72. Dr. Joseph Robinson when he examined plaintiff on November 30, 1964 found no residuals resulting from the December 11, 1961 automobile accident but found that plaintiff's complaints resulted from his previous attacks of meningitis as well as the procedure performed upon him at the Veterans Administration Hospital on July 16, 1963.
73. Dr. Bernard J. Alpers, a physician having an office in Philadelphia, Pennsylvania, is certified by the American Board of Psychiatry and Neurology in both the fields of psychiatry and neurology.
74. Dr. Bernard J. Alpers examined plaintiff on January 6, 1965 in connection with an automobile accident in which plaintiff was involved on December 11, 1961.
75. Dr. Bernard J. Alpers by letter dated July 6, 1965 directed to Dr. Donald Fox of Philadelphia, Pennsylvania, reported that plaintiff's present trouble began in July of 1963 while he was in the hospital at which time he developed weakness of the legs.
76. Dr. Bernard J. Alpers also reported to Dr. Donald Fox that plaintiff's damage had reached an irreversible stage and that he did not see how medical treatment could be of much help.
77. Dr. Bernard J. Alpers at the time of his neurological examination of plaintiff on January 6, 1965 discussed his findings with plaintiff and his wife.
78. Dr. Bernard J. Alpers was paid for his examination of plaintiff of January 6, 1965 by Arthur J. Hirschhorn, Esquire, who represented plaintiff in connection with the December 11, 1961 automobile accident.
79. Under date of January 7, 1965, plaintiff requested that the Veterans Administration Hospital supply a copy of his hospital records to Dr. Bernard J. Alpers.
80. On July 7, 1965, when Dr. R. A. Farmer met with plaintiff and his wife on an out-patient basis, the July 16, 1963 methylene blue procedure performed by Dr. S. E. Strum was discussed.
81. On July 7, 1965 Dr. R. A. Farmer told plaintiff that he was improving but he did not tell plaintiff that he would sustain a complete recovery.
82. When plaintiff and his wife met with Dr. R. A. Farmer on July 7, 1965, plaintiff and his wife told Dr. Farmer that they were dissatisfied with the method that Dr. S. E. Strum used in the methylene blue procedure and that since such procedure there has been a drastic change in plaintiff's physical condition.
83. Dr. R. A. Farmer on that date told plaintiff and his wife that the methylene blue procedure was an accepted procedure which had been performed for many years.
84. Plaintiff reported to Dr. R. A. Farmer on July 7, 1965 that the plaintiff occasionally had an erection during sleep.
85. Neither Dr. S. E. Strum nor any other physician of the Veterans Administration Hospital intentionally concealed any facts from plaintiff or his wife.
86. Plaintiff and his wife were never prevented by the staff of the Veterans Administration Hospital from obtaining knowledge of the facts of his case and particularly surrounding the methylene blue procedure administered on July 16, 1963.
87. On October 9, 1967 plaintiff was admitted to the Holy Redeemer Hospital, Philadelphia, Pennsylvania, where his condition was diagnosed as meningitis and he was placed on the critical list.
88. Dr. Aaron W. Mallin, the only expert medical witness who testified for plaintiff, is certified by the American Board of Psychiatry and Neurology only in the field of psychiatry.
I. Statute of Limitations
The threshold issue is whether plaintiff's action is barred by the statute of limitations. Plaintiff underwent an intrathecal injection of methylene blue which he claims constituted malpractice and caused him physical injury on July 16, 1963. He filed suit more than four years later on September 29, 1967. The statute of limitations on actions brought under the Federal Tort Claims Act is two years from the time the right of action first accrues. 28 U.S.C.A. § 2401.
The crucial determination is when the cause of action accrued within the meaning of the statute. Federal law must be applied in making that finding. Quinton v. United States, 304 F.2d 234 (5th Cir. 1962). The best rule for determining when the statute begins to run is that the claim "accrues against the Government when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice." Hungerford v. United States, 307 F.2d 99, 102 (9th Cir. 1962); accord Coyne v. United States, 411 F.2d 987 (5th Cir. 1969).
