Gess v. United States (909 F. Supp. 1426, 1995)

MEMORANDUM OPINION AND ORDER

DE ME NT, District Judge.

Before the court are Defendant United States of America’s (hereafter “United States”) motions to dismiss or, in the alternative, motions for summary judgment and the Plaintiffs’ cross-motion for summary judgment. Concomitantly, the United States submitted briefs in support of said motions. Plaintiffs filed responses and supporting briefs in opposition to the United States’ motions.

Because the motions involve similar issues and arise from the same set of facts, the court will consolidate the- motions and address them simultaneously. . After careful consideration of the arguments of counsel, the relevant case law and the record as a whole, the court finds that the United States and Plaintiffs’ motions for summary judgment are due to be denied.

JURISDICTION & VENUE

Plaintiffs predicate liability under 28 U.S.C. § 2401, et seq., the Federal Tort Claims Act (hereafter the “FTCA”). Subject-matter jurisdiction, thus, is proper pursuant to 28 U.S.C. § 1331, which provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the ... laws ... of the United States.” 28 U.S.C. § 1331. Personal jurisdiction and venue are not contested.

FACTUAL BACKGROUND

This is an action under the FTCA for injuries sustained by eleven newborn infants and one adult while patients on the obstetrics ward at a United States Air Force hospital in Montgomery, Alabama. In these consolidated cases, Plaintiffs seek recovery from the United States for physical complications allegedly caused by a “medical technician’s” malicious injection of lidocaine into the newborn infants and one adult, the latter of whom had just undergone a cesarean section.

In urging summary judgment as to eight of the twelve actions, the United States does not challenge the merits of the claims but raises two affirmative defenses. Specifically, the United States asserts that the applicable statute of limitations bars seven of the lawsuits. Plaintiffs counter by arguing that although the applicable limitations statute may have run, equitable tolling should apply and, thus, save their actions. As to the remaining action, the United States contends that the minor’s parents signed a release relinquishing all rights to now assert a legal claim against it.

Plaintiffs, on the other hand, have moved for summary judgment on the merits and assert that there is no genuine issue of material fact and that they are entitled to prevail as a matter of law. For clarity and organizational purposes, the court will set forth findings of fact as to each Plaintiff and then make conclusions of law.

Gess Plaintiffs

On July 29, 1988, Sharon Gess gave birth to Melanie Gess (hereafter “Melanie”) while confined to the obstetrics ward of the Air University Regional Hospital (hereafter the “AURH”), Maxwell Air Force Base (hereafter “Maxwell”), Montgomery, Alabama. Plaintiffs Lt. Col. William and Barbara Gess (hereafter the “Gess Plaintiffs”) contend that while a newborn infant in the AURH nursery, Melanie sustained injuries on or about July 30, 1988. Specifically, the Gess Plaintiffs contend that the United States Air Force acting for the United States allowed the administration of toxic agents into Melanie, which caused apnea, anoxia, acute respiratory distress and other medical problems.

The facts underlying the Gess Plaintiffs’ legal assertions are as follows: On or about January 19, 1989, the Gess Plaintiffs met with Dr. Stanford P. Sadick (hereafter “Dr. Sadick”), the Director of Hospital Services at the AURH. Lt. Col. Gess’ Dep. at 20. During this meeting, Lt. Col. Gess stated that “we [Lt. Col. and Ms. Gess and their daughter Sharon] were told of the incident of tampering and that our baby was part of it.” Id. at 27. Dr. Sadick also mentioned that it was possible that Melanie had been injected with lidocaine. Id. at 30. Lt. Col. Gess further claims that during this meeting, Dr. Sadick said the lidocaine “had gone right through her blood and that she [Melanie] was fine— that she would be just fine.” Id. Thereafter, the Gess family talked to investigators with the United States Air Force Office of Special Investigations (hereafter the “OSI”), who also informed them that it was possible that Melanie had been injected with lido-caine. Id.

After their meeting with Dr. Sadick and the OSI, the Gess Plaintiffs consulted Steven Schmitt (hereafter “Schmitt”), an attorney who practices law in Tallassee, Alabama, about the possibility of bringing an action against the United States for the injuries Melanie sustained. Id. at 44, 66. The Gess Plaintiffs also articulated concerns about the possible long-term effects of the injection(s). Lt. Col. Gess signed a contingency contract with Schmitt. However, Schmitt later decided not to take the ease and stated that the medical records showed no permanent injury. Id. at 67-68. Lt. Col. Gess asserts that as a result of Schmitt’s representation, he and his wife decided not to pursue a lawsuit; however, Lt. Col. Gess admits that he was aware that any claim against the United States was subject to a limitations period. Id. Additionally, the Gess Plaintiffs contend that United States doctors assured them that although Melanie had been injected with lido-caine, she would not suffer any adverse health consequences and that the Air Force would take care of the medical expenses. Gess’ Br. in Opp. to Mot. to Dis. at 5-6; Ms: Gess’ Dep. at 9.

The Gess Plaintiffs also claim that they saw the newspaper article regarding the malfeasance which had occurred at the AURH, but that because of the reassurances received from the OSI and Commander of the AURH that Melanie would suffer no permanent harm, they disregarded the article. Gess’ Br. in Opp. to Mot. to Dis.; Ms. Gess’ Dep. at 10, 18. Ms. Gess revisited the OSI and was told that Melanie was progressing favorably, despite occasional vomiting. Gess’ Br. in Opp. to Mot. to Dis. at 6; Ms. Gess’ Dep. at 6.

Subsequently, civilian physicians treated Melanie when she experienced further complications. Dr. Molly Walker (hereafter “Dr. Walker”) examined Melanie when her vagina closed and treated Melanie for vomiting. Ms. Gess testifies that she informed Dr. Walker that Melanie had been injected with lidocaine but that Dr. Walker expressed no causal nexus between Melanie’s symptoms and the lidocaine injections. Ms. Gess’ Dep. at 20, 21. Dr. Wyndell Galyard (hereafter “Dr. Galyard”) examined Melanie for stomach problems but opined that nothing was wrong with her. Dr. Galyard did not refer Melanie to other physicians. Id. at 26. Ms. Gess asserts that through the four examinations that Melanie underwent at Monsky Clinic, not one physician stated that lidocaine possibly precipitated Melanie’s complications. In fact, all the physicians at the Monsky Clinic indicated that Melanie was medically fine. Id. at 30, 39-41. Similar to the testimony given by her husband (Lt. Col. Gess), Ms. Gess states that after informing Schmitt of the United States’ reports and preliminary findings, he decided not to take the case “because he could not show enough.” Id. at 33.

