77 F.Supp. 706 (D.Md. 1948), Civ. 3692, Jefferson v. United States

Docket Nº:Civ. 3692
Citation:77 F.Supp. 706
Party Name:Jefferson v. United States
Case Date:May 07, 1948
Court:United States District Courts, 4th Circuit, District of Maryland

Page 706

77 F.Supp. 706 (D.Md. 1948)




Civ. No. 3692

United States District Court, D. Maryland.

May 7, 1948

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[Copyrighted Material Omitted]

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Tydings, Sauerwein, Archer, Benson & Boyd, Morris Rosenberg and Robert H. Archer, Jr., all of Baltimore, Md., for plaintiff.

Bernard J. Flynn, U.S. Atty., and James B. Murphy, Asst. U.S. Atty., both of Baltimore, Md., for defendant.

CHESNUT, District Judge.

This is a suit under the recently enacted Federal Tort Claims Act, 28 U.S.C.A. § 921 et seq. The plaintiff who had been an aviation mechanic at the Glenn L. Martin Company's plant in Baltimore, enlisted in the United States Army October 22, 1942. On July 3, 1945, while still in the Army he underwent an abdominal operation for gall bladder trouble at Fort Belvoir, Virginia, a Government Hospital. The operation was performed by a United States Army medical officer who was the chief surgeon at the hospital at the time. The complaint in this case is that a large towel, 30 inches long by 18 inches wide, was negligently left in the plaintiff's abdomen during the operation and remained there until it was discovered during a subsequent abdominal operation performed at the Johns Hopkins Hospital in Baltimore on March 13, 1946. He alleges total and permanent disability as a result of this alleged negligence.

The complaint was filed July 31, 1947. The defendant filed a motion to dismiss on the grounds that the Federal Tort Claims Act did not cover a case of this kind. After extended hearing on the motion it was overruled without prejudice, October 29, 1947. D.C., 74 F.Supp. 209. Subsequently the defendant has filed an answer and amended answers and the case has been heard upon testimony and arguments of counsel. The evidence establishes the following briefly summarized facts.

1. When the plaintiff first enlisted in the Army he was 45 years of age. He had previously had an abdominal operation for appendicitis from which he had apparently completely recovered. About five months after enlisting and while in the Army he had an abdominal operation at an Army hospital at Indiantown Gap, Pennsylvania, during which one of his kidneys was removed. After several weeks in the hospital he returned to service and was given somewhat lighter work at various aviation fields as a flight chief. From January 19, to May 17, 1943, he had various medical complaints diagnosed as hydronephrosis and a subsequent diagnosis of herpes of the lower lip reported cured on February 7, 1943; but on February 19, 1943 a further diagnosis indicated pleurisy, reported cured on March 3, 1943. From February to April 1945 he had an ill defined condition of the gastrointestinal system including vomiting, with non-functioning gall bladder and an absence of the right kidney which had been removed on March 5, 1943. From April 24 to November 20, 1945 he had cholecystitis. The operation on July 3, 1945, made the basis of the complaint in this case, was for cholecystostomy. During the earlier portion of this period he was at Edgewood, Maryland, suffering from jaundice for two or three months until he was sent to Fort Belvoir, Virginia.

2. The plaintiff is a naturalized citizen, a native of Denmark. He was honorably discharged from the Army on January 9, 1946. On March 8, 1946 he went to the Johns Hopkins Hospital in Baltimore for treatment (because of vomiting spells and nausea which had commenced about two weeks prior to admission and grown increasingly more severe). On March 13, 1946 he was operated upon by Dr. Grose

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who had graduated at Johns Hopkins University Medical School some years previously, had been an interne there in the surgical department for a year or so; had served for two or three years in the Hopkins Medical Unit in the South Pacific, and had then returned to Hopkins for a while and at the particular time was engaged in private surgical practice.

