harmed, that issue was isolated and tried first. See F.R.Civ.P. 42(b).
In non-medical vernacular the word "infection" carries a pejorative connotation which is not entirely deserved. For example, many common vaccinations are "infections" which elicit the body's defense mechanisms and lead to the creation of an immunity to a later, more virulent infection. Although no vaccine presently exists for tuberculosis, the body's reaction to the invasion of a tubercle bacillus is similar to that which occurs when a deliberate innoculation is performed.
Although entry of a tubercle bacillus or bacilli is, of course, a prerequisite to the contraction of the disease tuberculosis, the mere fact that a tubercle bacillus has penetrated one's system does not necessarily cause one to be physically impaired or dangerous to others. Many individuals who have been "infected" by tubercle bacilli never know it and never develop the slightest symptoms of the disease tuberculosis.
Recommended treatment for individuals, like the Plaintiffs, who are aware of their condition by reason of a positive skin test, is a one-year course on a drug called isoniazid (INH). Five of the Plaintiffs took the prescribed INH. Ray took the medication over a one-year period interrupted by interludes totalling approximately three months in which it was discontinued because he apparently had an allergic reaction to it. Plaintiffs Moulden and Jennings refused the treatment because of the potential danger of hepatitis which can be a side effect of INH.
"Recent converters" -- individuals who react positively after having had a negative test within the previous two years -- treated with INH for one year, have an 80-90% greater protection against the onset of active tuberculosis than recent converters who are not so treated. Furthermore, the risk of active tuberculosis for any recent converter diminishes substantially two years after his first "infection" with tubercle bacilli and remains so diminished for his lifetime.
Although a positive reactor lives with the possibility of suffering tuberculosis as the result of a spontaneous "reactivation" of the germs he carries, his "infection" virtually eliminates any risk of developing the disease by exposure to an active case. Consequently, an individual with a negative PPD test has a greater likelihood of contracting tuberculosis by exposure to an active case than do the Plaintiffs, even though the risk is quite small. Based on the evidence adduced at trial, the Court is of the view that the chances for a person who has been infected with tubercle bacilli to contract active pulmonary tuberculosis through reactivation are substantially the same as those for a person who has not been so infected to contract the disease through exposure to an active case. Because of the many factors which impinge on a particular individual's susceptibility to tuberculosis, it is nearly impossible to determine which risk is greater, if either is greater than the other. Therefore, it is more likely true than not true that the Plaintiffs are no worse off vis-a-vis tuberculosis than are "negative reactors".
In the light of the foregoing, the Court concludes that, even assuming arguendo that the Lewisburg staff was negligent in its treatment of Bray, the Plaintiffs, except as discussed below with respect to Charles Ray, have as a result suffered none of the injuries they attempted to prove. There are no occupations from which they should be precluded by reason of their condition. Although societal prejudices and misunderstandings may foreclose particular jobs to these Plaintiffs, the law of torts does not compensate for all injuries caused by breaches of legal duties. Conway v. Spitz, 407 F. Supp. 536, 538 (E.D.Pa.1975). There has been no demonstration of compensable mental suffering despite the recent relaxation in Pennsylvania of certain rules regarding recovery for mental anguish. See Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970). No Plaintiff has demonstrated that his concern about his condition resulted in a "severe and concrete physical manifestation" which is fairly well understood by medical science. Conway v. Spitz, supra at 539. Nor have they alleged "intentional, outrageous or wanton conduct" which might entitle them to recover for their fears, no matter how unfounded. Conway v. Spitz, supra at 539. The mere fact that the Plaintiffs' condition is permanent does not entitle them to compensation because they are not injured by the condition. Finally, the inconvenience to those Plaintiffs who chose to take the medication INH was practically nil.
On two separate occasions, Plaintiff Charles Ray developed a skin rash over his entire body which was a direct side effect of the medication INH. At the conclusion of the injury phase of the case, the Court had tentatively reached its ultimate decision and it appeared that the only possibly compensable injury which would remain was Ray's skin rash. The Court was of the view that the possibility of obviating further trial on the issues of negligence and proximate cause could be facilitated by fixing Ray's damages for that injury. Consequently, the Court heard all evidence on the extent of the pain and suffering incurred by Ray from his rash.
In the event that Ray can demonstrate that his rash was a proximate result of negligence attributable to the Defendant, he will be awarded damages in the amount of $150.00.
III. CONCLUSIONS OF LAW
1. All Plaintiffs exhausted their administrative remedies prior to instituting the above actions.
2. Pennsylvania law controls the issue of liability under the Federal Tort Claims Act in this case.
3. The Plaintiffs excepting Charles Ray have failed to show that exposure to Samuel Bray proximately caused them any injury.
4. The United States is not potentially liable to Charles Ray for any injury other than his skin rash.
5. In the event that at a later trial of the issues of negligence and proximate cause the United States is held liable to Charles Ray, his recovery will be limited to damages for his skin rash and will be in the amount of $150.00.
6. The United States is not liable to any of the other parties plaintiff because each has failed to demonstrate a compensable injury which is attributable to the alleged negligence of the Defendant.
7. Any mental anguish suffered by Plaintiffs was not related to any legally recognizable injury.
An appropriate order will be entered.
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