John Barren, an Incompetent, by His Guardian, Henrietta Barren v. United States

coverage give allowed to nies should not be away it right and then take hand

with agree with the the left. I cannot Aetna, and niggardly approach taken Business accepted by majority, only the Policy is intended to cover Owners activities of an “non-professional” business renting space, pur- attorney, such as office hiring firing chasing supplies, and approach particularly staff. Such an poli- the Aetna inappropriate here because coverage mali- expressly includes for cy is different in es- prosecution, cious which the ministerial activities to sence from it limited. It is diffi- Aetna claims which type of malicious to conceive of the cult brought against an attor- prosecution suit express coverage would ney to which the If it apply under Aetna’s construction. attorneys the defense of wanted to exclude suits, prosecution it should in malicious expressly. have done so Therefore, affirm the would the district court. BARREN, incompetent, John an guardian, BARREN, Henrietta America, UNITED STATES Appellant. No. 87-5314. Cognetti, (argued), Timothy E. Sal Jr. Appeals, United States Court of Bour, Cognetti, Foley, Gallagher, Foley, Third Circuit. Scranton, Pa., Douglass, ap- for Cowley & pellant. Argued Nov. 1987.

Decided Feb. Gen., Willard, Atty. K. Asst. Richard Cordes, West, Atty., John F. James J. U.S. Rehearing Rehearing En Banc (argued), Appel- Katherine S. Gruenheck 28, 1988. Denied March Staff, Div., Justice, Dept, late Civ. U.S D.C., Washington, appellee. for SLOVITER, BECKER, Before *, Judges. COWEN Circuit

* argued, Judge duty At the time as a this case was Cowen November 1987 he entered was a United States District Dis- Judge. United States Circuit Jersey sitting by designation. trict of New On 17, January related. illness was service On THE

OPINION OF COURT 1972, again he was examined at the VA COWEN, Judge. Circuit hospital prescribed medication. The and appeal This from an order which en- preliminary diagnosis palpita- was heart judgment tered in favor of award- anxiety. tions and ing damages malprac- on a claim of medical 1972, early August Barren had a tice, brought pursuant to the Federal Tort psychiatric out-patient consultation with (“FTCA”), Claims Act 28 U.S.C. 2671 et § George Anghel Anghel, Dr. of the VA. Dr. seq. Since failed to file his notice in psychiatry, who was not board certified accrual, years of claim within two after its diagnosed plaintiff suffering as from ado- 2401(b),1 required by as 28 U.S.C. and the § adjustment syndrome, lescent pre- time in which he had to make his claim was Anghel scribed librium and valium. Dr. excused, not or otherwise tolled his claim out-patient treated Barren on an basis on was time-barred. We therefore will re- occasions, four other continuing each time plaintiffs in verse the favor. prescribe tranquilizers. I. 24, January 1973, On on the basis of Dr. Plaintiff, Barren, John enlisted in the Anghel’s diagnosis, the VA determined 22, Army United States on June 1970. Af- that the skin condition Barren had devel- completing training, ter basic he was sent related, oped was service but that his anxi- Korea, duty on a arriving tour of in ety problem was not. It therefore denied November of 1970. Barren was stationed anxiety claim for the condi- Camp Casey, zone, at in the demilitarized sought tion. Barren reconsideration of this which was duty. considered hazardous and, part decision process, as of the review months, experi- Over next thirteen he again was Anghel May examined Dr. on increasing enced amounts of nervousness 9,1973.2 Anghel reported Dr. his condition anxiety, and his condition worsened to “adjustment as reaction of adolescence.” point 2, 1972, January that on he was July 6, 1973, On Anghel’s based on Dr. Lewis, transferred to Washington. Fort report opined he which that Barren’s During trip home, given Barren was personality healthy was and that he did not (a tranquilizer) by librium military person- hospitalization, need the VA denied his dis- nel, presumably in an temporarily effort to ability August claim. On the VA Upon relieve his condition. arriving at informed Barren it had determined that his Lewis, Fort he medically discharged nervous condition was not service related. and was advised physical to seek a exami- again Barren appealed, this time to Mr. (“VA”) nation at a Veterans Administration Watson, Chief of Admissions at the VA hospital. hospital. appeal pending, While this Barren Pennsylvania family returned to Barren’s hospital- on Jan- continued to seek 5,1972, uary January and on ization reported reported on his behalf to Dr. hospital Wilkes-Barre, the VA Anghel Pennsyl- that he was uncontrollable and vania, complaining palpitations of heart needed psychiatric hospital- immediate and a skin rash. Due separa- to his recent Admissions, ization. The Chief of after duty, tion from active the VA informed consulting Anghel, with Dr. denied Bar- eligible Barren that he was for treatment request hospitalization ren’s January on pending a final 11,1974. determination whether his January In late 1. The section states: 2401(b) (1982). 28 U.S.C. § (b) against A tort claim the United States 2. The district court noted that review of shall a dis- presented be forever barred unless it is applicant’s writing treating physician claim an appropriate agency Federal procedure, is not Anghel within two standard after such VA and Dr. claim accrues or begun unless practice action is admitted within six that this months after was "not too ethical.” case, however, mailing, by the date registered Anghel performed certified or In this Dr. mail, of notice of final denial of the claim evaluation because there was no other doctor agency presented. which it was App. available at the time. timely filed. The district court were State him to the Scranton family admitted dismiss, preferring reserve declined to Hospital for treatment Psychiatric liability portion after developed in an until decision alcoholism, a condition hearing all the evi- case. After He was released Barren’s self-medicate. effort to dence, district court did dismiss the the treatment was February time-barred, Barren as family. of Henrietta unsatisfactory to his claims against Barren.4 to do so as but refused placed 18,1974, February Barren was On Hurst, imme- who Bar- Dr. Paul court determined that in the care of J. The district condition, Abington Memorial him to which diately admitted ren’s diminished diagnosed as suf- he was mal- Hospital, where resulted from defendant’s condition disorder, personality fering from immature could be con- practice, was a factor which chronic lumbo- neurosis and depression assessing the reasonableness sidered released sprain. Barren was discovering malpractice. sacral diligence in 3, 1974, when his fami- March Abington on that Bar- App. at 32. The court concluded the financial burden longer bear ly could no condition affected his ren’s mental Thereafter and treatment. in-patient injury had befallen understand that an to present, Dr. Hurst has continuing to further 33. The district court him. Id. at out-patient on an treat Barren to sister, continued Barren, unlike his concluded that hospi- basis, exception of another reasonable dil- through the exercise of Pennsylvania Psy- at the Eastern talization injury igence could not have discovered lasting 26 until from June chiatric Institute date he was prior to October 1977—the 1974, Barren 26, time was July at which to amend his notified of the VA’s decision anxiety neurosis. having diagnosed as related. Id. disability percent to 30 service findings by dis- appeal This followed 30,1977, its the YA reversed On October negligence by the of medical trict court that Barren’s prior and determined decision damages sustained government and related. The anxiety was service condition Barren. percent Barren a YA awarded This rat- February 1973.

