Keller v. U.S.

• Decision Date: 29 June 1995
• Docket Number: No. 94-2633,94-2633
• Citation: 58 F.3d 1194
• Parties: David KELLER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1194

58 F.3d 1194

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

No. 94-2633.

United States Court of Appeals Seventh Circuit.

Argued Feb. 28, 1995.

Decided June 29, 1995.

Aram A. Hartunian, Hartunian & Associates, Karen A. Keefer (argued), Scott Skaletsky, Skaletsky & Mannis, Chicago, IL, for plaintiff-appellant David Keller.

Linda A. Wawzenski, Asst. U.S. Atty. (argued), Thomas P. Walsh, Asst. U.S. Atty., Office of U.S. Atty., Civ. Div., Chicago, IL, for defendant-appellee U.S.

Before BAUER, COFFEY and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

David Keller, who suffered a crippling disability as the result of an operation at a Veteran's Administration Hospital in New Mexico, appeals the denial of his medical malpractice claim against the United States government under the Federal Tort Claims Act, 28 U.S.C. Secs. 2671 et seq. For the following reasons, we affirm the judgment of the district court.

I

On April 1, 1988, at the Albuquerque Veterans Administration Medical Center in New Mexico, Dr. Stuart Pett ¹ repaired a chronic pseudoaneurism (hereinafter "aneurism") in Mr. Keller's descending thoracic aorta. Following the surgery, Mr. Keller displayed paraparesis, which is a neurological impairment consisting of diminished sensation and muscle control. Plaintiff then brought this negligence suit, claiming that the surgeon's failure to assure adequate blood flow before excising the aneurism caused the paraparesis.

Repair of an aneurism requires clamping the aorta above and below the vessel for a period of time. According to the medical testimony at trial, there are at least three medically accepted clamping methods: (1) "clamp and sew," which involves simply clamping off the aneurism and working as quickly as possible, (2) use of a passive or "Gott" shunt, which utilizes a tube to bypass the site of the operation, and (3) use of a shunt with a pump attached in order to increase the flow of blood. Spinal injury is a recognized potential side-effect of repairing aortic aneurisms because the operation requires interfering with the blood flow to the lower body, including the lower spine. According to Dr. Lawrence Michaelis, ² the government's expert witness, there is a 3-5% chance that spinal cord injury will result from the operation regardless of the technique used. Dr. Pett chose to use the shunt in conjunction with a Biomedicus centrifugal pump, which has a variable speed setting. ³ However, the pump's output is ultimately limited both by the flow of blood available from the atrium and by the need to supply blood to the upper and lower body. Dr. Pett inserted a canula into the left atrium of Mr. Keller's heart to carry blood to the pump. The pump then would send that blood through another line to the lower descending thoracic aorta. Dr. Pett clamped the aorta above and below the aneurism. The aneurism was repaired, a graft was sewn in, and, after two intercostal arteries were sewn off, the patient was closed up. The aorta was clamped for fifty minutes, and the Biomedicus supplemented circulation for all but five minutes of that time.

Blood flow is measured by a device attached to the pump. It can also be indirectly measured by blood pressure, which, if the resistance created by the walls of the blood vessels remains constant, generally increases as blood flow does. However, if the resistance drops, blood pressure may also drop, even if the blood flow remains the same. During Mr. Keller's operation, various blood pressures were measured by using pressure monitoring lines in Mr. Keller's right arm, his left femoral artery, his neck and the left atrium of his heart.

The medical record contains little evidence concerning the blood flow downstream to Mr. Keller's lower spine during the operation. ⁴ Since the pump record documenting blood flow was not produced, the parties relied upon blood pressure readings in order to show whether the pump was generating enough blood flow to support the operation. Mr. Keller points to the consistently low blood pressure for more than half of the operation. ⁵ However, Dr. Michaelis, the government's expert, pointed out that the upstream pressures pumping blood to the upper body were fine. He testified that, if the pump was not drawing blood out of the left atrium, then the pressure in the upper part of the body would have remained extremely high. He also testified that the constant, rather than pulsatile, flow generated by the pump often causes the blood pressure to decrease even if the blood flow did not change.

