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PLUMMER v. UNITED STATES

October 19, 1976

Gerald L. PLUMMER et al., Plaintiffs,
v.
UNITED STATES of America, Defendant. Donald E. ALLEN, Plaintiff, v. UNITED STATES of America, Defendant



The opinion of the court was delivered by: MUIR

 During the first five months of 1974, all of the Defendants in the above-captioned two cases were inmates at the United States Penitentiary in Lewisburg, Pennsylvania. They contend that as a proximate result of the negligence of personnel at the prison, they were injured by exposure to another inmate suffering from an active case of tuberculosis. In accordance with the Court's standard procedure in all civil cases, the trial was bifurcated. Further, because it appeared that the most difficult element of proof confronting the Plaintiffs was the existence of injuries sustained by them, that question was, pursuant to the authority vested in the Court by F.R.Civ.P. 42(b), isolated and tried first. Since this is an action brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., there is no right to a trial by jury and evidence with respect to the question of injury was heard by the Court from September 23, 1976 through September 30, 1976. The Court makes the following findings of fact:

 I. FINDINGS OF FACT

 1. Tuberculosis is an infectious disease caused by the invasion of tubercle bacilli.

 2. Its symptomology ordinarily consists of anorea (loss of appetite), loss of weight, fatigue, night sweats, chills, coughing, hemoptysis (expectoration of blood) and abnormal temperature.

 3. A tuberculin skin test is a simple means of discovering if a tubercle bacillus has entered an individual's body. (Undisputed)

 4. The PPD (Pure Protein Derivative) test, which measures skin reaction to its injection, is a medically accepted method for ascertaining the presence of tubercle bacilli.

 5. Another medically acceptable, though less reliable, method which also measures skin reaction is the so-called tine test.

 6. A positive tuberculin skin test indicates in a great majority of cases that the individual had exposure to tuberculosis in the past and that at some time at least one tubercle bacillus had entered his body.

 8. Tuberculosis is proven by a chest X-ray plus bacteriological evidence by way of sputum culture or skin test.

 9. Inactive tuberculosis is asymptomatic.

 10. In rare cases, an individual can react positively to a PPD test or a tine test even though there is no tubercle bacillus present in his body.

 11. Coughing, sneezing and singing commonly spread droplet nuclei containing the tubercle bacilli to an extent dependent upon the number of bacilli in the discharge, the size of the quarters and the ventilation conditions.

 12. If an individual produces a positive skin test within a two-year period after having had a negative skin test, he is considered a "recent converter".

 13. One suffering from an active case of tuberculosis can cause many persons to become "recent converters".

 14. When a person is exposed to an individual who is discharging tuberculosis germs, that person may develop no symptoms, very minor symptoms or active tuberculosis.

 15. Some individuals who have been infected have calcium nodules in their lungs which show up as "spots" in a chest X-ray.

 16. Entry of a tubercle bacillus into an individual's body does not mean that the individual has become diseased.

 17. An individual who reacts positively to a tuberculin skin test is not considered infectious unless he is discharging tubercle bacilli.

 18. Most people who have a positive skin test for tuberculosis, so-called "positive reactors", never get active tuberculosis and do not become aware of having the tuberculosis germ until advised of the results of a skin test.

 19. People who react positively to the tuberculin skin test will have a positive reaction upon future tests in almost all cases.

 20. The great majority of people in this country never become infected with tuberculosis at any time in their lives.

 21. Eight percent of the U.S. population who have been tested have had positive tuberculin skin tests.

 22. The percentage of the United States population having positive tuberculin skin tests is decreasing.

 23. In 1971, the most recent year for which data are available, there were 39,000 new cases of active tuberculosis of which 36,000 arose in people who had had a prior positive skin test.

 24. Most positive reactors resist their initial exposure to the tuberculosis germ and do not develop active tuberculosis.

 25. Although tuberculosis used to be treated by extended isolation, sometimes for years, it is now treated with safe, inexpensive drugs that can be taken orally.

 26. Isolation because of tuberculosis is now rarely needed for more than two weeks.

 27. An individual who is a "recent converter" will normally require medication for one year.

 28. Medically accepted practice provides that recent converters follow a course of treatment for one year with the drug isoniazid (INH).

 29. A person who has been infected develops an immunity to further exogenous infection, but not an immunity to endogenous reactivation.

 30. If the recommended one-year INH treatment is followed, there is essentially no risk of the individual ever contracting active tuberculosis by exposure and a somewhat greater, although minimal, risk of spontaneous reactivation.

 31. Reactivation can occur at any time during a person's lifetime, although the risk of such an occurrence diminishes substantially after two years from the date of exposure.

 32. Persons treated with INH have an 80-90% better protection against active tuberculosis than persons who tested positively and thereafter received no such treatment.

 33. The chances for a person who has been infected with tubercle bacilli to contract active pulmonary tuberculosis through reactivation are substantially the same as for a person who has not been so infected to ...


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