Petition for Writ of Certiorari — Greenberg v. United States

Supreme Court brief1974

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IN THE SUPREME COURT

OF THE UNITED STATES

No. A-56

SIDNEY GREENBERG,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIM H. PEARMAN

7080 Hollywood Boulevard

Suite 120

Hollywood, California 90028

(213) 466-4525

Attorney for Petitioner

OR NEE PERO.

1 LEME TENE IM ASAD IEE NIN WONT ht PSY

San

ET ALLEY RIP ESLER ELLE ANS OB IE es

SEO MBps ARs

EE ic AGB AS

Table of Aut

JURISDICTIONAL STATEMENT

STATEMENT OF

ARGUMENT

TOPICAL INDEX

horities

THE CASE

I THE DECISION OF THE NINTH

CIRCUIT COURT OF APPEALS

IS IN DIRECT CONFLICT WITH

DECISIONS OF OTHER COURTS

OF APPEALS ON A FEDERAL

QUESTION

II NEGLIGENT OR INTENTIONAL

MISREPRESENTATION TOLLS

THE STATUTE OF LIMITATICNS

CONCLUSION

APPENDIX

MEMORANDUM UNITED STATES

COURT OF APPEALS FOR THE

NINTH CIRCUIT IN NO. 73-2045,

GREENBERG v.

UNITED STATES

BIEL IES HO

TIF ROLE LEG SEIN FBR ONE EPL PII EE

Seen tee pee 4 BS Ee se a oc ar te a ea a

TABLE OF AUTHORITIES

Cases Page :

Accardi v. United States :

356 F Supp 218 (SDNY 1973) . 17 .

Ashley v. United States 12, 13, 5

413 F 2d 490 (9th Cir 1969) ive a6 }

Avco Corp. v. Aero Lodge , "

390 U.S. 557 | |

20 L Ed 2d 126 : .

88 S Ct 1573 (1967) 13 ,

Brown v. United States

353 F 2d 578 (9th Cir 1965) 12, 13

Ciccarone v. United States era

486 F 2a 253 (2d Cir 1973) © 11, 19

EES ROE

Cooper v. United States

442 F 2a.908 (7th Cir 1971) 19

Fravel v. Pennsylvania R. Co.

104 F Supp 84 (D.M. 1952) 25

Ra oa

Glus v. Brooklyn Eastern Terminal

359 U.S. 231

3 L Ed 2d 770

79 S Ct 760 (1959) 25

Hungerford v. United States

307 F 2d 99 (9th Cir 1962) 23

Kossick v. United States

330 F 2d 933 (2d Cir 1964)

379 U.S. 837

FERIA SRE REELS LPAI OTE MENTS NSO BUR ON CF

13 L Ed 2d 44 | 14, Zhe

85 S Ct 73 22

Mann v. United States

399 F 2d 672 (9th Cir 1968) 12 es

| ¢

Sk. ;

‘

Cases

Mendiola v. United States

401 F 2d 695 (5th Cir 1968)

Pennsylvania Nat. Bank v. United States

387 U.S. 213

18 L Ed 2d 726

87 S Ct 1573 (1967)

Philadelphia Nat. Bank v. United States

411 F 2d 747 (5th Cir 1969)

Pittman v. United States

341 F 2d 739 (9th Cir 1965)

382 U.S. 941

86 S Ct 394

15 L Ed 351

Quinton v. United States

304 F 2d 234 (5th Cir 1962)

Rahn v. United States

222 F Supp 775 (SDG 1963)

Scarborough v. Atlantic Coast

Line R. Co.

178 F 2d 253 (4th Cir 1949) |

Toal v. United States

438 F 2d 222

Tyminski v. United States

481 F 2d 257 (1973)

Urie v. Thompson

337 U.S. 163

93 L Ed 1282

69 S Ct 1018 (1949)

iii.

ll,

18,

Age

Statutes

Title 28, U.S.C.

§1346

§2401 (b)

§1291

§1254(1)

§§1346(b), 2671-2680

§ 2680 (h)

Sv.

