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December 22, 1983


The opinion of the court was delivered by: PLATT



 Richard Rispoli, a Korean War veteran, brought this action gainst the United States of America under the Federal Tort Claims Act (FTCA). He seeks to recover for malpractice allegedly committed while he was an inpatient at the Brooklyn Veterans Administration Hospital. His wife, Rita Rispoli, filed a derivative claim for loss of services. The government brought this Rule 56 motion for summary judgment on the grounds that plaintiffs' actions are barred by the FTCA, which prohibits a tort claim against the United States unless it is presented "within two years after such claim accrues." 28 U.S.C. § 2401(b). It also seeks to dismiss Mrs. Rispoli's derivative claim on the additional ground that she failed to file a properly substantiated administrative claim. For the reasons stated below, we deny the government's motion for summary judgment and, as the trier of fact in this action, find that the Rispoli claims are not barred by the time limitations imposed by the FTCA but grant its motion to dismiss Mrs. Rispoli's claim.


 On October 7, 1983, this Court held a hearing in connection with this motion. On the basis of that testimony, as well as all other testimony thus far elicited in this proceeding, we find the following.

 In October 1974, Mr. Richard Rispoli was selling hotdogs from a stand in Brooklyn when an automobile rammed into him, pinning his leg and crushing it. He was rushed to Maimonides Hospital where he remained for a month while the doctors treated his leg. His femoral artery, which had been severed in the accident, was repaired and his leg, which suffered from open wounds and from which the skin had been ripped off, was treated for severe infection. Amputation of his leg was neither recommended nor discussed.

 On November 11, 1974, Mr. Rispoli was transferred to the Brooklyn Veterans Administration Hospital where he remained an inpatient for five years. The doctors at the V.A. Hospital continued treatment of the open wound and recommended amputation. Mr. Rispoli refused to consent to the amputation of his leg.

 Mr. Rispoli was then referred to the Hospital's Plastic Surgery Unit. He was treated, among others, by Dr. Kaufman and Kaufman's superior, Dr. Song. They performed a number of plastic surgical procedures -- including skin grafts and flap advancement procedures -- in an attempt to close his open leg wound. In October 1975, the physicians decided to perform an abdominal flap procedure and Mr. Rispoli agreed, knowing that it would be painful and there might be complications. In this procedure, ranging from October 1975 to January 1976, Mr. Rispoli's arm was attached to his abdomen for a few weeks and then disconnected and sewn to his right leg for another few weeks to obtain a successful skin graft. This procedure was done by using a "pretzel cast" -- so named because of the contorted positions in which the patient is placed.

 Mr. Rispoli was in great pain during this procedure and complained that his cast was too tight and hurt him. At Dr. Song's direction, portions of the cast were removed. He also complained to Dr. Song about Dr. Kaufman's treatment of him and was given assurances and told not to worry, that Dr. Kaufman was young but all right, and that Dr. Song would talk to Dr. Kaufman. It is this Court's conclusion that plaintiff's complaints about Dr. Kaufman made during this time period were directed to Dr. Kaufman's bedside manner, which was gruff, unsympathetic and abrasive.

 These "casting procedures" form the basis of Mr. Rispoli's malpractice claim. He testified that when the cast was removed in January 1976, the wound on his leg was successfully covered up but the heel and the top of his foot had come off completely. Dr. Song advised him that the open wounds would be treated with wet dressings and would heal. Eventually, when the condition did not heal, plaintiff was treated by many operatives procedures. In addition, in late 1976, plaintiff had begun to experience numbness and loss of feeling in the fingers of his right hand.

 According to the record, Mr. Rispoli wrote the hospital on January 10, 1977 and February 4, 1977 regarding his flap procedure treatment. His complaints about Dr. Kaufman in the January 10, 1977 letter, which was read into the plaintiff's deposition testimony, clearly reflect his belief that Dr. Kaufman was mistreating him as a human being and not that the medical treatment was inadequate. In a March 3, 1977 letter written by Dorothy H. Henneman, M.D., one of the doctors who saw Mr. Rispoli in response to the letter he had written, this conclusion is supported by Dr. Henneman's own observations that Mr. Rispoli was aware that the hospitals' "physicians had indeed "saved his life," and that patient would consider writing a letter to that effect," and "patient has received good care and realizes this." (Plaintiff's Exhibit 1). The letter makes it clear that Mr. Rispolis' criticism, at this time, was with Dr. Kaufman's inadequate bedside manner.

 In later 1977, after several unsuccessful operations to close the open wounds on his foot, Mr. Rispoli went to see an outside plastic surgeon when he was away from the hospital on a weekend pass. On April 13, 1978, the V.A. received plaintiff's administrative claim seeking $5 million damages. It was accompanieed by an affidavit of his wife, Rita, seeking an unspecified amount of damages for "loss of services."

 In this motion the government contends that Mr. Rispoli's action is barred by the time limitations imposed by the FTCA. 28 U.S.C. § 2401(b). Further, the government asserts that Mrs. Rispoli's claim, as a derivative action, must be dismissed because it is time barred and because she failed to file a timely substantiated claim. The government also maintains that plaintiffs' complaint against defendant Veterans Administration must be dismissed because, pursuant to ...

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