
    HELEN M. BOOTH v. THE UNITED STATES
    [No. 50105.
    Decided October 9, 1957]
    
      
      Mr. Harry 1. Band for the plaintiff.
    
      Mr. Edward L. Metzler, with whom was Mr. Assistant Attorney Generad George Cochran Doub, for the defendant.
   Littleton, Judge,

delivered the opinion of the court:

Plaintiff brought suit against the United States (acting through the medical personnel of the United States military government in Germany) for malpractice, alleging that her husband’s death was caused by the failure of the Army medical personnel to use reasonable care and skill in diagnosing and treating her husband’s condition, thereby breaching the contractual obligation which the Government had assumed toward her husband.

The essential facts of this case are as follows: The deceased, hereafter referred to as “Booth”, was, for some time prior to and at the time of his death, a civilian employee of the United States War Department with his duty station in Nuremberg, Germany. In September of 1945, Booth had applied for overseas employment with the Office of Military Government in Germany and at that time certified on his application that he did not have “any physical defect or disability whatsoever.” Upon examination he was found by the Army medical personnel to be physically and mentally qualified for overseas service. Unknown to the governmental authorities at that time, Booth had had a long medical history of stomach trouble. While still a student at the University of California, he had been examined and treated in 1942 at the University’s Cowell Memorial Hospital, and the hospital’s records reveal a medical history of a “nervous stomach” for over 15 years during which time phenobarbital and belladonna had been used for relief. The hospital made a diagnosis of the probable existence of a small duodenal ulcer with no ulceration or malignancy.

Booth went overseas October 13,1945 and was assigned to the Office of the United States Chief of Counsel at Nuremberg, Germany, but he spent a substantial amount of time on temporary duty in Berlin during the summer of 1946 and was in Berlin occasionally during the fall of 1946.

The standard form contract between Booth and the War Department under which the malpractice claim is made provided as follows:

Necessary medical care and hospitalization, as may be currently established, will be provided through United States Army facilities at no cost to Employee.

During the period of Booth’s employment, there was also in existence a directive of the Quadripartite Military Government purporting to forbid civilian employees of the allied powers in Germany from going to civilian physicians for medical services. To provide medical services for its civilian and military personnel, the United States Army maintained dispensaries, clinics, and hospitals in both Nuremberg and Berlin where Booth worked, and the Army also maintained a Consultants Division composed of a medical and a surgical consultant to whom patients could be referred when the individual Army doctor felt that such reference was advisable.

After his arrival in Germany, Booth continued as previously to suffer gastrointestinal discomfort. In a letter of November 7, 1945, he wrote to his wife that “Gas troubles are as painful as at any previous time,” and he requested that she send him certain medications. On May 3, 1946, a medical officer at the dispensary at the Office of U. S. Chief of Counsel in Nuremberg addressed a note to the “mess sergeant” stating that it was “medically necessary” that Booth receive milk and no greasy foods such as fried eggs with his meals. Booth carried this document with him when taking his meals at the mess in Nuremberg. About a month later Booth again went to the dispensary with gastrointestinal complaints and was referred to the medical clinic in Nuremberg. It is not known whether or not Booth went to the clinic at that time.

Booth spent the summer months of 1946 on temporary assignment in Berlin where his wife joined him on July 2. Plaintiff found that her husband had lost weight and was still suffering stomach pains. On July 11, 1946, Booth visited a dispensary in Berlin and was examined by Captain Guemmer, a medical officer, who noted that Booth’s condition sounded like a “psychosomatic complaint all around, except that there is a definite intolerance to fatty foods.” Captain Guemmer referred Booth to the X-ray department of the United States Army Hospital in Berlin for “GI series and g.,b. visualization” (X-ray of the upper gastrointestinal tract and gall bladder visualization by X-ray). These tests were made in August 1946 with negative results in that no organic disease was disclosed. Booth continued to suffer pain, and when that fact was reported to Captain Guemmer on or about August 27,1946, he noted that Booth was going to Nuremberg at present but that he would send Booth to the clinic in Berlin upon his return. Booth stayed in Nuremberg during the late summer and most of the fall with occasional business trips to the Ruhr region and to Berlin. During this period Booth went to the Army dispensary in Nuremberg but there is no record of what occurred during such visit or visits. Booth continued to have stomach pains, lost weight, became more irritable and nervous, and his physical condition adversely affected his work.

When Booth went back to Berlin to spend the Christmas holidays with his wife, he again visited Captain Guemmer who sent him to the medical clinic “for re-check”. Booth went to the clinic and saw First Lieutenant Robert A. Broome, Jr. on December 20, 1946. He told Lieutenant Broome that he had been troubled by gas for several years, that the character of his difficulty had not changed, and that he was not aware of any loss of weight. Lieutenant Broome did not have any X-rays made after learning that the X-ray tests performed in August of that year at Captain Guem-mer’s direction were negative. Lieutenant Broome made a tentative diagnosis of functional aerophagia (air swallowing) and advised Booth to try to avoid swallowing too much air. He gave Booth some medicine and told him to let him know if the symptoms were not relieved. During the rest of the period he spent in Berlin during the holidays, Booth’s discomfort did decrease as a result of a bland diet, bed rest, and the medication prescribed by Lieutenant Broome.

