A-33596, OCTOBER 15, 1930, 10 COMP. GEN. 172

A-33596: Oct 15, 1930

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ARMY - CONTRACT SURGEONS - SUBSTITUTES WHERE THE GOVERNMENT IS REQUIRED. THE COST THEREOF WILL BE DEDUCTED FROM THE PAY OF THE CONTRACT SURGEON. 1930: RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF SEPTEMBER 12. REQUESTING TO BE ADVISED AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED HEREWITH IN FAVOR OF DR. ARE REASONABLE AND IN ACCORDANCE WITH LOCAL SCHEDULE OF CHARGES FOR THE MEDICAL SERVICES RENDERED. BETWEEN THE SURGEON GENERAL OF THE ARMY AND DOCTOR FRY IS AS FOLLOWS: THIS CONTRACT. IT IS MUTUALLY AGREED AND UNDERSTOOD THAT THIS CONTRACT SHALL CONTINUE AT LEAST ONE MONTH. IT IS FURTHERMORE AGREED AND UNDERSTOOD. IMMEDIATELY UPON DISCOVERY OF THE DEATH AN ATTEMPT WAS MADE TO LOCATE CONTRACT SURGEON FRY.

A-33596, OCTOBER 15, 1930, 10 COMP. GEN. 172

ARMY - CONTRACT SURGEONS - SUBSTITUTES WHERE THE GOVERNMENT IS REQUIRED, DUE TO THE ABSENCE OF A CONTRACT SURGEON, TO EMPLOY A SUBSTITUTE SURGEON TO RENDER MEDICAL ATTENDANCE REQUIRED OF THE CONTRACT SURGEON UNDER THE TERMS OF THE CONTRACT, THE COST THEREOF WILL BE DEDUCTED FROM THE PAY OF THE CONTRACT SURGEON.

COMPTROLLER GENERAL MCCARL TO CAPT. S. P. MEEK, UNITED STATES ARMY, OCTOBER 15, 1930:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF SEPTEMBER 12, 1930, REQUESTING TO BE ADVISED AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED HEREWITH IN FAVOR OF DR. PHILIP B. FRY, IN THE SUM OF $33, COVERING AMOUNT DEDUCTED FROM HIS PAY AS CONTRACT SURGEON FOR THE MONTH OF JUNE, 1930, BECAUSE OF ABSENCE FROM HIS POST OF DUTY, BENICIA, CALIF. (HAVING GONE TO SAN FRANCISCO SOME 40 MILES AWAY TO ATTEND A PRIVATE CASE AND COULD NOT BE LOCATED), WHICH NECESSITATED THE COMMANDING OFFICER TO PROCURE THE SERVICES OF TWO SUBSTITUTE SURGEONS TO RENDER SERVICES REQUIRED OF CLAIMANT UNDER THE TERMS OF HIS CONTRACT OF EMPLOYMENT. THE CLAIMANT CONCEDES THAT THE TWO BILLS OF THE SUBSTITUTE SURGEONS, AMOUNTING TO $33, ARE REASONABLE AND IN ACCORDANCE WITH LOCAL SCHEDULE OF CHARGES FOR THE MEDICAL SERVICES RENDERED, BUT PROTESTS THE DEDUCTION OF SAID AMOUNT FROM HIS PAY, BASING HIS OBJECTION UPON THE CONTENTION THAT SUCH A PROCEDURE WOULD BE UNJUST, CITING A HYPOTHETICAL CASE AS FOLLOWS: IF, WHILE ABSENT FROM HIS POST ATTENDING A PROFESSIONAL CALL, AN EMERGENCY SHOULD ARISE SUCH AS MIGHT BE CAUSED BY AN EXPLOSION OF A MAGAZINE, REQUIRING A NUMBER OF PHYSICIANS TO BE CALLED IN FOR SERVICE, THE DEDUCTION MIGHT BE AS MUCH AS HE WOULD EARN IN A YEAR. HECITES THE PROVISIONS OF PARAGRAPH 3, A.R. 40-505 AS AUTHORITY FOR PAYING HIS CLAIM.

