The evidence in the case presents certain difficulties of reconciliation. there was evidence that the libellant suffered an attack of relatively short duration on March 15, 1946. But this was tied closely to the issue of the alleged defective throttle, which the jury in the action against the general agent found was in proper working order. Whether the jury also concluded that the libellant did not suffer an attack cannot be said. It is not important: I have found that the Master was not aware of it at the time he spoke to the physician, and that is, of course, a most significant time; also, the medical testimony in the case was based on the assumption that such attack did occur, so that the libellant is not harmed. I have found, further, that the Master was acquainted with the incident which occurred on March 16. He may also have been aware of the incident on March 14, but he testified that he did not learn of it until March 18, two days after he spoke to the physician. His testimony in this respect is not unlikely, since the matter was treated as relatively minor by the libellant himself.
I accept the testimony of the Master that he spoke to a physician of the United States Public Health and Quarantine Service. Because it is critical to the issue, I have made as specific a finding as possible as to the advice given by the physician. What the Master knew at the time he spoke to the physician, and in what manner he presented those facts, cannot be precisely established. Undoubtedly the recitation would reflect the Master's and the purser's feeling that the libellant suffered from acute indigestion, if their testimony as to their opinion is accepted.
The libellant contends that the physician should have come aboard to examine him; that he should have been removed to a hospital; that he should have been confined to bed, with meals served, and with the use of a bed pan; and that a medication known as a 'dilator' should have been administered. If these things had been accomplished, he maintains, he would not have had the attack of March 18, or he would not have had it so soon and the heart injury would not have been so great.
A thrombosis builds up over a period of time, but just when the occlusion will take place cannot be predicted. The attacks which the libellant suffered prior to March 18 were described as 'pilot' attacks of coronary insufficiency pointing toward the build-up for the thrombosis. However, as respondent's heart specialist, Dr. Wolferth, explained, it is only after the thrombosis occurs that they can be called 'pilot' attacks; both he and Dr. Stroud testified that a patient may go on having repeated attacks of the same symptoms before suffering the thrombosis. The use of a 'dilator' is primarily to relieve the pain of the attack of coronary insufficiency. It is not curative or preventive in its action or effect. Dr. Wolferth also testified, and I credit his testimony, that 'relatively new' anticoagulation medicines are not usually applied in hospitals, and it is not often done owing to the lack of assurance that the blood clotting process is going on and to the length of time necessary to study the patient's blood coagulation time.
The medical testimony makes plain the conclusion that the specialists in the profession are not in agreement as to whether complete or absolute bed rest is mandatory, or.even desirable in the case of an attack of coronary insufficiency. They are not in agreement on the effect of absolute bed rest upon the incidence of thrombosis. Dr. Wolferth summarized it very well as follows:
'One of the things that bother us doctors most is how we are going to stop a person from getting an attack of acute coronary occlusion or complete blockage of a vessel, once symptoms pointing in that direction have begun to manifest themselves.
'Now, there are some doctors who would put such patients to bed immediately, and if you do that, then will find that even then a patient will get coronary occlusion.
'There are others, like myself, who think if you put such patient to bed you thereby slow the coronary blood flow and you favor the clotting process, so that if I think a patient is threatened with that condition, and nothing happens so far as I am able to see, I don't put such patient to bed. I keep watching, yes, but I let him sit around the room. Now, some of my patients go on and develop acute coronary thrombosis under these conditions. This is one of the matters in medicine that is just not settled at the present time. One of the many things we don't know as much about as we would like.
'So, I think it would depend on the doctor's predilection in the matter, whether he would think that the man would be benefitted or harmed by not putting him in bed in a hospital. Personally, if the man was quiet and comfortable, I don't think he was harmed.' (N.T. 407.)
Dr. Stroud, the other heart specialist whose testimony was abduced by the respondent, stated that patients suffering coronary insufficiencies may be permitted to do those things which do not cause pain.
The medical experts whose testimony was abduced by the libellant differed in their viewpoint from opinions stated with respect to the treatment involved. But their testimony serves only to emphasize the counter-vailing opinions in the profession. It does not prove that the choice of the one view over the other amounts to negligence. Graham v. Alcoa S.S. Co., 3 Cir., 1953, 201 F.2d 423.
The libellant was relieved of duty and resting from the time he suffered the attack on March 16 until the attack on March 18. The latter attack occurred while he was resting in a deck chair. The libellant's physicians believed absolute bed rest would have made a difference. The respondent's physicians believed that the thrombosis was going to occur, and Dr. Wolferth stated that it would have occurred at the time it did, whether he was confined to bed or not; undoubtedly Dr. Wolferth, upon the quotation above, felt that he was perhaps slightly better off. I am obliged to conclude that insofar as present medical knowledge furnishes a basis for opinion, whichever treatment this libellant received, the risk was as great that he would have the thrombosis as he did have.
I therefore, state the following
Conclusions of Law
1. Libellant has failed to sustain the burden of proof in his attempt to establish negligence on the part of the respondent.
2. There was no negligence or dereliction of duty on the part of the respondent.
3. Libellant received prompt, proper and adequate medical care and attention.
4. The cause of action against the United States of America and United States Maritime Commission should be dismissed.
An Order may be submitted in accordance herewith.