Pelphrey v. U.S., 81-1503

• Decision Date: 22 March 1982
• Docket Number: No. 81-1503,81-1503
• Citation: 674 F.2d 243
• Parties: Jean H. PELPHREY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 243

674 F.2d 243

Jean H. PELPHREY, Appellant, v. UNITED STATES of America, Appellee.

No. 81-1503.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 8, 1981.

Decided March 22, 1982.

Judith M. Zeigler, Wayne Lustig, Virginia Beach, Va. (Guy, Cromwell, Betz & Lustig, Virginia Beach, Va., on brief), for appellant.

John F. Kane, Asst. U. S. Atty., Alexandria, Va. (Justin W. Williams, U. S. Atty., Alexandria, Va., on brief), for appellee.

Before WIDENER, ERVIN, and CHAPMAN, Circuit Judges.

ERVIN, Circuit Judge:

Jean H. Pelphrey brought this action against the United States under the Federal Torts Claim Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq. and 10 U.S.C. § 1089, for damages arising from a radical mastectomy performed at the Navy Regional Medical Center in the Philippines. Her claim for damages was predicated on both the alleged wrongful acts of the surgeon, which occurred in the Philippines, and the alleged wrongful acts of the Navy, which occurred in the United States.

The district court granted the government's motion to dismiss the claims arising from actions in the Philippines, holding that FTCA coverage does not extend to medical malpractice claims arising in a foreign country. The government's summary judgment motion on the claims arising from actions within the United States also was granted after Ms. Pelphrey failed to produce any legal or factual material to refute the government's affidavits.

On appeal, Ms. Pelphrey contends that the district court erred in granting the motion to dismiss because 10 U.S.C. § 1089 extended FTCA coverage to medical malpractice claims arising in foreign countries. She further contends that the district court improperly granted the motion for summary judgment because the government's affidavits were legally insufficient in that they were submitted by interested parties. We find that these contentions are without merit and, accordingly, affirm.

I.

On December 12, 1977, Ms. Pelphrey underwent a radical mastectomy at the United States Naval Regional Medical Center (NRMC) in the Philippines, during which extensive nerve damage occurred. She subsequently filed an action against the United States alleging that Dr. Thomas Street, a Navy surgeon, had negligently performed a radical mastectomy despite the fact that she and her husband had informed Dr. Street and various other staff personnel that she was to have only a modified mastectomy.

The claims arising from action in the Philippines were based on Ms. Pelphrey's contentions that Dr. Street: (1) performed the operation without her informed consent; (2) failed to exercise the degree of care and skill demonstrated in similar operations by other surgeons in the United States Navy Medical Corps; and (3) failed to terminate the operation and transfer her to a facility better equipped to handle mastectomies. The claims arising from action in the United States were based on her contentions that the Department of the Navy negligently failed to: (1) adequately train Dr. Street; (2) provide adequate staff and equipment for radical mastectomies; (3) inform NRMC or Dr. Street that NRMC was inadequately staffed and equipped to perform radical mastectomies; and (4) take proper precautions to insure that radical mastectomies were not performed at NRMC.

In support of its motion for summary judgment on the claims arising from the alleged negligent acts of the Navy, the United States submitted various affidavits including that of Captain Reinhardt H. Bodenbender, Director of the Medical Corps Division of the Navy Bureau of Medicine and Surgery and Captain Elmer L. Bingham, Commanding Officer of NRMC from June 1976 to July 1978.

Captain Bodenbender, who is responsible for examining the qualifications of Navy doctors, testified that physicians are recruited into the Navy in accordance with specific guidelines established by various statutes, directives, and manuals and that a Navy doctor must have graduated from a medical school accredited by the American Medical Association (AMA) and completed at least one year of graduate medical education in an AMA accredited program. Bodenbender further testified that Dr. Street exceeded the minimum qualifications for commission into the Medical Corps. ¹

Captain Bingham stated that NRMC was fully accredited by the Joint Commission on Accreditation of Hospitals, that NRMC had adequate staff and equipment to perform mastectomies and that both modified and radical mastectomies were performed routinely at NRMC. This information was corroborated by the affidavit of Rear Admiral H. A. Sparks, Deputy Surgeon General and Deputy Chief for Headquarters Operations of the Navy Branch of Medicine and Surgery.

