Petition — United States v. Kubrick

Supreme Court brief1979

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No,

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

UNITED STATES OF AMERICA, PRTITIONER

WILLIAM A, KUBRICK

PETITION FOR A WRIT OF CERTIORARL TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUTT

Wapkt H, McCres, JR,

Soliettar General

BARBARA ALLEN BARCOCK

Assistant Attorney General

| ELINOR HADLEY STILLMAN

Assistant to the Solicitor General

WILLIAM KANTER

PATRICIA G, REBVES

Attorneys

Department of Juatice

Washington, D.C, 20530

Page

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Statutory provisions involved -........0..0000000.00...... 2

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Reasons for granting the petition -................... 7

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CITATIONS

Cases:

Ashley v. United States, 413 F.2d 490...... 10, 11

Bridgford v. United States, 550 F.2d 978.. 10

Brown v. United States, 353 F.2d 578...... 10, 11

Casias v. United States, 532 F.2d 1339.... 10

Driskell vy. United States, 431 F. Supp.

Te 12

Exnicious v. United States, 563 F.2d 418.. 10

Greyhound Corp. v. Mt. Hood Stages, Inc.,

No. 77-598 (June 19, 1978) ....00022000002... 13

Hall v. United States, 314 F. Supp. 1135.. 11

Hammond vy. United States, 388 F. Supp.

a eendnecehnrscactesneseveeenes 12

Cases—Continued Page

Hulver v. United States, 562 F.2d 1182,

cert. denied, 435 U.S. 951 ...................... 10, 11

Jordan v. United States, 503 F.2d 620...... 10

Munro v. United States, 303 U.S. 36........ 13

Quinton v. United States, 304 F.2d 234.... 8

Reilly v. United States, 518 F.2d 142....9, 10, 11

Richter v. United States, 551 F.2d 1177.... 10, 11

Soriano v. United States, 352 U.S. 270... 8

Urie v. Thompson, 337 U.S. 168 .............. 7

Statutes:

Federal Tort Claims Act:

Be Ries HP OUTOD kbosenccccetescecncteshonees 5

Be SR BROOD) cicsessescssoncn 2,5, 7, 8,9, 11

BD Ree TOPE ccs sedocstcvcemtcdcocarcnce 2,5

Veterans’ Benefits Act of 1957, 38 U.S.C.

pe EEE AOE Rael ved Ss ol dee oe AE 4

Miscellaneous:

United States Veterans Administration,

1977 Annual Report

Iu the Supreme Court of the Mnited States

OCTOBER TERM, 1978

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

WILLIAM A. KUBRICK

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Third Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-14a) is reported at 581 F.2d 1092. The opinion of

the district court (App. B, infra, 15a-70a) is re-

ported at 435 F.Supp 166.

JURISDICTION

The judgment of the court of appeals (App. C,

infra, 71a) was entered on July 27, 1978. On October

(1)

16, 1978, Mr. Justice Brennan extended the time for

filing a petition for a writ of certiorari to and in-

cluding November 24, 1978, and on November 14,

1978, he further extended the time to and including

December 24, 1978. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether a claim for medical malpractice under the

Federal Tort Claims Act ‘“‘accrues” when the claimant

knows both the existence and cause of the injury, even

if he does not know that the infliction of the injury

amounted to negligent medical practice.

STATUTORY PROVISIONS INVOLVED

1. 28 U.S.C. 2401(b) provides:

A tort claim against the United States shall

be forever barred unless it is presented in writ-

ing 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, by certified or registered mail, of notice

of final denial of the claim by the agency to which

it was presented.

2. 28 U.S.C. 2675(a) provides:

An action shall not be instituted upon a claim

against the United States for money damages for

injury or loss of property or personal injury or

death caused by the negligent or wrongful act or

omission of any employee of the Government

while acting within the scope of his office or em-

ployment, unless the claimant shall have first

presented the claim to the appropriate Federal

agency and his claim shall have been finally

denied by the agency in writing and sent by

certified or registered mail. The failure of an

agency to make final disposition of a claim with-

in six months after it is filed shall, at the option

of the claimant any time thereafter, be deemed

a final denial of the claim for purposes of this

section. The provisions of this subsection shall

not apply to such claims as may be asserted un-

der the Federal Rules of Civil Procedure by third

party complaint, crossclaim, or counterclaim.

STATEMENT

Respondent was admitted to a Veterans Adminis-

tration hospital in April 1968 for treatment of an

infection of his right femur. The infected area was

irrigated after surgery with a solution of the anti-

biotic neomycin sulfate. Approximately three months

later respondent noticed a ringing in his ears and

loss of hearing. In August 1968 he consulted a pri-

vate ear specialist, who diagnosed the condition as

bilateral nerve deafness (App. A, infra, 2a). Later

in the year respondent consulted another specialist,

who obtained his VA treatment records; in January

1969 that physician advised respondent that the VA’s

administration of neomycin was either the cause of

his deafness or ‘‘probably” the cause (App. A, infra,

2a).

Respondent had been receiving VA disability bene-

fits for a service-connected injury. In April 1969 he

applied for an increase in benefits, under 38 U.S.C.

351, alleging that the administration of neomycin by

the VA surgeon had caused his hearing loss (App. A,

infra, 3a). The VA denied the application in August

1969, stating that it found no causal connection be-

tween the neomycin treatment and respondent’s hear-

ing loss and that there was no “ ‘carelessness, accident,

negligence, lack of proper skill, error in judgment,

or any other fault on the part of the government’ ”

(App. B, infra, 25a). In September 1969, although

orally advised by a VA Adjudication Officer that his

hearing loss was not attributable to his April 1968

hospitalization, respondent filed another statement in

support of his disability claim, this one disputing the

VA’s denial of causation (id. at 25a-26a). The claim

was denied on the grounds previously given (id. at

26a). Respondent and his wife then wrote letters to

various VA officials and to United States Senators,

protesting the denial of his claim and disputing the

VA’s finding that there was no causal connection

between the use of neomycin and his deafness (App.

B, infra, 28a).

In May 1971 respondent obtained a VA field report

on his case. This report contained a statement at-

tributed to Dr. J. J. Soma, the first private ear spe-

cialist respondent had consulted, suggesting that his

deafness was related to his previous occupation as a

machinist. In June 1971 respondent personally ques-

tioned Dr. Soma, who denied making the statement

and told respondent that the neomycin had caused his

deafness and should not have been administered. Sev-

eral weeks later respondent consulted an attorney

(App. B, infra, 26a-28a).

Respondent filed this action under the Federal Tort

Claims Act, 28 U.S.C. 1346(b), in September 1972,

asserting that he had been injured by the negligence

of the VA surgeon (App. A, infra, 5a). The United

States denied the allegations and defended on the

ground that the claim was barred because it was not

filed with the agency within the Act’s two-year limita-

tions period, 28 U.S.C. 2401(b).’

The district court held that the neomycin treatment

caused respondent to become irreversibly deaf and

constituted medical malpractice (App. B, infra, 16a-

21a). The court also held that respondent’s claim

did not accrue until June 1971, when Dr. Soma told

respondent that the use of neomycin had been im-

proper (id. at 20a, 61a). The court therefore found

that the claim was not time-barred, because respond-

ent filed his claim with the VA in January 13, 1973.

The court entered judgment for respondent in the

amount of $320,536. The government appealed, rais-

ing principally the argument that the suit was time-

barred.

1 Respondent did not file a claim with the agency, as re-

quired by 28 U.S.C. 2401(b) and 2675(a), until January 13,

1973, after the suit had been filed. The district court held

that the government’s objection to the premature filing of the

suit became moot when the VA denied the claim before trial,

on April 13, 1973 (App. E, infra, 73a-74a). Because the claim

was timely filed with the VA under the district court’s view

of its accrual date, the court concluded that respondent could

have refiled his suit had it been dismissed as premature, and

that there was therefore no reason to dismiss and require re-

filing.

2. The court of appeals affirmed.’ The court began

with the proposition that “the two-year limitations

period does not begin to run until the claimant has

discovered, or in the exercise of reasonable diligence

should have discovered, the existence of the acts of

malpractice upon which his claim is based” (App.

A, infra, 7a). “In most cases,” it stated, “knowledge

of the causal connection between particular matters of

treatment and injury, without more, will * * * alert a

reasonable person that there has been an actionable

wrong,” but it concluded that in a “few instances

where a patient, although aware of the nexus between

treatment and injury, has no reason to believe that

negligence was present, a different rule applies” (id.

at 10a). This rule must be applied on an “ad hoc

basis,” using ‘“‘subjective, as well as objective stand-

ards,” the court explained (id. at 10a-1la).

In the present case, the court found the “different

rule” applicable because of the ‘technical complexity”

of the question whether the ‘neomycin treatment in-

volved excessive risk, the failure of any of respond-

ent’s doctors to suggest before June, 1971 the possi-

bility of negligence, and the government’s repeated

denials of causation” (App. A, infra, lla). Sum-

* It remanded in one respect. In 1975 the VA increased re-

spondent’s disability benefits to compensate for the hearing

loss caused by the administration of neomycin. The court of

appeals held that the district court had improperly declined

to setoff amounts by which the benefit payments made to re-

spondent had been increased. The case was remanded for a

reduction of the judgment (App. A, infra, 13a-14a).

marizing the rationale of its holding, the court stated

(id. at 12a):

[ Respondent] knew or should have known that

neomycin was the direct cause of his hearing

loss. He did not, however, know that the admin-

istration of the drug was medical negligence.

Thus, he knew two of the essential elements of a

possible cause of action—causation and damages

—but he did not know, nor could he reasonably

have been expected to know, according to the

district court’s findings, of the breach of duty

on the part ot the government. In these circum-

stances, the limitation period did not run until

Dr. Soma’s conversation suggested a duty had

been breached by the Veterans Administration.

REASONS FOR GRANTING THE PETITION

1, The Federal Tort Claims Act provides that an

action is barred unless commenced by filing an admin-

istrative request within two years after the “claim

accrues” (28 U.S.C. 2401(b)). The statute does not

specify when a “claim accrues.” The usual rule under

federal law is that the claim “accrues” on the date of

the act or acts giving rise to the right to recover."

See Urie v. Thompson, 337 U.S. 163 (1949).

Federal courts have applied a different rule, how-

ever, in cases in which the cause of an injury may be

* Because the date on which the two years begins to run

depends on the construction of a federal statute, it raises a

question of federal law. Only the First Circuit looks to state

law to determine the time at which the claim accrues. See

Hau Vv. United States, 575 F.2d 1000, 1003 (1st Cir. 1978).

difficult to determine. In malpractice cases, for exam-

ple, the prevailing rule, with which we agree, is that

the claim accrues when the victim “discover[s], or in

the exercise of reasonable diligence should have dis-

covered, the acts constituting the alleged malprac-

tice.” Quinton v. United States, 304 F.2d 234, 240

(5th Cir. 1962). This means that the administrative

claim must be filed within two years after the victim

discovers (a) that he suffered harm, and (b) the

cause of the harm.

The court of appeals in the present case has added

a third element to this formula. Under its decision,

the claim does not “accrue” until the victim knows

that the harm was caused by negligence. The addition

of this element subverts the purpose of a statute of

limitations. The period of limitations prevents delay

in the institution of actions and reduces the possibility

that the courts will be called on to adjudicate stale

claims, for which reliable evidence may be difficult to

obtain.* The statute of limitations prevents potential

plaintiffs from sleeping on their rights. Under the

decision in the present case, however, a victim’s inat-

tention to his rights can become a justification for

extending the period in which to sue. So long as the

victim refrains from pursuing the question whether

an injury with a known cause was attributable to

‘ The statute of limitations contained in 28 U.S.C. 2401(b),

like other limitations on the waiver of the United States’ right

not to be sued, “must be strictly observed and exceptions

thereto are not to be implied.” Soriano v. United States, 352

U.S. 270, 276 (1957).

negligence, the statute of limitations does not begin

to run. The decision thus significantly alters the

principles governing periods of limitations by re-

moving the incentive to prompt investigation that

is a principal purpose of such statutes.

The court’s alteration of the rule for the “ac-

crual” of a cause is not necessary to treat victims

fairly. Under the rule that we believe is correct, the

statute begins to run only when a victim knows both

the fact and the cause of the injury. The two-year

period specified by 28 U.S.C. 2401(b) affords diligent

persons ample time to obtain medical and legal advice

concerning the propriety of the medical treatment and

the legal consequences of the injury.’ Perhaps there

would be an argument for tolling the statute if there

were some impediment to obtaining such advice. But

the courts in the present case did not find that re-

spondent could not have discovered within two years

whether his treatment was negligent; it was enough,

they held, that he did not. As we argue below, this

decision aggravates a conflict among the circuits. The

rule for the “accrual” of a claim potentially affects

every case Leought under the Federal Tort Claims

Act; the recurring nature of the question makes re-

view by this Court appropriate.

2. The decisions of the Eighth Circuit in Reilly

v. United States, 518 F.2d 147 (1975), and of the

’ Perfect knowledge of the facts and their iegal conse-

quences is not a necessary precondition to suit. Under the

present system of “notice pleading” a plaintiff can allege the

fact and cause of harm and then engage in discovery to find

out more about the facts and whether they are actionable.

Ninth Circuit in Brown v. United States, 353 F.2d

578 (1965); Ashley v. United States, 413 F.2d 490

(1969); and Richter v. United States, 551 F.2d 1177

(1977), conflict with the decision in this case.”

In Reilly the district court had found that the

claimant was aware of both injury and causation

soon after her treatment at a government hospital.

The Eighth Circuit ruled that “[o]nce the appellant

knew of the allegedly negligent acts that caused her

injury, she was under a duty to exercise reasonable

diligence in bringing suit * * *. [W]hen the facts

became so grave as to alert a reasonable person that

there may have been negligence related to the treat-

ment received, the statute of limitations began to run

** * 513 F.2d at 149-150 (emphasis added). See

also Hulver v. United States, 562 F.2d°1132, 1134

(8th Cir. 1977), cert. denied, 435 U.S. 951 (1978).'

* Several decisions adopt an approach related to the one

used by the Third Circuit here. See Jordan v. United States,

503 F.2d 620, 624 (6th Cir. 1974) (at least where victim was

misled about cause of harm, claim does not accrue until victim

learns medical care was malpractice); Ernicious v. United

States, 568 F.2d 418 (10th Cir. 1977) (claim accrues only

when victim learns all elemem’s of right of recovery—duty,

breach, causation and damages) ; Vridgford v. United States,

550 F.2d 978 (4th Cir. 1977) (same). But see Casias V.

United States, 582 F.2d 1339 (10th Cir. 1976) (distinguish-

ing Jordan as based on the misleading explanation of injury

given to the victim and holding a claim time-barred when

victim knew cause of injury, but not existence of malpractice,

for more than two years before filing claim).

*In Hulver the claimant brought suit for injuries to his

left leg and impaired sexual functioning resulting from sur-

gery to correct problems with his right leg. His claim rested

The Eighth Circuit thus follows a rule that knowl-

edge that a treatment has had serious and unexpected

consequences starts the running of the statute. Under

that rule, respondent’s claim accrued once he knew

that his severe hearing loss resulted from a drug ad-

ministered to him following surgery on his leg.

