Appeal from the United States District Court for the Eastern District of Wisconsin. No. 74-C-297 -- James E. Doyle, Judge .
Before Fairchild, Chief Judge, and Pell and Wood, Circuit Judges.
At issue is whether Helen Stoleson's suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., is barred by that statute's two-year limitation period. Id. § 2401(b). Since Mrs. Stoleson was injured more than two years before filing suit, resolution of the determinative issue requires that we consider whether the so-called "discovery rule" is applicable outside the medical malpractice arena, and if so, whether the facts of this case justify its application.
In early 1967 Mrs. Stoleson began working as a roll house operator in the rocket area of the Badger Army Ammunition Plant (BAAP).*fn1 As part of her job, Mrs. Stoleson handled and processed munitions and rocket propellants containing nitroglycerin. Near the end of 1967 Mrs. Stoleson began, on weekends, to experience anginal-type chest pains. On a weekend in late January 1968 she suffered a severe angina attack and, on the morning of February 5, 1968, was hospitalized after complaining of severe chest pains. She remained hospitalized for several weeks with a condition diagnosed at the time as coronary insufficiency and subsequently as a myocardial infarction caused by a vascular spasm triggered by temporary withdrawal from nitroglycerin. Following Mrs. Stoleson's return to work on May 1, 1968, she suffered weekend angina attacks at progressively frequent intervals. By the time BAAP terminated her employment in May 1971, the attacks were occurring four to five times each weekend.
From the time of her heart attack in 1968, Mrs. Stoleson suspected a connection between her heart problems and her working conditions. Although the treating physician informed her that exposure to nitroglycerin was not the cause, Mrs. Stoleson, upon returning to work, requested that she be reassigned to a work area free of nitroglycerin. BAAP denied the transfer, apparently because its in-house physician was of the opinion, which he expressed to Mrs. Stoleson, that nitroglycerin exposure would be beneficial to her.
In the spring of 1969, Mrs. Stoleson read in a union newspaper an article suggesting that sudden withdrawal from nitroglycerin exposure may cause anginal chest pains. In the fall of that year, George Coolidge, an occupational safety inspector employed by the Wisconsin Department of Industry, Labor and Human Relations, told Mrs. Stoleson that he believed her heart problems were caused by exposure to nitroglycerin but cautioned that he was unaware of any medically recognized causal relation. Shortly after her discussion with Coolidge, Mrs. Stoleson consulted another of her personal physicians who confirmed the previous medical appraisals as well as the continuing assurances from BAAP that Mrs. Stoleson's suspicions were groundless.
In April 1971, Dr. R. L. Lange, chief of cardiology at the Medical College of Wisconsin, examined Mrs. Stoleson and concluded that her cardiovascular problems were related to nitroglycerin exposure. Despite Dr. Lange's opinion, the BAAP physician continued to maintain that nitroglycerin was not the cause of Mrs. Stoleson's problems. He therefore recommended that rather than transfer Mrs. Stoleson, she be discharged as unable to work.
Based upon Mrs. Stoleson's case and eight other BAAP case histories, Dr. Lange published a seminal article, documenting for the first time the relationship between angina and chronic exposure to nitroglycerin. This article marked the first medical identification of the causal relation; neither clinical cardiology texts nor medical journals had previously discussed or described the phenomenon of angina among workers regularly exposed to nitroglycerin.
