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Gould v. U.S. Department of Health & Human Services

decided as amended october 16 1989. as corrected.: September 8, 1989.


Appeal from the United States District Court for the District of Maryland, at Baltimore. Joseph C. Howard, District Judge. CA-87-473JH.

Sprouse and Chapman, Circuit Judges, and Haynsworth, Senior Circuit Judge.

Author: Sprouse

SPROUSE, United States Circuit Judge:

Regis Ann Gould appeals from the district court's dismissal of her action against the United States under the Federal Tort Claims Act ("FTCA") on behalf of her deceased husband's estate, her children, and herself for the allegedly negligent medical care administered to her husband by government employees. The district court held that Gould's claim was time barred under 28 U.S.C. § 2401(b). We reverse and hold that Gould's claim was timely because that claim did not begin to accrue until she first learned that one of the treating physicians was a federal employee.


In her complaint, Gould alleges that her husband, Gary Francis Gould, began to experience headaches, fever, nausea, stiff neck, and other related symptoms on August 27, 1980. On August 30, when his symptoms continued, Mr. Gould was medically examined by James Kevin O'Rourke, M.D., at the South County Family Health Care Corporation, a private facility in Anne Arundel County, Maryland. O'Rourke diagnosed Mr. Gould's condition as a virus and instructed him to return home and to seek bed rest and regular intake of liquids. That afternoon, when Mr. Gould's condition continued to deteriorate, O'Rourke directed him to a local hospital where he was admitted. On September 1, Barry Nathanson, M.D., another physician working for the South County Health Care Corporation, began to assist O'Rourke.

Although Mr. Gould's condition further worsened while he was hospitalized, O'Rourke continued to insist that the decedent was suffering from a virus and that no additional consultation was necessary. On September 3, after repeated demands by Mr. Gould's family, O'Rourke agreed to consult an internal medicine specialist. The specialist immediately diagnosed Rocky Mountain Spotted Fever and initiated antibiotic treatment, but Mr. Gould died less than twenty-four hours later on September 4, 1980.

In August 1983, Mrs. Gould brought a medical malpractice suit before the Health Claims Arbitration Board of Maryland against O'Rourke and Nathanson for their alleged negligent care of her husband. This claim was filed within Maryland's three-year limitations period for medical malpractice claims. See Md.Ct. & Jud.Proc.Code Ann. § 5-109. On September 26, 1983, during the course of that litigation, the government informed Gould's counsel that O'Rourke was a commissioned officer in the United States Public Health Service. Three months later, the government told Gould's counsel that Nathanson was a civilian employee with the Public Health Service.*fn* Under the FTCA, federal district courts have exclusive jurisdiction over actions involving negligence by federal employees while acting within the scope of their employment, 28 U.S.C. § 1346(b), and the United States is the proper defendant in such actions, 28 U.S.C. § 2679. The Board accordingly dismissed Gould's action against O'Rourke and Nathanson on December 16, 1985, nearly two-and-a-half years after Gould initiated the state proceedings, finding that they were federal employees and, therefore, not subject to suit in a state forum.

On August 2, 1985, Gould filed a FTCA medical negligence claim with the Department of Health and Human Services, Division of Public Health Service. In her claim, Gould stated that O'Rourke and Nathanson, although federal employees, had held themselves out as agents and employees of the private health facility. The Department denied Gould's tort claim on August 28, 1985, on the grounds that it was time-barred under the FTCA two-year statute of limitations, 28 U.S.C. § 2401(b).

Gould initiated this present action in district court in February 1987. The court granted the government's motion to dismiss the action pursuant to rule 12(b)(1) of the Federal Rules of Civil Procedure, holding that Gould's claim had accrued on September 4, 1980, the date of her husband's death, and, therefore, it was barred under section 2401(b).


Under 28 U.S.C. § 2401(b), "[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. . . ." The question of when a FTCA claim "accrues" under section 2401(b) was addressed by the Supreme Court in United States v. Kubrick, 444 U.S. 111, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979). In that case, a Veterans Administration physician applied an antibiotic to Kubrick's leg as part of postoperative procedures. Kubrick soon noticed a loss of hearing, and, in January 1969, another physician told him that the hearing loss was probably due to the antibiotic treatment. Not until 1971, however, did a physician tell Kubrick that the antibiotic treatment had been improper, and Kubrick filed a FTCA claim within two years of that conversation. The government asserted that Kubrick's claim had accrued in January 1969 when he was informed that the antibiotic treatment had caused the hearing loss and, therefore, that his claim, filed in January 1973, was time barred. The district court and Third Circuit, however, rejected this contention, finding that Kubrick's cause of action did not accrue until 1971 when he learned that the antibiotic treatment had been improper.

The Supreme Court reversed. The Court distinguished between a plaintiff's ignorance of the facts concerning his injury or its cause and his ignorance of the legal significance of those facts and noted:

That he has been injured in fact may be unknown or unknowable until the injury manifests itself; and the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain. The prospect is not so bleak for a plaintiff in possession of the critical facts that he has been hurt and who has inflicted the injury.

Id. at 122. The Court concluded, therefore, that "accrual" of an FTCA claim did not require awareness by the plaintiff that his injury was negligently inflicted and that Kubrick's claim had accrued in January 1969 when he came into possession of all the facts about the cause of his injury. Id. at 123.

Since the Supreme Court decided Kubrick, we have twice considered questions concerning when FTCA claims accrue under section 2401(b). In Wilkinson v. United States, 677 F.2d 998 (4th Cir.), cert. denied, 459 U.S. 906, 74 L. Ed. 2d 167, 103 S. Ct. 209 (1982), a rental car driven by a sailor on business for the Navy collided with Wilkinson's automobile. At the time of the accident, Wilkinson knew that the other driver was employed by the Navy but not that the driver was on government business. In rejecting Wilkinson's argument that his claim did not accrue until he learned that the sailor was acting within the scope of his federal employment, we stated:

In the instant case, the fact of injury and the identity of the person committing the injury were immediately beknownst. Plaintiff was possessed of sufficient knowledge to put him on inquiry as to whether [the sailor], a naval rating on active service, was operating within the scope of his employment.

Id. at 1002.

In Henderson v. United States, 785 F.2d 121 (4th Cir. 1986), a car driven by a substitute United States mail carrier collided with Henderson's automobile, and the accident report indicated that the mail carrier's car was used by the government. Henderson contended that her claim did not accrue until nine months after the collision when the government informed her that the mail carrier was a federal employee acting within the scope of her employment. We held, however, that the accident report indicating the car was being used by the government "was sufficient notice to prompt [Henderson] to explore the legal ramifications of the government's involvement." Id. at 126. We concluded, therefore, ...

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