Andrews v. United States

• Citation: 548 F. Supp. 603
• Decision Date: 30 September 1982
• Docket Number: Civ. A. No. 80-0071-1,80-0072-1.
• Parties: Sandra B. ANDREWS, Plaintiff, v. UNITED STATES of America, Defendant. Kenneth ANDREWS, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina

548 F. Supp. 603

Sandra B. ANDREWS, Plaintiff, v. UNITED STATES of America, Defendant.

Kenneth ANDREWS, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. Nos. 80-0071-1, 80-0072-1.

United States District Court, D. South Carolina, Charleston Division.

September 30, 1982.

COPYRIGHT MATERIAL OMITTED

Nicolas Lempesis, Charleston, S. C., Ronald Hightower, Lexington, S. C., and Peter DeLuca, Goose Creek, S. C., for plaintiffs.

Heidi M. Solomon, Asst. U. S. Atty., Charleston, S. C., for defendant.

ORDER

HAWKINS, District Judge.

These consolidated cases, heard by this court in April, 1982, present claims brought pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671, et seq., and 10 U.S.C. § 1089. This action has been brought by the plaintiffs as one sounding in negligence on the part of agents of the United States arising out of medical treatment given to the plaintiff, Sandra B. Andrews, while she was being counselled and treated for depression from January to June, 1978, at the Naval Weapons Station Branch Clinic (hereinafter referred to as the "Clinic"), Charleston, South Carolina. The plaintiff, Sandra Andrews, has alleged that while undergoing general counselling, she was sexually abused by the physician's assistant rendering the counselling, Mr. Travis Gee. She further alleges that the defendant United States of America breached the applicable standard of medical care by failing to treat and to supervise her treatment in an accepted manner. The cause of action brought by her husband, Kenneth Andrews, arises out of and is dependent upon Mrs. Andrews' action, being one for emotional damage and loss of consortium, allegedly caused by the same incidents complained of by Sandra Andrews.

The United States has consistently taken the position that the alleged improprieties claimed by Mrs. Andrews did not occur, and that Mr. Gee was qualified to treat a patient such as Mrs. Andrews; that he did, in fact, render appropriate medical treatment to Mrs. Andrews, and that he was properly supervised by professional superiors at the Clinic.

The United States has further taken the position that even if this court found the allegations made by Mrs. Andrews concerning her treatment at the Clinic did occur, a cause of action for damages resulting therefrom would not lie against the United States. It contends that, even if Mr. Gee and his superiors were found to be within the scope of their federal employment, so that the Federal Tort Claims Act would apply, the United States has not extended such a limited waiver of sovereign immunity to those situations "arising out of assault and battery." 28 U.S.C. § 2680(h). Notwithstanding the fact that the plaintiffs' complaints sound in medical malpractice or negligent supervision, the defendant alleges that the acts that were the proximate cause of plaintiff's damages are based on assault and battery.

Upon the hearing of testimony, and after reviewing the exhibits and all the evidence presented, this court makes the following Findings of Fact and Conclusions of Law.

I. FINDINGS OF FACT

1. Kenneth H. Andrews was the Chief Master at Arms aboard the U.S.S. PRATT, home quartered at the Naval Base, Charleston, South Carolina, during the period mid-1976 through June 1978. He and his family, including his wife, Sandra B. Andrews, were patients at the family practice group at the Naval Weapons Station Branch Clinic, Charleston, South Carolina, from mid-1976 through June 1978.

2. On January 12, 1978, Mrs. Andrews was treated at the Clinic by a physician's assistant, Warrant Officer Travis L. Gee (hereinafter "Gee"). While complaining of acute sinusitis during this visit, she appeared to be suffering from depression; and Gee recommended that she return to the Clinic as necessary in order to speak to someone about her depression.

3. At the time he was treating Mrs. Andrews, Gee's professional credentials included a Bachelor of Medical Science Degree from the University of Nebraska, in conjunction with the Physician's Assistant program sponsored by the Armed Forces. Gee received high commendations for acceptably completing all phases of his physician's assistant training program. He received national certification as a physician's assistant in 1976. General medical experience included his having been a Hospital Corpsman since his original Navy enlistment in 1960. Specific experience in psychiatry included his assignment for eighteen months on a psychiatric ward, as well as courses in psychology and counselling experience obtained during his training to become a physician's assistant.

