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June 17, 1964

Nathan Carl SCHWARTZ

The opinion of the court was delivered by: FREEDMAN

This tragic case is an action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2674. While serving in the Navy in England during World War II plaintiff had attacks of breathing difficulty. When his battalion returned to the United States in 1944 he was treated for sinusitis in the Naval Hospital at St. Albans, New York. For X-ray purposes a radioactive contrast dye, umbrathor, *fn1" was inserted into his sinus. The X-ray revealed the presence of a rounded shadow believed to be a polyp in the floor of the left antrum. (P.'s Exh. 2; Transcript, p. 43).

Plaintiff received a medical discharge from the United States Navy on January 27, 1945. In April of that year he applied to the Veterans Administration clinic, then located in the Philadelphia Naval Hospital, for treatment of his sinus trouble. His medical report and history were received from the Naval Hospital at St. Albans by the Veterans Administration in the Philadelphia Naval Hospital in 1945 and kept in a claims folder relating to the plaintiff. (Transcript, pp. 90-91, 690). In these St. Albans records the word 'umbrathor' was underscored and repeated in large capital letters. (P.'s Exh. 3). X-rays taken at the Veterans Administration clinic in 1945 without the insertion of any contrast material showed the presence in the left antrum of an opaque substance which was assumed to be lipiodol, a non-radioactive iodized oil which was commonly used in X-ray studies. (P.'s Exh. 1; Transcript, pp. 41-42).

 Plaintiff again visited the Veterans Administration clinic for treatment in 1947. The clinic physician sent him to the Jewish Hospital for X-rays; the X-ray report from the Jewish Hospital noted the presence of retained iodized oil in the left maxillary sinus. (P.'s Exh. 5). In October of 1948 plaintiff returned to the Veterans Administration clinic for treatment and was placed under the care of Dr. Harry Schluederberg, Chief of the Ear, Nose and Throat Department. X-rays taken at the clinic in November and December of 1948 revealed the presence of 'a large amount of opaque material from a previous diagnostic study in the left maxillary sinus.' (P.'s Exh. 6l). Plaintiff was not told or asked about this substance, but the doctor suggested an antrum wash, an office procedure for irrigation of the sinus. This the plaintiff declined because he was awaiting Veterans Administration approval of his request for permission to have his own physician treat him. (P.'s Exh. 6a, b; Transcript, pp. 902-03). Dr. Schluederberg's diagnosis was suspected allergic rhinitis. He saw no sign of active sinus disease. (P.'s Exh. 6j). No further suggestion of an antrum wash was made and no steps were taken to discover what the substance was or to remove it from the sinus. No effort was made to obtain plaintiff's prior medical records. (Transcript, pp. 262-63).

 In February 1953 plaintiff returned to the clinic complaining now of burning in the nose and throat, headaches and discharges of blood and pus. Dr. Schluederberg saw him several times in February and March 1953 and administered local nasal treatment. He noted on the treatment record that the 'left max(illary) does not transmit light well', indicating that some opacity obstructed the passage of light. (P.'s Exh. 7a). In March the doctor noted that he found no symptoms. He consulted the 1948 X-ray study, but made no effort to obtain plaintiff's prior medical records.

 Plaintiff next saw Dr. Schluederberg at the clinic on April 26, 1955. He complained of fullness of the throat and spitting blood, but examination was negative and no treatment was given. Plaintiff returned in March 1956 complaining of burning, clogging and pain in the nose and throat, discharges, a general feeling of weakness and a sick headache. Dr. Schluederberg noted: 'Left antrum, as usual, does not transmit light.' (P.'s Exh. 8a). Coricidin was prescribed. Dr. Schluederberg saw the plaintiff 36 times during 1956. In later visits during 1956, crust was removed from the posterior pharyngeal wall. In August plaintiff complained of spitting blood and a chest X-ray was ordered, which proved negative. In general plaintiff's complaints of sinusitis symptoms were not borne out by the doctor's findings.

 Finally, a routine tooth extraction in October 1956 led to the discovery of plaintiff's true condition. For several weeks after the extraction, a dark solid material flowed from the socket. X-rays were taken on November 16th and the record notation for November 26th shows: 'Left maxillary does not transmit light. X-ray studies indicate active disease.' Penicillin was administered. (P.'s Exh. 8d). On December 6th the doctor found that the left maxillary now transmitted light 'rather well'. (P.'s Exh. 8e). On December 12th the doctor found that a bloody secretion was flowing from the fistula, so he ordered it closed in the dental clinic on the following day. At this time, a radiopaque material was instrumentally removed by the surgeon from the fistulous tract and sinus.

