Herring v. Knab
| Decision Date | 06 April 1978 |
| Docket Number | No. C-2-76-162.,C-2-76-162. |
| Citation | 458 F. Supp. 359 |
| Parties | Paul E. & Jo Ann HERRING, Plaintiffs, v. Dr. KNAB, National Naval Medical Center, Dr. G. L. Shaw, National Naval Medical Center, National Naval Medical Center, Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Charles E. Brown, Columbus, Ohio, for plaintiffs.
Albert R. Ritcher, Asst. U. S. Atty., Columbus, Ohio, Walter A. Oleniewski, U. S. Dept. of Justice, Washington, D. C., for defendants.
This matter is before the Court on defendant's motion for summary judgment. Plaintiffs, Jo Ann and Paul Herring, brought this action against the United States under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., alleging that government doctors at Bethesda Naval Hospital in Maryland performed a tubal ligation in a negligent manner, which resulted in a later pregnancy. Plaintiffs also allege that the government doctors negligently advised and failed to advise Mrs. Herring of the risks surrounding the tubal ligation and the possibility of future pregnancies.
In moving for summary judgment, defendant argues that the government doctors were not negligent in the performance of the operation as a matter of law and that plaintiffs' claim that the doctors negligently advised and failed to advise Mrs. Herring is barred by the misrepresentation exception to governmental tort liability under the Federal Tort Claims Act, 28 U.S.C. § 2680(h). The Court agrees and accordingly grants the motion for summary judgment under Fed.R.Civ.P. 56.
Title 28 U.S.C. § 1346(b) establishes the jurisdiction of federal district courts to adjudicate cases of governmental tort liability under the Federal Tort Claims Act:
The district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for injury . . . caused by the negligent or wrongful act or omission of any employee, of the Government while acting within the scope of his office or employment under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
The professional standard of care imposed upon physicians in Maryland, the place where the tubal ligation occurred, was recently summarized by the Maryland Court of Special Appeals as:
A duty to use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances. Under this standard, advances in the profession, availability of facilities, specialization or general practice, proximity of specialists and special facilities, together with all other relevant considerations, are to be taken into account.
Shilkret v. Annapolis Emergency Hospital Assoc., 276 Md. 187, 349 A.2d 245, 253 (1975).
In applying the medical malpractice standard, the Maryland courts follow the general rule that expert evidence is necessary to establish a prima facie case of medical malpractice unless the alleged negligent conduct is within the understanding of laymen, requiring only common knowledge and experience. See, e. g., Suburban Hospital Assoc., Inc. v. Hadary, 22 Md.App. 186, 322 A.2d 258, 260-61 (1974). Because surgical procedures, like the tubal ligation at issue here, are generally complex medical practices, they usually are beyond the understanding of laymen and accordingly require expert testimony. Cf. Johns Hopkins Hospital v. Genda, 255 Md. 616, 258 A.2d 595 (1969). (Expert testimony required in an action alleging that fragments of a needle were left in plaintiff during heart surgery.)
In support of their claim that the operation was performed negligently, the plaintiffs apparently rely on the testimony of their sole expert witness, Dr. Nicholas Vorys, and the undisputed fact that the operation failed to achieve the desired result. Plaintiffs have offered no further facts tending to show the existence of a genuine fact issue as required by Fed.R. Civ.P. 56(e). The testimony of Dr. Vorys has been preserved by deposition and the Court has reviewed the deposition in its entirety.
Dr. Vorys is a board certified obstetrician and gynecologist licensed to practice medicine in the State of Ohio. Dr. Vorys testified that the standards of medical care for performing laparoscopic tubal ligations do not vary from one portion of the country to the other. He further testified that he is generally familiar with the standards of care at Bethesda Naval Hospital through friends who have taught or trained there, and from serving as a visiting professor in the field of endocrinology at Bethesda. Dr. Vorys based his testimony in this cased upon his personal observations during the performance of a total abdominal hysterectomy on Mrs. Herring subsequent to the tubal ligation, and upon records obtained from Bethesda.
Dr. Vorys testified as follows concerning the operation performed at Bethesda:
Dr. Vorys summarized his testimony in the following fashion:
I think what happened is that it was burned in a proper place by a proper method by accepted technique. Unfortunately, it recanalized. That is really my appraisal of the whole situation.
With respect to the successfulness of tubal ligations of this type, Dr. Vorys stated:
There is a known failure rate with this procedure. It is usually quoted as 1.8 per thousand.
The Court finds that the plaintiffs have failed to show the existence of a genuine issue of material fact. Upon this record there is insufficient evidence to support an inference that the defendant's employees were negligent in the performance of the tubal ligation. The evidence simply fails to provide a basis upon which reasonable minds could conclude that the prevailing standards of medical care at Bethesda were not met.
The defendant contends that plaintiffs' claims for negligent advice and failure to advise are barred by the misrepresentation exception...
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Phillips v. United States
...but the operation is medically indicated and performed in accordance with the applicable standards of medical care," Herring v. Knab, 458 F.Supp. 359, 362-63 (S.D.Ohio 1978), most medical situations involve "a dual duty in ascertaining the patient's condition —i. e., a duty to advise him wh......
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Garcia v. Von Micsky
...testified that 99 per cent of the operations are successful. This appears to be a generally accepted figure. See Herring v. Knab, 458 F.Supp. 359, 362 (S.D.Ohio 1978).1 N.Y.Civ.Prac.Law § 4519 (McKinney).2 § 90. Promise Reasonably Inducing Action or Forbearance(1) A promise which the promis......