Hicks v. United States

• Citation: 368 F.2d 626
• Decision Date: 27 October 1966
• Docket Number: No. 10432.,10432.
• Parties: Harry J. HICKS, Administrator of the Estate of Carol Greitens, deceased, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

368 F.2d 626 (1966)

Harry J. HICKS, Administrator of the Estate of Carol Greitens, deceased, Appellant, v. UNITED STATES of America, Appellee.

No. 10432.

United States Court of Appeals Fourth Circuit.

Argued May 31, 1966.

Decided October 27, 1966.

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Donald J. Coureas and Jack K. Moulton, Norfolk, Va., for appellant.

Roger T. Williams, Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on brief), for appellee.

Before SOBELOFF and BRYAN, Circuit Judges, and HEMPHILL, District Judge.

SOBELOFF, Circuit Judge:

This action was brought under the Federal Tort Claims Act, 28 U.S.C. § 1346, to recover damages for the death of Carol Greitens. The plaintiff, administrator of her estate, alleges that death was due to the negligence of the doctor on duty at the dispensary of the United States Naval Amphibious Base, Little Creek, Virginia, in diagnosing and treating her illness. The District Court, concluding that the evidence was insufficient to establish that the doctor was negligent, or that his concededly erroneous diagnosis and treatment was the proximate cause of her death, dismissed the complaint. From this action, the administrator appeals.

The decedent, 25 years of age, had been a diabetic since the age of 13, although the condition was under control. As the wife of a Navy enlisted man, she was entitled to medical care at the dispensary. Mrs. Greitens' husband brought her to the dispensary at about 4 a. m. on August 25, 1963, suffering from intense abdominal pain and continual vomiting which had begun suddenly an hour before. The corpsman on duty in the examining room procured her medical records, obtained a brief history, took her blood pressure, pulse, temperature, and respiration and summoned the doctor on duty, then asleep in his room at the dispensary. The doctor arrived 15 or 20 minutes later and after questioning the patient concerning her symptoms, felt her abdomen and listened to her bowel sounds with the aid of a stethoscope. Recording his diagnosis on the chart as gastroenteritis, he told Mrs. Greitens that she had a "bug" in her stomach, prescribed some drugs for the relief of pain, and released her with instructions to return in eight hours. The examination took approximately ten minutes.

The patient returned to her home, and after another episode of vomiting, took the prescribed medicine and lay down. At about noon, she arose and drank a glass of water, vomited immediately thereafter and fell to the floor unconscious. She was rushed to the dispensary, but efforts to revive her were unsuccessful. She was pronounced dead at 12:48 p. m. and an autopsy revealed that she had a high obstruction, diagnosed formally as an abnormal congenital peritoneal hiatus with internal herniation into this malformation of some of the loops of the small intestine. Death was due to a massive hemorrhagic infarction of the intestine resulting from its strangulation.

I

The plaintiff contends that the doctor at the dispensary did not meet the requisite standard of care and skill demanded of him by the law of Virginia. Compliance with this standard, the plaintiff maintains, would have required a more extended examination and immediate hospitalization. More specifically, plaintiff's expert witnesses, two general practitioners in the Norfolk-Virginia Beach area, testified that, according to prevailing practice in the community, the doctor should have inquired whether the patient had had diarrhea and should have made a rectal examination to determine whether the patient was suffering from an obstruction rather than from gastroenteritis. While the latter condition does not ordinarily require immediate radical treatment, a high obstruction is almost invariably lethal unless promptly operated upon. Plaintiff's experts further testified that on observing the symptoms manifested by Mrs. Greitens, the procedure of general practitioners in the community would have been to order immediate hospitalization. This the dispensary physician failed to do, although the Naval Hospital in Portsmouth was available to him.

The standard of care which Virginia law exacts from a physician, in this case a general practitioner, is stated in Reed v. Church, 175 Va. 284, 8 S.E.2d 285, 288 (1940), as follows:

A physician holds himself out as possessing the knowledge and ability necessary to the effective practice of medicine * * *. However, he is not an insurer, nor is he held to the highest degree of care known to his profession * * *. He must exhibit only that degree of skill and diligence employed by the ordinary, prudent practitioner in his field and community, or in similar communities, at the time.

Accord, Alexander v. Hill, 174 Va. 248, 6 S.E.2d 661 (1940); Fox v. Mason, 139 Va. 667, 124 S.E. 405 (1924). See Shepherd, The Law of Medical Malpractice in Virginia, 21 Wash. & Lee L.Rev. 212 (1964). Thus, if he uses ordinary care in reaching his diagnosis, and thereafter acts upon it, he incurs no liability, even if the diagnosis proves to be a mistake in judgment.

