to the VA Hospital in Wilkes-Barre for treatment of a condition which was diagnosed as osteomyelitis of the right femur. He thereupon came under the primary care of Dr. H. P. Wetherbee, an orthopedic surgeon employed by the VA.
On April 3, 1968, Dr. Wetherbee operated on the plaintiff. The operative procedure disclosed a small pocket of purulent material along the shaft of the right femur. A swab was taken of the purulent material for smear, culture and sensitivity studies. During the operative procedure, two hemovac tubes were introduced into the depths of the wound, one proximally and the other distally. Thereafter the surgical wound was closed loosely and a dry sterile dressing applied.
The culture test performed on the purulent material indicated that the organism present was a beta hemolytic staphylococcuscoagulase positive (hereinafter referred to as "staph"). Sensitivity tests taken revealed that the staph was susceptible to treatment with the following medication: oleoan; terramycin; tetracycline; chloromycetin; penicillin; streptomycin; prostaphlin; erythromycin; polycillin; furadantin; novobiocin; mandelamine; neomycin; kanamycin; keflin; lincocin and daotriacetyloleandomycin. On April 5, 1968, Dr. Wetherbee prescribed two antibiotics to treat the osteomyelitic condition: polycillin orally and neomycin as a surgical wound irrigant administered through the use of the hemovac tubes.
At 4:00 p.m. on April 5, 1968, a 1% neomycin drip, at the rate of sixty (60) drips per minute was begun, and continued twenty-four (24) hours a day until April 18, 1968. At that rate plaintiff could have received as much as 5,760 cc. of 1% neomycin solution during each twenty-four hour period; and in any event, he did receive at least 4,320 cc. of 1% neomycin solution during each twenty-four hour period. This translates to at least 43.2 grams of neomycin during any twenty-four hour period. Thus, plaintiff was administered at least 549 grams and perhaps as much as 732 grams of neomycin during his hospitalization in April 1968. Plaintiff remained in the hospital until April 30th. When he was discharged on that date the osteomyelitis had cleared.
B. Plaintiff's Loss of Hearing and the Accrual of His Claim
In mid-June 1968, plaintiff first noticed a ringing sensation in his ears and some loss of hearing. He sought medical care by visiting his family doctor, Dr. Mazaleski, who in turn referred him to an ear specialist, Dr. Soma, in Scranton, Pennsylvania. On August 27, 1968, Dr. Soma performed an audiometric test on plaintiff and formed the opinion that the ringing sensation and loss of hearing was due to bilateral nerve deafness of unknown etiology.
On September 9, 1968, plaintiff was examined by another ear specialist, Dr. Cole of Geisinger Medical Center in Danville, Pennsylvania. Dr. Cole, after examination and an audiometric test, diagnosed the hearing loss and ringing sensation as bilateral sensorineural deafness. On September 10, 1968, plaintiff returned to the VA Hospital ear, nose and throat clinic, where he informed a Dr. Fischoff of the ringing sensation and loss of hearing. Dr. Fischoff administered an air conduction test. Plaintiff was not informed of the results of the test, but was sent to the dispensary for a prescription to help his condition. The plaintiff was still bothered by the ringing sensation and hearing loss which was becoming progressively worse, and in November 1968, was examined and tested by Dr. Joseph A. Sataloff, an ear, nose and throat specialist in Philadelphia. Dr. Sataloff, after physical examination and an air conduction test, opined that plaintiff was suffering from bilateral hearing loss. Dr. Sataloff told plaintiff he would try to reduce the ringing sensation, and impede the continued degeneration of hearing loss, and that he would also send for the VA hospital records in an effort to find their etiology. This commenced a series of visits with Dr. Sataloff, until the summer of 1971 for treatment of his hearing condition.
Dr. Sataloff testified that he informed plaintiff during his initial visit, and during many visits thereafter, that the antibiotics he had received during his hospitalization in April of 1968 had caused his hearing problems. We do not credit this testimony. Instead we find that Dr. Sataloff told plaintiff and reported to the Veterans Administration, insurance companies, and others that it was his opinion that it was "highly possible" (or other similar language) that the hearing loss was caused by the neomycin solution given in the Veterans Administration Hospital. For instance, on June 30, 1969, Dr. Sataloff completed and submitted a certificate of attending physician for the Veterans Administration in which he stated "[there] is an excellent chance that Mr. Kubrick's present hearing loss is the result of neomycin toxicity." This submission followed the filing by plaintiff on April 16, 1969, of a claim to the Veterans Administration for disability benefits to compensate him for his hearing problems based upon Dr. Sataloff's opinion that the neomycin had been the "possible" cause of his deafness.
We find that at no time prior to mid-1971 did Dr. Sataloff advise or in any way indicate to the plaintiff by word or writing that there was malpractice or negligence in the administration of neomycin at the VA Hospital in April 1968. We also find that it was reasonable for plaintiff to continue to believe, even after consultation with Dr. Sataloff, that his deafness was not the result of malpractice in view of the technical complexity of the question whether his neomycin treatment was unduly hazardous.
On August 11, 1969, a Veterans Administration Board of Physicians was convened to consider whether plaintiff's hearing loss had any relationship to the use of neomycin during the period of his hospitalization in April 1968. The Board thereafter informed plaintiff that his claim had been denied on the basis that no causal relationship existed between the neomycin administration and the hearing loss, as well as for the reason that there was no evidence of "carelessness, accident, negligence, lack of proper skill, error in judgment, or any other fault on the part of the Government." Moreover, on September 5, 1969, Mr. McCauley, the Adjudication Officer in the Veterans Administration Center at Philadelphia, advised the plaintiff that the Veterans Administration had found that his hearing loss was not attributable medicinally or medically to his April 1968 hospitalization, and that his claim for compensation as a result of his hearing loss was therefore disallowed.
On September 25, 1969, plaintiff submitted a "Statement in Support of Claim" in which he expressed his disagreement with the Veterans Administration's denial, stating that Dr. Sataloff had requested and reviewed all past and medical history and had informed him that the medication given him during his hospitalization in April 1968 was responsible for his loss of hearing. On September 26, 1969, the Veterans Administration issued a "Statement of the Case" in plaintiff's appeal which again declared that plaintiff's claim was denied due to lack of causal relationship and a lack of evidence showing carelessness, accident, negligence, lack of proper skill, error in judgment, or any other fault.
On January 13, 1970, plaintiff was admitted to the VA Hospital in Wilkes-Barre, and remained as an in-patient until February 16, 1970. During that time, a complete audiometric examination by the Ear, Nose and Throat Clinic confirmed the fact that he suffered from a severe bilateral sensorineural hearing loss which completely foreclosed speech discrimination and for which a hearing aid would be of no assistance.
An important development in the history of this matter occurred on May 20, 1971, when the Veterans Administration sent plaintiff a "Supplemental Statement of the Case" containing the following report of a Veterans Administration field examiner, J. A. Nagy:
VA field examination report: Dr. J. J. Soma stated after examining the veteran on August 27, 1968, he concluded that the Veteran's problem was a result of his employment in the machine shop. He stated he planned on treating the veteran along such lines, but he never came back for further treatment.
That Veterans Administration Statement identified two reasons for denial of compensation for plaintiff's hearing loss:
The additional evidence including the current Veterans Administration examination does not show any veteran's hearing disability was due to any carelessness, lack of medical skill, negligence or error in judgment, mal-practice or other knowledge on the part of the staff of the Veterans Administration Hospital.