4. The Physician's Assistant program is a program intended to enable a qualified physician's assistant to render medical care formerly rendered only by physicians. The purpose of the program is to extend the medical care given to Naval personnel and their dependents. The Bureau of Naval Personnel Manual describes the employment of the Navy Physician's Assistant as "certain tasks formerly undertaken only by physicians." The Navy's general guidelines given to the local Command for the utilization of a physician's assistant were set out in the Department of Medicine and Surgery Memo of July 15, 1974, identified as BUMED-316-rp. These guidelines, articulated with greater specificity by the local command and which were in effect at the Charleston Naval Regional Medical Center at all relevant times were those set out in the document identified as NRMCCHASNINST 1601.7A dated May 21, 1976. This document states:

The physician's assistant is a highly-skilled health care provider who is able to function in a wide variety of situations, but primarily in an ambulatory care setting. The physician's assistant is able to provide both acute and chronic care to all patients who do not require the full expertise of a physician.... The use of the physician's assistant in the military health care system is intended to augment and improve the quality of health care.... The Physician's Assistant is authorized prescription and order writing authority consonant with responsible physician supervision.

Thus, a physician's assistant is a provider of medical care, able to perform those medical duties usually performed by physicians, including the prescription of a drug such as Elavil, with specific duties assigned to him by his supervising physicians.

5. Gee was assigned to the Clinic from November of 1976 through all relevant times herein; that is, through June 1978. His medical supervisors, at a period prior to his commencement of the medical care of Mrs. Andrews, were the Officer in Charge of the Clinic, Dr. Bruce Junkin, as well as the other two doctors assigned there for the period from approximately November 1976 to December 1977, Dr. Joseph Schenck and Dr. Jerry Nowak. From the approximate period of Summer 1977 up to and including June of 1978, the Officer in Charge of the Clinic was Dr. David S. Frost, and the two other treating physicians assigned to that Clinic, who generally supervised Gee, were Dr. Michael Coates and Dr. Vince Ober.

6. Gee was authorized to provide general medical care under a doctor's supervision. He was a competent and capable physician's assistant whose credentials and abilities qualified him to treat a patient such as Mrs. Andrews, who appeared to be suffering from depression.

7. Under the general supervision of the physicians at the Clinic, Gee was qualified to prescribe an antidepressant such as Elavil, the most sedative of this type mood-elevator drug, and to counsel and monitor a patient such as Mrs. Andrews.

8. The business of the Clinic was to provide medical care to military personnel and their dependents. Sexual intimacies with a patient while undergoing medical treatment was not acceptable medical treatment.

9. The supervision of physician's assistants in general, and of Gee in particular, was left, by policy and practice, to those doctors who supervised him at the Clinic. During the period when Mrs. Andrews was being counselled by Gee, all medical charts of patients seen by Gee were reviewed daily by one of the doctors at the Clinic.

10. Dr. Coates and Dr. Frost reviewed Mrs. Andrews' medical records during her treatment at the Clinic and found the medical care there recorded to be appropriate and in accordance with recognized medical procedure.

11. Prior to Mrs. Andrews being seen at the Clinic in January 1978, her marriage had been undergoing a great deal of stress. On several occasions over a period of years prior to January 1978, her husband had physically assaulted her, several times in front of witnesses. These violent episodes occurred when Mr. Andrews abused alcohol, and his drinking problem had worsened in the months prior to her seeking counselling at the Clinic. Further stress was placed on the marriage due to problems Mr. Andrews was encountering in his employment.

12. When Mrs. Andrews came to the Clinic on January 17, 1978, she was not suicidal, but she was moderately depressed and anxious. She was having trouble sleeping, and her situation was assessed by Gee as chronic depression with multiple somatic complaints. He prescribed a tricyclic antidepressant, Elavil, and noted in his record that he would discuss this treatment with Dr. Coates, the doctor to whom the Andrews family's care was assigned at the Clinic. Gee did discuss Mrs. Andrews' care with Dr. Coates and was authorized to continue treating her with Elavil and general counselling.

13. Mrs. Andrews had a consultation with Gee on January 23, 1978. She was seen by him again on January 31, 1978, at which time she reported to him that she had confronted her husband on January 27th about his drinking problem. She appeared to Gee to be improving and was told to return to the Clinic in one week. She returned on February 7, 1978, and continued to improve. She was then told to return to the Clinic every two weeks. During her next consultation with Gee, on March 7, 1978, her medication was...