*2
right
in two
was sutured
Dept.
McDiarmid, Atty.,
C.
Robert
places.
Atty.
(Edwin Weisl, Jr., Asst.
L.
Justice
days
operation Mrs.
Two
Atty., Dept.
Eldridge,
Gen.,
John
and
C.
complaining
Clark
was
soreness
Jr.,
Justice,
Spratley,
and C. Vernon
kidney
right
in the area of her
Atty.,
brief),
appellant.
on
U. S.
degrees.
temperature
had reached 101
Hollis, Norfolk, Va.,
Louis
John M.
These
could
Ellenson,
News,
(Willcox,
Newport
blockage
kidney
either a
infection or a
Spindle,
Savage, Lawrence, Dickson &
this,
the ureter.
realized
doctors
Fox,
Va.,
Norfolk,
New
and Ellenson &
and,
indeed,
Wayman entered the
port News, Va.,
appellee.
brief),
on
following
patient’s
note on the
chart:
SOBELOFF,
Before
BOREMAN
“Complains
types
pain—
of all
CRAVEN,
Judges.
Circuit
right
(side
Seems
center
side
get
surgery)—may
extensive
CRAVEN,
Judge:
Circuit
prove
damage.”
IVP to
no ureter
How-
brought against
action
This
was
ever,
the doctors elected to
Mrs.
treat
Tort
the Federal
States under
Clark for
infection
anti-
Act,
to recover
Claims
U.S.C. §
urologist,
biotics
neither
consulted a
Army
damages
malpractice of
for medical
pyelogram (IVP)
had an intravenous
plaintiff,
who
doctors
treated the
Mrs.
performed,
attempted
nor
manner
Margaret Clark,
Army
Tripler
in 1958 at
identify
Mrs.
ailment
Clark’s
until
Honolulu,
Hospital,
From
Hawaii.
day,
day.
sixth
On that
judgment
court entered
August 1,
an IVP was
as well
plaintiff,
favor of
the United States
cystoscopy
right
attempted
aas
with an
contending
appeals
the trial
retrograde urogram.
dis-
When it was
failing
weigh independently
erred in
covered that
the ureter had
com-
standard
promised,
laporotomy
performed;
was
agree that
care and causation. We
however,
degenerated
the ureter had
clearly
failing
erred
point
separated
such a
when
state
own
conclusions with
removed,
sutures were
neces-
it was
Fed.R.
cause.
sary
by inserting
to rebuild the ureter
52(a).
findings
But
Civ.P.
even so his
discharged
catheter. Mrs. Clark was
support
fact are sufficient
hospital
September
from the
6 as
And the
ment.
itself
improved
cured,
Septem-
but
and on
treated conclusion that
there was
private
ber
she
admitted to
hos-
negligence.
actionable
pital
again
in Honolulu. The ureter had
3, 1958,
time,
under-
become
On March
Mrs. Clark
blocked and this
after sev-
operation
ectopic
attempts
eral
went
to correct a left
were
made to
drain
pregnancy,
necessary
and at
time the
tubal
remove
inflammatory
presence
pelvic
plaintiff’s
a chronic
save the
life.
danger
day
Clark and
Mrs. Clark
to Mrs.
injury
without
for which
It
great
recovery.
inconvenience.
too
now seeks
supported by sub-
These
are
It
conceded
“clearly
stantial
evidence and are not
sutur-
in the inadvertent
involved
meaning
Fed.
erroneous” within the
is to
ing
If the
of the ureter.
52(a).
They support,
if not
R.Civ.P.
theory that
recover,
it must be
*3
unjustifiable
require,
the conclusion
negligent
Wayman were
Drs. Kernan and
diag-
delay in the
of the standard
use
diag-
delaying
of standard
their use
negli-
procedure
nostic
would constitute
identify
illness
procedures
nostic
gence.
delay
of the
and that
kidney.
of her
loss
However,
United
contends
States
finding
there has been no
prescribed
of care
The standard
gence.
argument
The defendant’s
is
Virginia,1
as
physicians
as well
physicians
is a
the standard of care for
clear;
jurisdictions,
a doc
is
most other
by expert
matter
to be established
testi-
degree of
required to
“that
tor
use
is
mony,
testimony
expert
diligence employed
ordi
skill
conflicting
point,
on
witnesses
this
nary,
field
prudent practitioner
in his
e.,
1. whether an IVP should have been
community,
similar communi
or in
performed,
promptly
thus
we
Church, 175
Reed
at the time.”
v.
ties
have no
to remand for a
alternative but
(1940).
284,
285,
More
288
8 S.E.2d
specific
resolution of the conflict and a
applying
over,
jury
a
instruction
disagree.
finding
negligence.
We
diagnosis,
treat
as
as
well
standard to
ment,
at 291.