CR el ee a cos |

alae

ein)

= W

14, 23,

fea)

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1974

No. A-56

SIDNEY GREENBERG,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LRT EP eee

JURISDICTIONAL STATEMENT

The Petitioner filed a claim for admin-

istrative settlement with the Veterans

Administration Office of the General Counsel

under the Federai Tort Claims Act (Title 28,

U.S.C. §1346) on August 19, 1969. Said

Tort claim was denied on February 13,

1970. Suit *uas thereafter filed against

the United States of America in the United

States District Court for the Central

District of California on August 10, 1970.

The cause was bifurcated and tried solely

on the issue of the statute of limitations

in the United States District Court and

on November 3, 1972, an order was entered

by said Court dismissing Petitioner's

suit on the ground that it was barred by

the two year statute of limitations (Title

28 U.S.C. §2401(b)).

Notice of Appeal from said order was

filed by Petitioner in the Court of Appeals

for the Ninth Circuit on December 11, 1972

(Title zo ' S.C. §1291). On May 21, 1974,

the United S.ates Court of Appeals for the

Ninth Circuit fi’ed its decision affirming

the judgment of the United States District

Court, Central District of California. (A

copy of said opinion is attached hereto as

Appendix "A")

Tee ane Sia |

On August 16, 1974, the Honorable

William 0. Douglas extended the time for

filing a Petition for Writ of Certiorari

in this cause to and including October 18,

1974.

This Petition for Writ of Certiorari

is made pursuant to Title 28 U.S.C. §1254(1).

STATEMENT OF THE CASE

The Petitioner was discharged from

military service in 1948 with a 30%

service-connected disability for nervous-

ness (R.T. 47).

In 1961, the Petitioner's service-

connected disability was reduced to zero

percent and he commenced treatment at the

neuro-psychiatric clinic in 1961 period-

ically until 1966. (R.T. 48-49)

Between 1964 and 1966 Petitioner had

severe abdominal pains and bleeding and

lots of anxiety. He voiced his complaints

to Mr. Weinberg, a socialworker, Dr. Joseph

POMC NE RRC ESRI

Seen eee

Heller, Psychiatrist, and Dr. Drake, all

Government employees. (R. T. 49, 50, 51)

On January 18, 1966, Dr. Heller, the

Government Psychiatrist, arranged to have

a barium x-ray of the Petitioner taken

(R. T. 51).

A few days after the barium x-ray had

been taken, Petitioner called Dr. Heller

on the phone with severe abdominal pain

and Dr. Heller mailed Petitioner some

Darvon (R. T. 52, 53).

On January 26, 1966, Petitioner re-

ceived a letter from Dr. Heller dated

January 25, 1966 (Petitioner's Exhibit 1)

stating in effect that Dr. Heller had

received the report of the x-ray and

"although there was a slight inflammation,

there was no evidence of any tumor or

ulceration and so there was nothing to

cause the Petitioner concern."

At the time Petitioner received this

letter he was in severe vain and bedridden

Ne ae

EER 828 LAER APS EOE PPS IO Oat

a eS

— — —— , =

Sy foe

hime ne aN Ba aga

and couldn't walk (R. T. 55). Thereafter,

he was admitted to the Wadsworth Veterans

Hospital February 3, 1966, on a stretcher

and unable to walk (R. T. 56).

On February 4, 1966, Petitioner was

advised by Dr. Gordon, a Government Physician

at Wadsworth that Petitioner had a bulging _

mass and abscess which might be diverticula.

Dr. Gordon stated that the January 18,

1966 x-ray had been negative and "that it

was imposible for diverticula to show up,

since the x-ray was negative" (R. T. aT)»

Petitioner had a subsequent conversation

with Dr. Morgan, also a Government doctor

at Wadsworth and was told that if any

diverticula had appeared on the x-ray, since

Petitioner had been complaining of pain,

that Dr. Morgan was certain that Dr. Heller

would have ordered additional tests (R. T. 58)

Dr. Kajiama, also a Goverrment doctor at Wads-

worth told Petitioner that diverticulitis was

~~ eerie

Os Agel aI OMS

OTOL PS SPE ES

—

RTH OPEN

Say QE ee PS

eee ates eer

;

just like appendicitis with the same

symptoms and although they won't show up

— x-ray, they could flare up at any

time. Kajiama assured Petitioner that

the x-ray had been negative (R. T. 58).

