Dessi v. United States

• Decision Date: 29 April 1980
• Docket Number: Civ. A. No. 78-180-N.
• Parties: Joseph DESSI, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

489 F. Supp. 722

Joseph DESSI, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 78-180-N.

United States District Court, E. D. Virginia, Norfolk Division.

April 29, 1980.

David K. Sutelan, Norfolk, Va., for plaintiff.

Michael A. Rhine, Asst. U. S. Atty., Norfolk, Va., for defendant.

OPINION

WALTER E. HOFFMAN, District Judge.

This medical malpractice case arises under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. Plaintiff claims he was rendered impotent as the result of an operation performed by a government physician at the United States Public Health Service Hospital in Norfolk, Virginia. Although the plaintiff does not contend that the operation was negligently performed, he claims that (1) he should have been informed of the risks associated with such an operation, and (2) the operation was not necessary. Defendant, in addition to a general denial of the allegations of negligence, interposes the statute of limitations as a bar to this action.

I.

Plaintiff, Joseph Dessi, is a retired chief petty officer of the United States Navy. After his retirement from the Navy in 1963, plaintiff sought medical attention on numerous occasions at the Public Health Service Hospital (hereinafter "PHSH") in Norfolk. In February, 1972, plaintiff, then of the age of 52½ years, complained to Dr. Robert C. Pickens of the PHSH Urology Clinic of an increasing strain to urinate. After a review of plaintiff's hospital medical records,¹ Dr. Pickens recommended that plaintiff enter the hospital for a cystoscope examination.² The examination, performed by Dr. Pickens on April 6, 1972, revealed a trabeculated bladder which suggested that small obstructing tissue in the middle lobe of the prostate gland was causing the strain in urination. On the basis of the patient's complaints, medical history and lab reports, Dr. Pickens diagnosed the condition as benign prostatic hypertrophy. To correct this obstructing tissue, Dr. Pickens recommended a transurethral resection of the prostate (TUR). Plaintiff agreed to the operation, which was performed without incident on April 11, 1972.

Prior to his discharge from the hospital, plaintiff was informed by Dr. Pickens that he should not engage in sexual intercourse for thirty days. According to the plaintiff, some two weeks after the thirty days had expired, he attempted sexual intercourse with his wife, but could not achieve an erection. Plaintiff testified, as did his wife, that he has been unable to achieve an erection since the operation, but that prior to the operation, his sexual relations were normal.

II.

Initially, we must determine whether plaintiff's claim is barred by the statute of limitations. 28 U.S.C. § 2401(b) provides, in part:

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues . . ..

Plaintiff filed his administrative claim on April 1, 1977. Therefore, if the cause of action accrued before April 1, 1975, plaintiff may not maintain this action.

The question as to when a claim accrues under the Federal Tort Claims Act was recently considered by the Supreme Court in United States v. Kubrick, 444 U.S. 111 (1979), 100 S.Ct. 352, 62 L.Ed.2d 259 (Nov. 27, 1979).³ The court held that a claim accrues within the meaning of the Act when the plaintiff knows, or in the exercise of reasonable diligence, should have known both the existence and the cause of his injury.⁴ This decision signifies a retreat from the expansive view of "accrual" previously adopted by a number of the circuits, including the Fourth Circuit. Before Kubrick, the rule in the Fourth Circuit was that an action did not accrue "until a claimant has had a reasonable opportunity to discover all of the essential elements of a possible cause of action — duty, breach, causation, damages . . . ." Bridgford v. United States, 550 F.2d 978, 981-82 (4th Cir. 1977). See: DeWitt v. United States, 593 F.2d 276 (7th Cir. 1979); Exnicious v. United States, 563 F.2d 418, 420 (10th Cir. 1977); Jordan v. United States, 503 F.2d 620 (6th Cir. 1974).

