Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. TH 76-58-C - Cale J. Holder, Judge.
Before Fairchild, Wisdom,*fn* and Wood, Circuit Judges.
Rebecca I. De Witt appeals from the summary judgment entered by the district court in favor of the United States. The question this case presents is whether the plaintiff's malpractice claim against the United States under the Federal Tort Claims Act is so conclusively time-barred by § 2401 of the Act that a summary judgment was proper. We hold that it was not. We reverse and remand.
Mrs. De Witt, plaintiff-appellant, a veteran of the Armed Forces of the United States, has suffered from rheumatoid arthritis dating back to 1960. During the years 1971 and 1972, she underwent five operations at the Veterans Administration (VA) Hospital in Hines, Illinois, for treatment of her arthritis. The dates and descriptions of these operations are as follows:
She was under continuous care at the Hines hospital, as either an admitted patient or an outpatient, from September 1971 until November 28, 1972.
On August 19, 1975, she filed an administrative claim for damages with the VA under the Federal Tort Claims Act, 28 U.S.C. § 2671 Et seq. She alleged that she had received negligent treatment for her hands at the Hines hospital. The VA denied the claim on March 29, 1976, on the ground that it was time-barred because it had accrued more than two years before the date she filed her administrative claim. On April 29, 1976, De Witt reasserted the same claim by filing this action against the United States. The district court granted the Government's motion for summary judgment on December 15, 1977, on the ground that De Witt's cause of action was time-barred, under 28 U.S.C. § 2401.
28 U.S.C. § 2401(b) provides:
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 or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.
We have been unable to find any case in the Seventh Circuit dealing with when a claim accrues under Section 2401(b) for negligent medical treatment.
The cause of action in a medical malpractice suit brought against the Government accrues when "the claimant (has) discovered, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice". Quinton v. United States, 5 Cir. 1962, 304 F.2d 234, 240 (Tuttle, J.).*fn1 Judge Tuttle derived this rule from the "blameless ignorance" approach earlier applied by the Supreme Court to the statute of limitations on claims brought under the Federal Employers' Liability Act, 45 U.S.C. § 51 Et seq. See Urie v. Thompson, 1949, 337 U.S. 163, 170, 69 S. Ct. 1018, 1025, 93 L. Ed. 1282.
The Quinton rule has been accepted by many courts. See Kubrick v. United States, 1977 E.D.Pa., 435 F. Supp. 166, 180 (citing cases), Aff'd, 3 Cir. 1978, 581 F.2d 1092. It is, however, susceptible to varying interpretations. Kubrick, a malpractice suit against the Government arising out of treatment at a VA hospital, provides a good example of how the rule can be literally interpreted to thwart the policy supporting it. In that case, the Government read "the rule to mean that the statute begins to run, without more, when the plaintiff becomes aware that he has been injured as the result of a physician's treatment". 435 F. Supp. at 180-81. The district court disagreed. It held that the limitations period does not begin to run if the patient has exercised reasonable diligence in investigating the cause of his injury and found no negligence.
A related case is Portis v. United States, 4 Cir. 1973, 483 F.2d 670, in which the Court of Appeals for the Fourth Circuit held that the statute does not begin to run if the patient, though aware that a negligent act had been performed, was unaware that the act had injured him. Similarly, in Jordan v. United States, 6 Cir. 1974, 503 F.2d 620, a plaintiff suffered injury to one of his eyes while undergoing surgery for his nose. He knew that his eye injury was attributable to the surgery, but was not aware that the procedure constituted malpractice. He brought suit against the Government three years after the operation. The Court of Appeals for the Sixth Circuit held that the limitation period did not begin to run until the plaintiff learned of the malpractice.
A literal reading of the Quinton rule would have barred the approaches taken in Kubrick, Portis, and Jordan. These decisions properly recognized that the Quinton rule must be flexibly construed to promote the sound policy that "blameless ignorance" should not result in the loss of the right to assert a malpractice claim. Indeed, the Courts of Appeals for the Fourth Circuit and the Tenth Circuit have now extended the "blameless ignorance" approach to its logical conclusion. In Bridgford v. United States, 4 Cir. 1977, 550 F.2d 978, the Fourth Circuit held that "until a claimant has had a reasonable opportunity to discover All of the essential elements of a possible cause of action duty, breach, causation, damages his claim against the Government does not accrue". 550 F.2d at 981-82 (emphasis in original). The Tenth Circuit has recently adopted the Bridgford standard. Exnicious v. United States, 10 Cir. 1977, 563 F.2d 418, 420.*fn2
We agree with the Third, Fourth, Sixth, and Tenth Circuits that § 2401(b) should not bar suit before a potential medical malpractice claimant has a reasonable basis for believing that he has a claim against the Government. Therefore, we adopt the Bridgford standard as the law of this Circuit. Restating the rule to encompass both a subjective and an objective test, we hold that the statute of limitations does not begin to run until the claimant has ...