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SMITH v. UNITED STATES

September 27, 1977

ELMIRA SMITH, ADMINISTRATRIX OF THE ESTATE OF GARY SMITH, DECEASED, ET AL.
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: DAVIS

 DAVIS, S.J.

 This action was brought by the widow and children of a deceased veteran who was killed when he threw himself in front of a train while on an unauthorized absence from a Veterans Administration Psychiatric Hospital. Plaintiffs claim that their decedent's death was directly caused by the negligence of defendant in 1) the inappropriate treatment decedent received while under Government psychiatric care, which prevented him from overcoming his illness, and 2) the allowance by defendant's personnel of decedent to have enough freedom of movement to escape the hospital while in a suicidal state of mind. Plaintiffs brought this suit under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. *fn1" We are called upon to make findings of fact and conclusions of law after a non-jury trial. While we do not believe plaintiffs have proven that their decedent would have, or ever could have led a normal productive life had he been proffered different treatment, we do believe that the negligence of Veterans Administration employees proximately caused decedent's death, and we therefore find accordingly.

 1. Gary Smith served in the United States Army from April 8, 1964 to May 13, 1966 and then was honorably discharged with a 30% disability. (Stipulation Par. 1).

 2. During his service in the Army, Gary Smith developed an emotional illness diagnosed as schizophrenic reaction, paranoid type, acute moderate. (Stipulation Par. 2-5).

 3. On June 29, 1966 Gary Smith applied for V.A. out-patient treatment claiming treatment for nervous condition and headaches. (Stipulation Par. 6).

 4. During the period from September 21, 1966 to January 25, 1967, Gary Smith was examined by several Veterans Administration psychiatrists and psychologists who confirmed the original diagnosis of paranoid schizophrenia. (Stipulation Par. 7-11).

 5. On January 25, 1967, Gary Smith was admitted to the V.A. Hospital at Coatesville, Pennsylvania for the first time as an in-patient. (Stipulation Par. 12).

 6. From January 25, 1967 until his death on January 17, 1973, Gary Smith was admitted to the Coatesville Veterans Hospital on twelve (12) separate occasions. He was never officially released, but absconded whenever given the opportunity to do so. (Stipulation Par. 12-170).

 7. Because of his poor medical progress, Gary Smith was considered to be unfit for vocational rehabilitation. (Stipulation Par. 32).

 8. On February 28, 1969 Gary Smith was examined by Dr. Sandra Zimmerman, PH.D. psychologist who recommended vocational training and suggested Gary Smith be tested for this purpose as soon as feasible. (Stipulation Par. 46).

 9. On July 28, 1969 Dr. Zimmerman reported that Gary Smith constantly failed to report when scheduled for vocational testing, and finally went AWOL from the hospital. (Stipulation Par. 59).

 10. Sometime between July 3, 1969 and June 29, 1971, Gary Smith became addicted to the drug Doriden which he was being given to enable him to sleep. (Stipulation Par. 60-90).

 11. During this period V.A. doctors noticed that Gary Smith was becoming dependent on the drug, and often refused his demands for it, or prescribed it in small quantities. (Stipulation Par. 65-88).

 12. For additional Doriden, Gary Smith went to two other doctors. He was therefore able to get enough of the drug to take 3 tablets of 500 Mgm. Doriden every night. (Stipulation Par. 91).

 13. Gary and Elmira Smith were married in May of 1970. (N.T. 168).

 14. On June 29, 1971, Gary Smith stated in an application for hospital treatment that his marital status was "single" and that the person to be notified in an emergency was Evelyn Smith, his mother. (G-1).

 15. On October 21, 1971, Gary Smith stated in an application for hospital treatment that his marital status was "separated". (G-2).

 16. On March 30, 1972, Gary Smith stated in an application for hospital treatment that his marital status was "separated". (G-2).

 17. On August 9, 1972, Gary Smith was admitted to Salt Lake City V.A. hospital in Salt Lake City, Utah. (Stipulation Par. 146).

 18. On August 9, 1972, Gary Smith stated in an application for medical benefits that he went to Salt Lake City because he, "had to get away from wife and family." (G-2).

 19. As time progressed Gary Smith spent more and more time in the hospital. It is probable that he would have spent more time in the hospital had he lived. (N.T.471).

 20. Gary Smith attempted or threatened to commit suicide on at least three (3) occasions: September 11, 1971, with an overdose of Doriden; October 22, 1971, when he threatened to kill himself; and March 28, 1972 when he attempted to jump out of a window. (N.T.204; Stipulation Par. 53, 57, 69). In December, 1972 he threatened to kill himself.

 21. On December 13, 1972 Gary Smith was taken to the Albert Einstein Medical Center by police. On intake it was noted by Dr. M. Barusewycz, M.D.: "PT was brought here P.I.C.V. by police, his wife and his mother since he was threatening to kill himself or his wife." (Stipulation Par. 154).

 22. On December 15, 1972 while at AEMC it was noted: "Mr. Smith physically assaulted another male patient in the men's bathroom . . ." (Stipulation Par. 155).

 23. On December 15, 1972 Gary Smith was transferred back to Coatesville. On intake Nurse Gattuso noted: "Return from U.A. transf. today from Albert Einstein. PT was taken there because he was threatening to harm himself or his wife. Admits to hearing voices. Inappropriate smiling. Placed on E.E." (Stipulation Par. 156).

 24. On December 15, 1972 at 3:30 P.M. Nurse Gattuso noted: "PT pushed the television off the table onto the floor. PT states the television was saying things he didn't want to hear. Calm and quiet now." (Stipulation Par. 257).

 25. On December 18, 1972 it was noted: "Trying to start a 'fight' with anyone whom he can 'goat' (sic) into it. Sedated and secluded." (Stipulation Par. 258).

 26. On December 19, 1972 Nurse Gattuso noted: "PT Coleman reported that Gary Smith has struck him 4 times in the past day. Last blow occurred at 1:30 P.M. Sedation given. Mr. Smith continued to be agitated. Placed in seclusion (a) 1:45 P.M. to allow PT to gain control." (Stipulation Par. 159).

 27. It was also noted on December 19, 1972 that patient was "still agitated ready to fight anyone back in seclusion 5 P.M. - ...


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