Supchak v. United States
| Decision Date | 31 August 1966 |
| Docket Number | No. 15758.,15758. |
| Citation | 365 F.2d 844 |
| Parties | Helen SUPCHAK, as Ancillary Executrix of the Estate of Daniel A. Supchak, Deceased, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Third Circuit |
Martin J. Meyer, Wilkes-Barre, Pa. (Joseph V. Kasper, Wilkes-Barre, Pa., on the brief), for appellant.
Robert C. McDiarmid, Dept. of Justice, Washington, D. C. (John W. Douglas, Asst. Atty. Gen., Bernard J. Brown, U. S. Atty., Alan S. Rosenthal, Attorney, Department of Justice, Washington, D. C., on the brief), for appellee.
Before STALEY, Chief Judge, and McLAUGHLIN and SMITH, Circuit Judges.
This action for personal injury and wrongful death was brought under the Federal Tort Claims Act, 28 U.S. C.A. § 1346(b). It came before the court below on a motion to dismiss the complaint for failure to state a claim upon which relief could be granted. The motion was granted and this appeal followed. The motion was sustainable only if it appeared to a certainty that the plaintiff was not entitled to relief under any state of facts which could be proved in support of her claim. Melo-Sonics Corporation v. Cropp, 342 F.2d 856, 858 (3rd Cir. 1965). We are of the opinion that, tested by this standard, dismissal of the complaint was error.
The relevant facts as they appear from the allegations of the complaint, viewed in the light most favorable to the plaintiff, are as follows: The decedent was a paraplegic veteran eligible for hospitalization and treatment under 38 U.S. C.A. § 610 and the pertinent regulations. He had been a patient at the Veterans Hospital in Wilkes-Barre, Pennsylvania, where he had been treated for convulsive seizures and other conditions related to his paraplegia. Early in the morning of April 11, 1964, he suffered a convulsion and, on the advice of a private physician, was rushed by ambulance to the hospital. He was received, examined by a medical officer, and then discharged. After his discharge he returned to the ambulance and en route home suffered another convulsion from which he died.
The complaint alleges that the negligence of the defendant consisted of the following: failure to provide the decedent with proper and reasonable medical care, attention and treatment; failure to make a proper and reasonable diagnosis of his condition at the time he was received; and, failure to admit him for care and treatment. The complaint alleges generally that the defendant failed to exercise ordinary and reasonable care under the circumstances.
The defendant maintains, as it did in the court below, that the action is barred by § 2680(a) of Title 28...
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