Finley v. United States, C66-474.

• Decision Date: 02 July 1970
• Docket Number: No. C66-474.,C66-474.
• Parties: James FINLEY, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Ohio

314 F. Supp. 905

James FINLEY, Plaintiff, v. UNITED STATES of America, Defendant.

No. C66-474.

United States District Court, N. D. Ohio, E. D.

July 2, 1970.

Ramon Basie, Cleveland Ohio, for plaintiff.

Robert B. Krupansky, U. S. Atty., Donald N. Jaffe, Asst. U. S. Atty., Cleveland, Ohio, Gerald D. Freed, U. S. Dept. of Justice, Washington, D. C., for defendant.

MEMORANDUM

BEN C. GREEN, District Judge:

This is an action under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. The basis of the plaintiff's claim is alleged malpractice on the part of certain physicians employed by the Veterans Administration.

This action is novel in that it arises from a total depigmentation of the plaintiff, a Negro. Photographs introduced into evidence reflect that prior to the events set forth in plaintiff's complaint, his skin and hair were dark brown in color and he was normal in appearance, and that at the present time, his skin and hair have turned completely white.

In May, 1964, the plaintiff, James Finley, was employed by the United States at the Veterans Administration Hospital in Cleveland, Ohio. As such an employee, he was entitled to some free medical consultation and treatment. He is also an honorably discharged veteran from the United States Air Force. He is classified as having a service-connected disability, a peptic ulcer, for which he is entitled to treatment at government facilities.

On May 27, 1964, the plaintiff appeared at the outpatient department of the Veterans Administration Regional Office in downtown Cleveland. This was a separate facility from the hospital where he was employed. At that time he advised the consulting physician, Dr. A. J. Roitano, that he was out of the medication which he took for his ulcer, and required an additional supply.

Mr. Finley testified that he advised Dr. Roitano that he was having difficulty sleeping, and requested some medication to help him in that regard. He stated that Dr. Roitano inquired of him as to whether he had previously taken any sleeping pills, and he advised the doctor he had. Mr. Finley described the pill to Dr. Roitano as a white split tablet with the inscription "CIBA" on it. A prescription was then given to Mr. Finley by Dr. Roitano, which he had filled in the pharmacy section of the Regional Office. The prescription called for a sleeping tablet commonly known as Doriden, which medication corresponded to the description of the tablet Mr. Finley advised Dr. Roitano he had previously taken. Plaintiff testified that he recognized the Doriden tablets as similar to sleeping pills he had taken as a patient in the Veterans Hospital. As of that date plaintiff had been a patient, at the Veterans Hospital on three previous occasions, primarily for treatment of his ulcer.

Mr. Finley testified that he immediately began taking both the ulcer medication and one of the sleeping tablets each evening, and about a week thereafter, he noticed a skin disorder, manifesting itself in the form of small bumps or a rash, beginning to appear on his arm. This disorder caused an itching sensation, and produced some discomfort.

Plaintiff further testified that when this itching rash appeared, he stopped in to the office of Dr. Marcel Greenberg, a physician in the admitting office of the outpatient department of the Veterans Administration Hospital, and showed him his arm. He alleges that Dr. Greenberg looked at his arm, told him that it appeared to be a heat rash, and did not prescribe any treatment or medication.

Plaintiff contends that a few days later he again went to the outpatient admitting office at the hospital, as the rash had continued to increase in severity and was spreading to other parts of his body. He testified that on that occasion he saw Dr. Emil H. Adler, also a staff physician, and told him of his previous visit to Dr. Greenberg. He alleges that Dr. Adler examined the rash, expressed the opinion that it was probably a heat rash, or the measles, and took no further action on his complaints.

The evidence is in conflict on these two alleged consultations by the plaintiff with Dr. Greenberg and Dr. Adler. Each of the doctors denied seeing Mr. Finley on the occasions alleged and denied the statements attributed to them.

The Veterans Hospital provided a medical clinic for its employees for temporary treatment of medical ailments. The clinic was open from 8:00 to 9:30 a. m. and from 3:00 to 4:00 p. m. Plaintiff does not claim that he consulted with either Dr. Greenberg or Dr. Adler during regular clinic hours. He claimed that while he was on other errands in the hospital he stopped in their office.

