The opinion of the court was delivered by: KATZ
MARVIN KATZ, UNITED STATES DISTRICT JUDGE
This is a medical malpractice case brought under the Federal Tort Claims Act (FTCA). The record of stipulated facts is set forth at the end of this memorandum. Plaintiff William Oberlin alleges on his own and on his daughter Maureen's behalf that Air Force physicians negligently failed to diagnose, and consequently failed to treat, the premature rupture of the membranes (PROM) suffered by Virginia Oberlin when she was pregnant with Maureen. In turn, it is alleged, such failure resulted in Maureen's premature birth, infection, and cerebral palsy. Defendant the United States moved for summary judgment on the ground, among others, that the statute of limitations barred the suit. This court's order of December 21, 1989, denies summary judgment for the following reasons.
1. The issue of whether the two-year statute of limitations, 28 U.S.C. § 2401(b), bars the plaintiffs' claims cannot be decided on summary judgment because there is a genuine issue of material fact as to when the claims accrued.
The record of stipulated facts before me is an inadequate factual basis for determining whether the plaintiffs possessed sufficient facts before 1986 as to know or have reason to know the cause of Maureen Oberlin's injury.
A plaintiff's medical malpractice claim accrues under the FTCA when the plaintiff knows both the existence and probable cause of his injury, not when he knows or should know "that the doctor who caused his injury was legally blameworthy." United States v. Kubrick, 444 U.S. 111, 121-122, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979). The United States Court of Appeals for the Third Circuit has explained Kubrick's general standard for the accrual of a claim. "The crucial question in determining the accrual date for statute of limitations purposes [is] whether the injured party had sufficient notice of the invasion of his legal rights to require that he investigate and make a timely claim or risk its loss." Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir. 1985). Stated another way, the statute begins to run when the plaintiff possesses such facts that, "as a reasonable person, he should have known of the malpractice." Barren by Barren v. United States, 839 F.2d 987, 990 (3d Cir. 1988).
The parties have stipulated that since 1978, Maureen Oberlin's parents have believed that Maureen's prematurity, infection and cerebral palsy were all connected to the premature rupture of Virginia Oberlin's membranes. Stipulation of Facts para. 23. The record also stipulates that the Oberlins were not subjectively aware until 1986 that the conduct of the Air Force doctors could have caused Maureen's injury. Stipulation of Facts para. 33 -- para. 35. It is unclear from the record, however, when plaintiffs had enough facts that would put a reasonable person on notice that Virginia Oberlin's medical treatment was a potential cause of Maureen's injury.
The plaintiffs contend that the Air Force physicians' failure to diagnose PROM and consequent failure to prescribe strict bedrest for Virginia Oberlin caused the loss of a chance that Maureen would not suffer injury. The plaintiffs did know of the existence of the PROM as early as 1976. Stipulation of Facts para. 13, para. 14. Yet, there are not enough facts in the record to indicate whether they should have known that any conduct on the part of the doctors was the cause of Maureen's injury before they became objectively aware of this possibility. In contrast, cases which hold that the statute of limitations starts running upon knowledge of the injury and its cause involve plaintiffs who knew or reasonably should have known not only of the existence of the conduct constituting cause, but that such conduct was indeed the likely cause. For example, in Zeleznik the plaintiffs knew of the murder of their son, and that the murder in fact caused his death. In Barren by Barren, the plaintiffs had reason to know that the medical treatment given the plaintiff mental patient was unsatisfactory and that this inadequate treatment had caused his deterioration. In Kubrick itself, the plaintiff knew of the treatment that turned out to be the cause (neomycin therapy) of his injury (deafness) in 1968, yet the Court found that his claim did not accrue until the plaintiff had reason to know, in 1969, that the neomycin probably caused the injury.
An instructive case about the level of awareness required to start the statute of limitations running under the FTCA is Harrison v. United States, 708 F.2d 1023 (5th Cir. 1983). The court explains that a plaintiff has "knowledge" of a fact when the fact is true, the plaintiff believes it to be true, and the belief is reasonably based. Harrison, 708 F.2d at 1027. "Belief," on the other hand, requires only that the fact is true and the plaintiff believes it to be true. Id.
The plaintiff in Harrison suffered severe pain, speech impairment, memory loss and burning sensations in the years following a medical test, which had been performed to determine the cause of her headaches. The many experts she consulted could not relate her medical test to her pain. Eventually she came to believe that the cause of her injury was conduct by the medical professionals during the test. Her "privately conceived notions" that this caused her injury rose to the level of knowledge and triggered the statute only when she obtained her medical records alerting her that a needle had been left in her brain during the medical test and providing a reasonable basis for her belief.
