The opinion of the court was delivered by: Mihm, District Judge.
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
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).
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.
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
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
Dr. Copps' report specifically states that the exact reason
for Eric's "mild brain damage" could not be explained. His
discussion on causation focused on the illness suffered by
Mrs. Nemmers early in her pregnancy as a "possible cause." He
makes no such statement with respect to the circumstances of
Eric's birth or delivery. For ordinary people, exercising
care and diligence, Dr. Copps' use of such words as "trauma of
birth" or "fetal distress during labor" are at best ambiguous.
They do not denote terms which would infer to a reasonable man
(or woman) that acts or omissions of government physicians
could have been, somehow, causes of the child's brain damage.
Further, the report sets forth in detail Dr. Copps' opinion
that Eric did not have the specific types of problems and
limitations which are found in children who suffer cerebral
palsy resulting from brain damage that occurs just before, at,
or after birth, or from a lack of oxygen to the brain. Lastly,
Dr. Copps describes Eric's condition as one of "minimal brain
damage," which was clearly incorrect.
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
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
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
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
 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.
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
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
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,
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,
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
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
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. § 1346(b), ...