Augustine v. U.S., s. 85-1792

• Decision Date: 06 February 1987
• Docket Number: 85-2791,Nos. 85-1792,s. 85-1792
• Parties: Pius AUGUSTINE and Dorothy Augustine, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 991

810 F.2d 991

Pius AUGUSTINE and Dorothy Augustine, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

Nos. 85-1792, 85-2791.

United States Court of Appeals, Tenth Circuit.

Feb. 6, 1987.

Rehearing Denied March 26, 1987.

Doris Besikof, Denver, Colo., for plaintiffs-appellants Pius Augustine and Dorothy Augustine.

Nancy E. Rice, Asst. U.S. Atty., and Robert N. Miller, U.S. Atty., Denver, Colo., with her on the brief, for defendant-appellee U.S.

Before McKAY and TACHA, Circuit Judges, and WESLEY E. BROWN, Senior District Judge. ^*

WESLEY E. BROWN, Senior District Judge.

Appellants Pius Augustine and his wife, Dorothy, brought this action under the Federal Tort Claims Act for damages arising from alleged negligent medical treatment which Mr. Augustine received at the Medical Center operated by the Veterans Administration in Denver, Colorado. The action was based upon claims of alleged malpractice, lack of informed consent, and negligent misrepresentation by government employees at the Medical Center.

In September, 1981, plaintiff Pius Augustine underwent a non-surgical procedure in which an inflated balloon was used to dilate his esophagus in order to treat a swallowing problem which Veteran Administration doctors had diagnosed as achalasia, a muscle relaxation defect of the esophagus. One of the risks of such procedure is perforation of the esophagus, which requires major surgical repair. During the performance of the procedure in this instance, plaintiff's esophagus was punctured, and there was an approximate eight hour delay in diagnosing the problem and in performing the necessary surgery.

The case was tried to the court which found that the United States was negligent, in that medical personnel had been slow to discover the perforation and to effect the surgical repair. The evidence was clear, and the parties agreed, that there was no negligence connected with the original balloon dilation, or the subsequent surgical repair itself. R. Vol. 10, p. 336. On the basis of the finding of liability, the trial court entered judgment in favor of plaintiff for $8,000 as damages for pain and suffering only during the period of delay in discovering and repairing the perforation. No other damages were awarded since the court found that Dorothy Augustine had sustained no loss attributable to defendant's negligence. The Court also held that plaintiff had failed to prove lack of informed consent, or any negligent misrepresentation upon the part of defendant's medical personnel.

Plaintiff appeals the damage award as being insufficient, and contends that there was error of law in the findings concerning lack of informed consent, negligent misrepresentation, and Mrs. Augustine's claim for loss of consortium. Plaintiffs also request review of the trial court's ruling on pretrial motions relating to sanctions and the denial of the costs of depositions. ¹

After fully reviewing the record in this action, we are satisfied that the evidence fully supports the findings of the trial court on the liability issues as well as the finding upon damages. In brief, the evidence established that prior to the morning of September 2, 1980, plaintiff underwent tests at the Veterans Administration Hospital which resulted in the diagnosis of achalasia which involves a narrowing of the lower esophageal muscles to such an extent that food is unable to pass into the stomach. There are three or four methods of treatment for this condition, the two main ones being an attempt to dilate the stricture in a non-surgical manner by expanding a balloon which has been lowered into the esophagus, or by surgical repair of the condition through a procedure known as Heller's Myotomy. ²

Treatment by balloon dilation is a medically recognized and reasonable means of treating achalasia. The major risk in such a procedure is perforation of the esophagus, with that risk rated generally from one to five percent. Another risk of this procedure is aspiration of stomach contents into the lungs. This rarely occurs.

Dr. Steven Ayres was the physician who performed the balloon dilation. He graduated from medical school in 1977, and then began advanced training at the University of Colorado Health Sciences Center which served four hospitals, including the Denver Veterans Administration facility. In September, 1980, he had completed a one-year internship, as well as an additional two years in internal medicine, and was "board qualified" in internal medicine, although he did not receive his certification until January, 1981. When plaintiff was referred to him at the VA hospital, Dr. Ayres was engaged in a two year fellowship in Gastroenterology, which he completed in 1983.

After diagnosing plaintiff's problem as achalasia, Dr. John Goff, Consultant in Gastroenterology and Dr. Ayres explained the options available for treatment, and plaintiff chose to undergo a balloon dilation. Although plaintiff testified that he did not understand the alternatives, and was not aware of the risks and possible consequences of the procedure, the trial court found, and the evidence supports the finding, that plaintiff was told that the risk of pain was 100%; the risk of rupture was "1 in 100", and that the risk of aspiration was "rare". Dr. Ayres made a drawing of the procedure on the back of the consent form and the risks of the procedure were clearly noted on the face of the consent form which plaintiff signed. Plaintiff was told that in the event there was a rupture, an operation would be necessary to repair the damage.

The balloon dilation was performed at approximately 9:30 a.m. on September 2nd, and plaintiff returned to his room by 10:30 a.m. Dr. Ayres wrote orders that plaintiff's blood pressure and pulse were to be taken each thirty minutes, four times; then each hour for four times; then each four hours, for four times. Intravenous fluid was to be maintained, with nothing to be taken by mouth until supper time. Dr. Ayres also noted by way of "suggestion" that a chest x-ray should be taken only if vital signs changed, or chest pain increased.

Plaintiff's vital signs were taken at 10:30, 11, 11:30 and 12:00, and then hourly thereafter. At 12:30, plaintiff complained of chest pain, and Dr. Buckley, the medical intern on duty ordered a codeine injection which eased the pain. ³ Dr. Buckley was in and out of plaintiff's medical ward during the afternoon, and heard no further complaint concerning plaintiff's condition. A note on the chart reflected that plaintiff again complained of pain at 2:00 p.m.

At 5:30 in the evening Dr. Ayres came by and found plaintiff in pain. At that time his temperature was 99.9?. On checking the chart, Dr. Ayres noted that plaintiff's blood pressure had fallen to 84/60 at 3:00 that afternoon, but at 5:30, plaintiff's blood pressure and heart rate were normal. On physical examination he found no crepitus--a sensation found upon pressing the skin if air is present, and no chest sounds indicating pneumonia or aspiration. Dr. Ayres was puzzled and ordered a chest x-ray and white blood cell count. The x-ray disclosed an infiltration in the left lower lobe, not previously present in old x-rays, and an elevated white blood cell count. The x-ray did not show the presence of any mediastinal or subcutaneous air. At this time, Dr. Ayres assessed the situation as a possible aspiration pneumonia, with no evidence of esophageal perforation, although this possibility could not be ruled out. He then ordered a "barium swallow", which was performed about 9:00 p.m., after a radiologist had been called from home. At that time, plaintiff's temperature had risen to 100.3?. The barium swallow x-ray revealed an esophageal rupture, thoracic surgeons were called in, and surgery to repair the perforation began just before midnight on September 2nd.

The presence of a rupture in the esophagus is not immediately apparent following dilation procedures. Symptoms usually appear within 24 hours. Vital signs must be...