Jackson v. United States

• Decision Date: 19 April 1960
• Docket Number: Civ. No. 11398.
• Citation: 182 F. Supp. 907
• Parties: Lawrence JACKSON v. UNITED STATES of America.
• Court: U.S. District Court — District of Maryland

182 F. Supp. 907

Lawrence JACKSON v. UNITED STATES of America.

Civ. No. 11398.

United States District Court D. Maryland.

April 19, 1960.

Marvin Ellin, Baltimore, Md., for plaintiff.

Leon H. A. Pierson, U. S. Atty., and Robert E. Cahill, Asst. U. S. Atty., Baltimore, Md., for defendant.

THOMSEN, Chief Judge.

This action under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq., filed 20 May 1959, presents a troublesome question of damages, made more difficult by the fact that plaintiff's counsel and witnesses have gilded his claim with deliberate exaggerations which must be scraped off before the underlying metal can be assayed.

The claim is based upon the alleged negligence of the doctors at the U.S.P.H. S. Hospital in Baltimore, who left a part of a surgical needle in plaintiff's abdomen during an operation in March 1954, and learned that the needle was there shortly thereafter, but did not inform the plaintiff thereof, or attempt to remove it. Plaintiff learned of the needle in May 1959, and it was removed in July 1959. Plaintiff had a variety of pains and difficulties between 1954 and 1959 for which he was treated at the Johns Hopkins Hospital as well as at the U.S. P.H.S. Hospital. The problem is — which of those pains and difficulties should be attributed to the needle?

Plaintiff, his counsel, and the United States Attorney have stipulated:

"1. That the United States of America admits that the acts and/or omissions of its agents, servants and employees in the voluntary treatment of the plaintiff, Lawrence Jackson, at the United States Public Health Service Hospital, Baltimore, Maryland, during the period from May 20, 1957, up to and including May 20, 1959, constituted negligent malfeasance and/or nonfeasance in that said agents, servants and employees of the United States of America, having knowledge of the presence of a curved atraumatic needle in the abdominal cavity of the said Lawrence Jackson, failed to disclose the same to the said Lawrence Jackson.

"2. That the plaintiff, Lawrence Jackson, admits that the United States of America is not liable under the Federal Tort Claims Act, Title 28, United States Code, Sections 1346(b), 2671 et seq., for the acts and/or omissions of its agents, servants and employees in the treatment of the said plaintiff, Lawrence Jackson at the United States Public Health Service Hospital, Baltimore, Maryland, which acts and/or omissions occurred prior to May 20, 1957."

Facts

The histories which plaintiff gave to the doctors at the Johns Hopkins Hospital and at the U.S.P.H.S. Hospital from time to time are essentially alike, but differ from the testimony of plaintiff and his witnesses on the stand. The following findings are based principally on the histories given at the two hospitals and on the records of the examinations and treatments.

Plaintiff is a Negro laborer, born in 1906, who came to Baltimore from Virginia in 1950 with his wife and ten children. He had had pains in his back and stomach for many years. He was treated in various clinics at the Johns Hopkins Hospital in 1951 and 1952 for bad teeth, heat exhaustion and a possible peptic ulcer. In February 1954, he went to the medical clinic at Hopkins, where he complained of his back and stomach, headaches and eye trouble. His teeth were so bad that they all had to be extracted. He had had several episodes of epigastric pain in recent years, had been unable to work for some time, and had lost nearly 20 pounds. His principal trouble was diagnosed as a probable peptic ulcer; since no bed was available at Hopkins he was sent to the U.S.P.H.S. Hospital, which admitted him as a "Special Study" case. After tests, the diagnosis was ulcer of the stomach, and on 30 March 1954 a government surgeon performed a subtotal gastrectomy and an appendectomy. About 75% of the stomach was excised and a Polya type of gastrojejunal anastomosis was carried out, connecting what was left of the stomach with the intestinal tract. The operation lasted about 3½ hours. The operation report, dated the following day, has the curious entry under the heading "Drains (kind and number)", simply "Half of atraumatic needle". This probably means that half of an atraumatic needle (curved surgical needle) had been recovered. There is no record of any effort to locate the other half.

