Gustavson v. U.S., 80-1420

• Decision Date: 06 August 1981
• Docket Number: No. 80-1420,80-1420
• Citation: 655 F.2d 1034
• Parties: Mark S. GUSTAVSON, Personal Representative of the Estate of Terry Don Newcomb, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1034

655 F.2d 1034

Mark S. GUSTAVSON, Personal Representative of the Estate of Terry Don Newcomb, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 80-1420.

United States Court of Appeals, Tenth Circuit.

Argued July 16, 1981.

Decided Aug. 6, 1981.

Earl D. Tanner, Jr., Salt Lake City, Utah (Earl D. Tanner, Salt Lake City, Utah, with him on the briefs), for plaintiff-appellant.

Gordon W. Campbell, Asst. U. S. Atty., Salt Lake City, Utah (Ronald L. Rencher, U. S. Atty., Salt Lake City, Utah, with him on the briefs), for defendant-appellee.

Before LOGAN and BREITENSTEIN, Circuit Judges, and BROWN, District Judge ^*.

LOGAN, Circuit Judge.

This appeal arises out of a suit brought under the Federal Tort Claims Act by Terry Don Newcomb and continued by the representative of his estate after Newcomb's death. The trial court granted summary judgment in favor of the United States, holding that the claim is barred by the statute of limitations. See 28 U.S.C. § 2401(b). On appeal Newcomb's representative seeks to avoid application of the limitations statute on the grounds that he reasonably failed to draw a causal link between his injury and some of the negligent diagnoses by military doctors until within two years of the date of filing, and that the limitation period did not commence until his damages were susceptible of ascertainment. We hold his claim is barred and affirm the trial court's dismissal for the reasons hereafter stated.

As a child, Newcomb received his medical care from military doctors because of his father's tenure and service with the United States Air Force. Newcomb had a severe bedwetting problem for which he saw military doctors from time to time. These doctors apparently misdiagnosed his problem as merely an anxiety reaction and never realized that his difficulty was caused by vesico-ureteral reflux and the infection resulting from it. This disorder was correctable by an operation involving reimplantation of ureters. Newcomb discovered the cause of his chronic problem in 1973, when civilian doctors made a proper diagnosis and shortly thereafter operated and reimplanted his ureters. They informed him that the operation could have been done years before and that his kidneys had been seriously damaged by the long continued reflux. The evidence is clear that he realized that at least some of the military doctors who had seen him through the years had misdiagnosed his medical problem.

By the time the civilian doctors operated, so much kidney damage had been done that Newcomb's health had deteriorated irreversibly; his kidneys eventually failed and he went on dialysis. In 1977, Newcomb filed an administrative claim which precipitated the instant action. Shortly thereafter he died of complications associated with kidney failure.

In an effort to avoid application of the limitations statute Newcomb's representative asserts that the statute did not commence to run until he realized his kidney condition was irreversible, requiring dialysis or transplant, and that he might die. We do not agree. Under 28 U.S.C. § 2401(b) a claim must be presented in writing to the appropriate federal agency within two years of the time when a claimant knows of the existence and the cause of his injury. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). In a case involving a skin disorder we recently held that a claimant is aware of the injury once he or she has been apprised of the general nature of the injury. Lack of knowledge of the injury's permanence, extent, and ramifications does not toll the statute. Robbins v. United States, 624 F.2d 971 (10th Cir. 1980). Kubrick and Robbins control this aspect of the case, and the statute of limitations must be regarded as running when Newcomb had knowledge, in 1973, that his kidneys had been injured by the failure to correct a long-term ureter disorder.

Newcomb's representative argues a separate cause of action arises out of each negligent diagnosis by a military doctor. Newcomb recognized in 1973 that some of the military doctors who saw him were negligent because...