This is a medical malpractice action. At the conclusion of the plaintiff's case, the defendant moved for a directed verdict. The District Court granted the motion and judgment for the defendant was duly entered. From that judgment, the plaintiff has appealed. We affirm.
The plaintiff's illness, with its consequent hospitalization and treatment resulting in this action, began with nausea as he was working on the second shift at the Westinghouse plant in Verona, Virginia, on August 17, 1972. Because of the nausea he went to the restroom. There he began to vomit "something black." He assumed at the time that he had merely regurgitated the hamburger, along with some beer, which he had had shortly before. Later, between ten and ten-thirty o'clock that night, he became ill again and "this time it was pure red blood" that he vomited. He reported his condition to his supervisor and requested permission to leave. Though given such permission, he remained at the plant until the shift change. At that time, he joined his fellow employee who was riding with him, and was proceeding through the parking lot to his car. He began vomiting blood profusely and almost constantly before reaching the car. His companion refused to allow him to go home in that condition and they went instead to King's Daughters' Hospital in Staunton. He arrived at the hospital at about one o'clock on the morning of August 18. The plaintiff had no regular physician and the hospital called the defendant who responded almost immediately and who remained continuously in attendance on the plaintiff for almost twenty hours steady.
After the plaintiff was admitted, and before the defendant had arrived at the hospital, a nurse had accumulated in a basin the blood the plaintiff had vomited after his arrival. When the defendant reached the hospital, he noted the basin of blood and inquired of the nurse on duty how long the plaintiff had been vomiting. When told, he directed that a blood sample be instantly taken and ordered blood for immediate transfusions, administered regularly over a four-hour period. The defendant also ordered that the plaintiff's blood pressure, respiration and pulse be noted each half-hour, that his urine output be followed, that his bleeding be monitored systematically, in the hope that bleeding might be stanched by normal remedies, and that an antacid be given him through a nasal tube each hour.
By early morning of August 18, the flow of blood from the plaintiff's mouth had not moderated. The defendant had already attempted without success to pump out the plaintiff's stomach. Dr. Pittman, an experienced internist with a specialization in gastroenterology, whose assistance the defendant had secured, attempted to arrest the blood flow by applying ice water lavage (or rinsing of the stomach) or, as the plaintiff described it, by "freezing" the stomach. Antispasmodic medication had also been prescribed. When none of these actions reduced substantially the flow of blood, the defendant made a provisional diagnosis of "probable acute bleeding, duodenal or gastric ulcer, some tumor, such as Leiomyoma, possible, alcoholic gastritis, doubtful," and concluded that there was "no alternative to operating [in order] to go in and see what was causing [the bleeding]." He accordingly advised the defendant that it appeared likely he had an ulcer and that an exploratory operation was necessary. After the defendant explained the operation to the plaintiff, the latter agreed to the operation and signed a written waiver to that effect.
The operation itself, performed during the morning of August 18 under a general anesthetic, was "designed primarily [for] exploratory" purposes. When the plaintiff's abdomen was opened in the course of this "exploratory" operation and the stomach was examined, a large clotting of blood was observed in the upper part of the stomach. The defendant removed these blood clots and, in the course of so doing, discovered a few superficial stomach lacerations which he sutured. These lacerations he determined could not have caused the bleeding. "[I]t was apparent" at this point in the examination, "that a good bit of the
While Dr. Pittman was "scrubbing" preliminary to assisting the defendant in an examination of the plaintiff's esophageal area, the defendant, in an effort to stop the flow of blood, attempted without success to insert a Senstaken-Blakemore tube (a device containing two balloons which, when inflated, permits pressure to be applied to the walls of the esophagus or stomach, or both, in order to stop bleeding from small lacerations or bleeding sites on the walls of these parts of the bowel) in plaintiff's abdomen. When Dr. Pittman was in position to assist the defendant during the examination of the esophageal area, the defendant proceeded to enlarge the excision, and opened the lower stomach. Using an esophagoscope, both Dr. Manning and Dr. Pittman checked the esophageal area. They found no lesion or bleeding sites. The defendant then placed the Senstaken tube in the esophagus, inflated it properly and closed the esophagus.
