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United States v. Kubrick

Supreme Court of the United States

October 3, 1979, Argued ; November 28, 1979, Decided

No. 78-1014


 [*113]  [***263]  [**354]    Mr. JUSTICE WHITE delivered the opinion of the Court.

 ] Under the Federal Tort  [***264]  Claims Act (Act), 1 28 U. S. C. § 2401 (b), a tort claim  [**355]  against the United [****5]  States is barred unless it is presented in writing to the appropriate federal agency "within two years after such claim accrues." The issue in this case is whether the claim "accrues" within the meaning of the Act when the plaintiff knows both the existence and the cause of his injury or at a later time when he also knows that the acts inflicting the injury may constitute medical malpractice.

 [****6]  I

Respondent Kubrick, a veteran, was admitted to the Veterans' Administration (VA) hospital in Wilkes-Barre, Pa., in April 1968, for treatment of an infection of the right femur. Following surgery, the infected area was irrigated with neomycin, an antibiotic, until the infection cleared. Approximately six weeks after discharge, Kubrick noticed  [*114]  a ringing sensation in his ears and some loss of hearing. An ear specialist in Scranton, Pa., Dr. Soma, diagnosed the condition as bilateral nerve deafness. His diagnosis was confirmed by other specialists. One of them, Dr. Sataloff, secured Kubrick's VA hospital records and in January 1969, informed Kubrick that it was highly possible that the hearing loss was the result of the neomycin treatment administered at the hospital. Kubrick, who was already receiving disability benefits for a service-connected back injury, filed an application for an increase in benefits pursuant to 38 U. S. C. § 351, 2 alleging that the neomycin treatment had caused his deafness. The VA denied the claim in September 1969, and on resubmission again denied the claim, on the grounds that no causal relationship existed between the neomycin treatment [****7]  and the hearing loss and that there was no evidence of "carelessness, accident, negligence, lack of proper skill, error in judgment or other fault on the part of the Government."

In  [***265]  the course of pursuing his administrative appeal, Kubrick was informed by the VA that Dr. Soma had suggested a connection between Kubrick's loss of hearing and his prior occupation as a machinist. When questioned by Kubrick on June [****8]  2, 1971, Dr. Soma not only denied making the statement attributed to him but also told respondent that the neomycin had caused his injury and should not have been administered. On Dr. Sataloff's advice, respondent then consulted an attorney and employed him to help with his appeal. In rendering its decision in August 1972, the VA Board of  [*115]  Appeals recognized that Kubrick's hearing loss "may have been caused by the neomycin irrigation" but rejected the appeal on the ground that the treatment was in accordance with acceptable medical practices and procedures and that the Government was therefore faultless. 3

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444 U.S. 111 *; 100 S. Ct. 352 **; 62 L. Ed. 2d 259 ***; 1979 U.S. LEXIS 152 ****



Disposition:  581 F.2d 1092, reversed.


diligence, accrue, malpractice, neomycin, tort claim, legal right, notice, cases, statute of limitations, hearing loss, two year, limitations, irrigation, accrual, advice

Administrative Law, Sovereign Immunity, Torts, Statute of Limitations, Tolling, Discovery Rule, Governments, Federal Government, Claims By & Against, Legislation, Time Limitations, Procedural Matters, General Overview, Liability, Claim Presentation, Federal Tort Claims Act, Procedural Matters, Civil Procedure, Subject Matter Jurisdiction, Jurisdiction Over Actions, Exclusive Jurisdiction, Types of Damages, Property Damages, Jurisdiction, Jurisdictional Sources, Remedies, Damages, Monetary Damages, Elements, Jurisdiction, Military & Veterans Law, Veterans, Claim Procedures, General Benefits, Compensation for Service Connected Death & Disability, Native Americans, Authority & Jurisdiction, Interpretation