Petition for Writ of Certiorari — McCall v. United States

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Case No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1990

BETTY D. MCCALL

Plaintiff-Petitioner

UNITED STATES OF AMERICA

Defendant-Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Carmine Garofalo

Counsel for Plaintiff/Petitioner

1401 Talbott Tower

Dayton, Ohio 45402

513/223-4400

QUESTION PRESENTED FOR REVIEW

The issue presented for review is

whether a Federal employee, injured by

medical malpractice occurring in the

treatment of injuries originally sustained

in the course of her federal employment, may

maintain a federal tort claim for damages

caused by such medical malpractice or

whether the federal tort claim is barred by

the exclusive remedy provisions of the

Federal Employees Compensation Act, 5 USC

Section 8116(c).

PARTIES TO THIS PROCEEDING

Betty D. McCall and,

The United States of America

TABLE OF CONTENTS

Table of Authorities ........- +--+ iii

Jurisdiction . . e . . e . ° . * oJ 7 . . 1

5 U.S.C. Section 8116(Cc) . .- +--+ ++ «+ « 2

Statement of The Case. .

Aegument . <2 2+ ee eee e ete eees 5

Rompendix . 1. + + 2 0 © 6 6 0-8 © 8 8 8 10

TABLE OF AUTHORITIES

McCall v. United States, 680 F. Supp.

er wee. CGS We ek es

Baker v. Barber, 673 F.2d 147

(6th Civ 1981) s . - . . . s . . - ° 6

Balancio v. United States, 267 F.2d 135

(2nd Cir.) cert. denied, 361 U.S.

I ern a gs @ 6 Sas oe

Gold v. United States, 387 F.2d 378

ne Meer) 6.6 ¢ <6 6 « 8 5, 6.

Wilder v. United States, 873 F.2d

mae Cee Gee Bee) © 0 6 tw et 8 8 6

Wright v. United States, 717 F.2d 254

iii

STATUTES and OTHER AUTHORITIES

5 U.S.C. 8101 et. seq. e 7 . * . . . . e Sd 4

S U.S.C. Section 8116(c) ...2«seeee @

28 U.S.C. Sections 2671 et. seq. ...-.-- 3

28 U.8.C. Section 1254 . ” * o e ° e . . * 1

The official and unofficial reports of

opinions delivered in this case by other

courts are set forth in the Appendix

attached to this Petition

JURISDICTION

The opinion and judgment of the

United States Court of Appeals for the Sixth

Circuit in this case was filed on April 27,

1990. The Order denying Petitioner’s

Petition for rehearing was filed on June 17,

1990. Jurisdiction is conferred upon this

court by 28 U.S.C. Section 1254.

5 U.S.C. Section 8116(c):

States or an instrumentality thereof under

this subchapter or any extension thereof

with respect to the injury or death of an

employee is exclusive and instead of all

other liability of the United States or the

instrumentality to the employee, his legal

representative, spouse, dependents, next of

kin, and any other person otherwise entitled

‘0 recover damages from the United States or

the instrumentality because of the injury or

death in a direct judicial proceeding, in a

civil action, or in admiralty, or by an

administrative or judicial proceeding under

a workmen’s compensation statute or under a

Federal tort liability statute. However,

this subsection does not apply to a master

or a member of a crew of a vessel.

STATEMENT OF THE CASE

Petitioner, Betty D. McCall, brought

this medical malpractice action under the

Federal tort claims act (28 U.S.C. Sections

2671 et. seg.) in the United States District

Court for the Southern District of Ohio,

Western Division, to recover for injuries

and damages caused by the medical negligence

of United States Air Force physicians. The

alleged acts of malpractice occurred during

the treatment of injuries originally

sustained in the course of Mrs. McCall’s

Federal employment at Wright Patterson Air

Force Base. The malpractice occurred in the

Wright Patterson Air Force Base Medical

Center where Mrs. McCall was entitled to

treatment both as Federal employee injured

on the job and as the widow of a deceased

noncommissioned officer.

Mrs. McCall was originally injured on

June 10, 1981. Respondent’s acts of

malpractice occurred on or after June 12,

we i a a

1981. The Department of Labor awarded Mrs.

McCall total disability compensation under

the Federal Employee’s Compensation Act, 5

U.S.C. 8101 et. seq. (FECA) from July 26,

1981 to May 9, 1983, and partial disability

compensation from May 9, 1983, through

August 26, 1983.

Mrs. McCall’s FECA benefits were

terminated effective August 26, 1983, with

the Secretary of Labor finding that she was

no longer disabled from her work related

injury. This Federal tort claim was filed

on April 26, 1984. Respondent filed its

Motion to Dismiss on December 9, 1985.

However, on March 21, 1986, a hearing

representative for the office of Workers

Compensation Programs reinstated Mrs.

McCall’s disability benefits for the

employment injury of June 10, 1981, finding

that the Secretary of Labor failed to carry

its burden of proof in terminating her

benefits.

Respondent’s Motion for Summary

Judgment was originally denied. McCall v._

United States, 680 F Supp. 283 (S.D. Ohio

1987). Respondent moved for reconsideration

and four days before trial, on April 26,

1989, the District Court changed its mind

and granted Respondent’s Motion for Summary

Judgment.

ARGUMENT

Betty McCall fell and was injured in

the course of her employment with the

Federal Government. While it is clear that

her initial injury is compensable under the

FECA, and while it is equally clear that she

can not maintain an action against the

Federal Government for those injuries, it is

not clear whether subsequent injuries caused

by the medical malpractice which occurred

after the initial work related injury are

either compensable under the FECA or barred

by the exclusivity provisions of that act.

