A-90308, MARCH 9, 1938, 17 COMP. GEN. 720

A-90308: Mar 9, 1938

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1928 THE FURNISHING OF BLOOD FOR TRANSFUSION TO A PATIENT OF A VETERANS' ADMINISTRATION FACILITY BY A SALARIED CIVILIAN EMPLOYEE OF THE FEDERAL GOVERNMENT WITH FULL KNOWLEDGE THAT UNDER THE LAW AND REGULATIONS OF THE VETERANS' ADMINISTRATION SHE WAS NOT ENTITLED TO PAYMENT THEREFOR. IS AS FOLLOWS: REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 9. WHICH VOUCHER WAS SUBMITTED TO YOUR OFFICE. IT IS NOTED THAT UPON EXAMINATION OF THE RECORDS IN CONNECTION WITH THE SERVICES RENDERED IN THIS CASE. IT IS MY EARNEST HOPE THAT YOU MAY FIND IT TO BE NOT INCONSISTENT WITH ESTABLISHED POLICIES TO RECONSIDER THIS MATTER. WAS AUTHORIZED BY AN OFFICER OF THE VETERANS' ADMINISTRATION TO FURNISH BLOOD FOR TRANSFUSION IN THE CASE OF THE BENEFICIARY.

A-90308, MARCH 9, 1938, 17 COMP. GEN. 720

BLOOD TRANSFUSIONS - SALARIED CIVILIAN EMPLOYEE DONORS - REPORTING TO THE CONGRESS FOR PAYMENT UNDER ACT, APRIL 10, 1928 THE FURNISHING OF BLOOD FOR TRANSFUSION TO A PATIENT OF A VETERANS' ADMINISTRATION FACILITY BY A SALARIED CIVILIAN EMPLOYEE OF THE FEDERAL GOVERNMENT WITH FULL KNOWLEDGE THAT UNDER THE LAW AND REGULATIONS OF THE VETERANS' ADMINISTRATION SHE WAS NOT ENTITLED TO PAYMENT THEREFOR, DOES NOT INVOLVE A MATTER CONTAINING SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD JUSTIFY THE GENERAL ACCOUNTING OFFICE IN MAKING REPORT THEREOF TO THE CONGRESS UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413, WITH RECOMMENDATION THAT ADDITIONAL COMPENSATION BE PAID FOR THE SERVICES RENDERED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, MARCH 9, 1938:

YOUR LETTER OF JANUARY 22, 1938, IS AS FOLLOWS:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 9, 1937 (A-90308) RELATIVE TO A VOUCHER COVERING THE CLAIM OF MAE MCDOWELL IN THE AMOUNT OF $25.00 FOR SERVICES RENDERED ON JUNE 17, 1937, IN SUBMITTING TO A BLOOD TRANSFUSION OPERATION FOR THE BENEFIT OF LAWRENCE HANSEN, C 1,558,353, VETERANS' ADMINISTRATION FACILITY, WADSWORTH, KANSAS, WHICH VOUCHER WAS SUBMITTED TO YOUR OFFICE, ADMINISTRATIVELY APPROVED, WITH LETTER OF THIS ADMINISTRATION DATED JULY 30, 1937, REQUESTING THAT THE CLAIM BE REPORTED TO THE CONGRESS UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413.

IT IS NOTED THAT UPON EXAMINATION OF THE RECORDS IN CONNECTION WITH THE SERVICES RENDERED IN THIS CASE, YOU FIND THAT THE CLAIM DOES NOT CONTAIN SUCH ELEMENTS OF EQUITY AS TO JUSTIFY REPORT THEREOF TO THE CONGRESS UNDER THE ACT OF APRIL 10, 1928. IT IS MY EARNEST HOPE THAT YOU MAY FIND IT TO BE NOT INCONSISTENT WITH ESTABLISHED POLICIES TO RECONSIDER THIS MATTER.

