Betesh v. United States

• Decision Date: 19 August 1974
• Docket Number: Civ. A. No. 1022-66.
• Parties: Judith Karen BETESH, Individually and as Administratrix of the Estate of Stanley Leon Betesh, Deceased, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Columbia

400 F. Supp. 238

Judith Karen BETESH, Individually and as Administratrix of the Estate of Stanley Leon Betesh, Deceased, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. 1022-66.

United States District Court, District of Columbia.

August 19, 1974.

COPYRIGHT MATERIAL OMITTED

Jules Fink and Isadore B. Katz, Washington, D. C., for plaintiffs.

Eric Marcy and Peter Schaumber, Asst. U. S. Attys., for the District of Columbia, Washington, D. C., for defendant.

MEMORANDUM OPINION

BRYANT, District Judge.

This is an action for malpractice brought against the United States by the widow-executrix and parents of the decedent, Stanley Leon Betesh, under the Maryland survival statute, Md.Code, Art. 75, § 15B, and Md.Code, Art. 93, § 7-401(n) (1957), and the Maryland wrongful death statute, Md.Code, Art. 67, § 1 et seq.¹ Jurisdiction is vested in this court by the Federal Tort Claims Act, 28 U.S.C. § 1346(b).²

On April 22, 1964, Stanley Leon Betesh, then 20 years old, reported as ordered to the Armed Forces Examination Station (AFES) at Fort Holabird, Maryland, for a pre-induction physical examination. Mr. Betesh took with him a note from an orthopedic surgeon stating that Mr. Betesh had a knee injury and should not engage in vigorous athletics or similar activities.

As part of the pre-induction physical, a 70mm x-ray was taken of Mr. Betesh's chest. A radiologist under contract with the Selective Service System read this x-ray, judged it to be abnormal, and ordered that an enlargement be made. The next day a second radiologist under contract with the Selective Service System read the enlarged x-ray. This doctor, also, observed that it was abnormal and prepared a report which stated —

The left hilum is slightly enlarged as to the upper mediastinum. This may be of no significance, but it is not possible to rule out sarcoid, tuberculosis adeniter, or lymphoma.

This report was never shown to Mr. Betesh, nor was he otherwise informed of his abnormal x-ray. Before Mr. Betesh left Fort Holabird on April 22, he was interviewed by Dr. Vernon M. Gelhaus, a physician under contract with the Selective Service System, who discussed test results with him. The x-ray results were not available at the time of this interview. Dr. Gelhaus testified that he did not tell Mr. Betesh that he was acceptable for induction despite his knee problem.

Because of his abnormal x-ray, Mr. Betesh was rejected. A Statement of Acceptability (DD Form 62 — Registrant's Copy) was sent to him by the Fort Holabird AFES Administrative Section notifying him of his rejection, but not revealing the explanation for it. In accordance with the standard practice of the Selective Service System, the "remarks" section of the form had been deliberately blotted out on the Registrant's Copy. On the Local Board Copy, sent to Mr. Betesh's local draft board but not to him, the remarks section is unobscured and reads —

Remarks (These to be directed to Local Board only) Physically disqualified—Abnormal x-ray. Re-examination believed justified in 3 months.

Unable to read the obscured section, Mr. Betesh believed that his rejection was due to his knee problem.

In early October, Mr. Betesh was ordered to report once more to Fort Holabird. Dr. David R. Boyd, of the AFES, testified that Mr. Betesh was summoned to Fort Holabird to see whether his condition has progressed and to advise him accordingly, rather than to determine his eligibility for induction into the Army.

On October 26, Mr. Betesh reported to Fort Holabird. While waiting there with his medical file, he saw a written reference to the abnormal x-ray, learning of it for the first time. The next day he went to his family doctor, who immediately referred him to a diagnostic radiologist. On October 28 he entered Holy Cross Hospital for a biopsy and other diagnostic testing. On October 29 his condition was diagnosed as Hodgkins disease (cancer of the lymph glands) of the nodular sclerosing type, and he was referred to a therapeutic radiologist for deep x-ray therapy. Treatment was begun November 5, about one week after Mr. Betesh learned of his abnormal x-ray.

