Plaintiff, Carl A. Maulfair, alleges in his complaint that the defendant, The United States of America, negligently failed to diagnose from routine annual chest x-rays taken as part of plaintiff's employment with the Veterans Administration a cancerous tumor in his left lung. He asserts he has been forced to undergo medical treatment he would not have had if the tumor had been diagnosed promptly. Defendant has filed a motion for summary judgment contending that the action is time barred by 28 U.S.C. § 2401(b). Plaintiff has filed a motion for judgment on the pleadings. We deny plaintiff's motion and dispose of defendant's motion as follows.
Summary judgment may only be granted if "there is no genuine issue as to any material fact" and the "moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The court must resolve any doubts as to the existence of genuine issues of fact against the moving party, and inferences to be drawn from the evidentiary sources submitted to the court must be resolved in favor of the non-moving party. Shabazz v. Odum, 591 F. Supp. 1513 (M.D. Pa. 1984).
Plaintiff's complaint, filed on October 16, 1984, alleges that the Veterans Administration Medical Center in Lebanon, Pennsylvania, where he worked, gave him chest x-rays on February 9, 1978 and January 25, 1979. The reports on each x-ray stated that no abnormality was revealed. (Complaint, paras. 4-8). In March of 1979, after plaintiff became ill, his family physician ordered an x-ray which showed a spot on plaintiff's left lung. (paras. 9-11). On April 16, 1979, a malignant tumor was removed from the lung. (para. 13).
The Federal Tort Claims Act waives the sovereign immunity of the United States and imposes certain procedural steps on the claimant. An aggrieved party must first present his claim to the appropriate administrative agency before bringing suit in a district court. 28 U.S.C. § 2675. Additionally, 28 U.S.C. § 2401(b) provides a limitations period for actions against the government. That section provides, in relevant part, as follows:
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. . . .