been placed and this packing partially controlled the bleeding. He then placed a second pack of oxycel gauze on top of the first pack and this controlled the bleeding adequately.

23. Doctor Sharp then proceeded to complete the operation and he placed a third pack of oxycel gauze of equal size with the other two packs between the fourth and fifth ribs and closed the chest.

24. Oxycel gauze is a specially made absorbent material intended for control of bleeding inside an operative site and is intended to be left within the body as it will eventually be absorbed.

25. The plaintiff received six units of blood during the operation.

26. Following his removal from the operating room, the plaintiff was examined approximately one to two hours later when he was found to be unable to move his legs and paraplegia was discovered.

27. A lumbar puncture was performed on the plaintiff and this revealed the presence of blood-tinged spinal fluid.

28. A Queckenstadt test was performed with pressure on the jugular veins and this failed to raise the plaintiff's spinal fluid pressure. The purpose of this test is to determine whether there is a blockage of the spinal canal.

29. Such result indicated that there may have been a blockage of the spinal canal and the plaintiff was returned to the operating room for an exploratory thoracotomy to determine the cause.

30. Doctor James G. Arnold, a neurosurgeon, was immediately called and he advised the exploratory surgery.

31. Doctor Kieffer reopened the incision and he removed the oxycel gauze from the interspace between the ribs and in the region of the intervertebral foramen. The intervertebral foramen was enlarged and some of the oxycel packing was found inside and removed.

32. In this regard Doctor Kieffer testified as follows:

"Well, the intervertebral foramen is sort of like a small well with the dura like at the bottom of it, with the understanding, of course, that a dural extension along the nerve root may extend out into the intervertebral foramen, and this gauze had been placed outside the foramen, and then by application of pressure some of it had gone in, as was desired, as a matter of fact, because I presume that some of the bleeding was in these vessels traversing the intervertebral foramen, and it is necessary to get the pack down there in order to stop the bleeding from those vessels that are in transit to and from the cord.” (n.t. 359) (Emphasis supplied.)

33. Doctor M. M. Ravitch, the defendant's expert witness, testified as follows: "Furthermore, there is no particular need to put the pack down there." * * * "This isn't where the bleeding was occurring." (n.t. 614)

He further testified on cross-examination:

"There would have been no need to have gotten the pack down anywhere in that area. There would have been no thought of putting it in the intervertebral foramen. That is preposterous.” (n.t. 618) (Emphasis supplied.)

34. In response to a question by the plaintiff's counsel, Doctor Ravitch made the following reply:

"Q. Doctor, I would like you to assume that the Oxycel gauze was placed inside the intervertebral foramen."

"A. It would not have been necessary to stop the hemorrhage; it would not have been a good way to do it, and, furthermore, it is inconceivable to me." (n.t. 620, 621)

35. Upon removal of the oxycel gauze by Doctor Kieffer, spinal fluid was seen escaping from the intervertebral foramen. A one centimeter laceration of the dura was noted and spinal fluid was seen escaping freely through the tear which was sutured by Doctor Arnold. A questionable area of contusion of the spinal canal was noted in the Doctor's Progress Notes. (Ex. P-6, p. 2)

36. Doctor Arnold had entered the operation after the packing had been removed and the intervertebral foramen had been enlarged by Doctor Kieffer. He found no evidence of hemorrhage and the blockage was relieved when the gauze packing had been removed. (Ex. P-7, p. 2)

37. Nothing was found to account for the spinal block and the pathology recorded was a laceration of the dura (1 cm.) and cord compression from oxycel pad. (Ex. P-6 p. 3)

38. On the question of causation Doctor A. K. Olsen, an acknowledged expert in neurosurgery, testified as follows:

"Well, it is my opinion that this patient had had a piece of this Oxycel gauze stuffed into his spinal canal through that intervertebral foramen in which these people were working to get this bleeding stopped. The hemostatic gauze went into the spinal canal, contused the patient's spinal cord, and gave him a paraplesia." (n.t. 138) **So this presents clear evidence to me that whatever was obstructing the spinal canal was removed when this gauze was removed." (n.t. 213)

66

39. Doctor Olsen gave his opinion that this occurrence was not consistent with proper and accepted standards of medical practice.