While he was in Berlin at this time, Booth went to a German radiologist who made some X-rays of Booth’s gastrointestinal tract. These X-rays did not indicate any organic disease. Booth returned to Nuremberg, and there consulted a German physician, Professor Bingold, who also had X-rays made of Booth’s gastrointestinal tract. These X-rays did not reveal any organic disease or abnormality, but did show an enlargement of the lining of Booth’s stomach. Professor Bingold advised Booth to go to Switzerland for a rest. Booth secured a 80-day leave of absence and on February 8, 1947 drove his car from Nuremberg to Zurich, where he entered the Bircher-Benner Clinic as a patient. On February 16, 1947 Booth had a massive hemorrhage and hemorrhaging continued until Booth’s death. Professor Oskar Winterstein, a Zurich surgeon specializing in stomach surgery, was called in after the massive hemorrhage, and made a diagnosis that it was highly probable that Booth had a cancer in the stomach. After plaintiff arrived at her husband’s bedside, she urged Professor Win-terstein to operate but he refused, and, at plaintiff’s request, the United States military authorities in Germany sent to Zurich a noted German surgeon, Professor Ferdinand Sauer-bruch. Assisted by Professor Winterstein, Professor Sauer-bruch performed a phrenicotomy on March 6,1947 to relieve the severe abdominal pain. On March 10, 1947 Booth was transferred from the Bircher-Benner Clinic to the Bed Cross Hospital in Zurich. Two days later Professor Sauerbruch performed a second operation in which he opened the abdominal cavity and discovered the existence of a dish-shaped carcinoma (or cancer) on the lesser curvature of the stomach at the cardia. Kemoval of the carcinoma was not possible at that time because of Booth’s great loss of blood and consequent extreme exhaustion. Booth died on March 19, 1947 as a result of carcinoma and complications resulting from it.

Plaintiff based her action upon the theory that the United States was legally obligated to provide necessary medical care for her husband and that the United States, acting through its Army- medical personnel in Germany, breached that duty by failing to use reasonable and proper skill and knowledge in diagnosing the disease from which the deceased was suffering, and negligently diagnosed his condition as aerophagia or minor indigestion. Plaintiff further alleges that as a result of this negligence, the cancer grew to such proportions that surgery was required and Booth died from cancer of the stomach and post-operative complications, and that his death was caused solely by the negligence of the Army medical authorities and physicians.

Jurisdiction to hear and decide this case was conferred upon this court by a special act of Congress, Private Law 863, 81st Congress, 2d Session, which reads as follows:

That jurisdiction be, and it is hereby, conferred upon the United States Court of Claims to hear, determine, and render judgment upon the claim of Helen M. Booth against the United States for compensation on account of the alleged failure of the United States military government in Germany to provide medical treatment to her deceased husband, Alfred H. Booth, who died on March 19, 1947, in Zuerich, Switzerland: Provided, That proceedings for the determination of said claim shall be had in the same manner as in cases of which said court has jurisdiction under the provisions of section 1491, title 28, United States Code, as amended: And frovided further, That suit hereunder shall be instituted within one year after the enactment of this Act: Provided, however, That the passage of this Act shall not in any way be construed as an inference of liability on the part of the United States Government.

The United States did have a legal obligation to furnish its civilian employees in Germany necessary medical service. That was clearly one of the terms of the employment contract entered into between such employees and the United States. To satisfy that contractual obligation, the United States, acting through the medical personnel of the United States military government in Germany, was obligated to meet the same standard of care as any other physician contracting to render medical service. That standard is usually stated to be such “reasonable and ordinary care, skill, and diligence as physicians and surgeons in good standing in the same neighborhood, in the same general line of practice, ordinarily have and exercise in like cases.” 41 Am. Jnr. (Pbys. & Surg.) § 82, p. 201. Failure to meet that standard would be malpractice, which can be defined as “bad or unskillful practice on the part of a physician or surgeon resulting in injury to the patient.” 70 C. J. S., Physicians and Surgeons, Section Y, § 40. Lack of skill or care in diagnosis as well as in treatment is malpractice. Kuechler v. Volgmann, 180 Wisc. 238. See also 41 Am. Jur. (Phys. & Surg.) § 92, pp. 209-210. Although a physician or surgeon is liable for a failure to diagnose correctly if such failure is due to a lack of required skill or care, if he does use the proper degree of skill and care, he is not liable for a mistake in diagnosis.

