(dissenting) :
Following the last remand of this case1 the district judge made careful and complete findings of fact, amply-supported by the record, adequate conclusions of law, correctly applying controlling precedent, and entered judgment thereon for the United States.2
The last appeal determined that negligence was proved and that the trial court was clearly erroneous in finding that the employee of the United States, Dr. Finley, was not negligent in his examination and diagnosis of the Rewis’s fifteen months old daughter, Joann Re-wis. Since the trial judge had found no negligence was present, the direction on remand was that he make findings “on the issue of causation and other relevant issues.”
The district judge took additional evidence as to causation and as noted, made full and complete findings, concluding:
“Plaintiffs have not carried the burden imposed on them. This Court finds that six hours after ingestion it is more probable that Joann would have died than that she could have been saved. I have concluded that failure to diagnose her condition on September 4, 1963, was not the proximate cause of her death. Therefore, there can be no recovery against the United. States for the acts or omissions of Dr. Finley in diagnosing the symptoms. The cause of Joann’s death was not faulty diagnosis or delay in proper treatment. It was the lethal dose of aspirin the child had consumed.
Judgment is entered accordingly.”
This, I respectfully submit, is where this difficult and protracted lawsuit should come to permanent rest.3 Instead the Court undertakes to reverse the trial court on this crucial and strongly controverted factual issue, despite ample evidence in the record supporting the decision of that court.
I do not so understand our appellate function under the constrictions of the “clearly erroneous” standard of Rule 52(a), F.R.Civ.P. and the numerous cases decided by this and other courts interpreting the rule. Fact-finding is the business of the trial court. I cannot accede to usurpation of that role by this court.
Further dissertation in this dissent would be a work of supererogation. The district court memorandum opinion, attached as Appendix A illustrates my point with clarity and telling precision.
With deference, I dissent.
APPENDIX A
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This action having been tried upon the facts by the Court without a jury, the Court does hereby find the facts and states separately its conclusions of law thereon, and directs the entry of the appropriate judgment, as follows:
STATEMENT OF THE CASE
(D
Sometime during the afternoon of September 4, 1963, fifteen-month-old Joann Rewis ingested what proved to be a fatal dose of aspirin. Her father, a Sergeant in the Air Force, had discovered that she had been playing with a bottle which once contained 300 adult aspirin tablets but neither parent sought medical assistance at that time. Instead, the parents waited until 6 hours later when the child had become ill. Joann’s father then took her to the Walker Air Force Base Hospital where Dr. Robert Finley misdiagnosed her con*1213dition as a viral infection of the respiratory tract. At no point during the examination did Sergeant Rewis suggest that Joann might have ingested any aspirin even though Dr. Finley specifically asked him whether she had taken any medicine. See Rewis v. United States, 369 F.2d 595 (5th Cir., 1966). The child was sent home with her father but because her symptoms became more severe the Sergeant returned her to the hospital on the next morning. There he again remained silent about the possible aspirin poisoning until Dr. Andrew Age-loff recognized the now advanced symptoms and ordered a blood test to determine the blood salicylate level. At that point the Sergeant- remembered that Joann had been playing with an aspirin bottle, p. 449. The blood test, taken approximately 22 hours after ingestion, revealed a salicylate level of 87.5 milligrams per cubic centimeter of blood. This was so high that it was decided that only an artificial kidney offered any hope of survival. The nearest available one was in San Antonio, Texas, and at about 3:00 p. m. Joann was placed on an aircraft to take her there. During the flight her vital functions began to fail, forcing the plane to land in Big Springs, Texas, where doctors were unable to revive the child.
(2)
The plaintiffs in the case are the child’s parents, individually and her mother as the temporary administratrix of the daughter’s estate. The parents claim the loss of services of the child and the administratrix seeks recovery for the value of Joann’s life. The plaintiffs based jurisdiction under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680. They contend that the Government employee, Dr. Finley, negligently failed to diagnose the aspirin poisoning, thereby proximately causing her death.