The immediate post-operative course was uneventful, and the patient was discharged on 12 April 1954, with instructions about future diet. He reported to the U.S.P.H.S. Hospital on 10 May 1954 "eating OK and no vomiting—no pain". On 10 August 1954 he returned to the U.S.P.H.S. Hospital complaining that for the past two months he had been vomiting after each meal, had pain in his back, and had been unable to gain any strength. The admitting doctor noted, however, that his general appearance and weight-gain belied his complaints. He was readmitted to the U.S.P.H.S. Hospital, where he continued to complain of vomiting, although no objective evidence thereof was ever found. Nor was any satisfactory clinical evidence found to support the back complaint; plaintiff was not found to be malingering, but was considered able to work. On 24 February 1955 he still complained of his stomach and back, but had gained 10 pounds.

A few days later he went back to the Medical Care Clinic of the Johns Hopkins Hospital. Dr. Hedeman noted that "his back pain has been present 10 years but much worse since operation". An X-ray revealed the surgical needle "in vicinity of pain". Dr. Hedeman reported this to the U.S.P.H.S. Hospital and plaintiff returned to the U.S.P.H.S. Hospital clinic the next day. He said that his stomach was doing well, no vomiting but a little "gas". He complained of pain in the high lumbar region, but an examination by the Senior Orthopedic Surgeon showed no muscle spasm, no tenderness to palpation, and full range of motion in all directions. Straight leg raising tests were normal, and no orthopedic pathology was found.

On 29 March 1955 the doctors at the U.S.P.H.S. Hospital decided not to inform plaintiff that there was a foreign body in the peritoneal cavity. The note states: "We did not believe it was causing any symptoms". He was fitted with a back support, and reported a few weeks later, "Back feels much better. Stomach is fine now."

On 26 July 1955 he reported that his back began hurting again when he started doing pick and shovel work. This complaint was of a general soreness over the lumbar area. Again there was no muscle spasm and there was a full range of spinal flexion in all directions.

On 11 September 1955, he was admitted to the Johns Hopkins Hospital with "a few hours history of progressive supra-umbilical pain associated with nausea and vomiting". An exploratory laparotomy was performed, which showed a vascular occlusion of the terminal ileum due to post-operative adhesions. This condition was relieved by releasing the adhesions, and the bowel returned to normal promptly. No effort to remove the needle was made at that time or later by the Hopkins doctors, although they noted in the discharge summary that the needle "may be of importance in the future", and plaintiff was later checked in the neurosurgical clinic at Hopkins. No one has testified that the adhesions which caused the vascular occlusion were associated with the needle, and I find that they were not.

In March 1958 plaintiff returned to the U.S.P.H.S. Hospital complaining of headaches. He did not complain of nausea or vomiting. The X-ray showed arthritic changes which the doctors felt probably caused the pains. In May 1958 he failed to keep an appointment at the clinic and did not report back until 12 March 1959, when he complained of mid-lumbar back pain for the past month. He testified that he had hurt his back in an industrial accident on or about 15 February 1959. A belated report of such an accident was filed by his employer. The diagnosis at the clinic was lumbosacral strain.

In April 1959, he consulted his present attorney, who referred him to Dr. Allan H. Macht. Plaintiff gave Dr. Macht the details of the accident on 15 February 1959, said that his back hurt, and gave a history of "arthritis and ulcerated stomach". Dr. Macht had an X-ray taken by Dr. Sindler, which showed some arteriosclerotic calcification, mild hypertrophic arthritis in the lumbar spine, a spina bifida occulta, and the needle in the soft tissue in front of the third lumbar vertebra. Dr. Macht diagnosed plaintiff's condition as ...