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December 28, 1951


The opinion of the court was delivered by: BYERS

The plaintiff sues under the Federal Tort Claims Act to recover $ 100,000 damages for personal injuries sustained on January 5, 1948, as the result of his jumping out of a fourth floor window in the United States Marine Hospital at Neponsit, Queens County, New York, as the aftermath of a four days alcoholic debauch while out of the hospital on a three days' pass.

He was originally admitted as a tubercular patient on November 14, 1947, received proper treatment, and made such progress that by December 30th his sputum was negative. This appeared in the testimony, is not in issue, and is not included in the findings.

He suffered multiple fractures and other injuries as the result of his fall which was of 37 feet onto a concrete ventilator.

 As the consequence of extended further hospitalization, surgical and medical care at various government hospitals, he was physically rehabilitated, and finally discharged on December 23, 1949, as fit for limited duty. Since then he has filled odd jobs, and taken a course of training as a barber, but says that his hand is not steady enough for that calling.

 The plaintiff's theory is that, when he was brought back to the Neponsit hospital on January 4, 1948, he was suffering from delirium tremens to the knowledge of the doctor who then examined him; that the condition involved such a showing of mental disturbance that he should have been treated as a psychiatric patient, i.e., either placed under constant supervision, or else promptly sent to an institution equipped to deal with persons in that mental state who threaten to do harm to themselves or others. That the care and attention which he received at the Neponsit hospital was not up to the standard prevailing in general hospitals, as the result of which his act in seeking to escape by jumping from the window must be deemed to have resulted from the negligence of those in charge of this institution and of this plaintiff, and thus that the defendant must answer to him in damages.

 Since the applicable substantive law is that of New York, the case of Robertson v. Charles B. Towns Hospital, 178 App.Div. 285, 165 N.Y.S. 17, is relied upon by the plaintiff; there an alcoholic addict, while deranged, jumped out of a window.

 In discussing the measure of duty resting upon a private sanitarium receiving and treating alcoholic patients, the language is, 'to use reasonable care and diligence not only in treating but in safeguarding a patient, measured by the capacity of the patient to provide for his own safety. In the discharge of this duty, physicians and nurses possessing that reasonable degree of learning and skill that is ordinarily possessed by persons similarly engaged must be employed, and they must act with reasonable care and diligence * * *.

 'We think the evidence recited presents a question for the jury as to whether the physician or the nurse should not, in the exercise of the requisite skill and care, have foreseen such a casualty and protected the decedent from the unguarded window in the bathroom.'

 Thus the issue is one of fact which this Court must decide, based upon a consideration of the present evidence which involves a hospital for tubercular patients; not alcoholic addicts. That process yields the following:


 1. The plaintiff, James Googe, then about twenty-three years of age, and a seaman, was admitted to the United States Marine Hospital, then at Neponsit, New York, as an ambulatory tubercular patient, on November 14, 1947.

 2. His history on admission contains the following:

 'Habits: Alcohol, periodic excess- whiskey.'

 'Neuro- Misc: No abnormal motions, paralysis or sensory changes. Occasional 'shakes' after drinking episodes.'

 3. He was placed on 'bed rest' in the hospital, being allowed 'up to the bathroom once a day in a wheel chair' during this period. He was told at the end of one month that he could expect further improvement if the bed rest were to be maintained for an additional like period.

 4. On December 30, 1947, he requested a pass to leave the hospital, ostensible to collect money said to be owing to him. The ward surgeon at first dissuaded him, but the request was renewed later on that day, and a three days' pass was granted by that official, and an admonition given to plaintiff as to his own responsibility for continuing the treatment that had helped him thus far.

 Plaintiff left the hospital, and joined a companion in downtown Manhattan, (and a course of drinking whiskey and beer for the next three days was pursued, with intervals, apparently, for only two or three meals. During some or all of this time the plaintiff occupied a room in the Hotel Lincoln, which room adjoined that of his companion; he progressively indulged in drinking.) Matter in brackets a rumor, not embodied in this finding.

 5. By January 2, 1948, the plaintiff was in such a state of debility from intoxication that he felt too indisposed to return to the hospital before the expiration of his pass at noon of that day. He telephone to the ward surgeon explaining 'that he felt very bad, and did not know if he could get back to the hospital right away'. He was told to return as soon as he could.

 6. The history of January 3, 1948, is not sufficiently established in the plaintiff's case to permit of a finding, although it is believed that he was treated for intoxication by a hotel physician, and that others there employed observed his conduct. No such person was called as a witness.

 7. At about 11:00 a.m. January 4, 1948, Dr. Griffith, an intern at the Neponsit hospital, received a telephone call from the plaintiff's drinking companion, to the effect that the plaintiff was and had been extremely ill, and unconscious for about twenty-four hours. The doctor told his informant to try to arrange with the Marine Hospital at Hudson and Jay Streets, Manhattan, to provide an ambulance to transport plaintiff to the Neponsit hospital; ...

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