Zeidler v. U.S., 78-1190

• Citation: 601 F.2d 527
• Decision Date: 13 June 1979
• Docket Number: No. 78-1190,78-1190
• Parties: Eldon A. C. ZEIDLER, by and through his legally appointed Conservator, Malcolm G. Copeland, Plaintiff-Appellant, v. The UNITED STATES of America and the Veterans Administration, an agency of the United States of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 527

601 F.2d 527

Eldon A. C. ZEIDLER, by and through his legally appointed Conservator, Malcolm G. Copeland, Plaintiff-Appellant, v. The UNITED STATES of America and the Veterans Administration, an agency of the United States of America, Defendant-Appellee.

No. 78-1190.

United States Court of Appeals Tenth Circuit.

June 13, 1979.

Rehearing Denied Aug. 9, 1979.

Charles S. Fisher, Jr. of Fisher, Ralston, Ochs & Heck, P.A., Topeka, Kan. (Robert D. Ochs of Fisher, Ralston, Ochs & Heck, P.A., Topeka, Kan., on the brief), for plaintiff-appellant.

Mary K. Briscoe, Asst. U. S. Atty. (James P. Buchele, U. S. Atty., on the brief), for defendant-appellee.

Before SETH, Chief Judge, and DOYLE and LOGAN, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

This is an appeal from a judgment of the United States District Court for the District of Kansas, the effect of which was to sustain the defendant's motion to dismiss a tort claim action against the United States. The claim was based on the two lobotomy operations performed by the government in an effort to control plaintiff's conduct. The The operations were performed in 1947 and 1948. The trial court ruled that any action was barred by the two-year statute of limitations applicable to the Federal Tort Claims Act under which the suit was brought. The limitations are set forth in 28 U.S.C. § 2401(b).

operations occurred at the Veterans Administration Hospital at Topeka, Kansas.

The basic legal issues, which we must consider, are when this claim accrued and whether the statute of limitations may have been tolled under these circumstances.

Plaintiff entered the Veterans Administration Hospital on or about February 13, 1945, following service in the Air Force. He has been receiving treatment from V.A. facilities ever since that time. In 1947 and again in 1948, lobotomy operations were performed. The plaintiff alleged that the effect of these operations was to take away his mental function. At the time of the operations, the plaintiff-appellant alleged that he had reached his majority and had not been legally declared incompetent. Nevertheless, his father consented to the performance of the operations. The parties disagree about the plaintiff's mental state prior to the operations.

The legal theory alleged in the complaint is negligence by the Veterans Administration Hospital in performing the two lobotomy operations and in caring for the plaintiff. The plaintiff-appellant contends that the claim did not accrue more than two years before it was filed or if the claim did accrue, the statute of limitations was tolled so the action is not barred.

A conservator, Malcolm G. Copeland, was appointed for Mr. Zeidler in October 1975. The conservator has claimed that he was first able to examine the plaintiff's medical records in January of 1976. The conservator filed this suit seeking $1,000,000 in damages on October 13, 1976. The administrative claim, which is required by 28 U.S.C. § 2675(a), was filed in January of 1977 and was denied.

The government's brief provided an extended discussion of the facts, including the plaintiff's antisocial behavior before the operations and other unsuccessful treatments like electroshock therapy. However, these facts are not found in the record on appeal and therefore cannot be considered. The government did request to supplement the record a few days before its brief was filed, but this court denied that request. Most of the information concerns factual issues about which there have been no determinations by the district court.

I. THE DISTRICT COURT'S DECISION

The trial court ruled that, from the face of the complaint, the action was barred by 28 U.S.C. § 2401(b), which provides:

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 trial court reasoned that § 2401(a) and § 2401(b) were mutually exclusive provisions and that subsection (a) applied to all suits against the government except a tort claim against the United States under the Federal Tort Claims Act. For a tort claim, the trial court concluded that it was necessary, since the United States enjoyed immunity generally, to construe the provision strictly and not, therefore, to read anything into it. The district court concluded that the two-year limitations statute was a substantive provision. The explanations of the trial court were as follows:

With these principles in mind we note that while § 2401(a), which applied to "civil actions" provides that the limitations period may be tolled due to "disability", no such tolling provision is present in § 2401(b), which applied here. Therefore, it has been held that an F.T.C.A. claim is not tolled by a plaintiff's minority. Ashley v. United States, 413 F.2d 490, 492 (9th Cir. 1969). Nor is a wrongful The trial court noted that while there is a tolling provision in § 2401(a) for disabilities, no such express provision appears in § 2401(b). The district court concluded that insanity was a disability for which the statute of limitations in § 2401(b) could not be tolled.

death claim under the F.T.C.A. tolled by the failure to appoint an administrator. Foote v. Public Housing Com'r of United States, supra, (D.P.) 107 F.Supp. (270) at 275-276.