The Ninth Circuit held in Brown and Ashley that

Section 2401(b) barred malpractice claims where the

victims knew, more than two years before filing their

claims, that the injuries complained of had been

caused by the acts of a government doctor. Although

the claimants in both cases principally relied on the

“continuous treatment” rule—the rule that the limita-

tions period does not begin to run so long as the

physician-patient relationship continues—at least two

district courts in the Ninth Circuit have read those

decisions as establishing a rule that the limitations

period begins to run once the “acts constituting the

alleged malpractice are known” and as rejecting the

position that a claimant’s “knowledge of [his] legal

rights” must be shown to establish the limitations

defense.* Hall v. United States, 314 F. Supp. 1135,

primarily on allegations that he had not given informed con-

sent to surgery on his left leg; but undisputed evidence

showed that he knew, more than two years before filing his

claim, that the left leg had been operated on anyway. In

determining that the claim was barred, the Eighth Circuit

reiterated the Reilly test. 562 F.2d at 1184.

*A conflict between the rule applied in the Ninth Circuit

and the rule applied in the present case also is suggested by

Richter v. United States, supra, in which the Ninth Circuit

affirmed a district court’s dismissal of a Tort Claims Act suit.

Stating that the facts of the case before it presented “a strik-

ETE ON DIE RR a ae LENO | Sa aE ene ane Ne Oeil ee NNT ene MONT

1138 (N.D. Cal. 1970) (emphasis in original). Ac-

cord, Driskell v. United States, 431 F. Supp. 339, 341-

342 (C.D. Cal. 1977).

3. The court of appeals suggested that the “differ-

ent rule” it applied in this case would apply in only a

“few instances” in which the patient, “although aware

of the nexus between treatment and injury, has no

reason to believe that negligence was present” (App.

A, infra, 10a). The court’s suggestion is difficult to

accept, as the facts of this case demonstrate.

The court of appeals applied its “different rule” in

this case because of “the government’s repeated de-

ing parallel” to those in Hammond v. United States, 388

F. Supp. 928 (E.D.N.Y. 1975), a suit charging the federal

government with negligent issuance of a batch of polio vac-

cine that caused the claimant to contract polio, the Ninth Cir-

cuit affirmed on the basis of the reasoning in the Hammond

opinion. In Hammond the district court, applying what it

termed “the less stringent standard set by the Federal courts

in malpractice cases’ (388 F. Supp. at 932), held that the

claim accrued when the victim learned, through discovery in

his action against the private manufacturer of the vaccine,

that the vaccine had caused his polio and that the federal

government was responsible for setting test standards and

controlling the issuance of the vaccine, including the unsafe

batch that injured him. The victim then knew the injury

and its cause and knew that the federal government had par-

ticipated in the process. “From that point on,” the court held,

“it was incumbent upon [the claimant] to investigate, to

pursue the discovery for any other acts which would have

comprised a breach of [the government’s] duty.” 388 F. Supp.

at 933 (emphasis in original). It rejected the victim’s sug-

gestion that the claim accrued later, when he first learned

from a decision of another court that he could sue the United

States for negligent issuance of unsafe polio vaccine or when

he first learned of the government’s “particular acts of ‘mal-

practice.’”’ 388 F. Supp. at 932, 933.

nials of causation,” the “technical complexity” of the

malpractice issue, and the fact that before June 1971

none of respondent’s physicians told him that neo-

mycin should not have been administered (App. A,

infra, 1la). The findings of the district court show,

however, that beginning in September 1969 respond-

ent consistently insisted in dealing with the VA that

administration of the drug caused his deafness, as a

private ear specialist had told him (App. B, infra,

26a-29a). He was not deterred by the VA’s denials.’

Although the malpractice issue may have been ‘“‘tech-

nically complex,” this case is hardly distinguishable

on that ground from any number of tort cases in

which negligence may be a complicated issue, requir-

ing the testimony of expert witnesses.” Finally, in

* The district court relied also on the VA’s denial of negli-

gence, but offered no real explanation for its decision to

attach significance to the VA’s denials of liability. Because

denial of liability is frequent (indeed, perhaps almost in-

evitable) when a potential defendant is confronted with an

initial accusation that it caused harm, a court could not make

such denials significant without substantially discarding stat-

utes of limitations. If a denial of liability tolls the running of

the statute, any suit is timely so long as it is brought within

two years of the most recent allegation and denial.

The court may have had in mind the rule that a defend-

ant’s actively misleading the victim about the facts of its

conduct may sometimes toll the statute of limitations. See,

e.g., Greyhound Corp. v. Mt. Hood Stages, Inc., No. 77-598

(June 19, 1978) (Burger, C.J., concurring). But see Munro

v. United States, 303 U.S. 36 (1938). But no court has held

that, when the facts of an event are undisputed, the defend-

ant’s simple denial of legal liability tolls the statute of limi-

tations.

‘© Indeed, the question of liability here involves only the

application of medical knowledge to essentially undisputed

facts. The medical question is a good deal simpler than those

relying on the “factor” that respondent did not obtain

a professional opinion before June 1971 that he might

have a malpractice case, the court of appeals indulged

in circular reasoning. It could not properly rely on

this circumstance as a reason to support the legal

rule that the period of limitations did not begin to

run at some earlier date, when knowledge of causa-

tion and injury became sufficient to put a reasonable

person on notice that malpractice was a possibility.

The district court’s findings establish that, more

than two years before he filed his claim, respondent

knew that he had gone into the hospital for a leg op-

eration and been made deaf by a drug administered

to him following that surgery. If this knowledge is

insufficient to start the running of the statute of limi-

tations, then not many cases will escape this cate-

gory to which the “different rule” created by the

court applies.

4. In fiscal year 1977, VA employees in VA facili-

ties treated 1,239,085 hospitalized patients and han-

dled 14,675,284 outpatient visits. United States Vet-

erans Administration, 1977 Annual Report 9. The

figures for fiscal year 1978 are comparable. During

each of those years more than five hundred medical

malpractice claims were filed with the VA; court ac-

tions alleging VA malpractice totalled 186 in fiscal

encountered in cases of negligent surgery or negligent anes-

thesia, in which the facts about the case may be difficult to

ascertain and questions of the probabilities of harm given dif-

ferent approaches to the treatment may predominate. The

question of liability here is certainly much more simple than

the question of liability in a case involving negligent manu-

facture of vaccine or negligent design of an automobile.

year 1977 and 213 in fiscal year 1978. (The figure

for 1978 suits includes those filed prematurely, with-

out a prior administrative claim.)'* The United States

also is liable under the Tort Claims Act for injuries

negligently inflicted on military dependents treated in

military medical facilities and patients treated by

United States Public Health Service officers and em-

ployees. Approximately two hundred suits alleging

medical malpractice by employees of agencies other

than the VA were brought during each of the past

two fiscal years.” Resolution of the question raised

here thus could affect hundreds of claims and suits

each year, including stale claims that might not have

been filed at all but for the encouragement given by

the substantial relaxation of the limitations period

for medical malpractice claims typified by decisions

such as the present one.

‘t With the exception of the figures cited to the VA’s Annual

Report, these statistics were compiled from internal records

of the Department of Justice and the VA.

These figures, derived from internal records of the De-

partment of Justice, do not include suits concerning swine

flu vaccine.

16 la

CONCLUSION APPENDIX A

The petition for a writ of certiorari should be | UNITED STATES COURT OF APPEALS

THIRD CIRCUIT

granted.

No. 77-2388

Respectfully submitted.

WILLIAM A. KUBRICK, APPELLEE

WaAbpE H. McCREE, JR. v.

licitor General

— UNITED STATES OF AMERICA, APPELLANT

BARBARA ALLEN BABCOCK

Assistant Attorney General Argued June 7, 1978

ELINOR HADLEY STILLMAN Decided July 27, 1978

Assistant to the Solicitor General

Before ADAMS, WEIS and GARTH, Circuit Judges

WILLIAM KANTER

PATRici¢ G. REEVES OPINION OF THE COURT

Attorneys

DECEMBER 1978 WEIS, Circuit Judge.

Because of the unusual factors associated with the

discovery of harm caused by medical malpractice,

federal courts have adopted a flexible interpretation

of the limitation period for filing a claim under the

Federal Tort Claims Act. In this case, the plaintiff

contended at an early date in administrative proceed-

ings that a drug prescribed by a Veterans Adminis-

tration physician had destroyed his hearing. How-

ever, it was not until some years later that he learned

it was negligent to administer the drug as was done

in his treatment. The district court, holding that the

limitation period did not begin until the plaintiff

learned of the malpractice, entered judgment in his

favor against the government. We affirm, but remand

for the limited purpose of applying a statutorily man-

dated set-off.

Alleging injury received as a result of medical mal-

practice by the Veterans Administration, the plaintiff

filed suit under the Federal Tort Claims Act. 28

U.S.C. § 2674 (1976). After trial, the district court

entered judgment in his favor in the amount of $320,-

536 and the government appealed.

On April 2, 1968, the plaintiff entered the Wilkes-

Barre Veterans Administration Hospital for treat-

ment of osteomyelitis—a bone infection—in the right

leg. After surgery, a Veterans Administration physi-

cian ordered that a solution of the antibiotic, neomy-

cin, be used to irrigate the wound. On April 30, 1968,

plaintiff was discharged from the hospital, and about

a month later began to notice a loss of hearing, ac-

companied by an increasing ringing sensation in his

ears. An ear specialist in Scranton, Pennsylvania

verified a hearing impairment. In November of that

year, plaintiff consulted an ear specialist in Philadel-

phia, Dr. Joseph Sataloff, who confirmed the diagnosis

of bilateral nerve deafness. After reviewing the Vet-

erans Administration Hospital records, Dr. Sataloff

told the plaintiff that neomycin is an ototoxic drug—

that is, one which can impair hearing—and that this

either was or probably was the cause of his hearing

problem. At the trial, it was controverted whether

Dr. Sataloff had told the plaintiff that there was an

“excellent chance” that neomycin had caused the hear-

ing loss or had stated causation in a more unequivocal

fashion. However, the doctor testified that he did not

state or imply there was negligence in the adminis-

tration of the drug.

In April, 1969, Kubrick filed for an increase in

disability benefits under 38 U.S.C.A. $351 (Supp.

1978),* alleging that neomycin had caused his deaf-

‘$351. Benefits for persons disabled by treatment or vo-

cational rehabilitation

“Where any veteran shall have suffered an injury, or an

aggravation of an injury, as the result of hospitalization,

medical or surgical treatment, or the pursuit of a course

of vocational rehabilitation under chapter 31 of this title,

awarded under any of the laws administered by the

Veterans’ Administration, or as a result of having sub-

mitted to an examination under any such law, and not

the result of such veteran’s own willful misconduct, and

such injury or aggravation results in additional dis-

ability to or the death of such veteran, disability or death

compensation under this chapter and dependency and in-

demnity compensation under chapter 13 of this title shall

be awarded in the same manner as if such disability, ag-

gravation, or death were service-connected. Where an

individual is, on or after December 1, 1962, awarded a

judgment against the United States in a civil action

brought pursuant to section 1346(b) of title 28, United

States Code, or, on or after December 1, 1962, enters

into a settlement or compromise under section 2672 or

2677 of title 28, United States Code, by reason of a dis-

ability, aggravation, or death treated pursuant to this

section as if it were service-connected, then no benefits

shall be paid to such individual for any month beginning

after the date such judgment, settlement, or compromise

on account of such disability, aggravation, or death be-

comes final until the aggregate amount of benefits which

would be paid but for this sentence equals the total

amount included in such judgment, settlement, or com-

promise.”

Plaintiff was receiving a pension for partial disability because

of a back injury received while on active duty with the United

States Army in Korea.

ness but making no mention of malpractice. The

plaintiff had a twelfth-grade education, and no train-

ing in the medical field. He had the claim prepared

by a service officer of the Disabled American Veter-

ans. In August of 1969, a Veterans Administration

Board of Physicians denied the claim, finding no

causal relationship between the neomycin and the

hearing loss. The Board also declared there was no

evidence of carelessness, error in judgment, or lack

of proper skill on the part of the Veterans Adminis-

tration. The following month, a Veterans Adminis-

tration adjudication officer told plaintiff that his

claim had been denied because the hearing loss was

not attributable to his treatment by the Veterans

Administration. On September 25, 1969, the plaintiff

filed a “Statement in Support of Claim” which he and

his wife had prepared, asserting that the neomycin

had caused his deafness; the Veterans Administration

again denied the claim. After obtaining statements

from the Public Health Service and an ear specialist

stating that neomycin could be ototoxic, plaintiff

wrote to various public officials pleading for help in

obtaining disability benefits. These letters did not

change the position of the Veterans Administration,

which continued to deny a connection between the

administration of the neomycin and the plaintiff’s

deafness.

On May 20, 1971, the Veterans Administration sent

plaintiff a copy of one of its field investigator’s re-

ports, which purported to quote Dr. Soma, the first

ear specialist plaintiff consulted after his discharge

from the Veterans Hospital. According to the inves-

tigator, Dr. Soma said that the plaintiff’s problem

stemmed from his employment in a machine shop.

Angered by this report, plaintiff confronted Dr. Soma

on June 2, 1971, a date critical in the resolution of

this case. The physician denied making the statement

attributed to him, and said, furthermore, it was his

opinion neomycin never should have been used and

that it was the sole cause of plaintiff’s hearing dis-

ability. During a visit to Dr. Sataloff several weeks

later, plaintiff asked the physician if there was any-

thing that could be done. Dr. Sataloff suggested plain-

tiff see an attorney, and, upon learning he did not

have a lawyer, the doctor recommended one. Until

that time, plaintiff had not sought legal assistance.

The Board of Veterans Appeals once again denied

plaintiff’s claim on August 9, 1972; one month later

he filed suit in the district court. Discovering the

necessity of filing an administrative claim to comply

with the Tort Claims Act, plaintiff filed the Standard

Form 95? in January, 1978. The claim was denied

228 C.F.R. § 14.2 provides:

“For purposes of the provisions of section 2672 of Title

28, United States Code, a claim shall be deemed to have

been presented when a Federal agency receives from a

claimant, his duly authorized agent or legal representa-

tive, an executed Standard Form 95 or other written

notification of an incident, accompanied by a claim for

money damages in a sum certain for injury to or loss

of property, personal injury, or death alleged to have

occurred by reason of the incident. If a claim is presented

in April, 1973, and the action proceeded in the dis-

trict court.

The district: judge made extensive findings of fact,

establishing that the Veterans Administration had

been negligent in prescribing neomycin for plaintiff’s

treatment. The court also found that the two year

period of limitations did not begin to run until the

plaintiff visited Dr. Soma in June, 1971, when he

learned for the first time that administration of neo-

mycin had been improper. Stating that plaintiff’s

deafness was irreversible and had resulted in serious

emotional problems, as well as loss of employment,

the court awarded damages in the sum of $320,536.

The government does not contest either the finding

of malpractice or the amount of damages awarded’,

but confines its attack to two points—the limitations

period specified by 28 U.S.C. § 2401(b),* and the dis-

to the wrong Federal agency, that agency shall transfer

it forthwith to the appropriate agency.”

Because the regulation specifies terms upon which the govern-

ment has consented to be sued, we have held that compliance

is necessary. See Bialowas v. United States, 443 F.2d 1047

(3d Cir. 1971).

