The opinion of the court was delivered by: MCLAUGHLIN
McLAUGHLIN, District Judge
This action under the Federal Tort Claims Act (28 U.S.C. § 2675) seeks damages for the personal injury and wrongful death of Amato Pepe. Mr. Pepe was treated at the New York Veterans Administration ("V.A.") Hospital on November 21, 1977; he was sent home where he collapsed that very night. He died on November 22, 1977 without ever regaining consciousness.
Mr. Pepe's widow brings this action for malpractice, arguing that the V.A. physicians failed to diagnose Pepe's true condition and failed to admit him for testing and observation. The case was tried before me without a jury. The following constitute the Court's findings of fact and conclusions of law. Fed. R. Civ. P. 52.
On November 4, 1977, Amato Pepe went to see his family physician, Dr. Dino Belletti. Dr. Belletti, who did not testify, but whose deposition was admitted, is a specialist in internal medicine with an emphasis in cardiology. Dr. Belletti is an attending physician at Astoria General Hospital, a part-time staff cardiologist at the Bronx V.A. Hospital and a former Director of Cardiology at Physicians Hospital. (Beletti Deposition ("Dep.") at 9-10).
Pepe told Dr. Belletti that he was seeing "flashing lights" in his left eye. Pepe also told Belletti that he was a heavy smoker. (Belletti Dep. at 12). In fact, Pepe was at that time smoking 2-3 packs of cigarettes daily.
Dr. Belletti examined Pepe and concluded that he was suffering from optic neuritis, secondary to either tobacco, diabetes or drugs. (Belletti Dep. at 13). He prescribed 500 mg. Vitamin C daily, advised Pepe to quit smoking, and referred Pepe to an ophthalmologist and a neurologist. He also told Pepe that he was suffering from nicotine poisoning. (Elba Pepe Nunez* Dep. at 37).
Dr. Belletti's medical chart for the visit contains no record that Pepe complained of chest pain, hallucinations, right shoulder pain or pain in the abdomen. (Belletti Dep. at 17) (Government's Exhibit ("GX") B). Dr. Belletti stated that if Pepe had such complaints, he would have noted them on the chart. Dr. Belletti also said that it was his usual practice to examine a patient's lungs and abdomen. He also stated that if he had found any abnormality he would have recorded it in the patient's chart. (Belletti Dep. at 18-19).
On November 9, 1977, Pepe was examined by Dr. Clyde R. Locke, an ophthalmologist. Dr. Locke noted that ocular examination was normal except for narrowing of the retinal vessels suggestive of arteriosclerotic changes. (GX A). Dr. Michael Baden, an expert for the defendant, testified that Dr. Locke's records did not indicate that Pepe voiced any complaints related to a cardiac condition. He also testified that Dr. Locke's records indicated that his examination of Pepe resulted in no findings of significance.
On November 21, 1977, Pepe suffered some sort of attack at work. He did not look well and was hallucinating. His wife, who worked in the same office, took him back to Dr. Belletti. While waiting in the doctor's office, Pepe continued to hallucinate, going so far as to carry on a conversation with a picture on the doctor's wall.
Dr. Belletti's medical chart for this visit contains no notation that Pepe complained of chest pain, right sholder pain or epigastric pain (Belletti Dep. at 25-16). Belletti's chart also contains no record that Pepe has provided him with a history of hypertension. (Belletti Dep. at 27) (GX B).
At this time, however, because Pepe still suffered from loss of vision in his left eye, Dr. Belletti advised Pepe to seek hospitalization. (Belletti Dep. at 20). ...