Anxious that he had done everything he could under the circumstances to alleviate the plaintiff's condition, the defendant at this point telephoned Dr. Harry Wellons, a thoracic cardiovascular surgeon at the University of Virginia Hospital at the University of Virginia in Charlottesville, for any "suggestions he might have for management [of plaintiff's case] in case of further bleeding." As the defendant recalled it, Dr. Wellons had "no specific" suggestions "except that we should esophagoscope the patient before carrying out any exploration if the patient bled again ... [and] that we make a tube gastrostomy [that is an opening in the stomach through which we put a tube leading to the outside] to check more easily on any recurrent bleeding and to allow any nasogastric tube to be removed after a day or two." Dr. Wellons, in his testimony said that "[t]he only specific recommendation that [he could] recall [giving the defendant was] the performance of the gastrostomy." The suggestion of Dr. Wellons for the use of a tube gastrostomy was immediately followed.
After the operation on August 18, the defendant followed closely the plaintiff's condition. By August 21, the Senstaken tube had been removed but not the chest tube for drainage. The defendant was preparing to take a short vacation, which had been long planned. Before doing so, he reviewed carefully the plaintiff's condition. No evidence of further bleeding was observed at the time, the "[c]hest [of the plaintiff] was essentially clear," the plaintiff's "[p]rogress [appeared] satisfactory" and there was, in the opinion of the defendant, no "reason to suspect that [the] plaintiff's esophagus might not be intact." The defendant's opinion was confirmed by the nurse's notes, which characterized the plaintiff's condition as "good", though he complained of "being thirsty" and the "[t]ubes [were] bothering him." The defendant concluded under these circumstances and without any evidence of a fistula, that it was advisable to provide the plaintiff with some nourishment. He accordingly directed that the patient be permitted to have "clear liquids with milk." The defendant, in addition, gave orders for the irrigation with sterile saline solution regularly of the gastrostomy tube. After giving these orders at about midday of August 21, the defendant departed for his planned vacation, leaving the patient in the care of his partner, Dr. Todd, an older and more experienced surgeon.
Dr. Todd visited the plaintiff once in the afternoon and a second time in the early evening of August 21. He ordered an x-ray of the patient to be taken the next morning (August 22). At 7:30 on the morning of August 22, Dr. Todd visited the patient again. He noted on this occasion a significant increase during the night in the drainage through the chest tube. He concluded from this that there had developed "a leak
On August 28, the defendant returned. He became concerned when he visited the plaintiff that the latter's condition might be adversely affected by malnutrition. He hesitated to use intravenous feeding at the time because of the difficulty of hyperalimentation with all the chest drainages and the continued openings in the plaintiff's chest and abdomen. He determined under the circumstances to permit gastostomy feeding. He explained that it was important to feed the plaintiff since "one of the main ways in which people get over infections and heal fistulas, despite the continuing infection, is to have adequate nourishment." At the same time, he ordered an x-ray, which indicated that there was continued leakage. Grape juice was substituted in the feeding in order to confirm this indication of continued leakage. A constant x-ray was made and plaintiff was given albumin. Other x-rays were taken in a continuing effort to localize empyema (infection), but without success.
During all this period the defendant, Dr. Todd and Dr. Pittman were repeatedly seeing the plaintiff and joining in prescribing a steady procession of treatment. The chest tube used for drainage was regularly irrigated and the plaintiff's dressing was systematically changed either by the nurses or by the defendant himself. Finally, on September 15 with plaintiff's condition appearing to deteriorate, the defendant requested and Dr. Wellons agreed to accept the plaintiff at the University Hospital in Charlottesville. The first thing that Dr. Wellons did, after the plaintiff's arrival at the University hospital, was to make sure the "fistula was not [still] present." He did this "by use of a dye marker," in much the same manner as the defendant had earlier used grape juice for the same purpose. He followed this test up with "a barium swallow," used in the same way. Neither confirmed "the presence of a fistula at that time." Chest tube replacements were made, a regimen of antibiotics was begun and feeding by mouth begun. During this time, the University hospital's treatment "was quite similar" to that which the record indicated had been followed at King's Daughters' Hospital, though, as Dr. Wellons explained, "one would have to realize that some of the elements were different, in that we [meaning Dr. Wellons and his associates] knew shortly after his admission that he did not have a fistula, so that would allow different options as far as alimentation, et cetera, but in terms of treatment of the chest, the empyema, it was simply a matter of other attempts to establish drainage and leading up to the operation."