WHILE THE PERTINENT FACTS CONCERNING THE CIRCUMSTANCES UNDER WHICH THE CLAIMANT, MAE MCDOWELL, A SALARIED CIVILIAN EMPLOYEE OF THE FEDERAL GOVERNMENT, WAS AUTHORIZED BY AN OFFICER OF THE VETERANS' ADMINISTRATION TO FURNISH BLOOD FOR TRANSFUSION IN THE CASE OF THE BENEFICIARY, LAWRENCE HANSEN, WERE ADEQUATELY SET FORTH IN PAPERS ACCOMPANYING MISS MCDOWELL'S CLAIM, IT MAY BE WELL TO BRIEFLY MENTION HERE CERTAIN ASPECTS OF THE GENERAL PROBLEM IN CONNECTION WITH THE PROCUREMENT OF SUITABLE BLOOD DONORS WHICH DISTINGUISH THIS PROBLEM FROM ORDINARY PROCUREMENT MATTERS, AND WHICH, IN MY OPINION, WARRANT THE SUBMISSION OF MISS MCDOWELL'S CLAIM AND OTHER CLAIMS WHICH MAY ARISE AS A RESULT OF USE OF FEDERAL EMPLOYEES' SERVICES AS DONORS IN EMERGENCY BLOOD TRANSFUSION CASES, TO THE CONGRESS WITH RECOMMENDATION THAT FUNDS BE APPROPRIATED FROM WHICH PAYMENT MAY BE MADE.

BLOOD TRANSFUSION HAS BECOME A WELL UNDERSTOOD AND FIRMLY ESTABLISHED ELEMENT IN THE PRACTICE OF MEDICAL SCIENCE AND HOSPITALS GENERALLY, COGNIZANT OF THE FREQUENT INCIDENCE OF CASES IN WHICH TRANSFUSION IS INDICATED, MAINTAIN LISTS OF BLOOD DONORS WHO MAY BE CALLED UPON TO FURNISH BLOOD OF THE VARIOUS TYPES REQUIRED. THE HOSPITALS OPERATED BY THE VETERANS' ADMINISTRATION ARE NO EXCEPTION TO THIS GENERAL RULE. ORDINARY CIRCUMSTANCES, IT IS POSSIBLE TO UTILIZE THE DONORS LISTED AS BEING AVAILABLE BUT IN SOME CASES, PARTICULARLY IN THE EXSANGUINATION INDUCED BY PROFUSE HEMORRHAGES, THE CIRCUMSTANCES MAY QUITE POSSIBLY BE SO EMERGENT THAT THE DELAY INCIDENT TO THE PROCUREMENT OF A SUITABLE BLOOD DONOR THROUGH THE USE OF THE LIST OF APPROVED DONORS WOULD SPELL THE DIFFERENCE BETWEEN LIFE AND DEATH. IN SUCH URGENT CIRCUMSTANCES THE INDICATION IS TO SELECT A DONOR OF THE SAME BLOOD GROUP OF THE PATIENT FROM STATION EMPLOYEES AND, IF NO EMPLOYEE WHO MAY LEGALLY BE PAID FOR SERVICES FROM THE APPROPRIATION CHARGEABLE WITH EXPENSES OF BLOOD TRANSFUSIONS IS AVAILABLE, THAT FACT MAY NOT ADMINISTRATIVELY BE PERMITTED TO INTERFERE WITH THE UTILIZATION OF THE SERVICES OF AN ACCEPTABLE EMPLOYEE AND, IN FACT, NO EMPLOYEE STATIONED AT HOSPITALS OPERATED BY THE VETERANS' ADMINISTRATION IS EVER URGED OR EXPECTED TO DECLINE TO ACT AS BLOOD DONOR MERELY BECAUSE PAYMENT FOR SERVICES CANNOT BE MADE FROM THE VETERANS' ADMINISTRATION APPROPRIATIONS. IT IS HIGHLY GRATIFYING TO ME PERSONALLY TO KNOW THAT, WHEN CALLED FOR IN EMERGENCIES, FEDERAL EMPLOYEES MAY BE FOUND WHO WILL VOLUNTEER THEIR SERVICES AS BLOOD DONORS FOR PATIENTS INVETERANS' ADMINISTRATION FACILITIES AND THUS MAKE A SUBSTANTIAL CONTRIBUTION TO THE PRESERVATION OF HUMAN LIFE, IN THE ABSENCE OF LEGAL PROVISION FOR MONETARY COMPENSATION. INSOFAR AS THOSE VETERANS' ADMINISTRATION PATIENTS WHO ARE THE BENEFICIARIES IN THESE EMERGENCY TRANSFUSION CASES ARE CONCERNED, I THINK THERE CAN BE NO QUESTION AS TO THEIR LEGAL ENTITLEMENT TO THE SERVICE AT GOVERNMENT EXPENSE. THIS BEING TRUE, I CANNOT DO OTHER THAN BELIEVE THAT THE CLAIM OF MISS MCDOWELL DOES CONTAIN SUCH ELEMENTS OF EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS WITHIN THE MEANING OF THE ACT OF APRIL 10, 1928, 45 STAT. 413.

