Victor Herrera-Diaz, a Minor, by and Through His Guardian, Janet Mary Herrera-Diaz v. United States of America, Department of the Navy

845 F.2d 1534 Victor HERRERA-DIAZ, a Minor, By and Through his Guardian, Janet Mary HERRERA-DIAZ, Plaintiff-Appellant, v. UNITED STATES of America, DEPARTMENT OF the NAVY, Defendant-Appellee. No. 86-6242. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 10, 1987. Decided May 4, 1988. Peter J. McNulty, Law Offices of Peter J. McNulty, Bel Air, Cal., for plaintiff-appellant. Kathryn A. Snyder, Asst. U.S. Atty., Civil Div., San Diego, Cal., for defendant-appellee. Appeal from the United States District Court for the Southern District of California. Before WALLACE, NORRIS and THOMPSON, Circuit Judges. DAVID R. THOMPSON, Circuit Judge: 1 Victor Herrera-Diaz, a youngster who suffers from cerebral palsy, appeals from a summary judgment dismissing his action against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2671 et seq. The district court concluded that Victor's medical negligence claim which he filed in 1984 was barred by the two-year statute of limitations of 28 U.S.C. Sec. 2401 (b). The court determined the claim accrued in 1978, approximately six months after Victor was born, at which time Victor's mother discovered that his…

Victor Herrera-Diaz, a youngster who suffers from cerebral palsy, appeals from a summary judgment dismissing his action against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. The district court concluded that Victor’s medical negligence claim which he filed in 1984 was barred by the two-year statute of limitations of 28 U.S.C. § 2401 (b). The court determined the claim accrued in 1978, approximately six months after Victor was born, at which time Victor’s mother discovered that his cerebral palsy probably was caused by a lack of oxygen to his brain at or near the time of his birth.

Victor argues on appeal that (1) his cause of action did not accrue until 1984 when his mother first learned that negligence of Navy medical personnel may have caused his injury; and (2) even if the claim accrued earlier, the government fraudulently concealed and misrepresented the true cause of Victor’s injury and this tolled the statute of limitations. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

I

FACTS

Victor was born two months premature on November 8,1977 at the Naval Regional Medical Center at Camp Pendleton, California.…

dissenting:

This case requires us to decide when a layperson will be deemed to know enough about the cause of a specific medical condition to be on notice that she may have been the victim of tortious conduct by medical personnel. Our precedents establish a clear-sounding rule: An action for medical malpractice under the FTCA accrues when the prospective plaintiff knew or should have known of her injury and its cause. Applying this standard, the majority holds that the statute of limitations started to run when Mrs. Herrera-Diaz was told six months after Victor’s birth that a “lack of oxygen” at or near the time of delivery may have “caused” his cerebral palsy. At 1537.

I agree with the majority that whether Victor Herrera-Diaz’s claim is barred by the statute of limitations depends on when Mrs. Herrera-Diaz discovered, or in the exercise of due diligence should have discovered, both her child’s injury and its cause. I believe, however, that the majority has erred on two critical counts. First, Mrs. Herrera-Diaz’s deposition testimony —upon which the majority exclusively relies — is thoroughly ambiguous about what she was told caused her son’s injury. Her testimony cannot fairly…