(3)
This is the third time this Court has considered these claims. The case was first tried before Judge Scarlett in the Spring of 1965. His finding for the Government was appealed and reversed by the Court of Appeals for the Fifth Circuit. Rewis v. United States, 369 F.2d 595 (5th Cir., 1966). The appellate court felt the court had improperly applied a prior decision in Watson v. United States, 346 F.2d 52 (5th Cir., 1965) by requiring specific expert testimony that, to a reasonable degree of medical certainty, the child’s life could have been saved if Dr. Finley had initially diagnosed the aspirin poisoning. The Court of Appeals believed that even without such a statement the record, as it stood, might well have supported a finding that the child would have been saved. Furthermore, the Court of Appeals ruled that several expert opinions, which may have influenced the finding that Dr. Finley was not negligent, were based upon the unsupported assumption that the child was either crying vigorously or breathing normally. As a result the case was remanded for additional consideration of these issues.
(4)
The case was retried in 1969 under a stipulation that all testimony given at the first trial, except the deposition of Dr. A. L. Ageloff, would be considered as though it had been given at the second trial. In addition, this Court heard expert testimony on the questions of causation and negligence. The Court reaffirmed its determination that Dr. Finley was not negligent in diagnosing Joann’s ailment as a viral infection and, therefore, did not reach the question whether the child could have been saved had the aspirin poisoning been diagnosed.
(5)
This decision was also appealed. Again the Court of Appeals for the Fifth Circuit reversed, finding that Dr. Finley was negligent in diagnosing the child’s condition as a viral infection. Because there had been no finding on the issues of causation and other relevant issues the Court of Appeals remanded the ease for further findings *1214upon all issues raised by the pleadings and the evidence.1 See Rewis v. United States, 445 F.2d 1303.
(6)
In view of these instructions the trial record was reopened to include additional expert testimony on causation.
At this point it will be useful to recapitulate the medical testimony bearing upon the question of probability of death irrespective of the erroneous diagnosis.
Dr. Edwin C. Shepherd, a highly competent Savannah pediatrician, discussed such measures as intravenous bicarbonate treatment, peritoneal dialysis (flushing the stomach), exchange transfusion of blood and the use of an artificial kidney. He testified that bicarbonate treatment could possibly be effective to save life in severe cases and that an exchange transfusion was considered by many to be as effective as the use of an artificial kidney and by some, more effective. Record, pp. 615-619. He was of the opinion that if “the diagnosis was properly made and certain procedures were following [sic] I would think that the child could be saved.” p. 613. He was of the opinion that if the measures mentioned had been “done early and expeditiously there is every reason to believe that you will succeed in the salvaging of this child, saving this child.” p. 614. Dr. Shepherd stated that the probability of salvage of life would be far greater as the result of blood exchange if it had been resorted to six hours after ingestion rather than at 19.5 hours, p. 619.
Dr. Harry E. Rollings of Savannah, a specialist in internal medicine, testified that a salicylate level of 87.5 mg% would be a “highly lethal dose.” p. 76.
Dr. Andrew L. Ageloff, who was Base Pediatrician at Walker A. F. B., New Mexico, testified that after receiving the report of 87.5 mg% blood salicylate level that it was his opinion that “this child in order to survive, if she were able to survive, needed the benefit of an artificial kidney . . . .’’He attempted to locate one in the immediate area but none was available, p. 440. He testified that an exchange transfusion of blood was not indicated and that that treatment is not well accepted and that “its success is very, very limited.” p. 510. He further stated that it is the least satisfactory method of treating sal-icylate poisoning, and that the artificial kidney is well accepted as the most efficient method. Nor was peritoneal dialysis as practiced in 1963 effective in removing salicylate. Asked about eventualities had treatment been begun at 10:00 p. m. on September 4th, Dr. Age-loff testified that in the light of the treatment available at Roswell, New Mexico, “I believe the child probably would have died anyway” and that the odds were more against than in favor of survival, p. 513.
Dr. Robert H. Finley who initially treated the child was questioned as to the probability of survival with a salicy-late level of 87.5 mg%. He stated that he would have been unable to .save the child; that such an amount of poison would be “incompatible with life” and was recognized as a fatal level, p. 174. It was his impression that the child would have died although therapy would have gone on in the hope that “this would have been one of the cases that could be saved.” p. 211.