Several cases cited by the Court of

Appeals and Respondent hold that the FECA

covers additional injuries caused by

negligent treatment of a compensable

injury. Wilder v. United States, 873 F.2d

285 (llth Cir. 1989); Baker v. Barber, 673

F.2d 147 (6th Cir. 1981); Gold v. United

States, 387 F. 2d 378 (3rd Cir. 1967);

Balancio v. United States, 267 F.2d 135 (2nd

Cir.) cert. denied, 361 U.S. 875 (1959).

However, in Wright v. United States,

717 F.2d 254 (6th Cir. 1983). The Court of

Appeals held that the negligent treatment of

a compensable injury is not covered by the

FECA.

In Wright a Federal employee became

ill while at work at a Veterans

Administrative Hospital. Hospital

personnel allegedly treated her negligently

causing her injury. The Court of Appeals

held in part that Wright was entitled to

bring a Federal tort claim based upon the

“dual capacity” doctrine. Id. at 259. The

Court held:

In the present case, the

Veterans Administration

Hospital had a dual capacity

relationship with Wright. She

was both employee and patient

of the hospital. Initially, the

hospital was an employer

supervising her work as a

secretary. Later when the

doors of the emergency room

swung open, Wright’s

relationship to the hospital

changed...

The Federal Tort Claims action

would not undermine the goals

of the FECA because the

employer-employee relationship

is not the basis of the action.

Betty McCall was initially injured in

the course of her Federal Employment. She

was not required to, but did, seek medical

care for that injury at a Federal facility

where she was entitled to treatment both as

an injured employee and as the widow of a

noncommissioned officer. While undergoing

treatment for her injury she was not acting

as an employee, nor was the United States

acting as her employer. After the initial

injury a physician/patient relationship was

established apart from the employment

relation. It was in this physician/patient

relationship that the medical negligence and

subsequent injury occurred.

If a civilian doctor had negligently

treated Mrs. McCall for her employment

injury she could maintain a tort action

against that doctor. There is nothing in

the FECA compelling the conclusion that such

subsequent acts of negligence and resulting

injuries are covered by the FECA or fall

under exclusivity provisions of the act.

There is nothing in the FECA allowing the

United States to shelter its own medical

malpractice under the restricted

compensation scheme of the FECA.

This question has not been decided by

this Court. There is a conflict within and

between the circuits on this issue. This is

an issue that will arise more often as the

Federal Government steadily increases its

role as the provider of medical and other

services in relation to the many millions of

Federal employees. This question should be

decided now to avoid future litigation which

is sure to follow.

For the reasons stated in this

Argument, Petitioner, Betty D. McCall

respectfully requests that this Court issue

a Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit.

Respectfully Submitted,

Carmine Garofalo

LANG, GAROFALO & DONOFF

1401 Talbott Tower

Dayton, Ohio 45402

513/223-4400

Attorney for Respondent

APPENDIX

Decision of United States Court of Appeals

for the Sixth Circuit, Decided

and Filed April 27, 1990. .... 12

Decision and Entry Sustaining

Defendant’s Motion to

Reconsider (Doc. #28);

Summary Judgment Granted

In Favor of the Defendant

And Against The Plaintiff

Herein; Plaintiff’s Motion

in Limine (Doc. #61) Deemed

Moot; Termination Entry,

Case No. C-3-84-359 In The

United States District Court

Southern District of Ohio,

pO ee ee ee ee ee

Conference Call (April 26, 1989)

The Hon. Walter H. Rice, Judge

Appearances: Carmine Garofalo,

Attorney on Behalf of Plaintiff;

Gerald Kaminski, Attorney on

Behalf of Defendant ....... 23

Order Case No. 89-3487 in the United

State Court of Appeals For the

Sixth Circuit * o * * * . . . * . 46

APPENDIX (continued)

Decision and Entry Overruling Defendant’s

Moticn to Dismiss or in the

Alternative for Summary Judgment

(Doc. #11); Conference Call Set

to Determine Trial Date and

Gea mae ce ecw eee ewe ew

RECOMMENDED FOR FULL TEXT PUBLICATION

See Sixth Circuit Rule 24

No. 89-3487

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Betry D. McCatt, )

Plaintiff-Appellant, | ON AppeaL from the

‘ | United States District

; Court for the South-

UNITED STATES OF AMERICA, ern District of Ohio

Defendant-Appellee.

Decided and Filed April 27, 1990

Before: WELLFORD and NELSON, Circuit Judges; and

ZATKOFF,* District Judge.

WELLFORD, Circuit Judge. Appellant Betty McCall, a

federal civilian employee, was injured at work, and was com-

pensated under the Federal Employees Compensation Act

(FECA), 5 U.S.C. §§ 8101-8193. She was treated for her inju-

ries at a military hospital on the grounds of the military base

where she worked, and she alleges in this action against the

government that she was a victim of medical malpractice.

At issue is whether she was compensated under FECA for

*The Honorable Lawrence P. Zatkoff, United States District Judge,

Eastern District of Michigan, sitting by designation.

2 McCall v. United States No. 89-3487

the injuries sustained as a result of the alleged malpractice,

and whether she is entitled to sue under the Federal Tort

Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, under the cir-

cumstances of this case.

A contract specialist at Wright-Patterson Air Force Base

in Ohio, McCall slipped on some stairs and fractured her hip

in the course of her civilian employment on June 10, 1981.

She was taken to the Base Medical Center, where she was

treated on an inpatient basis for one month, and later on an

outpatient basis. She was entitled to treatment at the military

base for two independent reasons—because her injury

occurred in the course of her employment, and also because

she was a dependent spouse of a deceased member of the

armed services.

