The opinion of the court was delivered by: PORT
MEMORANDUM DECISION AND ORDER
Basing jurisdiction on the Federal Tort Claims Act, the infant plaintiff, born November 27, 1970, and his parents instituted suit against the United States for four million dollars damages alleged to result from the malpractice of a United States Air Force physician. The alleged negligence consisted of the misdiagnosis and treatment of meningitis as a cold and teething during the infant's treatment at the Plattsburgh Air Force Base Hospital (Plattsburgh) from April 15 to April 22, 1971 and the resultant delay until April 27, 1971 in receiving appropriate treatment at the United States Naval Hospital at Balboa, California (Balboa). The treatment at Balboa is not faulted by the plaintiffs.
Chief Judge Foley granted summary judgment dismissing the plaintiffs' complaint for lack of jurisdiction on the ground that the notice of claim filed on January 17, 1974 was not timely. The plaintiffs sought to avoid the bar of the two-year filing requirement by a contention that the claim accrued within the two-year period as required by the statute.
They contended under the "continuing treatment" theory that the claim did not accrue until February 1973 because of subsequent care rendered the infant at Plattsburgh after the correct diagnosis at Balboa. They alternatively contended that the claim did not accrue until July 1973 when the mother was advised by the attorney of a possible malpractice action.
On appeal, the Court of Appeals sustained the dismissal based on the "continuing treatment" theory but reversed and remanded because the majority thought "that on the record before the court a genuine issue of material fact existed, as to when a reasonable person in the position of the child's mother should have realized that negligent malpractice had occurred." Camire v. United States, 535 F.2d 749, 751 (2d Cir. 1976) (Mansfield, J., dissenting).
On remand, a trial was held limited solely to the question of when the plaintiffs' claim accrued and the related issues concerning the timeliness of the filing of the claim. After the trial of these issues and while the case was sub judice, I withheld consideration of it, with the consent of the parties, pending the determination in the Supreme Court of United States v. Kubrick, 444 U.S. 111, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979).
After the decision of Kubrick the parties were given an opportunity to submit memoranda giving their views of the effect of Kubrick on the facts developed in this case. It was
the position of the plaintiff that (Kubrick ) in no way affects the present matter under consideration. . . . It would appear from Kubrick's decision that the Court must decide from the facts in an individual case when the claimant knew of the malpractice or should have known, giving consideration to their knowledge and the facts that were presented to the claimant.
Continuing their post-Kubrick argument, plaintiffs somewhat ambiguously state:
It would be at that time that the full extent of the injuries and damage to the infant concerning the hearing and eyes, were presented to the claimants, which was not until June of 1972, when the civilian doctor, Dr. Davis, suggested the malpractice. The notice of claim was filed within 2 years of discovery of the malpractice.
Plaintiffs also, without claiming that it results in the tolling of the statute, referred to the infancy of the plaintiff Joseph Anthony Camire. Unfortunately, in an action such as this, the statute of limitations is not tolled by infancy. Mann v. United States, 399 F.2d 672, 673 (9th Cir. 1968); Camire v. United States, No. 74-CV-501 (N.D.N.Y. Oct. 10, 1975), affirmed in part and reversed, remanded in part on other grounds, 535 F.2d 749 (2d Cir. 1976).
The Government contends that the facts bring the case within the rationale of Kubrick. Echoing the sentiments of Judge Mansfield: "Sympathetic as I am to the plight of parents and child, I find no rational basis whatever for avoiding a clearly applicable rule of law," Camire, supra, 535 F.2d at 751, requiring the dismissal of plaintiffs' complaint in accordance with the holding of Kubrick.
The trial revealed little more of the material facts concerning the accrual issue than were disclosed in the papers submitted to Judge Foley on the dismissal motion. Familiarity with Judge Foley's Memorandum-Decision and Order and the opinion of the Court of Appeals is assumed. The facts are repeated only as required for the determination of the matter before me.
On April 15, 1971 the infant plaintiff was taken to the Plattsburgh Air Force Base Hospital (Plattsburgh) with a high fever, vomiting, convulsions and persistent crying. The infant was seen at the hospital by Capt. Donald Marger, M.D., who diagnosed the ailment as "cutting teeth and a cold." Treatment was continued on the basis of that diagnosis until April 26, 1971, when the doctor gave his permission to Mrs. Camire to take the infant to California where his father was serving in the Navy. Upon arrival at San Diego the child's mother brought him to the United States Naval Hospital at Balboa, California with the same symptoms he had displayed at Plattsburgh. The child was immediately recognized by the doctors at Balboa as a very sick child. A consent was obtained from the mother for a spinal tap to test for meningitis. She admitted that she was told that the baby may have had meningitis. She was told that the baby was so sick that she should have the child baptized and the last rites administered immediately, which was done. Upon cross-examination she was asked if she had not been told by the doctor at Balboa that the child had meningitis in an advanced stage of three or four weeks. Initially she denied that this information was given to her. However, she later testified that "he (the doctor) could have said it very possibly could have said it." A statement that this information was given to her was also included in her notice of claim dated December 10, 1973. I find that the infant's mother knew by early May 1971, when the child was being treated at Balboa, that he was suffering from meningitis in an advanced stage of three or four weeks and that he was critically ill. The baptism and last rites given to the child are eloquent testimony to the fact that she understood that the child was suffering from something far more serious than a cold or teething.
After the child's release from Balboa, he was seen as an outpatient there and at a naval installation at Long Beach, California for the rest of the summer and fall on a regular basis. During that period the mother became aware that the child's hearing and sight were impaired. She also was advised that he had some brain damage. The child's father received the same information through observation, or from his wife or the doctors. The parents also noticed that during the summer and fall of 1971 the child failed to develop normally. He was described by the mother as acting like "a newborn infant" just home from the hospital. During the months from August to November 1971 the parents noticed that the child was not walking, crawling or sitting up, that he had no interest in toys, and that he had a vision and hearing deficiency. Treatment was continued at Plattsburgh by a government physician on her return there in April 1972. He referred the child for examination to a Dr. Jerome Davis, a civilian. Mrs. Camire claims that Dr. Davis gave her the first and only information she had received that the child's abnormal condition was the result of the failure to initially diagnose properly the meningitis at Plattsburgh with its resultant delay ...