Petition — Strom v. United States

Office Supreme Court, U.S.

= i | ;

Ws 2206 JUN 2.91981

In the Supreme Court.

OF THE

United States

Ocroser TERM, 1980

Sopuia T. Strom,

Petitioner,

VS.

Tue Unitep States or America, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Matcoum L. McPHEE

1530—29th Avenue

San Francisco, CA 94122

Telephone: (415) 826-8811

Attorney for Petitioner

BOWNE-PERNAU WALSH ¢ 190 NINTH ST. © &.F., CA 94103 © (415) 864-2300

QUESTIONS PRESENTED FOR REVIEW

1. Did the District Court and Court of Appeals err in

weighing the evidence and drawing inferences against pe-

titioner contrary to Rule 56(e) of the Federal Rules of

Civil Procedure.

2. Did the District Court err in holding that petitioner’s

claim was barred by the two-year statute of limitations

when petitioner was under the exclusive care and treatment

of the defendants until the time of the discovery of the

alleged medical negligence.

3. Did the District Court and Court of Appeals err in

granting defendants’ Motion for Summary Judgment as a

triable issue of fact was presented by petitioner as to the

time of her discovery of defendants’ negligent treatment?

iii

TABLE OF CONTENTS

Questions presented for review

I

Opinion below

II

Jurisdiction

I

Provisions involved

IV

Summary of argument

V

Argument

A. In determining whether a motion for summary

C.

Conclusion

judgment is proper, the court cannot weigh

evidence and must, if it draws inferences from

the evidence presented, find in favor of the

party opposing the motion for summary judg-

ment

The rule of Kossick v. United States should be

applied to the case at bar in reversing the judg-

ment of the trial court and court of appeals ....

Federal law requires that a motion for sum-

mary judgment may not be granted where a

triable issue of fact is presented to the court

ee

11

15

iv

TABLE OF AUTHORITIES CITED

Cases

Page

Accardi v. United States (S.D.N.Y. 1973) 356 Fed.

Supp. 218 5, 11

Carr v. The City of Anchorage (9th Cir. 1957) 243

F.2d 482 13

Exnicious v. United States (10th Cir. 1977) 563 F.2d

418 ee

Goodman v. Mead, Johnson & Company (3rd Cir.

1976) 534 F.2d 566 4,9

Hanna v. United States Veterans’ Acministration Hos-

pital (3rd Cir. 1975) 514 Fed.2d 1092 3, 4, 5,9

Hungerford v. United States (9th Cir. 1962) 307 Fed.

2d 99 3,5

Kossick v. United States (2nd Cir. 1964) 330 F.2d 933

‘ we 5, 11, 12

N.L.R.B. v. Smith Industries, Inc. (5th Cir. 1968) 403

F.2d 889 13

Poller v. Columbia Broadcasting System, Inc. (1962)

368 U.S. 464; 7 Lawyers Edition, 2d, 458; 82 S.Ct.

486 3,8

Sheets v. Burman (5th Cir. 1963) 322 Fed.2d 277 ........ 3

Soria v. Oxnard School District Board of Trustees

(9th Cir. 1973) 488 F.2d 579 4

United States v. Diebold, Inc. (1961) 369 U.S. 654; 8

Lawyers Edition, 2d, 176, 82 S.Ct. 993 3, 4,9

United States v. Western Electric Company (9th Cir.

1964) 409 F.2d 1377 4,8

Vv

Tasie or AuTnHorities Crrep

Rules

Page

Federal Rules of Civil Procedure, Rule 56(e) ....i, 3, 12,13

Rules of the Supreme Court, Rule 19(1)(b) ................ 3

Statutes

28 U.S.C.:

Section 1254(1) .... 3

Section 1291 2

Section 1346(b) 2

Section 2401(b) 2, 3,7

Section 2671, et seq. (Federal Torts Claims Act) ...... 6, 7

In the Supreme Court

OF THE

United States

Octoser TrRM, 1980

Sopuia T. Strom,

Petitioner,

Vs.

