Cline v. United States

Decision Date07 July 1967
Docket NumberCiv. No. 66-1219.
Citation270 F. Supp. 247
PartiesMargaret Ann CLINE, Plaintiff, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — Southern District of Florida

Richard Leslie, of Shutts & Bowen, Miami, Fla., for plaintiff.

James Matthews, Asst. U. S. Atty., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

FULTON, Chief Judge.

This action was brought by Margaret Ann Cline under the Federal Tort Claims Act. She seeks to recover damages which she claims to have sustained when her automobile was struck by a United States mail truck, which was then being operated by an employee of the Government. The accident occurred on November 13, 1964 on a main east-west thoroughfare in the City of Fort Lauderdale, Florida.

Prior to trial the Government admitted negligence by the driver of the mail truck, and admitted that the said driver was, at the time of the accident, acting within the scope of his employment by the Government. Thus, the issues at trial were limited to the nature and extent of Plaintiff's damages and whether such damages proximately resulted from the negligent operation of the mail truck.

This case was tried to the Court on March 14, 1967. The testimony was reported and a transcript thereof is on file with the Clerk of this Court. Thereupon, the Court makes the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. The Plaintiff was alone in her Buick automobile, momentarily parked, waiting for the traffic in front of her to move forward. At this moment, the mail truck which was then proceeding in the opposite direction crossed the median which separated the traffic lanes of the thoroughfare and struck the left front of Plaintiff's automobile a rather violent blow.

2. The mail truck was moving at the rate of approximately twenty miles per hour immediately prior to the impact; the Plaintiff's Buick automobile was damaged to the extent of $283.36. There is no evidence as to the nature and extent of damage to the mail truck.

3. Immediately after the impact Plaintiff experienced pain in her back which radiated down into her leg, a pain which she described as one of the most intense pains in her experience. She testified that the pain was so severe that she was briefly in a state of semi-paralysis; and that she could not move or even breathe for a moment or two; and that her legs were so weak that she was then unable to stand or drive her automobile. However, after sitting in her automobile for awhile, with a policeman in attendance, she was able, with some difficulty, to drive her automobile from the scene of the accident to her home.

4. Within the hour following the accident the Plaintiff went to the office of a physician, Dr. Simon, who specializes in orthopedics. He is a graduate of Harvard Medical School and is Board certified in his specialty.

5. For several years prior to this accident Dr. Simon had seen the Plaintiff professionally for a variety of complaints, none of which have any real significance here. In addition to administering to the Plaintiff professionally, Dr. Simon and his wife were socially acquainted with the Plaintiff and her husband. The Plaintiff and Mrs. Simon were what the Plaintiff described as "shopping and golfing buddies."

6. The examination of the Plaintiff by Dr. Simon, soon after the accident, revealed subjective symptoms of pain with movement, diminution of the right angle jerk, and an absence of sensation over the right foot and ankle in the region of the calf. X-rays which were then taken were negative. The doctor prescribed hot tub baths, certain exercises and medication for pain. Thereafter, for a period, the Plaintiff appeared to be recovering uneventfully.

7. Dr. Simon again saw the Plaintiff professionally on January 24, 1965 and on April 25, 1965. When he saw her in April her condition had worsened. She complained of pain in her right hip; she had an obvious limp; there was a diminution in her right knee jerk; she had less reflex in the right ankle; there was less sensation in her right lateral thigh; her hip rotary muscles were weaker; and, percussion over a certain vertebra in her spine produced pain which radiated into her right posterior hip.

8. When Dr. Simon examined the Plaintiff in April he made a diagnosis of a ruptured intervertebral disc, and he referred her to a neurosurgeon for consultation, where Dr. Simon's diagnosis was confirmed.

9. During the period between April of 1965 and November of 1966 Plaintiff's back and leg condition worsened. She was intermittently committed to bed rest and underwent periods of traction and physical therapy. During this period she occasionally saw an osteopath who gently massaged and manipulated the injured area. Although Dr. Simon had suggested surgery in April of 1965, the Plaintiff was unwilling to submit thereto.

10. During November of 1966, Dr. Simon again saw her professionally. Although she had intermittently experienced certain remissions from the pain and disability during the period between April of 1965 and November of 1966, the testimony shows that during that period she became progressively worse. Dr. Simon testified that in November 1966, and at the time of trial, she suffered a disability of fifteen to twenty percent of her body as a whole as a result of her spinal injury.

11. The Plaintiff testified and the proof shows that since this accident her physical activity has been radically curtailed. Prior to this accident she was able to play eighteen holes of golf several times a week, ride horseback, perform all of her household duties, drive her own automobile and otherwise lead a normal life. However, at the time of trial, and for some time prior thereto, she was unable to do any of these things, except with great difficulty and upon a very limited basis.

