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KUBRICK v. UNITED STATES

July 22, 1977

WILLIAM A. KUBRICK
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: BECKER

 EDWARD R. BECKER, J.

 I. Preliminary Statement

 This is a medical malpractice case brought under the Federal Tort Claims Act, 28 U.S.C. § 1346 ("Act"), raising important questions concerning the statute of limitations and the standard of care applicable to specialists in Pennsylvania. The claim arises out of the hospitalization of the plaintiff, William A. Kubrick, in the Wilkes-Barre Veterans Administration Hospital ("VA Hospital") from April 2, 1968 to April 30, 1968, for treatment of osteomyelitis of the right femur. Following surgery, the infected area was irrigated for twelve to thirteen days with a 1% solution of neomycin sulfate administered through a hemovac (evacuation) tube system. The osteomyelitis cleared, but approximately three months after his discharge from the VA Hospital plaintiff began to notice a partial hearing loss and tinnitus (ringing in the ears). His condition grew progressively worse, and there is now no dispute about the fact that plaintiff suffers from severe bilateral sensorineural hearing loss, or nerve deafness, which is permanent in nature and which cannot be improved by treatment.

 The evidence overwhelmingly supports plaintiff's contention that his nerve deafness was caused by the administration of neomycin which, while a highly effective antibiotic, is also ototoxic, i.e., deleterious to the eighth cranial nerve which supplies the ear. The government does not seriously dispute this contention. What is at issue in this case is whether, at the time of the treatment, it was sufficiently well known in the Wilkes-Barre (or similar) medical community, or, alternatively, in the national community of orthopedists, that neomycin administered as a surgical wound irrigant through a hemovac tube system had ototoxic effects such that its administration to plaintiff was negligent. In order to resolve this issue we must determine whether Pennsylvania would apply a national or similar locality standard to specialists, *fn1" and we must also examine what was known about the manner of administration of the drug, focusing in particular upon the medical distinction between "topical" use of a drug, which imports local application and effect, and "parenteral" use, by which a systemic effect is intended.

 It is conceded by the government that the ototoxic effects of neomycin when parenterally used were generally known in April 1968. The government contends, however, that the use of neomycin as a surgical wound irrigant through a hemovac tube system was then thought to be a topical, not a parenteral use, and concomitantly, that the body's capacity to absorb neomycin when administered in this way was known little, if at all, at that time. The government argues that the plaintiff's VA physician thus cannot be charged with the knowledge that the neomycin was readily absorbed into the body tissues and the blood stream. It further argues that the practices followed in this case were those generally followed at the time, at least in Wilkes-Barre and similar communities, hence malpractice was not committed.

 The plaintiff counters that the absorption propensity of neomycin was widely known and that the VA physician who treated him is chargeable with that knowledge. Plaintiff also argues that the dosage of neomycin administered to him was so outrageously high and prolonged that the treating physician in any event should have known of the ototoxic potential. Plaintiff also submits that other nontoxic drugs could have adequately treated the osteomyelitis, which was caused by a staphylococcus infection.

 As the foregoing recitation suggests, the trial record is heavily laden with the (conflicting) testimony of expert medical witnesses as to just what was known in the medical community about the properties of neomycin and with excerpts from the medical literature at the time. With respect to the evidence in the medical literature of neomycin's absorption potential, the government argues that the VA doctors are not obliged to read every piece in the vast and burgeoning medical literature.

 As will appear from the findings of fact and discussion which follow, we find: (1) that the plaintiff's VA physician is chargeable with what we find to have been generally available knowledge of both the body's ability to absorb neomycin when administered as it was to the plaintiff, and its potential ototoxic effect; (2) that the dosage given the plaintiff was excessive; (3) that drugs other than neomycin could and should have been used to treat the staph infection; and (4) that the hemovac tube system was not properly maintained. Accordingly, we conclude that the VA physician in charge was guilty of medical malpractice which proximately caused plaintiff's bilateral hearing loss.

