Wehrman v. U.S., 87-5030-MN

• Decision Date: 08 October 1987
• Docket Number: No. 87-5030-MN,87-5030-MN
• Citation: 830 F.2d 1480
• Parties: Floyd L. WEHRMAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1480

830 F.2d 1480

Floyd L. WEHRMAN, Appellant, v. UNITED STATES of America, Appellee.

No. 87-5030-MN.

United States Court of Appeals Eighth Circuit.

Argued June 10, 1987.

Decided Oct. 8, 1987.

Robert W. Rischmiller, Minneapolis, Minn., for appellant.

Robert M. Small, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before McMILLIAN, Circuit Judge, GIBSON, Circuit Judge, and ROSENN, ^* Senior Circuit Judge.

ROSENN, Senior Circuit Judge.

In this appeal from a grant of summary judgment, the plaintiff, Floyd L. Wehrman, asserts that his claim for damages arising out of alleged malpractice by a Veterans Administration hospital is not barred by the two-year limitation period set forth in 28 U.S.C. Sec. 2401(b), ¹ because the allegedly tortious continuing treatment did not end until some time within two years prior to his complaint. Because we disagree with the district court's determination that the "continuous treatment" doctrine is inapplicable in this case, we will vacate the district court's order and remand the case for further proceedings.

I.

The essential facts are not in dispute. Wehrman is completely disabled by organic brain syndrome caused by an injury received in military service. From 1962 through 1984, he received medical treatment from the Minneapolis Veterans Administration Medical Center (the VA). Various VA physicians treated him over the years.

In 1962 Wehrman began to experience throat and chest pain. He consulted VA physicians, who advised him on several occasions that medical, not surgical, treatment was preferred, surgery being unduly dangerous. Wehrman agreed to the recommended medical regime. Despite several years of medical treatment, his condition worsened. In September 1981, he was admitted to the Medical Center, complaining of digestive and stomach problems, chest pain, and difficulty swallowing. The VA doctors diagnosed hiatal hernia, Schatzke's ring dilated, seizure disorder, and reflux esophagitis. He was hospitalized again that winter, when a VA physician again advised him that surgery presented a grave risk and that medical management was the only feasible alternative.

Wehrman subsequently received outpatient treatment, including barium swallow examinations, an esophogram, an endoscopy, medication, and frequent reevaluations of the reflux. His condition nevertheless continued to deteriorate.

By January 1984 Wehrman's condition allegedly had deteriorated to the point where he was unable to eat and could barely breathe. He consulted the chief of surgery at the Medical Center, who advised him once again that the surgery was unduly dangerous. In February 1984, however, Wehrman consulted a private physician, Dr. Carl Brown, who referred him to Dr. Mark Schmidt. Schmidt performed an endoscopy and diagnosed severe esophagitis with ulcerations, a sphincter injury, and a large hiatus hernia. He referred Wehrman to Dr. John Linner for a surgical assessment. Linner advised Wehrman that surgery was a viable alternative.

Wehrman chose to undergo the surgery, and Dr. Linner performed it in March 1984 at the Metropolitan Medical Center in Minneapolis. Wehrman states that the results were "tremendous," eliminating his eating and sleeping problems and pain.

Wehrman subsequently filed an administrative claim as required by the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2675 et seq., before the commencement of court litigation. The VA denied his claim and he brought the present action. In his complaint, Wehrman alleged:

From 1962 through and including March 1984, various agents, servants and employees of the Veterans Administration ... negligently and otherwise wrongfully failed to perform reasonable and necessary examinations, diagnostic tests and treatment and otherwise negligently and wrongfully failed to obtain reasonable and necessary surgical [sic] and/or other surgical consultations with respect to the medical condition of Plaintiff including esophagitis, hiatus hernia with reflux and related medical conditions.... Defendant through its agents, servants and employees further negligently and otherwise wrongfully failed to inform the plaintiff of alternative methods of treating said medical conditions.... As a direct result of the negligence of defendant, plaintiff sustained a progressive worsening of his medical condition, suffered great pain of body and mind ... was prevented from transacting his business and personal activities and ... has sustained medical expenses....

He sought one million dollars in damages.

The Government moved for summary judgment on the ground that Wehrman's claim was barred by the statute of limitations. The district court granted the motion and entered judgment for the Government, 648 F.Supp. 386.

II.

