Hope v. Seahorse, Inc.

• Decision Date: 31 December 1986
• Docket Number: Civ. A. No. H-81-3297.
• Parties: Alvyn Thomas HOPE and Beverly Sue Hope v. SEAHORSE, INC., Seahorse Fleet, Offshore Crews, Inc. United States of America.
• Court: U.S. District Court — Southern District of Texas

651 F. Supp. 976

Alvyn Thomas HOPE and Beverly Sue Hope v. SEAHORSE, INC., Seahorse Fleet, Offshore Crews, Inc. United States of America.

Civ. A. No. H-81-3297.

United States District Court, S.D. Texas, Houston Division.

December 31, 1986.

Robert Stein and William J. Stradley, Stradley, Barnett & Stein, P.C., Houston, Tex., for plaintiffs.

Robert B. Watts, Bracewell & Patterson, Houston, Tex., for defendants Seahorse, Inc., Seahorse Fleet and Offshore Crews, Inc.

Robert Darden, Asst. U.S. Atty., U.S. Attorney's Office, Houston, Tex., for defendant U.S.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

CARL O. BUE, Jr., District Judge.

I. Introduction

This is a medical malpractice action instituted against the United States by virtue of the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (Supp.1976 and Supp.1981). The United States, in administering medical treatment to Captain Tom Hope pursuant to Title 42 U.S.C.A. Sec. 249, had a duty to provide proper medical diagnosis and treatment as would have been provided by any other health care provider in the State of Texas. Plaintiffs contend that a breach of that duty gives rise to the cause of action at bar.

II. Findings of Fact

1. Captain Alvyn T. Hope was born April 9, 1940. During all times pertinent to this suit he resided in LaMarque, Galveston County, Texas, within the jurisdiction of the United States District Court for the Southern District of Texas.

2. Plaintiff, Beverly Hope, is the surviving widow of Captain Alvyn T. Hope. They were married February 14, 1981. During all times pertinent to this suit she has and still resides in LaMarque, Galveston County, Texas.

3. Plaintiff, Alyssa Nicole Hope, is the surviving daughter of Captain Hope and Beverly Hope. She was born November 23, 1981, and resides with her mother in LaMarque, Galveston County, Texas.

4. Defendant, Seahorse, Inc., is a corporation organized under the laws of the State of Louisiana, and is doing business in the State of Texas and in the Southern District of Texas. This Defendant has property and credits located within the geographical jurisdiction of this Court.

5. Defendant, Offshore Crews, Inc., is a corporation organized under the laws of the State of Louisiana, and is doing business in the State of Texas and in the Southern District of Texas. This Defendant has property and credits located within the geographical jurisdiction of this Court.

6. Defendant, Seahorse Fleet, Inc., is a corporation organized under the laws of the State of Louisiana, and is doing business in the State of Texas and in the Southern District of Texas. This Defendant has property and credits located within the geographical jurisdiction of this Court.

7. On February 18, 1986, Plaintiffs in the case at bar agreed to dismiss their cause of action against Defendants Seahorse, Inc. and Seahorse Fleet, Inc., and Offshore Crews, Inc.

8. Defendant, United States of America, is the proper party defendant responsible for and representing the United States Public Health Service.

9. On or about December 16, 1981, an administrative claim pursuant to the provisions of Title 28, U.S.C.A., Sec. 2671, et seq., was duly filed on behalf of Captain Alvyn T. Hope, Beverly Hope and Alyssa Nicole Hope for injuries and damages sustained by them on account of alleged negligence and malpractice of employees of the United States Public Health Service Hospital at Nassau Bay, Texas, and the United States Public Health Service Clinic at Galveston, Texas.

10. Captain Alvyn T. Hope died on or about July 15, 1982. The cause of death was metastatic cancer of the lung.

11. On or about July 21, 1982, an administrative claim pursuant to the provision of Title 28, U.S.C.A., Section 2671, et seq., was duly filed by Beverly Hope individually and as next friend of Alyssa Nicole Hope for their injuries and damages for the death of Captain Hope.

12. The amount of damages claimed by the Plaintiffs in the administrative claim was in excess of $10,000,000.00.

13. Plaintiff Beverly Hope has qualified as the Independent Executrix of the Estate of Captain Hope and as such is the proper party before this Court representing the estate of her husband.

14. During September, 1979, Captain Hope was employed by Defendant, Offshore Crews, Inc., as Master of the M/V BALTIC SEAHORSE.

15. During September, 1979, Defendant, Seahorse Fleet, Inc., was the owner of the M/V BALTIC SEAHORSE.

16. On or about September 19, 1979, Captain Hope was injured while attempting to maneuver along side a platform in the Gulf of Mexico. The type of work that Captain Hope was performing was work required in the normal course and scope of his duties of employment aboard the M/V BALTIC SEAHORSE.

