Toal v. United States

Decision Date10 February 1971
Docket NumberNo. 253,Docket 34535.,253
PartiesJames F. TOAL, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Morton Hollander, Washington, D. C. (William D. Ruckelshaus, Asst. Atty. Gen., Stewart H. Jones, U. S. Atty. Conn., Robert V. Zener, and Donald L. Horowitz, Dept. of Justice, Washington, D. C., on the brief), for defendant-appellant.

Alfred S. Julien, New York City (Helen B. Stroller, New York City, on the brief), for plaintiff-appellee.

Before FRIENDLY, SMITH and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

This appeal concerns the single issue of whether or not plaintiff's medical malpractice claim under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) was barred by the two-year limitations period specified for such actions in 28 U.S. C. § 2401(b). The district court held that the action was timely commenced. We affirm.

The facts present an extraordinary compounding of mishaps. In 1951 plaintiff Toal underwent spinal surgery to remedy injuries incurred during his military service. Ten years later, while plaintiff was on vacation in Austria, his spinal condition worsened and a second operation was recommended. Plaintiff returned to the United States and was admitted to the Veterans Administration Hospital at West Haven, Connecticut early in May, 1962. On May 23, 1962, Dr. John Elliott and a radiologist performed a myelogram on the plaintiff. This diagnostic procedure involved the introduction of an iodized radiopaque contrast medium, called pantopaque, into plaintiff's spine by means of a lumbar puncture. As the dye circulated through the spinal fluid, X-rays scanned the spinal column. When the filming was completed, the table upon which the patient lay was tilted to permit the pantopaque to collect in the lumbar sac, from which, in the course of customary practice, the dye was then aspirated through a needle. In plaintiff's case, however, the pantopaque was not removed from the plaintiff's spine. Dr. Elliott attempted to withdraw the pantopaque but failed, and no further efforts were made to extract it.

The plaintiff was aware of this at the time and testified that on the day before his discharge he asked Dr. Elliott whether the retained pantopaque might prove harmful. Dr. Elliott assured the plaintiff that pantopaque retention would not injure him, that "we normally leave it the pantopaque in; it's standard procedure in * * * a lot of hospitals," that the dye would in time be absorbed and that the plaintiff "had nothing to worry about."

Four days after the plaintiff's discharge on May 31, 1962, he was in an automobile accident, as a result of which he suffered head, neck and back injuries and was hospitalized at another Veterans Administration hospital. Upon his discharge two months later the plaintiff consulted his private physician, Dr. Smith. Because Dr. Elliott had not noted the pantopaque retention in plaintiff's West Haven discharge report until sometime after Dr. Smith's examination, the doctor was not apprised of that crucial fact from his examination of the plaintiff's medical history and therefore assumed that plaintiff's persistent ill-health resulted from the injuries which he had incurred in the automobile accident. Dr. Smith's medications did nothing to alleviate the plaintiff's pain. Toal returned to Austria in February, 1963 where he consulted the same doctors who had recommended the second spinal operation.

On March 29, 1963 plaintiff wrote to the Veterans Administration in an effort to secure larger disability payments.1 He explained that at the time of the accident he was still suffering from the myelogram taken at the Veterans Administration Hospital at West Haven only 12 days before, which had resulted in more spinal irritation, pain and disability than had an earlier myelogram,2 and that the aggravating injuries from the automobile accident made his disability complete.

During the ensuing year the plaintiff suffered headaches which grew progressively more excruciatingly painful and were accompanied by dizziness and nausea. In early 1964 an Austrian neurologist, Dr. Strasser, X-rayed the plaintiff's skull and on March 7, 1964 he advised the plaintiff that pantopaque globules encysted on brain tissues were the primary cause of his illness.

The Government contends that the plaintiff's suit, instituted July 27, 1965, was not timely commenced because the plaintiff's letter of March 29, 1963 demonstrated his awareness of the pantopaque retention and of a spinal irritation which he attributed to the presence of pantopaque. The district court disagreed, finding that the plaintiff did not know and could not have known before March, 1964 the causative relationship between the pantopaque retention and the eventual inflammation of brain tissues which the court found to be a substantial factor in producing the plaintiff's injuries. Plaintiff's letter of March 29, 1963 mentioned the pantopaque retention and spinal irritation in connection with the time of the accident which was four days after his discharge from the West Haven V. A. Hospital when he could fairly assume that the pantopaque had not, in accordance with Dr. Elliott's prognosis, as yet been absorbed. Toal referred to it as a source of discomfort to him at the time but he said nothing to indicate that he was aware he had suffered injury from a wrongful act on the part of the doctor.

The two-year period within which a tort claim action may be brought against...

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47 cases
  • Clark v. United States, 78 Civ. 2244(MEL).
    • United States
    • U.S. District Court — Southern District of New York
    • January 8, 1980
    ...of doctors employed by federally operated hospitals, Ciccarone v. United States, 486 F.2d 253, 256 (3d Cir. 1973); Toal v. United States, 438 F.2d 222, 225 (2d Cir. 1971); see Kossick v. United States, 330 F.2d 933, 936 (2d Cir.), cert. denied, 379 U.S. 837, 85 S.Ct. 73, 13 L.Ed.2d 44 (1964......
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    • U.S. District Court — Southern District of New York
    • June 10, 1987
    ...the accrual of an FTCA claim is not postponed while the plaintiff assesses the full amount of his damages. See, e.g., Toal v. United States, 438 F.2d 222, 225 (2d Cir.1971); Lynch v. United States Department of the Army Corps of Engineers, 474 F.Supp. 545, 549 (D.Md.1978), aff'd, 601 F.2d 5......
  • Tyminski v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 19, 1973
    ...U.S. 163, 169, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949); Cooper v. United States, 442 F.2d 908, 911 (7th Cir. 1971); Toal v. United States, 438 F.2d 222, 224-225 (2d Cir. 1971); Ashley v. United States, 413 F.2d 490, 492 (9th Cir. 1969); Coyne v. United States, 411 F.2d 987, 988 (5th Cir. 1969);......
  • Peck v. United States
    • United States
    • U.S. District Court — Southern District of New York
    • April 25, 1979
    ...cause of action "accrued." Federal law determines when a claim accrues within the meaning of 28 U.S.C. § 2401(b). Toal v. United States, 438 F.2d 222, 224 n.3 (2d Cir. 1971); 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)......
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1 books & journal articles
  • Interpreting Federal Statutes of Limitations
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 37, 2022
    • Invalid date
    ...States, 304 F.2d 234 (5th Cir. 1962). 295. See, e.g., Hungerford v. United States, 307 F.2d 99 (9th Cir. 1962); Toal v. United States, 438 F.2d 222 (2d Cir. 1971); Tyminski v. United States, 481 F.2d 257 (3rd Cir. 1973); Portis v. United States, 483 F.2d 670 (4th Cir. 1973); Reilly v. Unite......

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