SECTION 18 OF THE ACT OF FEBRUARY 2, 1901, 31 STAT. 752, PROVIDES:

* * * THAT IN EMERGENCIES THE SURGEON GENERAL OF THE ARMY, WITH THE APPROVAL OF THE SECRETARY OF WAR, MAY APPOINT AS MANY CONTRACT SURGEONS AS MAY BE NECESSARY, AT A COMPENSATION NOT TO EXCEED ONE HUNDRED AND FIFTY DOLLARS PER MONTH. * * *

THE CONTRACT OF DECEMBER 1, 1927, BETWEEN THE SURGEON GENERAL OF THE ARMY AND DOCTOR FRY IS AS FOLLOWS:

THIS CONTRACT, ENTERED INTO THIS 1ST DAY OF DECEMBER, 1927, AT BENICIA ARSENAL, IN THE STATE OF CALIFORNIA, BETWEEN THE SURGEON GENERAL OF THE UNITED STATES ARMY, AND DR. PHILIP B. FRY OF BENICIA, IN THE STATE OF CALIFORNIA, WITNESSETH: THAT FOR THE CONSIDERATION HEREINAFTER MENTIONED THE SAID DR. PHILIP B. FRY PROMISES AND AGREES TO MAKE SUCH SANITARY INSPECTIONS, TO MAKE SUCH PHYSICAL EXAMINATIONS OF MILITARY PERSONNEL AND TO RENDER SUCH MEDICAL ATTENTION TO MILITARY PERSONNEL AND THEIR FAMILIES, ALL AT BENICIA ARSENAL, AS MAY BE REQUIRED AGREEABLY TO ARMY REGULATIONS; AND THE SAID SURGEON GENERAL, U.S. ARMY, PROMISES AND AGREES, ON BEHALF OF THE UNITED STATES, TO PAY, OR CAUSE TO BE PAID, TO THE SAID DR. PHILIP B. FRY THE SUM OF ONE HUNDRED AND FIFTY ($150.00) DOLLARS A MONTH DURING THE CONTINUANCE OF THIS CONTRACT, WHICH SHALL BE HIS FULL COMPENSATION, AND IN LIEU OF ALL ALLOWANCES AND EMOLUMENTS, ANY PROVISIONS OF ARMY REGULATIONS TO THE CONTRARY NOTWITHSTANDING. IT IS MUTUALLY AGREED AND UNDERSTOOD THAT THIS CONTRACT SHALL CONTINUE AT LEAST ONE MONTH, IF NOT SOONER DETERMINED BY THE SURGEON GENERAL OF THE ARMY.

IT IS FURTHERMORE AGREED AND UNDERSTOOD, IN CONFORMITY TO THE REQUIREMENTS OF SECTION 3741 OF THE REVISED STATUTES, THAT NO MEMBER OF OR DELEGATE TO CONGRESS SHALL BE ADMITTED TO ANY SHARE OR PART IN THIS CONTRACT, OR TO ANY BENEFIT TO ARISE THEREFROM.

WITNESSES: PRINCIPALS:

ANNA E. CAREY, AS TO M. W. IRELAND, THE SURGEON GENERAL.

CLERK, S.G.O. BY CHAS A. FOSTER, U.S. ARMY.

E. A. STONER, AS TO PHILIP B. FRY, M.D.

IN YOUR LETTER OF TRANSMITTAL YOU STATE:

3. ON JUNE 24, 1930, PRIVATE FIRST CLASS JOHN WILLOWING, 80TH ORDNANCE COMPANY COMMITTED SUICIDE BY SHOOTING HIMSELF IN THE HEAD WITH A RIFLE. IMMEDIATELY UPON DISCOVERY OF THE DEATH AN ATTEMPT WAS MADE TO LOCATE CONTRACT SURGEON FRY. HIS OFFICE REPORTED THAT HE WAS IN SAN FRANCISCO FOR THE DAY ATTENDING AN OPERATION IN A HOSPITAL. SINCE HE WAS NOT AVAILABLE AN ATTEMPT WAS MADE TO SECURE A CIVILIAN PHYSICIAN FROM BENICIA, NAMELY, DR. N. J. CRISP. HE COULD NOT BE LOCATED. AS A RESULT, IN COMPLIANCE WITH PAR. 22, A.R. 600-550 AND PAR. 3, A.R. 40-505 THE NEAREST AVAILABLE PHYSICIAN, DR. EDWARD F. MULLALY OF VALLEJO, CALIFORNIA, WAS CALLED.

