Richman v. U.S., 82-1919

Citation709 F.2d 122
Decision Date10 June 1983
Docket NumberNo. 82-1919,82-1919
PartiesSarah RICHMAN, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

C. Donald Briggs, III, Boston, Mass., with whom Bernard A. Kansky, Boston, Mass. and Robert B. Rumrill, Boston, Mass., were on brief, for plaintiff, appellant.

Nancy Serventi, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for defendant, appellee.

Before CAMPBELL, Chief Judge, ALDRICH, Circuit Judge, and BONSAL, * District Judge.

BAILEY ALDRICH, Senior Circuit Judge.

In this Federal Tort Claims action defendant filed a motion to dismiss, asserting seven grounds, four of which were accepted by the court, without opinion, with the following succinct order. "Upon consideration of motion and supporting and opposing memoranda, motion allowed and ordered that the case be dismissed on grounds 1, 2, 3 and 6."

These grounds were, 1. The complaint fails to state a ground upon which relief may be granted. 2. Jurisdiction is lacking because plaintiff failed to file a timely administrative claim as required by law. 28 U.S.C. Sec. 2675, 2401(b). 3. The claims are barred by the statute of limitations. 6. The complaint is barred by the earlier rulings of the district court in C.A. No. 81-0059-Mc.

It is perhaps difficult, simply by reading the complaint, to find sufficient basis for defenses 2 and 3, and, for that matter, 6. However, the "supporting and opposing memoranda" agree on the underlying facts. We shall, accordingly, treat the order of dismissal as a grant of summary judgment for the defendant. So considered, it was correct.

The facts are these. On January 11, 1979 plaintiff, a woman entirely unacquainted with one George Chalpin, while walking on a public sidewalk was assaulted and seriously injured by Chalpin, apparently in a fit of temper brought on by anger from learning that his wife intended to divorce him. In December, 1980, while attending Chalpin's criminal trial, plaintiff's counsel learned that he had been under treatment as an outpatient, and sometime inpatient, prior to the occurrence, at a Veterans Administration hospital for "nervous breakdown and emotional disturbances." On January 9, 1981, plaintiff sued the United States and the Veterans Administration, but without having previously filed the administrative claim required by 28 U.S.C. Sec. 2675(a). That action was dismissed because of such failure. On September 28, 1981 plaintiff made the claim, appropriate except for the date, which, in due course, the Veterans Administration denied. This suit followed.

Although suit was brought within the specified six months of the administrative denial, it is manifest that the administrative filing was not made within the two years as required by 28 U.S.C. Sec. 2401(b), viz., January, 1981. Plaintiff would excuse this on the ground that this is an action for malpractice, which she says does not accrue until the fact of malpractice is learned, and that she did file administratively within two years of acquiring knowledge of the claim in December, 1980.

Counsel's ingenuity doubtless deserves recognition, but it is misplaced. The delayed accrual of a patient's claim against his physician for malpractice is an exception to the general rule that, in the absence of fraudulent concealment, minority, or other special excuse, a statute of limitations begins to run from the date of the wrongful act. The present wrongful act, seemingly the failure to place Chalpin in physical confinement, occurred no later than ...

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26 cases
  • Attallah v. US
    • United States
    • U.S. District Court — District of Puerto Rico
    • 4 Febrero 1991
    ...v. United States, 907 F.2d 246 (1st Cir.1990); Vega-Vélez v. United States, 800 F.2d 288 (1st Cir.1986); Richman v. United States, 709 F.2d 122 (1st Cir.1983). The FTCA affords a plaintiff two years from the date a claim against the United States accrues in which to file a written claim wit......
  • Attallah v. U.S.
    • United States
    • U.S. Court of Appeals — First Circuit
    • 12 Septiembre 1991
    ...United States, 907 F.2d 246, 248 (1st Cir.1990). See also, Vega-Velez v. United States, 800 F.2d 288 (1st Cir.1986); Richman v. United States, 709 F.2d 122 (1st Cir.1983). The filing of a timely administrative claim is a jurisdictional requirement that cannot be waived. Gonzalez-Bernal, 907......
  • Heinrich v. Sweet, Civ.A. 97-12134-WGY.
    • United States
    • U.S. District Court — District of Massachusetts
    • 20 Abril 1999
    ...v. United States, 907 F.2d 246, 248 (1st Cir.1990); Lopez v. United States, 758 F.2d 806, 809 (1st Cir.1985); Richman v. United States, 709 F.2d 122, 124 (1st Cir.1983). Heinrich argues that the First Circuit has held that section 2401(b) is an affirmative defense rather than a jurisdiction......
  • Westfall v. Whittaker, Clark & Daniels
    • United States
    • U.S. District Court — District of Rhode Island
    • 7 Septiembre 1983
    ...Harrington, 104 R.I. 224, 243 A.2d 745 (1968) (adoption of discovery rule in medical malpractice actions). See also Richman v. United States, 709 F.2d 122, 123 (1st Cir.1983) (where plaintiff knew of injury but failed to inquire and learn of defendant's fault, statute of limitations not tol......
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