3. Dr. Grose found a well healed medical scar on the front abdomen of the plaintiff through which he again, operated and as a result of the operation found a towel in the lower part of the plaintiff's stomach which had partly worked into the duodenum. This towel was removed, measured and photographed. It bore the legend 'Medical Department U.S. Army'. It was 2 1/2 feet long by 1 1/2 feet wide. Dr. Grose also found the condition and relation of the plaintiff's stomach and intestines to each other was such as to indicate very clearly that there had been a previous operation on the plaintiff for gastrojejunostomy which, in Dr. Grose's opinion, meant an opening of the stomach. The doctor expressed the opinion that there were three possibilities as to how the towel could have gotten into the plaintiff's stomach. First (theoretical largely) that it had been swallowed by the plaintiff; second, that it had been left in the plaintiff's abdomen during a surgical operation which must have occurred some months before, which, if it did not involve an opening of the stomach and placing of the towel therein, had resulted in the towel working its way through the walls of the stomach into the stomach itself (and then partially back into the duodenum). While this was a possibility by reason of some few prior recorded cases of a similar nature, such a happening would be very rare indeed; third the remaining possibility was that in a prior operation, as for instance, gastrojejunostomy, the towel had been placed in the stomach to prevent the flow of matter from the intestines into the stomach and had been inadvertently left in the stomach when the patient's abdominal surgical wound was closed.

4. After the operation by Dr. Grose the plaintiff was subsequently treated at the Marine Hospital in Baltimore, medically and surgically. He was later examined by Dr. Grose and found to have sustained a serious hernia which was attributed by Dr. Grose to the after effects of the operation at Hopkins thought to have been caused by inflammation or infection as a post-operative result of the removal of the towel.

5. The present physical condition of the plaintiff is that he gets some relief from the effects of the hernia by wearing a corset. He is able to walk about and stand around but cannot well lean forward either standing or sitting in a chair. After three or four hours of any activity he finds it necessary to rest, preferably by lying down. In Dr. Grose's opinion he is not employable industrially but could do clerical work if otherwise qualified therefor. As the plaintiff is nearly 50 years of age and a mechanic by prior occupation, it is doubtful if he could engage in any gainful employable pursuit.

6. The Army Hospital at Ft. Belvoir, Virginia, is a regional hospital with a large staff of hospital employees and with numerous patients in different wards. The Chief Surgeon at the hospital at that time, is now in private practice in New York City. He testified as a witness for the government that the operation at Ft. Belvoir upon the plaintiff had been conducted by himself; that he recalled the case of the plaintiff for two reasons (1) that the plaintiff was an older man than most of the Army patients and (2) because the plaintiff spoke English imperfectly. He did not recall in precise detail all the incidents of the particular operation but stated definitely that the operation was for cholecystostomy, which involved no opening of the stomach and that in fact he had never performed (the operation of) gastrojejunostomy while he was in the Army service. He had been in private practice specializing as a surgeon for some ten years or more before entering the Army where he saw service in Africa and Italy before being appointed as Chief Surgeon at Ft. Belvoir. He is a graduate of recognized medical schools and a lecturer on surgery in one of them. He referred to a recorded account of the operation dictated by him to a secretary and signed by

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him shortly after the operation had been performed on the plaintiff, in accordance with the customary requirements of the Army. This account of the operation showed that it was for cholecystostomy which did not involve gastrojejunostomy requiring an opening of the stomach. He said that the original purpose of the operation was to remove the gall bladder but he found upon examination that it was located in such a way that this was impossible and therefore he substituted for the removal of the gall bladder the insertion of a drain. The operation including the administration of the anesthetic lasted about four hours, and after the operation the patient was placed in an oxygen tent. He was not sure of the length of the incision that was made. Ordinarily such an operation would require only a three-inch incision. This particular one might possibly have required more. He did not use any towels such as that later found in the plaintiff's stomach although such ordinary hand and face towels were doubtless in the operating room. Such towels and bandages as were used were attached to metal clips to insure facility of removal after the operation and if one had inadvertently been left in the opening it would have been discovered by an X-ray. His attention was not again called to the particular operation until a few months ago when he received a letter of inquiry from the Army stating that suit had been filed by the plaintiff based on an operation at Ft. Belvoir while he was Chief Surgeon there. The suit was filed July 31, 1947. The government did not call as witnesses any other members of the hospital staff, either assistant surgeons or nurses some of whom must have been present during the operation. The Assistant United States Attorney stated that he was unable to ascertain who they were so long after the operation.

7. A few days after the plaintiff's honorable discharge from the Army he filed a formal application for...

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