505(i) allows experimentation on humans with non-FDA-approved drugs only with the consent of those to whom the drugs are administered. The duty to insure that there will be no experimentation without consent falls upon both the drug manufacturer and the sponsor of the experiment. This section was intended to protect patients from involuntary experimentation and creates a special duty of care. According to medical testimony this special duty to refrain from involuntary experimentation has been accepted nationwide by the medical profession. In this instance the duty was violated by the Medical Center and its personnel, and the United States is liable for the resulting injury.
The Court must make an award to Mrs. Blanton for her physical difficulties and related distress caused by the failure of hospital personnel to exercise due care. Espinosa v. Beverly Hospital, 114 Cal.App.2d 232, 249 P.2d 843 (1953); Petition of the United States, 418 F.2d 264 (1st Cir. 1969).
Mrs. Blanton is 32 years old. Since the United States had no physical examination made, her statements that she has muscle pains two or three times a week, nausea once or twice a month, frequent indigestion, difficulty sleeping every night, and menstrual irregularity must be accepted. Mrs. Blanton attributes these problems to the incident. While there is no medical testimony supporting this belief, her anger, nervousness and depression are genuine and the physical symptoms she suffers are in common experience related to these emotional reactions. There is no contrary evidence.
The record discloses that in 1976 Mrs. Blanton was forced to abort an unplanned pregnancy due to complications caused by a misplaced intrauterine device. This traumatic experience, in no way related to the Medical Center's negligence, is probably responsible for some of plaintiff's symptoms. In addition, her nervousness and related symptoms are diminishing. Thus, damages due must be discounted accordingly.
As plaintiffs concede, Mr. Blanton has suffered no adverse physical effects. Since negligently caused emotional disturbance alone is not sufficient to create a cause of action, Mr. Blanton's claim for damages must be dismissed. See Petition of the United States, supra, and cases cited therein. In addition, the malpractice complained of is not the proximate cause of Mr. Blanton's increased medical expenses resulting from the family's decision not to make further use of Government hospitals. Plaintiffs' decision to avoid Government medical facilities creates a different kind of harm than would otherwise result from malpractice and is a superseding cause of the financial injury. Restatement of Torts 2d §§ 440-442.
The Court finds that Mrs. Blanton must be compensated by $15,000 for her injuries. No special medical expenses have been adequately proven. As to Mr. Blanton, judgment is for the defendant. Plaintiffs shall be awarded costs. The Clerk of Court to enter judgment accordingly.
The foregoing constitutes the Court's findings of fact and conclusions of law.
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