Defendant asserts that failure to follow the procedure set out in Paragraph 64f cannot be used to establish a presumption of breach of a standard of care because (1) the regulation does not apply to private individuals, (2) it was not promulgated to benefit a class that included Mr. Betesh, (3) it is directory, not mandatory, and (4) it applies only if the examinee is still present at the examining station. The court rejects the defendant's arguments, for reasons spelled out below, and finds for the plaintiff on this issue.
Defendant first argues that Paragraph 64f cannot be used to establish a presumption of a standard of care or breach thereof because under the Federal Tort Claims Act the Government is liable only "to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674; United States v. Muniz, 374 U.S. 150, 83 S. Ct. 1850, 10 L. Ed. 2d 805 (1963). Since no private individual is subject to Regulation 64f, the Government argues that the regulation should not apply. This argument is incorrect. Federal regulations may be introduced in suits under the Federal Tort Claims Act to impose duties and standards upon the Government. Gill v. United States, 429 F.2d 1072 (5th Cir. 1970); United Air Lines, Inc. v. Wiener, 335 F.2d 379 (9th Cir. 1964); Thinguldstad v. United States, 343 F. Supp. 551 (S.D. Ohio, E.D. 1972). The Government might also argue that restricting liability to that incurred by "private individuals under like circumstances" precludes use of Paragraph 64f to establish a presumption of standard of care, since no such presumption arises if a private defendant fails to follow its internal regulations. This argument focuses on the one aspect of this case that differs from a case against a private defendant: the "governmental" aspect of internal directives.
The court cannot, however, accept this argument. The "like circumstances" restriction does not require that every aspect of a cause of action be identical to an action between private parties. The Government's argument would make the phrase "like circumstances" equivalent to "same circumstances." The Act does not forbid the court from taking into account those aspects that are unique to governmental functions -- such as the existence of governmental regulations. To interpret the Act as doing so would be contrary to its plain language and its policy of expansion of liability.
Defendant's second argument, that the regulation was not promulgated to benefit a class that included Mr. Betesh, is incorrect. There are two possible purposes for advising rejected examinees to seek medical advice -- to remedy the condition so that the registrant may become acceptable to the Army or to protect the registrant's health. (A third possible purpose, to protect the public from communicable diseases, is covered in other paragraphs of the regulation.)
A 1965 amendment to Paragraph 64f confirms that these two purposes underlay the regulation.
The amendment made no change in the duties required of examining physicians, but recast the Paragraph for clarity and added language to reveal its purposes. The amended regulation states that "[If] the examinee's condition is such that remediable medical care will possibly render him fit for military service, or if such is not the case but the examinee's personal health and well-being can be improved, he will be advised to seek the services of his family physician or other health agency in his home area." Where a regulation of doubtful purpose is replaced by an amendment that clearly states its purpose, the amendment is entitled to great weight in determining the purpose of the prior regulation.
Defendant has introduced no evidence to counterbalance the weight of the clarifying amendment, and the court holds that Mr. Betesh was included in the class of persons to be protected by Paragraph 64f.
Defendant's third argument, that the regulation is directory and not mandatory, is unpersuasive for two reasons. First, the procedure described in the regulation is set forth in mandatory language, and defendant has not drawn the court's attention to anything in the legislative history to undercut this mandatory language. Second, defendant has given no reason why even a directory regulation might not be used to establish a presumption of duty of care.
Defendant's fourth argument, that Paragraph 64f applies only if the examinee is still present at the examining station, finds no support in the language of the Paragraph. Rather, it unqualifiedly states that examinees "will be advised by the medical examiner to seek advice from a physician."
It is clear that Mr. Betesh, as a registrant, was in the class of persons who were intended beneficiaries of Paragraph 64f and that the injury he suffered was the kind of injury that the regulation was designed to protect against. Thus, under Maryland law, this regulation establishes a presumption of a standard of care and its violation establishes a presumption of breach of duty. Defendant has not rebutted either presumption. The court holds, therefore, that Paragraph 64f establishes a duty of care toward Mr. Betesh and that the Government's failure to follow that regulation constituted a breach of that duty.
Even if the regulation were not regarded as establishing a presumption, it would, of course, still be evidence on the issues of the standard of care required of Selective Service physicians and breach of this standard. The court finds that if the regulation is regarded as ordinary evidence it preponderates over evidence introduced by defendant and supports a holding that defendant's Selective Service physicians breached a duty of care owed Mr. Betesh.
