Holland v. U.S.

• Decision Date: 22 January 2004
• Docket Number: No. 1:02CV00395.,1:02CV00395.
• Citation: 302 F.Supp.2d 484
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Tracy Donell HOLLAND, Plaintiff, v. UNITED STATES of America, Defendant.

302 F.Supp.2d 484

Tracy Donell HOLLAND, Plaintiff, v. UNITED STATES of America, Defendant.

No. 1:02CV00395.

United States District Court, M.D. North Carolina.

January 22, 2004.

Joe Thomas Knott, III, Pipkin, Knott, Clark & Berger, L.L.P., Michael W. Clark, Knott Clark Berger & Whitehurst, L.L.P., Raleigh, NC, for Plaintiff.

Gill P. Beck, Office of U.S. Attorney, Greensboro, NC, for Defendant.

MEMORANDUM OPINION

SHARP, United States Magistrate Judge.

This matter arising under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2401(b), and 2671-80, came before the Court on December 9, 2003 for a bench trial on the limited issue of Defendant's statute of limitations defense.¹ Plaintiff Tracy Donell Holland testified on his own behalf, and Defendant United States of America called as witnesses Plaintiff's wife (Melissa Holland), and two of Plaintiff's medical providers, Jacqueline W. Adkins, F.N.P., and Dr. Gregory H. Botz. At the close of trial, the Court took the matter under consideration and requested further briefing by the parties of certain legal issues raised by the evidence. The Court has considered all of the trial evidence and the final briefs of the parties, and now enters this Memorandum Opinion.

Findings of Fact

Pursuant to Rule 52 of the Federal Rules of Civil Procedure, the Court makes the following findings of fact:

1. On June 16, 1998, Plaintiff Holland underwent arthroscopic right knee surgery for a service-related injury at the Durham Veterans Administration Medical Center ("VA"). (Trial Transcript, hereinafter "Tr.," at 5-6, 9-10.)

2. Dr. Gregory H. Botz, a board certified anesthesiologist and VA physician, provided the anesthesia care, which included both general anesthesia and a regional nerve block. Dr. James Gould, a senior resident physician, assisted Dr. Botz. (Tr. at 133-34, 141-42, 144-46.)

3. On June 16, 1998, immediately following the surgery, Plaintiff became concerned that he could not move his right leg. Plaintiff informed the attending nurse of his concerns, and she told him the nerve block was causing his symptoms. (Tr. at 41.)

4. On June 22, 1998, Plaintiff visited the emergency room due to continued inability to move his right leg. The doctor told Plaintiff that his inability to move his right leg and numbness were not normal and that Plaintiff should be concerned. (Def.'s Ex. K-1 at 180; Tr. at 44-46.)²

5. At a medical evaluation on June 26, 1998, a VA doctor asked Plaintiff to extend his right knee and Plaintiff could not do so. The doctor seemed surprised and returned with two or three other VA doctors. The doctors told Plaintiff that his inability to move his right leg and the pain and numbness may have been caused by either the nerve block or the tourniquet used during his knee surgery. (Tr. at 52-53.)

6. On June 29, 1998, Dr. Richard Tim, a VA neurologist, performed a nerve conduction study and electromyogram ("EMG") on Plaintiff's right leg which indicated that Plaintiff had sustained nerve damage to his right femoral and saphenous nerves. The nerve conduction tests resulted in audible results, and Plaintiff heard for himself the signals that showed damaged nerve connections. (Def.'s Ex. K-1 at 191-92; Tr. at 60-61.)

7. On July 10, 1998, Plaintiff met with VA neurologist Dr. Tim Heine who concluded that Plaintiff's nerve deficits were consistent with a bruised nerve resulting from either the nerve block or the tourniquet. Dr. Heine told Plaintiff that if he did not experience any improvement over the next four to eight weeks, then Plaintiff might have a permanent neuropathy. (Def.'s Ex. K-1 at 201-02; Def.'s Ex. L-2, Timothy Allen Heine Dep. at 19-20.)

8. On July 22, 1998, Plaintiff met with Jacqueline W. Adkins, F.N.P., of Piedmont Internal Medicine, Inc., and expressed an interest in obtaining a second opinion regarding his knee problems. (Def.'s Ex. E-1.)

9. In early September, 1998, Plaintiff met with attorney Robert Morrison in Danville, Virginia. (Tr. at 67.) Attorney Morrison practices medical malpractice law. (Def.'s Ex. E-2, George D. Henning, M.D. Dep. at 8.) Plaintiff told his wife that he believed something had "been done wrong" in the surgery and he wanted to see about a claim against the hospital. (Def.'s Ex. H-2, Melissa Holland Dep. at 33-34, 36-37, 82; Tr. at 117-19.)

10. Attorney Morrison referred Plaintiff to orthopedic surgeon George Henning in Roanoke, Virginia. Dr. Henning is not affiliated with the VA in any manner. (Henning Dep. at 6-7.)

11. Dr. Henning examined Plaintiff on September 16, 1998 and concluded that Plaintiff had suffered an injury which probably represented a tourniquet palsy. Dr. Henning also concluded that Plaintiff's tourniquet time of 88 minutes was longer than average for arthroscopic surgery. Dr. Henning recommended new nerve conduction studies and sent a copy of his report to attorney Morrison. (Def.'s Ex. G-1.)

