Standefer v. U.S., 73--1001

• Decision Date: 14 April 1975
• Docket Number: No. 73--1001,73--1001
• Citation: 511 F.2d 101
• Parties: David Nelson STANDEFER, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 101

511 F.2d 101

David Nelson STANDEFER, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 73--1001.

United States Court of Appeals Fifth Circuit.

April 14, 1975.

Rehearing Denied May 29, 1975.

Anthony J. P. Farris, U.S. Atty., William L. Bowers, Jr., Asst. U.S. Atty., Houston, Tex., for defendant-appellant.

Joseph D. Jamail, John Gano, Gus Kolius, Houston, Tex., for plaintiff-appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before TUTTLE, DYER and MORGAN, Circuit Judges.

DYER, Circuit Judge:

The United States appeals from an adverse judgment rendered under the Federal Tort Claims Act, 28 U.S.C.A. § 2671 et seq., based upon a Veterans Administration Hospital's negligent treatment of a patient, David Standefer, who was rendered quadriplegic. The Government raises a number of issues concerning both the imposition of liability and the award of damages. Although we determine that the judgment was proper as to liability, the inclusion of an inflationary factor in the computation of damages for future medical expenses and loss of earnings necessitates a partial reversal and a remand for recomputation of that portion of the award.

During the early morning of January 27, 1969, Standefer was injured in an automobile accident near Brenham, Texas, and was admitted to St. Jude's Hospital in Brenham. The attending physicians concluded that Standefer had a neurological problem beyond their expertise, and about noon the next day arranged to have the patient transferred to the VA Hospital in Houston. The senior neurological resident on duty at the VA facility, Dr. Patrick, was advised that Standefer was expected to arrive sometime during the afternoon, so the physician left orders with the admissions office that Standefer was to be brought to neurosurgery upon his arrival. Standefer arrived at the Houston hospital at approximately 4:30 p.m., but he was not sent to Dr. Patrick for examination until sometime between 7:00 and 7:30 p.m.

The physical examination conducted by Dr. Patrick indicated a neurological deficit, evidenced by a flaccid condition of the left leg, substantial weakness in the left arm, and some weakness on the right side of the body. There is some dispute whether Standefer was undergoing progressive paralysis from the time of the accident, but it appears that even during his wait in the admissions area of the VA hospital he was able to light and smoke cigarettes without assistance, drink water and carry on normal body functions. After the examination, Dr. Patrick was optimistic and indicated, according to one member of Standefer's family, that the patient would be up and around in a few weeks.

Although the attending physicians at St. Jude's in Brenham had suspected a subdural hematoma, a type of head injury, Dr. Patrick's examination led him to conclude that the injury was in the cervical spine. Upon being informed that x-rays had been taken at St. Jude's and that the films were in the family's possession, Dr. Patrick asked that the films be brought to him. The trip to obtain the films took considerably longer than Dr. Patrick anticipated, and he was further disappointed to discover that the x-rays contained no views of the cervical spine.

At approximately 10:30 p.m., Standefer was taken to the x-ray department. Because Standefer is a large man, standing over six feet tall and weighing over 200 pounds, the x-ray technician, Reeves, asked Standefer's son-in-law, Glasgow, to assist in the x-ray procedures. The first four films were taken with no difficulty, except that the x-rays were inadequate to reveal the exact location of the injury. It is undisputed that while the first four x-rays were being taken, Standefer was kept lying on his back, and that his head and neck remained virtually immobile. During the last two films, one arm was positioned above his body to obtain a view known as a 'swimmer's lateral.' According to Reeves and Dr. Patrick, Standefer was again so positioned for the fifth film, but both Standefer and Glasgow maintained that for the last film, Reeves pulled Standefer's right arm across his body, possibly in an attempt, according to expert testimony, to obtain an 'oblique' view. Standefer felt a jerking motion 'as though he was going to flip me over,' and cried out that he was unable to move. Regardless of which version of the events actually occurred, the outcome was the same: Standefer left the x-ray room a permanent quadriplegic.

In November 1970, Standefer filed an administrative claim with the Veterans Administration. The incident giving rise to the claim was described by Standefer as follows: 'Claimant sent to have x-rays taken. Veterans Administration Hospital employee twisted his neck and/or body causing onset of quadriplegia.' After six months had passed with no final disposition of the claim, ¹ Standefer filed this action alleging essentially the same basis for the lawsuit. In August 1972, approximately three weeks before trial, the complaint was amended to further charge negligence in admitting the patient to the VA hospital, in delaying the beginning of treatment, and for inadequately staffing the x-ray department. The district court, sitting without a jury, ² accepted these contentions and determined that '(a)ll such acts of negligence, independently and in combination, on the part of the defendant, its agents and employees, proximately caused the paralysis suffered by the plaintiff.' Based upon mortality tables showing that at the time of trial Standefer had a life expectancy of 20.0 years, the court awarded damages for: (1) loss of earnings, including an inflationary factor of 5.5%, in the amount of $130,439.09; (2) future medical expenses, based on a figure of $120 per day and including an inflationary factor of 4.5%, $929,238.20; (3) past medical expenses, $47,597.90; and (4) pain and suffering, $400,000.

The Government argues that no issue with respect to liability was properly before the court other than mistreatment vel non in the x-ray room, since Standefer's administrative claim before the Veterans Administration referred only to the occurrences in the x-ray department. Even if we were to accept this position, the judgment of the lower court could still be affirmed on the basis that liability was explicitly imposed on the VA for negligent acts 'independently and in combination.' In fact, by isolating the original basis of the claim, we need not address other issues such as negligent delay in admission and treatment, for we must affirm the decision of the court below if there is any theory on which liability can properly be predicated. As the Ninth Circuit held when presented with a similar situation: 'In view of the fact that the judgment is based on two grounds . . . the judgment must be affirmed if supportable on either ground.' Hayden v. Chalfant Press, Inc., 9 Cir. 1960, 281 F.2d 543, 547. By limiting out examination of the judgment to the original charge of negligence--which is essentially unchallenged in the appeal by the United States--it is unnecessary for us to consider the alternative theories of liability which the Government attacks. ³ Thus we now focus our inquiry on whether liability can be premised solely on the allegedly negligent treatment in the x-ray room.

In examining the legal basis of the judgment below we must determine whether a private individual would be liable under state law, in this case the law of Texas. ⁴ The requisites for establishing medical negligence were enunciated by the Supreme Court of Texas as follows:

It is definitely settled with us that a patient has no cause of action against his doctor for malpractice, either in diagnosis or recognized treatment, unless he proves by a doctor of the same school of practice as the defendant: (1) that the diagnosis or treatment complained of was such as to constitute negligence and (2) that it was a proximate cause of the patient's injuries.

Bowles v. Bourdon, 1949, 148 Tex. 1, 219 S.W.2d 779, 782. While this action is not against Dr. Patrick personally, the underlying theory of the lawsuit is that once the neurosurgeon was aware of the probability of injury to the cervical spine, he was under a duty either to warn the x-ray technician of the need for...