Bailey v. DeQuevedo, 15457.
Citation | 375 F.2d 72 |
Decision Date | 03 April 1967 |
Docket Number | No. 15457.,15457. |
Parties | George S. BAILEY, Appellant, v. Agusto G. DeQUEVEDO and K. E. Van Buskirk. |
Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Peter O. Clauss, Philadelphia, Pa. (Walter V. McLaughlin, Jr., Clark Ladner, Fortenbaugh & Young, Philadelphia, Pa., Richard A. DeSantis, Beverly Hills, Cal., on the brief), for appellant.
Robert V. Zener, Atty., Dept. of Justice, Civ. Div., Washington, D. C. (John W. Douglas, Asst. Atty. Gen., Drew J. T. O'Keefe, U. S. Atty., David L. Rose, Atty., Dept. of Justice, Washington, D. C., on the brief), for appellees.
Before MARIS, McLAUGHLIN and KALODNER, Circuit Judges.
Can an enlisted man in the United States Army maintain an action against an Army medical surgeon for alleged malpractice in an operation performed at an Army hospital?
The District Court answered this question in the negative and dismissed the action.1 This appeal followed.
The record discloses that the plaintiff, George S. Bailey, instituted this diversity action in the court below against the defendants Agusto G. DeQuevedo and K. E. Van Buskirk, Army doctors, alleging in his complaint that while he was an Army enlisted man, DeQuevedo negligently left non-dissolving sutures in his abdomen when he operated on him in an Army hospital and that both defendants thereafter negligently failed to take corrective action, necessitating subsequent surgery and removal of a kidney.
The defendants filed a motion to dismiss asserting that (1) the complaint failed to state a cause of action upon which relief could be granted, and (2) the action, insofar as the defendant Van Buskirk was concerned, was barred by res adjudicata by reason of the fact that an earlier similar suit against him had been dismissed on its merits in Bailey v. DeQuevedo, et al., Civil Action No. 62-1235-CC, United States District Court for the Southern District of California, Central Division, aff'd sub nom., Bailey v. Van Buskirk, 345 F.2d 298, (9 Cir. 1965), cert. den. 383 U.S. 948, 86 S.Ct. 1205, 16 L.Ed.2d 210 (1966).
The court below granted the motion to dismiss as to DeQuevedo on its holding that "a member of the Armed Services is not entitled to maintain an action against a medical doctor, who is a member of the Armed Services, for injury arising out of the acts performed by the doctor within the scope of his military function and duties".2 It dismissed the action as to Van Buskirk on its holding that the dismissal of the plaintiff's suit against him in California on the ground that it failed to state a cause of action upon which relief could be granted was a dismissal on the merits and was therefore res adjudicata.3
It must be noted at this point that the plaintiff has withdrawn his appeal with respect to Van Buskirk.
With respect to his appeal from the dismissal of his action against DeQuevedo, the plaintiff here contends that in the absence of statutory immunity, an enlisted man is entitled to maintain an action founded upon principles of common law liability against an Army physician for medical malpractice.
DeQuevedo contends, in reply, that the policy judgment implicit in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), that a soldier cannot sue the United States under the Federal Tort Claims Act for line of duty negligence, precludes the instant action against him. He cites the statement in Feres that "We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving." 340 U.S. 141, 71 S.Ct. 157. He also points to the fact that two of the three suits decided in Feres charged malpractice on the part of military doctors in military hospitals.
DeQuevedo further urges that the Ninth Circuit, in Bailey v. Van Buskirk, supra, correctly applied the policy judgment in Feres when it affirmed the dismissal of the plaintiff's action with this statement:
We, too, are of the opinion that an enlisted man in the armed services of the United States cannot maintain an action against an Army medical surgeon for negligence in an operation performed at an Army hospital in line of duty. We accordingly hold that the court below did not err in dismissing the instant...
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