Tue Unirep States or America, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

I

OPINION BELOW

This is an appeal from the Judgment entered on April 3,

1981, by the United States Court of Appeals for the Ninth

Circuit affirming an Order of Dismissal by the Federal

District Court for the Northern District of California, the

Honorable Samuel Conti presiding.

The original appeal in this matter was from an Order of

Dismissal entered on August 17, 1978, by the United States

District Court for the Northern District of California.

a,

The underlying action was brought by petitioner Sophia

T. Strom against the United States of America, The United

States Public Health Service Hospital and its employees,

James Kauth, M.D., and Edward Falces, M.D., for medical

malpractice in treatment received by petitioner on June 21,

1971, at the United States Public Health Service Hospital

located in San Francisco, California.

The District Court’s jurisdiction was invoked pursuant

to 28 U.S.C, Section 1346(b).

The District Court’s order of August 11, 1978 certified

that it was the opinion that the claim by petitioner Sophia

T. Strom was not filed within the two-year period after the

claim accrued under Section 2401(b).

Petitioner filed a timely Notice of Appeal under 28 U.S.C.

Section 1291. The case was argued on July 8, 1980, before

the Ninth Circuit.

On April 3, 1981, the Court of Appeals for the Ninth

Cireuit rendered its Memorandum Opinion in this matter

affirming the judgment of the trial court. The Court stated

that it was its opinion that petitioner had enough informa-

tion concerning the potential medical negligence of the

defendants that as a matter of law her cause of action

began to accrue from March, 1973, and that the filing of

the Coniplaint on March 10, 1976, was beyond the two-year

limitations period and, therefore, untimely. The Opinion

of the United States Court of Appeals for the Ninth Cir-

cuit is printed in the Appendix, infra (A. 1-7).

pa

JURISDICTION

The jurisdiction of the Court rests on 28 U.S.C. § 1254(1)

and Rule 19(1)(b) of the Rules of the Supreme Court.

It

PROVISIONS INVOLVED

Rule 56(e), Federal Rules of Civil Procedure. 28 U.S.C.

2401(b).

IV

SUMMARY OF ARGUMENT

It is established law that in an action for medical

negligence pursuant to the Federal Torts Claims Act, the

claim accrues when the claimant discovers, or in the exer-

cise of reasonable diligence should have discovered, the

acts constituting the alleged malpractice. Hungerford v.

United States (9th Cir. 1962) 307 Fed.2d 99; Hanna v.

United States Veterans’ Administration Hospital (8rd Cir.

1975) 514 Fed.2d 1092; Sheets v. Burman (5th Cir. 1963)

322 Fed.2d 277.

Rule 56 of the Federal Rules of Civil Procedure pro-

vides that a motion for summary judgment may be granted

only if there is no triable issue of material fact, and the

moving party is entitled to judgment as a matter of law.

Rule 56, Federal Rules of Civil Procedure; Poller v. Co-

lumbia Broadcasting System, Inc. (1962) 368 U.S. 464; 7

Lawyers Edition, 2d, 458; 82 S.Ct. 486; United States v.

Diebold, Inc. (1961) 369 U.S. 654; 8 Lawyers Edition, 2d,

176, 82 S.Ct. 993.

Further, it is established law that in ruling on a motion

for summary judgment, it is improper for the judge to

4

weigh the evidence presented by affidavit: United States

v. Western Electric Company (9th Cir. 1964) 409 F.2d

1377; Hanna v. United States Veterans’ Administration

Hospital (3rd Cir. 1975) 514 F.2d 1092; Soria v. Oxnard

School District Board of Trustees (9th Cir. 1973) 488

F.2d 579. It is also established law that on a motion

for summary judgment, the moving party’s affidavits and

moving papers are to be strictly construed and that if the

court draws inferences from the evidence presented, it

must be viewed in the light most favorable to the opposing

party. Goodman v. Mead, Johnson & Company (8rd Cir.

