Richard Augustine v. United States
Opinion
Opinion
Reinhardt, J.
Plaintiff Richard Augustine brought an action for damages under the Federal Tort Claims Act (FTCA) for the alleged malpractice of Air Force dental surgeons. The Government filed a motion to dismiss for lack of subject matter jurisdiction based on Augustine’s alleged failure to comply in a timely manner with the administrative claim requirement of 28 U.S.C. § 2401 (b) (1976). The district court granted the motion and dismissed the action. We reverse.
I. FACTS
In September 1975, Augustine was examined by Lieutenant Colonel Wysocki, a United States Air Force dentist, for the purpose of having a dental plate constructed. An impression of Augustine’s mouth was made at that time. When Augustine returned to Dr. Wysocki on October 14, 1975, Dr. Wysocki informed him that the partial plate could not be made until he had a bump on his upper left palate treated. Dr. Wysocki referred Augustine to Major Peter Allen, an Air Force oral surgeon, for an examination of the bump. Augustine testified in a deposition that at that time the bump was no bigger than a pinhead, that he experienced no pain unless pressure was applied to the area, and that it had been there for some time.