MacMillan v. United States ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-60276
Summary Calendar
_____________________
VICKIE MACMILLAN, Individually
and as Mother and Next Friend
of Tanya Lee, a Minor, ET AL.,
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
_________________________________________________________________
(January 12, 1995)
Before KING, JOLLY and DeMOSS, Circuit Judges.
PER CURIAM:
Vickie MacMillan, acting on behalf of herself and as the
next friend of her daughter, Tanya Lee, brought suit under the
Federal Tort Claims Act, 28 U.S.C. § 1345. MacMillan alleged
that Air Force physicians negligently caused neurological damage
to Tanya Lee when she was born. The government moved for summary
judgment, contending that because the limitations period had run,
the district court lacked subject matter jurisdiction over the
suit. The district court agreed and granted summary judgment in
favor of the government. MacMillan appeals, but we affirm the
district court's decision.
I. BACKGROUND
On November 23, 1975, Tanya Lee was born to Vickie Lee (now
Vickie MacMillan) at Keesler Air Force Base Hospital in Biloxi,
Mississippi. The birth was rife with complications. MacMillan
recalled that Tanya was "born with the cord around her neck" and
appeared "blue black" just after she was born. The Air Force
physicians conducting the delivery advised MacMillan that Tanya
was "not breathing on her own" but instead was being
"artificially ventilated." In fact, the birth was so problematic
that the infant Tanya was taken "out of the room very quickly
after delivery," and MacMillan was told that "the child would
probably not live, [because she had been] deprived of oxygen for
a long period of time."
During the first twenty-four to forty-eight hours of Tanya's
life, the situation remained bleak. Dr. Long, the high-risk
pediatrician, told MacMillan that Tanya "had experienced a couple
of seizures, was on a life-support system, [and had] no
response." Dr. Long also informed MacMillan that Tanya was
"oxygen-depressed" and that "if the child should live she would
be severely retarded." Furthermore, Dr. Long advised MacMillan,
"[I]t doesn't look great. Don't get your hopes up. The child
probably would not make it. If she should [survive], then she
could be a vegetable."
2
Fortunately, Tanya made some progress, and MacMillan noted
that "after 48 hours [Dr. Long] got a sign of life in [Tanya]
where she responded to something." Tanya eventually was weaned
off of the ventilator, and about two weeks after she was born,
Tanya was able to go home with her mother. When Tanya was
released, Dr. Long informed MacMillan that "there would be no way
to determine whether [Tanya] would experience any long-term
effects from the events of labor until tests were done on her
when she was a few months[] or several years old." MacMillan
also noted that Dr. Long told her that Tanya was "responding
well."
Despite her improvement, Tanya continued to experience
seizures, and she was given phenobarbital to help control them.
Additionally, MacMillan was instructed that Tanya would need to
be seen at the high-risk clinic "on a regular, routine basis . .
. for a one-year period of time to monitor her, to see how she
was progressing as a result of the problems she had at birth."
During these visits, the clinic performed tests on Tanya's
reflexes, growth, and measurements, and MacMillan recalled that
"they all seemed to be progressing." After about twelve months,
Tanya was taken off the phenobarbital, and she was seen at the
high-risk clinic for the "normal course of pediatric visits."
Tanya's subsequent development did not progress at a normal
pace. She began walking "a little later than most kids," and in
1977, because Tanya's "speech was way behind," MacMillan enrolled
her daughter in a speech therapy program. When Tanya entered
3
school, her problems continued: "[e]very school year, [MacMillan]
could see that there was a problem." MacMillan stated that Tanya
repeated the second grade and was an easily frustrated and "very,
very shy child."
Concerned that Tanya might be suffering from a learning
disability, MacMillan implored her local school district to
evaluate Tanya. After MacMillan's entreaties went unanswered for
several years, in July of 1988, she took Tanya to Dr. William
Gasparrini, a clinical psychologist. Dr. Gasparrini conducted a
psychological evaluation of Tanya.
In the report he issued to MacMillan, Dr. Gasparrini
reported that "Tanya was described as being a blue baby at birth.
There was no oxygen to her brain." Dr. Gasparrini also noted
that:
Tanya's early development was not normal because of her
medications and her medical problems. At a very young
age she had a few epileptic seizures. She was on anti-
epileptic medication until age one, but she has not had
any more seizures since that time and has not required
continuing treatment with medications. . . .1 Labor
and delivery were severe problems for Tanya.
