A Korean War veteran, made deaf by medical malpractice in a Veterans' Administration hospital, should not be deprived of the $320,500 damage award he won from the government, which misled him about the true cause of his injury, his lawyer argued in the Supreme Court yesterday.
The issue raised by the case of William A. Kubrick, 50, of Wilkes-Barre, Pa., is whether he filed his claim for damages within the two-year limit in the Federal Tort Claims Act.
The lawyer, Benjamin Kuby, argued that Kubrick compiled with the law because he filed the claim within two years after discovering that the deafness was caused by the negligent use of an antibiotic called neomycin -- not, as alleged by a VA field examiner, by excessive noise in the shop where he worked as a maintenance machinist.
For the government, however, Elinor Hadley Stillman contended that the limit had started to run much earlier -- when Kubrick learned from a physician that the drug caused his then serious and worsening hearing loss.
Kuby, in an exchange with Justice Harry A. Blackmun, said that when the clock starts to run should depend on individual circumstances such as education.
For example, he said, the deadline should be earlier for a hearing specialist than for Kubrick, who had an 11th-grade education had never heard of neomycin and had been misled by the VA, which ultimately admitted negligence.
"He trusted his government," Kuby said. "He ought not to suffer for it." Kubrick's employer, fearing that Kubrick's deafness created a safety problem, fired him in 1970, and he hasn't worked since. He also has had "severe psychological and family difficulties," his wife told a reporter. They have two children.
But Stillman, an assistant to the solicitor general, warned that a flexible time limit would undermine the congressional purpose: to induce persons who know or should have known that they were injured by government medical treatment to sue within two years.
Kubrick "could have found out that the administration of neomycin was negligence," she said.
Justice Thurgood Marshall seemed unpersuaded. Shouldn't Kubrick have trusted the VA? he asked.
The VA's denials of responsibility didn't deter Kubrick and his wife from investigating, Stillman replied.
Marshall said that a veteran would be wise to file a claim "the day you come out of the hospital."
The case began in April 1968, when Kubrick entered the VA hospital in Wilkes-Barre with an infection in his right thigh bone. After surgery, orthopedist H. P. Wetherbee irrigated the wound with neomycin. At the time the ability of the drug to cause deafness was well-known. Its use was "improper," the VA Board of Veterans Appeals acknowledged in 1975.
Later in 1968, noticing loss of hearing and ringing in his ears, Kubrick visited ear specialist J. J. Soma, who diagnosed bilateral nerve deafness. The condition got worse. In January 1969 he went to another specialist, who, after examining the VA records, said neomycin was the cause or "probably" the cause. That's when the clock started to run on the lawsuit, Stillman argued.
Still unaware of negligence, Kubrick twice asked for higher disability benefits. Each time, the VA turned him down with an exoneration of the drug, relying on a report in which field examiner J. A. Nagy quoted Soma as blaming noise at the jobsite.
Kubrick got a copy of the report and confronted Soma with it. The specialist said he had told Nagy that improper use of neomycin, not noise, was the cause of the deafness. That disclosure in June 1971 is what triggered the statute of limitations, Kuby said.
Kubrick sued in September 1972. In 1975, the VA, reversing itself, increased his disability payments. The increase exceeded $50,000 by last December. In 1977, a federal judge awarded him the $320,000 in damages. In July 1978 the 3rd U.S. Circuit Court of Appeals affirmed.