retroactive to II. to 50 ing subsequently increased was 15, 1979, percent and to 100 on March cent ap raised in this The fundamental issue on October does the statute of limitations peal is when claim, malpractice medical tort claim run on a FTCA filed his administrative Barren that the medical 7,1979, plaintiff proves alleging medical mal- when September government so affected sister, negligence of the Henrietta Bar- practice. Barren’s date, incapable mental facilities that was ren, the same filed a tort claim on govern negligence of the perceiving medical related seeking reimbursement for question is de her ment. The answer to this on behalf of expenses she incurred this Court by the date on which September filed on termined This suit was brother. sister, a cause of action accrues Henrietta determines such 1981. Barren and his 2401(b). The district Barren,3 negligent- 28 U.S.C. alleged that the had under VA § regard will findings of fact in this hospital him the for court’s ly failed to admit to clearly errone care, unless in-patient and that the treatment he be left undisturbed Bessemer, 470 given City ous. v. was substandard. The United Anderson 1504, 1511, 564, 573, 105 84 L.Ed. the claims U.S. States moved dismiss because (failure suit, injury only probable cause of that Barren filed this 3. Henrietta right spent properly promptly hospitalize her own to recover the funds she treat VA to brother, disorder), cure her but also on behalf of her she was and nervous his mental appointed guardian brother for whom she was of action well accrual of the cause aware in June of 1981. filed the adminis- two that she before the evaluating knowledge her claim. In trative Bar- 4. The district court found as to Henrietta correctly judged her the reason- district court right, evaluating her ren’s claim in her own knowledge able standard. (Bar- injury of the existence of the deterioration) ren’s obvious mental as well as (1985). However, neomycin medically 2d 518 deci his where the treatment was sub- appli Court, sion of court Rather, involves recognizing standard. interpretation legal precepts, cation enlarge that it was not free to plenary. D Court’s review & G of to frustrate the limitations so as intent Bank, Equip. Co. v. First Nat’l Congress promptly dispose of FTCA (3d Cir.1985). claims, toll the limitations refused to plaintiffs possess necessary who pursue a claim. The facts Court stated: III. Congress thus cannot hold that We Supreme The United States Court has in intended that “accrual” of a claim must general terms addressed the issue of when await awareness that his claim medical accrues under negligently plain- A inflicted. Kubrick, the FTCA in United States Kubrick, tiff such as armed with the U.S. 100 S.Ct. him, facts about the harm done to can (1979). Kubrick, plaintiff In sustained protect by seeking himself advice in the partial hearing allegedly a loss as a result legal community. medical and To excuse neomycin treatment administered for a him from promptly doing by postpon- so Thereafter, femur infection. Kubrick ing the accrual of his claim would under- sought doctors, the advice of other who purpose mine the of the limitations stat- early advised him January as as of 1969 ute, require which is to the reasonably “highly possible” that it was that the neo- diligent presentation of tort claims mycin treatment had caused his deafness. against the If Government. there exists 444 U.S. at 100 S.Ct. at 355. The community generally applicable district court in Kubrick held that standard respect of care timely claim with to the was because it was filed with ailment, plaintiff two treatment of his spoke after we yet see no rea- doctor, another suppose June son to competent who stated that advice “neomycin that had caused in would not plaintiff be available to [Kubrick’s] as jury and should not have been adminis to whether his treatment conformed to tered.” Id. that standard.... But however or even advised, whether he is putative mal- In Kubrick the district court determined practice plaintiff must determine within that the was subject not not, whether to sue or which is discovery usual rule because he had demon- precisely that other tort strated that “he had exercised reasonable diligence claimants must make. and had no suspicion’ ‘reasonable that there negligence in his treat- 123-24, 444 U.S. at (foot- 100 S.Ct. at 360 ment.” Id. at (quot- S.Ct. at 356 omitted). note ing States, Kubrick v. United Supreme The Court concentrated on the (E.D.Pa.1977). affirmed, We Ku- objective aspects test; is, of the that brick v. (3d United Court was not concerned with whether the Cir.1978),holding that the statute of limita- plaintiff actually malpractice, knew of the tions is tolled “if the prove can but possessed whether he the facts such that in the exercise of diligence due he did that, as a person, reasonable he should know, not nor known, should he have facts have malpractice. Id.; known of the ac- which would have alerted a reasonable cord Nemmers v. son to the possibility that treatment was (7th Cir.1986). In pres- the case improper-” Id. at 1097. Supreme ently us, before reversed, Court court deter- the majority finding noth- ing mined that language only in the Barren was legislative placed or the on no- histo- ry of the support FTCA to tice that his our was service that related Kubrick’s only claim accrued when changed when he the VA position its knew or reasonably could have known that percent awarded Barren a 30 disability rat- opinion malpractice why this 29. It is reason 20,1977.5 App. at ing on October however, early not have been elicited as us, on the could that based clear fact, the district court found that possessed facts which 1974. Barren record below why sister, person to no reason a reasonable there was have enabled would Barren, well alleged malpractice be- did not discover or Henrietta discover through the exercise of reasonable dil- fore this date.6 igence inju- discovered the should de- plaintiff was disputed that It is not ry and its cause at an earlier date. Id. at on several occa- by the YA nied admission Viewing objec- Barren’s sister as an 1972, de- in December of beginning sions tively person, her failure to reasonable family. App. of his spite the intervention interpose timely a claim under the FTCA is condition that his It is also obvious very same failure on the indicative period. Id. during this gradually worsened timely part of Barren to file his claim.7 eventually condition at 35-36. Plaintiffs sought point deteriorated to IV. Dr. Hurst treatment from outside medical Admittedly, February at 36. It was at VA’s 1974. Id. objectively