government's negligence.
The government contends that: (1) the magistrate erred in ruling that plaintiffs filed their claim within the statutory period because reasonable inquiry would have revealed Michelle's injury and its cause more than two years before plaintiffs filed the claim; (2) the magistrate abused his discretion by using a zero percent discount rate to calculate the present value of plaintiffs' damages; and (3) the magistrate's award of $300,000 in nonpecuniary damages to Michelle's parents is excessive.
28 U.S.C. Sec. 2401(b) provides that "[a] tort claim against the United States shall be forever barred unless it is presented The magistrate found that the Dearings actually discovered and reasonably should have discovered Michelle's injury and its cause "no earlier than September 1979, a time well within the two year period before the administrative claim was filed on July 9, 1981." The government does not dispute the magistrate's finding that the Dearings did not learn of Michelle's brain injury until September 1979. The government argues instead that the Dearings reasonably should have discovered Michelle's injury and its cause at some earlier date, and that plaintiffs' claim is therefore barred by the statute of limitations.
in writing to the appropriate Federal agency within two years after such claim accrues." A medical malpractice claim does not accrue under the FTCA until the plaintiff discovers, or reasonably should have discovered, his injury and its causes. See In re Swine Flu Prods. Liab. Litig., 764 F.2d 637, 639 (9th Cir.1985). The date the Dearings first discovered the existence and cause of Michelle's injuries is a question of fact reviewed under the clearly erroneous standard. See United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). The date the Dearings reasonably should have discovered the existence and cause of Michelle's injuries is a mixed question of fact and law. Because, like negligence, this question requires a court "to determine, by reference to the 'data of practical human experience,' [citation omitted] whether an individual acted 'reasonably' by community standards," McConney, 728 F.2d at 1204, we review the magistrate's findings under the clearly erroneous standard
We disagree. Prior to September 1979, the Dearings had only three signs that Michelle might be injured and that the government was responsible: the difficulty of the birth itself, the seizures shortly after birth, and Michelle's crossed eyes. In light of the government doctors' assurances after Michelle's birth and after her treatment for seizures, we cannot say that the Dearings clearly should have known before Michelle was tested in September 1979 that Michelle was injured and that the government was responsible. We therefore affirm the magistrate's ruling that plaintiffs' claim is timely under the FTCA.
"[A]wards based on income streams spread over time are usually discounted to present value to account for the fact that a plaintiff, by receiving the money in a lump sum, 'up front,' will invest the sum and earn additional income from the investment." Trevino v. United States, 804 F.2d 1512, 1517 (9th Cir.1986), cert. denied, --- U.S. ----, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987). The present value of a lump sum award may be determined (1) by calculating the difference between the market rate of interest and the anticipated rate of inflation and then discounting by this real interest rate; (2) by including the effects of inflation and discounting by the market interest rate; and (3) by employing a zero discount rate (the total offset approach). Trevino, 804 F.2d at 1519; see also Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 541-46, 103 S.Ct. 2541, 2552-55, 76 L.Ed.2d 768 (1983). The Supreme Court has said that the total offset approach is unacceptable as a uniform method to calculate present value, although it may be stipulated to by the parties or applied by the trial court in an appropriate case. See Jones & Laughlin, 462 U.S. at 550-51, 103 S.Ct. at 2557-58. Regardless of the method of calculation, the anticipated rate of return and the inflation rate "must be independently established by competent evidence." Alma v. Manufacturers Hanover Trust Co., 684 F.2d 622, 626 (9th Cir.1982).
We review the choice of a discount rate for abuse of discretion. Trevino, 804 F.2d at 1515.
In the present case, the magistrate rejected both the Dearings' predicted discount rate of - 2% and the government's predicted discount rate of + 3.25% and concluded "that the most reasoned prediction lies between the theories of the parties--that inflation and interest rates will average in the 5-5 1/2% range in the years of We agree. In Trevino, we stated that a trial court may adopt a discount rate above 3% or below 1% if such a rate is "[s]upported by credible expert testimony." 804 F.2d at 1519. 1 In the present case, we can find no expert testimony in the record to support the magistrate's estimate of a 5-5 1/2% average interest rate during Michelle Dearing's lifetime or his conclusion that inflation and interest rates will be substantially equivalent. While we recognize that a judge need not "embark on a search for 'delusive exactness,' " Jones & Laughlin, 462 U.S. at 552, 103 S.Ct. at 2558, under Trevino he may not choose a zero percent discount rate simply because it is midway between the figures offered by the parties. Nor may he assume, without evidence, that inflation and interest rates will balance each other out during Michelle Dearing's seventy-year life expectancy.
Michelle's life, and will be substantially equivalent." The government argues that the magistrate's zero percent...To continue reading
Request your trial
-
Nunsuch ex rel. Nunsuch v. U.S.
...discounting by the market interest rate; and (3) by employing a zero discount rate (the total offset approach)." Colleen v. United States, 843 F.2d 329, 331 (9th Cir.1987). The total offset approach, however, "is unacceptable as a uniform method to calculate present value, although it may b......
-
May v. William Beaumont Hosp.
...towards recovery, the court found that she would continue to suffer significant problems for the rest of her life. In Colleen v. United States, 843 F.2d 329 (CA 9, 1988), an infant suffered permanent brain damage during delivery. She was later diagnosed as developmentally disabled or handic......
-
Nielson v. Eisenhower & Carlson
...Circuit would reverse the district court's findings only if the Ninth Circuit found that it was clearly erroneous. Colleen v. United States, 843 F.2d 329, 331 (9th Cir.1987) (citation omitted). A finding is clearly erroneous `when although there is evidence to support it, the reviewing cour......
-
Khan v. Holder
...1189, 1195 (9th Cir. 2008) (stating that "what a reasonable person should have known" presents mixed question); Colleen v. United States, 843 F.2d 329, 331 (9th Cir.1987) 2. Merits of the Asylum and Withholding Claims Both the asylum and withholding of removal claim turn on whether the JKLF......