Individually and as Guardian and Conservator
of the Estate of Brooke A. Kreutzer, a minor,
UNITED STATES OF AMERICA,
[2002 DSD 21]
Glen H. Johnson, Michael C. Loos
Johnson, Eiesland, Quinn, Huffman & Clayborne, Rapid City, SD
Attorneys for Plaintiff
Matthew L. Zabel, Alison Barnes
US Dept of Justice, Washington, DC
Attorneys for Defendant
Hon. Karen E. Schreier, United States District Judge
[¶1] Plaintiff, Dawn Kreutzer, brings this action on behalf of her daughter, Brooke Kreutzer, under the Federal Tort Claims Act. The complaint alleges that Brooke received negligent medical care at the time of her birth on October 3, 1994. Brooke suffers from a brain injury. An administrative claim was filed on November 5, 1997. The government contends that the administrative claim was not filed within two years of the accrual of the claim and is, therefore, barred under the statute of limitations. The parties agreed to bifurcate the statute of limitations issue from the remaining issues. A court trial was held on the statute of limitations issue on May 28, 2002. After reviewing the pertinent case law and the evidence, the court determines that the claim was timely filed and the action may proceed.
[¶2] Jason and Dawn Kreutzer were married in 1988. In 1993, Jason, a member of the United States Air Force, was transferred to Ellsworth Air Force Base near Rapid City, South Dakota. In 1994, Jason and Dawn learned that they were expecting a child. Dawn received prenatal care from Dr. Kenneth Diamond, an Air Force physician. Dawn was due October 1, 1994.
[¶3] In the early morning hours of October 3, 1994, Dawn awoke with a sharp pain in her side. Dawn noticed that the baby was not kicking as much as normal. She called the hospital and spoke with an obstetrics nurse who told her to drink something cold. Upon doing as instructed, Dawn felt the baby move, but still not as normal. Dawn called the nurse again. Because Dawn was scheduled for an 8:30 a.m. appointment with Dr. Diamond, the nurse told her to just wait.
[¶4] At the appointment, Dr. Diamond checked the baby's heart rate and decided to continue monitoring Dawn. The monitoring continued throughout the morning. At noon, Jason and Dawn were told to go for lunch and return to the hospital afterwards. Upon their return, an ultrasound was performed. A non-stress test and a biophysical profile were also performed. (Exhibit 9). These tests showed decreased tone and decreased movements. The external monitoring showed that there were severe and variable decelerations in the heartbeat. Jason and Dawn both testified that they were not told of the results of the testing or monitoring.
[¶5] At approximately 6 p.m. that evening, Dr. Diamond administered a drug to assist in the birthing process. Dawn continued to be monitored. At approximately 7:30 p.m., Dr. Benson, a consulting physician, came into the room, looked at the monitor paper, and stated, "Take her now." An anesthesiologist administered an epidural to Dawn and informed her that she would be having a caesarean section. Brooke was born at approximately 9:20 p.m. According to the doctor's notes, Brooke was delivered approximately twelve hours after the onset of decreased fetal movements. (Exhibit 8).
[¶6] Jason testified that Brooke looked bluish-gray when she was born and was not moving her arms and legs a great deal. When he inquired about her color, Jason was told that babies delivered by caesarian section do not look normal because they do not have to fight to come out. An hour later, Brooke still appeared pale in color and was not moving her arms and legs. (fn1) Approximately two hours later, while Jason was with Brooke in the nursery, Brooke stopped breathing. Jason notified Dr. Diamond and then was asked to leave the nursery. Because the base hospital was unable to deal with infant respiratory problems, Brooke was transferred to Rapid City Regional Hospital.