Plaintiff cites various cases in which courts have permitted plaintiffs to maintain actions which were filed more than two years after the negligent action. These were generally cases in which the plaintiff could not know immediately that there was damage and, therefore, had no reason to suspect wrong-doing. See Quinton v. United States, supra ; United States v. Reid, 251 F.2d 691 (5th Cir. 1958); cf. Urie v. Thompson, 337 U.S. 163, 69 S. Ct. 1018, 93 L. Ed. 1282 (1949). The general rule as stated by the Fifth Circuit for the determination of when an action accrues is:
"Where the trauma coincides with the negligent act and some damage is discernible at the time, the two-year statute of limitations begins to run even though the ultimate damage is unknown or unpredictable." Beech v. United States, 345 F.2d 872, 874 (5th Cir. 1965)
The facts of this case indicate that plaintiff's action accrued immediately.
There can be no doubt that the injury coincided almost exactly with the alleged wrongful act, the intrathecal injection of methylene blue. Plaintiff had pain and numbness in his legs within a few hours after the completion of the procedure. The next day he could not stand or walk and his lower extremeties were flaccid. He was aware that there were possible dangers with the procedure but that there should be no ill effects. The unexpected and unusual trauma immediately following the procedure should have alerted plaintiff to diligently investigate the matter. See Brown v. United States, 353 F.2d 578 (9th Cir. 1965). The three factors enumerated in Beech v. United States, supra -- the trauma, the alleged negligent act and discernible damage -- were all immediately present on July 16, 1963.
Plaintiff argues that the statute should not be held to have run against him because he was lulled by the false statements of the doctors at the Veterans Administration Hospital. He claims that he was told by several doctors that his paralysis was due to a meningitis attack and was in no way related to the methylene blue injection. This Court, however, finds that Dr. Strum never told plaintiff or his wife that plaintiff's injuries were the result of a meningitis attack. The records from the hospital indicate that there was confusion as to the cause, and the testimony at trial confirmed that some confusion in the use of the term "meningitis" still exists. The doctor did not purposely deceive the patient. It was not the duty of the doctors treating plaintiff to advise him that he had been negligently treated. See Brown v. United States, supra. Plaintiff's inquiries to the doctors were not very diligent in nature. It should be noted that during the period in which plaintiff claims the statute was not running he was in contact with counsel concerning another matter and during such period he was twice examined by non-government doctors, Drs. Robinson and Alpers, both of whom gave consideration to plaintiff's July 16, 1963 injuries.
Plaintiff also argues that the statute was stopped because he was under continuous care of Veterans Administration doctors. It is clear that Dr. Strum's care of plaintiff ceased entirely in August, 1963. The continuous care rule is limited to the personal physician-patient relationship and a patient is not excused from diligent inquiry because he continues to be treated by succeeding government doctors. See Brown v. United States, supra.
Plaintiff's claim that he was lulled by the doctors' assurances that he would recover completely is without legal or factual support. If plaintiff suffered even temporary damage from a wrongful act he suffered damage which gave rise to a claim. Knowledge of ultimate damage is not necessary for the running of the statute. Beech v. United States, supra. There was no indication on the part of the hospital staff that this was an ordinary and temporary result of such a test upon which assurance plaintiff might be permitted to rely. Compare, Toal v. United States, 438 F.2d 222 (2d Cir. 1971). In Toal there was the added complication that plaintiff was injured in an intervening automobile accident before the damage from the malpractice manifested itself.
Plaintiff in the present case was clearly on notice that he had suffered injury immediately after the procedure. He should have diligently investigated the possibility that rights had accrued to him and not have waited four years to file suit. The statute of limitations has run.
Notwithstanding our conclusion that the statute of limitations has run we shall also discuss plaintiff's claim that there was medical malpractice. Plaintiff's main contentions are (1) that he did not give an informed consent because Dr. Strum did not properly warn him of the dangers of the procedure, and (2) that the performance of the procedure itself was malpractice. Pennsylvania law governs this action brought under Federal Tort Claims Act. See Christopher v. United States, 237 F. Supp. 787 (E.D.Pa. 1965).
