Edwards v. United States

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RUTH ANN EDWARDS,
Plaintiff-Appellant,

v. No. 98-2075

UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
J. Calvitt Clarke, Jr., Senior District Judge.
(CA-98-246-2)

Submitted: February 2, 1999

Decided: February 22, 1999

Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Gerald H. Baker, BAKER, GARBER, DUFFY & PEDERSEN,
Hoboken, New Jersey, for Appellant. Helen F. Fahey, United States
Attorney, Lawrence R. Leonard, Assistant United States Attorney,
Norfolk, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Ruth Ann Edwards filed suit under the Federal Tort Claims Act
(FTCA), 28 U.S.C. §§ 2671-2680 (1994), alleging medical malprac-
tice committed by medical personnel at the United States Naval Hos-
pital in Portsmouth, Virginia. The district court granted summary
judgment to the United States on the ground that the action was
barred by FTCA's two-year limitations period. In a subsequent order,
the court denied Edwards' motion for reconsideration. Edwards
appeals both orders. Because we agree that Edwards' complaint was
not timely filed, we affirm the district court's orders.

On February 6, 1990, Edwards, a civilian dependent of enlisted
naval personnel, fractured both wrists while working at the United
States Naval Base on Guantanamo Bay, Cuba. She received immedi-
ate treatment at the clinic in Guantanamo Bay, but continued to expe-
rience pain, swelling, and redness. As a result, she was referred to
Portsmouth Naval Hospital (PNH) and underwent surgery there on
August 29, 1990. At this time, doctors inserted radial styloid pins into
her right wrist and placed her arm in a cast. Edwards, however, began
to experience several post-surgical problems with her right arm and
wrist. Complaining of swelling in her right hand and tightness of the
cast, on September 16, 1990, Edwards sought treatment at a civilian
hospital in New Jersey. On October 12, 1990, she returned to PNH
to have a pin reinserted to its proper position after it rotated in her
right wrist. At the end of the same month, she returned for treatment
at PNH after one of the pins became loose and caused an infection.
While removing her cast, a PNH employee "ripped out" one of the
pins in Edwards' wrist.

Because of the recent complications and recurring pain, Edwards
was admitted again to PNH for treatment. Edwards checked out of the
hospital on November 1, 1990. During her deposition, she stated that
she told the nurse that she was "[b]asically, not getting the treatment
that [she] should be getting." She further testified that she stopped
going to PNH when "they tore out the pin improperly and caused
infection." On November 2, 1990, Edwards consulted with Dr. J.
Leddy, a civilian physician in New Jersey, who ultimately performed

2
surgery to remove the remaining pins in her right wrist. During
November, however, she was still unable to move her right wrist.

On January 31, 1991, Edwards consulted with another civilian phy-
sician, Dr. Scott Jaegar, for persistent discomfort in her right wrist.
After examination, Dr. Jaegar informed Edwards that her wrist prob-
lems were due to the surgery and pins inserted at PNH. In his opinion,
PNH personnel negligently inserted one of the pins into her tendons
which caused the tendon to fray and ultimately resulted in the loss of
movement of the wrist. On January 29, 1993, Edwards filed a Notice
of Claim with the Department of the Navy alleging improper treat-
ment from PNH personnel. The Navy denied the claim, and this
FTCA suit ensued.

Summary judgment is appropriate when there is no genuine issue
of material fact and the moving party is entitled to judgment as a mat-
ter of law. See Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398
U.S. 144, 157 (1970). On summary judgment, inferences to be drawn
from the underlying facts must be viewed in the light most favorable
to the party opposing the motion. See Matsushita Elec. Indus. v.
Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). Summary judg-
ments are reviewed de novo on appeal. See Higgins v. E.I. DuPont de
Nemours & Co., 863 F.2d 1162, 1166-67 (4th Cir. 1988).

The FTCA provides for a limited waiver of the sovereign immunity
of the United States. See Honda v. Clark, 386 U.S. 484, 501 (1967).
A condition of that waiver, however, is compliance with the FTCA's
statute of limitations. See Muth v. United States, 1 F.3d 246, 249 (4th
Cir. 1993). Under 28 U.S.C. § 2401(b) (1994), a tort claim against the
United States is barred unless presented in writing to the appropriate
federal agency within two years after the claim accrues or unless the
action is begun within six months after final agency action. The two-
year limitations period is jurisdictional and may not be waived. See
Ahmed v. United States, 30 F.3d 514, 516 (4th Cir. 1994). The claim
accrues within the meaning of § 2401(b) when the plaintiff knows or,
in the exercise of due diligence, should have known of both the exis-
tence and cause of her injury. See United States v. Kubrick, 444 U.S.
111, 120 (1979); Kerstetter v. United States, 57 F.3d 362, 364 (4th
Cir. 1995); Gould v. United States Dep't of Health & Human Servs.,
905 F.2d 738, 742 (4th Cir. 1990). Plaintiff need only know "the criti-

3
cal facts that he has been hurt and who has inflicted the injury;" it is
not necessary that the plaintiff know the "precise medical reason for
the injury" for the cause of action to accrue. Kubrick, 444 U.S. at 122;
Kerstetter, 57 F.3d at 364.

We agree with the district court that Edwards knew about her
injury and the "critical facts" as to its cause at the latest by November
1990. She underwent surgery at PNH and developed post-surgical
complications which did not lessen after repeated medical consulta-
tions. When she again received what she herself found to be improper
and inadequate treatment at PNH, she checked out. Even though the
pins were removed in November 1990, she was still unable to move
her right wrist. In light of these facts, we find that Edwards was aware
of her injury and that it was caused by the treatment she received at
PNH by November 1990.

Edwards argues that she did not know that the injury to her right
wrist was caused by negligent insertion of one of the pins by PNH
medical personnel until she consulted with Dr. Jaegar in January
1991. We rejected a similar argument in Kerstetter, holding that it is
not necessary that the injured party know exactly what went wrong
during a medical operation, so long as the individual knows the "criti-
cal fact" of "who has inflicted the injury." Kerstetter, 57 F.3d at 365.
For the reasons stated above, we conclude that Edwards had knowl-
edge of the injury and the "critical facts" as to who inflicted that
injury by November 1990, thereby triggering the two-year statute of
limitations. See Kubrick, 444 U.S. at 122. Because Edwards filed her
FTCA claim well after the expiration of the two-year period, the dis-
trict court appropriately granted summary judgment to Defendant, and
denied Edwards' motion for reconsideration. Accordingly, we affirm
the district court's orders. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.

AFFIRMED

4