Jastremski v. U.S.

• Citation: 737 F.2d 666
• Decision Date: 19 June 1984
• Docket Number: No. 83-1277,83-1277
• Parties: Theodore Andrew JASTREMSKI and Chester Jastremski, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 666

737 F.2d 666

Theodore Andrew JASTREMSKI and Chester Jastremski Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.

No. 83-1277.

United States Court of Appeals Seventh Circuit.

Argued Feb. 10, 1984.

Decided June 19, 1984.

Perry M. Rosen, Torts Branch, Civil Div., Dept. of Justice, Washington, D.C., for defendant-appellant.

C. Warren Holland, Holland & Tabor, Indianapolis, Ind., for plaintiffs-appellees.

Before CUMMINGS, Chief Judge, BAUER, Circuit Judge, and REYNOLDS, Chief District Judge. ^*

REYNOLDS, Chief Judge.

Chester Jastremski and his son, Theodore Andrew Jastremski, brought a medical malpractice action against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 2671-2680 (1982). The action arises out of obstetrical and pediatric care provided by United States Army medical personnel during Theodore Jastremski's birth in July of 1971. After a three-day trial, the district court entered findings of fact, conclusions of law, and judgment, awarding $400,000 to the injured child and $1.00 to his father. On appeal, the government presents three challenges to the judgment. First, it asserts that the district court erred in concluding that the plaintiffs brought their action in a timely fashion, within the two-year statute of limitations period. Second, it contends that it was clearly erroneous for the district court to find that the child's injury was proximately caused by the negligence of the government. Third, the government argues that the award of damages in the amount of $400,000 was clearly erroneous.

For the reasons expressed below, we affirm the judgment of the district court.

I.

Theodore Jastremski was born on July 22, 1971, in the United States Army Hospital at the United States Military Academy at West Point, New York. The child's father, Dr. Chester Jastremski, was a licensed physician practicing at the Army Hospital as a clinical pediatrician at the time of his son's birth. Theodore was delivered vaginally in the breech position. To induce labor, the drug Pitocin was administered; the drug was administered in the labor room without its rate of flow being monitored. In the delivery room, with the child ready for delivery, a spinal anesthetic was administered against both parents' wishes and in a dosage too large for a vaginal delivery. Soon after the anesthetic was administered, the mother's contractions all but disappeared. The attending physician, Dr. Kearing, directed Dr. Jastremski and a nurse to push on the mother's abdomen against the child's head as hard as they could. Dr. Kearing at the same time succeeded in pulling the baby from its mother.

Fifty-one hours after his birth, Theodore Jastremski suffered a series of grand mal seizures. Several tests were performed on the child at the hospital to discover the cause of the seizures, but all were negative. Upon discharge from the hospital, Theodore was seen by a pediatric neurologist at the suggestion of hospital personnel. Again, no neurological cause for the seizures was found. Theodore did not experience another seizure after those in the hospital shortly after birth.

Theodore thereafter developed normally except for an abnormal gait which appeared at age two. The problem was diagnosed as orthopedic by two orthopedic specialists whom the Jastremskis consulted. Neither orthopedic surgeon diagnosed any neurological injury.

In July of 1975, during a social visit to the Jastremski home, Dr. Alan Somers, a neurologist, mentioned after observing four-year old Theodore that the child might have cerebral palsy. Following a neurological examination of Theodore in August of 1975, Dr. Somers made a diagnosis of cerebral palsy. Dr. Jastremski had never diagnosed or treated a case of cerebral palsy in the course of his medical practice. The Jastremski parents state that a possible causal connection between Theodore's physical condition and the events surrounding his birth did not occur to them until after Dr. Somers' diagnosis. In October of 1975, the Jastremski parents filed administrative claims on behalf of Theodore.

This action was commenced on February 9, 1979, Theodore seeking damages for his injuries, his father asking for compensation for the loss of his son's services. The case was tried on October 10-12, 1982, in the United States District Court for the Southern District of Indiana, the Honorable S. Hugh Dillin presiding. The district court found that Theodore's seizures were symptomatic of a brain injury suffered immediately before his birth and resulting in a condition of cerebral palsy. The court determined that the government was negligent, and that such negligence was the proximate cause of the child's injury. Judge Dillin then described the nature of Theodore's damages and found that the child's "future development is handicapped and he will be unable to engage in activities or occupations requiring good motor functions, especially dexterity and fine coordination."

