The opinion of the court was delivered by: MUNSON
MEMORANDUM-DECISION AND ORDER
Factual and Procedural Background
Deborah J. Schroer, plaintiff in this action, received medical treatment from defendant Dr. Ann Chmura, who was associated with defendant Mid-York Family Health Center, Inc. ["Mid-York"]. Plaintiff was seen by Dr. Chmura for pre-natal and post-natal care, beginning in November 1982 through July 11, 1983. On July 9, 1983 Dr. Chmura performed an episiotomy as part of childbirth. The operation took place in the Community Memorial Hospital, in Hamilton, New York, named as another defendant in this action. Plaintiff was discharged on July 11, 1983.
Plaintiff had a "six week post-partum checkup" on August 25, 1983, performed by Dr. Joseph Chanatry, who is not a party in this suit. In that checkup Dr. Chanatry informed Mrs. Schroer that her anal sphincter had been torn and that surgery would be required to repair it. Dr. Chanatry informed Dr. Chmura of the torn sphincter shortly after the former's examination of the plaintiff. However, plaintiff did not see Dr. Chmura as a patient after July 11, 1983. Plaintiff did see Dr. Chmura several times after July 1983, up to February 1984, but these appointments were only for examination and treatment of plaintiff's newborn daughter.
Plaintiff underwent surgery to repair the laceration and other related complications in September 1984 and June 1985. Dr. Chmura was not involved in these later surgical interventions. Apparently, as a result of these operations, Mrs. Schroer will be able to deliver children only by caesarean section.
Plaintiff states that she was not aware of the extent of her injury until she saw what Dr. Chanatry wrote on the medical insurance claims she filed. "At that time [September 26, 1984] I first realized that my injury was caused by something that Dr. Chmura did wrong. I was not fully aware of the exact technical cause of my injury (breakdown of the episeotomy [sic] repair site) until I reviewed my complete medical file with my attorney in early 1985." Affid. of Deborah J. Schroer, March 7, 1985 at 4.
In January 1986 plaintiff sued the defendants named in this action in the New York Supreme Court, to recover damages caused by alleged medical malpractice. The action was commenced in a timely fashion under New York law, which specifies a two and a half year statute of limitations for medical malpractice actions. This action was removed to the United States District Court by petition dated January 28, 1986 and upon certification of Assistant U.S. Attorney Edward R. Broton, that defendant Dr. Chmura was an employee of the National Health Service Corps at the time the alleged malpractice occurred. Since the National Health Service Corps is a federal agency, the federal government moved to substitute the United States as a party in the stead of Dr. Chmura. The government also moved to dismiss the action against the United States pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
As a result of the government's showing a Department of Health and Human Services earnings and leave statement, counsel for plaintiff conceded that Dr. Chmura was a federal employee at the time the alleged malpractice occurred. Accordingly, plaintiffs conceded that the real party in interest was the United States, and that the United States should be substituted as a party in the stead of Dr. Chmura.
Defendants Mid-York and Community Memorial Hospital asserted cross claims against Dr. Chmura for contribution and indemnity. Based on those claims, Community Memorial Hospital requests that the court exercise jurisdiction over the case even if the plaintiffs' claim against Dr. Chmura and/or the United States were dismissed.
1. Dismissal of the Action Against the United States
Since Dr. Chmura was a federal employee at the time the alleged malpractice occurred, the Federal Tort Claims Act ["FTCA"], 28 U.S.C. §§ 2671-2680 (1982), applies. Under the FTCA a person may not commence a tort action in court against the United States unless that person first presented a claim to the appropriate federal agency. 28 U.S.C. § 2675(a). This claim must be presented to the federal agency within two years of the date on which the claim accrued. 28 U.S.C. § 2401(b). The requirement of filing a claim prior to commencing suit is a jurisdictional prerequisite to a federal court action. See Lien v. Beehner, 453 F. Supp. 604, 605 (N.D.N.Y. 1978). The United States argues that this action must be dismissed because of plaintiffs' failure to file a claim within the two year statute of limitations.
The statute of limitations begins to run once the victim knows or has reason to know of both the injury and the cause of the injury. United States v. Kubrick, 444 U.S. 111, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979). The victim need not know that the cause of the injury was negligence, but the statute of limitations begins to run if the cause of the injury was known and further inquiry would have ...