The opinion of the court was delivered by: GALSTON
This is an action brought under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq., for damages allegedly sustained by the plaintiff while a prisoner at the Federal Correctional Institution at Danbury, Connecticut.
In January, 1947, Van Zuch was convicted of a violation of the OPA laws, for accepting rentals in excess of the ceiling allowed. Shortly thereafter he was also convicted for concealing assets in violation of the Bankruptcy laws. He was sentenced to a six months' term on each violation, the sentences to run concurrently.
The complaint alleges that while he was a patient in the prison hospital he was required to perform manual labor and to work in the kitchen of the hospital; that in June, 1947, he was required to scrub pots and pans with steel wool; that pieces of steel wool became embedded in his right thumb; and that he sustained injuries from infection, blood poisoning, osteomyelitis and osteoperosis. Damages for 'injury to mind, body and health' are alleged in the sum of $ 50,000. The negligence of the defendant is more specifically alleged as follows:
'(a) Requiring and compelling plaintiff to perform said work and labor while physically incapacitated and in an unfit and unsound state of health and despite plaintiff's repeated protest to defendant, * * *.
'(b) Requiring and compelling plaintiff to use an inferior, defective, improper and dangerous grade of steel wool and in failing to provide plaintiff with gloves or hand guards.
'(c) Refusing to furnish and provide medical care and attention to plaintiff with regard to said thumb and said injury and in ignoring repeated requests by plaintiff for such medical care and attention.
'(d) Improperly, dangerously and unduly delaying the affording of medical care and attention to plaintiff in disregard of repeated requests by him for same.
'(e) Failing to provide competent, adequate, proper and timely medical care and attention.
'(f) Undertaking to furnish and provide medical care and attention and then doing so negligently, carelessly, improperly and incompetently.
'(g) Failing to take x-rays of said thumb, failing to remove pieces of steel wool and foreign substances therefrom, causing a careless and negligent operation to be performed on said thumb, failing to properly probe the same for foreign substances, improperly and carelessly suturing and bandaging the same.'
The answer denies the allegations of negligence generally, alleges contributory negligence and failure to state a claim upon which relief can be granted.
The evidence discloses that the plaintiff was a mechanical and civil engineer. Upon admission to the prison at Danbury he was assigned to do drafting, and he worked in connection with the construction of small houses on the prison grounds. On May 16, 1947, plaintiff was admitted to the prison hospital for treatment of a condition described as 'anxiety state'. Before this, during March and April, he had treatment, both as an outpatient and as an inpatient, for a number of ailments. He received hospital care until June 6, 1947, and again from June 10 to June 16, 1947. After about one week when he was confined to bed, Dr. Leon A. Witkin, in charge of the hospital, prescribed certain light tasks for the plaintiff as an occupational therapy measure. These tasks included bringing food for the patients from the main kitchen to the hospital, and in washing the steel containers, three in number, in which the food was thus brought.
As an aid in washing the containers, plaintiff was directed to use steel wool. There was a supply of steel wool in the kitchen and the plaintiff was told to help himself as needed. Several other patients in the ambulatory stage performed such work on alternate days. About two weeks after he began this work of cleaning the containers, plaintiff noticed pain in his right thumb. The pain continued and was accompanied by a red discoloration, so that on June 17 he reported to the hospital for treatment. He complained of pain, but did not attribute it to any injury or to any other specific cause. The thumb was given a dressing of yellow oxide ointment to draw any infection to the surface. The thumb was redressed on June 19, 20 and 21. It continued to give pain, so an incision across the fleshy part of the thumb was made on June 23, to permit drainage, and plaintiff was admitted to the inpatient department of the hospital. On June 26, a second incision, of the 'alligator mouth' type, was made in the fleshy part of the thumb and near the outer part of the thumb nail. The hospital records in evidence disclose that a single drop of whitish pus was evacuated, and a rubber tissue drain inserted. Just prior to the operation x-rays of the thumb in the lateral and antero-posterior position were taken. The radiographic report does not ...