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DOE v. UNITED STATES

February 9, 1996

JANE DOE and JOHN DOE, her husband, Plaintiffs, -vs- UNITED STATES OF AMERICA, Defendant.

JOHN T. CURTIN, United States District Judge


The opinion of the court was delivered by: CURTIN

CURTIN, District Judge

 Plaintiffs Jane and John Doe have brought this action under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. ("FTCA"). The government has moved to dismiss for lack of subject matter jurisdiction, maintaining (1) that the plaintiffs' exclusive remedy for their alleged injuries is the Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq. ("FECA"), and (2) that the United States has not waived its sovereign immunity as to claims arising from injuries covered by FECA.

 BACKGROUND

 In their complaint, the plaintiffs allege that in the fall of 1990, Jane Doe was a student in the phlebotomy training program at Erie Community College ("ECC"). As part of that program, she was required to perform a twelve-hour hospital rotation at the Buffalo Veterans' Administration Medical Center ("VAMC"), under the terms of a memorandum of affiliation between ECC and the VAMC. During the course of her assignment, she was required to draw blood, under proper supervision, from VAMC patients. However, she had been assured by the teaching staff at ECC that she would not have to take blood from patients with blood-borne communicable diseases.

 The plaintiffs maintain that the VAMC and certain of its employees acted in a grossly negligent and/or reckless fashion, in directing Jane Doe to draw blood from a known HIV-infected patient, failing to inform her that the patient was HIV-positive, failing to administer the phlebotomy training program in a proper fashion, providing negligent supervision, failing to warn Ms. Doe of the danger of HIV exposure, failing to promptly take all steps possible to limit the effects of Ms. Doe's exposure, and refusing to provide Ms. Doe with available medication that may have slowed the progress of the virus. *fn1" As a result, they claim, Ms. Doe has suffered, and will continue to suffer, extreme mental and emotional distress; the loss of her husband's services, society, and comfort; and severe disruption of her lifestyle, resulting from the fear that her exposure to HIV will cause her to be infected with the virus and may lead to the development of Acquired Immune Deficiency Syndrome ("AIDS"). She has incurred, and will continue to incur, medical expenses, including the costs of medical monitoring.

 The plaintiffs claim that as a result of Jane Doe's needle-stick injury, John Doe has suffered the loss of his wife's services and consortium. They also allege that the defendant breached a contractual duty to Jane Doe pursuant to the memorandum of affiliation between ECC and the VAMC; that the action of the defendant's employee, Mr. Galfo, in directing Jane Doe to draw blood from an HIV-infected patient was intentional, and as such was extreme and outrageous conduct; and that following the incident on November 28, 1990, the defendant failed to take appropriate steps to prevent the improper disclosure of confidential information identifying Jane Doe as having been exposed to HIV infection.

 In moving to dismiss, the defendant notes that on November 29, 1990, one day after the incident, Ms. Doe's VAMC supervisor prepared a FECA claim (Form CA-1: "Federal Employee's Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation") for Ms. Doe. See Item 11, Ex. 1, Declaration of Jonathan G. Lawrence. The form stated that Ms. Doe had stuck herself in the right index finger with a needle that had been used on an HIV-positive patient. *fn2" It was received by the New York District of the Office of Workers' Compensation Programs ("OWCP"), United States Department of Labor, on December 26, 1990. Id. According to the District Director of that office, Jonathan G. Lawrence, the claim was "accepted for a puncture wound to [Ms. Doe's] right index finger" on January 15, 1991. Id. Ms. Doe "would be entitled to all benefits available under [FECA]," but as of September 17, 1995, "no claims for medical treatment or compensation [had] been received." Id.

 The defendant also notes that in late December 1991, Jane and John Doe submitted FTCA administrative claims to the Department of Veterans Affairs ("DVA"). See Item 11, Ex. 2. By letter dated May 23, 1994, the DVA denied the claims on the grounds that, as a "student-volunteer employee" of the VAMC, Ms. Doe was considered an employee of the United States, and that as a result, FECA provided the Does' exclusive remedy for their alleged injuries. Id. The plaintiffs sought reconsideration of the DVA decision, but this was denied on February 7, 1995. Id., Ex. 3.

 The plaintiffs argue, in response, that this court has jurisdiction, under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., to review the Secretary of Labor's determination that Ms. Doe's claim for emotional distress is covered by FECA. They maintain that the Secretary's determination was arbitrary and capricious, for two reasons, (1) because FECA covers only federal employees, and Jane Doe was not a federal employee at the time in question, *fn3" and (2) because claims for emotional distress are not covered by FECA Item 15, pp. 4-12. They also argue that the exclusivity provisions of FECA cannot bar Jane Doe's breach of contract claim, id. at 9, or her claim based on wrongful disclosure of confidential information. Id. at 12-13. The defendant has filed a reply brief. Item 17. Oral argument was held on February 2, 1996.

 DISCUSSION

 At the outset, the court wishes to observe that this is a most disturbing case. First of all it is extraordinary, and appalling, that during the course of a training assignment at a federal government hospital, a student with no experience whatever of drawing blood from patients should be directed to obtain blood from an individual known to be infected with HIV. Second, it is perturbing that at the time of the incident, the student concerned had not executed an appointment letter formally establishing her status at the facility. And finally, it is most troubling that immediately following the ...


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