Filed: Nov. 05, 2008
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-1343 BERTRAM HAHN, Plaintiff - Appellant, v. UNITED STATES OF AMERICA, Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:06-cv-03179-PJM) Argued: September 25, 2008 Decided: November 5, 2008 Before WILLIAMS, Chief Judge, GREGORY, Circuit Judge, and James C. CACHERIS, Senior United States District Judge for the Eastern D
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-1343 BERTRAM HAHN, Plaintiff - Appellant, v. UNITED STATES OF AMERICA, Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:06-cv-03179-PJM) Argued: September 25, 2008 Decided: November 5, 2008 Before WILLIAMS, Chief Judge, GREGORY, Circuit Judge, and James C. CACHERIS, Senior United States District Judge for the Eastern Di..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1343
BERTRAM HAHN,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:06-cv-03179-PJM)
Argued: September 25, 2008 Decided: November 5, 2008
Before WILLIAMS, Chief Judge, GREGORY, Circuit Judge, and James
C. CACHERIS, Senior United States District Judge for the Eastern
District of Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Gregory wrote the
opinion, in which Chief Judge Williams and Senior Judge Cacheris
joined.
ARGUED: Clifford John Shoemaker, Vienna, Virginia, for
Appellant. Alex Samuel Gordon, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Timothy
Litka, Washington, D.C., for Appellant. Rod J. Rosenstein,
United States Attorney, John W. Sippel, Jr., Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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GREGORY, Circuit Judge:
The Appellant, Bertram Hahn (“Hahn”), appeals the district
court’s decision to dismiss his Federal Tort Claims Act (“FTCA”)
lawsuit against the United States. Hahn had initially filed an
administrative complaint with the Department of the Army Claims
Services (“DACS”) and the Department of the Navy Claims Services
(“DNCS”), alleging that he had received negligent medical
treatment. Hahn’s claim was denied by DACS on the ground that
Hahn had failed to file an administrative complaint within two
years after the claim accrued, as required by 28 U.S.C.
§ 2401(b) (2000). Hahn subsequently filed the instant lawsuit.
Upon motion by the United States, the district court dismissed
Hahn’s complaint for lack of subject matter jurisdiction,
relying on the same ground as DACS.
Because Hahn should have known of the existence and likely
cause of his injury more than two years before he filed his
administrative complaint, we affirm the decision of the district
court.
I.
On May 17, 2000, Hahn went to the emergency room at
Bethesda National Naval Medical Center (“BNNMC”) complaining of
severe weakness in the limbs. Medical personnel at BNNMC
diagnosed Hahn as having Guillain-Barré Syndrome (“GBS”), an
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acute auto-immune neurological disorder. The medical personnel
at BNNMC ordered that Hahn receive intravenous immunoglobulin
(“IVIg”) treatment for five days. Later that day, Hahn was
transferred to Walter Reed Army Medical Center (“WRAMC”), where
his diagnosis and course of treatment were confirmed. Medical
personnel at WRAMC began IVIg treatment on May 18, 2000. That
same day, Hahn was transferred back to BNNMC and admitted to an
intensive care unit with orders to continue the five days of
IVIg treatment. According to Hahn, medical personnel at BNNMC
failed to follow these instructions and only administered IVIg
treatment for one more day. At that time, Hahn was unaware that
he was scheduled to receive five days of IVIg treatment. Hahn
remained in the intensive care unit at BNNMC until May 21, 2000,
when he was transferred to the medical ward at BNNMC. On May
23, 2000, Hahn was transferred to the rehabilitation ward at
WRAMC, where he remained until his discharge in June 2001.
After Hahn was discharged from WRAMC, he continued to
suffer from residual weakness. Hahn had been told that some GBS
patients continue to have residual weakness after receiving
treatment. Nevertheless, Hahn consulted with several other
doctors regarding further rehabilitation because he was
dissatisfied with his level of recovery. Hahn acknowledges that
he began receiving consultations from these other doctors in
June 2001. (Supp. J.A. 21.) According to Hahn, these doctors
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asked him whether he had been given any subsequent IVIg
treatments or whether he had been given a plasma exchange
following the initial IVIg treatment. Hahn answered these
questions in the negative, after which the doctors either
responded by saying “Oh?” or remained completely silent. (Supp.
J.A. 90.)