Dr. Bernard M. Portman of Savannah, who is a pediatrician, testified that the medical probability that the child would *1215not have been saved, had prompt measures been taken, depended on the salicy-late level at that time. Eliminating statistics and curves, he said it was impossible to say that the child could not have been saved but that there is a level beyond which it could not have been at that stage. Excluding the use of Dr. Done’s computation and with no sympto-matology Dr. Portman said he would be unable to say that the child could be saved. “I couldn’t say either way.” pp. 604-607.
Like Dr. Shepherd, Dr. Allen K. Done is a certified member of the American Board of Pediatrics. He has specialized in the diagnosis and treatment of poisoning. He is an officer of the American Association of Poison Control Centers and was full Professor of Pediatrics and Professor of Clinical Toxicology at the University of Utah. In addition, he has served as the Director of the Inter Mountain Regional Force and Poison Control Center. At the time of the second trial he had published 92 articles, 13 of which were solely on the subject of salicylate poisoning. Finally, in addition to treating cases in the University Hospital, Dr. Done has independently researched the characteristics of salicylate poisoning.
Dr. Done testified that aspirin and other salicylates, unlike many other poisons which act directly, produce their toxicity by putting into motion certain metabolic abnormalities that take time to develop. He said that it is these metabolic derangements that are brought about in a case of aspirin poisoning that cause death or serious illness, p. 525. In Dr. Done’s opinion the medical probability is that the child would not have survived even if treatment had been instituted at 10:00 p. m. on September 4th. p. 529. On the basis of his study and experience, he was of the opinion that the child would have died since the level was such which is “in most patients, particularly children, ineompati-ble with life, unless measures are taken such as the artificial kidney is used.” p. 530. In his opinion exchange transfusion is so inefficient compared with artificial kidney that anyone who had access to hemodialysis would, in his view, be foolish to resort to exchange transfusion because it would simply delay the more effective procedure, p. 569. Dr. Done thought that an exchange transfusion at 10:00 p. m. on September 4, 1963, when there was the capability of flying the child to a place where an artificial kidney was available would be negligence. p. 586. He testified that if there was a salicylate level of 87.5 mg% about noon on September 5th that the level calculated back to the time of ingestion would be 164 mg%. pp. 555-556. Asked whether at an ingestion level of 160 mg% fatalities are likely to occur, Dr. Done replied, “In our experience they all died.” p. 589. He said that even if the child were still alive at the time an artificial kidney became available an additional two hours (or even much later) would be necessary to get it in operation and that such preparation could not be made while the patient was enroute. p. 587; 3 — p. 45, Tr. 1/7/72.
At the January, 1972, hearing Dr. Done testified that since his first appearance in the case the opinion then expressed by him could then be substantiated even more strongly than in 1969. He said that it could not be substantiated that “this child would have survived had the diagnosis been made at that earlier time.” 3 — p. 10, Tr. 1/7/72. Dr. Done further testified that it was, of course, possible that Joann could have been saved but that he did not believe it was probable. 3 — pp. 48-49.
FINDINGS OF FACT
(D
The Government submitted Proposed Findings of Fact and Conclusions of Law on October 10, 1972.2 The plaintiff *1216had submitted findings in 1969 which covered both the malpractice and the causation issue. I have long debated and mulled over the solution of the difficult factual issue presented to the Court in this case.
There is no question but that we are largely dealing with conjecture, surmise and imponderables. We must rely on the view of experts. The choice of ultimate fact is not an easy one.
No one knows whether Joann Rewis could have been saved if the aspirin poisoning had been properly diagnosed. However, it is possible to determine the probability of survival given the concentration of salicylate in the blood at a known time after ingestion and given the types of treatment available.
(2)
When Dr. Shepherd was asked whether the child probably could have been saved, he replied, as already stated, “if the diagnosis was properly made and certain procedures were followed, I would think that the child could be saved.” p.'613. On cross-examination, Dr. Shepherd stated that these procedures should be done “early and expeditiously.” p. 614. He conceded that some of them would not have been useful. The most conservative treatment is the administration of bicarbonates so as to accelerate the rate of discharge of the salicylate. However, this is not very effective and, in his opinion, offered no more than a “possibility” of survival, p. 615. Peritoneal dialysis is a second option but in 1963 this was still an ineffective measure because it had not yet been combined with the administration of human albumin. (Ageloff, p. 511; Done, p. 571; Shepherd, p. 616). Under the evidence, the only procedures which might offer significant probability of survival in such a case as this were exchange transfusions and hemodialysis (artificial kidney).