[¶7] At Rapid City Regional Hospital, Brooke was admitted to the neo-natal intensive care unit where she stayed for 22 days. Brooke's primary care physician was Dr. Martin Spahn, and her neonatologist was Dr. Stephen Kovarik. Dr. Kelts, a neurologist, examined Brooke and diagnosed her with severe, non-progressive, hypoxic/ischemic encephalopathy. Dr. Spahn, Dr. Kovarik, Dr. Kelts, and later Brooke's pediatrician, Dr. Lynette Tun-Martin, told Dawn and Jason that Brooke had suffered from a lack of oxygen to her brain and that, as a result, she would suffer mental and physical delays. Dawn testified that she and Jason were told that Brooke would be delayed as much as three to six months. All the doctors testified that they would not portray an overly pessimistic scenario to the parents of a child with a brain injury. In fact, the doctors all testified that they would tell the parents to take a "wait and see" attitude because they are unable to predict the effect or extent of the injury due to the brain continually regenerating and adapting. None of the doctors told Dawn and Jason that Brooke had cerebral palsy. Furthermore, none of the doctors informed Dawn and Jason that Brooke's injuries were due to a delay in her delivery.
[¶8] Brooke was also treated for a plethora of other problems during her stay at Rapid City Regional, including seizure activity, hypoglycemia, respiratory failure, cerebral hemorrhages and leukomalacia, disseminated intravascular coagulation, hyperbilirubinemia, hepatic dysfunction, acute tubular necrosis, and hypotension. (Exhibit 8). Each of these problems was considered to be resolved or under control at the time of Brooke's discharge on October 21, 1994.
[¶9] Upon Brooke's discharge from the hospital, she was evaluated for physical therapy. Jason and Dawn were encouraged to contact the Douglas School System so Brooke could participate in the early intervention program. Brooke received physical and occupational therapy and other assistance through that program within two months of Brooke's discharge. Dawn also applied for Social Security benefits on Brooke's behalf to assist in paying the medical bills.
[¶10] In May of 1995, Brooke was seen by Audrey Doyle from Black Hills Rehabilitation Hospital for a social services evaluation. According to Doyle's notes of the meeting, Dawn told Doyle, "No one has been able to answer why this happened." Dawn told Doyle that she was concerned about whether she did something to contribute to the cause of Brooke's injuries. (Exhibit 12, p. 3). Doyle's handwritten notes indicate that Dawn said it was a normal, uncomplicated delivery.
[¶11] Throughout the numerous evaluations and doctor visits during Brooke's first year of life, it was clear that Brooke was suffering delays, but she was constantly improving and surprising her doctors. Brooke suffered from microcephaly. She also struggled with seizure activity. Brooke exhibited a weakness on her left side. In May of 1995, Brooke was diagnosed with right hemianopia and possible amblyopia in the left eye associated with an extropia and central nervous system anomalies. (Exhibit 70).
[¶12] Brooke underwent a comprehensive pediatric evaluation in May of 1995. Though she was approximately seven months in age, the results showed Brooke's functional age to be two to three months. (Exhibits 38, 39, 40). The speech language pathologist who participated in the evaluation testified, "[B]ut this is a very, very young age to be predicting anything on. You know, normally we don't like to do that until they get to be like two, three, four years old where they are actually being able to function, and you can do more on how ready they are to do things, like their cognition, their language development, gross and fine motor skills." (Diane Wilson Dep., p. 33, lines 16-22). Even with her delays, Brooke continued to achieve developmental milestones as she grew.
[¶13] Throughout this time, Jason and Dawn had several conversations with Dr. Diamond regarding the cause of Brooke's injuries. Dr. Diamond remained a treating physician for Brooke, seeing her for common childhood illnesses such as colds. He testified that on three or four occasions Jason and Dawn asked him what happened and why Brooke did not have enough oxygen. Each time he responded that he couldn't tell them why she didn't have adequate oxygen. Because she wanted to have more children, Dawn asked Dr. Diamond whether it was something she did during the pregnancy. Dr. Diamond told her he did not know the cause, but he did assure her that it was not caused by her standing on her feet too long as a bank teller.
[¶14] While Dr. Kovarik does not specifically recall Dawn and Jason inquiring about the cause of Brooke's condition, he testified that he is sure they asked in various ways. Dawn recalls asking Dr. Kovarik whether the lack of oxygen to the brain could have been caused by Brooke sitting on the umbilical cord. He told her that he didn't know what caused the lack of oxygen or if it was caused by Brooke sitting on the umbilical cord.
