# Petition for Writ of Certiorari — Kossick v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1873%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1964 - **Citation:** 379 U.S. 837 ## Text Oftice-Supreme Court, U.S. Ph ee. - LiBkARY - JUL 14. N64 JOHN F. DAVIS. CLERK IN THE Supe Court of the Hnited States October Term, 1963 . . Q No. Zt 3 JOHN M. KOSSICK, . Petitioner, agatnst UNITED STATES OF ‘AMERICA, | Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT JACOB RassNek, Counsel for Petitioner, - .. 15 Park Row, New York, N. Y. 10038. BArclay 7-2615 v adr c sae cacsnivaetancs Sage we PE tends enneavaeeuNeed ka kuketewaess edie Questions Presented ...... eke cautnes Tak prCnre tt SI fk oon cen ns kan wae SEAS Pe SO ee DE 55 foes os eS eee ee Bey LOE Oe Pornt I—The action has been timely brought .... Point II—Not only did the Court below completely ignore the controlling decision by this Court, as set forth in Richards v. United States, 369 U. S. 1, 2S. Ct. 585 (1962), as to petitioner’s rights, but erroneously adopted a radical departure from the Pe Oe OE NN oon ca sacs hice aes as o6. The Cases Relied on by the Court Below Are Not SB eae rr MC ELA RARE coh ees Point II1I—The New York State law determines the | substantive rights and the Federal law determines the procedural rights of the parties hereto ..... Poixt IV—A cause of a¢tion is a property right pro- tected by constitutionai rules ......+........... Porst V—Judicial denial of an available remedy is denial of the equal protection of the law and vio- lates the due process provisions of the Fitth I as ons Pay deka wkeek RIG Ieee RINE suns oWiceechaed uveled ena cow ke eae APPENDIX: | Judgment Sought to Be Reviewed .......... Cireuit Court Opinion RR et er erp oa aee Laws ERVOIVOE oo cece csccesctecsed Liistectaes sa] : owt wl wo ~ ~! ~] 13 Sa i | Table of Cates Cited | aes PAGB Aero Design v. Oklahoma, 151 F. S. 844, (aff'd —_ U.S. —, 77 S. Ct. 824) .......... set teeeeeeeeees 14 Bank of America Nat. T..& S. Ass’n v. Parnell, 77 . S. Ct. 119, 352 U. S. 29 (1956) ..,............... 10 Bizer v. United States, 124 F. Supp. _ (N. D. Calif. . ee a uw eneacs 8 Borgia v. The City of New York, 12 N. Y. 2d 151, 237 N. Y. S. 2d 319- Mee debths chu eShes Piuwsien 3, 5, 6, 9, 10 Caldarola v. Eckert, 332 U. S. 155, 67 S. Ct. 1569 . 3 Foote v. Public Housing Commissioner of the United | States,.107 F. Supp. 270 (W. D. Mich. S. D. 1952) 8 Gibbes y: Zimmerman, 290 U. S. 326, 54 S. Ct. 140 . 13 ee v. Civil Air Patrol, 161 F. Supp. 478 (1958) 10. Hungerford v. United States, 307 F. 2d 99 (9th Cir. ° . 1962) Ec VERE Che RN NEA eh nb ees seb onee ss en's6s . § Irvin v. Dowd, 359 U. S. 394, 79 S. Ct. O95 5.5... 14 McNamara v. United States, 199 F. Supp. 879 (1961) 10 Pope & Talbot Inc. v. Hawn, 346 U. S. 406, 74 S. Ct. it Uices cs hewe Ce RENoeNWadheseenaeh deeds anes 3 Pritchard v. Norton, 106 U. S. 124, 1S. Ct. 102 ccna’ 13 Quinton v. United States, 304 F. 2d 234 (5th Cir NRG R ARES SD I TC, Ee ue ey Pe 7,8 Richards v. United States, eed U.S. 1, 82 S. Ct. 585 ee Ole arb LL aide kasha’ 3, 5, 7, 12, 13, 14 Sly v. Van Lengen, 198 N. Y. S. 608 (cekiehyeanern es , 9 State of Maryland v. United States, 165 F. 2d 869 aa ay Sp es rarn di s Eve ee eee ea . 11,12 Tessier v. United States, 269 F. 2d eee 8 ’ United States v. Reid, 251 F. 2d 691 (1958) -....... “an United States v. Sharpe, 189 F. 2d 239-(1951) ...... 10, 11 , . 4“ iii “Statutes Cited . PAGE U.S. Constitution, Fifth Amendment ............. 2: WU: © GMD... 20000505: Gia wales 2 26 VU. B/C. 1BOB(S(D) 6.2... 6c, ones ec eeeceee 2, 3, 4, 5,8 OE ook ss 2,4,7 ye te) a re LAIR ee eat! WU. OC. 0 «5.5 65000565 Serer oer ye ¥ Oe e.g aeneeene oe ONE ET oe 2,7 a | Supreme Court of the United States October Term, 1963 No. Joun M. Kossicx, . Petitioner, against Unrrep Srates or AMERICA, Respondent. 4. Vv PETITION FOR WRIT OF CERTIORARI TO THE. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT | To the Honorable Chief Justice and Associate Justices of the Supreme Court of the United States: Your petitioner, John M. Kossick, prays that a writ of certiorari issue to review the judgment and decision of the United States Circuit Court of Appeals for the Second . Cireuit, entered on the 15th day of April, 1964. Opinions Below ’ The opinion of the United States District Court for the Southern District of New York (Hon. Edward C. McLean,- D. J.) is not nee and is prmten in the record below at p. 2a. The opinion of the Court of Appeals, dated April 13, 1964, is reported at 330 F. 2d 933 (1964), and is appended hereto, infra, p. 2a. "Jurisdiction The judgment sought a be siiivet | is dated April 15, 1964 and was entered April 15, 1964. The jurisdiction, of this Court is invoked under 28 ‘U.S. C. 1254 (1). ? ‘Questions Presented 1. Is it not an unconstitutional denial of the equal protection of the law to deny a Federal Tort Claims Act cause of action on the basis of non-applicable federal deci- sions, when the Federal Tort Claims Act makes state law the controlling law, and such applicable state law would validate the cause of action? 