These conversations with Government

doctors occurred “almost constantly” from

February 3, 4, 5, 6, 7, 8, where Petitioner

was assured that his x-ray had been nega-

tive (R. T. 58).

Petitioner had a second barium x-ray

at Wadsworth Hospital on February 7, 1966

(R. T. 57) which revealed diverticulitis

and which thereafter resulted in seven

surgeries and Petitioner's ultimate discharge

from Wadsworth in July, 1969 (R. T. 59, 60).

In June, 1968, while in Wadsworth Hos-

pital for his sixth surgery, Petitioner

became curious as to whether or not he would

need another colostomy and at 3:00 o'clcck

in the morning took his records from the

nurses' station into the men's room to

ONE POET P|

read them (R. T. 88).

The records revealed to Petitioner

that the initial January 18, 1966 barium

x-ray was positive and revealed evidence

of diverticulitis (R. T. 88). Since the

x-ray radiologist's report was not in the

file, Petitioner figured that the x-ray

report would be in Dr. Heller's possession

at the psychiatric division on Broadway

(R. T. 89).

Petitioner secretly obtained his rec-

ords and had them xeroxed and returned

the originals (R. T. 90). The x-ray

report (Petitioner's Exhibit 14) dated

January 18, 1966, indicated the presence

of diverticula and recommended "clinical

correlation."

Petitioner's Exhibit 4d which Petitioner

had first seen at Wadsworth in June, 1968,

revealed in a Doctor's Progress Note bear-

ing the date February 9, 1966, that the

"x-rays from Veterans Administration

RN ns a an ean ek a aaa SEER

regional office revealed diverticulitis"

(R. T. 88). Further, Petitioner's Exhibit

13 which was part of Petitioner's Hospital

Summary from Wadsworth which Petitioner had

seen at the same time stated: "...Follow-

ing his admission, the films of the pre-

viously taken barium enema were evaluated

and these revealed diverticulitis..."

See also Petitioner's Exhibit 14.

Petitioner testified t..at he had trust

and confidence in the professional ability

of Dr. Heller as well as Dr. Gordon, Dr.

Morgan, and Dr. Kajiama (R. T. 94) until

June, 1968, when he read his file and dis-

covered the true situation.

Petitioner did not file his federal

tort claim until Aucust 19, 1969, two weeks

after his seventh and last surgery at

Wadsworth and his discharge for fear of

reprisals against him by the Government

(R. T. 96, 97).

The original x-ray (i.e. January 18,

1966) had been told to Petitioner by

three doctors that it was negative. A

year and a half later Dr. Heller had told

Petitioner his x-ray had shown nothing

(R. T. 108).

Only in June, 1968, did Petitioner

upon reading his medical records discover

for the first time that his x-ray (January

18, 1966) had been positive for diverticu-

litis (Petitioner's Exhibits 4d and 13).

The Government introduced Exhibits

10-A (statement dated May 18, 1966);

Exhibit A (Letter dated October 7, 1966);

Exhibit B (Letter dated February 28, 1967);

and Exhibit C (Letter dated July 22, 1967)

in an attempt to show that Petitioner was

aware of facts sufficient to put him on

notice that there had been malpractice

committed by agents and employees of the

Government.

The Petitioner testified as to what he

was attempting to accomplish by his letters.

“4

be Paks

Sart

Per Ron

Basically, the Petitioner in his running

feud with the Adjudication Division of :

the Veterans Administration was attempting

to service-connect a nervous condition to

diverticulitis to increase his service-

connected disability rating. (R. T. 63-86)

ARGUMENT

THE DECISION OF THE NINTH

C1xCUIT COURT OF APPEALS

IS IN DIRECT CONFLICT WITH

DECISIONS OF OTHER COURTS

OF APPEALS ON A FEDERAL

QUESTION

Continuous treatment tolls

the Statute of Limitations

under Title 28 §2401(b).

