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February 23, 1968

Ernest J. HENDRY, Plaintiff,
UNITED STATES of America, Defendant

The opinion of the court was delivered by: POLLACK

POLLACK, District Judge.

 The plaintiff, a licensed seaman in the United States Merchant Marine, seeks damages under the Federal Tort Claims Act, Title 28 U.S.C. § 1346(b), § 2672 et seq., alleging negligence and malpractice of a psychiatrist and of a psychologist, both employed by the United States Public Health Service Hospital at Staten Island, New York. He was referred there by the U.S. Coast Guard under its licensing powers to determine his mental fitness for sea duty. He alleges that as a result of faulty diagnosis he was declared "NOT FIT FOR SEA DUTY" and consequently was deprived by the Coast Guard of his license to work at sea from April until early in July, 1962. He was prevented thereby from obtaining employment during that period, and asserts that his earning capacity was impaired thereafter.

 He seeks further recovery for emotional and mental upset caused by his loss of license and by disclosure to him of the factual reasons for the conclusions of the psychiatrist and of the psychologist concerning his mental condition. The findings and conclusions of the psychologist and of the psychiatrist were entered in the hospital records which were confidential and not disclosed by the government employees to the plaintiff. However when the plaintiff protested the loss of his license and employed counsel, the records were procured by counsel and the detailed findings of the doctors disclosed to plaintiff by counsel or by the psychiatrist retained by the plaintiff to review his mental condition. The damages sought total $50,000.

 The defendant United States of America denies malpractice and negligence of its employees and at the outset of the trial moved for dismissal of the suit on the grounds that the plaintiff's claim arose out of a "discretionary function" of a government agency or employee and/or that the claim arose out of "interference with contract rights" and therefore falls under exceptions contained in 28 U.S.C. §§ 2680(a) and 2680(h), respectively, to the government's consent to be sued in tort.

 Federal jurisdiction of this case is posited upon 28 U.S.C. § 1346. The case was tried to the Court, sitting without a jury and the relevant facts are as follows.

 The plaintiff was licensed as a deck officer of the United States Merchant Marine by the United States Coast Guard pursuant to statutory authority contained in Title 46 U.S.C. § 224.

 In March, 1962 the plaintiff, while serving aboard the oil tanker, Samuel L. Fuller, complained to the Coast Guard in Philadelphia that he had been assaulted and threatened by the Captain of his vessel. A Coast Guard investigating officer interviewed the plaintiff upon the ship's entry into port, found that his complaint groundless, and that the plaintiff had "a history of registering complaints" and was generally considered a "troublemaker". Upon the officer's request, the plaintiff voluntarily agreed to deposit his seaman's license with the Coast Guard "until such time as I am declared fit for sea duty by the U.S. Public Health Service". He further agreed that "pending my certification as fit for sea duty, I will not accept employment on any merchant vessel of the United States".

 Under the regulations then in effect, 46 C.F.R. §§ 137.01-1, 137.05-15, 42 U.S.C. § 251(c), 42 C.F.R. § 32(6)(c)(6)iii, the Coast Guard investigating officer was empowered but not required to accept deposit of the plaintiff's license and to refer the plaintiff to the Public Health Service for examination. Upon certification by the Public Health Service that plaintiff was fit for duty, the Coast Guard was required to return the plaintiff's license.

 Pursuant to these regulations, the plaintiff underwent psychiatric examination at the United States Public Health Service Hospital on Staten Island.

 On April 5, 1962, the plaintiff was examined by Dr. Carlos Ramirez, a Cuban doctor who had practiced psychiatry and neurology in Havana for nineteen years, and who was certified by the Education Council for Foreign Medical Graduates for practice in the United States.

 The plaintiff related the history of his dispute with his ship's captain, categorizing it as violent and intense. He gave his medical history and family background. Following the interview, which lasted approximately 45 minutes, Dr. Ramirez entered the following on the hospital records:

"This is the case of a man 42 years, married, working in the Merchant Marine. This man is in a special situation because he had a trouble with his boss. They had an intense and violent disagreement. His intelligence is normal. Ideas are well coordinated. Reasonable. Emotional normal. Connation normal. Sleep O.K. Diagnostic-normality?. Normality apparently in his family."

 At the time of his clinical examination Dr. Ramirez suspected that the plaintiff had a phychiatric problem involving a personality disturbance. He therefore put a question mark after the word "normality" in the record entry which is quoted above. However, since he had at that time no conclusive evidence to support his suspicion, he issued a medical status report dated April 5, 1962 declaring plaintiff "fit for duty psychiatrically".

 The next day, April 6, 1962, there was forwarded to Dr. Ramirez a copy of a report from the United States Coast Guard dated March 23, 1962 addressed to the Medical Officer in charge of the hospital to the attention of the Psychiatric Service in relation to the plaintiff. This report enclosed a copy of the voluntary surrender agreement with respect to the plaintiff's license and certain letters written by the plaintiff dated March 16, 18, 20, 1962 sent to the Coast Guard. Upon receipt of these documents Dr. Ramirez promptly referred the plaintiff to the hospital's clinical psychologist, Dr. Joseph Feuerburgh, and the plaintiff was directed by the Coast Guard to return to the hospital for further examination.

 Dr. Feuerburgh examined the plaintiff on April 9, 1962 administering a battery of psychological tests, including the Rorschach test. (This is a type of intelligence test which also evaluates the emotional elements of the subject's personality. The subject is presented with a series of ink blot patterns and asked to tell what they mean or represent to him.). The psychologist recorded the plaintiff's responses to the various tests and prepared a report of his findings which he transmitted to Dr. Ramirez, the psychiatrist. The report noted that the Rorschach protocol

"seems to be consistent with a latent paranoid thinking disorder. * * * from the record this is a man who has difficulty in getting along with people. * * * we have evidence of a pattern of responses consistent with a paranoid schizophrenic condition * * * (he) does not show the ego defenses to be able to be regarded as now suitable for active duty. * * * he should be encouraged to seek psychotherapy."

 Dr. Ramirez, after reviewing Dr. Feuerburgh's report and giving consideration to his own clinical examination of the plaintiff as well as the data in the Coast Guard report, made the following entry on the hospital records on April 12, 1962:

"Due to his difficulty to get along with his boss and also with others I ordered a psychologic evaluation and it was discovered a good intellectual level, good defenses, but suffering from a paranoid schizophrenic condition. He is not considered fit for duty in one year that he should return for a new evaluation. Dr. Carlos E. Ramirez."

 Dr. Ramirez then filled out a medical report of the plaintiff's duty status reciting the dates of the examinations and stating simply "patient is not fit for sea duty he may be re-evaluated in 6 months".

 On receipt of this report the Coast Guard declined to restore the plaintiff's license to him.

 The plaintiff protested and enlisted the support of his Union representatives, retained counsel, and obtained an examination by a private psychiatrist who disagreed with the conclusions of reports of the employees of the United States Public Health Service and indicated that plaintiff was not emotionally unsound or suffering any personality disorder. Armed with these, the plaintiff procured a reexamination by the chief of the psychiatric service, Dr. Paul Smith, on July 6, 1962. His findings in part are as follows:

"After a complete review of the available documents and the information of all sorts already available in our clinical record, it is my opinion that an appropriate diagnostic label for this man would be a paranoid personality. He shows the sensitivity, the suspiciousness, the stubbornness and the tendency to utilize the mechanism of projection, characteristic of such a personality type. I do not believe however, that his psychological state is disabling at this time ...

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