1975 and that this new section does not preclude an action against Dr. Koch individually; defendant in opposition argues that the action did not accrue until the alleged malpractice became known to plaintiffs in April 1977 and that the private action is therefore inappropriate.
It is the opinion of this Court that defendant's construction is the proper one. We reach this determination in reliance upon basic concepts regarding accrual of malpractice actions, in consideration of equitable factors, and based upon our perception of legislative intent.
In order to protect potential plaintiffs against the lapsing of a cause of action during a time period when an injury remained undetected, a medical malpractice action is not deemed to accrue for purposes of the statute of limitations until the injury is, or reasonably should be, discovered. See Jones v. Rogers Memorial Hospital, 143 U.S. App. D.C. 51, 442 F.2d 773, 774-75 (1971). Although recognizing plaintiffs' argument that accrual for purposes of the statute of limitations need not necessarily control accrual for purposes of this statute, we see no reason to bifurcate the concept of action accrual to enable plaintiffs to pursue two actions in search of a recovery for an alleged malpractice. See Young v. Clinchfield Railroad Co., 288 F.2d 499, 502 (4th Cir. 1961) (occurrence of wrongful act insignificant to accrual of malpractice action where injuries not immediately detectable). Notably, the elimination of a cause of action against the individual medical practitioner does not deprive plaintiffs of an effective and satisfactory avenue of relief in this action: the federal government is defending this action pursuant to the Federal Tort Claims Act, and plaintiffs could not achieve recovery against both the Government and the private individual.
In addition, it is our conclusion that it was the intent of Congress to fully protect medical personnel from any potential personal financial liability that might arise from performance of official medical duties. See S. Rep. No. 94-1264, 94th Cong., 2d Sess. 2 (1976). This Court cannot endorse plaintiffs' contention that Congress only intended to insulate medical personnel against liability for activity occurring after August 8, 1976: potential malpractice defendants would be forced to secure malpractice insurance against subsequently discovered injuries ad infinitum, only to preserve for an injured plaintiff the choice between two effective methods of securing relief. Plaintiffs' interpretation of the statute's scope would make a serious and unnecessary inroad on the protection afforded by the statute.
For these reasons, it is by this Court this 5th day of January, 1978,
ORDERED, that the motion of plaintiffs for reconsideration of the order of this Court substituting the United States of America as defendant be, and the same hereby is, denied; and it is further
ORDERED, that the motion of defendant United States of America to dismiss this action for lack of subject matter jurisdiction be, and the same hereby is, granted. 28 U.S.C. § 2675(a); see Three-M Enterprises, Inc. v. United States, 548 F.2d 293, 294-95 (10th Cir. 1977).
This action is dismissed.
JOHN H. PRATT / United States District Judge
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