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March 21, 1984

IRENE McCLUSKEY, individually and as Administratrix of the Estate of JOSEPH M. BOLAND, MICHAEL BOLAND and MARY BOLAND, Plaintiffs, against THE UNITED STATES OF AMERICA, HOLMES AMBULANCE COMPANY and "JOHN DOE", Defendants.

The opinion of the court was delivered by: COOPER


Plaintiff Irene McCluskey is the sister and Administratrix of the Estate of Joseph M. Boland, a veteran of the United States Army, honorably discharged with a 100 percent disability for nervous disorder. Together with her parents and acting in both her capacities, Mrs. McCluskey commenced on September 9, 1982 this wrongful death action for damages under the Federal Tort Claims Act, 28 U.S.C. §§ 1343(b), 2671 et seq. based upon the defendants' alleged negligent conduct resulting in the death of Mr. Boland. The trial to the Court on September 28-29, 1983 was bifurcated -- the issue of liability to be ascertained first, damages to be taken up only if our instant determination favors the plaintiffs.

 This litigation discloses a tragedy which should never have occurred; the facts exemplify the horrible reality that can result from people's inhumanity towards one another.

 On the morning of February 26, 1981, Joseph M. Boland travelled to the New York Regional Office of the Veterans Administration at 252 Seventh Avenue in Manhattan, New York ("Manhattan VA") from the home that he shared with his parents in Rockaway Park, New York. (Tr. 219-20) *fn1" This hospital visit was not out of the ordinary for Mr. Boland; he had been going there daily for approximately one and a half years. (Tr. 135) The patient suffered from a depressed mental condition for many years, symptomized by hallucinations, suicidal thinking, delusions, and generally disturbed behavior, and had been hospitalized five to six times commencing in 1962. (Tr. 134-35) Since 1979, Mr. Boland had attended the outpatient Day Treatment Center at the Manhattan VA where his psychosis greatly improved and stabilized, with the sole exception of a brief hospitalization in September 1980.

 On this particular day (February 26, 1981), Mr. Boland was playing cards in the Day Treatment Center when the Center's coordinator, Mr. Steven Schrift, observed that Mr. Boland was making mistakes unusual for him. Mr. Schrift called Dr. Tershakovec, a staff psychiatrist at the Manhattan VA, who proceeded to examine the patient's record, interview him, and administer orientation and memory tests. (Tr. 134) *fn2" The doctor concluded that the symptoms were related to a kidney disease called uremia from which Mr. Boland had suffered since 1973. (Tr. 136) Uremia occurs when the waste products of the body cannot be secreted because the kidneys malfunction and the waste consequently enters the bloodstream, affecting the brain as well as the rest of the body. (Tr. 137) At the time of the examination, Dr. Tershakovec determined that Mr. Boland's brain impairment was mild: he was slightly disoriented, his immediate memory loss was more severe, but his remote memory was unaffected. (Tr. 137-38) The doctor testified: "[U]remia is caused by the accumulation of waste products in the blood, and it is a process that is slow. In this particular instance, I thought it was the very beginning of that condition, seeing that impairment of brain function is the most sensitive test, and there was no other evidence of approaching uremia such as muscle twitching, vomiting, nausea, or convulsions. So the condition was [days or perhaps even weeks] away from coma." (Tr. 138-39)

 Dr. Tershakovec's medical opinion was corroborated at trial by the expert testimony of Dr. Robert Feingold, an instructor in medicine and supervisor of the dialysis and transplant units in Mt. Sinai Hospital in Manhattan. From his review of the records containing information on Mr. Boland's condition on February 26, 1981, Dr. Feingold testified that the patient's condition was neither emergent nor critical. (Tr. 163)

 The Veterans Administration hospital on Kingsbridge Road in the Bronx ("Bronx VA"), unlike the Manhattan VA, had an advanced kidney treatment center, including dialysis machines which remove the waste products from the bodies of uremia patients. (Tr. 139) After being informed by Mr. Boland that formerly he had been treated by a Dr. Kahn in the Bronx VA, Dr. Tershakovec called Dr. Kahn. The latter advised Dr. Tershakovec that he wanted to see the patient in the Bronx VA (Tr. 138) -- an idea to which Mr. Boland was quite receptive.(Tr. 141)

 The procedure for transporting a patient from the Manhattan VA to the Bronx VA required a doctor to fill out a transfer form, called a 1010M, identifying the complaint and mental status of the patient; also contact persons functioning at the medical arriving center (an extremely important factor in this case). The 1010M additionally had space in which motor transportation had to be specified. (Tr. 181) Dr. Tershakovec filled out the form but omitted the motor transportation instructions. Miss Grace Cervini, a public health registered nurse at the Manhattan VA, received Mr. Boland's 1010M and tried unsuccessfully to locate the doctor to get his advice concerning transportation. (Tr. 174, 182) Not wanting to delay Mr. Boland's transfer any longer, Miss Cervini arranged for the patient's transportation, a task she had done for others in the years prior to February 26, 1981. (Tr. 182)

 Miss Cervini called the transportation department at the Manhattan VA and spoke to Mrs. Linda Yates, a clerk "filling in" that day. (Tr. 199-200) The two discussed the mode of transportation alternatives; Miss Cervini concluded that an ambulette, a vehicle which does not contain all of the medical equipment usually installed in an ambulance, would be appropriate. Miss Cervini further instructed Mrs. Yates to order a two-man ambulette since Mr. Boland was "confused." (Tr. 175)