* Because neither issue is relevant to this appeal, we do not

discuss them here. A full explication, however, is found in

the district court’s opinion, reported in Kubrick v. United

States, 485 F.Supp. 166 (E.D.Pa. 1977).

* Section 2401 (b) states:

“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 a claim

accrues or unless action is begun within six months after

trict court’s failure to set off veterans benefits re-

ceived against the verdict.

The government concedes that medical malpractice

cases are a recognized exception to the rigid rule

uncer the Federal Tort Claims Act that a claim ac-

crues at the time of the plaintiff’s injury. This court

and courts of appeals in other circuits have held that

the two-year limitations period does not begin to run

until the claimant has discovered, or in the exercise

. of reasonable diligence should have discovered, the

existence of the acts of malpractice upon which his

claim is based. Tyminski v. United States, 481 F.2d

257, 263 (3d Cir. 1973). This interpretation was

adopted to avoid the harshness in many instances of

.time-barring an individual’s claim before he realized

that he had been the victim of malpractice. See, e.g.,

Quinton v. United States, 304 F.2d 234 (5th Cir.

1962).

The test of “discovery of the existence of the acts

of malpractice upon which the claim is based,” while

apparently precise, has proved to be troublesome in

application. In many cases, the problem centers upon

determining when the plaintiff discovered the sub-

stance or condition which actually caused his injury.

Thus, in Tyminski v. United States, supra, not until

the plaintiff learned that his paralysis was caused by

surgical error, rather than the natural progression

of a preexisting condition, did the limitation period

the date of mailing, by certified or registered mail, of

notice of final determination of the claim by the agency

to which it was presented.”

begin to run. In Caron v. United States, 548 F.2d

266 (1st Cir. 1976), the limitation period commenced

when parents learned that an improper injection giv-

en while she was an infant caused brain damage to

their 12-year-old daughter. See also Portis v. United

States, 483 F.2d 670 (4th Cir. 1973) (neomycin im-

properly administered in 1963, causing deafness, not

recognized as the culprit until 1969) ; Toal v. United

States, 438 F.2d 222 (2d Cir. 1971) (pantopaque dye

left in spinal column after myelogram discovered

years later to be cause of brain inflammation).

These cases, however, are not precisely on point

because here, the plaintiff was aware a few months

after his hearing loss began that neomycin was most

likely responsible for his hearing problem. A fact

situation quite similar was present in Jordan v.

United States, 503 F.2d 620 (6th Cir. 1974). In that

case, the plaintiff underwent surgery on his nose in

a Veterans Administration Hospital in order to cor-

rect a sinus condition. His eye was damaged during

the operation, and a few days later, a staff physician

told him the procedures required to deal with the un-

anticipated “severity” of the sinus condition caused

the injury. Three years later, during a periodic exam-

ination, a physician told plaintiff it was “‘too bad they

screwed up your eye when they operated on your

nose.” Plaintiff then retained a lawyer and brought

suit against the government. The Court of Appeals

for the Sixth Circuit held that the limitation period

did not begin to run until plaintiff learned of the mal-

practice. As the court phrased it:

Implicit in the federal cases applying this “dis-

covery” rule is the requirement that the claimant

must have received some information, either by

virtue of acts he has witnessed or something he

has heard, or a combination of both, which should

indicate to him when reasonably interpreted in

light of all the circumstances, that his injury was

the result of an act which could constitute mal-

practice. Jd. at 622.

The Jordan opinion reflects that although the plain-

tiff knew his eye injury was attributable to the sur-

gery performed on his nose, he was not aware that

the procedure constituted malpractice.

Bridgford v. United States, 550 F.2d 978 (4th Cir.

1977), is also instructive. There, the court held that

the limitation should not begin “until a claimant has

had reasonable opportunity to discover all of the es-

sential elements of a possible cause of action—duty,

breach, causation, damages.” Jd. at 981-82 (emphasis

in original). This approach was also adopted by the

Court of Appeals for the Tenth Circuit in Exnicious

v. United States, 563 F.2d 418, 420 (10th Cir. 1977).

Here, the district court said that the limitation

period does not begin to run even though the patient

perceives the relationship between treatment and in-

jury, if despite due diligence, he has no reason to

believe there was any negligence. The government

contends such a standard aliows a plaintiff to delay

the claim’s accrual date until he discovers that there

was legal negligence, or carried to its extreme, “when

he gets a professional medical opinion that medical

malpractice was involved—i.e., that he should file a

10a

lawsuit.” (Government Brief at 41). We do not be-

lieve this to be an accurate assessment of the court’s

rationale because it ignores a subsequent passage in

the court’s opinion saying that the claim period be-

gins vo run when “the plaintiff had reason at least

to suspect that a legal duty to him had been breached.”

435 F.Supp. 166, at 185.

In most cases, knowledge of the causal connection

between particular matters of treatment and injury,

-vithout more, will or should alert a reasonable person

that there may have been an actionable wrong. But

in the few instances where a patient, although aware

of the nexus between treatment and injury, has no

reason to believe that negligence was present, a dif-

ferent rule applies. In these situations, if the plaintiff

can prove that in the exercise of due diligence he did

not know, nor should he have known, facts which

would have alerted a reasonable person to the possi-

bility that the treatment was improper, then the limi-

tation period is tolled. For example, the plaintiff in

Jordan, whose eye was injured as a result of his sinus

operation, may very well have believed that such eye

involvement was an unavoidable result of the opera-

tion, and indicated no impropriety in the manner of

treatment. In such a case, the cause of action for

medical malpractice should not accrue upon mere

knowledge of causation. Something more should be

required. Any other result would be inequitable and

contrary to the “blameless ignorance’’ rationale un-

derlying the Quinton discovery rule.

The test necessarily must be applied on an ad hoc

basis, but it does require consideration of subjective,

lla

as well as objective standards. Thus, in Sanders v.

United States, 179 U.S.App.D.C. 272, 551 F.2d 458

(1977), the limitation period was not tolled despite

the plaintiff’s assertions that she did not know of the

connection between her injury and earlier treatment.

In denying recovery, the court relied upon the facts

that plaintiff was a registered nurse and had gained

possession of her hospital records soon after the treat-

ment. See also Reilly v. United States, 513 F.2d 147

(8th Cir. 1975).

In the case sub judice, the district court found that

the plaintiff suspected negligence only after the June,

1971 interview with Dr. Soma. The trial judge also

held that plaintiff’s prior belief that there was no

malpractice was reasonable in view of several other

factors: the technical complexity of the question

whether his neomycin treatment involved excessive

risk, the failure of any of his doctors to suggest be-

fore June, 1971 the possibility of negligence, and the

government’s repeated denials of causation.

The government argues, however, that the various

claims submitted by the plaintiff in his correspondence

are inconsistent with his position at trial. The plain-

tiff testified that he thought he was entitled to an in-

creased disability allowance as a result of the neomy- —

cin treatment even though no fault of the Veterans

Administration existed. He knew that a veteran was

entitled to receive benefits for injury incurred on ac-

tive duty without regard to fault, and he assumed

the same rule applied to injury received while a pa-

tient in a government hospital. Plaintiff also testified

12a

that in his various letters and memoranda sent to the

Veterans Administration which referred to “mistake”

and “error,” he meant the error in denying him dis-

ability benefits.

We have reviewed the extensive correspondence

from the plaintiff and find that it is ambiguous and

capable of the meaning attributed to it by the plain-

tiff. We observe, also, that plaintiff was cross-exam-

ined thoroughly by government counsel and was ques-

tioned sentence-by-sentence on many passages in the

correspondence. The issue is one of fact. What the

plaintiff intended to express in the correspondence and

what he thought about the possibilities of malpractice

were questions to be resolved by the trial judge. We

may not reverse his findings unless they are clearly

erroneous, Tyminski v. United States, 481 F.2d at

263; F. R. Civ. P. 52(a), and we do not find them

to be so.

The plaintiff knew or should have known that neo-

mycin was the direct cause of his hearing loss. He

did not, however, know that the administration of the

drug was medical negligence. Thus, he knew two of

the essential elements of a possible cause of action—

causation and damages—but he did not know, nor

could he reasonably have been expected to know, ac-

cording to the district court’s findings, of the breach

of duty on the part of the government. In these cir-

cumstances, the limitation period did not run until

Dr. Soma’s conversation suggested a duty had been

breached by the Veterans Administration.

The administrative claim was filed by the plaintiff

on January 13, 1973, well within the two-year period

13a

after the June 2, 1971 confrontation with Dr. Soma.

The relevant statute, 28 U.S.C. § 2401(b), applies

the two-year period to the filing of the administrative

claim rather than the institution of suit. In this case,

the suit was filed at an earlier date. We agree with

the district court’s conclusion that where the admin-

istrative claim is denied before any substantial prog-

ress has been made in the pending litigation, the suit

need not be refiled to be effective. The government

does not contend otherwise on this appeal. Cf. Rosario

v. United States, 531 F.2d 1227 (8d Cir.), cert. de-

nied, 429 U.S. 857, 97 S.Ct. 156, 50 L.Ed.2d 135

(1976). To hold that refiling was necessary would

involve duplicitous pleadings and wasted effort.

We conclude, therefore, that the district court did

not err in finding that the claim was timely filed.

THE SET-OFF

On July 15, 1975, the Veterans Administration

Board of Veteran’s Appeals reversed itself and deter-

mined that the plaintiff was entitled to an increase

in his disability rating as a result of the neomycin

administration. Since that time, the plaintiff has been

paid in excess of $50,000 in augmented disability

benefits. The government contends that these pay-

ments should be set off against the judgment. The

plaintiff asserts that the issue was not raised during

the trial and, therefore, was waived. We do not ac-

cept that position. Government counsel discussed the

issue during a pretrial conference, stating that set-

off was compelled by statute.

l4a

Since the increase in benefits was compensation for

the very same injury for which the judgment was

awarded, the set-off should be allowed. 38 U.S.C.

§ 351 was amended in 1962 to provide that once a

judgment is entered against the government in an

action under the Federal Tort Claims Act for a dis-

ability which was also the subject of an award in

pension benefits, no pension benefits shall be paid

until the aggregate amount of augmented benefits

payable equals the total amount of the judgment. The

legislative history makes clear that Congress intended

to prevent double payment for the same injury. 1962

U.S. Code Cong. & Admin. News, pp. 3260, 3268. For

case law to the same effect, see United States v.

Brown, 348 U.S. 110, 111, 75 S.Ct. 141, 99 L.Ed. 139

(1954); Brooks v. United States, 387 U.S. 49, 53-54,

69 S.Ct. 918, 938 L.Ed. 1200 (1949); Steckler v.

United States, 549 F.2d 1372, 1879 (10th Cir. 1977).

See also L. Jayson, Handling Federal Tort Claims

§ 159 (1977). The Veterans Administration has not

been given any discretion to waive the statutory di-

rection and it must be followed.

Because the augmented pension benefits have al-

ready been paid, it will be necessary to reduce the

amount of the judgment by the amounts paid to the

date the set-off is applied. Accordingly, the case will

be remanded to the district court for this limited

purpose. In all other respects, the judgment will be

affirmed.

l5a

APPENDIX B

UNITED STATES DISTRICT COURT

K.D. PENNSYLVANIA

Civ. A. No. 72-1815

WILLIAM A. KUBRICK

UNITED STATES OF AMERICA

July 22, 1977

OPINION AND ORDER

EDWARD R. BECKER, District Judge.

I. Preliminary Statement

This is a medical malpractice case brought under

the Federal Tort Claims Act, 28 U.S.C. § 1346

(“Act”), raising important questions concerning the

statute of limitations and the standard of care ap-

plicable to specialists in Pennsylvania. The claim

arises out of the hospitalization of the plaintiff, Wil-

liam A. Kubrick, in the Wilkes-Barre Veterans Ad-

ministration Hospital (“VA Hospital’) from April

2, 1968 to April 30, 1968, for treatment of osteo-

myelitis of the right femur. Following surgery, the

infected area was irrigated for twelve to thirteen

days with a 1% solution of neomycin sulfate admin-

istered through a hemovac (evacuation) tube system.

The osteomyelitis cleared, but approximately three

months after his discharge from the VA Hospital

l6a

plaintiff began to notice a partial hearing loss and

tinnitus (ringing in the ears). His condition grew

progressively worse, and there is now no dispute

about the fact that plaintiff suffers from severe bi-

lateral sensorineural hearing loss, or nerve deafness,

which is permanent in nature and which cannot be

improved by treatment.

The evidence overwhelmingly supports plaintiff’s

contention that his nerve deafness was caused by the

administration of neomycin which, while a highly

effective antibiotic, is also ototoxic, i.e., deleterious

to the eighth cranial nerve which supplies the ear.

The government does not seriously dispute this con-

tention. What is at issue in this case is whether,

at the time of the treatment, it was sufficiently well

known in the Wilkes-Barre (or similar) medical com-

munity, or, alternatively, in the national community

of orthopedists, that neomycin administered as a

surgical wound irrigant through a hemovac tube sys-

tem had ototoxie effects such that its administration

to plaintiff was negligent. In order to resolve this

issue we must determine whether Pennsylvania would

apply a national or similar locality standard to spe-

cialists,' and we must also examine what was known

about the manner of administration of the drug,

focusing in particular upon the medical distinction

between “topical” use of a drug, which imports local

application and effect, and “parenteral” use, by which

a systemic effect is intended.

1 See Discussion at pp. 186-188 infra.

17a

It is conceded by the government that the ototoxic

effects of neomycin when parenterally used were gen-

erally known in April 1968. The government con-

tends, however, that the use of neomycin as a surgical

wound irrigant through a hemovac tube system was

then thought to be a topical, not a parenteral use,

and concomitantly, that the body’s capacity to absorb

neomycin when administered in this way was known

little, if at all, at that time. The government argues

that the plaintiff's VA physician thus cannot be

charged with the knowledge that the neomycin was

readily absorbed into the body tissues and the blood

stream. It further argues that the practices followed

in this case were those generally followed at the

time, at least in Wilkes-Barre and similar communi-

ties, hence malpractice was not committed.

The plaintiff counters that the absorption propen-

sity of neomycin was widely known and that the VA

physician who treated him is chargeable with that

knowledge. Plaintiff also argues that the dosage of

neomycin administered to him was so outrageously

high and prolonged that the treating physician in

any event should have known of the ototoxic potential.

Plaintiff also submits that other nontoxic drugs could

have adequately treated the osteomyelitis, which was

caused by a staphylococcus infection.

As the foregoing recitation suggests, the trial rec-

ord is heavily laden with the (conflicting) testimony

of expert medical witnesses as to just what was

known in the medical community about the properties

of neomycin and with excerpts from the medical

18a

literature at the time. With respect to the evidence

in the medical literature of neomycin’s absorption

potential, the government argues that the VA doctors

are not obliged to read every piece in the vast and

burgeoning medical literature.

As will appear from the findings of fact and

discussion which follow, we find: (1) that the plain-

tiff’s VA physician is chargeable with what we find

to have been generally available knowledge of both

the body’s ability to absorb neomycin when adminis-

tered as it was to the plaintiff, and its potential

ototoxic effect; (2) that the dosage given the plain-

tiff was excessive; (3) that drugs other than neo-

mycin could and should have been used to treat the

staph infection; and (4) that the hemovac tube sys-

tem was not properly maintained. Accordingly, we

conclude that the VA physician in charge was guilty

of medical malpractice which proximately caused

plaintiff’s bilateral hearing loss.

