McCoy v. United States, 264 F.3d 792 (8th Cir. 08/31/2001)

[1] U.S. Court of Appeals, Eighth Circuit

[2] No. 00-1375

[3] 264 F.3d 792, 2001

[4] August 31, 2001

[5] STEVEN MCCOY, PLAINTIFF - APPELLANT,
v.
UNITED STATES OF AMERICA, DEFENDANT - APPELLEE.

[6] Before McMILLIAN, Richard S. Arnold, and Bye, Circuit Judges.

[7] The opinion of the court was delivered by: Bye, Circuit Judge.

[8] Appeal from the United States District Court for the Western District of Missouri

[9] Submitted: November 13, 2000

[10] Steven McCoy appeals from the grant of summary judgment to the government on his claim pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2672. We affirm.

[11] I.

[12] McCoy was convicted of drug conspiracy charges and incarcerated in various federal penal facilities from 1993 to April 16, 1999. Sometime in 1994, he was bitten on the right leg by a spider and he sought treatment at the infirmary. Several attempts to treat the infection failed. Eventually, doctors diagnosed peripheral vascular disease and attempted an arterial bypass. When this too failed, McCoy's right leg was amputated in 1995.

[13] In June 1996, McCoy noticed lesions on the heel of his left foot. He again sought treatment, and again the treatment was unsuccessful. McCoy was transferred to several different medical facilities, and received treatment from several different doctors. While one doctor had recommended that he be evaluated for vascular disease, he did not receive treatment for vascular disease in the left leg until January 1997. A vascular bypass and other attempts to clear the artery failed. He developed gangrene in his left foot. On January 23, 1997, doctors at the United States Medical Center for federal prisoners in Springfield, Missouri amputated his left leg below the knee.

[14] Subsequent to the amputation, the stump wound on McCoy's left leg did not heal. He underwent several more surgeries to close the wound, to attempt skin grafts, for a stump revision and for a bone resection. In March 1997, his doctors first began to suspect Buerger's disease; *fn1 however, they did not inform him of this suspicion until April 1997. He was not advised to quit smoking, which is the only known effective treatment for Buerger's disease. He continued to receive treatment for complications from the amputation until his release from the federal system in April 1999.

[15] On February 1, 1999, McCoy filed an administrative claim with the Bureau of Prisons (BOP). He alleged malpractice which resulted in the amputation of his left leg. *fn2 McCoy's claim also states that "[s]ince that time he has suffered from repeated open sores in the stumps of both legs and he has undergone several procedures for debridement and revision of open areas on his stumps." The BOP rejected the claim as untimely, since the amputation occurred more than two years before McCoy filed his claim.

[16] McCoy filed suit in federal district court on August 5, 1999, alleging negligent failure to diagnose and treat vascular disease resulting in the amputation of his left leg, past and ongoing pain and suffering, medical bills, permanent disability, loss of future wages, and loss of enjoyment of life. The government filed a motion for summary judgment, asserting that his claim was time-barred since he had filed his administrative claim more than two years after the amputation. McCoy argued that the "continuing treatment" doctrine tolled the limitations period. The district court originally accepted McCoy's argument, but later granted the government's motion for reconsideration and entered summary judgment for the government. McCoy now appeals the sole issue of whether the statute of limitations bars his action.

[17] II.

[18] An action may not be commenced in federal court under the FTCA unless the plaintiff has first presented his claim to the appropriate federal agency, and that claim has been denied. See 28 U.S.C. § 2675(a). Further, "[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. § 2401(b). A plaintiff's compliance with the two-year limitations period is a jurisdictional prerequisite, since the FTCA acts as a waiver of the federal government's sovereign immunity. See Walker v. United States, 176 F.3d 437, 438 (8th Cir. 1999).

[19] The Supreme Court has held that an FTCA claim for medical malpractice accrues when a plaintiff becomes aware of his injury and its probable cause. United States v. Kubrick, 444 U.S. 111, 122 (1979). The district court found that McCoy's claim was barred by the statute of limitations in § 2401(b) because McCoy knew of the government's "breach of duty" as soon as his leg was amputated. The district court also determined that McCoy's claim of continuing treatment had "nothing to do with the claim." It is undisputed that McCoy filed his administrative claim more than two years after the amputation of his left leg.

[20] McCoy argues that his claim is not time-barred. He argues that his administrative claim alleged more than mere negligence in the amputation of his leg, and included a claim of negligence in failing to diagnose and treat his Buerger's disease. Because the entire course of diagnosis and treatment including the post-amputation treatment of the stump wounds was negligent, he argues that the "continuous treatment" doctrine tolls the statute of limitations during that period. As a matter of policy, McCoy asserts that he should not have to file a claim against his doctors while he is being continuously treated by those same doctors.