I AM, THEREFORE, REQUESTING THAT YOUR DECISION OF DECEMBER 9, 1937, BE REVIEWED IN THE LIGHT OF THE FOREGOING AND THAT I BE INFORMED AS TO THE RESULT OF SUCH REVIEW AND WHETHER SIMILAR CLAIMS WHICH MAY ARISE IN THE FUTURE MAY PROPERLY BE REFERRED TO YOUR OFFICE FOR SUBMISSION TO THE CONGRESS UNDER THE CITED STATUTE.

WHILE REVIEW OF DISALLOWED CLAIMS SHOULD NOT BE ADMINISTRATIVELY REQUESTED EXCEPT IN THE INTEREST OF THE UNITED STATES, 5 COMP. GEN. 1058, 1059, IT APPEARS THAT THE PRIMARY PURPOSE OF YOUR REQUEST FOR REVIEW IN THIS CASE IS TO PRESENT THE GENERAL PROBLEM CONFRONTING THE VETERANS' ADMINISTRATION IN SECURING THE SERVICES OF SUITABLE BLOOD DONORS IN EMERGENCY BLOOD TRANSFUSION CASES AND TO OBTAIN INFORMATION WHETHER, IN VIEW OF THE SITUATION SET FORTH IN YOUR LETTER, SIMILAR CLAIMS ARISING IN THE FUTURE MAY PROPERLY BE REFERRED TO THIS OFFICE FOR CONSIDERATION UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413.

A CLEAR UNDERSTANDING OF THE QUESTION PRESENTED REQUIRES THAT REFERENCE BE MADE TO THE STATUTES AND TO THE DECISIONS OF THIS OFFICE CAUSING CLAIMS OF BLOOD DONORS TO BE REFERRED HERE FOR CONSIDERATION UNDER THE STATUTE CITED.

SECTION 1765, REVISED STATUTES, PROVIDES:

NO OFFICER IN ANY BRANCH OF THE PUBLIC SERVICE, OR ANY OTHER PERSON WHOSE SALARY, PAY, OR EMOLUMENTS ARE FIXED BY LAW OR REGULATIONS, SHALL RECEIVE ANY ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION, IN ANY FORM WHATEVER, FOR THE DISBURSEMENT OF PUBLIC MONEY, OR FOR ANY OTHER SERVICE OR DUTY WHATEVER, UNLESS THE SAME IS AUTHORIZED BY LAW, AND THE APPROPRIATION THEREFOR EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION.

IT WAS HELD IN DECISION OF FEBRUARY 24, 1926, 5 COMP. GEN. 658, AS STATED IN THE SYLLABUS:

A BLOOD TRANSFUSION OPERATION INVOLVES ON THE PART OF THE DONOR THE RENDERING OF A SERVICE RATHER THAN THE SALE OF A COMMODITY AND THE PAYMENT OF A FEE OR COMPENSATION THEREFOR TO AN ENLISTED MAN OF THE NAVY OR TO ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT WHOSE SALARY, PAY, OR EMOLUMENTS ARE FIXED BY LAW OR REGULATION IS PROHIBITED BY THE PROVISIONS OF SECTION 1765, REVISED STATUTES.

SEE, ALSO, 5 COMP. GEN. 888, AND A-2958, JUNE 5, 1924, 34 MS. COMP. GEN. 151.

SUBSEQUENTLY THERE WAS ENACTED THE ACT OF FEBRUARY 9, 1927, 44 STAT. 1066, WHICH PROVIDES:

THAT ANY PERSON IN THE MILITARY ESTABLISHMENT, OR WHO HAS BEEN A MEMBER OF THE MILITARY ESTABLISHMENT, WHO SHALL FURNISH BLOOD FROM HIS OR HER VEINS FOR TRANSFUSION TO THE VEINS OF A MEMBER OR FORMER MEMBER OF THE MILITARY ESTABLISHMENT WHO IS A PATIENT IN A GOVERNMENT HOSPITAL, SHALL BE ENTITLED TO BE PAID THEREFOR SUCH REASONABLE SUM, NOT TO EXCEED $50, AS MAY BE DETERMINED BY THE HEAD OF THE HOSPITAL CONCERNED, FROM PUBLIC FUNDS AVAILABLE FOR THE OPERATION OF SUCH HOSPITAL: PROVIDED, THAT EXPENDITURES HERETOFORE MADE TO PERSONS IN GOVERNMENT SERVICE FOR BLOOD FURNISHED FROM HIS OR HER VEINS FOR TRANSFUSION TO THE VEINS OF AN OFFICIAL PATIENT IN A GOVERNMENT HOSPITAL ARE HEREBY AUTHORIZED AND VALIDATED.