McCall filed a claim with the appropriate office of the

Department of Labor (DOL) for FECA benefits. DOL granted

total disability compensation for the period from July 26,

1981 to May 9, 1983, and partial disability compensation

for the period from May 9, 1983 to August 23, 1983. There

was evidence of her partial recovery in 1983. McCall filed

an administrative appeal of the August 23, !983 cutoff of

FECA benefits, contending she was unable to return to her

past employment. DOL concluded that the agency had failed

to carry its burden of proof with respect to termination of

FECA benefits, and restored McCall’s FECA compensation

from August 26, 1983 forward.

In 1984, McCall filed this action in the district court, seek-

ing compensation for alleged medical malpractice in the ini-

tial surgery and rehabilitation treatment following her acci-

dent. The suit was filed under the FTCA. In her complaint,

McCall alleged that the improper medical treatment made

it necessary to undergo surgery a second time in September

1981, and she sought substantial damages for pain, suffering

and permanent disability.

No. 89-3487 McCall v. United States 3

The district court granted the government’s motion for

summary judgment, ruling that there was no genuine issue

of material fact on the question of whether McCall had

received compensation for her injuries sustained as a result

of the alleged malpractice under FECA, whose remedies were

held to be exclusive. Although this was the sole basis for the

district court’s decision, the government had argued in the

alternative that even if McCall was not actually compensated

under FECA, she was entitled to FECA compensation, and

that the FTCA action should likewise be barred because of

FECA’s exclusivity provisions.

Recovery for injuries covered under FECA is clearly lim-

ited and exclusive:

The liability of the United States . . . under this

subchapter . . . with respect to the injury . . . of

an employee is exclusive and instead of all other lia-

bility of the United States. . . tothe employee. . .

or any other person entitled to recover damages

from the United States . . . because of the injury

. . ita direct judicial proceeding, in a civil action,

or in admiralty, or by an administrative or judicial

proceeding under a workmen’s compensation stat-

ute or under a Federal tort liability statute.

5 U.S.C. § 8116(c); Baker v. Barber, 673 F.2d 147, 148 (6th

Cir. 1982) (“[t]his provision precludes recovery under the

Tort Claims Act if relief is already available under the

FECA.”).

In enacting the exclusive-liability provision,

Congress adopted the principal compromise—the

“quid pro quo”—commonly found in workers’ com-

pensation legislation: employees are guaranteed the

right to receive immediate, fixed benefits, regardless

6 McCall v. United States No. 89-3487

was injured in the course of employment and alleged mal-

practice. The court, in a brief per curiam opinion, held that

FECA, “to which the plaintiff had resorted prior to the insti-

tution of the instant action, is the exclusive remedy available

to the plaintiff.” 387 F.2d at 379.

In Balancio v. United States, 267 F.2d 135 (2nd Cir.)

(Hand, J.), cert. denied, 361 U.S. 875 (1959), the same factual

situation presented itself, and the court held that the FTCA

claim was barred:

[T]he aggravation of [plaintiff's] initial injuries, suf-

fered while he was indubitably in performance of

his duty, should be regarded as resulting from the

initial injuries themselves. . . . [T]hat is the rule at

common-law when the claim is for negligence; the

initial wrong is the cause of all that follows, even

when there has intervened a succeeding negligent act

that produced the aggravation. We interpret [FECA]

as a substitute for the whole of the claim that, but

for it, would have arisen under the Torts Claim Act.

267 F.2d at 137.

Finally, Wilder v. United States, 873 F.2d 285 (11th Cir.

1989), involved a comparable situation, with the exception

that compensation for the initial injury was under the Nonap-

propriated Fund Instrumentality Act (NFIA), 5 U.S.C.

§§ 8171-73. That act contains an exclusive-remedy provision

substantially identical to FECA’s section 8116 (c). The court

held:

We are satisfied, and so hold, that the aggravation

of her work-related injuries through the alleged mal-

practice of treating medical personnel presents a

substantial question of coverage under the LHWCA

{made applicable via NFIA], and a more conclusive

determination is unnecessary. . . . Until Wilder has

made an application for benefits and had it denied,

she cannot pursue her remedy under the FTCA.

No. 89-3487 McCall v. United States 7

873 F.2d at 288 (footnote omitted).'

Appellant attempts to rely on our “dual capacity doctrine”

decision in Wright v. United States, 717 F.2d 254, 257 (6th

Cir. 1983). Wright, we believe, is distinguishable. In that case,

the plaintiff was injured while at work, but her injury, a rup-

tured tubal pregnancy, was not work-related. Wright's

attempt to claim FECA benefits was denied as not timely

filed, but the letter from the DOL claims examiner denying

benefits also stated that her initial injury was “a pre-existing

personal pathology which is not job-related” and thus not

covered by FECA. Another distinguishing factor is that

Wright’s primary malpractice complaint was that improper

use of a respirator damaged her trachea, an injury quite dis-

tinct from the one that brought her to the hospital in the first

place. On the particular facts of that case, we applied the dual

capacity doctrine:

An employer may become a third person, vulnerable

to tort suit by an employee, if—and only if—he pos-

sesses a second persona so completely independent

from and unrelated to his status as employer that

by established standards the law recognizes it as a

separate legal person.

Wright, 717 F.2d at 259, quoting 2A Larson, Workmen’s

Compensation Law 14-229, Section 72.81 (1982).

McCall’s case is plainly different from the facts in Wright,

whose holding was based on the “unique circumstances” of

'Two cases contain similar holdings regarding initial injuries covered

under 18 U.S.C. § 4126, which provides the exclusive remedies for fed-

eral prisoners injured in the course of performing prison jobs. Wooten

v. United States, 825 F.2d 1039, 1044 (6th Cir. 1987) (“[s]ection 4126

is also the exclusive remedy when a work-related injury is subsequently

aggravated by negligence and malpractice on the part of prison officials

. . .”); accord, Thompson v. United States, 495 F.2d 192 (Sth Cir.

