Tessier v. United States, No. 5424.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtMAGRUDER, , and WOODBURY and HARTIGAN, Circuit
Citation269 F.2d 305
PartiesPaul Eugene TESSIER, Appellant, v. UNITED STATES of America, Appellee.
Decision Date31 July 1959
Docket NumberNo. 5424.

269 F.2d 305 (1959)

Paul Eugene TESSIER, Appellant,
v.
UNITED STATES of America, Appellee.

No. 5424.

United States Court of Appeals First Circuit.

July 31, 1959.


269 F.2d 306
COPYRIGHT MATERIAL OMITTED
269 F.2d 307
David W. Walsh, Boston, Mass., with whom Arthur D. Healey, Boston, Mass., was on brief, for appellant

John G. Laughlin, Atty., Dept. of Justice, Washington, D. C., with whom George Cochran Doub, Asst. Atty. Gen., Anthony Julian, U. S. Atty., Boston, Mass., and Morton Hollander, Atty., Dept. of Justice, Washington, D. C., were on brief, for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Circuit Judge (Retired).

This is unquestionably a sad case, in which the United States is using the statute of limitations to defeat a meritorious claim. Appellant brought suit under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq., and offered to prove the following facts:

Exercising his rights as an honorably discharged veteran of World War II, Tessier entered the Veterans' Administration Hospital in Togus, Maine, for an appendectomy performed there on June 7, 1947. He had undergone no prior abdominal or other major surgery. Appellant was released from the hospital on June 18, 1947. Sometime in 1948 he began experiencing sporadic sharp pain in his right side in the vicinity of his diaphragm, which became fairly constant by 1950.

Appellant was hospitalized at the Lowry Air Force Base hospital, Denver, Colorado, on complaint of this pain (1) from June 28 to July 30, 1951, (2) from February 18 to May 9, 1952, (3) from July 3 to July 10, 1952, (4) from April 15 to April 21, 1953, and (5) from April 27 to June 19, 1953. Tentative and final diagnoses of his illness during these five confinements included acute pleurisy, chronic pleurisy, hemorrhage of duodenal ulcer, duodenal ulcer without bleeding, liver abscess, other abscess, and finally (by a psychiatrist) physical manifestations of emotional problems centered around hostility. A major gastrointestinal exploratory operation, at least fourteen series of X-rays, and at least one fluoroscopy were performed; the results of all were reported as negative, although eight series of X-rays (the only ones which covered the area in question) portray at least one metal fragment and the fluoroscopy and at least one series of X-rays show elevation of the right side of the diaphragm.

In addition, appellant proved to the satisfaction of the district court that, complaining of intense similar pain, he returned on February 22, 1954, to the Togus hospital where his appendix had been removed, and that he there underwent a great variety of tests and medication, including further X-ray and fluoroscopic examinations. Eventually, on March 31, 1954, the presence of two metallic needle fragments lying between appellant's diaphragm and his liver was discovered, and an exploration thus prompted revealed a subdiaphragmatic abscess. Appellant was finally discharged on May 20, 1954.

The district court found that the needle fragments as portrayed on a single X-ray plate "might well not be observed because they look exactly like artifacts, thin white lines which are a common X-ray anomaly, and even on a series of plates they could be overlooked." 164 F.Supp. 779, 780. And it also found "evidence that because of its lack of objective characteristics the diagnosis of a subdiaphragmatic abscess normally consumes several weeks." Such an abscess "is quite uncommon. Also, it is not usual to associate it with foreign bodies."

The court, considering the 1954 hospitalization alone, found negligence in the failure of the Togus hospital personnel

269 F.2d 308
to discover the needle fragments by March 12, 1954, and thus find the abscess 19 days earlier than they did. The United States was held liable for $650 in damages, less $100 veterans' disability benefits received, from which judgment it has not appealed

The plaintiff-appellant contends that the district court erred in several orders by which it ruled that the two-year statute of limitations for tort claims against the government, 28 U.S.C. § 2401(b), limits appellant to recovery for negligent conduct occurring within two years before the complaint was filed.

The appellant's original complaint was filed November 30, 1955. It contained jurisdictional and damage allegations, set forth the appendectomy, and alleged:

"6. * * * In the course of this operation, the defendant, through its agents, servants or employees, used medical instruments and equipment in and about the body of the Plaintiff, whereupon, as a result of the negligence, wrongful act or omission of the Defendant, its officers, agents, servants and employees, acting within the course and scope of their employment, did cause, permit or place a piece or pieces of metal from a medical instrument or article of equipment in the Plaintiff\'s body and therein allow such metal to remain after the completion of said operation.
"7. As a result of the negligence, wrongful act or omission referred to in the preceding paragraph, the Plaintiff was obliged to undergo further treatment and was confined to various hospitals from June of 1947 until his most recent confinement which occurred at the Veterans Administration Hospital at Togus, Maine, from February 22, 1954 to May 20, 1954, at which time the above facts became known to the Plaintiff."

