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AMDUR v. ZIM ISRAEL NAVIGATION CO.

May 29, 1969

Joseph AMDUR, Plaintiff,
v.
ZIM ISRAEL NAVIGATION COMPANY, Ltd., Defendant


Levet, District Judge.


The opinion of the court was delivered by: LEVET

LEVET, District Judge.

Plaintiff, Joseph Amdur, from Mt. Vernon, New York, brings this action against the defendant, Zim Israel Navigation Company, Ltd. ("Zim") for injuries he allegedly suffered by reason of the alleged malpractice of a ship's physician, Dr. Yaulus, while plaintiff was a passenger on the SS Zion, owned by Zim, on a voyage from Haifa, Israel, to New York.

 The sole basis of plaintiff's claim in this action is that Dr. Yaulus incorrectly diagnosed plaintiff's ailment and failed to treat properly or recommend proper treatment for plaintiff. There was no claim of any affirmative acts of malpractice. (See pretrial order)

 The action was tried to the court without a jury.

 After hearing the testimony of the parties, examining the exhibits, the pleadings and the Proposed Findings of Fact and Conclusions of Law submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law:

 FINDINGS OF FACT

 A. LIABILITY QUESTION

 1. Plaintiff, age 51 in 1961, a cantor-minister at a congregation in Mt. Vernon, New York, experienced two episodes of chest pain on April 21, 1961 and April 22, 1961. The first attack lasted six or seven minutes, and the second lasted upwards of 40 minutes, as a result of which plaintiff was hospitalized from April 22, 1961 until May 4, 1961, when he was discharged with a diagnosis of coronary insufficiency. Electrocardiograms taken at the hospital at that time, and an electrocardiogram taken by Dr. Teitelbaum, a Mt. Vernon physician, in June 1961, confirmed cardiac abnormalities. (13) *fn1"

 2. In June 1961, Dr. Teitelbaum gave plaintiff permission to travel to Israel, but at that time instructed plaintiff (a) to consult a doctor at once if he had chest pain or chest discomfort and to show such doctor the electrocardiogram of plaintiff which Dr. Teitelbaum had taken in June 1961; and (b) to have his blood pressure checked from time to time.

 3. On June 29, 1961, plaintiff, his wife and children reached Israel by air and toured the country until August 13, 1961. On August 3, 1961, while at Elath, an area in Southern Israel, in extremely hot weather, plaintiff apparently experienced a spell of chest pain. The following facts appear in this connection:

 (1) The Gibraltar Hospital record, in plaintiff's history, refers to chest pain during the Elath incident (Ex. 4), although plaintiff denies reporting this fact (149);

 (2) Although plaintiff denied experiencing any chest discomfort (104), he testified that the shortness of breath at Elath lasted 15 or 20 minutes (148, 106) and that he felt weak all over (107, 108) on August 3, 1961;

 (3) Plaintiff's wife testified that plaintiff had discomfort, went out on the balcony and stayed "several hours," came back to the room, found it stuffy and went out again (201, 202);

 (4) Dr. Teitelbaum testified that he received a note in connection with trial preparation which read: "In Elath, in August, experienced pressure pains in chest." (364, 365)

 4. After the Elath episode, plaintiff consulted his cousin, a physician at Natania Hospital in Israel, told him about the episode, showed him his cardiogram (of June 1961), and asked the physician to take his blood pressure. (109) In spite of these facts, Dr. Burstein, plaintiff's expert witness, concluded that "the attack at Elath doesn't indicate a heart attack."

 5. The plaintiff bought passenger tickets from the defendant at Jerusalem on July 16, 1961 (see Ex. 2); and on August 13, 1961 boarded the defendant's vessel, the SS Zion, at the Port of Haifa, Israel, as a passenger bound for New York. There is no evidence that plaintiff gave defendant any notice of his physical condition or made any request for special care.

 6. The SS Zion was owned, operated and controlled by defendant and carried 385 passengers. A physician and nurse were aboard as required by Israeli law. (178)

 7. On Tuesday evening, August 15, 1961, while the vessel was at sea en route from Haifa to Naples, the plaintiff experienced a chest pain which lasted approximately five to seven minutes (118) when he was about to retire. (24) He said that this attack was generally similar to that which he had experienced in April 1961. He did not seek a doctor at this time. (25, 118)