 Plaintiff suffered great anxiety, pain and discomfort in the period before and after the operation. The knowledge that he had cancer came as a complete and shocking surprise. He was given reason to fear that agony and death from cancer of the throat awaited him. After the surgery, he lay in the hospital with a suction machine for removal of phlegm, a tube through his nose for feeding, and horrible pain. For a while his speech was almost unintelligible. The site of the skin removal from his abdomen became infected and caused him much discomfort.

 At the time of the operation plaintiff was a 36 year old attorney engaged in the private practice of law and also holding a full-time position with the United States in the Philadelphia Procurement District. He eventually returned to his Government job and was able to continue in private practice with the assistance of other attorneys, but his efficiency and ability to perform the typical functions of a lawyer were greatly diminished. Plaintiff must wear an eye patch, and an obdurator is attached to his remaining teeth to assist in speaking and eating. His left check and upper lip droop and have been partially deprived of sensation. There has been a significant effect on his appearance and an impairment of his ability to read and speak, with consequent difficulty in attracting clients, reading, studying, writing and trying cases. The income from his private practice has been adversely affected, and he was recently forced to abandon his government career.

 Far beyond any economic loss and the ending of hopes for advancement in his chosen profession are the dreadful limitations he has suffered in the enjoyment of his everyday life. Every mealtime is a time of difficulty, discomfort and embarrassment. His senses of smell and taste have been diminished, and he must lift his lip with his hand in order to place food in his mouth. Only one side remains on which he can chew. He is unable to control drooling and emission of food particles and mucous from his nose and mouth. Immediately after each meal he must irrigate the cavity with distilled water inserted through the orbital opening, which reaches into his mouth and throat. Irrigation at these and other times consumes about two hours a day.

 He lacks bony protection against blows and he had lost the normal and automatic physical processes which filter and humidify the air one breathes, so that he is constantly exposed to infection and irritation. His home, office and car have had to be equipped with special humidifying devices. Driving and even walking on the street are especially hazardous for him. Strain on his one eye has forced him to give up reading for pleasure. He lives with the fear of a recurrence of cancer, and his self-consciousness regarding his appearance has forced him to withdraw even from his children. He rarely engages in social activity, and his participation in sports, physical activity and even work around the home inevitably has been greatly curtailed.

 Plaintiff claims that these terrible injuries resulted from the negligence of the Government doctors. The negligence charged is not in the original insertion of umbrathor (Transcript, pp. 4-5), for the Government would not be liable for negligence committed when the plaintiff was engaged in military service. (See Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950)). The negligence alleged is the failure, notwithstanding the repeated X-ray reports of a retained opaque substance in plaintiff's sinuses and his repeated complaints of serious symptoms, to take reasonable steps to determine the nature of the substance and to remove it.

 The Government's defense is that the treatment rendered conformed to the standards of accepted medical practice prevailing at the time in this area. It contends that the carcinogenic properties of umbrathor were not generally known prior to 1956 and that the treating physicians in the Veterans Administration clinic had no reason to suspect that the retained opaque material might be anything other than a harmless iodized oil commonly used in X-ray studies. The Government also raises the defense that the plaintiff was contributorily negligent in failing to have an antrum wash performed when it was suggested and in failing to make regular visits to the clinic.

 The umbrathor which was inserted in 1944 turned out to be an extremely dangerous drug. Grave warnings of the hazards of its use had appeared in major medical journals in the 1930's, and new research and case studies confirming its carcinogenic properties were documented and reported in the 1940's. Long before 1957, when the ravages of the disease had made necessary the radical surgery upon the plaintiff, the Government doctors therefore should have been aware of the dangers of the drug. The Government should have reviewed the records of all patients to whom umbrathor had been given and warned them of the danger of its retention in their bodies. Accordingly, even if the plaintiff had never returned to a Government physician after his discharge from military service, there was a duty resting on the Government to follow up those cases in which umbrathor had been installed. The Government must be charged with knowledge that umbrathor had been used by its physicians at an earlier date, and its roentgenologists must have known of the danger of umbrathor. The negligence here is not in its installation, but rather in not having affirmatively sought out those who had been endangered after there was knowledge of the danger in order to warn them that in the supposedly innocent treatment there had now been found to lurk the risk of devastating injury. And if the otolaryngologists rendering day to day treatment in the ...

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