When the Selective Service System physicians first observed Mr. Betesh's chest x-ray in April 1964, the abnormal mass was relatively small; by October 1964, the mass had grown more than 6-fold and covered an area that extended to the left chest wall. The delay from April to October in seeking treatment was of critical importance. Tumor size and number of bodily areas affected are major factors in the treatment of Hodgkins disease. There is a 95-99% success rate for nodular sclerosing Hodgkins disease if treatment is begun in a stage as early as Mr. Betesh's disease appeared to be in April 1964.³ By late October, however, his disease had progressed to such an extent that cure was not possible. Testimony was unanimous that good medical practice requires that a doctor warn a person with an x-ray such as Mr. Betesh's April x-ray of its potential significance, and that six months is too long to wait before giving such a warning. One doctor felt that a physician, upon seeing such an x-ray, should advise his patient to seek further medical evaluation "yesterday."⁴

The promptness with which Mr. Betesh sought treatment when he was finally told of his condition leads the court to conclude that he would have acted just as promptly six months earlier, if the government had told him at that time of his abnormal x-ray. Had Mr. Betesh been treated in late April or early May 1964, he would have had a normal life expectancy.⁵

From November 5, 1964, to February 15, 1965, Mr. Betesh received 50 treatments of deep x-ray therapy at the Washington Hospital Center, a standard and appropriate course of therapy for this disease at this stage. From March 1965 to June 1965, Mr. Betesh's disease was in remission. Thereafter, he began to experience pain in the left anterior rib margin area. He was referred by one of his physicians to the National Institutes of Health (NIH) in January 1966 and was treated radiologically and chemically there from January 17, 1966, until his death.

During the time he was being treated at NIH, Mr. Betesh was able to lead a normal life in certain respects. He married plaintiff Judith (Betesh) Sher in August 1967. While there is evidence on both sides, we find that Judith (Betesh) Sher was unaware of the seriousness of Mr. Betesh's disease prior to their marriage. He also worked, when physically able to do so, for his father. With increasing frequency throughout this period, however, Mr. Betesh suffered pain and weakness, severe nausea and vomiting from treatment of his disease, and severe mental suffering and anguish.

When he died, Mr. Betesh was 26 years old. Had he been healthy, his life expectancy would have been an additional 45.5 years. He was a high school dropout, 1½ credits short of graduation. On the basis of a projected retirement age of 62, Mr. Betesh's future working life would have been 35.5 years.

In order to recover in this negligence action, plaintiffs must show that a duty was owed to decedent by the United States, that the duty was breached, and that breach of this duty was the proximate cause of the injuries sustained.⁶ Walter Brooks Bradley, Inc. v. N. H. Yates & Co., 218 Md. 263, 268, 146 A.2d 433, 436 (1958).

Defendant does not dispute that it owed Mr. Betesh a duty of care. The Government insists that its duty was limited to the hiring of qualified personnel and their non-negligent performance of the examination; plaintiffs argue that the duty extended to warning Mr. Betesh of known dangers to his health. The Government's liability hinges, therefore, on whether the duty its physicians owed Mr. Betesh required that they tell him of his abnormal x-ray. If such a standard of care is established, the facts clearly indicate that it was breached and that the breach led proximately to Mr. Betesh's death.

Plaintiffs maintain that the Government's duty to inform Mr. Betesh arises both from the Government's own regulations and from the common law. Each theory of recovery is discussed below.

Federal Regulations as a basis for the standard of care

Under Maryland law, a Federal regulation presumptively establishes a standard of care, if the regulation was designed to protect a class of persons that includes the plaintiff against the kind of injury that proximately occurred from its violation. As a corollary, violation of such a regulation establishes a presumption of breach of duty. New Amsterdam Casualty Co. v. Novick Transfer Co., 274 F.2d 916 (4th Cir. 1960); cf., Aravanis v. Eisenberg, 237 Md. 242, 206 A.2d 148 (1965); Alston v. Forsythe, 226 Md. 121, 172 A.2d 474 (1961); State v. Hecht Co., 165 Md. 415, 169 A. 311 (1933); State v. Longeley, 161 Md. 563, 158 A. 6 (1932).

Since at least 1940, Federal regulations have directed Selective Service examining physicians to advise rejected examinees who need medical attention to seek advice from a doctor.⁷ The regulation in effect at the time relevant to this case was Army Regulation 601-270, Par. 64f, Change 5, Sept. 12, 1962 (referred to hereinafter as "Paragraph 64f" or "the regulation"), which provided as follows:

Rejected examinees in need of medical attention. Applicants for enlistment and registrants who are considered to be medically unfit for military service and who have been determined to have a condition requiring medical attention will be advised by the medical examiner to seek advice from a physician. An entry will be made in item 75, Standard Form 88, reflecting the fact that notification was made . . .

Defendant asserts that failure to follow the procedure set out in Paragraph 64f cannot be used to establish a presumption of breach of a standard of care because (1) the regulation does not apply to private individuals, (2) it was not promulgated to benefit a class that included Mr. Betesh, (3) it is directory, not mandatory, and (4) it applies only...