[21] The government asserts that McCoy's claim did not allege malpractice in the diagnosis and treatment of Buerger's disease, but only malpractice resulting in the loss of his leg, and that he is bound by the claims made in his administrative claim. Negligent treatment of his vascular disease thus cannot be raised in federal court, because McCoy did not raise it in his administrative claim and therefore did not exhaust his administrative remedies with regard to that claim. The government further argues that since McCoy did not allege continuing negligent treatment in his administrative claim, the continuous treatment doctrine will not apply. Because the date his leg was amputated was a date certain, and because there could be no continuing "treatment" to correct the error resulting in the loss of his leg, he was therefore required to file his administrative claim within two years of the amputation.

[22] The continuous (or continuing) treatment doctrine will, in certain cases, toll the statute of limitations during the course of treatment. There are two variations of the continuing treatment doctrine in use in the circuits. We have previously examined both. See Wehrman v. United States, 830 F.2d 1480 (8th Cir. 1987); Reilly v. United States, 513 F.2d 147 (8th Cir. 1975).

[23] In Wehrman, we described the doctrine as follows: "Under the continuing treatment doctrine, a plaintiff's cause of action does not accrue until the tortious continuing treatment ends, even if the plaintiff is aware of the facts constituting negligence before that time." Id. at 1483. The panel specifically noted that "'where the tortious conduct is of a continuous nature, the Kubrick rule does not apply.'" Id. at 1485 (quoting Gross v. United States, 676 F.2d 295, 300 (8th Cir. 1982)). Wehrman provides no assistance to McCoy because he failed to raise an issue of continuing negligent treatment in his administrative claim. *fn3 A litigant may not base any part of his tort action against the United States on claims that were not first presented to the proper administrative agency. See Provancial v. United States, 454 F.2d 72, 74-75 (8th Cir. 1972). Because McCoy did not plead continuous negligent treatment, he has not tolled the statute under the Wehrman rule.

[24] A different version of the continuing treatment doctrine has been adopted in other circuits, although not in ours. These circuits do not require that the entire course of treatment be negligent, but only that some portion of the ongoing treatment be negligent. The statute of limitations may be tolled during subsequent continuing treatment, even if non-negligent. See, e.g., Otto v. Nat'l Inst. of Health, 815 F.2d 985, 988 (4th Cir. 1987) ("[W]here there has been a course of continuous medical treatment, a claim may not accrue until the end of that course of treatment, if the treatment has been for the same illness or injury out of which the claim for medical malpractice arose.") This version of the doctrine permits a wronged patient to benefit from his physician's corrective efforts without the disruption of a malpractice action. Id.; see also Ulrich v. Veterans Admin. Hosp., 853 F.2d 1078, 1080-81 (2nd Cir. 1988) (discussing rationales for continuous treatment doctrine). These circuits do not limit the continuous treatment doctrine to continuously negligent treatment.

[25] We have rejected the form of the doctrine discussed in Otto. We have held that the continuing treatment doctrine does not toll the statute of limitations until treatment is complete if "the claimant is aware of the acts constituting negligence." Reilly, 513 F.2d at 150. In this case, the district court determined that McCoy knew of his doctors' breach of duty "as soon as the leg was amputated." We cannot say that this determination is clearly erroneous. See Walker, 175 F.3d at 438. Therefore, as in Reilly, "[t]he fact that the appellant continued to receive treatment for her condition well into the two-year period prior to the filing of [his] administrative claim does not change the result here." Id.

[26] III.

[27] Because McCoy is unable to toll the limitations period, his untimely claim did not effectuate a waiver of the government's sovereign immunity. For this reason, we affirm the decision of the district court.

[28] McMILLIAN, Circuit Judge, dissenting.

[29] I respectfully dissent. I think that there are two versions of the continuing treatment doctrine, one which postpones the accrual of the cause of action and a second which tolls the running of the statute of limitations. Because the district court concluded-- mistakenly, in my view, as I explain below-- that McCoy did not raise a claim of continuing negligence, the following discussion is necessarily speculative.

[30] TWO VERSIONS

[31] First, continuing treatment may postpone the accrual of a cause of action. Ordinarily, "[a]n FTCA action accrues when the plaintiff in the exercise of reasonable diligence knows both the existence and the cause of his [or her] injury." Ulrich v. United States, 853 F.2d 1078, (2d Cir. 1988), citing United States v. Kubrick, 444 U.S. 111, 122-25 (1979) (rejecting argument that FTCA claim does not accrue until plaintiff knows that acts inflicting injury may constitute negligence). However, as noted by the majority opinion, "[u]nder the continuing treatment doctrine, a plaintiff's cause of action does not accrue until the tortious continuing treatment ends, even if the plaintiff is aware of the facts constituting negligence before that time." Slip op. at 5, citing Wehrman v. United States, 830 F.2d 1480, 1483 (8th Cir. 1987). "Since usually no single incident in a continuous chain of tortious activity can 'fairly or realistically be identified as the cause of significant harm,' it seems proper to regard the cumulative effect of the conduct as actionable." Page v. United States, 729 F.2d 818, 821-22 (D.C. Cir. 1984), citing Fowkes v. Pennsylvania R.R., 264 F.2d 397, 399 (3d Cir. 1959). As noted by the majority opinion, this circuit has rejected the argument that Kubrick overruled the continuing treatment doctrine, slip op. at 5, citing Wehrman, 830 F.2d at 1486, and has held that "where the tortious conduct is of a continuing nature, the Kubrick rule does not apply." Id., citing Gross v. United States, 676 F.2d 295, 300 (8th Cir. 1982).

