Wolcoff v. United States

• Decision Date: 08 September 2011
• Docket Number: D.C. No. 3:08-cv-00032-JWS,No. 10-35805,10-35805
• Parties: ROBERT H. WOLCOFF; HEATHER WOLCOFF, Plaintiffs - Appellants, v. UNITED STATES OF AMERICA; ANN MARIE YOST, Defendants - Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

ROBERT H. WOLCOFF;
HEATHER WOLCOFF, Plaintiffs - Appellants,
v.
UNITED STATES OF AMERICA;
ANN MARIE YOST, Defendants - Appellees.

No. 10-35805
D.C. No. 3:08-cv-00032-JWS

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted July 29, 2011
Dated: September 8, 2011

NOT FOR PUBLICATION
MEMORANDUM^*
Appeal from the United States District Court for the District of Alaska John W. Sedwick, District Judge, Presiding
Argued and Submitted July 29, 2011 Anchorage, Alaska

Before: B. FLETCHER, KLEINFELD, and CALLAHAN, Circuit Judges.

Plaintiffs-appellants Robert and Heather Wolcoff ("the Wolcoffs") appeal the district court's grant of summary judgment to defendant-appellant Dr. Ann Marie Yost.

Page 2

Robert Wolcoff sought treatment at the Alaska Native Medical Center ("ANMC"), a federally-funded hospital, in June 2005, at which time Dr. Yost performed lumbar surgery on him. On account of injuries allegedly sustained during that operation, and after exhausting their administrative remedies, see 28 U.S.C. § 2675(a), the Wolcoffs filed a complaint for medical malpractice against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671 et seq. Three months later, the United States filed an answer to the Wolcoffs' complaint indicating that Dr. Yost may not, in fact, be a federal employee. The Wolcoffs subsequently amended their complaint to add a state tort claim against Dr. Yost personally.

Dr. Yost moved for summary judgment, arguing that the Wolcoffs' state tort claim was time-barred.¹ The district court agreed and entered judgment for Dr. Yost. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.²

Page 3

The statute of limitations for tort actions in Alaska is two years. See Alaska Stat. § 09.10.070(a); Kaiser v. Umialik Ins., 108 P.3d 876, 880 (Alaska 2005). "The statute of limitations ordinarily begins to run on the date the plaintiff is injured." Sengupta v. Wickwire, 124 P.3d 748, 753 (Alaska 2005).

Alaska courts "have consistently held that the discovery rule applies to professional malpractice actions," including medical malpractice claims. Preblich v. Zorea, 996 P.2d 730, 733 & n.13 (Alaska 2000). Under this rule, "the...