1974). 18

8 McCall v. United States No. 89-3487

the case. 717 F.2d at 260. McCall’s initial injury was clearly

suffered in the performance of her duties. The alleged mal-

practice injury was closely related to the initial injury. This

case also differs from Wright in that there has been found

to be FECA coverage involved.

IV.

The Secretary of Labor’s sole discretion under FECA set

out in section 8145, the unreviewability of such action under

section 8128(a), and the resulting rule that federal courts

“lack subject matter jurisdiction to consider an action where

there is a substantial question of FECA coverage,” present

the major bar to McCall’s cause of action under FTCA.

Wright v. United States, 717 F.2d 254, 257 (6th Cir. 1983);

Joyce v. United States, 474 F.2d 215, 219 (3rd Cir. 1973);

Concordia v. United States Postal Service, 581 F.2d 439, 442

(5th Cir. 1978); Reep v. United States, 557 F.2d 204, 207 (9th

Cir. 1977), A substantial question “is generally present where

the Secretary has undertaken an ‘action’ to award or deny

FECA benefits.” Wright, 717 F.2d at 257, citing Gill v. United

States, 641 F.2d 195 (5th Cir. 1981).

We conclude that appellant is precluded from asserting

independent liability under the FTCA; accordingly, we

AFFIRM the judgment of the district court.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

BETTY D. MCCALL,

Plaintiff,

Case No.

C-3-84-359

vs.

UNITED STATES OF AMERICA,

Defendant,

DECISION AND ENTRY SUSTAINING DEFENDANT ’S

MOTION TO RECONSIDER (DOC. #28); SUMMARY

JUDGMENT GRANTED IN FAVOR OF THE

DEFENDANT AND AGAINST THE PLAINTIFF

HEREIN; PLAINTIFF'S MOTION IN LIMINE

(DOC. #61) DEEMED MOOT;

TERMINATION ENTRY

Based upon the record made by this

Court, during a telephone conference call

between Court and counsel held on Wednesday,

April 26, 1989, this Court finds well taken

and does, therefore, sustain the Motion of

the Defendant (Doc. #28), seeking an Order

of the Court reconsidering its Decision of

April 20, 1987 (Doc. #20), which denied the

Defendant’s Motion to Dismiss or in the

Alternative for Summary Judgment (Doc. #11).

Upon reconsideration, this Court grants the

Defendant’s Motion for Summary Judgment and,

in so doing, directs the entry of final

judgment in favor of the Defendant and

against the Plaintiff herein. In ruling as

aforesaid, as is more fully set forth upon

the aforesaid record, this Court concludes

that there does not exist a genuine issue of

material fact on the question of whether the

Plaintiff has, in fact, received

compensation for her *nalgnactioe injuries"

from the Federal Employees Compensation Act.

Having ruled as aforesaid, the

Plaintiff’s Motion seeking an Order of this

Court in limine (Doc. #61) is deemed by the

undersigned to be moot and same will,

therefore, not be ruled upon.

The captioned cause is hereby ordered

terminated upon the docket records of the

United States District Court for the

Southern District of Ohio, Western Division,

at Dayton.

Walter H. Rice

United States District Judge

Copies mailed to:

Carmine Garofalo

Attorney at Law

1401 Talbott Tower

Dayton, OH 45402

(Counsel for Plaintiff)

Gerald F. Kaminski

Assistant U.S. Attorney

220 U.S. Courthouse

Cincinnati, OH 45202

(Counsel for Defendant)

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

- —. oe

Betty McCall,

Plaintiff, 3

vs. : Case No.

: C-3-84-359

The United States of :

America :

Defendant. :

* * &

CONFERENCE CALL

April 26, 1989

* * &

THE HON. WALTER H. RICE

Judge presiding

* * *

Appearances:

On Behalf of the Plaintiff:

Carmine Garofalo, Attorney at Law

On Behalf of the Defendant:

Gerald Kaminski,

Assistant United States Attorney

MARCIA ROBERTS, Springfield, Ohio

Wednesday Afternoon

April 26, 1989

In Chambers

THE COURT: This is case C-3-84-359,

captioned Betty D. McCall versus United

States of America. The government is

represented by Mr. Gerald Kaminski and the

plaintiff by Mr. Carmine Garofalo.

Let me share with you some basic

thoughts and then I want to hear what you

have to say. We’re here on two motions.

The first is the United States motion to

reconsider, document number 28, to

reconsider this Court’s April 20, 1987,

decision and entry which overruled

defendant’s motion to dismiss or in the

alternative for summary judgment. That

decision is set forth in document 20. We’re

also hereon the plaintiff’s motion in

limine, document number 61.

I don’t think the history leading up

to my decision of April 20, 1987, overruling

ja . —

defendant’s motion to dismiss or in the

alternative for summary judgment is

necessary, but suffice it to say the

government’s motion for reconsideration,

while couched in terms of almost obsequious

respect, makes it clear that in its opinion

the Court erred on both grounds. And,

Jerry, I hope you know I’m being facetious.

The government indicated that the

Court had misapplied or applied erroneously

the dual capacity rule and indicated, in

addition, that the plaintiff is already

receiving compensation under FECA which, if

true, would preclude her alternative --

which would preclude an alternative remedy

under the Federal Tort Claims Act.

I’m not going to deal with the issue

of the dual capacity rule simply because I

don’t think it’s necessary for me to do so

because I feel the motion can be dealt with

on the government’s contention that since

the plaintiff is already receiving payments

under the Federal Employees Compensation

Act, not only for the initial slip and fall,

but also for the alleged sequelae, the

medical malpractice at the Air Force base

hospital, that motion to reconsider must be

sustained.

