Disposable Services, Inc. v. Itt Life Insurance Company of New York

457 F.2d 972, 1972 U.S. App. LEXIS 10093

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 13, 1972
• Docket: 71-2258
• Status: Published

Opinions

PER CURIAM:

It is ordered that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied.¹

1 . In the motion for rehearing plaintiff complains of our conclusion that deceased, Britt, was advised on February 3, 1970 that a kidney stone was the cause of the pain in his back and that this would require hospitalization for further examination. Petitioner contends that Dr. Bryant’s testimony is opposed to the Court’s conclusion. No mention is made by petitioner, however, of defendant’s Exhibit 2, identified in the record as “Hospital Admission Records of Samuel Britt, South Miami Hospital, on February 5, 1970,” which was received in evidence without objection (Tr. 51). One page of the exhibit (stamped page No. 360) shows at the bottom thereof, “DX (L) Kidney Stone, Dr. Bryant,” indicating a diagnosis by Dr. Bryant of a left kidney stone. On the page entitled “History” (stamped page No. 322), dated February 5, 1970, information taken from the patient by Dr. Salazar, who is designated as “Physician Taking History” and is one of the resident doctors, the following is shown under “PRESENT ILLNESS” :

“Pt. states that about nine days ago he started e pain in the back (on the left). It was a sore in the beginning and it increased until being very strong. With heat pad it improved. Three days ago he saw his doctor and he thought that probably a kidney stone was the cause and he must be admitted.” (Emphasis supplied.)

This page bears the signature of Dr. Salazar.

When Dr. Bryant testified he was asked about the hospital records and the diagnosis as follows (Tr. 129-130) :

“Q. Doctor, we notice in the hospital records in one or two places that there was some reference in the early information taken of a suggestion of kidney stones. Did you ever diagnose this man as having kidney stones?

“A. No. However, when you get an obstruction you have to consider that in the ureter it is one of the most common reasons for an obstruction, which would be a kidney stone, and that particular site of his obstruction is one of the most common practices or common places, rather, for a stone to lodge.

“Q. The entry on the hospital records in the preliminary information that it was diagnosed as kidney stones would make some sense to some physicians? “A. Well, I’m not sure what you are referring to. It depends on where it is.

“This is on the admitting sheet when I first admitted him, ‘left kidney stone.’ That was my admitting diagnosis at that time.

“Q. I am referring specifically to the document called ‘History.’

“A. Oh. All right.

“Q. It says, ‘Present illness.’

“A. This was written by one of the house officers, house doctors or residents. What I am referring to is his admitting diagnosis on the first entry, the first admission. It talks about the left kidney stone. The resident frequently goes by the admitting diagnosis. “Q. In other words, at some point you indicated possible kidney stone; is that it?

“A. Yes. This area is the most likely area because of an obstruction to the kidney.” (Emphasis suplied.)

In our view the record (including exhibits as well as testimony) sustains the conclusions we readied in our original opinion, 453 F.2d 218.