MacMillan v. United States

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 94-60276
Summary Calendar
_____________________

VICKIE MACMILLAN, Individually
and as Mother and Next Friend
of Tanya Lee, a Minor, ET AL.,

Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Mississippi
(CA-1:92-438)
_________________________________________________________________
(January 12, 1995)

Before KING, JOLLY and DeMOSS, Circuit Judges.

PER CURIAM:*

Vickie MacMillan, acting on behalf of herself and as the

next friend of her daughter, Tanya Lee, brought suit under the

Federal Tort Claims Act, 28 U.S.C. § 1345. MacMillan alleged

that Air Force physicians negligently caused neurological damage

to Tanya Lee when she was born. The government moved for summary

*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
judgment, contending that because the limitations period had run,

the district court lacked subject matter jurisdiction over the

suit. The district court agreed and granted summary judgment in

favor of the government. MacMillan appeals, but we affirm the

district court's decision.

I. BACKGROUND

On November 23, 1975, Tanya Lee was born to Vickie Lee (now

Vickie MacMillan) at Keesler Air Force Base Hospital in Biloxi,

Mississippi. The birth was rife with complications. MacMillan

recalled that Tanya was "born with the cord around her neck" and

appeared "blue black" just after she was born. The Air Force

physicians conducting the delivery advised MacMillan that Tanya

was "not breathing on her own" but instead was being

"artificially ventilated." In fact, the birth was so problematic

that the infant Tanya was taken "out of the room very quickly

after delivery," and MacMillan was told that "the child would

probably not live, [because she had been] deprived of oxygen for

a long period of time."

During the first twenty-four to forty-eight hours of Tanya's

life, the situation remained bleak. Dr. Long, the high-risk

pediatrician, told MacMillan that Tanya "had experienced a couple

of seizures, was on a life-support system, [and had] no

response." Dr. Long also informed MacMillan that Tanya was

"oxygen-depressed" and that "if the child should live she would

be severely retarded." Furthermore, Dr. Long advised MacMillan,

2
"[I]t doesn't look great. Don't get your hopes up. The child

probably would not make it. If she should [survive], then she

could be a vegetable."

Fortunately, Tanya made some progress, and MacMillan noted

that "after 48 hours [Dr. Long] got a sign of life in [Tanya]

where she responded to something." Tanya eventually was weaned

off of the ventilator, and about two weeks after she was born,

Tanya was able to go home with her mother. When Tanya was

released, Dr. Long informed MacMillan that "there would be no way

to determine whether [Tanya] would experience any long-term

effects from the events of labor until tests were done on her

when she was a few months[] or several years old." MacMillan

also noted that Dr. Long told her that Tanya was "responding

well."

Despite her improvement, Tanya continued to experience

seizures, and she was given phenobarbital to help control them.

Additionally, MacMillan was instructed that Tanya would need to

be seen at the high-risk clinic "on a regular, routine basis . .

. for a one-year period of time to monitor her, to see how she

was progressing as a result of the problems she had at birth."

During these visits, the clinic performed tests on Tanya's

reflexes, growth, and measurements, and MacMillan recalled that

"they all seemed to be progressing." After about twelve months,

Tanya was taken off the phenobarbital, and she was seen at the

high-risk clinic for the "normal course of pediatric visits."

3
 Tanya's subsequent development did not progress at a normal

pace. She began walking "a little later than most kids," and in

1977, because Tanya's "speech was way behind," MacMillan enrolled

her daughter in a speech therapy program. When Tanya entered

school, her problems continued: "[e]very school year, [MacMillan]

could see that there was a problem." MacMillan stated that Tanya

repeated the second grade and was an easily frustrated and "very,

very shy child."

Concerned that Tanya might be suffering from a learning

disability, MacMillan implored her local school district to

evaluate Tanya. After MacMillan's entreaties went unanswered for

several years, in July of 1988, she took Tanya to Dr. William

Gasparrini, a clinical psychologist. Dr. Gasparrini conducted a

psychological evaluation of Tanya.

In the report he issued to MacMillan, Dr. Gasparrini

reported that "Tanya was described as being a blue baby at birth.

There was no oxygen to her brain." Dr. Gasparrini also noted

that:

Tanya's early development was not normal because of her
medications and her medical problems. At a very young
age she had a few epileptic seizures. She was on anti-
epileptic medication until age one, but she has not had
any more seizures since that time and has not required

4
 continuing treatment with medications. . . .1 Labor
and delivery were severe problems for Tanya.

After conducting a battery of tests, Dr. Gasparrini concluded

that "the most important primary diagnosis for Tanya Lee appears

to be Mild Mental Retardation. She also shows a very significant

affective disorder which could be diagnosed as Dysthymia." In

her deposition, MacMillan also agreed that "at least as of July

21, 1988," after receiving Dr. Gasparrini's report, she was "of

the opinion that [Tanya's] early development problems were

related to her problems at birth and her phenobarbital."

