Floyd L. Wehrman v. United States

Goodwin, 457 appellant. Indeed, at 2494. 102 S.Ct. U.S. find evidence that

court did not even brought per- charges were

additional plead guilty.

suade the defendant

sum, proof of actual vindictive we found no pre- hold that neither the

motivation. We nor actual vin-

sumption of vindictiveness prosecutor’s in this

dictiveness is following superseding indictment

filing of a Furthermore, ab- appellant’s mistrial. vindictiveness, we find any

sent evidence Accordingly, we affirm the plain

no error.

conviction.

Affirmed. WEHRMAN,

Floyd Appellant, L. America, Appellee.

UNITED STATES

No. 87-5030-MN. Court of Appeals,

United States

Eighth Circuit.

Argued June 1987.

Decided Oct. Rischmiller, Minneapolis,

Robert W. Minn., appellant. for Small, Atty., M. Asst. Minne- Robert U.S. Minn., apolis, appellee. McMILLIAN, Judge, Before Circuit GIBSON, ROSENN,* Judge, Circuit Judge. Senior Circuit ROSENN, Judge. Circuit Senior grant summary appeal In this Wehrman, plaintiff, Floyd L. judgment, damages arising asserts that his claim alleged malpractice by a Veterans out of hospital by is Administration not barred period set two-year limitation forth 2401(b),1 allegedly because the 28 U.S.C. § did end tortious prior years until some time within two disagree complaint. his Because we court’s determination the district inappli- is doctrine “continuous treatment” will dis- in this we vacate cable the case for and remand trict court’s order proceedings. further * jRosenn, agency after such Judge, Federal within Circuit United States Max Senior Circuit, begun sitting Appeals within for the Third accrues or unless action Court designation. claim mailing by certified after the date six months mail, denial of registered of notice of final provides: statute "A tort That present- agency to it was which the claim barred unless shall forever the United States (West Supp.1987). § U.S.C.A. 2401 ed.” 28 writing appropriate presented in it is undergo surgery, Wehrman chose to I. performed Linner it in March 1984 and Dr. dispute. are not facts The essential Metropolitan Medical Center in Min- at the by organic disabled completely states that the results neapolis. Wehrman injury re- caused syndrome brain “tremendous,” eliminating eating were From military service. ceived sleeping problems pain. medical treat- received through subsequently filed an adminis- Wehrman Ad- Minneapolis Veterans the ment from required the Federal trative claim (the VA). Var- Medical Center ministration (FTCA), 28 U.S.C. 2675 Act Torts Claims § him over treated physicians ious VA seq., the commencement of et years. litigation. The VA denied his claim and he began experience Wehrman In 1962 brought present action. In his com- pain. He consulted VA chest throat and alleged: plaint, Wehrman several oc- him on physicians, who advised through including From 1962 and March medical, surgical, treat- not casions that agents, various servants and em- being unduly surgery preferred, ment was ployees of the Veterans Administration rec- agreed to the dangerous. Wehrman negligently wrongful- and otherwise ... regime. Despite sever- ommended medical ly perform nec- failed to reasonable and treatment, his condition years of medical al examinations, diagnostic essary tests and 1981, he was ad- September In worsened. negligently treatment and otherwise and Center, complaining Medical mitted to the