 The liability aspect of this case, however, has another facet. For what is also at issue is whether plaintiff's suit is time-barred by the Act's two-year statute of limitations. 28 U.S.C. § 2401(b).

 It was not until June 1971, that plaintiff discovered, upon the opinion of an ear specialist, that the government's administration of neomycin may have been negligent. This suit was filed in September 1972. In January 1973, plaintiff filed a form 95 administrative claim which was rejected a few months later in April 1973. Before that and for a long period thereafter, the VA unequivocally maintained that there was no negligence.

 The government has moved to dismiss on the grounds that the statute of limitations had expired prior to the filing of an administrative claim, and that in any event plaintiff had failed to file a standard form 95 (administrative) tort claim in the proper sequence. The Act's statute of limitations reads:

 
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. [ 28 U.S.C. § 2401(b) (emphasis added).]

 The critical statute of limitations issue in this case is, therefore, when plaintiff's claim accrued, and we shall discuss the applicable standard below. It will be necessary, in the course of that discussion, to analyze and refine the prevailing rule in such matters.

 As the foregoing discussion suggests, the government asserts that the claim accrued in the summer of 1968, when plaintiff first noticed his hearing loss, or at least in April 1969 when he submitted a claim to the VA evincing knowledge of the high possibility that the neomycin administration caused his deafness. In either event, the present suit would be time-barred.

 The plaintiff, on the other hand, contends that it would be harsh and improper to construe the statute of limitations so as to hold that plaintiff's claim accrued at a time when he had every reason to believe, based inter alia upon the VA's own written opinions, that there was no causal relationship between the neomycin administration and the hearing loss, and no negligence on the part of the government. In plaintiff's view the claim did not accrue (hence the statute of limitations did not start to run) until plaintiff, in the exercise of reasonable diligence, could have suspected that he was the victim of improper medical care or negligence. This occurred, plaintiff says, in June 1971, nineteen months prior to the filing of his administrative claim.

 For the reasons which will appear in the findings of fact and in the discussion which follows, we conclude that plaintiff's suit does not run afoul of the statute of limitations or the administrative filing requirements. Finding that defendant has committed malpractice and that plaintiff is irreversibly deaf (though he is an excellent lip reader) and has suffered related psychiatric problems, we will award substantial damages. This opinion constitutes our findings of fact and conclusion of law under Fed.R.Civ.P. 52(a).

 II. Findings of Fact

 A. Plaintiff's Hospitalization and Treatment

 On April 3, 1968, Dr. Wetherbee operated on the plaintiff. The operative procedure disclosed a small pocket of purulent material along the shaft of the right femur. A swab was taken of the purulent material for smear, culture and sensitivity studies. During the operative procedure, two hemovac tubes were introduced into the depths of the wound, one proximally and the other distally. Thereafter the surgical wound was closed loosely and a dry sterile dressing applied.

 The culture test performed on the purulent material indicated that the organism present was a beta hemolytic staphylococcuscoagulase positive (hereinafter referred to as "staph"). Sensitivity tests taken revealed that the staph was susceptible to treatment with the following medication: oleoan; terramycin; tetracycline; chloromycetin; penicillin; streptomycin; prostaphlin; erythromycin; polycillin; furadantin; novobiocin; mandelamine; neomycin; kanamycin; keflin; lincocin and daotriacetyloleandomycin. On April 5, 1968, Dr. Wetherbee prescribed two antibiotics to treat the osteomyelitic condition: polycillin orally and neomycin as a surgical wound irrigant administered through the use of the hemovac tubes.