After conducting a battery of tests, Dr. Gasparrini concluded
that "the most important primary diagnosis for Tanya Lee appears
1
It is unclear whether this conclusion is correct. In her
deposition MacMillan noted that:
[W]ith the school case since seventh grade is when I
found out that the child has been having these mild
seizures all along, for all those years, and I never
knew. They were the staring type, those type of
seizures. She had been having them all this time. I
never knew.
4
to be Mild Mental Retardation. She also shows a very significant
affective disorder which could be diagnosed as Dysthymia." In
her deposition, MacMillan also agreed that "at least as of July
21, 1988," after receiving Dr. Gasparrini's report, she was "of
the opinion that [Tanya's] early development problems were
related to her problems at birth and her phenobarbital."
Moreover, at this time, MacMillan admitted that she was not aware
of anything that "would have explained the early developmental
delays or the low IQs or the shyness or the frustration level
increases other than either the phenobarbital or the problems at
birth."
In December of 1988, the Biloxi school system finally
acquiesced to MacMillan's request for an evaluation of Tanya.
The schools system referred Tanya to a school psychologist, Dr.
Anthony W. Pollard. Dr. Pollard saw Tanya three times and issued
a psychological assessment in early February of 1989. In the
"reason for referral" section of the assessment, Dr. Pollard
described the circumstances of Tanya's birth, apparently with
some inaccuracies,2 and noted that "it appears likely that Tanya
suffered anoxia at birth and probably sustained some neurological
damage as a result."
In June of 1989, Victoria Henning, a graduate student at the
University of Southern Mississippi, "perform[ed] diagnostic
testing on Tanya Lee as part of [Henning's] course requirements."
2
Dr. Pollard's report noted that Tanya was born via
surgery and that she remained in intensive care for two months.
MacMillan states that both of these statements are incorrect.
5
Although she did not suspect actual brain injury, after
conducting tests, Henning "suggested that Tanya be evaluated by a
neurologist." MacMillan eventually took Tanya to a neurologist--
Dr. Joe Jackson. After conducting an MRI and an EEG, Dr. Jackson
informed MacMillan, in early July of 1989, that his examination
revealed "old scarring of the brain, and he related it to her
birth."
On July 2, 1991, MacMillan filed an administrative
complaint, and on September 3, 1992, MacMillan filed a complaint
against the United States in the district court. The government
responded with a motion for summary judgment, arguing that "the
undisputed facts adduced through [MacMillan's] deposition
testimony and the two psychologists' evaluation reports support
the conclusion that [the district] Court lacks jurisdiction over
the subject matter of this action because the statute of
limitations has expired."3 The district court granted the
government's motion, concluding that, "the two-year statute of
limitations has expired. Clearly, [MacMillan] knew the facts
regarding both her child's injury (neurological damage) and the
admitted cause of that injury (delivery difficulties such as the
deprivation of oxygen at birth)." MacMillan appeals, arguing
that the district court erred in concluding that the limitations
period expired before she filed her claim.
3
The failure to timely file an administrative claim under
the Federal Tort Claims Act is a jurisdictional defect. See
Zavala v. United States, 876 F.2d 780, 782 (9th Cir. 1989)
6
II. STANDARD OF REVIEW
We review the granting of summary judgment de novo, applying
the same criteria used by the district court in its initial
examination of the issue. Norman v. Apache Corp., 19 F.3d 1017,
1021 (5th Cir. 1994); Conkling v. Turner, 18 F.3d 1285, 1295 (5th
Cir. 1994). Initially, we examine the applicable law to
ascertain the material factual issues. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); King v. Chide, 974 F.2d
653, 655-56 (5th Cir. 1992). We then review the evidence bearing
on those issues, viewing the facts and inferences drawn from that
evidence in the light most favorable to the nonmoving party.
Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir.
1994); FDIC v. Dawson, 4 F.3d 1303, 1306 (5th Cir. 1993), cert.
denied, 114 S. Ct. 2673 (1994). After this process, summary
judgment is proper "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law." FED. R. CIV. P. 56(c).
Additionally, Rule 56(c) of the Federal Rules of Civil
Procedures prescribes that the party moving for summary judgment
bears the initial burden of informing the district court of the
basis for its motion and of identifying the portions of the
record that it believes demonstrate the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986); Norman v. Apache Corp., 19 F.3d 1017, 1023 (5th Cir.
7
1994). If the moving party meets its burden, the burden then
shifts to the nonmoving party who must establish the existence of
a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 585-87 (1986); Norman, 19 F.3d at 1023.
Notably, the non-moving party cannot carry its burden by simply
showing that there is some metaphysical doubt as to the material
facts. Matsushita, 475 U.S. at 586. If, however, "the evidence
is such that a reasonable jury could return a verdict for the
non-moving party," summary judgment will not lie. Anderson, 477
U.S. at 248.
