Sawyer v. United States, Civ. A. No. 77-718-N.

• Citation: 465 F. Supp. 282
• Decision Date: 20 November 1978
• Docket Number: Civ. A. No. 77-718-N.
• Parties: Lucy E. SAWYER, Administratrix of the Estate of William O. Sawyer, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

465 F. Supp. 282

Lucy E. SAWYER, Administratrix of the Estate of William O. Sawyer, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 77-718-N.

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

November 20, 1978.

COPYRIGHT MATERIAL OMITTED

Leonard D. Levine, Virginia Beach, Va., for plaintiff.

John F. Kane, Asst. U. S. Atty., Alexandria, Va., Laurence A. Froehlich, Business and Administrative Law Division, Dept. of HEW, Washington, D. C., for defendant.

MEMORANDUM OPINION

KELLAM, Chief Judge.

Plaintiff seeks to recover damages from the United States under the provisions of the Federal Tort Claims Act, 28 U.S.C. § 2672 and other provisions of Chapter 171 of that Title, the procedure for which is prescribed by 28 U.S.C. § 2401, jurisdiction for which is found in 28 U.S.C. § 1346, based on the alleged negligence of the United States in the care and attention of plaintiff's decedent, who was a patient of the United States at the United States Public Health Service Hospital in Norfolk.

I.

Plaintiff's decedent was injured in an automobile accident in Virginia Beach, Virginia on November 6, 1976. He was transported to Bayside Hospital in Virginia Beach, where he remained as an inpatient part of the time in intensive care until November 18, 1976, when, at decedent's request, he was transferred by ambulance to the United States Public Health Service Hospital at Norfolk, Virginia. He remained there until November 28, 1976, when he died.

Plaintiff's decedent had suffered severe injuries in his accident, including the fracture of more than one vertebrae of his back, resulting in injury to his spinal cord. Following two major surgical procedures, the fractured vertebrae were fused and portions of the bone pressing on the spinal cord and nerves were removed. Even so, he was almost totally paralyzed in his lower extremities. At the time of his request to be transferred to the Public Health Service Hospital, he was placed in a plaster of paris cast extending from his neck and shoulders down to his middle or lower abdomen at his hips. The principal purpose of placing him in the cast was to stabilize his back position vertebrae which had been fused so that he could be transferred to the Public Health Hospital. At that time his condition was stable and he was regaining his functions. His condition required intensive nursing care and special medical attention.

Soon after he was received at the Public Health Service Hospital the physician who was in charge of the decedent's care and attention sought to have him transferred to a Spinal Cord Injury Center. He asserted such a facility existed at Staten Island. The mother of the decedent opposed such a transfer and the physician then sought to have him transferred to the Veterans Administration Hospital at Kecoughtan. He pursued such endeavor and a day or two before the decedent died, he had arranged for such transfer to take place on November 28th or 29th.

At the time the decedent entered the Public Health Service Hospital he was on numerous types of medication, some of which were continued, in larger or smaller dosages, and in addition, other types of medication were prescribed.

Not unexpectedly, the decedent resisted the cast. He complained numerous times. The physician under whose care he came said that he had mental problems, thought someone was trying to kill him, and asserted people were putting knives under his cast. That physician related he saw him only a few times when the patient was normal and able to carry on a conversation, although the record shows that numerous others carried on normal conversations with him and were able to understand his complaints.

Plaintiff asserts that the cause of death of her decedent was negligence on the part of employees of defendant, resulting in a lack of proper care and attention, and particularly by the physician who was in charge of his care. She asserts the care and attention did not meet the standards required of such institutions in the community or of physicians in the community.

The records from the Bayside Hospital, where plaintiff's decedent was first confined, and from the Public Health Service Hospital, have been introduced in evidence in this case, along with other exhibits. Testimony of the attending physicians at the Bayside Hospital and physicians at the Public Health Service Hospital were presented, either in person or by depositions. The relevant evidence will hereafter be set out. First, we look at the law which will govern the determination of the issue of liability.

II.

