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NEMMERS v. U.S.

March 3, 1988

RONALD J. NEMMERS AND SARAH L. NEMMERS, AS PARENTS AND NEXT FRIENDS OF ERIC P. NEMMERS, PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Mihm, District Judge.

  ORDER

This action seeks damages under the Federal Tort Claims Act (FTCA) for injuries sustained as a result of alleged medical malpractice. It is currently before the Court on remand from the Court of Appeals for the Seventh Circuit. Nemmers v. United States, 795 F.2d 628 (7th Cir. 1986).

The introduction to the Seventh Circuit's decision contains a succinct description of the basic facts alleged and the issues that the Court of Appeals has identified for consideration on remand. That excerpt reads as follows:

  Eric Nemmers was born in July 1973, more than
  three weeks late. His mother had a difficult
  labor. Her physicians at a Naval hospital told
  her to go home and stay there until she had
  regular pains, five minutes apart. They performed
  no tests and prescribed no medicine other than a
  suppository. When Mrs. Nemmers called to inquire
  about intense but irregular pains a nurse told
  her to stop calling until she had regular pains.
  After more than two days of irregular pains, Mrs.
  Nemmers was taken to the Navy hospital, where a
  physician performed a Caesarean section. Eric
  survived but is retarded (I.Q. of 45) and has
  cerebral palsy. The district judge concluded
  after a bench trial that Eric's problems were
  caused by negligent medical treatment at and
  before his birth. 612 F. Supp. 928, 933 (C.D.Ill.
  1985). The case presents three problems: The
  statute of limitations, the extent of
  compensation for a reduction in the ability to
  enjoy life, and the rate of change of the cost of
  Eric's care.

Nemmers v. United States, 795 F.2d at 629.

The Court will consider the three areas in the same order as they were enumerated by the Appellate Court.

I. STATUTE OF LIMITATIONS

  The Federal Tort Claims Act allows two years
  within which to file a claim. 28 U.S.C. § 2401(b).
  The time starts to run in a medical malpractice
  case when the plaintiff has the information
  necessary to discover "both his injury and its
  cause." (Citations omitted).

795 F.2d at 629.

The Seventh Circuit in its opinion found that this Court did not correctly analyze the statute of limitations issue and that this Court had merely imposed a subjective analysis to the facts in the case rather than also applying the objective, or "reasonable person" test.

This Court believed that it had properly considered both the subjective and the objective components of analysis regarding the Plaintiffs' failure to recognize the medical — the "iatrogenic" — causes of Eric's injuries prior to August 21, 1981. Obviously, based on the Appellate Court's decision, this Court was in error in its explanation of its findings.

A. Supplemental Findings of Fact

1. Eric Nemmers was born in July 1973. Plaintiffs (Ronald J. Nemmers and Sarah L. Nemmers) first knew, or in the exercise of reasonable care and reasonable diligence should have known as of August 26, 1981, that Eric Nemmers' cerebral palsy, mental retardation, and related disabilities could potentially have been caused by acts or omissions of the Defendant's physicians at the time surrounding Eric's birth.

August 26, 1981 is the date on which the Plaintiffs read a newspaper article which reported a case very similar to Eric's situation. That article, in the Peoria Journal Star, reported the settlement of a child's medical malpractice lawsuit. The article indicated that due to a delayed Caesarean section, the child sustained brain damage as a result of inadequate oxygen. The child described in the article displayed disabilities strikingly similar to those suffered by Eric.

2. Prior to August 26, 1981, the Plaintiffs exercised reasonable diligence in their attempts to determine the cause of Eric's injuries, but neither knew nor should have known that his disabilities could have resulted from acts or omissions of the Defendant's physicians.

3. The record in the case demonstrates that the Plaintiffs made prompt and reasonable inquiry concerning Eric's condition. They were nonetheless not provided with facts or information from which they either knew or in the exercise of reasonable care should have known that Eric's brain damage could have resulted from deprivation of oxygen at the time of birth.