 8. Having taken no medicine (122), the next morning, Wednesday, August 16, 1961, while the ship was docked at Naples, plaintiff went to the office of the ship's doctor, Dr. Yaulus. (118, 119) Dr. Yaulus "took his pulse," (120) stethoscoped him, and took his blood pressure. Plaintiff said he told the doctor of his April 1961 experience, the hospitalization in Mt. Vernon, and "of the pain," "which reoccurred the night before," and showed him the June electrocardiogram. (25, 26) Plaintiff did not tell Dr. Yaulus that he had experienced chest pains or shortness of breath in Elath (on August 3, 1961), before boarding the SS Zion (143, 161); and there is no evidence that plaintiff told Dr. Yaulus that on April 22, 1961. at Mt. Vernon, his pains continued for a period of 40 minutes, as he had told Dr. Teitelbaum. (25, 30, 348) Plaintiff testified that the doctor said: "There is nothing wrong with you, you just over-ate." (26) Plaintiff said he asked the doctor about going ashore and the doctor answered: "Go ahead, you are in perfect shape." (29) Between 8:00 and 4:00 that day, plaintiff rested, relaxed and slept (121), and spoke to his wife, who told him not to go ashore. (122)

 The electrocardiogram taken in June 1961 was never produced at the trial, although Dr. Teitelbaum testified he gave it to plaintiff to take with him to the Mid-East. (350) Dr. Teitelbaum stated he did not know where the records were or even if the June record varied from the normal (353), or what they showed. (350) Plaintiff said that now he neither had the electrocardiogram nor knew what he did with it. (351) Thus, there is no proof as to what the electrocardiogram, which plaintiff said he showed to Dr. Yaulus on August 16, 1961, actually did show.

 Under the foregoing circumstances, I find that there was no malpractice by Dr. Yaulus as to plaintiff on Wednesday, August 16, 1961, since plaintiff failed to acquaint Dr. Yaulus with the full history of his ailment sufficient to enable the physician adequately to treat him.

 9. On Wednesday, August 16, 1961, at about 4:00 P.M., plaintiff and his wife went ashore at Naples, descending 100 steps at the end of the dock (122, 123), walked the streets around the pier, went "window shopping" for about two hours, and, returning, ascended the 100 steps early in the evening. (123, 124) While ashore, plaintiff sought no medical assistance or medicine. (124) Neither did he go to the ship's doctor that day before the ship sailed. (125) Apparently, plaintiff suffered no ill effects from climbing the steps such as Dr. Guck opined, which indicated that plaintiff's exercise tolerance was good. (561)

 Dr. Burstein stated that it would be good practice for a general practitioner to advise a person who has suffered from coronary insufficiency not to climb long stairways. (406, 407)

 Dr. Guck, when asked his opinion as to plaintiff's traveling up the "one hundred steps," indicated that it was ill-advised for a patient, who had been told he had an angina or coronary insufficiency, to pursue activities which might very well cause him further symptoms. (546, 547)

 This court may add that the plaintiff, as an educated person, should have known that such exertion was improper. Dr. Guck distinctly indicated that it was ill-advised for the plaintiff, who was aware of previous coronary insufficiency and recognized his pains on ship as similar, to pursue activities which might well cause further symptoms. (546, 547) The plaintiff, before this trip ashore, was advised by his wife not to go ashore, but went nevertheless. (121, 122)

 10. On Thursday, August 17, 1961, while in bed, at about 10:00-10:30 P.M., chest pains of plaintiff recurred, whereupon plaintiff rang for the steward and asked to see the doctor. (35) The nurse came and administered two pills to the plaintiff, but the pain did not subside; the nurse brought two more pills, the pain still did not stop, and the nurse again returned to give plaintiff a "hypo." Although plaintiff asked the nurse to get the doctor, she said: "This [apparently the hypo] is what the doctor prescribed." (37) About 3:30 A.M. (August 18th) plaintiff fell asleep. (36) Dr. Burstein testified that the record indicated that plaintiff had suffered an attack of myocardial infarction at that time (399), but there is no proof that Dr. Yaulus knew or should have known this fact from any information then brought to his attention, directly or indirectly.

 On Friday morning, August 18, 1961, when Mrs. Amdur believed that her husband had a fever (225), the nurse took plaintiff's temperature and then said: "It is not much, it isn't really fever." (226) That morning the nurse told plaintiff that the doctor was busy with another patient, and, later, that the doctor was busy ashore getting a doctor for another patient. (276, 277)

 On Friday afternoon, August 18th, at about 4:00 or 4:30, when Mrs. Amdur asked the doctor to come and see her husband (218), according to Mrs. Amdur the doctor said: "What may seem irregular to you, may be regular to me. However, I will be there shortly."

