Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-31-2006

Green v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1298




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-1298


                                 WALTER GREEN;
                               JESSIE GREEN, his wife

                                           v.

                      UNITED STATES OF AMERICA,
                    c/o VETERANS AFFAIRS MEDICAL
                CENTER UNIVERSITY AND WOODLAND AVE.;
                     DR. ROBERT H. FITZGERALD, c/o
              UNIVERSITY OF PENNSYLVANIA HEALTH SYSTEM

                                                Walter Green and Jessie Green,
                                                             Appellants


                      Appeal from the United States District Court
                             for the District of New Jersey
                         (D.C. Civil Action No. 03-cv-00804)
                      District Judge: Honorable Robert B. Kugler


                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 18, 2005

                     Before: BARRY, and AMBRO, Circuit Judges
                              POLLAK*, District Judge

                                (Filed: March 31, 2006)




      *Honorable Louis H. Pollak, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
                                OPINION OF THE COURT




AMBRO, Circuit Judge

       We have before us whether the District Court properly held that Walter Green’s

cause of action was barred by the statute of limitations under the Federal Tort Claims Act

(FTCA), 28 U.S.C. § 2401(b). Because our decision in Hughes v. United States, 

, 275 (3d Cir. 2001), answers this inquiry in the negative, we reverse and

remand this case to the District Court.

                         I. Factual and Procedural Background

       On December 2, 1997, Green underwent a total hip replacment. The surgery was

performed by Dr. Robert Fitzgerald at the Veterans Affairs Medical Center (VA) in

Philadelphia, Pennsylvania. When Green awoke from surgery the following morning, he

was in considerable post-operative pain and discovered that one of his legs was shorter

than the other. On the evening of December 3, 1997, Green felt his hip become unstable

when he was using the bathroom. Two or three days later, his hip dislocated, causing

considerable pain. Green was medicated and his hip prosthesis was relocated to the

proper position. Thereafter, Green was prescribed a hip brace designed to provide

additional stability to his hip in order to prevent any further episodes of dislocation.

       After his discharge from the hospital, Green underwent a course of physical


                                              2
therapy. During several post-operative visits at the VA with his internist, Green

complained of pain, partial occasional dislocation of his hip, and a recurring clicking

noise in his hip that occurred throughout the day.1 Green testified that he was informed

each time he appeared at the VA that his symptoms were normal, expected, and

ultimately would improve.

       The VA medical records support Green’s testimony. For instance, a VA progress

note dated February 3, 1999, stated that Green was complaining of his left hip clicking.

The note indicates that x-rays were performed and states “well fixed components

retroverted acetabular components.” No further action was recommended and Green was

never informed that there was any problem with his prosthesis. On October 4, 1999, two

years prior to the filing of his administrative claim, Green visited the VA clinic where it

was noted that his left hip had a normal post-operative appearance. Green’s final visit

with the VA occurred on January 29, 2001. The progress note from that date again

indicates that Green’s total hip arthroplasty had a “normal post-operative appearance.”

       Green testified that the doctors he saw outside of the VA in 1998-99 also told him

that his symptoms were normal and would improve. His medical records indicate that he

received extensive medical care outside the VA. Indeed, he was treated by his primary

care physician, Dr. Jeffrey Oppenheim, on May 18, 1998, April 16, 1999, September 9,



  1
    Green’s medical records indicate that he returned to the VA for checkups on February
3, 1999, October 4, 1999, and January 29, 2001.

                                             3
1999, April 17, 2000, August 28, 2000, September 28, 2000, February 12, 2001, March

19, 2001, April 30, 2001, and June 4, 2001.

       Green testified as well that he learned to live with the clicking sound in his hip

until the situation worsened to the point where he decided to seek another opinion. Dr.

Oppenheim referred Green for an orthopedic evaluation with Dr. Berman, a non-VA

doctor. On March 31, 2001, Dr. Berman ordered x-rays that demonstrated “excessive

anteversion of the acetabular component[,] which is the cause of the dislocation.” Dr.

Berman’s diagnosis was “malposition of the left acetabular component, total hip

replacement.”

       On June 1, 2001, Green was seen by Dr. Scott Schoifet, another non-VA doctor,

for an orthopedic evaluation of his left hip dislocation problem. Dr. Schoifet noticed that

Green’s left hip x-rays showed “45 degrees of retroversion of the acetabulum,” the clear

cause of Green’s recurrent dislocations. Because Green needed a revision of the

acetabular component, Dr. Schoifet referred him to the Hospital of the University of

Pennsylvania (HUP). Green emphasizes that this was the first time he was informed of

the retroversion and malpositioning of the prosthesis.

