Earl Watkins, Herbert Lester Davis and State Farm Mutual Automobile Insurance Co., Etc. v. United States , 589 F.2d 214 ( 1979 )

GOLDBERG, Circuit Judge:

This is an action under the Federal Tort Claims Act.

Airman James Richardson, though not a party to the suit, is the central character in this unhappy story. While on leave from his duty station in Turkey, Richardson, in the words of the trial judge, went “berserk.” He was admitted to the Redstone Arsenal Psychiatric Clinic in Alabama for several days of treatment and observation. The psychiatrists diagnosed Richardson’s disorder as “an acute and chronic situational reaction manifested by hysteria, anxiety, and depression.”

About a month after Richardson’s release from the Redstone Psychiatric Clinic, he returned to the Redstone Arsenal. This time he went to the Redstone Outpatient Clinic. There, Dr. Wald prescribed for him 100 5 m. g. tablets of Valium.¹ Several days later, the plaintiffs-appellees, Earl Watkins and Lester Davis, were injured when Richardson drove his automobile into their car.

The plaintiffs-appellees brought this action against the government under the Federal Tort Claims Act. They alleged that the government was liable for their injuries because one of its employees, Dr. Wald, had caused the accident by negligently prescribing the Valium to Richardson.² The trial court held for the plaintiffs-appellees. It found (1) that Dr. Wald acted negligently in prescribing the Valium to Richardson and (2) that this negligence was a proximate cause of the plaintiffs-appellees’ injuries. On appeal the government argues that the trial court erred in both these findings.

We begin our analysis by noting that in deciding the issues the government raises, we are bound by the standard of review set out in Rule 52 of the Federal Rules of Civil Procedure. It provides that “findings of fact shall not be set aside unless clearly erroneous.” Fed.R.Civ.P. 52. With this standard in mind, we shall now consider the asserted errors raised by the government.

I.

The trial judge found that Dr. Wald acted negligently in prescribing such a large amount of Valium to Richardson without taking an adequate history or checking for records with the Redstone Psychiatric Clinic. The government claims that there is insufficient evidence to support this finding of negligence.

We disagree. First, the record shows that Dr. Wald prescribed an excessive amount of Valium.³ Dr. Wald, himself, testified that he did not generally write prescriptions for 100 tablets. The government theorized that the reason for the unusually large prescription may have been that Richardson was about to return to Turkey and would have been unable to receive treatment en route. A former flight surgeon, however, discounted the government’s explanation testifying that the time in transit between air bases is never very long and there are generally medical facilities available at the stopping points. In any event, under the directed dosage, the prescription supplied Richardson with enough Valium for fifty days. We cannot believe that Richardson would spend over seven weeks in transit.

Second, the record shows that Dr. Wald prescribed this large amount of Valium on the basis of a very incomplete knowledge of Richardson’s history and current condition. Since Dr. Wald did not remember treating Richardson, he could only testify to his standard procedures for taking a patient’s history and obtaining his records.

Dr. Wald testified that under the procedure at Redstone Outpatient Clinic an examining doctor would only be furnished with records of a patient’s prior visits to the outpatient clinic. He would not receive any records from the Redstone Psychiatric Clinic, nor would the patient’s records be flagged to indicate that he had visited the psychiatric clinic. Thus, since Richardson’s permanent medical records were at his duty station in Turkey and since he had not previously been to the Redstone Outpatient Clinic, we must assume that Dr. Wald was furnished with no records on Richardson.

From the prescription he gave, Dr. Wald concluded that Richardson had probably complained of insomnia or another condition indicating mild anxiety. Valium is an appropriate drug for treating these ailments. Dr. Wald stated that before prescribing Valium to a patient like Richardson — one he did not know and for whom he had, no records — he would take a patient history, but only as it related to the patient’s present complaint. He would then prescribe the Valium if, on the basis of the visit, the patient seemed to him to be mentally and emotionally stable.⁴

Dr. Wald testified that had he known that Richardson was suffering from depression and had recently been treated for psychiatric problems, he would certainly not have prescribed Valium. All the doctors who testified agreed that Valium should not be prescribed to such a patient since it would increase the patient’s depression. Dr. Corley, who qualified as an expert in medical practices in both the military and the Huntington, Alabama area, indicated that the practice of prescribing a large amount of Valium to an unknown patient without asking the patient if he had a history of mental problems and without checking for records with a psychiatric clinic on the same military installation fell below the standard of care in the medical community. A doctor’s treatment is negligent if it falls below that standard of care. See, e. g., Parrish v. Spink, 284 Ala. 263, 224 So.2d 621 (1969).

