* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 26 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANGELA DANITA RICE, sued as: Markus Allec Rice, a minor, by and through his mother and next friend, Angela Danita Rice nfr Markus Allec Rice, Plaintiff - Appellant, No. 96-5175 N.D. Oklahoma (D.C. No. 94-CV-264-K)

v. UNITED STATES OF AMERICA,

Defendant - Appellee.

ORDER AND JUDGMENT *

Before ANDERSON , BALDOCK , and EBEL , Circuit Judges.

Markus Allec Rice, by and through his mother and ne xt friend Angela Danita Rice, filed suit against the United States p ursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (“FTCA”), alleging medical malpractice on the part of health care providers at the Claremore Indian Hospital, a facility operated by the United States. Following a bench t rial, the district court granted1 Meconium is the dark green material in the intestine of a full-term fetus.

Dorland’s Illustrated Medical Dictionary998 (28th ed. 1994). Meconium is evacuated during the fetus’s/newborn’s first bowel movement. -2- judgment in favor of the United States on the groun ds that Ms. Rice failed to file Markus’s administrative claim within the two-year s tatute of limitations provided by 28 U.S.C. § 2401(b). Ms. Rice appeals on Markus ’s behalf, and we affirm.

I. Angela Rice was determined to be pregnant on January 19, 1990, at Claremore Indian Hospital (“CIH”). Ms. Rice delive red at CIH by cesarean section on October 3, 1990, approximately three wee ks past due. At the delivery, doctors noted meconium-stained amniotic fluid on ne wborn Markus. 1 They suctioned 4 cc of meconium-stained fluid from Marku s’s stomach and resuscitated him with oxygen blow and cutaneous stimulation. Al though Markus appeared healthy during the morning and early afternoon foll owing delivery, a nurse found Markus deeply cyanotic and making grunting respirat ions at 4 p.m. After performing emergency procedures, CIH transferred Ma rkus to Saint Francis Hospital’s Eastern Oklahoma Perinatal Center for mo re specialized treatment. While in route, Saint Francis personnel suctioned m econium from Markus’s lungs. At Saint Francis, doctors determined that Markus sh ould be placed on extracorporeal membrane oxygenation (“ECMO”), a hig h-risk procedure reserved2ECMO involves circulating and oxygenating blood outside the patient’s body.

3 Section 2401(b) provides: “A tort 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 . . . .” -3- for patients with at least an 80% chance of dying. 2 Markus survived the procedure, but now suffers from persistent respirat ory problems, developmental delays, and related medical problems. On April 21, 1993, Ms. Rice filed an administrative claim on behalf of Markus with the Department of Health and Human Serv ices, alleging medical malpractice on the part of CIH. The Department of Health and Human Services denied Markus’s claim on October 25, 1993. Appella nt’s App. at 5. On March 18, 1994, Ms. Rice filed suit on Markus’s behalf in the district court, alleging that CIH acted negligently by failing to intervene timel y in Ms. Rice’s pregnancy, by failing to monitor adequately the condition of Ms. Rice and Markus, by failing to intubate Markus and properly suction the meconium f rom his lungs, by failing to monitor Markus following delivery, by failing to di agnose timely Markus’s condition, and by failing to transport Markus to a better-equipped facility in a timely manner. Id. at 2-3 (Complaint). The United States moved for summary judgment, argui ng that Ms. Rice had not filed Markus’s administrative claim within two years after accrual as required by 28 U.S.C. § 2401(b). 3 Finding that “[t]he applicability of the statute of-4-

limitations turns on the resolution of issues of fa ct and credibility of key witnesses,” the district court denied summary judgm ent and the case proceeded to trial. Id. at 27 (Order filed May 19, 1995). Although the trial also concerned issues of liabili ty and damages, this appeal concerns only the testimony and documentary evidence relating to the statute of limitations. On this point, Ms. Rice te stified that although she knew within hours after Markus’s birth that he suffered from breathing problems, she believed Markus had been “born with” the problems a nd did not discover otherwise until October 2, 1992, when Dr. Cooper, apediatric cardiologist, informed her that Markus’s condition was not heredi tary, but in fact had been caused by meconium aspiration at birth. Id. at 74; Appellee’s Supp. App. Vol. I, at 12-13. With respect to when she first knew CIH had injured Markus, Ms. Rice testified as follows: Q: Angela, when did you know that Claremore Indian H ospital had caused an injury to Markus? A: When I spoke to Dr. Cooper in October of 1992. Q: And what did you learn from Dr. Cooper? A: What he told me was the--the problem that Markus was having--his breathing problems was not hereditary, that it was from him inhaling poop into his lungs. Q: When did he inhale that poop into his lungs? A: After he was born.4Ms. Rice’s testimony was not limited to whether medical personnel had used the

