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August 30, 1979


The opinion of the court was delivered by: SAND

The question posed by the motion before this Court is whether the sole remedy against the United States for injuries sustained by a federal employee allegedly resulting from medical malpractice occurring while he was being treated by the Public Health Service ("PHS") are those under the Federal Employees Compensation Act ("FECA") even though the treatment is claimed to have been mistakenly provided for an illness which, if properly diagnosed, would not have been covered by FECA. We answer this question, upon which there is surprisingly little authority, in the affirmative.

Nature of the Proceedings

 Gaspare and Mary Scalia, husband and wife, commenced this action under the Federal Tort Claims Act ("Tort Claims Act") on June 16, 1978. The complaint sets forth two causes of action. The first alleges in substance that during a period of treatment beginning April 19, 1977, physicians employed by PHS negligently failed to diagnose and treat a cancerous condition suffered by Gaspare Scalia, a United States Postal employee, and, further, negligently broke his leg; that as a result of this malpractice Gaspare Scalia became "afflicted with an advanced cancerous condition which had it been properly diagnosed would not have advanced to the present stage which is believed to be terminal" (Complaint par. 20); and, finally, that the defendant's employees failed to advise plaintiff of the nature and extent of his illness, thereby preventing him from receiving proper treatment. The second cause of action states a claim for loss of consortium on behalf of Mary Scalia.

 In its answer, the Government asserts as an affirmative defense that this Court lacks jurisdiction over the claim of both plaintiffs on the ground that their exclusive remedy is provided by FECA. As an additional affirmative defense to the claim of Mary Scalia, the answer asserts lack of jurisdiction for failure to file an administrative claim as required by the Tort Claims Act.

 On August 28, 1978 Gaspare Scalia died. On September 15, 1978, the Government filed a Suggestion of Death upon the Record pursuant to F.R.Civ.P. 25(a). On February 21, 1978, Mary Scalia moved to substitute herself as representative of Gaspare Scalia's estate for plaintiff Gaspare Scalia.

 Mary Scalia also seeks to amend the complaint to add a cause of action for assault and battery against Gaspare Scalia; to extend the time during which Gaspare Scalia's treatment and, by inference, the alleged malpractice occurred; and to specifically plead that the injury or illness for which Gaspare Scalia was treated by PHS did not arise out of his employment by the United States Postal Service. According to the affidavit of plaintiffs' counsel, Mary Scalia also intends to state a claim for wrongful death.

 The Government opposes plaintiffs' motion to amend and moves for an order granting summary judgment pursuant to F.R.Civ.P. 56(b) or, alternatively, dismissing the complaint for lack of subject matter jurisdiction.


 In support of its motion, the Government has filed an affidavit of Howard G. Wallace, sworn to March 13, 1979 ("Wallace Afft."), a claims examiner in the New York Office of Workers' Compensation Programs ("OWCP"). From this affidavit and the exhibits thereto, the following facts emerge:

 In 1972 Gaspare Scalia was employed by the United States Postal Service as a mail equipment handler at a mailbag repair center and depository in New Jersey. On July 17, 1972 he sustained an injury to his lower back while lifting mail sacks. His supervisor referred him for medical treatment to the PHS Outpatient Clinic. His injury was diagnosed as lumbosacral strain and he received periodic treatment for this condition at the Clinic until September 7, 1972. Pursuant to a formal claim for compensation, he was compensated under FECA for the period he was out of work on account of the injury (July 17, 1972 to August 5, 1972).

 Scalia experienced a brief recurrence of his back problem in the spring of 1974. He was again treated at the Clinic. Although he was out of work from April 3, 1974 to April 17, 1974, he did not submit a claim for compensation under FECA.

 Three years later, Scalia sought treatment again for lower back pain. From the documents submitted, it appears that Scalia's private physician gave Scalia a note stating that he thought the back problem was related to Scalia's initial work injury and recommended that x-rays be taken. On the basis of the doctor's note, Scalia's supervisor at the Postal Service authorized an examination and, if necessary, treatment at PHS on April 19, 1977.

 Scalia was seen at the Clinic from time to time subsequent to the referral on April 19, 1977. At some point during the course of this treatment, he was referred to the PHS Hospital on Staten Island for study. While undergoing a straight leg raising test at the hospital on July 11, 1977, he sustained a pathological fracture of the left femur. It was then discovered that he had cancer at the site of the fracture.

 From July 11, 1977 to the date of his death, Scalia was hospitalized on several occasions at the PHS Hospital on Staten Island and treated for both the fracture and the cancer. He submitted further ...

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