The Statute of Limitations under the

Federal Tort Claims Act (23 U.S.C. §§1346(b),

2401(b) and 2671-2660) is set forth in

§2401(b) which provides in part that —

"A tort claim against the United States

shall be forever barred unless action is

id.

ital, er |

begun within two years after such claim

accrues. . ."

“In a cause of action founded

on alleged medical malpractice,

it is incumbent on the trier of

[

fact to determine the point in

time when the ‘claim accrues.'

In making such a determination,

principles of federal law, not

state law, are to be applied

- - -" Ciccarone v. United

States, 486 F 2d 253, 256 (3d

Cir 1973) See also: Toal v.

United States, 438 F 2d 222,

224 n 3 (2d Cir 1971).

A claim for malpractice "accrues" against

the Government when the claimant discovered,

or in the exercise of reasonable diligence

should have discovered, the acts constituting

the alleged malpractice. Quinton v. United

States, 304 F 2d 234, 240 (5th Cir 1962).

See, e.g. Toal v. United States, 438 F 24

, ‘ — penn

222, 224-225 (2d Cir 1971); Ashley v. United

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

The limitation period as set forth is not

tolled during the time of a claimant's mino-

rity. Brown v. United States, 353 F 2d 578

(9th Cir 1965); Pittman v. United states,

| 341 F 2d' 739 (9th Cir 1965), cert denied 382

U.S. 941, 86 S Ct 394, 15 L Ed 351. It is

not tolled in favor of a minor Indian who is

a ward of the Government, Mann v. United

States, 399 F 2d 672 (9th Cir 1968). The

pendency of a workman's compensation claim

will not toll the statute of limitations.

Mendiola v. United States, 401 F 2d 695 (5th

Cir 1968).

There are instances where the statute

will be tolled: "Blameless ignorance’ on the

part of the claimant will justify the tolling

of the statute. Urie v. Thompson, 337 U.S.

163, 170; 69 S Ct 1018, 93 L Ed 1282 (1949).

The continuance of the physician-patient

relationship will toll the statute. See, e.g.

12.

Ashley v. United States, 413 F 2d 490 (9th

Cir 1969); Brown v. United States, 353

F 2d 578 (9th Cir 1965).

The decisions of the federal courts of

appeals are in conflict as to whether or

not “continuous treatment” will toll the

statute of limitations under Title 28

§2401(b). Petitioner urges this ground to

secure a review of his case. Avco Corp v.

Aero Lodge, 390 U.S. 557, 20 L Ed 2d 126,

88 S Ct 1235 (1968); Pennsylvania Nat. Bank

v. United States, 387 U.S. 213, 18 L Ed 2d 726,

87 S Ct 1573 (1967).

", . »Because of an acknow-

ledged conflict between the

decision of the Third Circuit

in this case and that of the

Seventh Circuit in United

States v. Citizens National

Bank of Evansville, (citation

omitted), we (United States

Supreme Court) granted cer-

13.

PE eR ER ST, ONES

tiorari ..." See, Penn-

sylvania Nat Bank, supra,

(18 L Ed 2d 730).

In Petitioner's case the federal statute

involved (Title 28 §2401(b)) will continue

to give rise to conflicting interpretations

in the courts of appeals unless certiorari

is granted to resolve the conflict, which

resolution is important in the administra-

tion of the Federal Tort Claims Act (28

U.S.C. §§ 1346(b), 2401(b) and 2671-2680).

The Second Circuit Court of Appeals in

Kossick v. United States, 330 F 2d 933, 936

(2d Cir 1964), cert den 379 U.S. 837, 85 S Ct

73, 13 L Ed 2d 44 announced the following

principle with regard to "continuous treat-

ment":

"({3] Here Kossick must have

discovered the grievous in-

jury inflicted upon him very

shortly after the administra-

tion of the enema on August 29,

14,

». ‘

at a RRCORG aces a |

LA ra

wil sient ail

1950. Although

begun a suit at

do not say that

of §2401(b) the

began to run so

have long since

he could have

that time, we

for purposes

two-year period

soon. Courts

rejected the

ee eT et ae a |

mechanical concept that in all

cases the limitations period

necessarily starts the very

moment that a suit can be

brought. See Note, Developments

in the Law--Statutes of Limita-

tions, 63 Harv.L.Rev. 1177,

1200, 1204, 1213-19 (1950).