term “meconium” while speaking with her. She testified that no medical personnel had ever used alternative descriptions such as “getting stool or poop into [Markus’s] lungs.” Appellee’s Supp. App., Vol. I, at 25. -5- Q: Is that the first time you knew that he was not b orn with the breathing problem?
A: Yes. Appellee’s Supp. App. Vol. I, at 12-13. Ms. Rice f urther testified that prior to her conversation with Dr. Cooper, she had no idea Marku s had aspirated meconium. Id. at 25. 4 The United States controverted Ms. Rice’s testimony with its own witnesses, as well as with the medical record. Fir st, Dr. Cooper testified that he had no recollection of discussing meconium aspirati on with Ms. Rice on October 2, 1992, and that he doubted he engaged in such a d iscussion. Id. at 130. Dr. Cooper stated that no such discussion was noted in his medical records, and that had he participated in such a conversation, he woul d have noted it. Id. Next, Dr. Vitanza, the Saint Francis physician thatplaced Markus on ECMO, testified that he personally told Ms. Rice on October 5, 1990, that “the cause of the respiratory problem was due to the inf ant swallowing meconium.” Appellant’s App. at 269. Dr. Vitanza testified that it “was explained and again using the simplest terms, bowel movement being swal lowed, that particular material getting into the baby’s lungs causing [sic ] a respiratory problem.” Id. at-6-

270. When asked how sure he was that he explained to Ms. Rice that meconium aspiration caused Markus’s respiratory problems, Dr . Vitanza testified, “On a scale of one to ten, ten.” Id.

. Medical records created at the Indian Health Care R esource Center (“IHCRC”) on January 10, 1991, also suggested that Ms. Rice knew, well before her alleged conversation with Dr. Cooper, that Mark us had been injured by aspirating meconium at birth. It is undisputed that Ms. Rice accompanied Markus to IHCRC on January 10, 1991. Appellee’s Supp. App . Vol. II, at 70 (Request for Admission No. 1). The nurse who took Markus’s medi cal history upon admission recorded that Markus had been “hospitalized for 1 m onth after birth due to swallowing stools.” Id. at 44. Dr. Holmes, who also took Markus’s medical history that day, likewise recorded that Markus had aspirated meconium. Id. Although Dr. Holmes could not specifically recall h er conversation with Ms. Rice, she testified that medical histories are cust omarily obtained from the person who brings the child into the medical facility, and that had she relied on any other source in taking Markus’s history, she would have n oted it on the record. Appellee’s Supp. App. Vol. I, at 80-81, 88-89. Dr. Holmes testified that nurses also customarily obtain medical histories from the person who accompanies the child. Hence, Dr. Holmes testified that the person who brought Markus into IHCRC on January 10, 1991, must have already unders tood that Markus had5A Tulsa Regional Medical Center record dated July 25, 1991, also called into

question Ms. Rice’s testimony that she did not know about Markus’s meconium aspiration until October 2, 1992. Under “Nursing Observations,” the following notation is recorded: “Mom states pt. was meconium stained @ birth and has had ‘asthma like’ probs since.” Separate Addendum to Appellant’s Br. at 49. -7- aspirated meconium and that Markus had “breathing p roblems to the degree that they had to be intubated and on the ventilator and couldn’t breathe on their own for a week.” Id. at 81-82. 5 Following trial, the district court found that Mark us’s claim was timebarred by § 2401(b). Appellant’s App. at 65-66 (Or der filed June 4, 1996). First, the district court found that once Ms. Rice learned meconium aspiration caused Markus’s injury, she suspected that the treatment p rovided by CIH had injured Markus. Second, the district court disbelieved Ms. Rice’s testimony that she had not learned of Markus’s meconium aspiration until h er alleged conversation with Dr. Cooper, and instead found that Ms. Rice knew “at least as early as January 1991” that meconium aspiration caused Markus’s resp iratory problems. Id. Hence, the district court concluded that Markus’s c laim accrued by January, 1991, more than two years prior to the filing of Markus’s administrative claim. The district court dismissed Markus’s claim, and this appeal ensued.