Dr. Wald did not as a general practice before prescribing Valium ask patients he did not know whether they had a history of mental problems. We cannot tell from Dr. Wald’s testimony whether, in taking a “history relative to Richardson’s present complaint,” he asked Richardson if he had ever had any mental problems. The trial judge evidently assumed that Dr. Wald did not ask Richardson this question. If Dr. Wald did not, he was negligent in prescribing the Valium because he failed to take an adequate history. For the purposes of this opinion, we will assume that Dr. Wald did ask Richardson about his mental health. Even under this assumption, Dr. Wald was still negligent because he failed to verify Richardson’s answers by checking for records with the Redstone Psychiatric Clinic.

Given Dr. Wald’s practices and Dr. Cor-ley’s testimony, there was sufficient evidence in the record for the trial judge to find that Dr. Wald acted negligently. We certainly cannot hold this finding clearly erroneous.

In deciding this case we express no opinion about whether Dr. Wald would have been negligent had he prescribed a smaller amount of Valium on the basis of the history he took and procedures he followed; nor do we decide whether Dr. Wald’s large prescription would have been acceptable if he had taken an adequate history and checked the files at the Redstone Psychiatric Clinic. But it seems clear to us that by prescribing such a large amount of Valium to Richardson without even telephoning to the psychiatric clinic on the same base, Dr. Wald impermissibly increased the danger that Richardson would harm others. A Fortiori then, if Dr. Wald did not even question Richardson about his mental health, he certainly impermissibly increased this danger.

There was no obvious reason to prescribe so much Valium; little harm will be done, we think, and few costs incurred if military doctors can prescribe only smaller quantities, at least until they have access to some of the patient’s records. Also, it is scarcely burdensome to check other clinics on the same installation for records which might indicate that a certain prescription would be unusually dangerous. The issue is not whether the army must establish centralized record keeping or even whether each installation must have centralized filing. The point is only that before prescribing a potentially dangerous amount of a drug, Dr. Wald should have taken the minimal precaution of inquiring of another clinic at the same facility whether the patient had the sort of history that would plainly preclude the prescription. This much, at least, is required.

II.

The government makes two arguments concerning the trial judge’s finding of proximate cause. First, the government argues that there is insufficient evidence in the record showing that Richardson actually ingested the Valium. And second, it argues that because Richardson had .16 m. g. of alcohol per 100 cubic centimeters of his blood, the trial judge erred in finding that Richardson was only mildly intoxicated and that his intoxication could not have accounted for his actions.

Contrary to what the government argues, we find sufficient evidence in the record that Richardson ingested the Valium. His wife testified that he was taking the Valium on the morning of the accident and that he was “high” on Valium when he left the house,

Furthermore, considerable circumstantial evidence supports such a finding. Richardson spent the afternoon of the day of the accident at the home of Margaret Croxton, his wife’s aunt. Croxton testified that all during the afternoon Richardson sat with a bottle of liquor and a vial of Valium on the table in front of him. She stated that he made many trips to the bathroom and each time he took the Valium with him. She further stated that although she only saw Richardson take two small drinks of liquor, his behavior became more bizarre as the afternoon wore on. He seemed in a stupor and had difficulty speaking and moving. By the end of the afternoon, he was, according to Croxton, acting like a “zombie.”

At trial several witnesses testified to Richardson’s reckless driving right before the accident. According to their testimony, Richardson was sitting erect in the car and appeared to have deliberately aimed at several oncoming vehicles before hitting the plaintiffs-appellees’ automobile. One of these witnesses testified that after the accident he approached Richardson’s automobile and saw a partially empty bottle of small, round, yellow pills on the floor of the car. Valium tablets were shown to fit that description.

Although there was some evidence to the contrary,⁵ we conclude that there was sufficient evidence in the record from which the trial judge could find that Richardson had ingested the Valium on the day of the accident. Once again, we cannot hold this finding clearly erroneous.

