SOBELOFF, Circuit Judge:
This action was brought under the Federal Tort Claims Act, 28 U.S.C. § 1346, to recover damages for the death of Carol Greitens. The plaintiff, administrator of her estate, alleges that death was due to the negligence of the doctor on duty at the dispensary of the United States Naval Amphibious Base, Little Creek, Virginia, in diagnosing and treating her illness. The District Court, concluding that the evidence was insufficient to establish that the doctor was negligent, or that his concededly erroneous diagnosis and treatment was the proximate cause of her death, dismissed the complaint. From this action, the administrator appeals.
The decedent, 25 years of age, had been a diabetic since the age of 13, although the condition was under control. As the wife of a Navy enlisted man, she was entitled to medical care at the dispensary. Mrs. Greitens' husband brought her to the dispensary at about 4 a. m. on August 25, 1963, suffering from intense abdominal pain and continual vomiting which had begun suddenly an hour before. The corpsman on duty in the examining room procured her medical records, obtained a brief history, took her blood pressure, pulse, temperature, and respiration and summoned the doctor on duty, then asleep in his room at the dispensary. The doctor arrived 15 or 20 minutes later and after questioning the patient concerning her symptoms, felt her abdomen and listened to her bowel sounds with the aid of a stethoscope. Recording his diagnosis on the chart as gastroenteritis, he told Mrs. Greitens that she had a "bug" in her stomach, prescribed some drugs for the relief of pain, and released her with instructions to return in eight hours. The examination took approximately ten minutes.
The plaintiff contends that the doctor at the dispensary did not meet the requisite standard of care and skill demanded of him by the law of Virginia. Compliance with this standard, the plaintiff maintains, would have required a more extended examination and immediate hospitalization. More specifically, plaintiff's expert witnesses, two general practitioners in the Norfolk-Virginia Beach area, testified that, according to prevailing practice in the community, the doctor should have inquired whether the patient had had diarrhea and should have made a rectal examination to determine whether the patient was suffering from an obstruction rather than from gastroenteritis. While the latter condition does not ordinarily require immediate radical treatment, a high obstruction is almost invariably lethal unless promptly operated upon. Plaintiff's experts further testified that on observing the symptoms manifested by Mrs. Greitens, the procedure of general practitioners in the community would have been to order immediate hospitalization. This the dispensary physician failed to do, although the Naval Hospital in Portsmouth was available to him.
The standard of care which Virginia law exacts from a physician, in this case a general practitioner, is stated in Reed v. Church, 175 Va. 284, 8 S.E.2d 285, 288 (1940), as follows:
Accord, Alexander v. Hill, 174 Va. 248, 6 S.E.2d 661 (1940); Fox v. Mason, 139 Va. 667, 124 S.E. 405 (1924). See Shepherd, The Law of Medical Malpractice in Virginia, 21 Wash. & Lee L.Rev. 212 (1964). Thus, if he uses ordinary care in reaching his diagnosis, and thereafter acts upon it, he incurs no liability, even if the diagnosis proves to be a mistake in judgment.
It is undisputed that the symptoms of high obstruction and of gastroenteritis are quite similar. The District Court placed great emphasis on this fact as an indication that the doctor's erroneous diagnosis was not negligent, but was merely an error of judgment. It would seem, however, that where the symptoms are consistent with either of two possible conditions, one lethal if not attended to promptly, due care demands that a doctor do more than make a cursory examination and then release the patient. See Jenkins v. Charleston Gen. Hospital & Training School, 90 W.Va. 230, 110 S.E. 560, 22 A.L.R. 323 (1922), holding that where a "partial and very hurried investigation" was made, the physician was liable for failure of his diagnosis to disclose an injury which caused detriment to the patient. The fact that an intestinal obstruction is a rare occurrence, and that some form of gastroenteritis is the more likely of the two conditions,
Our conclusion that the physician was negligent in his diagnosis and treatment of the patient is not inconsistent with Fed.R.Civ.P. 52(a), which declares that the trial judge's findings of fact are not to be disturbed unless clearly erroneous. This Rule comes into play primarily where the trial judge as fact finder has had to reconcile conflicting testimony. Where the veracity of witnesses is in issue, the decision is for the judge who has had the opportunity to see and evaluate the witnesses' demeanor. The trial court's findings of fact on conflicting evidence will not be disturbed by the appellate court unless clearly erroneous. United States v. General Motors Corp., 384 U.S. 127, 141 n. 16, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966); Walling v. Gen. Industries Co., 330 U.S. 545, 550, 67 S.Ct. 883, 91 L.Ed. 1088 (1947); Nationwide Mutual Ins. Co. v. DeLoach, 262 F.2d 775, 778 (4th Cir. 1959). But we are dealing here with the testimony of expert witnesses who are not in controversy as to the basic facts; thus, the opportunity of the trial court to observe the witnesses is of limited significance. It has often been held that where the trial court's conclusions are
