McNeal v. U.S., 82-1014
| Citation | 689 F.2d 1200 |
| Decision Date | 27 September 1982 |
| Docket Number | No. 82-1014,82-1014 |
| Parties | Louise D. McNEAL, Appellant, v. UNITED STATES of America, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Benjamin P. Lynch, Jr., Norfolk, Va. (Taylor, Gustin, Harris, Fears & Davis, Norfolk, Va., on brief), for appellant.
Larry W. Shelton, Asst. U. S. Atty., Norfolk, Va. (Elsie L. Munsell, U. S. Atty., Alexandria, Va., on brief), for appellee.
Before HALL and ERVIN, Circuit Judges, and HAMILTON, * District Judge.
Appellant, Louise D. McNeal, filed this federal tort claims action alleging negligence on the part of Naval medical personnel in the performance of a sterilization operation at the Portsmouth, Virginia, Naval Regional Medical Center. After a non-jury trial, the district court concluded that McNeal had failed to establish negligence on the part of the defendant and dismissed the action on the merits. From that decision, McNeal appeals and we affirm.
On May 3, 1977, the plaintiff, after giving birth to her second child, expressed a desire to have no more children and requested that she be sterilized. Two days later she underwent a bilateral tubal ligation performed by Doctors D. J. Hall and R. L. Hickok. After the surgery, Dr. Hickok filed an operation report and submitted two excised portions of the fallopian tubes to the pathology department for examination. A lab report was later filed describing the appearance and condition of each segment.
Around November, 1978, McNeal again became pregnant and in June, 1979, gave birth, without complications, to a healthy female child. Thereafter, McNeal instituted this suit on a theory of wrongful pregnancy seeking $1,000,000.00 in damages for the "expenses in raising and providing for said child until its age of emancipation."
The case was tried without a jury and both sides offered documentary evidence as well as testimony of medical experts. By way of a de bene esse deposition Dr. Hickok testified that he closed the left fallopian tube through use of the "Pomeroy" technique whereby the mid-segment of the tube is doubly ligated and the segment distal to the ties is severed and removed, and that the path in the right tube was interrupted by the "Kroener" method in which the distal fimbriated end of the tube is excised and the tube sutured with a non-absorbable suture. To prove negligence, Mrs. McNeal attempted to show, via the operation report filed by Dr. Hickok and the testimony of two medical experts, that neither the right nor left tube was properly ligated in accordance with the procedures described by Dr. Hickok.
The operation report filed after the surgery was not entirely consistent with Dr. Hickok's description of the procedure as it indicated that the left tube was operated on twice and failed to state that the distal fimbriated end of the right tube was removed as required in a Kroener method ligation. 1 The inference that a proper Kroener procedure was not performed on the right tube was bolstered by the testimony of Dr. Marsha Berkeley who performed a laproscopic exam on the plaintiff six months after the birth at issue. Dr. Berkeley stated that, while there was evidence of previous ligation of the right tube, it appeared that the distal fimbriated end of the tube was still present. Furthermore, she testified, in complete contradiction to Dr. Hickok's testimony and operation report, that there was no indication of prior ligation of the left tube. Finally, the plaintiff called Dr. DeWitt True who, relying heavily on Dr. Berkeley's findings, testified that, in his opinion, Kroener and Pomeroy ligations had not been properly performed on the plaintiff's right and left tubes, respectively.
In defense, Dr. Hickok explained the inconsistency between his description of the operation and the operation report saying that the second reference to the "left tube" in the report should have been "right tube" and that the report should have indicated that, after that...
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