James v. United States

• Decision Date: 16 January 1980
• Docket Number: No. C-79-1833-WWS.,C-79-1833-WWS.
• Citation: 483 F. Supp. 581
• Parties: William JAMES and Kathryn James, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of California

483 F. Supp. 581

William JAMES and Kathryn James, Plaintiffs, v. UNITED STATES of America, Defendant.

No. C-79-1833-WWS.

United States District Court, N. D. California.

January 16, 1980.

COPYRIGHT MATERIAL OMITTED

John P. Caudle, Kincaid, Gianunzio, Caudle & Hubert, Oakland, Cal., for plaintiffs.

John F. Barg, Asst. U. S. Atty., San Francisco, Cal., for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM OF OPINION

WILLIAM W SCHWARZER, District Judge.

This is an action for personal injury brought under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. The Court has jurisdiction under 28 U.S.C. § 1346(b). The law of California, the place where the complained of acts occurred, controls. Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); United States v. English, 521 F.2d 63, 65 (9th Cir. 1975).

Plaintiff William James complains that defendant negligently failed to inform him of the discovery of a suspected tumor in the course of a pre-employment physical at the Mare Island Naval Shipyard in December, 1976. James claims that as a result he was deprived of a measurable chance of an increased life expectancy through early removal or treatment of the tumor, which was inoperable when discovered almost two years later. Plaintiff Kathryn James, his wife, claims a consequential loss of income and consortium.

The Court has heretofore granted partial summary judgment to plaintiffs on the issue of negligence. A trial was held to the Court on the proximate cause and damage issues on December 26, 1979. The following shall constitute the Court's findings of fact and conclusions of law on all issues.

FACTS

In December, 1976, William James, then 38 years old, applied for a position as marine machinist at the Mare Island Naval Shipyard. As a condition of employment, he was required to take a physical examination at the Mare Island dispensary. A chest X-ray taken in the course of the examination was routinely sent to Oak Knoll Naval Hospital for review. The reviewing radiologist at Oak Knoll noted an abnormality "in the right para tracheal region, in which there is a 3 × 2 cm. soft tissue density." He expressed his concern about a possible cancer and requested further chest X-rays for review and a possible workup. Through a clerical error, both the December, 1976, X-ray and the radiologist's report were inadvertently filed without being seen by the examining physician at Mare Island. James was not informed of the abnormality appearing on his chest X-ray and was hired by the Mare Island shipyard. He worked there until October, 1978, when he began to experience chest pains, shortness of breath and coughing, and sought treatment from his personal physician.

The X-rays taken at that time revealed a large mass in James's right lung. Exploratory surgery disclosed a large cell undifferentiated carcinoma located in the lung and the mediastinum, close to the trachea (windpipe). The mediastinum is the area between the lungs, extending from the neck to the diaphragm, in which are located the trachea and esophagus, major arteries and veins and the heart. It is undisputed that a cancer which has invaded the mediastinum is inoperable.

James received radiation therapy in November and December, 1978. At the time of trial, the tumor had shrunk in size so as to be invisible on X-rays. The cancer had gone into remission and there was no direct evidence that it had metastasized (i. e., spread). James had regained the weight he had previously lost and was physically able to return to work.

NEGLIGENCE

At the threshold, we confront the issue whether the United States owed a duty of care to James in connection with the preemployment physical examination. The government argues that the absence of a physician-patient relationship here precludes such a duty.

California law does not employ such a categorical test. Instead, it proceeds from the principle that all persons owe a duty of ordinary care to prevent others from being injured as a result of their conduct; any departure from this principle involves a balancing of several considerations, such as the foreseeability of harm to plaintiff, the degree of certainty that plaintiff suffered injury, the closeness of the connection between the conduct and the injury, the moral blame attached to defendant's conduct, the policy of preventing future harm, the relative burden on the parties, and the availability of insurance. Keene v. Wiggins, 69 Cal.App.3d 308, 138 Cal.Rptr. 3, 6 (1977).

In this case, these considerations on balance favor plaintiffs. It was foreseeable that an inadvertent failure to advise plaintiffs of the apparent tumor disclosed by the X-ray would cause harm to James and some harm did in fact result. Policy considerations favoring the imposition of the consequences of negligence on the party best able to prevent it, and the relative burden on the parties support the imposition of a duty here, even in the absence of moral blameworthiness.