factor in Barren’s point that an substantial recognized position recognize very malpractice. could have The un- in Barren’s received from disputed treatment he had evidence before the district court adequate, and that he had recognize was not the VA was that Barren could not result. harmed as a been condition and its deterioration between 1972 and and that deterioration sought treat- very fact that Barren was a substantial factor to is a clear indication ment outside YA appreciate his condition. Id. at 47. The provided by he the treatment believed acknowledged difficulty Kubrick Court Moreover, unsatisfactory. the VA was discovering plaintiff might that a have in experts trial was to testimony of all the malpractice, an act of medical but none- given plaintiff the effect that the treatment an theless dismissed this as excuse for by during 1972-73 was the VA allowing plaintiffs lesser standard for a inadequate and that should have been complying with statutes of limitations: Indeed, hospitalized. 43-46. the es- Id. at [Determining negligence or not is often sence of Barren’s claim is that because the hotly disputed, complicated and so much him VA failed to admit for observation and treatment, judge jury so that or must decide resulting his condition from ser- barrage retrogressed listening to a of con- in Korea from moderate issue after vice if in psychiatric disability. flicting expert testimony. There And this to total is no McCabe, (as by Greenberg 5. We fail to see how this decision the VA in 765 Cir.), (E.D.Pa.1978), (3d aff'd, placed and of itself could have Barren on notice cert. injuries U.S. 100 S.Ct. that his were related to the VA's mal- (1979)), especially change position might practice, when the which mask accompanied by timely by explana- claim. Rath the VA was not an excuse the failure to er, file a malprac change case involves act or acts of tion. The in status from zero to 30 an represents opinion temporally percent were limited and which of the VA that tice which plaintiffs partially condition related to his ser- did not continue. forces, in the but would not vice armed neces- sarily imply part of the VA an admission on the appointed guardian been 7.If Barren’s sister had that his condition was related to VA malfea- knowledge prior have been to her would opinion him, sance. We therefore are of the imputed thereafter to and Barren would finding placed court’s that Barren was district precluded arguing that the VA’s have been from on notice as of October 1977 reason of this discovering negligence prevented him from change unsupported by the in status is evidence. malpractice. delay appoint- in the A deliberate guardian, plaintiffs ment of a under view the limitations, emphasize incompe- allow an 6. We must that Barren’s situation statute of could perpe- be characterized as one akin to a tent to circumvent the statute of limita- cannot delay continuing why such a tration a fraud or a treatment tions. There is no reason physician, development appointment guardian to a or the of a transfer- should work a ’ relationship by government. ence with her doctor the detriment of the (1941). Supreme As the L.Ed. 1058 Court complicated malpractice plaintiff is led to has conceded: to run until the difficult suspect negligence, it would be goes saying It without that statutes of accrual rule apply not to the same indeed impossible limitations often make it to arising claims un- to medical and health perfectly enforce what were otherwise range to a statutes and whole der other very pur- valid claims. But that is their arising negligence cases under of other pose, they ubiquitous remain as statutes, other federal where the Act and statutory rights rights or other to complicated legal implications they applica- which are attached or are expect it unreasonable facts make give We should them effect in ac- ble. legal plaintiff, who does not seek injured cordance with can what we ascertain the advice, to realize appropriate or other legislative intent to have been. may in- legal rights have been that his 444 U.S. at at 361. We feel vaded. in Ku- compelled by the Court’s U.S. at 100 S.Ct. brick to construe the statute of limitations Although exacerbation of Bar As the Kubrick Court narrowly. noted, the VA’s if infirmity, relationship ren's and the causal Congress expand desires the limitations aggravation plaintiff's in between this in cases where the recognize his condition is a com negligence prevents own pelling deficiency in reason to excuse his recognizing injuries her caused that con- claim, as Kubrick makes failing to file his duct, it is free to do so. Id. The courts clear, subjectively ap the rule cannot be are not empowered.8 so plied. Allowing file later than Barren to V. objectively an would be ruling plaintiff’s tantamount that a men We hold that the district court incorrect infirmity tal can extend the statute of limi ly applied legal assessing standard in uniformly tations. Such extensions have plaintiff’s the timeliness of claims under rejected by been this and other courts of 2401(b), section improperly and in effect Kichline v. appeals. Consolidated tolled the statute of limitations. Because Rail 356, (3d Corp., 800 F.2d 360-61 Cir. plainitff’s filed, timely claim was not 1986) (Federal Employer’s Liability Act running of the statute of limitations on States, claim); Accardi v. United 435 F.2d brought an against action the United 1239, (3d Cir.1970); 1241 2n. Casias v. jurisdictional subject States is a defect not States, United 1339, (10th 532 F.2d 1342 waiver, e.g., Deakyne Department see v. States, Cir.1976); v. Williams United 228 Army Corps Engineers, 701 F.2d 271, denied, 129, (4th Cir.1955), cert. F.2d 132 (3d Cir.), 4 cert. 274 n. 464 U.S. 986, 1054, 351 U.S. 76 S.Ct. 100 L.Ed. 1499 818, 78, (1983); 104 S.Ct. 78 L.Ed.2d 89 (1956) claim). (Admiralty Act Rosales v. United 799, 824 F.2d 802 (9th Cir.1987); Houston v. United States recognize holding We that our in this Service, Postal 896, (5th plaintiff. case 902 Cir. visits a harsh result on the 1987); Secretary v. However, Defense, Walters periods must be construed, (D.C.Cir.1983), 725 112 strictly especially F.2d n. 12 those involv- ing sovereign district court is Ku- immunity. jurisdiction waiver of divested of un brick, 117-18, 1346(b). 444 der 28 U.S. at 100 U.S.C. S.Ct. at We therefore will § 356-57; Soriano v. United reverse 352 U.S. the district court’s 270, 276, 77 S.Ct. remand. The judg district court will enter Sherwood, (1957); United States v. 312 ment in favor of the United States. Each 584, 590-91, 767, 771-72, U.S. 61 party 85 to bear its own costs. argues (Purdon