On July 17, 1992, the Gess Plaintiffs filed a FTCA claim pursuant to 28 U.S.C. § 2401(b). Obtaining no relief from the United States as to the administrative claim, the Gess Plaintiffs instituted this action on July 22,1993, alleging that the United States acted negligently in failing to supervise its agents or implement a program, which would prevent injury to those entrusted to the care of the AURH. The Gess Plaintiffs further aver that the Air Force failed to maintain and administer a quality assurance program in a medically acceptable manner.

Roberts Plaintiffs

On July 20,1988, Terry Roberts (hereafter “Ms. Roberts”) gave birth by cesarean section to Emily Roberts (hereafter “Emily”) at the AURH. On July 22, 1988, Ms. Roberts allegedly was informed by Dr. Carol Green, a pediatrician at the AURH, that Emily experienced a cessation in breathing and turned blue twice. Roberts’ Aff. at 1. Following this incident, Emily remained at the AURH four days. Id.

Emily’s parents testify that since birth, Emily has endured ear infections that required surgical tubes, has undergone several ear operations and may have a permanent 35% hearing loss in one of her ears. Id. Other complications experienced by Emily and allegedly attributable to the care received at the AURH include the following: a urinary tract infection, which is purportedly an uncommon phenomenon in children; equilibrium problems; and frequent colds and viruses. Id. at 1-2.

After a family member read a news article in February 1989, regarding investigations underway at the AURH, the Roberts contacted the AURH Commander and communicated with the United States Air Force Office of Special Investigations (hereafter the “OSI”). At that time, the Roberts allegedly were informed that Emily was one of several children believed to have been injected with lidocaine.

The Roberts assert that during their conversation with the AURH Commander, the Commander stated that OSI investigators had determined that “something” was wrong. Id. at 2. According to the Roberts, however, the OSI investigators indicated that the hospital’s suspicions were not provable and probably would never be proven; therefore, nothing could be done about the incidents that allegedly transpired. Since Emily had not been transferred to the Monsky Clinic at Baptist Medical Center, as were other alleged injected children, the OSI investigators concluded that she was not involved, even though she was supposedly injected with a harmful substance causing adverse side effects.

Fowler Plaintiffs

Teresa Fowler (hereafter “Ms. Fowler”) gave birth to Corey Fowler (hereafter “Corey”) on September 27, 1988 at the AURH. At approximately 7:00 p.m. on September 28, 1988, Corey was discovered bleeding from his nose and mouth. The next day, Corey was gurgling, irritable, with low respirations, and once more allegedly bleeding from the nose and mouth. The Air Force then transferred Corey to Baptist Medical Center, where he remained for approximately three weeks.

Following Spec. 4 Steven Fowler’s change of duty stations to Mainz, Germany and around February 1989, a Colonel from Wies-baden Air Base Hospital in Germany telephoned the Fowlers and told them that he had been contacted by a Colonel at Maxwell Air Force Base. Ms. Fowler’s Aff. at 2. This Colonel requested to meet with the Fowlers. Id. The Colonel informed them that, according to Maxwell officials, an employee at Maxwell may have intentionally and criminally injured Corey. Id. at 2-3; Ms. Fowler’s Dep. at 28-29. During this meeting, the Colonel requested that the Fowlers sign a form to have certain medical records released to the United States, which they signed. Id. at 27.

The day after the meeting with the Colonel at Wiesbaden Air Base Hospital, Ms. Fowler telephoned the AURH at Maxwell and spoke with “a Colonel,” whose name she does not now remember. Id. at 14. This Colonel confirmed what the Colonel at Wiesbaden had said but then told her that he was “not at liberty” to reveal any details about the actions taken against her son. Id. at 14-15. According to Ms. Fowler, he assured her several times that her son “should be perfectly all right.” Id. at 15-17.

About a week later on May 16, 1989, the Fowlers received in the mail from the Surgeon General of the United States a second form, which if signed, would release the United States from liability, i.e., a “general release.” Id. at 27-28. Ms. Fowler then contacted the office of the Staff Judge Advocate at Wiesbaden regarding the “general release.” She spoke with a female lieutenant who apparently told her that the Judge Advocates were not authorized to provide any legal advice but that she should contact an attorney. Id. at 29-30, 32. She suggested, however, that Ms. Fowler return the “general release” unsigned. Id. at 29.

Based upon this advice, Ms. Fowler returned the release unsigned along with a letter addressed to Major Oaks and dated June 6, 1989. In this letter, Ms. Fowler expressed that she had endured the worst twenty-three days of her life. Ms. Fowler also noted that she intended to contact legal counsel in Germany and also in the United States. Ms. Fowler concluded the letter by stating that she was interested in having her rights, as well as her son’s rights, vindicated. See Ms. Fowler’s Dep., Ex. C attached thereto (letter to Major Oaks). Ms. Fowler also testified that she never heard anything else from the AURH about her son or the OSI investigation nor was she ever told that her son may have been injected with lidocaine. Id. at 17-18.

Ms. Fowler further asserts that since birth, Corey has suffered from periodic throat spasms when he sleeps, and he sounds as if he is “attempting to suck on something.” Ms. Fowler’s Aff. at 1. The Fowlers filed an administrative claim on March 3, 1993, and subsequently filed Civil Action No. 93-D-1392-N.

Barber Plaintiffs

Tiffany Michele Barber (hereafter “Tiffany”) was bom to Plaintiffs David and Delight T. Barber on July 9, 1988 at approximately 7:12 p.m. Around 9:30 p.m., Tiffany began experiencing bradycardia (slow heartbeat) and cyanosis, a condition which exhibits blue coloration of one’s skin due to a lack of oxygen. Tiffany then was treated with oxygen and stimulation. Tiffany remained on oxygen for the next two days although she was no longer cyanotic. The oxygen was discontinued on July 11, 1989, and Tiffany was discharged from the AURH on July 13, 1989.