       On September 4, 2001, Green was evaluated by Dr. Christopher Born, an

orthopedic surgeon at HUP. It was Dr. Born’s medical opinion that Green’s x-rays

performed in 1999 at the VA demonstrated that the acetabular component was placed at

about forty degrees of retroversion. On October 8, 2001, Dr. William DeLong, Jr. (Dr.



                                              4
Born’s partner) stated that Green’s more recent x-rays also showed the marked

retroversion. As a result of the improper location of the prosthesis, Green required

revision of his left hip replacement. Dr. DeLong performed the revision on December 20,

2001.

        Green filed an administrative claim with the Veterans Affairs Medical Center on

October 2, 2001, which was denied. On February 24, 2003, Green proceeded with this

FTCA suit in the United States District Court for the District of New Jersey, alleging that

the total hip replacement he received at the VA hospital in 1997 was negligently

performed. The Government moved for summary judgment, arguing that Green’s action

was barred by 28 U.S.C. § 2401(b), under which tort claims against the United States are

barred unless presented in writing to the appropriate agency “within two years after such

claim accrues.” Because Green had filed an administrative claim on October 2, 2001, the

District Court was tasked with determining whether Green’s FTCA claim “accrued”

within the meaning of that statute before October 2, 1999. Because it found that Green’s

FTCA claim accrued at the latest on or before February 8, 1999, the District Court ruled

that Green’s action was time-barred under § 2401(b). This appeal followed.2

                                 II. Standard of Review

        We exercise plenary review over a district court’s grant of summary judgment and



  2
   Because the defendant here is the United States, the District Court had jurisdiction
pursuant to 28 U.S.C. § 1346(b)(1). Because this is an appeal from the grant of summary
judgment by the District Court, we have jurisdiction pursuant to 28 U.S.C. § 1291.

                                             5
apply the same standard as the District Court, i.e., whether there are any genuine issues of

material fact such that a reasonable jury could return a verdict for the plaintiffs. Fed. R.

Civ. P. 56(c). We are required to “view the record and draw inferences in a light most

favorable to the non-moving party.” In re IKON Office Solutions, Inc., 

, 666

(3d Cir. 2002).

                                      III. Discussion

       Statutes of limitations “are found and approved in all systems of enlightened

jurisprudence.” Wood v. Carpenter, 

, 139 (1879). Although they provide

what legislatures consider a reasonable period for plaintiffs to present their claims, “they

protect defendants and the courts from having to deal with cases in which the search for

truth may be seriously impaired by the loss of evidence.” United States v. Kubrick, 

, 117 (1979). In enacting the FTCA, Congress waived the immunity of the

United States. A condition of that waiver is that suits be filed within a prescribed time.

As noted above, under § 2401(b), “a tort claim against the United States is barred unless it

is presented in writing to the appropriate federal agency ‘within two years after such

claim accrues.’” 

(quoting § 2401(b)).

       The time at which a claim “accrues” within the meaning of the FTCA is a matter

of federal law. See Ciccarone v. United States, 

, 256 (3d Cir. 1973). In a

medical malpractice action under the FTCA, an accrual occurs when “the putative

plaintiff possesses facts which would enable ‘a reasonable person to discover the alleged



                                              6
malpractice.’” Hughes v. United States, 

, 275 (3d Cir. 2001) (quoting Barren

by Barren v. United States, 

, 991 (3d Cir. 1988)). A plaintiff possesses those

facts where he or she knows, or where an objectively reasonable person through the

exercise of reasonable diligence should have known, of both the fact of the injury and its

cause. 

; 

; see also 

(holding that accrual does not require a plaintiff’s awareness that his injury was

negligently inflicted). Therefore, the determination of the time at which a claim accrues

within the meaning of § 2401(b) involves an objective inquiry: asking not what the

plaintiff actually knew, but what a reasonable person should have known. See 

.

       For tort actions, the general rule is that the cause of action accrues at the time of

the last event necessary to complete the tort. Usually, this is at the time the putative

plaintiff is injured. 

. An injured party, however, cannot make a

claim until he knows or should know that he had an action to bring. Thus, the Supreme

Court has held that an injured party’s cause of action does not accrue until he learns of his

injury. Urie v. Thompson, 

(1949). In most cases, when a person learns of

his injury, he is on notice that there has been an invasion of his legal rights, and that he

should determine whether another may be liable to him.

       However, in some circumstances, a person may know that he has been injured but

not be sufficiently apprised by the mere fact of injury to understand its cause. Cf.



                                               7
McGowan v. University of Scranton, 

(3d Cir. 1985) (statute of limitations

does not accrue until a plaintiff learns of the cause of injury when she died of toxic shock

syndrome at a time when the cause of toxic shock syndrome had not been discovered by

medical science). In those circumstances, when the fact of injury alone is insufficient to

put an injured party on notice of its cause, the Supreme Court has indicated that the

accrual of the claim is delayed until the injured party discovers that cause. 

