Unpublished Disposition, 872 F.2d 426 (9th Cir. 1989)

MEMORANDUM^* 

Claiming that the district court erred in holding that his Federal Tort Claims Act medical malpractice suit was barred by the statute of limitations, Charles Addington appeals the district court's grant of summary judgment in favor of the government. We review the grant of summary judgment de novo. Landreth v. United States, 850 F.2d 532, 534 (9th Cir. 1988), cert. denied, 57 U.S.L.W. 3486 (U.S. Jan. 24, 1989) (No. 88-772). Findings concerning the accrual date of plaintiff's claim are reviewed for clear error. Id.

Facts

On May 10, 1983, Mildred Addington, the plaintiff's wife, underwent surgery for cervical cancer at Madigan Army Medical Center. The operation included a hysterectomy, a pelvic and periaortic lymphadenectomy and an appendectomy. Post-surgery complications set in, necessitating a second operation on the following day, May 11. That operation revealed a massive spread of gangrenous infection. The surgeons also noted that colonic contents had leaked from the appendiceal stump. Due to the massive spread of infection, the doctors concluded that further surgery could not save Mrs. Addington's life. She died several hours after the second operation.

Addington filed an administrative claim for wrongful death on February 7, 1986, almost three years after his wife's death. He subsequently filed this lawsuit in district court on October 7, 1986. On September 22, 1987, the government moved for summary judgment, claiming that Addington's FTCA suit was barred by the Act's two-year statute of limitations. 28 U.S.C. § 2401(b) (1982). The district court found that plaintiff's claim had accrued in late May 1983, when Addington learned the cause of his wife's death from the preliminary autopsy report. The district court therefore held that Addington's suit was time-barred, and granted summary judgment in favor of the government.

Discussion

A. Addington first contends that his claim did not accrue until he became aware, sometime in late 1985, that the Madigan physicians' alleged malpractice may have contributed to his wife's death. However, Addington's awareness of the possibility of malpractice is irrelevant for purposes of determining the accrual of his claim. United States v. Kubrick, 444 U.S. 111, 123 (1979).

B. Addington next contends that the statute of limitations should not have begun to run until he received notice of the cause of his wife's injury. He alleges that no representative of Madigan Hospital "even hinted ... that the leaking appendiceal stump or the first surgery to his wife could have caused her death." Appellant's Opening Brief at 11.

A medical malpractice claim under 28 U.S.C. § 2401(b) accrues when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, both the existence of an injury and its cause. Rosales v. United States, 824 F.2d 799, 802 (9th Cir. 1987); Dyniewicz v. United States, 742 F.2d 484, 486 (9th Cir. 1984). "Discovery of the cause of one's injury ... does not mean knowing who is responsible for it. The 'cause' is known when the immediate physical cause of the injury is discovered." Dyniewicz, 742 F.2d at 486 (emphasis added).

Addington became aware of the cause of his wife's death when he received the preliminary autopsy report in late May 1983. That report clearly states the immediate physical cause of death as clostridial septicemia and massive fascio-myonecrosis. [Supplemental] Excerpt of Record (SER) at Tab 16, Exh. D. Clostridial fascio-myonecrosis is defined in the report as gangrene. Id. His cause of action therefore accrued once he became aware of this fact.

Although Addington does not dispute that he received the preliminary autopsy report within two weeks of his wife's death, he contends that the report provided inadequate notice of the cause of her injury, because it contains "medical jargon" which a layman could not understand. If Addington had difficulty understanding the autopsy report, it was his responsibility to make further inquiries. He did not. "With knowledge of the fact of injury and its cause the malpractice plaintiff is on the same footing as any negligence plaintiff. The burden is then on plaintiff to ascertain the existence and source of fault within the statutory period." Davis v. United States, 642 F.2d 328, 331 (9th Cir. 1981), cert. denied, 455 U.S. 919 (1982).

Alternatively, Addington argues that his failure to either file a claim or make further inquiries as to the cause of his wife's death is excusable because Dr. Lee, Mrs. Addington's surgeon, gave assurances which led him to believe that malpractice did not play any part in the death of his wife. He alleges that Dr. Lee telephoned him shortly after Mrs. Addington's death and told him that "her death was a mystery to him, that he had no idea of what caused it, and that he had been [at Madigan] for 15 years or so and nothing like that had ever happened before. He also said that they had done everything they could have done to save her." Declaration of Charles Addington in Opposition to Motion to Dismiss or for Summary Judgment, SER Tab 20 at 4. Addington cites In re Swine Flu Products Liability Litigation, 764 F.2d 637 (9th Cir. 1985), for the proposition that a plaintiff's reliance on a "credible explanation" of the cause of an injury pointing away from malpractice will excuse his failure to make a timely filing.