There is much good sense in Chief

Justice Desmond's observation in

the Borgia case that ‘It would

be absurd to require a wronged

patient to interrupt corrective

efforts by serving a summons on

the physician or hospital super-

intendent * * *' 12 N.Y.2d at

15.

ira EES ORIOLE EE See allt ‘Srte™meer TROPA ge sTp ern

ree aici” St ash

156, 237 N.Y¥.S.2d at 321-322,

and this is not altogether

without application when as

here the summons would be

served on the United States

Attorney. F.R.Civ.Proc. 4(d) (4).

But the period when such con-

siderations remained pertinent

expired at the latest when

Kossick was discharged after the

last surgical attention to his

injury in November 1952 and noth-

ing more in the way of remedy

could be accomplished. It would

be unreasonable to postpone the

beginning of the limitation period

so long as Kossick exercised his

statutory right to demand further

treatment at the Hospital, 42 U.S.C.

§ 249--a period that will never

expire so long as he is a seaman."

(page 936)

16.

omy

—

ee eee et

For a recent case applying the Kossick

“continuous treatment" rule, see: Accardi

v. United States, 356 F Supp 218, 221 (SDNY

1973).

The Ninth Circuit in Ashley v. United

States, 413 F 2d 490, 493 (9th Cir 1969)

took exception to the Kossick "continuous

treatment" rule:

",. . .We disagree. The

principle may have origin-

ated because it was thought

that a private physician,

knowing of his actionable

mistake, might be able to

conceal it from his patient

or continuously to lull the

patient into failing to in-

stitute suit within the

ordinary time period. To

apply such a rationale in

this case would be unreali-

etically to imasine that a

= Boe

government physician in a

Veterans hospital would be

able to conspire successfully

with all other government phy-

cians and medical attendants

who direct their attention to

patients such as Ashley."

(Ashley at page 493).

The Third Circuit Court of Appeals in

Tyminski v. United States, 481 F 2d 257 (1973)

also rejected the proposition that continuous

treatment should act as an alternative test

for determining when a claim accrues under

the Tort Claims Act:

", . .We reject this approach.

We find no value in the conten-

tion that a person who knows of

the existence of the sete upon

which his claim for negligerce

in a medical malpractice case

is based may nevertheless fore-

stall bringing suit until the

18.

eg INGE ee Tr |

Base

Oe te Re a ee arar

SD BIO ad)

DO pM BON AIIM E 2° niet

treatment for his injuries

is complete... ." (Tyminski,

page 264, footnote 5).

See, also, Ciccarone v. United States, 486

F 2d 253, 257 (3d Cir 1973): ". . . it is the

continued existence of the physician-patient

relationship which tolls the statute of limita-

tions. Once this personal, confidential rela-

tionship terminates, the patient must exercise

diligence in seeking a remedy for any suspected

wrongdoing on the part of his physician. re he

The. Seventh Circuit in Cooper v. United

States, 442 F 2d 908, 919 (7th Cir 1971) pointed

to the fact that the courts of appeals were in

disagreement over the concept of "continuous

treatment” and went on to decide the case

using two rationales:

"Even if the limitations period

ae a . rt -. > re " al - ae “ dee y

. Sone ae q 3> ‘4 x" far tal eo, e .

PE SAS Ate DSS ey eer ect ire te arie ys SR Ae tS Sey

i SS) Bo i " yn oa ee oT ee , pq ws '

Qed tied eh EAD a

for the wrong complained of

began as late as the termination

of plaintiff's relationship with

the Government (citation omitted),

19.

‘

. ee ee aa a .

‘

‘ ‘

‘

;

i ‘

‘

‘ r .

‘

PL DALLA IE IA ITIL (ELE CIV *

z=... FE eS Pe RT ee

the two-year period commenced

running on his June 29, 1967

release from the Du Page County

Jail to the Illinois state

authorities. . ."