1976) 534 F.2d 566; United States v. Diebold, supra; Ex-

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

From the outset, it is apparent that the Judge of the

United States District Court not only weighed the evidence

presented by the moving and opposing affidavits, but also

inferred certain facts which he attributed to. petitioner in

violation of the well-settled principles involving motions

for summary judgment. To allow the District Court to

grant a motion for summary judgment based on entries

from medical records without the opportunity for peti-

tioner to cross-examine the defendant-treating physician

is a violation of one of the cardinal principles upon which

our judicial system is based, to-wit: that trials should be

on the merits and not based on unsworn medical records.

To allow a ruling such as this to stand is analogous to

the story of the captain’s log in which the first mate made

the entry “that the captain was not drunk today.”

Both the District Court and the United States Court of

Appeals did not pass on an issue which has been presented

and which holds that the statute of limitations with regard

5

to medical malpractice actions is tolled while the patient

remains under exclusive treatment of the defendants. In

Kossick v. United States (2nd Cir. 1964) 330 F.2d 933, the

Court of Appeals for the Second Circuit held that during

a patient’s continuous treatment by the allegedly negligent

doctor, the limitation period does not commence to run.

This view has been followed in Accardi v. United States

(S.D.N.Y. 1973) 356 Fed.Supp. 218.

Such a rule should be applied to the petitioner in light

of the fact that petitioner had been treated exclusively

with regard to her nasal problems by Dr. Kauth, the al-

legedly negligent physician, and was at no time advised

by him of the reason for the recommendation of future

surgery.

Finally, under the reasoning of Hengerford and Hanna,

it is clear that where a triable of fact exists as to the time

of discovery of the medical negligence, summary judgment

is improper. According to the declarations filed and con-

sidered by the District Court, petitioner alleged that she

did not discover that her breathing problems were the

result of the negligence of the defendant-physicians until

she was examined on March 19, 1974, by Dr. Sherman, a

private physician. Defendants, without filing any declara-

tion of the treating physician, Dr. Kauth, alluded to entries

in the medical records that Dr. Kauth advised Mrs. Strom

that a new and different operation was necessary in March

of 1973. Therefore, there existed a disputed issue of fact

as to the time when petitioner discovered the medical negli-

gence of defendants and the District Court and the grant-

ing of the summary judgment was improper.

V

ARGUMENT

A. IN DETERMINING WHETHER A MOTION FOR

SUMMARY JUDGMENT IS PROPER, THE COURT

CANNOT WEIGH EVIDENCE AND MUST, IF IT

DRAWS INFERENCES FROM THE EVIDENCE

PRESENTED, FIND IN FAVOR OF THE PARTY

OPPOSING THE MOTION FOR SUMMARY JUDG-

MENT

This is an action brought by petitioner, Sophia T. Strom,

pursuant to the Federal Torts Claims Act, 28 U.S.C. See-

tion 2671, et seq., for medical malpractice as a result of the

rhinoplasty operation performed by the physicians at the

United States Public Health Service Hospital in San Fran-

cisco, California, on June 21, 1971. From the time of the

operation on June 21, 1981, petitioner was under the ex-

elusive care and treatment concerning her nasal problems

by Dr. James Kauth, the physician who performed the

rhinoplasty operation.

On March 19, 1974, after heing urged by Dr. Kauth to

have a new and different operation performed on her nose,

petitioner consulted Dr. Allen Sherman, a private physi-

cian in San Francisco, California. At the time of the con-

sultation with Dr. Sherman, petitioner was advised that

the deviated septum which was causing her breathing prob-

lems, was caused by the operation performed on June 21,

1971.

On Mareh 10, 1976, petitioner filea her claim against the

United States of America, the United States Public Health

Service Hospital, Drs. James Kauth and Edward Falces.

7

On December 3, 1976, appellant, representing herself, in

propria persona, filed her complaint for medical malprac-

tice in the United States District Court for the Northern

District of California. On November 10, 1977, a Substitu-

tion of Attorneys was filed and for the first time petitioner

was represented by counsel.

On March 13, 1978, petitioner filed her amended com-

plaint for medical malpractice, alleging negligence in the

rhinoplasty operation performed on June 21, 1971, and

further alleging that she did not discover that said treat-

ment had been negligently performed until March 19, 1974.