.

       As can be gathered from what we cite above, the leading case construing accrual

of an injury under § 2401(b) is Kubrick. There, the Supreme Court held that an FTCA

malpractice claim accrued when the plaintiff learned from a consultant that his deafness

“probably resulted” from neomycin treatment and not at a later time, when the plaintiff

learned that neomycin treatment constituted malpractice. 

.

Disclosure of the probable cause of the injury in Kubrick implicated the treating

physician, but the Supreme Court rejected the notion that claim accrual awaits a

consultant’s opinion that the harm is iatrogenic (physician-caused).3 

Indeed,

Kubrick dictates that a malpractice claim accrues when a patient knows the physical

cause of a bad result, even without confirmation that the injury was the result of

malpractice. 

reasoned that, once the plaintiff knows “the critical facts that


  3
   Iatrogenic is a term that “applies to any adverse condition in a patient occurring as a
result of treatment by a physician or surgeon, especially to infections incurred by the
patient during the course of his treatment.” 

n.2.

                                              8
he has been hurt and who has inflicted the injury,” he can seek medical and legal advice

to determine whether the medical care he received was substandard and whether he has a

viable cause of action for negligence. 

Supreme Court’s holding in Kubrick, our Court generally requires

plaintiffs to bring claims within two years of accrual of a FTCA cause of action.

However, we have made a distinction between affirmative, albeit negligent, treatment, as

in Kubrick, and injuries that are the result of the failure to diagnose or treat a claim. See

. In Hughes, the plaintiff was admitted to a VA hospital on

April 15, 1997, for a cardiac catheterization and coronary bypass surgery. 

Heparin, a blood thinner, was administered almost continuously from April 16 through

April 23. 

Following the surgery, Hughes developed gangrene in all four

extremities, and they were later amputated. 

complications resulting from

heavy sedation, he did not awake until June 4, 1997, at which time the VA physicians

told him that he had suffered an allergic reaction to heparin, which caused the gangrene

and left the doctors no choice but to amputate. 

not informed that had his

allergic reaction been timely diagnosed, it could have been treated and cured with

anticoagulants. 

consulted with an attorney in April 1999. His medical

records were requested in May 1999 and received in June 1999. After a change in

counsel in December 1999, Hughes filed an administrative claim on July 6, 2000. 

to the facts before it, the District Court found that Hughes


                                              9
became aware of his injuries (the amputations) when he awoke from his coma. 

It also found that Hughes learned the cause of his injury while still in the hospital,

when his physician informed him that he had an allergic reaction to the heparin which

ultimately necessitated his amputations. 

this information would

have led a reasonable person to suspect malpractice, the District Court held that, once he

was in possession of these facts, Kubrick charged Hughes with a duty to investigate

promptly his claim or risk losing it. 

ruling that the statute of limitations was not activated by Hughes’

awareness of his injury, but was tolled until he became aware of the act that caused his

injury. 

The administration of heparin was not the cause of the injury;

rather it was the failure of the VA physicians to treat Hughes timely with an

anticoagulant. 

Court rejected the District Court’s belief that Hughes’

“reliance on his doctors’ assurances that, because of his previously unknown allergy the

amputations were unavoidable,” was sufficient to make him aware “not only of his injury

but also its cause.” We stated in response:

       [Hughes] was not provided any information that should have led him to believe
       that it was the failure to treat timely the allergic reaction to the heparin that caused
       the formation of gangrene. On the contrary, he was led to believe that the
       formation of the gangrene was a natural, albeit unexpected, allergic reaction to the
       heparin dosage.

       Green maintains that, similar to the plaintiff in Hughes, he had “absolutely no


                                              10
reason to suspect an iatrogenic cause of his injury in light of reassurances by the VA

doctors that the post-operative x-rays of his hip were normal.” Appellant’s Br. at 16.

Rather, he “was led to believe that hip dislocations and associated discomfort were a

natural consequence of the surgery rather than a failure of the VA doctors to recognize

and correct the malposition of the acetabular component of the prosthesis.” 

Kubrick, and without reference to Hughes, the District Court rejected Green’s

argument.

       The Court first stated that because Green filed his administrative claim on October

2, 2001, his action was barred by § 2401(b) so long as the Government established that

he knew, or through the exercise of reasonable diligence should have known, of both the

fact of the injury (the retroverted acetabular component of the hip prosthesis) and its

cause (the allegedly improper insertion of the component into his hip on December 2,

1997) before October 2, 1999. The Court then noted that Green himself testified that his

symptoms (pain, clicking, partial dislocation, and leg length discrepancy) were present

upon his post-surgery discharge from the VA hospital in December 1997, and continued

until or beyond his second hip surgery in December 2001. Therefore, the Court

reasoned, it was clear the Green’s injury manifested itself well before October 2, 1999.