The liability aspect of this case, however, has an-

other facet. For what is also at issue is whether

plaintiff’s suit is time-barred by the Act’s two-year

statute of limitations. 28 U.S.C. § 2401(b).

The plaintiff experienced tinnitus and first noticed

a diminution of his hearing in June 1968. Thereafter,

he visited a series of otologists about the progressively

worsening hearing loss. At some point during the

consultations the plaintiff was advised of the possi-

bility that it was the neomycin which caused it. In

April 1969 plaintiff submitted a claim to the Vet-

erans Administration seeking disability benefits to

19a

compensate him for his hearing loss on the basis

of the opinion of a Philadelphia ear, nose and throat

specialist that it was “highly possible” that the neo-

mycin had caused plaintiff’s tinnitus and deafness. In

August 1969, the VA denied plaintiff’s claim on the

basis that there was no causal relationship between

the neomycin administration and the hearing loss,

and also for the reason that there was no evidence

of negligence of any sort on the part of the govern-

ment. Thereafter plaintiff instituted various requests

for reconsideration and appeals, in the belief that

even without negligence he was entitled to an in-

crease in disability payments. In addition, he wrote

to various public officials in aid of his efforts to ob-

tain vindication before the Veterans Appeals Board.

It was not until June 1971, that plaintiff dis-

covered, upon the opinion of an ear specialist, that

the government’s administration of neomycin may

have been negligent. This suit was filed in September

1972. In January 1978, plaintiff filed a form 95

administrative claim which was rejected a few months

later in April 1973. Before that and for a long

period thereafter, the VA unequivocally maintained

that there was no negligence.

The government has moved to dismiss on the

grounds that the statute of limitations had expired

prior to the filing of an administrative claim, and

that in any event plaintiff had failed to file a standard

form 95 (administrative) tort claim in the proper

sequence. The Act’s statute of limitations reads:

20a

A tort claim against the United States shall

be forever barred unless it is presented in writ-

ing to the appropriate Federal agency within

two years after such claim accrues. [28 U.S.C.

§ 2401(b) (emphasis added). ]

The critical statute of limitations issue in this case

is, therefore, when plaintiff’s claim accrued, and we

shall discuss the applicable standard below. It will

be necessary, in the course of that discussion, to

analyze and refine the prevailing rule in such matters.

As the foregoing discussion suggests, the govern-

ment asserts that the claim accrued in the summer

of 1968, when plaintiff first noticed his hearing loss,

or at least in April 1969 when he submitted a claim

to the VA evincing knowledge of the high possibility

that the neomycin administration caused his deaf-

ness. In either event, the present suit would be time-

barred.

The plaintiff, on the other hand, contends that it

would be harsh and improper to construe the statute

of limitations so as to hold that plaintiff’s claim

accrued at a time when he had every reason to be-

lieve, based inter alia upon the VA’s own written

opinions, that there was no causal relationship be-

tween the neomycin administration and the hearing

loss, and no negligence on the part of the govern-

ment. In plaintiff’s view the claim did not accrue

(hence the statute of limitations did not start to run)

until plaintiff, in the exercise of reasonable diligence,

could have suspected that he was the victim of im-

proper medical care or negligence. This occurred,

2la

plaintiff says, in June 1971, nineteen months prior

to the filing of his administrative claim.

For the reasons which will appear in the findings

of fact and in the discussion which follows, we con-

clude that plaintiff’s suit does not run afoul of the

statute of limitations or the administrative filing re-

quirements. Finding that defendant has committed

malpractice and that plaintiff is irreversibly deaf

(though he is an excellent lip reader) and has suf-

fered related psychiatric problems, we will award

substantial damages. This opinion constitutes our

findings of fact and conclusion of law under Fed.R.

Civ.P. 52(a).

Il. Findings of Fact

A. Plaintiff's Hospitalization and Treatment

On April 2™1968, the plaintiff, who then possessed

full normal hearing, was admitted to the VA Hospital

in Wilkes-Barre for treatment of a condition which

was diagnosed as osteomyelitis of the right femur.

He thereupon came under the primary care of Dr.

H. P. Wetherbee, an orthopedic surgeon employed

by the VA.

On April 3, 1968, Dr. Wetherbee operated on the

plaintiff. The operative procedure disclosed a small

pocket of purulent material along the shaft of the

right femur. A swab was taken of the purulent

material for smear, culture and sensitivity studies.

During the operative procedure, two hemovac tubes

were introduced into the depths of the wound, one

proximally and the other distally. Thereafter the

22a

surgical wound was closed loosely and a dry sterile

dressing applied.

The culture test performed on the purulent ma-

terial indicated that the organism present was a

beta hemolytic staphylococcuscoagulase positive (here-

inafter referred to as “staph’’). Sensitivity tests

taken revealed that the staph was susceptible to treat-

ment with the following medication: oleoan; terra-

mycin; tetracyline; chloromycetin; penicillin; strepto-

mycin; prostaphlin; erythromycin; polycillin; fura-

dantin; novobiocin; mandelamine; neomycin; kana-

mycin; keflin; lincocin and daotriacetyloleandomycin.

On April 5, 1968, Dr. Wetherbee prescribed two anti-

bioties to treat the osteomyelitic condition: polycillin

orally and neomycin as a surgical wound irrigant ad-

ministered through the use of the hemovac tubes.

At 4:00 p.m. on April 5, 1968, a 1° neomyein

drip, at the rate of sixty (60) drips per minute was

hegun, and continued twenty-four (24) hours a day

until April 18, 1968. At that rate plaintiff could

have received as much as 5,760 ec. of 1° neomycin

solution during each twenty-four hour period; and

in any event, he did receive at least 4,320 ce. of 1%

neomycin solution during each twenty-four hour

period. This translates to at least 43.2 grams of

neomycin during any twenty-four hour period. Thus,

plaintiff was administered at least 549 grams and

perhaps as much as 732 grams of neomycin during

his hospitalization in April 1968. Plaintiff remained

in the hospital until April 30th. When he was dis-

charged on that date the osteomyelitis had cleared.

28a

B. Plaintiff's Loss of Hearing and the

Accrual of His Claim

In mid-June 1968, plaintiff first noticed a ringing

sensation in his ears and some loss of hearing. He

sought medical care by visiting his family doctor,

Dr. Mazaleski, who in turn referred him to an ear

specialist, Dr. Soma, in Seranton, Pennsylvania. On

August 27, 1968, Dr. Soma performed an audiometric

test on plaintiff and formed the opinion that the

ringing sensation and loss of hearing was due to bi-

lateral nerve deafness of unknown etiology.

On September 9, 1968, plaintiff was examined by

another ear specialist, Dr. Cole of Geisinger Medical

Center in Danville, Pennsylvania. Dr. Cole, after

examination and an audiometric test, diagnosed the

hearing loss and ringing sensation as bilateral sensori-

neural deafness. On September 10, 1968, plaintiff

returned to the VA Hospital ear, nose and throat

clinic, where he informed a Dr. Fischoff of the ring-

ing sensation and loss of hearing. Dr. Fischoff ad-

ministered an air conduction test. Plaintiff was not

informed of the results of the test, but was sent to

the dispensary for a prescription to help his condition.

The plaintiff was still bothered by the ringing sensa-

tion and hearing loss which was becoming progres-

sively worse, and in November 1968, was examined

and tested by Dr. Joseph A. Sataloff, an ear, nose

and throat specialist in Philadelphia. Dr. Sataloff,

after physical examination and an air conduction

test, opined that plaintiff was suffering from hi-

lateral hearing loss. Dr. Sataloff told plaintiff he

24a

would try to reduce the ringing sensation and impede

the continued degeneration of hearing loss, and that

he would also send for the VA hospital records in

an effort to find their etiology. This commenced a

series of visits with Dr. Sataloff for treatment of

plaintiff’s hearing condition that continued until the

summer of 1971.

Dr. Sataloff testified that he informed plaintiff

during his initial visit, and during many visits there-

after, that the antibiotics he had received during his

hospitalization in April of 1968 had caused his hear-

ing problems. We do not credit this testimony. In.

stead we find that Dr. Sataloff told plaintiff and re-

ported to the Veterans Administration, insurance

companies, and others that it was his opinion that

it was “highly possible” (or other similar’ language)

that the hearing loss was caused by the neomycin

solution given in the Veterans Administration Hos-

pital. For instance, on June 30, 1969, Dr. Sataloff

completed and submitted a certificate of attending

physician for the Veterans Administration in which

he stated ‘“‘[t]here is an excellent chance that Mr.

Kubrick’s present hearing loss is the result of neomy-

cin toxicity.”” This submission followed the filing by

plaintiff on April 16, 1969, of a claim to the Veterans

Administration for disability benefits to compensate

him for his hearing problems based upon Dr. Satal-

off’s opinion that the neomycin had been the ‘“‘pos-

sible” cause of his deafness.* We find that at no

2 On September 16, 1969, Dr. Sataloff had written to Mr.

Peter Dudish of the Disabled American Veterans in Wilkes-

Barre stating that ‘“[t]here is a very excellent possibility that

25a

time prior to mid-1971 did Dr. Sataloff advise or in

any way indicate to the plaintiff by word or writing

that there was malpractice or negligence in the ad-

ministration of neomycin at the VA Hospital in April

1968. We also find that it was reasonable for plain-

tiff to continue to believe, even after consultation

with Dr. Sataloff, that his deafness was not the re-

sult of malpractice in view of the technical com-

plexity of the question whether his neomycin treat-

ment was unduly hazardous.

On August 11, 1969, a Veterans Administration

Board of Physicians was convened to consider whether

plaintiff’s hearing loss had any relationship to the use

of neomycin during the period of his hospitalization

in April 1968. The Board thereafter informed plain-

tiff that his claim had been denied on the basis that

no casual relationship existed between the neomycin

administration and the hearing loss, as well as for the

reason that there was no evidence of “carelessness,

accident, negligence, lack of proper skill, error in

judgment, or any other fault on the part of the

Government.” Moreover, on September 5, 1969, Mr.

McCauley, the Adjudication Officer in the Veterans

Administration Center at Philadelphia, advised the

plaintiff that the Veterans Administration had found

that his hearing loss was not attributable medicinally

his hearing damage could have been due to the use of neomy-

cin by irrigation.” As will more fully be seen, and as we now

note, plaintiff’s persistence in his disability claim evidences

his view that he was entitled to such payments purely on the

basis of the causal relationship.

26a

or medically to his April 1968 hospitalization, and

that his claim for compensation as a result of his

hearing loss was therefore disallowed.

On September 25, 1969, plaintiff submitted a

“Statement in Support of Claim” in which he ex-

pressed his disagreement with the Veterans Admin-

istration’s denial, stating that Dr. Sataloff had re-

quested and reviewed all past and medical history

and had informed him that the medication given him

during his hospitalization in April 1968 was respon-

sible for his loss of hearing. On September 26, 1969,

the Veterans Administration issued a “Statement of

the Case” in plaintiff’s appeal which again declared

that plaintiff’s claim was denied due to lack of causal

relationship and a lack of evidence showing careless-

ness, accident, negligence, lack of proper skill, error

in judgment, or any other fault. '

On January 18, 1970, plaintiff was admitted to

the VA Hospital in Wilkes-Barre, and remained as

an in-patient until February 16, 1970. During that

time, a complete audiometric examination by the

ears, nose and throat clinic confirmed the fact that

he suffered from a severe bilateral sensorineural

hearing loss which completely foreclosed speech dis-

crimination and for which a hearing aid would be

of no assistance.

An important development in the history of this

matter occurred on May 20, 1971, when the Veterans

Administration sent plaintiff a “Supplemental State-

ment of the Case” containing the following report

27a

of a Veterans Administration field examiner, J. A.

Nagy:

VA field examination report: Dr. J. J. Soma

stated after examining the veteran on August

27, 1968, he concluded that the Veteran’s prob-

lem was a result of his employment in the ma-

chine shop. He stated he planned on treating

the veteran along such lines, but he never came

back for further treatment.

That Veterans Administration Statement identified

two reasons for denial of compensation for plaintiff's

hearing loss:

The additional evidence including the current

Veterans Administration examination does not

show any veteran’s hearing disability was due

to any carelessness, lack of medical skills, negli-

gence or error in judgment, mal-practice or other

knowledge on the part of the staff of the Vet-

erans Administration Hospital.

The Veteran’s own ear, nose and throat spec-

ialist indicated that the hearing loss was felt

to be due to the veteran’s previous employment

as a machinist and was due to acoustic trauma.

On June 2, 1971, plaintiff confronted Dr. Soma

in his office with the opinion attributed to him in the

VA’s Supplemental Statement of the Case. Dr. Soma,

upon examining the Supplemental Statement, in-

formed the plaintiff that the statements attributed

to him were never made by him. At that juncture,

Dr. Soma advised plaintiff that it was his opinion

that neomycin should not have been administered in

April 1968, and that plaintiff’s permanent hearing

28a

loss was solely caused by neomycin absorption. Dr.

Soma’s statement to plaintiff on June 2, 1971, was

the first time that any doctor or lay person had

suggested to plaintiff and/or his wife that negligence

was involved in the administration of neomycin by

the Veterans Administration Hospital physician in

April of 1968. Plaintiff thereafter retained counsel

who represented him before the VA Board of Appeals

and later in the present lawsuit.

In the period between the denial of plaintiff’s in-

itial claim and the summer of 1970, plaintiff and

his wife had written various letters to the Veterans

Administration officials and to their United States

Senators in which they contradicted and denied the

VA’s finding of no causal connection between the ad-

ministration of the neomycin solution in April of

1968 and the subsequent development of the hearing

loss sustained by the plaintiff. The government makes

much of the language of some of those letters,’ sug-

*On December 10, 1969, plaintiff wrote to United States

Senator Richard S. Schweiker, complaining about the Vet-

erans Administration’s denial of his claim for benefits and

contending that he was “turned down by the Veterans Ad-

ministration ... who maintain their hospitals are not capable

of error or misjudgment. .. .”” On December 29, 1969, plain-

tiff submitted a six page appeal of his claim to the Board

of Veterans Appeals in which he attempted to contradict the

findings of the Veterans Administration regarding the hos-

pital procedures, disagreed with the Veterans Administra-

tion’s conclusion of no negligence, stated his belief that his

injury was the “outcome of error,” and attempted to con-

vince the Board that Dr. Sataloff’s opinion about the causal

29a

gesting that they reflect an awareness by plaintiff

that the VA doctor was or may have been negligent.

We draw no such conclusion, believing them to rep-

resent a flurry of rhetoric induced by desperation.

We credit plaintiff’s testimony that he did not, prior

to his June 1971 interview with Dr. Soma, suspect

that there was negligence involved. We find that as

of the date of those letters plaintiff believed his en-

titlement to VA benefits followed if the neomycin

administration caused the hearing loss without negli-

gence. Furthermore, plaintiff’s belief that there was

no malpractice was reasonable in view of the techni-

cal complexity of the question whether his neomycin

treatment involved excessive risks, the failure of any

of his doctors to suggest prior to June 1971 the pos-

sibility of negligence, and the repeated unequivocal

assertions by the Veterans Administration that there

was no negligence on the part of the government.

relationship was correct. On October 15, 1970, plaintiff signed

and sent a letter, written by his wife, to the Administrator of

Veterans Administration Affairs, Donald E. Johnson. This

letter begins by citing a case in which a friend of Mrs. Ku-

brick became injured and eventually died as “the result of

human error” in a hospital. It goes on to state that plaintiff

lost his hearing “as the result of a Medical Error...” and

suffered the consequence of that error, and suggested that Mr.