The Fifth Circuit in Philadelphia National

Bank v. United States, 411 F 2d 747, 748 (5th

Cir 1969) affirmed the dismissal of the trial

court based upon the undisputed fact that the

action was not commer.ced for more than two years

after the marshall's custody was terminated and

the vessel was turned over to the plaintiff

which bid it ir on foreclosure sale.

In the instant matter, the Petitioner

alleged malpractice in January,1966 wher his

x-ray was misread.

This negligence, Petitioner alleges, resul-

ted in seven subsequent surgeries which other-

wise would not have been necessary. The first

surgery occurred on february 17, 1°G€ and the

last surgery occurred in Culv, i965.

A few weeks efter Peticioner terminated

ae a

~we

”“

Set JAE

ene

his treatment, he filed his Federal Tort Claim :

(August 15, 1969).

The rationale in Kossick, supra, that it

would be absurd to require a wronged patient

to interrupt corrective efforts by serving a

summons on the physician or hospital superin-

tendent or on the United States Attorney, seems |

sound from a policy point of view. |

Under the view expressed in Ashley, supra,

the Petitioner, a veteran, would have to sue

the United States of America for malpractice

by its agents and employees while still under-

going curative treatment and surgery for the

alleged negligence at a government facility.

Ashley, supra, took the view that once the

patient knew of the negligence, that the stat-

ute would commence running regardless if treat-

ment had been completed. See, also Tyminski,

supra.

Ashley and those Circuits following the

Ashley rationale talk in terms of the continved

existence of the physician-patient relationship

21.

which tolls the statute of limitations.

Most persons who find out that their

doctor or hospital have been negligent will

go elsewhere for curative treatment by choice.

This is not always possible where the patient

is a veteran without funds and who must, by

necessity, remain at the veteran facility for

the curative treatment.

In Kossick, the Court assumed that Kossick

;

must have discovered the grievous injury inflic-

ted upon him shortly after the enema on August

29, 1950. However, even with this knowledge,

ae an cuba Sond EARNERS

the Court commenced the statute of limitations

when Kossick was discharged after the last csur-

gical attention to his injury in November, 1952

and nothing more in the way of remedy could be

accomplished.

The Circuits have confused "knowledge and

curative treatment” with the "physician-patient

relationship”. Each is a separate and distinct

doctrire based on different policy considera-

tions.

22.

a ES RS,

PO AALS OO T

aoe

evs

This Court should grant certiorari to

resolve the division of opinion and confusion

presently existing in the courts of appeals.

NEGLIGENT OR INTENTIONAL

MISREPRESENTATION TOLLS

THE STATUTE OF LIMITATIONS

The Ninth Circuit has not squarely issued a

decision as to whether negligent or intentional

misrepresentation by a doctor or doctors will

toll the statute of limitations under Title 28

§2401(b).

Hungerford v. United States, 307 F 2d 99

(9th Cir 1962) seems to state that due to the

fiduciary duty involved, 28 U.S.C. §2680(h)

regarding tort claims for misrepresentation and

| deceit in medical malpractice cases are not

} barred under the provisions of 28 U.S.C. 1346 (b)

and 2674.

: If this is the case, certainly misrepresen-

tation and deceit should not be allowed to bar

Petitioner's claim until two years have elapsed

23.

from the time Petitioner is told the true facts.

In the instant case, the Petitioner was never

told the true facts by Government agents and em-

ployees -- he found out quite by accident in

June, 1968 and thereafter filed his Federal Tort

Claim on August 15. 1969, well within the two-

year period.

The confusion is obvious from the trial

judge's comments at page 165:

The Court: Let's assume the

statements were made and the

statements were false. Does

that just toll the statute?

In Toal v. United States, 438 F 2d 222 (2d

Cir 1971) the Court, in a case very similar to

Petitioner|'s, found that Toal had been prevented

from ee ee any act of malpractice had occurred

because off a Goctor's assurances and the failure

to file ajinotation in the records.

