Snyder v. United States, 81-4199-CV-C-5.

• Decision Date: 08 April 1982
• Docket Number: No. 81-4199-CV-C-5.,81-4199-CV-C-5.
• Citation: 537 F. Supp. 633
• Parties: Donald SNYDER, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Missouri

537 F. Supp. 633

Donald SNYDER, Plaintiff, v. UNITED STATES of America, Defendant.

No. 81-4199-CV-C-5.

United States District Court, W. D. Missouri, C. D.

April 8, 1982.

Glenn R. Gulick, Jr., Joplin, Mo., for plaintiff.

Mark J. Zimmermann, Asst. U. S. Atty., Kansas City, Mo., for defendant.

MEMORANDUM AND ORDER

SCOTT O. WRIGHT, District Judge.

The Government has moved for dismissal of the plaintiff's medical malpractice action on the ground that the plaintiff's claim is barred by the Federal Tort Claims Act two-year statute of limitations. 28 U.S.C. § 2401(b). Both parties have briefed the question of whether the plaintiff's malpractice claim is barred by the statute of limitations and have agreed to delay further discovery pending the ruling on the Government's motion to dismiss. For the reasons which follow, the Government's motion to dismiss is granted.

I.

The plaintiff has brought this malpractice action against the Government on the basis of a negligent percutaneous cordotomy which was performed on the plaintiff in December of 1974 by a neurosurgeon at the Veteran's Administration Hospital in Gainesville, Florida. The cordotomy, which consists of inserting electrodes into the spinal cord and burning nerve cells in order to prevent pain impulses emanating from certain parts of the body from reaching the brain, was performed to alleviate the severe pain from which the plaintiff was suffering as a result of the removal of a cancerous left lung and would suffer from the cancer. The neurosurgeon had suggested that the plaintiff undergo a cordotomy after he diagnosed the cause of plaintiff's illness as an extensive brachial plexus tumor. He told the plaintiff that, based on his knowledge of other cases, the plaintiff had approximately six months to live. The plaintiff opted for the cordotomy rather than overmedication for relief from his pain.

According to the deposition testimony of the plaintiff, the plaintiff continued to suffer from pain after the cordotomy had been performed. The pain had subsided for several hours after the operation, but soon resurfaced. The plaintiff stated that he knew that the cordotomy had been unsuccessful in alleviating his pain by January of 1975.

In January of 1975, the plaintiff was readmitted to the Veteran's Administration Hospital. During this admission, the plaintiff was told that the neurosurgeon had incorrectly diagnosed his illness as an extensive brachial plexus tumor and that the pain which he was suffering was due to the surgery and radiation therapy.

In 1979, the plaintiff visited a physician in Columbia, Missouri. According to the plaintiff's deposition testimony, that "after many tests were run and many different treatments were tried," the physician, who had been retained as a consultant, told the plaintiff that his pain was the result of the unsuccessful cordotomy. He stated that he did not know the cause of his pain until he was informed by the consulting physician that it was due to the unsuccessful cordotomy which had been performed in 1974. The plaintiff sought legal advice after visiting with that physician.

II.

A provision of the Federal Tort Claims Act bars any tort claim against the United States unless it is presented in writing to the appropriate federal agency "within two years after such claim accrues." 28 U.S.C. § 2401(b). A claim "accrues" when a claimant knows of both the existence and cause of the injury. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Accord, Wollman v. Gross, 637 F.2d 544, 548 n. 4 (8th Cir. 1980). Cf. Hulver v. United States, 562 F.2d 1132, 1136 (8th Cir. 1977), cert. denied, 435 U.S. 951, 98 S.Ct. 1576, 55 L.Ed.2d 800 (1978) (similar "possession and knowledge of sufficient facts" standard for accrual in malpractice action).

It can be determined from the deposition testimony of plaintiff that he knew of both the existence and cause of his injury not later than January of 1975. The cordotomy was performed in December of 1974. The plaintiff testified that the neurosurgeon had promised him that the cordotomy would alleviate the pain that would accompany the extensive brachial plexus tumor which had been diagnosed. It was evident to the plaintiff only hours after the cordotomy that the cordotomy had been unsuccessful in alleviating any of his pain.

In January of 1975, plaintiff testified that he was expressly informed by another physician that the neurosurgeon had incorrectly diagnosed his illness as an extensive brachial plexus tumor, that he did not have a tumor, that he would not die of cancer in six months, that the cordotomy had failed to alleviate his pain, and that the surgery he had undergone over the course of six months and the radiation therapy was the source of his pain. By the plaintiff's own admission, he was expressly aware of his injury and its cause no later than January of 1975.

The facts of this case are most similar to another cause recently litigated in this District and in the Eighth Circuit Court of Appeals. See, Hulver v. United States, 562 F.2d 1132 (8th Cir. 1977), cert. denied, 435 U.S. 951, 98 S.Ct. 1576, 55 L.Ed.2d 800 (1978). In Hulver, the plaintiff filed suit in February of 1971 against the Government for an allegedly negligent operation which was...