Osborn v. US

CourtUnited States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
Citation713 F. Supp. 341
Docket NumberCiv. No. A2-86-160.
PartiesJoseph OSBORN and Pamela Osborn, as father and mother and guardians ad litem of Shawna Osborn, Plaintiff, v. UNITED STATES of America, Defendant.
Decision Date24 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.

MEMORANDUM AND ORDER

BENSON, Senior District Judge.

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.

FACTS

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:

At about 12:00 o'clock she was lying on the couch asleep. She had a, what they call a full-blown grand mal where she arches her back, raises her arms, her face distorts, her eyes roll back in her head. She turns gray, and she proceeds to jerk and jump and make noises as she seizes.
My husband grabs her up, and we go back to the emergency room. We see somebody, I don't remember who. They can find nothing wrong, no ear infections, no fever, no fever with either seizure, no fever. Nothing.

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:

Early in the evening, about 7:00 P.M., Shawna and her dad are playing horsey in the hallway. She collapses to the floor in a seizure. We take her back to the emergency room. They put her in what they call the trauma room. She's on the examination table. She lies there, and she goes into what they call a petit mal seizure, at which time Dr. Billman witnesses the seizure.
She has no fever. They can find nothing else wrong with her. Dr. Erickstad checks her, fills out the emergency room report. We go home later. Those were the first seizures Shawna had with no fever.5

Id.

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:

A (Mrs. Osborn) I first observed her changing around her second birthday, a drastic change in Shawna.
Q (Counsel for the United States) When you mean a drastic change, what are you referring to?
A Prior to December 7th, she could speak four to six word sentences, was, I would consider almost potty trained, you could reason with her, tell her not to do something and explain it, and she would understand.
After the shot and drug therapy, Shawna was not walking, was crawling again, no longer had the four to six word sentences, nothing she said was legible, her word for airplane changed to buzz-a-bomb, and it was only until a year and a half ago she could said airplane again. We had to start potty training all over again.

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:

Q Before you left Willford Hall, did you ever have occasion to ask Dr. Malstrom or Dr. Trudeau what the cause was of Shawna's seizure disorder?
A I asked them what they thought, and they didn't know.
Q By they didn't know, what do you mean? They didn't know the cause of her seizure disorder?
A They say sometimes they don't—with seizure disorders in children, they sometimes don't know what causes them.
Q Did Dr. Malstrom or Dr. Trudeau ever tell you that the fourth DPT vaccination that was administered to Shawna was the cause of her seizure disorder?
A No.
Q Did there come a point in time when any physician told you that?
A That it directly caused the problem?
Q That it caused her seizure disorder.
A No, I was told that it can cause problems.
Q Who told you that?
A Dr. Bartholomew.
Q When?
A In March of 1984.
Q What were the circumstances of that conversation?
A Shawna was in the emergency room having what they call cluster seizures, one grand mal seizure after the other.
Q Specifically, what did Dr. Bartholomew tell you?
A He said she had a fever, and she was having seizures, and she was getting older at this point.
I'm asking him about starting school and vaccinations. That's when he tells me that she should not have any more DPT, and I asked him why. He said pertussis can cause bacterial encephalitis. He told me it was whooping cough. He told me pertussis was the drug they used for whooping cough, and then I said what about the things that have happened, the shots in the past. He said he didn't know.
Q I'm not sure I understand what Dr. Bartholomew was telling you when he says pertussis can cause—
A Encephalitis.
Q Encephalitis.
He's referring to the vaccination, the diptheria for tetanus, pertussis vaccination?
A He's telling me that children with a low threshhold for seizures, which Shawna exhibited at the time prior to her fourth vaccination, should not be given pertussis because they have a low threshhold, and it made them more susceptible to problems from pertussis such as encephalitis.
* * * * * *
Q Did he specifically tell you that it was improper for the Air Force to have administered DPT vaccine to Shawna, the fourth DPT vaccination, given her history of prior febrile seizures?
A Yes.

Deposition of Pamela Ann Osborn, Vol. I, 139-141, 142.

DISCUSSION

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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1 cases
  • Osborn v. U.S., 89-5349
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 5, 1990
    ...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......

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