Similarly, it is clearly the law that disability due to insanity or mental incompetency will not toll the running of the two year statute of limitations of § 2401(b). Casias v. United States, 532 F.2d 1339, 1342 (10th Cir. 1976), Citing Accardi v. United States, 435 F.2d 1239 (3d Cir. 1970); Williams v. United States, 228 F.2d 129 (4th Cir. 1955), Cert. denied 351 U.S. 986 (76 S.Ct. 1054, 100 L.Ed. 1499) Reh. den. 352 U.S. 860 (77 S.Ct. 26, 1 L.Ed.2d 71) (1956); and Jackson v. United States, 234 F.Supp. 586 (E.D.S.C.1964). See also Hoch v. Carter, 242 F.Supp. 863, 865 (S.D.N.Y.1965); Wheeler v. Warden, No. L-1154 (D.Kan., 7/20/70, unpublished); and Anderson v. United States, No. 2372 (W.D.Mo., 6/21/68, unpublished).

II. WHEN DOES THE CLAIM ACCRUE?

The first issue is when the statute of limitations commenced to run. Section 2401(b), Supra, indicates that the time clock starts when the action accrues. Ordinarily an action will accrue when the injury is suffered. Our court, however, has recognized that there are circumstances when a claim accrues at a later time where, for example, the injured person is not aware that he has suffered an injury.

It is well established that a tort claim against the government accrues for medical malpractice actions when the claimant discovers or in the exercise of reasonable diligence should have discovered, the alleged malpractice. Exnicious v. United States, 563 F.2d 418, 420 (10th Cir. 1977). ¹ The rationale for the discovery or accrual rule under § 2401(b) is that the plaintiff in a malpractice suit is not to be penalized for "blameless ignorance." ² A tort growing out of malpractice is not to be barred by the statute of limitations when the delay in commencing the suit resulted from blameless ignorance, an approach that originated under the Federal Employers' Liability Act. ³

In Exnicious, the injury occurred in 1959 by performing surgery before a serious streptococcal infection was cured. The suit, however, was not filed until 1972. The doctors had told the plaintiff that his condition was caused by arthritis. This explanation did not suggest any malpractice. The plaintiff claimed that a number of years had passed before he discovered that his condition was caused by necrosis stemming from surgery while there was an infection. Summary judgment for the government was not proper because there were material fact issues remaining concerning when the plaintiff had a reasonable opportunity to discover all the elements of a possible malpractice action.

In Exnicious, Judge Holloway noted that there was a long delay between the injury This court has interpreted the accrual rule to mean that a claim does not accrue until a claimant has had a reasonable opportunity to discover All of the essential elements of a possible cause of action for malpractice damages, duty, breach, and causation. 563 F.2d at 420-21. In developing this interpretation of the accrual rule, this court followed the Fourth Circuit. Bridgford v. United States, 550 F.2d 978 (4th Cir. 1977). The Seventh Circuit has subsequently also used the interpretation in Exnicious. DeWitt v. United States, 593 F.2d 276 (7th Cir. 1979). There is some division among the circuits on whether this is the proper interpretation of the accrual rule. The determination of when a claim accrued requires a factual determination about when a person discovered or reasonably should have discovered the alleged malpractice. Ciccarone v. United States, 486 F.2d 253, 256 (3d Cir. 1973).

and the suit, as there is here. Another similarity between Exnicious and this case is that an operation gave rise to the problem. In this case, the plaintiff contends that the operations caused his mental incapacity. Undoubtedly, there is a dispute about whether the lobotomies produced the plaintiff's condition, but that is not before us now.

The district court in this case has not made any factual determinations concerning when the plaintiff discovered or should have discovered a possible cause of action. Accordingly, the case should be remanded for a full evidentiary hearing by the court to determine when the claim accrued.

III.

HAS THE STATUTE OF LIMITATIONS BEEN TOLLED AS A RESULT OF

THE PECULIAR FACTS OF THIS CASE?

The assumption of the trial court was that the complaint was based upon insanity. The court went on to hold that since insanity does not toll the statute of limitations, the statute ran. To treat this situation, however,...