40. Before the operation of May 4, 1959, the plaintiff was never warned by any of the VA physicians concerned with his care or treatment of the risk or danger of paraplegia which might result in connection with such an operation. However, there was no evidence that had the plaintiff been so advised of such danger that he would not have consented to the operation.

41. The plaintiff was born and raised in Philadelphia, Pennsylvania, and he attended local elementary and secondary schools prior to his enlistment in the United States Army in 1948.

42. The plaintiff was honorably discharged with the rank of sergeant in July, 1952, and he secured local employment as a draftsman.

43. In February, 1954, he enrolled in a course of aeronautical engineering at the University of Alabama and was graduated with the degree of Bachelor of Science in Engineering in June, 1958.

44. In September, 1958, the plaintiff became employed as an associate engineer at Vertol Aircraft Corporation, Morton, Pennsylvania, with a salary of $110.00 per week.

45. The plaintiff then enrolled as a graduate student at the Drexel Institute of Technology for the purpose of obtaining a Master's Degree in Aeronautical Engineering while he was employed at Vertol. He attended evening classes two nights a week.

46. During his employment at Vertol the plaintiff was regarded by his supervisor as being very capable, conscientious and above average for a recently graduated engineer.

47. Before 1959, the plaintiff enjoyed a normal social life, attended dances and was active in Boy Scout activities. He also participated in athletics and organized a social group which was part of a larger organization known as the Order of Brotherly Love.

48. The plaintiff has never been married and now resides with his mother and sister in his own specially built home in Somerdale, New Jersey.

49. At the time of his entrance into the VA hospital in Baltimore, Maryland, the plaintiff was of a slender, muscular built, but was classified by the VA as 100 percent disabled because of his tuberculosis.

50. It was stipulated by the parties that the plaintiff is completely cured of his tuberculosis.

51. The plaintiff's lost wages from the date of the injury on May 4, 1959, until the date of trial amount to $42,314.00.

52. The plaintiff has not worked since May 4, 1959. He is unable to sit for long periods of time and must take a nap after four or five hours. He experiences muscle spasms in his legs with swelling and burning sensations in his feet and legs. In addition to these difficulties, he has involuntary bowel movements and occasional urinary accidents due to blockage of his catheter.

53. The plaintiff is embarrassed by these accidents and he has never applied for any type of work.

54. While at the Veterans' Administration Hospital, Bronx, New York, the plaintiff taught high school mathematics to some of the other patients.

55. The plaintiff, who is presently 34 years of age, has a future life expectancy of 40 years provided he gets intensive medical care. Without such intensive care he might not live one year.

56. The uncontradicted evidence in this case compels us to conclude that the plaintiff would have worked for 30 years, but for the injuries he sustained on May 4, 1959.

57. We further find that with the excellent rehabilitative treatment available to the plaintiff he could secure future employment utilizing his scientific training in some related engineering field.

58. Had the plaintiff not been disabled, his salary as an aeronautical engineer would have ranged from a minimum of $10,000.00 in 1964, to a maximum of

$18,000.00 during the 1980's, and would have regressed to $14,000.00 by 1995, when he attains the age of 65.

59. The plaintiff is receiving monthly disability payments from the VA in the sum of $725.00. Of this amount $200.00 is allotted for special aid and care at home which the plaintiff would lose were he to enter a VA hospital. This means that he receives $525.00 unrelated to any medical expenses. The plaintiff will receive the VA disability benefits for the remainder of his life.

60. Assuming that the plaintiff would work for 30 more years and giving proper consideration to the future disability payments which he will receive from the Government; and assuming further, that the plaintiff will be able to secure some gainful employment in the future, we find that his lost future earning capacity is $6,000.00 annually.