Because Ms. Pelphrey failed to produce any affidavits or other legal or factual material to contradict the statements contained in the government's affidavits, the district court granted summary judgment on the claims arising from the Navy's actions within the United States. Additionally, the district court dismissed the claims arising from actions in the Philippines on the ground that FTCA coverage does not extend to medical malpractice claims arising in a foreign country.

II.

Section 2680(k) of title 28 of the United States Code provides that the FTCA does not apply to "any claim arising in a foreign country." This exemption has been applied to tortious conduct of foreign based military personnel acting within the scope of their employment. See Burna v. United States, 240 F.2d 720 (4th Cir. 1957); Meredith v. United States, 330 F.2d 9 (9th Cir. 1964). Plaintiff contends, however, that 10 U.S.C. § 1089 ² was intended by Congress to extend FTCA coverage to medical malpractice claims arising in a foreign country. We disagree.

There is nothing in the language of § 1089 to suggest that Congress intended to expand coverage under the FTCA. The statute, as we read it, merely authorizes the Secretary of Defense to provide protection, either through indemnification or insurance, to foreign based military medical personnel who are subject to personal liability. See Jackson v. Kelly, 557 F.2d 735, 740 (10th Cir. 1977). Whereas military medical personnel acting within the United States are immune from personal liability because the FTCA is the exclusive remedy for military medical malpractice arising in the United States, see 10 U.S.C. § 1089(a), military medical personnel acting in a foreign country are personally liable for malpractice because the FTCA does not apply to "any claim arising in a foreign country." Thus, the need for special protection by foreign based medical personnel stems from the very fact that malpractice claims against them are exempt from the FTCA.

The legislative history of § 1089(f) supports this interpretation. It is stated in a Senate Report that "the purpose of this section again is to avoid liability being assessed against an individual medical personnel in a situation where the Federal Tort Claims Act would not be applicable. The Federal Tort Claims Act does not apply to actions arising in a foreign country." S.Rep.No. 1264, 94th Cong., 2d Sess. 2, reprinted in (1976) U.S.Code Cong. & Ad.News, 4443, 4451.

Ms. Pelphrey's reliance on Jackson v. Kelly, 557 F.2d 735 (10th Cir. 1977), to support her argument that § 1089 expanded FTCA coverage to malpractice claims arising in a foreign country, is inapposite. In Jackson, the plaintiff brought a personal medical malpractice action against an Air Force physician assigned to a military hospital in England. The physician argued that he was absolutely immune from suit because he was a federal official acting with discretion in the scope of his duty. Although the court rejected the argument that military medical personnel are absolutely immune from suit, the court found that military physicians acting outside the United States are protected from personal liability under 10 U.S.C. § 1089(f). ³ The court also noted that the plaintiff had no remedy under the FTCA because the action arose in a foreign country. Id. at 740, n.4.

There simply is no support for Ms. Pelphrey's contention that § 1089 extended FTCA coverage to medical malpractice claims arising in a foreign country in either the language or legislative history of § 1089. The district court, therefore, acted properly in dismissing the claims arising from actions in the Philippines.

B.

Rule 56 of the Federal Rules of Civil Procedure provides that when a party supports a summary judgment motion with proper affidavits, the opposing party must set forth specific facts, in affidavits or otherwise, demonstrating that there is a genuine issue for trial. First National Bank of Arizona v. Cities Service Company, 391 U.S. 253, 288-289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968). Allegations contained in the pleadings do not create an issue sufficient to overcome a summary judgment motion supported by affidavits. Id. In Adams v. United States, 302 F.Supp....