Winfred Dan Vallance v. United States

Fifth Circuit

Winfred Dan Vallance v. United States

574 F.2d 1282, 1978 U.S. App. LEXIS 10742

CourtCourt of Appeals for the Fifth Circuit

DecidedJune 13, 1978

Docket78-1051

StatusPublished

Cited by10 cases

This text of 574 F.2d 1282 (Winfred Dan Vallance v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Winfred Dan Vallance v. United States, 574 F.2d 1282, 1978 U.S. App. LEXIS 10742 (5th Cir. 1978).

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Opinion

PER CURIAM:

The plaintiff, Winfred Dan Vallanee, appeals the district court’s dismissal of his Federal Tort Claims Act [F.T.C.A.] 1 suit for failure to state a claim upon which relief can be granted. We affirm.

In April 1974, while serving in active duty as a United States naval officer, Val-lance entered the Navy Regional Medical Center in Oakland, California, for diagnosis of head pains. United States Navy personnel performed an arteriogram, the results of which they termed normal. In August 1976, Vallanee returned to the hospital with increased pain. Hospital personnel discovered and removed a large tumor. Allegedly, the April test results showed the tumor, but the results had been misread. Vallanee charged that hospital personnel discovered the mistake after he left in April, but did not notify him. Vallanee contends that the delay in treatment increased the degree of permanent damage he suffered.

In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Su *1283 preme Court interpreted the F.T.C.A. to exclude liability for injuries to servicemen “where the injuries arise out of or are in the course of activity incident to service.” 340 U.S. at 146, 71 S.Ct. at 159, 95 L.Ed. at 161. Vallance argues that in seeking medical treatment at the Navy hospital he was engaged in “business of his own person,” such that the injuries he sustained through alleged medical malpractice did not arise in the course of activity incident to service.

In Shults v. United States, 421 F.2d 170 (5th Cir. 1969), a case presenting a factual situation similar to that in the case at bar, we stated:

it is obvious that the injured man could not have been admitted, and would not have been admitted, to the Naval Hospital except for his military status. He was there treated by Naval medical personnel solely because of that status. It inescapably follows that whatever happened to him in that hospital and during the course of that treatment had to be “in the course of activity incident to service!;.]”

421 F.2d at 171-172. [Citation omitted.] Under Shults, Vallance engaged in activity incident to service in being treated at the Navy hospital while on active duty; therefore, he cannot maintain an action under the F.T.C.A. The order dismissing Val-lanee’s complaint for failure to state a claim upon which relief can be granted is

AFFIRMED.

1

. 28 U.S.C.A. § 1346 et seq. (1976).

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PER CURIAM:

The plaintiff, Winfred Dan Vallanee, appeals the district court’s dismissal of his Federal Tort Claims Act [F.T.C.A.] 1 suit for failure to state a claim upon which relief can be granted. We affirm.

In April 1974, while serving in active duty as a United States naval officer, Val-lance entered the Navy Regional Medical Center in Oakland, California, for diagnosis of head pains. United States Navy personnel performed an arteriogram, the results of which they termed normal. In August 1976, Vallanee returned to the hospital with increased pain. Hospital personnel discovered and removed a large tumor. Allegedly, the April test results showed the tumor, but the results had been misread. Vallanee charged that hospital personnel discovered the mistake after he left in April, but did not notify him. Vallanee contends that the delay in treatment increased the degree of permanent damage he suffered.

In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Su *1283 preme Court interpreted the F.T.C.A. to exclude liability for injuries to servicemen “where the injuries arise out of or are in the course of activity incident to service.” 340 U.S. at 146, 71 S.Ct. at 159, 95 L.Ed. at 161. Vallance argues that in seeking medical treatment at the Navy hospital he was engaged in “business of his own person,” such that the injuries he sustained through alleged medical malpractice did not arise in the course of activity incident to service.

In Shults v. United States, 421 F.2d 170 (5th Cir. 1969), a case presenting a factual situation similar to that in the case at bar, we stated:

it is obvious that the injured man could not have been admitted, and would not have been admitted, to the Naval Hospital except for his military status. He was there treated by Naval medical personnel solely because of that status. It inescapably follows that whatever happened to him in that hospital and during the course of that treatment had to be “in the course of activity incident to service!;.]”

421 F.2d at 171-172. [Citation omitted.] Under Shults, Vallance engaged in activity incident to service in being treated at the Navy hospital while on active duty; therefore, he cannot maintain an action under the F.T.C.A. The order dismissing Val-lanee’s complaint for failure to state a claim upon which relief can be granted is

AFFIRMED.

1

. 28 U.S.C.A. § 1346 et seq. (1976).

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574 F.2d 1282, 1978 U.S. App. LEXIS 10742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winfred-dan-vallance-v-united-states-ca5-1978.

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