In August 2003, Hahn met with Dr. Jay Meythaler regarding
enrollment in a clinical drug trial for treatment of GBS.
Although the initial meeting with Dr. Meythaler was similar in
many respects to Hahn’s prior consultations, this consultation
differed crucially because Hahn provided Dr. Meythaler with his
medical records as part of the assessment for the clinical drug
trial. Three days after receiving these medical records,
Dr. Meythaler advised Hahn that BNNMC medical personnel had
failed to administer the full five days of IVIg treatment and
that this failure may have caused his residual weakness.
On February 26, 2004, Hahn filed an administrative
complaint with DACS and DNCS. Hahn’s claim was denied by DACS
on February 1, 2006. On April 19, 2006, Hahn filed this lawsuit
against the United States under the FTCA, 28 U.S.C. §§ 2671-2680
(2000), in the United States District Court for the District of
Columbia. Upon motion by the United States, the court
transferred the case to the United States District Court for the
District of Maryland. The United States then filed a motion to
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dismiss the complaint for lack of subject matter jurisdiction
because Hahn had failed to bring his administrative complaint
within two years after the claim accrued, as required by
28 U.S.C. § 2401(b). The district court granted the motion to
dismiss. Hahn appeals.
II.
Hahn contends that the district court erred in granting the
motion to dismiss for lack of subject matter jurisdiction
because his claim did not accrue until August 2003, when
Dr. Meythaler told Hahn that his residual weakness may have been
caused by his medical treatment. We review de novo the district
court’s grant of a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil
Procedure. Richmond, Fredericksburg & Potomac R.R. Co. v.
United States, 945 F.2d 765, 768-69 (4th Cir. 1991). When
deciding a 12(b)(1) motion, “the district court is to regard the
pleadings’ allegations as mere evidence on the issue, and may
consider evidence outside the pleadings without converting the
proceeding to one for summary judgment.”
Id. at 768. The party
asserting subject matter jurisdiction has the burden of proving
that the court has jurisdiction over the case. Adams v. Bain,
697 F.2d 1213, 1219 (4th Cir. 1982). “Unlike the procedure in a
12(b)(6) motion where there is a presumption reserving the truth
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finding role to the ultimate factfinder, the court in a 12(b)(1)
hearing weighs the evidence to determine its jurisdiction.” Id.
As a sovereign, the United States is immune from suit
unless it consents to being sued. United States v. Sherwood,
312 U.S. 584, 586 (1941). When the United States consents to
suit for a class of cases, the terms of its consent circumscribe
the court’s jurisdiction to entertain a particular suit.
Id. at
586-87. Congress created such a limited waiver of sovereign
immunity in enacting the FTCA. See 28 U.S.C. §§ 2671-2680.
Under the FTCA, the United States consents to suit for injuries
caused by the negligent acts or omissions of government
employees acting within the scope of their official employment.
28 U.S.C. § 2674; Gould v. U.S. Dep’t of Health & Human Servs.,
905 F.2d 738, 741 (4th Cir. 1990) (en banc). Congress further
prescribed a statute of limitations that operates as a
jurisdictional prerequisite to suit under the FTCA, 28 U.S.C.
§ 2401(b).
Gould, 905 F.2d at 741. According to § 2401(b),
“[a] tort claim against the United States shall be forever
barred unless it is presented in writing to the
appropriate Federal agency within two years after such
claim accrues . . . .”
In United States v. Kubrick, 444 U.S. 111, 123-24 (1979),
the Supreme Court first articulated the standard for determining
when a claim “accrues” for the purposes of the FTCA in the
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context of injuries caused by medical malpractice, holding that
such a claim “accrues” when a claimant knows of both the
existence of the injury and the cause of the injury. Actual
knowledge of negligent treatment is not necessary in order to
trigger the running of the statute of limitations; rather, once
the claimant is “in possession of the critical facts that he has
been hurt and who has inflicted the injury,” the claimant has a
duty to make diligent inquiry into whether the injury resulted
from a negligent act. Id. at 122; accord Gould, 905 F.2d at
743. According to this Court, “[t]he clear import of Kubrick is
that a claim accrues within the meaning of § 2401(b) when the
plaintiff knows or, in the exercise of due diligence, should
have known both the existence and the cause of his injury.”
Gould, 905 F.2d at 742. Even if a claimant seeks the advice of
other medical providers and is incorrectly advised that he did
not receive negligent treatment, such advice will not prevent
the accrual of the claim.
