John Barren, an Incompetent, by His Guardian, Henrietta Barren v. United States

839 F.2d 987

• Court: Court of Appeals for the Third Circuit
• Decided: March 28, 1988
• Docket: 87-5314
• Status: Published

Opinions

OPINION OF THE COURT

COWEN, Circuit Judge.

This appeal is from an order which entered judgment in favor of plaintiff awarding damages on a claim of medical malpractice, brought pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. Since plaintiff failed to file his notice of claim within two years after its accrual, as required by 28 U.S.C. § 2401(b),¹ and the time in which he had to make his claim was not tolled or otherwise excused, his claim was time-barred. We therefore will reverse the judgment in plaintiffs favor.

I.

Plaintiff, John Barren, enlisted in the United States Army on June 22, 1970. After completing basic training, he was sent on a tour of duty in Korea, arriving in November of 1970. Barren was stationed at Camp Casey, in the demilitarized zone, which was considered hazardous duty. Over the next thirteen months, he experienced increasing amounts of nervousness and anxiety, and his condition worsened to the point that on January 2, 1972, he was transferred to Fort Lewis, Washington. During the trip home, Barren was given librium (a tranquilizer) by military personnel, presumably in an effort to temporarily relieve his condition. Upon arriving at Fort Lewis, he was medically discharged and was advised to seek a physical examination at a Veterans Administration (“VA”) hospital.

Barren returned to Pennsylvania on January 5,1972, and on January 12 reported to the VA hospital in Wilkes-Barre, Pennsylvania, complaining of heart palpitations and a skin rash. Due to his recent separation from active duty, the VA informed Barren that he was eligible for treatment pending a final determination whether his illness was service related. On January 17, 1972, he was again examined at the VA hospital and prescribed medication. The preliminary diagnosis was heart palpitations and anxiety.

In early August of 1972, Barren had a psychiatric out-patient consultation with Dr. George Anghel of the VA. Dr. Anghel, who was not board certified in psychiatry, diagnosed plaintiff as suffering from adolescent adjustment syndrome, and prescribed librium and valium. Dr. Anghel treated Barren on an out-patient basis on four other occasions, each time continuing to prescribe tranquilizers.

On January 24, 1973, on the basis of Dr. Anghel’s diagnosis, the VA determined that the skin condition Barren had developed was service related, but that his anxiety problem was not. It therefore denied his disability claim for the anxiety condition. Barren sought reconsideration of this decision and, as part of the review process, was again examined by Dr. Anghel on May 9,1973.² Dr. Anghel reported his condition as “adjustment reaction of adolescence.” On July 6, 1973, based on Dr. Anghel’s report in which he opined that Barren’s personality was healthy and that he did not need hospitalization, the VA denied his disability claim. On August 2, 1973, the VA informed Barren it had determined that his nervous condition was not service related. Barren again appealed, this time to Mr. Watson, Chief of Admissions at the VA hospital. While this appeal was pending, Barren’s family continued to seek hospitalization on his behalf and reported to Dr. Anghel that he was uncontrollable and needed immediate psychiatric hospitalization. The Chief of Admissions, after consulting with Dr. Anghel, denied Barren’s request for hospitalization on January 11,1974. In late January of 1974, Barren’s family admitted him to the Scranton State Psychiatric Hospital for treatment of his alcoholism, a condition he developed in an effort to self-medicate. He was released on February 1, 1974, as the treatment was unsatisfactory to his family.

On February 18,1974, Barren was placed in the care of Dr. J. Paul Hurst, who immediately admitted him to Abington Memorial Hospital, where he was diagnosed as suffering from immature personality disorder, depression neurosis and chronic lumbo-sacral sprain. Barren was released from Abington on March 3, 1974, when his family could no longer bear the financial burden of in-patient treatment. Thereafter and continuing to the present, Dr. Hurst has continued to treat Barren on an out-patient basis, with the exception of another hospitalization at the Eastern Pennsylvania Psychiatric Institute lasting from June 26 until July 26, 1974, at which time Barren was diagnosed as having anxiety neurosis.

On October 30,1977, the YA reversed its prior decision and determined that Barren’s anxiety condition was service related. The YA awarded Barren a 30 percent disability retroactive to February 26, 1973. This rating was subsequently increased to 50 percent on March 15, 1979, and to 100 percent on October 18, 1984.