Johnson could recommend a hospital or doctors capable of

correcting the error. And finally, on October 27, 1970, plain-

tiff wrote to Mr. Clayman of the Veterans Administration in

Philadelphia in a further attempt to have the Veterans Ad-

ministration reverse its decision. This letter stated, in part,

that plaintiff “had normal good hearing before this drug had

been administered without using proper precautions.”

30a

On August 9, 1972, the Board of Veterans Ap-

peals published its “final” decision in which compensa-

tion for plaintiff’s hearing loss was again denied.*

On September 14, 1972, plaintiff’s complaint in

this Court was filed. Plaintiff did not file a standard

form 95 setting forth a claim (administrative claim)

against the United States for medical malpractice

until January 13, 1973. On April 18, 1973 the (ad-

ministrative) claim was rejected by letter to counsel

for plaintiff from John H. Kerby, Assistant General

Counsel for the Veterans Administration.

Plaintiff’s persistent efforts to seek vindication be-

fore the VA finally bore fruit in the form of a July

15, 1975 decision, upon reconsideration, of the VA

Board of Veterans Appeals. The Board entered find-

ings of fact as follows: “a

1. Mr. Kubrick was placed on neomycin ir-

rigation by the Veterans Administration during

‘The decision found as follows:

i. Mr. Kubrick was placed on neomycin irrigation by

the VA Hospital during hospitalization in April, 1968

for osteomyelitis of the right femur. Beginning in ap-

proximately June, 1968 defective hearing was noted.

2. Sensorineural deafness was diagnosed during VAH

hospitalization from January to February 1970.

3. That there is evidence to show that defective hear-

ing may have been caused by neomycin irrigation.

4. The treatment and care afforded the Veteran in

connection with use of neomycin was administered by

duly qualified and trained personnel, in accordance with

acceptable medical practices and procedures, and negli-

gence, error in judgment or other indicated faults are not

shown.

dla

hospitalization in April 1968 for osteomyelitis

of the right femur.

2. Defective hearing was noted in about June

1968 and sensorineural deafness was diagnosed

during Veterans Administration hospitalization

from January to February 1970.

4. Defective hearing may have been caused

by the neomycin irrigation.

4. The benefit in issue was denied in Board

of Veterans Appeals decision promulgated Au-

gust 9, 1972, which decision now appears to

have been erroneous.

5. There was fault on the part of the Vet-

erans Administration in the manner of neomy-

cin irrigation which is reasonably determined

to have resulted in sensorineural hearing: loss.

The Board of Veterans Appeals based its findings

of fact upon its evaluation of the facts wherein it

stated:

The Board’s finding that the veteran’s de-

fective hearing may have been caused by the

neomycin irrigation stands and is supported by

the evidence. However, a further in-depth re-

view supports the claimant’s assertions of im-

proper administration of the drug. The amount

utilized was of such quantity, when considered

with the size and depth of the wound and the

form of drug administration, as to support a

finding the procedure deviated from accepted

medical practices and procedures, indicating

fault on the part of the Veterans Administra-

tion based on the data previously on file.

The findings of the Board of Veterans Appeals

are recited by way of background. The government

32a

made no such concessions at trial, and, indeed, vig-

orously disputed the plaintiff’s allegations of mal-

practice. Our findings on that subject are de novo

without reference to the Board’s decision.’

C. Was the Veterans Administration Physician

Guilty of Malpractice?

The drug neomycin was first discovered by Dr. Sel-

man Waksman in 1950. Soon thereafter, it was dis-

covered that the drug had nephrotoxic (kidney dam-

age) and ototoxie (eighth cranial nerve damage) side

effects. A substantial body of medical literature,

prior to April 1968, warned of the hazard of irre-

versible ototoxic effects, often including permanent

bilateral deafness. As we have noted in our Prelimi-

nary Statement, however, the battleground in the mal-

practice aspect of this case is more narrowly focused,

and concerns the knowledge in medical communities

similar to Wilkes-Barre and among orthopedists in

general, about the absorption propensity of neomycin

when used post-operatively in an irrigating solution.

The government offered the testimony of three or-

thopedic surgeons as expert witnesses: Dr, Richard

Godshall, chief of orthopedic surgery at Quakertown

and Grandview Hospitals in Bucks County, Pennsyl-

° The trial in this case was delayed considerably when, fol-

lowing that decision, the parties negotiated for many, many

months with a view towards a total resolution of the case. The

neyotiations proved unsuccessful. The trial was further de-

layed for considerable time while plaintiff, having discharged

previous counsel, sought new counsel,

33a

vania; Dr. Richard Kaplan, a Philadelphia orthopedic

surgeon associated with various teaching hospitals;

and Dr. Sanford Sternlieb, an orthopedic surgeon in

Wilkes-Barre, Pennsylvania and former instructor at

Jefferson Medical School in Philadelphia. Each of

the Government’s orthopedic experts testified that the

procedure employed in administering the neomycin to

Mr. Kubrick constituted proper and adequate treat-

ment as of April 1968, and that neomycin was fre-

quently used by orthopedic surgeons practicing in

Wilkes-Barre and similar medical communities in

1968 to irrigate and disinfect surgical wounds post-

operatively. Each of the government’s orthopedic ex-

perts testified that although the dangers of ototoxicity

when administering neomycin intramuscularly (IM)

and intravenously (IV) were generally recognized in

their respective medical communities in April 1968,

nevertheless, it was not then apparent that any sig-

nificant potential for absorption existed when the

drug was used as a washing agent ina 1. irrigating

solution.” These experts also testified that the irriga-

tion of plaintiff’s surgical wound in April 1968 with

the 1% solution of neomycin, for a period of twelve

to thirteen days, was appropriate since the practice

at the time was to continue the local antibiotic treat-

ment until the patient’s fever dropped and the infec-

‘Dr. Sataloff corroborated their testimony, although he

also testified that he knew about the problem and that, as

early 28 1968, he had visited numerous hospitals in Pennsyl-

vania to inform surgeons about the potential ototoxic dangers

of neomycin.

Bda

tion oubsided. Before considering this teatimony it

will ia helpful to summarize the position of plaintitl's

experta,

We firat identify the common ground between the

plaintiff's and defendant's experts, Plaintil’s experts

(id not take serious issue with the appropriateness of

the technique used by Dr. Wetherbee of making a

deep surgical wound to facilitate the draining of the

infection, Moreover, they agreed that it was appro

printe to use an antibiotic ins solution as a wound

irrigant ina hemovae system to “wash the tiseues”

and eradieate the infeetion, Additionally, they did

not dispute that neomyein is an effective antibiotic,

However, they seriously questioned its use in’ plain

til’ case,

The threshold medical problem, as plaintifs first

expert, Dr Linwood Tice, an eminent pharnacolo

pint, deseribed it, was to identify the “drug of choice.”

Dr. ‘Tice testified that, after the laboratory testa re

venled the nature of the offending organism Cataph)

it was clear that polyeillin (ampicillin) or perhaps

penicillin, but not neomyein, were the drugs of choice

hecause of the sensitivity of the staph in question to

those drugs and the absenee of potential side effeets,

Dr, Tice’s testimony introduced the distinetion be

tween the topical and parenteral use of a drug. A

typical parenteral use is by TV or TM injeetion be

neath the surface of the skin, where the body tissues

will absorb it and it will have a systemie effect, A

classical topienl use is by applieation to the skin sur

face where no such absorption is anticipated. The

Boa

partion agree that it was known in 1968 that paren

leral use of neomyein implicates grave risk of damage

lo the eighth cranial nerve and also of severe kidney

damage. Dr, Tiee testified that the administration

of neomyein in water soluble solution in deep tinauer,

even though as part of an evacuation (hemovaec) tube

aystem wasia parenteral use beenuse of the absorption

of the neomyein into the eapillaries and the blood sys

tem. Dr Tiee also testified that: (1) aeeording to

the VA Hospital reeords, the hemovae tube system

was not funetioning properly, increasing the risk of

absorption; (2) that the dosage of neomyein was ex:

cessive both in terma of hourly amount and duration;

(3) that the dangers of this use of neomycin were

known in the medical community and in the literature

in April 1968; "and (4) that audiometric tests should

have been made during the course of therapy as oa

precautionary menaure.®

Another expert witness for the plaintiff! was Dr,

Thomas Gain, a Philadelphia surgeon associated with

Dr. Tice, asa pharmacologiat, teatified about the neomyein

entry in the 196K edition of Physicians Deak Reference

C“PDR'), the atandard reference used by phyaiciana on the

propertion of different druga, to whieh he had contributed

That edition plainly warned of the potential ototoxicity of

heomyein, but it does not help with the factual question in

thin case because it did not addresn the diflerential cone

quences of various ways of administering the drug

Plaintiff never received an audiometric examination dur

ing the course of hia Veterans Administration Hoapital hor

pitalization in April 1968) At no time subsequent to the oper

ation on the morning of April 3, 1968, wan a blood tent,

urinalyaia or BUN performed; the latter teats would have

demonatrated nephrotoxic efecta of the drug,

36a

Hahnemann Hospital. Dr. Gain testified that there

was no way to construe this irrigation as topical, and

that it was plainly parenteral. Illustrations of topical

use given by Dr. Gain were applications to external

surfaces or mucous membranes, use as a rectal sup-

pository, or in highly limited quantity for “gut” steri-

lization as a preoperative measure. Dr. Gain de-

scribed the dosage administered to the plaintiff as

“astronomical.” He testified that the dangers of the

type of administration at issue were well known in

1968, and that the problem was well defined and out-

lined in the medical literature at that time. Indeed,

the systemic absorption problem was sufficiently well

known at that time, according to Dr. Gain, that ac-

ceptable medical practice involved monitoring of the

kidney function and possibly the hearing function

during any parenteral use.

Plaintiff’s final witness on this subject was Dr. JJ.

David Hoffman, an orthopedic surgeon associated with

Jefferson Hospital in Philadelphia. Dr. Hoffman tes-

tified trenchantly that by 1968 physicians at Jefferson

were keenly aware of the ototoxic dangers of using

neomycin in irrigating solution.” Moreover, Dr. Hoff-

man testified that the effect of using neomycin in this

fashion was singularly parenteral, not in the strictest

sense of direct intramuscular or intravascular intro-

duction, but because of its introduction into an open

bloody wound, confined in a cavity deep in the body

* Dr. Hoffman also testified that neomvcin, even in the mid-

1950's, was known to be “notoriously” ototoxic, and to be a

virtual “‘time bomb.”

37a

yet adjacent to capillary and lymphatic channels. Dr.

Hoffman described the surgically created irrigation

system as significantly exacerbating the absorption

problem. Under such a system, the tissues are bathed

and supersaturated in an airtight closure, but the

blood vessels are not closed off. Dr. Hoffman testified

that entry of the toxic material into the capillary sys-

tem was obvious, even from Newton’s Laws, and that

the dangers of this procedure should have been known

by any specialist—anywhere—in 1968.

Dr. Hoffman also testified that the hemovac system

was not functioning and that the dosage was extraor-

dinarily high—the “highest profusion” he had ever

seen, heightened by the nonfunctioning system. Addi-

tionally, he testified that neomycin was not the drug

of choice, but that penicillinase or chloromycetin

should have been used. In Dr. Hoffman’s view (and,

he said, that of the staff at Jefferson Hospital), neo-

mycin should be used only in exceptional circum-

stances, in the case of an extremely resistant mixed

infection. Plaintiff was not, he stated, so sick that

he needed such a dangerous drug.

We credit the testimony of Dr. Tice, Dr. Gain, and

Dr. Hoffman, as related above, and find that the gov-

ernment, acting through Dr. Wetherbee, was _ negli-

gent: (1) in the choice of neomycin as a drug for

treating the plaintiff’s condition in 1% solution as a

surgical wound irrigant; (2) in administering a con-

siderable overdosage; (3) in failing adequately to

monitor the effects of the dosage; and (4) in permit-

ting a malfunctioning hemovaec tube system to con-

38a

tinue in operation. Furthermore, we find that Dr.

Wetherbee’s negligence was the proximate cause of

plaintiff's sensorineural deafness.

There was also much testimony as to what had

heen reported in the medical literature as of April

1968 about dangers of administering neomycin as Dr.

Wetherbee did to the plaintiff. The government con-

ceded that in June 1969, an article was published in

the New England Journal of Medicine announcing

the apparent. potential for absorption of neomyein

when used in irrigating solution. Although the gov-

ernment concedes that the literature abounded with

declarations of the ototoxity of neomyein in other con-

texts, it contends that this June 1969 article was the

first such announcement to the medical community at

large of the dangers of using it for irrigation. Plain-

tiff’s experts on the other hand testified that the pre-

1968 medical literature, including textbooks, warned

of the dangers that neomycin could be absorbed into

the system and of the problems involved in using. it

in irrigating solutions. We credit the testimony of

plaintiff's experts that the medical literature as of

April 1968 contained sufficient and sufficiently wide-

spread information as to the ototoxicity and absorp-

tion properties of neomycin to have warned Dr. Weth-

erbee of the dangerousness and hence the impropriety

of his treatment."

'° We find merit in the reliance by plaintiff's experts upon:

(1) a 1958 article in New England Journal of Medicine on

the ototoxicity of neomycin; (2) a 1967 article on the treat-

ment of bone infections by closed irrigation with a non-toxic

89a

D. The Applicable Standard of Care

It is clear under Pennsylvania law that the conduet

of a physician is measured by no less than the stand-

ard of the average physician in the medical commu-

nity in whieh he practices or in similar communities.

We have also concluded that as to specialists or those

holding themselves out as specialists the standard is

a national one, ‘.e., the standard of the average spe-

cialist among the national community specialists. Sce

Discussion infra, The government contended at trial

not only that the applicable standard of care was that

followed by surgeons in the Wilkes-Barre area, or ¢

similar (small city) community, but also that this

standard was distinetly different from, and inferior

to, that followed in Philadelphia, and particularly at

teaching institutions in Philadelphia. (While we will

refer to the concept of “standard of care,” underlying

that is the requisite standard of knowledge of develop-

ments in medical research.) The plaintiff on the other

hand argued that any distinction between teaching

and non-teaching institutions was artificial and un-

tenable; that there was no difference in the applicable

detergent and various antibiotics, in the Journal of Bone &

Joint Surgery; (8) a 1967 text on deafness in childhood;

(4) a 1963 article on antibiotic ototoxicity in the British

Medical Journal; (5) a 1966 article on hearing loss in a child

following use of neomycin, in the Medical Annals of the Dis-

triet of Columbia; (6) various neomycin package inserts pre-

pared by the manufacturers; (7) a 1964 article on neomyvin

ototoxicity in the Archives of Otolaryngology; (8) a 1965

article on audiotoxicity and neophrotoxicity in the Journal

of the American Medical Association; and (9) a textbook en-

titled Principles and Practice of Antibotic Therapy.

40a

standard between Wilkes-Barre and Philadelphia; and

that in any event, the Wilkes-Barre (or similar lo-

‘ality) standard was breached. While the standard

of care question is principally a legal one, it has fac-

tual ingredients to which we now turn.