The common law as a basis for the standard of care
Plaintiffs assert that regardless of any applicable regulations the Government is liable for breach of a common law standard of care. Three theories must be considered: (1) Even in the absence of a doctor-patient relationship, a doctor who assumes to act must act carefully with respect to all aspects of the examination; (2) where a doctor acts primarily for the benefit of an employer in examining a prospective employee, the doctor must act carefully with respect to all aspects of the examination; (3) where a doctor-patient relationship exists, the doctor must act with care. The court holds that each of these theories supports a conclusion in favor of plaintiffs.
(1) A doctor who assumes to act must act carefully with respect to all aspects of the examination.
Under the common law of Maryland, a physician who examines a person may owe that person a duty of good medical care with respect to all aspects of the examination, even if no doctor-patient relationship exists between them. The decision of Maryland Court of Appeals in Hoover v. Williamson, 236 Md. 250, 203 A.2d 861 (1964) provides a clear statement of this rule. In Hoover, plaintiff alleged that defendant physician had misdiagnosed plaintiff and misinformed him of the nature of his condition following a physical examination conducted on behalf of plaintiff's employer. Plaintiff asserted that the physician misdiagnosed plaintiff's silicosis as "a little infection," deliberately concealed a consultant's recommendations, and told plaintiff that the ailment was minor. The trial court sustained a demurrer to the complaint on the ground that it showed an absence of a doctor-patient relationship. The Maryland Court of Appeals reversed, resting its decision on
a more fundamental rule of long standing under which a physician may incur a tort obligation which is nonconsensual and independent of contract. This is the general rule that one who assumes to act even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all. 203 A.2d at 863.
The "duty of acting carefully" was applied in Hoover to all aspects of the physician's work, not merely the conduct of the physical examination, and recovery was allowed on the basis of his misdiagnosis, concealment of contrary information, and misrepresentations to the examinee.
The circumstances of the present action bring it within the rule of Hoover. Selective Service physicians entered Mr. Betesh's life not at his request but through a command, enforceable by penal sanctions, that he appear before them. Having assumed to act, the Government physicians were under a duty to act carefully, not merely in the conduct of the examination but also in subsequent communications to the examinee.
It might be suggested that Hoover is distinguishable from the present action because in Hoover the examinee relied upon express misrepresentations of the physician, which led him to forego treatment. The court finds reliance present in this case also, notwithstanding the fact that it was the doctor's silence that misled the examinee. When a doctor conducts a physical examination, the examinee generally assumes that "no news is good news" and relies on the assumption that any serious condition will be revealed. Union Carbide & Carbon Corporation v. Stapleton, 237 F.2d 229, 232-33 (6th Cir. 1956) cited approvingly, Canterbury v. Spence, 150 U.S. App. D.C. 263, 464 F.2d 772, 781 n. 18 (1972), cert. den. 409 U.S. 1064, 34 L. Ed. 2d 518, 93 S. Ct. 560 (1972). In the absence of evidence to the contrary, it is fair to infer that Mr. Betesh assumed that the silence of the examining physicians meant that the results of tests they had performed were negative. This reliance occurred at a time when prompt follow-up would have detected his malignancy.
Although the court finds that Mr. Betesh did rely to his detriment on the silence of the examining doctors, it does not hold that a finding of reliance is essential to the Government's liability. Nor is it certain that the Maryland Court of Appeals would hold reliance essential. No Maryland case requiring reliance has been brought to the court's attention.
(2) Where a doctor acts primarily for the benefit of an employer in examining prospective employees, the doctor must act carefully with respect to all aspects of the examination.
The rule of the majority of courts that have considered the question
is that where a physician is an employer's agent and acts primarily to protect the employer's interests the physician must conduct all aspects of the examination with care, and if he fails to do so the employer is liable for injuries inflicted. That the injured party is a prospective rather than an actual employee has been held not to affect the operation of this rule. Coffee v. McDonnell-Douglas Corporation, 8 Cal. 3d 551, 503 P.2d 1366, 105 Cal. Rptr. 358 (1972); Rannard v. Lockheed Aircraft Corporation, 26 Cal. 2d 149, 157 P.2d 1 (1945).
The rule has strong equitable appeal. It is, after all, at the employer's direction and for the employer's benefit that the doctor is in a position to affect individual and public health. When the examinee is faced with examination against his will, as in the present case, the equity is even stronger.