Kubrick, 444 U.S. at 124.
Furthermore, a claim will accrue even if the claimant does not
know the precise medical reason for the injury, provided that he
knows or should know that some aspect of the medical treatment
caused the injury. See Kerstetter v. United States,
57 F.3d
362, 364-65 (4th Cir. 1995).
In deciding whether such claims are timely filed, we must
keep in mind that § 2401(b) represents “the balance struck by
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Congress in the context of tort claims against the Government;
and we are not free to construe it so as to defeat its obvious
purpose, which is to encourage the prompt presentation of
claims.” Kubrick, 444 U.S. at 117. While a strict
interpretation of § 2401(b) “often works a substantial hardship
on plaintiffs and may have a harsh impact on a party innocent of
any impropriety,” such an interpretation is necessary to avoid
“rewriting the FTCA to allow broad, open-ended exceptions.”
Gould, 905 F.2d at 747.
Based on the precedent of the Supreme Court and this
Circuit, it is clear that Hahn’s claim accrued in June 2001, at
the time that Hahn began consulting with other doctors upon his
discharge from the hospital. Hahn first contends that he had no
knowledge of the existence of his injury at the time of
discharge because his condition had appreciably improved as a
result of the medical treatment. While it is true that some
medical treatments might not produce a complete recovery even if
non-negligently administered, Hahn admits that he consulted with
other doctors because he was dissatisfied with his
rehabilitation and wanted to see if other doctors could effect a
more complete recovery. Given Hahn’s dissatisfaction with his
level of recovery at the time of discharge, together with his
subsequent consultations with other doctors, he was put on
notice of the existence of an injury.
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Hahn next contends that even if he had knowledge of the
existence of an injury, he had no knowledge that the injury was
caused by BNNMC’s failure to administer the initial IVIg
treatment for five days. In support of this contention, Hahn
points to the fact that he consulted with several doctors
regarding his rehabilitation and that none of the doctors
specifically informed him that his residual weakness was caused
by the incomplete IVIg treatment. Hahn’s argument is flawed
because it assumes that a claimant cannot be charged with
knowing the cause of an injury until the claimant has been
actually informed of its specific cause. However, the relevant
inquiry is not whether the plaintiff actually knows of the cause
of the injury, but whether he “knows or, in the exercise of due
diligence, should have known . . . [of] the cause of his
injury.” Gould, 905 F.2d at 742.
Hahn consulted with several doctors beginning in June 2001,
and those doctors directly asked him whether he had been given
any subsequent IVIg treatments or a plasma exchange following
the initial IVIg treatment. When Hahn responded in the
negative, the doctors’ consistent, nonplussed reactions should
have put him on notice that his medical treatment might have
been the cause of his residual weakness. A reasonable person
exercising due diligence under the same circumstances would have
provided the doctors with his medical records and asked the
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doctors whether some aspect of his treatment might have caused
his incomplete recovery. Hahn admits that he did not inquire
further or provide any of the doctors with his medical records
until his meeting with Dr. Meythaler in August 2003. In fact,
Hahn’s consultation with Dr. Meythaler demonstrates that had
Hahn exercised the same due diligence when he first began
consulting with other doctors, he would have been able to
ascertain the precise medical reason for his injury and file his
claim well within the two-year statute of limitations.
If this Court were to adopt Hahn’s interpretation of the
Kubrick standard, it would effectively eliminate the requirement
that a claimant exercise due diligence in ascertaining the
existence of an injury and its likely cause. See Gould, 905
F.2d at 742;
Kerstetter, 57 F.3d at 364. Such an interpretation
is directly contrary to our precedent and at odds with the
public policy concerns of timely claim presentation that
underlie § 2401(b). We do not hold that a person is
automatically put on inquiry notice merely from the fact that he
received medical treatment and did not make a complete recovery.
We only conclude that, under these particular circumstances,
Hahn was put on notice of an injury and would have discovered
the likely cause of this injury had he exercised due diligence.
Since Hahn’s claim accrued in June 2001 for purposes of
the FTCA, his filing of the administrative complaint on
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February 26, 2004 was outside of the two-year statute of
limitations provided by § 2401(b). Since § 2401(b) is a
jurisdictional prerequisite to suit under the FTCA, the district
court lacked subject matter jurisdiction to hear the suit.
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
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