IT IS TO BE NOTED THAT BY THIS LEGISLATION CONGRESS DID NOT DECLARE THAT A BLOOD TRANSFUSION OPERATION DOES NOT INVOLVE ON THE PART OF THE DONOR A RENDERING OF SERVICE WITHIN THE MEANING OF SECTION 1765,REVISED STATUTES, BUT MERELY REMOVED THE PROHIBITION AGAINST THE PAYMENT OF EXTRA COMPENSATION IN A CERTAIN CLASS OF CASES BY EXPRESSLY AUTHORIZING PAYMENT TO ANY MEMBER OR FORMER MEMBER OF THE MILITARY ESTABLISHMENT WHO SHALL FURNISH BLOOD FROM HIS OR HER VEINS FOR TRANSFUSION TO THE VEINS OF A MEMBER OR FORMER MEMBER OF THE MILITARY ESTABLISHMENT.

IT APPEARS THAT PRIOR TO THE DECISION IN 5 COMP. GEN. 658, THE UNITED STATES VETERANS' BUREAU HAD BEEN MAKING PAYMENTS TO BLOOD DONORS WITHOUT REGARD TO SECTION 1765, REVISED STATUTES, AND THAT UPON RECEIPT OF NOTICE OF THIS DECISION SEVERAL CLAIMS THEN PENDING IN THE BUREAU WERE WITHHELD FROM PAYMENT. AFTER PASSAGE OF THE ACT OF FEBRUARY 9, 1927, SUPRA, THE DIRECTOR, UNITED STATES VETERANS' BUREAU, SUBMITTED TO THIS OFFICE FOR DECISION THE QUESTION AS TO THE PROPER CONSTRUCTION TO BE PLACED UPON THE VALIDATING PROVISO OF THE ACT OF FEBRUARY 9, 1927, WITH RESPECT NOT ONLY TO PAYMENTS THAT HAD ALREADY BEEN MADE IN CONTRAVENTION OF SECTION 1765, REVISED STATUTES, BUT WITH RESPECT, ALSO, TO CLAIMS STILL PENDING IN THE BUREAU. IN DISPOSING OF THE QUESTION THEREIN PRESENTED, THIS OFFICE ADVISED THE DIRECTOR IN DECISION OF AUGUST 9, 1928, A-23151, AS FOLLOWS:

IN THIS CONNECTION IT MIGHT BE MENTIONED, ALSO, THAT UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413, I AM AUTHORIZED TO REPORT TO THE CONGRESS ANY CLAIM OR DEMAND AGAINST THE UNITED STATES THAT CANNOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE AND WHICH CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO DESERVE CONSIDERATION BY THE CONGRESS. IF, THEREFORE, THERE SHOULD BE PRESENTED TO YOUR BUREAU ANY OF THESE BLOOD TRANSFUSION CLAIMS FOR WHICH NO RELIEF IS PROVIDED UNDER THE ACT OF FEBRUARY 9, 1927, AND WHICH CANNOT BE CONSIDERED AS COMING WITHIN THE EMERGENCY TREATMENT PROVISION, SUPRA, THEY SHOULD BE TRANSMITTED TO THIS OFFICE, WITH AN ADMINISTRATIVE REPORT AND RECOMMENDATION, FOR CONSIDERATION AS TO WHETHER THEY MAY BE REPORTED TO THE CONGRESS UNDER THE SAID ACT OF APRIL 10, 1928.