(3) Where a doctor-patient relationship exists, the doctor must act with care.
Plaintiff's third common law theory is that the Government doctors acted in a way that created a doctor-patient relationship and thereby imposed upon themselves the duty to act carefully.
Plaintiffs point to the testimony of Dr. David R. Boyd, Chief of the Fort Holabird AFES, to support their argument. Dr. Boyd testified that Mr. Betesh was recalled to see whether his condition had progressed and to advise him accordingly, rather than to assess his fitness to serve in the Army. Plaintiffs argue that by assuming these diagnostic and advisory duties the doctors cast themselves in the role of treating physicians and created a doctor-patient relationship. It is reasonable to infer that since Mr. Betesh was recalled for his benefit alone in October, it was also his benefit alone that was contemplated in April when the remark, "Re-examination believed justified in 3 months" was entered on the Statement of Acceptability, DD Form 62. The court finds this line of reasoning persuasive and concludes that the physicians at Fort Holabird did in fact take upon themselves the role of treating physicians in April 1964 and thus established a doctor-patient relationship with Mr. Betesh.
Under the common law of Maryland, establishment of a doctor-patient relationship imposes upon the doctor the duty to exercise the amount of care, skill, and diligence exercised generally in the community by doctors engaged in the same field. State v. Fishel, 228 Md. 189, 179 A.2d 349 (1962). Applied to the facts of this case, this standard means that a physician undertaking a physical examination has a duty to disclose what he had found and to warn the examinee of any finding that would indicate that the patient is in danger and should seek further medical evaluation and treatment. This duty is stronger when the physician has no reason to believe that the examinee is aware of the condition and danger.
The court holds that plaintiffs have established by a preponderance of the evidence that the United States owed a duty of care to Stanley Leon Betesh, that they breached this duty when they failed to notify him of his abnormal x-ray, and that breach of this duty was the proximate cause of his death.
The Maryland wrongful death statute existing at the time of Mr. Betesh's death (April 1969) permitted recovery by decedent's wife, husband, parent, child, or, in certain circumstances, dependent. Damages were limited to pecuniary loss.
The court estimates the present value of Judith (Betesh) Sher's pecuniary loss to be $25,000, and awards damages to her in that amount, plus costs.
Alice and Leon Betesh
The measure of damages recoverable by surviving parents is the pecuniary loss sustained by them as a result of their child's death. Generally, parents may recover only for the value of the services that the deceased child, had he lived, would have rendered to them during his minority. The reason for limiting the award period to the child's minority is that --
What a minor child may be able or willing to do for his father or mother after he becomes of age, when he has the right to leave the parental roof and set up for himself in life, and before his willingness and ability have been tested by experience, is . . . a matter of conjecture, too vague to enter into an estimate of damages in such a case.
Agricultural and Mechanical Association v. State el rel. Carty, 71 Md. 86, 87, 18 A. 37, 38 (1889).
Stanley Leon Betesh, severely ill, worked in his father's store. Testimony indicates that he worked creatively and well and contributed to the business. For this he was paid. In addition, his parents frequently gave him and his wife money beyond his salary. At the time of his death, Mr. Betesh was still, of necessity, partly dependent on his parents. There is no record of his pecuniary support of them or of services gratuitously rendered to them sufficient to support an award of damages. Accordingly, Alice and Leon Betesh cannot recover in their wrongful death action.
The Maryland survival statute
authorizes the executor of decedent's estate to bring any personal action (except slander) that decedent might have brought to recover damages sustained in his lifetime. Stewart v. United Electric Light & Power Co., 104 Md. 332, 65 A.49 (1906). Decedent's administratrix, Judith (Betesh) Sher, brings this action.
Damages recoverable under the statute include physical and emotional pain and suffering, loss of earnings between the time of his injury and the time of his death, and medical and funeral expenses.
It is difficult in the extreme to put a price tag on the anguish of a young man, recently married, who knows that he is dying. For much of the last three years of his life Mr. Betesh lived with pain, severe nausea, and knowledge of the growing certainty of his death.
The court finds the Government liable to the decedent's estate in the amount of $75,000.
One thousand dollars is awarded in partial payment of funeral expenses.
Costs have been awarded to Judith (Betesh) Sher in her wrongful death action and need not be considered here.
William B. Bryant