The lower court concluded as a matter of law that the plaintiffs filed their administrative claim within two years of the time they knew of the existence and cause of the child's injury. Theodore was awarded $400,000 damages. His father offered no proof of damages, and was awarded $1.00 for the loss of his son's services.

II.

A. Statute of Limitations

The lower court concluded that the plaintiffs filed their administrative claim within two years of the time they knew of the existence and cause of Theodore's injury. This conclusion of law was based on the factual finding that the Jastremskis did not discover Theodore's injury and its cause until Dr. Somers' social visit in July 1975. Initially, the government contends that this finding of fact is clearly erroneous.

Tort claims against the United States must be brought within two years after such claims accrue. 28 U.S.C. Sec. 2401(b) (1982). ¹ The parents or guardian of a minor must bring the minor's claim in a timely fashion because the child's minority does not toll the running of the federal tort claims statute of limitations. Leonhard v. United States, 633 F.2d 599, 624 (2d Cir.1980), cert. denied, 451 U.S. 908, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981).

When a claim accrues under section 2401(b) of the Federal Tort Claims Act it is governed by federal law. Fisk v. United States, 657 F.2d 167, 170 (7th Cir.1981). A medical malpractice claim under the Federal Tort Claims Act accrues when the claimant discovers or, in the exercise of reasonable diligence, should discover his injury and its cause. United States v. Kubrick, 444 U.S. 111, 120 n. 7, 100 S.Ct. 352, 358 n. 7, 62 L.Ed.2d 259 (1979); Stoleson v. United States, 629 F.2d 1265, 1268 (7th Cir.1980).

The government argues, first, that the Jastremskis either knew of or should have been aware of Theodore's injury and its cause in July of 1971. This finding, according to the government, is supported by the following subsidiary facts. Dr. Jastremski is a physician; he and his wife had firsthand knowledge of the negligent acts performed during Theodore's delivery; the Jastremskis knew that Theodore suffered seizures fifty-one hours after birth; hospital personnel told Dr. Jastremski to take his son to a private neurologist; and Dr. Jastremski knew, as a physician, that seizures quite possibly signify neurological or brain-related injury. The government contends that from these facts it follows that as early as July of 1971, the Jastremskis should have known that Theodore had suffered brain damage. Further, they should have been aware of the causal link between that neurological injury and the conduct of the Army medical personnel.

The government argues, second, that even if the Jastremskis did not become aware of Theodore's brain injury soon after birth, they surely should have discovered it at least by July of 1973. Theodore's injury presently manifests itself in difficulty walking, which became apparent when Theodore was about one year old. The problem was recognized and treated by two orthopedists in 1973. This action would be barred if the plaintiffs' claim accrued as late as July 1973.

The government's arguments are not persuasive. Our review of the lower court's findings of fact is guided by the Federal Rules of Civil Procedure, which provide: "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Fed.R.Civ.P. 52(a). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). A trial court's findings of fact are entitled to a strong presumption of correctness, particularly when those findings are based primarily upon the credibility of witnesses. Lee v. National Can Corp., 699 F.2d 932, 936 (7th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 148, 78 L.Ed.2d 138 (1983).

Dr. Jastremski testified without contradiction that neither he nor his wife suspected that their son had brain damage until Dr. Somers diagnosed cerebral palsy in July 1975. The direct testimony further revealed that until July of 1975, the Jastremskis did not suspect that Theodore's walking problems had a neurological origin; moreover, the parents did not link Theodore's problems with the circumstances of his birth. The trial judge credited this testimony notwithstanding the facts asserted by the government. On review of the record as a whole, we are not convinced that the lower court has committed a mistake.

Certainly Chester Jastremski is a physician. He was present in the delivery room to observe his son's traumatic birth. He also knew that Theodore had seizures soon after birth and later developed walking problems. A doctor might possibly regard these...