Osborn v. US
Court | United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota |
Citation | 713 F. Supp. 341 |
Docket Number | Civ. No. A2-86-160. |
Parties | Joseph OSBORN and Pamela Osborn, as father and mother and guardians ad litem of Shawna Osborn, Plaintiff, v. UNITED STATES of America, Defendant. |
Decision Date | 24 May 1989 |
Lembhard G. Howell, Seattle, Wash., Ambrose E. Stanley, Fairfield, Cal., for plaintiff.
Mary McElroy Leach, Trial Atty., Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., Lynn E. Crooks, Asst. U.S. Atty., Gail K. Johnson, Trial Atty., Torts Branch, Civ. Div., U.S. Dept. of Justice, Fargo, N.D., for defendant.
This is a medical malpractice action against the United States, brought under the Federal Tort Claims Act. See 28 U.S.C. §§ 2671-2680. The minor plaintiff, Shawna Osborn, allegedly sustained severe injuries resulting from the administration of a diptheria, pertussis, and tetanus (DPT)1 vaccination. The United States is a defendant because Shawna received the vaccination at a United States Air Force immunization clinic in Grand Forks, North Dakota.
The United States has filed a motion to dismiss2 the case for lack of subject matter jurisdiction on the basis that the plaintiff failed to present a claim to the appropriate federal agency within two years of the accrual of the claim, as required by statute:
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 or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.
28 U.S.C. § 2401(b). The plaintiff presented the claim to the United States Air Force on October 15, 1985. The vaccine was administered on December 7, 1982.
For purpose of the motion, the court assumes the truth of the following facts. Shawna was born March 18, 1981.3 On June 22, 1981, she received the first of four DPT shots. The second and third shots were administered on August 24, 1981, and October 28, 1981.
On August 7, 1982, Shawna experienced a seizure episode and was seen at Grand Forks Air Force Base (GFAFB) hospital. Shawna had another seizure on September 14, 1982, and was admitted to the GFAFB hospital. On September 15, 1982, a GFAFB hospital nurse witnessed a third seizure. At that point, Shawna was diagnosed as having complex febrile seizures.4 On October 12, 1982, Shawna underwent an EEG study by Dr. Ross E. Pettit, a private neurologist. The report was normal. On November 1, 1982, Shawna experienced two more febrile seizures and was again hospitalized.
On December 7, 1982, Shawna received a fourth DPT shot at the GFAFB immunization clinic. The shot was administered between 10:00 and 10:30 a.m. Between 11:00 and 11:30 a.m., Shawna experienced a non-febrile seizure. Her mother took Shawna to the GFAFB emergency room and was referred from there to the family practice. There the doctor found that she had apparently recovered from the seizure. Shawna was then taken home. At 12:00 noon, Shawna experienced a grand mal seizure.
In deposition Shawna's mother (Pamela Ann Osborn) described the seizure:
Deposition of Pamela Ann Osborn, Vol. I at 126.
At about 7:00 p.m. that same day Shawna experienced a third seizure. Again, her mother described the seizure:
Following her non-febrile seizure on December 7, 1982, Shawna was seen by several physicians and was hospitalized on February 16-17, 1983; April 19-20, 1983; and June 20-29, 1983. On January 12, 1983, under the supervision of Dr. Pettit, she was given another EEG study and evaluation. This time the report was abnormal. On May 6, 1983, Dr. Bruce Oskol advised Shawna's mother that Shawna was not to get any more DPT vaccine. Dr. Oskol's May 6, 1983 entry on the admission record reads: "Seizure Disorder Not to get any more DPT Vaccine (No pertussis)." Shawna's mother was provided with a copy of the immunization record. A subsequent EEG study and evaluation by Dr. Merle Teetzen on August 16, 1983, again disclosed an abnormality.
Shawna's mother has testified by deposition that she observed a drastic change in Shawna after December 7, 1982. Counsel for the United States asked if she had noticed a change in Shawna's intelligence level:
Deposition of Pamela Ann Osborn, Vol. I at 152-53.
On May 8, 1984, Dr. D.W. Bartholomew also warned Shawna's mother that Shawna should not have any more DPT shots. On questioning by Government Counsel, Mrs. Osborn testified:
Deposition of Pamela Ann Osborn, Vol. I, 139-141, 142.
The complaint alleges that Shawna developed a generalized seizure disorder as the result of a December 7, 1982, DPT shot. Plaintiffs assert that "Pamela Osborn had no knowledge of either the fact of Shawna's injury or the cause of Shawna's injury on December 7, 1982," and that the claim did not accrue until March 8, 1984. The United States asserts that the claim accrued December 7, 1982.
The "accrual" of a claim under section 2401(b) is a matter of federal law. E.g., Radman v. United States, 752 F.2d 343, 344 (8th Cir.1985). In United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 358, 62 L.Ed.2d 259 (1979), the Court stated that a claim accrues under section 2401(b) when "the plaintiff has discovered both his injury and its cause." The Court of Appeals for the Eighth Circuit has held that in medical malpractice cases, "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." Reilly v. United States, 513 F.2d 147, 148 (8th Cir.1975). "Reasonable diligence" is viewed objectively, and varies with the facts of each case. Arvayo v. United States, 766 F.2d 1416, 1422 (10th Cir.1985); Radman v. United States, 752 F.2d 343, 344 (...
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Osborn v. U.S., 89-5349
...than her May 6, 1983, conversation with Dr. Bruce Oksol and that the Osborns' claim was therefore time-barred. Osborn v. United States, 713 F.Supp. 341, 346 (D.N.D.1989). The Osborns argue that their claims were timely because they did not have sufficient knowledge until a conversation with......