of this issue depends on the legal significance of the fact
that Mr. Pardy was comatose due to the alleged malpractice
from November 6, 1978, to November 21, 1978. The question
presented is whether Mr. Pardy's claim accrued on November 6
or November 21.
In United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62
L.Ed.2d 259 (1979), the Court addressed when a claim accrues
under 28 U.S.C. § 2401(b). The Court of Appeals in Kubrick had
decided that a claim does not accrue until the injured party is
1) aware of his injury, 2) its cause, and 3) that the doctor
who caused the injury was negligent. The Supreme Court removed
the third prong from the analysis holding that Congress did not
intend that accrual of a claim "must await awareness by the
plaintiff that his injury was negligently inflicted." Id. at
123, 100 S.Ct. at 360. Therefore, plaintiff's claim for relief
accrued when he was aware of his injury and its cause.
Since Mr. Pardy was in a coma until November 21, 1978, he
could not appreciate his injury or its cause until at least
that date. Therefore, under Kubrick the two year statute of
limitations began to run on November 21, 1978. The government
seeks to avoid this result by arguing, (1) that the discovery
rule is inapplicable to the facts of this case; and (2)
incompetency does not toll the statute of limitations.
The government argues that the discovery rule was never
intended to cover a situation where a plaintiff is rendered
incompetent by the government's tortious acts. Rather, the
government contends that the application of the discovery rule
is limited to situations where an injury does not manifest
itself for many months, or even years, such as when a doctor
leaves a sponge inside the body of a patient. The Court finds
that the discovery rule cannot be limited to such an extent.
In Stoleson v. United States, 629 F.2d 1265 (7th Cir. 1980),
the Seventh Circuit had an occasion to discuss the history of
the discovery rule. The Court cited Urie v. Thompson,
337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949) for the proposition
that "it is the nature of the problems faced by the plaintiff
in discovering his injury and its cause, . . . that governs the
applicability of the discovery rule." Accordingly, the Court
concluded that "any plaintiff who is blamelessly ignorant of
the existence or cause of his injury shall be accorded the
benefits of the discovery rule." Id. at 1269.
The Court finds that the broad language in Stoleson defining
the purpose and scope of the discovery rule mandates a decision
that the discovery rule applies when a plaintiff is rendered
incompetent by the government's allegedly tortious conduct.
Plaintiff was certainly "blamelessly ignorant" of his injury
until November 21, 1978. Pardy, through no fault of his own,
could not appreciate his injury or its cause until at least he
came out of the coma. Therefore, the Court concludes the
discovery rule as defined in Kubrick applies to this case.
Finally, the government argues Mr. Pardy's claim is barred
because incompetency does not toll the federal statute of
limitations. The introduction of this rule in the factual
context before the Court creates a collision between two
well-settled principles of law. On the one hand, infancy,
incompetency and insanity traditionally have had no effect on
the length of the federal statute of limitations in a
particular case. Casias v. United States, 532 F.2d 1339, 1342
(10th Cir. 1976). On the other hand, the purpose and scope of
the discovery rule as defined in Kubrick necessitates a finding
that incompetency is relevant to determine when a claim in fact
The Court is aware of two cases which attempt to reconcile
these two conflicting doctrines. In Zeidler v. United States,
601 F.2d 527 (10th Cir. 1979), the Court decided that the
normal rule governing infancy, insanity and incompetency is
inapplicable when a person is rendered incompetent by
the allegedly tortious conduct. Similarly, in Dundon v. United
States, 559 F. Supp. 469, 474-75 (E.D.N.Y. 1983), the court
relied on Zeidler and held that the statute of limitations is
tolled during the period the plaintiff is incompetent when the
incompetency is caused by the very negligence of which the
plaintiff is complaining. The rationale behind these cases is
two-fold. First, the government should not be allowed to
benefit from its own wrong. Second, brain damage or destruction
should not be classified in the same way as ordinary mental
disease or insanity for purposes of barring an action.
Although the government has not come forward with any cases
which have barred an action in this specific factual context,
Judge Logan's dissent in Zeidler supports the government's
position. Judge Logan argues as follows:
Under the majority opinion as I read it, if
Zeidler was mentally incapacitated before the
operation then the claim is barred; if he was
incapacitated by the operation, his claim is not
barred. To me, this is a distinction without a
Zeidler v. United States, supra, at 533 (Logan J. dissenting).
The Court finds this argument to be unpersuasive. First, the
Court feels it is reasonable to treat tortiously induced
incompetency different than ordinary incompetency for purposes
of the statute of limitations. Secondly, Judge Logan's concern
that those incompetent at the time of the alleged malpractice
be treated similarly to those rendered incompetent by the
alleged malpractice is remedied by the discovery rule. Although
the Court has not found a case which deals directly with the
question, it would be unreasonable to give competent persons
the benefit of the discovery rule but not incompetent people.
Logically, applying the discovery rule, if a person is
incompetent, his claim for relief accrues when his legal
guardian discovers the injury and its cause. In short, the
Court disagrees with Judge Logan's apparent assumption that the
statute of limitations always runs against incompetent persons
at the time of the injury. Nonetheless, in virtually every case
where an incompetent person suffers an injury as dramatic as
Mr. Pardy's, the claim for relief would accrue at the time of
the injury because his legal guardian would "discover" the
injury when it occurred. However, because Mr. Pardy was
competent when he entered the hospital, he had no legal
guardian to discover the injury for him.
Therefore, based on the reasoning set out above, the Court
finds that Mr. Pardy's claim is not barred by the statute of
limitations. Accordingly, defendant's Motion to Dismiss or, in
the Alternative, Summary Judgment is hereby DENIED.
IT IS SO ORDERED.
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