Lane v. United States

• Decision Date: 27 January 1964
• Docket Number: Civ. A. No. 4040.
• Citation: 225 F. Supp. 850
• Parties: Katherine LANE, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

225 F. Supp. 850

Katherine LANE, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 4040.

United States District Court E. D. Virginia, Norfolk Division.

January 27, 1964.

Cooper & Cooper (C. D. Cooper), Norfolk, Va., for plaintiff.

C. V. Spratley, Jr., U. S. Atty., Roger T. Williams, Asst. U. S. Atty., Norfolk, Va., for defendant.

WALTER E. HOFFMAN, Chief Judge.

Plaintiff, the wife of a member of the United States Navy on active duty and a dependent entitled to medical care at facilities maintained by the Armed Forces of the United States, entered a government hospital at Dow Air Force Base, Maine, on March 15, 1962, following preliminary examinations indicating a presumptive diagnosis of Baker's cyst on the left knee. She signed a consent authorizing an exploratory operation on the left knee. On March 16, 1962, an orthopedic surgeon, holding the rank of captain in the United States Air Force, operated on plaintiff's right knee without her knowledge and consent and, upon ascertaining his obvious error, closed the incision and, during the same operative procedure, then explored the left knee. Plaintiff was discharged from the hospital on March 27, 1962, as ambulatory.

The principal contention advanced by way of defense is that, since the operation on the right knee was unauthorized, plaintiff has no right of recovery under the Federal Tort Claims Act as the particular act constituted an assault and battery which is an excluded provision under the act, 28 U.S.C. § 2680(h). In support of this position, defendant relies upon Moos v. United States, 8 Cir., 225 F.2d 705, which is a case directly in point where plaintiff entered a Veteran's Hospital for an authorized operation on his right leg and hip and the surgeon mistakenly operated on the left leg and hip. The United States Court of Appeals for the Eighth Circuit held that such an act constituted assault and battery under Minnesota law, and fell within the exclusionary provision of the Federal Tort Claims Act.¹

With deference to the Eighth Circuit and with full realization that the Fourth Circuit may agree, it is the opinion of this court that the Moos case was incorrectly decided. The legislative history touching § 2680(h) does not precisely deal with the question but it at least suggests the belief that Congress wished to avoid exposure to claims grounded upon the impulsive and "hot-headed" actions of employees, even though acting within the apparent scope of their employment, wherever such actions would ordinarily be considered "private acts."

The defendant contends that "intent" is the controlling factor and, since the surgeon in the instant case intended to operate upon the right knee (even though the written authorization and existing medical records plainly revealed that the complaints were to her left knee) an assault and battery was committed. Expressing grave doubts that Congress ever intended to exclude instances of "technical" assaults when clearly coupled with proven acts of negligence, it is apparent that, if the defendant's contention is upheld, there will be many instances involving negligence in the operation of motor vehicles wherein a driver of a government vehicle intentionally travels on the wrong side of a highway in reckless disregard of the rights of others, or intentionally cuts the corner at an intersection where a pedestrian is crossing, and hundreds of like situations, in all of which the United States could assert the exclusionary provision of assault and battery. As one member of Congress indicated in the course of hearings on the subject, the purpose of the exclusion was to protect the United States from acts of its employees who, in a fit of temper, proceeded to hit a party.

The Moos opinion enters into no discussion of congressional intent. It rests upon the bare statement that the situation there presented constituted assault and battery under the law of Minnesota. The law of Maine controls the instant case and, while we do not have any controlling authority touching upon the particular point, the general rule seems to be that such an act by a surgeon during the course of an operation is a "technical" assault and battery.² Moreover, as stated in Stepp v. United States, 4 Cir., 207 F.2d 909, exceptions as stated in the Federal Tort Claims Act must be interpreted under the general law rather than under some peculiar interpretation of the state.

The operating surgeon did not testify as to his intent. Obviously he intended to operate upon the knee which had been the subject of prior complaint and examination. By reason of sheer carelessness the surgeon did not look at the record before performing the operation. The negligence was continuing and did not lose its identity merely because the ultimate injury was the combined result of negligence and a "technical" assault and battery. Standing alone, however, if the claim arose out of negligence and assault and battery (as contemplated by Congress), the action could not be maintained. United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961).

It cannot be seriously contended that the operating surgeon "intended" to operate on the wrong knee. Nor can this Court believe that the exclusionary provision of § 2680(h) contemplates the so-called "technical" assault and battery. Aside from the Moos decision there is very little case law on the subject. In United States v. Taylor, 6 Cir., 236 F.2d 649, cert. granted, 352 U.S. 963, 77 S.Ct. 364, 1 L.Ed.2d 320, motion to remand denied, 353 U.S. 956, 77 S.Ct. 862, 1 L.Ed.2d 907, cert. dismissed per stipulation, 355 U.S. 801, 78 S.Ct. 6, 2 L.Ed.2d 19, the defense of assault was interposed where a low flying plane at an accelerated speed crashed and plaintiffs were injured by burning gasoline. Judge Stewart (now Mr. Justice Stewart), after referring to Moos and Stepp, had this to say with respect to the exclusionary clause, 28...