Mccullough v. U.S.A, 09-13724.

• Decision Date: 03 June 2010
• Docket Number: No. 09-13724.,09-13724.
• Parties: Samuel McCULLOUGH, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

607 F.3d 1355

Samuel McCULLOUGH, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.

No. 09-13724.

United States Court of Appeals, Eleventh Circuit.

June 3, 2010.

Stuart C. Markman, Kristin Ann Norse, Kynes, Markman & Felman, P.A., Tampa, FL, for McCullough.

Todd B. Grandy, U.S. Attorney's Office, Tampa, FL, for U.S.

Appeal from the United States District Court for the Middle District of Florida.

Before DUBINA, Chief Judge, and MARTIN and COX, Circuit Judges.

MARTIN, Circuit Judge:

Days before routine scheduled hernia surgery, Samuel McCullough (“Mr. McCullough”) went to a Veterans Affairs hospital complaining about neck pain. Ten days after the surgery, he was quadriplegic. The district court granted summary judgment for the United States because Mr. McCullough's administrative claim was filed more than two years after Mr. McCullough knew that his paralysis was caused by a spinal abscess. We feel sympathy for Mr. McCullough in light of his misfortune. Nonetheless, the statute of limitations requires us to affirm.

I.

In 1973, Mr. McCullough suffered gunshot wounds to the abdomen while serving in the military. The residual effects of the wounds and other injuries caused him chronic pain as he got older. Starting in 2001, Mr. McCullough made a number of visits to the James A. Haley Veterans' Hospital (“VA Hospital”) in Tampa, Florida for treatment of various hip, back, and neck problems.

In December 2003, Mr. McCullough was diagnosed with a left inguinal hernia. Elective hernia repair surgery at the VA Hospital was scheduled for February 10, 2004.

On the evening of February 7, 2004, Mr. McCullough went to the VA Hospital emergency room complaining of severe neck and upper back pain. After a physical exam, the attending physician diagnosed muscle strain, prescribed pain medication and a muscle relaxant, and discharged Mr. McCullough during the early morning hours of February 8, 2004.

Mr. McCullough returned to the VA Hospital the next day, because the pain in his upper back had gotten worse. According to Mr. McCullough, the examining physician noted that he had a fever but could find nothing wrong and ordered no diagnostic tests. Instead, he was given a pain reliever and medication to reduce his fever.

Mr. McCullough arrived at the VA Hospital for his scheduled hernia operation on the morning of February 10, 2004. Although he advised the nurse about his previous day's visit, the preoperative surgery re-evaluation concluded, “Reassessment shows no change in patient status which would alter the treatment plan.” No apparent complications occurred during the surgery, but Mr. McCullough had a fever while in recovery. He was sent home with additional pain medication by midafternoon.

The next morning, Mr. McCullough returned to the VA Hospital, complaining of fever, inability to urinate since the surgery, and great pain. He was instructed on the use of a Foley catheter, prescribed additional medication, and discharged.

On February 12, 2004, Mr. McCullough was taken to the emergency room of St. Joseph's Hospital, still running a fever but now also experiencing paralysis in his limbs. Later that day, the doctors at St. Joseph's determined that he had an infection in his upper spine known as an epidural spinal abscess. The abscess had been caused by a bacterial infection. Although surgery was immediately performed to drain the abscess, the surgery did not reverse the damage. On February 20, 2004, Mr. McCullough was diagnosed with quadriplegia and transferred to the VA Hospital for acute spinal cord injury rehabilitation. Due to various complications-including pneumonia, surgery for a bowel obstruction, a postoperative infection, depression, and pressure sores-he remained in the VA Hospital until the end of June 2004.

At some point, Mr. McCullough consulted with the law firm of Wagner, Vaughan & McLaughlin. The firm sent a letter to the U.S. Department of Veterans Affairs (“VA”) in mid-April 2004, requesting Mr. McCullough's medical records from February 1, 2003 onward. The VA responded on April 22, 2004, and it later produced additional records in October 2004 and July 2008.