When it became evident that "satisfactory drainage of the chest" was not being achieved, an exploratory chest operation was performed on September 29, two weeks after the plaintiff's admission to the University Hospital. This was, in Dr. Wellons' words, "an extremely difficult operation," in the course of which "many areas of pus [infection] that were not being drained by the tubes that we had put in" were discovered. These "areas of pus" or infection "had severely damaged the lower lobe of the lung," necessitating the removal of such lower lobe. As a "secondary effect of the accumulation of blood after the operation in the space," the chest became infected, winding up "with an empyema, or infection in the pleural space, which required, before his discharge on his first admission to the University [hospital], open drainage of this space." He was discharged from the hospital on November 2 with drainage tubes in his chest space.
A prima facie case of medical malpractice such as the plaintiff asserted "must normally consist of evidence which  establishes the applicable standard of care,  demonstrates that this standard has been violated, and  develops a causal relationship between the violation and the harm complained of." Kosberg v. Washington Hospital Center, Inc., 394 F.2d 947, 949 (D.C.Cir.1968); Luna v. Nering, 426 F.2d 95, 98 (5th Cir. 1970); Rogers v. Okin, 478 F.Supp. 1342, 1384 (D.Mass.1979). What is such standard of care, whether it has been violated, and whether such violation is the proximate cause of plaintiff's injury — in short, the substantive elements of a medical malpractice suit — are all questions to be determined by state law in a diversity action, Hoyle v. Southern Bell Tel. & Tel. Co., 474 F.Supp. 1350, 1356 (W.D.N.C.1979), aff'd 631 F.2d 728 (4th Cir. 1980); Union Live Stock Sales v. Baltimore & O. R. Co., 409 F.Supp. 50, 53-54 (N.D.W.Va.1976, Merhige, J., by designation). On the other hand, whether there is sufficient evidence to create a jury issue of those essential substantive elements of the action, as defined by state law, is controlled by federal rules, Bryan v. Merrill Lynch, Pierce, Fenner & Smith, 565 F.2d 276, 281 (4th Cir. 1977); Wratchford & S. J. Groves & Sons Company, 405 F.2d 1061, 1066 (4th Cir. 1969); Owens v. International Paper Co., 528 F.2d 606, 609 (5th Cir. 1976).
Since this action arose prior to July 1, 1976, the applicable standard of care required under Virginia law was that recognized prior to the enactment of § 8.01-581.20, Virginia Code (1981 Supp.), Noll v. Rahal, 219 Va. 795, 250 S.E.2d 741, 746 (1979), Maxwell v. McCaffrey, 219 Va. 909, 252 S.E.2d 342, 345 (1979).
In order to establish a standard of medical care as well as a violation of such standard, expert testimony is required.
Assuming that a plaintiff has established a prima facie case of a departure by the defendant in his treatment of the plaintiff from that followed "by the ordinary, prudent practitioner in his field and community, or similar communities," the plaintiff must next satisfy by his proof the causation requirement. While there are two tests adopted by the courts for determining causation in this connection,
This rule as to proximate cause
Speer v. United States, 512 F.Supp. 670, 678 (N.D.Tex.1981).
But the plaintiff argues — and this is actually the heart of his appeal — that the "but for" rule, while normally controlling, is subject to an exception in "one situation: where two causes concur to bring about an event and either alone would have been sufficient to bring about an identical result." This exception, pressed by the plaintiff, finds its basis in a footnote in Wells, 151 S.E.2d at 428, n. 1, which, in turn, relies on Prosser, Torts, 243 (3d ed. 1964). However, as Prosser at 245 pointedly observed, the plaintiff under this exception "must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant (Italics added)"
In Bryant v. Rankin, 468 F.2d 510, 515 (8th Cir. 1972), another medical malpractice action in which causation was the issue, the Court said:
Again in Walstad v. University of Minnesota Hospitals, 442 F.2d 634, 639 (8th Cir. 1971), which was also a medical malpractice suit, the Court said:
The Virginia decisions are in line with these decisions. Thus, in Dishman v. Pitts, 202 Va. 548, 118 S.E.2d 509, 512 (1961), a medical malpractice case, the Court said "that in order for the plaintiff to prevail the evidence must show something more than that the injuries complained of may have resulted from one of two causes, for one of which the defendant is responsible and for the other of which he is not." In Hunter v. Burroughs, supra, 96 S.E. at 369, the Court used almost verbatim the language from Prosser, quoted supra, holding that, where there are several causes of an injury in a medical malpractice case, one of which may have been the negligence of the defendant, submission of the cause to the jury on causation is proper only if there is evidence that the injury "was more probably due to lack of skill or negligence of the defendant" than to other causes. See also to the same effect, Lane v. Hampton, 197 Va. 46, 87 S.E.2d 803, 805 (1955).