Barren filed his administrative tort claim on September 7,1979, alleging medical malpractice. Barren’s sister, Henrietta Barren, filed a tort claim on the same date, seeking reimbursement for medical related expenses she incurred on behalf of her brother. This suit was filed on September 15, 1981. Barren and his sister, Henrietta Barren,³ alleged that the VA had negligently failed to admit him to the hospital for in-patient care, and that the treatment he was given was substandard. The United States moved to dismiss because the claims were not timely filed. The district court declined to dismiss, preferring to reserve decision until after the liability portion of Barren’s case. After hearing all the evidence, the district court did dismiss the claims of Henrietta Barren as time-barred, but refused to do so as against Barren.⁴

The district court determined that Barren’s diminished mental condition, which condition resulted from defendant’s malpractice, was a factor which could be considered in assessing the reasonableness of his diligence in discovering the malpractice. App. at 32. The court concluded that Barren’s mental condition affected his ability to understand that an injury had befallen him. Id. at 33. The district court further concluded that Barren, unlike his sister, through the exercise of reasonable diligence could not have discovered his injury prior to October 1977 — the date he was notified of the VA’s decision to amend his disability to 30 percent service related. Id. This appeal followed findings by the district court of medical negligence by the government and damages sustained by Barren.

II.

The fundamental issue raised in this appeal is when does the statute of limitations run on a FTCA medical malpractice claim, when the plaintiff proves that the medical negligence of the government so affected his mental facilities that he was incapable of perceiving the negligence of the government. The answer to this question is determined by the date on which this Court determines such a cause of action accrues under 28 U.S.C. § 2401(b). The district court’s findings of fact in this regard will be left undisturbed unless clearly erroneous. Anderson v. City of Bessemer, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed. (1985). However, where the decision of the district court involves the application and interpretation of legal precepts, this Court’s review is plenary. D & G Equip. Co. v. First Nat’l Bank, 764 F.2d 950, 954 (3d Cir.1985).

III.

The United States Supreme Court has in general terms addressed the issue of when a medical malpractice claim accrues under the FTCA in United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). In Kubrick, the plaintiff sustained a partial hearing loss allegedly as a result of neomycin treatment administered for a femur infection. Thereafter, Kubrick sought the advice of other doctors, who advised him as early as January of 1969 that it was “highly possible” that the neo-mycin treatment had caused his deafness. 444 U.S. at 114, 100 S.Ct. at 355. The district court in Kubrick held that the claim was timely because it was filed within two years after plaintiff spoke with yet another doctor, in June 1971, who stated that “neomycin had caused [Kubrick’s] injury and should not have been administered.” Id.

In Kubrick the district court determined that the plaintiff was not subject to the usual discovery rule because he had demonstrated that “he had exercised reasonable diligence and had no ‘reasonable suspicion’ that there was negligence in his treatment.” Id. at 116, 100 S.Ct. at 356 (quoting Kubrick v. United States, 435 F.Supp. 166, 185 (E.D.Pa.1977). We affirmed, Kubrick v. United States, 581 F.2d 1092 (3d Cir.1978), holding that the statute of limitations is tolled “if the plaintiff can prove that in the exercise of due diligence he did not know, nor should he have known, facts which would have alerted a reasonable person to the possibility that treatment was improper-” Id. at 1097. The Supreme Court reversed, the majority finding nothing in the language or the legislative history of the FTCA to support our holding that Kubrick’s claim only accrued when he knew or reasonably could have known that his neomycin treatment was medically substandard. Rather, the Court, recognizing that it was not free to enlarge the statute of limitations so as to frustrate the intent of Congress to promptly dispose of FTCA claims, refused to toll the limitations period for plaintiffs who possess the necessary facts to pursue a claim. The Court stated:

We thus cannot hold that Congress intended that “accrual” of a claim must await awareness by the plaintiff that his injury was negligently inflicted. A plaintiff such as Kubrick, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government. If there exists in the community a generally applicable standard of care with respect to the treatment of his ailment, we see no reason to suppose that competent advice would not be available to the plaintiff as to whether his treatment conformed to that standard.... But however or even whether he is advised, the putative malpractice plaintiff must determine within the period whether to sue or not, which is precisely the judgment that other tort claimants must make.

