Rewis v. United States

• Decision Date: 05 December 1966
• Docket Number: No. 23301.,23301.
• Citation: 369 F.2d 595
• Parties: Mrs. Annie Laurie REWIS, as Temporary Administratrix of the Estate of Joann Rewis, deceased, and Mrs. Annie Laurie Rewis and Joseph S. Rewis, Individually, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

369 F.2d 595 (1966)

Mrs. Annie Laurie REWIS, as Temporary Administratrix of the Estate of Joann Rewis, deceased, and Mrs. Annie Laurie Rewis and Joseph S. Rewis, Individually, Appellants, v. UNITED STATES of America, Appellee.

No. 23301.

United States Court of Appeals Fifth Circuit.

December 5, 1966.

Joseph B. Bergen, Savannah, Ga., for appellants.

Morton Hollander, J. F. Bishop, Attys., Dept. of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., Donald H. Fraser, U. S. Atty., John C. Eldridge, Atty., Dept. of Justice, Washington, D. C., for appellee.

Before TUTTLE, Chief Judge, BROWN and GODBOLD, Circuit Judges.

TUTTLE, Chief Judge:

This is an appeal from a judgment of the district court in favor of the United States in a tort claim action brought by the appellants, Sergeant and Mrs. Joseph S. Rewis. The action was brought upon the allegations of malpractice by the medical officer on duty at an Air Force base hospital in New Mexico, whose examination of the fifteen month old child of the appellants did not disclose aspirin poisoning, which did, in fact, twenty hours later, cause the death of the child.

On this appeal from the findings of fact and conclusions of law by the trial court, the testimony must be viewed, of course, most favorably to the Government. Viewed in this light, the testimony showed the following tragic story. On September 4, 1963, at 9:34 P.M., Sergeant Joseph Rewis, then on active duty at Walker Air Force Base in New Mexico, brought his fifteen months old daughter, Joann, to the base hospital for treatment. Dr. Robert H. Finley was the Medical Officer on duty. He testified that, upon bringing the child to the hospital, Sgt. Rewis reported to him that the child had been well earlier in the day but had that evening started vomiting and having diarrhea, had not eaten well at the evening meal, and had been blue about the lips. Dr. Finley observed the child as she sat on her father's lap and thereupon examined the ears with an otoscope, the throat with tongue blade and flashlight, and felt the sides of the neck. He looked specifically for any sign of blueness, but saw no evidence of any blueness or cyanosis. He listened to the chest but found it clear. The back of the throat was red and inflamed, and there was hypertrophy of the lymphoid or tonsular tissue on the back of the throat, but no pus or exudate. The child was "fussy and irritable as you would expect of a sick child at almost ten o'clock at night." Dr. Finley entered on his record that the child was hyperventilated. Upon giving his testimony at the trial, he explained that in using this term he did so as a routine observation and not as an indication of any excessive or pathological condition. He testified that she was breathing somewhat rapidly and was very excited and frightened at being examined by a doctor at that hour. Dr. Finley asked Sgt. Rewis whether the child had had "any drugs or medicine earlier so that I can take this into account." He testified that "he very definitely stated that she had not."¹

The question whether the child's father told Dr. Finley about the possibility of her having eaten aspirin is dealt with by the government only as it reflects on the standard of medical care given by the doctor. The government does not take the position that Rewis knew of it but did not report it as a basis for a defense of contributory negligence or any related defense.

Dr. Finley had seen Joann's mother on an emergency call approximately two hours previously and had found that she was suffering from a viral infection involving the respiratory tract, and he diagnosed the child's condition similarly. He prescribed a decongestant for the child, baby aspirin every four to six hours, clear liquid diet, benedril expectorant, cough syrup and Coca Cola syrup for the nausea.

After Sgt. Rewis took the child home, it continued to be nauseated and unsettled and cried during most of the night. It became "glassy-eyed" and unresponsive. On the following day, Sgt. Rewis brought the child back to the hospital and by the time Dr. Andrew Ageloff, the base pediatrician, who was called in for consultation, examined the child at about noon, it appeared that the child was semi-comatose, ten to fifteen percent dehydrated, and breathing "very, very rapidly."