Id.
has been sustained.
doctors,
It is of course true
unlike
States, 236
Accord, Pearce v. United
groups,
most other
are
allowed
set
431,
(D.C.Okl.1964);
F.Supp.
conduct,
432-433
legal
“their own
standards
235,
F.Supp.
States, 155
Booth v. United
merely by adopting
practices.”
their own
1957);
238-39,
v.
(Ct.Cl. 145
Word
140
Prosser,
(3d
1964).
Torts
32 at 168
ed.
§
244,
846,
Henderson,
142 S.E.2d
220 Ga.
closely
But
the reason for this
is
rule
Schweizer,
(1965);
268 N.C.
Belk
247
laymen
incompetency
related to the
50,
(1966).
565
149 S.E.2d
also,
medical matters.
Ibid. See
Morris,
Negligence,
Custom
42
Col.
ease,
found
as
this
facts
1147,
(1942). Thus,
L.Rev.
1164
where
substantially
by the trial
and as
regarded
“the matter
is
as within the
agreed upon by
experts,
that a
are
* * *
laymen
knowledge
common
semi-emergency
presents a
blocked ureter
jury may
it has been held that
infer
repair,
requires
that an
immediate
ex-
aid of
cystoscopic
is the
examination
IVP or a
pert.” Prosser, supra, at 167
diagnostic procedure
for dis
standard
tinguishing
a
expert
pro-
from
infection
this case the
symp
patient’s
laymen
vided all
information
blocked ureter when
and would
are
area
need
order to decide the
toms
issue of
negligence.
fever,
could have been
real
and that an IVP
pointed
evidence is the one
the second
out
peal
provides
question,
Act
raised the
1. The Federal Tort Claims
we assume ac-
quiescence,
liability
appeal
“under
States
and consider
of the United
States,
premise.
if
this
where the United
circumstances
private person,
liable to
would be
diagnostic procedures
In relation to
law of
in accordance
claimant
exception
general
ap-
rule has been
place
or
oc
where the act
omission
plied
perhaps,
frequently,
X-Rays,
most
1346(b)
(Em
§
curred.”
28 U.S.C.A.
diagnostic procedures
but other
been
have
added.)
phasis
below referred
The court
brought within its ambit
well. For
Virginia
stated as
to the law of
application
summary
an
and an excellent
sumption
X-Ray
French,
of Hawaii
the law
of the
cases see Corn v.
ap-
parties
280,
(1955).
not on
71 Nev.
P.2d
Since the
same.
physician,
e.,
diagnosis,
aid
defendant,
e.,
should
as ah
an IVP
i.
whether
i.
given promptly.
judgment,
it is
his
not avail himself of
When
does
open
the scientific means and facilities
from
known
requires
to him for the
collection
best fac-
immediate
blocked
upon
diagnostic procedure
tual data
at his di-
arrive
a standard
and that
agnosis,
indicated,
take a
the result
is not
error of
(IVP)
it does
failing
a ment but
to secure
much
how
doctor
decide
adequate
upon
factual basis
which to
due care—absent
to exercise
failure
support
judgment.”
postpone-
explanation3 for
sound
Yohe,
94,
167,
Smith v.
412 Pa.
194 A.2d
in this case
procedure. But
(1963).
Devine,
also,
173
States,
testimony.
See
Hicks v.
Dr.
there was such
(4th
Norfolk, Virginia,
368 F.2d
630 n.
urologist
from
1966).
Morgan,
Mrs. Clark’s
removed
who
*4
kidney
the
President of
and who
The defendant makes a simi
Society,
Urological
ex-
both
Hawaii
argument
causation,
lar
the
issue of
reasonably
pressed
that a
the view
argument
but we think that
too is with
urologist
gynecologist
qualified
would
or
true,
judge,
out
merit. The district
is
The
performed
27.
IVP
said,
testify
that no
“with
could
judge plainly
theirs
district
any probable degree
certainty” that
weight,
greater
the
was
finding
earlier action would have saved Mrs.
to the
that one doctor testified
Clark’s
but we know of
court
ways.
contrary, and a fourth doctor both
requires
plaintiff
prove
that
a
causa
“negative
certainty
only
tion
a
or even
the
Since this was
entirely
possibility
good
the
defend
that the
a
are in as
in the
we
Pros
ant’s conduct was not a cause.”
ser,
position
make
as the district
(3d
1964). It
Torts
41 at 246
ed.
judgment
there
§
that on these facts
the
appears
Virginia
to be settled in
negligence,4
regard to whether
is
“negligence”
jury
question
the
of causation
for the
is
of fact or
ais
only
“if
meaning
with
the admonition that
of Fed.R.Civ.P.