wrongfully failed obtain reasonable problems, chest digestive and stomach of necessary surgical and/or other and [sic] swallowing. The VA difficulty pain, and surgical to the consultations hernia, Schatzke’s diagnosed hiatal doctors including of Plaintiff medical condition disorder, dilated, and reflux ring seizure esophagitis, hiatus hernia with reflux again hospitalized esophagitis. conditions____ He was De- and medical related winter, physician again a VA when through agents, and fendant its servants surgery presented grave a him that advised employees negligently and other- further management was the and that medical risk wrongfully failed to inform the wise only feasible alternative. alternative methods of treat- of conditions____ As a ing said medical subsequently outpa- received Wehrman negligence of defend- direct result of the treatment, including barium swallow tient ant, progressive plaintiff sustained a examinations, esophogram, an endosco- an condition, suf- worsening of his medical medication, py, frequent and reevaluations mind great pain body of and ... fered His condition nevertheless of the reflux. transacting his busi- prevented continued to deteriorate. activities and ... has personal ness condition By January 1984 Wehrman’s expenses---- medical sustained point allegedly had deteriorated damages. million dollars sought He one to eat and could bare- he was unable where summary moved for The Government of sur- He consulted the chief ly breathe. ground on the that Wehrman’s judgment Center, who advised gery Medical at the statute of limita- was barred again was un- him once granted the mo- tions. The district court dangerous. February In how- duly judgment for the Govern- tion and entered ever, private physi- consulted a ment, F.Supp. 386. Brown, cian, him to who referred Dr. Carl performed an Dr. Mark Schmidt. Schmidt II. esophagi- endoscopy diagnosed severe the United ulcerations, Tort claims sphincter injury, a tis with presented barred if are time large hernia. He referred Wehr- States hiatus agency Federal writing appropriate surgical to Dr. John Linner for a man claim accrues. such after Linner Wehrman that within assessment. advised is accrues supra. When a claim note 1 surgery was a viable alternative. gical alternatives, Snyder v. Unit information Wehr- federal law. question of argues was man concealed. Cir. ed 1983). accrues at the general, a claim Even if the disclosure of his medical medical plaintiffs injury, but of time irrelevant, records therefore Wehrman’s exception to this malpractice cases are allegations of the VA’s failure to inform Kubrick, Id. States v. (citing rule. alternatives, surgical properly about 100 S.Ct. true, negligence, would establish most (1979)). court has fo This L.Ed.2d not deliberate fraudulent concealment. plain “determining the time on cused [the negligence might be sup- That sufficient to knew, actually or in the exercise action, tiff] but ply cause it would not meet known, diligence should have reasonable higher showing burden of a fraud injury.” cause and existence required preclude a statute of limitations In the Snyder, 717 F.2d at 1195. The defense. Government therefore his administrative filed alleged VA’s barred concealment 24, question 1984. The on October claim raising an from untimeliness defense. appeal is thus whether presented on this 24,1982. prior to October his claim accrued B. continuing the

