The opinion of the court was delivered by: NICKERSON
Plaintiffs brought this action pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b), alleging personal injuries to plaintiff Kristen Marie Lee resulting from malpractice by federal government doctors. The government moves to dismiss the complaint pursuant to Rule 12(h) of the Federal Rules of Civil Procedure, asserting that the court lacks subject matter jurisdiction since plaintiffs failed to present their claim to the appropriate federal agency within two years after it accrued as required by 28 U.S.C. § 2401(b). Since the parties have submitted materials in addition to the pleadings the court treats the motion as one for summary judgment pursuant to Rule 56.
Kristen is a brain-damaged, retarded six-year old girl, and the complaint alleges that her condition is the result of malpractice committed by Air Force doctors at the Carswell Air Force Base Hospital (the "Base Hospital") in her delivery and immediate post-birth care.
From the depositions and other papers the following pertinent facts appear. At the time of the birth in November 1973, Kristen's father, plaintiff Edward Lee, was an Air Force sergeant and Physical Therapist Specialist stationed at the base. Although his wife was obese and hypertense she had an uneventful pregnancy, and after her membranes ruptured she was admitted to the Base Hospital on November 6th, 1973. When she did not spontaneously go into labor the doctors administered the drug pitocin in gradually increasing doses for approximately twenty-four hours. They then proceeded to deliver the child by caesarean section. A spinal anesthetic was administered. The baby's head had to be removed with forceps.
The baby was suctioned to clear her breathing passage and stomach, and she was administered free flowing oxygen. However, at five minutes after the birth there was an indication that she had a degree of depression. In a few minutes she was brought to the nursery, and in response to her poor condition the chief of pediatrics ordered diagnostic tests which revealed that she was suffering from aspiration pneumonia, with possibility of hyaline membrane disease.
That afternoon after the birth she was observed to be in respiratory distress and poorly responsive. Despite the attending doctor's further measures at one point she began spitting up and choking, her color turned blue, and she had no visible respiration. The chief of pediatrics then inserted an endotracheal tube, and oxygen under positive pressure was administered. Her respiration was thereafter re-established.
Lee saw his daughter after she arrived at the nursery. The chief of pediatrics informed him that she was having difficulty breathing because she had fluid in her lungs.
That same day she was transferred to John Peter Smith Hospital ("Smith Hospital"), which had specialized facilities for treating new-born infants. She continued to have difficulties through the night. During a conversation with a staff physician that evening at Smith Hospital, Lee had the first indication that Kristen might be suffering from brain damage. During the next two days her prognosis remained guarded. During that time the attending physician explained to Lee that she "had decreased levels of oxygen to the brain at a crucial time around the perinatal time." By November 13, 1973 it became clear that she was going to survive, and a week later she was discharged.
During her stay at Smith Hospital the physician explained to the parents that their daughter had had difficulties breathing and had had seizures. He also explained that she had had trouble obtaining oxygen because she had fluid in her lungs. When Lee asked why there was fluid in the lungs the doctor replied that he did not know.
After discharge from Smith Hospital the child saw the Smith Hospital doctor three times, the last being in December 1974 when she was 13 months old. The doctor testified that he told the parents that Kristen would probably be severely handicapped. Lee testified that the doctor told him that "because of the aspiration syndrome and because of the delivery and the possibility of lack of oxygen" her prognosis was guarded and her neurological progress was slow.
According to Lee at no time did any doctor at the base Hospital or at Smith Hospital state or even insinuate that the manner of the delivery had anything to do with Kristen's condition.
The Lees moved to New York in December 1974. On May 6, 1975 a doctor at North Shore University Hospital saw Kristen and after reviewing some of the medical records told the parents that Kristen's problem was not genetic or hereditary or caused by anything they had done but was due to an "insult at the time of birth." Thereafter Kristen was seen by various doctors at the Cerebral Palsy Center in Roosevelt, New York, and in January 1977 one of them told the parents that the cause of the brain damage was the mismanagement of the delivery.
Following this discussion the parents consulted counsel, and on May 4, 1977, the written claim was presented to the Air Force. On August 10, 1978, the Air Force denied the claim on the grounds that it was untimely filed and therefore barred by 28 U.S.C. § 2401(b). This action was commenced on September 11, 1978.
Plaintiffs claim that the doctors at the Base Hospital were guilty of malpractice in several respects which caused the injury. In particular plaintiffs say that the doctors departed from accepted medical practice (a) in administering the drug pitocin over a lengthy period to induce labor without first checking whether Mrs. Lee had a cephalo-pelvic disproportion, (b) in giving to a hypertensive patient a spinal anesthetic which led to a reduced ...