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DEGIROLAMO v. UNITED STATES

February 9, 1981

Frank P. DeGIROLAMO, Plaintiff,
v.
UNITED STATES of America and Veterans Administration as an agent of the United States of America, Defendants



The opinion of the court was delivered by: COSTANTINO

MEMORANDUM OF DECISION AND ORDER

This summary judgment motion seeks to dismiss the complaint of the plaintiff, Frank P. DeGirolamo ("DeGirolamo"), pursuant to Rule 56 of the Fed.R.Civ.P. The Government alleges that DeGirolamo's malpractice cause of action, based on the Federal Torts Claim Act, 28 U.S.C. § 2671 et seq. ("FTCA"), is time barred by the two-year statute of limitations in 28 U.S.C. § 2401(b). The Government contends that the claim is untimely because the cause of action accrued on October 15, 1975 and DeGirolamo failed to file his administrative claim until May 18, 1979, more than two years after the accrual date. For reasons stated below, the motion is granted in part and dismissed in part.

 DeGirolamo sustained injuries to his left knee while on military maneuvers with the United States Army in 1969. From 1969 until his referral to the Veterans Administration Hospital at Poly Place ("VAPP") in 1975, he received treatment for the injuries at the Veterans Administration Out-Patient Clinic at Ryerson Street ("VAOC"). He was admitted to the VAPP in October, 1975 initially to determine whether corrective surgery was necessary. X-rays were taken of the left knee and without the assistance of an arthrogram, *fn1" the injury was diagnosed as a torn left medial meniscus. On October 8, 1975, Drs. Kharod and Smith of the VAPP performed a meniscectomy *fn2" to remove the torn cartilage.

 For months after the operation, DeGirolamo received rehabilitation treatment at the VAPP and the VAOC, but the pain and swelling in the left knee increased. Because the post-operative problems rendered him virtually immobile, DeGirolamo sought additional disability benefits and was advised by the VA officials that to increase his 10% disability pension, he should obtain a medical report from a private physician describing the nature and the extent of his injuries. He thereafter consulted Dr. Hubert Pearlman, a private orthopedist, in July, 1976, and Dr. Pearlman referred DeGirolamo to the Lutheran Medical Center, where an arthrogram of his left knee was done. After receiving the arthrogram DeGirolamo returned to Dr. Pearlman who informed him that a piece of cartilage had been left in the knee after the meniscectomy. Dr. Pearlman never treated DeGirolamo for the injury, but advised him to return to the VAPP for further treatment.

 On September 16, 1976, DeGirolamo showed the results of the arthogram to Dr. Smith of the VAPP who stated that the failure to remove the entire meniscus was a common occurrence and that cartilage remnants are often left in the knee after a meniscectomy. Dr. Smith also advised against a subsequent operation because he felt that the existence of scar tissue around the operative site would complicate the procedure. DeGirolamo apparently accepted Dr. Smith's explanation, but continued to seek an increase in his disability payments. To this end, he hired an attorney, Mr. Julian Shestack, to assist him, and in further support of the increased pension application, he consulted two additional private orthopedists, Drs. Fielding and Marshal, in November 1976, who also told DeGirolamo of the existence of the cartilage remnants in the left knee. DeGirolamo was likewise told by Dr. Marshal that leaving a piece of cartilage in the knee was a common result of a meniscectomy.

 DeGirolamo continued to receive treatment from VA doctors at the VAPP through December 15, 1977 and at the VAOC through May 25, 1978. He was, however, never treated by Drs. Kharod and Smith, the operating physicians, after 1975 and 1976 respectively. On May 18, 1979, DeGirolamo filed this malpractice suit seeking redress for the injuries resulting both from the October 15, 1975 operation and the post-operative care received at the VA facilities.

 The applicable statute of limitations for suits brought under the FTCA is located in 28 U.S.C. § 2401(b) which provides in pertinent part that:

 
A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues ....

 The sole issue in this action is when the cause of action accrued.

