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May 10, 1984

EDWIN A. BECKCOM, as Executor of the Estate of LINDA M. BECKCOM, Deceased, Plaintiff,

The opinion of the court was delivered by: MUNSON



 Plaintiff Edwin A. Beckom has brought this action pursuant to the Federal Tort Claims Act to recover for alleged medical malpractice by employees of the Department of the Air Force. Specifically, plaintiff alleges that a surgeon and nurse practitioner were negligent in failing to properly diagnose and treat his wife's breast cancer. Though originally brought as an action for damages, plaintiff's decedent Linda M. Beckom died on May 11, 1983, and this action was converted to one for wrongful death by stipulation of the parties. Pursuant to Rule 52 of the Federal Rules of Civil Procedure, this Memorandum-Decision and Order constitutes the court's findings of fact and conclusions of law. For the reasons that follow the court finds that plaintiff has established a proper case of negligence under New York law and that he is entitled to recover damages against the defendant. *fn1"


 Factual Background

 Plaintiff's decedent Linda M. Beckom was born on August 1, 1947. Mrs. Beckom attended nursing school from 1965 through 1968 and then worked for one year as a registered nurse at Fitzgerald Mercy Hospital in Darby, Pennsylvanie. Following Mrs. Beckom's work at the Fitzgerald Mercy Hospital, she was commissioned as a second lieutenant in the United States Air Force in October of 1969. Mrs. Beckom served a two-year tour of duty in the Air Force and then received an honorable discharge in October of 1971. The plaintiff and his decedent were married on November 20, 1971. At that time plaintiff Edwin A. Beckom was a captain in the Air Force and was stationed at Barksdale Air Force Base in Louisiana.

 Linda Beckom first experienced problems with her breasts in March of 1971 when she detected two lumps in her right breast and one lump in her left breast. Mrs. Beckom was fully familiar with breast self-examination, and it is through this practice that she discovered the lumps. After discovery of the lumps Mrs. Beckom scheduled an appointment with a surgeon at Barksdale Air Force Base. Dr. David Trent gave Mrs. Beckom a thorough examination of the breasts and confirmed the presence of the lumps. In order to determine the proper course of treatment, Dr. Trent directed her to return in one month for a follow-up examination.

 At the end of one month's time, Mrs. Beckom returned to Dr. Trent and explained that the lumps in her breasts were becoming painful. It was decided that a biopsy of the lumps be performed, and such biopsy was performed by Dr. Trent. The results of the biopsy on the right breast revealed benigh lumps, a condition classified as fibroadenoma. The lump in the left breast was also benign and revealed the presence of fibrocystic breast disease. Fibrocystic breast disease in a woman of Mrs. Beckom's age is not uncommon, and, therefore, Mrs. Beckom was not overly concerned by this finding.

 Mrs. Beckom's next experience with lumps in her breasts occurred in January of 1976 when she become aware of a lump in her right breast. An appointment was made for Mrs. Beckom to see Dr. Stanley Cowen at Plattsburgh Air Force Base. Dr. Cowen examined her breasts and aspirated the cysts in Mrs. Beckom's right breast. A milky white fluid was removed through the aspiration procedure, and Dr. Cowen initially concluded that Mrs. Beckom had a galactocele or plugged milk duct. When the lump in her breast did not disappear, Mrs. Beckom returned to Dr. Cowen who then performed a biopsy on the lump in her right breast in February of 1976. The biopsy revealed fibrocystic breast disease, and Dr. Cowen instructed Mrs. Beckom to have her breasts examined periodically.

 Mrs. Beckom's next visit to a physician occurred in the fall of 1976 when she was examined by Dr. Alan M. Bloomberg. It is this initial visit with Dr. Bloomberg and Mrs. Beckom's subsequent visits to the hospital at the Plattsburgh Air Force Base that give rise to the instant lawsuit.

 Plattsburgh Air Force Base Clinic

 In November of 1976 Mrs. Beckom noticed a thickening in her left breast and two lumps in her right breast. She complained to her husband and then made an appointment with the surgical clinic at Plattsburgh Air Force Base. On November 12, 1976 Mrs. Beckom arrived at the clinic and was assigned to Dr. Alan M. Bloomberg.

