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ROSARIO v. AMERICAN EXPORT-ISBRANDTSEN LINES

July 2, 1974

CHRISTOBAL ROSARIO
v.
AMERICAN EXPORT-ISBRANDTSEN LINES, INC. v. UNITED STATES OF AMERICA



The opinion of the court was delivered by: NEWCOMER

{F. Supp. 1196contd}

 [EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published document.

 FINDINGS OF FACT AND CONCLUSIONS OF LAW

 Newcomer, J.

 Plaintiff, a seaman, originally instituted this suit against American Isbrandtsen Lines, Inc., for injuries suffered allegedly because of negligently caused and unseaworthy conditions aboard his vessel. After the defendant brought a third-party action against the United States for alleged negligent examination and treatment of plaintiff by the United States Public Health Service and its agents subsequent to plaintiff's injury aboard the S.S. Export Champion, plaintiff himself filed a claim for malpractice against the United States.

 By order of May 21, 1974, we granted as unopposed the government's motion to dismiss plaintiff's complaint and claim against government. Upon motion of plaintiff, we struck our order dismissing plaintiff's claim, and gave plaintiff ten days to answer the government's motion.

 By opinion and order of July 24, 1974, we denied the government's motion to dismiss, in which the government argued that plaintiff's claim against the government was barred because plaintiff had filed no administrative claim with the appropriate government agency and that the statute of limitations had run on plaintiff's tort action against the government. In this opinion and order, however, we left open the government's right to renew its statute of limitations argument, in which the key issue was the point at which plaintiff first had or reasonably should have had notice of the alleged malpractice by the United States Public Health Service and its agents.

 Similarly, by order of December 3, 1974, we denied a subsequent motion by the government to dismiss plaintiff's claim against the government because the statute of limitations had run, but again without prejudice to the renewal of such motion at a later point.

 When plaintiff settled his claim against American Isbrandtsen Lines, Inc., plaintiff then proceeded to trial against the government non-jury, in accordance with the Federal Tort Claims Act, 28 U.S.C. § 1346 (1962), on December 6, 1974. On the basis of the testimony and evidence introduced at such trial, we have reached the findings of fact and conclusions of law set forth below.

 FINDINGS OF FACT

 1. Plaintiff, Christobal Rosario, was born on July 5, 1925, in New York City, New York, is currently forty-nine (49) years of age.

 2. Plaintiff's education extended to and included completion of the eighth grade. (N.T. 5)

 3. Plaintiff began shipping as a merchant seaman at the age of seventeen (17). (N.T. 6)

 4. Plaintiff served in the United States Army in World War Two. During such service, he had no medical problems, nor was he hospitalized at any time, and had no medical disability at the time of discharge. (N.T. 6)

 5. Since the age of seventeen (17), except for his military service, plaintiff has derived his income solely from his employment as a merchant seaman. (N.T. 7)

 7. During the calendar year 1968, plaintiff sailed as a merchant seaman for 290 days. During the calendar year 1969, plaintiff sailed for 277 days. During calendar year 1970, until August 18, plaintiff sailed for 112 days, having taken between February 9 and May 8 of that year a three month vacation to which his prior years of service had entitled him.

 8. Following his vacation, plaintiff rejoined the S.S. Export Champion in his capacity as a bosun on May 8, 1970.

 9. During the month of May, 1970, and specifically around the middle of that month, plaintiff injured his left hip when a block he and several shipmates were moving pushed plaintiff against a steel bitt, to which a ship's tie line is fastened. (N.T. 81-92)

 10. Plaintiff did not report this injury to anyone. (N.T. 83)

 11. On or about May 22, 1970, plaintiff began to feel pain in his left hip area. (N.T. 15)

 12. The pain which plaintiff felt involved his left upper leg, from hip to knee. (N.T. 19)

 13. This pain began after plaintiff had strained his leg while lifting a gin block while working on the Export Champion. (N.T. 89)

 14. At the time of this incident, the Export Champion was in the New York area. (N.T. 18)

 15. Plaintiff's ship sailed from the New York area one or two days after the May 22, 1970, incident described above. (N.T. 18)

 16. The ship was headed for San Pedro, California. (N.T. 18)

 17. The voyage of plaintiff's ship from New York to San Pedro took between seventeen (17) and nineteen (19) days. (N.T. 18)