In re Swine Flu is readily distinguishable. In that case the plaintiff's wife died of mysterious causes several weeks after receiving the swine flu vaccine. Neither temporal proximity, nor her symptoms, nor any other factor indicated any relationship between the administration of the vaccine and her demise. Indeed, when questioned by the plaintiff, the county coroner told him that the inoculation could not have contributed to his wife's death because "any symptoms would have appeared immediately after the inoculation and would not have been delayed as long as they had been in [the plaintiff's wife's] case." Id. at 641. Moreover, the record in that case suggested a genuine dispute over the extent of community knowledge as to the dangers of the vaccine during the period plaintiff should have filed his claim. Because the relationship between the cause (the vaccine) and the result (death) appeared tenuous, the court concluded that it was a question of fact whether plaintiff reasonably delayed in filing suit more than three years after his wife's death.

Here, by contrast, the cause (the gangrenous infection due to the initial operation) and the injury (death) were a day apart. It was unmistakable that Mrs. Addington died as a result of the operation; there was no suggestion that she died of some unrelated cause. Addington was told by an intern that a massive infection and a leaking appendiceal stump were discovered during Mrs. Addington's second operation. Addington also received an autopsy report that revealed gangrene as the cause of death. Under the circumstances, the district court was correct in concluding that, regardless of what Dr. Lee may have told him, Addington was on notice that the operation was the triggering event of his wife's death. Dr. Lee may have suggested that the operation was conducted properly but, as noted above, a plaintiff need only be aware of the immediate physical cause of the injury, and not that malpractice had been committed. In this case, there was only one such possible cause: the infection immediately following the first operation. Discovery of this fact thus became the event that triggered the statute of limitations.

C. Addington next claims that the government should be equitably estopped from raising a statute of limitations defense. He alleges that the "Madigan Hospital's staff misled [him] about the circumstances of his wife's death, ... withheld ... facts that would be necessary to realize that a cause of action could be maintained against the hospital," Appellant's Brief at 15, and breached their "affirmative duty to not act in a deceptive and misleading way when [they] already [knew] of [their] negligence." Appellant's Reply Brief at 15.

Addington's equitable estoppel claims are foreclosed by Burns v. United States, 764 F.2d 722 (9th Cir. 1985), where we held that the government may not be estopped from asserting the statute of limitations as a jurisdictional defense. Id. at 724. To the extent Addington's estoppel claim alleges that Dr. Lee fraudulently concealed the cause of Mrs. Addington's death, we find nothing in Dr. Lee's statements that would have led a reasonable person to believe that he did not have a claim for relief. See Gibson v. United States, 781 F.2d 1334, 1344-45 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987). Addington could not have reasonably relied on Dr. Lee's statement that Mrs. Addington's death was a "mystery to him," since he had been told within hours after the second operation that his wife's appendiceal stump was leaking and that the surgeons had discovered the spread of the gangrenous infection. These representations were confirmed by the preliminary autopsy report, which stated that gangrene was the cause of death. The district court therefore did not err in concluding that fraudulent concealment played no part in Addington's failure to file his claim in a timely manner.

AFFIRMED.

REINHARDT, Circuit Judge, dissenting.

I dissent. A cause of action for a medical malpractice suit against the government accrues when a reasonably diligent plaintiff should have discovered both the injury and its cause. In re Swine Flu Products Liability Litigation, 764 F.2d 637, 639 (9th Cir. 1985). In this case, the injury--Mrs. Addington's death--was all too clear. Cause, however, is more complex. While the plaintiff need not be aware that the government's actions were negligent, he must have reasonable grounds to know that the government's conduct caused the injury. United States v. Kubrick, 444 U.S. 111, 122 (1979); Drazen v. United States, 762 F.2d 56, 59 (7th Cir. 1985).

Here, the brief synopsis of the autopsy report presented to Mr. Addington was, at best, turgid. The report does mention, gangrene, a symptom not associated with a normal operation, as one of several causes of death. However, at about the time plaintiff received the report, he spoke with Dr. Lee, the operating room physician and Addington's military superior. Dr. Lee assured Addington that the cause of death was a mystery, that he had never seen anything like this in 15 years of surgery, and that there was nothing they could do to save her. One plausible interpretation of the doctor's statement, in fact the literal one, is that the "cause" of Mrs. Addington's death was unknown. Certainly, plaintiff may reasonably rely on the representations of the government's doctor. In light of Dr. Lee's representations, a question of material fact exists as to whether plaintiff had reason to know that the government caused his wife's death. See Swine Flu, 764 F.2d at 641. Thus I cannot agree with the majority that, for purposes of summary judgment, "it was unmistakable that Mrs. Addington died as a result of the operation." Similarly, a question of material fact exists as to whether appellant was under any duty of inquiry following his conversation with the doctor. Id. We analyze a grant of summary judgment in the light most favorable to the nonmoving party. In my view, the majority's review of the facts here is unduly cramped and unnecessarily harsh.