8. The 1969) also that the district (repealed Pa.Stat.Ann. § 4603 refusing 1978), court erred in to allow the United or the Mental Health Procedures Act of immunity granted States the (Purdon benefit of to all Supp. 50 Pa.Stat.Ann. § 7114 private 1987). Pennsylvania individuals under the light Men- of our as set forth above tal Health and Mental Retardation Act of we need not reach this issue. Kubrick, 111, 122-23, concurring. U.S. SLOVITER, Judge, States Circuit 352, 359-60, 62 L.Ed.2d 100 S.Ct. court agree I that the district erred rule, (1979). Applying App. at 30. de- rejecting affirmative Hen limitations, court held that the claim of be- district fense of the statute of but right Barren in her own was barred my analysis cause differs somewhat rietta Cowen, by the statute of limitations because there separately. I that of write undisputed It is that as a why result of his no she did not discover evidence Army experience Korea, plaintiff through the dil John or exercise Barren disability, igence inju suffers from a which the should not have discovered App. district court 33. anxiety ry described as chronic claimed and its cause. at App. Indeed, disorder. at 56. the Veter- however, court, distinguished district an’s plaintiff Administration awarded Barren. The Henrietta and John between thirty percent disability rating retroactive court held that John Barren’s “mental con- 26, 1973, February increased it fifty affected his to understand dition percent August 23, 1977, as of and award- aggra- that” the Veteran’s Administration ed him on October 100% that he had suffered as a vated At issue here is not whether had duty App. tour of in Korea. result an unfortunate disability, service-connected court, According at 32-33. district totally when it became disabling, but “plaintiff’s mental condition at the time of whether damages entitled to conduct, allegedly negligent and which $1,124,000 awarded him conduct, may resulted from court for malpractice. defendant’s part sidered of the external circumstances claim, essence, is that tort plain- Plaintiff’s under the reasonableness of a which of the United States discovering wrong diligence in tiff’s April August 1972 and between App. Although committed must be assessed.” misdiag- George Anghel Dr. posi- 1974 when recognize the attractiveness of this adoles- as a mere tion, nosed Barren’s condition applica- counter to the believe it runs prescribed reaction and adjustment cent legal precedents. law and ble appropriate than the tranquilizers rather limited ex- Plaintiff concedes that “with had hospitalization which treatment of here, the existence ceptions applicable sister, Henrietta, requested by John’s been does not toll the capacity a mental [sic] Anghel directly with Dr. who consulted under running of the statute of limitations behalf. John’s (foot- appellee Brief for the FTCA.” (FTCA)pro- Torts Act omitted). Nonetheless, The Federal Claim plaintiff ar- note that: justified vides gues that the district court was incapacity as considering plaintiff’s mental against A tort claim States weighed in many to it “one of the factors” be unless shall be forever barred plain- of determining the reasonableness writing appropriate in presented discovering in the cause of years diligence tiff’s agency within two after Federal injury. his claim accrues.... such 2401(b) (1982). 28 U.S.C. court made § distinction general rule illusory. The for basis that his claim accrued Barren must show of limitations will not be that statute presentation of less than two before insanity, 2 infancy or see tolled for either claim claim. Barren’s administrative presented was not to Jayson, Handling the United Tort Claims: States L. Federal until September 7,1979. presented His sister Remedies also Administrative and Judicial her (1987), own claim pre- on that date for 297.02-.03 stems from medical ex- §§ penses made on person used to vailing behalf. standard claim, particularly a correctly recog determine

