Rosales v. U.S.

• Decision Date: 12 August 1987
• Docket Number: No. 86-5894,86-5894
• Citation: 824 F.2d 799
• Parties: Victoria ROSALES; Jesus Rosales; Rebecca Rosales, Plaintiffs-Appellants, v. UNITED STATES of America; Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 799

824 F.2d 799

Victoria ROSALES; Jesus Rosales; Rebecca Rosales, Plaintiffs-Appellants, v. UNITED STATES of America; Defendant-Appellee.

No. 86-5894.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 5, 1987.

Decided Aug. 12, 1987.

Ian Herzog, Los Angeles, Cal., for plaintiffs-appellants.

Shari K. Silver, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before PREGERSON, NELSON and WIGGINS, Circuit Judges.

NELSON, Circuit Judge:

Plaintiffs appeal from a judgment dismissing their claims under the Federal Tort Claims Act, 28 U.S.C. Sec. 2674 (1982) ("FTCA"). They argue that the district court erred in holding that the two-year statute of limitations in 28 U.S.C. Sec. 2401(b) (1982) bars their claims. We have jurisdiction under 28 U.S.C. Sec. 1291 (1982). We reverse and remand.

I. BACKGROUND

In the summer of 1981, Rebecca Rosales became pregnant and sought medical care at a Marine Corps installation in El Toro, California, where her husband was stationed. In late August 1981, a physician at Camp Pendleton Regional Medical Center examined Mrs. Rosales. She told him that she had been using an intrauterine contraceptive device ("IUD"), but the examination did not reveal the IUD. The physician told Mrs. Rosales that the IUD might have fallen out and referred her to an outside clinic for ultrasound tests. Medical personnel told her that many women deliver normal babies with an IUD in place. The physician did not inform her of the risks of continuing her pregnancy with an IUD in place or discuss possible alternatives to continuing the pregnancy, then in the first trimester.

In late October 1981, the hospital performed an ultrasound procedure, which revealed that the IUD was in place. No one at the hospital informed Mrs. Rosales of the possible danger to the fetus or discussed alternatives to continuing the pregnancy.

In December 1981, Mrs. Rosales was referred, through a federal program for dependents of armed forces personnel, to a civilian physician, Dr. Williams, at Mission Community Hospital. The Rosaleses contend that on December 9 Dr. Williams told Mrs. Rosales that pregnancy with an IUD posed some risks, did not inform her of specific risks, and told her of the dangers of aborting at this stage of her pregnancy. The government offered evidence suggesting a different version of the facts: Dr. Williams' discharge report, prepared after the child's birth the following March, stated that Mrs. Rosales "was made aware of the potential problems, with respect to an IUD in pregnancy, but elected to carry on with the pregnancy, understanding full well, the potential risks of IUD and intrauterine pregnancy." Discharge Summary, Exhibit 102, at 1. ¹

On March 7, 1982, Mrs. Rosales entered Mission Community Hospital and delivered by cesarean section a child who was approximately three weeks premature. The physician who delivered Victoria ² told Mrs. Rosales that the baby had a "lazy lid" associated with premature birth, which she would outgrow within a year. The delivering doctor and hospital pediatrician told Mrs. Rosales that Victoria was healthy and did not mention any problems. When the pediatrician checked Victoria at six weeks, he noted that she was small, but again said that she seemed fine.

In July 1982, Mrs. Rosales took Victoria to the El Toro clinic for a regular four-month checkup. The examining doctor noted that Victoria was premature and had a lag on her eyelid. The physician said, however, that Victoria was an "active, happy baby." In August, Mrs. Rosales told Dr. Lytle, a pediatrician at the El Toro clinic, that she was concerned about Victoria's size and mild lethargy. Dr. Lytle referred her to the Children's Hospital of Orange County. On August 6, 1982, Dr. Fowler of the Children's Hospital recommended and performed a CAT scan and told Mrs. Rosales that he would inform her of the result.

On September 9, Dr. Fowler sent a letter to Dr. Lytle indicating his "diagnostic impression" that Victoria had nonprogressive encephalopathy and stating that one possible origin of retardation "would be an intrauterine infection." Sometime in September 1982, Dr. Fowler informed the plaintiffs that Victoria "might" be retarded. He apparently did not discuss a possible cause of retardation with Mrs. Rosales, and he did not mention any possible link between the IUD and Victoria's problem. Dr. Fowler suggested an opthalmologic evaluation and a repeat CAT scan six In April 1984, the plaintiffs consulted an attorney who suggested that they show Victoria's medical records to another physician. In June 1984, Dr. Chusid told the plaintiffs that the retardation appeared to have been caused by a bacterial infection, which in turn could have been caused by the IUD puncturing the amniotic sac. On July 9, 1984, the Rosaleses filed administrative claims with the government on behalf of Victoria for personal injuries including "brain damage, vision problems, loss of hearing and further physical defects." On approximately September 27, 1984, Mrs. Rosales filed claims for unspecified injuries caused by the alleged malpractice, and Mr. Rosales filed claims for "[m]ental and emotional distress in witnessing the malpractice and the sequela thereof occasioned to both his wife and minor child." ³

