MacDonald v. United States

781 F. Supp. 320, 1991 U.S. Dist. LEXIS 18658, 1991 WL 277766
District Court, M.D. Pennsylvania·Decided November 22, 1991·No. No. 3:CV-88-1567·Published·Cited by 1 cases

Opinion

MEMORANDUM

McCLURE, District Judge.

BACKGROUND

This is an action arising under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (the “FTCA”), and this court has jurisdiction under the provisions of 28 U.S.C. § 1346(b).

Plaintiffs, Donald J. MacDonald and Mary G. MacDonald, his wife, filed a three-count complaint on September 19, 1988, against the United States of America acting through its agency, the Veterans Administration Medical Center at Wilkes-Barre, Pennsylvania.1 At the VA Medical Center on or about April 2, 1986 plaintiff Donald J. MacDonald (“MacDonald”) underwent surgery known as a superficial femoral-anterior tibial reversed saphenous vein reconstruction on his left leg. MacDonald claimed that this operation resulted in extreme exacerbation of existing chronic venous insufficiency and has left him incapacitated. As MacDonald was not entitled to a jury trial, 28 U.S.C. § 2402, the court proceeded with a bench trial, bifurcating the issues of liability and damages. On June 28, 1991, the court issued a memorandum and order finding in favor of MacDonald as to his claim of lack of informed consent to the surgery asserted in Count II of the complaint.2 767 F.Supp. 1295.

On October 29, 1991, the court began a three-day hearing on the issue of damages. On the basis of all the evidence presented, the court makes the following findings of fact.

FINDINGS OF FACT

1. MacDonald was graduated from Eastern Kentucky University where he was a member of the United States Army ROTC and from which he obtained a bachelor of arts degree and a teacher’s certificate in health and physical education.

2. MacDonald was an outstanding athlete in high school, preparatory school and college.

3. MacDonald entered the United States Army as a Second Lieutenant in January 1964 and volunteered for combat duty in Vietnam in January of 1967.

4. MacDonald completed substantial studies toward a master’s degree in education while in the United States Army.

5. MacDonald taught military science while in the United States Army at Georgetown University.

6. While in Vietnam in March 1967, as an infantry battalion advisor to the Republic of Vietnam’s Army, he was seriously wounded in the legs.

7. In 1969 MacDonald was honorably discharged from the armed services and returned to Scranton where he immediately became employed with Emery Worldwide, initially as a supervisor of the mail room and then about one year later was reassigned to the credit department, which he eventually took over as manager in the early 1970’s. Not happy at Emery, he took employment as a letter-carrier with the United States Postal Service in July 1984.

8. In January 1986 MacDonald, having experienced considerable pain in his lower left calf while walking his route, went to the VA Medical Center. He was found to have an arterial occlusion or blockage in his lower left extremity, and consequently on or about April 2, 1986, underwent surgery at the VA Medical Center to correct the occlusion. Dr. Juan DeRojas, a surgeon with the United States Veterans Administration, performed a superficial femo[322]*322ral-anterior tibial reversed saphenous vein reconstruction on MacDonald’s left leg.

9. This surgery was performed without MacDonald’s informed consent.

10. Although the arterial surgery was successful, in that it restored normal blood flow to the lower left extremity, MacDonald experienced great post-operative swelling in his left leg with subsequent skin breakdown or dermatitis.

11. Although the swelling and dermatitis eventually came under control by virtue of frequent periods of elevation of the leg above the heart, MacDonald has continued to experience great pain in his left leg which has become progressively more severe.

12. The April 2, 1986 arterial surgery was a substantial factor in causing the current pain in MacDonald’s left leg.

13. His current pain is unpredictable and severe. Once the pain begins it progressively grows worse and eventually requires rest. Although rare, on a good day he can spend a substantial amount of time on his feet.

14. As a result of this pain MacDonald is unable to return to his past employment as a letter-carrier with the United States Postal Service.

15. Since the fall of 1986, on a volunteer basis, MacDonald has assisted in teaching eighth grade social studies at St. Paul’s elementary school in Scranton. During the 1986-87 school year he assisted on a daily basis; however, beginning in the succeeding school year his attendance became less frequent.

16. Currently, and for the past several years, on a volunteer basis, plaintiff has assisted with the coaching of the Scranton Prep football team. MacDonald’s primary function is to analyze and break down game films, and although he is not able to demonstrate blocking and other skills of the game, he does attend practices.

17. MacDonald’s volunteer efforts, education and past employment indicate that he is not totally disabled. He can work on a part-time basis ten to fifteen hours a week if the employer provides flexible hours allowing plaintiff to rest, go home, or not come in to work depending on his degree of pain on a given day.

18. The Tobyhanna Army Depot provides such employment opportunities for the disabled.

19. MacDonald’s life expectancy from January 1, 1992 is 23.116 years.

20. MacDonald’s work-life expectancy from January 1, 1992 is 12.370 years.

21. As a result of the arterial surgery, MacDonald will endure great pain and suffering, both physical and mental, for the remainder of his life.

22. MacDonald was hired by the Postal Service on July 21, 1984 as a part-time letter-carrier.

23. He became a full-time employee on July 20, 1985, progressed to salary Step E at the time he was last employed in March of 1986, and would have progressed through the salary steps had he continued his employment with the Postal Service.

24. In 1986, MacDonald received earnings of $11,214 from the Postal Service.

25. When last employed by the Postal Service MacDonald was at salary level Step E and the court accepts the prediction of the government’s expert as to MacDonald’s probable progression through the salary steps from 1986 through the remainder of his work-life expectancy, (see Appendix).

26. Overtime is assumed to be 6.92% of annual full-time earnings.

27. MacDonald’s lost wages, including overtime, from March 1986 to December 31, 1991 are $166,410.

Year Earnings

1986 24,146

1987 25,398

1988 26,692

1989 28,278

1990 30,197

1991 31,417

Total base salary 166,128

Plus overtime (6.92%) 11,496

Total earnings 177,624

Less 1986 postal income (11,214)

Total lost wages 166,410

[323]*32328.

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MacDonald v. United States, 781 F. Supp. 320, 1991 U.S. Dist. LEXIS 18658, 1991 WL 277766 (M.D. Pa. 1991).

781 F. Supp. 320 (MacDonald v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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