As the district court when claim, nized, should have “a claim under the FTCA accrues medical See, Kubrick, 444 plaintiff e.g., when a knows both the existence been discovered. 10, n. 10 citing n. 100 S.Ct. at 360 injury,” and cause of his U.S. at 123 United 994 at the hands of dil- sustained “reasonable

(plaintiff [him] must exercise Phar- aggravation of a v. Merrell-Dow the defendant was an igence”); Urland 1268, (3d maceuticals, Inc., pre-existing Appellee condition.” Brief of F.2d 1275 822 principled Cir.1987) inquiry is “whether I fail to see how a distinc- (Pennsylvania at 29. reasonably purposes should have or can be made for of the stat- plaintiffs knew tion one, objective known”). plaintiff is an The standard of limitations between a whose ute purpose the FTCA to disability of consistent with mental was caused defend- presentation “encourage prompt negligence mental ant’s and one whose dis- Kubrick, 444 U.S. at 117, 100 claims.” ability aggravated by neg- was defendant’s plaintiff nor the case, at 357. Neither plaintiff’s S.Ct. ligence. In either failure any persuasive authority court cites district timely may to file a claim have resulted e., standard, i. subjective rea- applying for recognize from his or her plaintiffs as viewed from the sonableness appreciate the factors which form the basis fact, precisely situation. such individual Logic requires of the claim. that both situ- Ku- rejected in subjective standard was similarly. ations should be treated Since brick, Court, Supreme in revers- where the the district court and concede both ing court’s of when a claim this that mental as such is not a basis purposes statute accrued for FTCA relaxing limitations, the statute of it limitations, plaintiff” held an “untutored aggravation that mental follows the same standard as a “reasonable disability cannot afford such a basis. 118, id. son”. 100 S.Ct. at 357.1 may negligence It that when the incapaci- plaintiffs Inclusion of a mental impairs plain the defendant of a ty as a factor to be considered in determin- necessary tiff to take the measures to file a ing plaintiffs the reasonableness of dil- claim, requires fairness that we relax igence general ap- runs counter to this That, however, rule.2 is an issue for Con only in proach. Indeed this cannot, gress. suggests, as We the dissent distinguished plaintiffs factor that situa- change order “to circumvent tion from that of his sister mental injustice the obvious of the result.” Dis interposes incapacity. imper- Since that an Indeed, Zeleznik v. op. sent subjective element into the missible reason- States, (3d 770 F.2d 24 Cir. standard, see Restatement able Kubrick, 1985), court, applying noted (Second) Torts, 283B, (1964), 283C §§ two-year in the plaintiff’s district court’s reliance on the Congress’ FTCA reflects determination of incapacity legal error. injured par what is a reasonable time for argues Plaintiff also the usual ties make dis- a claim. We commented that covery rule should be relaxed because “the “the statute of limitations is meant to be plaintiff rely presented 1. Both the district court and on the when has been in a coma or McCabe, opinion Greenberg district court’s has been lobotomized from a case such as this (E.D.Pa.1978), F.Supp. aff'd, 768 alleging incapacity. some lesser level of mental (3d Cir.), F.2d 854 cert. 444 U.S. See, e.g., Zeidler v. United (1979), where the court (10th Cir.1979) (“We say also that brain plaintiffs held that mental condition is a factor damage or destruction is not to be classified in weighed determining to be covery. Greenberg preceded the time of dis way ordinary the same mental disease or Supreme insanity purpose barring for the such an rejected Court’s decision in Kubrick which aof use action"). See also Dundon v. United subjective factor. (E.D.N.Y.1983). Although Judge by Becker reads v. United parties agree Clifford All that this case Clifford is unlike the States, (8th Cir.1984), differently situation, see, e.g., Washington coma States, v. United I, quoted than do I note that verbatim (9th Cir.1985), F.2d 1438-39 Clifford Dundon, language expressly interposing the of by and v. United Clifford Clifford (8th 1984), describing the reference to Allen Clifford and F.2d 979-80 Cir. and hence we However, "extraordinary light need not reach that issue. situation.” Id. at 980. The cases, Clifford, above, dissent’s the extensive reliance on court in as in the these two cases cited distinguished we note that even in those cases the courts Allen Clifford’ssituation from that distinguished extraordinary ordinary the incapacity. situation mental Id. manner,” negligent aggravated and that the treatment of Barren applied in a uniform in- guarantee every his condition and contributed to not that inabili- statute “does ty. yet, in necessarily extending to find And party be able Kubrick rule jured will majority re- to the facts of this against possibly a has and make a claim ignored key two factors that agency.” Id. set Barren’s sponsible governmental 1) apart: aggravation case that this is an only basis for the district Because the determining case where what a reasonable apply statute court’s failure to the FTCA’s inherently very would know is diffi- incapaci- Barren’s mental cult; 2) and itself is re- basis, impermissible I ty, and that is an sponsible for Barren's perceive plain- also to reverse the vote his own mental deterioration. by court. tiff entered I. BECKER, dissenting. Judge, Circuit Aggravation A. disagreement Judge I have no with Cow- essential, threshold, It is at the to iden- general concerning en or Sloviter tify precise and discuss the nature of Bar- governing of limitations rule injury. injury worsening ren’s His was the for medical under the Kubrick — of his mental condition caused negli- year statute of limita- standard two gent VA, treatment including its per- begins tions to run when a reasonable condition, diagnose failure to mispres- injury of the and its son should have known medication, cription counterproductive that, Moreover, freely cause. I concede family, advice to Barren and his and failure generally speaking, jurisprudence in-hospital to admit Barren for observation struing under the the statute of limitations diagnosis. and (FTCA) very Federal Tort Claims Act is not pliable. The caselaw does not admit of began Barren’s mental illness with his tolling period by reason the limitations duty tour of prob- Korea. His mental infancy or mental or a number of because, lems became worse as the district other individualized traits that could rea- noted, court “the defendant made no mean- that, sonably interfere with the two events ingful diagnose effort to condition noted, running: as I have start the statute proper or to treat it in the manner.” J.A. discovery injury discovery and of its Anghel, at 51. Dr. who was not board part company colleagues, I my cause. psychiatry certified in practicing and was however, in their assessment that this is supervision, pro- for the first time without sorry another in a line of cases which we Despite pleas vided substandard care. power sister, no to circumvent the harsh of Barren’s mother and Barren was dictates of the heavy tranquilizers statute of limitations under fed a pep- diet talks, only FTCA. and was assured that needed “grow up.” Barren’s medication was majority believe that the has overstated monitored, Anghel Dr. dismissed as misapplied the Kubrick standard. many “nonsense” of Barren’s serious sub- persuaded am that this case falls within a jective complaints (e.g., anxiety, sleepless- narrow, recognized yet equitable exception fits). crying ness and general to the Kubrick rule. Under this exception, the statute of limitations under injury Because the actual was the fur- does FTCA not accrue for a ther deterioration of Barren’s condition perceive govern- mentally whose ill but nevertheless function- injured destroyed ment him ing, totally incapacitated because of government’s negligent illness, plain- care until the the Kubrick standard is affirmatively tiff injury informed very apply. Augustine difficult to way understand, (9th he can or until a United guardian appointed. Cir.1983) (“[w]hen physician’s failure to treat, concedes that Barren was diagnose, unable to or warn a results in ceive his and that the development of a more serious medical 996 case arrives to us an unusual and com- previously exist

