Victor Herrera-Diaz, a Minor, by and Through His Guardian, Janet Mary Herrera-Diaz v. United States of America, Department of the Navy

845 F.2d 1534, 1988 U.S. App. LEXIS 5924, 1988 WL 40645
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 4, 1988
Docket86-6242
StatusPublished
Cited by25 cases

This text of 845 F.2d 1534 (Victor Herrera-Diaz, a Minor, by and Through His Guardian, Janet Mary Herrera-Diaz v. United States of America, Department of the Navy) 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
Victor Herrera-Diaz, a Minor, by and Through His Guardian, Janet Mary Herrera-Diaz v. United States of America, Department of the Navy, 845 F.2d 1534, 1988 U.S. App. LEXIS 5924, 1988 WL 40645 (9th Cir. 1988).

Opinions

DAVID R. THOMPSON, Circuit Judge:

Victor Herrera-Diaz, a youngster who suffers from cerebral palsy, appeals from a summary judgment dismissing his action against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. The district court concluded that Victor’s medical negligence claim which he filed in 1984 was barred by the two-year statute of limitations of 28 U.S.C. § 2401(b). The court determined the claim accrued in 1978, approximately six months after Victor was born, at which time Victor’s mother discovered that his cerebral palsy probably was caused by a lack of oxygen to his brain at or near the time of his birth.

Victor argues on appeal that (1) his cause of action did not accrue until 1984 when his mother first learned that negligence of Navy medical personnel may have caused his injury; and (2) even if the claim accrued earlier, the government fraudulently concealed and misrepresented the true cause of Victor’s injury and this tolled the statute of limitations. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I

FACTS

Victor was born two months premature on November 8,1977 at the Naval Regional Medical Center at Camp Pendleton, California. Approximately seven hours after his birth, Victor was transferred to Children’s Hospital in San Diego suffering from what Navy medical personnel described to his mother as “breathing problems.” Mrs. Herrera-Diaz made no inquiry regarding these problems or their cause. Victor appeared to her to be somewhat blue and dark in color; she assumed the reported [1536]*1536breathing problems were the result of Victor having been born premature.

Victor remained in Children’s Hospital for five months. When he was three months old, a treating physician told Mrs. Herrera-Diaz that Victor had suffered brain damage. The physician did not say what might have caused the brain damage and Mrs. Herrera-Diaz did not ask. Regarding her lack of inquiry, she stated: “I guess I really didn’t want to know. Brain damage is enough for me. I didn’t ask.”

In April 1978, Victor and his mother moved to New York where Mrs. Herrera-Diaz’ parents lived. When Victor was six months old, doctors at Long Island Jewish Hospital in New York told Mrs. Herrera-Diaz that Victor had cerebral palsy. Mrs. Herrera-Diaz was referred to the United Cerebral Palsy Treatment and Rehabilitation Center to get specialized care for Victor. There Victor was seen by a physician who, in 1978, told Mrs. Herrera-Diaz that cerebral palsy often occurred in premature babies and was caused by a lack of oxygen to the brain around the time of birth. Mrs. Herrera-Diaz did not inquire as to what had caused the lack of oxygen. She thought that Victor was “just born like that because that’s the way God wanted it.” She did not consider the possibility that the lack of oxygen was caused by Navy doctors when Victor was born.

Six years later, in May 1984, Mrs. Herrera-Diaz was contacted by her present attorneys and told that Victor might have a claim against the government. Victor’s administrative claim for damages was filed June 8, 1984. It was denied April 8, 1985. The present lawsuit was filed June 4, 1985. In it Victor alleged, through Mrs. Herrera-Diaz as his guardian ad litem, that Navy medical personnel had been negligent in managing his delivery, and had fraudulently concealed and misrepresented their “complicity in causing [his] birth injuries.”

In dismissing Victor’s lawsuit as time barred, the district court determined that Victor’s medical negligence claim accrued in 1978 when Mrs. Herrera-Diaz had knowledge that Victor suffered from cerebral palsy which was caused by a lack of oxygen to his brain at or about the time he was born. The district court also dismissed the fraudulent concealment and misrepresentation claim because the government had not waived its sovereign immunity as to this claim. See 28 U.S.C. § 2680(h). Finally, the district court dismissed the Department of the Navy as an improper defendant in the suit.

II

ANALYSIS

The FTCA provides that a tort claim against the federal government must be presented to the appropriate federal agency “within two years after such claim accrues.” 28 U.S.C. § 2401(b). Tort claims usually accrue at the time of a plaintiff’s injury. In medical malpractice actions under the FTCA, however, a claim does not accrue until a plaintiff discovers both the injury and its cause. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). When the injury and its cause are known, the claim accrues even though the plaintiff may not then be aware that the injury may have been negligently inflicted. Id. at 123-25, 100 S.Ct. at 360-61.

In Kubrick, Veterans Administration doctors treated the plaintiff’s leg infection with neomycin. Six weeks later the plaintiff began to suffer a loss of hearing, and approximately seven months after that, in January 1969, while being treated for deafness, doctors advised the plaintiff that it was highly possible the neomycin treatment caused his deafness. In June 1971 a doctor told the plaintiff that neomycin caused his injury and should not have been administered. The plaintiff Kubrick filed his negligence action in 1972.1 He contended that he did not learn the “cause” of his injury until June 1971 when he was told that the use of neomycin to treat his leg [1537]*1537was improper. The Court, however, held the claim time barred. It concluded that the claim accrued in January 1969 when Kubrick discovered the “critical facts” of both his injury and its cause. Id. at 122, 100 S.Ct. at 359.

Victor attempts to distinguish Kubrick. He argues that while the plaintiff in Kubrick was aware, more than two years before he presented his claim, that his injury was caused by neomycin administered by Veterans Administration doctors, Victor’s mother was not aware that the cause of Victor’s injury, a lack of oxygen to the brain, resulted from any act or omission by Navy personnel. Victor’s mother believed the lack of oxygen was a “natural result” of premature birth. Victor also argues that due to his mother’s youth, her separation from her husband soon after Victor was born, and her distress over Victor’s condition, she was unable to form a reasonable suspicion of any negligent conduct by Navy medical personnel. Therefore, Victor argues, Mrs. Herrera-Diaz cannot be held to have been placed on notice in 1978 to make any inquiry as to how Victor’s injury was caused. We disagree.

Relying on Kubrick, we have developed an objective standard to determine when a medical malpractice action accrues under the FTCA. The action accrues, and the statute of limitation starts to run, when a “plaintiff has discovered, or in the exercise of reasonable diligence should have discovered, both his injury and its cause.” Davis v. United States,

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Bluebook (online)
845 F.2d 1534, 1988 U.S. App. LEXIS 5924, 1988 WL 40645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/victor-herrera-diaz-a-minor-by-and-through-his-guardian-janet-mary-ca9-1988.