Rahn VV. Unitec States, 222 F Supp 775 (SDG

1963) has} many factual similarities to the Peti-

tioner's icase.

rer ova POS lp SGPT Ry ee >

LEE ALOR ALLE LOGE GRE TOE A LION E

The Court in Rahn held that the statute of

limitations was tolled where a physician had con-_

cealed the facts showing negligence, and the

statute of limitations began to run only when

the facts were discovered.

Fravel v. Pennsylvania R. Co., 104 F Supp

84 (D.M. 1952) discussed misrepresentation as a

ground to grant relief against a statute of

limitations.

This High Court in Gius v. Brooklyn Eastern __

Terminal, 359 U.S. 231, 3 L Ed 2d 770, 79 S Ct 760

(1959) has held that the maxim that no man may

take advantage cf his own wrong has been applied

frequently to bar inequitable reliance on statutes

of limitations.

This Court has also used the term "blameless

ignorance" to toll the statute of limitations

under the Federal Employers' Liability Act. See,

Ugie v. Thompson, 337 U.S. 163, 69 S Ct 1613,

93 L Ed 1283 (1949).

Even in view of this impressive authority

that negligent or intentional misrepresentation

25.

owt (Pe Mees * =

7 -_

POP? OF

“ates >

@ °

Tae,

‘og

tolls the statute of limitations under Title 28

§2401(b) and unrefuted testimony by Petitioner

as to what he had been told by Government doctors!

(R. T. pages 57, 58, 64, 66, 85, 86, 93, 95, 108, .

142, 143, 146), the Trial Judge made the follow-

ing remark: ;

The Court: “What statements?"

(R.T. page 152).

See, also, Scarborough v. Atlantic Coast Line

R. Co., 178 F 2d 253 (4th Cir 1949) where fraud

was held to toll the statute of limitations.

It is submitted that intentional or negli-

gent representations made to a patient regarding

the patient's condition or diagnosis estops the

Government from asserting the two year statute

of limitations set forth in 28 U.S.C. 2401 (b)

until the patient is informed of his true con-

dition and the correct diagnosis. The two year

statute of limitations commences from that date.

CONCLUSION

This Court should examine the provisions of

26.

ee en i a

‘

/ f

,’

' ‘

‘

a eee ae .

the Federa. Tort Claims Act dealing with the

two year statute of limitations and apply

equitable considerations which have the effect

of tolling the statute for those periods of

time when (1) a patient is undergoing contin-

uous curative treatment and (2) while a patient

has not been advised of his true condition.

For these reasons a writ of certiorari

should issue to review the judgment and opinicn

, of the Ninth Circuit.

Respectfully submitted,

KIM H. PEARMAN

7080 Hollywood Boulevard

Hollywood, California 90028

Counsel for Petitioner

LEERY LI OLN TELL IONE PTR ITM LEI ATTEN TIN STM, HI ~ gE

DO NOT PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Sipney GREENBERG,

Plaintiff-Appellant,

se | No. 73-2045

Unrrep States or AMERICA, :

Defendant-Appeltee, | MEMORANDUM

[May 21, 1974]

On Appeal from the United States District Court

for the Central District of California

Before: CHAMBERS, HUFSTEDLER and WALLACE,

Circuit Judges.

The district court’s order dismissing Greenberg’s medical mal-

practice action for failure to state a claim for which relief may be

granted is affirmed. A claim based on the Federal Tort Claims Act

is barred unless “begun within two years after such claim accrues

....” 28 USC. § 2401(b). “[U]nder federal law a claim for mal-

practice accrues against the government when the claimant dis-

covers, or in the exercise of reasonable diligence should have

discovered, the acts constituting the alleged malpractice.” Hunger-

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

court’s finding that Greenberg was aware, or should have been

aware, of the alleged acts of malpractice more than two years

prior to filing this claim is supported by the evidence and is not

clearly erroneous.

PERNAU-WALSH PRINTING CO., SAN FRANCISCO §-24-74—480

APPENDIX "A"

Bitar cvecoses ener een PRE LOPTLLELE LLG ELL LED LD ELGELE LION IE IGE

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.