Johnson v. United States

• Decision Date: 31 July 1967
• Docket Number: Civ. No. 1116.
• Parties: James C. JOHNSON and Phyllis Carolyn Johnson, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Arkansas

271 F. Supp. 205

James C. JOHNSON and Phyllis Carolyn Johnson, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. No. 1116.

United States District Court W. D. Arkansas, El Dorado Division.

July 31, 1967.

COPYRIGHT MATERIAL OMITTED

Richard C. Mays, Crumpler, O'Connor, Wynne & Mays, El Dorado, Ark., for plaintiffs.

Ned A. Stewart, Jr., Asst. U. S. Atty., Fort Smith, Ark., for defendant.

MEMORANDUM OPINION

OREN HARRIS, Chief Judge.

This is a malpractice action brought by the plaintiffs, James C. Johnson and Phyllis Carolyn Johnson, his wife, against the United States of America, under the Federal Tort Claims Act (28 U.S.C. § 2671 et seq.) for damages as a result of alleged negligence in the performance of an operation by an employee of the Veterans' Administration in the Veterans' Administration Hospital in Shreveport, Louisiana.

In 1951 (September) the plaintiff, James C. Johnson, entered the U. S. Navy and continued in active service until his discharge in June, 1954. While a member of the U. S. Naval Forces in June, 1953, he was stricken with poliomyelitis, resulting in serious impairment with the functioning of his left side, including his left hand and left leg, and other parts of his body. He was medically discharged from naval service in 1954 as totally disabled. He was subsequently awarded service-connected total (100%) disability by the Veterans' Administration, and has continued to receive benefits from this service-connected malady.

On January 17, 1955, Mr. Johnson sought and obtained admission to the Veterans' Administration Hospital in Shreveport, Louisiana, in an effort to restore or partially restore use in his left hand, which had been impaired by his polio onset in 1953. After approximately two months of examination, and non-surgical treatment in the VA Hospital, it was decided to perform a "tendon transplant" operation on his left hand and wrist. The operation was performed by one of the regular employees of the Veterans' Hospital, Dr. S. W. Shimonek, an Orthopedic Surgeon, on March 23, 1955.

Subsequent to the operation, while Mr. Johnson was receiving post-operative treatment, he began to experience pain in his left wrist of which he complained to Dr. Shimonek. The resection of the palmaris longus and tendon transplant in connection with the operation affected the movement of his left forearm and, in particular, the opposition of his left thumb to his other fingers on that hand.

Dr. Shimonek advised him the operation had not been altogether successful and suggested an additional operation in the nature of a bone block to correct the condition. He further advised the pain was to be expected as a natural consequence of the operation and would continue for a period of time, perhaps become more severe, but would eventually be alleviated. The Plaintiff Johnson declined the type of additional operation suggested by the Veterans' employee doctor and returned to his home in El Dorado, Arkansas, shortly thereafter.

The Plaintiff Johnson continued to experience pain, and in June, 1956, he had an examination of his left arm and wrist at the Veterans' Administration Hospital in Little Rock, Arkansas. The examination at this Veterans' facility was performed by Dr. John M. Hundley, an Orthopedic Surgeon, who was an out patient consultant at the Little Rock VA Hospital.

After a superficial examination, Dr. Hundley concluded that Mr. Johnson had nerve damage to his left wrist, but could not diagnose the extent or nature of his difficulty and recommended that he go to another government facility, the Kennedy VA Hospital in Memphis, Tennessee, for further diagnosis and exploratory treatment. No arrangements were made or undertaken for his admission at Kennedy and thus he failed to follow through on Dr. Hundley's recommendation.

In June, 1960, Mr. Johnson, still experiencing pain and difficulty, contacted a VA representative in El Dorado and inquired into the possibility of obtaining corrective surgery to be performed in El Dorado, Arkansas, as a matter of personal convenience. He was informed that such an operation would necessarily have to be performed in a VA Hospital facility, if it was to be at the expense of the Veterans' Administration.

Mr. Johnson's pain in his left wrist and arm continued and in fact progressed to the point that in 1965, at the suggestion of Dr. Hundley, he submitted to exploratory surgery. The exploratory operation was performed by Dr. Hundley on June 21, 1965, at St. Vincent's Hospital, a private hospital in Little Rock, at his own expense. During the course of the operation Dr. Hundley discovered that the median nerve in Mr. Johnson's left wrist was severed and sutured to the palmaris longus tendon.

