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SOMMA v. UNITED STATES

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA


January 22, 1960

Annunzio M. SOMMA
v.
UNITED STATES of America

The opinion of the court was delivered by: DUSEN

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, *fn1" 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: *fn2"

 11/19/52 70 mm. film of TB. Assn. *fn3" (D-3) (downtown Phila. -- probably 19th & Walnut Streets)

 Slight abnormality at top of right lung

 12/17/52 14 X 17 film of TB. Assn. (D-4) (downtown Philadelphia)

 A spot, highly suspicious of TB.

 3/ 2/54 70 mm. film of TB. Assn. (D-7) (downtown Phila., probably 19th & Walnut Streets)

 Possibly some increase in the abnormality shown in D-3 (see D-11)

 4/19/55 14 X 17 film of Phila. Navy Yard (P-10)

 Lesion above first rib shows minimal TB.

 10/21/55 14 X 17 film of Phila. Navy Yard (P-10)

 Irregular cavity for first time below first rib & first evidence of moderately advanced TB.

 3/26/56 35 mm. film of Burge Clinic (19th and Walnut Streets)

 'Increased density right upperlobe level right 1st 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 X 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 X 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 interspace, 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). *fn4" 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). *fn5" 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. *fn6" In April 1955 and November 1955, he was sent to the Navy Yard for large (14 X 17) x-ray films. *fn7" 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 X 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 X 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). *fn8" 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)). *fn9" 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 report *fn10" 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 X 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. *fn11"

 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), regardless of difficulties or expense.' See Glancy v. Meadville Bread Co., 1941, 340 Pa. 452, at page 456, 17 A.2d 395, at page 397. On the same page, the court said in the Glancy case, supra:

 'When a person omits to use his senses and walks thoughtlessly into a place of danger, he is guilty of negligence, and this contribution to his own injuries deprives him of any right to demand compensation from others who contributed to it.'

 See, also, Good v. City of Pittsburgh, 1955, 382 Pa. 255, 261-262, 114 A.2d 101, *fn12" and cases there cited.

 Also, the Supreme Court of Pennsylvania has stated consistently that a plaintiff cannot recover if his negligence, however slight, contributed in any degree whatever to the injury. See Crane v. Neal, 1957, 389 Pa. 329, 332-333, 132 A.2d 675; Middleton v. Glenn, 1958, 393 Pa. 360, 363, 143 A.2d 14. In the Crane case, supra, the court reaffirmed the following language at pages 332-333 of 389 Pa., at page 677 of 132 A.2d:

 * * * 'There is not the slightest doubt (under the law of Pennsylvania) that a plaintiff is guilty of contributory negligence and cannot recover if his negligence contributed in any degree, however slight, to the injury: * * *."

 In the Middleton case, supra, the court said at page 363 of 393 Pa., at page 16 of 143 A.2d: '* * * that the plaintiff cannot recover if his negligence, however slight, contributed to the injury.'

 Although no Pennsylvania appellate court case has been discovered by counsel or the trial judge which is similar to this case, since there is no finding here of failure of plaintiff to comply with a direction of his doctor, it is clear that, even though defendant was negligent (which is assumed and would appear most probable *fn13" ), under the Pennsylvania cases the plaintiff is not entitled to recover if any negligence of his with regard to his health contributed in even slight part to the incident of May 29, 1956, and the damages resulting therefrom. See Potter v. Warner, 1879, 91 Pa. 362, *fn14" where the court said at page 367:

 'The learned judge failed to give due legal effect to contributory negligence of the defendant in error. It is true the plaintiff in error was charged with negligence and unskilfulness. Although guilty thereof, yet it did not necessarily follow that he was liable in damages therefor. If the contributory negligence of the defendant in error united in producing the injuries complained of he was not so liable. This rule applies to the unnecessary pain and protracted illness as well as to the permanent deformity of the limb. The evidence is amply sufficient to submit to the jury the question of contributory negligence on the part of the defendant in error. * * * If the injuries were the result of mutual and concurring negligence of the parties, no action to recover damages therefor will lie. A person cannot recover from another for consequences attributable in part to his own wrong.'

 Plaintiff's argument that he was entitled to rely on the Navy Department to advise him of the status of his tuberculosis condition, even though he was advised of the spot on his lung in December 1952, is contrary to the Pennsylvania rule that no person in full possession of his senses is justified in relying solely on the watchfulness of another or others for his own safety, even though the law imposes a duty on them to warn of latent dangers known to them. See Hoffner v. Bergdoll, 1933, 309 Pa. 558, 565-566, 164 A. 607; Bartek v. Grossman, 1947, 356 Pa. 522, 525-527, 52 A.2d 209; Bream v. Berger, 1957, 388 Pa. 433, 130 A.2d 708; Sloss v. Greenberger, 1959, 396 Pa. 353, 355-356, 152 A.2d 910; and cases cited in those cases.