II.6For purposes of accrual under § 2401(b), knowledge of the parent or guardian is

imputed to the minor. MacMillan v. United States , 46 F.3d 377, 381 (5th Cir. 1995); Zavala v. United States , 876 F.2d 780, 782-83 (9th Cir. 1989). -8- The single issue presented is whether the district court erred in finding that Markus’s claim accrued in January, 1991, more than two years prior to the filing of his administrative claim. We review the distric t court’s interpretation of federal law de novo. CCF, Inc. v. First Nat’l Bank& Trust Co. (In re Slamans) , 69 F.3d 468, 472 (10th Cir. 1995). However, “[w]e will not disturb the trial court’s findings of fact unless shown to be clearly erroneous.” Bradley v. United
States , 951 F.2d 268, 270 (10th Cir. 1991). A finding of fact is clearly erroneous if it is without factual support in the record or i f, after reviewing all the evidence, we are left with the definite and firm conviction t hat a mistake has been made. Cowles v. Dow Keith Oil & Gas, Inc. , 752 F.2d 508, 511 (10th Cir. 1985). The resolution of factual issues and conflicting eviden ce lies solely within the province of the district court. Id. Under § 2401(b), a claim accrues when the plaintiff has (1) knowledge of the injury and (2) knowledge of its cause. Bradley , 951 F.2d at 270; Arvayo v. United States , 766 F.2d 1416, 1419 (10th Cir. 1985). 6 On appeal, Ms. Rice devotes her entire argument to the “injury” prong o f the accrual standard. She argues that the district court should have found th at Markus’s claim accrued on October 2, 1992, rather than in January, 1991. Spe cifically, she asserts:-9-

Markus Rice’s claim . . . did not accrue under 28 U .S.C. § 2401(b) until October 2, 1992, when his mother, Angela Rice , learned for the first time that he had not been “born with” breathi ng problems, but that those problems developed because he inhaled “p oop” (i.e., amniotic fluid containing meconium) into his lungs after he was born. On that date, she discovered the fact of her son’s injuryfrom a pediatric cardiologist. Appellant’s Br. at 17 (emphasis added); see also Appellant’s Reply Br. at 7 (“The key to Angela Rice’s realizing that Markus had been injured was Dr. Cooper’s telling her that her son’s breathing problems were not hereditary.”). Ms. Rice contends that once Dr. Cooper conveyed this information and informed her that Markus’s problems resulted from “inhaling poop into his lungs after he was born, then and only then did she suspect an injury and its cause.” Appella nt’s Reply Br. at 7-8 (emphasis in original). The district court found, however, that Ms. Rice kn ew by at least January, 1991, that meconium aspiration caused Markus’s resp iratory problems. That finding is not clearly erroneous. Although Ms. Ric e testified she did not know about the meconium aspiration until October 2, 1992 , her testimony was entirely uncorroborated and contradicted. As previously not ed, Dr. Vitanza testified that he personally explained to Ms. Rice in October, 199 0, that “the cause of the respiratory problem was due to the infant swallowin g meconium.” He testified that he used the simplest terms in speaking with Ms . Rice, and explained to her that Markus’s injury was caused by a “bowel movemen t being swallowed” and by7At oral argument, counsel for Ms. Rice argued that “[Ms. Rice] had to be put on

notice she is not just dealing with a congenital problem.” -10- “particular material getting into the baby’s lungs. ” Furthermore, Dr. Holmes testified that the person who presented Markus for treatment at IHCRC on January 10, 1991, provided a medical history for the child that exhibited an understanding of his meconium aspiration. Ms. Rice admits she is the person who presented Markus at IHCRC on January 10, 1991. Finally, Dr. Cooper did not corroborate Ms. Rice’s version of their alleged October, 1992, discussion, but instead testified that he did not believe he discussed meconium aspir ation with Ms. Rice at that time. On this evidence, the district court plainly was entitled to conclude that Ms. Rice knew by at least January, 1991, that Markus de veloped respiratory problems as the result of meconium aspiration. Ms. Rice argues, however, that the district court f ailed to acknowledge her testimony that she thought Markus’s respiratory pro blems were hereditary, and did not discover otherwise until her conversation w ith Dr. Cooper on October 2, 1992. Apparently, Ms. Rice argues that knowledge of Markus’s meconium aspiration was not itself enough to provide her wit h knowledge of “injury,” but that she also needed to be told by Dr. Cooper that Markus’s respiratory problems were not hereditary. Appellant’s Reply Br. at 7. 78 In support of her assertion that she believed Markus’s condition was hereditary,

Ms. Rice cites an admission form she completed at St. Francis Hospital on May 28, 1991. Appellant’s Reply Br. at 8. On the form, Ms. Rice indicates her belief that Markus was “born with” high blood pressure. Addendum to Appellant’s Br. at 47. We do not perceive, and Ms. Rice does not explain, how the cause of Markus’s high blood pressure has any relevance to Ms. Rice’s beliefs regarding the genesis of his respiratory problems. -11- The district court simply was not required to belie ve Ms. Rice’s testimony that she was confused regarding whether her son’s r espiratory problems were hereditary. First, Dr. Cooper testified that he d oubted he even discussed Markus’s meconium aspiration with Ms. Rice, much le ss that he told her anything about the genetic or non-genetic nature of his resp iratory problems. Second, Ms. Rice testified that she understood “hereditary” to mean a condition that “runs in the families from generations.” Appellee’s Supp. App. Vol. I, at 16. When this is juxtaposed with Dr. Vitanza’s testimony that he tho roughly explained to Ms. Rice in October, 1990, that Markus’s respiratory problem s were caused by a “bowel movement being swallowed” and by “particular materi al getting into the baby’s lungs,” the district court could reasonably infer t hat Ms. Rice did not believe there was anything hereditary about the aspiration of a bowel movement, but instead understood by at least January, 1991, that Markus suffered an “injury” at birth. 8 Indeed, the district court specifically determine d that while it was conceivable that a young first-time mother would re asonably believe that aspiration of meconium was an unavoidable complication at birth, the record9By referring to knowledge of a doctor’s misdiagnosis or mistreatment, we do not