Under treatment doc trine, plaintiff’s cause of action does not A. continuing until the accrue tortious treat that the first asserts ends, plaintiff if ment even the is aware of raising from precluded is Government constituting negligence the facts before defense because the of limitations statute time. Wehrman contends that the facts. con VA concealed material Such repeated surgery, to seek VA’s advice not fraudulent, cealment, prevents the run treatment, given during his medical contin statutory period plain the ning of the until past ued well October 1982. diligence or reasonable tiff discovers States, Page v. United 729 F.2d 818 the claim. Di discover the basis for could Cir.1984), (D.C. plaintiff the sued the VA in States, 301, v. United minnie negligently subjecting him for 1981 denied, Cir.), cert. (6th 305-06 drug therapy from 1961 to 1980. harmful (1984). 83 85 105 L.Ed.2d S.Ct. unsuccessfully VA had sued the He the contends that VA appeal, Wehrman On malpractice in which established his alterna wrongfully concealed physicians knowledge as of of the tortious conduct per surgical of methods treatment tive appeals of The court held that that time. worsening condition his suaded judicata was res judgment the 1972 of disease. progression natural allegedly tortious conduct truth, did nor claims he not discover He occurring prior to but that the cause diligence he in the exercise of due could arising of later conduct did of action out so, asserts, until when done he have terminated in until treatment not accrue sought help outside the VA.2 he single in a usually “Since no incident 1980: activity tortious can rejected argu continuous chain of The district realistically identified as the many ‘fairly or occasions over the because on ment harm,’ proper significant it seems of requested and re cause had regard effect of con- the cumulative to his VA medical free access ceived F.2d 821-22 however, at Wehrman, duct as actionable.” claimed records. R.R., Pennsylvania Fowkes v. (quoting connec used him in these records were (3d Cir.1959)). Wehrman as- mother F.2d tion with a lawsuit Page, the claim not here, Furthermore, as in they serts that of Minnesota. State neg- single allegedly incident of regarding on a sur- based information did contain jeop- without independent medical advice plaintiff argument, tain counsel 2. At oral ardizing represented client consulted him VA that when his his treatment. could ob- advised him he in counsel rather, conduct; alleges plaintiff’s gravi- a contin- tion of the condition ligent or the improper ty plaintiff’s injury treatment. As the uous course of of the as factors limit- developed gradually, ing scope the cumulative injury of the years of treatment was impact narrowly of all the doctrine more than its statement complete October in Page. before Neither is us. The district present carefully court in the case traced applied the continu- every Not court has authority, lines applied both but its con- expansively ing treatment doctrine as only inquiry clusions on these issues to its malpractice In medical ac- Page, however. reasonably diligent whether Wehrman was alleged negligence con- tions which claim, filing Memorandum and Order action, take not an af- sists of failure to 18-19, which, analysis explain as we act, negligent factors other than firmative below, inappropriate in the case. of the end of treatment have been the time Moreover, question patient of when a relevant. One is the deteriora- considered of, through aware or the exercise became plaintiffs condition. In tion of the Rad- diligence reasonable should have become F.2d datz v. United of, her of his or the deterioration aware Cir.1984), the Ninth Circuit stated that a injury, of the seriousness or condition warn, diagnose, on failure to or based Augustine, is one of fact. See 704 F.2d at patient pre-existing injury treat a for a As 1078-79. this case is before us on patient “the aware accrues when becomes appeal grant judgment, summary through the exercise of reasonable dil- any genuine we must reverse if there is igence should have become aware of the fact, giving issue of material development pre-existing of a condition into non-moving party as the the benefit of all (quot- a more serious condition.” Id. at 796 viewing reasonable inferences and the States, ing Augustine v. United 704 F.2d light facts of record in a most favorable 1074, (9th Cir.1983)). 1078 The court add- him. Indemnity Accident & Co. ed, however, physician that the because Hartford Co., 1142, v. Chemical 741 F.2d repeatedly had the assured Stauffer (8th Cir.1984); Lokken, 1144-45 v. Stokes worsening her condition awas normal con- 779, (8th Cir.1981). 644 F.2d 782 sequence procedure, of a medical her fail- years file day ure to suit for two and one Although not Wehrman does dis not bar suit. did See also Green v. United pute severity the and deterioration of his 105, (7th States, Cir.1985) 765 F.2d 109 thereof, knowledge condition or his there is (plaintiff should have become aware of in- the additional the factor of VA staff’s al jury from excessive radiation at time VA leged repeated surgery advice to him that allegedly injury). denied him treatment option. was not a viable This additional gravity courts have looked Other highly fact is relevant and critical to the injuries fixing in of the the date of accrual. question of whether Wehrman should have States, In Sanders v. United 551 F.2d 458 suspected negligence. any In we are (D.C.Cir.1977) curiam), (per the D.C. Circuit pressed hard to see how aware Wehrman’s stated that “when the facts so [become] severity ness of the deterioration and grave person as to alert a reasonable condition without more make him could may negligence there have been related to feasible. aware that received, limi- the treatment the statute of rejection The district court based its [begins] appel- tations to run doctrine in this treatment (quoting lant’s cause of action.” Id. at 460 having by been treated case on Wehrman’s States, 147, Reilly v. United 513 F.2d 150 many different VA doctors over twenty- (8th Cir.1975)). See also Drazan v. United years question. The district court two 56, (7th States, Cir.1985); 762 F.2d 59 West application that the of the doctrine stated States, 487, (8th v. 592 F.2d 492-93 United requires existence of the “the continued Cir.1979). re- personal, physician-patient confidential at 21 today lationship.” and Order

