500 F.2d 1 (8th Cir. 1974), 73-1816, Alexander v. United States

Docket Nº:73-1816, 73-1850.
Citation:500 F.2d 1
Party Name:Aleck ALEXANDER, Appellant, Cross-Appellee, v. UNITED STATES of America, Appellee, Cross-Appellant.
Case Date:July 22, 1974
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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500 F.2d 1 (8th Cir. 1974)

Aleck ALEXANDER, Appellant, Cross-Appellee,


UNITED STATES of America, Appellee, Cross-Appellant.

Nos. 73-1816, 73-1850.

United States Court of Appeals, Eighth Circuit.

July 22, 1974

Submitted June 10, 1974.

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Stanton R. Koppel, Atty., Dept. of Justice, Washington, D.C., for the U.S.

James W. Jeans, Kansas City, Mo., for Alexander.

Before BRIGHT, STEPHENSON and WEBSTER, Circuit Judges.

STEPHENSON, Circuit Judge.

The central issue to be determined on this appeal is whether the statutory disability compensation plan 1 for commissioned officers of the Public Health Service is an exclusive remedy which precludes an action for medical malpractice under the Federal Tort Claims Act. 2 The trial court held that the statutory benefits were not such an exclusive remedy and awarded damages to plaintiff Alexander. We disagree and reverse that determination.

Plaintiff Alexander, 3 a commissioned officer of the Public Health Service (PHS), underwent elective surgery at a military hospital on March 20, 1968 for removal of his gall bladder. He was entitled to such free medical care as a member of the 'uniformed services,' as defined in 10 U.S.C. § 1072(1) (1970). 4

During the course of the operation, an anesthesiologist's tube placed in Alexander's trachea malfunctioned, either because of improper insertion or inadequate monitoring by the supervisory personnel. As a result of this negligence, Alexander suffered numerous physical infirmities, including temporary blindness and paralysis, residual uncoordination of the feet and upper extremities, and permanently defective vision.

Due to these injuries, Alexander was 100% Disabled and placed on temporary disability retirement status for a period of approximately two and onehalf years, pursuant to the procedures specified in 10 U.S.C. §§ 1205, 1210, 1211 (1970). During that time he was paid disability compensation in excess of $44,000 under the Career Compensation Act, see 10 U.S.C. §§ 1202, 1401, 42 U.S.C. § 213a (1970). On August 6, 1972, Alexander was recalled to active duty with the PHS as provided in 10 U.S.C. §§ 1210, 1211 (1970).

In his complaint, plaintiff grounded jurisdiction on 28 U.S.C.§ 1346(b) (1970) and the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1970). He claimed damages for the alleged negligence of the doctors and other medical personnel who had participated in his anesthetization. The government argued that Alexander's suit should be dismissed on the basis of the principles established in United States v. Demko, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966) and Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). We agree.

In Demko, supra, the Supreme Court considered the question of whether an injured federal prisoner, having received disability compensation under a specific federal statute, 5 could maintain an action for damages under the Federal Tort Claims Act. The Court denied relief under

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the Act, stating that 'where there is a compensation statute that reasonably and fairly covers a particular group of workers, it presumably is the exclusive remedy to protect that group.' Id. at 152 of 385 U.S., at 384 of 87 S.Ct.

In so holding, the Court expressly rejected the argument, made by Alexander in the case before us, that a compensation statute will be presumed to be a non-exclusive remedy in the absence of specific language to the contrary. Id. The Court noted that generally workmen's compensation laws are considered to be exclusive substitutes for common law tort remedies and cited two cases, Patterson v. United States, 359 U.S. 495, 79 S.Ct. 936, 3 L.Ed.2d 971 (1959), and Johansen v. United States, 343 U.S. 427, 72 S.Ct. 849, 96 L.Ed. 1051 (1952), as having established a 'general rule' of presumed exclusivity. Id. at 151 of 385 U.S., 87 S.Ct. 382. See also Feres v. United States, 340 U.S. 135, 144, 71 S.Ct. 153, 95 L.Ed. 152 (1950). As pointed out in Demko, the lower federal courts have extended this principle to include other statutory systems. Id. at 151 n. 4 of 385 U.S., 87 S.Ct. 382.

The application of the Demko presumption of exclusivity to any particular fact situation is dependent upon satisfying two critical requirements. First, the individual whose claim may be barred under the principle of exclusivity must be covered by a compensation plan. Second, that plan must...

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