Tort claims against the United States are time barred if not presented in writing to the appropriate Federal agency within two years after such claim accrues. See note 1 supra. When a claim accrues is a question of federal law. Snyder v. United States, 717 F.2d 1193, 1195 (8th Cir.1983). In general, a claim accrues at the time of the plaintiff's injury, but medical malpractice cases are an exception to this rule. Id. (citing United States v. Kubrick, 444 U.S. 111, 118, 100 S.Ct. 352, 357, 62 L.Ed.2d 259 (1979)). This court has focused on "determining the time [the plaintiff] actually knew, or in the exercise of reasonable diligence should have known, the cause and existence of his injury." Snyder, 717 F.2d at 1195. In the present case, Wehrman filed his administrative claim on October 24, 1984. The question presented on this appeal is thus whether his claim accrued prior to October 24, 1982.

A.

Wehrman first asserts that the Government is precluded from raising a statute of limitations defense because the VA concealed material facts. Such concealment, if fraudulent, prevents the running of the statutory period until the plaintiff discovers or by reasonable diligence could discover the basis for the claim. Diminnie v. United States, 728 F.2d 301, 305-06 (6th Cir.), cert. denied, 469 U.S. 842, 105 S.Ct. 146, 83 L.Ed.2d 85 (1984). On appeal, Wehrman contends that the VA physicians wrongfully concealed alternative surgical methods of treatment and persuaded him that his worsening condition was the natural progression of the disease. He claims he did not discover the truth, nor could he in the exercise of due diligence have done so, he asserts, until 1984, when he sought help outside the VA. ²

The district court rejected this argument because on many occasions over the years Wehrman had requested and received free access to his VA medical records. Wehrman, however, claimed that these records were used by him in connection with a lawsuit of his mother against the State of Minnesota. Furthermore, they did not contain information regarding surgical alternatives, the information Wehrman argues was concealed.

Even if the disclosure of his medical records is therefore irrelevant, Wehrman's allegations of the VA's failure to inform him properly about surgical alternatives, if true, would establish at most negligence, not deliberate or fraudulent concealment. That negligence might be sufficient to supply a cause of action, but it would not meet the higher burden of a showing of fraud required to preclude a statute of limitations defense. The Government therefore is not barred by the VA's alleged concealment from raising an untimeliness defense.

B.

Under the continuing treatment doctrine, a plaintiff's cause of action does not accrue until the tortious continuing treatment ends, even if the plaintiff is aware of the facts constituting negligence before that time. Wehrman contends that the VA's repeated advice not to seek surgery, given during his medical treatment, continued well past October 1982.

In Page v. United States, 729 F.2d 818 (D.C. Cir.1984), the plaintiff sued the VA in 1981 for negligently subjecting him to harmful drug therapy from 1961 to 1980. He had sued the VA unsuccessfully for malpractice in 1972, which established his knowledge of the tortious conduct as of that time. The court of appeals held that the 1972 judgment was res judicata with respect to the allegedly tortious conduct occurring prior to 1972, but that the cause of action arising out of later conduct did not accrue until treatment terminated in 1980: "Since usually no single incident in a continuous chain of tortious activity can 'fairly or realistically be identified as the cause of significant harm,' it seems proper to regard the cumulative effect of the conduct as actionable." 729 F.2d at 821-22 (quoting Fowkes v. Pennsylvania R.R., 264 F.2d 397, 399 (3d Cir.1959)). Wehrman asserts that here, as in Page, the claim is not based on a single incident of allegedly negligent conduct; rather, he alleges a continuous course of improper treatment. As the injury developed gradually, the cumulative impact of all the years of treatment was not complete before October 1982.

Not every court has applied the continuing treatment doctrine as expansively as in Page, however. In medical malpractice actions in which the alleged negligence consists of failure to take action, not an affirmative negligent act, factors other than the time of the end of treatment have been considered relevant. One is the deterioration of the plaintiff's condition. In Raddatz v. United States, 750 F.2d 791 (9th Cir.1984), the Ninth Circuit stated that a claim based on failure to diagnose, warn, or treat a patient for a pre-existing injury accrues when "the patient becomes aware or through the exercise of reasonable diligence should have become aware of the development of a pre-existing condition into a more serious condition." Id. at 796 (quoting Augustine v. United States, 704 F.2d 1074, 1078 (9th Cir.1983)). The court added, however, that because the physician had repeatedly assured the plaintiff that her worsening condition was a normal consequence of a medical procedure, her failure to file suit...