Moreover, at this time, MacMillan admitted that she was not aware

of anything that "would have explained the early developmental

delays or the low IQs or the shyness or the frustration level

increases other than either the phenobarbital or the problems at

birth."

In December of 1988, the Biloxi school system finally

acquiesced to MacMillan's request for an evaluation of Tanya.

The schools system referred Tanya to a school psychologist, Dr.

Anthony W. Pollard. Dr. Pollard saw Tanya three times and issued

a psychological assessment in early February of 1989. In the

"reason for referral" section of the assessment, Dr. Pollard

1
It is unclear whether this conclusion is correct. In her
deposition MacMillan noted that:

[W]ith the school case since seventh grade is when I
found out that the child has been having these mild
seizures all along, for all those years, and I never
knew. They were the staring type, those type of
seizures. She had been having them all this time. I
never knew.

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described the circumstances of Tanya's birth, apparently with

some inaccuracies,2 and noted that "it appears likely that Tanya

suffered anoxia at birth and probably sustained some neurological

damage as a result."

In June of 1989, Victoria Henning, a graduate student at the

University of Southern Mississippi, "perform[ed] diagnostic

testing on Tanya Lee as part of [Henning's] course requirements."

Although she did not suspect actual brain injury, after

conducting tests, Henning "suggested that Tanya be evaluated by a

neurologist." MacMillan eventually took Tanya to a neurologist--

Dr. Joe Jackson. After conducting an MRI and an EEG, Dr. Jackson

informed MacMillan, in early July of 1989, that his examination

revealed "old scarring of the brain, and he related it to her

birth."

On July 2, 1991, MacMillan filed an administrative

complaint, and on September 3, 1992, MacMillan filed a complaint

against the United States in the district court. The government

responded with a motion for summary judgment, arguing that "the

undisputed facts adduced through [MacMillan's] deposition

testimony and the two psychologists' evaluation reports support

the conclusion that [the district] Court lacks jurisdiction over

the subject matter of this action because the statute of

2
Dr. Pollard's report noted that Tanya was born via
surgery and that she remained in intensive care for two months.
MacMillan states that both of these statements are incorrect.

6
limitations has expired."3 The district court granted the

government's motion, concluding that, "the two-year statute of

limitations has expired. Clearly, [MacMillan] knew the facts

regarding both her child's injury (neurological damage) and the

admitted cause of that injury (delivery difficulties such as the

deprivation of oxygen at birth)." MacMillan appeals, arguing

that the district court erred in concluding that the limitations

period expired before she filed her claim.

II. STANDARD OF REVIEW

We review the granting of summary judgment de novo, applying

the same criteria used by the district court in its initial

examination of the issue. Norman v. Apache Corp., 19 F.3d 1017,

1021 (5th Cir. 1994); Conkling v. Turner, 18 F.3d 1285, 1295 (5th

Cir. 1994). Initially, we examine the applicable law to

ascertain the material factual issues. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986); King v. Chide, 974 F.2d

653, 655-56 (5th Cir. 1992). We then review the evidence bearing

on those issues, viewing the facts and inferences drawn from that

evidence in the light most favorable to the nonmoving party.

Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir.

1994); FDIC v. Dawson, 4 F.3d 1303, 1306 (5th Cir. 1993), cert.

denied, 114 S. Ct. 2673 (1994). After this process, summary

judgment is proper "if the pleadings, depositions, answers to

3
The failure to timely file an administrative claim under
the Federal Tort Claims Act is a jurisdictional defect. See
Zavala v. United States, 876 F.2d 780, 782 (9th Cir. 1989)

7
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 judgment

as a matter of law." FED. R. CIV. P. 56(c).

Additionally, Rule 56(c) of the Federal Rules of Civil

Procedures prescribes that the party moving for summary judgment

bears the initial burden of informing the district court of the

basis for its motion and of identifying the portions of the

record that it believes demonstrate the absence of a genuine

issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986); Norman v. Apache Corp., 19 F.3d 1017, 1023 (5th Cir.

1994). If the moving party meets its burden, the burden then

shifts to the nonmoving party who must establish the existence of

a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith

Radio, 475 U.S. 574, 585-87 (1986); Norman, 19 F.3d at 1023.

Notably, the non-moving party cannot carry its burden by simply

showing that there is some metaphysical doubt as to the material

facts. Matsushita, 475 U.S. at 586. If, however, "the evidence

is such that a reasonable jury could return a verdict for the

non-moving party," summary judgment will not lie. Anderson, 477

U.S. at 248.

