Raymond Hughes v. UNITED STATES OF AMERICA On Appeal From the United States District Court for the…

Filed August 29, 2001
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-3606
RAYMOND HUGHES,
Appellant
v.
UNITED STATES OF AMERICA
On Appeal From the United States District Court
for the Eastern District of Pennsylvania
(C. A. No. 00-CV-3605)
District Judge: Honorable Edmund V. Ludwig
Argued: July 19, 2001
Before: SCIRICA, RENDELL and ROSENN, Circuit Judges.
(Filed: August 29, 2001)
Gustine J. Pelagatti (Argued)
Gustine J. Pelagatti & Associates
1845 Walnut Street, Suite 600
Philadelphia, PA 19103
Counsel for Appellant
Nuriye C. Uygur (Argued)
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
Counsel for Appellee

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OPINION ANNOUNCING THE JUDGMENT
OF THE COURT
ROSENN, Circuit Judge.
Determining when the statute of limitations begins to run
in a case is sometimes difficult, especially in cases claiming
medical malpractice. The plaintiff, Raymond Hughes, was
admitted to the Veterans Administration Medical Center
(VAMC) in Charleston, South Carolina, on April 15, 1997,
for a cardiac catheterization and a subsequent coronary
bypass. In preparation for the surgery, physicians
administered heparin, a blood thinner. The administration
of heparin was almost continuous from April 16 to April 23,
1997. After the operation, gangrene developed in Hughes' s
extremities and, as a result, his doctors amputated them to
prevent the gangrene from spreading. Hughes filed an
administrative tort claim with the Veterans Administration.
On December 16, 1999, the VA denied the claim and
Hughes sued the United States on June 16, 2000 under the
Federal Tort Claims Act, 38 U.S.C. § 1346.
The Government moved to dismiss the suit for lack of
subject matter jurisdiction. The District Court granted the
Government' s motion and dismissed the action. The
plaintiff timely appealed. We vacate and remand.
I.
On April 15, 1997, Hughes, a veteran, appeared at the
Department of Veterans Affairs Medical Center in
Charleston, South Carolina ("VAMC") for treatment of neck
pain. While at the hospital, the pain spread to his chest.
Hughes then underwent cardiac catheterization, which
revealed coronary artery disease. On the same day, VAMC
personnel administered heparin to Hughes in preparation
for coronary artery bypass surgery. The hospital performed
the surgery on April 18, 1997. Hughes was hooked up to a
heparin drip almost continuously for a week. During that
time, his limbs grew cold and black with gangrene.
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Hughes was heavily sedated and unconscious from April
17 to June 4, 1997. On May 13, 1997, VAMC personnel
amputated his right leg above the knee because it had filled
with gangrene. On May 20, both of Hughes' s hands were
amputated due to gangrene. Two days later, surgeons
amputated his left leg below the knee.
On June 4, 1997, Hughes regained consciousness and
discovered that he was a quadruple amputee. The doctors
at the VAMC informed him that he had had a heparin-
induced allergic reaction which caused the gangrene,
leaving them no choice but to amputate. His reaction to
heparin is known as heparin-induced thrombocytopenia
with thrombosis ("HITT"). Hughes was not informed that,
had the HITT been timely diagnosed, it could have been
treated and arrested with anticoagulants.
The hospital released Hughes on July 23, 1997. In
February 1999, he filed a claim for benefits available under
38 U.S.C. § 11511 to veterans disabled by medical
treatment. When a social worker from the Veterans
Administration questioned him, Hughes allegedly said that
he did not wish to sue the Government.
On April 12, 1999, Hughes consulted attorney Robert D.
Fogel of Charleston, South Carolina. Fogel requested
Hughes' s medical records from the VAMC on May 24, 1999.
In the letter requesting such records, Fogel advised the
_________________________________________________________________
1. Section 1151 grants disability benefits to veterans as if such disability
were service related, provided the disability:
was not the result of the veteran' s willful misconduct and
(1) the disability . . . was caused by hospital care, medical or
surgical treatment, or examination furnished the veteran under any
law administered by the Secretary, either by a Department employee
or in a Department facility . . . and the proximate cause of the
disability . . . was
(A) carelessness, negligence, lack of proper skill, error in
judgment . . . on the part of the Department in furnishing the
hospital care, medical or surgical treatment, or examination; or
(B) an event not reasonably foreseeable . . .
