Raddatz v. U.S., 84-1542

• Decision Date: 28 December 1984
• Docket Number: No. 84-1542,84-1542
• Citation: 750 F.2d 791
• Parties: Charleen T. RADDATZ and Michael George Raddatz, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 791

750 F.2d 791

Charleen T. RADDATZ and Michael George Raddatz, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 84-1542.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 6, 1984.

Decided Dec. 28, 1984.

Ian L. Mattoch, Honolulu, Hawaii, for plaintiffs-appellants.

J. Peter Axelrod, Richard L. Puglisi, Asst. U.S. Attys., Honolulu, Hawaii, for defendant-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before HUG, TANG and SCHROEDER, Circuit Judges.

TANG, Circuit Judge:

I. OVERVIEW

Charleen and Michael Raddatz appeal from the district court's summary judgment holding that their claims of medical malpractice against the United States are barred by the applicable two-year statute of limitations. 28 U.S.C. Sec. 2401(b)(1976). The malpractice claims arise from the unsuccessful attempt by an Army physician to insert an intrauterine contraceptive device at Mrs. Raddatz' request, and the alleged subsequent failure by a Navy physician to recognize or treat symptoms of infection, ultimately resulting in a hysterectomy operation. We find that the district court failed to recognize the distinct nature of the Raddatzes' claims against the Army and the Navy and thus erred in finding that their claim against the Navy was barred by Sec. 2401(b). We therefore reverse the summary judgment.

II. FACTS

A. Alleged Malpractice

The facts in this case are not in dispute. On February 28, 1977, Charleen Raddatz consulted with Dr. O'Donnell, Navy Physician, at the Navy Regional Medical Center, Pearl Harbor, Hawaii, regarding the choice and insertion of an intrauterine contraceptive device (IUD). After determining that the type of IUD that Mrs. Raddatz needed was not kept at his facility, Dr. O'Donnell referred Mrs. Raddatz to Tripler Army Medical Center.

Mrs. Raddatz went to the Army facility on the very same day (February 28, 1977). Dr. Arner, an Army physician, completed the procedure for insertion of an IUD into Mrs. Raddatz' uterus. Mrs. Raddatz experienced severe pain during and after the insertion. Dr. Arner waited a few minutes, and seeing no improvement, removed the IUD. Mrs. Raddatz saw the IUD when it was removed; it "was all bloody and seemed like there was tissue on it." Dr. Arner then told Mrs. Raddatz that he had perforated the right side of her uterus and that she would experience pain and cramping for a few days. He administered a shot of morphine at the hospital and gave her a prescription for pain killers.

Mrs. Raddatz made two subsequent visits to the Army facility's emergency room complaining of pain, cramping and bleeding. The emergency room doctor apparently noted in Mrs. Raddatz' record that the possibility of pelvic inflammatory disease existed.

On March 7, 1977, upon instruction of the emergency room doctor, she returned to see Dr. O'Donnell at the Navy Regional Medical Center, and complained of continued severe pain, discomfort and cramps. Dr. O'Donnell told Mrs. Raddatz that her symptoms were an acceptable side effect of the perforation of her uterus and that bleeding would be normal for 4-6 weeks. Dr. O'Donnell prescribed codeine for the pain. He did not prescribe antibiotics. On March 10, Mrs. Raddatz again saw Dr. O'Donnell who assured her that her symptoms were normal and gave her more pain killer. Further conversations took place, including the last actual consultation on March 14; in all the consultations, the Navy physician assured Mrs. Raddatz that her symptoms were normal and continued to prescribe pain killers.

On March 29, 1977, Mrs. Raddatz, unsatisfied with her treatment, consulted Dr. Williams, a civilian physician. By this time, she had additional symptoms of a slight fever, painful urination and weight loss. Dr. Williams prescribed antibiotics and later, after surgery, diagnosed her condition as an infection in the form of pelvic inflammatory disease (P.I.D.), thus confirming his original diagnosis. Ultimately, Dr. Williams performed a hysterectomy to eliminate scar tissue and pain allegedly caused by Dr. O'Donnell's negligent failure to prescribe antibiotics.

B. Judicial and Administrative Action

On February 28, 1979, the Raddatzes filed a premature complaint in district court, alleging negligence against Dr. Arner and Dr. O'Donnell in two separate counts. This complaint was later dismissed without prejudice on November 13, 1979.