17. At the time Captain Hope was injured, the M/V BALTIC SEAHORSE was in the navigable waters of the Gulf of Mexico off the coast of Texas.

18. Defendant, Seahorse, furnished Captain Hope with a Master's Certificate for treatment at a United States Public Health Service facility. Captain Hope had a statutory right to such medical treatment as provided by Title 42, U.S.C.A., Section 249.

19. On or about September 20, 1979, upon leaving his ship, Captain Hope presented himself to the United States Public Health Service Hospital at Nassau Bay, Texas, for treatment. He was complaining of pain in the area of his back, shoulder and right chest from the fall occurring on September 19, 1979.

20. The Public Health Hospital and Clinic at Nassau Bay, Texas, was not licensed by the State of Texas as a health care facility at that time or at any other time.

21. Upon Captain Hope's arrival at the hospital, chest x-rays were taken. These x-rays were read at that time by employees of the United States Public Health Service as showing no fractures. Such x-rays did show a slight increased density in the lower right lung as compared to negative chest x-rays taken on June 1, 1978. (Deposition Testimony of Dr. Mary Ann Cross).

22. Captain Hope was informed of these findings and was told by Dr. Cross, his treating physician, that such findings showed he had pneumonia in his right lung. (Deposition Testimony of Captain Hope; Deposition Testimony of Dr. Mary Ann Cross). He was given physical therapy for his back pain and antibiotics for the diagnosed pneumonia condition in his right lung. (Deposition Testimony of Captain Hope). He was not told of any implication of cancer from such finding, nor was he instructed to return for follow-up x-ray examinations in four to six weeks. (Deposition Testimony of Captain Hope).

23. Dr. Mary Ann Cross, Captain Hope's treating physician, compared this x-ray series to his routine chest x-rays taken a year before which showed no such abnormal density. (Deposition Testimony of Dr. Mary Ann Cross). The lung density observed for the first time on this x-ray was an abnormal condition requiring specific medical attention, diagnosis and treatment. (Deposition Testimony of Dr. John Constanzi).

24. Because of the high incidence of lung cancer in the Houston-Galveston area, proper medical practice required that Captain Hope not be lost to follow-up for this abnormal condition. (Deposition Testimony of Dr. John Constanzi).

25. As of September 21, 1979, it was a well-recognized medical fact that the cure rate for lung cancer was significantly higher if such cancer was treated in its initial stages of development. Captain Hope was then 39 years old and had a life expectancy of 34.9 years. (Deposition Testimony of Dr. John Constanzi).

26. The density observed by the doctors of the Public Health Service on the x-rays taken on September 20, 1979, was cancerous and in reasonable medical probability was in its initial stage and classified as a Stage I cancer. Captain Hope would have a 60-80% chance of surviving for five years. (Deposition Testimony of Dr. John Constanzi and Deposition Testimony of Dr. Robert Smiley); (Testimony of Dr. Charles Stiles).

27. What determines long term survival is the stage of diagnosis of cancer. (Deposition Testimony of Dr. John Constanzi); (Testimony of Dr. Charles Stiles).

28. In reasonable medical probability, had Captain Hope received proper medical treatment he would have a 60-80% chance of surviving for five years and then a 90% chance of surviving an additional five years. (Deposition Testimony of Dr. John Constanzi); (Testimony of Dr. Charles Stiles).

29. Proper medical practice in September, 1979, required that the lung lesion or "spot" be observed on a weekly basis to determine if the lesion was receding in size while maintaining the patient on high levels of antibiotics and anti-inflammatory drugs to treat any infection that may be causing the lesion. Should the lesion not decrease in size in response to this medical treatment, proper medical treatment in the fall of 1979 required that a biopsy or thoracotomy be performed on the lesion itself so that a pathology could be performed on the tissue of the lesion. (Deposition Testimony of Dr. Robert Smiley and Deposition Testimony of Dr. John Constanzi); (Testimony of Dr. Charles Stiles).

30. A thoracotomy involves an incision into the chest wall and the lung for examination of the actual structures within the chest. The lesion or density is removed for analysis to determine if it is cancerous. (Deposition Testimony of Dr. Robert Smiley); (Deposition Testimony of Dr. John Constanzi); and (Testimony of Dr. Charles Stiles).

31. A needle biopsy is performed to determine the cystology of a lesion. (Deposition Testimony of Dr. John Constanzi). The Public Health Service never performed a needle biopsy on Captain Hope.

32. The mortality rate for a thoracotomy is very low. (Deposition Testimony of Dr. Robert Smiley); (Deposition Testimony of Dr. John Constanzi); (Testimony of Dr. Charles Stiles).

33. Captain Hope next had contact with the Public Health Service on April 2, 1980, when he called complaining of continuing pain in his right lower lung. He was seen for this problem on April 4, 1980,...