Steven W. Winter, a Single Person,plaintiff-Appellant v. United States of America,defendant-Appellee

244 F.3d 1088
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 25, 2001
Docket99-16113
StatusPublished
Cited by34 cases

This text of 244 F.3d 1088 (Steven W. Winter, a Single Person,plaintiff-Appellant v. United States of America,defendant-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Steven W. Winter, a Single Person,plaintiff-Appellant v. United States of America,defendant-Appellee, 244 F.3d 1088 (9th Cir. 2001).

Opinion

MICHAEL DALY HAWKINS, Circuit Judge:

Steven W. Winter appeals the district court’s grant of summary judgment in his medical malpractice action pursuant to the Federal Tort Claims Act (“FTCA”), regarding his participation in a research study on paraplegics conducted by the Department of Veterans’ Affairs (VA). We agree with the district court that Winter’s FTCA claim did not accrue more than two years before the filing of Winter’s administrative complaint. However, because of the unusual procedural posture of this case, we reverse the district court’s grant of summary judgment and remand for further proceedings.

Background

Steven Winter, a paraplegic, agreed in 1983 to participate in an experimental program conducted by the VA Medical Center in Cleveland, Ohio; The program, directed by Dr. E.B. Marsolais, involved the implantation of electrodes into the legs of paraplegics in an attempt to restore their ability to walk. The VA implanted a series of electrodes in Winter’s legs between 1983 and 1986.

Winter was hospitalized in 1989 in San Clemente, California, with cellulitis, an infection in his left leg. Winter informed the San Clemente doctors of his participation in the electrode project, and suggested that his cellulitis might be related to the electrode implants. San Clemente doctor Darshama Kadakia then contacted Dr. Marsolais, who explained that only two of his subjects had previously experienced cellulitis, and that neither case related to the implantation of electrodes. Marsolais also stated that the electrodes could remain implanted for as long as twenty years. Dr. Kadakia informed Winter of this conversation, and did not conduct any surgery to remove the electrodes.

In 1994, Winter’s infections became more severe. He has had twenty-five surgeries since then to remove the electrodes.

*1090 Winter filed an administrative claim with the VA in July 1994, alleging that his injuries resulted from the VA’s negligent operation of its electrode program. The VA initially denied Winter’s claim on May 23, 1995. Pursuant to a request for reconsideration, the VA again denied Winter’s claim in a letter they allege to have mailed on January 31, 1996. Winter claims that he never received this letter. On January 17, 1997, the VA, pursuant to Winter’s inquiries, sent him a letter informing him that his claim had been denied a year earlier.

Winter filed this action on July 12, 1997, alleging violations of the FTCA. The government moved for summary judgment on three grounds: (1) Winter did not file an administrative claim within two years after his cause of action accrued; (2) Winter did not timely file his request for reconsideration; and (3) Winter did not timely file his complaint after the VA denied his request for reconsideration.

The district court concluded, with respect to the first ground, that Winter “as of January, 1989, possessed the facts sufficient to prompt a reasonable person to seek legal advice.” However the court concluded that Winter may have “reasonably relied on Dr. Marsolais.” Therefore, the court found that the government had failed to establish that Winter’s cause of action accrued before July 21, 1992, and that Winter’s administrative claim was timely.

The district court granted the government’s motion on the second ground. The court concluded that, because Winter had mailed his request for reconsideration to the VA’s Regional Counsel, rather than to the General Counsel, his request had not been properly filed. The court found that this defect was jurisdictional and did not reach the issue of the timeliness of Winter’s complaint.

Winter filed this appeal. The government has declined to defend the district court’s grant of summary judgment on the second ground and so does not advance that argument on appeal. Rather, the government contends that we should af-finn summary judgment because the district court incorrectly decided the accrual issue. In the alternative, it contends that we should affirm summary judgment on the ground that Winter failed to file a timely complaint.

Standard of Review

We review grants of summary judgment de novo. Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir.2000).

Accrual

Under the FTCA, a tort claim against the United States is barred unless it is presented in writing to the appropriate federal agency “within two years after such claim accrues.” 28 U.S.C. § 2401(b). A claim accrues when a plaintiff knows that he has been injured and who has inflicted the injury. United States v. Kubrick, 444 U.S. 111, 122-23, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Accrual of a claim does not “await awareness by a plaintiff that his injury has been negligently inflicted.” Id. at 123, 100 S.Ct. 352. As we have pointed out, “It is well settled that the limitations period begins to run when the plaintiff has knowledge of injury and its cause, and not when the plaintiff has knowledge of legal fault.” Rosales v. United States, 824 F.2d 799, 805 (9th Cir.1987).

We have consistently held that a cause of action does not accrue under the FTCA when a plaintiff has relied on statements of medical professionals with respect to his or her injuries and their probable causes. In Raddatz v. United States, an Army doctor perforated the plaintiffs uterus while inserting an IUD. 750 F.2d 791, 793 (9th Cir.1984). The plaintiff subsequently .visited Navy doctors, who informed her that her severe pain and other symptoms were normal side effects of a perforated uterus. Id. A civilian doctor later diagnosed her condition as a pelvic inflammatory disease. Id. at 793-94.

Raddatz filed FTCA claims against both the Army and the Navy. The district court *1091 granted summary judgment to the defendants, concluding that both claims accrued on the date Raddatz’s uterus was perforated, over two years prior to the filing of her administrative claims. Id. at 795. We affirmed summary judgment with respect to the Army claim, because Raddatz was clearly aware of the injury and its cause on the date of the perforation. Id. at 796. We reversed with respect to the Navy claim. Recognizing that the Navy claim was based on negligent failure to diagnose and warn, we concluded that Raddatz was not aware of her more serious condition until her civilian doctor explained it to her. Id. We further explained: “In fact, when she tried to find out why her condition was getting worse, the Navy doctor repeatedly assured her that her condition was a normal consequence of her perforated uterus. Such assurances may be reasonably relied on by a patient” Id. (emphasis added).

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244 F.3d 1088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/steven-w-winter-a-single-personplaintiff-appellant-v-united-states-of-ca9-2001.