On May 3, 1978, the defendant United States of America

noticed the taking of the deposition of petitioner for May 9,

1978. On June 29, 1978, petitioner’s deposition was tran-

scribed and delivered to her. On July 21, 1978, defendants

filed a motion for summary judgment on the grounds that

petitioner’s claim was barred for failing to timely file a

claim against the United States of America pursuant to

28 U.S.C. Section 2401(b).

On August 8, 1978, appellant filed a memorandum of

points and authorities and declarations in opposition to

said motion for summary judgment.

On August 11, 1978, United States District Court Judge

Samuel Conti issued an order granting the Government’s

motion for summary judgment on the ground that the

claim of petitioner was not filed within the two-year period

after the claim accrued under the Federal Tort Claims Act.

It has long been held that the summary judgment motion

is one which should only be granted on undisputed facts

and the rendering of the judgment is a matter of law. In

8

Poller v. Columbia Broadcasting Systems, Inc. (1962) 368

US. 464, 7 L.ed. 2d 458, 82 S.Ct. 486, this Court stated:

“We believe that summary procedure should be used

sparingly in complex antitrust litigation where motive

and intent play leading roles, the proof is largely in

the hands of the alleged conspirators and hostile wit-

nesses. It is only when the witnesses are present and

subject to cross-examination that their credibility and

the weight to be given their testimony can be apprised.

Trial by affidavit is no substitute for trial by jury

which so long has been the hallmark of ‘even-handed

justice’.”

Petitioner’s case is a classic example of trial by affidavit

which cannot be tolerated in a society based on trial by

jury. To allow a motion for summary judgment to be

granted based strictly on the unsworn medical records of

a physician who treated petitioner who did not have an

opportunity to cross-examine the physician under oath, is

clearly not a case of even-handed justice.

The granting of the summary judgment in this case re-

minds one of the oft-told story of the captain’s log. The

first mate enters the captain’s quarters and obtains the log

and therein writes “the captuin was not drunk today.” One

can draw at least two inferences from the notation entered

by the first mate.

In the United States v. Western Electric Company (9th

Cir. 1964) 409 F.2d 1377, the Court of Appeals for the Ninth

Cireuit reversed a judgment based on the granting of

Government’s motion for summary judgment on the ground

that the trial court erred in weighing the evidence and

9

resolving the issues rather than determining that there

were issues to be resolved at trial. The Court stated:

“Although the summary judgment rule does not state

any different requirement for opposing affidavits, the

movant’s affidavits the papers supporting the movant

will be closely scrutinized whereas the opponent’s will

be indulgently treated.”

This view was followed in Hanna v. United States

Veterans’ Administration Hospital, supra, a medical mal-

practice action. The Court of Appeals for the Third Cir-

ent reversed the District Court’s order granting the Gov-

ernment’s motion to dismiss on the grounds that the

suit was barred by the two-year statute of limitations.

The Court of Appeals held that the trial court had erred

in resolving a disputed factual issue, had seized upon

date within the limitations period and coupled it with

other testimony and concluded that the plaintiff knew, or

should have known, his condition was caused by the de-

fendants’ negligence.

Further, it is established law that in regard to motions

for summary judgment pursuant to the Federal Rules of

Civil Procedure that if a choice of inferences are to be

drawn from the subsidiary facts contained in the affidavits,

exhibits and depositions, the inferences to be. drawn from

the underlying facts contained in such materials must be

viewed in the light most favorable to the party opposing

the motion. United States v. Diebold, Inc., supra.

This view has also been followed in céses involving

medical malpractice claims against the United States.

In Goodman v. Mead, Johnson & Company, supra, the

Court of Appeals stated:

10

“Inferences to be drawn from the underlying facts

contained in evidentiary sources must be viewed in

the light most favorable to the party opposing the

motion. The non-movant’s allegations must be taken

as true and when these assertions conflict with those

of the moveant, the former must receive the benefit of

the doubt.”