                months later.  In December 1982, Dr. Brown, an opthalmolgist at the Naval Regional Medical Center in Long Beach, also recommended a repeat CAT scan if Victoria's sluggish eye reaction persisted, in order "to R[ule]/o[ut] associated brain abnormalities."    Consultation Sheet, Exhibit E.  In March 1983, the second CAT scan confirmed that Victoria showed permanent mental retardation.  However, Dr. Fowler did not mention to the plaintiffs that the IUD was a possible cause of the child's retardation
                

The government did not respond to the claims. In September 1985, the plaintiffs filed suit in district court under the FTCA. See 28 U.S.C. Sec. 2675(a) (1982). The first count for medical malpractice asserted mental, emotional, and physical injuries to Mrs. Rosales and Victoria caused by the Camp Pendleton doctors' failures to locate the IUD and to warn of the danger of continuing a pregnancy with an IUD in place. The second count set forth Mr. Rosales's claims for negligent infliction of emotional distress based on his witnessing the injury to the mother and child. The government moved to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) and for failure to state a claim under Fed.R.Civ.P. 12(b)(6). The district court held that 28 U.S.C. Sec. 2401(b) bars the claims because the plaintiffs did not file their administrative claims within two years of the accrual of their actions. It dismissed the action for failure to state a claim.

II. DISCUSSION

Section 2401(b) of the FTCA requires that a plaintiff file an administrative claim with the appropriate federal agency "within two years after such claim accrues." 28 U.S.C. Sec. 2401(b) (1982). A medical malpractice claim accrues when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, both the injury and its cause. In re Swine Flu Prods. Liab. Litig., 764 F.2d 637, 639-40 (9th Cir.1985); Dyniewicz v. United States, 742 F.2d 484, 486 (9th Cir.1984); Augustine v. United States, 704 F.2d 1074, 1078 (9th Cir.1983); see United States v. Kubrick, 444 U.S. 111, 122-23, 100 S.Ct. 352, 359-60, 62 L.Ed.2d 259 (1979).

At the outset, we note several procedural irregularities in the disposition of the case below. First, although the district court dismissed the Rosaleses' complaint for failure to state a claim, its order clearly went beyond the pleadings and considered facts set forth in affidavits and exhibits submitted by the parties. If matters external to the pleadings are presented to the court and not excluded, a Rule 12(b)(6) motion for failure to state a claim should be treated as a motion for summary judgment. See Ellis v. Cassidy, 625 F.2d 227, 229 (9th Cir.1980); Fed.R.Civ.P. 12.

Second, our cases have stated that timely compliance with the statute of limitations in 28 U.S.C. Sec. 2401(b) is jurisdictional. Gibson v. United States, 781 F.2d 1334, 1343 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 928, 93 L.Ed.2d 979 In this case, the court apparently did not consider whether the jurisdictional facts were intertwined with, or distinct from, the substantive issues. We assume, without deciding, that the issues are not intertwined because the doctor who allegedly informed Mrs. Rosales of the risks (Dr. Williams at Mission Community Hospital) is not the doctor or doctors who allegedly subjected her to malpractice (at Camp Pendleton Regional Medical Center). Thus, for purposes of this appeal, we attach no presumption of truthfulness to the Rosaleses' allegations. However, in view of certain undisputed facts in the record and even accepting the government's contention that Dr. Williams informed Mrs. Rosales of specific risks, we conclude that the Rosaleses' claims are not timebarred. ⁴

                (1987);  Swine Flu, 764 F.2d at 638;  Dyniewicz, 742 F.2d at 485.  A district court may hear evidence and make findings of fact necessary to rule on the subject matter jurisdiction question prior to trial, if the jurisdictional facts are not intertwined with the merits.   Augustine, 704 F.2d at 1077;  see Roberts v. Corrothers, 812 F.2d 1173, 1176-78 (9th Cir.1987);  Timberlane Lumber Co. v. Bank of Am. Nat'l Trust & Sav. Ass'n, 749 F.2d 1378, 1381-82 (9th Cir.1984), cert. denied, 472 U.S. 1032, 105 S.Ct. 3514, 87 L.Ed.2d 643 (1985);  Data Disc, Inc. v. Systems Technology Assocs., 557 F.2d 1280, 1285 & n. 2 (9th Cir.1977).  In such circumstances, no presumption of truthfulness attaches to the plaintiff's allegations.   Augustine, 704 F.2d at 1077.  However, if the jurisdictional issue and substantive claims are so intertwined that resolution

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