Girard v. UNITED STATES (VETERANS ADMIN.), Civ. A. No. 78-12.

• Citation: 455 F. Supp. 502
• Decision Date: 28 August 1978
• Docket Number: Civ. A. No. 78-12.
• Parties: Gerald V. GIRARD, Jr. and Elizabeth M. Girard v. UNITED STATES of America (VETERANS ADMINISTRATION).
• Court: U.S. District Court — District of New Hampshire

455 F. Supp. 502

Gerald V. GIRARD, Jr. and Elizabeth M. Girard v. UNITED STATES of America (VETERANS ADMINISTRATION).

Civ. A. No. 78-12.

United States District Court, D. New Hampshire.

August 28, 1978.

Thomas P. Colantuono, Nashua, N. H., for plaintiffs.

William H. Shaheen, U. S. Atty., Concord, N. H., for defendant.

MEMORANDUM OPINION

DEVINE, District Judge.

Plaintiffs, husband and wife, seek recovery under the Federal Tort Claims Act (28 U.S.C. § 1346b; 28 U.S.C. §§ 2671-80) for alleged medical malpractice on the part of certain physicians employed by the Veterans Administration at its facility in Manchester, New Hampshire. The claims are to the effect that these physicians failed to accurately diagnose the symptoms of plaintiff Gerald V. Girard as those of coronary heart disease during a period of treatment between January 1972 and February 1975.

The Government moved for summary judgment and/or to dismiss, and the motions came before the Court for hearing on August 24, 1978. The Court has heard the oral arguments of counsel, and has reviewed the various exhibits furnished, including interrogatories, affidavits, letters, and medical records. The Court has also reviewed the memoranda of law submitted by the respective parties.

The Government contends that the instant actions are barred by the provisions of 28 U.S.C. § 2401(b), which states:

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 or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

This statute is a jurisdictional requisite to suit in the federal courts, and if an action is not commenced within the prescribed period, a federal district court is without jurisdiction to entertain it. Hammond v. United States, 388 F.Supp. 928, 930 (and cases cited therein) (D.N.Y.1975). In this Circuit, the determination of when "a claim accrues" within the meaning of the statute is to be determined by state law. Hau v. United States, 575 F.2d 1000 (1st Cir. 1978); Caron v. United States, 548 F.2d 366 (1st Cir. 1976); Tessier v. United States, 269 F.2d 305 (1st Cir. 1959).

New Hampshire follows the "discovery rule" in medical malpractice actions. Shillady v. Elliot Community Hospital, 114 N.H. 321, 320 A.2d 637 (1974); Patrick v. Morin, 115 N.H. 513, 345 A.2d 389 (1975); Brown v. Mary Hitchcock Memorial Hospital, 117 N.H. ___, 378 A.2d 1138 (1977). Under that rule:

A cause of action will not accrue until the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendants' wrongful conduct. Brown, supra, 378 A.2d at 1140.

THE FACTS

Plaintiff Gerald V. Girard served as an Air Force officer from November 1, 1962, until March 6, 1971. On return from duty as an air traffic controller in Viet Nam in 1968, he was assigned to Stewart Air Base in Newburgh, New York. He remained on duty there until his transfer to Hanscom Air Base in Bedford, Massachusetts, in December of 1969.

While serving at the above duty stations, plaintiff commenced to suffer from chest pains in the mid-sternal region, which he thought were due to heartburn or indigestion, and which he self-treated. His attempts at snow shoveling in the winter of 1969-70 caused such pain that he was unable to perform such tasks. The frequency and severity of the chest pains increased in early 1970, and on June 22, 1970, plaintiff consulted with Doctor Tracy, an Air Force physician at Hanscom Field.

Doctor Tracy performed a routine blood pressure test, and advised plaintiff that his chest pains were the result of hyperventilation, caused by excessive tension. Valium, probanthin, and Maalox were prescribed for what was considered to be a nervous stomach. The doctor refused additional testing for heart problems, despite plaintiff's expressed apprehension, because he felt that at his age of 34, plaintiff was "too young to have heart trouble". Additional requests by plaintiff for heart testing in August and September of 1970 were refused, and treatment was continued as before.

On September 22, 1970, plaintiff had a severe attack of chest pain. Mrs. Girard, who is a nurse, thought he might be suffering from a perforated ulcer, and rushed him to the Air Base Dispensary. The duty medical officer, Doctor Borg, received plaintiff's complaints, checked his previous medical records, tested his blood pressure, and administered a shot of valium. He performed no other tests, and advised Girard not to be concerned about his heart problems, and that he should return home with instructions to continue his present medication.

Plaintiff returned to Doctor Tracy on the following day. The pain had subsided, and an EKG and a GI series proved negative. Tracy therefore concluded that the plaintiff's complaints were psychologically oriented, and he refused further testing.

The chest pains soon became a daily occurrence, and plaintiff was forced to give up most physical activity. He transferred to a sedentary position in computer research, which allowed him to pace himself so that he could fulfill his duty requirement. An Air Force separation physical on October 28, 1970, was conducted by Captain Moore, and this exam included a routine chest x-ray and a routine resting EKG. The plaintiff went to see Doctor Tracy to complain that it was unfair for the Air Force to separate him without curing his symptoms, and Tracy responded that if he had further complaints, he should refer them to the Veterans Administration.

Following separation to the Reserves on March 5, 1971, plaintiff moved to Nashua, New Hampshire. He attempted to start a business, but his chest pains forced early retirement, and his wife returned to nursing to assist in the support of the family.

In the fall of 1971, plaintiff sought assistance from the Veterans Administration, and he was seen in Manchester by Doctor Smith on January 18, 1972. Plaintiff related his complaints from 1970, and Smith conducted a physical examination, which included x-rays, EKG, GI series, and a blood pressure check. His diagnosis was esophagitis, inactive; hiatus hernia with schatzki ring; residuals of duodenal ulcer, inactive; and residuals of a fracture of the right clavicle, healed. Plaintiff contends that Smith again advised him that he should not be concerned about heart problems as he was "too young". On the basis of these findings, the plaintiff was awarded 10% disability for service-connected ailment.

On February 16, 1972, plaintiff executed an application for medical benefits, and was seen at the Veterans Administration by Doctor Adelman. Adelman did not have available the report of Doctor Smith's examination on January 18, 1972, but he prescribed medication associated with a duodenal ulcer and a hiatal hernia, and recommended a bland diet to the plaintiff.

On October 30, 1972, Girard was seen again by Doctor Smith with complaints in the upper part of the abdomen and pains in the mid-abdominal region. No laboratory tests or x-rays were performed, as Doctor Smith felt he was continuing with pains from the conditions that he had previously diagnosed, and he prescribed medication to combat such complaints.

On September 2, 1973, plaintiff began to suffer palpitations of the heart, and he went to the Nashua Memorial Hospital, where the resident on duty performed an EKG, which demonstrated frequent ventricular premature beats. He was shortly seen by Doctor Curelop, a board-certified internist, who performed a complete physical examination, and concluded that plaintiff suffered from ischemic heart disease and had suffered from this condition since 1970. Doctor Curelop further found that Girard had suffered a coronary occlusion and probably a small myocardial infarction, and that he had chronic angina symptoms. This diagnosis was confirmed by consultation with Doctor Criscitiello...