Hulver v. U.S., s. 76-2010 and 76-2011

• Decision Date: 12 October 1977
• Docket Number: Nos. 76-2010 and 76-2011,s. 76-2010 and 76-2011
• Citation: 562 F.2d 1132
• Parties: Isaac Newton HULVER, Appellee, v. UNITED STATES of America, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1132

562 F.2d 1132

Isaac Newton HULVER, Appellee, v. UNITED STATES of America, Appellant.

Nos. 76-2010 and 76-2011.

United States Court of Appeals Eighth Circuit.

Submitted May 18, 1977.

Decided Sept. 14, 1977.

Rehearing Denied Oct. 12, 1977.

Mark H. Gallant, Atty., Appellate Section, Civil Div., Dept. of Justice, argued, Leonard Schaitman, Atty., Appellate Section, Civil Div., Dept. of Justice, Washington, D. C., for appellant; Barbara Allen Babcock, Asst. Atty. Gen., Ronald R. Glancz and Bert C. Hurn, U. S. Atty. (former), Kansas City, Mo., on appendix, appellant's brief and reply brief.

William H. Pickett, Pickett & Midkiff, Kansas City, Mo., for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, STEPHENSON and WEBSTER, Circuit Judges.

VAN OOSTERHOUT, Senior Circuit Judge.

The sole issue presented by these appeals by the United States of America is whether the trial court erred in holding that plaintiff's medical malpractice claim was not barred by the two-year limitation period of 28 U.S.C. § 2401(b). Plaintiff in his brief specifically agrees that the only issue raised by these appeals is when the medical malpractice cause of action accrued under 28 U.S.C. § 2401(b).

All proceedings were before Chief Judge Becker without a jury. The Government's motion for summary judgment was denied for reasons stated in a memorandum opinion reported at 393 F.Supp. 749 (W.D.Mo.1975). Thereafter a separate trial was held on the liability issue and later a trial was held on the damage issue. These appeals are from the final judgment on the issue of liability and damages entered on June 24, 1976, and the supplemental findings of fact, conclusions of law, and final judgment in favor of plaintiff on the issue of liability and damages entered on August 9, 1976. Detailed memorandum opinions (not reported) were filed in support of the judgments.

Three separate operations were performed on plaintiff Hulver at the Veterans Hospital at Kansas City, Missouri. The first operation occurred on October 17, 1968, with subsequent operations on December 12, 1968, and March 10, 1969. The first two operations were performed by Dr. Nosti who severed his connections with the Veterans Hospital on December 31, 1968. The March 1969 operation was performed by Dr. Crosby, a senior resident surgeon. The court, on the basis of detailed findings of fact, determined negligence on the part of Dr. Nosti and the Veterans Administration in connection with the October 17 operation only. Judge Becker in his unreported memorandum opinions makes detailed factfindings and conclusions of law, and describes the nature of the operations very well. The ultimate determination that Dr. Nosti was negligent with respect to the first operation, at least in some respects, is supported by substantial evidence and is not challenged in these appeals. Accordingly the details of the operation are significant only to the extent that they bear on the limitations issue. Pertinent facts will be set out in connection with our discussion of when the cause of action accrued.

We now reach the only issue before us and determine that plaintiff's cause of action was barred by his failure to file a claim within two years of the time his cause of action accrued for the reasons hereinafter stated.

The operation with respect to which the trial court found Dr. Nosti and the Veterans Hospital negligent was performed on October 17, 1968. The required written claim for negligent malpractice is dated February 18, 1971. The trial court determined that it was filed with the Veterans Administration on February 22, 1971. ¹

The crucial issue in these cases is whether plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice upon which his cause of action is brought more than two years prior to February 1971.

The applicable law with respect to accrual of negligent malpractice cases was thoroughly considered and stated in our recent case of Reilly v. United States, 513 F.2d 147 (8th Cir. 1975). We there stated and held:

28 U.S.C. § 2401(b) states, in relevant part:

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 such claim accrues * * *.

When the claim "accrues" is a matter of federal law.

In medical malpractice actions, the claim "accrues" when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice upon which the cause of action is based. Id. at 148.

Once the appellant knew of the allegedly negligent acts that caused her injury, she was under a duty to exercise reasonable diligence in bringing suit. Id. at 149.

But when the facts became so grave as to alert a reasonable person that there may have been negligence related to the treatment received, the statute of limitations began to run against the appellant's cause of action. Id. at 150.

(Numerous cases cited in support of the foregoing statements are omitted.)

The Reilly court determined that the facts of the case were such that the plaintiff should have been aware of her cause of action more than two years prior to the filing of the administrative claim.

In applying the law as established in Reilly to the facts of this case, we are convinced that the determination made by the district court that the cause of action did not accrue more than two years prior to the filing of the administrative claim was not supported by substantial evidence and is clearly erroneous.

Plaintiff was a World War II veteran. He was fifty-six years of age at the time of his 1968 operation. He received severe combat wounds in Germany in his abdomen and right leg. Fifteen operations were performed by military surgeons. Plaintiff was discharged from the service in 1945 with 100% disability which was reduced to 70% in 1946. He has had considerable trouble with his right leg ever since but he has not had trouble with his left leg. From 1953 to 1971 plaintiff was employed in the monotype department of the Kansas City Star. He had a history of generalized arteriosclerosis and had suffered a heart attack in 1956. He was referred to the Veterans Hospital in 1968 by his private physician for diagnosis and treatment of numbness, paresthesia, and claudication, or cramplike pains, in his right hip and leg which caused him to limp. The October 1968 operation is described as a bilateral aortoiliac endarterectomy, the operation performed by Dr. Nosti. He removed obstructive plaque from the left and right common iliac arteries (which branch off from the aorta in a Y shape). As a result of the operation, plaintiff's left leg, which had previously caused him no pain or trouble, was disabled by a clot that formed in the left branch of the arterial tree in the weeks following the operation. In addition, his sexual function was seriously impaired. The second operation performed by Dr. Nosti was an unsuccessful attempt to remove the clot in the left leg by an incision in the left leg. The third operation performed by Dr. Crosby was a bypass operation involving the insertion of a plastic tube. As above stated, no negligence was found by the trial court with respect to the second and third operations and no cross appeal has been taken from such finding and determination.

With respect to the loss of sexual functions, the evidence establishes that the plaintiff had normal relations with his wife just prior to the October operation and that shortly after his return from the hospital after the operation he discovered his lack of sexual functions, and subsequent attempts showed that such condition continued. The trial court, in its unreported memorandum filed August 9, 1976, states:

Plaintiff discussed his sexual impairment with Dr. Nosti sometime prior to his readmission to the V. A. Hospital on December 2, 1968, probably during his examination by Dr. Nosti on November 20. Dr. Nosti told plaintiff he was afraid he might have severed some nerves. However, Dr. Nosti did not further elaborate on that statement to explain that sexual impairment was a risk known to be associated with an aortoiliac endarterectomy, or that the damage was irreparable. Plaintiff testified that he did not understand what Dr. Nosti meant by his statement.

On November 20, 1968, plaintiff filed an application with the Veteran's Hospital for an increase in his disability rating in which he stated:

Have lost the basic functions of Sexual Intercourse. Am now sterile. Previous Sexual Intercourse average 3 times per week now zero.

As the cause of this disability, plaintiff stated:

Had Surgical Intervention for Arterial Blockage with Scar Ranging from Breast Bone to right Femoral Region.

We determine that the finding in the above extract clearly and conclusively demonstrates that the plaintiff had sufficient...