APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 72-1815)
Before Adams, Weis and Garth, Circuit Judges.
Because of the unusual factors associated with the discovery of harm caused by medical malpractice, federal courts have adopted a flexible interpretation of the limitation period for filing a claim under the Federal Tort Claims Act. In this case, the plaintiff contended at an early date in administrative proceedings that a drug prescribed by a Veterans Administration physician had destroyed his hearing. However, it was not until some years later that he learned it was negligent to administer the drug as was done in his treatment. The district court, holding that the limitation period did not begin until the plaintiff learned of the malpractice, entered judgment in his favor against the government. We affirm, but remand for the limited purpose of applying a statutorily mandated set-off.
Alleging injury received as a result of medical malpractice by the Veterans Administration, the plaintiff filed suit under the Federal Tort Claims Act. 28 U.S.C. § 2674 (1976). After trial, the district court entered judgment in his favor in the amount of $320,536 and the government appealed.
On April 2, 1968, the plaintiff entered the Wilkes-Barre Veterans Administration Hospital for treatment of osteomyelitis a bone infection in the right leg. After surgery, a Veterans Administration physician ordered that a solution of the antibiotic, neomycin, be used to irrigate the wound. On April 30, 1968, plaintiff was discharged from the hospital, and about a month later began to notice a loss of hearing, accompanied by an increasing ringing sensation in his ears. An ear specialist in Scranton, Pennsylvania verified a hearing impairment. In November of that year, plaintiff consulted an ear specialist in Philadelphia, Dr. Joseph Sataloff, who confirmed the diagnosis of bilateral nerve deafness. After reviewing the Veterans Administration Hospital records, Dr. Sataloff told the plaintiff that neomycin is an ototoxic drug that is, one which can impair hearing and that this either was or probably was the cause of his hearing problem. At the trial, it was controverted whether Dr. Sataloff had told the plaintiff that there was an "excellent chance" that neomycin had caused the hearing loss or had stated causation in a more unequivocal fashion. However, the doctor testified that he did not state or imply there was negligence in the administration of the drug.
In April, 1969, Kubrick filed for an increase in disability benefits under 38 U.S.C.A. § 351 (Supp.1978),*fn1 alleging that neomycin had caused his deafness but making no mention of malpractice. The plaintiff had a twelfth-grade education, and no training in the medical field. He had the claim prepared by a service officer of the Disabled American Veterans. In August of 1969, a Veterans Administration Board of Physicians denied the claim, finding no causal relationship between the neomycin and the hearing loss. The Board also declared there was no evidence of carelessness, error in judgment, or lack of proper skill on the part of the Veterans Administration. The following month, a Veterans Administration adjudication officer told plaintiff that his claim had been denied because the hearing loss was not attributable to his treatment by the Veterans Administration. On September 25, 1969, the plaintiff filed a "Statement in Support of Claim" which he and his wife had prepared, asserting that the neomycin had caused his deafness; the Veterans Administration again denied the claim. After obtaining statements from the Public Health Service and an ear specialist stating that neomycin could be ototoxic, plaintiff wrote to various public officials pleading for help in obtaining disability benefits. These letters did not change the position of the Veterans Administration, which continued to deny a connection between the administration of the neomycin and the plaintiff's deafness.
On May 20, 1971, the Veterans Administration sent plaintiff a copy of one of its field investigator's reports, which purported to quote Dr. Soma, the first ear specialist plaintiff consulted after his discharge from the Veterans Hospital. According to the investigator, Dr. Soma said that the plaintiff's problem stemmed from his employment in a machine shop. Angered by this report, plaintiff confronted Dr. Soma on June 2, 1971, a date critical in the resolution of this case. The physician denied making the statement attributed to him, and said, furthermore, it was his opinion neomycin never should have been used and that it was the sole cause of plaintiff's hearing disability. During a visit to Dr. Sataloff several weeks later, plaintiff asked the physician if there was anything that could be done. Dr. Sataloff suggested plaintiff see an attorney, and, upon learning he did not have a lawyer, the doctor recommended one. Until that time, plaintiff had not sought legal assistance.
The Board of Veterans Appeals once again denied plaintiff's claim on August 9, 1972; one month later he filed suit in the district court. Discovering the necessity of filing an administrative claim to comply with the Tort Claims Act, plaintiff filed the Standard Form 95*fn2 in January, 1973. The claim was denied in April, 1973, and the action proceeded in the district court.
The district judge made extensive findings of fact, establishing that the Veterans Administration had been negligent in prescribing neomycin for plaintiff's treatment. The court also found that the two year period of limitations did not begin to run until the plaintiff visited Dr. Soma in June, 1971, when he learned for the first time that administration of neomycin had been improper. Stating that plaintiff's deafness was irreversible and had resulted in serious emotional problems, as well as loss of employment, the court awarded damages in the sum of $320,536.
The government does not contest either the finding of malpractice or the amount of damages awarded*fn3, but confines its attack to two points the limitations period specified by 28 U.S.C. § 2401(b),*fn4 and the district court's failure to set off veterans benefits received against the verdict.
The government concedes that medical malpractice cases are a recognized exception to the rigid rule under the Federal Tort Claims Act that a claim accrues at the time of the plaintiff's injury. This court and courts of appeals in other circuits have held that the two-year limitations period does not begin to run until the claimant has discovered, or in the exercise of reasonable diligence should have discovered, the existence of the acts of malpractice upon which his claim is based. Tyminski v. United States, 481 F.2d 257, 263 (3d Cir. 1973). This interpretation was adopted to avoid the harshness in many instances of time-barring an individual's claim before he realized that he had been the victim of malpractice. See, e.g., Quinton v. United States, 304 F.2d 234 (5th Cir. 1962).
The test of "discovery of the existence of the acts of malpractice upon which the claim is based," while apparently precise, has proved to be troublesome in application. In many cases, the problem centers upon determining when the plaintiff discovered the substance or condition which actually caused his injury. Thus, in Tyminski v. United States, supra, not until the plaintiff learned that his paralysis was caused by surgical error, rather than the natural progression of a preexisting condition, did the limitation period begin to run. In Caron v. United States, 548 F.2d 366 (1st Cir. 1976), the limitation period commenced when parents learned that an improper injection given while she was an infant caused brain damage to their 12-year-old daughter. See also Portis v. United States, 483 F.2d 670 (4th Cir. 1973) (neomycin improperly administered in 1963, causing deafness, not recognized as the culprit until 1969); Toal v. United States, 438 F.2d 222 (2d Cir. 1971) (pantopaque dye left in spinal column after myelogram discovered years later to be cause of brain inflammation).
These cases, however, are not precisely on point because here, the plaintiff was aware a few months after his hearing loss began that neomycin was most likely responsible for his hearing problem. A fact situation quite similar was present in Jordan v. United States, 503 F.2d 620 (6th Cir. 1974). In that case, the plaintiff underwent surgery on his nose in a Veterans Administration Hospital in order to correct a sinus condition. His eye was damaged during the operation, and a few days later, a staff physician told him the procedures required to deal with the unanticipated "severity" of the sinus condition caused the injury. Three years later, during a periodic examination, a physician told plaintiff it was "too bad they screwed up your eye when they operated on your nose." Plaintiff then retained a lawyer ...