In March 1989, Tiffany’s parents were interviewed by the OSI at Maxwell regarding Tiffany’s episode at the AURH. Ms. Barber’s Dep. at 8. The Barbers were told that their child was one of several babies whom had experienced health difficulties at the AURH in 1988 and that the OSI was conducting an investigation. Id. at 9. They were purportedly told that they would be contacted following the investigation. Id. According to the Barbers, they were not told that Tiffany had been injected with lidocaine and were never contacted by OSI following the investigation. Id. at 10. The Barbers filed an administrative claim on July 8, 1992, and later instituted Civil Action No. 93-D-1393-N.

Schoen Plaintiff

This action is the only one based on alleged injuries sustained by an adult. On November 1, 1988, Cheryl Pretiger Schoen, now Cheryl Pretiger Toms (hereafter “Schoen”), underwent a cesarean-section delivery and gave birth to Shawn C. Pretiger (hereafter “Shawn”) at approximately 8:00 a.m.' Immediately following delivery, Schoen complained of itching and received an intramuscular injection of Benadryl around 5:00 p.m. Schoen Aff. at 1. At about 9:30 p.m. that same day, the itching returned. When the “medical technician” came to her room, she .requested more Benadryl to relieve the itching. Id.

The “medical technician” then allegedly injected Schoen with a substance, and, according to Schoen, areas around her hand began to burn. Schoen asserts that she voiced concerns but that the “medical technician” assured her that the burning sensation was normal. Schoen began to cough violently and was instructed by the “medical technician” to “go with it.” Schoen’s Dep. at 12. She then became unconscious and medical emergency treatment began. While unconscious, Schoen’s body assumed a ball position, and the nursing staff had to physically manipulate her body to straighten it. Schoen’s Aff. at 2. Two hours later when she regained consciousness, the attending physicians told her that she may have had a reaction from the epidural. Schoen’s Dep. at 19. Either that evening or the next day, however, Schoen said she spoke with an anesthesiologist who told her that her symptoms were not characteristic of an adverse reaction to an epidural.

Approximately two to three weeks after Shawn’s birth, Schoen met with OSI investigators and gave a statement concerning her “incident.” Id. at 13. Schoen states that at this meeting, the OSI investigators did not provide her with any information but simply wanted to know what allegedly had happened to her. Two additional interviews followed in December, one of which was taped.

Subsequently, in January 1989, an AURH administrator informed Schoen that a drug had been placed in her I.V. after the cesarean-section delivery of her son. Id. at 21-22, 36-37. Purportedly, the administrator would not reveal the name of the drug but assured Schoen that there would not be any adverse health effects. He also told Schoen that other patients and newborn babies were involved and that a press release addressing the events would be forthcoming. Id. at 36-37.

According to Schoen, she contacted an attorney in either January or February 1989, after viewing a television news story regarding the inexcusable, if true, occurrences within the OB ward at the AURH. However, Schoen did not pursue an administrative remedy at that time.

Schoen also claims that after the investigation in 1990, she asked the OSI if she could view her medical records to identify the drug with which she had been injected. According to Schoen, she was told that she had no physical deformities from the injection and, as a result, had no case. Id. at 27. Based upon this representation, she decided not to pursue a legal action. Nonetheless, she continued to try and obtain her medical records but was not provided with copies until “several years” later, which was sometime at the end of 1992. Schoen’s Aff. at 2; Schoen’s Dep. at 45. The medical records, she asserts, are incomplete and contain no informar tion about what occurred to her while a patient at the AURH. Schoen relocated to California in 1990 following her divorce and remarriage.

Schoen asserts that immediately after Shawn’s birth, she began suffering from bouts of constipation. Then about a year after Shawn’s birth, she began experiencing stomach cramps, migraine headaches and a numb spot in her back. Schoen’s Aff. at 3; Schoen’s Dep. at 41. On March 30, 1993, Schoen filed an administrative claim with the United States Air Force and later this action. In her complaint, Schoen alleges that she sustained injuries arising from the purported negligence of the United States. Schoen contends that this incident was, from the beginning, and remains of great concern to her. Schoen states, “I have had to live for the last four-and-one-half years knowing that I was injected with a substance detrimental to my body, but not knowing the name of the drug or substance.” Schoen Aff. at 2-3.

The following transpired at Schoen’s deposition regarding her efforts to discover the origin of her injuries:

Q. Have you ever asked any other doctor whether or not there’s any - side effects from this injection that you may have received in your I.V.?

A. No, because I didn’t know what the injection was. I spoke to doctors in California. Explained to them what I knew, that something happened. Could my stomach pains be from that? They said they don’t know. They don’t know what it was. They don’t see anything in my records saying that it was.

Q. When is the first time you heard either Lidocaine or Xylocaine or whatever in connection with this case?

A. From Dr. Beck’s office due to the Redner case.

Schoen’s Dep. at 46-47.

Warrick Plaintiffs

Quinton Warrick (hereafter “Quinton”) was born on August 29, 1988. At approximately 12:20 a.m. on the morning following his birth, Quinton had an elevated temperature, and, at approximately 3:45 a.m., he appeared “gray and mottled.” The AURH personnel administered oxygen and conducted a full septic work-up, which included a lumbar puncture, chest x-ray and blood cultures. After experiencing respiratory distress at around 6:00 a.m., Quinton received I.V. antibiotics. At approximately 3:00 p.m. on August 30, 1994, Quinton was transferred to Baptist Hospital. Baptist Hospital discharged Quinton on September 6, 1988.

In January 1989, the OSI contacted Daphne Warrick, Quinton’s mother (hereafter “Ms. Warrick”), who was then living in North Carolina, and requested that she come to Montgomery to meet with the OSI. Upon arrival in Montgomery, the OSI informed Ms. Warrick that “there was a possibility [Quinton] could have been injected with something.” Ms. Warrick’s Dep. at 11-12, 26-27. Ms. Warrick also had read the Montgomery Advertiser newspaper article regarding the alleged malfeasance occurring at Maxwell. Id. at 38-39.

In their administrative “Claim for Damage, Injury, or Death” dated (by Ms. Warrick) December 23,1993, the Warricks alleged that the United States was negligent or wanton in the delivery and post-delivery care of Quinton. The Warricks also alleged that the United States negligently or wantonly operated the nursery so as to cause Quinton injury. After their claim was denied, Quinton’s parents — Army Sergeant Joseph and Daphne Warrick — filed Civil Action No. 94-D-1199-N on September 29, 1994 seeking damages for injuries purportedly received by Quinton in the AURH nursery shortly after his birth.