(3)
The record reflects substantial disagreement among the experts as to the comparative efficacy of exchange transfusions and hemodialysis. For example, Dr. Shepherd could not say which technique is preferred if both are available, p. 617. On the other hand, Dr. Ageloff believed hemodialysis is the most efficient way to remove salicylate from the blood (p. 510) and Dr. Done stated that an “exchange transfusion is so inefficient by comparison with hemodialysis that anyone who had access to hemodi-alysis would, in my view, would [sic] be foolish to resort to exchange transfusions because it would simply delay the more effective procedure.” p. 569. This dichotomy in expert opinion is complicated by the fact that transportation to an artificial kidney and the initiating of hemodialysis would have involved several hours delay. As a result, some experts would perform an exchange transfusion in preference to or before moving a patient to an artificial kidney (Dr. Shepherd, pp. 617-618) while others feel the artificial kidney is so much more effective that no time should be wasted with transfusions. (Dr. Ageloff, p. 510; Dr. Done, p. 569).
On the basis of the expert testimony presented in this case, I find that hemo-dialysis is substantially more effective than an exchange transfusion and, therefore, more likely to have saved Joann’s life had it been available in Roswell, New Mexico.
(4)
Since 1960 Dr. Done has studied and analyzed over 500 additional eases of aspirin poisoning in children, pp. 3-9, Tr. 1/7/72. Based on his researches, he prepared charts of salicylate levels as a function of time from ingestion. Although patients reach their maximum concentration of salicylate at different times he found that the concentration thereafter drops in a manner which depends on a constant. His studies and graphs show extrapolation from a blood salicylate level, S, at a known time after ingestion, t, to obtain a value, S0, where log So = log S + 0.015t. Plaintiff’s Exhibit 1, Tr. 1/7/72. The S0 factor permits comparison of cases on the same *1217basis at the same point in time, namely at t = 0. This would not be possible if the maximum salicylate concentration were used because even if such, maximum could be measured, similar máxi-mums reached at different times represent different severities of aspirin poisoning. See p. 549. By calculating the S„ value for a particular patient one can make a fairly accurate determination of the chances of survival based upon how many other patients survived with that or a higher S0 value.
(5)
Because this technique compiles experience, one would expect the conclusion reached with it to be fairly consistent with what other expert witnesses concluded on the basis of their experience. That appears to be the case here. But, as several of the witnesses made apparent by their desire to rely on Dr. Done’s article, this technique has the advantage of providing a much less subjective estimate of the chances of surviving with whatever treatment is available than would an opinion based on random experience. Using this research and the chart, Dr. Done concluded that the medical probability was that Joann could not have survived even if the aspirin poisoning had been diagnosed by Dr. Finley. 3 — p. 10. This would be the case regardless of whether the blood salicylate level was measured 18% or 22 hours after ingestion, pp. 529 and 3 — p. 31. It would be the case even if the best possible treatment had been sought immediately. 3 — pp. 36, 37, 43, 49, Tr. 1/7/72.
(6)
The time that elapses between ingestion and measurement of the blood sali-cylate level is critical as it determines the severity of the poisoning. The blood level was measured when Dr. Ageloff saw the child between noon and 1:00 p. m. on September 5, 1963. pp. 427 and 462. The testimony of the parents indicates that Sergeant Rewis discovered aspirin on the floor at some time between 3:00 p. m. (p. 37) and 3:30 p. m. (p. 234) on the preceding day. Mrs. Rewis testified that the house was in order shortly after 2:30 p. m. p. 37. If one assumes that she cheeked the kitchen cabinet where the aspirin was kept or that she was sufficiently alert to observe aspirin on the floor, then the blood test must have been conducted between 21 and 22 hours after ingestion.
(7)
On the basis of the evidence in the record and reviewed above, I find that at the time Dr. Finley first examined Joann Rewis, it could not be said to a reasonable degree of medical certainty that she could be saved even by the best possible combination of treatment. In making this finding, I emphasize that while there is some chance of survival in almost every situation the probability of survival under the circumstances of this case was much less than the probability that the child would die.
