APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (Trenton)
Before: WEIS, BECKER and VAN DUSEN, Circuit Judges
VAN DUSEN, Senior Circuit Judge.
This is an appeal from district court orders dismissing a medical malpractice action brought under the Federal Tort Claims Act, 28 U.S.C. § 2674, on the ground that the injured party had failed to file the necessary claim with the appropriate federal agency within two years of the time that the cause of action accrued. .See 28 U.S.C. § 2401(b) (3). We reverse and remand for further proceedings consistent with this opinion.
On March 8, 1976, Dr. William L. Rohr, a Navy doctor, "obtained a history of present illness from Frank Peterson [a retired Lieutenant Commander] upon his admission to Naval Regional [Medical] Center," Philadelphia, from which history "it was apparent that Mr. Peterson knew about [a] left upper lobe lung lesion in 1973."*fn1 Dr. Rohr also certified in that affidavit that he had explained to Mr. Peterson "[f]from March 8 to March 15, 1976, the existence of the probably malignant neoplasm and the necessity for surgery . . ." (13a).*fn2
On March 28, 1976, Peterson entered the Naval Regional Medical Center and underwent surgery two days later. During this thoracotomy and lobectomy, the surgeon removed tissue which the Pathology Department, in a report dated April 7, 1976, determined to be carcinomatous.
On March 28, 1978, Peterson filed an administrative claim with the United States Navy, which denied it on May 12, 1980. His widow*fn3 then filed suit in the United States District Court for the District of New Jersey and contended that the Navy doctors breached their duty of care to her husband by failing to diagnose the malignancy and subsequent metastasis. Thereafter the Government filed a motion to dismiss under Fed. R. Civ. P. 12(b) (1) and argued that Peterson's cause of action accrued when Dr. Rohr advised him on or before March 15, 1976, that he probably had a malignant neoplasm and that therefore his administrative claim filed March 28, 1976, more than two years thereafter, was untimely. Specifically, Dr. Rohr stated in an affidavit that
"5. From March 8 to March 15, 1976, the existence of the probably malignant neoplasm and the necessity for surgery was [sic] explained to Mr. Peterson.
"6. A copy of the discharge note prepared by me on March 15, 1976 was given to Mr. Peterson on that date.
"7. This discharge note included a statement that the patient [Mr. Peterson] was lost to follow-up care from September, 1973 until March, 1976.
"8. This discharge note was given to Mr. Peterson at his request for the purpose of seeking outside medical advice.
"9. All of the information contained in the discharge note was explained to Mr. Peterson. By the time of his discharge on March 15, 1976, Mr. Peterson expressed his belief that the ...