At the threshold, we find that Dr. Wetherbee held

himself out as an orthopedic surgeon, a specialist,

and was practicing orthopedic surgery on the plaintiff

even though he was not Board Certified at the time.

Next, based upon the testimony of plaintiff’s experts,

we find that there is essentially no difference in the

standard of orthopedic specialist care between Wilkes-

Barre and Philadelphia. We note in this regard, that

the two experts in orthopedic surgery produced by the

government, while both practicing in small communi-

ties (Wilkes-Barre and Quakertown, Pa.), were

trained in Philadelphia teaching institutions. We also

find that, at least with respect to the issues involved

in this case, any difference between the standard of

knowledge attributable to teaching hospitals and non-

teaching hospitals is so attenuated as to be non-exist-

ent. We reach that conclusion for several reasons.

First, we are concerned here not with some esoteric

aspect of medicine or rare phenomena, but with a

garden variety administration of an antibiotic to

treat a common disease with which orthopedic spe-

cialists are daily concerned. Second, we believe that

the wide and free interchange of scientific informa-

tion through reference works, medical journals, and

medical conferences is (and was in 1968) so broad

that it tends to homogenize the level of medical knowl-

Ala

edge about matters such as the properties and dan-

gers of various antibioties. Third, we find that there

was, in 1968, widespread knowledge of the risks of

using neomycin, which knowledge cut across the med-

ical community in its entirety. Finally, we find that

Dr. Wetherbee was in breach of the standard of care

applicable in Wilkes-Barre (or similar locality) in

1968 as well as of the national standard applicable

to orthopedic specialists at that time, because by ei-

ther standard he should have known that the course

of treatment which he followed was improper.

K. Damages

The plaintiff, now 48 years of age, was in good

health and possessed full normal hearing before his

treatment at the Wilkes-Barre VA Hospital." A life-

long resident of Northeastern Pennsylvania, he was

then employed by R.C.A. at Dunmore, Pennsylvania

as a maintenance machinist, making parts for ma-

chines and repairing machine parts. Plaintiff had

heen a machinist for a number of years, with prior

employment at the Tobyhanna Army Depot and Pas-

saic Aircraft. His earnings at RCA in 1967 were

$7,881; in 1968 he earned $6,347; and in 1969, the

last year he was able to continue working, he earned

$8,799. Plaintiff also enjoyed fringe benefits valued

at an additional 9%.

' Plaintiff did suffer from the residuals of a low back in-

jury incurred in the U.S. Army in Japan, for which he was

receiving a VA disability payment.

42a

The plaintiff’s hearing loss and tinnitus (ringing

in the ears) grew progressively worse after the acci-

dent. It is undisputed that he suffers from severe

bilateral sensory nerve deafness, which is irreversi-

ble. He has no serviceable hearing, and a hearing

aid is of no value to him. Plaintiff’s problem is a

function of his lack of capacity for discrimination;

while he can hear sounds and noises, they are as

though the utterers were speaking some unfamiliar

tongue. He is also unable to perceive, hence to enjoy

music. Fortunately, plaintiff is an excellent lip read-

er, and can communicate and carry on full and in-

telligent conversations through that vehicle. Plain-

tiff’s ability to hear some sounds, especially some bass

tone vowels, assists his lip reading. Plaintiff contin-

ues to suffer from tinnitus which will worsen over

the years

Plaintiff's hearing loss has led to a profound psy-

chiatric problem which has disrupted the fabric of

his family and personal life. Prior to the events in

question plaintiff was good natured, active in frater-

nal affairs, and an excellent family man. He has now

withdrawn into a shell. He sleeps and eats alone; he

shuns all forms of social intercourse and recreational]

activity, even with his family. He is constantly and

extremely irritable, distrustful of everyone around |

him, and profoundly depressed. He is intermittently

threatening, afflicted from time to time with barely

controllable rage, and oppressed by a feeling of hope-

lessness about his life.

A3a

Dr. Lord Lee-Benner, a psychiatrist who has ex-

amined and treated the plaintiff, testified that the

plaintiff suffers from severe depression,’ resulting

from his hearing loss and also from his consequent

inability to earn a living. He confirmed the relation-

ship between the symptoms we have just described

and the events which give rise to the government’s

liability, and stated that plaintiff was unable to per-

form any gainful employment because of his psy-

chiatric condition. While recommending psycho-

therapy (2 or 3 times per week), Dr. Lee-Benner’s

prognosis was guarded. We credit this testimony

except for the prognosis.

The psychiatrist who examined plaintiff on behalf

of the government, Dr. Joseph J. Peters, took a con-

siderably different view. To begin with, Dr. Peters

testified that plaintiff possessed a “pre-morbid’”’ per-

sonality before the events at issue in this case '' which

would in any event have led to an involutional melan-

cholia in plaintiff’s mid-fifties. Dr. Peters opined that

this condition predisposed plaintiff to serious sequelae

from the hearing loss. While he did not dispute that

plaintiff is seriously depressed and unable at present

to be gainfully employed,’ Dr. Peters testified that

if the present litigation were resolved favorably to

' Dr. Lee-Benner testified that plaintiff suffered from “psy-

chotic depression.”

' Dr. Peters defined that term as an obsessive, compulsive

personality disorder: ¢.g., obsessed with having to succeed,

but feeling that he is a failure.

'' Neither physician testified that plaintiff is unemployable

because of his hearing loss as opposed to his resulting psychi-

atric condition.

44a

plaintiff so that he felt vindicated, he could definitely

he rehabilitated with psychiatric care. We credit Dr.

Peters’ testimony and find that plaintiff can be re-

habilitated with psychiatric care.

We find that plaintiff has been unable to work

since January of 1970 because of his psychiatric con-

dition. His past loss of earnings, including loss of

fringe benefits, amounts to $94,000."" We believe and

find that plaintiff can be rehabilitated and resume

gainful employment within one year, if he receives

psychiatric care, medication, and some vocational

training. Dr. Saul Leshner, a vocational and rehabili-

tation expert, testified that functionally deaf people

can perform a wide range of jobs. He stated that

while plaintiff could not work in the vicinity of mov-

ing cranes or heavy equipment, he could perform all

sorts of bench work. He pointed to the printing in-

dustry as a place where functionally deaf people are

widely employed. Plaintiff could also do clerical work,

packaging, and assembly. Dr. Leshner testified that

plaintiff possessed the skills to perform all of these

jobs. He added that they would constitute down-

erading from his previous employment, which he

could not accept without psychiatric help, but that

he could perform them with its aid. We credit Dr.

Leshner’s testimony.”

‘° The parties have stipulated that this is the amount of

past loss should we find plaintiff totally disabled to date.

Dr. Leshner expressed his belief that plaintiff, a ma-

ch +t, could have become a tool and die worker at a con-

side.ably higher wage. We are not persuaded and refrain

from so finding.

45a

Based upon plaintiff’s background and personality

we find that plaintiff would have worked until he

Was past 62 years of age, or another 14 years from

date. We find that, because of his disability, he will,

after rehabilitation, be gainfully employed but with

a reduction in earning capacity of 30%. Over his

work life expectancy this will result in a loss of

earning capacity, after reduction to present worth

at 6% simple interest in accordance with Pennsyl-

vania law, in the sum of $69,250."

Needless to say, plaintiff’s pain and suffering is not

capable of precise measurement. While his mental

suffering should abate with treatment, it has been

acute from June 1968 to the present. We reincor-

porate here our previously stated detailed findings

about the destruction of the fabric of plaintiff’s per-

sonal and family life. And we note again that plain-

tiff is constantly depressed; he no longer goes to his

lodge where he was once extremely active; he eschews

fishing, bowling, and other recreational activities

which he used to enjoy; he is constantly irritable.

Unlike the psychiatric problems, the tinnitus (con-

stant ringing in the ears) is a disconcerting, indeed

'’ Included in this award is the full amount of plaintiff's

lost earning capacity for one year hence, during which time

he will require psychiatric care in order to be rehabilitated.

We calculate future loss of earning capacity on the basis of

the $14,183 per year the parties have stipulated the plaintiff

would now be earning. Pennsylvania law does not recognize

an inflationary or productivity factor for future earnings

loss. See Havens Vv. Tonner, 243 Pa.Super. 371, 365 A.2d 1271

(1976).

46a

tormenting, phenomenon which merits independent

consideration as an item of damage. However, even

that pales by comparison with the deafness which

will never abate. No purpose would be served by

discoursing with emotion about the spectre of deaf-

ness, for any human being caa grasp, at least in

some measure, its travail. Having seen the plaintiff

labor under his disability and having heard testi-

mony of its impact on him is sufficient for us to

grasp the magnitude of his tragedy. Plaintiff was a

normal human being living a full life; today he is

but a shell of his former self. We find that a fair

and reasonable sum to compensate the plaintiff for

past pain and suffering is $75,000 and that a fair

and reasonable sum to compensate plaintiff for his

future pain and suffering over his life expectancy *

is $75,000. Additionally, we find plaintiff has in-

curred past medical expense in the sum of $286 to

Dr. Sataloff and $2,000 to Dr. Lee-Benner.”” Finally,

we find that he will require the sum of $5,000 for

psychiatric treatment in the future in order to effect

rehabilitation so that he can resume gainful employ-

ment and a more normal family and personal life.

We turn now to the applicable principles of law.

‘* Plaintiff’s life expectancy is 25 years.

‘* We also find these sums to be fair and reasonable.

47a

III. Discussion

A. The Statute of Limitations

As we have noted in the Preliminary Statement,

the Act’s statute of limitations bars claims against

the United States except where they are presented

in writing within two years after the claim accrues.

The determination of when a claim accrues is a

matter of federal, not state law. Tyminski v. United

States, 481 F.2d 257, 262 (3d Cir. 1973). The test

which has been articulated, with considerable uni-

formity, to determine “when a claim accrues” is to

ascertain the point in time at which the claimant has

discovered, or in the exercise of reasonable diligence

should have discovered, the acts constituting the

alleged malpractice. Bridgford v. United States, 550

F.2d 978, 981 (4th Cir. 1977); Ciccarone v. United

States, 486 F.2d 253, 256 (3d Cir. 1973); Tyminski

v. United States, supra, at 263; Toal v. United

States, 438 F.2d 222, 224-25 (2d Cir. 1971); Ashley

v. United States, 413 F.2d 490, 492 (9th Cir. 1969) ;

Coyne v. United States, 411 F.2d 987, 988 (5th Cir.

1969); Brown v. United States, 353 F.2d 578, 579

(9th Cir. 1965); Beech v. United States, 345 F.2d

872, 874 (5th Cir. 1965); Kossick vy. United States,

330 F.2d 933, 935 (2d Cir.), cert. denied, 379 U.S.

837, 85 S.Ct. 73, 13 L.Ed.2d 44 (1964); Hungerford

v. United States, 307 F.2d 99, 102 (9th Cir. 1962);

Quinton v. United States, 304 F.2d 234, 240 (5th Cir.

1962).

The Quinton court, which originated this rule, de-

rived it from the “blameless ignorance” notion articu-

lated in Urie v. Thompson, 337 U.S. 163, 170, 69

48a

S.Ct. 1018, 1025, 98 L.Ed. 1282 (1949). Judge Tut-

tle described the Quinton rule as a “sensible and just”

alternative to the then majority state court rule that

a cause of action for malpractice accrues on the date

of the negligent act, even if the injured patient is

unaware of his plight.

The Quinton rule has received widespread accept-

ance; however, the parties here disagree about what

it means. The government reads the rule to mean

that the statute begins to run, without more, when

the plaintiff becomes aware that he has been injured

as the result of a physician’s treatment. The plain-

tiff, however, contends that the physician’s conduct

cannot be described as “acts constiiuting malpractice”

until the patient, concededly being required to apply

reasonable diligence, has some reason to beiieve that

the acts which caused him injury may have been

negligent. The government rejoins that the plaintiff

has semantically toyed with the rule, converting it

into one under which the statute does not begin to

run until he discovers that the acts constitute mal-

practice.

The foregoing dialogue suggests to us that the

syntax of the Quinton rule is less than crystal clear

and that the rule cannot be given a definite literal

meaning. The problems with literal interpretation

are, inter alia, demonstrated by the case where the

conclusion that acts of a physician which produced

pain or injury are negligent requires a sophisticated,

medically informed judgment. In reading Quinton as

requiring only a confluence of act, injury, and cause

49a

which were known, or should reasonably have been

known to plaintiff, the government thus appears to

suggest that Quinton posits a strong if not irrebut-

able presumption that knowledge of the causal re-

lationship between treatment and injury is sufficient

to alert a reasonable man that there may have been

negligence in his treatment and that he should there-

fore bring suit. The plaintiff disagrees. In his view,

where the patient has exercised reasonable diligence

in ascertaining the cause of his injury and where the

investigation, while demonstrating the relationship

between his treatment and injury, reveals no negii-

gence, the statute does not begin to run, just as in

the case where a patient was aware that a negligent

act was performed but unaware that the act caused

him harm.”

*° Such a case, and one inveighing against the government’s

simplistic reading of Quinton, is Portis v. United States, 483

F.2d 670 (4th Cir. 1973), remarkably similar in some aspects

to the case at bar. In Portis, the parents of the minor plain-

tiff learned in October 1963 that an Air Force nurse had

erroneously administered neomycin hypodermically rather

than orally as instructed. They did not learn, however, until

1969, that this earlier negligence on the part of the govern-

ment employee had caused their daughter’s loss of hearing.

Rather than holding that the statute of limitations beean to

run in 1963 when they learned of the acts constituting the

allered negligence—as a literal application of the accrual rule

would seem to require—the Court held that the “cause of

action for malpractice resulting in deafness did not accrue

until 1969.” 483 F.2d at 673. The basis of the decision was

that until 1969 the plaintiff and her parents were blamelessly

ignorant of the fact that the improper administration of

neomycin was the proximate cause of plaintiff’s deafness and

that it therefore would have been unreasonable to require

them to bring suit earlier.

50a

We believe that the government’s reading of Quin-

ton is simplistic and conceptually inaccurate, par-

ticularly given the “blameless ignorance”’ roots of the

Quinton rule. It would certainly appear to make

little sense to limit the application of the Quinton

rule to only certain kinds of blameless ignorance. In

Urie, supra, the Supreme Court did not believe that

the plaintiff, asserting a FELA claim, should be

bound to a running statute of limitations period

until his disease (silicosis), the subject of his claim,

became evident. The court reasoned that ‘blameless

igorance” should not result in a deprivation of rights,

explaining that “the traditional purposes of the

statutes of limitations . . . conventionally require the

assertion of claims within a specified period of time

after the notice of invasion of legal rights.” 337 U.S.

at 170, 69 S.Ct. at 1025 (emphasis added). Until

negligence reasonably appears, a plaintiff has no

notice that his rights have been invaded. As a prac-

tical matter it would be unreasonable to require, or

even suggest for protective purposes, that one who

is unaware after reasonable investigation that a

physician’s conduct breached a legal duty to him

must file suit alleging that some duty was breached.

Thus where negligence is such as to escape the notice

of one who reasonably investigates, we believe Urie

teaches that the limitations period should not yet be-

gin torun. See also n. 20, supra.

