Mark Maio Fernandez, an Incompetent, by His Guardian Ad Litem, August Fernandez v. United States

The members of the panel are unanimously of the opinion that the decisional process would not be significantly aided by oral argument in this case and the case is therefore submitted without oral argument.

Mark Fernandez, by his guardian ad litem, appeals from a judgment dismissing his action against the United States under the Federal Tort Claims Act. We affirm.

I. Facts.

We take the facts from the trial judge’s Findings of Fact, which are not clearly erroneous.

Mark and his twin brother Wayne were born approximately six weeks prematurely at Tripler Army Medical Center in Hawaii on March 14,1958. Mark weighed 2 pounds 4/2 ounces; Wayne weighed 4 pounds 9 ounces. The court found:

Mark left Tripler Hospital on May 24, 1958, and his final visit to that hospital was on June 30, 1958. On that day, a copy of his discharge summary was given to his mother, and she later delivered it to Mark’s doctors at Kaiser Foundation Hospital in Honolulu. That summary stated all of the foregoing facts of Mark’s treatment. Thus those facts were available to Mark’s parents and to his doctors at Kaiser no later than 1958.

Wayne also developed jaundice shortly after birth. However, Wayne developed…