problem than that which ed, injury pelling posture: and its the district court of both because identification may more difficult on the merits cause held a trial before determin- by a doctor conduct ing questions, than if affirmative statute of limitations we injury”); Greenberg v. inflicts a new dealing alleged negligence are not with but (E.D.Pa.1978), McCabe, F.Supp. 772 VA, proven negligence by rather with (3d op., 594 F.2d 854 thout government challenge which the does- not aff'd wi Cir.), denied, 444 U.S. 100 S.Ct. cert. appeal. accepted district court (1979)(“where injury 62 L.Ed.2d plaintiff’s argument John “that Barren was and more cause thereof are subtler and during at all times [the relevant] malpractice in the normal complicated than comprehend unable to that his mental con- case, particularly inappropriate to it seems dition had deteriorated while he was under as a matter of law what the determine personnel the care V.A. medical known”) (footnote plaintiff should have that deterioration was caused omitted). treatment received at the hands of the Judge ques- makes much of the fact V.A.” J.A. at Cowen 29. There is thus no left the to seek outside poor that Barren YA tion that care Barren received provides this fact help, illness, and contends that directly exacerbated his mental that Barren knew or at least evidence present incapacity, tributed to his mental injury and should have known of his its important, prevented and most him from maj. cause. at 991. But the mere understanding the nature or source of his switching physicians does not necessar- injury. knowledge ily impute injury and the principles equity Basic dictate that the injury. source of that See Nicolazzo v. government profit cannot from its own (1st Cir.1986) United F.2d 454 negligence. my reasoning At bottom de- (distinguishing the facts of Kubrick and simple compelling pre- rives from the plaintiffs that awareness that YA cept that cannot render physicians aiding not him were did not con- comprehend injury someone unable to knowledge injury cause). stitute and its impose person and then a reasonable dis- Furthermore, in applying the Kubrick covery majority’s emphasis upon rule. The standard, Judge Cowen does not account at the objective-subjective distinction Ku- aggravation all the subtleties of an for0 simply misplaced brick is in this context. changing case. The that notion doctors ignores It special the added factor of the necessarily discovery does not establish government’s participation in Barren’s ina- negligence particularly seems true in an bility comprehend and its aggravation case, where the al- recognizing unique cause. ready may knows that he is sick and government’s malprac- nicious effect of the any differentiating negli- means for tice, we do no harm to the basic Kubrick gent progression care from the natural discovery Rather, rule. we carve a narrow Therefore, the disease. even under the exception prohibits rigid standard that the insulating itself wrong- from its own majority adopts, I do not think it can confi- activity. ful dently be said that Barren should have injury. known special Barren’s situation strikes me as significantly distinguishable from mere B. The Responsibility Government’s not, incapacity mental which does in and of Second, itself, toll important, and more the statute of do not limitations under think the apply Kubrick standard the FTCA. The should added factor here of the special all under facts of this causation of that in where, majority opinion concedes, as the capacity changes game. the rules of the “the agree VA’s was a substantial Bramwell Dundon v. factor in recognize (E.D.N.Y. very malpractice.” Maj. 1983), at 991. This where govern- considered (10th States, Cir.1979), 601 F.2d 527 interpre- on a strict United argument based ment’s limitations did not run rule and observed where of the Kubrick tation by for someone who was lobotomized the government ap- until a conservator was involving one mere this case as treat [t]o Judge As pointed on his behalf. Arnold general incompetency in the mental government explained, in both cases the government the is to proffered sense “destroyed plaintiffs’ capacities those had sight the decedent’s extraordi- lose to realize the existence and cause of their mental The decedent’s nary situation. injuries.” Clifford, 738 F.2d at 979. Es- condition, allegedly caused his treat- sentially, the court held that as directly prevented his ing physicians, Clifford understanding and cause of a matter of fairness the statute limita- the nature government tions must tolled lest the injuries. be (alleged) wrong.” “profit from its own Id. Id. at 474. specifically at 980. The court held that managed have to circum- Other courts patient age the because the had reached injustice of the result vent the obvious yet majority and had not been declared reluctantly opinion and concurrence lead legally incompetent, knowledge of his support cases Two lines of advance. family imputed members could not be itself is notion that where Furthermore, patient himself. ina- plaintiff’s admitted responsible for the tolling court observed that the statute of worsening perceive of his con- bility to in the case of a coma “does not dition, time barred. the suit will any way well-recognized disturb [the] cases, coma where the The first consists of ordinarily rules” that the statute of limita- directly plaintiff’s lack of consciousness infancy is not tolled for tions negli- government’s attributable to fully incapacity and that its gence.1 malpractice The involves second consonant with Kubrick. Id. at 980. by therapists the transference who violate relationship by engaging in relations sexual Similarly, Washington v. United causing patients thereby their severe with Cir.1985), States, (9th F.2d 1436 aggravating pre-exis- mental distress and court, citing Clifford, held that the cause turn, mental illness. I discuss them tent plain the comatose of action accrued when died, finally she her tiff not when entered

1. The Coma Cases fourteen-yéar coma. The court reasoned plaintiff satisfied the rule In because United Clifford Clifford Cir.1984), (8th never aware of her or its a comatose she was specifically patient represented by guardian-father cause. Id. at 1439. The court knowledge plaintiff’s hus for held that the sued the United States bring stemming drug was irrelevant to her from a overdose. band suit. also Dundon v. court held that the statute of limitations Id. (E.D.N.Y. appointed as accrued when his father was 1983) not, for guardian, (tolling the statute of limitations tended, malpractice under the FTCA where when the fell into the coma. medical Arnold, court, Judge speaking government negligently sent into coma).2 analogized Clifford’s case Zeidler v. Judge correctly their consid-

1. Sloviter in her concurrence ren's concessions cannot foreclose (as parties agreed notes that the did the eration. court) district that these coma cases do not Barren, course, concurrence, apply. Judge was successful below Sloviter contends In her and, presume, challenge distinguished not wish did that the coma cases themselves appeal reasoning, given extraordinary court’s situation of a coma and lobo- the tomy However, incapaci- its decision was in favor. from some lesser level of mental ty. Concurring Op. n. two re- coma cases are before us both in the district 2. make First, rely opinion sponses. upon Be- two cases which I court and the brief. Clifford, they materially analysis heavily, Washington no cause make enhance the most disagree very troubling question, particular, I discussion of this Bar- such distinction. (1979), Jo- Transference Cases

2. The Lord, ques- III a similar seph S. considered mal- of cases involves The second line Pennsylvania’s psychiat- of tion under law therapist who practice by a mental health Although preced- case malpractice. ric this the by engaging in sexual relations violated Kubrick, case, it ed and is not an FTCA relationship patient.3 transference applied the same standard as the Kubrick States, 805 F.2d In v. United Simmons discovery inquired rule. The court into (9th Cir.1986), Appeals the Court of 1363 plaintiff, in exercise of reason- when the held that the statute for the Ninth Circuit diligence, should discovered her able have patient had not run on a who of limitations F.Supp. injury and its cause. 453 at 768. sponsored counsellor government sued her plain- deep dependence It noted the of the wrongfully engaging malpractice for therapist by tiff on her and the assurances during of the course her sexual relations therapist the that their sexual encounters The court held that the two her treatment. part therapy. rejecting were her the year statute of limitations under FTCA n.o.v., in- defendant’s motion for a only began once she had to run been therapist explained jury that the Lord could by formed another present injury (deep depres- dependence source of her have inferred that the extreme suicide) sion, from attempted stemmed her therapist of the on her and the relationship with her former meretricious therapist’s improper impeded behavior the therapist. at 1367. The court dis- Id. plaintiffs “powers judgment” and that phe- of the transference cussed the nature by objective she “neither knew nor stan- great length, explaining nomenon at that dards could have known under those cir- given special patient-therapist relation- cumstances” nature of her or its ship, plain- not hold the court could cause. Id. at 771-72. The court ex- reasonably should known of her tiff have plained: objective “At issue is the effect of injuries any high degree earlier. Id. The discoverability the defendant’s on [conduct] dependence patient and trust of the on by person.... statutory a reasonable [T]he held, therapist, prevented her pa- it was begin does not to run if ... understanding tient from the nature of her plaintiff’s discovery, objectively failure injury or its cause. determined, brought very about McCabe,

