The opinion of the court was delivered by: MCLAUGHLIN
McLAUGHLIN, District Judge
This action under the Federal Tort Claims Act (28 U.S.C. § 2675) seeks damages for personal injury. After injuring his elbow while employed on a barge, the plaintiff underwent two operations at the Staten Island United States Public Health Service Hospital (PHS Hospital). He now suffers from a nearly complete ulnar nerve palsy of the right hand.
Mr. Wilson brings this action for malpractice, arguing that the first operation was premature and that both operations were performed improperly. The case was tried before me without a jury. The following constitute the Court's findings of fact and conclusions of law. Fed. R. Civ. P. 52.
On February 3, 1979, plaintiff injured his right elbow while working as a tankerman aboard a barge operated by the Poling Transportation Corporation (Poling). He described the pain as a sensation of "pins and needles" running into his hand (Tr. 169). He continued to work for approximately two weeks before seeking medical assistance (Tr. 194-196).
Twenty days after the accident, Wilson sought medical attention at the PHS Hospital. At that time, he complained of swelling of his right elbow, pain and tingling sensation in the right hand (Tr. 172).
Wilson initially was treated conservatively, and he did not improve. An electromyographic test (EMG) performed during this period of conservative management produced normal results. Nonetheless, the clinical evidence indicated that Wilson's condition was, in fact, deteriorating. The pain and swelling in his arm continued, and the "tingling" had progressed to numbness and decreased sensation in the fourth and fifth fingers and weakness of the fourth volar interosseous muscles (Tr. 42, 43, 197, 259).
Because of plaintiff's deteriorating condition, his case was presented to a conference of the PHS neurological staff. The physicians at the conference diagnosed dan ulnar neuropathy at plaintiff's elbow and recommended a transposition of the ulnar nerve from the back of the elbow to an anterior position.
Accordingly, on April 30, 1979, plaintiff underwent his first operation at the PHS hospital. In addition to performing an anterior transposition of the ulnar nerve, the surgeons removed certain bone spurs and loss cartilage (loose bodies and osteophytes) from his elbow joint.
Although plaintiff initially experienced a reduction in swelling and a general increase in sensation in his hand, the numbness began to reappear around June, 1979. Plaintiff testified that he noted a slight "clawing" of his hand after the first operation (Tr. 176). He continued to show no improvement in the ensuing months.
Accordingly, plaintiff reentered the hospital for a second operation, a re-exploration of the right ulnar nerve on November 19, 1980. This procedure did not help the situation and since then plaintiff's condition has grown remarkably worse. He now has an ulnar nerve palsy of the right hand, and suffers from clawing of the ring and little fingers. His grip has weakened substantially and he has experienced a partial loss of flexion and extension of the right elbow.
Wilson clearly is unable to perform his prior employment, and most likely will remain unable to perform tasks requiring dexterity of the right hand. the PHS Hospital declared him "permanently" not fit for duty" on March 9, 1981.
On February 11, 1982, Wilson settled his action against Poling, his employer, for $150,000.00, and executed a release extinguishing all claims against Poling, including claims resulting from the negligent medical treatment provided him by the PHS hospital and its staff. Wilson expressly reserved, however, whatever right he had to ...