Ayers v. U.S., 83-1678
| Decision Date | 17 January 1985 |
| Docket Number | No. 83-1678,83-1678 |
| Citation | 750 F.2d 449 |
| Parties | Harold "D" AYERS, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James A. Rolfe, U.S. Atty., Charles D. Cabaniss, Asst. U.S. Atty., Dallas, Tex., defendant-appellant.
Gibbins, Burrow & Bratton, Barham Bratton, Bob Gibbins, Yii-Chwen Pan, Austin, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before CLARK, Chief Judge, JOHNSON, and WILLIAMS, Circuit Judges.
The United States appeals from an adverse judgment finding the Government liable under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671-2680, for injuries Harold "D" Ayers suffered while he was being treated at the Dallas Veterans Administration Hospital in July of 1976. The Government argues that the evidence adduced at trial failed to establish the standard of care that applies to a licensed physician who is a four month resident in anesthesiology. The Government also argues that expert testimony failed to establish a breach of duty on the part of the resident. Finally, the Government argues that the negligence of the supervising anesthesiologist cannot be imputed to the United States because the supervising doctor was an independent contractor. Accordingly, the Government asserts, the judgment of the district court must be reversed because the evidence does not establish the liability of the United States. This Court finds that the record supports the district court's findings. The judgment of the district court is affirmed.
Harold "D" Ayers (Ayers) entered the Marine Corps following his graduation from high school in 1956. While in the service, Ayers was involved in a car accident in 1967 that resulted in severe injuries to both of his legs. In 1972, Ayers was permanently retired from the military because he could not run the three miles necessary to pass a required physical examination. With the help of veterans' benefits, Ayers trained to be a barber. He pursued that career until it became apparent that his past leg injury prevented him from standing long hours. Again with the help of veterans' benefits, Ayers began training for a new career. He started college in order to obtain a bachelor's degree so that he could enroll in a seminary and pursue the ministry.
Ayers' problems with his legs continued. As a result, he entered the Veterans Administration Hospital (the V.A. Hospital) in Dallas, Texas, in July of 1976. On July 12, Ayers underwent an initial operation to drain the infection from one of his ankles. He was given a spinal anesthetic for that operation and recovered from the anesthesia without complications. The first operation was not completely successful, however. On July 14, 1976, he underwent an additional operation. It is the spinal anesthetic that Ayers received for this July 14, 1976, operation that underlies the allegations of medical malpractice in the instant case.
Dr. Chen, a licensed physician and a resident in his fourth month in the anesthesiology program at the V.A. Hospital, was assigned to administer the anesthesic for Ayers on July 14, 1976. Dr. Chen's supervising physician was Dr. Clarke, who was a board certified anesthesiologist provided to the hospital according to the terms of a contract between the hospital and the University of Texas (Southwestern) Medical School. When Ayers was taken into surgery on July 14, 1976, Dr. Chen attempted to administer the spinal anesthestic, but his attempt to introduce the needle into the desired location was unsuccessful. Dr. Clarke then obtained a successful spinal tap and administered twelve milligrams of tetracaine and some amount of epinephrine. Dr. Chen testified that at that time neither he nor Dr. Clarke detected the onset of anesthesia. Believing that the anesthestic had not been introduced into the proper location, and after waiting a disputed length of time, Dr. Clarke administered a second dosage of tetracaine and a "drop" of epinephrine.
Immediately after this second injection of anesthetic, Ayers began experiencing difficulty breathing, and within minutes he ceased breathing. Normal breathing was restored within about fifteen minutes. Once breathing was restored, the surgery was performed. After the surgery, Ayers began suffering from muscle weakness below the waist, impotence, and incontinence. Ayers' problems continue to the date of trial; he is unable to walk more than short distances with a walker and he is confined to a wheelchair.
