Somma v. United States

• Decision Date: 22 January 1960
• Docket Number: Civ. A. No. 22615.
• Parties: Annunzio M. SOMMA v. UNITED STATES of America.
• Court: U.S. District Court — Eastern District of Pennsylvania

180 F. Supp. 519

Annunzio M. SOMMA v. UNITED STATES of America.

Civ. A. No. 22615.

United States District Court E. D. Pennsylvania.

January 22, 1960.

Pershing N. Calabro, Philadelphia, Pa., for plaintiff.

Walter E. Alessandroni, U. S. Atty., Charles M. Donnelly, Asst. U. S. Atty., Philadelphia, Pa., for defendant.

VAN DUSEN, District Judge.

In this action for damages, as a result of hospitalization, convalescence and resulting losses alleged to have been caused by the defendant's negligence in failing to detect and warn the 43 year old plaintiff of evidence of tuberculosis on x-rays taken in 1954, 1955, and 1956,¹ plaintiff testified that x-rays had been taken of his chest approximately once a year from 1940, when he started to work as a civilian for the Navy, to 1954 and thereafter about every six months (N.T. 10-11). The following x-rays, taken prior to the hemorrhaging on May 29, 1956, which caused plaintiff's hospitalization, were offered in evidence as showing some evidence of active tuberculosis:²

                          11/19/52   70 mm. film of TB. Assn.3        Slight abnormality at top
                                     (D-3) (downtown Phila.—          of right lung
                                     probably 19th & Walnut
                                     Streets)
                          12/17/52   14 × 17 film of TB. Assn.         A spot, highly suspicious
                                     (D-4) (downtown Philadelphia)    of TB
                           3/ 2/54   70 mm. film of TB. Assn.         Possibly some increase in
                                     (D-7) (downtown Phila.,          the abnormality shown in
                                     probably 19th & Walnut           D-3 (see D-11)
                                     Streets)
                          4/19/55    14 × 17 film of Phila. Navy      Lesion above first rib—
                                     Yard (P-10)                      shows minimal TB
                         10/21/55    14 × 17 film of Phila. Navy      Irregular cavity for first
                                     Yard (P-10)                      time below first rib & first
                                                                      evidence of moderately advanced
                                                                      TB
                          3/26/56    35 mm. film of Burge Clinic      "Increased density right
                                     (19th and Walnut                 upperlobe level right 1st
                                     Streets)                         rib and 1st interspace anteriorly
                                                                      Reinfection type
                                                                      (adult type) tuberculosis a
                                                                      possibility" (P-9)
                

When plaintiff reported for the x-ray in November 1952, he furnished the name and address of Dr. Dante Bevilacqua as his family physician and this was added to the basic information previously typed on the TB. Association card (see P-1A).

After the x-ray of 11/19/52 had been taken, the TB. Association notified the local Navy doctor that the larger, 14 × 17 films should be taken of approximately 30 civilian Navy employees, including the plaintiff, "in order to establish a definite status" (P-1B). The larger, 14 × 17 x-ray of plaintiff's chest was taken on 12/17/52 (D-4) and on 12/23/52 a report was sent to the local Navy doctor (P-1C, page 4). On 12/24/52 an almost identical report, reading as follows, was sent by the TB. Association to his family physician, Dr. Bevilacqua (D-5):

"The left lung is normal. On the right side, behind the first inter-space, behind the hilum is what appears to be tuberculosis infiltration. If the patient has cough and expectoration sputum examination for tubercle bacilli should be made."

Plaintiff reported to Dr. Bevilacqua as a result of this December 24 report on December 26, 1952 (N.T. 407 & C-2).⁴ This doctor testified (N.T. 407-9):

"* * * an x-ray at the Naval Base showed some suspicious markings, and on examination his chest sounds were clear, there were no rales, there was no evidence of any night sweats, temperature, loss of appetite, or loss of weight, and I advised the patient to have a sputum analysis.

* * * * * *

"* * * I told Mr. Somma to collect his sputum for a period of 24 hours—over a period of 24 hours and bring it in to me, and I do recall Mr. Somma bringing the sputum in to me on a Monday morning.

"The Court: Is there anything else on the card?

"The Witness: Yes. On the 30th it showed that the sputum analysis was negative for any Koch infection, tubercular infection.

* * * * * *

"I called Mr. Somma on the telephone, if I recall. I think it was on New Year's Eve, and—as soon as I got the results, I called Mr. Somma on the telephone. I told him the news about the analysis of the sputum."

