Dundon v. United States, CV-80-2869.

• Decision Date: 18 March 1983
• Docket Number: No. CV-80-2869.,CV-80-2869.
• Parties: James E. DUNDON, Sr., as Administrator of the Estate of James E. Dundon, Jr., James E. Dundon, Sr., individually, and Mary E. Dundon, Plaintiffs, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of New York

559 F. Supp. 469

James E. DUNDON, Sr., as Administrator of the Estate of James E. Dundon, Jr., James E. Dundon, Sr., individually, and Mary E. Dundon, Plaintiffs, v. The UNITED STATES of America, Defendant.

No. CV-80-2869.

United States District Court, E.D. New York.

March 16, 1983.

As Amended March 18, 1983.

Henry M. Grubel, P.C., Freeport, N.Y., for plaintiffs.

Raymond J. Dearie U.S. Atty., E.D.N.Y. by Jo Davis, Reuben S. Koolyk, Asst. U.S. Attys., Brooklyn, N.Y., for defendant.

DECISION AND ORDER

BRAMWELL, District Judge.

This is an action for medical malpractice and wrongful death brought in 1980 pursuant to the Federal Tort Claims Act. 28 U.S.C. 2674 (1976).¹ The court has jurisdiction under 28 U.S.C. § 1346(b) (1976).² Defendant, the United States of America, has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Under that rule this court may grant defendant's request for summary judgment in its favor only if it is determined that "there is no genuine issue as to any material fact", and that defendants are "entitled to a judgment as a matter of law". Fed.R. Civ.P. 56(c). In making the determination, any doubt as to the existence of a genuine issue of material fact must be resolved against defendant as the moving party. Adickes v. Kress & Co., 398 U.S. 144, 157-159, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970). Furthermore, "On summary judgment the inferences to be drawn from underlying facts ... must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).

BACKGROUND

The decedent, James Edward Dundon, Jr., was born on December 15, 1946. In October of 1967 he enlisted in the Army. He was on active duty in Vietnam for a year, and was awarded silver and bronze stars. Near the end of his tour of duty, the decedent began to suffer from severe depression and headaches. In July of 1970, two days prior to his scheduled return to the United States from Vietnam, the decedent stabbed himself repeatedly in the abdomen and slashed both his wrists. He received treatment for his self-inflicted wounds at military hospitals abroad and in the United States.

The decedent's headaches, vomiting and depression continued to plague him following his recovery from the suicide attempt. In the fall months of 1970 until his discharge from military service in December of 1970, the decedent received psychiatric care including electroconvulsive therapy in Veterans Administration hospitals in Pennsylvania and New York. During these treatments the decedent apparently did not receive a neurological examination and workup.

In 1974, the decedent was admitted to the V.A. hospital in Montrose, New York on two separate occasions and was an inpatient from September 6, 1974 through January 6, 1975. Again, he was diagnosed as suffering from severe psychiatric illness and electroconvulsive therapy was administered on numerous occasions. A neurological examination and workup was not performed during the course of this treatment.

In the spring of 1975, the decedent was an inpatient on two further occasions, at the V.A. hospital in Brooklyn, New York. The government physicians continued to treat his disability as stemming from functional (i.e., nonorganic) psychiatric problems, and administered additional electroconvulsive therapy. Again, a neurological examination and workup was not performed.

In early July of 1975, the decedent was admitted to the Brooklyn V.A. hospital for a third time. During this treatment, he was for the first time transferred to the neurology service, and diagnostic procedures were performed to determine if there was an organic rather than psychiatric cause for his symptoms. It soon became clear that the decedent had a brain tumor or lesion, and he and his parents were informed of that fact on or about August 18, 1975. Diagnostic testing to determine the precise location, identity, and stage of development of the brain lesion continued until October of 1975, at which time the decedent was transferred to the V.A. hospital in New York (Manhattan) to be operated upon by neurosurgeons.

In October and November of 1975 the New York V.A. physician performed "shunt" operations to relieve the increased intercranial pressure caused as a result of the lesion. During the course of these operations, however, the tumor exploded and a craniotomy was performed to remove tumor contents from the brain. The tumor contents then spilled into the decedent's spinal fluid. The decedent never recovered from these operations; he lapsed into a coma in January of 1976, and died on September 30, 1977 at the age of thirty.