 The testimony of Dr. Feingold at trial supported Miss Cervini's decision. The doctor stated that "all [Mr. Boland] needed was somebody to make sure that he arrived at the VA. In other words . . . I don't think he needed strict medical supervision during the transportation." (Tr. 164)

 One of the ambulance companies with which the Manhattan VA had contracted to provide ambulance and ambulette services was defendant Holmes Ambulance Company ("Holmes").The contract between the parties contained an indemnification clause under which Holmes indemnified the Government from any negligence caused by the latter unless the Government was the "sole, competent, and producing cause of such . . . liability." (Plaintiffs' Ex. 1 at 3)

 Mrs. Yates telephoned Holmes, spoke to a clerk named Mona, and ordered a two-man ambulette to transport Mr. Boland "[t]o the Bronx VA, to the admitting area " (underscoring ours). (Tr. 194) In keeping with her normal course of duties, Mrs. Yates made out a 3" X 5" index card (Government Ex. F) in which she specified Mr. Boland's name, address, claim number, social security number, diagnosis, that he should be admitted to the Bronx VA promptly, that a 1010M form was being sent with Mr. Boland, and that he was being transported to the Bronx VA by a two-man ambulette. (Tr. 196, 212)

 Holmes dispatched Jose Ralph Capella, a para-transit licensed driver of an ambulette, to the Manhattan VA to pick up Mr. Boland for transfer to the Bronx VA. (Holmes Ex. C at 5-6) From the trial record we draw a strong inference that this was not the first occasion on which Mr. Capella drove patients from the Manhattan VA to the admitting room of the Bronx VA. We regard as unworthy of belief his contention in his deposition that he transported patients only to the radiation therapy room of the Bronx VA (Holmes Ex. C at 50-51); this statement was conveniently created to justify Mr. Capella's subsequent action. As will be seen, he was no stranger to the Bronx VA facility.

 Extremely unfortunate is the distressing fact that Mr. Capella was unavailable for testimony at trial. On September 21, 1983, the original date scheduled for this trial, trial counsel for Holmes stated that considerable effort to locate him had proven unsuccessful; accordingly, we granted Holmes a continuance to search further for Mr. Capella. See letter dated November 21, 1983 from trial counsel (James P. Drohan, Esq.) addressed to the Court. Holmes hired an investigator named Freddie Velez whose search efforts proved unavailing. On the witness stand, Mr. Velez speculated that Mr. Capella was in a hospital in Puerto Rico (Tr. 14); Velez made contact in that territory with a member of his family who was not an investigator and who could not find Mr. Capella in any of the hospitals in Puerto Rico. (Tr. 15) On the first day of trial, we directed that the parties continue to exhaust all efforts to "locate this all-important witness." (Tr. 19) However, Mr. Capella was not to be found. Holmes did not subpoena Mr. Capella's cousin in New York who had informed Mr. Velez that Mr. Capella had moved in with his mother in Puerto Rico. (Tr. 13-14; 16-17) On the evidence adduced, we are unable to assess the extent of the effort expended to locate him.

 Mr. Capella was deposed on April 14, 1983 regarding the events that took place during the hour he spent with Mr. Boland on February 26, 1981. The sworn transcript of this deposition was introduced into evidence as Holmes Exhibit C; we find parts of his account supported by the total trial record; other equally vital contentions are either wholly unpersuasive, clearly exaggerated or plainly false.

 It is our conclusion and we so find that the following occurred during the interval between Mr. Capella's entrance into the Manhattan VA and his exit from the Bronx Va.

 Mr. Capella arrived at the Manhattan VA at approximately 2:55 P.M. (Holmes Ex. C at 38) Upon seeing Mrs. Yates, who he knew inasmuch as he had picked up and delivered patients to various buildiing of the Bronx VA two to three times a week for three or four months (Tr. 197-98), he flashed his trip ticket and inquired into the whereabouts of Mr. Boland. From her brief glance at the ticket, Mrs. Yates noted Mr. Boland's name and two signatures; she was not sure whether they constituted Mr. Capella's printed name followed by his signature or the names of two separate people which would have indicated the presence of two attendants in the ambulette. (Tr. 210)

 We regard it as significant in the extreme to add at this juncture of the opinion the following vital bit of testimony by Mrs. Yates which we adopt: On various occasions "Ralph was -- he was very nervous. I guess that would be the best way to describe him. Even when he stopped and chatted with us for a while, he would always pace back and forth, he would never sit down." (Tr. 204) Indeed, from the total trial record, we get the distinct impression that Mr. Capella was an extremely nervous, always "on edge" type of individual, clearly unsuited for the sensitive, careful task to which Holmes assigned him. Moreover, on February 26, 1981 he was in a particular rush (Tr. 202-04) -- his superior, Steven Solarch, had instructed him to be at the Taxi and Limousine Commission in Brooklyn by 5:00 P.M. if he wanted him vehicle inspected. (Holmes Ex. C at 24-25) This pressure, added to Mr. Capella's generally nervous disposition, made him an especially inappropriate person to transport ill patients.

 Mrs. Yates informed Mr. Capella that Mr. Boland was in Nurse Cervini's office. He met the patient there, and Miss Cervini handed him a large brown government envelope containing the 1010M as the sole enclosure. Miss Cervini had written in large print across the envelope the words "Kingsbridge Veterans Administration Hospital, Admitting, per Dr. Tershakovec" (underscoring ours) as well as the name of the VA center from which Mr. Boland was being transported, Dr. Tershakovec's telephone number, and the patient's full name and social security number. Miss Cervini asked Mr. Capella if he wanted a wheelchair for Mr. Boland and whether there was another attendant in the ambulette. Mr. Capella responded negatively to the first ...

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