4. DR. MULLALY ATTENDED PRIVATE WILLOWING, SIGNED THE DEATH CERTIFICATE, APPEARED AS A WITNESS BEFORE THE SUMMARY COURT INQUEST AND PERFORMED THE OTHER DUTIES WHICH WOULD REGULARLY HAVE BEEN PERFORMED BY THE POST SURGEON. DR. MULLALY REQUESTED A CONSULTATION AND DR. N. J. CRISP WHO WAS THEN AVAILABLE WAS CALLED ABOUT 9 A.M. CONTRACT SURGEON FRY DID NOT RETURN TO BENICIA UNTIL THE AFTERNOON OF JUNE 24TH. DR. EDWARD F. MULLALY HAS RENDERED A BILL FOR $30.00 AND DR. CRISP FOR $3.00.

IN ACCORDANCE WITH THE DECISION OF THIS OFFICE OF FEBRUARY 15, 1924, 3 COMP. GEN. 523, THE CLAIMANT'S CONTRACT IS SPECIAL, AND HIS DUTIES FALL WITHIN THE PROVISIONS OF PARAGRAPH 54 OF THE MANUAL OF THE MEDICAL DEPARTMENT, 1916, AS FOLLOWS:

SPECIAL CONTRACTS ARE FOR LOCAL SERVICE ONLY, AT STATIONS THEREIN DESIGNATED, AS FOR EXAMPLE, AT ARSENALS, WHERE THE AMOUNT OF SERVICE CALLED FOR IS NOT USUALLY SUFFICIENT TO WARRANT THE ASSIGNMENT THERETO OF A MEDICAL OFFICER. NO TRAVEL UNDER SUCH CONTRACTS IS REQUIRED. THE PHYSICIAN CONTRACTED WITH IS NEITHER EXPECTED TO TAKE STATION AT THE POST NOR TO GIVE UP HIS PRIVATE PRACTICE, EXCEPT IN SO FAR AS HE HAS TO DO SO IN ORDER TO CARRY OUT HIS PUBLIC DUTIES. HE IS NOT FURNISHED QUARTERS OR OTHER ALLOWANCES, AND HIS PAY PROPER CONSTITUTES HIS ENTIRE COMPENSATION.

(A) SPECIAL CONTRACTS MAY BE MADE WITH ANY GRADUATE OF A REPUTABLE MEDICAL SCHOOL, LEGALLY AUTHORIZED TO CONFER THE DEGREE OF DOCTOR OF MEDICINE, WHO IS A CITIZEN OF THE UNITED STATES AND HAS QUALIFIED TO PRACTICE MEDICINE IN THE STATE OR TERRITORY IN WHICH HE RESIDES. APPROPRIATE EVIDENCE THAT HE IS A CITIZEN OF THE UNITED STATES, AND THAT HE HAS QUALIFIED TO PRACTICE AS ABOVE, SHOULD BE REQUIRED BEFORE THE CONTRACT WITH HIM IS EXECUTED.

THE SPECIAL CONTRACT WITH DOCTOR FRY IS FOR PERSONAL SERVICE, REQUIRING MEDICAL ATTENTION TO THE OFFICERS, ENLISTED MEN, AND CIVILIANS ENTITLED THERETO, ON DUTY AT BENICIA ARSENAL, WHENEVER HIS SERVICES ARE REQUIRED. SEE 13 C.J. 674. OBVIOUSLY, THE CONTRACT SURGEON'S PRIVATE PRACTICE MAY NOT INTERFERE WITH THE DUTIES REQUIRED UNDER THE CONTRACT AND WHERE THERE IS CONFLICT, THE CONTRACT SURGEON MUST SUBORDINATE HIS PRIVATE PRACTICE TO THE REQUIREMENTS OF HIS CONTRACT WITH THE UNITED STATES. IT IS NOT UNDERSTOOD HOW IT COULD BE SERIOUSLY ARGUED THAT ANY CONCLUSION WOULD BE JUSTIFIED WHICH WOULD PERMIT THE CONTRACT SURGEON TO SUBORDINATE HIS CONTRACT PRACTICE TO HIS PRIVATE PRACTICE AND IMPOSE ON THE UNITED STATES THE OBLIGATION TO PAY BOTH THE CONTRACT COMPENSATION AND SPECIAL FEES FOR SERVICES WHICH THE CONTRACT REQUIRES TO BE RENDERED FOR THE COMPENSATION STIPULATED THEREIN. SUCH AN ARGUMENT IS SO DEVOID NOT ONLY OF LEGAL BUT OF EQUITABLE PRINCIPLES TO SUSTAIN IT AS TO MERIT NO SERIOUS CONSIDERATION.