The government’s second contention concerning proximate cause is that the trial judge erred in concluding that Richardson was only mildly intoxicated and that his intoxication alone could not explain the manner in which Richardson operated his automobile. The government notes that the .16 blood alcohol level in Richardson’s blood raises a presumption of intoxication under Alabama law.⁶ It claims that Richardson’s intoxication was the sole cause of the accident and that the trial judge must have ignored the Alabama statutory presumption in finding otherwise. We disagree. The trial judge did not disregard the presumption. His finding that Richardson was mildly intoxicated is in accordance with the presumption. The Alabama statute merely raises a presumption of intoxication. If intoxication is found, nothing in the statute or Alabama case law requires the trial judge to find that the intoxication is the sole cause of any resulting harm.

Furthermore, there is evidence in the record which supports the trial judge’s finding that Richardson’s intoxication did not alone account for his behavior. Dr. Corley testified that a .16 m. g. blood alcohol level would constitute only mild intoxication and would only slow a person’s reflexes in responding to emergency situations. Another doctor testified that Valium when taken with alcohol can seriously effect the brain, causing “failure of judgment.” Given the evidence of synergistic effect of alcohol and Valium, the finding that Richardson did ingest the Valium, and his conduct in operating the automobile, we cannot hold clearly erroneous the judge’s finding that Richardson’s intoxication alone could not explain his actions.

Perhaps what the government is really arguing is that because Richardson’s intoxication contributed in causing the accident, Dr. Wald’s negligence in prescribing the Valium cannot be a proximate cause of the plaintiffs-appellees’ injuries. However, Alabama follows the general tort rule that there can be more than one proximate cause of an injury. Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236, 248 (1975); Lawson v. General Telephone Co., 289 Ala. 283, 267 So.2d 132, 138 (1972).

The proximate cause rule in Alabama is that a person is responsible for all the reasonably foreseeable consequences of his negligent act. E. g., Vines v. Plantation Motor Lodge, 336 So.2d 1338 (Ala.1976). Obviously, a foreseeable consequence of prescribing Valium to a serviceman without checking to see if he has a history of psychiatric problems is that the serviceman will in fact have psychiatric problems. It is also foreseeable that a serviceman suffering from depression will drink. And finally, it is foreseeable that a person with mental problems, who has ingested Valium and alcohol, will cause injury to others. Thus, Dr. Wald’s negligence in prescribing the Valium must be considered a proximate cause of the plaintiffs-appellees’ injuries.

For the reasons stated, we uphold the disputed findings of fact of the trial judge and his conclusion on proximate cause. The trial court’s findings are brigaded by a sturdy buckler and shield which have been our Marquis of Queensberry rule for more than twenty years. See Connally v. Transcon Lines, 583 F.2d 199 (5th Cir. 1978); Lum-bermens Mutual Casualty Co. v. Klotz, 251 F.2d 499 (5th Cir. 1958). The protective armor of Rule 52 of the Federal Rules of Civil Procedure here parries the government’s epee. The trial judge’s findings are fact-founded, logically deducible, and survive the government’s onslaught. The judgment of the district court is therefore affirmed.

AFFIRMED.

1 . The prescribed dosage was half a Valium tablet four times a day. Dr. Wald also prescribed for Richardson penicillin and an antacid called Mylanta Liquid.

2 . The Federal Tort Claims Act provides that the United States may be sued for “personal injury or death caused by the negligent or wrongful act or omission of any employee of the Govemment while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b). Here the government concedes that in prescribing the Valium, Dr. Wald was acting within the scope of his employment.

3 . The propriety of the dosage, half a 5 m. g. tablet four times a day, is not in question.

4 . Dr. Wald admitted, however, that people who are mentally ill do not consistently manifest symptoms of their illness.

5 . Laboratory tests taken after the accident showed that Richardson’s stomach contents and urine were “negative to drugs tested.” The records, however, do not indicate whether the lab specifically tested for Valium. Moreover, a doctor testified that such negative test results are not conclusive evidence on the absence of drugs.

6 . Alabama Code provides,

Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving a vehicle while under the influence of intoxicating liquor, the amount of alcohol in the person’s blood at the time of the chemical test or tests authorized by this chapter as shown by chemical analysis of the person’s blood, urine, breath shall be admissible as evidence and give rise to the following presumptions: . . .

3. If there was at that time 0.10 percent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of intoxicating liquor.

4. Percent by weight of alcohol in the blood shall be based upon milligram of alcohol per one hundred cubic centimeters of blood.

Ala.Code tit. 36, § 155(a) (Supp.1974).