We decline to state whether Memorandum 36, quot- at 823 n. adopt (quoting Page, circuit either 729 F.2d will the deteriora-

1485 States, negligence filing; 486 F.2d he v. United ing Ciccarone negligence by specific Cir.1973)). disagree complained of a neu- (3d We with 257 rologist specific alleg- relationship on a date. Wehrman with implication only a continuing negligence es with satisfy this stan- single physician will surgical options, opportunity not Page court in continued: dard. The continuing relationship. just a The VA period “mere tolled A limitation continued to medical staff advise services, Hol ly medical intermittent” against surgery para- 1982. The final after Corp., dridge Heyer-Schulte v. [440 Page graph upon footnote which the (N.D.N.Y.1977) ], or F.Supp. 1098 suggests district court relied that continu- hospital visits at sub “merely occasional hospital, just ous treatment U.S., v. intervals.” Kossick stantial [330 single physician, suffice toll (2d Cir.1964) has 936 It also F.2d ]. period: running statutory from “treatment succeed been held that Page’s complaint It is unclear from in ing government physicians” does not receiving whether he was continuous running terrupt of the limitation any particular physi- VA personal relationship with the when the hospital; cian alleges only that VA charged malpractice has physician engaged in continuous tortious conduct. physician “is not claimed ended and We thus are unable to determine wheth- in direct concert with the to have acted may er the continuous-treatment doctrine v. physicians.” Brown Unit succeeding That, applicable to this case. how- States, ed F.2d 580 Cir. 353 ever, will be for the district court 1965) (a arising the Federal case under upon consider remand of this case. Act). v. Camire also Tort Claims Cir.1976); (2d States, 535 F.2d United 750 added). (emphasis n. 729 F.2d at 823 States, 562 F.2d United Camire, supra See also n. Hulver 1132, denied, (8th Cir.1977), cert. States, Kossick v. 951, 98 55 L.Ed.2d 435 U.S. S.Ct. denied, (2d Cir.), 837, 85 cert. (1978). But see Accardi v. United (1964), S.Ct. 13 L.Ed.2d 44 the Second (S.D.N. F.Supp. recognized patient the dilemma of a Circuit Y.1973) (treatment public at different process feels some treatment who hospitals four-year period over sufficient may wrong, yet, thing because the treat toll). give up hope complete, ment is not does not “ n. 729 F.2d at 823 36. ‘It would be ab of its eventual success: wronged require patient surd to a to inter alleged “merely has not inter- Wehrman rupt by serving a sum corrective efforts Although he medical services. mittent” superin hospital physician mons on the or by several different VA doc- was treated altogether is not tendent.’ ... and this tors, facility all at the same medical were here when as the sum application without continued him on the same treatment. and States mons would be served on the United suggested He none ever that claims that (quoting Borgia v. Id. at 936 Attorney.” surgery appropriate alternative. was an York, 12 N.Y.2d City New Brown, Camire,3 and Hulver all dealt with 321-22, 187 N.E.2d single N.Y.S.2d alleged malpractice by physician a Page, n. quoted in (1962)) F.2d at 823 plaintiff stopped treating the more who 36. The rationale of Kossick applies no Wehrman, prior filing; than two here, where, physi more than one less contrast, by complain about the does not in participated cian the treatment. any specific physician, or action inaction plan of treatment at the same but of the C. they participated. hospital in which all argued to the distinguishable. In The similarly Government Ciccarone if facts of this alleged any that even case, plaintiff district court that had associate) (or Moreover, hospi- the same doctor or in Camire stated same 3. the Second Circuit required period.” at 750 theory 535 F.2d rejected continuing tal for the treatment that it added). (emphasis was not continuous "since treatment continuing Moreover, any case fall within the treatment notice Wehrman received doctrine, large in longer part, entirely, was offset if that doctrine is no viable repeated the VA staff’s advice to him following Supreme decision in that Court’s surgery question. of the was out In States, a Kubrick deposition taken July (1979). 100 S.Ct. 62 L.Ed.2d Ku stated that he had “asked seven times government, brick, shifted contended see—to them surgery have do on me and exercise the focus to the of reasonable get this over with and done. seven And discovering in diligence by me, do, they times told ‘If we you. we’ll kill rejected sug court injury. The district shape.’ eighth You’re in too bad a The continuing gestion that the treatment doc being time surgeon.” Deposi- ... the head completely had eviscerated trine been Floyd tion of L. Wehrman at 168. Memorandum and Order at 16 n. Kubrick. reject We therefore the district court’s that conclusion Wehrman’s claim is barred agree district We with the court’s conclu- because he failed to exercise reasonable sion, note that this circuit further has diligence becoming aware possible of a “[wjhere the tortious conduct is stated passing claim. add in We even nature, continuing of a the Kubrick rule diligence inquiry apply in a continu- apply.” does not Gross v. United ing context, the VA’s affirmative Cir.1982). Gross actions to dissuade Wehrman from malpractice was not medical one factor, ought at along least to be a with his Kubrick, for its basis distinction which knowledge of the severity deterioration and injuries arising involved from treatment condition, in analyzing whether Nevertheless, with an antibiotic. the Gross knew or should have known apt, it rationale because is the may negligence. there have been This is conduct, its nature VA’s not medical so particularly summary judgment at the character, that is issue in stage, as there is no evidence Wehr- posture of the case. man knew should have known whether representations the doctors’ accorded with The Government makes much of Wehr- recognized surgical practice. medical and possession of man’s his medical records long acquaintance his attorney malpractice and with actions. Wehrman III. requested records twice: once in 1981 with sum, carefully the district court against to a claim the State of exhaustively analyzed the law and the wrongfully admitting Minnesota constrained, record this case. We are Hospital, St. Peter’s State and once rela- however, to hold that district malpractice tion to medical action rejection erred in its basis for of Wehr University of Minnesota on behalf of man’s assertion of the continuous treat mother; purposes his of never for this suit. doctrine, of ment the absence a continuous any his medical records and his erroneous, relationship, doctor-patient was relationship his attorney with could have and that that assertion of the to extent