IN ACCORDANCE WITH THE ABOVE-QUOTED PARAGRAPH, THE VETERANS' ADMINISTRATION DURING THE PAST SEVERAL YEARS HAS REFERRED TO THIS OFFICE NUMEROUS CLAIMS OF BLOOD DONORS. IT IS APPARENT THAT UNDER THE ACT OF APRIL 10, 1928, I AM NOT AUTHORIZED TO REPORT TO THE CONGRESS ALL CLAIMS AGAINST THE UNITED STATES THAT CANNOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION BUT ONLY CLAIMS THAT CONTAIN ELEMENTS OF LEGAL LIABILITY OR ELEMENTS OF LEGAL EQUITY. ACCORDINGLY, IN DETERMINING WHETHER THE CLAIMS OF BLOOD DONORS REFERRED HERE BY THE VETERANS' ADMINISTRATION MAY PROPERLY BE REPORTED TO CONGRESS UNDER THE PROVISIONS OF THE ACT OF APRIL 10, 1928, CERTAIN DEFINITE PRINCIPLES OR RULES HAVE BEEN APPLIED. THESE ARE:

THERE IS NO ELEMENT OF LEGAL LIABILITY IN THESE CLAIMS SINCE PAYMENT FOR SUCH SERVICES WOULD BE IN DIRECT CONTRAVENTION OF SECTION 1765, REVISED STATUTES, AND NUMEROUS DECISIONS OF THIS OFFICE.

THERE IS NO ELEMENT OF EQUITY WITHIN THE MEANING OF THE ACT OF APRIL 10, 1928, WHERE THE CLAIMANT SUBMITTED TO THE TRANSFUSION WITH NOTICE, ACTUAL OR IMPLIED, THAT HE WAS NOT ENTITLED TO ANY ADDITIONAL COMPENSATION THEREFOR. SEE A-55835, SEPTEMBER 14, 1934; A-67700, APRIL 16, 1936; A- 66593, MAY 25, 1936, ALSO, CLAIM OF EMMY A. BORG FOR SUBMITTING ON SEPTEMBER 14, 1936, TO A BLOOD TRANSFUSION OPERATION FOR BENEFIT OF LLOYD M. BERRYMAN, C-792,735, VETERANS' ADMINISTRATION FACILITY, LINCOLN, NEBRASKA; AND CLAIM OF JOHN NADJADI FOR SUBMITTING ON OCTOBER 7, 1937, TO A BLOOD TRANSFUSION OPERATION FOR BENEFIT OF BEVERLY WEST, C-UNKNOWN, VETERANS' ADMINISTRATION FACILITY, BRONX, N.Y., FOR CLAIMS CONSIDERED NOT PROPERLY FOR REPORTING TO CONGRESS. COMPARE A-39001, NOVEMBER 3, 1931; A- 39347, NOVEMBER 21, 1931; AND A 86490, JULY 2, 1937, FOR CLAIMS REPORTED TO CONGRESS.

THE RECORD SHOWS THAT THE SERVICES OF MISS MCDOWELL FOR THE BLOOD TRANSFUSION OPERATION WERE OBTAINED WITH FULL KNOWLEDGE OF THE FACT THAT UNDER THE LAW AND THE REGULATIONS OF THE VETERANS' ADMINISTRATION SHE WAS NOT ENTITLED TO PAYMENT FOR THE SERVICES RENDERED. IN THE LIGHT OF WHAT HAS BEEN SAID, IT IS APPARENT THAT HER CLAIM IS NOT ONE CONTAINING SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD JUSTIFY THIS OFFICE IN REPORTING IT TO THE CONGRESS UNDER THE ACT OF APRIL 10, 1928, WITH THE RECOMMENDATION THAT IT BE PAID.

WHILE THIS OFFICE APPRECIATES THE PROBLEM CONFRONTING THE VETERANS' ADMINISTRATION IN OBTAINING THE SERVICES OF SUITABLE BLOOD DONORS AND GIVES CAREFUL CONSIDERATION TO ALL CLAIMS REFERRED HERE IN ACCORDANCE WITH A-23151, AUGUST 9, 1928, THE SITUATION GIVING RISE TO CLAIMS NOT COMING WITHIN THE PURVIEW OF THE ACT OF FEBRUARY 9, 1927, 44 STAT. 1066, IS ONE PRIMARILY FOR THE CONSIDERATION OF THE CONGRESS FOR CORRECTIVE LEGISLATION RATHER THAN FOR AN UNTENABLE LIBERAL CONSTRUCTION BY THIS OFFICE OF THE ACT OF APRIL 10, 1928. IN THIS CONNECTION, SEE ACT OF JUNE 22, 1936, 49 STAT. 1601, SPECIFICALLY AUTHORIZING PAYMENTS FOR BLOOD TRANSFUSIONS IN CASES OF ENROLLEES IN THE CIVILIAN CONSERVATION CORPS.