In support of his contention that he had consulted with Dr. Greenberg, Mr. Finley produced a witness who had been a fellow employee. The witness testified that he had accompanied Mr. Finley to the outpatient office on the date he claimed to have seen Dr. Greenberg. There was a minor discrepancy between the testimony of the witness and Mr. Finley regarding this event; the witness testifying the visit took place around the lunch hour and they returned to work, whereas the plaintiff testified that it was around his time to go home.

In support of the contention that the plaintiff did not see the two physicians as alleged, the defendant introduced evidence that every employee at the hospital had an employee health card maintained for him, and that any employee requesting temporary treatment would have a notation of the treatment recorded on the card. There were no entries by either doctor on plaintiff's health record for the dates in question. Evidence was also introduced to show that a veteran requesting treatment was required to fill out a 10P10 application form, which requirement would have applied to the plaintiff. There was no evidence that such an application for treatment on the dates in question had been made.

In addition, Dr. Greenberg testified that if he had observed a patient with what appeared to be a skin disorder, he would refer such a patient for a dermatological examination, and that such action would be noted on the health record. Dr. Adler testified that he would not have advised a patient that a skin disorder on the arm was either heat rash or measles, in that measles manifested itself in another fashion.

For reasons which will appear hereinafter, the Court does not believe that it is essential to resolve this conflict. However, the Court is of the opinion that it would be difficult to find from a preponderance of the evidence that the plaintiff did consult with Dr. Greenberg and Dr. Adler, as he contends.

By the evening of June 15, 1964, the plaintiff's rash had become so widespread, and the discomfort so severe, that the plaintiff's wife called her physician, a Dr. Welsh, to see her husband. Dr. Welsh examined Mr. Finley, and expressed the opinion that he was suffering from a drug reaction. He advised the plaintiff to terminate the continued use of Doriden, and to seek treatment at a private hospital the following day.

The plaintiff did as he was advised, but, due to circumstances not pertinent to this action, was unable to secure treatment or admission at the private hospital. He then proceeded to the Veterans Administration Hospital, where he was employed, and went to the admitting office. He consulted with a Dr. Baker who was on duty there and was referred by him to Dr. Anatol Glen, another physician with the Veterans Administration, for a dermatological examination.

On June 17, 1964, Dr. Glen examined Mr. Finley, and the clinical record reflects the doctor's impression of his condition as "drug eruption." He advised the plaintiff to discontinue the taking of all drugs, prescribed some medication and conservative home treatment to relieve the itching sensation, and placed Mr. Finley on one week sick leave.

In response to a request by Mr. Finley that he be hospitalized, Dr. Glen advised the plaintiff that, at that time, the hospital was in the process of moving from its existing location, and that only emergency cases were being admitted. He did not consider plaintiff sick enough to be admitted at that time, but if his condition did not improve he would be admitted to the hospital at the new location.

Plaintiff's skin condition did not improve and he was admitted to the Veterans Administration Hospital on June 29, 1964. He remained hospitalized until July 15, 1964. During his hospitalization, his condition appeared to improve, and upon his discharge there appeared to be no change in plaintiff's skin color and no change in his physical appearance.

The record of plaintiff's hospitalization, under the signature of Dr. H. Rotman, in the category of "Established Clinical Diagnosis" states as one of the conclusions, "Dermatitis medicamentosa, possibly due to Doriden." In Dr. Rotman's final summary the same diagnosis of dermatitis medicamentosa is contained. Under diagnosis, that condition is referred to as "probably secondary to Doriden," whereas under impression it is stated as "possibly due to Doriden."

Entries by both Dr. Rotman and Dr. Glen on Mr. Finley's clinical records and medical records during the term of his hospitalization also express the opinion that the patient was suffering from a dermatitis medicamentosa possibly related to a drug reaction from the taking of Doriden. The records also reflected an anemic condition on blood serum testing, as to which the resident physician in hematology stated that "this anemia could possibly be related to Doriden intake, although I am unaware of this side effect."

Within a few weeks after his discharge from the hospital, the plaintiff experienced another form of skin disorder. His skin coloration began to lighten, and all hair on his head and body fell out. The skin continued to lose its dark color over a period of a few weeks until all pigmentation was gone, and as his hair grew back in, it was white in color. The exact period during which these changes occurred is not clearly...