Margaret Clark v. United States

402 F.2d 950, 1968 U.S. App. LEXIS 5235
CourtCourt of Appeals for the Fourth Circuit
DecidedOctober 16, 1968
Docket11727
StatusPublished
Cited by23 cases

This text of 402 F.2d 950 (Margaret Clark v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Margaret Clark v. United States, 402 F.2d 950, 1968 U.S. App. LEXIS 5235 (4th Cir. 1968).

Opinions

CRAVEN, Circuit Judge:

This action was brought against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346, to recover damages for medical malpractice of Army doctors who treated the plaintiff, Mrs. Margaret Clark, in 1958 at Tripler Army Hospital, Honolulu, Hawaii. From the judgment of the district court entered in favor of the plaintiff, the United States appeals contending that the trial judge erred in failing to weigh independently the evidence as to the proper standard of care and causation. We agree that the district judge erred in failing to clearly state his own conclusions with respect to negligence and proximate cause. Fed.R. Civ.P. 52(a). But even so his findings of fact are sufficient to support the judgment. And the judgment itself may be treated as a conclusion that there was actionable negligence.

On March 3, 1958, Mrs. Clark underwent an operation to correct a left ectopic tubal pregnancy, and at that time the presence of a chronic pelvic inflammatory disease was ascertained. She was readmitted to the hospital in July 1958 for treatment of that condition, and on July 25 a hysterectomy was performed by Drs. Kernan and Wayman, who were then in residency training in obstetrics and gynecology. The disease had so distorted the position of the various organs that the surgeons were unable to locate the right ureter during the operation. In addition the disease caused excessive bleeding which necessitated ligating a large number of bleeding points. Inadvertently, the right ureter was sutured in two places.

Two days after the operation Mrs. Clark was complaining of soreness and pain in the area of her right kidney and her temperature had reached 101 degrees. These symptoms could have indicated either a kidney infection or a blockage of the ureter. The doctors realized this, and, indeed, Dr. Wayman entered the following note on the patient’s chart:

“Complains of all types of pain— Seems to center on right side (side of extensive surgery)—may have to get IVP to prove no ureter damage.” However, the doctors elected to treat Mrs. Clark for kidney infection with antibiotics and neither consulted a urologist, had an intravenous pyelogram (IVP) performed, nor attempted in any manner to identify Mrs. Clark’s ailment until the sixth post-operative day. On that day, August 1, an IVP was performed as well as a cystoscopy with an attempted right retrograde urogram. When it was discovered that the ureter had been compromised, a laporotomy was performed; however, the ureter had degenerated to such a point that it separated when the sutures were removed, and it was necessary to rebuild the ureter by inserting a catheter. Mrs. Clark was discharged from the hospital on September 6 as improved but not cured, and on September 8 she was admitted to a private hospital in Honolulu. The ureter had again become blocked and this time, after several attempts were made to drain the kidney, it was necessary to remove the right kidney to save the plaintiff’s life. [952]*952It is this injury for which Mrs. Clark now seeks recovery.

It is conceded that there was no negligence involved in the inadvertent suturing of the ureter. If the plaintiff is to recover, it must be on the theory that Drs. Kernan and Wayman were negligent in delaying their use of standard diagnostic procedures to identify her illness and that the delay was the cause of the loss of her kidney.

The standard of care prescribed for physicians by Virginia,1 as well as most other jurisdictions, is clear; a doctor is required to use “that degree of skill and diligence employed by the ordinary, prudent practitioner in his field and community, or in similar communities at the time.” Reed v. Church, 175 Va. 284, 8 S.E.2d 285, 288 (1940). Moreover, a jury instruction applying the standard to diagnosis, as well as treatment, has been sustained. Id. at 291. Accord, Pearce v. United States, 236 F.Supp. 431, 432-433 (D.C.Okl.1964); Booth v. United States, 155 F.Supp. 235, 238-39, 140 (Ct.Cl. 145 1957); Word v. Henderson, 220 Ga. 846, 142 S.E.2d 244, 247 (1965); Belk v. Schweizer, 268 N.C. 50, 149 S.E.2d 565 (1966).

The facts in this ease, as found by the trial judge and as substantially agreed upon by the experts, are that a blocked ureter presents a semi-emergency and requires immediate repair, that an IVP or a cystoscopic examination is the standard diagnostic procedure for distinguishing a kidney infection from a blocked ureter when a patient’s symptoms are pain in the kidney area and fever, and that an IVP could have been performed on the second post-operative day without danger to Mrs. Clark and without too great an inconvenience. These findings are supported by substantial evidence and are not “clearly erroneous” within the meaning of Fed. R.Civ.P. 52(a). They support, if not require, the conclusion that unjustifiable delay in the use of the standard diagnostic procedure would constitute negligence.

However, the United States contends that there has been no finding of negligence. The defendant’s argument is that the standard of care for physicians is a matter to be established by expert testimony, that the testimony of the expert witnesses was conflicting on this point, 1. e., whether an IVP should have been promptly performed, and that we thus have no alternative but to remand for a resolution of the conflict and a specific finding as to negligence. We disagree.

It is of course true that doctors, unlike most other groups, are allowed to set “their own legal standards of conduct, merely by adopting their own practices.” Prosser, Torts § 32 at 168 (3d ed. 1964). But the reason for this rule is closely related to the incompetency of laymen to judge medical matters. Ibid. See also, Morris, Custom and Negligence, 42 Col. L.Rev. 1147, 1164 (1942). Thus, where “the matter is regarded as within the common knowledge of laymen * * * it has been held that the jury may infer negligence without the aid of any expert.” Prosser, supra, at 167 2

In this case the expert testimony provided all the information that laymen would need in order to decide the issue of negligence. The only real conflict in the evidence is the one pointed out by the [953]*953defendant, i. e., whether an IVP should have been given promptly. When it is known from expert testimony that a blocked ureter requires immediate repair and that a standard diagnostic procedure (IVP) is indicated, it does not take a doctor to decide how much delay is a failure to exercise due care — absent a sound medical explanation3 for postponement of the procedure. But in this case there was such testimony. Dr. Devine, a urologist from Norfolk, Virginia, and Dr. Morgan, who removed Mrs. Clark’s kidney and who is the President of the Hawaii Urological Society, both expressed the view that a reasonably qualified gynecologist or urologist would have performed an IVP on July 27. The district judge plainly indicated theirs was the testimony of greater weight, finding that one doctor testified to the contrary, and a fourth doctor both ways.

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Margaret Clark v. United States
402 F.2d 950 (Fourth Circuit, 1968)

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Bluebook (online)
402 F.2d 950, 1968 U.S. App. LEXIS 5235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/margaret-clark-v-united-states-ca4-1968.