John W. Madsen, Plaintiff-appellant, v. United States of America, Defendant-appellee, 892 F.2d 83 (9th Cir. 1989)Annotate this Case
Submitted Oct. 30, 1989. *Decided Dec. 13, 1989
Before JAMES R. BROWNING, SCHROEDER and FLETCHER, Circuit Judges.
Before us is appellant John W. Madsen's appeal from the dismissal of his claim for malpractice against the Veterans Administration. The district court dismissed the claim as time-barred. Appellant was last treated by the defendant in 1974 for the condition from which he continues to suffer. He alleges that he learned only in the two years preceding the filing of his complaint that other treatments were available that could have improved his condition at the time of his VA treatment. A cause of action under the Federal Tort Claims Act for malpractice, however, accrues not when the plaintiff actually discovers that malpractice may have occurred, but when, in the exercise of reasonable diligence, the plaintiff should have discovered both the injury and its cause. Davis v. United States, 642 F.2d 328, 331 (9th Cir. 1981) ( citing United States v. Kubrick, 444 U.S. 111, 120-21 (1979)), cert. denied, 455 U.S. 919 (1982). See Raddatz v. U.S., 750 F.2d 791 (9th Cir. 1984); Fernandez v. U.S., 673 F.2d 269 (9th Cir. 1982). The district court properly dismissed the claim as time-barred. Plaintiff's other claim for breach of a promise to advise the plaintiff of possible treatment over the course of the ensuing years, is not before us for lack of timely notice of appeal. See this court's order of February 24, 1989.