This Court, I feel, has no

alternative but to enter summary judgment in

favor of the defendant and against the

plaintiff herein on the grounds that the

defendant, the moving party, has shown that

there does not exist any genuine issue of

material fact on the issue of whether the

plaintiff is presently being compensated

under FECA for the medical malpractice at

Wright-Patterson Air Force Base hospital,

the very act which formed the basis of this

litigation here in court. I will try to set

forth my reasons and then, Carmine, I want

to hear your response.

The government has submitted a

declaration of Bruce King. It’s properly

verified. Mr. King has indicated that he is

the acting director of the Cleveland

~—

district of the office of workers’

compensation programs, employment standards

administration, United States Department of

Labor.

He goes on to say that he has

personal knowledge of the plaintiff’s file

and the official records and he has personal

knowledge of the information contained

therein. He goes on to say that in his

opinion the award, award of compensation

which is still being paid, included

compensation for the injuries which the

plaintiff sustained as a result of the

job-related slip and fall of June 10, 1981,

as well as the consequential injuries she

incurred in the course of her medical

treatment for those injuries at

Wright-Patterson. Of course, it’s the

latter injury that forms the basis of the

plaintiff’s Federal Tort Claims Act.

Attached to Mr. King’s or attached to

the documents, not in Mr. King’s affidavit

in support of a motion to reconsider, but

attached to his affidavit which is appended

to the memorandum filed in opposition to the

plaintiff’s motion in limine are payment

records coming from Mr. King’s office.

Those payment records show payments to Dr.

Paley. Dr. Paley, of course, is the doctor

that performed corrective surgery needed to

correct the results of the medical

malpractice injury.

In this Court’s opinion, Mr. King has

rendered an opinion, but I think it is an

opinion he is capable of giving based on the

records that he has reviewed. It is an

opinion that he is capable of giving because

even if you assume he’s a nonexpert under

Rule 701 of the rules of evidence, there has

been a foundation laid for that opinion.

Now, the hearing -- as I’ve indicated

the payment records support Mr. King’s

affidavit. Also, the hearing held in 1986

which came out under date of March 21, 1986,

concerning the continuation of her

disability, the plaintiff’s disability

between the date of the hearing and the then

termination date ot August 26, 1983, I think

supports the determination of Mr. King.

Keep in mind that the plaintiff was

initially given total disability payments.

Then she was reduced to partial disability

payments. And I think it can be inferred

that malpractice was included in those

compensation payments because in the

redetermination hearing, the conclusion was

that the plaintiff should be paid in an

amount or based upon what Dr. Paley, the

physician who performed the corrective

surgery, said she, the plaintiff, could

manage, and I believe Dr. Paley indicated

she could manage four hours a day.

Now, in opposition to this, in

opposition to the government’s point that

the plaintiff has received compensation

under FECA for the medical malpractice

injuries, plaintiff, I believe, has produced

nothing other than a statement in a

memorandum contra that what Mr. King says

simply isn’t so. There is also floating

about a letter from Senator Glenn which, I

think, supports the defendant’s contention

that the plaintiff has already been

compensated or is being compensated under

FECA for the medical malpractice injury. I

have not considered that letter, although I

think that it comes close to being a

judicial admission, simply because that

letter is not certified or authenticated

pursuant to federal Rule 56. And that

letter basically says, and I’m frantically

looking for it, if you’ll give me about 15

seconds of dead mike time, I‘d appreciate

it. That letter says -- that letter is from

Carmine Garofalo to Senator Glenn and

basically refers to a court of appeals case

from the Sixth Circuit which says that if a

government employee is injured in the course

of employment and thereafter is injured

again by the malpractice of a government

doctor, the employee’s sole remedy is FECA

and can’t pursue a separate claim for

: .y . -

medical malpractice under the Federal Tort

Claims Act. Whether that’s a correct

interpretation of Carmine’s letter or not, I

prefer not to get into because, as I’ve

said, that’s not a properly authenticated

under Rule 56 letter and I have, therefore,

not considered it under what I consider to

be the cases that I’m bound to follow,

Celotex for one and Anderson versus Liberty

Lobby.

Once a party, in this case the

government, has made a factual showing that

it is entitled to summary judgment on a

crucial issue on which plaintiff, the

nonmoving party in this case, would bear the

burden of proof at trial, it is then

incumbent upon the plaintiff to demonstrate

by proper Rule 56 materials that there does,

indeed, exist a genuine issue of material

fact. Under the law, as I understand it, if

there has been any FECA payment, regardless

of how comprehensive, regardless of how wise

or how proper for the medical malpractice |

Claim, then the plaintiff is barred for

recovery under the Federal Tort Claims Act.

In this situation, I simply conclude

that based on materials now in my possession

which I did not have at the time of the

original decision, Federal Tort Claims --

I’m sorry -- relief under the Federal Tort

Claims Act is barred because relief not only

was but is being made available under the

FECA. I simply don’t feel that there is a

genuine issue of material fact in this

matter that would preclude my determination

that the FECA is covering this claim.

Carmine, let me hear your response.

MR. GAROFALO: Judge, when Betty

McCall filed her application for workers’

compensation, which, I believe, was on June

11 or 12 -- it’s in the record -- that was

before any alleged malpractice had occurred.

And her claim was for injuries sustained and

disabilities sustained as a result of her

fall at the base on June 6, 1981. When the

government in its infinite wisdom decided to

32 -"

terminate her workers’ compensation benefits

effective in August of 1983 or 1984, that

decision, which, again, is in the record,

was based on the fact that she was no longer

disabled for any injuries she sustained in

the fall of June 10, 1981. There was never

any mention, there was never any

consideration and there was never any

finding, nor was the claim ever allowed for

an aggravation of that injury or a different

injury or anything dealing with subsequent

medical negligence.

