Drazan v. U.S., No. 84-2389

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before WOOD, POSNER and FLAUM; POSNER
• Citation: 762 F.2d 56
• Parties: Louise DRAZAN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Docket Number: No. 84-2389
• Decision Date: 20 May 1985

Page 56

762 F.2d 56 Louise DRAZAN, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee. No. 84-2389. United States Court of Appeals,
Seventh Circuit. Argued March 5, 1985.
Decided May 20, 1985.

Page 57

James R. Figliulo, Oran, Wiss & Schultz, Chicago, Ill., for plaintiff-appellant.

Eileen M. Marutzky, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for defendant-appellee.

Before WOOD, POSNER and FLAUM, Circuit Judges.

POSNER, Circuit Judge.

This suit under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671 et seq., was dismissed as barred by the Act's two-year statute of limitations for filing (as a prerequisite to suit) an administrative claim, 28 U.S.C. Sec. 2401(b). The plaintiff has appealed, raising an interesting question about when a cause of action for failure to discover and treat an illness arises and sets the statute of limitations running.

The plaintiff's husband, Bozo Drazan, had for many years received treatment at a Veterans Administration hospital in Chicago for tuberculosis. His disease was in remission but he got annual check-ups and chest x-rays at the hospital. The x-ray that the hospital took in November 1979 revealed the possibility of a small tumor in one of his lungs, and the radiology report suggested that Drazan be given a follow-up examination in a few weeks. No such examination was conducted; and given the posture of the case before us, we must assume (of course without deciding) that the omission was due to the hospital's negligence, as in Raddatz v. United States, 750 F.2d 791, 795-96 (9th Cir.1984). When Drazan next reported for his annual chest x-ray, in January 1981, the small tumor was a large and cancerous one, which killed him the next month. In November 1981 his wife requested from the hospital, and

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the next month received, her husband's medical records, which revealed the results of the November 1979 examination and the failure to follow it up. In January 1982 she notified the Veterans Administration of her intention to file a claim. The Administration sent her the claim form five months later. She says she filled it out and her lawyer mailed it to the Administration in June 1982; but it was never received. She brought this suit in February 1983, and in September, having learned that the Veterans Administration had not received her earlier mailing, she filed another claim (we defer the question whether the claim was actually filed earlier, maybe as early as July 1983).

The district court held that the plaintiff's cause of action accrued in February 1981, when she learned that her husband had (a few days earlier) died of lung cancer. If this is right, she had till February 1983 to file her administrative claim. She tried to file such a claim in June 1982, which would have been in plenty of time even under the district court's view of when her cause of action arose. But the district court was quite right to hold that mailing is not presenting; there must be receipt. See 28 C.F.R. Sec. 14.2(a); 38 C.F.R. Sec. 14.604(b); Best Bearings Co. v. United States, 463 F.2d 1177, 1179 (7th Cir.1972). The plaintiff offered no evidence to contradict the government's affidavit that her claim was never received.

But if she is right that her cause of action did not arise till December 1981, when she received her husband's medical reports and discovered the results of the x-ray taken in November 1979, then her September 1983 refiling was in time, and the only problem would be that her suit (filed in February 1983) was filed prematurely, because you cannot sue before presenting your administrative claim (you don't have to wait, though, beyond six months, for it to be acted on). 28 U.S.C. Sec. 2675(a). But this problem can easily be solved by allowing her to amend her complaint to change the date to six months after the refiling of the administrative claim.

Thus the critical question is when her cause of action arose. The district court, in holding that it arose in February 1981, relied on United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), where the Supreme Court held that the statute of limitations in federal tort claims cases starts to run when a person knows that he is injured and knows what caused his injury, even if he does not know and has no reason to know that the cause involved negligence. Knowledge of the injury and...