Dr. Bevilacqua testified that "plaintiff was very apprehensive at the time. * * * He was concerned about this condition" and he "knew of this suspicion when he came in" (N.T. 410).⁵ For a year and a half after this (N.T. 412), Dr. Bevilacqua saw Mr. Somma on several occasions at his home, when "the suspicious lung condition * * * was talked about now and then, but, * * * there was nothing ever done about it, because he never complained about anything" (N.T. 413). Since plaintiff told his doctor that he was making no complaints, Dr. Bevilacqua sent a negative report to the TB. Association on February 4, 1954, when that Association asked for additional data (D-8). After the visit of December 26, 1952, plaintiff never made another professional visit to his doctor concerning this condition or asked his doctor to examine him at his home or elsewhere (N.T. 408 and 56).

Although plaintiff admits his family doctor told him about "a suspicious spot * * * in my lung" (N.T. 50), he "never" mentioned to any persons giving him a chest x-ray in the future that he had a suspicious spot on his lung (N.T. 57). He only gave the name of his family physician at one x-ray examination (N.T. 57).

On March 2, 1954, he was again given a 70 mm. chest x-ray by the T.B. Association.⁶ In April 1955 and November 1955, he was sent to the Navy Yard for large (14 × 17) x-ray films.⁷ The nurse at the Navy Department office (19th and Walnut Streets, Philadelphia), where plaintiff and approximately 500-600 other employees who received x-rays (N.T. 34) worked, testified that when a person's case was significant enough to require a 14 × 17 x-ray, he was usually sent to the Philadelphia Navy Yard for such x-ray every six months (N.T. 106-7). All the employees at 19th and Walnut Streets were never sent to the Philadelphia Navy Yard (N.T. 107), but only about 18 (of which plaintiff was one) were singled out for the special treatment of having a 14 × 17 x-ray taken every six months at the Navy Yard (N.T. 142).

During the fall and winter of 1955-1956, plaintiff was busy and tired from a lot of running around between floors at 19th and Walnut Streets and the relatively long trip from his New Jersey home to his place of employment in Philadelphia (N.T. 14, 56 & 66-67). He had a prolonged cold and cough, which was a little more persistent than usual (N.T. 55-6 and 68).

In March 1956, plaintiff and all the other employees at the Navy Department office at 19th and Walnut Streets received chest x-rays conducted on a charitable basis by the Burge Clinic. At this x-ray, plaintiff was furnished a card with a place to indicate the name of his family physician (D-9), when he entered the room where the x-ray machine was located (N.T. 393, 403, 444).⁸ At that time, his family physician was Dr. Rupert Hughes (N.T. 15), but he failed to write the name of this physician on the card or to furnish it to the technician or other personnel present so that it could be placed on the card. At least six other persons examined at that time furnished the names of their family physicians and this information appears on their cards ( (D-13 (3 cards dated 3/23/56) and D-14 to D-16) ).⁹ The policy of the Burge Clinic was always to send the x-ray report to the family physician if his name was furnished on the card (N.T. 285-6, 474). The complete report¹⁰ of the Burge Clinic concerning plaintiff was (P-9):

"Increased density right upperlobe level right 1st rib and 1st interspace anteriorly. Reinfection type (adult type) tuberculosis a possibility. Suggest immediate further study and if Vollmer tuberculin patch test reaction is positive, advise treatment and 35mm x-rays on all home contacts."

The Navy Department representatives scheduled plaintiff for a larger, 14 × 17 x-ray at the Navy Yard upon receipt of this report, but the Navy Yard x-ray machine was out of operation due to replacement by a new machine in April and May of 1956 so that this larger x-ray had not been taken prior to the above-mentioned incident on May 29 leading to plaintiff's hospitalization.

Under these circumstances, plaintiff's failures (a) to go to either of his family doctors between January 1953 and May 1956 for examination with respect to his lung condition, particularly in spite of his being one of a few persons who were sent to the Navy Yard every six months in 1955 and his tired feeling, as well as his cold and cough in late 1955 and early 1956, and (b) to furnish the name of his family doctor at the time of the March 1956 x-ray examination constituted negligence on his part and contributed in some degree to the incident of May 29, 1956, and the damages which he claims in this suit. Since the x-ray report was sent and an examination by the family physician conducted within ten days of the taking of the x-ray in 1952, when plaintiff furnished the name of his family physician (see P-1A), there is every reason to believe that Dr. Hughes would have examined him and discovered his active tuberculosis by mid-April 1956 if he had furnished the name of his family physician for inclusion on D-9.¹¹

The Supreme Court of Pennsylvania has repeatedly held that when a person's bodily welfare is at stake, the "rule of due care and diligence requires everything that gives reasonable promise of its preservation to be done (by a plaintiff),...