We agree with plaintiff, that where the patient

perceives the relationship between treatment and in-

jury but, notwithstanding diligence, has no reason to

5la

believe that there was any negligence in the treat-

ment, the statute does not being to run. Put differ-

ently, we read the Quinton test, adopted by the Third

Circuit in Tyminski, as creating a rebuttable pre-

sumption that knowledge of the causal relationship

between treatment and injury is sufficient to alert a

reasonable person that there may have been negli-

gence related to treatment. Before finalizing this

analysis we must examine the cases relied on by the

government, to support its interpretation of Quinton,

and other important cases in this area.

In Tyminski v. United States, supra, the veteran

was admitted to a VA hospital because of difficulty

in walking and increasing pain in his right side. A

diagnosis was made that there was a (congenital)

space-taking lesion of the thoracic area of the spinal

cord known as an arteriovenus angioma (AVA). Af-

ter exploratory surgery, Tyminski became paraplegic.

The Court of Appeals recounted the pertinent facts

as follows:

Tyminski was persistently informed by the [VA]

physicians that the paraplegia was due to the

natural progression of the congenital AVA. The

District Court, however, found that the para-

plegia was caused by post-operative bleeding

within the operative site which collected in the

space outside the dura, forming an _ epidual

hematoma and causing pressure on the spinal

cord. The pressure of the hematoma created a

block of the spinal cord. An epidural hematoma

in these circumstances, the District Court found,

requires immediate treatment consisting of a

52a

second operation for the purpose of removing the

accumulated blood and stopping the source of the

bleeding. The failure to re-operate and stop the

post-operative bleeding was found to be the proxi-

mate cause of the paraplegia. The defendant’s

negligence consisted in failing to recognize the

symptoms of paralysis as caused by the hema-

toma and in failing to re-operate and stop the

post-operative bleeding. [481 F.2d at 260]

After his discharge from the hospital, Tyminski

sought assiduously to establish a “service-connected

disablity that aggravated [his] condition and sent

[him] to the hospital for treatment.” Jd. His efforts

found his way to the VA. (Like Kubrick he was

aided by various service organization representatives,

and also some Congressmen.) However, the VA de-

nied relief, refusing to increase his disability rating

and assuring him (much as they did Kubrick) that

the condition was no fault of the VA. Various ap-

peals, in one of which “an error in medical judg-

ment” was averred, also came to naught; the VA

continued to tell Tyminski that it had committed

no malpractice in that his paraplegia resulted from

natural progression of the AVA. Suit was not brought

until 10 years after the initial AVA surgery.

Adopting the Quinton formulation, the Third Cir-

cuit upheld the finding of the District Judge that

Tyminski’s action (brought two years prior to his

death) was not time-barred against the government’s

contentions that by no later than June 9, 1964, two

and one-half years before the action was filed, Ty-

minski believed that there was or may have been

WRT bo ai Ae ~

53a

negligence arising from his surgery in the VA hospi-

tal. In dealing with the government’s contention, the

Court of Appeals first addressed the initial question

whether Tyminski knew more than two years before

suit was brought that there had been post-operative

bleeding in the operative site resulting in the forma-

tion of hematoma with the awareness that the hema-

toma caused the paralysis. The Court stated:

Only the knowledge that these acts occurred

would preclude Tyminski from asserting that

he did not discover the acts constituting the al-

leged malpractice. In each of the medical mal-

practice cases which have applied the federal

rule of accrual of claims the inquiry by the court

has been focused on the specific acts upon which

the claim for malpractice was based. See e.g.,

Toal v. United States, swpra (known retention

of pantopaque, an iodized radiopaque contrast

medium used in myelograms, in the plaintiff’s

lumbar sac); Ashley v. United States, supra

(use of a needle to draw blood from plaintiff’s

arm resulting in nerve damage); Brown v.

United States, supra, (use of excessive oxygen

known to have caused infant’s blindness). The

record amply supports the conclusion that Ty-

minski did not discover the acts constituting the

malpractice more than two years before the ac-

tion was brought. [481 F.2d 263-64].

Turning then to the remaining focus of its inquiry,

i.e., Whether Tyminski should in the exercise of rea-

sonable diligence have discovered the “acts” consti-

tuting malpractice, the Court of Appeals concluded

that Tyminski had exercised reasonable diligence be-

54a

cause of his persistence in attempting to ascertain

some medical basis for increasing his disability pay-

ments. The Court also concluded that his failure to

discover earlier the acts constituting malpractice was

not unreasonable because of: (1) the government’s

failure to inform him that injury might result from

the operation; (2) his reasonable belief that the in-

juries resulted from the natural progression of the

pre-existing congenital spine tumor; and (3) the per-

suasiveness of the medical opinions of the VA phy-

sicians that the natural progression of the AVA

caused his problems. In this regard, the Court also

stated:

The unanimous determination by the persons

reviewing Tyminski’s claim that the injuries

were due to the AVA is telling evidence sup-

porting the conclusion that Tyminski in the ex-

ercise of reasonable diligence should not have

discovered the existence of the acts of malprac-

tice upon which his claim in the District Court

was based. [/d. at 265]

Tyminski’s claims were thus held not to be time

barred.

Notwithstanding the government’s reliance on T'y-

minski, that case is helpful to the plaintiff in many

respects, especially in terms of the following factors:

(1) plaintiff’s diligence in pursuing the medical cause

of his deafness and in seeking vindication before the

VA; and (2) the persuasiveness of the VA doctors

frequent reaffirmations to him that there was no

medical error committed by the VA. The Third Cir-

Se aoe ee

55a

cuit did not find T'yminski’s persistence pursuing his

claim before the VA or even his scattershot allega-

tions of negligence sufficient to bar his claim and

neither do we with respect to Kubrick. However,

we must return to our conceptual analysis.

We find that Tyminski demonstrates the difficul-

ties of defining the notion of “acts constituting mal-

practice.” The Court’s opinion relates that notion to

the post-operative bleeding of which plaintiff was

unaware. But was that bleeding an “act of mal-

practice” distinguishable from the negligence of the

doctors in failing to recognize that the symptoms of

paraylsis were caused by the hematoma and in fail-

ing to reoperate and stop the bleeding? In such a

case it may be that a plaintiff cannot discover the

act which was the cause of his injury without also

discovering (or suspecting) negligence. Thus T'ymin-

ski itself calls into question whether the concept

of “acts constituting malpractice” can be meaningful

apart from a unitary test whereby the extent to

which a plaintiff must at least have reason to suspect

that negligence occurred is a factor. Indeed, more

often than not, there is no “act” constituting mal-

practice, but rather a failure to act which, in turn, is

a function of misjudgment about sophisticated and

technical medical matters. Such things are inher-

ently difficult for a claimant to perceive in the ab-

stract or without some revelation of negligence.”

*! Reasonably believing that deafness resulted as an un-

avoidable byproduct of necessary treatment for osteomyelitis

is not really very different from reasonably believing, as the

56a

Other circuits which have faced factual situations

akin to those at bar have injected into the equation

the ingredient of plaintiff’s realization that there

“may have been negligence.” In Brown v. United

States, supra, the Ninth Circuit said that the stat-

ute began to run when the plaintiff was “informed

as to the exact nature of the disability and its rela-

tionship to prior medical treatment,” which the court

found to represent “knowledge of facts sufficient to

alert a reasonable person that there may have been

negligence....” 353 F.2d at 580 (emphasis added).

And in Reilly v. United States, 513 F.2d 147 (8th

Cir. 1975), the Court ruled that the plaintiff had —

knowledge sufficient to alert a reasonable person that

there may have been negligence related to the treat-

ment .. .,” invoking the duty diligently to file a

claim. Jd. at 150.

Brown and Reilly reinforce our view of the follow-

ing: that while the premise of Quinton is that knowl-

edge of the causal relaticnship between treatment

and injury is generally sufficient to alert a reason-

able person that there may have been negligence

related to the treatment, this presumption of suffi-

plaintiff in Tyminski did, that paraplegia resulted from the

natural progression of AVA. In neither case can the plaintiff

be expected to file a malpractice claim given the limited state

of his knowledge. Ciccarone, supra, also in the Third Circuit,

is not helpful to the government because it emanates from

a simple factual context with a direct relationship between

a blue dye injection and the deterioration of plaintiff’s health

and because the Court found that plaintiff was sophisticated

in such matters and had consulted competent counsel within

the two-year period.

57a

ciency cannot be deemed to be an irrebuttable one;

that the exception often proves the rule; and that

Quinton must be applied on an ad hoc basis in each

case,

An important illustration of our point may be

found in Jordan v. United States, 503 F.2d 620 (6th

Cir. 1974). Jordan, a one-eyed World War II vet-

eran, entered a Veterans Administration Hospital in

November of 1968 to alleviate surgically a chronic

sinus condition. Immediately after the operation his

upper face became swollen to a point where he could

not see out of his good eye, the right one. Four or

five days later the swelling subsided and Jordan

noted that discolored areas appeared below both his

good right eye and his artificial left eye. Jordan was

also then aware that the pupil of his right eye wan-

dered to the right impairing his vision. Jordan

queried a VA physician while hospitalized about his

sight, and was told such was the rcsult of muscle

damage caused by the operative procedures involved

in dealing with his sinus condition. Shortly there-

after, upon being discharged from the hospital, Jor-

dan was told to return early in 1969 for corrective

eye surgery. Jordan was operated on unsuccessfully

in January and February of 1969. In the subsequent

months Jordan’s eyesight grew progressively worse,

forcing him to retire from his job with the Post Office

in February, 1970. Jordan continued to return to the

VA hospital for treatment of his sinus condition and

eye examinations, Finally, on June 7, 1971, during

one of his eye examinations, the examining doctor in-

58a

formed him that such visits were no longer necessary

as there was nothing they could do for the eye, and

that it was “too bad they screwed up your eye when

they operated on your nose.” Id. at 621 (emphasis

added). Jordan retained a lawyer who filed a claim

on his behalf with the VA on June 1, 1972.

The government, as in this case, filed a Motion to

Dismiss or in the alternative for Summary Judgment

on the grounds that plaintiff knew that treatment

he received while in a VA hospital four years prior

resulted in his injury and therefore the statute of

limitations had expired. That motion was granted

by the District Court.

The Court of Appeals, in reinstating Jordan’s Com-

plaint, specifically rejected government’s argument

that knowledge that the treatment rendered caused

the injury (i.e., knowledge of causation without

more) triggered the limitation period. Although the

evidence contained in the record proved that Jordan

knew in November 1968 that his loss of sight was a

result of muscle damage sustained in the sinus opera-

tion, he was unaware that the result was because of

improper performance until June 7, 1971. The Court

held that the statute of limitations had not expired

because plaintiff was blamelessly ignorant of the act

of malpractice prior to June 7, 1971:

It [the evidence] failed to show that this appel-

lant, in the exercise of reasonable diligence,

should have been aware that the muscle damage

may have been the result of the improper per-

formance of his sinus operation. Contrary to the

characterization of the district court and the

59a

government, neither the unsuccessful eye opera-

tions nor the other events established by the

record signified that anything had been done in-

correctly in November, 1968. They indicated

only that appellant’s injury was causing his loss

of vision and was apparently permanent, but

not that it was the result of malpractice. More-

over, these developments were not inconsistent

with appellant’s belief that the loss of his vision

was the inevitable consequence of the proper

procedures used by the doctors to treat his

“severe” sinus condition during the November,

1968 operation. Thus they provided no clue that

his belief, though based on a VA doctor’s response

to his questions, might be incorrect. |[/d. at 624

(emphasis added). ]

Jordan is quite similar to the case at bar.

As with the blindness that beset Jordan, the un-

usual and unexpected occurrence of deafness required

Kubrick to seek medical treatment and a diagnosis

of its cause. In both cases, the explanations received

consistently indicated an injury possibly compens-

able by an increased disability rating, though an in-

jury that had occurred through no fault on the part

of the Veterans Administration. Kubrick filed his

claim trying to receive compensation he thought to be

his due. As was the fate of Jordan, Kubrick was mis-

led into believing that his loss was not caused by any

fault of the Veterans Administration. The actions of

Kubrick were not dissimilar to the actions of any

unknowing layman unaware that an act of mal-

practice has been perpetrated upon him. Even more

60a

diligent than Jordan, Kubrick consulted with private

physicians to ascertain the facts concerning his situa-

tion, but blamelessly remained ignorant of the act of

malpractice until June 2, 1971, when Dr. Soma in-

formed him that neomycin should not have been ad-

ministered to him. The diligence factor is a most

important one. Indeed, we believe that Brown and

Ashley can be distinguished because the claimants

there failed to investigate unusual or unexpected oc-

currences,

In legal terms we have concluded that the Quinton

test creates a rebuttable presumption that knowledge

of the causal relationship between treatment and in-

jury is sufficient to alert a reasonable person that

there may have been negligence related to treatment.

We believe this formulation to be responsive to the

Third Circuit’s thinking as reflected in its recent

cases. This conclusion does not transform Quinton

into a purely subjective standard dependent on a

plaintiff’s state of mind; such a construction would

promote stale claims against which it would be in-

creasingly difficult to defend.” To the contrary, it

construes Quinton as positing an objective or rea-

sonable man standard in which the success of a plain-

tiff in tolling the statute depends not only upon his

exercising reasonable diligence, but also upon his

establishing that there was no reasonable suspicion

that there was negligence in his treatment. For, as

we have said above, we do not believe it reasonable

22 Indeed,:in this case, Dr. Wetherbee, the attending surgeon,

has died.

tan

6la

to start the statute running until the plaintiff had

reason at least to suspect that a legal duty to him

had been breached.

Turning to factual considerations, we have found:

(1) that plaintiff exercised all kinds of reasonable dil-

igence in attempting to establish a medical basis for

increased disability benefits; (2) that the results of

his inquiry contraindicated negligence; and (3) that

because of the technical and obscure nature of the

medical problem (involving the propensity of the

body to absorb a toxie antibiotic under a given mode

of administration) the plaintiff could not be expected

to draw any meaningful inferences that there had been

negligence in his treatment, or even to suspect. it.

Under these circumstances, we conclude that the

plaintiff has rebutted the Quinton presumption, and

cannot be deemed to have known of the “acts consti-

tuting malpractice” until his visit to Dr. Soma in

June 1971. Since plaintiff’s claim thus accrued in

June 1971, and since the plaintiff’s administrative

claim was filed in January 1973, this suit (filed in

September 1972) is not barred by the statute of

limitations.“ We turn now to the substantive mal-

practice issues.

** The government has cited to us Rosario v. United States,

531 F.2d 1227 (3d Cir. 1976), in support of its argument that

we lack subject-matter jurisdiction over plaintiff’s action be-

cause he failed to comply with 28 U.S.C. § 2675(a) requiring

him to file an administrative claim prior to instituting suit.

As indicated in our findings of fact (supra), plaintiff's com-

plaint was filed on September 14, 1972, and his form 95

administrative claim was filed on January 13, 1973 and re-

62a

B. The Malpractice Issues

1. The Applicable Standard of Law

The substantive malpractice issues before us are,

of course, governed by the Pennsylvania law. 28

U.S.C. § 1846(b) ; Ciccarone v. United States, supra.

We must therefore examine the Pennsylvania stand-

ard of care.

