Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 5B-274-C-Sarah Evans Barker, Judge.
Bauer, Chief Judge, Cudahy and Kanne, Circuit Judges.
As the district court has already noted, this case presents a most unfortunate situation which, regrettably, we cannot remedy at this late juncture. The plaintiff in this case, Stephen Barnhart, suffers from tardive dyskinesia, an irreversible neurological condition brought on by the use of certain tranquilizers for an unduly long period of time. Barnhart took large doses of these medications over an extended period at the instruction of physicians at various Veteran's Administration ("VA") hospitals. By the time Barnhart's condition was discovered, he had suffered debilitating and irreversible damage. The VA considers Barnhart to be 100% disabled by virtue of his tardive dyskinesia, in combination with some lingering schizophrenic symptoms. Unfortunately, Barnhart delayed in bringing any action or claim against the VA because he was afraid that the VA, upon which he felt completely dependent, might retaliate against him. Because of this delay, the VA denied Barnhart's claim as untimely and the district court dismissed Barnhart's action under the Federal Tort Claims Act as barred by the applicable administrative statute of limitations. Although Barnhart presents a plausible argument for tolling the statute of limitations, his case does not fit within the recognized tolling categories and so must be dismissed. As did the district court we regret the apparent stringency of this result.
Although the government originally filed a motion for summary judgment, it subsequently requested that the court convert the motion to a motion to dismiss for want of subject matter jurisdiction. The district court, following guidance given by this court in Crawford v. United States, 796 F.2d 924, 928-30 (7th Cir. 1986), granted the government's request. Crawford presented a nearly identical jurisdictional problem under the Federal Tort Claims Act. We noted that such preliminary jurisdictional matters are appropriately dealt with as motions to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Further, as we observed in Crawford, the motion to dismiss may be supported by whatever documents might be necessary to resolve the jurisdictional problem; an evidentiary hearing may be held if necessary. Id. at 928-29; see also Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (10th Cir. 1987) ("a 12(b)(1) motion is considered a 'speaking motion' and can include references to evidence extraneous to the complaint"). The district court in the case before us did indeed hold a hearing, and thoroughly explored the issues in a most careful and commendable fashion.
We summarize only the pertinent facts; we rely upon the discussion in the district court's opinion for further detail. Barnhart v. United States, No. IP 88-274-C (D.Ind. Nov. 28, 1988). We of course would reverse the district court's grant of the governments motion to dismiss if there were any set of facts upon which relief might be granted. Conley v. Gibson, 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).
Barnhart began his long history of treatment by the VA in the late 1960s after experiencing a psychotic episode. He was diagnosed as schizophrenic and was given substantial doses of Thorazine, along with a number of other neuroleptic drugs, on an ongoing basis for ten or more years. During that period he was treated by physicians at VA hospitals in Indiana (Indianapolis), Kentucky (Louisville and Lexington) and California (San Diego). During the mid-1970's Barnhart apparently began to experience involuntary muscle spasms typical of tardive dyskinesia. Although in 1980 physicians at the San Diego facility considered the possibility that these spasms might indicate early tardive dyskinesia, Barnhart and his mother were not informed of that possibility. By 1983 the VA openly acknowledged in its records that Barnhart had "severe" tardive dyskinesia. The government does not dispute that the first time Barnhart was informed of his condition was after he was seen privately by a neurologist, who on July 13, 1983 sent Barnhart's attorney a letter relaying a diagnosis of "severe tardive dyskinesia from major tranquilizer therapy."*fn1
Despite this notification in 1983, Barnhart did not file a claim with the VA until 1987. In the meantime, however, he did sue the manufacturer of one of the drugs responsible for his condition. This action, filed in 1985 in federal district court, was subsequently settled. In 1988, as part of the process whereby that suit was settled, a guardian ad litem was appointed for Barnhart. Barnhart attributes his failure to take any action against the VA to a mental condition that sometimes accompanies tardive dyskinesia.*fn2 An affidavit from a physician who is an expert on tardive dyskinesia offers support for this conclusion. The affidavit notes that Barnhart suffers from difficulty in concentrating and planning ahead, short term memory impairment, retrograde amnesia and emotional instability. The physician, in a supplemental report, further states that the impact of the disease on Barnhart's mental functioning has been "sufficient to render him incompetent to handle his own affairs or to bring a legal action on his own behalf." Supplemental Report at 5. Among the reasons given for this conclusion are that tardive dyskinesia is often accompanied by denial, so that a patient's initial inability to admit that he or she has the disease can be viewed as a part of the disease process. More specifically, the physician noted that Barnhart is fearful of the VA, not only because in Barnhart's view the VA physicians harmed him and might do so again, but also because Barnhart is fully dependent upon the VA for his income and feared that the VA might retaliate should he attempt any sort of malpractice action.
The more general allegations about the impact of the disease on Barnhart's ability to bring any kind of legal action are somewhat undercut by the fact that Barnhart did in fact bring a suit, within the necessary period of time, against the manufacturer of one of the drugs he took. To the extent that tardive dyskinesia involves a denial process that renders patients incapable of recognizing that they have the disease at all, Barnhart must have been able to overcome that process in time to sue the manufacturer.
Thus the only assertions relevant here are those that provide some explanation why Barnhart's condition made him specifically unable to proceed against the VA. The physician's discussion of Barnhart's particular fears regarding the VA is framed in terms of Barnhart's underlying emotional problem rather than in terms of the specific effects of tardive dyskinesia:
The patient's emotional problems have remained severe since the diagnosis of tardive dyskinesia, and would in themselves render him unable to bring an action on his own behalf. While I have diagnosed his schizophrenia as "in remission," this merely means that the more extreme manifestations of hallucinations and delusions are no longer present. As in almost all such cases, the underlying disorder remains in a crippling form. . . . First, Steve remains in his own words "very paranoid." . . . In regard to the Veteran's Administration, he has been especially fearful and paranoid. . . . In addition, . . . [he] has been afraid to bring a legal action against the VA for fear that in retaliation the VA would reject him from all treatment or injure [him] while in treatment. These fears are a product of Steven's financial dependency on the VA, his paranoid character and his actual negative experiences with the VA. . . . Clearly, while Steve may be labeled as "schizophrenia in remission" he is an emotionally crippled person lacking the autonomy or strength to carry on any kind of stressful or frightening activity on his own behalf. This is of course consistent with the fact he receives a 100% psychiatric disability from the VA.
Supplemental Report at 7-9. If we separate for a moment symptoms that are described as associated with Barnhart's preexisting emotional condition from those described as characteristic of tardive dyskinesia, it would seem from the physician's report that the symptoms specifically responsible for Barnhart's reluctance to sue the VA (most notably, his paranoid symptoms) derive more from his preexisting emotional condition than from tardive dyskinesia. However, because we review a motion to dismiss, we will consider also ...