 DeGirolamo argues that the Government defendants should be barred from asserting the statute of limitations mainly because he "was advised on numerous occasions by the operating surgeon (Dr. Smith) and the treating orthopedic surgeon at the out-patient facility that no malpractice (had) occurred and also that he (had not been) injured as a result of the operation performed and the care pre-operatively, operatively and post-operatively afforded him." (Pltf.Memo. of Law at 15.) Moreover, DeGirolamo avers that he had no knowledge of the act or omission causing his injury, had no knowledge of any legal remedy to which he was entitled, and his justified reliance on the advice received by the VA doctors tolled the statute of limitations until his treatment at the VA facilities abated.

 In Urie v. Thompson, 337 U.S. 163, 69 S. Ct. 1018, 93 L. Ed. 1282 (1949), the Supreme Court established that a claimant cannot be charged with knowledge of an injury which had yet to manifest itself. Thus, on the basis of the Urie court's "blameless ignorance" standard, id. at 170, 69 S. Ct. at 1024, numerous courts have held that a tort claim accrues in a malpractice action when the injured party has discovered, or in the exercise of reasonable diligence, should have discovered the acts constituting the malpractice. Quinton v. United States, 304 F.2d 234, 240 (5th Cir. 1962); see West v. United States, 592 F.2d 487 (8th Cir. 1979); Hulver v. United States, 562 F.2d 1132 (8th Cir. 1977), cert. denied, 435 U.S. 951, 98 S. Ct. 1576, 55 L. Ed. 2d 800 (1978); Sanders v. United States, 179 U.S. App. D.C. 272, 551 F.2d 458 (D.C.Cir.1977).

 The accrual date is often postponed, however, in cases where a patient is receiving continuous treatment from a given physician and relying on his advice. Kossick v. United States, 330 F.2d 933 (2d Cir.), cert. denied, 379 U.S. 837, 85 S. Ct. 73, 13 L. Ed. 2d 44 (1964); see Reilly v. United States, 513 F.2d 147 (8th Cir. 1975); Ciccarone v. United States, 486 F.2d 253 (3d Cir. 1973). This rule tolling the statute of limitations evolved for several reasons: first, it would obviously be both absurd and inappropriate to force a claimant to institute suit against either a hospital or a physician while still undergoing corrective medical treatment, Kossick v. United States, supra ; and second, it prevents the concealment by physicians of malpractice acts until the time in which to sue has expired. Ashley v. United States, 413 F.2d 490, 493 (9th Cir. 1969). Without these tolls, a claimant would often be at a significant disadvantage because the statute of limitation could be running before he was either "armed with the facts about the harm done to him," United States v. Kubrick, 444 U.S. 111, 123, 100 S. Ct. 352, 360, 62 L. Ed. 2d 259 (1979) or aware of the acts or omission which caused his injury. De Witt v. United States, 593 F.2d 276 (7th Cir. 1978).

 Despite the toll granted for continuous treatment, the toll is not without exception and is lifted when the facts became "so grave as to alert a reasonable person that there may have been negligence related to the treatment received ...." Reilly v. United States, supra, 513 F.2d at 150; see Ciccarone v. United States, supra; Ashley v. United States, supra; Brown v. United States, 353 F.2d 578 (9th Cir. 1965). As succinctly noted by the Third Circuit in Tyminski v. United States, 481 F.2d 257 (3d Cir. 1973), the toll for continuous treatment "has no merit when a person knows of the acts constituting negligence." Id. at 265 n.5. Moreover, the toll is lifted in many cases when a patient receives improper medical care from one government physician, and he is thereafter treated by succeeding government doctors who are not accused of malfeasance. When the facts known to the claimant warrant inquiry, courts have refused to allow a claimant to postpone his investigation, and consequently, toll the statute of limitations in a suit against first government doctors until treatment with succeeding government physicians has ended. See, e.g., Hulver v. United States, supra; Brown v. United States, supra.

 It is obvious to this court that shortly after the operation DeGirolamo was something less than ignorant of his circumstances. In fact, he was aware of all the pertinent data by November, 1976. In his attempt to increase his disability pension, he consulted three private physicians, and each told DeGirolamo that a piece of cartilage had been left in the knee after the meniscectomy. As further evidence of DeGirolamo's knowledge of the alleged malpractice, he subsequently submitted a claim for reimbursement on ...


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