The “United States is the only proper 7 defendant in an action brought under the Federal Torts Claims Act.”
How later courts described this case
- The “United States is the only proper 7 defendant in an action brought under the Federal Torts Claims Act.”
- requiring “intentional wrongful act” to meet assault and battery exception
Written by the judges who cited it.
The opinion
WALLACE, Circuit Judge,
concurring in part and dissenting in part:
I agree with the majority that the finding by the magistrate that the Woods failed to prove that the Pantopaque proximately caused the brain damage and organic sei-. zures is not clearly erroneous. I agree, therefore, that we need not reach the question of whether malpractice occurred in the myelogram procedure.
I disagree with the majority that the claim involving Dr. Lee should be reversed. The magistrate found that the Woods did not prove that the acts of Dr. Lee proximately caused the damage claimed by the Woods. The Woods have not demonstrated that this finding is clearly erroneous.
As the magistrate pointed out, several doctors testified that the action of Dr. Lee constituted malpractice. But that is not the dispositive question before us. The magistrate found that the Woods failed to prove that Lee’s acts proximately resulted in any damage. Proof as to this issue turned largely on the credibility of Mrs. Woods. The magistrate found she was not a credible witness — he did not believe her on this issue. Credibility is a determination to be made by the finder of fact and this record does not support overruling his assessment. A plaintiff may not prevail on a claim without proving proximately resulting damage.
Therefore, I conclude that the magistrate did not clearly err in finding a failure to prove proximately resulting damage. Thus, I would affirm on this claim and would not reach the issue of whether the action of Dr. Lee constituted an assault and battery under section 2680(h) of the Federal Tort Claims Act or whether his acts constituted malpractice.