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ESPINOZA v. UNITED STATES

June 16, 1989

MARGARITO ESPINOZA, Plaintiff
v.
UNITED STATES OF AMERICA, Defendant



The opinion of the court was delivered by: SHADUR

 MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 Margarito Espinoza ("Espinoza") has sued the United States of America ("United States") under the Federal Tort Claims Act (the "Act"), 28 U.S.C. §§ 2671-2680, *fn1" charging medical malpractice. In response the United States has moved under Fed. R. Civ. P. ("Rule") 12(b)(1) to dismiss the First Amended Complaint (the "Complaint") and this action for lack of subject matter jurisdiction -- more precisely, for untimeliness under Section 2401(b). For the reasons stated in this memorandum opinion and order, the motion to dismiss is granted.

 Facts2

 Beginning in July 1977 and continuing through September 9, 1986 Espinoza was treated at Edward Hines, Jr. Hospital ("Hospital"), operated by the United States through the Department of Veterans Administration ("VA"). In July 1977 and October 1979 surgical procedures were performed on Espinoza's inner ear at the Hospital. At all other times his visits to the Hospital related to hearing loss, earaches and dizziness, nausea and pain associated with the conditions that either necessitated the surgical procedures or resulted from the surgical procedures.

 According to Complaint para. 4, beginning on March 19, 1979 and during a continuous course of conduct extending through September 9, 1986 doctors employed at the Hospital failed to diagnose and treat properly (both pre- and post-operatively) a temporal mandibular joint (TMJ) syndrome problem suffered by Espinoza. *fn3" That failure caused Espinoza's injuries described in Complaint para. 5 as "loss of hearing, loss of feeling and movement in fact [sic] and jaw, quivering of jaw and pain."

 Facts adduced by the United States and undisputed by Espinoza flesh out the bare-bones allegations of the Complaint. Dr. Bruce Bloom, *fn4" an expert retained by Espinoza, testified medical records indicated the onset of TMJ syndrome was in 1979 after the surgical procedure (and it was probably caused by the procedure). Records of Dr. George Goldstein (an eye, ear, nose and throat physician not employed by the United States) reflect visits to him by Espinoza beginning in December 1980, with a diagnosis of TMJ syndrome *fn5" and the prescription of a "TMJ regimen" at that time. Dr. Debra Klein (a dentist also not associated with the United States) examined Espinoza in September 1984 and also diagnosed TMJ syndrome. j

 Litigation History

 On October 19, 1981 Espinoza filed a malpractice action in this Court against the United States, the VA and three VA doctors (Espinoza v. United States, 81 C 5794 (N.D. Ill.)). *fn6" Count I of that complaint alleged negligence by the United States on and after July 25, 1977, while Count II alleged negligence on and after March 19, 1979. Both counts charged such negligence caused "loss of feeling and movement in face and jaw and pain" (Count I para. 11, Count II para. 8), although TMJ syndrome was not identified by that name. Count III paras. 5-7 alleged that a VA doctor "intentionally and maliciously concealed and misrepresented" to Espinoza that his treatment had been competent and not negligently performed. Count III para. 9 alleged Dr. Goldstein had ascribed Espinoza's injuries to negligence in the 1977 and 1979 surgeries, and Count III para. 10 charged the VA doctor with having disputed Dr. Goldstein's diagnosis (allegedly more misrepresentation and concealment).

 After the United States responded by pointing out Espinoza's need to satisfy the statutory precondition of an administrative claim before bringing suit (Section 2675(a)), Espinoza's lawyer moved orally for dismissal. This Court dismissed the 1981 action with prejudice as to the individual defendants (who were not proper defendants), and without prejudice as to the United States because of Espinoza's noncompliance with Section 2675(a).

 Several years passed. Then on September 2, 1986 an administrative tort claim was filed with the VA, *fn7" charging the VA's failure to diagnose TMJ syndrome and stating Espinoza "first knew or should have known" of the claim on March 27, 1985. On February 13, 1987 an amended claim was submitted, changing the "first knew or should have known" date to September 11, 1984.

 After the government's denial of the administrative claim Espinoza filed the current action. It was initially assigned to the calendar of this Court's colleague Judge James Holderman (that was in accordance with this District Court's regular system of random assignment, because the action had not been specified as the refiling of a previously dismissed case). When that status as a refiled case was identified, the case was reassigned to this Court's calendar in accordance with this District Court's General Rule 2.21(d)(2).

 Jurisdictional Time Limitation

 Section 2401(b) states in ...


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