 At 4:00 p.m. on April 5, 1968, a 1% neomycin drip, at the rate of sixty (60) drips per minute was begun, and continued twenty-four (24) hours a day until April 18, 1968. At that rate plaintiff could have received as much as 5,760 cc. of 1% neomycin solution during each twenty-four hour period; and in any event, he did receive at least 4,320 cc. of 1% neomycin solution during each twenty-four hour period. This translates to at least 43.2 grams of neomycin during any twenty-four hour period. Thus, plaintiff was administered at least 549 grams and perhaps as much as 732 grams of neomycin during his hospitalization in April 1968. Plaintiff remained in the hospital until April 30th. When he was discharged on that date the osteomyelitis had cleared.

 B. Plaintiff's Loss of Hearing and the Accrual of His Claim

 In mid-June 1968, plaintiff first noticed a ringing sensation in his ears and some loss of hearing. He sought medical care by visiting his family doctor, Dr. Mazaleski, who in turn referred him to an ear specialist, Dr. Soma, in Scranton, Pennsylvania. On August 27, 1968, Dr. Soma performed an audiometric test on plaintiff and formed the opinion that the ringing sensation and loss of hearing was due to bilateral nerve deafness of unknown etiology.

 On September 9, 1968, plaintiff was examined by another ear specialist, Dr. Cole of Geisinger Medical Center in Danville, Pennsylvania. Dr. Cole, after examination and an audiometric test, diagnosed the hearing loss and ringing sensation as bilateral sensorineural deafness. On September 10, 1968, plaintiff returned to the VA Hospital ear, nose and throat clinic, where he informed a Dr. Fischoff of the ringing sensation and loss of hearing. Dr. Fischoff administered an air conduction test. Plaintiff was not informed of the results of the test, but was sent to the dispensary for a prescription to help his condition. The plaintiff was still bothered by the ringing sensation and hearing loss which was becoming progressively worse, and in November 1968, was examined and tested by Dr. Joseph A. Sataloff, an ear, nose and throat specialist in Philadelphia. Dr. Sataloff, after physical examination and an air conduction test, opined that plaintiff was suffering from bilateral hearing loss. Dr. Sataloff told plaintiff he would try to reduce the ringing sensation, and impede the continued degeneration of hearing loss, and that he would also send for the VA hospital records in an effort to find their etiology. This commenced a series of visits with Dr. Sataloff, until the summer of 1971 for treatment of his hearing condition.

  Dr. Sataloff testified that he informed plaintiff during his initial visit, and during many visits thereafter, that the antibiotics he had received during his hospitalization in April of 1968 had caused his hearing problems. We do not credit this testimony. Instead we find that Dr. Sataloff told plaintiff and reported to the Veterans Administration, insurance companies, and others that it was his opinion that it was "highly possible" (or other similar language) that the hearing loss was caused by the neomycin solution given in the Veterans Administration Hospital. For instance, on June 30, 1969, Dr. Sataloff completed and submitted a certificate of attending physician for the Veterans Administration in which he stated "[there] is an excellent chance that Mr. Kubrick's present hearing loss is the result of neomycin toxicity." This submission followed the filing by plaintiff on April 16, 1969, of a claim to the Veterans Administration for disability benefits to compensate him for his hearing problems based upon Dr. Sataloff's opinion that the neomycin had been the "possible" cause of his deafness. *fn2" We find that at no time prior to mid-1971 did Dr. Sataloff advise or in any way indicate to the plaintiff by word or writing that there was malpractice or negligence in the administration of neomycin at the VA Hospital in April 1968. We also find that it was reasonable for plaintiff to continue to believe, even after consultation with Dr. Sataloff, that his deafness was not the result of malpractice in view of the technical complexity of the question whether his neomycin treatment was unduly hazardous.

 On August 11, 1969, a Veterans Administration Board of Physicians was convened to consider whether plaintiff's hearing loss had any relationship to the use of neomycin during the period of his hospitalization in April 1968. The Board thereafter informed plaintiff that his claim had been denied on the basis that no causal relationship existed between the neomycin administration and the hearing loss, as well as for the reason that there was no evidence of "carelessness, accident, negligence, lack of proper skill, error in judgment, or any other fault on the part of the Government." Moreover, on September 5, 1969, Mr. McCauley, the Adjudication Officer in the Veterans Administration Center at Philadelphia, advised the plaintiff that the Veterans Administration had found that his hearing loss was not attributable medicinally or medically to his April 1968 hospitalization, and that his claim for compensation as a result of his hearing loss was therefore disallowed.