(8)
Although it may not initially appear so, this finding is consistent with the relatively mild symptoms exhibited when Dr. Finley examined Joann. As several of the expert witnesses explained, aspirin does not destroy the body directly. Instead, it creates a chemical imbalance which makes it difficult to absorb sufficient oxygen. As a result, the maximum concentration of aspirin in the blood is reached long before the maximum body reaction. The symptoms develop more slowly and, therefore, do not fully reflect the severity of the poisoning until some time after the poison is absorbed, p. 525. Joann’s condition at 10:00 p. m. on September 4th appeared relatively mild because there had not yet been time for the complete symptomatology to develop though she had already absorbed so much poison that it was improbable she could survive.
CONCLUSIONS OF LAW
(D
The controlling substantive law is that of New Mexico where the malpractice occurred. 28 U.S.C. § 2674. New Mexico follows the general rule that the *1218plaintiff must establish that the departure from recognized standards of medical practice was the proximate cause of the injuries. Schrib v. Seidenberg, 80 N.M. 573, 458 P.2d 825 (1969). This burden was formulated by the Court of Appeals for the Fifth Circuit as a requirement that the plaintiff prove to a reasonable degree of medical certainty that this child’s life could have been saved if Dr. Finley had correctly diagnosed her condition on September 4, 1963. Rewis v. United States, 369 F.2d 595, 599 (5th Cir., 1966). To show that the patient could be saved, the plaintiff need not exclude every possible hypothesis that the child would have died but need only establish by a fair preponderance of the evidence the reasonable medical probability that it would not have died. Rewis, 369 F.2d 603.
The Supreme Court of New Mexico has held that in malpractice cases it is not sufficient to show that the negligence charged might reasonably have caused the injury, “if the circumstances shown indicate an equal probability that it was due to some other cause.” See Buchanan v. Downing, 74 N.M. 423, 394 P.2d 269 (1964). To similar effect is the rule which is applied in New Mexico (it is the general rule) that where there are two possible causes, for only one of which a defendant is responsible, the plaintiff must show that the defendant’s act or omission is the more probable. The application of the rule does not place upon the person injured the burden of excluding every possible cause of the accident for which the defendant would not be liable. The burden rests upon the plaintiff “to introduce evidence to remove the cause from the realm of speculation and to give it a solid foundation upon facts.” Sanders v. Atchison, Topeka & Santa Fe Railway Company, 65 N.M. 286, 336 P.2d 324 (1959).
Plaintiffs have not carried the burden imposed on them. This Court finds that six hours after ingestion it is more probable that Joann would have died than that she could have been saved. I have concluded that failure to diagnose her condition on September 4, 1963, was not the proximate cause of her death. Therefore, there can be no recovery against the United States for the acts or omissions of Dr. Finley in diagnosing the symptoms. The cause of Joann’s death was not faulty diagnosis or delay in proper treatment. It was the lethal dose of aspirin the child had consumed.
Judgment is entered accordingly.
This May 22, 1973.
/s/ Alexander A. Lawrence
CHIEF JUDGE, UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
. Rewis v. United States, 5 Cir. 1971, 445 F.2d 1303. The first appeal is reported at 369 F.2d 595 (5 Cir. 1966).
. The district judge’s Findings of Fact and Conclusions of Law are reproduced as Appendix A to this dissenting opinion.
. Eleven years after the child’s death in September, 1963, and following three trials in the district court and appeals to this court.
. The Court said (445 F.2d 1306) : “In view of the above, we reverse the district court’s holding that Dr. Finley was not negligent in examining Joann Kewis and that there was . no malpractice involved in his examination, diagnosis or making of additional tests. Because the district court found no negligence, there is absent any finding on the issue of causation and other relevant issues. The case is remanded to the court below for further findings upon all relevant issues raised by the pleadings and the evidence. Since the case was tried to the court without a jury, sueli findings may be made upon the record of evidence now before the court, or the district court in its discretion may reopen the case for the development of further evidence.”
. Counsel for the United States had earlier requested that decision in the case be delayed until a transcript of the January 7, 1972, hearing was available. This was filed on July 13tli last.