The reason for this requirement in a medical malpractice suit that the physician's action must be shown to be more likely than not to have been a proximate cause of the plaintiff's injury was stated in Karp v. Cooley, 349 F.Supp. 827, 839 and n. 1 (S.D.Tex.), aff'd, 493 F.2d 408, rehearing en banc denied, 496 F.2d 878, cert. denied, 419 U.S. 845, 95 S.Ct. 79, 42 L.Ed.2d 73 (1979):
The only exception to this requirement of expert testimony is the unusual case "where the negligence and harmful results are sufficiently obvious as to lie within common knowledge," 61 Am.Juris.2d, § 350, at p. 513, or where the resolution of the issue of negligence and causation "would not extend the jury beyond the range of ordinary lay knowledge and experience," Washington Hospital Center v. Butler, 384 F.2d 331, 336 (D.C.Cir.1967). It is plain that this case under review, described by one of the expert witnesses as one presenting a medical condition of "notorious difficulty," is not one within "the range of ordinary lay knowledge and experience" and accordingly depended necessarily for its establishment on expert testimony relating both to standard of care and causation.
Moreover, in order to qualify on causation, the opinion testimony of the medical expert may not be stated in general terms but must be stated in terms of a "reasonable degree of medical certainty." Crawford v. Quarterman, 210 Va. 598, 172 S.E.2d 739, 744 (1970); Lindsey v. The Clinic for Women, 40 N.C. App. 456, 253 S.E.2d 304, 311 (1979). Only if the opinion evidence on causation, as offered by the plaintiff, rises to the level of a "reasonable degree of medical certainty" that it was more likely that the defendant's negligence was the cause than any other cause, is there sufficient evidence on causation to permit jury submission of causation. The basis for requiring such specificity in the opinion of the expert witness in a medical malpractice suit was clearly put in an often cited case, McMahon v. Young, 442 Pa. 484, 276 A.2d 534, 535 (1971):
And the plaintiff in this case seems to have recognized that, for the medical opinion of his expert witness to meet the legal requirements for admissibility on causation, that opinion had to be couched, as Lindsey puts it, in terms of a "reasonable degree of medical certainty" that it was more likely than not that the defendant's action was the cause of plaintiff's injury. This is plain from the form in which plaintiff's counsel phrased his hypothetical questions on causation as directed by him to his expert witness, Dr. McGuire. In all of these questions, counsel requested the expert's opinion, expressed "with a reasonable degree of medical certainty" on whether it was "more likely than not" that it was the defendant's action which "caused the plaintiff's lung infection." It would appear, therefore, that the authorities establish, and the plaintiff accepts, the rule that only if the opinion evidence on causation, as offered by the plaintiff, rises to the level of a "reasonable degree of medical certainty" that it was more likely that the defendant's negligence was the cause than any other cause, is there sufficient evidence on causation to permit jury submission on causation.
The plaintiff in this case has proffered expert testimony, which he contends established both a violation of the appropriate standard of care on the part of the defendant in his treatment of the plaintiff and that such violation was the proximate cause of his loss of a lung. Other than the defendant himself, who was examined as an adverse party, the plaintiff proffered but two medical witnesses on these points. The first of these was Dr. Wellons whose testimony was primarily directed towards establishing his own treatment of the plaintiff after the latter's transfer to the University Hospital. There is nothing in his testimony which would support a claim of negligence or of causation in connection with the defendant's treatment of the plaintiff. The other medical witness was Dr. McGuire, the head of surgery at the Medical College in Richmond. It is on his testimony and his testimony alone that the plaintiff chose to rely to establish the several elements of his cause of action.