provided him only with information about depends upon whether doctrine treatment, condition, legal his his and prior Octo knew or should have known to rights; they imparted no information about may negli ber there have 1982 that been the relative of and merits there- gence on the advice to fore could not alerted surgical genuine have Wehrman to is options, there remain any negligence by failing the VA in necessary sues of material fact surgical options. inform about determination.4 factfinding proceeding 4. if a 1982. Even revealed act after October failure to prior accrued Corp., Wehrman's claim October F.2d Rail 800 Kichline v. Consolidated 1982, Page we 356, note under (3d Cir.1986); still Page, at 821. any negligent have a cause of for action conduct Administration or district with the Veterans Octo- Accordingly, judgment 24, 1984. ber matter re- and the vacated will be consistent proceedings for further manded opinion.

with this GIBSON, Judge, Circuit con- R.

JOHN dissenting.

curring and the court’s dissent from respectfully I EQUIPMENT WATERTOWN agree Wehrman’s today, but opinion and COMPANY Edward within two that occurred claims for events Moe, Jr., Appellant, filing of his administrative years before v. by the statute are not barred WATERTOWN, N.A., BANK NORWEST limitations. formerly First National Bank of Water on its district court agree I with the town; Miller, Jerry Vice President of rule continuing treatment analysis of the Watertown, N.A.; Norwest Bank Thom opinion. Plain its the reasons stated Green, Attorney for Norwest Bank had become his condition knew that tiff Watertown, N.A., Appellees. accordingly had some more serious No. 86-5448. medical informa duty seek additional Kubrick, 444 U.S. v. Appeals, tion. United States States Court of 352, 359-60, Eighth 111, 122-23, 100 Circuit. S.Ct. (1979). L.Ed.2d June 1987. Submitted independent separate has Decided Oct. 1987. occurring within claims events Rehearing Rehearing and En Banc his claim on October

years he filed before 23,1987. Denied Dec. alleges negligent specifically government The against surgery. advice argument respond to Wehrman’s

did not the two

that acts within

filing not be barred. claim would F.2d Page United (D.C.Cir.1984). Wehrman saw

The record reveals that February Administration doctors

Veterans September and November endoscopy per- January 1984 an

On interrogatory an- In Wehrman’s

formed. response filed in

swers and affidavit summary judgment, he

motion for states doctors

that Veterans Administration out-patient clinic and the chief sur- February, they 1984that

gery told him him and probably it kill

operated problems many us

“you have too 36). (D.R.

operate.” only

I would remand occurring on based events

those claims the date that

within administrative claim filed his

Case Details

Case Name: Floyd L. Wehrman v. United States

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Oct 8, 1987

Citation: 830 F.2d 1480

Docket Number: 87-5030-MN

Court Abbreviation: 8th Cir.