UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ESTATE OF MELVIN R. WILSON,
Plaintiff-Appellant,

v.                                                                   No. 95-1003

UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CA-94-101)

Argued: March 7, 1996

Decided: April 15, 1996

Before RUSSELL and WILKINS, Circuit Judges, and CHAPMAN,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Hunter Craycroft Harrison, Jr., McLean, Virginia, for
Appellnt. Dennis Edward Szybala, Assistant United States Attorney,
Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey,
United States Attorney, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Melvin R. Wilson's wife brought this medical malpractice action
on behalf of his estate (the Estate) under the Federal Tort Claims Act
(FTCA), as amended, 28 U.S.C.A. §§ 1346(b), 2671-2680 (West
1993), alleging that physicians at the Hunter Holmes McGuire Medi-
cal Center (the McGuire Center), a hospital operated by the United
States Department of Veterans Affairs, caused Wilson's death by neg-
ligently failing to diagnose his lung cancer. The district court entered
judgment in favor of the Government following a trial without a jury,
and the Estate appeals. We affirm.

I.

Wilson underwent surgery for duodenal ulcers at the McGuire Cen-
ter in August 1989. In preparation for the procedure, two chest x-rays
were taken, neither of which showed any evidence of lung cancer.
And, two post-operative visits to the McGuire Center during 1989
revealed that Wilson was recuperating from the surgery without com-
plication. Subsequently, in June and July 1990, Wilson returned to the
McGuire Center complaining of stomach pain and vomiting. An
examination revealed no active ulcer disease. He was given gastric
medication and released. Wilson failed to keep a follow-up appoint-
ment in October 1990.

He next visited the McGuire Center in October 1991, suffering
pain in his left hip, leg, and foot. Wilson was treated and instructed
to return in two weeks, at which time he was admitted. Physicians
determined that Wilson's symptoms were caused by a narrowing of
the iliac artery and that surgery was unnecessary. Consequently, he
was released with medication for his circulatory problem. Shortly
thereafter, Wilson was diagnosed with lung cancer following his
emergency admission to another hospital with complaints of slurred

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speech and numbness on his right side. He was transferred to the
McGuire Center, where physicians determined that his condition was
terminal. Wilson died approximately three weeks later.

The Estate instituted this FTCA suit, claiming that the physicians
at the McGuire Center negligently failed to diagnose the lung cancer,
thereby depriving Wilson of a substantial possibility of a cure. Wil-
son's wife testified at trial that during his visits to the McGuire Cen-
ter, Wilson made numerous complaints that the physicians failed to
investigate or, in some instances, to enter in his medical records. The
Estate also presented expert testimony that physicians at the McGuire
Center breached their duty of care* by failing to investigate ade-
quately Wilson's complaints and that physicians at hospitals main-
tained by the Department of Veterans Affairs were interested only in
diseases related to military service. In response, the Government pres-
ented the testimony of two doctors who, based on the medical
records, opined that the physicians at the McGuire Center complied
with the standard of care and that Wilson's lung cancer either was not
present or was not detectible until long after his July 1990 visit. They
also testified that the circulatory problems Wilson suffered in 1991
were unrelated to his cancer.

At the close of the evidence, the district court entered judgment for
the Government, concluding that the Estate had not proven that the
physicians at the McGuire Center breached the standard of care. The
court also determined that the Estate had failed to establish proximate
causation because it found that Wilson's lung cancer developed after
he was examined at the McGuire Center in July 1990.

II.

The Estate maintains that the district court erred in permitting the
Government's two expert witnesses to testify. It claims that under the
law of Virginia these doctors were not competent to render an opinion
on the standard of care. See 28 U.S.C.A.§ 1346(b); Va. Code Ann.
§ 8.01-581.20(A) (Michie 1992). The Government, however, asserts
that the provisions of Virginia law concerning expert qualification are
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*The parties agreed before trial that the relevant standard of care was
that of a primary care provider.

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inapplicable in this FTCA action and that, instead, Federal Rule of
Evidence 702 controls the admission of expert testimony. We need
not resolve which standard governs the admission of this testimony
because our review of the record convinces us that under either analy-
sis, the district court did not abuse its discretion in allowing the testi-
mony. See Scott v. Sears, Roebuck & Co., 789 F.2d 1052, 1055 (4th
Cir. 1986) (decision whether to admit expert testimony is reviewed
for abuse of discretion under Rule 702); Henning v. Thomas, 366
S.E.2d 109, 112 (Va. 1988) (appellate court reviews admission of
expert testimony under Va. Code Ann. § 8.01-581.20(A) for an abuse
of discretion).

III.

The Estate also argues that it proved proximate causation because
it showed that Wilson was deprived of a "substantial possibility of
survival." Hicks v. United States, 368 F.2d 626, 632 (4th Cir. 1966).
We disagree. The district court properly concluded that the Estate was
required to establish that an investigation of Wilson's complaints
more likely than not would have revealed lung cancer and that if the
cancer had been detected, Wilson probably would have survived. See
Hurley v. United States, 923 F.2d 1091, 1093-95 (4th Cir. 1991)
(interpreting the phrase "substantial possibility" from Hicks as "tanta-
mount to a probability")(internal quotations marks omitted); see also
Griffett v. Ryan, 443 S.E.2d 149, 152 (Va. 1994) (concluding that
plaintiff demonstrated proximate causation when trial testimony
established that a high likelihood existed that an operation at the time
the physician breached his duty of care would have resulted in the
patient being saved).

IV.

We have reviewed the remainder of the Estate's arguments and
conclude that they are without merit. Consequently, we affirm the
judgment of the district court.

AFFIRMED

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