Brown v. United States
| Decision Date | 09 August 1968 |
| Docket Number | No. 66 C 385(2).,66 C 385(2). |
| Citation | 293 F. Supp. 13 |
| Parties | Georgia C. BROWN, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
James A. Stemmler, Stemmler & Stemmler, St. Louis, Mo., for plaintiff.
Irvin Ruzicka, Asst. U. S. Atty., Veryl L. Riddle, U. S. Atty., St. Louis, Mo., for defendant.
This is an action under the Federal Torts Claims Act, 28 U.S.C. § 1346. Georgia C. Brown is suing for the alleged wrongful death of her husband, James Brown, who died on November 6, 1965. The case was heard by the Court without a jury.
James Brown was on active duty with the United States Army until 1957. He was placed on a temporary discharge in that year due to physical disability, and finally given a complete discharge in 1963. In 1960 and 1961 his legs had been amputated above the knees. Medical treatment was provided to James Brown by the Veterans Administration. He was under the regular care of Dr. Joseph Levitt at the Veterans Administration outpatient clinic at 415 Pine Street, St. Louis, Missouri. From 1962, or early 1963, until his death, the frequency of visits made by James Brown to Dr. Levitt and the Veterans Administration outpatient clinic varied from as often as two or three times a week to once every two or three months.
James Brown was, and had been, chronically ill for several years. A chronic illness is one of a lasting condition for a period of weeks, months, or years, as compared to an acute illness, which is a rather sudden and dramatic change in the patient's condition. James Brown was a diabetic, whose condition was controlled by diet and medication. He also had arteriolosclerosis generalized, arterial sclerotic heart disease, and chronic bronchitis. He was suspected of having emphysema, and had been urged to cut down on his rather heavy smoking and drinking.
James Brown made a regularly scheduled visit to Dr. Levitt at the Veterans Administration outpatient clinic on October 29, 1965. He complained of lack of strength and lack of normal ability and drive. His temperature and blood pressure were taken, and Dr. Levitt listened to his heart and his chest with a stethoscope. James Brown's heart sounded normal and his chest clear. A chest x-ray was taken during that visit which showed that his heart was enlarged. However, it was known that James Brown's heart had been moderately enlarged for some time and testimony did not indicate whether the enlargement had greatly increased as shown in the x-ray taken that day. An electrocardiogram taken in April of 1965 by Dr. Levitt was abnormal in that it contained an atypical T-wave pattern which indicated an insufficient blood supply to the heart muscle (myocardial ischemia).
James Brown returned to his home on October 29th following the visit to the Veterans Administration outpatient clinic. He remained in bed and slept constantly. It normally took a couple of days for him to recuperate from the exertion of the visit to the outpatient clinic. Mrs. Brown called Dr. Levitt on November 3, 1965. Dr. Levitt desired to examine James Brown at the outpatient clinic. However, Mrs. Brown did not feel that she could transfer him from his wheelchair to the car by herself. Ambulance service, due to internal control procedures, was available only to take a veteran to the hospital. Dr. Levitt called Cochran Veterans Hospital and arranged for an ambulance to be dispatched. The doctor did not send James Brown to the hospital to be examined by the more complex tests which are generally associated with an examination in a hospital as opposed to an examination at an outpatient clinic. He was sent to the hospital because of the inconvenience to Mrs. Brown in transporting him to the outpatient clinic.
Dr. Robert J. Cook examined James Brown at Cochran Veterans Hospital. He was familiar with the patient's medical history. He discovered that James Brown had been examined at the outpatient clinic on October 29th and a chest x-ray taken. He asked Brown about breathing, shortness of breath, cough, pains, and what changes had occurred since he had been examined at the outpatient clinic. James Brown felt that he had a cold and his wife thought that he had pneumonia. An examination revealed that James Brown was not pale or cyanotic or sweaty; he was not dyspneic; his chest sounded good and no signs of fluid were heard; his heart sounded good; his pulse was good; his abdomen was soft, but not distended by fluid. Dr. Cook called the outpatient clinic and talked with the chief x-ray technician about the x-ray taken on October 29th. Dr. Cook testified that his examination revealed that James Brown was chronically ill, but that his condition was not acute. Cough medicine was prescribed and James Brown was instructed to return later if he felt worse.
Mrs. Brown called a local physician, Dr. Clark, at 10:00 p. m. on November 3, 1965. Dr. Clark made a house call and examined James Brown that night. Dr. Clark prescribed an antibiotic and instructed Mrs. Brown to keep her husband breathing good. Later James Brown began to have delusions, seeing snakes and people in the room. He kept getting worse and was dropping cigarettes in the bed. Mrs. Brown called the Veterans Administration at Twelfth and Clark Streets in St. Louis, at approximately 1:30 a. m., on November 4th, and requested an ambulance to take her husband to the U. S. A. F. Hospital at Scott Air Force Base, Illinois.
James Brown arrived at the United States Air Force Hospital at Scott Air Force Base, Illinois, at 3:30 a. m., on November 4, 1965. Mrs. Brown told the doctor at the hospital that she believed that her husband had pneumonia. She told him that James Brown was having delusions. His skin was a dirty gray, and that it was necessary to hold the cigarette in his mouth so that he could smoke. The examination conducted by the Air Force doctor on duty in the emergency room was very thorough. The plaintiff's expert witness, Dr. George Charles Oliver, Jr., testified that the examination was very complete. As a part of the examination a chest x-ray was taken. That x-ray showed that the heart was abnormally enlarged. It was compared with a chest x-ray taken at that hospital on February 3, 1964. The radiographic report stated that the heart was essentially unchanged when compared with the x-ray taken on February 3, 1964. The x-ray indicated that the lungs were clear. Testimony at the trial was offered in an attempt to prove that the result of the comparison of the November 4, 1965, x-ray with the February 3, 1964, x-ray was not correct. Dr. Oliver and Dr. Levitt testified that the heart was much larger in the November 4, 1965, x-ray than it was in the February 3, 1964, x-ray. It was revealed that the two x-rays were taken by different techniques, and that comparison of the two could not be accurate without knowledge of and taking into account the difference in the technique. As mentioned above, it was known that James Brown had an enlarged heart for some time. Testimony indicated that this was a progressive development. The plaintiff failed to show that the diagnosis of the x-ray by the Air Force radiologist was incorrect.
The doctor at the emergency room determined that James Brown did not have pneumonia. The records of the examination indicate that hospitalization was not considered appropriate and that it was recommended that an appointment be made at the clinic for further evaluation. James Brown returned home.
Mrs. Brown called Dr. Dominic J. Verda, on November 5, 1965, and told him over the telephone that her husband had been given an antibiotic injection for pneumonia by a private physician and since then had become worse and was mentally confused. Dr. Verda did not know whether James Brown was going into a diabetic coma, and made arrangements for James Brown to be admitted to Bethesda General Hospital at 3655 Vista Avenue, St. Louis, Missouri. James Brown died at 9:00 p. m., November 6, 1965. A post-mortem examination revealed that death was caused by an acute myocardial infarction and acute left coronary occlusion. The death certificate requested that the examining physician estimate the length of time from onset of the fatal cause to the time of death. Dr. Verda, after assisting a pathologist with the post-mortem examination, estimated the time between onset and death to be ten days.
The plaintiff contends that this is not the usual type of malpractice action. She...
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Winnebago County v. Marvin B.
... ... See State ex rel. Watts, 122 Wis.2d at 89-90, 362 N.W.2d at 116. In Brown v. United States, 293 F.Supp. 13, 13 (E.D. Mo.1968), aff'd, 419 F.2d 337 (8th Cir.1969), the court ... ...