It is obvious from a review of the order of the trial

court that the Court weighed the evidence. At page 125, the

Court stated:

“It is not disputed that plaintiff had breathing diffi-

culties that developed soon after the operation in

1971, that Dr. Kauth diagnosed a deviated septum in

March and May of 1973 and recommended surgery to

correct the condition and that Dr. Sherman in 1974

diagnosed a deviated septum. In view of plaintiff’s

possession of this inform...ion from Dr. Kauth and its

nature concerning plaintiff’s nose, the Court concludes

that plaintiff was put on notice as early as March

1973 that ‘there may have been negligence relating to

the grievance’ made in this action and through the

exercise of reasonable diligence plaintiff should have

discovered the acts constituting malpractice.”

It is also quite obvious that the trial court drew every

inference possible against petitioner to eliminate her claim

for malpractice in derogation of the rules that opponent’s

declarations and affidavits are to be liberally construed.

This is obvious from the portion of the Court’s order at

page 125, lines 11 through 19, in which the Court stated:

“Plaintiff may have arguably been misled by Dr. Kauth

into believing her breathing problem would ‘resolve

itself’ and therefore not require her to bring suit dur-

11

ing that period. Exnicious v. United States (10 Cir.

1977) 563 F.2d 418. However, when it continued for

nearly two years in which time Dr. Kauth advised that

an operation for a deviated septum should be under-

taken, at that time plaintiff was apprised of sufficient

facts to alert a reasonable person that there may have

been negligence in the original operation in 1971.”

One would be led to believe that petitioner, a nat-

uralized U.S. citizen of Denmark should be imputed

the knowledge of an ear, nose and throat specialist.

This cannot be the type of inferences that can be drawn

when dealing with parties of disparity in knowledge, edu-

cation and resources.

The Court should, therefore, reverse the judgment of the

Court of Appeals for the Ninth Circuit and remand this

matter to the United States District Court for the Northern

District of California for trial on the merits.

B. THE RULE OF KOSSICK V. UNITED STATES

SHOULD BE APPLIED TO THE CASE AT BAR

IN REVERSING THE JUDGMENT OF THE TRIAL

COURT AND COURT OF APPEALS

In Kossick v. United States (2nd Cir. 1964) 330 F.2d

933, the Court of Appeals for the Second Circuit held that

the statute of limitations regarding claims made for medi-

cal malpractice under the Federal Tort Claims Act are

tolled as long as the patient/physician relationship con-

tinues. This case has been followed by the New York Dis-

trict Court in Accardi v. United States (S.D. N.Y. 1973)

356 F. Supp. 218. This rule is apparently founded on the

basis that read into every federal statute of limitations is

12

an equitable doctrine that if facts are concealed from the

claimant, the time does not begin to run.

In Fitzgerald v. Seamans (3rd Cir. 1977) 553 F.2d 220,

the Court stated:

“Read into every federal statute of limitations, includ-

ing the adoption of an analogous local statute of lim-

itations, is the equitable doctrine that any case of the

defendant’s fraud or deliberate concealment of mate-

rial facts relating to his wrongdoing, time does not

begin to run until plaintiff discovers, or by reasonable

diligence could have discovered, the basis of the

lawsuit.”

Petitioner was continuously and exclusively under the

care and treatment of Dr. Kauth with regard to her nasal

problems from the time of the operation on June 21, 1971,

until March 14, 1974, when she sought consultation with

Dr. Allen Sherman. During the period she was not treated

by any other outside physicians. Based on the equitable

principles involved in cases asserting the statute of limita-

tions, this Court should hold that the rule applied in Kos-

sick, supra, should be applied and the judgment reversed.

C.

FEDERAL LAW REQUIRES THAT A MOTION

FOR SUMMARY JUDGMENT MAY NOT BE

GRANTED WHERE A TRIABLE ISSUE OF FACT

IS PRESENTED TO THE COURT

Federal Rule of Civil Procedure 56(e) provides as

follows:

“(e) Motion and proceedings thereon. The motion

shall be served at least ten days before the time fixed

for hearing. The adverse party prior to the date of

13

hearing may service opposing affidavits. The judg-

ment sought shall be rendered forthwith if the plead-

ings, depositions, answers to interrogatories, and

admissions on file together with the affidavits, if any,

show that there is no genuine issue as to any material

fact that the moving party is entitled to judgment as

a matter of law. A summary judgment, interlocutory

in nature, may be rendereu on the issue of liability

alone, although there is a genuine issue as to the

amount of damages.”

