DocketNumber: No. 86 Civ. 740 (WCC)
Citation Numbers: 651 F. Supp. 867
Judges: Conner
Filed Date: 12/22/1986
Status: Precedential
Modified Date: 11/26/2022
Defendants United States of America and the Veterans Administration have moved for an order (1) dismissing plaintiffs first cause of action, for damages arising from injury to John Prendeville, for lack of subject matter jurisdiction due to the untimeliness of plaintiffs complaint under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (1982) (“FTCA”), and (2) dismissing plaintiffs third cause of action for failure to state a claim upon which relief can be granted.
Background
On September 11, 1981 plaintiffs decedent John Prendeville was admitted to the New York Veterans Administration Medical Center (“VA Hospital”). At the time of his admission, Mr. Prendeville complained, inter alia, of headaches, vomiting and neck pains. Apparently, he had injured his head and neck in a fall six days before his admission to the VA Hospital. Mr. Prendeville developed a fever and a series of infections after his admission to the hospital and his
While attempting the intubations, the doctors evidently moved Mr. Prendeville’s head and neck. That movement, coupled with the injury Mr. Prendeville had already suffered before entering the VA Hospital, allegedly caused the injury for which plaintiff now brings this action. Apparently, Mr. Prendeville suffered a spinal cord injury in the neck area. Following the intubation on September 15, the doctors noted that Mr. Prendeville had diminished movement and reflexes. After the attempted intubation on September 18, the medical record shows that Mr. Prendeville had flaccid paralysis throughout his body with no reflexes.
On February 6, 1984, plaintiff filed a claim under the FTCA alleging that Mr. Prendeville “was rendered quadriparetic as a result of [the September 18,1981] intubation.” The FTCA requires that a tort claim must be “presented in writing to the appropriate Federal agency within two years after such claim accrues” or be “forever barred” 28 U.S.C. § 2401(b) (1982). Defendants maintain that plaintiff failed to file this suit within two years after the claim accrued, and accordingly judgment must be entered in defendant’s favor on this claim.
Discussion
Federal law determines when a claim accrues under the FTCA. Kossick v. United States, 330 F.2d 933, 936 (2d Cir.), cert. denied, 379 U.S. 837, 85 S.Ct. 73, 13 L.Ed.2d 44 (1964). The Supreme Court has held that once the plaintiff has “possession of the critical facts that he has been hurt and who has inflicted the injury,” the cause of action accrues and the statute of limitations starts running. United States v. Kubrick, 444 U.S. 111, 122, 100 S.Ct. 352, 359, 62 L.Ed.2d 259 (1979); accord Arvayo v. United States, 766 F.2d 1416, 1418-19, 1422-23 (10th Cir.1985). A cause of action accrues under the FTCA when “the plaintiff has discovered both his injury and its cause.” Id. 444 U.S. at 120, 100 S.Ct. at 358. Once a plaintiff is
armed with the facts about the harm done to him, [he] can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims to the government.
Kubrick, 444 U.S. at 123, 100 S.Ct. at 360.
In this action, the government asserts that plaintiff was “armed with the facts about the harm done to him” as of sometime shortly after September 18,1981, the day of the attempted intubation which allegedly caused his paralysis. To prove their assertion, the government points to a notation on Mr. Prendeville’s hospital record indicating that on October 26, 1981, Mr. Prendeville asked a VA Hospital staff member whether he would ever be able to move again. Defendant somehow believes that this is clear evidence that plaintiff was aware at that time that his paralysis may have been caused by the negligent act of a government doctor. The Court disagrees. The only fact the statement by Prendeville proves is that he was uncertain, as of October 26, 1981, whether his paralysis was permanent. It does not prove that he knew his condition may have been caused by a doctor’s negligence. It may be that, as far as Prendeville knew, his paralysis was part of his deteriorating physical condition.
Further, there is evidence indicating that Prendeville did not know the alleged cause of his paralysis even at the time of his death, and that this lack of knowledge may
For the reasons outlined above, defendants’ motion for judgment on the issue of the timeliness of plaintiff’s suit under the FTCA is denied. Since this portion of defendants’ motion has been denied, there is no basis for their second request for relief, and that too is denied.
So Ordered.
. Although defendants have moved for judgment on the pleadings under Fed.R.Civ.P. 12(c), both parties have now submitted materials outside the pleadings. The materials consist of extracts from medical records and an autopsy report whose authenticity is not disputed. The Court elects to consider these materials and treat the motion as one for summary judgment. See Curran v. International Union, Oil, Chemical & Atomic Workers, AFL-CIO, 582 F.Supp. 420, 422 (W.D.N.Y.1984); Slevin v. Pedersen Associates, Inc., 540 F.Supp. 437, 438 n. 2 (S.D.N.Y. 1982).
In addition, the plaintiff has voluntarily withdrawn its action against the Veteran's Administration, so that this issue is now moot.