In Greenberg F.Supp. 453 765 nature of the defendant’s conduct.” Id. at (E.D.Pa.1978), op:, Kieffer, without 594 F.2d 769. also Person v. 634 aff'd (3d Cir.), 840, 100 F.Supp. (E.D.Pa.1986) (evidence 444 cert. U.S. Second, Judge Sloviter's characterization of the to the extent that Zeidler and Dundon Clifford Although facts, case. it is true that the case takes note extraordinary reasoning do note their situation,” "extraordinary of Allen Clifford's it directly derived from those cases is nevertheless that, quoting language seems clear to me where, here, point Dundon, perceives case the "ex- Clifford cedes that the was unable to detect his traordinary situation” to be the govern- mental deterioration because of the plaintiffs inability perceive causation of the his negligence. ment’s injury. explains: case Clifford And, incompetence generally while mental explained 3. As the court in Simmons v. United limitations, does not toll the statute of (9th Cir.1986): involving treat this case as one [t]o mere by psychiatrists Transference is the term used incompetence general mental proffered by in the sense psychologists patient’s to denote a emo- sight is to lose therapist "generally tional reaction to a and is extraordinary situation. [Allen’s] men- [His] applied projection feelings, thoughts condition, allegedly treating tal caused analyst, and wishes onto the who has come to physicians, directly prevented his under- represent patient’s some from the standing injuries. the nature and cause of his past.” Dundon, supra, (Empha- (quoting Id. at 1364 Stedman’s Medical Dictio- supplied). sis (5th Ed.1982)). nary Lawyers' Clifford, When a interpretation 738 F.2d at 980. This therapist relationship abuses the transference sup-

bolstered the fact that the case Clifford plied Dundon, emphasis sexually quote becomes involved with a from thereby focusing question govern- devastating psychologically on the result is as as an ment’s causation. incestuous relation. 805 F.2d at 1365. ghel’s prevented Barren from dis- may psy- caused care by police dog attack plaintiff’s covering injury. impeding chological difficulties two-year Pennsyl- memory applicable tolled Barren’s Case against police for suits vania tort statute officers). precedents in I have discussed the above my objection detail to demonstrate that relationship and the The nature of the in this case stems from more pa- phenomenon blinded the transference personal than distaste for the un- obvious Greenberg tients Simmons result, of a fairness the sentiment shared comprehending the true nature of their in- by majority. principled the I find no way very juries and its source. These cases are distinguish negli- Barren’s case from the cases cases in that the similar to the coma In (sleeping patient) discussed above. both lines of cases the gence itself with a patient’s injury is unable to detect the and insulated from the detection special through own, its wrongdoer. Because of the re- source no omission of his the abused, therapist but rather of lationship, which the the because the malfeasance of question wrongful wrongdoer Admittedly, the patients did not the ac- himself. dramatic, tivity recognize perhaps the of their coma seems more it as source is stress, easier to understand. I must injuries. how- ever, analytically that Barren's case is no government attempts distinguish The Clear, unchallenged different. in- evidence the transference cases. It claims that that, government’s dicates because of the therapist-patient “Barren was never in a negligence, perceive Barren was unable to psychiatrist, relationship with the YA’s worsening the his of mental condition. For and, therefore, unques- the conditions for purposes recognizing injury, the he tioning present.” trust were not Brief of akin patient (Clifford, to a comatose Appellant at 21 n. 11. The patient Washington), therapist or a whose attempted point. distinction misses the It relationship has violated the transference essentially argues that Barren’s case is dis- (Simmons, Greenberg). tinguishable complains he of too because assistance, government psychiatric little not too much. The claims that the rule I analogy espouse practical The to the transference abuse is “unworkable as a mat- ter,” long cases does not derive from the fact that because it “does not indicate how therapists, delayed.” Appellant’s cases accrual both involve but rather should be wrongdoers responses that both cases involve who Br. at 22. have four might patient engen- are insulated from suit the concern that this narrow rule because reasonably expected statutory cannot be to under- der a case with no foreseeable First, obviously stand the nature or the source of his or her time limit.4 this is a nar- injuries. adding In the case of row In transference rule. Barren’s case to the abuse, therapist situations, the shields himself from short list of like comas and patient’s abuse, discovery wrong by patient the of the transference where the can- taking advantage special, dependent reasonably expected not be to discover the relationship up injury very to cover the and its cause because of inflicting. therapist negligence, pa- open assures the do not we courthouse floodgate tient that the impor- sexual encounter is an doors to a of stale claims. See part therapy Dundon, tant insulating (“[t]he thus ex- harmful ception merely prevents conduct from detection as narrow and patient’s ignorance’ being penalized, source of the worsened mental ‘blameless from health. progression by avoiding having the anomalous result of of Barren’s arguably wronged mental illness under Dr. An- an comatose de- treatment, Additionally, very tolling I note that the nature of the often result in the de facto discovery Kubrick See, rule indicates that in some period. e.g., Otto v. Nation government long cases the will have to wait a Health, (4th al Institute Cir. original time after its tort before it is sued. 1987). Furthermore, factors, other as such continuous historically an ef- been sued. Laches has claim virtue right press a nied his subject, not such claims fective barrier to he seeks to malpractice of which very another, statutory ato for one reason or complain”). doctrine of laches Here the time bar. Second, that have other courts plaintiff's appear to bar not would observed, question have sidered this same claim. handicaps the interests passage time if important, even we brings Finally, and most sides, plaintiff who and a of both exposed be government find that the would long period will have trou- after too suit liability, I must believe we proving to additional adducing evidence ble government the harm to example, the Ninth Circuit not- balance claim. For majori- effect of the [plaintiffs], against the intolerable Washington ed “[t]he ty’s holding, in- which allows the government, share this as well as the negligence. passage to benefit from its own caused creased burden (“[W]e time, pre- Clifford, 738 F.2d at 980 are [plaintiffs] should by the maintaining suaded that the rule contended for this action when vented objectiona- responsible for the would be still more government was government delay.” For under it the would caused ble. condition which omitted). (citations (alleged) wrong.”). Similarly, profit from its own F.2d at 1439 Judge noted that Arnold bottom, I At believe that the Kubrick argument that government’s best is [t]he simply apply to this case. As I rule cannot by plaintiff might the rule advocated above, excep- I have stressed advocate an indefinitely. open leave it to suit No tion to that rule not because of Barren’s true, theory.... at least in

