481 F.2d 257 (3rd Cir. 1973), 72-1024, Tyminski v. United States

Docket Nº:72-1024, 72-1025.
Citation:481 F.2d 257
Party Name:Viola TYMINSKI, General Administratrix and Administratrix ad Prosequendum of the Estate of Edward Tyminski, Deceased, Appellant, v. UNITED STATES of America. Viola TYMINSKI, General Administratrix and Administratrix ad Prosequendum of the Estate of Edward Tyminski, Deceased v. UNITED STATES of America, Appellant.
Case Date:June 19, 1973
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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481 F.2d 257 (3rd Cir. 1973)

Viola TYMINSKI, General Administratrix and Administratrix ad Prosequendum of the Estate of Edward Tyminski, Deceased, Appellant,



Viola TYMINSKI, General Administratrix and Administratrix ad Prosequendum of the Estate of Edward Tyminski, Deceased


UNITED STATES of America, Appellant.

Nos. 72-1024, 72-1025.

United States Court of Appeals, Third Circuit.

June 19, 1973

Argued Feb. 5, 1973.

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[Copyrighted Material Omitted]

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Jerome H. Ellis, Verlin, Goldberg, Ellis & Epstein, Philadelphia, Pa., Joseph H. Kenney, Archer, Greiner & Read, Camden, N. J., for Viola Tyminski; Charles L. Harp, Jr., of counsel.

Harlington Wood, Jr., Acting Asst. Atty. Gen., Herbert J. Stern, U. S. Atty., Alan S. Rosenthal, William D. Appler, Attys., Dept. of Justice, Washington, D. C., for the United States.

Before BIGGS and GIBBONS, Circuit Judges, and HUYETT, District Judge.


HUYETT, District Judge.

This medical malpractice case against the United States raises questions concerning the application of the Federal Tort Claims Act's statute of limitations, 28 U.S.C. § 2401(b), 1 and the proper award of damages for the value of gratuitous nursing services rendered decedent, Edward Tyminski, by his wife, the plaintiff-appellant. 2 The District Court found that the statute of limitations had not run at the time suit was brought and that damages would not be allowed for gratuitous nursing services. We affirm the judgment of the District Court on the statute of limitations issue and reverse the denial of damages for gratuitous nursing services. We remand for computation of these damages. 3


On May 20, 1949 Edward Tyminski received a ten (10) percent disability rating from the Veterans Administration (VA) for injuries sustained by him

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while serving in the military during the Second World War. The injuries were caused by pieces of shrapnel which entered his body on the right side. Complaining of progressive difficulty in walking and increased pain to his right side, Tyminski entered a VA hospital in the Bronx, New York on June 10, 1957. After taking tests, including a myelogram, the diagnosis was made that there existed a space-taking lesion of the thoracic area of the spinal cord, known as an arteriovenus angioma (AVA), extramedullary in nature, that is outside the substance of the spinal cord. An operation was performed on July 17, 1957 for exploratory purposes and to demonstrate the existence of the AVA. The operation performed was a thoracic laminectomy at T-9, 10, 11, and 12 of the spinal column. Tyminski was not informed of the risks involved in the operation.

The details of the operation were found by the District Court to include the removal of the spinous processes and laminae of the spinal column with incisions made in both the dura and arachnoid. The arachnoid was adherent to the AVA and was cleared of several of the adhesions. The bones removed during the operation, the spinous processes and laminae, were not replaced; thus, there existed a potential "dead" space where these bones had been. In addition, clearing the arachnoid involved some manipulation of the spinal cord which could cause edema of the spinal cord. Within days of the operation Tyminski began progressively to lose control of the bodily functions in his lower extremities. By July 27, 1957 Tyminski's neurological condition deteriorated into flaccid paraplegia. Within a month of the operation the complete paraplegia in the lower extremities of Tyminski's body became spastic.

Tyminski was persistently informed by the defendant's physicians that the paraplegia was due to the natural progression of the congenital AVA. The District Court, however, found that the paraplegia was caused by post-operative bleeding within the operative site which collected in the potential space outside the dura, forming an epidual hematoma and causing pressure on the spinal cord. The pressure of the hematoma created a block of the spinal cord. An epidural hematoma in these circumstances, the District Court found, requires immediate treatment consisting of a second operation for the purpose of removing the accumulated blood and stopping the source of the bleeding. The failure to re-operate and stop the post-operative bleeding was found to be the proximate cause of the paraplegia. The defendant's negligence consisted in failing to recognize the symptoms of paralysis as caused by the hematoma and in failing to re-operate and stop the post-operative bleeding. These findings of fact have not been appealed by the Government. The District Court also made elaborate findings concerning the severe suffering, until his death by pneumonia in June, 1969, caused Tyminski by the injuries inflicted on him. During a substantial portion of the time from the operation to Tyminski's death, care was rendered by his wife at their home in New Jersey. The care afforded by Tyminski's wife was essentially equivalent to the care that would have been afforded by a trained nurse had the Tyminskis been able to afford such nursing service.

Tyminski was discharged from the hospital in December 1959. He was subsequently admitted to the hospital on the following dates: (1) May 12, 1960 to July 26, 1960, (2) September 14, 1960 to June 7, 1961, (3) July 24, 1961 to June 15, 1962, (4) June 23, 1965 to November 19, 1965, and (5) January 2, 1969. On nineteen separate occasions Tyminski was subject to surgery caused by the sequallae of paraplegia.

In December, 1962 Tyminski sent a letter to a local newspaper requesting aid in his effort to "prove a service-connected disability that aggravated my condition to send me to the hospital for treatment." The letter also indicates Tyminski's belief that his pre-operative condition was worsened by the hospital treatment he had received. Furthermore,

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the letter indicates Tyminski's futile efforts to obtain medical assistance in proving a service-connected disability. The letter details the following efforts made in this regard: (1) Tyminski had his wife write a doctor at the VA hospital "for any evidence which might prove service-connected . . .", (3) he also had his wife "go to the Red Cross, but they could not offer any help," (3) a similar inquiry was made to a Mr. Fouratt at the Armory and (4) an inquiry was made to a representative of the Disabled American Veterans Office (DAV) in Newark, New Jersey. The letter ends with this plea to the local newspaper:

"We cannot afford an outside doctor to look into the matter. All our savings are gone. We have spent every penny on the medical supplies I need. I am trying to prove service-connected disability because I am totally disabled. The doctors and the V.A. will not help me. Perhaps in this case there is negligence on the hospital [sic] part." (emphasis supplied)

The letter was brought to the attention of the VA by Tyminski's Congressman. The VA treated the letter as a claim for increased benefits pursuant to 38 C.F.R. §§ 3.154 and 3.158 (1972). 4


* * *

In response to Tyminski's letter the VA on April 16, 1963 replied that it was their opinion that no basis for an increased disability rating existed. The VA letter states:

In your case, the evidence is clear that your condition at the time you were hospitalized was of a progressive nature. Your present condition was obviously the normal progression or development of the pre-hospital condition. The records show that the hospital medical staff did everything known to modern medical science in an effort to alleviate, remedy or cure your neurological disorder. It is unfortunate that your condition progressed to the extent shown, but you are assured that no fault on the part of the Veterans Administration is apparent, and accordingly your claim for benefits on account of a neurological disorder must be denied.

The opinion stated in the VA letter was based on a rating decision dated March 1, 1963. This rating decision states that it is "apparent that the veteran's spinal cord function upon initial hospital admission in 1957 had already reached a degree of almost total incapacitation then and that the subsequent total paraplegia was none other than the natural progress of the congenital vascular malformation of the spinal cord [the AVA]." The rating decision is signed by three rating specialists, one of whom is a medical doctor. By letter dated December 12, 1963 Tyminski noted his disagreement with the VA's determination.

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As a result of filing an appeal of the VA determination, Tyminski received a "Statement of the Case." The "Statement of the Case" summarized the medical findings upon which the March 1, 1963 rating decision was based. Like the rating decision the "Statement of the Case" was signed by a medical doctor. By letter of April 30, 1964 a representative from the DAV prepared Tyminski's appeal to the Board of Veterans Appeal. The DAV representative based the appeal on two grounds: (1) that the paralysis was caused by the shrapnel wounds which aggravated a pre-existing condition, and (2) that the paralysis was the result of the July 17, 1957 surgery "which was contra-indicated and that the exposure of the malformed mass caused paralysis. It is contended that this resulted from an error in medical judgment." The second contention made by the DAV representative first appears in the record in the statement of grounds for appeal.

The hearing before the Board of Veterans Appeal was held on June 9, 1964. One of the members of the Board hearing Tyminski's appeal was a medical doctor. At the hearing Tyminski stated as follows:

Dr. Krueger told me that I had something on my spine but he did not know what it...

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