(A) Informed Consent
In Pennsylvania a patient must give an informed consent to any medical procedure which is performed on him. This means that he must know of the possible adverse results and dangers of the procedure. The doctor may also be required to inform the patient of any alternative methods of treatment for his particular case. See Dunham v. Wright, 423 F.2d 940 (3d Cir. 1970).
Plaintiff claims that neither he nor his wife were properly informed of the possible consequences of the methylene blue injection. Mrs. Ciccarone testified that Dr. Strum told her and her husband that there were no dangers from the procedure. Dr. Strum, however, testified that although he could not remember exactly what he said nine years ago, he was certain that he warned the Ciccarones that death and paralysis were always possibilities in a lumbar puncture, and that this possibility was increased when a foreign substance was injected into the body. We accept Dr. Strum's testimony.
The fact that Dr. Strum could not remember exactly what he said during his conference with the Ciccarones does not convince us to accept Mrs. Ciccarone's testimony. His lapse of memory after nine years is understandable. He testified as to what was his custom at the time and we are convinced that he followed that practice in this case.
Dr. Strum admitted that he did not stress possible ill-effects to plaintiff and that he told the patient that harm was unlikely. This was reasonably based on his own experience and education. He reasonably explained the possible benefits of the procedure and the dangers to the patient if the source of his meningitis attacks were not discovered. We cannot place a doctor in the position of talking a patient out of treatment which he reasonably believes to be necessary and safe. As Judge Adams stated in Dunham courts must
". . . develop a delicate balance between the right of the patient to choose the treatment which he wishes to undergo and the freedom of the physician to practice responsible and progressive medicine without fear of frequent litigation." 423 F.2d at 942
Dr. Strum did not inform the plaintiff of any alternative method for obtaining the information which he considered so essential to treatment of plaintiff's condition. While Dr. Mallin, plaintiff's expert, testified that other methods were available, the other doctors who testified indicated that this was unclear. Dr. Mallin's testimony was undercut by testimony of Dr. Groff, defendant's expert, that procedures which Dr. Mallin had named were improper for the purpose in this case.
We find that plaintiff's consent to this procedure was informed. He knew of the possible consequences and benefits to him. Dr. Strum had not emphasized the dangers on the basis of his own experience and education. The fact that he did not give a percentage breakdown of the risk is not decisive. Dunham v. Wright, supra at 946. We believe that Dr. Strum's discussion with plaintiff and his wife struck a reasonable balance between the right of the patient to be properly informed and the right of the doctor to practice responsible medicine without harassment.
(B) Performance of the Procedure
Plaintiff also contends that it was malpractice for Dr. Strum to perform the procedure because he had not researched the literature which indicated that there might be dangers to the intrathecal injection of methylene blue. Dr. Strum testified that he based his decision to use methylene blue on his own participation in two previous intrathecal injections which were completed without any complications, on the teaching he had received concerning this procedure at the Boston Veterans Administration Hospital, and his own familiarity with neurological literature. He admitted that he had not researched the subject in the Index Medicus, a basic medical source for finding articles in the field of medicine. He was not familiar with two articles, warning of possible dangers in this procedure, which appeared in the Journal of the American Medical Association in 1960.
Plaintiff contends that Dr. Strum's failure to properly research the subject before performing the procedure was a breach of medical practice which resulted in him using a dangerous procedure which caused plaintiff's injuries. In malpractice actions in Pennsylvania the test is whether the physician possessed and employed in the treatment of the patient the skill and knowledge usually possessed by physicians of similar position in the same locality, giving due regard to the advanced state of the profession and whether he exercised the care and judgment of a reasonable man. McHugh v. Audet, 72 F. Supp. 394, 399 (E.D.Pa. 1947). Plaintiff must prove that the doctor failed to satisfy these criteria and that the failure caused the injuries. We find that Dr. Strum's failure to research the literature was not malpractice which caused plaintiff's injuries. Dr. Strum had previous experience on two occasions with the exact procedure in question. He had been taught the procedure at the Boston Veterans Administration Hospital, a facility which was associated with the medical schools of Harvard, Tufts and Boston Universities, and had not been told of any unusual adverse effects. His own study of the neurological literature and journals had not disclosed any unfavorable mention of this procedure.