61. This sum reduced to present value at the rate of 3.5 percent is $110,352.00. 62. There is no claim by the plaintiff for past medical expenses since such care was provided by the Government.

63. His future medical treatment will require intensive rehabilitation, evaluations by urologists, neurosurgeons, plastic surgeons, psychiatrists, reconstructive procedures if necessary on contractured feet if they arise, various neurosurgical procedures on his back or in his spinal canal if the reflex spasms in his legs become uncontrollable. He also runs the risk of infection of the bladder and the kidneys and decubitus ulcers.

64. Assuming that the plaintiff will live his projected life span of 40 years, and giving due consideration to the $200.00 monthly allowance which the plaintiff will receive during his entire life outside of a VA hospital, we find that his future medical expense will be $5,000.00 annually making a total sum of $200,000.00.

65. On the issue of pain and suffering, we find that the plaintiff has suffered, is suffering, and will continue to suffer in the future grievous physical and mental distress. He has no hope for any future recovery and he will never regain the use of his lower extremities.

66. In addition to the above problems the plaintiff has become depressed and has suffered the permanent loss of his sex powers. (Ex. P-38 pp. 3 and 24)

67. The plaintiff's sleeping hours are interrupted daily two or three times a night so that he may change his position to prevent bed sores. He must swing his legs from one side of the bed to the other taking care not to tangle the hose of his indwelling catheter.

68. One incident illustrative of the plaintiff's suffering occurred when some friends visited him in the Bronx Hospital. They took him out in the car and he had an unexpected bowel movement. He was taken back to the hospital, suspended by his arms and washed down with a hose.

69. His legs are subject to uncontrollable spasms which can only be corrected by an operation. He has undergone various collateral operations at the VA Hospital, Bronx, New York directly emanating from his present paraplegia.

70. We find that the plaintiff is entitled to a monetary award of $350,000.00 for past and future pain and suffering.

71. The plaintiff has received disability payments from the Government dating from May 4, 1959, until December 15, 1964, totalling $52,455.00. This sum includes a $10,000.00 payment for construction of his home, and a $1,600.00 payment for the purchase of an automobile.

72. We find that the Government is entitled to a deduction of $52,455.00 from the amount of the verdict.

DISCUSSION

The Government's defense, which we have rejected, is that the paraplegia resulted from an occlusion in one manner or another of the intercostal artery which supplys the fundamental source of blood to the spinal cord. Such an event is not forseeable, because when bleeding occurs in this region it must be stopped or the patient will die. There is no way to predict from one individual to another as to when this particular blood vessel will occur in the thoracic region.

The Government's expert medical witnesses based their respective opinions upon the fact that it had been reasonably established that this intercostal artery was the source of the bleeding in the thoracic region (n.t. 472, 492, 611). Doctor Sharp, the operating surgeon, was the only physician who actually saw the bleeding when it occurred. He described it as venous bleeding and noted in his Operation Report that he believed the intercostal vein had been bleeding. (Ex. P-3, p. 2.) Doctor Kieffer, who assisted Doctor Sharp in the first

operation and became the operating surgeon in the exploratory surgery, stated in his Operation Report that the intercostal vein had been bleeding. (Ex. P−4) In a later report, Doctor Kieffer noted that the paralysis may have resulted from a thrombosis of an intervertebral vein. (Ex. P-7 p. 2) Doctor Arnold, the neurosurgeon, did not enter the exploratory operation until after the oxycel packing had been removed and he had no personal knowledge of the source of the bleeding. In his Neurological Consultation Report, he makes no mention of a possible occlusion of the intercostal artery. The Doctor's Progress Notes and recorded pathology fail to mention the intercostal artery as being the source of the bleeding. (Ex. P-6) In fact, the uncontradicted testimony was that the head of the fifth rib obscured the surgeon's vision and made it impossible for him to pinpoint the source of the bleeding.

