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October 27, 1980

Paul MORTENSEN, Plaintiff,
UNITED STATES of America, Defendant

The opinion of the court was delivered by: SAND

The question posed by the motion before this Court is whether plaintiff's claim against the United States resulting from alleged medical malpractice by the United States Public Health Service Hospital at Staten Island, New York (the "PHS") during the period from February 12, 1976 to November 25, 1977 is barred by the two year statute of limitations of the Federal Tort Claims Act. 28 U.S.C. § 2401.

We find that plaintiff's claim for this period of time is so barred.


 For the purposes of disposition of defendant's motion, we view the facts in the light most favorable to plaintiff. *fn1"

 On September 8, 1975, plaintiff was injured while working for McAllister Brothers, Inc. on the Tug Helen McAllister. As a result of a fall, he sustained injuries to his back and arms. On September 19, 1975, plaintiff was treated at the emergency room of Community Memorial Hospital in Toms River, New Jersey. As an American merchant seaman, plaintiff is required to seek medical care from the Public Health Service. Therefore, plaintiff visited the PHS for additional treatment.

 In the period from February 12, 1976 to July 2, 1976 (the "first treatment period"), plaintiff visited several clinics at the PHS. His condition was diagnosed as right ulnar nerve neuropathy by the physician on duty at the general clinic on plaintiff's first visit to the PHS, and subsequently by Dr. Taboada of the neurology clinic. His symptoms included diminished sensation along the ulnar aspect of the right forearm and right hand, weakened right hand grip and atrophy of the hypothenar region of the right hand.

 On July 2, 1976, plaintiff was "discharged" from the neurology clinic. *fn2" Plaintiff alleges that, on July 2, 1976, Dr. Taboada informed him that his condition would improve with time and that nerve injuries sometimes take a long time to heal. After July 2, 1976, plaintiff was not treated or examined again at the PHS until November 25, 1977, when he returned to the PHS and was treated until August 14, 1978 (the "second treatment period").

 Between July 2, 1976 and November 25, 1977 (the "interim period"), plaintiff saw several private physicians who were not affiliated with the PHS. After he was injured in a bus accident on December 1, 1976, plaintiff was treated at Community Memorial Hospital and then by Dr. Ponnambalam, an orthopedist. Dr. Ponnambalam noted plaintiff's ulnar nerve symptoms and referred him to other physicians for testing. Based on the results of the tests, Dr. Ponnambalam, in consultation with the other physicians, concluded that surgery was recommended. On February 16, 1977, Dr. Ponnambalam advised plaintiff that he recommended surgery. Dr. Ponnambalam did not, however, inform plaintiff that his condition may have been caused or exacerbated by negligent treatment at the PHS. *fn3" The recommended surgery was not performed at this time.

 On November 25, 1977, plaintiff began his second treatment period at the PHS. He was seen on an inpatient and outpatient basis at various clinics within the PHS, including the neurology clinic, where he was seen by Dr. Taboada, the physician who had "discharged" him on July 2, 1976. Plaintiff ultimately underwent two surgical procedures, on April 5, 1978 and June 2, 1978, which he alleges were unsuccessful and left him unable to use his right hand. Plaintiff's last contact with the PHS was on August 14, 1978.


 On October 13, 1976, Plaintiff commenced a lawsuit against McAllister Brothers, Inc., claiming damages for the injury he sustained aboard the Tug Helen McAllister on September 8, 1975. On August 31, 1977, in connection with this lawsuit, plaintiff was examined by McAllister Brothers' physician, Dr. Balensweig. Based on Dr. Balensweig's report and confidential memorandum, *fn4" McAllister Brothers moved this Court, on December 13, 1977, to implead the United States as a third party defendant, based on allegations that plaintiff's condition was caused or aggravated by the malpractice of the PHS.

 On May 4, 1979, plaintiff filed an administrative tort claim with the Department of Health, Education and Welfare, alleging medical malpractice by the PHS "on or about and between February 12, 1976 and August 14, 1978", i. e., during the first treatment period, the interim period, and the second treatment period. This claim was denied on August 16, 1979. Plaintiff filed the instant suit pursuant to the Federal Tort Claims Act on November 2, 1979, essentially alleging malpractice by the PHS in failing to follow up its course of treatment, in failing to diagnose plaintiff's condition correctly, and in failing to recommend surgery at a time when it could have been successful.

 Defendant moves to dismiss the complaint with respect to any claims of malpractice prior to November 25, 1977, or alternatively, for partial summary judgment with respect to any such claims on the ground that they are barred by the two year statute of limitations provided by 28 U.S.C. § 2401(b). Because materials outside the pleadings have been submitted in connection with this motion, we will treat it as a motion for partial summary judgment.

 Defendant alleges that plaintiff's claims of malpractice by the PHS in the first treatment period and the interim period accrued, for the purposes of the statute of limitations, no later than February 16, 1977, when he was advised by Dr. Ponnambalam that surgery was recommended for his condition. Therefore, defendant argues that plaintiff's administrative claim on May 4, 1979 was untimely because it was filed more than two years after accrual of the claim. Defendant alternatively alleges that on July 2, 1976, when plaintiff was told that ...

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