[¶15] As Brooke grew older, the extent and severity of her injuries became more apparent. In November of 1996, Brooke (age 26 months) was seen by a neurologist in Sioux Falls, South Dakota, who diagnosed her with cerebral palsy. This diagnosis surprised Jason and Dawn and conveyed to them the serious and permanent nature of Brooke's problems.
[¶16] In October of 1997, Dawn was speaking with a friend about Brooke's birth. Her friend suggested that the doctors at the base hospital did not deliver Brooke as quickly as they should have and that Dawn should contact an attorney. Dawn acted upon the advice of her friend and contacted an attorney. An administrative claim was filed on November 7, 1997.
[¶17] The Federal Tort Claims Act states in part 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 USC § 2401(b). "Failure to comply [with the statute of limitations] is merely an affirmative defense which the defendant has the burden of establishing." (fn2) Schmidt v. United States, 933 F2d 639, 640 (8th Cir. 1991). See also Slaaten v. United States, 990 F2d 1038, 1043 n.5 (8th Cir. 1993). The government, therefore, has the burden of showing that Dawn knew, or should have known, of the injury to Brooke and its cause more than two years before the administrative claim was filed.
[¶18] "[T]he general rule under the [FTCA] has been that a tort claim accrues at the time of plaintiff's injury." United States v. Kubrick, 444 US 111, 120, 100 SCt 352, 358, 62 LEd2d 259 (1979). Medical malpractice cases, however, are an exception to this rule. See Wehrman v. United States, 830 F2d 1480, 1483 (8th Cir. 1987). In medical malpractice cases, a claim "accrues when the injured person knows or reasonably should know both the existence and cause of his injury." Knudsen v. United States, 254 F3d 747, 751 (8th Cir. 2001).
[¶19] The court must first determine when Dawn knew or should have known of the existence of the injury. The injury to Brooke occurred on the day she was born, October 3, 1994. Within weeks of her birth, Dawn became aware that Brooke was suffering injuries from a lack of oxygen. The fact that Dawn did not know the extent or severity of Brooke's injuries is inconsequential. "Misapprehension of the seriousness or permanency of an injury does not toll the statute of limitations under the FTCA." K.E.S. v. United States, 38 F3d 1027, 1030 (8th Cir. 1994).
[¶20] The second question is when Dawn knew, or reasonably should have known, the cause of Brooke's injuries. Dawn knew within the first few weeks of Brooke's life that Brooke's injuries were caused by a lack of oxygen. Dawn did not know, however, what caused the lack of oxygen. "The limitations period 'begins to run either when the government cause is known or when a reasonably diligent person (in the tort claimant's position) reacting to any suspicious circumstances of which he might have been aware would have discovered the government cause - whichever comes first.'" Garza v. United States Bureau of Prisons, 284 F3d 930, 934-35 (8th Cir. 2002) (quoting Drazan v. United States, 762 F2d 56, 59 (7th Cir. 1985)). "The assessment of whether a plaintiff has acted reasonably is an objective one and the conclusion varies with the facts of each particular case." Garza, 284 F3d at 935.
[¶21] The court finds that Dawn and Jason were not informed that Brooke was in distress prior to her birth or during the birthing process and therefore, should not reasonably have known that the government caused the lack of oxygen. Dawn was on a monitor during the day, but that is not uncommon. The videotape taken by a nurse of Jason and Dawn immediately before the delivery shows relaxed parents and nursing staff. (Exhibit 11). Both Jason and Dawn testified that Dr. Diamond and Dr. Benson were laid back during the delivery and chatted about golf, music, and other basic conversation topics. Immediately after the delivery, Brooke was placed in a crib in the nursery, and she was breathing on her own without oxygen or a ventilator. The medical personnel did not express any concern to Dawn or Jason about Brooke's color, and in fact, reassured Jason that her appearance was because Brooke had been delivered by caesarian section. Furthermore, the evidence indicates that the medical personnel at the time of delivery were not concerned about lack of oxygen to Brooke. Dawn was not given oxygen during the birthing process and Brooke was not given oxygen immediately after the delivery. If medical personnel did not identify that Brooke was suffering from lack of oxygen during and after the birth process, then it is unreasonable to assume that Dawn and Jason were aware that Brooke was in distress due to lack of oxygen during the birthing process. Without knowledge that Brooke was in distress pre-delivery and during delivery, a reasonably diligent person would not have suspected iatrogenic (doctor-caused) harm. Therefore, the court finds that Dawn did not know, nor should she have known, of the iatrogenic cause of Brooke's injuries at the time of Brooke's birth.
