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February 25, 1986

DOYLE DAVIS, et al., Plaintiffs,

The opinion of the court was delivered by: EISELE



 THE COURT. Well, I apologize for the delay in getting started this morning. The Court has been working on this case yesterday and from very early hours this morning and is now in a position to decide the case. I have had the benefit of the written arguments which have been submitted by counsel, and I again want to state that I believe the attorneys did an excellent job in presenting the facts and the law to the Court.

 This is essentially a malpractice case against the United States of America brought under the Tort Claims Act by Mr. and Mrs. Doyle Davis for alleged negligence on the part of certain staff doctors at the Little Rock Veterans' Medical Center on October 14 and 15, 1982. Mr. Davis, who was 56 years old at the time, is a retired Air Force non-commissioned officer and a practicing Jehovah's Witness. In keeping with his religious principles, he refused to receive blood transfusions while at the V. A. Hospital. In essence, the plaintiffs claim that the medical staff failed to respond appropriately to the knowledge that Mr. Davis would not accept blood. According to the plaintiffs, the defendant's agents negligently misled them and caused them to delay obtaining alternative medical services and the delay, in turn, they contend, resulted in injury and damage to Mr. Davis.

 Before getting into the details of the case, it is important to note that Mr. Davis was in the care of the V.A. Hospital for something less than 36 hours. On the morning of October 15, 1982, he was released, against medical advice, so that he could be flown to Houston where a Dr. Dudrick had agreed to accept his case. Dr. Dudrick performed surgery which apparently successfully repaired the bleeding ulcer which had been the basis for Mr. Davis' original admission to the V. A. Hospital in Little Rock. However, the plaintiff, Mr. Davis, was in a coma for some 29 days after the operation and, sometime after his release and return to his home in Batesville, Arkansas, he developed a back problem which has been diagnosed variously as spondylolisthesis.

 Plaintiff contends that the doctors at the V.A. Hospital were negligent either in their failure to perform surgery without the availability of blood transfusions or in their failure to promptly refer plaintiff to some other doctor who would perform such surgery.

 The Court, in a pretrial discussion on the record, indicated its doubt that the plaintiffs could prevail, under the facts then admitted, upon either such theory, at least as narrowly stated above. However, the pretrial submissions and the plaintiffs' attorney's statements suggested that the plaintiffs' main complaint was that the defendant medical staff negligently failed to inform the plaintiffs of Mr. Davis' true medical condition and of the limitations upon the scope of medical treatment that would be available to him at the V.A. Hospital, thereby causing the Davises to delay their decision to send Mr. Davis to Houston.

 The plaintiffs further contend that the medical evidence would support a finding that it was this delay which caused Mr. Davis the back problem of which he presently complains. It is important, therefore, to determine whether any of the V.A. doctors were negligent and, if so, whether that negligence was the cause of any identifiable, appreciable, inappropriate delay in Mr. Davis' receiving needed medical care.

 And, of course, assuming the plaintiffs could show that the staff's negligent acts caused plaintiffs to delay their obtaining of alternative medical treatment, then the following question of medical causation would arise: Can it be said with a reasonable degree of medical certainty that the back condition presently suffered by Mr. Davis was caused or contributed to by the delays? And, of course, the plaintiffs have the burden of proof upon the issues of negligence and causation.

 The Court has already discussed with the parties the holdings recognized by the Eighth Circuit that physicians employed by the United States Government are entitled to the "discretionary function" exception of the federal Tort Claims Act. It's interesting to the Court to note that the Arkansas law in this area of negligence is to the same effect exactly. That is, the Arkansas law also gives to physicians the same type of protection for honest differences of medical opinion. I think the Ricketts v. Hayes case, 256 Ark. 893 at pages 903 and 4 makes that quite clear.

 It is the Court's understanding of the law that none of the doctors involved in this case could be held responsible for refusing to operate on Mr. Davis because of the unavailability of the possibility of the use of blood transfusions since the Court finds that such decisions were reasonable professional medical judgments as to the best and most appropriate treatment of Mr. Davis' condition.

 And this would be true even if the plaintiffs were willing to execute an agreement which would prevent the Davises from recovering in a lawsuit should Mr. Davis suffer injury or die as a result of the physicians not being permitted to use blood transfusions. A physician, under the law, does not have to engage in what he believes honestly to be bad medical practice simply because he is held harmless from potential legal liability.

 It is important to review Mr. Davis' medical condition and the actions of the V. A. staff during the entire period of his stay at the hospital.

 Mr. Doyle Davis arrived at the emergency room of the Little Rock V.A. Hospital around 1:00 a.m. on the morning of October 14, 1982. Before his actual admission, he advised the attendants that he was a member of the Jehovah's Witness religion and that because of his religious beliefs, he would not permit himself to be transfused with blood.

 The plaintiffs have suggested that, because of the limitations upon the potential medical treatment options which were available under the circumstances, Mr. Doyle Davis should never have been admitted to the V.A. Hospital at all. The Court rejects this contention. The V.A. Hospital's policy is to provide medical services to eligible veterans without respect to religious convictions. Mr. Davis is a retired Air Force master sergeant having served in the Air Force for slightly over 20 years. Whether Mr. Davis' religious views might create any problems in his treatment certainly could not be known before he was tested and diagnosed.

 Dr. Gail McCracken saw Mr. Davis around 2:30 a.m. The initial impression was that he was suffering from a gastrointestinal bleeding ulcer with volume depletion. But she recognized that there are a variety of reasons for ...

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