After a bench trial, the district court concluded that there was no credible testimony to support a conclusion that there was any breach of the standard of care during the surgery. Before us, Mr. Keller challenges that ruling. Mr. Keller contends that, due to the surgeon's failure to monitor and to use the Biomedicus pump properly, the spinal cord was deprived of an adequate blood supply and paraparesis resulted. More specifically, Mr. Keller submits that the record demonstrates that the blood flow to the lower body was not sufficient and that Dr. Pett must have been negligent because he (1) never learned of the inadequate blood flow, (2) knew about it and cut into the aorta anyway, or (3) failed to start the pump before starting the excision. Mr. Keller asks this court to reverse the district court judgment by holding that the record does support a determination that Dr. Pett was negligent.

II

Following a bench trial, we review the district court's findings concerning questions of fact under a clearly erroneous standard. Thornton v. Brown, 47 F.3d 194, 196 (7th Cir.1995). The substantive law of the state where the act or omission occurred governs actions brought under the Federal Tort Claims Act. 28 U.S.C. Sec. 1346(b); Midwest Knitting Mills Inc. v. United States, 950 F.2d 1295, 1297 (7th Cir.1991); see United States v. Muniz, 374 U.S. 150, 153, 83 S.Ct. 1850, 1853, 10 L.Ed.2d 805 (1963) ("Whether a claim could be made out would depend upon whether a private individual under like circumstances would be liable under state law...."). We therefore apply, as did the district court, the substantive law of New Mexico. The district court's determination of the content of state law is reviewed de novo. Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991); Midwest Knitting Mills, 950 F.2d at 1298.

The New Mexico Supreme Court has formulated the standard of care for physicians; it is a duty to use "the knowledge, skill and care ordinarily used by reasonably well-qualified doctors of the same field of medicine practicing under similar circumstances...." Pharmaseal Labs., Inc. v. Goffe, 90 N.M. 753, 757-58, 568 P.2d 589, 593-94 (1977). Medical malpractice must be shown by expert testimony on the standard of care, unless the question may be determined by the ordinary knowledge of a layman. Id., 90 N.M. 753, 568 P.2d at 594. Although local differences in care are considered as a factor, one which did not play a major role in this case, doctors from other localities may testify as to the standard of care. Id. To establish the prima facie case for medical malpractice under the law of New Mexico,

a plaintiff has the burden of showing that (1) the defendant owed the plaintiff a duty recognized by law; (2) the defendant breached the duty by departing from the proper standard of medical practice recognized in the community; and (3) the acts or omissions complained of proximately caused the plaintiff's injuries.

Blauwkamp v. University of N.M. Hosp., 114 N.M. 228, 836 P.2d 1249, 1252 (N.M.Ct.App.1992) (citations omitted). With these standards in mind, we now turn to the specific contentions of Mr. Keller.

III

Focusing on the issue of blood flow, Mr. Keller first raises several evidentiary issues. He submits that the government's failure to produce a copy of the pump record entitles him to a negative inference as to whether the pump provided sufficient blood flow. The district court found that the records "cannot be located even though the hospital should have kept them." R. 25 at 5. Notably, the court made no finding of bad faith. Absent a finding that the government willfully destroyed evidence in bad faith, the district court clearly acted within its discretion in declining to infer that the evidence would have been unfavorable to that party. ⁶ We note from the record that there is evidence the university did not keep the pump records, and that there is no evidence that the records were actually destroyed. ⁷ We therefore conclude that the record adequately supports the determination of the district court.

Mr. Keller also claims, in conclusory fashion with no citation or discussion of federal authority, that Dr. Pett made judicial admissions that bind the United States in this litigation. ⁸ We need not explore this matter in any depth for two reasons. First, as we have noted many times, it is not the responsibility of this court to make arguments for the litigants. See Beard v. Whitley County REMC, 840 F.2d 405, 408-09 (7th Cir.1988). In any event, the "admissions" at issue here are not admissions at all. In arguing that the district court erred, Mr. Keller specifically alleges that Dr. Pett admitted (1) that a pressure of 50 is necessary, (2) that, in order to discover if the pump was functioning in time to halt the operation, the physician must check the pump before cutting into the aorta, and (3) that the safety point for interrupting blood flow is 30 minutes, and even an interruption of 20 minutes can be hazardous. Our review of the record indicates that Dr. Pett's statements were misstated or misconstrued. First, the surgeon indicated that a pressure of 50 was a goal, not an absolute requirement. Second, on cross-examination, Dr. Pett agreed that he could check the pump's function before excising the aneurism, but he did not "admit" that he had to check it. And third, Dr....