While the Army medical personnel in Germany, in their medical care and treatment of Booth, had to exercise that degree of care and skill ordinarily exercised by the medical profession in similar cases, it did not have to exercise extraordinary skill and care or the highest degree of skill and care possible, and so long as the requisite skill and care were used, a mistake in diagnosis was not malpractice. There is no evidence that the medical procedures followed by the Army medical authorities were not the standard and accepted procedures for a case such as Booth’s. The medical procedures outlined by plaintiff’s expert witness, Dr. William M. Ballinger, might very well have been the ordinary and reasonable standard for a highly skilled specialist, because the law demands a higher degree of skill and care in the case of a specialist. Had cancer been suspected in Booth’s case, the United States would have been obligated to secure the services of specialists who no doubt would have used the diagnostic techniques suggested by Dr. Ballinger, and failure to use such techniques would have been malpractice. However, cancer was not suspected, and the Army doctors were not negligent in failing to suspect the existence of a cancerous condition in view of Booth’s past medical record and the unchanging nature of his complaints. In 1945 before Booth went overseas, he admitted to a private physician that he had had his gastrointestinal difficulties for “about 28 years”. Booth either did not think his condition was serious or he deliberately withheld information as to his condition when he applied for overseas employment. Tbe Army medical personnel did not fail to take reasonable steps to determine Booth’s condition. The “GI series and g. b. visualization” ordered by Captain Guemmer had negative results, but since Booth continued to complain, Captain Guemmer decided to send Booth back to the Army medical clinic upon Booth’s return to the city. Booth did not return to Captain Guemmer until December 19, 1946, and Captain Guemmer sent him to the clinic for recheck the next day. Nothing in Captain Guemmer’s actions can be considered to be less than ordinary and reasonable skill and care. The diagnosis and treatment which Booth received from Lieutenant Broome at the clinic cannot be said to depart from the standard of care required. In view of the unchanging nature of the complaint and the fact that X-rays had been made less than six months earlier and with negative results, it was not negligent for Broome to fail to have another series of X-rays made. Although the tentative diagnosis of aerophagia was incorrect and, even if negligently arrived at, it was merely a working diagnosis subject to confirmation, if Booth did not respond to the medication prescribed.

The medical treatment given by the Army medical personnel was of the same standard as that of other reputable private physicians practicing in the same general area. This is indicated by the fact that the X-rays made by the German radiologist also failed to reveal the presence of cancer, and the X-rays made by Professor Bingold showed no organic disease. Professor Bingold did not suspect the existence of cancer and merely ordered Booth to go to Switzerland for proper diet and rest.

It was not until the massive hemorrhage occurred that stomach cancer was suspected. It is not known when the cancer began to develop, because cancer of the stomach does not produce symptoms for a period of time after its first appearance. The location of Booth’s cancer made it difficult to discover. In view of Booth’s long history of stomach trouble, the unchanging nature of his complaint, and the nature of cancer itself in its early stages, there was no reason to suspect the existence of cancer. It was only when the carcinoma had ravaged Booth’s body to the point of involving a blood vessel with resulting hemorrhage that cancer was suspected. With the advantage of hindsight, it maybe said that an endoscopic investigation (gastroscopy) or an exploratory operation (laparotomy) might have earlier disclosed the cancer in time to save or at least prolong Booth’s life, but there was no reason for the government physicians to suspect the existence of cancer and to warrant such extreme diagnostic measures. The Army medical personnel, in view of the data reasonably available to them, did not fail to afford Booth the standard and accepted medical care and treatment.

We have found no malpractice in this case, and it therefore becomes unnecessary to discuss plaintiff’s arguments as to proximate cause and the amount of damages suffered by her. The United States did not breach any duty owed to the deceased, and the petition is dismissed.

It is so ordered.

Madden, Judge; Whitaker, Judge; and Jones, Chief Judge, concur.

Laramore, Judge, took no part in the consideration and decision of this case.

FINDINGS OF FACT

The court, having considered the evidence, the report of Commissioner Mastin G. White, and the briefs and argument of counsel, makes findings of fact as follows:

1. The plaintiff, Helen M. Booth, is a citizen of the United States and a resident of the City of New York, N. Y. She is the widow of Alfred H. Booth, whom she married in 1940 at Yuma, Arizona.

2. Alfred H. Booth (usually referred to hereinafter as “Booth”) died at Zurich, Switzerland, on March 19,1947. At the time of his death, Booth was a civilian employee of the United States War Department. His duty station was Nuremberg, Germany, and his work assignment related to the prosecution of war criminals.

3. The plaintiff instituted this action, which seeks to recover the sum of $177,178.08 from the United States, on April 12,1951, under the provisions of Private Law 863, 81st Congress, approved August 25, 1950 (64 Stat., Part 2, p. A191). Private Law 863 provides :

That jurisdiction be, and it is hereby, conferred upon the United States Court of Claims to hear, determine, and render judgment upon the claim of Helen M. Booth against the United States for compensation on account of the alleged failure of the United States military government in Germany to provide medical treatment to her deceased husband, Alfred H. Booth, who died on March 19,1947, in Zuerich, Switzerland: Provided, That proceedings for the determination of said claim shall be had in the same manner as in cases of which said court has jurisdiction under the provisions of section 1491, title 28, United States Code, as amended: And provided further, That suit hereunder shall be instituted within one year after the enactment of this Act: Provided, however, That the passage of this Act shall not in any way be construed as an inference of liability on the part of the United States Government.

