Unpublished Disposition, 875 F.2d 870 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 875 F.2d 870 (9th Cir. 1989)

No. 87-4253.

United States Court of Appeals, Ninth Circuit.

Before ALARCON and WRIGHT, Circuit Judges, and EDWARD RAFEEDIE,*  District Judge

MEMORANDUM** 

Wayne David Outman appeals from the district court's grant of summary judgment dismissing his suit under the Federal Tort Claims Act (FTCA) for failure to bring his claim within two years after it accrued. We affirm.

DISCUSSION

The district court's grant of summary judgment is reviewed de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). Review is governed by the same standard used by the trial court under Fed. R. Civ. P. 56(c). Id. The court of appeals must determine, viewing the evidence most favorable to plaintiff, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986).

The Federal Tort Claims Act (FTCA), 28 U.S.C. § 2401(b), bars any tort claim against the United States unless it is presented in writing to the appropriate federal agency "within 2 years after such claim accrues." In United States v. Kubrick, 444 U.S. 111, 120, 100 S. Ct. 352, 358 (1979), the Supreme Court held that a cause of action in a medical malpractice case under the FTCA accrues when "the plaintiff has discovered both his injury and its cause." In applying Kubrick, this court has held that the "cause" is known when the immediate physical cause of the injury is discovered. Davis v. United States, 642 F.2d 328, 331 (9th Cir. 1981), cert. denied, 455 U.S. 919, 102 S. Ct. 1273 (1982).

In the instant case, Mr. Outman filed his tort claims under the FTCA in August 1983. However, the facts show that Mr. Outman had knowledge of his injury and its cause more than two years prior to filing his claims.

In November 1976, Mr. and Mrs. Outman were told by Veterans Administration (VA) doctors that Mr. Outman was suffering from tardive dyskinesia as a result of the neuroleptic drugs he was given by the VA. In a VA claim for Service Connected Disability Benefits prepared in November 1976, Mrs. Outman accused the VA of gross negligence in the treatment of her husband.

In July 1977 in connection with the application for a "service connected" disability pension, Mr. Outman testified before the VA Compensation and Pension Rating Board and complained of the side effects of the drugs given to him by the VA. Also in 1977, Mr. Outman signed VA medical records releases allowing personal injury attorneys Nobel & Lonnquist of Portland, Oregon access to his entire VA medical record. In April 1978, Mr. Outman testified before the Board of Veterans Appeals and complained about the VA giving him drugs with several side-effects.

In December 1980, Mr. and Mrs. Outman testified before the Compensation and Pension Rating Board. Mr. Outman again complained about the VA doctors giving him drugs with severe side effects. In response to a question from a panel member, Mrs. Outman admitted that she had studied the statute of limitations for a tort claim against the VA and had met with an attorney who told her that the statute of limitations had run out.

These facts show that appellant was aware of his injury and its cause by at least 1977. Therefore, appellant's federal tort claims filed in 1983 are barred by the two-year statute of limitations.

Appellant's argument that the cause of the injury was a misdiagnosis by VA doctors is not persuasive. The instant case involved the affirmative act of prescribing neuroleptic drugs inflicting clearly identifiable injuries which the Supreme Court stated in Kubrick should compel the individual to protect himself by seeking advice in the medical and legal community. As the Supreme Court stated in Kubrick,

[t]o excuse one from promptly [investigating an injury] by postponing the accrual of his claim would undermine the purpose of the statute of limitations, which is to require the reasonably diligent presentation of tort claims against the Government.

Kubrick, 444 U.S. at 123, 100 S. Ct. at 360.

Appellant's assertion that his claim did not accrue until the drug treatment ceased in 1982 is not persuasive. In Ashley v. United States, 413 F.2d 490, 492 (9th Cir. 1969), this court held that the continuous-treatment doctrine was not available to toll the statute of limitations in medical malpractice cases under the FTCA where the plaintiff knows of the acts constituting the negligence. In addition, there is no evidence that appellant was ever treated or medicated by the VA after February 1977.

Appellant's argument that a material issue of fact existed concerning his competency to understand the nature of his injury and its cause is also without merit. The uncontested evidence shows that regardless of the precise extent of appellant's mental illness or injury, he was aware of the physical cause of his injury by at least 1977. The record indicates that appellant testified lucidly before a VA board in 1977, stating that he had been injured by VA doctors giving him drugs. Because the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no "genuine issue" for purposes of Fed. R. Civ. P. 56 and summary judgment is appropriate. See Matsushita Electric Industrial Col, Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 587, 106 S. Ct. 1348 (1986).

Therefore, the district court's order dismissing the action is affirmed.

 *

Honorable Edward Rafeedie, United States District Judge for the Central District of California, sitting by designation

 **

This disposition is not for publication and may not be cited to or by the courts of this circuit except as provided by the Ninth Circuit Rule 36-3

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