concurring and dissenting.
I respectfully dissent from the court’s opinion today, but agree that Wehrman’s claims for events that occurred within two years before the filing of his administrative claim are not barred by the statute of limitations.
I agree with the district court on its analysis of the continuing treatment rule for the reasons stated in its opinion. Plaintiff knew that his condition had become more serious and accordingly had some duty to seek additional medical information. United States v. Kubrick, 444 U.S. 111, 122-23, 100 S.Ct. 352, 359-60, 62 L.Ed.2d 259 (1979).
Wehrman has separate and independent claims for events occurring within the two years before he filed his claim on October 24, 1984, and specifically alleges negligent advice against surgery. The government did not respond to Wehrman’s argument that acts within the two years before the filing of the claim would not be barred. See Page v. United States, 729 F.2d 818, 821 (D.C.Cir.1984).
The record reveals that Wehrman saw Veterans Administration doctors February 7, September 26, and November 28, 1983. On January 3, 1984 an endoscopy was performed. In Wehrman’s interrogatory answers and affidavit filed in response to the motion for summary judgment, he states that Veterans Administration doctors at the out-patient clinic and the chief of surgery told him in February, 1984 that if they operated it would probably kill him and “you have too many problems for us to operate.” (D.R. 12, 36).
I would remand only with respect to those claims based on events occurring within two years before the date that Wehrman filed his administrative claim with the Veterans Administration or October 24, 1984.