Sanders v. U.S., 75-2204

• Decision Date: 16 February 1977
• Docket Number: No. 75-2204,75-2204
• Citation: 179 U.S.App.D.C. 272,551 F.2d 458
• Parties: Anne C. SANDERS et al., Appellants, v. UNITED STATES of America, DEPARTMENT OF the ARMY SURGEON GENERAL.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 458

551 F.2d 458

179 U.S.App.D.C. 272

Anne C. SANDERS et al., Appellants, v. UNITED STATES of America, DEPARTMENT OF the ARMY SURGEON GENERAL.

No. 75-2204.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 25, 1977.

Decided Feb. 16, 1977.

Barry J. Nace, Washington, D.C., for appellants.

Richard A. Graham, Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., John A. Terry, William D. Pease and Eric B. Marcy, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.

Before CLARK, ^* Retired Associate Justice of the United States Supreme Court, MacKINNON and ROBB, Circuit Judges.

PER CURIAM:

The sole question involved in this malpractice action is whether the District Court erred in sustaining the Government's motion for summary judgment on the ground that the action was not timely filed. We have concluded that the District Court was correct and affirm.

The appellants are Anne C. Sanders and her husband, Robert. On June 8, 1965, Anne entered Walter Reed General Hospital at Washington, D.C. for the purpose of giving birth to her second child. ¹ She alleges that because of the negligence of Government doctors, she suffered a ruptured uterus and lacerated bladder during the course of the caesarean delivery of her child.

The Sanders filed this action November 19, 1974, Anne seeking recovery of $5 million, and her husband, $21/2 million, for a kidney condition which developed as a result of the alleged malpractice. The Government moved to dismiss the action, or, in the alternative, for summary judgment on the ground that the Sanders did not file their claims with the appropriate Federal agency within two years from the date the cause of action accrued, as required under 28 U.S.C. § 2401(b). The motion for summary judgment was sustained and the suit dismissed. This appeal followed.

The record reveals that Anne was trained as a registered nurse; she had passed the Louisiana State Boards in September 1955, and practiced for two years as a staff nurse at the Veterans Hospital in Shreveport. She gave up her nursing career some two months prior to marrying Robert on August 3, 1957. Their first child was delivered by caesarean section in 1960, after which Anne suffered painful urination and required catheterization.

The complications ultimately giving rise to this action developed upon the birth of their second child on July 8, 1965. Although she had originally consented to try a natural childbirth, a caesarean section was necessary. Mrs. Sanders' deposition reflected that she found out the morning after the delivery that her uterus and bladder had been ruptured during the caesarean section and required repair, that she had a catheter inserted for about a week and did not have control of her bladder for about 4 days, but she seemed to be all right after this week of trouble. In December 1965 she asked to see her medical records because she was "curious as to what was in them." She received the records, examined them, and returned them to the hospital. She was still having difficulty in voiding urine at that time.

In April 1966, Anne was hospitalized for treatment of a neurogenic bladder. She developed a 105o fever on April 21 (on her own check), had a deep rattling in her chest and body aches, especially in the area of her kidneys. Robert was advised that she suffered from an acute kidney infection with a diagnosis of pyelonephritis acute right etiological mechanism E. Coli and streptococcus faecalis. Robert immediately told Anne of the diagnosis and that the infection was due to all the catheterizations that were performed on her in the hospital. Nevertheless she underwent additional catheterizations as well as medical and x-ray treatment for her bladder infection throughout the remainder of 1966 and the first six months of 1967.

Robert was in Vietnam from August 1967 until August 1968, and Anne recalled neither problems nor treatments during that period. In the Fall of 1968, she experienced frequent urination and headaches and underwent further testing at Westover Air Force Base where Robert was stationed. On February 12, 1969, an ultimate diagnosis of focal pyelonephritis, chronic, left upper pole, was reached, but she testified that she was never so informed. In May 1969, a cystoscopy was performed. ²

In March 1970, Robert was discharged from the Air Force, and Anne was given all of her medical records covering the period 1960-1970. She denied ever examining the records until after consultation with Dr. James R. Hatcher in 1973. The records were "stuck back in the file box somewhere . . . I don't have time for looking in medical records," she depos...