4. Immediately before and after the delivery of their child, Plaintiffs were advised that Eric was, in all respects, a healthy baby. (Vol. 1 at 58-59)*fn1. When Eric reached 12 months the Plaintiffs began to suspect irregularities in his development and promptly sought medical attention from their Navy physician. (Vol. 1 at 59-60). Their concerns were allayed by the physician's assurances, until Eric reached the approximate age of 18 months, when Drs. Pretlow and Lockner confirmed that he suffered from cerebral palsy. (Vol. 1 at 52, 63). The Plaintiffs made prompt inquiries of Drs. Pretlow and Lockner as to the cause of Eric's problems. (Vol. 1 at 64, 68). They were told, in effect, that no one knows what causes it or why some children and not others suffer its development. (Vol. 1 at 159). Dr. Lockner, with whom the Plaintiffs developed a very close relationship, characterized Eric's condition as "an act of God." (Vol. 1 at 159). From the date of Eric's birth until the date of his father's discharge from the Navy — a period in excess of three years — no Navy physician advised of or alluded to a possible connection between Eric's cerebral palsy and the treatment provided to Mrs. Nemmers during her labor and delivery. (Vol. 1 at 68-69). To the contrary, in response to their specific inquiries, the Plaintiffs were told by physicians on whom they relied that the cause was not determinable. (Vol. 1 at 64, 68, 159).

5. The Court's finding with regard to the Plaintiffs' lack of actual or implied knowledge is not altered by the letter received by the Plaintiffs in June, 1977 from Dr. Stephen Copps of the Gundersen Clinic. Dr. Copps' report would not cause a reasonable person to conclude, or even suspect, that Eric may have been injured as a result of conduct of the Defendant's medical personnel, or that the timing of his mother's Caesarean section had anything to do with his cerebral palsy.

6. The government has placed great weight on the supposition of Dr. Copps that there was a possibility that ". . . relatively severe influenza-like high fever at about the third month of your pregnancy" could have affected the developing embryo. Defendant argues that Mrs. Nemmers, knowing that she had only experienced a regular cold in that time period, should have rejected this as a possible cause and embraced the "trauma of delivery" as the precipitating factor.

This argument ignores an assertion which follows hard on the heels of Dr. Copps' suggestion about influenza and the trauma of delivery:

  Ordinarily, youngsters who have cerebral palsy on
  the basis of brain damage that occurs just
  before, at, or just after birth, have different
  expression at that time which Eric doesn't
  demonstrate. If they have had lack of oxygen to
  the brain substance they develop tightness or
  spasticity of muscles more marked in the lower
  than the upper extremities. If they have had
  bleeding into the brain substance, they usually
  develop spasticity or tightness of muscles on one
  side of the body. This is not the case in Eric's
  situation.

Given Eric's "expressions," even if the Nemmers had challenged the influenza conclusion and cast around for some other cause they would have found nothing in Dr. Copps' report to suggest to them (or to a similarly situated reasonable person) that circumstances at the time of birth could be the cause of his injury. At that point, a reasonable person would not have sought other medical opinions regarding the cause of Eric's condition.

Accordingly, the Court rejects the argument that the statute of limitations began to run in 1977 when the Nemmers received the report from Dr. Copps. There is no evidence in the record to suggest any occurrence between their receipt of that report and their reading of the two newspaper articles, which could or should have given rise to a suspicion of an iatrogenic basis for Eric's affliction.

Moreover, the Court finds that a reasonable person would have suspected for the first time that medical activities at the time of Eric's birth could have caused the injuries of which Plaintiffs complain when he or she read the newspaper articles in August of 1981.

7. Accordingly, based on the record, the Court finds that neither the Plaintiffs, nor a reasonable person exercising reasonable care or reasonable diligence, would have learned or inferred from Dr. Copps' letter that Eric's condition had potentially been caused by conduct of the Navy doctors.