The question before us is not one of fact in the usual sense, but rather whether the undisputed facts manifest negligence. Although the absence of a factual dispute does not always mean that the conclusion is a question of law, it becomes so here since the ultimate conclusion to be drawn from the basic facts, i. e., the existence or absence of negligence, is actually a question of law. For this reason, the general rule has been that when a judge sitting without a jury makes a determination of negligence, his conclusion, as distinguished from the evidentiary findings leading to it, is freely reviewable on appeal. Mamiye Bros. v. Barber Steamship Lines, Inc., 360 F.2d 774, 776 (2d Cir. 1966). The determination of negligence involves not only the formulation of the legal standard, but more particularly in this case, its application to the evidentiary facts as established; and since these are uncontested, there is no basis for applying the "clearly erroneous" rule. United States v. Parke, Davis & Co., supra; Kippen v. American Automatic Typewriter Co., 324 F.2d 742, 745 (9th Cir. 1963); Romero v. Garcia & Diaz, Inc., 286 F.2d 347, 355 (2d Cir. 1960), cert. denied, 365 U.S. 869, 81 S.Ct. 905, 5 L.Ed.2d 860 (1961); Galena Oaks Corp. v. Scofield, 218 F.2d 217, 219 (5th Cir. 1954).
The government's expert opined that the dispensary physician exercised "average judgment," but analysis of his entire testimony points unavoidably to the opposite conclusion. Revealing are his statements that it was wrong not to inquire about diarrhea, conceding that "that is one question that one usually asks," and that given a patient with abdominal pain of one hour's duration, it is too soon "to expect anybody to come up with a proper diagnosis." Furthermore, his opinion was predicated upon a factual assumption not permissible in this case. His assumption was that the dispensary physician had made only a "working" or "tentative" diagnosis, which the expert felt to be appropriate in view of the fact that the symptoms had their onset such a short time before. However, the uncontradicted evidence indicates that this was not a "tentative" diagnosis.
The examining doctor himself testified that he had already considered and ruled out at the beginning of his examination the possibility of an obstruction without making the additional differentiating diagnostic tests. He said that his only reason for asking the patient to return eight hours later was because her diabetic condition could become complicated by a case of gastroenteritis. A further indication of the final nature of the diagnosis is his notation of gastroenteritis on the chart, made without further qualification. He also testified that he told the woman not to return for eight hours, regardless of the persistence of pain; yet even the government's expert testified that if abdominal pain were present for "three or four hours and wouldn't go away, you would probably have to operate." By releasing the patient, the dispensary physician made his diagnosis final, allowing no further opportunity for revision, and this prematurely determined final diagnosis was based on an investigation not even minimally adequate.
On careful scrutiny, therefore, the government's expert is seen to have demonstrated that the examiner did not conform to the required standard of care. Coupled with the explicit testimony of the plaintiff's experts, the government's testimony leads us inevitably to the conclusion that the doctor was negligent
The government further contends that even if negligence is established, there was no proof that the erroneous diagnosis and treatment was the proximate cause of the death, asserting that even if surgery had been performed immediately, it is mere speculation to say that it would have been successful. The government's contention, however, is unsupported by the record. Both of plaintiff's experts testified categorically that if operated on promptly, Mrs. Greitens would have survived, and this is nowhere contradicted by the government expert. Price v. Neyland, 115 U.S.App.D.C. 355, 320 F.2d 674, 99 A.L.R.2d 1391 (1963), decided under Virginia law, held that a doctor was liable for negligent diagnosis, although even when correctly diagnosed, the disease requires immediate treatment for success.
When a defendant's negligent action or inaction has effectively terminated a person's chance of survival, it does not lie in the defendant's mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly. Harvey v. Silber, 300 Mich. 510, 2 N.W.2d 483 (1942).
An apt analogy is found in a case which arose in this circuit.
In sum, the dispensary physician's negligence in failing to make a thorough examination and in omitting standard diagnostic tests, led to an erroneous diagnosis. Because of this, he sent the patient home with instructions not to return for eight hours, rather than immediately admitting her to a hospital. Since the uncontradicted testimony was that with prompt surgery she would have survived, the conclusion follows that the dispensary doctor's negligence nullified whatever chance of recovery she might have had and was the proximate cause of the death.
Judgment reversed and cause remanded for the determination of damages.