When Betty McCall pursued her

administrative appeal through the Department

of Labor office of workers’ compensation

programs, and you referred to that decision,

Judge, which came out in March of 1986, on

page one of that decision it says the issue

for consideration in this case is whether

disability arising out of the employment

injury occurring on June 10, 1981 extended

beyond August 26, 1983. That was the only

thing that was considered on that appeal,

Judge. There was never any mention of,

never any consideration of, never any

allowance of any aggravation of that injury

or making worse of that injury or whether

anything was allowed for any subsequent

reinjury or aggravation because of

malpractice.

And that appeal held that since the

government, Department of Labor, has the

burden of proof to show that an employee is

no longer injured, it -- that decision held

that the Department of Labor had failed to

do that, and the holding which is on page 19

about in the middle of the page states, "The

decision of the district officer dated June

20, 1984 has been set aside.” That was a

decision, Judge, cutting Betty McCall off

workers’ comp and the claimant is to be

restored to the compensation rolls for all

appropriate monetary and medical benefits

resulting from the employment injury of June

10, 1981. Again, no findings, no findings,

no mention of an allowance for subsequent

reinjury or aggravation or new injury from

the subsequent malpractice which occurred

after June 12, or around June 12 and

thereafter of 1981. Therefore, she has

never been compensated under federal

employment compensation nor could she

because I don’t think it’s appropriate.

The reason she is receiving

disability is because of her injury of

initially falling down and getting hurt at

the base under the Wright dual capacity

doctrine. Betty McCall was hurt in the

course of her employment and because of

circumstances she was taken to the base

hospital versus a civilian hospital and she

was then reinjured or a new injury occurred

because of medical negligence.

The United States stands in two

capacities here, that is, as her employer

and as a third party as a provider of

medical care services simply because she

happened to be at the base and she was a

medical dependent because her husband was a

deceased Army person. So, clearly, Mr.

King’s declaration that she is getting

benefits for this medical malpractice is

just his opinion, and it’s a wrong opinion

because those actual documents in a work

comp file that he relies on clearly state to

the contrary, that the only thing that she’s

getting benefits for are because -- are as a

result of injuries sustained in her fall.

And under the Wright situation, which our

Sixth Circuit decided, you know, that’s

clearly a separate and distinct matter and

she’s entitled to compensation for it.

You know, that’s just his opinion.

What is as of record -- yes, what’s as of

record and that is the workers’ compensation

initial decision and the decision on appeal

shows the only thing she’s ever gotten

benefits for are for her original fall. My

letter to Senator Glenn was my opinion and I

was wrong. And I think the Wright decision

states that, that there is a dual capacity

doctrine and there’s two separate and

That’s something we would prove at trial.

Wanted to get that on the record.

THE COURT: I appreciate you doing

that. Hold for just a minute, if you would.

(Pause in proceedings. )

THE COURT: Let me make this

statement. First of all, I am inclined to

agree with you to a certain extent on the

dual capacity rule, Carmine. I agreed with

you once before, and so I have an

understanding of where you are going there.

I’m not adverse to your position on that.

The place where you and I still part

company is on whether she’s been compensated

for the malpractice. Keep in mind that at

least it’s my understanding of both workers’

compensation law and personal injury law and

common law in Ohio, as well as elsewhere,

that if a person is injured and goes to a

hospital and is malpracticed upon, unless

the malpractice can be shown to be not so

much an intervening cause but a superseding

cause of the original injury, then the

original tort feasor is responsible for the

sequelae of the injury which could well

include medical malpractice.

Now, I feel, and, again, I don’t feel

that I’m stretching in the least, when the

hearing officer talks in terms of

compensation for the injury of -- let me

read it exactly. “Compensation for the

employment injury of June 10, 1981." I

feel, based upon the payment records and the

affidavit of King, that what that person’s

talking about is what we in normal parlance

would talk about, the injury of June 10, and

any sequelae which includes the

malpractice. I don’t see any indication in

any of these materials that the medical

malpractice is a total and complete

superseding cause of the plaintiff's

injuries which, again, define -- let’s make

sure we define our terms properly. Under

Ohio law, as I understand it -- give me just

a moment. A superseding cause means a lack

of causal connection. In other words, a

connection between the slip and fall of June

10 is broken in this case, you would argue

(the plaintiff), when a subsequent act or

omission, i.e., the medical malpractice

intervenes and completely removes the effect

of the first act of negligence and is itself

the proximate cause of the injury or

damages.

The causal connection of the first

act, for example, the June 10 act, slip and

fall, would be broken and superseded by the

medical malpractice only if the intervening

negligent act, and I’m using negligence

language, but if the intervening malpractice

is both new and independent which means

there is the absence of any connection or

relationship of cause and effect between the

original and the subsequent act. Again, I

don’t feel that there is a genuine issue of

material fact on this based on anything that

has been presented to me within a summary

judgment context. The intervening negligent

act is not independent of the initial slip

and fall incident.

Carmine, let me tell you what I’m

going to do. I am going to ask our court

reporter, who even now is cringing as I say

this, to prepare a transcript of what I’ve

said.

MR. GAROFALO: And file it.

THE COURT: Yes. What I’1l do is I

will attach that to a brief entry making my

ruling. You’ll then have ten days, I guess,

under Rule 59 to move for a new trial or to

reopen, if you can show me with Rule 56

materials that your premise is correct, that

she is not being compensated under FECA. I

don’t know any other way to handle it. I

know you disagree with me, but that’s about

the best I can do for you at this point.

Any thoughts on that?