On January 18, 1979 plaintiffs filed an administrative claim pursuant to the Federal Tort Claims Act. 28 U.S.C. 2675(a) (Supp.1982).³ The claim was subsequently denied by the Veterans Administration district counsel by letter dated May 20, 1980. On October 16, 1980 plaintiffs filed suit, alleging medical malpractice and wrongful death. In their Second Answer to Defendant's Interrogatories, plaintiffs allege both misdiagnosis and negligence in performing the surgery as elements of their cause of action.

The government contends in this motion that plaintiffs' entire action is barred by the time limitations set forth in 28 U.S.C. § 2401 (Supp.1982). Further, the government asserts that the claim of medical malpractice in surgery is prohibited, regardless of the court's statute of limitations decision, due to plaintiffs' alleged failure to raise that issue in their administrative claim under section 2675(a).

ACCRUAL OF THE CLAIM

It is well established that the United States is immune from suit unless it has consented to be sued. United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 357, 62 L.Ed.2d 259 (1979); Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957); United States v. Sherwood, 312 U.S. 584, 590, 61 S.Ct. 767, 771, 85 L.Ed. 1058 (1941). The Supreme Court has also recognized that Congress may impose such terms and conditions on a waiver of this sovereign immunity as it deems appropriate. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953-54, 47 L.Ed.2d 114 (1976); Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 1197, 18 L.Ed.2d 244 (1961). The Federal Tort Claims Act creates a right of recovery against the United States but places limitations on the possible claims. Specifically, it provides in pertinent part that:

A tort claim against the United States shall be forever barred unless presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months ... of notice of final denial of the claim by the agency to which it was presented.

28 U.S.C. § 2401(b) (Supp.1982).

In determining when a cause of action accrues, federal law rather than state law governs. Lavellee v. Listi, 611 F.2d 1129, 1130 (5th Cir.1980); Ciccarone v. United States, 486 F.2d 253, 256 (3d Cir.1973), Kossick v. United States, 330 F.2d 933, 935 (2d Cir.), cert. denied, 379 U.S. 837, 85 S.Ct. 73, 13 L.Ed.2d 44 (1964). The Supreme Court recently held that under the Federal Tort Claims Act, a tort claim accrues when the claimant has discovered, or in the exercise of reasonable diligence, should have discovered, the existence, permanence and physical cause of the injury, whether or not he has reason to believe that he has an actionable claim. United States v. Kubrick, supra, 444 U.S. at 124, 100 S.Ct. at 360. Both the government and plaintiffs recognize that Kubrick sets forth the standard applicable to this action. Each party also agrees that the critical inquiry is whether a plaintiff is "armed with facts" sufficient to alert him that a basis for investigating the possibility of malpractice exists. Id. at 123-24, 100 S.Ct. at 360.

Although the parties both recognize the controlling standard, they are in sharp disagreement as to its proper application to the facts of this tragic case. The government asserts that plaintiffs were "armed with facts" about the harm done to the decedent by August 18, 1975, the date that diagnosis of an organic neurological disorder was communicated to the decedent and his parents. Plaintiffs argue that until such time as it was determined precisely what type of tumor decedent had, the location of that tumor in the brain, and the stage of its development, it was impossible to know whether and to what extent any harm was done to the decedent. Plaintiffs conclude, therefore, that the claim did not accrue until September 30, 1977, the date of the decedent's death, and that the administrative claim filed some fifteen months later on January 18, 1979 was filed in a timely manner.

Accepting plaintiffs' recital of the facts as true, by August 18, 1975 the decedent and his parents were informed that he was in fact suffering from an organic neurological disorder. The question here is whether this information was sufficient to suggest malpractice to the decedent and his family. The government claims it was. It argues that plaintiffs were armed with the knowledge that decedent had undergone five years of severe headaches, psychological strain and lengthy hospitalizations with drug and electroshock treatments, and had received nothing to treat his organic neurological disorder because V.A. physicians had failed to diagnose the lesion which was the cause of his problems.

Material fact issues remain concerning when decedent had a reasonable opportunity to discover all the elements of a possible malpractice action. Accordingly, the question of when the statute of limitations commenced to run can only be answered after a plenary disposition on the merits. There can be no doubt, however, even accepting the government's assertions in their most favorable light, that August 18, 1975 was the earliest date decedent did, or reasonably should have, become aware of...