suggest that knowledge of negligenceis necessary to accrual. Both the Supreme Court and this court have made clear that knowledge of negligence is irrelevant to accrual under § 2401(b). United States v. Kubrick , 444 U.S. 111, 123 (1979) (“We thus cannot hold that Congress intended that ‘accrual’ of a claim must await awareness by the plaintiff that his injury was negligently inflicted.”); Gustavson v. United States , 655 F.2d 1034, 1037 (10th Cir. 1981) (“Whether doctors who treated him had been negligent in not discovering his condition and recommending surgery relates to the question of knowledge of malpractice, a matter irrelevant to the running of the statute of limitations.”). A doctor’s failure to diagnose or treat a plaintiff’s malady may or may not breach community standards of due care. Accrual, however, requires only knowledge that the failure, whether or not negligent, was a cause of the injury, or knowledge of information sufficient to cause a reasonably diligent person to inquire into causation. -12- would not support a finding that Ms. Rice held such a belief. Appellant’s App. at
65-66 n.5. This leaves only the “causation” prong of the accru al standard. In cases involving alleged failures to diagnose or treat, we have held that knowledge of “cause” means more than mere awareness of the medicalcause of injury. Arvayo , 766 F.2d at 1420. In Arvayo , a child suffered permanent injury when an Air Force doctor failed to diagnose the child’s bacteri al meningitis. There, we held that accrual depended not merely upon knowledge of a causal connection between the child’s injury and the bacterial meningitis (me dical cause), but also upon knowledge of the causal connection between the chil d’s injury and the doctor’s misdiagnosis, or knowledge sufficient to cause a re asonably diligent person to inquire into causation. Id. at 1421-22; MacMillan , 46 F.3d at 381. 9 Whether a10 One could imagine an argument that the knowledge Ms. Rice claims she gained

on October 2, 1992, is not necessarily enough for accrual. Knowledge that a child’s respiratory problems were caused by meconium aspiration, rather than heredity, may or may not lead a reasonably diligent person to suspect, or inquire into, a causal connection between the injury and medical treatment received. Although the point may be debatable, Ms. Rice has not raised it. -13- plaintiff has exercised reasonable diligence in inq uiring into cause will “vary with the facts of each particular case.” Id. In this case, the district court concluded that the knowledge Ms. Rice possessed in January, 1991--namely, that Markus’s r espiratory problems were caused by the aspiration of meconium--was sufficien t to place a duty of inquiry upon her, and to commence the running of the statut e. On appeal, Ms. Rice has disputed only whether she actually possessed this k nowledge in January, 1991, and has not challenged the finding that this knowl edge would be sufficient for accrual. Indeed, Ms. Rice has essentially conceded the point by consistently arguing that Markus’s claim accrued in October 2, 1 992, when she “learned for the first time that [Markus] had not been ‘born wit h’ breathing problems, but that those problems developed because he inhaled ‘poop’ . . . into his lungs after he was born.” Appellant’s Br. at 17. Significantly, Ms. Rice has never claimed that Dr. Cooper discussed with her on October 2, 1992, t he treatment provided by CIH or any possible failures on the part of CIH. And, she has not argued that accrual required anything more than what she allegedly lear ned from Dr. Cooper. 10 In-14-

light of the district court’s finding that Ms. Rice knew by January, 1991, what she claimed to have learned on October 2, 1992--and in the absence of any developed argument by Ms. Rice that some additional knowledge would be required for accrual in this case--we will not disturb the distr ict court’s finding that Markus’s claim accrued in January, 1991, more than two years prior to the filing of his administrative claim.

III. We understand that statutes of limitations often ma ke it impossible to enforce what may otherwise have been perfectly vali d claims. Kubrick , 444 U.S. at 125. But § 2401(b) waives the sovereign immunity of the United States, and we are not free to construe it in a manner which extends the waiver Congress intended. Id. at 117. Accordingly, we AFFIRM the district courtorder dismissing Markus’s claim as time-barred under § 24 01(b).
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge