704 F.2d 1074 (9th Cir. 1983), 80-5472, Augustine v. United States

Docket Nº:80-5472.
Citation:704 F.2d 1074
Party Name:Richard AUGUSTINE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Case Date:April 26, 1983
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1074

704 F.2d 1074 (9th Cir. 1983)

Richard AUGUSTINE, Plaintiff-Appellant,

v.

UNITED STATES of America, Defendant-Appellee.

No. 80-5472.

United States Court of Appeals, Ninth Circuit

April 26, 1983

        Argued and Submitted Nov. 12, 1981.

Page 1075

        Gary E. Donahoe, Robbins & Green, P.A., Phoenix, Ariz., for plaintiff-appellant.

        Paul A. Katz, Asst. U.S. Atty., Phoenix, Ariz., for defendant-appellee.

        Appeal from the United States District Court for the District of Arizona.

        Before KENNEDY, PREGERSON, and REINHARDT, Circuit Judges.

        REINHARDT, Circuit Judge:

        Plaintiff Richard Augustine brought an action for damages under the Federal Tort Claims Act (FTCA) 1 for the alleged malpractice of Air Force dental surgeons. The Government filed a motion to dismiss for lack of subject matter jurisdiction based on Augustine's alleged failure to comply in a timely manner with the administrative claim requirement of 28 U.S.C. Sec. 2401(b) (1976). 2 The district court granted the motion and dismissed the action. 3 We reverse.

Page 1076

       I. FACTS

        In September 1975, Augustine was examined by Lieutenant Colonel Wysocki, a United States Air Force dentist, for the purpose of having a dental plate constructed. An impression of Augustine's mouth was made at that time. When Augustine returned to Dr. Wysocki on October 14, 1975, Dr. Wysocki informed him that the partial plate could not be made until he had a bump on his upper left palate treated. Dr. Wysocki referred Augustine to Major Peter Allen, an Air Force oral surgeon, for an examination of the bump. Augustine testified in a deposition that at that time the bump was no bigger than a pinhead, that he experienced no pain unless pressure was applied to the area, and that it had been there for some time.

        Dr. Allen examined Augustine on November 13, 1975. During the visit Dr. Allen examined the problem area, made a radiograph of Augustine's palate, and performed a needle aspiration on the bump. According to Augustine, Dr. Allen stated that he could not make a diagnosis at that time and told Augustine to return the next day.

        Augustine stated that he returned to the base the next day as requested and that Dr. Allen again said that he did not know what the problem was. Augustine also stated that Dr. Allen did not perform any further tests, did not schedule an appointment for him at the Ear, Eye, Nose and Throat (EENT) clinic, and did not express any concern that the bump reflected a potentially serious medical problem. Augustine's medical records do not indicate this second visit to Dr. Allen, nor does the doctor recall such a visit. Augustine also testified that he made various unsuccessful attempts in November 1975, December 1975, January 1976, and February 1976 to get an appointment at the EENT clinic. The Government contends that Augustine did not seek further medical help until November of 1977.

        In November 1977, Augustine told Dr. Gordon Young about the bump during a routine physical examination. Dr. Young referred Augustine to Dr. Nowak, who determined that the growth was cancerous. On November 16, 1977, Dr. Nowak operated on Augustine to remove the cancerous growth. In August 1980, Augustine underwent further surgery to remove additional cancerous material. It was discovered that Augustine had developed metastatic spread of the cancer.

        Augustine filed his administrative claim on April 17, 1978, more than two years after the Air Force dentists allegedly failed to diagnose his condition. On December 14, 1978, Augustine filed his complaint under the Federal Tort Claims Act, 28 U.S.C. Sec. 2674 (1976). He sought damages for the alleged medical malpractice of the Air Force dentists based on their failure to do the following: (1) to diagnose the potential hazards and possible cancerous nature of the growth; (2) to treat properly the potential hazards and possible cancerous nature of the growth; (3) to explain to him the potential hazards of such growth; (4) to explain to him the possible cancerous nature of the growth; and (5) to place him in the care of someone having the expertise to treat and diagnose the growth properly.

        The...

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