Dishman v. United States, Civ. A. No. 4951.

• Decision Date: 20 October 1950
• Docket Number: Civ. A. No. 4951.
• Citation: 93 F. Supp. 567
• Parties: DISHMAN v. UNITED STATES.
• Court: U.S. District Court — District of Maryland

93 F. Supp. 567

DISHMAN v. UNITED STATES.

Civ. A. No. 4951.

United States District Court D. Maryland, Civil Division.

October 20, 1950.

A. Freeborn Brown, Bel Air, Md., Jos. O. Kaiser, Kenney & Kaiser, Baltimore, Md., for plaintiff.

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

CHESNUT, District Judge.

This is a suit for personal injuries arising under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b) and §§ 2671-2680. The case has been heard on the pleadings and evidence. The findings of fact follow:

1. The United States Veterans Administration maintains a large hospital at Perry Point in Cecil County, Maryland, situated on or near the Susquehanna River. There are about 18 hospital buildings and appurtenant structures covering about 500 acres of ground. The patient population numbers about 2,000 with official personnel consisting of doctors, nurses, aides and other attendants of about 1200.

2. The plaintiff, a married man with three children himself a veteran of the recent world war, had been employed as an aide or patients' attendant at the hospital for three or four years before the occurrence of which he complains. His salary was at the rate of $2700 annually. He was on an eight-hour shift of duty which, at the time of the occurrence, was from 12 midnight to 8 A.M. For several days prior to July 5, 1949, he was troubled by a soreness in and about his left ear. On July 2nd he mentioned this to the doctor who was the Officer of the Day who, after some slight inquiry, said that there was apparently nothing seriously wrong with the ear and suggested that he see the medical officer who gave professional attention from time to time in proper cases to the personnel of the hospital. Thinking that it would probably be inconvenient to find the personnel doctor over the long July 4th week-end holiday, the plaintiff deferred further attention to his ear until the morning of July 5th just after his tour of duty had ended. He then spoke to one Allen who was the supervisor of the aides and asked for and, as he says, obtained a written form which referred him with a brief statement of his complaint to Dr. Stalio Imprescia, the doctor for the personnel of the hospital. On reporting to him the latter sent for an audioscope to examine the infected ear and after doing so said that there seemed to be nothing seriously wrong although the ear was a little red and that the trouble seemed to be merely a pimple in the ear. He was told to lie down and the doctor then poured a solution into his left ear which immediately caused a very severe burning sensation. He at once complained and the doctor quickly washed out the ear with water. The severe pain continued. The plaintiff asked the doctor what he had put in his ear and was told that it was carbolic acid. Dr. Imprescia promptly took the plaintiff to see Dr. Malinowski, the official eye, ear and throat specialist at the hospital.

3. As a witness Dr. Imprescia testified that the administration of carbolic acid was due to an unfortunate mistake in selecting the wrong bottle from the medicine cabinet. In the cabinet there were two bottles of about the same size and appearance, one labelled "phenol-glycerine 2% solution" and the other marked simply "Phenol". The doctor was reaching for and intended to use only the 2% solution of phenol-glycerine but his attention was unfortunately momentarily diverted from the correct bottle and by mistake he took down the bottle marked simply "Phenol" (that is, carbolic acid).

4. The plaintiff was carefully examined by Dr. Malinowski and hospitalized off and on for about ten days during which he suffered considerable pain from time to time. The effect of the use of the carbolic acid was that the ear drum was punctured and about half of it destroyed. The result is that the plaintiff has a 32% loss of hearing in the left ear. In the year that has elapsed since the occurrence the ear drum has healed to the extent of about one-half but is not likely to entirely heal. The plaintiff presently suffers no particular pain or discomfort, has at least normal hearing in the right ear and seemed to have little or no difficulty as a witness in hearing and answering questions in court. His hearing is not likely to be further impaired provided care is used in bathing to prevent penetration of water into the inner ear through the partially open ear drum.

5. The plaintiff was given necessary leave of absence and from time to time treated as an out-patient. He has lost no salary or wages as a result of the accident. He is not disqualified from performing ordinary activities to which he was accustomed prior to the accident. He is still employed at the hospital.

I conclude as a matter of law that the defendant is liable in this case and that $1500 will be a fair compensation for the plaintiff for the injuries sustained.

To recover under the Act the plaintiff must prove that his injuries were due to (1) negligence; (2) by an agent of the United States; (3) acting within the scope of his employment (line of duty); (4) under circumstances where the United States if a private person would be liable to the claimant in the same manner and to the same extent (5) in accordance with the law of the State of Maryland.

Under the facts found in this case it is clear that the plaintiff's injury was due to negligence. This is really not disputed.

In my opinion the injury was also caused by an agent of the United States. 28 U.S.C.A. § 2671 provides: "`Employee of the government' includes officers or employees of any federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation."

Counsel for the defendant contends that the personnel doctor in the instant case was acting not as an agent of the United States but as an independent contractor, and in support of that view cites certain judicial decisions in other jurisdictions where, under the particular facts, it was held that free medical service tendered to employees of a corporation by referring them to competently selected doctors did not subject the employer to liability by reason of the rule of respondeat superior. See 56 C.J.S., Master and Servant, § 165, p. 820; Big Stone Gap Iron Co. v. Ketron, 102 Va. 23, 45 S.E. 740; Virginia Iron, Coal & Coke Co. v. Odle's Adm'r, 128 Va. 280, 105 S.E. 107; Morrison v. Carbide & Carbon Chemicals Corporation, 278 Ky. 746, 129 S.W.2d 547; Schneider v. New York Tel. Co., 292 N.Y.S. 399, 249 App. Div. 400, Id., 276 N.Y. 655, 13 N.E.2d 47; Metzger v. Western Md. R. Co., 4 Cir., 30 F.2d 50. But it is not an absolutely universal rule in negligence law that an employer is always free from liability by the negligence of a doctor rendering free medical service in such situations. See Restatement of Agency, § 223, comment A; Knox v. Ingalls Shipbuilding Corp., 5 Cir., 158 F.2d 973; Stuart Circle Hospital Corporation v. Curry, 173 Va. 136, 3 S.E.2d 153, 124 A.L.R. 176; Collins v. Hertfordshire County Council, K.B.Div. (1947) 1 All Eng.L.R. 633. More importantly a considerable number of federal judicial decisions under the Act have held expressly or impliedly that the United States may be liable for the negligence of a medical doctor employed by the United States for professional services in a government hospital while acting within the scope of his authority. Jefferson v. United States, D.C. Md., 77 F.Supp. 706, affirmed 4 Cir., 178 F.2d 518; Griggs v....