4. Booth was born in Germany on December 22,1897. He later immigrated to the United States and became a naturalized citizen of this country.

' 5. On reaching maturity, Booth was a man of slender build, but he had broad shoulders. His height was about 5 feet and 4 inches, and his customary weight varied between 120 and 130 pounds. In temperament, Booth was' nervous and high-strung.

6. Booth attended the University of California, and graduated from that institution in 1944 with the degree of bachelor of arts. He completed the four-year course in approximately two years, and was elected to Phi Beta Kappa.

7. While a student at the University of California, Booth was examined and treated in 1942 and 1943 by medical personnel of the University’s Cowell Memorial Hospital. His previous medical history, as compiled at the hospital on January 16, 1942, indicated that Booth had been troubled by a “nervous stomach” for the preceding 15 years, and had received prescriptions for phenobarbital and belladonna. This referred to a chronic complaint of gas pains in the stomach, which extended back to Booth’s youth. X-rays of Booth were made at the Cowell Memorial Hospital; and it was the conclusion of the hospital’s medical personnel with respect to Booth’s condition that lie probably bad “a small duodenal ulcer,” but tbat there was no evidence “of ulceration or malignancy in the stomach itself.” Booth was put on a special diet by the doctors at the Cowell Memorial Hospital and was given some medication. However, Booth continued to experience gastrointestinal discomfort while attending the University of California and for the remainder of his life, although it constituted a mild chronic condition (at least up until the summer of 1946) and did not seriously interfere with his work.

8. After graduating from the University of California, Booth worked for a few months in the personnel department of the Kaiser shipyards. He then obtained a job with the United States War Labor Board in San Francisco, California ; and in August 1944 he was transferred by that agency to Washington, D. C., where he worked as an economist.

9. While working in Washington, D. C., for the War Labor Board. Booth consulted Hr. I. Alpher on March 27, 1945, because of his gastrointestinal troubles. Dr. Alpher noted that Booth’s symptoms had existed “about 23 yrs.”; that Booth was not then having pains, “but has much gas”; and that “Gas has been worse in past couple of weeks”. Dr. Alpher prescribed neo-cultol for the relief of Booth’s condition.

10. On September 30, 1945, Booth applied to the United States War Department for a position with the Office of Military Government of the United States in Germany. In applying for the position, Booth certified that he did not have “any physical defect or disability whatsoever.”

11. In connection with his application for overseas employment with the War Department, Booth was given a physical examination by Army medical personnel in Washington, D. C., on October 8,1945. The Certificate of Medical Examination filled in by Army medical personnel and signed by Booth for identification indicated that Booth had not had any illnesses except for the usual childhood diseases, and that he did not have any gastrointesinal disease, abnormality, or defect. Booth was found by the Army medical personnel to be physically and mentally qualified for overseas service.

12. Booth was employed by the War Department on October 13, 1945, for service overseas with the Office of Military-Government of the United States in Germany. The initial appointment was for a minimum period of six months; and after the expiration of the minimum 6-month period, the contract of employment was to be terminable at the will of either party upon the giving of a written notice two weeks in advance of the termination date. On April 14, 1946, Booth received what purported to be “indefinite tenure * * * for a period of not less than one year,” but the employing agency expressly reserved “the right to terminate this period of employment by serving on the employee thirty days notice in writing.” This “indefinite tenure * * * for a period of not less than one year,” subject to the right of the employing agency to terminate the employment at any time on 30 days’ written notice in advance, was restated in a document to which Booth gave his assent on January 28,1947.

13. Booth departed for his overseas assignment on or about October 13,1945. He proceeded by aircraft to Nuremberg, Germany, where he was assigned to the Office of U. S. Chief of Counsel for the ■ prosecution of war criminals. Nuremberg continued to be Booth’s permanent station throughout the remainder of his life, but he spent a substantial period of time in Berlin on temporary duty during the summer of 1946 and was in Berlin occasionally during the fall of 1946.

14. Booth’s first position in the Office of U. S. Chief of Counsel was that óf a translator-interpreter, grade P-4. Booth performed his duties in an exceedingly diligent and competent maimer, and he was an extremely valuable man in the organization to which he was assigned. Because of his good work, Booth was made a research analyst; and on May 21, 1946, he was promoted to the position of Chief Research Analyst in the Economics Division, Office of U. S. Chief of Counsel. This position was classified in grade P-5. Later, the chief of his division recommended Booth for promotion to a position in grade P-6, but that recommendation was never effectuated.

15. Booth’s gastrointestinal difficulties continued after his arrival in Germany. In a letter written to the plaintiff (who was in Washington, D. C.) on November 7, 1945, Booth stated (among other things) that “Gas troubles are as painful as at any previous time”, and he requested that he be sent “neo-cult”, suppositories, and ahiminum hydrate.

16. The employment contract between Booth and the United States (which was on a standard form used by the War Department for all civilian personnel employed for service in Germany) provided in paragraph 6 of section II that:

Necessary medical care and hospitalization, as may be currently established, will be provided through United States Army facilities at no cost to Employee.