III. DISCUSSION

The limitations period for tort claims brought against the

United States is set forth in the Federal Tort Claims Act

("FTCA"), 28 U.S.C. § 2401(b). The Act provides that "[a] tort

8
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. §

2401(b). Additionally, under the FTCA, the limitations period is

not tolled during the minority of the putative plaintiff; rather

"his parent's knowledge of the injuries is imputed to him."

Zavala, 876 F.2d at 782.

In medical malpractice cases, "where the injury or its cause

may not be manifested to the plaintiff until many years after the

event, the tort action does not `accrue' for statute of

limitations purposes, until the plaintiff is put on notice of the

wrong." Waits v. United States, 611 F.2d 550, 552 (5th Cir.

1980); see also United States v. Kubrick, 444 U.S. 111, 122-24

(1979); Harrison v. United States, 708 F.2d 1023, 1027 (5th Cir.

1983). Accordingly, we have noted that "`in medical malpractice

cases . . . the statute of limitations period does not begin to

run until after the patient discovers or in the exercise of

reasonable diligence should discover his injury and its cause.'"

Harrison, 708 F.2d at 1027 (quoting Stoleson v. United States,

629 F.2d 1265, 1268 (7th Cir. 1989)); see also Taurel v. Central

Gulf Lines, Inc., 947 F.2d 769, 771 (5th Cir. 1991) (noting that

in latent injury cases the cause of action does not accrue until

"the date that the plaintiff discovers, or reasonably should have

discovered, both the injury and its cause" (internal quotation

and citation omitted)).

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 The putative plaintiff, however, need not know the legal or

medical significance of an act or an injury for the cause of

action to accrue. Instead, the limitations period begins to run

when the plaintiff has "knowledge of facts that would lead a

reasonable person (a) to conclude that there was a causal

connection between the treatment and injury or (b) to seek

professional advice, and then with that advice, to conclude that

there was a causal connection between the treatment and injury."

Harrison, 708 F.2d at 1027. As the Supreme Court noted:

A plaintiff . . . armed with the facts about the harm
done to him, can protect himself by seeking advice in
the medical and legal community. To excuse him from
promptly doing so by postponing the accrual of his
claim would undermine the purpose of the limitations
statute which is to require the reasonably diligent
presentation of tort claims against the Government.

Kubrick, 444 U.S. at 123 (footnote omitted).

Despite MacMillan's numerous contentions to the contrary, it

is clear that Dr. Pollard's report provided facts sufficient to

compel a reasonable person to seek professional advice regarding

Tanya's neurological difficulties and the connection, if any, to

the problems associated with her birth. Dr. Pollard's report

stated that, "it appears likely that Tanya suffered anoxia at

birth and probably sustained some neurological damage as a

result." Neither the factual inaccuracies in the report nor the

fact that Dr. Pollard is not a medical doctor diminishes this

conclusion. Dr. Pollard is a psychologist who was examining

Tanya for the purpose of determining the causes of her

developmental and neurological problems. In light of the

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information that MacMillan knew about Tanya's difficulties at

birth, Pollard's conclusions about the roots of Tanya's later

problems certainly were sufficient to lead a reasonable person to

inquire in the medical and legal community. Accordingly, we

conclude that MacMillan's cause of action accrued, at the latest

when she received Dr. Pollard's report in February of 1989.

MacMillan's argument that the government concealed the cause

of Tanya's injury and thereby tolled the limitations period is

unavailing. It is true that the statute of limitations may be

tolled when "`the facts about causation may be in the control of

the putative defendant, unavailable to the plaintiff or at least

very difficult to obtain.'" Harrison, 708 F.2d at 1028 (quoting

Kubrick, 444 U.S. at 122). That, however, is not the situation

in the instant case. Simply, there is no indication that medical

personnel withheld any information about the facts of Tanya's

birth or about her medical records. Cf. id. at 1023-26

(describing how defendants suppressed x-rays and reports that

constituted the "only direct evidence of the thalamic injury").

Similarly, MacMillan's contention that her reliance on the

statements of the medical personal at Keesler prevented the

accrual of her cause of action is unpersuasive. MacMillan is

correct in noting that Nicolazzo v. United States, 786 F.2d 454

(1st Cir. 1986), and the other cases she cites do indicate that

the cause of action does not accrue until the plaintiff receives

a correct diagnosis. Even assuming, however, that MacMillan's

reliance on the statement made at Tanya's initial discharge from

11
the hospital--"the tests results showed no evidence of brain

damage as a result of the events of her birth"--was reasonable,

Dr. Pollard provided an accurate diagnosis in February of 1989,

and the claim accrued no later than then.

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 IV. CONCLUSION

For the foregoing reasons, the decision of the district

court is AFFIRMED.

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