The District Court went on to point out that Green also argued that the retroverted

acetabular component was readily detectable before that date. As a result, it concluded

that an objectively reasonable person exercising reasonable diligence should have known


                                             11
before October 2, 1999, that the hip prosthesis had been improperly inserted. Moreover,

the Court emphasized that Green’s medical records, which reveal that he complained of

hip problems to doctors outside the VA prior to October 2, 1999, belie his argument that

he relied on the opinions of the VA doctors that his x-rays looked normal and that no

further treatment was needed.

       On appeal, Green counters by arguing that, although he did complain to doctors

outside the VA about his hip in 1998 and 1999, his complaints did not lead to the

performance of x-rays at that time. Because it is undisputed that “the only way to

discover the degree of retroversion of the component parts of the prosthesis is by

diagnostic imagining techniques,” Green asserts that his visits outside the VA prior to

October 2, 1999, did not belie the VA doctor’s opinions that his x-rays and symptoms

were normal. We agree.

       Similar to the plaintiff in Hughes, Green had no reason to suspect an iatrogenic

cause of his injury in light of reassurances by the VA doctors that the post-operative x-

rays of his hip were normal. Rather, he was led to believe that the dislocations of his hip

and associated pain were a consequence of the surgery rather than a failure of his doctors

to recognize and correct the improperly positioned prosthesis. Indeed, when distilled

under the Hughes analysis, Green’s claim has as much, if not more, force than did

Hughes’ claim. Hughes emerged from heart surgery with no limbs, a result his doctors

blamed on a gangrene reaction to heparin administration. Any doctor could have told


                                            12
Hughes that such a result was easily treatable by anticoagulant administration and, as

such, the failure to do so in lieu of amputation was a clear-cut case of medical

malpractice. Green, on the other hand, emerged from hip surgery with hip pain and

displacement, a result his doctors characterized as normal under the circumstances.

There is no dispute that discovery of the underlying cause of Green’s injury – a

misplaced prosthesis – requires a specific and specialized inquiry; that is, an orthopedic

evaluation including x-ray interpretation. Thus, the negligence of Green’s doctors was

not as apparent as the negligence of Hughes’ doctors.

       As we made clear in Hughes,

       [w]here a claim of medical malpractice is based on the failure to diagnose or treat
       a pre-existing condition, the injury is not the mere undetected existence of the
       medical problem at the time the physician failed to diagnose or treat the patient or
       the mere continuance of that same undiagnosed problem in substantially the same
       state. Rather, the injury is the development of the problem into a more serious
       condition which poses greater danger to the patient or which requires more
       extensive treatment. In this type of case, it is only when the patient becomes
       aware or through the exercise of reasonable diligence should have become aware
       of the development of a pre-existing problem into a more serious condition that
       his cause of action can be said to have accrued for purposes of section 2401(b).4


  4
    The Kubrick/Hughes line of cases demand that medical malpractice plaintiffs exercise
reasonable diligence to be on notice of both the fact of any injury and its cause—and,
once on notice, to file their claims promptly. Thus, one could argue here that Green failed
to exercise reasonable diligence to be on notice of the fact of his injury. That argument is
unpersuasive here where we are presented with a plaintiff who (1) experienced pain,
discomfort and associated symptoms after a hip replacement surgery, (2) repeatedly
reported the pain and symptoms to his treating physicians, and (3) was told over and over
again that the pain and symptoms were nothing more than part of the surgical healing
process. Green’s persistent presentation of his perceived problematic symptoms to
medical experts satisfies the reasonable diligence requirement. If not, what could Green

                                            

. In other words – and viewing the evidence in the light most favorable

to Green – his cause of action accrued when he became aware in June 2001 that his VA

orthopedist had misplaced the hip prosthesis. It is undisputed that Green filed his

administrative claim on October 2, 2001. Accordingly, Green’s claim was timely filed

under the two-year limitations period mandated by the FTCA.

                                     IV. Conclusion

       For the reasons detailed above, the order of the District Court dismissing the case

is reversed and the case remanded for further proceedings not inconsistent with this

opinion.




have done that would satisfy that requirement? (In Kubrick, the Supreme Court expressly
states that the plaintiff did not exercise reasonable diligence because he made no inquiry
whatsoever. See 

(stating “[t]he difficulty is that it does not
appear that Kubrick ever made any inquiry, although meanwhile he had consulted several
specialists about his loss of hearing . . .”)). It makes little sense to imply that Kubrick
stands for the proposition that a plaintiff who believes that he has a medical injury—but
has been consistently informed by medical experts that he does not—should just go ahead
and sue “just in case” those experts are wrong without any evidence to support his
malpractice claim.

                                            14