Moreover, there was in effect at the time of Booth’s employment and throughout the period of his overseas service a directive of the Quadripartite Government which purported to forbid civilian employees of the allied powers in Germany (such as Booth) to go to civilian physicians for medical services.

17. (a) In order to provide medical services for United States civilian and military personnel in Germany, the United States Army maintained numerous medical facilities, including dispensaries, clinics, and hospitals, at various places. There was a dispensary to serve the personnel of the Office of U. S. Chief of Counsel in Nuremberg, and a medical clinic and hospital were also maintained in Nuremberg. At least one dispensary, a medical clinic, and a hospital were maintained in Berlin. The Army hospitals in Nuremberg and Berlin were staffed with doctors who were experienced and competent in medicine and surgery. These staffs included doctors who were trained in the field of gastrointestinal diseases and afflictions. The hospitals in Nuremberg and Berlin had first-class facilities for diagnosis and treatment, including surgery if necessary.

(b) The normal procedure among civilian personnel of the War Department at a place such as Nuremberg or Berlin was for a civilian employee who felt that he needed medical attention to go first to a dispensary; and if the medical officer who examined the employee at the dispensary believed that proper diagnosis or treatment required the use of facilities not available at the dispensary, the employee would be referred to a medical clinic (which was an out-patient facility usually maintained in connection with, a hospital for the diagnosis and treatment of persons not requiring hospitalization) or to a hospital if the employee appeared to require hospitalization.

(c) The Army medical authorities in Germany also maintained a Consultants Division in Frankfort, which is located approximately 200 miles from Nuremberg and approximately 250 or 300 miles from Berlin. It was comprised of two doctors, who were selected for such assignments on the basis of experience and competence. One was a medical consultant and the other was a consultant in surgery. If an Army doctor at a dispensary, clinic, or hospital felt that it was advisable for a consultant to see a patient, the doctor was authorized to get in touch with the consultant and ask him to come and see the patient, or the patient could be sent to see the consultant if the latter procedure seemed to be the more feasible.

18. On May 3,1946, Booth obtained from a medical officer at the dispensary maintained by the United States Army for personnel of the Office of U. S. Chief of Counsel in Nuremberg a note addressed to “Mess Sergeant” and stating:

It is medically necessary that Mr Alfred H Booth continue to be furnished powdered milk at meals and that he not be furnished any greasy foods such as fried eggs.

On the back of this note, another officer (presumably a mess officer) wrote a directive as follows:

Kindly give this man milk and boil his eggs for breakfast.

Booth customarily carried this document on his person thereafter and displayed it at meal times to the personnel at the mess in Nuremberg where he took his meals.

19. Booth again visited the dispensary in Nuremberg on June 19, 1946. On that visit, because of Booth’s gastrointestinal complaints, he was referred by personnel at the dispensary to the medical clinic maintained by the United States Army in Nuremberg. It is not known whether or not Booth followed up this reference by going to the clinic.

20. Booth spent at least the greater part of the months of July and August 1946 in Berlin, working on a temporary assignment in the Berlin branch of the Office of U. S. Chief of Counsel. The plaintiff joined Booth in Berlin on July 2,1946.

21. Booth had lost weight during the period of approximately 81/4 months that intervened between his departure from the United States and the plaintiff’s arrival in Berlin. He was having stomach pains at the time of his reunion with the plaintiff in Berlin.

22. (a) On July 11, 1946, Booth went to a dispensary maintained by the United States Army in Berlin. The visit was occasioned by Booth’s continuing gastrointestinal discomfort. At the Berlin dispensary, Booth was examined by Captain Gerald E. Guemmer, a medical officer. On the basis of his examination, Captain Guemmer made the following notation respecting Booth’s condition:

Feeling of fullness, in upper quadrants [sic] since 1942, worse now. Belches constantly, no heartburn. No relief from food. Has been given belladonna, pheno-barb, amphoyels [sic] relief. Suffers from insomnia. Is high-strung. Sounds like a psychosomatic complaint all around, except that there is a definite intolerance to fatty foods. There is a definite indication for ruling out first of all g. b. disease, then GI pathology. To Xray for GI series and g. b. visualization.

(b) The phrase “to Xray” in Captain Guemmer’s notation of July 11, 1946, meant that he had referred Booth to the X-ray department of the United States Army Hospital in Berlin.

(c) The “g. b. visualization”, for which Captain Guem-mer referred Booth to the X-ray department of the hospital in Berlin, was a procedure for an examination of the gall bladder. Under such procedure, the patient was given six tablets containing an X-ray dye, with instructions to swallow these tablets the night before the proposed gall bladder study. The next morning (by which time the dye from the tablets could reasonably be expected to be concentrated in the patient’s gall bladder), he would report to the X-ray department and an X-ray photograph would be made of the gall bladder area, from front to back. This film included an automatic marking system so that the exact location of the patient’s gall bladder could be charted on the outside of bis body. This was necessary because there are variations in the location of the gall bladder among different people due to differences in the body structure. Following the development and reading of a film showing the concentration of the dye in the gall bladder, the patient would be given a fatty meal (ordinarily a raw egg and some cream mixed together). The patient would drink this, and after an interval (ordinarily about 20 minutes) another X-ray photograph would be taken to show whether the gall bladder had contracted in order to force out the dye. Depending on the results of the X-ray photographs previously mentioned, additional X-ray films might be made in the gall bladder series.