In Carr v. The City of Anchorage (9th Cir. 1957) 243

F.2d 482, the Court of Appeal stated:

“Where pleadings and affidavits raise certain disputed

questions of fact, they must all be resolved in favor

of appellants for the purpose of considering the

motion for summary judgment and the appeal there-

from. This is true because a motion for summary

judgment is improper where there is left unresolved

a genuine issue as to any material fact. Rule 56(e)

Federal Rules of Civil Procedure.”

N. L. R. B. v. Smith Industries, Inc. (5th Cir. 1968) 403

F.2d 889, the Court of Appeal stated:

“While a party may not avoid a summary judgment

merely by denying the opponent’s allegations, Erick-

son v. U. 8. (5th Cir. 1965) 395 F.2d 512, it should

‘be granted only .. . where it is quite clear what the

truth is.’ National Screen Service Corporation v. Poster

Exchange, Inc. (5th Cir. 1962) 305 F.2d 647.”

In motion for summary judgment, there is clearly no

way in which the Court could ascertain the truth of the

allegations of defendants without allowing the deposition

of defendant, Dr. Kauth, to be taken. Rather than denying

14

the motion for summary judgment without prejudice to

later renewal after further discovery had been completed,

the Court merely drew all inferences against petitioner

and rendered the judgment according to its own feelings.

Such abuse and avoidance of trials on the merits should

not be countenanced.

In the case at bar the petitioner Sophia T. Strom’s

complaint alleged that she did not discover that the defen-

dant’s treatment had been negligent until March 19, 1974.

In her affidavit in opposition to the motion for summary

judgment, she alleged that she did not discover that the

deviated septum was caused by the operation performed

at the Public Health Service Hospital until March 19, 1974.

The points and authorities in support of the motion for

summary judgment made by the defendants only aver to

the fact that defendant, Dr. Kauth, advised her that she

had a deviated septum in March of 1973. Nowhere in the

defendant’s moving papers is it alleged that Dr. Kauth

advised petitioner that the deviation was caused by the

operation performed on June 21, 1971.

Therefore, there appears to be a disputed issue of fact

as to the time when petitioner, Sophia T. Strom, discov-

ered that her problems were caused by the operation on

June 21, 1971, and under the well-settled principles involv-

ing motions for summary judgment, a triable issue of fact

exists as to the time of discovery. Such an issue should be

determined by a trial or a motion for summary judgment

after petitioner had had the opportunity to examine the

defendant, Dr. Kauth.

15

The Court should, therefore, reverse the judgment of

the Court of Appeals and District Court and remand this

matter for further proceedings.

CONCLUSION

For the reasons above stated, it is respectfully submitted

that the judgment of the District Court and that of the

Court of Appeals should be reversed and the case remanded

with instructions that defendants file an answer to the

amended complaint forthwith.

Dated: June , 1981.

Respectfully submitted,

Matcotm L. McPHEE

Attorney for Petitioner

(Appendix follows)

Appendix

In the United States Court of Appeals

For the Ninth Circuit

No. 78-3417

D.C. No. C 76-2704 SC

Sophia T. Strom, ;

Plaintiff-Appellant,

v.

cece

United States of America, United States

Public Health Service, James Kauth,

M.D., Edward Falces, M.D., Does One

through Twenty, inclusive,

Defendants-Appellees.

d

[Filed April 3, 1981]

MEMORANDUM

Appeal from the United States District Court

For the Northern District of California

Samuel Conti, District Judge, Presiding

Argued and submitted July 8, 1980

Before: ANDERSON and TANG, Circuit Judges, and

CRAIG,* District Judge.