MR. GAROFALO: Well, I’1ll be honest

with you, Judge, unless you feel there’s a

reasonable basis -- yes, obviously you’ve

reviewed this, okay, and I just told you how

I feel about this, and I think it’s pretty

clear that she’s not. And I understand your

rationale why you think she is. Unless you

think there’s a reasonable basis, I think we

ought to get an order on and go from there.

To be honest with you, the government

was going to appeal it anyway whether we

won, if we won, if we had won the case. And

let’s just get it up to the Sixth Circuit

and -- you know, my intent here is just to,

you know, unless you really feel there’s

some way I’m going to change your mind,

Judge, I don’t think you do because you’ve

obviously thought about this. I would just

as soon get it to the Sixth Circuit.

THE COURT: Carmine, that’s fine.

MR. GAROFALO: Does that cause you a

problem? I don‘t --

THE COURT: Good Lord, no. If I’m

wrong, I’d just as soon somebody tell me. I

was simply saying that if you feel you can

demonstrate the truth of what you have to

say by a proper Rule 56 material, I thought

I would give you the chance to present it to

me rather than chase it up on appeal, but

if, as you say, the government was going to

appeal anyway if it had lost, then you might

as well take --

MR. GAROFALO: Jerry, am I misstating

the situation?

MR. KAMINSKI: No, you’re not.

That’s why we couldn’t talk.

MR. GAROFALO: That’s why we didn’t

settle the case. The government felt

basically, Judge, if that was the law, they

wanted the Sixth Circuit to reconsider it

anyway.

THE COURT: Carmine, let me ask you

this. I don’t want to prejudice your

appeal.

MR. GAROFALO: Uh-huh.

THE COURT: But would you be well

advised at this point in having her make

application for these things you feel she’s

entitled to under F or might be entitled --

withdraw that. You’ve indicated that as

proof that she’s not being compensated under

i .

FECA she’s never been awarded this or

awarded that.

MR. GAROFALO: That’s reflected in

that decision on the appeal in the work comp

case, Judge.

THE COURT: I understand that. But

my question is, can you without hurting your

appeal make that application?

MR. GAROFALO: There’s no problem.

In fact, I didn’t handle her work comp

case. Joe Shapiro in Cleveland did. I had

written to him several occasions saying why

aren’t you doing this and she won’t be

prejudiced by it.

By the same tone, the government can

take that step, too, and have her determined

what her percentage of disability is. Other

than that, you know , she’s just got the

regular remedies that you have in workers’

comp. I don’t think anything we do in that

case is going to affect that one way or the

other.

THE COURT: Then I’ll get this out

and I’1ll put an entry on and you can go from

there. Jerry, let me ask you this:

Obviously, you’re not interested in changing

my mind at this level, but is there anything

that you would want to add that would help

to protect the record?

MR. KAMINSKI: Judge, I think you’ve

stated for the record a much better argument

than I could ever present to the Court. I

just will go with what you’ve articulated in

your order. I think that’s more than

adequate for our purposes.

THE COURT: All right. Then as soon

as I have the transcript, Jerry, thank you.

MR. GAROFALO: Can I just ask you one

more thing?

THE COURT: Sure can.

MR. GAROFALO: You referred to and I

referred to the U.S. Department of Labor

office workers’ compensation decision on the

appeal dated March 21, 1986. My

understanding is, it is part of the record.

MR. KAMINSKI: It’s an attachment to

our papers, Carmine.

MR. GAROFALO: I just wanted --

MR. KAMINSKI: It’s in the record.

THE COURT: It’s in the record.

MR. GAROFALO: Is that your

understanding, too, Judge?

THE COURT: Yes, because I quoted

from it. That’s in the record.

MR. GAROFALO: Good.

THE COURT: Fellows, thank you and

I’m only sorry this was slow in coming and

took you to four or five days before trial.

We'll get the entry on as soon as possible;

and if I’m wrong, I’1l do business with you

again, I’m sure, on this case.

MR. GAROFALO: If you’re wrong,

they’re probably settle with me. Thanks,

Judge.

THE COURT: Fair enough.

* * #

(The conference concluded at 2:40 p.m.)

IN THE UNITED STATES DISTRICT COURT

FOR THE waves. DISTRICT OF OHIO

WESTERN DIVISION

BETTY D. McCALL, :

Plaintiff, :

vs. : Case Number

C-3-84-359

UNITED STATES OF AMERICA :

Defendant. :

DECISION AND ENTRY OVERRULING DEFENDANT’S

MOTION TO DISMISS OR IN THE ALTERNATIVE

FOR SUMMARY JUDGMENT (DOC. #11);

CONFERENCE CALL SET TO DETERMINE TRIAL

DATE AND OTHER DATES

The Motion of the Defendant, seeking

an Order of the Court, pursuant to Fed. R.

Civ. P. 12(b)(11), dismissing the captioned

cause for reason of this Court's lack of

subject matter jurisdiction or, in the

alternative, granting summary judgment in

favor of the Defendant, pursuant to Fed. R.

Civ. P. 56 (Doc. #11), is deemed by this

Court to be not well taken and same is,

therefore, overruled in its entirety.

In ruling as aforesaid, this Court

makes the following, non-exclusive,

observations:

1. Plaintiff is an employee of the

United States. She was injured, near the

situs of her employment, during working |

hours on June 10, 1981. She has received

compensation for this injury under the

Federal Employees Compensation Act (FECA).

Following her June 10, 1981, injury, she was

admitted to Wright Patterson Air Force Base

Medical Center wherein, she alleges, she was

permanently and severely injured by the

malpractice of Defendant’s medical

personnel.