As set out in the Nemmers Appellate decision, the test that the Court is to employ is as follows:

  The first part is actual knowledge, the second is
  an objective inquiry. A person "should have
  known" enough when a reasonable man — "a
  reasonably diligent person (in the tort claimant's
  position)" — Drazan [v. United States], 762 F.2d
  [56] at 59 [(7th Cir. 1985)] — would have known
  enough. And what the reasonable man had to know is
  not a certain cause — for "truth" is not within
  human reach, and even after trial there may be much
  uncertainty — but a potential cause.

795 F.2d at 631.

In this case, the Court finds that a "reasonably diligent person (in the tort claimant's position)" would not have known "enough" prior to seeing the newspaper articles in August of 1981.

B. Conclusions of Law

1. The two year statute of limitations in the Federal Tort Claims Act (28 U.S.C. § 2401(b), begins to run when a plaintiff has the information necessary to discover both his injury and its cause. United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 358, 62 L.Ed.2d 259 (1979); Drazan v. United States, 762 F.2d 56, 58-59 (7th Cir. 1985); Nemmers, 795 F.2d at 629. The running of the statute of limitations depends on when the Plaintiffs either knew of their son's injury and its cause or when in the exercise of reasonable diligence they should have known of the injury and its potential cause. Id. at 630-31. It is the cause within the government's control of which the federal tort claimant must have notice, actual or implied. Drazan, 762 F.2d at 59.

In light of the foregoing authority, and the facts specifically found by the Court, the Court finds that the Plaintiffs neither had actual knowledge (in the subjective sense), nor should they have known (in the objective sense), of a potential government cause of their son's brain damage, prior to their reading of the article in the Peoria Journal Star on August 26, 1981. For the Court to hold that they should have known of such a potential cause, or that they should have been more diligent in pursuing or investigating such a potential cause, as a result of their reading of Dr. Copps' report, would require more of them than reasonable care or diligence. Plaintiff's conduct met the objective standard of the "reasonable man," and their commencement of this claim was timely.

II. DAMAGES FOR NON-PECUNIARY LOSSES TO QUALITY OF LIFE

In its Nemmers decision, the Seventh Circuit stated:

  The Nemmers also asked the Court to award damages
  for non-pecuniary losses under the rubric
  "quality of life." A reduction in the ability to
  appreciate one's own life and to experience the
  lives of others through books, is a real loss,
  just as surely as pain and suffering is a real
  loss. Eric does not suffer pain, but he will
  never live greatly. Maryland law (which applies
  to this case because the Naval hospital was in
  Maryland) allows the finder of fact to award
  damages for diminution in the ability to enjoy
  life. McAlister v. Carl, 233 Md. 446, 197 A.2d 140,
  145 (1964).
  We may assume that the award is discretionary,
  may be even disfavored — a reservation appropriate
  in light of the inadequate briefing. McAlister
  emphasizes the discretionary nature of the award
  and cautions against awards based on speculation.
  Cf. Jones v. Malinowski, 299 Md. 257, 473 A.2d 429,
  436-37 (1984).

795 F.2d at 634.

A. Findings of Fact

1. The evidence is unrefuted that Eric Nemmers' injuries include brain damage with severe and permanent residuals negatively affecting virtually every aspect of his life. According to Dr. Arthur L. Prensky, Eric's condition includes the following: (a) severe mental retardation (an I.Q. of 45), (b) a virtual absence of speech capability, (c) hyperactivity, (d) cerebral palsy, and (e) eye problems. (Vol. 2 at 132-138).

2. Dr. Prensky further testified that in spite of the above conditions, Eric can expect an otherwise normal life expectancy. (Vol. 2 at 137).