Doctor Olsen, the plaintiff's expert, testified that an occlusion of the intercostal vein would not cause a thrombosis since the vein did not supply the main source of blood supply to the spinal cord. (n.t. 200)

The Government's position is not supported by the evidence.

In an action brought under the Federal Tort Claims Act, the Federal Court must apply the state law of the place where the act or omission occurred. Since the negligence and injury occurred simultaneously in Maryland, we must apply Maryland law. Richards v. United States, 369 U.S. 1, 9 (1961). According to Maryland law there is a presumption that a surgeon has performed his work with reasonable care and skill. Negligence must be affirmatively established by the plaintiff. Fink v. Steele, 166 Md. 354, 171 A. 49 (1934). The plaintiff is required to show a lack of care or skill, as well as a causal relationship between that and the injury. If either of these elements is lacking then the case cannot be submitted to the jury. Suburban Hospital Association, Inc. v. Mewhinney, 230 Md. 480, 187 A. 2d 671 (1963). The degree of care, skill and diligence required is not the highest or greatest, but only such as is ordinarily exercised by others in the profession generally in that area. Lane v. Calvert, 215 Md. 457, 138 A. 2d 902 (1958). The doctrine of res ipsa loquitur does not apply. Lane v. Calvert, id.

The plaintiff has established, through expert testimony, as he was required, that his paraplegia was caused by a piece of oxycel gauze stuffed into his spinal canal through the intervertebral foramen. The plaintiff's expert gave his opinion that this occurrence was not in accord with proper and acceptable medical standards. The fact that Doctor Olsen was not a surgeon from Baltimore, Maryland, and was not familiar with the surgical standards prevailing in Baltimore in 1959, did not automatically disqualify his opinion. He is a highly qualified surgeon, and is Chief of Neurosurgery at Hahnemann Medical College and Hospital, two other Philadelphia hospitals, and he is a consultant at the Veterans' Administration Hospital, and the United States Naval Hospital in Philadelphia. All of his training and experience were gained in metropolitan centers such as Chicago, Boston and Philadelphia. It is a commonly known fact that the standards of medical practice in large urban hospitals located in cities such as Boston, Philadelphia and Baltimore are higher than the standards in less populated localities. The sufficiency and weight to be given to Doctor Olsen's testimony was a question to be determined under the local law of the forum. Moran v. Pittsburgh-Des Moines Steel Co., 166 F. 2d 908, 917 (3 Cir. 1948). Also see Dill v. Seuka, 175 F. Supp. 26 rev'd 279 F. 2d 145 (3 Cir. 1960, where two medical experts from Washington, D.C., and Philadelphia were permitted to testify for the plaintiff in a Kansas malpractice case. On appeal the Court of Appeals heid that the plaintiff's expert testimony was sufficient to go to the jury.

We fail to see how there could be any substantial variance between the proper surgical standards in two sophisticated eastern cities such as Philadelphia and Baltimore which are less than 110 miles apart. Also, when Doctor Olsen was questioned regarding his qualifications, the Government conceded that he was qualified to testify (n.t. 126). It was only after the testimony had reached the point of the hypothetical question that the Government objected (n.t. 162, 163, 164).

It was later developed through Doctor Kieffer that in his opinion he could not think of any difference in the ordinary care of a patient in Maryland or Pennsylvania (n.t. 342). Doctor Olsen's opinion received unexpected support from Doctor Ravitch, the defendant's medical expert from Baltimore, who said it would be "improper" to stuff oxycel gauze into the intervertebral foramen (n.t. 620). Doctor Ravitch further testified that under no circumstances could a Kittner Dissector be admitted to this area (n.t. 630, 631). The uncontradicted testimony of Doctor Sharp, the operating surgeon, was that he had used the Kittner

Dissector in the area of the bleeding which was near the intervertebral foramen, and he applied light pressure in using the device (n.t. 397). Doctor Sharp further testified that the most likely cause of the plaintiff's injury was damage to the cord (n.t. 425). He reached this conclusion because he had used cauterization to stop the bleeding and because there were manipulations around the posterior rib (n.t. 425). Doctor Kieffer had testified that it was not advisable to use cauterization or clamps in this area because of fear of injury to the spinal cord and the nerve tissue (n.t. 332, 333). When the oxycel packing was removed by Doctor Kieffer he saw spinal fluid escaping through the intervertebral fora men. Also, a tear in the dura caused spinal fluid to escape freely. All of these facts in conjunction with the expert testimony lead us to the conclusion that the operation was performed in a negligent manner and such negligence was the proximate cause of the plaintiff's paraplegia.