The United States moved to dismiss, citing the statute of limitations, and the appellant countered with a memorandum suggesting three theories, which it still urges: (1) The statute did not begin to run until March 31, 1954, when the presence of the needle fragments became known to appellant. (2) The tortious insertion of the needle fragments gave rise to a duty to remove them, the failure to comply with which constituted continuing negligence. (3) The defendant's agents fraudulently concealed the presence of the needle fragments.

The district court ruled (obviously correctly) that the second theory was not comprehended by the complaint, so appellant moved on May 9, 1957, for leave to file an amended complaint, which specifically alleges tortious conduct during the interim hospitalizations and continuing negligence throughout the period June 7, 1947, to May 20,...

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52 practice notes
  • Feeley v. United States, No. 14738.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • November 4, 1964
    ...aff'd sub nom. United States v. Texas Co., 272 F. 2d 711 (4 Cir. 1959); Tessier v. United States, 164 F.Supp. 779 (D.Mass.1958), aff'd, 269 F.2d 305 (1 Cir. 1959); Wuth v. United States, 161 F.Supp. 661 (E.D. Va.1958); Fulmer v. United States, 133 F.Supp. 775, 784 (D.Neb.1955); Snyder v. Un......
  • Tyminski v. United States, No. 72-1024
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 19, 1973
    ...307 F.2d 99, 101-102 (9th Cir. 1962); Quinton v. United States, 304 F.2d 234, 235-240 (5th Cir. 1962). But see Tessier v. United States, 269 F.2d 305 (1st Cir. 1959). And for purposes of medical malpractice suits under the Federal Tort Claims Act these courts have determined that the two-ye......
  • Holdridge v. Heyer-Schulte Corp. of Santa Barbara, No. 76-CV-130.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • November 7, 1977
    ...subsequently filed in the action. The Court's interpretation is supported by the cases construing Rule 15(c). In Tessier v. United States, 269 F.2d 305 (1st Cir. 1959), the court refused to apply the doctrine of relation back to an amendment alleging continuing acts of negligence from 1947 ......
  • Fernandi v. Strully, No. A--100
    • United States
    • United States State Supreme Court (New Jersey)
    • June 30, 1961
    ...v. Durotest Corp., 26 N.J. 33, 44, 138 A.2d 529 (1958). Judge Magruder succinctly summarized the thesis in Tessier v. United States, 269 F.2d 305 (1 Cir. 1959), where he was confronted with the identical situation under a comparable federal 'It is argued on one hand that the statute of limi......
  • Request a trial to view additional results
52 cases
  • Feeley v. United States, No. 14738.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • November 4, 1964
    ...aff'd sub nom. United States v. Texas Co., 272 F. 2d 711 (4 Cir. 1959); Tessier v. United States, 164 F.Supp. 779 (D.Mass.1958), aff'd, 269 F.2d 305 (1 Cir. 1959); Wuth v. United States, 161 F.Supp. 661 (E.D. Va.1958); Fulmer v. United States, 133 F.Supp. 775, 784 (D.Neb.1955); Snyder v. Un......
  • Tyminski v. United States, No. 72-1024
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 19, 1973
    ...307 F.2d 99, 101-102 (9th Cir. 1962); Quinton v. United States, 304 F.2d 234, 235-240 (5th Cir. 1962). But see Tessier v. United States, 269 F.2d 305 (1st Cir. 1959). And for purposes of medical malpractice suits under the Federal Tort Claims Act these courts have determined that the two-ye......
  • Holdridge v. Heyer-Schulte Corp. of Santa Barbara, No. 76-CV-130.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • November 7, 1977
    ...subsequently filed in the action. The Court's interpretation is supported by the cases construing Rule 15(c). In Tessier v. United States, 269 F.2d 305 (1st Cir. 1959), the court refused to apply the doctrine of relation back to an amendment alleging continuing acts of negligence from 1947 ......
  • Fernandi v. Strully, No. A--100
    • United States
    • United States State Supreme Court (New Jersey)
    • June 30, 1961
    ...v. Durotest Corp., 26 N.J. 33, 44, 138 A.2d 529 (1958). Judge Magruder succinctly summarized the thesis in Tessier v. United States, 269 F.2d 305 (1 Cir. 1959), where he was confronted with the identical situation under a comparable federal 'It is argued on one hand that the statute of limi......
  • Request a trial to view additional results

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