Whether the Oberlins had a reasonable basis to believe that PROM, and the failure of the Air Force doctors to diagnose and treat PROM, caused Maureen's injury, before they were made subjectively aware of this possibility, is not apparent from the stipulated factual record. In a case such as this where the malpractice theory rests on an allegation of failure to diagnose a pre-existing condition like PROM and the condition results in the development of a more serious medical problem, it can be particularly difficult for a plaintiff to identify the cause of the injury. Augustine v. United States, 704 F.2d 1074, 1078 (9th Cir. 1983). The statute of limitations begins to run when the tort claimant has reason to know that an act or omission by the government medical personnel had been the cause of the injury. Drazan v. United States, 762 F.2d 56, 59 (7th Cir. 1985) (plaintiff wife knew that husband died of lung cancer, but the statute of limitations would not begin to run until wife had reason to know that government doctors also failed to follow up on husband's x-ray and such omission could have contributed to his death.) More facts are needed before the court can conclude when a reasonable person in the Oberlins' shoes would have "know[n] enough to prompt a deeper inquiry into a potential cause." Nemmers v. United States, 795 F.2d 628, 632 (7th Cir. 1986).
The fact that the plaintiffs were consistently told by physicians that the actual cause of Maureen's injury was unknown (Supplemental Stipulated Facts para. 7) would not by itself delay the running of the statute of limitations, however. If the plaintiffs did have reason to know that PROM and the Air Force doctors' failure to diagnose and treat it probably caused the injury, the statute would begin to run and the plaintiffs would be under a duty to inquire about possible malpractice. That the physicians' advice might turn out to be incompetent or mistaken is no basis for delaying the running of the statute. Kubrick, 444 U.S. at 124.
In short, the court is not in a position to resolve the metaphysical differences between belief and knowledge of the cause of the alleged injury on this paper record.
2. William Oberlin may also state a claim for emotional distress.
Most Louisiana Courts of Appeals in recent years have declined to follow the rule in Black v. Carrollton R.R. Co., 10 La.Ann. 33 (1855) which prohibited recovery for mental anguish suffered because of physical injury to a third person which did not result in death. Skorlich v. East Jefferson General Hospital, 478 So.2d 916 (La.Ct App. 5th Cir. 1985); Bishop v. Callais, 533 So.2d 121 (La.Ct.App. 4th Cir. 1988); LeJeune v. Rayne Branch Hospital, 539 So.2d 849 (La.Ct.App. 3d Cir. 1989), cert. granted, 541 So.2d 861 (La. 1989). These recent cases have allowed family members to recover for mental anguish resulting from negligently inflicted harm, short of death, to an immediate family member under a "duty-risk" analysis. LeJeune, in particular, points out a compelling policy reason to discard Black : Under Black, mental distress damages are unrecoverable by the parent of an injured child, yet remain recoverable by a plaintiff anguished over harm to his or her property. While I recognize that the Louisiana Supreme Court has not overruled the Black case as of this writing, the trend of Louisiana law is to allow recovery in situations where, as here, a parent suffers emotional distress caused by negligent injury to his child, and I agree that this is the sensible view.
3. There is also a genuine issue of material fact on the issue of whether the Louisiana loss of chance doctrine forecloses the possibility that plaintiffs could prevail at trial if the loss of a 10% chance of avoiding injury was found. Under Louisiana law, the loss of a two percent chance of survival has been held to present a question of causation for the jury. Hastings v. Baton Rouge General Hospital, 498 So. 2d 713 (La. 1986).
1. On 11/30/76 Virginia Oberlin presented at Langley Air Force Base Hospital in Langley, Va. (Exhibit 4, pp. 1, 2).
2. She was pregnant at that time, in approximately the 28th -29th week of gestation. (Exhibit 4, pp. 1, 2).
3. Mrs. Oberlin gave a history of two episodes of bleeding and four episodes of gushes of fluid within the previous week. (Exhibit 4, pp. 1, 2). She had been seen on an outpatient basis three times within the previous week.
4. Mrs. Oberlin was seen at Langley by Robert E. Rinaldi, M.D. (Exhibit 4, pp. 1, 6).
5. Dr. Rinaldi's initial diagnostic impression was of an intrauterine pregnancy of about 28-29 weeks duration, and a question of premature rupture of membranes (PROM) with a "high" leak. (Exhibit 4, p. 5).
6. Dr. Rinaldi ordered Mrs. Oberlin to be admitted to the obstetrics ward, to be kept on bed rest with bathroom privileges (BRP) only (Exhibit 4, pp. 9, 15). Diagnostic ...