(dissenting):
I respectfully dissent. The plaintiffs’ own pleadings and affidavits not only support but indeed compel an affirmance of the district court’s findings that this malpractice claim accrued more than two years before the administrative claim was filed and that the court was therefore obligated to dismiss the complaint as time-barred by 28 U.S.C. § 2401(b).
Application of the time bar turns on when the parents of the infant plaintiff first knew, or reasonably should have known, the fact which constitutes the gravamen of the present claim: that their child’s condition — which ultimately proved to be meningitis — had been misdiagnosed by a doctor at the Plattsburgh Air Force Base in April, 1971. After examination in the early part of that month, the doctor told the mother that the infant was suffering from a cold and teething problems. The child’s condition persisted, however, and after traveling to California, the mother took her child to the San Diego Naval Hospital there on April 27. While the various papers filed by the plaintiffs differ somewhat in their description of the details of what the mother was told on that visit, even the affidavit most favorable to the plaintiffs clearly states that the San Diego doctors told the mother that “the child was very sick and that they suspected meningitis” and further that the child should be baptized and given the Last Rites. Affidavit of Gail Marie Camire dated August 26, 1975, Par. 6.1
Even under a liberal interpretation of the “discovery” rule of the statute of limitations, and taking into account the limited education of the mother, the receipt of this stark information surely led her, or reasonably should have led her, to discover at that point that the previous diagnosis of a cold and teething problems was mistaken. The claim thus accrued at that point, see, e. g., Toal v. United States, 438 F.2d 222, 524-25 (2d Cir. 1971); Quinton v. United States, 304 F.2d 234, 240 (5th Cir. 1962), and the notice of claim should have been filed by late April 1973, some eight months before it was filed. Since the plaintiffs’ own papers disclose the facts leading inescapably to this conclusion, there is no issue of material fact between the parties, and our decisions in Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317 (2d Cir. 1975), and Judge v. City of Buffalo, 524 F.2d 1321 (2d Cir. 1975), do not preclude an affirmance. Sympathetic as I am to the plight of parents and child, I find no rational basis whatever for avoiding a clearly applicable rule of law.
The majority suggests no reason for doubting that, whatever the full reach of the diagnosis made at San Diego on April *75227, 1971, the mother was given at least the information described above. Nor does it hold that imparting of this information was insufficient, as a matter of law, to trigger an accrual of the claim at that point. It thus leaves the purpose of the remand unclear. Presumably the district judge is to hear oral testimony reiterating what has already been set out at some length in the plaintiffs’ papers, before he draws,2 once again, the only reasonable conclusion: that the action is time-barred.
. In their administrative claim dated November 30, 1973, and signed and sworn to by the parents in December, 1973, which was before the two-year time-bar had been raised as a defense to their claim, the parents swore that upon arrival at the San Diego Naval Base on April 26, 1971, “Gail Marie Camire was advised that the said child had an advanced case of spinal meningitis of approximately three to four weeks advance stage.” (App. 24).
Along the same lines the complaint in the action, sworn to by the parents on November 9, 1974, alleges (Par. 10) that
“upon arrival to the Balboa Naval Hospital in Balboa, California, the infant sustained a convulsion and exhibited the same symptoms as previously reported to Capt. Donald Marger, M.D., and was immediately diagnosed as an advanced case of meningitis. The exact type of meningitis was undiagnosed due to the advanced stage of the illness.”
The foregoing is consistent with a contemporaneous record of the San Diego Hospital showing a diagnosis of “meningitis” upon the child’s admission.
. There is no right to jury trial in this Federal Tort Claims Act case. 28 U.S.C. § 2402. Thus, even if the ultimate determination of when the mother reasonably should have discovered the alleged misdiagnosis can be said to be a factual one, that decision is nonetheless for the court.