38 U.S. C. § 1151(c).
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VAMC that time was of the essence because Hughes' s
"potential claim against the government would expire on or
about June 25 [1999]." (91a). On June 10, 1999, Fogel
received Hughes' s records, but declined to accept his case.
Fogel never filed an administrative tort claim on Hughes' s
behalf to protect his claim.
Hughes retained his current attorney in December 1999.
His attorney promptly filed a Notice of Claim with the VA.
The VA rejected Hughes' s claim on July 6, 2000. Ten days
later, Hughes' s attorney filed a complaint against the
United States pursuant to the Federal Tort Claims Act
("FTCA"). Hughes sought damages for the failure of VAMC
personnel to diagnose and treat his heparin-induced
allergic reaction, which resulted in the amputation of his
legs and hands. (Complt. at Para. 27(c) - (e)). The United
States filed a motion to dismiss the complaint for lack of
subject matter jurisdiction. The District Court granted the
motion and dismissed the action pursuant to Fed. R. Civ.
P. 12(b)(1).
II.
Statutes of limitations "are found and approved in all
systems of enlightened jurisprudence." Wood v. Carpenter,
101 U.S. 135, 139 (1879). Although they provide what
legislatures consider a reasonable period for plaintiffs to
present their claims, "they protect defendants and the
courts from having to deal with cases in which the search
for truth may be seriously impaired by the loss of evidence."
United States v. Kubrick, 444 U.S. 111, 117 (1979).
In enacting the Tort Claims Act, Congress generously
waived the immunity of the United States. A condition of
that waiver is that suits be filed within the statutory time
limitation. 28 U.S. § 2401(b), enacted by Congress,
specifically requires that tort claims be brought against the
Government within two years of the accrual of the cause of
action. Its obvious purpose is to encourage the prompt
presentation of all claims. See id. "[W]e should not take it
upon ourselves to extend the waiver beyond that which the
Congress intended [citations omitted]. Neither, however,
should we assume the authority to narrow the waiver that
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Congress intended." Kubrick, 444 U.S. at 117-118 (citation
omitted).
On appeal, Hughes contends that the statute of
limitations was not activated by his awareness of his injury,
but was tolled until he became aware of the act or omission
which caused the injury. He further asserts that he relied
on the VA physicians' explanation of the cause of his
injuries and therefore had no reason to know of their
failure to treat his reaction. In effect, his argument is that
giving him the heparin did not cause his injury; rather, it
was caused by the failure of the treating physicians timely
to apply anticoagulants and other appropriate treatment to
combat the HITT. He asserts that he was not made aware
of this cause of his injury until Attorney Robert Fogel had
obtained and reviewed his medical records on June 10,
1999. Prior to that date, Hughes claims to have accepted
the doctors' explanation that his injuries were the direct
result of his unforeseeable allergic reaction. Thus, Hughes
argues that the statute of limitations was equitably tolled
until he received his hospital records, and that he had two
years thereafter to file his claim. On the other hand, the
Government argues that Hughes had all relevant
information about his injury and its cause when he was
discharged on July 23, 1997, the date it claims the statute
of limitations began to run.
In a medical malpractice action under the FTCA, the
statute of limitations is tolled until the putative plaintiff
possesses facts which would enable "a reasonable person to
discover the alleged malpractice." Barren by Barren v.
United States, 839 F. 2d 987, 991 (3d Cir. 1988). The
District Court dismissed this action for lack of subject
matter jurisdiction, holding that, in June 1997, when
Hughes awoke from his coma in the hospital and realized
he was an amputee, he possessed sufficient facts to place
a reasonable person on notice of medical malpractice. The
District Court concluded that the plaintiff not only knew of
his injury, but also knew of its cause, the unknown allergy,
in June-July 1997. The court held that Kubrick "places an
affirmative burden on a plaintiff armed with the predicate
facts to obtain medical advice and pursue the claim." (D. C.
op. at 10-11).
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In Kubrick, the Supreme Court held that the statute of
limitations barred the action because the plaintiff was
aware of both his injury and the facts surrounding its
causation. See Kubrick, 444 U.S. at 122. The Court
reasoned that, once the plaintiff knows "the critical facts
that he has been hurt and who has inflicted the injury," he
can seek medical and legal advice to determine whether the
medical care he received was substandard and whether he
has a viable cause of action for negligence. Id.