2. When federal law grants remedial legislation to be applied in accordance with State law, is it error for the federal courts to rely on federal decisions in conflict with State decisions, in interpreting the rights and remedies of a litigant asserting a claim based on such federal law? Laws Involved r Amendment V, U. S. Constitution (Appendix, p. 8a). 28 U. S. C. 1346 (2)(b) (Appendix, p. saa 28 U Ss. C. 2401(b) (Appendix, p. 9a). : . 28 U. S. C. 2671 (Appendix, p. 9a). 28 U. S. C. 2674,(Appendix, p. 10a).. Reasons for Granting the Writ * > © . ~The decision by the Court below constitutes a denial of the remedial rights and remedies provided by federal statute, the Federal Tort Claims Act, “28 U. S. C. E ~~ . . 3 ie | } | 1346(2)(b), andl. an unconstitutional denial of- due Process guaranteed by the Fifth Amendment. : _ The decision by the Court below is in conflict with the decision in the case of Richards v. United States, 369 U.S ' 1, 82 S.Ct. 585 (1962). , _ The decision by the Court below emasculates so much of the provisions of the Federal Fort Claims Act, supra, as provides for the application of State law, as enunciated by the New York Court of Appeals in the case of Borgia v. The City of New York, 12 N. Y: 2d 151, 237 N, Y, S. 2d 319, so that the benefits of State law, provided by the Federal Tort Claims Act, supra, are rendered substantially ineffectual and meaningless and are denied to petitioner. Petitioner is thereby denied the equal protection of the — law in violation of constitutional rules. i The expediency of time and volume of court cases has no place in our American concept of justice when consider- ing legal substantial and substantive rights of an American citizen, and the decision, by the Court’ below which empha- sizes time and procedure as outweighing the merits of a cause of action, constitutes a radical departure from uni- form and well established laws enunciated: by this Court in Caldarola v. Eckert, 332 U. S. a 67 S. Ct. 1569 and Pope & Talbot Inc.\v. Hawn, 346 U.S. 406, 74 S. Ct. 202. Federal statute having established State law as the basis for liability, there is no justification for invoking federal concepts of law to destroy rights which a litigant would have on the basis of State law. \ ‘ c | Statement | District Court jeruiiesion was based on 28 U. S.C. 1346 (2) b). Petitioner was concededly admitted to the United States, Public Health Service Hospital at Staten Island, New York, in August, 1950, and was given an injection of potas- sium iodide, which x:esulted in serious internal burns de- stroying the rectum and a great deal of his digestive tract, _ injuries concededly caused by malpractice of the respondent. The hospital record states that this injection was ‘‘in- advertently’’ given. A left colostomy was performed. This was not success- ful. Thereafter, a right colostomy was performed. After’ , the right colostomy, prurient drainage developed around the left colostomy site. There was considerable surgical work, inclua‘ng dis- sections of portions of the bowels and a series of dilation operations, which are not concluded as yet. The petitioner is ‘still under treatment by respondent for. the after-effects of the malpractice. Petitioner duly and timely filed’ a complaint in accord- ance with applicable New York State law, as authorized by remedial federal statute, The Federal Tort Claims Act, 28 U.S.C. A. S$ (1346 (2) (b) and 2673. Respondent interposed, as part of its defense, the statute of limitations, 28 CT. S. C. A. ¢ 2401(b). ' Petitioner moved to strike the defense based on the statute of limitations as not being applicable to the New York State law which constituted the basis of petitioner’s cause of action. The District Court erroneously refused to be governed _ by applicable New York State law and dismissed the com- plaint, on respondent’s cross motion. - Petitioner appealed to the United States Court of Ap- peals’ for the Second Circuit, which affirmed the decision of the Court below. ° Respondent did not make a “full tutions of the. fact that it was still under a legal duty to provide petitioner —— 4) with continuing treatment and that the relationship of patient and doctor had never been terminated sitice the surgery. . : Petitiuner was not in a position at the time of the motion to submit ‘‘proof by respondent’s attending doctor’’, but his affidavit alleging that he was still under treatment by — respondent established an issue of fact, which the Court below erroneously disr@garded. Argument io Petitioner has predicated his cause of action on the Federal Tort Claims Act, 28 U.S. C. A. §§ 1346 (2) (b) and 2671, et seq., which provides that:the law of the forum shall control. The law of the forum is clearly set forth in Richards v. U. S., 369 U.S. 1, 82-S. Ct. 585 (1962), wherein the entire: law of the state is made applicable. . The Court of Appeals, in an opinion by Chief Judge Desmond, decided December 31, 1962, in the ease of Borgia v. The City of New York,' 287 N. Y. 8. 