doubt that incompetency simpliciter, but be- exposure Probably the real partic- cause of the conceded government liability slight in to would be ipation perceive in Barren’s to cases, though. passage such The of time Judges empha- injury. Cowen and Sloviter progressively make it more diffi- should subjective. size that the test cannot be For prove cult for to his case. law, proposition they this recite black letter Clifford, they cite no cases that deal with the but unusual circumstances of this case. Nor Third, anyone conducting the balance they directly do confront coma or trans- this case would at once note that sum, ference lines of cases. In I find the government would not have to wait for the tragically inappropriate Kubrick rule un- years to claim accrue for on end. At the Instead, der the I circumstances. advocate latest, very the statute of limitations would following jurisprudence the wise of courts begun have to run John Barren when was equitable excep- that carved a narrow incompetent mentally deemed and his sister tion to the reasonable standard of appointed guardian. Clifford, See government Kubrick where the itself has (statute 738 F.2d at 980 of limitations did plaintiff’s incapacity fostered the to com- begin guardian ap- to run until prehend inju- the nature and source pointed); Zeidler v. United ry.5 (10th Cir.1979) (statute F.2d 527 of limita- begin tions did not to run until conservator II. appointed). I believe that doctrine of upon above, laches can be relied Finally, my to balance the I view conclusion rights plaintiff against question the need of majority address the that the government to concerning know when it will be concurrence do not reach accrues, suggests however, position 5. Sloviter I ad- medical claim "change Concurring vocate would the statute." inherently judicial inquiry. an above, As discussed Op. disagree. at requires I The statute appeals other courts of have not found against that "[a] tort claim shall be forever barred unless it is the United States powerless to be themselves in circumstances presented analogous to Barren’s and for the reasons writing appropriate agency Federal with- I have set forth I think should their we follow in two after such claim accrues." 28 lead. 2401(b). U.S.C. § The determination of when a (Arbitration immunity maj. statutes. D. & C. 461-62 Pennsylvania 3d Panel vexing I to Care), 992 n. 8. find these permission at appeal to for Health pronounce on questions and I hesitate to (Pa.Commw. 14 Pa. D. & C. 3d 466 depth that them here in the otherwise Trellis, 1980); Hanczar v. 14 Pa. D. & C. justified given my dissenting pos- would be (Arbitration 3d 468-69 Panel for Nevertheless, least ture. indicate Care), permission appeal Health de holding my vigorous opposition nied, (Pa.Commw. 14 Pa. D. & C. 3d 470 exercise, I of this case is not a vain will 1980). likely It seems to me that the Su explain briefly why I do not believe that preme Pennsylvania Court of would sim immunity is entitled to full ilarly decide that applies only Pennsylvania statutes. under admission decisions. The statute would government argues it is entitled not, therefore, negligent insulate the treat immunity any to all available to individual {e.g., improper drug Anghel ment of Dr. government body. proposition For this dispensation, advice), though detrimental it Electric General Co. it cites protect would the failure to admit Barren (4th Cir.1987), vacat in-hospital — psychological evaluation. , grounds, ed on other U.S . — (1988), holding I, For the reasons set forth in Part immune from United States tort suit would affirm the district court’s Maryland employer because would be the statute of question. For the Maryland’s immune under from tort suit briefly section, reasons forth in set compensation Proceeding workers’ law. would remand for the district court to de- premise, from this claims First, cide two matters. I believe that the immunity pursuant to 50 Pa.Stat. § district court should question consider the Anghel negli which was effective when Dr. Anghel’s whether Dr. treatment rose to the gently repealed treated Barren but was gross negligence level of incompetence, or provides 1976.6 The statute alleged complaint. It governmental No recog- and no or language clear from the of the statute that nonprofit nized orga- health or welfare Anghel gross if Dr. negligence, committed agency nization or civilly shall be held or criminally any diagnosis, opin- liable for incompetent, or was deemed ion, report any thing pursuant done recovery would not bar at all. See Freach provisions of this act if he acted Commonwealth, v. 471 Pa. 370 A.2d good falsely, corruptly, faith and not ma- (1977). Second, view, my under even liciously cause; or without applies, if the statute the district court however, provided, that causes of action damage must recalculate the award. be- upon gross negligence based or incom- lieve Pennsylvania that under Barren law petence shall not be affected the im- is entitled to receive at least some of his granted by munities this section. award —that negligent attributable to the Mental Health and Mental Retardation Act care he received —even if the district court (1969), 50 Pa.Stat. § § ultimately damages must reduce the to im- repealed by 1978 P.L. 1399 No. § negligence munize the from its I note Pennsylvania two courts in failing to admit Barren for observation provision applies have held that this only to diagnosis. protect admission decisions. See Saun- Inc., Hospital, ders v. Latrobe Area respectfully 14 Pa. dissent. ("No immunity pursu-

6. The also claims statute shall construed to be [be] retroac- (Purdon Supp. ant 50 Pa.Stat.Ann. § clearly manifestly tive unless by so intended 1978). However, only I discuss the first statute Assembly.”). the General Hanczar one, because I believe the second 50 Pa.Stat. Trellis, (Arbitration 14 Pa. D. & C. 3d apply. § does not Section 7114 was Care), permission Panel for Health appeal passed negligence after the in this case had (Pa. 14 Pa. D. & C. 3d 470 Commw. already occurred. See 1 Pa. Const.Stat.Ann. 1980). (Purdon (effective 1972) Supp.1987) §

Case Details

Case Name: John Barren, an Incompetent, by His Guardian, Henrietta Barren v. United States

Court Name: Court of Appeals for the Third Circuit

Date Published: Mar 28, 1988

Citation: 839 F.2d 987

Docket Number: 87-5314

Court Abbreviation: 3rd Cir.