Quinones v. United States , 324 F. App'x 11 ( 2009 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-1885
CESAR QUIÑONES,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Leval,* Circuit Judges.
Daliah Lugo Auffant with whom Pérez Vargas & Lugo Auffant
Law Offices, P.S.C. were on the brief for appellant.
Steve Frank with whom Leonard Schaitman was on the brief
for Gregory G. Katsas, Assistant Attorney General, and Rosa Emilia
Rodriguez-Velez, for appellee.
April 29, 2009
*
Of the United States Court of Appeals for the Second Circuit,
sitting by designation.
LEVAL, Circuit Judge. Cesar Quiñones (“Plaintiff”)
appeals from the judgment of the United States District Court for
the District of Puerto Rico (Pieras, J.) granting summary judgment
in favor of Defendant, the United States of America. Plaintiff’s
claim, brought under the Federal Tort Claims Act (“FTCA”), 28
U.S.C. §§ 2671 et seq., is essentially that the doctors of the
United States Veterans Administration (“VA”) negligently
misdiagnosed his illness as schizophrenia, when in fact he was
suffering from post-traumatic stress disorder (“PTSP”), and
accordingly failed to treat his illness correctly. The district
court dismissed the claim because Plaintiff failed to present his
administrative claim to the VA within two years as required by the
Act. We affirm.
BACKGROUND
Plaintiff served in the army from 1964 to 1967 and saw
combat in the Vietnam War as a medic. Since his return from the
Vietnam War, Plaintiff has suffered difficulty sleeping,
depression, isolative behavior, nightmares, flashbacks,
hallucinations, homelessness, difficulty maintaining employment,
marital strife, and a suicide attempt.
Between 1968 and 1983, Plaintiff was diagnosed with
schizophrenia and treated for it on several occasions at the San
Juan Veterans’ Medical Center (“SJVMC”). He was hospitalized a
number of times during this period. The diagnosis for one
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hospitalization was “schizophrenic reaction, catatonic type.” He
was treated during hospitalization with a number of medications and
psychotherapy.
In October 1983, Plaintiff was diagnosed for the first
time at SJVMC with PTSD, in addition to schizophrenia. The
diagnosis at this time included both schizophrenia and PTSD.
Thereafter, Plaintiff sought numerous times to claim service
connection for PTSD. Service connection requires medical evidence
diagnosing the condition, a link between current symptoms and an
in-service stressor, and credible supporting evidence that the
claimed in-service stressor occurred. Plaintiff’s requests were
denied a number of times, including in June 1994, June 2002, and
July 2006.
On January 20, 1994, Plaintiff received a Compensation
and Pension Exam Report, pursuant to evaluation of his claim for
service-connected PTSD diagnosis. In this exam, his diagnosis was
“[s]chizophrenia undifferentiated type, in remission of acute
systems.” The report stated, “It is the unanimous opinion of the
Board that there is no clinical evidence in history or in clinical
evaluation for a Post Traumatic Stress Disorder diagnosis.”
He received another Compensation and Pension Exam Report
in June 1999 in Florida. This time, however, the report stated,
“While the patient has been diagnosed as undifferentiated
schizophrenia, the patient’s symptoms now and description of
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symptoms since his time in Vietnam are more consistent with a
diagnosis of post-traumatic stress disorder.” The stated diagnosis
was PTSD and history of undifferentiated schizophrenia. A
Compensation and Pension Exam Report based on an examination in
September 2000, by a doctor at a VA facility in Florida, concurred
with the PTSD diagnosis. The reporting doctor stated, “I agree
with [the June 1999] assessment that although the patient was
diagnosed with undifferentiated schizophrenia during his time in
the military service, his symptoms now and the description of his
symptoms since his time in Vietnam are more consistent with that of
a diagnosis of posttraumatic stress disorder.” This report
concluded, “Again, I do not feel that the diagnosis of
schizophrenia is an accurate one. I do feel that he suffers from
posttraumatic stress disorder, and that accounts for his
hallucinations and delusions as well as the depressive component
that i[s] seen in this patient.”
In his deposition, Plaintiff was asked, “And what
diagnosis did they g[i]ve you at VA in Orlando, VA Hospital.” He
answered, “They both said I had PTSD, not schizophrenia and I was
evaluated twice in [Florida]; once by [Dr. O’Dell] and I don’t
remember the name of the other doctor but they came to the same
determination . . . .”
Plaintiff testified that after his time in Florida he
went to Panama in 2004, where a private psychiatrist said that he
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was being given the wrong medication because the schizophrenia
diagnosis was incorrect. In October 2005 Plaintiff requested from
the VA a copy of his records.
Plaintiff filed an administrative claim with the VA in
May 2006. He claimed medical malpractice for wrongful diagnosis
and treatment and he claimed physical and emotional damages. He
stated that the VA wrongfully diagnosed him with and treated him
for schizophrenia.
After waiting the requisite six months without an agency
decision on his claim, Plaintiff filed the instant action in May
2007.1 Defendant moved for summary judgment on the ground that the
district court lacked subject matter jurisdiction because Plaintiff
failed to file a timely administrative claim with the VA. The
district court agreed and entered judgment in favor of Defendant.
DISCUSSION
“Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law based on the pleadings, depositions,
answers to interrogatories, admissions on file, and any
affidavits.” Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st
Cir. 2008). This Court reviews a district court’s grant of summary
1
Under the FTCA, a claimant must present his claim to the
appropriate government agency and await either a final disposition
of the claim or the passage of six months without such a
disposition before filing suit in district court. 28 U.S.C. §
2675(a).
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judgment de novo, construing the record evidence in the light most
favorable to the nonmoving party. Dennis v. Osram Sylvania, Inc.,
549 F.3d 851, 855 (1st Cir. 2008).
The FTCA’s statute of limitations provides, in relevant
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
U.S.C. § 2401(b). Under the discovery rule, which applies to
medical malpractice claims, a claim accrues when the plaintiff
knows both the existence and cause of his injury. McIntyre v.
United States, 367 F.3d 38, 51 (1st Cir. 2004).
Plaintiff filed his administrative claim with the VA in
May 2006. As a result, the FTCA statute of limitations bars his
claim unless his claim accrued within two years prior to such date.
Plaintiff acknowledged in his deposition that in his consultation
at the VA clinic in Orlando in 1999, he was given a diagnosis of
“PTSD, not schizophrenia.” He acknowledged further that when he
was evaluated again in Florida the doctors gave him the same
determination. Upon his receipt of those pieces of advice that his
earlier schizophrenia diagnosis was incorrect, his claim accrued.
At that point, he was obligated, in order to preserve his claim, to
present it in writing within two years to the appropriate Federal
Agency. 28 U.S.C. § 2401(b). He did not file an administrative
claim until 2006, which was not timely. As a result, his claim is
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barred. The district court properly granted summary judgment on
this ground.
We have reviewed Plaintiff’s other arguments and find
them to be without merit. We affirm.
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