Mr. McCullough eventually retained the law firm of Morgan & Morgan, P.A. to represent him. On November 21, 2005, and on December 15, 2005, the firm sent Mr. McCullough's medical records to Dr. Daniel L. Abbott (“Dr. Abbott”) and Dr. J. Parker Mickle (“Dr. Mickle”) respectively. After an initial telephone consultation, Dr. Mickle reduced his opinion to writing on March 6, 2006. In Dr. Mickle's opinion, Mr. McCullough had an epidural abscess prior to the February 10, 2004, hernia surgery; if appropriate diagnostic and medical care been provided during either of Mr. McCullough's hospital visits on February 7 or 9, 2004, “more likely than not [the abscess] would have been detected and the resulting neurological injury avoided”; and the hernia operation made Mr. McCullough's situation worse. Dr. Abbott, in a letter dated February 28, 2006, agreed that the VA physicians should have investigated the fever and neck pain prior to doing an elective procedure; that a proper investigation very likely would have found the abscess before Mr. McCullough developed any neurological symptoms; and that the VA Hospital should not have performed the elective hernia surgery.

Mr. McCullough's administrative claim was received by the VA on March 13, 2006. The VA denied the claim because it had not been presented within the two-year period prescribed by 28 U.S.C. § 2401(b). After failing to obtain reconsideration of the denial, Mr. McCullough initiated the present lawsuit. His complaint, which was brought under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, alleged that the VA was negligent in its diagnosis, care, and treatment of Mr. McCullough in the days before and after the hernia surgery.

In its answer, the government asserted that Mr. McCullough's claim was barred by the FTCA's two-year statute of limitations. After discovery, both Mr. McCullough and the government moved for summary judgment on the statute of limitations issue.

On May 22, 2009, the district court granted summary judgment for the government. The district court determined that the statute of limitations began running no later than February 20, 2004. For the district court, the dispositive fact was that Mr. McCullough knew on this date that his paralysis was caused by an abscess. The district court concluded, “A reasonably diligent person armed with this knowledge would have sought information as to when the abscess developed or when it should have been detected. This is especially so when, as here, that person had previously sought treatment on multiple occasions for severe neck pain.” Because the VA did not receive Mr. McCullough's administrative claim until March 13, 2006, the district court held that the claim had been filed too late. Mr. McCullough timely appealed.

II.

“We review the district court's grant of summary judgment de novo, viewing all evidence and any reasonable inferences that might be drawn therefrom in the light most favorable to the non-moving party.” Rine v. Imagitas, Inc., 590 F.3d 1215, 1222 (11th Cir.2009). Summary judgment is appropriate when “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). “ ‘We review de novo the district court's interpretation and application of the statute of limitations.’ ” Baker v. Birmingham Bd. of Educ., 531 F.3d 1336, 1337 (11th Cir.2008) (quoting Brown v. Ga. Bd. of Pardons & Paroles, 335 F.3d 1259, 1261 n. 2 (11th Cir.2003)).

Under 28 U.S.C. § 2401(b), “[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.” In United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), the Supreme Court held that a medical malpractice claim accrues “when the plaintiff knows both the existence and the cause of his injury,” even if he does not yet know that “the acts inflicting the injury may constitute medical malpractice.” Id. at 113, 122, 100 S.Ct. at 353, 359. The plaintiff in Kubrick suffered hearing loss after receiving neomycin, an antibiotic, at a VA hospital. Id. at 113-14, 100 S.Ct. at 355. The Supreme Court held that Mr. Kubrick's claim accrued when he was advised in January 1969 that his hearing loss was probably caused by the neomycin treatment, rather than when he was informed in June 1971 that a reasonably competent doctor would have known not to use neomycin . Id. at 114, 122-23, 100 S.Ct. at 355, 359-60. As the Court explained, once a plaintiff is “in possession of the critical facts that he has been hurt and who has inflicted the injury[,] ... [t]here are others who can tell him if he has been wronged, and he need only ask.” Id. at 122, 100 S.Ct. at 359; see also Price v. United States, 775 F.2d 1491, 1494 (11th Cir.1985) (“[A] medical malpractice claim under the FTCA accrues when the plaintiff is, or in the exercise of reasonable diligence should be, aware of both [his] injury and its connection with some act of the defendant.”).

There is no dispute in this case that Mr. McCullough knew about the existence of his injury-quadriplegia-on February 20, 2004. The key issue is when he knew or should have known about the cause of that injury. See Waits v. United States, 611 F.2d 550, 552 (5th Cir.1980) (“It is not enough to trigger the statute of limitations that the claimant is aware of his injury if he is unaware of the act or omission which caused the injury.”).¹

We have previously explained that a claim does not accrue if the cause is “not reasonably knowable.” Diaz v. United States, 165 F.3d 1337, 1339 (11th Cir.1999). However, a plaintiff may not “bury [his] head in the sand once [he] is put on notice that the government may have caused an injury.” Id. Thus, the statute of limitations...