Upon being asked whether it was possible that the child had taken any medicine, specifically aspirin Sgt. Rewis said that she could not have taken any medicine. However, when the doctor, after further examination was taking a blood specimen and explaining to Rewis that there was a strong possibility that the child had gotten a large quantity of aspirin, the father "suddenly recalled" that the child, on the day before, at about three o'clock in the afternoon, had been playing with a bottle containing 300 adult aspirin tablets. Immediately, extensive measures were taken to save the child, including intravenous therapy, catheterization into one of the larger veins of the leg for fluid administration, oxygen and moistening environment in an oxygen tent, and, when an artificial kidney was located at Lackland Air Force Base, Texas, an attempt was made to fly the child there, but Joann died at 7:20 P.M. of that evening at a hospital en route.

Drs. Finley and Ageloff both testified that the examination and treatment by Dr. Finley the night before the child's death adhered to the standard of care for the area. Similar testimony was given in response to a hypothetical question by a civilian doctor, Thomas W. Collier, M.D., of Brunswick, Georgia.

Two doctors called on behalf of the appellants, initially, on the basis of a hypothetical question presented by appellants' counsel which included an assumption that Sgt. Rewis had told Dr. Finley of the suspicion of aspirin poisoning, both testified that the proper standard of care owed to the patient had not been observed by the medical officer. Upon cross examination, however, upon the assumption that the testimony that the medical officer knew of the aspirin ingestion by the child was not true, these two doctors modified their testimony to agree that, on the hypothesis presented by the Government, they could not fault the doctor for the manner in which he treated the child.

With respect to the cause of death and the question whether adequate treatment at 9:45 P.M. on September 4th would have saved the child's life, the testimony was such as would have permitted the trial court to have found either way. Dr. Collier, without expressing his own opinion, testified that an article written by a Dr. Doame presented a graph from which he concluded that, with a blood-level of 87.2 milligrams, at 19½ hours after ingestion, the maximum blood-level count would have been 170%, "and he considers the maximum blood-level above 160 as being incompatible with life." Dr. Finley testified that, "If it turns out that this child had a blood test, which showed a blood salicylate level of 87.5 milligrams percent," he would not have "been able to save the child." He stated, "This would indicate that a degree of poison, or an amount of poison had been in the body which would be incompatible with life. While you don't stop trying, it is recognized that this is a fatal level." Further, Dr. Finley testified, "It is my impression that she probably would have died, however, as I stated before, therapy would have gone on in the hopes that this would have been one of the cases that would be saved."

"Q. And there are many cases that have been saved? There are worse cases than this, as a matter of fact?

A. Not with the initial blood salicylate as calculated back.

Q. Well, you have just said that she might have been saved.

A. She might have been, yes."

In Dr. Ageloff's testimony, taken by deposition and without cross examination, he stated: "Quite likely, no matter what therapeutic measures were instituted at the time of her examination by Dr. Finley she might have died." (Emphasis added.)

Dealing with this same question, Dr. Shepherd testified that after a period of four to seven hours, a child with aspirin would show definite symptoms. In response to the question whether this was because "the aspirin would have already gone to work to deteriorate the system," he stated, "not to deteriorate the system, but the effects of aspirin poisoning would have begun to occur."

The trial court denied recovery on two bases. The first, as stated in the Court's opinion, was, "The plaintiffs cannot recover in the instant case because there was no evidence to show that the alleged malpractice was the cause of the child's illness and subsequent death. Watson v. United States, 5 Cir., 346 F.2d 52 (1965) * * *"

The Court then said:

"In the Watson case, the United States Court of Appeals for the Fifth Circuit affirmed a holding of the District Court that the United States was not liable for the alleged malpractice of a public health service doctor in the outpatient clinic of the public health service hospital of Savannah, Georgia. The action had alleged negligent failure of the doctor to diagnose a serious disease, asserting that the delay in treatment resulting from the failure to diagnose had caused the loss of the claimant\'s leg. The Court of Appeals held that where there was no showing to any reasonable degree of medical certainty, that the loss of the leg could have been avoided, there can be no recovery. In the case at bar, there was no testimony by any of the experts showing that the child would have recovered if the diagnosis of aspirin poisoning had been made immediately and treatment begun instantaneously." (Emphasis added).

The trial court erred in its construction of our decision in the Watson case. What occurred in that case is that the trial court, deciding the case without a jury, made a finding of fact that:

"The only medical testimony adduced on the effect of the delay between February 24 and April 25 was that there was no causal relationship between the said delay

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