 18. During the course of the voyage, the pain in plaintiff's hip area increased. (N.T. 18, 19)

 19. As a result of such pain and difficulty with his leg, plaintiff on June 5, 1970, sought medical attention from the purser aboard the Export Champion. On that date, the purser made an entry in the ship's medical log with respect to plaintiff which read: "Pain in upper leg, left; felt after lifting a gin block 5-22; still bothered by pain." (N.T. 20, Ex. P-3) In addition, the purser gave plaintiff some liniment and told him, with respect to the possibility of plaintiff's seeing a doctor, to wait until the ship reached San Pedro, where plaintiff would go to the United States Public Health Clinic ("Public Health"). (N.T. 21)

 20. Under the Public Health Service Act, 42 U.S.C. § 249, plaintiff or any other merchant seaman, unless he wishes to pay for his own treatment, was required to report to the United States Public Health Service for treatment of any injuries sustained during the course of his employment as a merchant seaman of the United States and had no freedom of choice with respect to the selection of a physician or medical facility to treat his injuries without the express authorization and approval of the United States Public Health Service. (N.T. 566)

 21. A vessel or an employer of a merchant seaman need not honor a "not fit for duty" slip from anyone other than the United States Public Health Service. (N.T. 567)

 22. Plaintiff's ship arrived at San Pedro on approximately June 7, 1970, at which point plaintiff initially sought to proceed to Public Health, but could not because it was Sunday and the Public Health clinic was closed. Plaintiff was thereupon referred by the Public Health Service to the Long Beach Memorial Hospital, Long Beach, California. (N.T. 24, 25, 575, Ex. P-4)

 24. The United States Public Health Service at San Pedro had all the facilities which examination and treatment of plaintiff would have required. (N.T. 570-572)

 25. Plaintiff had no choice, so long as he did not wish to pay his own medical bills, of an alternate facility to the Long Beach Memorial Hospital to which the Public Health Service referred him. If he desired treatment which he would not have to pay for himself, he had to go where the Public Health Service directed him. (N.T. 574)

 26. On June 7, 1970, Long Beach Memorial Hospital would not have treated plaintiff or any merchant seaman unless it received permission from the Public Health Service. (N.T. 575)

 27. The officer of the United States Public Health Service at San Pedro who referred plaintiff to Long Beach Memorial Hospital was Dr. Cooper, a physician. (Ex. P-4, N.T. 575)

 28. On June 7, 1970, Long Beach Memorial Hospital was under contract with the United States Public Health Service to give competent medical treatment and attention to Public Health beneficiaries. (N.T. 575)

 29. Under such contract, Long Beach Memorial Hospital agreed to comply with minimum standards of medical practice in the attention and treatment it gave Public Health beneficiaries. (N.T. 575)

 30. Under such contract, Long Beach Memorial Hospital agreed to comply with minimum standards of medical practice in the attention and treatment it gave Public Health beneficiaries. (N.T. 576)

 31. The contract between the United States Public Health Service and Long Beach Memorial Hospital provided, inter alia, that in assuming responsibility for the treatment and care of Public Health Service patients, Long Beach Memorial Hospital would be "acting for the Public Health Service." (Ex. G-4, N.T. 578)

 32. Under its contract with Long Beach Memorial Hospital, the Public Health Service reserved the right to arrange for consultation services of qualified specialists not on the staff of Long Beach Memorial Hospital, whenever the Public Health Service believed such consultation necessary. (N.T. 579)

 33. Under the same contract, the Public Health Service reserved the right to transfer a Public Health Service patient from Long Beach Memorial Hospital whenever the Public Health Service believed the technical capacity of Long Beach Memorial Hospital was insufficient for adequate diagnostic or therapeutic control. (N.T. 580)

 34. Also under this contract, the Public Health Service reserved the right to designate particular medical officers on its staff to go into Long Beach Memorial Hospital and have therein the same rights and privileges as the hospital's own medical staff. (N.T. 580)

 35. Under this contract, the Public Health Service had at all times the right to control the treatment of its patients in Long Beach Memorial Hospital. (N.T. 581)

 36. On June 7, 1970, plaintiff was examined by a physician in the emergency room of Long Beach Memorial Hospital. (Ex. P-4)

 37. The hospital record of plaintiff's visit at Long Beach Hospital that day states:

 
"History, Physical and X-ray Findings: Patient strained his left leg about three weeks ago but now is feeling pretty good. The Old Man wanted him to come down to have it checked. Examination negative."