 When Dr. Bloomberg first saw Mrs. Beckon on November 12, 1976, she attempted to give her past history and present complaints. However, Dr. Bloomberg refused to allow Mrs. Beckom to explain her history and told her that he would ask the questions. On this issue the court finds the testimony of Mrs. Beckom credible and consistent with Mrs. Beckom's medical records. Although Dr. Bloomberg testified that he did not prevent Mrs. Beckom from giving her medical history, the medical records for that date do not indicate Mrs. Beckom's full history, namely, that she had two prior breast biopsies. Indeed, Dr. Harvey R. Bernard, one of the Government's own witnesses, testified that based upon this review of these medical records, Dr. Bloomberg did not know of Mrs. Beckom's previous breast biopsies. *fn2"

 Dr. Bloomberg performed a manual examination of the breasts and palpated most of the areas around the axilla or armpit. The doctor, according to Mrs. Beckom, did not perform a proper visual examination which is used to determine the outward signs of cancer such as skin dimpling or retraction of the nipple. *fn3" Moreover, Mrs. Beckom denied that Dr. Bloomberg performed a superclavicular examination. This is done by the physician pressing his fingers above the collar bone to determine the presence of any abnormal lumps or masses. Regardless of whether this particular diagnostic procedure was performed by Dr. Bloomberg, the initial examination was described by Mrs. Beckom as not being very thorough.

 Dr. Bloomberg's conclusion with respect to the November 12, 1976 examination was that Mrs. Beckom had fibrocystic breast disease. This conclusion, now admitted to be erroneous, was based upon the fact that Mrs. Beckom had no family history of breast cancer, Mrs. Beckom's age, and the doctor's own physical examination. At the end of the examination Dr. Bloomberg directed Mrs. Beckom to return for a future examination. Although Dr. Bloomberg testified that the next examination should be in approximately three months, Mrs. Beckom testified that no specific time period was mentioned, but that the doctor simply instructed her to come back. The medical record contains a notation by Dr. Bloomberg indicating a return visit in three months.

 Following Mrs. Beckom's visit to the Plattsburgh Air Force Base surgical clinic, she noticed that there were more lumps developing in her breasts and that the original lumps in her right breast were increasing in size. Specifically, Mrs. Beckom became aware of a hard, marble-like lump in the lower outer quadrant of her right breast, and lumps in the inner upper aspect and the lower inner aspect of the breast. In addition, the nipple on her right breast started to retract. Such retraction is often a clue to the development of breast cancer. Mrs. Beckom consulted with her husband, plaintiff Edwin Beckom, and then scheduled an appointment with the surgical clinic for March 8, 1977.

 Upon Mrs. Beckom's return to the surgical clinic, she was again assigned to see Dr. Bloomberg. As with the first visit Dr. Bloomberg did not allow Mrs. Beckom to fully present her complaints, but insisted upon asking his own questions. The doctor performed a manual examination of the breasts and concluded that the lumps were nothing more than small, multiple cysts. Dr. Bloomberg rejected Mrs. Beckom's suggestion that she have a mammogram due to Mrs. Beckom's young age and the possible dangers of excessive radiation.

 The medical record for this visit is silent as to the question of a mammogram, and Mrs. Beckom testified that Dr. Bloomberg did not inquire whether she had ever had a mammogram. Indeed, the court notes that both entries on Mrs. Beckom's medical records for her visits with Dr. Bloomberg are sketchy at best. Therefore, since Dr. Bloomberg testified that he had no independent recollection of Mrs. Beckom or her two visits, the court must credit Mrs. Beckom's testimony in this regard. *fn4" At the conclusion of the examination Dr. Bloomberg instructed Mrs. Beckom to return for a follow-up examination in six months. The doctor also told Mrs. Beckom that it was "ridiculous" for her to come in for examinations as often as she had been coming. Mrs. Beckom understandably felt quite relieved when the doctor told her not to worry about the lumps in her breasts.