 On September 25, 1969, plaintiff submitted a "Statement in Support of Claim" in which he expressed his disagreement with the Veterans Administration's denial, stating that Dr. Sataloff had requested and reviewed all past and medical history and had informed him that the medication given him during his hospitalization in April 1968 was responsible for his loss of hearing. On September 26, 1969, the Veterans Administration issued a "Statement of the Case" in plaintiff's appeal which again declared that plaintiff's claim was denied due to lack of causal relationship and a lack of evidence showing carelessness, accident, negligence, lack of proper skill, error in judgment, or any other fault.

 On January 13, 1970, plaintiff was admitted to the VA Hospital in Wilkes-Barre, and remained as an in-patient until February 16, 1970. During that time, a complete audiometric examination by the Ear, Nose and Throat Clinic confirmed the fact that he suffered from a severe bilateral sensorineural hearing loss which completely foreclosed speech discrimination and for which a hearing aid would be of no assistance.

 An important development in the history of this matter occurred on May 20, 1971, when the Veterans Administration sent plaintiff a "Supplemental Statement of the Case" containing the following report of a Veterans Administration field examiner, J. A. Nagy:

 
VA field examination report: Dr. J. J. Soma stated after examining the veteran on August 27, 1968, he concluded that the Veteran's problem was a result of his employment in the machine shop. He stated he planned on treating the veteran along such lines, but he never came back for further treatment.

 That Veterans Administration Statement identified two reasons for denial of compensation for plaintiff's hearing loss:

 
The additional evidence including the current Veterans Administration examination does not show any veteran's hearing disability was due to any carelessness, lack of medical skill, negligence or error in judgment, mal-practice or other knowledge on the part of the staff of the Veterans Administration Hospital.
 
The Veteran's own ear, nose and throat specialist indicated that the hearing loss was felt to be due to the veteran's previous employment as a machinist and was due to acoustic trauma.

 On June 2, 1971, plaintiff confronted Dr. Soma in his office with the opinion attributed to him in the VA's Supplemental Statement of the Case. Dr. Soma, upon examining the Supplemental Statement, informed the plaintiff that the statements attributed to him were never made by him. At that juncture, Dr. Soma advised plaintiff that it was his opinion that neomycin should not have been administered in April 1968, and that plaintiff's permanent hearing loss was solely caused by neomycin absorption. Dr. Soma's statement to plaintiff on June 2, 1971, was the first time that any doctor or lay person had suggested to plaintiff and/or his wife that negligence was involved in the administration of neomycin by the Veterans Administration Hospital physician in April of 1968. Plaintiff thereafter retained counsel who represented him before the VA Board of Appeals and later in the present lawsuit.

 In the period between the denial of plaintiff's initial claim and the summer of 1970, plaintiff and his wife had written various letters to Veterans Administration officials and to their United States Senators in which they contradicted and denied the VA's finding of no causal connection between the administration of the neomycin solution in April of 1968 and the subsequent development of the hearing loss sustained by the plaintiff. The government makes much of the language of some of those letters, *fn3" suggesting that they reflect an awareness by plaintiff that the VA doctor was or may have been negligent. We draw no such conclusion, believing them to represent a flurry of rhetoric induced by desperation. We credit plaintiff's testimony that he did not, prior to his June 1971 interview with Dr. Soma, suspect that there was negligence involved. We find that as of the date of those letters plaintiff believed his entitlement to VA benefits followed if the neomycin administration caused the hearing loss without negligence. Furthermore, plaintiff's belief that there was no malpractice was reasonable in view of the technical ...


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