 38. The "Old Man" to which the report refers would be the ship's captain. (N.T. 96)

 39. This examination of plaintiff at Long Beach Memorial Hospital on June 7, 1970, was brief, lasting somewhere between three and thirty minutes. (N.T. 26, 28, Ex. P-4)

 40. During this examination, the examining physician asked plaintiff to drop his trousers, looked at plaintiff, and asked what was wrong. Plaintiff responded that the area of his upper left leg hurt, in the area approximately from the knee to the groin. (N.T. 26)

 41. The examining physician thereupon told plaintiff to take it easy, not to put so much weight on his leg and not to do too much work. (N.T. 28)

 42. The examining physician did not touch or otherwise feel the area of plaintiff's leg to which plaintiff had referred. (N.T. 26)

 43. The examining physician did not place plaintiff on a table and put plaintiff's leg through any kind of motions and ask if such motions caused pain. (N.T. 26)

 44. The examining physician did not ask plaintiff to bend or extend his leg in any way. (N.T. 27)

 45. Other than eliciting the information that plaintiff had strained his leg, (Ex. P-4), the examining physician did not ask plaintiff further questions about how his injury had occurred. (N.T. 100)

 46. Nor did the physician ask plaintiff where in particular the leg hurt, or how frequently plaintiff was experiencing pain. (N.T. 101)

 47. Other than advising plaintiff to take it easy, the examining physician did not advise plaintiff about continuing his voyage or work aboard the Export Champion. (N.T. 28)

 48. The examining physician did not give plaintiff a certificate of any kind stating that plaintiff should be relieved of work duty or given only light work. (N.T. 29)

 49. Such certificate is the only means by which a seaman can be relieved of work duty, either partially or entirely. (N.T. 28, 29)

 50. The examining physician knew or should reasonably have known that plaintiff worked on a ship, since this information was set forth on the record made of plaintiff upon his admission to the Long Beach Memorial Hospital, and this record was given to the physician who examined plaintiff. (Ex. P-4)

 51. The failure of the examining physician at Long Beach Memorial Hospital on June 7, 1970, to give plaintiff a certificate or slip stating that plaintiff should be relieved completely of duty if pain in his leg continued thus allowed and caused plaintiff to have to continue to perform his work aboard the S.S. Export Champion from June 7, 1970, until the ship's voyage ended on August 18, 1970.

 52. After his examination, plaintiff was given a form to sign, which he did sign but did not read, and which stated that he understood the treatment he had received was temporary and that he should seek follow-up and definitive care from another physician. (Ex. P-4)

 53. After examining plaintiff, the examining physician designated on plaintiff's hospital record that plaintiff was discharged. (Ex. P-4)

 54. Minimum medical standards for examinations of the musculoskeletal anatomy by emergency room physicians are the same throughout the communities of the United States. (N.T. 347)

 55. The examination of plaintiff by the emergency room physician at Long Beach Memorial Hospital on June 7, 1970, failed to comply with such minimum standards in that the examining emergency room physician failed to put plaintiff's left upper leg and hip area through a range of motions, failed to palpate such area for tenderness, failed to perform reflex analysis, and failed to request x-rays of such area, in which plaintiff claimed pain had existed for three weeks. (N.T. 349, Deposition of Dr. Klinghoffer, pp. 44, 45)

 56. The examination of plaintiff at Long Beach further fell below such minimum examination standards in that the examining physician, faced with a patient whose record expressly stated he was a merchant seaman, failed to ascertain when the plaintiff would be able to see a doctor again if his trouble persisted, failed to give plaintiff specific instructions what to do if his pain persisted, and failed to take a more complete examination and x-rays of plaintiff in order to obtain firmer reassurance that plaintiff could return to work, and instead simply advised plaintiff to take it easy, which was unrealistic advice for a man who worked on a ship at sea. (N.T. 350, 357)

 57. The examination of the examining physician at the Long Beach Memorial Hospital on June 7, 1970, when faced with a seaman, attached to a merchant vessel, who complained of pain originating with one or two incidents of trauma and extending over a duration of three weeks, in failing to inquire further into plaintiff's particular work duties, constituted conduct by that physician which did not comport with minimum medical standards. (N.T. 272)

 58. The treatment given plaintiff at Long Beach Memorial Hospital on June 7, 1970, failed to comport with minimum medical standards in that the examining physician, faced with a patient with pain in his upper left leg for three weeks and who worked on a merchant ship, failed to give such patient a certificate or slip stating that such patient should have light duty, and if he continued to have distress he ...


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