John W. Madsen v. United States

892 F.2d 83 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. John W. MADSEN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 88-3949. United States Court of Appeals, Ninth Circuit. Submitted Oct. 30, 1989.* Decided Dec. 13, 1989. Before JAMES R. BROWNING, SCHROEDER and FLETCHER, Circuit Judges. — 1 — MEMORANDUM** — 2 — Before us is appellant John W. Madsen's appeal from the dismissal of his claim for malpractice against the Veterans Administration. The district court dismissed the claim as time-barred. Appellant was last treated by the defendant in 1974 for the condition from which he continues to suffer. He alleges that he learned only in the two years preceding the filing of his complaint that other treatments were available that could have improved his condition at the time of his VA treatment. A cause of action under the Federal Tort Claims Act for malpractice, however, accrues not when the plaintiff actually discovers that malpractice may have occurred, but when, in the exercise of reasonable diligence, the plaintiff should have discovered both the injury and its cause. Davis v. United States, 642 F.2d 328, 331 (9th Cir.1981) ( citing United States v. Kubrick, 444 U.S. 111, 120-21 (1979)), cert. denied, 455 U.S. 919 (1982). See Raddatz v. U.S., 750 F.2d 791 (9th Cir.1984); Fernandez v. U.S., 673 F.2d 269 (9th Cir.1982). The district court properly dismissed the claim as time-barred. Plaintiff's other claim for breach of a promise to advise the plaintiff of possible treatment over the course of the ensuing years, is not before us for lack of timely notice of appeal. See this court's order of February 24, 1989. — 3 — AFFIRMED. Footnotes [-s] * The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a) [-s-s] ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3