United States v. Grigalauskas

• Decision Date: 04 April 1952
• Docket Number: No. 4613.,4613.
• Parties: UNITED STATES v. GRIGALAUSKAS et al.
• Court: U.S. Court of Appeals — First Circuit

195 F.2d 494 (1952)

UNITED STATES v. GRIGALAUSKAS et al.

No. 4613.

United States Court of Appeals First Circuit.

April 4, 1952.

John J. Finn, Attorney, Department of Justice, Washington, D. C. (Holmes Baldridge, Asst. Atty. Gen., George F. Garrity, U. S. Atty., Boston, Mass., and M. M. Heuser and David B. Bliss, Attorneys, Department of Justice, Washington, D. C., on brief), for appellant.

Jules E. Angoff, Boston, Mass. (Henry A. Malkasian, Boston, Mass., on brief), for appellees.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

HARTIGAN, Circuit Judge.

This is an appeal taken by the United States from a judgment entered by the United States District Court for the District of Massachusetts on June 15, 1951 for the minor plaintiff, Elizabeth M. Grigalauskas, in the sum of $94,650.00 upon a complaint under the Federal Tort Claims Act. 28 U.S.C. § 1346(b).

The complaint was brought by Joseph George Grigalauskas, a Massachusetts resident, and by Elizabeth Mary Ann Grigalauskas, his minor daughter, who sued through him as her next friend.

The minor plaintiff seeks to recover the sum of $250,000 damages resulting from the alleged negligent injection by a United States Army doctor of concentrated Hartman-Ringer's Solution in the lower portion of her back. The father seeks $15,000 damages for medical expenses and loss of the infant's services during her minority.

The defendant's motion for a new trial was based on various grounds, including the very same point upon which this appeal is based, i. e., the claim that the amount awarded is "patently excessive". This motion was denied on June 29, 1951. The record does not convince us that the court abused its discretion in the denial of this motion. McCoy v. Cate, 1 Cir., 117 F.2d 194.

The mother of the infant, Edna Grigalauskas, was admitted to the Station Hospital at Fort Leavenworth, Kansas, by the authority of Army Regulations 40-505 and 40-590 on November 11, 1947 as the dependent of her husband, Joseph George Grigalauskas, an Army sergeant, then stationed at Fort Leavenworth. The minor plaintiff was born later on the day of admission. She was some two months premature and weighed three pounds and seven ounces. Five days after birth, on November 16, the nurse on duty discovered the infant was suffering from dyspnea, which is labored breathing, and subsequently from Cheyne-Stokes breathing, which is alternate periods of no breathing with short breaths in between. The attending Army doctor, who was Chief of Obstetrics and Gynecology, was called and on arrival, noticing the dehydration of the infant, decided that an injection of Hartman-Ringer's Solution was necessary to save the infant's life. The nurse then procured an ampule of this solution and the doctor administered ten cubic centimeters by a hypodermic needle to the lower portion of the infant's back about the spine before noticing the dark color of the solution. Only then did the doctor discover, by reading the label on the ampule, that the solution was in a concentrated form and that the solution should have been diluted by one part solution to twenty parts of sterile water prior to the injection.

Following the injection of the solution, the surrounding area of the injection, some 2½ to 3 centimeters in diameter, began to slough off and this area was treated alternately with wet penicillin packs and dried red blood cells. After the area had partially healed in from the sides, an operation was performed on December 20 by which an attempt was made to suture the edges of the wound together. However, pycyaneous infection developed and the stitches came out. The infection was subsequently cured and the wound finally healed over.

The infant was discharged into the custody of her parents on January 15, 1948, and then, for the first time, the parents saw the extent of the infant's injuries.

Dr. William F. Cotting, an orthopedic surgeon, who examined the infant on December 31, 1949 for the first time, testified "that this child has a disfiguring, permanent, deforming scar, * * * with her increased physical growth * * * the deformity will tend to increase. This is explained by the fact that the scar tissue is inelastic. It has no elasticity, it will not stretch, and because it is adherent to the bony element beneath the skin and fixed, just anchored, she also shows a limitation of motion in the lower spine element, and that is permanent. That cannot be relieved by any surgery or set of exercises." He further testified that "She has a permanent loss of motion in the lumbar sacral joint" which was characterized as a permanent disability.

He also stated he thought she would be able to engage in ordinary female occupations but that for secretarial work she would have difficulty. "She would have pains and inability to sit for substantial periods. * * * She would have difficulty with work, standing, such as a waitress, or a sales clerk, or work as a stenographer or bookkeeper."

Dr. Malvin F. White, a plastic surgeon, who also examined the infant for the first time on December 31, 1949, and later on January 5, 1951, testified that the scar was nine inches in length, that the child stands with an awkwardness and walks with a mildly, somewhat waddling gait. It was his opinion that three or four operations over a period of about one year would be required and that the inelasticity of the scar would accentuate the deformity and interfere with normal growth and development, unless the scar is completely excised. He also testified as to pain and suffering and the cost of the operations. Although he estimated she would get a 70 or 80 percent improvement by removing the scar and by doing "transmission", he stated she would always have a deformity and a scar. He based his opinion, as to the degree of improvement to be expected, on a series of successful operations. He testified that weakness of musculature would still be there after removal of the scar, that she should be under the care of an orthopedic doctor to follow up the plastic operations and that a spinal fusion, a major operation, might be necessary when she became an adult. He also thought she could dance and enjoy herself and would expect a good recovery but that she never would have as good a back as before.

Dr. Maxwell Macdonald, a neurologist, who also examined the infant on December 31, 1949, testified as to the child's low back muscle weakness and her mildly waddling gait. He was of the opinion that she would not be able to participate in various physical activities the same as other children who are completely free of injury. He knew of no way of getting any muscles back in that area and stated that: "First, may I say what I have seen on the child, the lower part of the spine. The muscles which support that have been destroyed, and there is the destruction of muscles around the buttocks. That essentially presents a weak, low back. Instead of the back being held in an erect position — you have to have the muscles to do it — that becomes what we term...