Mrs. Stoleson filed an administrative claim on August 16, 1972, which tolled the statute of limitations and, after an unsuccessful journey through the administrative process, brought suit under the FTCA, alleging that as a result of the Government's negligence in superintending the operation and maintenance of BAAP she ingested nitroglycerin, which caused her heart problems. Upon the close of her case, the district court orally granted the Government's motion for involuntary dismissal pursuant to Fed.R.Civ.P. 41(b) and later issued written findings of fact and conclusions of law in support of the involuntary dismissal. Although the district court found the Government was negligent in failing to protect Mrs. Stoleson from exposure to high levels of nitroglycerin, it concluded dismissal was proper because the two-year statute of limitations barred her claim for injuries suffered before August 15, 1970, and her failure to prove proximate causation barred her claim for injuries suffered after that date. With respect to the statute of limitations, the court concluded that absent an application of the discovery rule, Mrs. Stoleson's claim accrued on the date of demonstrable injury, February 5, 1968, when she was hospitalized for a myocardial infarction. Alternatively, the court concluded that if the discovery rule was applicable, her claim accrued in November 1969, when she read the union newspaper article and spoke to George Coolidge. Because she filed her administrative claim on August 16, 1972, more than two years after either of these dates, the court held that any claim for injuries suffered on or before August 15, 1970 was time barred. Furthermore, the district court found that Mrs. Stoleson did not prove by a preponderance of the evidence that the Government's negligence proximately caused any new injuries (as distinguished from the continuing effects of the myocardial infarction) she might have suffered after August 15, 1970.
By stipulation, the parties limited this appeal to the statute of limitations and causation issues. In light of our disposition of the statute of limitations issue, we need not reach the causation issue.
Although FTCA liability is determined "in accordance with the law of the place where the act or omission occurred," 28 U.S.C. § 1346(b), federal law determines when a claim accrues. Steele v. United States, 599 F.2d 823 (7th Cir. 1979). The determinative federal law is 28 U.S.C. § 2401(b), which bars any tort claim against the United States not presented in writing within two years of accrual.*fn2 Ordinarily, a tort claim accrues at the time the claimant is demonstrably injured. See Zeidler v. United States, 601 F.2d 527 (10th Cir. 1979). In the usual case, the fact of injury provides adequate notice of the cause of the injury and of the possibility that one's legal rights have been invaded. Restatement (Second) of Torts § 899, comment c (1977). This general rule, however, is often inapplicable to medical malpractice claims. See, e. g., United States v. Kubrick, 444 U.S. 111, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979); Portis v. United States, 483 F.2d 670 (4th Cir. 1973). The reason for the exception is essentially the same as for the general rule, i. e., a patient often has little or no reason to believe his legal rights have been invaded simply because some misfortune followed medical treatment. Sometimes a patient may remain unaware for many years that he has suffered injury or he may recognize his injury but not its cause. Indeed, the facts necessary to discover the causal relation between treatment and injury may be within the exclusive control of the physician or at least very difficult to obtain. In medical malpractice cases, therefore, the statute of limitations does not begin to run until after the patient discovers or in the exercise of reasonable diligence should discover his injury and its cause. See Kubrick, 444 U.S. at 120 n.7, 100 S. Ct. at 358 n.7.*fn3 In seeking to have us apply the more liberal rule to this occupational safety case, Mrs. Stoleson urges that the discovery rule is not limited to malpractice cases. We expressly raised and reserved that issue in Steele v. United States, 599 F.2d at 827 n.7. Today we hold the rule is not so limited.
In Steele, the factors that justify the application of the discovery rule to medical malpractice claims were simply not present.*fn4 The plaintiff's injury, an electrical shock, was immediately apparent, as was its cause, failure of a Federal Aviation Administration employee to turn off the current while the plaintiff installed lights on an inactive runway at O'Hare International Airport. That we did not apply the discovery rule to this "ordinary tort case," is not inconsistent with application of the rule in contexts other than medical malpractice where the equitable considerations are compelling. That the United States Supreme Court did just that in Urie v. Thompson, 337 U.S. 163, 69 S. Ct. 1018, 93 L. Ed. 1282 (1949), speaks with considerable force about the scope of the discovery rule.
In Urie, a railroad fireman, sued under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., claiming he had contracted silicosis as a result of breathing silica dust for nearly thirty years. The applicable statute of limitations provided that claims for compensation had to be filed within three years of accrual. The defendant argued that since the plaintiff had been exposed to silica for so long, he must have unknowingly contracted ...