law within
proof
equally probable
that a
leaves
52(a).5 Essentially,
and
Drs. Kernan
may
bad
due to a cause
result
have been
Wayman diagnosed
ailment
Mrs. Clark’s
respon
for
not
which the defendant was
a
treated her for
infection and
he was
sible as to a cause for which
responsible
erroneous
it. That
plaintiff
not,
cannot recov
course,
for
does
furnish
basis
284,
Church,
8
er.” Reed
175
liability,
difference
but “there is a vast
negli
(1940). The
judgment
S.E.2d
district
between an error of
“in
securing
court found in the instant case
in the
collection
opera
probability
arriving
that an earlier
dicated
data
at a
factual
essential
tion
have saved
judgment.
the ureter
If a
or
conclusion
only
explanation
fronted with
of a condition
3.
offered
quiring
treatment,
physician.
patient.
possible
immediate
“discomfort”
knowledge
to as-
must utilize his
and skill
strongly urges
government
4.
presence
condition, ab-
certain the
of that
judgment
to enter
concluded
would
sent some
cause
consideration
misinterpreted
plaintiff
he
for
because
delay.
ordinary prudent practitioner
States,
v. United
our decision in Hicks
Certainly
no new rule
laid down
1966).
(4th
Since
F.2d
respect
of law with
either
judge arrived
we hold
cause;
indeed,
it could not
argument
the correct decision
at
clearly requires
ap-
us
since the
statute
wrong
aca-
becomes
so for
reason
he did
ply
place where the act
the law of “the
demic.
§
or omission
28 U.S.C.A.
occurred.”
govern-
however,
agree,
with
We
1346(b).
interpretation
do
Hicks. We
ment’s
Holtzoff,
every
Federal Prac-
use
2B Barron
in the
See
&
mean
read it to
(Supp.
negligence;
diagnostic procedures
12.5
we
tice and Procedure
n.
§
is
1967).
when con-
Hicks to
read
mean
plain-
finding
noted that the
below
The court
kidney.”
think such
We
neurotic,
she
a difficult
tiff was
adequate
law
clearly
under the
com-
patient
varied
with continuous and
Virginia.
operation
days
plaints
two
reasons,
foregoing
For
pains,
complained
in-
she
cluding
of numerous
district court
area
severe
Affirmed.
urologist
Moore,
right kidney.
post-operative
who had
(dissent-
Judge
BOREMAN, Circuit
IVP,
de-
for the
a witness
was called as
ing).
the actions of
fense. He testified that
think,
so,
concluding,
properly
After
doctors,
the government
misconceived
that the district court
treating
Wayman,
misinterpreted
of this court’s
effect
infection on
second
States, 368
in Hicks v.
decision
ordering
immediately
day rather
than
my
de-
(4
1966),
brethren
F.2d 626 Cir.
reasonable
an IVP was consistent with
conclusions
of fact and
tect
practice. He did
standard medical
proxi-
law
feel
need
had
opin-
court’s
mate
in the district
urological
consultation
them to obtain
support the
ion
sufficient
he felt that
the circumstances
go
They
so far
plaintiff.
even
for the
plaintiff in the
same
treated
very
paragraph of
say
first
Way-
Kernan and
fashion as had Doctors
*5
“And,
the
majority opinion:
the
man.1
may
as a conclu-
treated
be
itself
least,
was,
Plainly,
very
there
at the
negli-
was actionable
sion that
gence.”
expert testimony
to the
considerable
as
disagree
added.) I
(Emphasis
and,
un-
care here
standard of
my
upon
my disagreement is based
and.
analysis
Hicks,
like
the
as to whether
disavowal,’
district court’s
of the
by
the
Doctors
course followed
right
Hicks,
make
to
of his
in view of
Wayman
in
that
accord with
was
findings,
particularly as to causa-
more
in
standard was
contradiction.
tion,
though
con-
there were direct
even
principle
that
does not stand for the
in
flicts
the evidence.
must
the defendant
court
hold
Instead,
liable in
circumstances.
such
agreed
was no
It is
that there
findings re-
the trial court should make
sutur-
the inadvertent
in
involved
solving
the
the evidence
issue where
not an
ing
as that
of
the
conflicting.
If the district court should
cases.
such
uncommon occurrence
accept
theory
the one line of
proceeded
the
plaintiffs
the
the
and take into account
fact that
negligence
the
to wait until
that it was
plaintiff
complainer and
was a chronic
day
call
sixth
urologist,
diagnose
treat,
per-
difficult
did not conform
that this
might
nonliability
missible conclusion of
profes-
of the
standards
follow.
community
such
that
sion
delay
that
proximate cause of
court made certain
While
was the
kidney.
opinion
subsequent
in its
and which
of the
observations
loss
diagnosis
gave
Moore
an accurate
would be rendered
Dr.
of the reasons
One
by many
complaints
plaintiff
opinion
was a chron
more difficult
diverse
was that
period
complainer,
psychosomatic
so that
that
of time
ic
plaintiff had under his
had been a
whether her com
care
to tell
was difficult
imaginary
trying experience”
plaints
and that
because of her
“rather
were real or
complaints.
rely upon
“I
difficult attitudes. He noted that
can
one could not
by
purely
memory
doctors
recall
that
there were
the other
was confirmed
This
Wayman
many
organic
complaints
plaintiff.
with no
Dr.
reason.”
who had treated
complain
Strode,
who saw
both before
“chronic
her as a
characterized
question,
complaints,
felt
events here in
“The more
noted that
er” and
extremely
pa-
is,” Dr. Mor
she was an
difficult
obvious a condition
the less
diagnose
agreed
witness,
gan, plaintiff’s
tient
and treat.
own
experts,
taken
context
not
of
out of
issue
judge
majority,
prox-
think the district
but also on the
of
issue
positively
imate
learn that his com-
cause. He stated
would be amazed to
might
accepted
expert urologist
willing
as
ments
be
state
opin-
any probable degree
upon
prepared
certainty
of his
with
consideration
surgical repair
that earlier
ion
as a whole.
would
saved the
but he
it “un-
found
judge
Paraphrasing,
stated
the district
necessary
weigh
the valued
plaintiff’s
ac-
the crux of
cause
experts”
and followed
with
alleged
subject
tion lies in the
failure to
“Many
questions
comment:
now
these
relatively
pur-
her to
safe tests
resolve
of the re-
themselves
reason
diagnosis
obtaining
poses
definite
* *
Agreement
cent case of Hicks
*.
27, 1958,
to her
at
as
disagreement
principles
laparotomy
a time
when
earlier
importance.”
therein
stated is
saving
kidney;
have resulted
As to the issue of
under the rule
the Hicks decision
there was violent
the testi-
drawn from
ultimate conclusion
mony. There is no need to review this
the basic facts becomes
decisively sup-
evidence in detail but it
law;
of the freedom
was barred
ports
the district
in his statement
express personal
views as
expert urologist
willing
that no
independent
physician
of a
to use his
degree
any probable
state with
of cer-
making
tainty
surgical
that earlier
may definitely
by a rec-
be ascertained
kidney.
the ureter
ognized
test,
saved
relatively
safe
fact,
appear
it would
one
who was
relationship
as to
be-
also
causal
present
weight
at the trial
alleged negligent post-opera-
tween the
testimony pointed
of this
the fact
tive treatment and
ultimate loss
delay charged
had no
kidney;
alternative
there is no
substantial
effect on the outcome.
decision.
final
*6
teaching
interpreted Hicks as
that “ev-
altering
I do not construe Hicks as
ery recognized
test must be resorted
concepts
traditional
tort
of causation as
by
treating physician
hopes
he
if
applied by state
and federal courts.
liability
malpractice.”
to avoid
He Hicks this court found that
the doctor
further
stated that “While the writer
involved had
to make a
failed
test
opinion expresses
the view
by
was demanded
stand-
imposes
Hicks
an undue burden on
ard of care and which would
shown
whole,
profession
as a
and tends
suffering
the decedent
from a
deprive
physician
of his
condition “lethal
if not
attended
use his own
in individual
promptly.”
368 F.2d
at 629. On
cases,
binding
opinion
question of causation it was noted that
by
courts
must
followed
plaintiff’s experts
“Both of
testified cat-
throughout
the Fourth
He
Circuit.”
egorically
operated
promptly,
if
further observed that Hicks resolves the
survived,
Mrs. Greittens would have
re-
troublesome
causation
gov-
this is nowhere contradicted
lying upon
National Bulk
Gardner v.
expert.”
ernment
(Emphasis supplied.)
Carriers,
Inc.,
(4
F.2d 284
lished and judge had felt bound
If the district of this Hicks under circumstances respect evidence and with
ease bearing upon the issues of clearly evi- causation I think opinion judge’s from dent findings explicit made all due to both With issues. majority spect opinion duty contrary, I think con- resolve these
the district and to state
flicts end To that and conclusions. pur- for that case would remand this
pose. America,
UNITED STATES Appellant, al., INCORPORATED, WEBB, et
W. M. Appellees.
No. 25674. Appeals Court
United States Fifth Circuit. 6, 1968.
Nov. *7 Gen., Atty. Rogovin, Asst. Mitchell Rothwacks, Harry Meyer Jackson,
Lee A. Marselli, Anderson, I. Robert N. Robert Waxman, Justice, Attys., Dept. of Wash LaCour, ington, C., S. D. Louis C. U. Atty., Chauvin, S. Joan U. Elaine Asst. Orleans, La., appellant. Atty., New