[32] Second, continuing treatment may toll the running of the statute of limitations. "[W]here the plaintiff is in the continuing care of the negligent actor for the same injury out of which the FTCA cause of action arose, the statute of limitations may be tolled under certain circumstances until the end of the course of treatment." Ulrich, 853 F.2d at 1080 (explaining two rationales that support the continuing treatment doctrine are, first, that it is not reasonable to expect a patient who is in the continuing care of a doctor to discover that the doctor's acts may be the cause of his or her injury and, second, that it is not reasonable to expect a patient being treated by a doctor or hospital to interrupt corrective treatment by instituting suit against either while under their continuing care).

[33] Here, McCoy argued that his claim was not based on a single incident of negligent conduct. Rather, as noted by the majority opinion, he argued that the entire course of diagnosis and treatment of his peripheral vascular disease, or Buerger's disease, including the amputation and post-amputation treatment, was negligent. Slip op. at 4.

[34] ADMINISTRATIVE CLAIM

[35] The majority opinion concluded that McCoy did not raise an issue of continuing negligent treatment in his administrative claim and therefore could not rely on the continuing treatment doctrine later in court. Id. at 5 (FTCA litigant must raise claim first in administrative claim). I disagree. "A valid claim need do no more than provide sufficient information as to allow an agency to process a claim administratively." Dundon v. United States, 559 F. Supp. 469, 477 (E.D.N.Y. 1983). My reading of the record does not support the district court's determination that the administrative claim did not include a claim for continuing negligent treatment, that is, for failure to properly diagnose and treat the underlying peripheral vascular disease.

[36] The administrative claim and the complaint do not refer to "Buerger's disease" by name; however, Buerger's disease is one type of peripheral vascular disease, see Brief for Appellant at 3 n.4 (citations omitted) (noting that Buerger's disease accounts for approximately 5% of all cases of peripheral vascular disease), and each document refers many times to "peripheral vascular disease." The administrative claim alleged that government doctors and others negligently failed to appreciate the seriousness of McCoy's left heel injury and to treat it in a timely and adequate fashion, failed to treat his pre-existing peripheral vascular disease, failed to timely order certain tests which would have revealed the presence of significant peripheral vascular disease, failed to read or appreciate the significance of his medical history (which included pre-existing peripheral vascular disease and the amputation of his right leg in 1995), and failed to refer him to a vascular disease specialist in a timely manner. See Joint Designated Record at 55 (item 8 in attachment to administrative claim setting forth basis for claim). Although only the complaint expressly alleged continuing negligence, the administrative claim was sufficiently clear to put the government on notice that the claim was based on a continuous course of treatment rather than a single incident. The language of the Federal Bureau of Prisons regional counsel's letter denying the administrative claim supports this conclusion. See id. at 57 (referring to administrative claim as one that prison staff provided "sub-standard medical treatment resulting in the amputation"); Dundon v. United States, 559 F. Supp. at 477 (rejecting government's argument that administrative claim, which was largely directed at alleged negligence in diagnosis and failure to treat but which also explicitly referred to an operation, alleged merely negligence in misdiagnosis and did not include malpractice in surgery).

[37] The complaint essentially repeated those allegations. The complaint alleged that government doctors and others were "negligent in the care and treatment of [McCoy] beginning on or about June 25, 199[6, when he reported his left heel injury to prison medical personnel,] and continuing thereafter until [he] was released from federal confinement in April of 1999," in failing to make an accurate and complete diagnosis of his condition, failing to appreciate the seriousness of his left heel lesion and to treat it in a timely and adequate fashion, failing to treat his pre-existing peripheral vascular disease, failing to timely order certain tests which would have revealed the presence of significant peripheral vascular disease, failing to refer him to a vascular specialist in a timely manner, failing to prescribe adequate and proper medications, and failing to advise him concerning the hazards of tobacco use and its debilitating effects on his pre-existing peripheral vascular disease. See id. at 2-3 (¶ 8 of the complaint). The final point-- advice to stop smoking-- is significant because abstinence from all tobacco use is apparently the only known method of arresting Buerger's disease. See Brief for Appellant at 3 n.4 (citation omitted).

[38] ACCRUAL OF CAUSE OF ACTION

[39] Thus, because I would hold that the issue of continuing treatment was raised in both the administrative claim and the complaint, I would apply the continuing treatment doctrine to determine when the cause of action accrued.