This nerve malady, in Dr. Hundley's opinion, was the source of the pain suffered during the years since the operation at the Veterans' Administration Hospital in Shreveport, Louisiana. Dr. Hundley attempted neurophy, or nerve repair, on the severed nerve to correct his trouble. After Plaintiff Johnson recovered from the operation, Dr. Hundley advised him of the nerve malady discovered during the course of the operation and also that the condition could not have come about naturally, but was the result of the earlier surgery improperly performed by Dr. Shimonek at the Shreveport Veterans' Hospital.

Notwithstanding, the nerve repair by Dr. Hundley, Mr. Johnson continued to experience severe pain in his left wrist and arm. In a relatively short time after the operation on June 21, 1965, he obtained admission to the VA Hospital in Little Rock, and on June 28, 1966, with Mr. Johnson's consent the left arm was amputated below the forearm.

Presently he wears a functional or cosmetic prosthetic device, and following a post-operative period of discomfort has suffered no further pain.

The complaint in this case was filed on July 19, 1966. The defendant filed a motion to dismiss contending that the statute of limitations had run and, therefore, is a bar to the action. A full evidentiary hearing was held on the motion to dismiss on February 14, 1967. The matter was taken under advisement and for the attorneys to submit briefs on the issue of the statute of limitations.

From the testimony, exhibits, including depositions, argument of counsel, and excellent briefs on the question, the Court entered an order March 3, 1967, denying the motion to dismiss. The matter was tried on its merits May 5, 1967; after the testimony, exhibits, and stipulation of the parties, the case was again taken under advisement and well prepared briefs have been submitted by both parties.

The plaintiff's contention that his left hand and arm were affected by an attack of poliomyelitis in 1953 while he was a member of the United States Naval Forces is admitted. It is also admitted that the Plaintiff, James C. Johnson, entered the Veterans' Administration Hospital in Shreveport, Louisiana, after medical discharge from military duty for the purpose of receiving medical care and treatment.

It is stipulated by the parties that on March 23, 1955, he underwent an operation in the Veterans' Administration Hospital in Shreveport, Louisiana, purporting to be a "tendon transplant of the left wrist", which was performed by S. W. Shimonek, M. D., a duly qualified Orthopedic Surgeon of good standing, who was at the time employed by the VA Hospital and possesses that degree of skill, possessed by Orthopedic Surgeons of that locality.¹

The plaintiff contends that in the performance of the operation the VA doctor, Shimonek, failed to exercise the degree of skill, care and diligence required of him and that he, Shimonek, was negligent in that he "sutured the palmaris longus tendon" to the median nerve of the arm, which was responsible for the pain and suffering during the years and ultimately resulting in the necessity of amputation of the arm just below the elbow.

The government interposes four distinct and specific defenses, as follows:

1. Plaintiffs failed to sustain the burden of proof.

2. Plaintiff, James C. Johnson, is guilty of contributory negligence and failure to mitigate damages as a bar to any recovery.

3. Plaintiffs have not been injured to the extent claimed, and

4. The suit is barred by the statute of limitations.

From the testimony in the case it is established beyond any doubt and in fact undisputed that there were no other operations performed on the arm and wrist of Plaintiff Johnson since the original operation on March 23, 1955, until the exploratory operation on June 21, 1965, by Dr. Hundley as a private physician in a private hospital. It is also clear from the testimony that from the original operation of March 23, 1955, the median nerve in his left wrist was sutured to the palmaris longus tendon, which was not discovered by the plaintiff until the exploratory operation on June 21, 1965. Dr. Hundley testified in effect that there was no possibility whatever that the nerve tendon sutured could have occurred except by the act of the doctor who performed the 1955 operation in the VA Hospital at Shreveport.

It is indeed difficult to imagine a more convincing presumption of fact or inference than that Dr. Shimonek sutured the nerve to the tendon in the 1955 operation, and the Court so finds.

The defendant argues that the post-operative report of Dr. Shimonek is direct evidence of non-negligence and that the plaintiff must rely upon the doctrine of res ipsa loquitur in order to sustain his burden. The facts are that the admissions, stipulations and plaintiff's evidence thereof, to some extent circumstantial, was sufficient to establish a prima facie case without reliance on the doctrine of res ipsa loquitur. It, therefore, became incumbent upon the defendant to produce evidence sufficient to overcome or rebut such inference, and the self-serving post-operative report is clearly insufficient.

It is a well established rule of law that where the plaintiff establishes a prima facie case, it is...