 At this time, although the plaintiff told the nurse "about the pain" in his chest and asked for the doctor, there is no indication whatsoever that he told her any more than that. Presumably, that was all the nurse told the doctor, whereupon the doctor prescribed the pills and the hypo. And as Dr. Guck stated, there was no negligence under these circumstances. (See Discussion)

 11. On Friday, August 18, 1961, at about 9:30 A.M., while the vessel was docked at Marseilles for the day, the doctor told plaintiff's wife that he was too busy to see plaintiff at that time (215-217), but visited the plaintiff at about 4:30 P.M. that day. After examining plaintiff, Dr. Yaulus told plaintiff's wife that he did not think plaintiff's condition had anything to do with his prior coronary, that it was too late to get the doctor from Marseilles, that the plaintiff should rest, and that he would be all right. (218-219, 231-233) Later that day the doctor told plaintiff's wife that he would radio to Gibraltar, the next port of call, and have an ECG taken of plaintiff. Because of vibrations, it was impossible to operate an electrocardiograph aboard the ship. The day following, Saturday, August 19, 1961, the doctor told plaintiff's wife that the plaintiff would be taken to the hospital at Gibraltar for an ECG. (234-236)

 As hereinafter stated, the plaintiff has not shown by a fair preponderance of the credible evidence that Dr. Yaulus was guilty of malpractice. As Dr. Guck testified, the medication given by Dr. Yaulus on Thursday evening and early Friday morning showed good judgment under the circumstances. (586, and Discussion) Although Dr. Guck conceded that on Friday at 4:30 P.M., when plaintiff's wife requested Dr. Yaulus to summon a doctor from Marseilles, Dr. Yaulus should have done so, Dr. Guck concluded that Dr. Yaulus in no way contributed to the intensification of plaintiff's cardiac problem. (580, and Discussion)

 For the reasons expressed hereafter in my Discussion, I am not convinced by the testimony of Dr. Burstein.

 12. On arrival at Gibraltar, Sunday, August 20, 1961, after examination of plaintiff by a Dr. Isola, the port doctor, the ship's doctor directed plaintiff to proceed to the hospital in Gibraltar for an electrocardiogram. (39) Plaintiff proceeded to a taxi at the pier and rode to the hospital. (40-41)

 13. Plaintiff has failed to prove by a fair preponderance of the credible testimony that defendant's ship's doctor was guilty of medical malpractice. (See Discussion, which is hereby incorporated)

 14. The plaintiff has failed to prove by a fair preponderance of the credible evidence any proximate causal relationship between his treatment on the SS Zion by the ship's doctor and the alleged resulting injury.

 15. I find that the law of Israel governs the disposition of all tort and contract claims in this action. I further find that the statutory standard in Israel as to negligence is as follows:

 Negligence consists of "(i) doing some act which in the circumstances a reasonable prudent person would not do or failing to do some act which in the circumstances such a person would do or (ii) failing to use such skill or to take such care in the exercise of a profession, trade or occupation as a reasonable prudent person qualified to exercise such profession, trade or occupation would in the circumstances use or take." (Civil Wrongs Ordinance of the State of Israel, § 50(3))

 The opinion of the Supreme Court of Israel in Lewithal v. Kupat Holim (Pis-kei-Din shel Beit-Hamishpat Hael'yon l'Israel, Vol. 22, Part 2, No. 8/Year 5728/9-1968) dealt with the general obligation of a physician. The opinion states:

 
"* * * what is the degree of care demanded of physician, and in what case will he be considered guilty of negligence? It had been repeatedly said in connection with these matters that a person is responsible only if there had been negligence, but is not responsible for every error, and his liability is not an absolute one or like that of an insurance company insuring against any accident. * * *
 
"Indeed, generally when the question of negligence arises, it is: how would a reasonable man behave, and in the case of negligence imputed to a physician - how would a reasonable doctor act * * *.
 
"With regard to such attitude, of taking into consideration the interest of the community (public good), it can be said, of course, that Civil Wrongs Ordinance makes no allusion to it, but this matter at all events serves as a warning to us not to impose on physician duty of care that exceeds what is customary in this profession * * *." (pp. 5-6 of English translation)

 This opinion involved operational procedures in a surgery but the statements above quoted relate to the general obligations of a physician as stated by the Israeli Court.

 16. Adopting the standard above set forth, I am forced to find that plaintiff has failed to show by a fair preponderance of the credible evidence that Dr. Yaulus was negligent as to plaintiff.

 17. I find that the law of Israel, as of 1961, does not support plaintiff's contention that Zim is vicariously liable for any alleged malpractice of Dr. Yaulus as claimed by plaintiff. (See Discussion)

 18. I find that under the law of Israel as of 1961, Israel followed the doctrine of comparative ...


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