Applying Kubrick to the facts before it, the District Court
found that Hughes became aware of his injury (the
amputations) when he awoke from his coma. It also found
that Hughes learned the cause of his injury while still in
the hospital, when his physician informed him that he had
had an allergic reaction to the heparin which ultimately
necessitated his amputations. Concluding that this
information would have led a reasonable person to suspect
malpractice, the District Court held that, once he was in
possession of these facts, Kubrick charged Hughes with a
duty to promptly investigate his claim or risk losing it.
The case before us differs from Kubrick in a crucial
respect. In Kubrick, the plaintiff alleged that the
administration of a particular drug, which caused him to
lose his hearing, was negligent. Id. at 114. Hughes, by
contrast, does not claim that his injury resulted from the
administering of the heparin by the VA doctors. Rather, he
alleges that the loss of his limbs was caused by the VA
doctors' failure to monitor and treat his reaction to the
heparin. Hughes was not informed, when he regained
consciousness in the hospital, that his reaction could have
been treated. Therefore, as a reasonable lay person, he did
not know the facts surrounding the causation of his
injuries until a considerable time after his hospital
discharge, when he learned that the doctors had failed
timely to apply anticoagulants or to perform other
appropriate medical procedures then available. He was told
only that he had had an allergic reaction to heparin which
caused the gangrene that resulted in the amputations.
The District Court believed that Hughes' s "reliance on his
doctors' assurances that because of his previously
unknown allergy, the amputations were unavoidable" was
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sufficient to make him aware "not only of his injury but
also its cause. " We disagree. He was not provided any
information that should have led him to believe that it was
the failure to treat timely the allergic reaction to the
heparin that caused the formation of gangrene. On the
contrary, he was led to believe that the formation of the
gangrene was a natural, albeit unexpected, allergic reaction
to the heparin dosage.
Kubrick' s holding "cannot be applied mechanically to
cases involving the failure to diagnose, treat, or warn."
Augustine v. United States, 704 F. 2d 1074, 1078 (9th Cir.
1983). In Augustine, the plaintiff argued that the failure of
Air Force dentists to diagnose and treat a bump on his
palate resulted in the progression of the bump from a
minor condition to an incurable cancer. Id. at 1076. The
Court held that the progression of the disease, rather than
the disease itself, was the injury and that Augustine' s
cause of action did not accrue until a reasonable person
would have "discovered that the failure of his doctors to
diagnose, treat, or warn him led to his deteriorating
physical condition." Id. at 1078 (citation omitted). The court
distinguished Kubrick, in which affirmative treatment
administered by the doctors "inflicted clearly identifiable
injuries on their patients, i.e,. loss of hearing and paralysis"
from cases where the injury is a result of the failure of the
doctors "to diagnose and treat" the patient' s condition or
warn him of its seriousness. Id.
When a physician's failure to diagnose, treat, or warn
a patient results in the development of a more serious
medical problem than that which previously existed,
identification of both the injury and its cause may be
more difficult for a patient than if affirmative conduct
by a doctor inflicts a new injury. Where a claim of
medical malpractice is based on the failure to diagnose
or treat a pre-existing condition, the injury is not the
mere undetected existence of the medical problem at
the time the physician failed to diagnose or treat the
patient or the mere continuance of that same
undiagnosed problem in substantially the same state.
Rather, the injury is the development of the problem
into a more serious condition which poses greater
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danger to the patient or which requires more extensive
treatment. In this type of case, it is only when the
patient becomes aware or through the exercise of
reasonable diligence should have become aware of the
development of a pre-existing problem into a more
serious condition that his cause of action can be said
to have accrued for purposes of section 2401(b).
Id. (emphasis in original).
The court' s analysis in Augustine applies to this case.
Hughes' s injuries occurred not solely because of the
heparin-induced reaction, which could easily have been
halted, but because the VA doctors failed to diagnose and
treat his allergic reaction. As in Augustine, "[t]he issue of
accrual in this case thus depends upon when and if
plaintiff discovered or through the exercise of reasonable
diligence should have discovered that the failure of his
doctors to diagnose, treat, or warn him led to his
deteriorating condition." Id. (citation omitted). See also In re
Swine Flu Prods. Liab. Litig. , 764 F. 2d 637, 640 (9th Cir.
