Brown v. United States

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

NELLE B. BROWN, 
Plaintiff-Appellant,
v.  No. 99-2400
UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Anderson.
William M. Catoe, Jr., Magistrate Judge.
(CA-99-500-8-13AK)

Argued: October 31, 2000

Decided: January 9, 2002

Before WIDENER, WILKINS, and LUTTIG, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL

ARGUED: Rodney Frank Pillsbury, YACOBI & PILLSBURY,
L.L.C., Greenville, South Carolina, for Appellant. Lee Ellis Berlin-
sky, Assistant United States Attorney, Greenville, South Carolina, for
Appellee. ON BRIEF: J. Rene Josey, United States Attorney, Green-
ville, South Carolina, for Appellee.
2 BROWN v. UNITED STATES
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

OPINION

PER CURIAM:

Nelle B. Brown (Nelle Brown) appeals a district court order dis-
missing her medical malpractice claim for injuries suffered by her
husband, George Brown (Brown).* Finding no error, we affirm.

I.

The events giving rise to this suit began in 1945, when Brown
injured his back while on active duty in the United States Navy.
Brown continued to suffer from a herniated disk after his honorable
discharge and underwent a myelogram in 1950 at Lawson Veterans
Administration Hospital, in Chamblee, Georgia. During the proce-
dure, iodized oil (Lipiodol) was used as the contrast medium; the oil
was not extracted once the myelogram was complete.

Brown was hospitalized in 1951, complaining of pain in his head,
neck, back, and legs, dating from the time of the myelogram. He was
diagnosed as having meningeal adhesions due to the iodized oil in his
ventricular system. However, because the doctors believed this condi-
tion would not cause the pain Brown reported, Brown was advised to
seek psychiatric assistance if his symptoms worsened. When Brown
did seek such assistance, his treating psychiatrist characterized his
complaints as "hypochondriacal." J.A. 41.

In November 1951, Brown appeared before the Veterans Adminis-
tration ("VA") Rating Board and gave a detailed history of his back
pathology. He asserted that the myelogram dye had not been properly
removed and had scattered over his body, causing continuous, severe
headaches. Also, Brown’s treating psychiatrist submitted a letter stat-

*Nelle Brown filed this action in her individual capacity and in her
capacity as personal representative of her husband’s estate.
 BROWN v. UNITED STATES 3
ing that Brown was anxious, depressed, and perhaps schizophrenic.
After reviewing the information before it, the VA Rating Board
assigned a combined 90 percent disability rating to Brown for (1)
"post-operative ruptured interve[r]tebral disc with chronic sciatic neu-
ritis"; and (2) "meningitis, chronic, due to retained iodized oil in the
ventri[c]ular system and anxiety reaction, chronic, severe." Id. at 44.
In 1955, the rating board awarded Brown 100 percent disability for
catatonic schizophrenia but determined that Brown was still compe-
tent.

In 1958, Brown’s treating psychiatrist submitted a letter to the VA
Regional office noting that in their first meeting Brown attributed his
headaches to the earlier myelogram. The letter stated that Brown’s
prognosis was "very poor," that he was "sever[e]ly handicapped," and
that he suffered from "severe hyp[o]ch[ ]ondriasis." Id. at 45A. Brown
eventually became bedridden and continued to be so until his death
in 1996.

Brown’s post-mortem examination revealed that he had been suf-
fering from chronic adhesive arachnoidopathy, the manifestations of
which include back pain and other sensory disturbances. The examin-
ing doctor also noted that Brown’s chronic neurologic disturbances
were likely caused by arachnoiditis induced by administration of
Lipiodol.

In November 1998, Nelle Brown filed an administrative claim with
the United States Department of Veteran Affairs for the severe pain
she alleged Brown suffered as a result of the administration of the
Lipiodol. The claim was denied, and in February 1999 Brown filed
the present action in district court. The Government moved for sum-
mary judgment, arguing, as is relevant here, that the suit was time-
barred because Nelle Brown failed to file an administrative claim
within two years of the accrual of her claim. See 28 U.S.C.A.
§ 2401(b) (West 1994). The district court determined that Brown
knew or should have known of the causal connection between his
injury and the 1950 myelogram as early as 1951, when Brown
informed the rating board that the unremoved Lipiodol was the cause
of his symptoms, and no later than 1958, when Brown’s psychiatrist
submitted the letter recounting Brown’s belief that the myelogram
4 BROWN v. UNITED STATES
was the cause of headaches. On this basis, the district court granted
summary judgment for the Government.

II.

Nelle Brown contends that the district court erred in granting sum-
mary judgment because there were material issues of fact regarding
whether Brown’s doctors’ determination that Brown was a hypochon-
driac delayed accrual of his claim and whether Brown’s mental condi-
tion was sufficiently poor to toll the statute of limitations. We review
a grant of summary judgment de novo, viewing the disputed facts in
the light most favorable to the nonmovant. See Figgie Int’l, Inc. v.
Destileria Serralles, Inc., 190 F.3d 252, 255 (4th Cir. 1999). Sum-
mary judgment is appropriate "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c).

Absent waiver, sovereign immunity shields the United States from
suit. See FDIC v. Meyer, 510 U.S. 471, 475 (1994). The Federal Tort
Claims Act (FTCA) provides for a limited waiver of the sovereign
immunity of the United States for the torts committed by government
employees within the scope of their employment. See id. The FTCA
provides that "[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." 28 U.S.C.A.
§ 2401(b). A cause of action for medical malpractice accrues under
§ 2401(b) when the plaintiff knows or should know of his injury and
its cause. See Muth v. United States, 1 F.3d 246, 249 (4th Cir. 1993).

Here, Brown was aware in November 1951 that the iodized oil
remaining in his body from the myelogram was the cause of his
severe headaches. He was informed earlier that year that he suffered
from meningeal adhesions caused by the oil improperly left in his sys-
tem. In addition, he clearly drew the connection between the retained
oil and his pain when he applied for VA benefits in November 1951.
In fact, the VA Board granted him 90% disability based partly on
"meningitis, chronic, due to retained iodized oil in the ventri[c]ular
system." J.A. 44. We therefore conclude that Brown was aware of his
 BROWN v. UNITED STATES 5
injury and its cause by November 1951, and his claim against the
Government accrued at that time. Consequently, Brown’s claim
became time-barred in November 1953 unless the statute of limita-
tions was tolled.

Turning to Nelle Brown’s tolling argument, we note that the gen-
eral rule is that mental incapacity does not permit the tolling of the
FTCA statute of limitations. See, e.g., Casias v. United States, 532
F.2d 1339, 1342 (10th Cir. 1976). However, at least one court has
held that tolling may be appropriate when the incompetence allegedly
has been caused by the Government’s negligence and limits the plain-
tiff’s ability to understand his injury and its cause. See Oslund v.
United States, 701 F. Supp. 710, 712 (D. Minn. 1988).

We need not decide whether the statute would be tolled under such
circumstances, however, because there is a complete lack of evidence
showing that Brown was unable to understand his injuries and their
cause during the relevant time period. The record demonstrates that
Brown had discovered the cause of his injury by November 1951.
Moreover, while the records from 1951 show that Brown was anxious
and depressed, they also demonstrate that he was able to understand
and seek disability benefits for the relationship between the myelo-
gram and his pain. Nelle Brown has failed to offer any evidence of
Brown’s mental state between November 1951 and November 1953,
when the statute would have expired. Accordingly, Brown’s claim
became time-barred in November 1953.

III.

In sum, we hold that the district court correctly granted summary
judgment in favor of the Government.

AFFIRMED