McGraw v. U.S., 00-35514.
| Decision Date | 25 February 2002 |
| Docket Number | No. 00-35514.,00-35514. |
| Citation | 281 F.3d 997 |
| Parties | Nancy McGRAW, individually and as the Personal Representative of the Estate of Kenneth Place, Plaintiff-Appellant, and Kenneth Place, Estate of, Plaintiff, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Larry Zinn, San Antonio, Texas, for the plaintiff-appellant.
Eugene A. Studer, Assistant United States Attorney, United States Attorney's Office, Tacoma, Washington, for the defendant-appellee.
Appeal from the United States District Court for the Western District of Washington, Franklin D. Burgess, District Judge, Presiding.
Before: O'SCANNLAIN, GRABER, and McKEOWN, Circuit Judges.
This case calls upon us to refine our longstanding rule regarding the accrual of certain medical malpractice claims brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680. In Augustine v. United States, 704 F.2d 1074, 1078 (9th Cir.1983), we held that a plaintiff alleging a failure-to-diagnose theory must file an administrative claim with the appropriate government agency, pursuant to 28 U.S.C. § 2401(b), within two years after learning that a pre-existing condition has transmuted into a more serious ailment. We have not, however, had occasion to address when such a claim accrues if the doctors never informed the plaintiff about the existence of such a condition.
Here, Nancy McGraw, suing individually and as personal representative of the estate of her deceased father, Kenneth Place (collectively "McGraw"), brought wrongful death and survival claims against the government. She maintained that military doctors failed to diagnose a cancerous growth in her father's lung, an omission that resulted in Place's death after the cancer spread throughout his body. The district court found that McGraw's claims accrued when she first learned that her father had cancer, and dismissed her complaint for lack of subject matter jurisdiction because she filed her administrative claim more than two years later. On appeal, McGraw argues that the district court misapplied our holding in Augustine regarding the accrual rule because, among other things, it failed to appreciate the legal significance of the government's failure to inform Place that he had a pre-existing condition. We agree.
In accordance with Augustine, we hold that a plaintiff who brings a failure-to-diagnose claim under the FTCA does not "discover" the claim until he not only is aware — or, through the exercise of reasonable diligence, should have become aware — of the existence of a pre-existing condition, but also learns that the condition has transformed into a more serious ailment. Consequently, we reverse the dismissal of the estate's wrongful death claim. As for the decedent's survival claim, we remand for further factual development concerning whether Place was, during the period preceding his death, sufficiently cognizant of a possible misdiagnosis.
Place was a Navy veteran who remained affiliated with or employed by the service in various capacities until his death in 1996, including a stint in a shipbuilding yard where he was exposed to asbestos and ionizing radiation. Until 1987, nine years before his death, Place smoked approximately three or four packs of cigarettes per day. During various physical examinations over the years, he informed his military physicians about his smoking habit and his exposure to hazardous substances.
For reasons that are not clear from the record, Place underwent an examination at Bremerton Naval Hospital ("BNH") in February 1994. During the visit, physicians took a chest x-ray and also performed a scan of Place's chest cavity. A radiologist reviewed the results and noticed an unusual area on Place's right lung that, he suspected, might be a malignant growth. The radiologist recommended that Place be examined by a heart-lung specialist and also suggested that the hospital perform a biopsy on the suspicious area to determine its provenance.
Subsequently, a Navy pulmonologist examined Place and concluded that the suspicious area in the right lung was scar tissue. He also ordered a new x-ray of Place's chest cavity.
The radiologist interpreting the x-ray concurred with the pulmonologist's diagnosis and recommended that Place receive a follow-up chest x-ray six months later. (It is unclear whether this radiologist was the same physician who examined Place's prior x-rays.) For some inexplicable reason, however, the pulmonologist later informed Place that his lung was normal and, contrary to the radiologist's recommendation, told Place that there was no need for a follow-up examination. The record contains no indication that the pulmonologist — or any other doctor at BNH — ever informed Place during his February 1994 visit that he had any scar tissue, growth, or abnormality in his right lung.
During the next two years, Place suffered from repeated chest congestion and persistent back pain. Place consulted a chiropractor for his back pain but apparently did not receive medical treatment for his congestion.
In August 1996, Place's health deteriorated rapidly. After he unexpectedly failed to report to work on August 15, some of Place's friends went to his home and discovered that he was seriously ill. They transported Place to BNH; doctors there eventually concluded that Place had lung cancer that had metastasized to his brain and various bones. McGraw, who resided in New York, received an urgent request that she visit her father at BNH as soon as possible. She arrived shortly thereafter, learned from the BNH doctors that her father had terminal lung cancer, and was present at Place's bedside when he passed away on August 27.
Given the suddenness of Place's death and his persistent health problems, McGraw became suspicious of the quality of medical care that he had received from BNH. After retaining counsel, McGraw made at least four requests to BNH for Place's records before finally obtaining them in October 1997. Medical experts retained by McGraw then reviewed the records and concluded that, as of February 1994, Place had a pre-existing condition in his right lung that BNH failed to diagnose properly as a malignancy.
In October 1998, slightly more than two years after she first learned that her father had lung cancer, McGraw filed an administrative claim with the Navy. The Navy did not act on the claim. As a result, McGraw commenced suit in federal court. The district court dismissed the action for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 2401(b). It reasoned that the claims accrued, at the latest, in August 1996 — when McGraw first learned that Place had lung cancer — and that McGraw's administrative claim was therefore untimely.
We review de novo the district court's order dismissing an action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). See Raddatz v. United States, 750 F.2d 791, 795 (9th Cir.1984). In undertaking such a review, we must accept all uncontroverted factual assertions regarding jurisdiction as true. See Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987). Those assertions that are contested by the government must, for purposes of adjudicating the jurisdictional motion, be construed in favor of McGraw. See Augustine, 704 F.2d at 1077 (). Moreover, "where the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits, the jurisdictional determination should await a determination of the relevant facts on either a motion going to the merits or at trial." Id.
Under the FTCA, a tort claim is barred unless the claimant notifies "the appropriate Federal agency" "within two years after such claim accrues." 28 U.S.C. §§ 2401(b), 2675(a). This limitation is a threshold jurisdictional requirement. See Burns v. United States, 764 F.2d 722, 724 (9th Cir.1985). It is now well settled that in the medical malpractice context, a claim generally accrues when the plaintiff becomes aware of both the injury sustained and its cause. United States v. Kubrick, 444 U.S. 111, 119-22, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979); Davis v. United States, 642 F.2d 328, 331 (9th Cir.1981).
The statute of limitations inquiry, however, becomes more complicated when the plaintiff proceeds under a failure-to-diagnose theory, because it is often very difficult for a plaintiff to determine the genesis of an injury resulting from a doctor's omissions. Whereas injuries directly inflicted by purported affirmative malpractice, such as an operation on the wrong limb or complications from surgery, are often readily identifiable, a failure to identify and treat a latent condition may not become manifest to the patient until years later at the onset of a serious malady. See Augustine, 704 F.2d at 1078. In short, the absence of a diagnosis or the failure to render an accurate diagnosis is, by its very nature, often elusive and difficult to pin down.
The parties acknowledge that Augustine furnishes the general rule that governs the accrual of claims brought under a failure-to-diagnose theory, but they offer different interpretations of that rule. Accordingly, we turn first to Augustine to paint the backdrop for the present dispute.
In Augustine, the plaintiff was diagnosed initially in November 1975 as having a "bump ... no bigger than a pinhead" on his palate. 704 F.2d at 1076. Even after a follow-up examination, the Air Force dentists did not inform him that the condition...
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