444 U.S. at 123-24, 100 S.Ct. at 360 (footnote omitted).

The Supreme Court concentrated on the objective aspects of the test; that is, the Court was not concerned with whether the plaintiff actually knew of the malpractice, but whether he possessed the facts such that, as a reasonable person, he should have known of the malpractice. Id.; accord Nemmers v. United States, 795 F.2d 628, 631 (7th Cir.1986). In the case presently before us, the district court determined that Barren was only placed on notice that his disability was service related when the VA changed its position and awarded Barren a 30 percent disability rating on October 20,1977.⁵ App. at 29. It is clear to us, however, that based on the record below Barren possessed facts which would have enabled a reasonable person to discover the alleged malpractice well before this date.⁶

It is not disputed that plaintiff was denied admission by the YA on several occasions beginning in December of 1972, despite the intervention of his family. App. at 35. It is also obvious that his condition gradually worsened during this period. Id. at 35-36. Plaintiffs condition eventually deteriorated to the point that he sought outside medical treatment from Dr. Hurst in February 1974. Id. at 36. It was at this point that an objectively reasonable person in Barren’s position could have recognized that the treatment he had received from the VA was not adequate, and that he had been harmed as a result.

The very fact that Barren sought treatment outside the YA is a clear indication that he believed the treatment provided by the VA was unsatisfactory. Moreover, the testimony of all the experts at trial was to the effect that the treatment given plaintiff by the VA during the years 1972-73 was inadequate and that he should have been hospitalized. Id. at 43-46. Indeed, the essence of Barren’s claim is that because the VA failed to admit him for observation and treatment, his condition resulting from service in Korea retrogressed from moderate to total psychiatric disability. There is no reason why this opinion of malpractice could not have been elicited as early as 1974. In fact, the district court found that there was no reason why Barren’s sister, Henrietta Barren, did not discover or through the exercise of reasonable diligence should not have discovered the injury and its cause at an earlier date. Id. at 33. Viewing Barren’s sister as an objectively reasonable person, her failure to timely interpose a claim under the FTCA is indicative of the very same failure on the part of Barren to timely file his claim.⁷

IV.

Admittedly, the VA’s malpractice was a substantial factor in Barren’s inability to recognize that very malpractice. The undisputed evidence before the district court was that Barren could not recognize his condition and its deterioration between 1972 and 1974, and that the deterioration was a substantial factor in his inability to appreciate his condition. Id. at 47. The Kubrick Court acknowledged the difficulty that a plaintiff might have in discovering an act of medical malpractice, but nonetheless dismissed this as an excuse for allowing plaintiffs a lesser standard for complying with statutes of limitations:

[Determining negligence or not is often complicated and hotly disputed, so much so that judge or jury must decide the issue after listening to a barrage of conflicting expert testimony. And if in this complicated malpractice case, the statute is not to run until the plaintiff is led to suspect negligence, it would be difficult indeed not to apply the same accrual rule to medical and health claims arising under other statutes and to a whole range of other negligence cases arising under the Act and other federal statutes, where the legal implications or complicated facts make it unreasonable to expect the injured plaintiff, who does not seek legal or other appropriate advice, to realize that his legal rights may have been invaded.

444 U.S. at 124, 100 S.Ct. at 360.

Although the VA’s exacerbation of Barren's infirmity, and the causal relationship between this aggravation and plaintiff's inability to recognize his condition is a compelling reason to excuse his deficiency in failing to file his claim, as Kubrick makes clear, the rule cannot be subjectively applied. Allowing Barren to file later than an objectively reasonable person would be tantamount to ruling that a plaintiff’s mental infirmity can extend the statute of limitations. Such extensions have uniformly been rejected by this and other courts of appeals. See Kichline v. Consolidated Rail Corp., 800 F.2d 356, 360-61 (3d Cir.1986) (Federal Employer’s Liability Act claim); Accardi v. United States, 435 F.2d 1239, 1241 n. 2 (3d Cir.1970); Casias v. United States, 532 F.2d 1339, 1342 (10th Cir.1976); Williams v. United States, 228 F.2d 129, 132 (4th Cir.1955), cert. denied, 351 U.S. 986, 76 S.Ct. 1054, 100 L.Ed. 1499 (1956) (Admiralty Act claim).

We recognize that our holding in this case visits a harsh result on the plaintiff. However, limitations periods must be strictly construed, especially those involving a waiver of sovereign immunity. Kubrick, 444 U.S. at 117-18, 100 S.Ct. at 356-57; Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957); United States v. Sherwood, 312 U.S. 584, 590-91, 61 S.Ct. 767, 771-72, 85 L.Ed. 1058 (1941). As the Supreme Court has conceded:

It goes without saying that statutes of limitations often make it impossible to enforce what were otherwise perfectly valid claims. But that is their very purpose, and they remain as ubiquitous as the statutory rights or other rights to which they are attached or are applicable. We should give them effect in accordance with what we can ascertain the legislative intent to have been.