3. The practical effects of Eric's injuries and disabilities on his life, and his ability to enjoy life, are as follows:

a. He has made minimal progress in schooling for the mentally and physically handicapped. (Vol. 1 at 93).

b. He demonstrates no appreciation of danger to his own physical well being from his own actions, or of the danger of his action to others such as his younger brothers. (Vol. 1 at 97-98, 100).

c. He wanders off periodically. (Vol. 1 at 99).

d. His coordination is poor and he has great difficulty in climbing stairs or walking on rough terrain. (Vol. 1 at 86).

e. He cannot hop or skip. (Vol. 1 at 87).

f. His ability to perform fine motor movements is poor and he is therefore ineffective in feeding himself, caring for his own personal hygiene, or dressing. (Vol. 1 at 88-91).

g. His behavior is antisocial and he is prone to throwing fits both in private and in public. (Vol. 1 at 94-95).

h. Behavior modification attempts have failed and typical corporal punishment, such as spanking, has no effect on him. (Vol. 1 at 96).

i. Based on her observations, Eric's mother testified that his fits seem at times to be the result of the frustration he is feeling. (Vol. 1 at 95).

4. Eric Nemmers' disabilities and related problems must ultimately result in the placement of Eric in an alternative care situation, away from his immediate family, with the loss of the warmth and security of that immediate family, which would likely create a profound, adverse impact upon any person, whether or not retarded, and further deprives him of his enjoyment of life.

5. All of the foregoing findings of fact establish that Eric has suffered a substantial loss of enjoyment of life.

6. In spite of his condition as described above, Eric still has some limited ability to comprehend and to "enjoy life." He likes to swim and bowl (Vol. 1 at 102), and he enjoys riding a bicycle. (Vol. 1 at 97).

7. The Court finds that the proper amount of money to compensate him for his loss of enjoyment of life is $400,000.

B. Conclusions of Law as to Non-Pecuniary Damages

1. Eric Nemmers has suffered a severe and permanent injury for which general damages are awardable under the law of Maryland.

  In determining damages generally, the courts of
  Maryland have indicated that the following
  factors should be considered in awarding damages
  in personal injury cases: (a) the personal
  injuries sustained and their extent and duration;
  (b) the effect such injuries have on the overall
  physical and mental health and wellbeing of
  plaintiff in the enjoyment of life during her
  life; (c) the physical pain and mental injuries
  suffered in the past and which with reasonable
  probability may be expected to be experienced in
  the future; (d) the disfigurement, and the
  humiliation and embarrassment associated with
  such disfigurement; (e) the medical and other
  expenses reasonably incurred in the past and
  which with reasonable probability may be expected
  in the future; and (f) the loss of earnings in
  the past and the loss of such earnings or
  reduction in earning capacity which with
  reasonable probability may be expected in the
  future. McAlister v. Carl, 233 Md. 446, 451-56,
  197 A.2d 140 (1964); Rhone v. Fisher, 224 Md. 223,
  225-26, 167 A.2d 773 (1961); Ihrie v. Anthony,
  205 Md. 296, 305-06, 107 A.2d 104 (1954).

Burke v. United States, 605 F. Supp. 981, 988 (1985).

2. Specifically, his injuries and disabilities have and will continue to have a profoundly negative impact on his life and his enjoyment of that life.

3. He will never have the sense of satisfaction, accomplishment, and enjoyment that comes from reading a good book or walking alone in the woods.

4. He likewise will never experience the joy of marriage and creating a family of his own.

5. To the contrary, he will soon lose the joy of warmth and security of daily life with his mother, father, and brothers, because as an adult, as the record has established, he is best off living in an "independent living" situation.

6. As was the situation in Shaw v. United States, 741 F.2d 1202 (9th Cir. 1984), Eric's injuries and non-pecuniary losses "are multiple, grevious, and to a large extent, irreversible." Id. at 1209.

7. The components and measure of damages in federal tort claims actions are taken from the state law where the tort occurred. 28 U.S.C.A. ยง 1346(b), ...


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