The procedure was not new to him and there was nothing to indicate to him any unusual danger. Dr. Robert Groff testified that given Dr. Strum's particular circumstances he did not believe that Dr. Strum had to research the literature in order to conform to good medical practice.
Even if Dr. Strum had researched the literature there is a serious question whether he would have felt restrained from using the procedure. Against the reports in the articles that there had been serious complications in some cases he had his own experience and his teaching. Dr. Groff testified that he did not believe that the articles in any way proved that methylene blue was the cause of the injuries reported. His own conclusion was that they were probably allergic responses to the chemical. He criticized an experiment used by one of the authors, Dr. Evans, in which methylene blue was injected into dogs on the grounds that too large a dose was used and dogs might not have been the best animals. Dr. Groff testified that he knew of the articles in 1960 but continued to use the procedure until 1967, at which time he began to use a newer, safer method. It would appear from this testimony that even if Dr. Strum had read the articles, weighed them against his experience, learning and their inconclusiveness, he could have performed the procedure in accordance with good medical practice in Philadelphia in 1963. We cannot say that his failure to research the literature was the cause of the unfortunate injuries to plaintiff.
Plaintiff's claim that it was malpractice not to test him for sensitivity to the drug is also rejected. He did not prove that such a test was possible. Plaintiff's expert, who never had any experience with methylene blue, asserted that it was possible. The other doctors who testified said that they were not aware of any method for testing sensitivity to this particular drug. Dr. Mallin's unsupported claim does not satisfy this Court, particularly since he did not indicate that he had experience with such testing.
CONCLUSIONS OF LAW
1. This action arises under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401(b), and 2671.
2. Plaintiff at the time of institution of this action resided within the jurisdiction of this Court.
3. The complaint was filed September 29, 1967 and served on the United States Attorney on October 12, 1967.
4. This action is barred by the Federal Tort Claims Act, 28 U.S.C. § 2401(b) which provides for a two-year period of limitations.
5. The Federal Tort Claims Act statute of limitations is jurisdictional and not merely procedural. As a statute of creation it limits the remedy which must be pursued within the specified time limit.
6. The period of limitations commences to run from the date of injury or at the latest the date plaintiff is aware of the act.
7. Plaintiff's cause of action accrued on July 16, 1963 when the act, injuries, and concomitant damages all simultaneously occurred in a traumatic fashion.
8. The two-year statute of limitations under the Federal Tort Claims Act began to run immediately upon the accrual of plaintiff's cause of action, i.e. on July 16, 1963.
9. The continuous treatment theory is not applicable.
10. Plaintiff reasonably could be expected to associate the injurious consequences with the methylene blue procedure, both of which occurred at substantially the same time, since the injury was not an expectable consequence of the procedure.
11. The methylene blue procedure utilized to diagnose the source of plaintiff's meningitis in July 1963 was a standard medical procedure in the Coatesville, Pennsylvania area of the average neurologist possessing that degree of skill, learning and care normally possessed by the average physician devoting special study and attention to the field of neurology.
12. Taking into consideration both the hazards of the methylene blue procedure and the potentiality of dying from an attack of meningitis, the methylene blue procedure as administered to plaintiff was not an improper procedure and did not constitute negligence. The determination of a cerebro-spinal fluid leak into the nasal cavity was entirely justified.
13. There was no negligence on the part of defendant acting through its agents, servants and employees and through the Veterans Administration, an agency of the defendant, in respect to the administration to plaintiff of the methylene blue procedure on July 16, 1963 or in the treatment accorded plaintiff.
14. Judgment is entered in favor of defendant and against plaintiff on the issue of liability.