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394 F.2d 482

Docket No. 24702.

Smith v. United States

Fifth Circuit Court of Appeals

Decided April 24, 1968.

Fifth Circuit Court of Appeals · decided 1968-04-24

2 counsel of record

Relies on Dufrene v. Indemnity Insurance Co. of North America

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1968-04-24

How this case has been cited

Cited by 4 later decisions — most recently December 2005

1 federal appellate · 3 state decisions

2019681970198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1Jacob D. Guice, Rushing & Guice, Biloxi, Miss., for appellants.

¶2Robert E. Hauberg, U. S. Atty., Jackson, Miss., Edwin L. Weisl, Jr., Asst. Atty. Gen., Morton Hollander, Robert C. McDiarmid, Robert M. Heier, Attys., Dept. of Justice, Washington, D. C., for appellee.

¶3Before GEWIN and COLEMAN, Circuit Judges, and HUGHES, District Judge.

¶4PER CURIAM:

¶5This appeal is from a suit brought by appellants below for wrongful death under the Federal Tort Claims Act. Appellants are the husband and children of the decedent, who died in Keesler Air Force *483Base Hospital after a successful gall bladder operation, from the effects of a drug, Compazine, which was administered 10 hours after the operation to control nausea.

¶6Appellants contend that the physicians treating Mrs. Smith were negligent (1) in giving the drug Compazine in the immediate post-operative period and (2) in failing timely to administer one of two antidotes, Benadryl or Phenobarbital, after its effects became apparent.

¶7The District Judge, sitting without a jury, found that Mrs. Smith “ had an idiosyncrasy to the drug which was not known and could not have been known to the hospital <. the doctors that there appears to be no “known method of determining in advance as to the idiosyncrasies of a patient to this drug;” that Compazine is a “widely recognized and accepted drug”; that the doctors were not negligent in delaying giving an antidote “ until they first determined that the Compazine was really the trouble”.

¶8Appellants’ contention on this appeal is that the judgment of the court is against the overwhelming weight of the evidence and not in accordance with his own findings.

¶9The expert testimony was conflicting regarding (1) the propriety of administering Compazine to combat nausea after a gall bladder operation, and (2) the reasonableness of the delay in administering the antidote.

¶10Rule 52(a) F.R.Civ.P. ■ provides that the findings of the District Court are subject to being overturned only if “clearly erroneous.” While the opinion evidence is conflicting, it cannot be said that the court’s findings were unsupported. It was the prerogative of the trial judge to resolve the conflict. Dufrene v. Indemnity Insurance Company of North America, 303 F.2d 788 (5th Cir. 1962). He did so in favor of defendant and it does not appear from the record that he was mistaken.

¶11The judgment is affirmed.

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