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RUFINO v. UNITED STATES

December 1, 1954

Mary C. RUFINO, as Administratrix of the Goods, Chattels and Credits which were of Orlando J. Rufino, Deceased, Plaintiff,
v.
UNITED STATES of America, Defendant



The opinion of the court was delivered by: MCGOHEY

In an action brought by plaintiff under the Federal Tort Claims Act *fn1" as next of kin of her deceased husband for damages suffered as the result of the latter's death allegedly caused by the wrongful acts of the employees of the defendant acting within the scope of their employment, the United States moves to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, 28 U.S.C.A., on the ground that the plaintiff has failed to state a claim upon which relief can be granted.

The amended complaint alleges three causes of action:

1. A claim for damages resulting from the negligence of defendant's employees in treating decedent;
 
2. A claim for damages resulting from an assault on decedent by defendant's employees;
 
3. A claim for damages resulting from the negligence of defendant's employees in allowing the decedent to be assaulted.

 The defendant moves to dismiss the first cause of action on three grounds: first, that by express provision of 28 U.S.C. § 1346(b) the law of New York governs and a hospital in New York would not be liable for the professional acts of its medical personnel; second, that under 28 U.S.C. § 2680(a) the defendant is not responsible for a claim 'based upon the exercise or performance * * * [of] a discretionary function or duty on the part of a federal agency or an employee of the Government'; third, that plaintiff has an exclusive remedy under 38 U.S.C.A. § 501a. *fn2"

 The defendant moves to dismiss the second and third causes of action on the ground that 28 U.S.C. § 2680(h) expressly exempts the Government from liability not only for actions of assault but also for claims 'arising out of assault'.

 First Cause of Action

 28 U.S.C. § 1346(b) provides in pertinent part that:

 
'* * * [The] district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States * * * for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.'

 It is defendant's contention that since neither a private nor a charitable hospital in New York would be liable for the professional acts of its physicians and nurses, similarly the United States cannot be held liable under the Tort Claims Act for the professional acts of its medical personnel.

 It is not at all clear that the New York doctrine urged by defendant would apply in this case. The New York Court of Appeals in the case of Phillips v. Buffalo General Hospital, *fn3" adopting the independent contractor theory of a hospital's immunity -- the so-called 'New York Rule' -- rejected former New York cases which had relied on the 'implied waiver theory.' The basis of the New York doctrine is that professional personnel engaged in professional pursuits in a hospital are not employees of the hospital at least while engaging in such pursuits for the reason that:

 
"Such a hospital undertakes, not to heal or attempt to heal through the agency of others but merely to supply others who will heal or attempt to heal on their own responsibility." *fn4"
 
Although there appears to be a conflict among the circuits, there are several holdings in Circuit *fn5" and District Courts *fn6" to the effect that the provision of 28 U.S.C. § 1346(b) quoted above does not make the law of the state applicable in determining the legal relationship between the United States and its employees but rather that, that relationship having been found to exist by statute or Federal law, the law of the state determines whether the act of the employee is one upon which liability can be predicated. This being so, the New York doctrine of independent contractor is not applicable and a determination of the relationship of a physician and other workers in a Veterans' Administration hospital is to be made from the construction of the statute authorizing the establishment of such a hospital *fn7" and from the definition section of the Federal Tort Claims Act. ...

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