THIS OFFICE IS ADVISED THAT IT HAS BEEN, AND IS, THE UNIFORM PRACTICE OF THE SURGEON GENERAL TO EXCUSE CONTRACT SURGEONS SERVING UNDER PART-TIME CONTRACTS FROM PERSONAL PERFORMANCE OF THE SERVICES REQUIRED BY THEIR CONTRACTS, WHEN SICK OR OTHERWISE INCAPACITATED, PROVIDED ARRANGEMENTS FOR MEDICAL ATTENDANCE, SATISFACTORY TO THE COMMANDING OFFICER OF THE POST ARE MADE. THERE IS NO EVIDENCE OF SUCH AN ARRANGEMENT HAVING BEEN MADE IN THIS INSTANCE--- NOT EVEN SPECIAL AUTHORITY TO LEAVE HIS POST OF DUTY THE DAY THE EXPENSE IN QUESTION WAS INCURRED.

IN A SIMILAR QUESTION CONSIDERED BY THIS OFFICE IT WAS HELD UNDER DATE OF APRIL 12, 1930, 9 COMP. GEN. 450, THAT---

* * * THE INTENT OF THE CONTRACT IS THAT THE PHYSICIAN SHALL BE AVAILABLE AT ALL TIMES, BUT IT IS, OF COURSE, TO BE RECOGNIZED THAT A CALL FOR THE PHYSICIAN MAY ARISE AT A TIME WHEN HE MAY NOT BE PERSONALLY AVAILABLE, AND I WOULD SUGGEST THAT SUCH A CONTINGENCY SHOULD BE SPECIFICALLY CONTRACTED FOR AND NOT LEFT TO THE PHYSICIAN TO SUBSTITUTE WHOMEVER HE MAY WISH. THE VERY PURPOSE OF CONTRACTING TO HAVE A PHYSICIAN AVAILABLE WOULD BE NULLIFIED IF THE CONTRACTING PHYSICIAN MAY PRACTICALLY AT WILL SUBSTITUTE ANOTHER. IT WOULD SEEM MORE PROPER THAT THERE BE EITHER NAMED IN THE CONTRACT OR OTHERWISE MADE KNOWN TO THE CONTRACTING OFFICER A LIST OF AVAILABLE PHYSICIANS UPON WHOM CALL MAY BE MADE IN THE EVENT OF THE NONAVAILABILITY OF THE CONTRACTING PHYSICIAN. HAVING REGARD TO THE FACT THAT THE CONTRACT SEEKS TO HAVE THE PHYSICIAN AVAILABLE AT ALL TIMES, IT IS NOT PROPER TO PERMIT A SUBSTITUTION, BUT RATHER, IN THE EVENT OF THE NONAVAILABILITY OF THE CONTRACTING PHYSICIAN--- FOR PROPER CAUSES SHOWN BY FACTS--- THEN THE CONTRACTING OFFICER SHOULD MAKE THE CALL FOR A PHYSICIAN FROM SUCH AVAILABLE LIST AND PAYMENT FOR THE SERVICES BE MADE THEREFOR DIRECT TO THE PHYSICIAN SO CALLED, THE AMOUNT TO BE DEDUCTED FROM THE AMOUNT OTHERWISE EARNED AND DUE THE CONTRACTING PHYSICIAN. * * *

BASED UPON THE FACTS PRESENTED, YOU ARE WITHOUT AUTHORITY TO PAY THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE IN ACCORDANCE WITH THE PROCEDURE.

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