Sharpe Plaintiffs

Deborah Sharpe (hereafter “Ms. Sharpe”) was 29 years of age when she gave birth to Asia. While Ms. Sharpe had two previous miscarriages, Asia’s delivery was uneventful except for indications of fetal bradycardia (slow heart rate) approximately thirty minutes before delivery. At approximately 12:38 a.m. on November 21, 1988, Asia was delivered and given oxygen for approximately ten minutes. At around 2:45 a.m., Asia was observed as having tachycardia (rapid heart rate). AURH personnel again administered oxygen to relieve the problem.

Asia’s breathing complications persisted and at approximately 4:30 p.m., a full septic work-up including a lumbar puncture was performed. Thereafter, an I.V. with antibiotics was commenced, but Asia’s breathing problems did not subside. At 6:00 p.m., she was transferred to Baptist Hospital and remained there until December 2, 1988.

Thereafter in January 1989, Ms. Sharpe communicated with OSI representatives and was told that “[t]hey were doing an investigation to find out if there was any foul play. They [OSI] said they felt there might be a guy out there injecting Lidocaine into the babies.” Ms. Sharpe’s Dep. at 11-12, 19. Prior to Ms. Sharpe’s meeting with the OSI, Sergeant Donald (hereafter “Sgt. Sharpe”) and Ms. Sharpe met with Maxwell Hospital officials who also advised them of foul play. Id. at 13-14.

Sgt. Sharpe testifies, via deposition, that the OSI assured him that they would keep in contact regarding the progress of the investigation, but no one communicated with them during the OSI’s investigation. Sgt. Sharpe’s Dep. at 9. Sgt. Sharpe contends further that he initiated contact with the OSI in May 1989, and the OSI expressly stated that Asia was not involved and that the case was closed. Id. at 15-16.

The Sharpes filed an administrative claim on February 3, 1994, and this action on September 15, 1994. The Sharpes contend that Asia sustained injuries resulting from the negligent administration of lidocaine or other toxic agent while she was a newborn in the AURH nursery. The Sharpes charge the United States with negligent hiring, supervision, training and/or management at the AURH and further allege that the United States’ negligence proximately caused Asia to suffer apnea, anoxia, acute respiratory distress and other problems.

Givens Plaintiffs

Toyanika Raschel Givens (hereafter “Toya-nika”) was born at the AURH on September 19, 1988. On September 21, 1988, Toyanika experienced respiratory problems and seizures and had to be transferred to Baptist Hospital and then University of Alabama at Birmingham Hospital. She was hospitalized for a total of thirty days.

On September 5, 1989, Sergeant Joseph Givens (hereafter “Sgt. Givens”) filed an administrative tort claim, alleging medical malpractice and requesting $500,000 in damages for personal injuries sustained by his daughter, Toyanika. On May 3, 1990, the Givens received a letter from Lt; Col. Hervey A. Hotchkiss.(hereafter “Lt. Col. Hotchkiss”), a judge advocate and the chief of the Tort Branch Division, Office of the Judge Advocate General, Headquarters United States Air Force. In the letter, Lt. Col. Hotchkiss stated, in part, that “[t]here is insufficient evidence to suggest that the Air Force had any knowledge that one of its members had a propensity for. committing the acts alleged or that the Air Force should have been on notice of such misconduct at an earlier date.” Givens’ Ex. 6, attached to U.S.’ Mot. Summ.J. Nonetheless and “in the spirit of cooperation,” Lt. Col. Hotchkiss stated that the Air Force had authorized $25,000.00 in settlement of their medical malpractice claim. Id. He continued by stating that “[o]ur offer represents the maximum amount which the Air Force is authorized to approve under the provisions of the Federal Tort Claims Act.” Id,

The Givens signed the settlement agreement on May 9, 1990 “individually” and as Toyanika’s “parents, guardians and next Mends.” Givens’ Ex. 7, attached to U.S.Mot.Summ.J. The settlement agreement states that the Givens agree to accept $25,000.00 from the Air Force “in full satisfaction and final settlement of any and all claims which [they] have or may have against the United States ... for personal injuries sustained as a result of alleged medical malpractice at Maxwell AFB following the birth of TOYANIKA R. GIVENS, and for any and all damages, losses and injuries proximate and consequent thereto.” Id. The Givens returned the settlement agreement with a letter and therein stated that “[w]e willingly accept the proposed amount of $25,000.00 as the final settlement for this claim,” and “we graciously accept the offer.” Givens’ Ex. 12, attached to U.S.’ Mot.Summ.J.

SUMMARY JUDGMENT STANDARD

On a motion for summary judgment, the court is to construe the evidence and factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Summary judgment can be entered on a claim only if it is shown “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). As the Supreme Court of the United States has explained,

the plain language of Rule 56(e) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can bé no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The trial court’s function at this stage of the ease is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citations omitted). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510.

The party seeking summary judgment has the initial burden of informing the court of the basis for the motion and of establishing, based on relevant “portions of ‘the pleadings, depositions, answers to interrogatories, and admissions in the file, together with affidavits, if any,’ ” that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. Once this initial demonstration under Rule 56(c) is made, the burden of production, not persuasion, shifts to the non-moving party. The nonmoving party must “go beyond the pleadings and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Id. at 324, 106 S.Ct. at 2553; see also Fed.R.Civ.P. 56(e).

In meeting this burden the nonmoving party “must do more than simply show that there is a metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). That party must demonstrate that there is a “genuine issue for trial.” Fed.R.Civ.P. 56(c); Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. An action is void of a material issue for trial “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Id. at 587, 106 S.Ct. at 1356. See also Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11.

DISCUSSION & ANALYSIS

The court first will address the United States’ motions for summary judgment and divides its analysis into two sections. The first section pertains to the statute of limitations defense, and the second focuses on the settlement and release. The court then will discuss Plaintiffs’ motion for summary judgment.

I. The United States’ Motions For Summary Judgment

A. Statute of Limitations

Pursuant to 28 U.S.C. § 2401(b), tort claim actions against the United States are deemed forever barred unless such claims are brought to the appropriate federal agency within two years' after the accrual of the claim. Generally, statutes of limitations “require the assertion of claims within a specified period of time after a notice of the invasion of legal rights.” Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 1025, 93 L.Ed. 1282 (1949); Quinton v. United States, 304 F.2d 234, 241 (5th Cir.1962). Statutes of limitations are products of enlightened jurisprudence, United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 356-57, 62 L.Ed.2d 259 (1979) (quoting Wood v. Carpenter, 101 U.S. 135, 139, 25 L.Ed. 807 (1879)), and represent a ubiquitous legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that “the right to be free of stale claims in time comes to prevail over the right to prosecute them.” Id. (quoting Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 349, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944)).