[¶22] A physical therapy evaluation of Brooke when she was six weeks old notes that the parents "state that there was some lack of oxygen during the birthing process." The government contends that this statement shows that Dawn knew of the potential iatrogenic harm and that this would have triggered the statute of limitations. The Eighth Circuit has held that "[a]lthough '[a] claim does not accrue when a person has a mere hunch, hint, suspicion, or rumor of a claim, ... such suspicions do give rise to a duty to inquire into the possible existence of a claim in the exercise of due diligence.'" Garza, 284 F3d at 935 (quoting Kronisch v. United States, 150 F3d 112, 121 (2d Cir. 1998)). The record reflects that Dawn did exercise reasonable diligence by asking several of Brooke's doctors what caused the lack of oxygen. Each time she asked, she was told that there was no explanation. "The plaintiff can only be charged with the knowledge that a particular medical procedure caused [her] injuries 'when by "inquiry among doctors with average training and experience in such matters" the plaintiff could have discovered the cause.'" Osborn v. United States, 918 F2d 724, 733 (8th Cir. 1990). Furthermore, "a plaintiff is entitled to rely on the advice of [her] doctors." Id. The court finds that Dawn acted with reasonable diligence in trying to determine the cause of Brooke's injuries.
[¶23] The government also contends that Dawn had full access to the medical records and could have requested those records and either read them or turned them over to a medical or legal advisor. This court adopts the reasoning of the Seventh Circuit Court of Appeals in Drazan v. United States, 762 F2d 56, 59 (7th Cir. 1985), that the law does not require a plaintiff to request her hospital records to determine if she has been wronged by the doctors. In addition, as stated previously, Dawn had the right to rely on the advice given to her by the doctors - that there was no explanation for the lack of oxygen.
[¶24] The court finds that the statute of limitations began to run in November of 1996, when Brooke was given a new diagnosis of cerebral palsy. It was upon this event - the discovery that Dawn had not been receiving complete information from Brooke's previous doctors - that she should have known of the possibility that there was some iatrogenic harm. As the Eighth Circuit stated in Reilly v. United States, 513 F2d 147, 150 (8th Cir. 1975), "when the facts [become] so grave as to alert a reasonable person that there may have been negligence related to the treatment received, the statute of limitations [begins] to run ... ." As a result, the court finds that the administrative claim filed on November 7, 1997, was filed within two years of the accrual of the claim and plaintiff may proceed on her cause of action.
1. A videotape of Brooke shortly after her birth (Exhibit 111) shows her lying in a hospital crib without extra oxygen or a ventilator to assist with breathing.
2. Defendant contends that compliance with the two-year limitations period is a jurisdictional prerequisite based on McCoy v. United States, 264 F3d 792, 794 (8th Cir. 2001). McCoy, however, is at odds with prior decisions of the Eighth Circuit which have held that the FTCA's statute of limitations is not jurisdictional and that failure to comply with it is merely an affirmative defense that defendant has the burden of proving. See Schmidt v. United States, 933 F2d 639, 640 (8th Cir. 1991) and Slaaten v. United States, 990 F2d 1038, 1043 n.5 (8th Cir. 1993). One panel of the Eighth Circuit cannot overrule an opinion filed by another panel. Only the Eighth Circuit sitting en banc has the authority to overrule a panel decision. See Brown v. First Nat'l Bank in Lenox, 844 F2d 580, 582 (8th Cir.), cert. dismissed, 487 US 1260, 109 SCt 20, 101 LEd2d 971 (1988).