It is undisputed that the symptoms of high obstruction and of gastroenteritis are quite similar. The District Court placed great emphasis on this fact as an indication that the doctor's erroneous diagnosis was not negligent, but was merely an error of judgment. It would seem, however, that where the symptoms are consistent with either of two possible conditions, one lethal if not attended to promptly, due care demands that a doctor do more than make a cursory examination and then release the patient. See Jenkins v. Charleston Gen. Hospital & Training School, 90 W.Va. 230, 110 S.E. 560, 22 A.L.R. 323 (1922), holding that where a "partial and very hurried investigation" was made, the physician was liable for failure of his diagnosis to disclose an injury which caused detriment to the patient. The fact that an intestinal obstruction is a rare occurrence, and that some form of gastroenteritis is the more likely of the two conditions, does not excuse the failure to make inquiries and perform recognized additional tests that might have served to distinguish the one condition from the other. The dispensary doctor himself, as well as the experts for both sides, agreed that an inquiry as to diarrhea and a rectal examination were the "proper procedure" and "the accepted standard" in order to be able to rule out gastroenteritis and to make a definite diagnosis of high intestinal obstruction. If he had made the inquiry which he admits was the accepted standard, he would at least have been alerted to the fact that the case was one calling for close observation with a view to immediate surgical intervention if the graver diagnosis were confirmed. In these circumstances, failure to make this investigation constitutes a lack of due care on the part of the physician. It was stated in Kelly v. Carroll, 36 Wash.2d 482, 494, 219 P.2d 79, 86, 19 A.L.R.2d 1174 (1950), cert. denied, 340 U.S. 892, 71 S.Ct. 208, 95 L.Ed. 646 (1950), a case in which an erroneous diagnosis had led to improper treatment, that "if there was a possibility that it was appendicitis, he defendant had no right to gamble with decedent's life, on the theory that it might be something else." Only if a patient is adequately examined, is there no liability for an erroneous diagnosis.¹

Our conclusion that the physician was negligent in his diagnosis and treatment of the patient is not inconsistent with Fed.R.Civ.P. 52(a), which declares that the trial judge's findings of fact are not to be disturbed unless clearly erroneous. This Rule comes into play primarily where the trial judge as fact finder has had to reconcile conflicting testimony. Where the veracity of witnesses is in issue, the decision is for the judge who has had the opportunity to see and evaluate the witnesses' demeanor. The trial court's findings of fact on conflicting evidence will not be disturbed by the appellate court unless clearly erroneous. United States v. General Motors Corp., 384 U.S. 127, 141 n. 16, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966); Walling v. Gen. Industries Co., 330 U.S. 545, 550, 67 S.Ct. 883, 91 L.Ed. 1088 (1947); Nationwide Mutual Ins. Co. v. DeLoach, 262 F.2d 775, 778 (4th Cir. 1959). But we are dealing here with the testimony of expert witnesses who are not in controversy as to the basic facts; thus, the opportunity of the trial court to observe the witnesses is of limited significance. It has often been held that where the trial court's conclusions are based on undisputed facts, they are not entitled to the finality customarily accorded basic factual findings under Rule 52(a). United States v. General Motors Corp., supra; United States v. Parke, Davis & Co., 362 U.S. 29, 44, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960); Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F.2d 304, 306-307 (2d Cir. 1963); St. Louis Union Trust Co. v. Finnegan, 197 F.2d 565, 568 (8th Cir. 1952).

The question before us is not one of fact in the usual sense, but rather whether the undisputed facts manifest negligence. Although the absence of a factual dispute does not always mean that the conclusion is a question of law, it becomes so here since the ultimate conclusion to be drawn from the basic facts, i. e., the existence or absence of negligence, is actually a question of law. For this reason, the general rule has been that when a judge sitting without a jury makes a determination of negligence, his conclusion, as distinguished from the evidentiary findings leading to it, is freely reviewable on appeal. Mamiye Bros. v. Barber Steamship Lines, Inc., 360 F.2d 774, 776 (2d Cir. 1966). The determination of negligence involves not only the formulation of the legal standard, but more particularly in this case, its application to the evidentiary facts as established; and since these are uncontested, there is no basis for applying the "clearly erroneous" rule. United States v. Parke, Davis & Co., supra; Kippen v. American Automatic Typewriter Co., 324 F.2d...