12. The evidence shows that prior to this accident the Plaintiff had from time to time suffered various physical infirmities. She has a history of a stomach ulcer and of a hiatal hernia, both of which continue to bother her some from time to time. It was also proven that in 1961 she fell from a kitchen stool and fractured her sacrum; and that in 1966 she had temporary discomfort in her neck. However, none of these conditions were shown by the evidence to have any material bearing upon her claim of injuries and disability, resulting from the collision with the mail truck.

13. Although Dr. Simon has seen the Plaintiff as a patient in the office only five times, it is uncontradicted that he advised with her about her condition over the telephone at her home, in his home, and at other places frequently, perhaps as many as one hundred times. The evidence shows that she has in fact been under Dr. Simon's general supervision and care continuously since the mail truck collision.

14. Since April or May of 1965, Dr. Simon has from time to time recommended surgery to the Plaintiff. At the trial he testified that if she did submit to surgery she may expect a good result. It is his opinion that after surgical intervention, she would have little or no disability, not more than five percent of the body as a whole. Although Dr. Simon testified that he had never operated upon a patient for a disc repair who was worse after the operation than before, he knew of cases where patients are not helped by the operation, but were worse thereafter.

15. The Plaintiff testified that during the three or four months next preceding the trial her pain and discomfort had sharply increased. No useful purpose will be served by here detailing all of the complaints which she described in her testimony. She pictured herself to be an almost semi-invalid. The Court finds her testimony to be credible.

16. At the trial the Plaintiff testified that as a result of the recent increase in the pain and discomfort, that she is now ready, or almost ready, to submit to surgery.

17. Dr. Simon testified that a surgical operation for the repair of her spine would cost approximately $2,500, which sum would include the surgical fees and the hospital and nursing expense.

18. The evidence in this case shows that the Plaintiff has expended the following sums for the following purposes, all of which expenditures are reasonable and each of which was proximately caused by the mail truck collision which occurred November 13, 1964:

                        a. Repair of Plaintiff's automobile                 $  283.86
                        b. Dr. Simon                                           220.00
                        c. Dr. Bell (Physical Therapist)                        28.00
                        d. Dr. Woolsey (Neurosurgeon)                           75.00
                        e. Dr. Panakos (Osteopath)                              78.00
                        f. Mrs. C. D. Cline (Nursing Care)                     164.08
                        g. Health Studios (Massages)                            15.00
                        h. Dr. Smith                                           137.00
                        i. Lauderdale Medical Supply                             5.26
                                                                            _________
                                                     TOTAL                  $1,006.20
                

19. The evidence shows that as a result of the Plaintiff being physically unable to perform her regular household duties, it was necessary for her to employ extra household help for a period of approximately one year at an expense of $1,000.

20. At the time of trial the Plaintiff was fifty-five years of age....

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5 cases
  • Woodberry v. United States
    • United States
    • U.S. District Court — District of South Carolina
    • 16 Julio 2015
    ...alleviated are not recoverable." Verrett v. McDonough Marine Serv., 705 F.2d 1437, 1444 (5th Cir. 1983) (citing Cline v. United States, 270 F. Supp. 247 (S.D. Fla. 1967)). Consistent with Ambrose and Verrett, two well-respected authorities have emphasized various factors for courts to consi......
  • Verrett v. McDonough Marine Service
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 31 Mayo 1983
    ...would submit to the operation, then those damages that the operation would have alleviated are not recoverable. See Cline v. United States, 270 F.Supp. 247 (S.D.Fla.1967). Dr. Cenac, Verrett's doctor, testified that the operation was quite routine and could be carried out without great diff......
  • Haughton v. Blackships, Inc.
    • United States
    • U.S. District Court — Southern District of Texas
    • 16 Junio 1971
    ...grave and severe operations, the injured party must follow the recommendation of an expert. However, in the case of Cline v. United States, 270 F.Supp. 247 (S.D.Fla., 1967), the Court required the operation, but only after concluding "that a reasonably prudent person acting under the facts ......
  • Automatic Merchandisers, Inc. v. Ward
    • United States
    • Nevada Supreme Court
    • 15 Junio 1982
    ...if the plaintiff had exercised reasonable diligence in seeking medical care, including surgical treatment. See, e.g., Cline v. United States, 270 F.Supp. 247 (S.D.Fla.1967); Jancura v. Szwed, 176 Conn. 285, 407 A.2d 961 (1978); Couture v. Novotny, 297 Minn. 305, 211 N.W.2d 172 (1973). When ......
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