 Mrs. Beckom continued to experience lumps in her breasts throughout the months following her visit with Dr. Bloomberg. On July 20, 1977 Mrs. Beckom was seen at the clinic for a routine gynecological examination by Major Theresa Robertson, a nurse practitioner. Major Robertson examined Mrs. Beckom's breasts and, after being told of Dr. Bloomberg's prior diagnosis of fibrocystic breast disease, Major Robertson noted in the records that no other problems were present. Mrs. Beckom's subsequent medical treatment will be explored below. Although these experiences are not relevant to this action in terms of liability, they will be recounted in order to more fully understand the court's position with respect to damages.

 Dr. Medina

 Mrs. Beckom continued to experience problems with her breasts in the period following her examination by Major Robertson. Mrs. Beckom noticed that the lumps in her right breast increased in size, and she also experienced some pain in her breasts during exercise. Accordingly, she scheduled another appointment at the surgical clinic and was seen on October 26, 1977 by Dr. Oswaldo Medina. Dr. Medina, a general surgeon on the clinical staff, felt two masses in the right breast at the inner upper quadrant and the outer quadrant measuring 8 centimeters and 2 centimeters respectively. The doctor also felt smaller masses in the breast and noted palpable lymph nodes in the right axilla. Due to the number and size of the lumps, Dr. Medina scheduled Mrs. Beckom for a breast biopsy.

 The biopsy on Mrs. Beckom's right breast was performed on October 31, 1977, and two breast masses were removed and sent to a laboratory at the Champlain Valley Physician's Hospital for examination. The results of the biopsy proved that Mrs. Beckom had infiltrating ductile carcinoma, or cancer of the breast.

 After consultation with the plaintiff Edwin Beckom, Mrs. Beckom agreed to have a right radical mastectomy. The operation was performed on November 2, 1977 by Dr. Medina and a civilian physician, Dr. George P. N. Boolukos. The operation consisted of the removal of the breast tissue, the axilla, and all of the underlying muscles.Mrs. Beckom remained in the hospital for approximately two weeks after the operation and experienced pain and discomfort as might be expected from such a major surgical procedure.

 Due to the high degree of probability that Mrs. Beckom's cancer had spread to her left breast, a mammogram was performed on November 9, 1977. This proved inconclusive, although a definite dominant mass lesion could be identified in the left breast area. Because of the suspicious nature of the results and the great degree of involvement of the cancer in Mrs. Beckom's right breast, *fn5" a second biopsy was performed. Although another radical mastectomy was indicated, it was determined that Mrs. Beckom could not undergo such an operation in her then physical and emotional state. Accordingly, a subcutaneous mastectomy was performed on Mrs. Beckom's left breast on November 21, 1977.

 After her release from the hospital Mrs. Beckom was referred by Dr. Medina to Dr. James C. Chingos, an oncologist at the Champlain Vally Physicians Hospital Medical Center. Dr. Chingos placed Mrs. Beckom on an aggressive chemotherapy regimen. This course of treatment greatly debilitated Mrs. Beckom, but had the effect of slowing the growth of her cancer to some degree. The chemotherapy continued until November or December of 1979, at which time Mrs. Beckom and her husband had moved to Lawrence, Kansas.

 Dr. Gray

 Upon Mrs. Beckom's arrival in Kansas she was referred to Dr. Captain K. Gray at the Kansas University Medical Center. Dr. Gray discovered a mass in the cervical chain of the left side of the neck. Such mass was biopsied by Dr. John Reese, and it was determined that the cancer from Mrs. Beckom's breast had spread to her neck. The lumps in her neck were then removed by Dr. Reese.

 Later in the year Dr. Gray ordered a series of bone scans which revealed that the cancer was spreading to Mrs. Beckom's hips, ribs and cervical spine. The spread of the disease caused a great amount of discomfort to Mrs. Beckom, who was eventually put on radiation therapy in an attempt to alleviate her pain. While the treatment was helpful to a limited extent, Mrs. Beckom's pain ...

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