Stewart v. United States

713 F. Supp. 833, 1989 U.S. Dist. LEXIS 6533, 1989 WL 61774
CourtDistrict Court, E.D. Pennsylvania
DecidedJune 7, 1989
DocketCiv. A. No. 88-5821
StatusPublished

This text of 713 F. Supp. 833 (Stewart v. United States) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stewart v. United States, 713 F. Supp. 833, 1989 U.S. Dist. LEXIS 6533, 1989 WL 61774 (E.D. Pa. 1989).

Opinion

MEMORANDUM

KATZ, 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’s1 claims are barred by the statute of limitations governing FTCA actions, 28 U.S.C. [834]*834§ 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.2 In 1968, plaintiff, then four years old, had surgery to correct this condition.3 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 plaintiffs father that his son would suffer an increased risk of cancer if the testicles remained undescended, and plaintiffs 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 plaintiffs 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.4

In 1976, plaintiff received two operations by a military surgeon named Dr. Jackson. The first operation resulted in the successful descensión 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 govern[835]*835ment 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 of final denial of the claim by the agency to which it was presented.

28 U.S.C. § 2401(b).

The operative statutory language is “after such claim accrues.” Plaintiff asserts that his claims accrued on May 28, 1985, the day he discovered that he was infertile. On this theory there is no limitations problem with plaintiffs claim. The government argues, on the other hand, that the date of accrual was sometime in 1976, when or shortly after plaintiffs testicle was removed, a point in time well outside the limitations period, and therefore that plaintiffs claim is barred. Neither party has put forward the suggestion that a different date of accrual may apply for each injury alleged.5 I am convinced that this is the more sensible approach, given the peculiar circumstances of this case.

The determination of when a claim accrues for purposes of the FTCA is a question of federal law. Tyminski v. United States, 481 F.2d 257, 262-63 (3d Cir.1973). The Supreme Court has determined that a claim accrues within the meaning of 28 U.S.C. § 2401(b) when the plaintiff knows both the existence and the cause of his injury. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979); see Peterson v. United States, 694 F.2d 943, 945 (3d Cir.1982). The rationale behind this discovery rule is that the statute is triggered as soon as the plaintiff “possesses sufficient critical facts to put him on notice that a wrong has been committed and that he need investigate to determine whether he is entitled to redress.” Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir.1985). The test is an objective one; that is, the standard is not whether the injured party actually knew of the existence and cause of his injury — although the fact that he did actually know would obviously be dispositive of the issue —but whether he possessed facts that would have led a reasonable person to know of the existence and cause of the injury. Barren by Barren v. United States, 839 F.2d 987, 990 (3d Cir.1988).

It is beyond doubt that plaintiff’s father actually knew or possessed facts that would have led a reasonable person to know of at least two of plaintiff’s alleged three injuries and their causes, long before 1985, when plaintiff first discovered that he was infertile.

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713 F. Supp. 833, 1989 U.S. Dist. LEXIS 6533, 1989 WL 61774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-united-states-paed-1989.