444 U.S. at 125, 100 S.Ct. at 361. We feel compelled by the Court’s holding in Kubrick to construe the statute of limitations narrowly. As the Kubrick Court noted, if Congress desires to expand the limitations period in cases where the government’s own negligence prevents a plaintiff from recognizing her injuries caused by that conduct, it is free to do so. Id. The courts are not so empowered.⁸

V.

We hold that the district court incorrectly applied the legal standard in assessing the timeliness of plaintiff’s claims under section 2401(b), and in effect improperly tolled the statute of limitations. Because plainitff’s claim was not timely filed, and the running of the statute of limitations on an action brought against the United States is a jurisdictional defect not subject to waiver, see e.g., Deakyne v. Department of Army Corps of Engineers, 701 F.2d 271, 274 n. 4 (3d Cir.), cert. denied, 464 U.S. 818, 104 S.Ct. 78, 78 L.Ed.2d 89 (1983); Rosales v. United States, 824 F.2d 799, 802 (9th Cir.1987); Houston v. United States Postal Service, 823 F.2d 896, 902 (5th Cir.1987); Walters v. Secretary of Defense, 725 F.2d 107, 112 n. 12 (D.C.Cir.1983), the district court is divested of jurisdiction under 28 U.S.C. § 1346(b). We therefore will reverse the district court’s judgment and remand. The district court will enter judgment in favor of the United States. Each party to bear its own costs.

1 . The section states:

(b) 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.

28 U.S.C. § 2401(b) (1982).

2 . The district court noted that review of a disability claim by an applicant’s treating physician is not standard VA procedure, and Dr. Anghel admitted that this practice was "not too ethical.” In this case, however, Dr. Anghel performed the evaluation because there was no other doctor available at the time. App. at 26, 38.

3 . Henrietta Barren filed this suit, not only in her own right to recover the funds she spent to cure her brother, but also on behalf of her brother for whom she was appointed guardian in June of 1981.

4 . The district court found as to Henrietta Barren’s claim in her own right, that evaluating her knowledge of the existence of the injury (Barren’s obvious mental deterioration) as well as the probable cause of that injury (failure of the VA to promptly hospitalize and properly treat his mental and nervous disorder), she was aware of the accrual of the cause of action well before the two years that she filed the administrative claim. In evaluating her knowledge the district court correctly judged her by the reasonable person standard.

5 . We fail to see how this decision by the VA in and of itself could have placed Barren on notice that his injuries were related to the VA's malpractice, especially when the change of position by the VA was not accompanied by an explanation. The change in status from zero to 30 percent represents the opinion of the VA that plaintiffs condition partially related to his service in the armed forces, but would not necessarily imply an admission on the part of the VA that his condition was related to VA malfeasance. We therefore are of the opinion that the district court’s finding that Barren was placed on notice as of October 1977 by reason of this change in status is unsupported by the evidence.

6 . We must emphasize that Barren’s situation cannot be characterized as one akin to a perpetration of a fraud or a continuing treatment by a physician, or the development of a transference relationship by a patient with her doctor (as in Greenberg v. McCabe, 453 F.Supp. 765 (E.D.Pa.1978), aff'd, 594 F.2d 854 (3d Cir.), cert. denied, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979)), which might mask the malpractice and excuse the failure to timely file a claim. Rather, this case involves an act or acts of malpractice which were temporally limited and which did not continue.

7 .If Barren’s sister had been appointed guardian prior to 1981, her knowledge would have been imputed to him, and Barren would thereafter have been precluded from arguing that the VA’s negligence prevented him from discovering the malpractice. A deliberate delay in the appointment of a guardian, under plaintiffs view of the statute of limitations, could allow an incompetent plaintiff to circumvent the statute of limitations. There is no reason why such a delay in the appointment of a guardian should work to ’ the detriment of the government.

8 . The government also argues that the district court erred in refusing to allow the United States the benefit of immunity granted to all private individuals under the Pennsylvania Mental Health and Mental Retardation Act of 1966, 50 Pa.Stat.Ann. § 4603 (Purdon 1969) (repealed 1978), or the Mental Health Procedures Act of 1976, 50 Pa.Stat.Ann. § 7114 (Purdon Supp. 1987). In light of our holding as set forth above we need not reach this issue.