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McCall v. United States

November 13, 2002

ODESSA MCCALL, GUARDIAN OF THE ESTATE OF JOSEPH BESS, JR., AN INCOMPETENT MINOR, PLAINTIFF-APPELLANT,
v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Southern District of Illinois. No. 00 C 740--Michael J. Reagan, Judge.

Before Coffey, Ripple and Kanne, Circuit Judges.

The opinion of the court was delivered by: Ripple, Circuit Judge.

ARGUED OCTOBER 1, 2002

Odessa McCall, as guardian of the estate of Joseph Bess, Jr., brought this action against the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2674. Ms. McCall alleged that government doctors provided negligent treatment during the birth of her grandson, who was born with serious medical problems including mental incompetency. The district court dismissed her complaint, concluding that the suit was timebarred. On appeal, Ms. McCall submits that the FTCA's administrative statute of limitations should have been tolled because Joseph is incompetent--a condition brought about by the Government's own negligence. Because the FTCA's statute of limitations is not tolled during the minority of the putative plaintiff, we affirm the judgment of the district court.

I. BACKGROUND

A. Facts

1. Joseph's Birth

Early in the morning of September 25, 1995, Nichole McCall arrived in active labor at the Touchette Regional Hospital in Centreville, Illinois. Hospital personnel placed her in a labor room. Around 5 a.m., hospital personnel told Ms. McCall that her baby was "in distress."

Around 8:30 a.m., nurses told Ms. McCall that delivery was still some time away. Ms. McCall responded, however, that she believed delivery was imminent. For unexplained reasons, the nurses left her room at that point. Before any doctors or nurses returned, she gave birth to Joseph Bess, Jr. Dr. D. Ballinger and Dr. E. Ekwulugo, both employed by the United States through the National Health Service, had provided prenatal care to Ms. McCall. Although Dr. Ballinger was on his way to the hospital and Dr. Ekwulugo was working in the hospital that morning, neither of these doctors treated her until after Joseph was born.

When the nurses returned to Ms. McCall's room and discovered Joseph's birth, they saw that he was blue and was having trouble breathing. The nurses performed chest compressions and suctioning on Joseph, but, despite these attempts, he began experiencing seizures. Consequently, medical personnel transferred Joseph by helicopter to Children's Hospital in St. Louis, Missouri.

Joseph spent seventeen days in neonatal intensive care at Children's Hospital. During his stay, medical personnel there told Ms. McCall that the umbilical cord had wrapped around Joseph's neck during his birth and that he had been permanently brain-damaged.

2. Early Litigation

Within six months of Joseph's birth, Ms. McCall consulted with a medical malpractice attorney about the problems during delivery. Soon thereafter, at some unspecified date in 1996, she sued Touchette Regional Hospital and various nurses in Illinois state court. For reasons not reflected in the record, Ms. McCall voluntarily dismissed this suit.

In 1999, Ms. McCall filed an administrative claim with the Department of Health and Human Services. She alleged that government doctors acted negligently during her labor and delivery of Joseph. The Department of Health ...


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