III. DISCUSSION
The limitations period for tort claims brought against the
United States is set forth in the Federal Tort Claims Act
("FTCA"), 28 U.S.C. § 2401(b). The Act provides that "[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 . . . . " 28 U.S.C. §
2401(b). Additionally, under the FTCA, the limitations period is
not tolled during the minority of the putative plaintiff; rather
"his parent's knowledge of the injuries is imputed to him."
Zavala, 876 F.2d at 782.
In medical malpractice cases, "where the injury or its cause
may not be manifested to the plaintiff until many years after the
event, the tort action does not ``accrue' for statute of
limitations purposes, until the plaintiff is put on notice of the
8
wrong." Waits v. United States, 611 F.2d 550, 552 (5th Cir.
1980); see also United States v. Kubrick, 444 U.S. 111, 122-24
(1979); Harrison v. United States, 708 F.2d 1023, 1027 (5th Cir.
1983). Accordingly, we have noted that "``in medical malpractice
cases . . . the statute of limitations period does not begin to
run until after the patient discovers or in the exercise of
reasonable diligence should discover his injury and its cause.'"
Harrison, 708 F.2d at 1027 (quoting Stoleson v. United States,
629 F.2d 1265, 1268 (7th Cir. 1989)); see also Taurel v. Central
Gulf Lines, Inc., 947 F.2d 769, 771 (5th Cir. 1991) (noting that
in latent injury cases the cause of action does not accrue until
"the date that the plaintiff discovers, or reasonably should have
discovered, both the injury and its cause" (internal quotation
and citation omitted)).
The putative plaintiff, however, need not know the legal or
medical significance of an act or an injury for the cause of
action to accrue. Instead, the limitations period begins to run
when the plaintiff has "knowledge of facts that would lead a
reasonable person (a) to conclude that there was a causal
connection between the treatment and injury or (b) to seek
professional advice, and then with that advice, to conclude that
there was a causal connection between the treatment and injury."
Harrison, 708 F.2d at 1027. As the Supreme Court noted:
A plaintiff . . . 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
9
statute which is to require the reasonably diligent
presentation of tort claims against the Government.
Kubrick, 444 U.S. at 123 (footnote omitted).
Despite MacMillan's numerous contentions to the contrary, it
is clear that Dr. Pollard's report provided facts sufficient to
compel a reasonable person to seek professional advice regarding
Tanya's neurological difficulties and the connection, if any, to
the problems associated with her birth. Dr. Pollard's report
stated that, "it appears likely that Tanya suffered anoxia at
birth and probably sustained some neurological damage as a
result." Neither the factual inaccuracies in the report nor the
fact that Dr. Pollard is not a medical doctor diminishes this
conclusion. Dr. Pollard is a psychologist who was examining
Tanya for the purpose of determining the causes of her
developmental and neurological problems. In light of the
information that MacMillan knew about Tanya's difficulties at
birth, Pollard's conclusions about the roots of Tanya's later
problems certainly were sufficient to lead a reasonable person to
inquire in the medical and legal community. Accordingly, we
conclude that MacMillan's cause of action accrued, at the latest
when she received Dr. Pollard's report in February of 1989.
MacMillan's argument that the government concealed the cause
of Tanya's injury and thereby tolled the limitations period is
unavailing. It is true that the statute of limitations may be
tolled when "``the facts about causation may be in the control of
the putative defendant, unavailable to the plaintiff or at least
very difficult to obtain.'" Harrison, 708 F.2d at 1028 (quoting
10
Kubrick, 444 U.S. at 122). That, however, is not the situation
in the instant case. Simply, there is no indication that medical
personnel withheld any information about the facts of Tanya's
birth or about her medical records. Cf. id. at 1023-26
(describing how defendants suppressed x-rays and reports that
constituted the "only direct evidence of the thalamic injury").
Similarly, MacMillan's contention that her reliance on the
statements of the medical personal at Keesler prevented the
accrual of her cause of action is unpersuasive. MacMillan is
correct in noting that Nicolazzo v. United States, 786 F.2d 454
(1st Cir. 1986), and the other cases she cites do indicate that
the cause of action does not accrue until the plaintiff receives
a correct diagnosis. Even assuming, however, that MacMillan's
reliance on the statement made at Tanya's initial discharge from
the hospital--"the tests results showed no evidence of brain
damage as a result of the events of her birth"--was reasonable,
Dr. Pollard provided an accurate diagnosis in February of 1989,
and the claim accrued no later than then.
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IV. CONCLUSION
For the foregoing reasons, the decision of the district
court is AFFIRMED.
12