(d) The “GI series”, for which Booth was sent to the hospital in Berlin by Captain Guemmer, was the routine X-ray examination of the upper gastrointestinal tract. The purpose was the examination of the gullet or esophagus, the stomach, and the duodenum (which is the first portion of the small intestine). For this examination, the patient would omit his breakfast on the morning of the appointment. He would report to the radiologist, who meanwhile had become accustomed to the darkness of the X-ray room by wearing dark glasses or remaining in a dark room. The patient would stand in front of the X-ray machine and behind the X-ray screen, whereupon the radiologist would routinely fluoroscope the chest and abdomen. The patient would then be instructed to take a glass containing a water suspension of barium sulphate; and, while the patient was being fluoro-scoped by the radiologist, he would swallow at the radiologist’s direction some of the liquid. The radiologist would be able to follow the progress of the barium sulphate through the upper gastrointestinal tract, because barium sulphate is opaque to X-rays. Thereafter, X-ray films would be taken, depending on what the radiologist might find or be suspicious about as probably diseased. Ordinarily, one or two films of the whole area in general would be taken, and then the radiologist would focus on areas of suspicion for further spot films of those particular areas which he regarded, on the basis of his fluoroscope examination, as warranting further study. The radiologist might take a number of X-ray pictures before concluding the series.

23. The “g. b. visualization” and “GI series” tests on Booth called for by Captain Guemmer were made at the United States Army hospital in Berlin. They were completed in August 1946. All these tests were negative, in that they failed to reveal the existence of any organic disease.

24. Booth continued to have some pain. That fact was reported to Captain Guemmer on or about August 27, 1946. On the date mentioned, Captain Guemmer made a notation indicating that Booth was “going out of town at present” and that Captain Guemmer would send him to the United States Army medical clinic in Berlin on his return.

25. After seeing Captain Guemmer on or about August 27, 1946, Booth left Berlin and went to Nuremberg. He was in Nuremberg during the late summer and most of the fall, except for occasional business trips that he took to the Ruhr region, Berlin, and elsewhere. During this period, Booth had stomach pains, he lost weight, he became more irritable and nervous than he had previously been, and his ability to concentrate on his work was adversely affected. Although it appears that Booth visited the United States Army dispensary in Nuremberg during this period, there is no evidence as to what transpired on any such visit or visits. Booth did not go to see Captain Guemmer when in Berlin on business during the period involved in this finding.

26. Booth went back to Berlin on December 19,1946, for the purpose of spending the holiday season with the plaintiff, who was stationed in Berlin as an employee of the Office of Military Government of the United States. He drove his automobile, which he had purchased at Nuremberg late in November 1946, on this trip from Nuremberg to Berlin. Booth visited Captain Guemmer at the dispensary in Berlin on December 20,1946, and indicated that he was still having epigastric distress. Captain Guemmer thereupon promptly sent Booth to the United States Army medical clinic in Berlin “for re-check”.

27. (a) At the medical clinic in Berlin, Booth saw First Lieutenant Robert A. Broome, Jr., a medical officer, on December 20, 1946. Lieutenant Broome had graduated in March 1944 from the Duke University School of Medicine with the degree of doctor of medicine. He had then served as an intern for three months at the Duke Hospital and for six months at the Massachusetts General Hospital. Thereafter, he was an assistant resident physician at the Duke Hospital for nine months and a co-resident physician at the Jefferson Hillman Hospital of the University of Alabama for three months, during which periods he was specializing in the field of internal medicine. Lieutenant Broome entered the United States Army as a medical officer in October 1945. After a period of preliminary training at Carlisle Barracks, Carlisle, Pennsylvania, Lieutenant Broome was stationed at Fort Dix, New Jersey, where he served for five months as a medical officer in the separation center, examining men who were being separated from the military service. In June 1946, Lieutenant Broome was transferred to Berlin and became a medical ward officer at the 279th Station Hospital. Lieutenant Broome’s duties in that assignment were primarily concerned with the medical supervision of a ward of patients with medical illnesses, although he also performed part-time duty in the out-patient medical clinic, which was operated as an adjunct of the hospital. It was while Lieutenant Broome was in the out-patient clinic that Booth saw him.

(b) Lieutenant Broome took Booth’s medical history. During the course of reciting his history, Booth told Lieutenant Broome that he (Booth) had been troubled by gas on his stomach, consisting of fullness and belching, for several years; that the character of his complaint had not changed; that he had been seen by many physicians and had tried various medicines; that there had been several X-ray examinations of his stomach and intestines, the latest having been ordered by Captain Guemmer and completed in late August 1946; and that all the X-ray studies had been negative. Booth also indicated that he had observed his stools and that he had not had any tarry stools.

