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STEWART v. UNITED STATES

June 7, 1989

PAUL A.R. STEWART AND SUSAN B. STEWART, h/w
v.
THE UNITED STATES OF AMERICA



The opinion of the court was delivered by: KATZ

 MARVIN KATZ, UNITED STATES DISTRICT JUDGE

 This is a medical malpractice action against the United States brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. The government has moved for summary judgment on the ground that plaintiff Paul Stewart's *fn1" claims are barred by the statute of limitations governing FTCA actions, 28 U.S.C. § 2401(b), and the plaintiff has responded to the motion. For the reasons that follow, the government's motion will be granted in part and denied in part.

 BACKGROUND

 Paul Stewart was born in 1964 with bilateral undescended testicles. *fn2" In 1968, plaintiff, then four years old, had surgery to correct this condition. *fn3" The surgery was done at the recommendation of military physicians, and was performed by a military surgeon, a Dr. Cleveland, at Myrtle Air Force Base, South Carolina. Prior to the operation, one of the military physicians informed plaintiff's father that his son would suffer an increased risk of cancer if the testicles remained undescended, and plaintiff's father authorized the operation on the basis of this medical opinion.

 The operation was unsuccessful, both testicles remaining in an undescended position. Dr. Cleveland advised plaintiff's father that no further action was necessary, but that if his son's testicles did not naturally descend by the time Paul reached puberty, another operation would probably be required. On the advice of Dr. Cleveland, plaintiff's father did not have his son examined by any physician regarding this condition until January, 1976, when the signs of puberty first became visible.

 In January, 1976, plaintiff's father, then retired from the military, took his son to see a urologist in private practice named Dr. Hughes. Plaintiff's testicles had still not descended. Dr. Hughes said that plaintiff's father had waited too long in having Paul re-examined, and that the testicles should have been surgically descended when the boy was younger. In response to Mr. Stewart's statement that he had been told not to do anything about the problem until Paul reached puberty, Dr. Hughes replied, "Well, you were told wrong." According to Mr. Stewart, Dr. Hughes did not explain to Mr. Stewart the medical basis of his opinion. *fn4"

 In 1976, plaintiff received two operations by a military surgeon named Dr. Jackson. The first operation resulted in the successful descension of the boy's right testicle, which was diagnosed to be healthy and viable. The second operation was not successful and resulted in the removal of the left testicle. According to plaintiff's father, he never discussed with Dr. Jackson the issue of cancer or possible sterility. He assumed that the presence of one healthy testicle guaranteed that his son was fertile. Mr. Stewart testified at deposition that he has a nephew with one testicle who is "perfectly fine." After the final operation Mr. Stewart acted on the belief "that a man can function equally well with one as he can with two," and even advised his son when he got older to use a condom "because I didn't want him getting girls pregnant."

 On May 28, 1985, Paul Stewart, then himself a member of the military, was examined aboard the U.S.S. Guadalcanal and requested a sperm count. The sperm count was negative.

 On March 30, 1987, plaintiffs filed an administrative claim with the appropriate agency. The claim was denied and on July 27, 1988, plaintiffs commenced the instant action in this court. The administrative claim and the complaint allege that as a result of improper treatment by government physicians Paul Stewart has incurred the following injuries: 1) the surgical removal of one testicle; 2) increased risk of testicular cancer; and 3) permanent sterility.

 DISCUSSION

 The basic issue facing the court at this juncture is the point in time at which the statute of limitations began to run on each of Paul Stewart's claims. The limitations statute pertaining to FTCA actions provides as follows:

 
A tort claim arising 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 or unless action is begun within six months after the date of mailing . . . of notice ...

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