Dr. Wetherbee held himself out as a specialist. We

believe that Pennsylvania law provides that a special-

ist owes to his patient a higher standard of skill,

learning and care than a general practitioner. The

specialist:

jected on April 13, 1973. Obviously, the administrative filing

did not precede institution of this suit, but that filing did

occur within two years of the accrual of plaintiff’s claim so

that the “appropriate Federal agency [did receive a claim

presented in writing] within two years after such claim ac-

crue[d].” 28 U.S.C. § 2401. The government’s sole objection,

therefore, is to the fact that this suit was filed before the final

disposition of the administrative proceeding.

Rosario certainly confirms that a § 2675 (a) filing is a jur-

isdictional prerequisite to an action against the United States

under the Federal Torts Claim Act, but that case involved a

failure to file any administrative claim and does not support

the government’s argument in the present case. It is our view

that where the action is pursued to conclusion in federal

court, even though its filing preceded a timely administrative

claim, and where the administrative claim is disposed of prior

to trial and decision in the federal suit, that suit is ratified,

as it were, and the jurisdictional prerequisites are met, thus

mooting the government’s arguments of lack of subject-matter

jurisdiction. To hold otherwise would be to elevate form over

substance and erroneously presume a legislative intent to bar

a plaintiff’s claim purely because he did not go through the

technical procedure of refiling a complaint which was already

before the Court.

i os

63a

is expected to exercise that degree of skill, learn-

ing, and care normally possessed and exercised

by the average physician who devotes special

study and attention to the diagnosis and treat-

ment of [particular] diseases. Due regard must

of course be shown to the advanced state of the

profession at the time of the diagnosis or treat-

ment. [footnote omitted. ]

McPhee v. Reichel, 461 F.2d 947, 951 (3d Cir. 1972).

The McPhee formulation represents the Third Cir-

cuit’s prediction as to Pennsylvania law in the ab-

sence of a clear Pennsylvania Supreme or Superior

Court holding on the subject. The McPhee Court com-

mented, however:

This charge conforms with the Pennsylvania

practice of alerting the jury to the fact that a

defendant who is a specialist should be held to

a higher degree of care than a general practi-

tioner. The case law and scholarly comment also

support this instruction. Laub’s Pennsylvania

Trial Guide, Physicians and Surgeons, { ‘iapter

2, § 21, Pp. 258-9. [Footnote omitted.]

McPhee does not specifically refer to the trichotomy

in the malpractice case law—those cases which re-

quire physicians to adhere to the standard of. skill

and learning and care practiced by the average physi-

cian in the same (and only the same) locality; the

cases which expand the reference to encompass the

same locality and any similar locality; and the line of

cases which measures the physician conduct against

a “national standard.” Neither has the Pennsylvania

64a

Supreme Court formally addressed the question,” al-

though it has for a number of years followed the simi-

lar locality rule with respect to general practitioners.”

Whatever may be said for the reasonableness of simi-

lar locality rules circa 1977,” they cannot reasonably

24 Incollingo Vv. Ewing, 444 Pa. 263, 282 A.2d 206, 214 n.ba

(1971), expressly left open the question whether Pennsyl-

vania would continue to abide by the similar locality rule.

2° See, e.g., Smith v. Yohe, 412 Pa. 94, 194 A.2d 167, 170

(1963) ; Donaldson v. Maffucci, 397 Pa. 548, 156 A.2d 835

(1959). In these cases the Court in enunciating the similar

locality rule articluated it as applicable to ‘a physician who

is not a specialist ... .”” (Emphasis added.)

2° In Shilkret v. Annapolis Emergency Hospital Ass’n., 276

Md. 187, 349 A.2d 245 (1975), the Court of Appeals of Mary-

land traced the origins of the strict locality rule, noting the

grounds on which it has been attacked. The Court also traced

the history of the similar locality rule and the national stand-

ard, surveying the jurisdictions following the various rules.

The Maryland Court’s treatment is impressive. We agree with

the Maryland Court that the justification underlying the de-

velopment of the locality and similar locality rules have been

eroded by collateral developments in medical education and

broad societal change. As the Court noted:

Whatever may have justified the strict locality rule

fifty or a hundred years ago, it cannot be reconciled with

the realities of medical practice today. “New techniques

and discoveries are available to all doctors within a

short period of time through medical journals, closed

circuit television presentations, special radio networks

for doctors, tape recorded digests of medical literature,

and current correspondence courses.”’ Note, An Evalua-

tion of Changes In The Medical Standard of Care, 23

Vand.L.Rev. 729, 732 (1970). More importantly, the

quality of medical school training itself has improved

dramatically in the last century. Where early medical

education consisted of a course of lectures over a period

of six months, which was supplemented by apprentice-

ships with doctors who had even less formal education,

aes —

65a

there now exists a national accrediting system which has

contributed to the standardization of medical schools

throughout the country. Jd. n.16 [Footnote omitted.]

We agree with these courts [see citations which fol-

low] that justification for the locality rules no longer

exists. The modern physician bears little resemblance to

his predecessors. As we have indicated at length, the

medical schools of yesterday could not possibly compare

with the accredited institutions of today, many of which

are associated with teaching hospitals. But the contrast

merely begins at that point in the medical career: vastly

superior postgraduate training, the dynamic impact of

modern communications and transportation, the prolifer-

ation of medical literature, frequent seminars and con-

ferences on a variety of professional subjects, and the

growing availability of modern clinical facilities are but

some of the developments in the medical profession which

combine to produce contemporary standards that are not

only much higher than they were just a few short years

ago, but also are national in scope.

349 A.2d at 249, 252 (footnote omitted).

Several cases supporting the national standard of care for

specialists, most of which are referred to in Shilkret, are as

follows: Karp v. Cooley, 493 F.2d 408, 423 (5th Cir. 1973),

cert. denied, 419 U.S. 845, 95 S.Ct. 79, 42 L.Ed.2d 73 (1974)

(Texas law); Ayers v. Parry, 192 F.2d 181, 184 (3d Cir.

1951), cert. denied, 348 U.S. 980, 72 S.Ct. 1081, 96 L.Ed.

1871 (1952) (New Jersey law) ; Bruni v. Tatsumi, 46 Ohio 2d

127, 346 N.E.2d 673, 676 (1976); Kronke v. Danielson, 108

Ariz. 400, 499 P.2d 156, 159 (1972); Christy v. Saliterman,

288 Minn. 144, 179 N.W.2d 288, 302 (1970); Naccarato v.

Grub, 384 Mich. 248, 180 N.W.2d 788, 790-91 (1970)

(grounded principally upon reliance and expectations of the

public) ; Brune v. Belinkoff, 354 Mass. 102, 235 N.E.2d 793,

798 (1968). There are, however, cases of recent vintage

which adhere to the similar community standard: e.g., Kortus

v. Jensen, 195 Neb. 261, 237 N.W.2d 845, 850 (1976); Little

v. Cross, 217 Va. 71, 225 S.E.2d 387, 390 (1976) ; Coleman v.

Garrison, 349 A.2d 8 (Del. 1975) (where it appears that de-

fendant was a gynecological surgeon although his status as a

specialist is not discussed).

66a

be said to apply to those practitioners of the healing

art to whom the general practitioner refers patients

with ailments which are unusually complex or intract-

able or which pose a threat to well-being or life itself.

The language of the Maryland Supreme Court in

Shilkret vy. Annapolis Emergency Hospital Association,

note 26 supra, is apposite here:

Were we to adopt a standard tied to locality

for specialists, we would clearly be ignoring the

realities of medical life. As we have indicated,

the various specialties have established uniform

requirements for certification. The national

boards dictate the length of residency training,

subjects to be covered, and the examinations

given to the candidates for certification. Since

the medical profession itself recognizes national

standards for specialists that are not determined

by geography, the law should follow suit [Jd.

349 A.2d at 251].

We cannot conceive that the highest Court of Penn-

sylvania, a state containing numerous medical schools,

including some of the nation’s most prestigious, would

fail to adopt the national standard for specialists.

Our observation as to the direction of the law is

consistent with McPhee, which by our reading articu-

lates a complete description of the standard of care

required of a specialist, yet does not include a “simi-

lar locality” restriction. It is also consistent with our

independent reading of the Pennsylvania malpractice

eases involving general practitioners, which in apply-

ing a similar locality standard seem to highlight that

Omen ee

67a

the standard applies to general practitioners only.”

In short, we predict that the Pennsylvania Supreme

Court will apply a uational standard to specialists.”

There is another principle in the Pennsylvania law

of medical malpractice which must be noted because

the government relies upon it in this case: that a

physician is not liable for a mere error of judgment.

Smith v. Yohe, 412 Pa. 94, 194 A.2d 167, 170 (1963).

This rule is obviously a function of the fact that there

are so many elemnts which enter into a determination

of treatment, including the factor of judgment, that

faulty treatment will not constitute malpractice if the

physician has exercised the skill and knowledge re-

quired by the standard to which he is subject and if

his judgment takes into account all of the various

factors available to him. If, however, he breaches the

standard of care (or if the error of judgment is so

gross as to be inconsistent with the degree of skill

and knowledge which it is the duty of a physician to

possess), then, as in this case, the error of judgment

doctrine is of no avail.

We turn now to the application of the law to the

facts.

2. Did the Treating Physician Meet the Standard?

As we noted at the outset, the alleged medical mal-

practice in this case stems principally from Dr. Weth-

2" Note 25 supra.

** While not a basis for our decision in holding specialists

to a national standard of care, we raise the question whether

VA Hospitals, which are part of a national system, are not

perforce bound to a national standard by their very nature.

68a

erbee’s lack, not of skill in diagnosis or treatment as

such, but of knowledge of the properties of neomycin.

In order to determine whether Dr. Wetherbee’s treat-

ment met the Pennsylvania standard of what special-

ists should know, we incorporate here our findings of

fact on the extent of knowledge in the medical commu-

nity as to the capacity of neomycin to be absorbed

into the body tissues and bloodstream from a post-

surgical wound irrigating solution. Those findings

tell us that Dr. Wetherbee’s lack of knowledge, and

his concomitant treatment, violated the national stand-

ard for specialists because of the generalized knowl-

edge in the national community of orthopedic special-

ists of the hazards of neomycin and of its potentiality

for absorption in circumstances such as those created

by Dr. Wetherbee’s use of neomycin in 1% irrigating

solution through a closed hemovac system (at least

in such high and lengthy dosage). However, even if

a similar locality standard were to be applied, our

findings of fact support the conclusion that the infor-

mation in question was available to or known by the

average specialist in Wilkes-Barre to the same or

similar extent as the average specialist in Philadel-

phia. Wilkes-Barre, after all, is hardly a remote out-

post of civilization. It is the commercial and indus-

trial hub of the populous Wyoming Valley, adjacent

to the Scranton metropolitan area from which the

plaintiff hails.” And the Scranton Wilkes-Barre area

2°The combined population of Luzerne and Lackawanna

Counties of which Wilkes-Barre and Scranton respectively

are the County seats is over 576,000.

Dies ins cccerie gece

69a

is only two hours by automobile from either Philadel-

phia or New York. Specialists in Wilkes-Barre re-

ceive the same medical journals as those in Philadel-

phia and New York, attend the same specialist con-

ventions, ete.

In sum, our findings from the evidence compel the

legal conclusion that Dr. Wetherbee violated the

standard of care imposed upon him by law because

he administered excessive quantities of neomycin to

the plaintiff over an extended period of time through

an imperfectly functioning hemovac tube system, and

also because he failed to utilize polycillin (ampicillin)

or penicillin, the true drugs of choice in the situation,

given the ototoxic hazards of neomycin. While on a

national standard the plaintiff would have succeeded

by a very substantial margin, because of these con-

clusions, under the similar locality test, plaintiff has

at least established his case by a fair preponderance

of the evidence.” Finally, we conclude that what was

involved was not mere error in judgment but a lack

of skill or knowledge as measured, of course, by the

level of medical knowledge in April, 1968.

°° We note that the doctor’s failure to use the (correct) drug

of choice does not appear to implicate any difference between

a national and similar locality standard. Neither would his

permitting a poorly functioning hemovac tube system to con-

tinue in operation. And if the nurses were responsible for

permitting the hemovac tube system to fail that would not

help the government which is responsible for their conduct.

70a

IV. Conclusion

We have found that plaintiff’s administrative form

95 claim was timely filed and have concluded that

this suit, although begun prior to his administrative

claim, was not vitiated where the complaint was still

on the docket after the rejection of the administra-

tive claim. We have found that Dr. Wetherbee

breached the standard of care with which he is

charged by Pennsylvania law and that as the proxi-

mate result of his negligence, the plaintiff suffered a

severe bilateral sensorineural hearing loss as well as

serious emotional problems. And we have found that

plaintiff is entitled to recover damage for his past lost

earnings, loss of future earning capacity, past and

future pain and suffering, and past and future medi-

cal expense in the total sum of $320,536.00. Accord-

ingly, we enter the following Order.

ne anedyets

Tla

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 77-2888

WituiaM A. Kusrick

v8.

UNITED STATES OF AMERICA, APPELLANT

(D.C. Civil Action No. 72-1815)

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Present: ADAMS, WEIS and GARTH Circuit Judges.

JUDGMENT

This cause came on to be heard on the record from

the United States District Court for the Eastern

District of Pennsylvania and was argued by counsel

on June 7, 1978.

On consideration whereof, it is now here ordered

and adjudged by this Court that the judgment of the

said District Court, filed July 25, 1977, be, and the

same is hereby remanded for the limited purpose of

reducing the amount of the judgment by the amounts

paid to the date the set-off is applied, and affirmed

in all other respects. Costs taxed against appellant.

ATTEST:

/s/ Frances R. Matysik

Acting Clerk

July 27, 1978

72a

APPENDIX D

IN THE

UNITED STATES DISTRICT COURT

FOR THE

EASTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 72-1815

WILLIAM A. KUBRICK

UNITED STATES OF AMERICA

ORDER

AND NOW, this 22nd day of July, 1977, in con-

sideration of the foregoing Opinion, ¢ortaining find-

ings of fact and conclusions of law, it is ORDERED

that judgment be entered in favor of the plaintiff

and against the government in the sum of $320,536.00.

BY THE COURT:

/s/ Edward R. Becker

EDWARD R. BECKER, J.

73a

APPENDIX E

Apr. 18, 1973

021

C 17 381 329

KUBRICK, William A.

CERTIFIED MAIL

Mr. Michael I. Luber

Attorney at Law

1420 Walnut Street

11th Floor

Philadelphia, Pennsylvania 19102

Re: Administrative Tort Claim—

William A. Kubrick

Dear Mr. Luber:

This is in reference to the above-captioned adminis-

trative tort claim filed with this agency.

A review of the facts and circumstances connected

with this case reveals that the claim of Mr. Kubrick

was not filed within the two-year statute of limita-

tions provided by Section 2401(b) of the Federal

Tort Claims Act, 1346(b), 2671, et seq. Accordingly,

this agency is without jurisdiction to consider the

claim.

Section 2401(b) provides that a tort claim adminis-

tratively denied may be presented to a federal dis-

trict court for judicial consideration. Such suit may

74a

be initiated within six months after the date of mail-

ing of the notice of denial. For purposes of this pro-

vision, this letter will constitute a denial of this

. f

claim. >

Sincerely yours,

JOHN H. KERBY

Assistant General Counsel

ec: Chief Attorney

VAC, Philadelphia, PA

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.