Pursuant to 28 U.S.C. § 2401(b), a tort claim against the

United States must be brought within two years after the

claim accrues. A claim accrues under § 2401(b) when the

*The Honorable Walter Early Craig, Senior District Judge for

the District of Arizona, sitting by designation.

A-2

plaintiff learns of the existence and cause of the injury,

United States v. Kubrick, 444 U.S. 111, 62 L.Ed.2d 259,

100 S.Ct. 352 (1980), or in the exercise of reasonable dili-

gence should have learned of the existence and cause of

the injury. Hungerford v. United States, 307 F.2d 99, 102

(9th Cir. 1962), overruled on other grounds, Ramirez v.

United States, 567 F.2d 854, 857 (9th Cir. 1977) (en banc).

An accrual of a claim need not “await awareness by the

plaintiff that his injury was negligently inflicted.” United

States v. Kubrick, 444 U.S. at 123.

Rhinoplasty surgery was performed on appellant on

June 21, 1971 at the United States Public Health Service

Hospital in San Francisco. After the surgery, breathing

difficulties developed, but she was told by her treating phy-

sician, Dr. Kauth, that her breathing problems were a

normal consequence of the operation and that in time it

would clear up. However, in March of 1973, Dr. Kauth

diagnosed that appellant’s breathing problems were being

caused by a “deviated upper septum.” The appellant’s medi-

cal records indicate that appellant was informed of this

diagnosis by Dr. Kauth, and was advised by him to undergo

additional surgery to correct the deviated septum. Appel-

lant, however, declined to have another surgery at that

time.

On March 19, 1974, appellant consulted a private

physician, Dr. Sherman, who advised appellant that her

deviated septum had been caused by the rhinoplasty

operation. Appellant’s complaint was subsequently filed on

March 10, 1976.

A-3

The district court granted summary judgment to the

United States because it found that the appellant’s claim

was time barred. Appellant contends that her complaint

should not be deemed time barred because her claim did not

accrue until March 19, 1974 when she consulted Dr. Sher-

man. Therefore, she argues that her complaint which was

filed on March 10, 1976 was timely filed. In any event, ap-

pellant argues that the granting of a summary judgment

was inappropriate in this instance because there is a ques-

tion as to when appellant discovered that her problems

were caused by the operation.

In a motion for summary judgment, the burden is on

the moving party to demonstrate that no genuine issue of

material fact exists, California Pacific Bank v. Small Busi-

ness Administration, 557 F.2d 218, 220 (9th Cir. 1977), and

that, as a matter of law, he is entitled to judgment. Scan-

dinavian Airlines v. United Aircraft, 601 F.2d 425, 427 (9th

Cir. 1979).

Here, defendants demonstrated that by March of 1973

appellant knew that her breathing problems were not asso-

ciated with the normal consequences of her operation, but

rather were the result of a deviated upper septum. Appel-

lant testified in her deposition that prior to surgery she

had not had any breathing difficulties except for sneezing

due to her allergy. She also testified that during the opera-

tion she heard one of the doctors call out, “You're cutting

too much.”

Appellant argues, however, that while she was informed

that her breathing problems were due to a deviated septum,

she was not told that the condition had arisen as a result

A-4

of the operation. Thus she contends that the cause of her

injuries was not known to her until March of 1974 when

Dr. Sherman informed her that the rhinoplasty operation

had probably caused the deviated septum.

We agree with appellant that at the time she was in-

formed by Dr. Kauth that her breathing problems were

due to a deviated septum, it cannot be said that she knew

that her injury had been caused by the operation. Her

medical records indicate that she was diagnosed, prior to

the operation, as not having a deviated septum. But, there

has been no showing that appellant was aware of this in-

formation. There is no indication that appellant knew

that the deviated septum had been caused by the operation

or by natural causes.