It is well established under the FTCA that a plaintiffs minority does not toll the running of the statute of limitations. Leonhard v. United States, 633 F.2d 599, 624 (2d Cir.1980), cert. denied, 451 U.S. 908, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981); Camire v. United States, 489 F.Supp. 998 (N.D.N.Y.1980); Mendez v. United States, 655 F.Supp. 701, 705 (S.D.N.Y.1987). When a plaintiff is a minor, his or her parent’s knowledge of the injuries is imputed to him or her. Zavala v. United States, 876 F.2d 780, 782 (9th Cir.1989) (citing Fernandez v. United States, 673 F.2d 269, 271 (9th Cir.1982)). Parents “have a legal duty to take action” on behalf of their injured minor children, and it is not the court’s function to question the parent’s decision not to do so. Landreth v. United States, 850 F.2d 532, 534 (9th Cir.1988), cert. denied, 488 U.S. 1042, 109 S.Ct. 866, 102 L.Ed.2d 990 (1989) (citations omitted). A child is bound by his or her parents’ neglect in filing a claim. Zavala, 876 F.2d at 782 (citing Pittman v. United States, 341 F.2d 739 (9th Cir.), cert. denied, 382 U.S. 941, 86 S.Ct. 394, 15 L.Ed.2d 351 (1965)). Plaintiffs concede that the statute of limitations is not normally tolled during one’s minority. Instead, Plaintiffs aver that equity requires a cessation of the limitations period in the instant cases.

As a general rule, the two-year tort limitations period begins to run when a plaintiff is injured. Price v. United States, 775 F.2d 1491, 1493 (11th Cir.1985) (citing Kubrick, 444 U.S. at 120, 100 S.Ct. at 358). However, as the Price court expressed, the foregoing principle in medical malpractice actions would yield unjust results for two reasons:

First, if the injury takes a long time to manifest itself, the plaintiff might not discover the injury until more than two years after the injuries occurred. Second, the plaintiff might not suspect that the injury caused by a person who treated [him or] her, particularly where the plaintiff continues to be treated by the person who caused the injury.

775 F.2d at 1493 (brackets supplied).

Consequently, the Supreme Court of the United States has held that in medical malpractice actions under the FTCA, a claim accrues when the claimant discovers both the injury and its probable cause. Kubrick, 444 U.S. at 123-25, 100 S.Ct. at 360-61; see also Zavala, 876 F.2d at 782. In Kubrick, the plaintiff (hereafter “Kubrick”) underwent leg surgery in April 1968 at a Veterans’ Administration hospital and was administered an antibiotic (neomycin) to prevent infection. Approximately six weeks after discharge, Kubrick began experiencing hearing problems. In January 1969, a private physician obtained and examined Kubrick’s hospital records and saw that he had been administered neomycin after surgery. The physician advised Kubrick that it was “highly possible” that his hearing loss was caused by neomycin. Kubrick, 444 U.S. at 111, 100 S.Ct. at 353-54.

Kubrick, however, failed to file an administrative claim until more than two years after the physician’s diagnosis. The Court of Appeals for the Third Circuit allowed the action to commence, because Kubrick had filed an administrative claim within two years of being told that administration of neomycin was negligent:

[E]ven though a plaintiff is aware of his [or her] injury and of the defendant’s responsibility for it, the statute of limitations does not run where the plaintiff shows that “in the exercise of due diligence he [or she] did not know, nor should he [or she] have known, facts which would have alerted a reasonable person to the possibility that the treatment was improper.”

Id. at 116, 100 S.Ct. at 356 (citation omitted) (brackets supplied).

The Supreme Court of the United States reversed. In finding that Kubrick’s claim accrued in January 1969 when informed by his private physician that the probable cause of his hearing loss was the neomycin' treatment, the Court disagreed with the lower court’s reasoning:

We are unconvinced that for' statute of limitations purposes a plaintiffs ignorance of his legal rights and his ignorance of the fact of his injury or its cause should receive identical treatment. That he has been injured in fact may be unknown or unknowable until the injury manifests itself; and the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or at the least very difficult to obtain. The prospect is not so bleak for a plaintiff in possession of the critical facts that he has been hurt and who inflicted the injury. He is no longer at the mercy of the latter. There are others who can tell him if he had been wronged, and he need only ask. If he does ask and if the defendant has failed to live up to minimum standard of medical proficiency, the odds are that a competent doctor will so inform the plaintiff.

Kubrick, 444 U.S. at 122, 100 S.Ct. at 359.

To constitute awareness of an injury, the first prong of the Kubrick analysis, a plaintiff need not realize or appreciate the full extent of his or her injury, Mendez, 655 F.Supp. at 705 (citing Allen v. United States, 527 F.Supp. 476, 491 (D.Utah 1981)), as the statute runs even though the eventual damage is uncertain, incalculable or unknown. See Jastremski v. United States, 737 F.2d 666, 670 (7th Cir.1984); Robbins v. United States, 624 F.2d 971, 973 (10th Cir.1980). Moreover, a plaintiff may inquire of those possessing superior knowledge about the extent of his or her injury once the plaintiff learns that he or she has experienced serious harm.

Under this first element, the court finds that each Plaintiff had knowledge that he or she had been harmed by the alleged malfeasance of the United States. The parents knew that their children had been injured when each child’s physical condition was made known to the respective parent(s). This may or may not have been, however, the time at which the Plaintiffs became aware of the cause of injury.

The second element of Kubrick requires that a plaintiff possess knowledge of the cause of his or her injury. This element concerns “the act of the defendant which gave rise to the injury,” not simply to the medical cause. Lee v. United States, 485 F.Supp. 883, 885 (E.D.N.Y.1980). For a claim to “accrue,” the plaintiff must be “in possession of the critical facts that he [or she] has been hurt and who has inflicted the injury.” Kubrick, 444 U.S. at 122, 100 S.Ct. at 359. Mere knowledge that a person has suffered an injury does not constitute cognizance of the cause of injury.

