Moos v. United States, 15061.
| Decision Date | 23 September 1955 |
| Docket Number | No. 15061.,15061. |
| Citation | 225 F.2d 705 |
| Parties | Anthony MOOS, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John E. MacGibbon, Elk River, Minn., for appellant.
Lester S. Jayson, Atty., Dept. of Justice, Washington, D. C. (Warren E. Burger, Asst. Atty. Gen., Paul A. Sweeney, Atty., Dept. of Justice, Washington, D. C., George E. MacKinnon, U. S. Atty., and J. Clifford Janes, Asst. U. S. Atty., St. Paul, Minn., on the brief), for appellee.
Before SANBORN, WOODROUGH and VAN OOSTERHOUT, Circuit Judges.
Anthony Moos, a discharged veteran, brought this action under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b), to recover damages for personal injuries alleged to have been caused by an unnecessary and unauthorized surgical operation on his right leg and hip while he was in the Veterans Administration Hospital in Minneapolis, Minnesota, in the fall of 1952, for treatment of a service-connected injury of his left leg and hip.
The District Court, on motion of the Government, dismissed the plaintiff's amended complaint, upon the ground that the claim stated was one arising out of assault and battery, of which the court had no jurisdiction because of 28 U.S. C.A. § 2680(h) excluding any such claim from the Act.1 D.C., 118 F.Supp. 275. This appeal followed.
Reduced to its simplest terms, the claim stated by the plaintiff in his amended complaint is that while he was in the hospital and under an anaesthetic for a prescribed and scheduled operation upon his left leg and hip, to which he had consented, a Government surgeon, without the plaintiff's knowledge or consent, performed an unnecessary and uncalled-for operation on his right leg and hip.
Of this claim, the District Court said, at page 276 of 118 F.Supp.:
This, we think, is an accurate statement of the law.2
There is no occasion for repeating or paraphrasing the opinion of the District Court, which we think has clearly demonstrated that the plaintiff's claim against the Government is, under applicable law, one arising out of an assault and battery, of which the court had no jurisdiction under the Tort Claims Act.
At the time this case was argued, the Government was contending that, even if the court had jurisdiction of the claim, the sole...
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Lojuk v. Quandt
...for surgical or medical acts have reached differing conclusions as to the applicability of Section 2680(h). In Moos v. United States, 225 F.2d 705 (8th Cir.1955), a VA surgeon operated on plaintiff's right leg and hip although plaintiff had consented to surgery on his left leg and hip. The ......
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Franklin v. U.S., 92-6056
...appeal after remand, 770 F.2d 619, 622 (1985), cert. denied, 474 U.S. 1067, 106 S.Ct. 822, 88 L.Ed.2d 795 (1986); Moos v. United States, 225 F.2d 705, 706 (8th Cir.1955); Hernandez v. United States, 465 F.Supp. 1071, 1073-74 (D.Kan.1979). The factual basis for the claim asserted in the two-......
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Doe v. Durtschi
...'arising out of ... misrepresentation' covers cases in which negligence underlies the inaccurate representation." Moos v. United States, 225 F.2d 705 (8th Cir.1955), was an even earlier case where a plaintiff brought suit on a negligence theory, based upon an unconsented operation on his ri......
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Dunham v. Wright, 18077.
...excused the need to procure an informed consent. 1 See e. g., Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966); Moos v. United States, 225 F.2d 705 (8th Cir. 1955); Wall v. Brim, 138 F.2d 478, 481 (5th Cir. 1943); Bonner v. Moran, 75 U.S.App.D.C. 156, 126 F.2d 121, 122 (1941); Mohr v. Wi......