 The Government contends that the plaintiff cannot recover under the Federal Tort Claims Act, 28 U.S.C.A. § 2674, because his claim comes under the Federal Employees' Compensation Act, 5 U.S.C.A. § 751 et seq. (hereinafter 'FECA'). It is settled that if the Government is liable to the plaintiff under the FECA for the injuries alleged, his remedy under that statute is exclusive and he cannot proceed against the United States in any other manner. 5 U.S.C.A. § 757(b); Johansen v. United States, 1953, 343 U.S. 427, 72 S. Ct. 849, 96 L. Ed. 1051; Patterson v. United States, 1959, 359 U.S. 79 S. Ct. 936, 3 L. Ed. 2d 971. However, a very difficult question is presented as to whether the FECA applies to the injuries alleged to have been sustained by the plaintiff in this particular case.

 Questions as to the scope and meaning of the FECA rarely come before the courts. All claims under this Act are handled by an administrative body and there is no judicial review of the Commission's decisions. 5 U.S.C.A. § 793; Hancock v. Mitchell, 3 Cir., 1956, 231 F.2d 652; Blanc v. United States, 2 Cir., 1957, 244 F.2d 708, certiorari denied 1957, 355 U.S. 874, 78 S. Ct. 126, 2 L. Ed. 2d 79; Calderon v. Tobin, 1951, 88 U.S. App.D.C. 134, 187 F.2d 514, certiorari denied 341 U.S. 935, 71 S. Ct. 854, 95 L. Ed. 1963. Therefore, the courts are only called upon to interpret and apply the FECA on the infrequent occasions when it is raised collaterally such as this. *fn15" On the other hand, because of their constant contact with the Act and claims filed under it, the compensation authorities are acutely aware of the problems involved, are more cognizant of the ramifications of any interpretation dealing with the scope of the Act, and have acquired valuable experience in this field. Thus, while the courts must not abdicate their decision-making function when it involves this particular area of the law, they should give great weight to any decisions by the administrative agency which is better equipped to determine and apply the policies Congress had in mind when it enacted the FECA.

 Unfortunately, Mr. Somma has not endeavored to obtain compensation for his injury under the FECA. Two cases cited by the Government, Matter of Dombach, 8 E.C.A.B. 389 (1959), rehearing denied, 8 E.C.A.B. 581 (1956), and Matter of Knowles, 6 E.C.A.B. 180 (1953), are helpful on the question as to whether the plaintiff's alleged injuries were 'sustained while in the performance of his duty' (5 U.S.C.A. § 751(a)), but not on the more difficult question as to whether he suffered an 'injury' within the meaning of the FECA (5 U.S.C.A. § 790(g)). *fn16" Furthermore, we do not know on what grounds the Commission denied relief in the somewhat comparable situation presented in Reid v. United States, 5 Cir., 1955, 224 F.2d 102, relied on by the plaintiff. It may not have turned on the application of the Act to the claim, but rather upon a defect in the procedure followed or a deficiency in the proof of the claim. Therefore, we are not favored with any expression of their views on this question.

 The matter is further complicated by the possibility that the Commissioners might not agree with this court should it dismiss the suit on the ground that the plaintiff has a claim under the FECA. Plaintiff might, therefore, be left remediless because of conflicting decisions by two arms of the Government, with no review of the Commission's decision available.

 Under these circumstances, it seems that the most prudent course for this court to follow would be to refrain from expressing an opinion on this point, but to state that if the finding and legal conclusion of contributory negligence barring the action should be set aside, *fn17" the case will be stayed until the plaintiff has pursued his remedies under the FECA. *fn18" Cf. Federal Maritime Board v. Isbrandtsen Co., 1958, 356 U.S. 481, 496-499, 78 S. Ct. 851, 2 L. Ed. 2d 926; General American Tank Car Corp. v. El Dorado Terminal Co., 1940, 308 U.S. 422, 60 S. Ct. 325, 84 L. Ed. 361; 3 Davis, Administrative Law Treatise, §§ 19.01, 19.07 (1958).

 All Requests for Findings of Fact and Conclusions of Law which are inconsistent with the foregoing are denied. *fn19" Defendant's Requests for Conclusions of Law (Document No. 18) numbered 9 and 10 are adopted as Conclusions of Law of the court in addition to the foregoing.

 Order

 And now, January 22, 1960, it is ordered that judgment shall be entered for the defendant, United States of America, and against the plaintiff, Annunzio M. Somma, with costs, without prejudice to plaintiff's right to proceed for compensation under the Federal Employees' Compensation Act, 5 U.S.C.A. § 751 et seq.


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