It is well-established in the Eleventh Circuit that “claims for malpractice under the FTCA accrue when a claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice.” Burgess v. United States, 744 F.2d 771, 773 (11th Cir.1984) (citing Coyne v. United States, 411 F.2d 987 (5th Cir.1969)); Beech v. United States, 345 F.2d 872 (5th Cir.1965); see also Price, 775 F.2d at 1494 (citing Lavellee v. Listi, 611 F.2d 1129 (5th Cir.1980)) (holding that a medical malpractice claim accrues under the FTCA when a plaintiff, in the exercise of reasonable diligence, is “aware of both [his or] her injury and its connection with some act of the. defendant”). While the FTCA statute is not tolled by ignorance resulting from the lack of diligence, “plaintiffs seeking to understand the cause of an injury may reasonably rely on advice and assurances by doctors.” Chamness v. United States, 835 F.2d 1350, 1353 (11th Cir.1988) (citations omitted).

“Once the plaintiff discovers that her injury is probably attributable to some act of those who treated her, there is no (longer any) reason to toll the statute of limitations.” Price, 775 F.2d at 1493. However, if a doctor lulls a plaintiff into an erroneous belief regarding the cause of his or her injuries and the exercise of reasonable diligence does not make the plaintiff aware that he or she has been injured by a particular defendant, the limitations period is subject'to tolling. See Chamness, 835 F.2d at 1353.

In Burgess, another case decided under the FTCA, an attending physician at the United States Army Hospital at Fort Stewart, Georgia, broke an infant’s clavicles to facilitate delivery of the newborn. This act occurred on September 5, 1978. The fracture injured the infant’s right brachial plexus and caused Erb’s Palsy, which is symptom-ized by paralysis of the upper arm. On September 8, 1978, the infant’s discharge record read that the child had “[tjotal right brachial plexus palsy....” However, the mother was released on September 8, 1978, and given instructions on how to administer physical therapy to the child, but was not privy to this information. The plaintiffs in Burgess were reassured by medical personnel that all would be well with their son’s arm. The record in Burgess revealed that it was not until the September 29, 1978 entry in the infant’s record that a report was made indicating a physician’s opinion of possible nerve damage to the child’s upper arm. The parents discussed the test results with a neurosurgeon on October 29, 1978. The United States contended that Plaintiffs’ cause of action accrued on September 6, 1978, the date in which the parents gained knowledge that the child’s clavicles had been broken, which according to the United States, was the only injury the child suffered.

Contrarily, the parent-plaintiffs alleged that the claim did not accrue until, at least, September 29, 1978, the date they were apprised of the resulting nerve damage. In rejecting the United States’ argument, the Burgess court reversed the trial court’s decision and noted that mere knowledge of an injury, in and of itself, does not constitute awareness of the cause. Burgess, 744 F.2d at 774. As the court further explained, any information regarding the resulting nerve damage was within the exclusive knowledge of the United States before September 29, 1978, and the parents were told nothing prior to’ this date that would lead a reasonable person to suspect a broken clavicle would cause Erb’s Palsy. Id. at 774-75.

Here, the relevant Plaintiffs contend that they did not possess knowledge of the cause of their children’s injury before the limitations period ran. Plaintiffs claim that although the United States suggests that the injuries to their children may have been caused by the malfeasance of a hospital agent, they were justified in not bringing an action against the United States at that time. Essentially, these Plaintiffs aver that the AURH agents implanted an erroneous notion that their children had suffered no long-term injury. Plaintiffs further contend that until Dr. Colan represented to them that they had a viable cause of action, reasonable diligence would have been futile. The court now turns to the individual contentions of the plaintiffs and focuses on the time at which each Plaintiff gained knowledged of the cause of the injuries.

1. Gess Plaintiffs

Initially, the court notes that the interest of justice aligns with a defendant when a plaintiff fails to file [his or] her action in a timely fashion despite knowing, or being in a position to know, that the limitations period is running. See e.g., First Alabama Bank v. United States, 981 F.2d 1226, 1228 (11th Cir.1993); Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 661 (11th Cir.1993), cert. denied, - U.S. -, 115 S.Ct. 69, 130 L.Ed.2d 24 (1994). On the other hand, the balance of justice tilts in favor of a plaintiff when a defendant misleads him or her into allowing the statutory period to expire, see Irwin v. Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 457-58, 112 L.Ed.2d 435 (1990); or when [he or] she has no reasonable way of discovering the wrong perpetrated against him or her, see e.g., McBrayer v. City of Marietta, 967 F.2d 546, 547 (11th Cir.1992).

The United States strenuously argues that Kubrick mandates an entry of summary judgment in its favor. As to the second prong of Kubrick, the United States contends that the Gess Plaintiffs were aware of the cause of Melanie’s injuries more than two years prior to July 17, 1992, the date the administrative claim was filed. It is .undisputed that the Director of Hospital Services at the AURH (Dr. Sadick) informed the Gess Plaintiffs on or about January 19, 1989 that Melanie “possibly” had been injected with lidocaine.

Hence, at first glance, it appears that the Gess Plaintiffs were “in possession of the critical facts that [Melanie] ha[d] been hurt and who ha[d] inflicted the injury.” Kubrick, 444 U.S. at 122, 100 S.Ct. at 359 (brackets supplied). Nonetheless, the court finds that Kubrick is distinguishable on one essential ground. While the United States, through its agent, told the Gess Plaintiffs of the purported lidocaine injection, there is evidence that the United States attempted to conceal the facts relating to causation. Specifically, the United States explicitly represented to the Gess Plaintiffs that Melanie would not suffer any health problems, thus, impliedly negating the causal relation between the injury and the injection. In Kubrick, there was no allegation that the United States had concealed any medical information from the plaintiff or lulled the plaintiff into an erroneous belief about the cause of injury. This fact alone raises a genuine issue of material fact as to the second prong of Kubrick.

Additionally, there is something to be said about the patient-physician relationship. The Gess Plaintiffs relied on the statement of Dr. Sadick, an Air Force physician, and should have been able to trust his representation that no long-term or harmful medical effects would ensue. From aught that appears at this juncture, Dr. Sadick arguably deliberately and falsely advised the Gess Plaintiffs, as well as the other Plaintiffs.

To find that the statute of limitations has run in this case would produce a manifest injustice. The Price court was speaking to this exact situation when it noted that equitable tolling should apply when “the plaintiff might not suspect that the injury caused by a person who treated [him or] her, particularly where the plaintiff continues to be treated by the person who caused the injury,” in this case the Air Force. 775 F.2d at 1493. Accordingly, the court finds that equity compels the court to deny the United States’ motion for summary judgment on the Gess Plaintiffs’ cause of action.