However, even though appellant may not have known

that the operation had caused the deviated septum, we be-

lieve the same facts were sufficient to put appellant on no-

tice that her injuries may have been caused by the opera-

tion. Her deviated septum and breathing problems are

one and the same—the injury that resulted from the opera-

tion. She had not had breathing problems prior to her

operation. She had been informed by Dr. Kauth that her

breathing difficulties were not associated with the normal

consequences of the operation, but rather were due to a

deviated septum and that another operation might be

needed to alleviate the problem. During the rhinoplasty

operation, she heard one of the doctors call out, “You're

cutting too much.” Though she may not have actually

known that the operation had caused her injuries, through

reasonable diligence she should have learned that her in-

A-5

juries had been caused by the operation. She had enough

information so that, as a matter of law, her cause of ac-

tion began to accrue from March of 1973. Her complaint

which was filed in March of 1976 was beyond the two-year

limitations period and therefore untimely.

The judgment of the district court is

AFFIRMED.

A-6

SOPHIA T. STROM v. UNITED STATES OF AMER-

ICA, No. 78-3417

TANG, Circuit Judge

[Filed April 3, 1981]

I respectfully dissent for the same reasons expressed

in my dissent in Davis v. United States, No. 77-1942 (9th

Chr. Lrveecccccesess , 1981). The major issue is whether the dis-

trict court erred in granting summary judgment in favor

of the Government because the statute of limitations had

run. The critical question is whether the record presents

a genuine issue of material fact concerning the date the

claim “accrued”. Applying the Kubrick rule, I find the

district court mischaracterized the evidence to find no dis-

puted material facts.

In Kubrick, the plaintiff had surgery in April and devel-

oped a hearing loss in mid-June. In succeeding months,

he consulted several specialists who diagnosed his malady

as “bilateral nerve disease.” Finally, in January (some

7 months after injury), a doctor told Kubrick that it was

“highly possible” that a treatment administered after sur-

gery caused his deafness. At that point, the court held,

Kubrick knew of his injury and its cause, and the statute

began to run.

In holding that the cause of action accrued when

Kubrick was told the cause of his nerve disease, the court

plainly held that the statute begins to run only when a

plaintiff is “armed with the facts about the harm done to

him...” 444 U.S, at 123. In other words, the plaintiff

must be in “possession of the critical facts that he has

A-7

been hurt and who has inflicted the injury” because “the

facts about causation may be in the control of the putative

defendant, unavailable to the plaintiff or at least very diffi-

cult to obtain.” Zd. at 122 (emphasis added).

Here, Strom had rhinoplasty surgery in 1971. There-

after she experienced breathing problems and was advised

by Dr. Kauth, her treating physician, that such discom-

fort was normal and would take time to correct itself. On

March 18, 1973, Dr. Kauth diagnosed Strom’s breathing

problems as a “deviated septum” and suggested addi-

tional surgery. Still struggling to find out what caused the

deviated septum (just as Kubrick had sought the cause

of his nerve disease), Strom consulted a private physician,

Dr. Sherman, on March 15, 1974. Strom was then advised

‘for the first time that the 1971 operation caused the devi-

ated septum. Only at that point was she “armed with the

facts about the harm” done to her, and thus on notice

that negligence, as opposed to natural forces, was possibly

involved.

As I see it, then, the analytical flaw in both the district

court’s order and the majority memorandum is equating

a diagnosis (deviated septum) with the cause of injury.

In essence, breathing problems and a deviated septum are

one and the same injury; the cause of that injury was sur-

gical treatment, just as it was in Kubrick.

In sum, I would reverse the summary judgment because,

at the least, the question when Strom knew (1) of her

injury (deviated septum) and (2) its cause (surgical

treatment—whether negligent or not) should be a factual

determination for the jury. Such a result is justified

A8

because the government, as the moving party, has failed

to carry its burden of demonstrating the absence of a

genuine issue of material fact. See also Marshall v.

Kimberly-Clark Corp., 625 F.2d 1300, 1302 (5th Cir. 1980)

(“A dispute over the facts surrounding the date the stat-

ute of limitations began ‘would alone warrant denial of

the motion for summary judgment.’ ”’) ; see generally Yazzie

v. Olney, Levy, Kaplan & Tenner, 593 F.2d 100, 103 (9th

Cir. 1979).

/s/ THOMAS TANG

United States Circuit Judge