1 MILR (Rev.) 59

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 85-03
(High Ct. Civil No. 1984-008)

ATKIM LEON, individually and as Representative of the Estate of TIEN LEON, Deceased,
Plaintiff-Appellant,

-v-

REPUBLIC OF THE MARSHALL ISLANDS, JOHN IAMON and LUDMILLA PINGOL,
Defendants-Appellees.

APPEAL FROM THE HIGH COURT

JANUARY 27, 1987

BURNETT, C.J.,
SOLL, A.J., and TENNEKONE, A.J. (sitting by designation)

SUMMARY:

Plaintiff-Appellant appealed the trial court's dismissal of this medical malpractice case. Judgment was reversed and the case remanded to the trial court to determine the point in time when the claim of negligence in medical treatment arose. Any determination of this question must rest on the findings of fact.

DIGEST:

1. TORTS – Government Liability Act – Scope: The Act does not address the issue whether government has sole liability for torts of its employees. It was error to dismiss action as to employees.

2. TORTS – Medical malpractice – Time claim accrues: Rule established by the U.S. Supreme Court in United States v. Kubrick, 444 U.S. 111, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979), that cause of action accrued when claimant knew both the existence and the cause of injury, is not inflexible. It must necessarily be applied to varying fact situations.

OPINION OF THE COURT BY BURNETT, C.J.

On January 16, 1984, Appellant filed this action to recover damages for the death of Tien Leon, alleging negligence in his medical treatment while a patient in a hospital owned and operated by the Republic of the Marshall Islands. Appellees Iamon and Pingol are employed as doctors in the hospital; it is alleged that decedent was under their care.

The Attorney General moved to dismiss, on behalf of all defendants, for failure to comply with the Government Liability Act 1980, P.L. 1980-19. On March 12, 1985, the trial court granted the motion and dismissed the action. This appeal followed.

I

Appellant first claims error in the dismissal as to the individually named Defendants, Iamon and Pingol. The court below did not discuss the issue, but apparently placed all three defendants on equal footing under the Liability Act.

[1] A careful reading of the Act reveals nothing whatever with respect to the liability of an employee of the government. Nowhere is there any suggestion that the government shall be solely liable for the torts of its employees; the Act simply does not address the issue.

In contrast, the Congress of the United States enacted specific legislation making action against the United States, under the Federal Tort Claims Act, 48 U.S.C. 2671 et seq., the exclusive remedy where malpractice is alleged against its employees. See, for example, 10 U.S.C. 1089 as to medical personnel of the Veteran's Administration (enacted 1965). The legislative history of the act to immunize medical personnel of the armed forces makes clear that the employees were personally liable in the absence of legislation. See 1976 U.S. Code Cong. and Admin. News, page 4443. Hernandez v. Koch, 443 F.Supp. 347 (1978).

We hold it was clear error to dismiss as to Defendants Iamon and Pingol.

II

Section 9 of the Act provides:

"(a)ll tort and contract claims must be filed with the Attorney-General within six (6) months from the date when the claim arose."

Death occurred on January 30, 1983. The administrative claim was filed January 9, 1984. The Attorney General urged, and the trial court held as grounds for dismissal, that compliance with § 9 of the Act is jurisdictional, and that the "claim arose" on the date of death. Appellant contends that the claim did not arise until she had the benefit of expert medical evaluation of the hospital records.

Thus, the crucial question in an action for medical malpractice is the time when that cause of action accrues. It cannot be assumed to be the date of the allegedly faulty treatment. Instead, its determination requires factual inquiry; since this matter comes to us following a dismissal, there are no facts in the record on which that determination might be made.

[2] The U.S. Supreme Court, in United States v. Kubrick, 444 U.S. 111, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979) cited with approval the trial court's "concession" that the general rule throughout the lower federal courts is that a claim accrues when "the claimant has discovered, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice," 435 F. Supp. 166, 180 (ED Pa, 1977).

The Court of Appeals, 581 F.2d 1092 (1978), affirmed, holding that, as had the District Court, the claim did not accrue until the time claimant was informed that his treatment was improper.

The Supreme Court reversed, and stated the rule to be that the cause of action accrued when the claimant knew both the existence and the cause of injury, rather than the time when he actually learned that the injury may have resulted from medical malpractice. It thus established a standard under which one who has the facts concerning his treatment and his injury must institute prompt inquiry to determine whether that treatment was proper. In so doing, however, it pointed out the obvious – that the facts may be in the possession of the defendant and thus, at the very least, be difficult to obtain. Any such situation would, of course, toll the statute.

We may also note that the Supreme Court was concerned about any undue extension of a 2-year limitation period under the Federal Tort Claims Act, particularly since that Act waived the immunity of the United States. That is far from our situation. Here the Government is specifically denied immunity, and has established only a 6-month limitation period for filing claims.

Clearly the Kubrick rule is not an inflexible one, since it must necessarily be applied to varying fact situations. See Dubose v. Kansas City Southern Railway Co., 729 F.2d 1026 (5th Cir., 1984).

Any determination here as to the point in time when the claim arose must rest on a finding of the facts. That is the function of the trial court.

We do not now reach the constitutional issues raised by Appellant, since it is unnecessary to do so.

Reversed and remanded to the trial court.

Michael A. White for Plaintiff-Appellant
Philip A. Okney for Defendants-Appellees