While the court’s analysis could end here, the court will address a second argument raised by the United States. The United States further asserts' that it cannot be blamed for the failure of other physicians to identify the cause of Melanie’s physical symptoms. In support of this contention, the United States cites Kubrick, wherein the court stated that if a plaintiff “fails to bring suit because he [or she] is incompetently or mistakenly told that he [or she] does not have a case, we discern no sound reason for visiting the consequences of such error on the defendant_” Kubrick, 444 U.S. at 124, 100 S.Ct. at 360. However, in Chamness, a case decided after Kubrick, the Eleventh Circuit expounded upon the aforementioned principle and implicitly recognized an exception:

The FTCA statute is not tolled by ignorance from a lack of diligence. However, a number of post-Kubrick cases have stressed that plaintiffs seeking to understand the cause of an injury may reasonably rely on advice and assurances by doctors. The Ninth Circuit has asserted: “Ordinarily, a plaintiff cannot be expected to discover the general medical cause of his injury even before the doctors themselves are able to do so.” Rosales v. United States, 824 F.2d 799, 805 (9th Cir.1987) (cause did not accrue where doctor was unable to diagnose retardation and did not mention IUD as possible source of injury).

835 F.2d at 1352. In following the reasoning of Chamness, the court finds that material factual disputes exist as to whether the Gess Plaintiffs exercised due diligence in trying to uncover the causal connection and whether Melanie’s injuries were proximately caused by the negligence of the United States. Hence, an alternative reason exists for denying summaiy judgment as to cause of action filed by the Gess Plaintiffs.

2.Roberts Plaintiffs

Spec. 4 — Ret. Patrick Roberts, Emily’s father, admits that he learned of possible malfeasance in the AURH nursery about six or seven months after Emily’s birth. Spec. 4 Roberts’ Dep. at 12. The Roberts then requested an appointment to talk to the AURH Commander to determine if Emily had sustained any injury. Id. at 13-14. The Roberts contend that during an appointment with the AURH Commander in February 1989, they were told that some babies had been injected with a drug and that it appeared that Emily also had been injected. According to the Roberts, the AURH Commander assured them that there would be no residual or long-term effects and that they should not worry about it. The Roberts press this line of factual allegations further by averring that the AURH Commander made it clear to them that Emily was fine and to put it out of their minds. The Roberts claim that this was the extent of their communications with the AURH Commander.

Soon thereafter, the Roberts contend that they were contacted by the OSI. Id. at 19-20. The OSI purportedly reassured them that there would be no lasting effects and that concern was not warranted. Admitting that Emily had been injected with lidocaine, the OSI allegedly expressed to the Roberts that a possible reason why Emily did not go to Baptist Hospital was because she was a larger baby and, thus, capable of combating the drug more easily.

Ms. Roberts claims that she inquired two or three times over the ensuing months as to whether the investigation had yielded any results and that the OSI agent told her “no.” According to Ms. Roberts, the OSI staff assured her that they would apprise her of any developments. The Roberts further assert that they were never told that the OSI investigation was over. They also allege that the OSI never advised them as to what to do; therefore, the Roberts followed the advice of the OSI and “put the matter out of their minds.” Moreover, the Roberts were never told that they should follow-up on their daughter’s diagnosis. Ms. Roberts’ Dep. at 13.

The United States produces the following admissions to demonstrate that the Roberts were aware of the cause of Emily’s purported injuries in the early months of 1989:

1. Ms. Roberts called the Pediatric Clinic at the AURH and asked to speak with Dr. Carol Green concerning “questions about the nursery” when Emily was six months old.

2. Emily was six months old by January 16, 1989.

3. Ms. Roberts was contacted by agents from the United States Air Force OSI after she spoke to Dr. Carol Green.

4. The Roberts spoke with the Commander of the Maxwell Air Force Base Hospital about a newspaper article entitled “Maxwell Mum about OB Unit Investigation” which was featured in the January 21, 1989 edition of The Montgomery Advertiser/The Alabama Journal.

5. The Roberts spoke with the AURH Commander before meeting with two OSI agents.

U.S.’ Suppl.Mot. for Summ.J. at 3; Pl.Res. to Def. Request for Adm.

The Roberts assert that they did not learn . of the effects of the injection until five years after Emily’s birth when Dr. Richard Colan (hereafter “Dr. Colan”), a pediatric neurologist, examined the medical records of the affected children to diagnose and establish a prognosis and to establish causation. See Roberts’ Res. in Opp. to Mot. for Summ.J. at 6. Therefore, the Roberts contend that the two-year limitations period should have been tolled until that time. Contrarily, the United States claims that the Roberts possessed sufficient knowledge of the cause of Emily’s injuries in early 1989 when they were exposed to the article appearing in the Advertiser/Journal and had communications with the AURH Commander and OSI investigators. Hence, the United States asserts that the limitations period is not subject to a five-year tolling.

The Roberts further contend that they, relied on the advice of the AURH Commander and “put the matter out of their minds.” While absolute certainty of one’s cause of injury is not a sine qua non for the limitations period to commence, the court finds that at the very least, factual issues exist as to whether the Roberts knew that their daughter was injured in 1989. See Price, 775 F.2d at 1493. Again as in the Gess case, the court focuses on the representations of the AURH Commander, who also is the ranking physician at the AURH, and stresses that the arguably apparent deception, or at least erroneous information, easily could have' lulled the Roberts into believing that there was no causal relation between their son’s injuries and the alleged injection(s). The court further finds of great importance the fact that the OSI never informed the Roberts of its findings in reaching its conclusion. Accordingly, factual issues exist as to whether equitable tolling is justified; thus, summary judgment is due to be denied as to the United States’ motion for summary judgment as to the Roberts’ action.

S. Fowler Plaintiffs

The United States asserts that within the meaning of Kubrick, the Fowlers knew the cause of their injuries in February 1989, after their conversations with colonels at Wiesbaden and Maxwell Air Force Base. If not then, the United States contends that the Fowlers definitely had knowledge of their son’s injuries no later than June 6, 1989, which is the date of the letter addressed to Major Oaks. Therefore, because the Fowlers did not file their administrative claim until March 30, 1993, the United States argues that their claim is time-barred.