Ayers sued the United States under the Federal Tort Claims Act seeking damages for the injuries he suffered, alleging that Dr. Chen and Dr. Clarke negligently managed the administration of anesthetic on July 14, 1976. The case was tried to the court sitting without a jury and the district court entered judgment for Ayers. In its Findings of Fact and Conclusions of Law, the district court made several findings that are being challenged in this appeal. In pertinent part, the district court found:
(8) A physician of ordinary prudence and skill, practicing in the Dallas community or a similar community, would not have included Epinephrine in the second injection.
(9) [Ayers'] injury resulted from the inclusion of Epinephrine in the second injection of anesthetic administered on July 14, 1976.
(10) An anesthesiologist of ordinary prudence and skill should have anticipated the danger of including Epinephrine in the second injection.
(11) The management of the anesthesia on July 14, 1976 was negligent in that Epinephrine was given in both injections.
(12) Dr. Chen and Dr. Clarke were each responsible for the anesthesia management on July 14, 1976 in that each doctor was assigned to [Ayers'] care and each was present during the procedure which caused injury. Each doctor had a duty to insure that Epinephrine was excluded from the second injection. Dr. Clarke breached this duty by including Epinephrine. Dr. Chen breached this duty by failing to call to Dr. Clarke's attention the danger of including Epinephrine.
Record Vol. 1 at 228. In its Conclusions of Law, the district court determined that the United States was not liable for the negligent acts of Dr. Clarke because Dr. Clarke was an employee of the University of Texas (Southwestern) Medical School, a private contractor. Id. at 230.
On appeal, the Government argues that under Texas law, which governs the instant Federal Tort Claims Act suit 1, the standard of care for a physician and the physician's breach of that standard must be demonstrated by expert testimony. The Government argues that the expert testimony presented to the court failed to establish the standard of care applicable to a resident in his fourth month of anesthesiology training. Moreover, the Government argues that the expert testimony at trial did not establish that Dr. Chen breached the appropriate standard of care. As a result, the Government argues, the evidence is insufficient to demonstrate that Dr. Chen was negligent on July 14, 1976. The Government urges that the district court's conclusion that Dr. Clarke is an independent contractor is correct. Accordingly, the Government argues, Ayers has failed to show the United States is liable for Ayers' injuries and the judgment against the United States must be reversed.
Ayers argues that the evidence was sufficient to support the district court's factual determinations. Furthermore, Ayers argues that the district court's conclusion of law that Dr. Clarke was an independent contractor is erroneous, so that even if the evidence failed to prove Dr. Chen's negligence, the United States is still liable for the negligence of Dr. Clarke. Finally, Ayers contends that the district court erred in allowing the Government a set-off against the damage award for veterans' benefits paid in the past to Ayers, and veterans' benefits to be paid to Ayers in the future. We first address the sufficiency of the evidence to support the district court's factual findings.
Review of factual determinations by the district court is limited by the "clearly erroneous" standard of Fed.R.Civ.P. 52(a). This limited review recognizes the unique opportunity of the district court to make credibility choices and resolve conflicts in the evidence. "[U]nless an appellate court is left with the 'definite and firm conviction that a mistake has been committed,' it must accept the trial court's findings." Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 855, 102 S.Ct. 2182, 2189, 72 L.Ed.2d 606 (1982) (citation omitted). 2
The Government challenges two sets of factual findings. First, the Government challenges those findings of the district court that connect epinephrine to Ayers' injuries. The district court found that epinephrine was negligently included in the second anesthetic injection and that it was the proximate cause of Ayers' injuries. Second, the Government challenges the findings that Dr. Chen, the resident in anesthesiology, was negligent in his actions. This Court addresses the epinephrine findings first.
The Government challenges the district court's findings that the epinephrine included in the second injection was the proximate cause of Ayers' injuries and that it was negligent to administer the second injection. Under Texas law
[A] patient has no cause of action against his doctor for malpractice, ... 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, 148 Tex. 1, 219 S.W.2d 779, 782 (1949).
Dr. Gray and Dr. Moore, two of Ayers' expert witnesses, testified concerning the use of epinephrine in the...
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