To recover in this action under the Federal Tort Claims Act, the plaintiff must establish negligence or a wrongful act or omission of an employee of the United States, without which showing of negligence the alleged conduct is not actionable under the Act. Laird v. Nelms, 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972); Dalehite v. United States, 346 U.S. 15, 45, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). The liability of the United States under the Act is "in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. § 2674, and is to be determined by the standard of whether "a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). The alleged negligence and malpractice which are the bases of this suit and the resulting injury, occurred in Virginia; hence, the law of Virginia is to be applied. United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 808 (1963); Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); Massachusetts Bonding & Insurance Co. v. United States, 352 U.S. 128, 77 S.Ct. 186, 1 L.Ed.2d 189 (1956); Jennings v. United States, 374 F.2d 983 (4 Cir. 1967); Murray v. United States, 329 F.2d 270 (4 Cir. 1964).

When an agency of the United States undertakes a task, it must perform the task with due care. Rogers v. United States, 397 F.2d 12 (4 Cir. 1968). The law of Virginia accords with this principle. City of Richmond v. Virginia Bonded Warehouse Corp., 148 Va. 60, 138 S.E. 503, 507. A party is entitled to assume another party will perform his duty, and may act upon such until the contrary appears, or reasonably should appear. Harris Motor Line v. Green, 184 Va. 984, 37 S.E.2d 2 (1946). The issues of negligence and proximate cause in actions like this are to be determined from the evidence by the trier of the facts. Biggs v. Martin, 210 Va. 630, 172 S.E.2d 767 (1970); Talley v. Draper Construction Co., 210 Va. 618, 172 S.E.2d 763 (1970); Iatomasi v. Rhodes, 403 F.2d 498 (4 Cir. 1969); Nuckoles v. F. W. Woolworth Co., 372 F.2d 286 (4 Cir. 1967). In Clark v. United States, 402 F.2d 950 (4 Cir. 1968), the court said that it "appears to be settled in Virginia that the question of causation is for the trier jury - - -

In order for defendant's negligence to be a proximate cause of the injury, it is not necessary that defendant "shall have forseen the precise injury that occurred," but, it "`is sufficient if an ordinary, careful and prudent person ought, under the circumstances, to have foreseen that an injury might probably result from the negligence act'." Cox v. Mabe, 214 Va. 705, 204 S.E.2d 253 (1974).

To determine whether the actions or omissions of defendant establish negligence on the part of the defendant in the care, attention and treatment given plaintiff's decedent, and whether there is liability under the Federal Tort Claims Act, we turn to the law of Virginia.

The standard of care prescribed for physicians in Virginia is "that degree of skill and diligence employed by the ordinary, prudent practitioner in his field and community, or in similar communities at the time." Reed v. Church, 175 Va. 284, 8 S.E.2d 285, 288 (1940); Clark v. United States, supra, Morgan v. Schlanger, 374 F.2d 235, 241 (4 Cir. 1967), and "the standard of care required of specialists in Virginia is that of other like specialists in good standing in the same or similar localities." Little v. Cross, 217 Va. 71, 225 S.E.2d 387, 390 (1976). In Bly v. Rhodes, 216 Va. 645, 222 S.E.2d 783, 788 (1976), reaffirmed in Little v. Cross, supra, the court stated it this way:

In Virginia, at least since 1918, when we decided Hunter v. Burroughs, supra, 123 Va. at 131, 96 S.E. at 366, the standard of due medical care applicable to specialists has been that of "other like specialists in good standing, in the same or similar localities as defendant." We reiterated this rule in Fox v. Mason, 139 Va. 667, 671, 124 S.E. 405, 406 (1924), where we set out the "same or similar community" standard applicable to physicians and surgeons and then said, "the rule is the same as to specialists."

Clark v. United States, supra, sets forth that the court in Reed v. Church, supra, sustained an instruction to the jury applying the above set out standard to diagnosis, as well as treatment, saying that under certain circumstances, "failure to make this investigation constitutes a lack of due care on the part of the physician." Hicks v. United States, 368 F.2d 626, 630 (4 Cir. 1966).

A physician holds himself out as possessing knowledge and ability necessary to the effective practice of medicine and impliedly represents that he possesses, and the law places upon him the duty of possessing, that reasonable degree of learning and skill which is ordinarily possessed by physicians in the locality in which he practices and which is ordinarily regarded by those conversant with the employment as necessary to qualify him to engage in the business of the practice of medicine. Varga v. United States, 314 F.Supp. 671 (D.C.Va.1969), aff'd, 422 F.2d 1333; White v. United States, 244 F.Supp. 127 (D.C.Va.1965), aff'd, 359 F.2d 989; Hicks v. United States, supra.

The mere fact a diagnosis was erroneous does not furnish a basis for liability. Bad results, standing alone, are not sufficient to raise...