Mr. Justice White, writing for the Kubrick majority, noted that once armed with knowledge of his injury and its cause, a reasonable claimant should then seek advice as to whether he has a possible cause of action. It may be that a claimant would find that his injury was negligently inflicted — but the running of the statute of limitations does not await this determination. Knowledge of an injury and its cause should trigger an inquiry into whether the claimant's legal rights were violated. In the circuit court opinion in the Kubrick case, the Third Circuit used the Jordan case, supra, as an example of why it felt it was necessary to toll the statute until a claimant has knowledge of all the elements of his cause of action. The Third Circuit noted:

For example, the plaintiff in Jordan, whose eye was injured as a result of his sinus operation, may very well have believed that such eye involvement was an unavoidable result of the operation, and indicated no impropriety in the manner of treatment. In such a case, the cause of action for medical malpractice should not accrue upon mere knowledge of causation. Something more should be required.

Although the Supreme Court did not specifically mention this passage, it is clear by its holding that nothing more than knowledge of injury and causation is required for the cause of action to accrue. The action accrues even if the claimant believes that his injury was unavoidable and did not indicate negligent treatment. It is the plaintiff's burden, once he knows of his injury and its cause, to determine within the limitations period whether or not to file suit.

The evidence in this case indicates that plaintiff knew or reasonably should have known before April, 1975, that his impotence was related to the TUR performed by Dr. Pickens in 1972. His testimony was that he and his wife had a relatively frequent sexual relationship which ceased altogether after the operation. Although he may have initially attributed his sexual dysfunction to a longer than normal recuperative period, at some time before April, 1975, plaintiff clearly associated his impotence with the 1972 operation. Such knowledge would have led a reasonable man to conclude that he was impotent as the result of the TUR.

Plaintiff argues that, at most, he knew there was a "distinct possibility" that his impotence was caused by the operation. Citing Portis v. United States, 483 F.2d 670 (4th Cir. 1973), he contends that such knowledge is not sufficient to start the running of the statute of limitations.

Portis involved the negligent administration of a drug (Neomycin) which severely damaged the plaintiff's auditory nerve. As plaintiff was an infant, her hearing impairment was not discovered until her age-three hearing tests, approximately two years after administration of the drug. Prior to these tests, plaintiff was frequently ill with ear, throat and respiratory infections, including pneumonia and tonsilitis. During the next five years plaintiff underwent extensive examination and treatment. However, none of the seven physicians who examined the child during this period diagnosed the cause of the hearing loss. Plaintiff's mother was informed that the deafness could have been caused by ear infections, high fever or the Neomycin injections. Finally, in 1969, a doctor diagnosed plaintiff's condition as a profound neurosensory hearing loss related to Neomycin toxicity. Plaintiff promptly filed suit.

The district court found that in 1963 Mrs. Portis knew there was a distinct possibility of future hearing loss as a result of the malpractice and therefore dismissed the action as barred by the statute of limitations. The Fourth Circuit decision, reversing the district court, suggests that knowledge of a "distinct possibility" of a causal relationship is not sufficient for accrual purposes. The court noted:

What is important here is that no one, neither layman nor doctor, diagnosed the hearing difficulty as being caused, or even probably caused, by the 1963 malpractice until 1969. 483 F.2d at 673.

Despite a diligent effort to determine the cause of the child's injury, before 1969 her parents only knew that the deafness may have been the result of any of three events. Such "blameless ignorance", the court felt, should not prevent the right of action against the Government. Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). The court extended the "discovery rule" of Young v. Clinchfield R. R., 288 F.2d 499, 503 (4th Cir. 1961) — a cause of action accrues only when the plaintiff has reason to know he has been injured—to cover those cases where the cause of the injury was neither known nor reasonably detectable. 483 F.2d at 673.

In the instant case, plaintiff argues that he, like the plaintiff in Portis, had only incomplete knowledge of what caused his injury. That he may have associated his impotency with the TUR is not enough, he contends, to constitute knowledge of causation. This argument assumes, however, that plaintiff was diligent in attempting to discover what caused his impotency.

Plaintiff testified that after the operation he complained to several PHSH doctors of his inability to engage in sexual intercourse. He insists that, on each occasion, the doctor would ignore the complaint or assure him that the problem would work itself out. The first complaint of impotency noted in plaintiff's PHSH record is dated August, 1975. Between his operation in April, 1972, and this entry, plaintiff was seen twenty-three times by five different doctors in the PHSH Urology Clinic. He asserts that he complained to each of these doctors about his impotency, although not at every appointment. We cannot accept this testimony.

Primarily, we rely on the lack of any entry in the medical record concerning sexual complaints prior...