Varga v. United States

• Decision Date: 07 March 1969
• Docket Number: Civ. A. No. 1159-NN.
• Citation: 314 F. Supp. 671
• Parties: Cecile M. VARGA, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

314 F. Supp. 671

Cecile M. VARGA, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 1159-NN.

United States District Court, E. D. Virginia, Newport News Division.

March 7, 1969.

Israel Steingold, Norfolk, Va., Charles H. Gordon, Hampton, Va., for plaintiff.

Roger T. Williams, Asst. U. S. Atty., Norfolk, Va., Lawrence Klinger, Atty., U. S. Dept. of Justice, Washington, D. C., for defendant.

MEMORANDUM

WALTER E. HOFFMAN, Chief Judge.

Alleging malpractice on the part of two doctors employed by the defendant and acting within the scope of their employment, this action is maintained under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). Plaintiff, at all pertinent times, was a dependent of a serviceman and, as such, entitled to receive medical treatment at the hands of the defendant.

Plaintiff visited the Langley Air Force Base Hospital on October 14, 1964 where she was seen by Dr. Brandt of the Department of Internal Medicine. A history of her complaints was taken.¹ On reference to Dr. Erickson of the OB-GYN Department pursuant to a request dated October 21, 1964, the following appears in the consultation report signed by Dr. Erickson on October 27:

"Pt. is 39 yr. old WF—5 yr. * * * of progressive stress incontinence. Wears peripad constantly. Has tried exercises but to no avail. Exam reveals normal pelvis except marked cystourethrocele. Feel pt. should have surgical correction however with above problem some inherent risk involved. Would therefore appreciate talking to you in more detail about patient. Thank you for referring pt."

On the same date, October 27, 1964, certain information in Dr. Erickson's handwriting reveals an entry testified to by Dr. Erickson:

"The patient is a thirty-nine-year-old white female, gravida 10, para 2, aborta 7, one tubal pregnancy, with two living children, whose last menstrual period was October 21st. The patient has been bleeding since then. Patient, until three months ago, had cycle every twenty-eight days, with four days of flow. The patient, for the last three months, has had bleeding every other week, with flow for six days; has chronic bronchitis and pulmonary emphysema. Cough seems to bring on period; has back ache with period. Patient quite tense and nervous person, with tension headaches. Patient has taken hormone shots (one weekly—not helped). Since 1959, when patient had kidney infection, has had stress incontinence, always wears a pad. Cough or strain, losing water, feeling of things falling out, not able to hold water long time. No dysuria, pyuria, hematuria or frequency."

With this history and Dr. Erickson's examination, the impression was stress incontinence and third degree cystourethrocele.

Plaintiff was next seen by Dr. Brandt in the medical clinic on November 25, 1964. As plaintiff had stopped smoking her cough had disappeared. Dr. Brandt reported that she could accept general anesthesia without any difficulty. Drs. Erickson and Brandt conferred generally with respect to plaintiff's condition and her ability to withstand an operation.

On January 13, 1965, Dr. Erickson again examined plaintiff with Dr. Petri, and noted on the chart, "Physical examination done.² Surgery for Thursday, the 27th.³ Abdominal hysterectomy— M-M-K." Plaintiff was admitted to the hospital on January 20 in anticipation of surgery the next day. Another history was taken upon admission indicating certain additional information to the effect that she had a tubal ligation on the right side opposite the tubal pregnancy following the birth of her second child, and a uterine suspension (Baldy-Webster) had been done in 1956 while in New Jersey. The pre-surgical diagnosis was a first degree uterine prolapse, a third degree cystourethrocele, and stress incontinence.

The Marshall-Marchetti-Krantz (M-M-K) procedure with an abdominal hysterectomy was performed on January 21, 1965 by Dr. Erickson who was not, at the time, a board certified gynecologist. However, Dr. Petri, a board eligible obstetrician and gynecologist, directed each step of the procedure and was present in the operating room at all times. During the course of the operation Dr. Erickson inadvertently sutured the bladder to the posterior peritoneum and, a few days thereafter, a vesicovaginal fistula developed. Later efforts to clear up the fistula without surgery were to no avail and on April 21, 1965, plaintiff submitted to surgery at the Portsmouth Naval Hospital for the repair of the fistula. In January, 1966 it became necessary to do a repeat M-M-K procedure at the same hospital.

Plaintiff contends that (1) Dr. Erickson was not qualified to perform the operation and procedures undertaken on January 21, 1965; (2) the suturing was negligence; (3) the selected surgical procedures were not justified; and (4) negligence was established by reason of leaving a pack in the vagina following the operation. While we agree with plaintiff's fourth contention, limited to that fact, we disagree as to the first, second and third points advanced.

Qualifications of Surgeon

Dr. Erickson graduated in June, 1963, from the State University of Iowa Medical School. He served a rotating internship at Emanuel Hospital, Portland, Oregon, and thereafter spent three months in a general surgery residency at the same hospital. He reported to Langley Air Force Base Hospital on September 18, 1964. His rank was that of captain.

Dr. Erickson had scrubbed, assisted and actually performed abdominal hysterectomies. While he had also scrubbed and assisted in M-M-K procedures, he had never previously performed same. Dr. Petri, the board eligible obstetrician and gynecologist, was present at all times during plaintiff's operation and assumed full responsibility for the completion of the surgery in accordance with the proper standards. Dr. Petri, in fact, directed Dr. Erickson where to insert the needle during the M-M-K procedure.

Dr. Krantz, one of the originators of the M-M-K procedure and undeniably one of the outstanding teachers in the obstetric and gynecology field, testified that Dr. Erickson's qualifications were adequate under the circumstances. The suturing, which was the operative element giving rise to the fistula, is done throughout the country by interns and junior residents. Both Dr. Sacher, former Chief of Urology at the Portsmouth Naval Hospital, and Dr. Wolcott, a board certified OB-GYN from Norfolk, testified that suturing would be permitted and expected by a man of Dr. Erickson's qualifications.

Plaintiff's expert, Dr. Inloes, disagrees although he concedes that first year residents are permitted to perform major surgery.⁴ It is unclear exactly how he arrives at the conclusion that Dr. Erickson was not qualified for the operative procedures when supervised by a board eligible OB-GYN. At one point Dr. Inloes testified that "all hospitals have required board certification or qualified to take the board in your specialty to practice surgery" and that the qualifications were "three years in an accredited program of obstetrics and gynecology." At another time he indicates that a physician of Dr. Erickson's qualifications would be permitted to operate in a civilian "teaching hospital"⁵ under the supervision and with the assistance of a board eligible gynecologist. Further, while Dr. Inloes served as Chief of the OB-GYN service at Langley Air Force Base Hospital from 1951 until June 1953, doctors attached to the service frequently performed operations with the assistance of Dr. Inloes, even though not board eligible or board certified. Since Langley Air Force Base Hospital is not a "teaching hospital" as defined by Dr. Inloes, it is apparent that Dr. Inloes is rather vague as to the customary standard in the community. Dr. Wolcott, whose practice is essentially confined to civilian community hospitals, testified that there was no reason why Dr. Erickson should not have been permitted to place the sutures, as long as the board eligible or board certified gynecologist was present and supervising same. In fact, Dr. Wolcott points out that it is next to impossible for one surgeon to perform the operation, and that at all times there must be an assistant present.⁶ As the complexities of the operation are described by Dr. Wolcott, Dr. Krantz and referred to on the operation report, it is readily apparent that, except under emergency circumstances, no lone surgeon could perform the operation.

To accept plaintiff's theory would result in a requirement that two board eligible or board certified gynecologists would attend every operation involving an abdominal hysterectomy or, in the alternative, that the board eligible or board certified gynecologist must do all the suturing. The first suggestion is hardly worthy of discussion as we recognize that resident surgeons or interns universally are assigned to assist the more...