Unlike Dr. Wellons, Dr. McGuire had not seen the plaintiff during his sickness and he rested his conclusions on a review of the hospital records made on the eve of the trial itself and on hearing the defendant's testimony at trial. He began his testimony by characterizing the plaintiff's case as one presenting "a unique [medical] situation," one which he (the witness) had not experienced "directly or through the people to whom [he] delegate[d] surgery or through what [he had] read," and one "which arises once or twice in a lifetime with bad luck," and one with respect to which the answers as to correct procedure are not to be derived from "what textbooks say should be done." He went on to add that he had
The witness first addressed the standard of care followed by the defendant in his treatment of the plaintiff. In so doing he said that his testimony both with respect to standards of care and of causation was based on "a national standard of orthodoxy" though, after some questioning by the district judge, he testified he was familiar "with the standard of care, the learning skill and care possessed and practiced in the hospital, ... in Winchester [Va.]," which he regarded as "similar to [the hospital in] Staunton." He expressed the opinion that the operation performed by the defendant on the 18th and the use of the Senstaken-Blakemore tube "met the expectations of the good practice of general surgery." He then identified three areas where the defendant's actions did not in his opinion accord with the appropriate standard of care. The first related to the defendant's authorization of "liquids" administered by mouth to the plaintiff on August 21, four days after "esophageal surgery." The witness testified such action departed from the rule to be followed in connection with mouth feeding after esophageal surgery, which was:
The witness added that there was a middle ground suggested in the American College of Surgeons' Handbook on Post-Operative Care, which apparently suggested that mouth feeding might be permitted on the "sixth day" after such operation. When pressed, however, by the district judge to respond more positively, the witness first said, "I don't want to be arbitrary about it (i.e., when to authorize mouth feeding) because the variety of — There's a range —." Expressing further dissatisfaction with the witness' response, the district judge pointedly inquired of the witness: "... what would be generally considered to be good practice in Staunton or a similar community in 1972 [in this regard]?" To this positive question, the witness responded: "I would say the best practice in Staunton would be what we do at the Medical College," a practice which he had earlier identified as "the ultimate in conservatism. (Italics added)."
It is, to say the least, doubtful that such testimony was sufficient to make a jury issue of whether the authorization of mouth feeding of "liquids" on August 21 was a violation of the standard of care as fixed by Virginia law. At no point did the witness testify to either the "customary" or "normal" procedure followed by a practitioner of surgery in a hospital such as that in Staunton or a similar community. His test, by which he would find negligence, involved what he himself declared to be the "most
The witness raised an objection, also, to feeding later on the 28th through a gastrostomy tube, suggesting that this was another departure from the standard of care required. However, the witness was unwilling to testify that such a procedure would be likely to be understood as improper by a surgeon practicing in Staunton. When asked by plaintiff's counsel, "[w]ould a surgeon in 1972, an average surgeon exercising the standard of care that we have used earlier, be expected to know that gastrostomy tube feedings might wind up in the chest cavity through an esophago-pleural fistula?" The witness answered:
After this answer, plaintiff's counsel inquired of the witness if he had made "a review of the literature available generally to physicians and surgeons in community care hospitals in 1972 regarding management of the esophago-pleural fistula," and the witness replied, "[n]ot a thorough review." At this point, the plaintiff's counsel abandoned any further interrogation of the witness on gastrostomy tube feeding, apparently assuming that the witness was not in a position to testify that, under the circumstances of this case, gastrostomy tube feeding would have been recognized as a departure from the standard of care to be charged against a surgeon practicing at Staunton.
There was, also, some discussion by the witness of what he described as "inadequate drainage." It was the witness' opinion that "drainage from the pleural space is difficult" and, to be effective, "the drain has to be fairly close to the fistula." He gave the opinion that the drainage was, "ineffective" in this case but he was indefinite on the basis for such opinion. It seems that, "in retrospect and review," he reached his opinion because of the "passification" of plaintiff's chest. But without indulging in retrospection, the witness conceded that "the adequacy of drainage" could have been determined accurately by the X-rays in the case. The witness, however, had not examined the X-rays nor had plaintiff's counsel asked him to review the X-rays. In addition, at no time in his testimony in connection with drainage was the witness interrogated on the proper standard of care to be expected of a surgeon in Staunton in connection with the "difficult" problem of drainage in this case. The nearest plaintiff's counsel came to this was in response to this question:
The witness never answered the direct question addressed to him but responded that "the patient should [have been] reoperated on, the chest opened and the esophagus
The final claim of a factual violation of the surgeon's duty of care in this case relates to the defendant's failure to reoperate on August 22 when renewed bleeding was discovered in the drainage.