2d 319, 12 N..Y. 2d 151, stated: . | . 46 @ @ @ a number of decisions at least five of which plainly say that where there has been continuing treatment time limitation does not start until treat- ment ends (Schanil v. Branton, 181 Minn. 381, 382, 232 N. W. 708; De Haan v. Winter, 258 Mich. 293, 296-297, 241 N. W. 926; Williams v. Elias, 140 Neb. 696, 600, 1-N. W. 2d 121; Peteler v. Robinson, 81 Utah 535, 546, 17 P. 2d 244; Sly v. Van Lengen, 120 Mise. 420, 198 N. Y. S. 608).”’ 'The very nature of the post-operative condition is such that. expert opinion was completely unnecessary in presenting the fact that the reiationship of physician and patient had not been terminated, as the question involved post-operative treatment for’ “colostomys”’ whick condition, as a matter of common knowledge, requires inter- mittent treatment during the entire life of the patient, for this per- _Mmanent and progressive type of injury. 6 Ir 1s a Matrer For JupiciaL Notice THAT A SEAMAN’S Status as a Patient or THE Unrrep States Pusiic Hearn, Service 1s Never TERMINATED, so Lone as He Requires TREATMENT For A MaRITIME SERVICE-CONNECTED CONDITION. Ordinarily, petitioner would move for reargument in the District Court upon receipt of the letter by Dr.. Love establishing petitioner’s contention set forth in his affidavit that the relationship of doctor and patient had not termi- nated, but in the light of the decision by the Court below rejecting the holding in the Borgia case, supra, as control- ling, the only logical procedure is to petition this Court for review in accordance with the amine, “igcmae _ The respondent, being charged with possession of knowl- | edge of the fact that one of its doctors, Dr. Love, was still treating petitioner as an outpatient at respondent’s hospi- tal, should not be permitted to benefit by withholding such information from the District Court in the first instance, nor should petitioner have been denied, by the Court below, the opportunity to present further proof that he was still under treatment by respondent. Petitioner claims that the question of time and expedi- ency was given unwarranted and erroneous weight by the Court below. : The respondent being the United States of America, it is submitted that even this appellate Court may take judicial notice of the public records establishing the fact that petitioner is still a patient receiving continued and continuous intermittent treatment from the respondent at © its. Public Health Service Hospitals. 7 POINT I. The action has: been timely brought. _ 28 U.S.C. A. § 2401 (b) is governed by New York State law as to the time when a ‘‘claim accrues.’’ The Federal Tort Claims -1ct, 28 U.S. C. A. § 2674, pro- vides: a a ‘*The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like cireumstnees * * *’’. All of the cases, without exception, cited by the Court below, fails in every instance, to encompass the question before the Court, as will be pointed out hereafter by direct reference to each case. ; i) POINT I] Not only did the Court below completely ignore _the controlling decision by this Court, as set forth in Richards v. United States, 369 U. S. 1, 82 S. Ct. 585 (1962), as to petitioner’s rights, but erroneously adopted a radical departure from the holding in said . case. The Cases Relied on by the Court Below Are Not Controlling The case of Quinton v. United States, 304 F. 2d 234 (Sth Cir. 1962) supports appellant’s position and is in conflict with the legal proposition for which it was cited by the Court below. , In Quinton, supra, in reversing the lower Court which had dismissed the malpractice action against the United States, the Appellate Court stated at page 238: ‘The simple fact is that state law respecting the accrual of a particular claim cannot be divorced from = the state law fixing the period after accrual within which the plaintiff can bring suit on the accrued claim.’’ Only when a State statute of limitation tends to shorten the time allowed by Congress within which to invoke the provisions of remedial legislation, then and- only then, is federal concept invoked, but never as to the existence or accrual of a tort claim. - The decision in the case of Hungérford v. United States, 307. F. 2d 99 (9th Cir. 1962), rested on the decision in the case of Bizer v. United States, 124 F. Supp. 949 (N. D. Calif. S. D. 1954). In the case of Tessier v. United States, 269 F. 2d 305, the scholarly and detailed review of the applicable law by Circuit Judge Magruder demonstrates that State law eon- trols the question of the statute of limitations. POINT III° The New York State law determines the substan- tive rights and the Federal law determines the pro- -cedural rights of the parties hereto. In the case of Footayx, Pu lic Housing Commissioner of the United States, 107 F. p. 270 (W. D. Mich. S. D. 1952), the Court said at page 2R: a per eS the standards and tasts of local State law are applicable in determining wkether an actionable neghgent-or-wrongful act has beefcommitted, and -the nature and extent of the recovery'permitted.”’ “The Federal Tort Claims Act provides that the cause of action shall be established on the basis of- State law. The statute of limitations is an affirmative. defense, which does not begin to run until the relationship of. pby-' sician and patient is terminated. 9 ——_ This relationship has: never been terminated in the _ case at bar. . This principle of law was enunciated as early as March 8, 1923 in the case of Sly v. Van Lengen, 198 N. Y. S. 668, and re-asserted as recently as December 31, 1962 in the case of Borgia v. City of New York, supra. | The fact cannot be denied that the course of treatment has to run continuously and is related to the 2ets of mal- practice complained of. ; Chief Judge Desmond, speaking for the Court in Borgia, supra, stated at page 321: | _ **We hold that at least when the course of treat- ment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint, the ‘accrual’ comes only at the end of the treatment. . {1} Preliminarily, we note that the same rule must be ‘applied whether we are passing on a true Statute of Limitations problem (Civil Practice Act, § 49, subd. 6; § 50, subd. 2) or a section 50-e dispute. -The question is the same: when did the claim or cause of action ‘accrue’? This court has never had \, to decide whether in the case of continuous treatment ‘accrual’ is postponed until treatment ends, but in Hammer v. Rosen, 7-N. Y. 2d 376, 379, 198 N. Y. S. 2d 65, 66, 165 N. E. 2d 756, 757 [1960] we forecast an affirmative answer. Hammer vy. Rosen is not an actual application of the ‘continuous treatment’-rule since in that case there was ‘within the two vears not only treatment but malpractice. But the ‘Ham- mer-Rosen opinion referred (p. 380, 198 N.'Y. S. 2d _p. 67, 165 N. E. 2d p.'757) to ‘a continuing course. of psychiatric treatment’ and, more significantly, cited with approval a number of. decisions at least five of which plainly say that where there has been continuing treatment time limitation does not ‘start until treatment ends (Schanil v. Branton, 181 Minn. 381, 382, 232 N. W. 708; De Haan v. Winter, 258 Mich. 293, 296-297, 241 N. W. 926r Williams v. Elias. 140 Neb. 656, 660, 1 N. W. 2d 121; Peteler v. Robin- 10 son, n, 81 Utah 535, 546, 17 P. 2d 244; Sly v. Van Lengen,- 120 Misc. 420, 198'N. Y. S. 608). ” The time for the running of the statute of limitations has not as yet commenced. ' In the case of MeNamara v. United States, 199 F. aia 879 (1961), at page 881, under [7, 8], the Court. stated: ‘‘Under the Federal Tort Claims Act the Govern- ment is liable in the same ‘manner and to the same - extent as would -be a private individual under like circunistances. The substantive rights of the plain- tiff and of the defendant in such a case must be measured by the law of the state in which the cause of action arose. In this instance, it is the District of ‘Columbia. Consequently, the tort law of the District of Columbia governs the plaintiffs’ rights and the defendant’ 8 liabilities. - In the case of Bank of America Nat. T. € S. Ass'nv. Par- nell, 77 S. Ct. 119, 352 U. S. 29 (1956), the United States Supreme Court stated at ‘page 122, under [4]: ‘‘The Court of Appeals has not decided what the governing state law on burden of proof is, and it is ‘the court which should so decide. Likewise, if state law casts the burden on respondents to demonstrate their, good faith, it is for the Court of Appeals to assess. the evidence in light of that standard.’’ In the case of Hooten v. Civil Air Patrol, 161 F. Supp. 478 (1958), the Court stated at page 482 under [12, 13]: ‘‘The Federal Tort Claims Act is governed by the law of the state of thie alleged tort. If no cause - of action exists in such state, no action exists under the Federal Tort Claims Act. If the cause of -action -is limited or circumscribed by state law, the same limitation and circumscription apply under the Federal Tort Claims