12. Pursuant to Dr. Henning's referral, Plaintiff saw Dr. Victor Owusu-Yaw, a neurologist in Danville, Virginia, on September 30, 1998. Dr. Owusu-Yaw is not affiliated with the VA in any manner. (Def.'s Ex. I-2, Victor Owusu-Yaw Dep. at 19; Def.'s Ex. F-1.)

13. Dr. Owusu-Yaw noted in his medical report that Plaintiff "was especially concerned that he had not been told much about what was going on at the VA medical center." (Def.'s Ex. F-1.) Dr. Owusu-Yaw informed Plaintiff that he had a right femoral nerve injury from the regional anesthetic used during Plaintiff's right knee surgery. Id.

14. From the time of Plaintiff's surgery on June 16, 1998 until at least April 20, 1999, Plaintiff received periodic assurances from his treating VA medical providers that his nerve damage was temporary and was expected to resolve with time and treatment. (Def.'s Ex. K-1 at 201-02, 261-62; Pleading No. 22, Pl.'s Tr. Brief, Tracy Holland Dep. at 107-09, 112, 162, 169, 175.)

15. On April 17, 2001, Plaintiff filed his tort claim under the FTCA with the VA. (Pleading No. 24, Joint Stipulation of Fact.)

16. After six months had passed without a decision by the VA on his claim, Plaintiff filed the instant lawsuit on March 20, 2002.

Discussion

"A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after the claim accrues...." 28 U.S.C. § 2401(b)(2003); Doe v. United States, 280 F.Supp.2d 459, 463 (M.D.N.C.2003)(Osteen, J.). This time limit is jurisdictional and nonwaivable. Gould v. United States Dep't of Health & Human Servs., 905 F.2d 738, 741 (4th Cir.1990)(en banc).

The general rule under the FTCA is "that a tort claim accrues at the time of the plaintiff's injury...." United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). In medical malpractice cases, where neither the injury nor its cause may be immediately apparent, the Supreme Court has adopted the "discovery rule" or "inquiry notice" standard. The Court held in Kubrick that a medical malpractice claim accrues within the meaning of section 2401(b) when the plaintiff knows, or in the exercise of due diligence should have known, of both the existence and the cause of his injury. Id. at 122-25 n. 7; Gould, 905 F.2d at 742. For a claim to accrue under Kubrick, a plaintiff need not know that the cause of injury was the result of negligence, nor the precise medical reason for the injury, nor the federal status of the doctors involved, nor have a legal understanding of the nature of the claim. Kubrick, 444 U.S. at 122-25, 100 S.Ct. 352; Kerstetter v. United States, 57 F.3d 362, 364 (4th Cir.1995); Gould, 905 F.2d at 742; Lekas v. United Airlines, Inc., 282 F.3d 296, 300 (4th Cir.2002).

Applying the inquiry notice standard to the instant case, the Court finds that the statute of limitations accrued no later than July 10, 1998, when Plaintiff became aware both of the fact that he had suffered a right femoral nerve injury and that his knee surgery on June 16, 1998 was the cause of this injury. On that date, Plaintiff was treated by VA neurologist Dr. Tim Heine who informed Plaintiff that his nerve deficits were consistent with a bruised nerve resulting from either the nerve block or the tourniquet. Dr. Heine told Plaintiff that if he did not experience any improvement over the next four to eight weeks, then Plaintiff might have a permanent neuropathy. (Def.'s Ex. K-1 at 000201-02.) Plaintiff and his wife both admit that they believed by that point that a "mistake" had been made during Plaintiff's right knee surgery.³ (Melissa Holland Dep. at 25-28; Def.'s Ex. A-1, Tracy Holland Dep. at 92; Tr. at 54-56.) This awareness satisfies the requirements of Kubrick and inquiry notice. Plaintiff did not file his tort claim until April 17, 2001, more than two years after the accrual date of July 10, 1998.

However, the Court's analysis does not end here. Plaintiff asserts that even if the statute of limitations accrued shortly after his surgery in 1998, the statute of limitations was tolled until at least April 17, 1999 (two years before the claim date) because Plaintiff was undergoing a "continuous course of medical treatment" at the direction of various VA medical providers, citing, inter alia, Otto v. Nat'l Inst. of Health, 815 F.2d 985 (4th Cir.1987), Miller v. United States, 932 F.2d 301 (4th Cir.1991), and Wehrman v. United States, 830 F.2d 1480 (8th Cir.1987).

Under the continuing treatment doctrine, as applied by the Fourth Circuit and other courts, the state of limitations does not begin to run on an FTCA medical malpractice claim (or is "tolled"), despite the claimant's knowledge of the injury and its cause, so long as the claimant remains under the "continuous treatment" of the negligent actor for the same injury out of which the FTCA cause of action arose. See Otto, 815 F.2d at 988; Ulrich v. Veterans Admin. Hosp., 853 F.2d 1078, 1080 (2d Cir.1988). The continuous treatment doctrine is based upon a patient's right to place trust...