Opinion
CIVIL ACTION NO. 3:00CV-624-S
September 10, 2001
MEMORANDUM OPINION
This matter is before the Court on the motion of the Defendant, the United States of America, for summary judgment. For the reasons stated below, we will grant this motion by a separate order entered this date.
FACTS
This suit arises under the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. § 1346(b), and stems from a biopsy performed by a doctor at the Fort Knox, Ireland Army Community Hospital on the Plaintiff, Pauline Robinson ("Robinson"). According to the complaint, on August 12, 1991, the doctor punctured Robinson's breast implant during the biopsy and failed to repair it properly. This allegedly caused silicone to leak from the implant into the body and created numerous physical and emotional problems for Robinson. As a result, Robinson filed a claim with the Department of the Army, as is required by the FTCA, on November 16, 1994, and her claim was eventually denied. She then initiated this suit.
DISCUSSION
The United States' motion claims that it is entitled to summary judgment on the grounds that Robinson's action is barred by the FTCA's statute of limitations. Specifically, this argument focuses on the time between the biopsy and the filing of the claim with the Department of the Army. Robinson had two years after her cause of action accrued to file her claim. 28 U.S.C. § 2401(b). Because she filed her claim on November 16, 1994, the question is whether her claim accrued before or after November 16, 1992.
According to the United States, Robinson's cause of action arose shortly after the biopsy when she noticed that the burning sensation in her breast was not improving or, at least, by October of 1992 when she began to experience many of the more serious health problems for which she now claims damages. Robinson, however, argues that her claim did not accrue until February, 1993, when she first learned of the silicone leakage.
The general rule is that a cause of action accrues when the tortious act is committed. Hicks v. Hines, Inc., 826 F.2d 1543, 1544 (6th Cir. 1987). In this case, the tortious act was committed on August 12, 1991, when the doctor punctured Robinson's breast implant. As the Hicks court explained, as long de minimis harm is discernable at the time of the act, then the statute of limitations begins to run. Id.
Robinson has admitted that she was informed by the doctor of the puncture after she awoke from the surgery. (Robinson Depo. p. 14.) She also admits that she had a pain in her breast that never healed in the weeks after surgery and actually continued to get worse. ( Id. p. 41-42.) A postoperative pain which progresses instead of healing, especially when coupled with information that implant was punctured, amounts to de minimis harm. Thus, we hold that the statute of limitations began to run from the time several weeks after the surgery at which a reasonable person would have expected the post-operative pain to begin diminishing. It is of no consequence that Robinson may not have realized that the puncture on her breast would lead to more serious injuries. Hicks, 826 F.2d at 1544 ( quoting Albertson v. T.J. Stevenson Co., 749 F.2d 223, 229 (5th Cir. 1984)). As the biopsy was performed more than three years before she filed her claims, there is no question that the statute of limitations bars Robinson's claim.
Robinson's argument that her claim did not accrue until she was informed by a military doctor in Texas that her breast implant had leaked is not persuasive. The bulk of this argument was rejected by the Supreme Court in United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). There, the Court held that the statute of limitations did not toll until the plaintiff learned that his injury was likely caused by the defendant's negligence. Id. at 122, 100 S.Ct. at 359. The cause of action accrued when the plaintiff came into "possession of the critical facts that he has been hurt and who has inflicted his injury." Id. At that point, other physicians "can tell him if he has been wronged, and he need only ask." Id.
Before Robinson's meeting with the Texas doctor. she had: (1) been informed of the puncture; (2) contacted her plastic surgeon's office regarding the puncture; (3) experienced an increasing pain in her breast; (4) experienced numerous, more serious physical and emotional health problems; (5) seen a commercial linking implants with health problems similar to hers; and (6) contacted a lawyer in reference to her implants. Thus, she was aware of the "critical facts" more than two years before she filed her claim.
The first four of these events all occurred more than two years before Robinson filed her claim with the Department of the Army. However, the last event, her contacting the lawyer, occurred within two years of the filing, and the other event may or may not have been within two years. Nevertheless, our holding is that her claim accrued before these last two events. We include them only to demonstrate the implausibility of Robinson's argument and the fact that Robinson was aware of the necessary facts which would impose upon her a duty of investigation.
The one "fact" of which Robinson was not aware, that the silicone had actually leaked, is not an essential fact in this case. Robinson had been made aware of the puncture, was concerned about it, and had experienced pain in her breast and other health problems which should have indicated to her that leakage may have occurred. At that point, she still had two years to investigate and to file her claim which she failed to do.
CONCLUSION
There is no genuine issue of material fact regarding whether the statute of limitations bars the Plaintiff's claims. The Defendant's motion will be granted by a separate order entered this date.