1985). We do not know these critical facts in this case; they
are not a matter of record. We have no information in this
record as to when Hughes learned or should have learned
that the doctors could have treated him, but failed to do so,
with anticoagulants which would have arrested the HITT
and saved his limbs.
In Drazan v. United States, the plaintiff in a wrongful
death action was told that lung cancer had caused her
husband' s sudden death. 762 F.2d 56, 58 (7th Cir. 1985).
However, she was not told that the VA doctors who treated
her husband had failed to diagnose his condition a year
earlier when an x-ray of his chest revealed a small tumor.
See id. The court held that the statute of limitations on the
plaintiff ' s wrongful death action had not begun to run until
she learned of the iatrogenic2 cause of her husband' s death.
See id. at 59. The court stated that "[w]hen there are two
causes of an injury, and only one is the government, the
_________________________________________________________________
2. Iatrogenic is a term which "now applies to any adverse condition in a
patient occurring as a result of treatment by a physician or surgeon,
especially to infections incurred by the patient during the course of his
treatment. " Dorland' s Illustrated Medical Dictionary, 27th ed.
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knowledge that is required to set the statute of limitations
running is knowledge of the government cause [failure to
diagnose], not just of the other cause [lung cancer]." Id.
Finally, in Waits v. United States, 611 F.2d 550 (5th Cir.
1980), the Court of Appeals for the Fifth Circuit was faced
with facts startlingly similar to those before us. In that
case, VA doctors treated the plaintiff ' s infected leg with an
antibiotic that proved to be ineffective. See id. at 551. The
infection worsened and the plaintiff ' s leg had to be
amputated. See id. The plaintiff later learned that his leg
could have been saved if the doctors had monitored his
condition and administered an alternative antibiotic. See id.
at 553. The court rejected the Government' s argument that
the plaintiff ' s cause of action accrued when he learned that
his leg had been amputated due to the infection. See id.
Instead, the district court held that the statute was tolled
until the plaintiff learned that the Government' s failure to
treat properly the infection had played a role in causing his
injury. See id. The court stated that "[i]t is not enough to
trigger the statute of limitations that the claimant is aware
of his injury if he is unaware of the act or omission which
caused the injury." Id. at 552. (emphasis added).
In the instant case, the hospital informed Hughes that a
heparin-induced allergic reaction caused his injury. This
may have been one cause, but the iatrogenic cause, which
Hughes had no reason to suspect at the time of his
discharge, was the failure of the VA doctors to arrest the
development of gangrene by appropriate medical treatment.
III.
In conclusion, the same rebuttable presumption of
equitable tolling applicable to private defendants applies to
suits against the United States. Irwin v. Department of
Veterans Affairs, 498 U.S. 89, 95-96 (1990). Thus, the
FTCA' s statute of limitations is not jurisdictional. Failure to
comply with the statute is "an affirmative defense which the
defendant has the burden of establishing. See Fed. R. Civ.
P. 8(c)." Schmidt v. United States, 933 F. 2d 639, 640 (8th
Cir. 1991). Accord, Oropallo v. United States, 994 F. 2d 25,
29 n.4 (1st Cir. 1993). In this procedural posture, it is the
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defendant' s burden to establish the date when the plaintiff
knew, or reasonably should have known, of the cause of his
injury.
Although the District Court purported to resolve the
motion under § 12(b)(1), it considered memoranda,
affidavits and exhibits submitted by both parties. The
court, therefore, should have applied summary judgment
standards in deciding whether to grant or deny the
Government' s motion. See In re Swine Flu Prods. Liab.
Litig. , 764 F.2d at 640-42 ("whether [appellant] acted
reasonably in failing to make additional inquiries is a
genuine issue of material fact." ) Relevant facts remaining in
dispute, the court thus improperly granted the
Government' s motion. See Augustine, 704 F. 2d at 1079
(citation omitted). The documents submitted demonstrate a
material conflict as to the central issues in the case. In
such circumstances, a grant of summary judgment would
have been improper. The District Court did not conduct a
requisite hearing on the merits to resolve the basic factual
issue, the cause of the injury. If, after proper consideration
of the evidence pertaining to when plaintiff became or
reasonably should have become aware of the cause of his
injury, the District Court finds that Hughes' s claim against
the United States accrued more than two years before he
instituted his suit, it may dismiss the case.
The order of the District Court dismissing the case will be
vacated and the case remanded for further proceedings not
inconsistent with this opinion. Costs to be taxed against
the appellee.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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