Tessier v. United States

• Decision Date: 09 June 1958
• Docket Number: Civ. A. 55-1052.
• Parties: Paul Eugene TESSIER v. UNITED STATES of America.
• Court: U.S. District Court — District of Massachusetts

164 F. Supp. 779

Paul Eugene TESSIER v. UNITED STATES of America.

Civ. A. 55-1052.

United States District Court D. Massachusetts.

June 9, 1958.

John J. McHugh, Waltham, Mass., Robert D. Kilmarx, Boston, Mass., for plaintiff.

George C. Caner, Jr., Asst. U. S. Atty., Boston, Mass., for the United States.

ALDRICH, District Judge.

This is an action under the F.T. C.A., 28 U.S.C.A. § 1346(b), for, in effect, malpractice by doctors employed by the Veterans Administration Hospital at Togus, Maine. The government raises at the outset the defense that it cannot be liable because an ordinary public charitable hospital would not be under similar circumstances. I accept the government's premise, Jensen v. Maine Eye & Ear Infirmary, 107 Me. 408, 78 A. 898, 33 L.R.A.,N.S., 141; Powers v. Massachusetts Homeopathic Hospital, 1 Cir., 109 F. 294, 65 L.R.A. 372, certiorari denied 183 U.S. 695, 22 S.Ct. 932, 46 L.Ed. 394, but disagree with its conclusion. The statute permits suits against the government "under circumstances where the United States, if 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.A. § 1346 (b). (Italics supplied.) This is a waiver of tort immunity. It would be illogical to read back into the statute an immunity which has been granted to local charities, presumably for the pragmatic purpose of extending the charitable dollar to the greatest good of the greatest number, comparable in many respects to ordinary governmental immunity. While the court avoided this question in Porto Rico Gas & Coke Co. v. Frank Rullan & Associates, 1 Cir., 189 F.2d 397, 401, its affirmance in United States v. Grigalauskas, 1 Cir., 195 F.2d 494, of the District Court, though without discussion, necessarily involved such a ruling.

Turning to the merits, the plaintiff for some years prior to 1954 had been suffering from general malaise and recurrent pain in the right quadrant at the base of the chest. He had been hospitalized at Veterans Administration hospitals, sometimes for weeks at a time, and while pleurisy and other matters were suspected, nothing was definitely established. In February, 1954 the symptoms returned and on the twenty-second he entered the hospital at Togus. He was suffering a mild fever and poorly localized sub-acute pains in the region of the diaphragm, and appeared chronically ill. No purpose will be served in detailing his exact hospital course, but for five weeks he underwent a large variety of tests and medication, some more or less painful and upsetting. About half of the time he was in bed. X-ray and fluoroscopic examinations were had on a number of occasions, and all reported normal. In point of fact there appeared on many plates two metallic needle fragments between plaintiff's diaphragm and his liver. On any one plate these might well not be observed because they looked exactly like artifacts, thin white lines which are a common X-ray anomaly, and even on a series of plates they could be overlooked. They...