While the court in Keene v. Wiggins imposed no duty on the physician under the facts of that case, those facts are distinguishable. Plaintiff there was a workers' compensation claimant who allegedly had relied to his detriment on the report of the carrier's examining physician that no surgery was needed. The court concluded that the physician owed no duty to plaintiff where the physician had been employed by the carrier to rate the injury, stood in an adversary relationship to plaintiff, and had no reason to expect that plaintiff would rely on his report.

A case closely in point here is Coffee v. McDonnell Douglas Corp., 8 Cal.3d 551, 105 Cal.Rptr. 358, 503 P.2d 1366 (1972). There plaintiff had taken the pre-employment physical examination required by defendant, was told that he had passed it, and was employed. Seven months later he began to suffer symptoms which led to a diagnosis of multiple myeloma (cancer of the bone marrow). A blood sample taken during the physical examination had been sent to an independent laboratory whose report, when received by defendant, had been filed without being seen by the examining physicians. The report showed an abnormally high sedimentation rate which, had it been known to the physicians, would have led them to make further inquiries. The California Supreme Court held that although an employer generally owes no duty to prospective employees to ascertain whether they are physically fit for the job they seek, where he assumes that duty he is liable if he performs it negligently. The court agreed with the defendant employer that it was under no duty to discover diseased conditions, but held that it may nevertheless be held liable for not discovering a disease if, in light of the circumstances, it failed to conduct the examination with due care. The inadvertent filing by defendant of the required blood test report before it was seen by the examining physicians was a failure on the employer's part to exercise due care. The Coffee case was followed in Betesh v. United States, 400 F.Supp. 238 (D.D.C.1974), decided under Maryland law. Betesh was rejected by the army without explanation following his pre-induction physical. He had had a prior knee injury and had with him at the examination a note from a private physician to avoid vigorous physical activity. Unbeknownst to him, however, an X-ray taken during the examination showed an abnormality which, as noted in the official file, was the ground for his rejection, but was never disclosed. Six months later Betesh accidentally discovered this notation in the file and promptly saw his doctor who diagnosed Hodgkin's disease (cancer of the lymph glands). The court concluded that the government had breached its duty in failing to disclose to Betesh the abnormal condition shown on the X-rays.

The reasoning of the Coffee decision is dispositive here. Defendant had no duty to discover James's tumor. Having made a chest X-ray an essential part of the preemployment examination to determine an applicant's physical fitness, however, defendant failed to use due care when, through a clerical error, the report on the X-ray was not brought to the attention of the examining physician.¹

PROXIMATE CAUSE

Plaintiffs must prove by a preponderance of the evidence that the injury for which they seek damages was proximately caused by defendant's breach of the duty it owed plaintiffs. Cal.Civ.Code, § 3333. In a case such as the one at bench, where the diseased condition is the result of other causes, the evidence must show that defendant's conduct placed plaintiffs in a position worse than that in which they would otherwise have been. Deckard v. Sorenson, 177 Cal.App.2d 305, 2 Cal.Rptr. 121 (1960). Plaintiffs need not prove causation conclusively, however, or even to a certainty; it is sufficient if a preponderance of the evidence establishes a reasonable probability that defendant's negligence caused plaintiffs to be worse off. Burford v. Baker, 53 Cal.App.2d 301, 306, 127 P.2d 941 (1942); Contreras v. Gummig, 54 Cal.App.2d 421, 430-31, 129 P.2d 18 (1942); Keen v. Prisinzano, 23 Cal.App.3d 275, 100 Cal.Rptr. 82 (1972). Evidence which shows to a reasonable certainty that negligent delay in diagnosis or treatment increased the need for or lessened the effectiveness of treatment is sufficient to establish proximate cause. Cullum v. Seifer, 1 Cal.App.3d 20, 81 Cal. Rptr. 381, 385 (1969); Carrasco v. Bankoff, 220 Cal.App.2d 230, 33 Cal.Rptr. 673, 680 (1963). See also, Hicks v. United States, 368 F.2d 626 (4th Cir. 1966) (proximate cause established by proof that negligence destroyed "reasonable possibility" of rescue). Notwithstanding some seeming semantic variations in the cases, it is clear enough that once plaintiffs have proved defendant's negligence, evidence which shows the causal relationship to the claimed injury to have a reasonable medical basis, as opposed to being mere conjecture, will suffice. Cullum v. Seifer, supra, 81 Cal....