On the question of damages we have specifically set forth in our findings each category of damages. We made our decision with the primary intention of awarding the plaintiff just compensation. While this is a tragic case we have not been influenced by sympathy in this regard.

We have followed the instructions of the United States Supreme Court in Brooks v. United States, 337 U.S. 49, 53 (1949) which stated that the amount payable under servicemen's benefit laws should be deducted "* * * or taken into consideration when the serviceman obtains judgment under the Tort Claims Act." 1 (Emphasis supplied.) It is only fair that this result should follow since the United States, as any other defendant, should not have to pay twice for the same injury. We have deducted the past disability payments because these sums have already been paid. With regard to the plaintiff's loss of future earning capacity, we have considered his present physical condition and prospects for future improvement through rehabilitation. We believe that with proper management and rehabilitation the plaintiff's scientific training will make it possible for him to secure employment in the future. This Court has personal knowledge of the improvements that can be effected through the diligent use of rehabilitative techniques available to paraplegics. In the unreported case of Hutton, Guardian of the Estate of Eddie Graybeal, a minor v. Fisher, C.A. No. 28261 (E.D. Pa. 1963) a sixteen-year-old boy who is a paraplegic, was trained to the degree that he can take care of all his needs. He has managed through operations and training to control his bowel and bladder movements. Also, he has learned the trades of a watchmaker and optician. In addition to these occupational improvements, he participates in wheelchair races and basketball games in New York City. He has also appeared on television and promoted National Hire the Handicapped Week. The law does not expect that such heroic determination will be exhibited by all plaintiffs and the defendant must accept the present plaintiff as it finds him.

While some hope for future rehabilitation does exist we do find that the plaintiff has established a diminution of earning capacity. He has shown by his past employment record and his pursuit of an advanced engineering degree that he is an industrious, capable person. The record shows that aeronautical engineers entering the field today could command an entrance salary of $7,600.00. The future prospects, assuming no serious national economic recessions or depressions, are very favorable with a high salary of $18,000.00 during the 1980's. This salary range gives no consideration to the possible management promotions which a superior engineer could attain.

In making our award, we balanced such factors as the plaintiff's proven earning ability, his prospects for some future employment, against his VA monthly disability benefits of $525.00 (unrelated to any medical expenses) and reached the conclusion that his future earning capacity has been reduced by $6,000.00 annually. We also found as a fact, that, but for his disability the plaintiff would have worked for thirty additional years. Thus, his loss of future earning capacity at $6,000.00 per year reduced to present value at the rate of 3.5 percent is $110,352.00.

2

1 See Snyder v. United States, (5 cases) 118 F. Supp. 585, (D. Md. 1953); modified in part aff'd in part 218 F.2d 266; rev'd and judgment of District Court reinstated, per curiam, 350 U.S. 906 (1955) where the District Court took into account prospective future disability payments in reaching its verdict

2 Maryland has no rigid rule as to the discount rate to be applied in reducing damages to present value. See, Snyder v. United States, (5 cases) supra note 1 (3.5 percent); Jennings v. United States, 178 F. Supp. 516 (4 percent); vacated and remanded on other grounds 291 F. 2d 880 (4 Cir. 1961); judgments reinstated 207 F. Supp. 143; aff'd per curiam 318 F. 2d 718 (4 Cir. 1963). Inquiry was made by this Court to the District Court for Maryland and it was learned that 3.5 percent is within the current range of discount values now being applied by that Court.