(c) Lieutenant Broome gave Booth a physical examination, during the course of which Booth’s shirt and trousers were opened, the body surface was inspected, and the abdomen was palpated. No mass or other abnormality was discovered as a result of the palpation. Booth’s body did not show any signs of loss of weight, and Booth indicated that, so far as he was aware, he had not lost weight.

(d) While the examination was in progress, Booth belched several times in such a manner as to indicate that he was subconsciously swallowing air and then expelling it by belching.

. (e) Lieutenant Broome went to the X-ray department of the hospital for the X-ray photographs that had been previously made of Booth, but he could not locate the films. Lieutenant Broome learned, however, that the X-ray studies had been negative.

(f) In view of Booth’s medical history, the lack of any positive findings of disease or abnormality, the fact that X-ray studies made as late as August 1946 had been negative, and the belching in Lieutenant Broome’s presence, Lieutenant Broome made a working diagnosis of functional aero-phagia (or air swallowing). Lieutenant Broome advised Booth to try to avoid swallowing too much air, and gave Booth a prescription for dilute hydrochloric acid (since antacids had previously failed to afford Booth relief). Lieutenant Broome asked Booth to use the hydrochloric acid preparation for a week or two and then to let Lieutenant Broome know if his symptoms were not relieved.

(g) Booth had the prescription filled, and then went home.

28. After having seen Lieutenant Broome, Booth remained in Berlin until January 2, 1947. While there, his gastrointestinal distress continued, but the discomfort decreased during the period that Booth spent in Berlin. He was in bed much of the time, and the plaintiff provided a very bland diet for him.

29. Since his symptoms were somewhat relieved by the bland diet, bed rest, and medication prescribed by Lieutenant Broome, Booth did not return to see Lieutenant Broome during the period spent in Berlin.

30. While Booth was in Berlin on the trip referred to in findings 26-29, a friend made arrangements for a German radiologist to make some X-ray photographs of Booth’s gastrointestinal tract. These X-rays were made on December 31, 1946. They did not indicate the existence of any organic disease.

31. Booth left Berlin on January 2, 1947, and went to Nuremberg. He drove his automobile on this trip.

32. After reaching Nuremberg following his visit to Berlin, Booth consulted a German physician, Professor Bingold, of Nuremberg. Professor Bingold caused some X-ray photographs of Booth’s gastrointestinal tract to be made at a German hospital in Nuremberg on January 22,1947. These X-rays did not reveal the existence of any organic disease or abnormality, except for an enlargement of the lining of Booth’s stomach. Professor Bingold prescribed a period of rest for Booth, and advised that he go to Switzerland.

33. In accordance with the advice received from Professor Bingold, Booth secured a 30-day leave of absence from his position in the Office of U. S. Chief of Counsel, and left Nuremberg on the morning of February 8, 1947, for a trip to Zurich, Switzerland. Booth drove his automobile from Nuremberg to Zurich.

34. Booth reached Zurich on February 8, 1947. Upon arriving there, he entered the Bircher-Benner Clinic, a sanatorium, as a patient.

35. While a patient in the Bircher-Benner Clinic at Zurich, Booth had a massive hemorrhage at 12:30 a. m. on February 16, 1947. At the time, Booth evidenced a general decline of physical strength, extreme exhaustion, pallor, and very severe abdominal pains. The hemorrhage continued until Booth’s death approximately one month later, although its extent varied from time to time. As treatment for the hemorrhage, Booth was given transfusions of whole blood, plasma infusions, drop infusions, intravenous nutrition, and a coagulant.

36. Professor Oskar Winterstein, a Zurich surgeon whose specialty included stomach surgery, was called in by the medical personnel of the Bircher-Benner Clinic for consultation. Professor Winterstein first saw Booth on February 19, 1947. Booth was then in a grave state, having lost a great deal of blood due to hemorrhaging. It was Professor Winterstein’s diagnosis that a tumor in Booth’s stomach was highly probable. He assumed that it was a carcinoma (or cancer), rather than a non-malignant tumor.

37. The plaintiff arrived in Zurich on February 20, 1947, after having received news of Booth’s condition. On February 22, the plaintiff begged Professor Winterstein to operate on Booth, but he refused.

38. Pursuant to a request made by the plaintiff, the United States military authorities in Germany sent to Zurich by special military airplane a noted German surgeon, Professor Ferdinand Sauerbruch, and his wife, who was also a physician. Professor Sauerbruch and his wife arrived in Zurich on March 3,1947.

39. A phrenicotomy was performed on Booth by Professor Sauerbruch, with the assistance of Professor Winterstein, on March 6, 1947. This was an operation performed under a local anesthetic whereby the phrenic nerve was severed for the purpose of relieving Booth’s severe abdominal pains.

40. Booth was transferred from the Bircher-Benner Clinic to the Red Cross Hospital in Zurich on March 10,1947. On March 12,1947, a second operation was performed on Booth by Professor Sauerbruch, with the assistance of Professor Winterstein. Under general anesthesia, the upper part of the abdomen was opened. On the lesser curvature of the stomach, at the cardia (or opening of the esophagus into the stomach), a dish-shaped carcinoma (or cancer) wasi found. Its diameter was 2.5 cm. in one direction and 3 cm. in another, and its height was about 1 cm. There was no indication that metastasis (or the spreading of the cancer to other parts of the body) had occurred.