The Defendant has moved to dismiss

the Plaintiff’s claim, brought under the

Federal Tort Claims Act, 28 U.S.C. Section

1402, et seq., upon the basis that her

exclusive remedy, not only for the initial

injury which occurred during working hours

near her place of employment, but also for

the alleged stencieiieas malpractice of

Defendant’s medical personnel during

treatment of that initial injury, is within

the confines of the Federal Employees

Compensation Act (FECA) and, since that Act

furnishes the exclusive remedy for the

Plaintiff’s injury(ies), she cannot bring a

Federal Tort Claims action against the

United States for the alleged medical

malpractice of the Defendant’s medical

personnel.

2. It is too well settled to require

citation of authority that the Federal

Employee Compensation Act (FECA) precludes

recovery under the Federal Tort Claims Act

if relief was or is already available under

the FECA. Baker v. Barber, 673 F.2d 147

(6th Cir. 1982).

3. The case of Wright v. United

States of America, 717 F.2d 254 (6th Cir.

1983), is dispositive of the within action.

Injuries which are compensable under the

FECA cannot be compensated under other

federal remedial statutes such as the

Federal Tort Claims Act. Consequently,

district courts lack subject matter

jurisdiction to consider an action where

there is a "substantial question of

coverage" under the FECA. However, within

the factual confines of the captioned cause,

while the Plaintiff's initial injury is

clearly within the coverage of the FECA,

damages for the subsequent injury allegedly

caused by the medical malpractice of the

Defendant’s employees may be sought under

the Federal Tort Claims Act, because:

a. based upon the record

presented to this Court, whether the

Defendant’s motion is considered as a motion

to dismiss for lack of this Court’s subject

matter jurisdiction or a motion seeking

summary judgment, there simply is not a

substantial question of coverage under the

FECA, due to the fact that the Plaintiff’s

injuries, allegedly suffered due to the

medical malpractice of the Defendant’s

employees, did not arise out of the special

zone of danger created by an obligation or

condition of employment. The Plaintiff was

entitled to treatment at the Defendant’s

facilities both as an employee of the

Defendant and as the widow of a deceased

serviceman. Her electing to be treated at

that facility, however, was not an

obligation or condition of her employment.

The fortuitous circumstances that the

Plaintiff’s injuries, which pre-existed the

injuries caused by the alleged medical

malpractice, occurred during working hours

near her place of employment for the

Defendant, and were aggravated while she was

undergoing treatment in a facility operated

by her employer within which she was

entitled, but not obligated as a condition

of employment, to seek medical care, is not

a sufficient relationship to her employment

to establish coverage under the FECA. Since

there is simply not a substantial question

of coverage under the FECA, the district

court does not lack subject matter

jurisdiction to consider an action under the

Federal Tort Claims Act.

b. Moreover, even though the

Plaintiff’s initial injury was both

compensable and compensated under the FECA,

the “dual capacity doctrine” enables her to

bring the instant action under the Federal

Tort Claims Act for her injuries allegedly

aggravated by the medical malpractice of the

Cefendant’s employees. The “dual capacity

doctrine" treats the employer as a third

party outside the protections of the

workmen’s compensation statute (insofar as

non-susceptibility to suit is concerned)

under certain conditions. The test is as

follows: "An employer may become a third

person, vulnerable to tort suit by an

employee, if--and only if--he possesses a

second persona so completely independent

from and unrelated to his status as employer

that by established standards the law

recognizes it as a separate legal person."

Wright v. United States, supra, at 259.

Within the factual confines of the instant

action, as of the time of the alleged

medical malpractice, the employer-employee

relationship did not exist because the

employer is acting in a second persona (as

the provider of medical care in or through a

facilty wherein the Plaintiff was not

obligated to seek medical attention as a

condition of her employment) unrelated to

the employer’s status as an employer. In

short, the Defendant, as of the time of the

alleged medical malpractice, was functioning

in the capacity of the provider of medical

care, not as the Plaintiff’s employer. See

also Guy v. Arthur H. Thomas Co., 55 Ohio

St.2d 183 (1978) (construing Ohio law that

furnishes the rules of liability under the

Federal Tort Claims Action).

Counsel listed below will take note

that a pretrial conference will be had, by

conference call telephone communication, at

9:45 a.m. on Wednesday, April 22, 1987, for

the purpose of setting a trial date and

other dates leading to the expeditious

resolution of this litigation. During this

telephone pretrial conference, counsel will

be asked whether they would agree to consent

to trial of this matter before the United

States Magistrate, giving the Magistrate the

authority to enter final judgment, with any

appeal from the Magistrate’s decision and

judgment being directly to the United States

Court of Appeals for the Sixth Circuit.

/s/Walter H. Rice

Walter H. Rice

United States District Judge

Copies mailed to:

Carmine Garofalo

Attorney at Law

1401 Talbott Tower

Dayton, OH 45402

(Counsel for Plaintiff) 223-4400

Gerald F. Kaminski

Assistant U.S. Attorney

220 U.S. Courthouse

Cincinnati, OH 45202

(Counsel for Defendant) 684-3711

No. 89-3487

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BETTY D. McCALL

Plaintiff-Appellant

vs. ORDER

UNITED STATES OF AMERICA

Defendant-Appellee

Neer Ne ee ee ee eee ee

BEFORE: WELLFORD and NELSON, Circuit

Judges; and ZATKOFF*, United States District

Judge.

The Court having received a petition

for rehearing en banc, and the petition

having been circulated not only to the

original panel members but also to all other

active judges of this Court, and no judge of

this Court having requested a vote on the

suggestion for rehearing en banc, the

petition for rehearing has been referred to

the original hearing panel.

The panel has further reviewed the

petition for rehearing and concludes that

the issues raised in the petition were fully

considered upon the original submission and

decision of the case. Accordingly, the

petition is denied.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green, Clerk

*Hon. Lawrence P. Zatkoff sitting by

designation from the Eastern District of

Michigan.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.