The Fowlers, on the other hand, contend that they did not know the cause of Corey’s injuries until May 1993 when their attorney, George Beck, Esq. (hereafter “Beck”), contacted them by letter. The information provided Beck was confirmed, according to the Fowlers, when Dr. Colan, a private physician, examined Corey in March 1994. Dr. Colan found numerous medical complications and diagnosed the cause as lidocaine poisoning, Dr. Colan, testified at his deposition, that the injuries resulting from lidocaine cannot be determined until the child reaches at least four years of age. He further states that lidocaine poisoning would not be apparent to a parent who lacked medical training and sufficient information about the specific toxic agent and that any abnormalities easily could be confused with ordinary childhood illnesses.

Based on Ms. Fowler and Dr. Colan’s testimony, the court finds that a factual dispute exists as to whether the United States’ representations that Corey was not medically harmed prevented the Fowlers from discerning the cause of Corey’s illnesses. The court further finds that the Fowlers trusted and relied on the scant information provided by the AURH, easily could have assumed that Corey’s medical complications — which included abdominal pain, diarrhea, speech problems, a short attention span and hyperglycemia — were the result of other causes, particularly since the Fowlers were not given any information as to the drug injected. Moreover, the Fowlers’ alleged inability to discover the cause is bolstered by the fact that two physicians who examined Corey in February 1989 and November 1992 were unable to find the “cause” of Corey’s stomach problems.

At the risk of being redundant, the court again finds the instant case distinguishable from Kubrick in that there was no allegation in Kubrick, as here, that an agency of the United States withheld pivotal information. Rather, the facts in the instant case are strikingly similar to those in Burgess, supra, in that the United States had crucial information within its sole knowledge and possession and never told the Fowlers anything to lead them to suspect that Corey’s illnesses were caused by lidocaine toxicity. Accordingly, the court finds that the United States’ motion for summary judgment is due to be denied as to the Fowler’s action.

Jf. Barber Plaintiffs

The United States contends that following the March 1989 meeting with the OSI, the Barbers had sufficient information to conclude that the United States caused Tiffany’s injuries. The Barbers assert that no one told them that their child had been injected with lidocaine. Also, Tiffany was not one of the babies who was termed code blue and was, therefore, not admitted to Baptist Hospital. Ms. Barber’s Dep. at 9. According to Ms. Barber, the OSI offered no explanation as to the cause of Tiffany’s complications. Id. She contends that her first knowledge of Tiffany’s possible injection with lidocaine came in 1992 when she was contacted to be a witness in the Redner case.

Ms. Barber claims that Tiffany received checkups but that she was never told that she was not developing normally. She claims that she never saw the newspaper article “Maxwell Mum About OB Unit Investigation,” released about two months before she was interviewed by the OSI, or heard anything on the radio regarding the purported lidocaine injections in the AURH nursery. Id. at 25-26.

Again, the court finds that the Barbers probably did not know that Tiffany had sustained injury and adopts the discussion set forth, supra, pertaining to the United States’ alleged concealment of medical information. Moreover, even assuming that the Barbers were aware of Tiffany’s injury, the court concludes that they did not possess sufficient knowledge to articulate with any'certainty that Tiffany’s injuries were probably caused by AURH personnel. For example, they were not privy to the results of the OSI investigation, nor did they know about the newspaper article concerning the alleged wrongs occurring in the Maxwell Air Force Base nursery. Because the two-part Kubrick test is not satisfied, the court finds that the United States’ motion for summary judgment on the Barber Plaintiffs’ FTCA claim is due to be denied.

5: Schoen Plaintiff

■ Here, the court finds that factual issues exist as to when Schoen learned of the cause of her injuries. Namely, factual issues exist as to whether or not Schoen relied on the representations of Air Force physicians in not seeking civilian medical treatment and assuming that she was in good health. Again, if the allegations of Schoen are true, which the court assumes for purposes of ruling on this motion, then the deception on the part of the United States is inexcusable.

The court further finds that the blame for Sehoen’s failure to discover the specific cause of her injuries may well lie with the United States for an additional reason. Had the AURH responded to Schoen’s request for medical records without a two-and-one-half year delay and provided her an accurate report, Schoen may have had reliable information upon which to seek further medical or legal advice. The court has doubts as to whether any physician or attorney could adequately advise Schoen of the merits of her claim since the United States concealed the true facts of which it had knowledge. See also Kubrick, 444 U.S. at 125, 100 S.Ct. at 360-61 (noting that the statute should not run where “the facts about causation may be in the control of the putative defendant unavailable to the plaintiff or at least very difficult to obtain”). Accordingly, the court finds that the United States’ motion for summary judgment as to Schoen’s cause of action is due to be denied.

6. Warrick Plaintiffs

The United States avers that the Warricks possessed the necessary information regarding Quinton’s purported injuries and their cause following Ms. Warrick’s meeting with the OSI in January 1989. Also, the United States points to the following excerpt from Ms. Warrick’s deposition to buttress its claim that the Warrick’s claim is time-barred:

Q. Did you think that there might be some association with the fact that he [Quinton] had to go to Baptist Hospital or the fact that he had — could have been injected?

A. A possibility, yes sir.

Q. Did they tell you how that could have happened?

A. No, sir.

Q. Tell me what you remember about what they said about the possibility that he had been injected.

A. They had months from June to November [1988] and said that thirteen babies had been transferred, and they were investigating because it was unusual. And there was a possibility that he could have been injected with something and that he would have been the third child from the — from June to November.

Ms. Warrick Dep. at 26-27. In addition, Ms. Warrick and her mother discussed seeking legal counsel after reading the Montgomery Advertiser article, which, according to the United States, is further evidence of the Warricks’ knowledge concerning Quinton’s alleged injuries and the probable cause thereof.

On the other hand, the Warricks submit a different excerpt from Ms. Warrick’s deposition to demonstrate that they lacked the requisite knowledge until four or five years later when Dr. Colan informed them that the incidents involving their child at the AURH had caused serious long-term effects. On direct examination concerning the meeting with the OSI, the following exchange transpired:

Q. What did they tell you?

A. They said there was a possibility he could have been injected with some type of something.

Q. And did you ask them how or who did it or anything like this?

A. Yes, they didn’t give me any information though.

Q. Did you talk to them after that occasion?

A. No sir.

Q. Did you talk to the Commander of the hospital on that occasion?

A. No, sir.

Q. Did you ever talk to anyone