41. A resection of Booth’s stomach for the removal of the carcinoma was not feasible at the time of the operation referred to in finding 40, because of the great loss of blood previously suffered by Booth due to hemorrhaging and his extreme exhaustion as a consequence of the loss of blood.

42. (a) Booth died at Zurich on March 19, 1947. His death was caused by the carcinoma and complications resulting from it.

(b) Booth was 49 years of age at the time of his death.

(c) Booth’s salary at the time of his death was $7,381.50 per year, including an overseas differential of 25 percent.

43. Booth’s carcinoma was not in existence prior to 1946, and it had no relationship to his duodenal ulcer or to his long-continued complaints regarding gas in the stomach. The carcinoma began sometime in 1946, but the precise time of its beginning is unknown and cannot be ascertained.

44. Cancer of the stomach does not produce symptoms for weeks, and sometimes months, after its first appearance. It is common for such cancers to be quite painless at first, and a small cancerous growth in the stomach may remain practically latent for a long time. When symptoms that can be definitely ascribed to gastric cancer become apparent, the cancer has already made considerable progress and attained an appreciable size. In 1946-1947, when Booth’s carcinoma appeared and developed, there was usually an interval of several months between the beginning of such a malignant growth and the time when a diagnosis of gastric cancer was feasible.

45. The location of Booth’s carcinoma on the small cúrvate side of the cardia made its existence difficult to discover without an operation to expose it or an examination of the interior of the stomach by means of a gastroscope. The protective rib covering prevented the carcinoma from being felt by palpation, if it was in existence at the time when Booth was examined by Lieutenant liobert A. Broome, Jr. (see finding 27) ; and, although X-rays are the most important of the tests that are available for the discovery of cancer, Booth’s carcinoma was not revealed by the X-ray photographs of Booth’s gastrointestinal tract that were made at the United States Army hospital in Berlin (see findings 22 and 23), or by the X-ray photographs that were made by the German radiologist in Berlin (see finding 30), or by the X-ray photographs that were made at the German hospital in Nuremberg (see finding 32). Booth’s carcinoma was in existence when at least some of the X-ray photographs were made.

46. Booth’s hemorrhage, which began on February 16, 1947, was due to the fact that his carcinoma had progressed to the point where it invaded or involved a blood vessel.

47. If Booth’s carcinoma had been discovered prior to the hemorrhaging, it is highly probable that the carcinoma could have been successfully removed by surgery and Booth’s life expectancy thereby increased to the extent of approximately five years, as the carcinoma was limited to the stomach and had not extended widely along the walls of the stomach, and as there was no evidence of metastasis.

48. The evidence does not show that the United States Army medical personnel in Nuremberg failed to provide the standard and accepted medical care and treatment for Booth, in the light of the data reasonably available to such personnel, and thereby caused or contributed to Booth’s death.

49. The evidence does not show that Captain Gerald E. Guemmer failed to provide the standard and accepted medical care and treatment for Booth, in the light of the data reasonably available to Captain Guemmer, and thereby caused or contributed to Booth’s death.

•50. The conclusion of Lieutenant Robert A. Broome, Jr., that Booth’s difficulty should be attributed to air swallowing was not an acceptable diagnosis in the light of Booth’s symptoms. However, Booth’s symptoms at the time of his examination by Lieutenant Broome did not necessarily point to the existence of cancer, as a patient with such symptoms could have had a gastrointestinal ulcer, or gall bladder disease, or an emotional illness, or a gastrointestinal cancer; and in view of the fact that Lieutenant Broome did not dismiss Booth but only made a working diagnosis and instructed Booth to let him (Lieutenant Broome) know in a week or two if the medication which he prescribed for Booth failed to overcome Booth’s difficulty, the evidence does not show that Lieutenant Broome failed to afford Booth the standard and accepted medical care and treatment, in the light of the data reasonably available to Lieutenant Broome, and thereby caused or contributed to Booth’s death.

51. The evidence does not show that the United States military government in Germany failed to provide the standard and accepted medical care and treatment for Booth, in the light of the data reasonably available to such agency, and thereby caused or contributed to his death.

52. The plaintiff’s disbursements on account of Booth’s treatment and hospitalization in Switzerland were in the total amount of $2,178.08.

53. If Booth had remained in Germany instead of going to Switzerland on February 8, 1947, medical services and facilities comparable to those that Booth utilized in Switzerland would have been available to Booth at United States Army medical installations in Germany without cost to him or to the plaintiff.

54. On or about March 11,1948, the plaintiff filed with the United States Department of the Army (successor to the United States War Department) a claim in the amount of $17,868.62 based upon her husband’s death. This claim has not been allowed.

CONCLUSION OP LAW

Upon the foregoing findings of fact, which are made a part of judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover and the petition is therefore dismissed.  