On March 1, 1979, the Raddatzes filed an administrative claim with the Naval Legal Services Office pursuant to the Federal Torts Claims Act (FTCA), alleging that Dr. O'Donnell negligently failed to treat Mrs. Raddatz for her pain and other symptoms. On March 5, 1979, the Raddatzes filed a claim with the U.S. Army Claims service, alleging liability based on Dr. Arner's negligent perforation of Mrs. Raddatz' uterus.

On January 18, 1980, the Army Claims Service sent a letter by registered mail, denying the Raddatzes' claim against the Army. On February 7, 1980, however, the Army Claims Service sent a letter stating in essence:

(1) that the Army would reconsider the Raddatzes' claim;

(2) that the claim regarding follow-up treatment by Navy physicians constituted an additional claim not encompassed by the claim before the Army; and

(3) that the Army's reconsideration action would "be coordinated with the efforts of the Navy."

On November 5, 1980, the Army sent a letter to the Raddatzes' attorney. It was sent by regular mail and was received on November 10, 1980. This letter, in substance, stated that:

(1) after reconsideration, the Army had determined that no basis for reconsideration existed;

(2) the Navy had concluded that no basis existed for favorable action on the claim before their agency; and

(3) that if the Raddatzes were "dissatisfied with the action taken on the claim" they had six months from the mailing of the letter to file suit under the FTCA in district court.

The Navy never sent a separate letter of denial.

The Raddatzes filed a second complaint in district court on December 9, 1980. It was voluntarily dismissed without prejudice on February 4, 1981, allegedly to allow the Raddatzes to pursue further administrative remedies.

On June 12, 1981, over seven months from the purported denial letter of November 5, 1980, the Raddatzes filed the complaint in the instant suit. This complaint predicates liability solely on the actions of Navy personnel in their alleged negligent failure to treat Mrs. Raddatz for pelvic inflammatory disease. The Raddatzes prayed for damages for pain and suffering, mental distress, and Michael Raddatz' loss of his wife's society.

The United States answered, and filed a motion for summary judgment on June 29, 1983. The United States asserted that the Raddatzes failed to comply with the two requirements of 28 U.S.C. Sec. 2401(b), the applicable statute of limitations:

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.

The district court granted defendant's motion on December 8, 1983. The court, in its findings of fact and conclusions of law, found that:

(1) The Raddatzes' cause of action against both the Army and Navy accrued on February 28, 1977, the date of the negligent perforation of her uterus (2) The letter from the Army received by Raddatz on November 10, 1980, was an effective final denial of the Navy claim;

Based on these two findings, the court concluded that the Raddatzes failed to comply with both the two-year agency filing requirement and the six-month district court filing requirement. Their claims were therefore barred by Sec. 2401(b).

III. DISCUSSION

A. Standard of Review

The district court's grant of summary judgment, based on undisputed facts, held that the Raddatzes' claim was barred as a matter of law. We therefore review the summary judgment de novo, Turner v. Prod, 707 F.2d 1109, 1114 (9th Cir.1983), cert. granted, --- U.S. ----, 104 S.Ct. 1412, 79 L.Ed.2d 739 (1984); our task is identical to that of the trial court. M/V American Queen v. San Diego Marine Construction Corp., 708 F.2d 1483, 1487 (9th Cir.1983). Viewing the evidence most favorably to the party against whom summary judgment was granted, we must determine whether the moving party was entitled to judgment as a matter of law. Id.

B. Accrual of the Navy claim

The district court, relying on United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) and Ashley v. United States, 413 F.2d 490 (9th Cir.1969), held that the Raddatzes' claims against the Army and Navy accrued on the date of insertion of the IUD--February 28, 1977. The court treated the two claims as one because "they arose out of the same operative facts, namely the negligent puncturing of Plaintiff's ... uterus ..." We hold that the court's failure to recognize properly the Raddatzes' claims against the Army and Navy as separate claims, based on separate acts of negligence, led the court to apply the incorrect standard for determining when the Raddatzes' claim accrued against the Navy.

The Raddatzes undisputedly filed two separate claims against two separate agencies. In the Army claim, the Raddatzes alleged negligence by Army Doctor Arner for the negligent perforation of Mrs. Raddatz' uterus during insertion of an IUD. The Navy claim, however, alleges negligence by Navy Doctor O'Donnell in his subsequent failure to provide medical treatment for Mrs. Raddatz' continued pain and other symptoms from the perforation. The complaint in the present action is limited to the Navy doctor's alleged failure to warn of, or prescribe medication for, the risk of infection after the perforation occurred. It is a separate claim involving separate doctors,...