dissenting.
Not sharing the views of my colleagues, I respectfully dissent.
The Quinton statute of limitations rule,1 as the majority suggests, is susceptible to varying interpretations. Some reasonable flexibility is no doubt desirable, but when flexibility becomes an unwarranted extension, then I believe we are permitting the statute of limitations to dissolve into a statute of indefiniteness. Under the majority opinion the triggering of the statute of limitations is indefinitely suspended until claimant has discovered or had reasonable opportunity to discover, not just the alleged negligent acts, but all the essential elements of a possible cause of action — duty, breach, causation and damages. Such a rule involving legal as well as factual issues becomes, in my view, unrealistically subjective. We may expect under this rule for courts to spend as much time trying to determine when the statute of limitations began to run as with the merits of a claim.
As laudable as concern may be for claimants with possible meritorious claims, even though negligent in their timely prosecution, I believe that flexibility should be restrained by remembering that the statutory waiver of sovereign immunity2 is to be liberally construed, not in favor of claimants, but “in favor of repose for the United States.” Cooper v. United States, 442 F.2d 908, 912 (7th Cir. 1971).
In Quinton the court noted that the majority rule then was that the cause of action for malpractice accrued on the date of the negligent act even though the claimant was unaware of his plight. That rule was so harsh, the court determined, as to justify modification. The rule adopted was stated to be that a claim for malpractice accrued against the Government when the claimant discovered, or in the exercise of reasonable diligence should have discovered the acts constituting the alleged malpractice. I would leave that rule as it is.
If there may be any merit in some further liberalization of the Quinton rule as accomplished by the majority, this case serves as little justification for it. My view necessitates some detailed consideration of the facts. In her deposition, claimant stated specifically that her complaint was only about the treatment of her left hand by VA doctor Larson.
Let us review in this montage of her own words taken from her tardy administrative claim and deposition the critical events. I would expect that most will agree that at least the doctor-patient relationship here revealed is fortunately rare.
*282He [Dr. Larson] came into my room on the following Monday, without holding my arm or without warning, cut the hand down and let it fall.
* * * * *
A. Yes, I was scheduled to have it off on Thursday. And so then he put the tool that he cut it off over the middle finger and pushed the middle finger down and clipped the clipper underneath the cast and proceeded to cut it off. In the meantime, I was yelling with pain and asking him not to do that. And I kept telling him it is hurting and heshouldn’t do that, you are injuring my hand, and he told me to shut up or he could take the same tool and cut my tongue out.
Q. What sort of tone of voice did he use?
A. Sort of snide and he proceeded to cut the cast off and that is when I started having problems with the middle finger.
Q. So you began suffering pain during the time he was cutting the cast off?
A. Yes.
Q. And that is somewhere around April of 1972?
A. Yes.
Q. And did he say anything else to you during the removal of this cast?
A. He had to try to fit the brace on my hand and it was the right hand brace that I had used on the right hand and instead of him adjusting the brace first and then trying it to my hand, he put it on my hand and held the brace and grabbed right above the prosthesis and tried to fit the brace on my hand.
Q. Did that cause you to suffer pain?
A. Yes, it sure did.
Q. Did you tell him about the pain you were suffering?
A. Yes, I did. He kept right on going.
Q. Was it from that time on that you had difficulty with your middle fingers?
A. Yes.
Q. Were you suffering pain in your other fingers in your left hand from that time?
A. From that time but not too much before.
(Emphasis added).
* * * * * *
Larson had no foreknowledge of the Pope brace, I was to wear, and proceeded to try to fit it to my hand, squeezing the part where the implants are. When he removed the cast, my little finger and index finger had rotated on the shaft. At the stub of the ulna, I kept complaining and he wouldn’t examine it.
The record contains further evidence of claimant’s awareness from the very beginning of the problems which form the basis of her claim, but for the purposes of this dissent, I see no need to further pursue those details. Within two years of claimant’s last VA treatment, claimant also consulted her private physician about these complaints.
I would affirm as being barred by the statute of limitations.
. Quinton v. United States, 304 F.2d 234, 240 (5th Cir. 1962).
. 28 U.S.C. § 2401(b).