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613 F.2d 603

Docket No. 79-2134

McLean v. United States

Fifth Circuit Court of Appeals

Decided March 14, 1980.

Fifth Circuit Court of Appeals · decided 1980-03-14

Cited by 5 later decisions — most recently February 2005

3 federal appellate ·

2 counsel of record

Applies 28 U.S.C. § 2412

Relies on Braddock v. Seaboard Air Line Railroad Company · 58 So. 2d 869 - Miami Paper Co. v. Johnston · Seaboard Air Line Railroad Co. v. Braddock

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1980-03-14

View the full empirical analysis of this case →

¶1Summary Calendar.*

¶2Gillis E. Powell, Jr., Gillis E. Powell, Sr., Stanley Bruce Powell, Crestview, Fla., for plaintiffs-appellants.

¶3Thomas G. Banjanin, Asst. U. S. Atty., Pensacola, Fla., for defendant-appellee.

¶4Before GOLDBERG, RUBIN and POL-ITZ, Circuit Judges.

¶6PER CURIAM.

¶7On July 2, 1976, Eugene B. McLean, Sr. visited his treating physician, Dr. Joseph Davids, complaining of angina, extreme fatigue, and arrhythmia. Dr. Davids prescribed the drug pronestyl to control McLean’s arrhythmia, and McLean attempted to fill this prescription at the pharmacy at the United States Air Force Regional Hospital, Elgin Air Force Base, Florida. Unfortunately, due to the negligence of pharmacy employees, McLean instead received prostaphlin, an antibiotic.1 McLean was consequently without an anti-arrhythmia drug for twenty-six days, for the pharmacy’s error was not discovered until July 28, 1976. McLean brought this Federal Tort Claims Act action, alleging that the negligence of the pharmacy resulted in serious damage to his already ailing heart and that this damage eventually necessitated surgery.

¶8*604After a bench trial, the district court found against McLean and taxed costs against him. The court concluded that McLean had failed to establish that the lack of pronestyl had caused any damage to his heart. The trial court stated that “the evidencé shows that the lack of pronestyl did not damage the heart, alter the severity of the underlying disease, or influence the determination that surgery was necessary. Moreover, the evidence shows the arrhythmia brought on by the absence of pronestyl was relieved as soon as Mr. McLean was given the proper medication, and there is no correlation between the arrhythmia and the angina from which he continued to suffer during that time.” These findings are amply supported by the record and are not clearly erroneous.

¶9However, the district court erred in one respect in its conclusion that McLean is not entitled to any damages whatsoever. As shown by the quoted portion of the district court’s opinion, due to the lack of pronestyl, McLean suffered arrhythmia for a twenty-six day period. There is ample evidence in the record that McLean suffered both an unpleasant physical sensation and mental anguish from this continuing arrhythmia.2 Accordingly, the district court should have awarded McLean damages for pain and suffering and mental anguish caused by the arrhythmia that occurred during this twenty-six day period.3 We therefore remand the case for such an award.4

¶10AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

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