This answer plainly was not sufficient to establish that a surgeon of ordinary skill and prudence, practicing in Staunton, would have followed any such practice, which the witness says is "generally advocated" in cases already characterized by the witness as "unique" and without "precedent." For that matter there was no evidence that any surgeon in the Staunton area had ever encountered a medical problem such as that presented by plaintiff. Actually, the witness himself never testified that he had confronted such a problem. It is difficult to see how this evidence established a standard of care applicable to this case under Reed v. Church, supra, 8 S.E.2d 288.
Such was the evidence of negligence by which the plaintiff sought to satisfy his burden of showing that, in this unusual and unique medical situation, in which the surgeon, in his actions was without any precedent as a guide and was forced to improvise as best he could among a number of treatment options all of which involved high risks and none of which assured success, the defendant had not met the standard of care as mandated under Virginia law. However, as we have said, the real focus on the argument in this court as it was in the district court was not on the issue of negligence but on the presence or absence of sufficient evidence of causation, as defined by Virginia law, to require submission of the cause to the jury, and we proceed to that issue, assuming without deciding, that there was sufficient evidence of negligence on the part of the defendant.
As we have said, the plaintiff sought to establish causation through the testimony of Dr. McGuire. Only if that testimony provides evidence sufficient to make the issue of causation one for jury submission can the plaintiff complain of the district court's ruling. In an effort to meet that requirement, the plaintiff addressed a number of hypothetical questions to the witness, which, together, covered all of plaintiff's claims of negligence on the part of the defendant pressed by the plaintiff at trial. These answers to the hypothetical questions constitute the entire substantive
With reference to negligence in permitting mouth feeding on August 21, as a basis for a finding of causation, the plaintiff directed this question to the witness:
The witness' initial answer was:
He went on to amplify this answer:
The witness was, also, examined by the District Judge with reference to the alleged error in failing to reoperate or to change the drainage oftener as a basis for a finding of causation. The question addressed to the witness on this aspect of the case was:
To that question, Dr. McGuire answered:
When the District Judge requested the witness to elaborate on this answer, Dr. McGuire testified:
Finally, the plaintiff's counsel turned to the improper drainage claims and asked the witness this question:
His answer was:
He went on to add, "[i]t might have been." This answer apparently did not satisfy counsel and, after repeating the witness' answer, he rephrased the question:
The witness' answer was:
It is perfectly clear from this summarization of the pertinent expert testimony of Dr. McGuire that the latter at no time gave an opinion that, based upon reasonable medical certainty, the plaintiff's injury would not have resulted "but for" those actions of the defendant which Dr. McGuire faulted, nor could it be said that he ever testified that "without [the defendant's challenged actions] that [infection of the plaintiff] would not have occurred," or that it was "more likely" that the infection was caused by the defendant's alleged negligence than by other causes for which the defendant was not responsible.
The standard statement of the rule is the language of Judge (later Chief Justice) Taft in Ewing v. Goode, 78 F. 442, 444 (C.C.Ohio 1897), a medical malpractice action involving the application of the scintilla rule in determining sufficiency of evidence:
The Court found none of these phrases sufficient to support submission of causation to the jury, and in so doing employed the quoted language. (p. 535)
Cf., Sponaugle v. Pre-Term, Inc., 411 A.2d 366, 368 (D.C.App.1980), in which the plaintiff in a medical malpractice case objected to the use by the trial judge of the term "a reasonable medical certainty," contending that the correct term in this context was "a reasonable medical probability." The Court found no reason to resolve the issue since under either definition the result would have been the same. The Court did say, however:
The case under review is like Sponaugle in that, under either term, whether "certainty" or "probability" is used, the result would be the same, as we later point out.
During his cross-examination of Dr. Wellons on this aspect of the case, counsel for the defendant inquired whether, in his deposition taken prior to trial, the witness had testified that "once a fistula had developed" in the esophagus, "it would be foolhardy to attempt to close it surgically." Before the witness could answer, the District Judge interrupted to suggest that such evidence was immaterial. Counsel for the defendant did not pursue the subject with the witness nor did he offer the deposition in evidence. There, however, did not appear to be any dispute over the testimony as it appeared in the deposition.