Nicolazzo v. U.S.

• Decision Date: 21 March 1986
• Docket Number: No. 85-1584,85-1584
• Citation: 786 F.2d 454
• Parties: Richard W. NICOLAZZO and Pamela Nicolazzo, Plaintiffs, Appellants, v. UNITED STATES of America, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 454

786 F.2d 454

Richard W. NICOLAZZO and Pamela Nicolazzo, Plaintiffs, Appellants, v. UNITED STATES of America, Defendant, Appellee.

No. 85-1584.

United States Court of Appeals, First Circuit.

Argued Nov. 14, 1985.

Decided March 21, 1986.

Paul F. Leavis, with whom Kirby & Leavis, Boston, Mass., was on brief, for plaintiffs, appellants.

Joan I. Milstein, Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for defendant, appellee.

Before COFFIN and BREYER, Circuit Judges, and WYZANSKI, ^* Senior District Judge.

COFFIN, Circuit Judge.

Plaintiffs-appellants, Richard and Pamela Nicolazzo, appeal from a summary judgment dismissing their claims for failure to comply with the statute of limitations. For reasons discussed below, we reverse.

I.

In 1969, while serving in the United States Army, Richard Nicolazzo was involved in a helicopter crash in which he sustained trauma to the left side of his head. Following the accident, Nicolazzo experienced, among other symptoms, severe head and ear pains. By the time of his discharge from the army in 1971, Nicolazzo's symptoms had developed into a constant ringing in his left ear, some left side hearing loss, occasional loss of balance, and chronic drainage and infections of the left ear.

Following his discharge from the army, Nicolazzo began receiving treatment for his ear problems at the Veterans Administration hospitals in Togus, Maine and Boston, Massachusetts. In 1971, a tube was inserted in Nicolazzo's left ear, and in February and May of 1972 Nicolazzo underwent audiometric exams for left ear hearing loss. In April 1972, Doctor Diehl at the Togus V.A. hospital diagnosed Nicolazzo's ear condition as fluid in the middle ear. The doctor did not take x-rays of the ear or prescribe antibiotics. In 1974, Nicolazzo underwent treatment for left ear drainage and again saw Dr. Diehl. In 1977, after another examination by Dr. Diehl, Nicolazzo's condition was diagnosed as an infection of the external ear canal, caused by irritation due to cleaning.

In 1977, Nicolazzo also visited a non-V.A. physician, Dr. McGill, for a hearing exam and audiogram. Dr. McGill concluded that Nicolazzo was suffering profound hearing loss in his left ear dating back to the accident in 1969, but indicated that he did not feel exploratory surgery was warranted. Dr. McGill gave no other suggestions for treatment.

During 1980, Nicolazzo saw Dr. Diehl five times, complaining of severe left ear pain, bleeding from the ear, dizziness, and some loss of balance. Although Dr. Diehl prescribed ampicillin after one visit, his basic advice was that he perceived no medication or surgery that could relieve Nicolazzo's symptoms.

In October 1980, Nicolazzo saw a new doctor, Dr. Bruce Trembly, for the first time. Trembly took a comprehensive history of Nicolazzo's symptoms, noting that one of Nicolazzo's complaints--numbness in the left side of the face--had become more prominent in the last year or so. Based on his examination, Trembly hypothesized that Nicolazzo's problems could be the result of a chronic infection at the site of a skull fracture incurred in the helicopter crash and from a cholesteatoma resulting from that infection. Trembly scheduled Nicolazzo for x-rays and other tests to test this diagnosis. The x-rays and tests confirmed the diagnosis, and Nicolazzo underwent surgical removal of the cholesteatoma and repair of the injury site. Following surgery and administration of antibiotics, Nicolazzo's ear condition improved significantly.

In December 1981, Nicolazzo filed a Federal Tort Claims Act (FTCA), claiming that his V.A. doctors had acted negligently in misdiagnosing and mistreating his injury. ¹ Receiving no relief from the government under the administrative claim, Nicolazzo filed suit in federal court in October 1982. The government moved for summary judgment on the ground that the complaint was barred by the two year statute of limitations applicable to actions under the FTCA. The district court granted the government's motion, finding that United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), mandated that result. This appeal followed.

II.

The statute of limitations applicable to the FTCA, 28 U.S.C. Sec. 2401(b) provides that "[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". In a suit alleging medical malpractice, the claim accrues when a plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the existence and cause of his injury. United States v. Kubrick, 444 U.S. 111, 121-24, 100 S.Ct. 352, 359-60, 62 L.Ed.2d 259 (1979). The district court concluded that once Nicolazzo was aware that the treatment being administered to him by the V.A. doctors was not aiding him, he was put sufficiently on notice to begin the running of the statute of limitations as required by Kubrick. Thus, under this view, Nicolazzo's cause of action accrued as early as 1977, when Nicolazzo had voiced complaints about the treatment he was receiving at the V.A. facilities. We do not believe this is the proper perspective through which to view this case.

In Kubrick, the plaintiff knew that he had an infected femur and that six weeks after surgery for the infection, he had ear ringing and hearing loss. Kubrick, 444 U.S. at 113-14, 100 S.Ct. at 354-55. Eight months after surgery, a specialist obtained hospital records (which any consultant could do), noticed that Kubrick had been administered neomycin following surgery, and told Kubrick that it was "highly possible" the hearing loss was caused by the neomycin. Id. at 114, 100 S.Ct. at 355. The Supreme Court thus noted that several months after surgery, Kubrick was aware of both his injury and its probable cause. According to the Court, once a plaintiff is then "in possession of the critical facts that he has been injured and who has inflicted the injury", 444 U.S. at 122, 100 S.Ct. at 359, it is up to the plaintiff to diligently find out, within the statute of limitations period, whether the conduct was negligent. For, noted the Court, "[the plaintiff] is no longer at the mercy of [the defendant]. There are others who can tell him if he has been wronged, and he need only ask." 444 U.S. at 122, 100 S.Ct. at 359. Whom Kubrick should have asked was soon answered by the Court: "Crediting this finding [that reasonably competent doctors would have known Kubrick should not have been treated with neomycin] ..., Kubrick need only have made inquiry among doctors with average training and experience to have...