Berg v. U.S.

• Decision Date: 05 December 1986
• Docket Number: No. 85-1969,85-1969
• Citation: 806 F.2d 978
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: , Medicare&Medicaid Gu 36,004 Philip E. BERG, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Third Party Plaintiff-Appellant, Board of Regents, University of Colorado Medical Center and Dr. Robert Lattes, Third Party Defendants-Appellees.

Page 978

806 F.2d 978

55 USLW 2333, Medicare&Medicaid Gu 36,004

Philip E. BERG, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Third Party Plaintiff-Appellant,

Board of Regents, University of Colorado Medical Center and

Dr. Robert Lattes, Third Party Defendants-Appellees.

No. 85-1969.

United States Court of Appeals, Tenth Circuit.

Dec. 5, 1986.

Nancy E. Rice, Asst. U.S. Atty. (Robert N. Miller, U.S. Atty. and Janis E. Chapman, Asst. U.S. Atty., with her on the briefs), Denver, Colo., for defendant-third party plaintiff.

Bennett S. Aisenberg, of Denver, Colo., for plaintiff-appellee.

Michael S. Porter (Robert W. Hansen, with him on the brief), of Hansen, Howe, Holmes and Porter, P.C., Denver, Colo., for third party defendants-appellees.

Before HOLLOWAY, Chief Judge, and SETH and TACHA, Circuit Judges.

TACHA, Circuit Judge.

The United States appeals from a decision of the United States District Court for the District of Colorado awarding $258,267 in damages to the plaintiff in this medical malpractice suit. The government claims that the court erred in finding that it was liable for the injuries suffered by the plaintiff, in granting summary judgment for the third-party defendants, and in holding that the collateral source doctrine applies to Medicare payments. We affirm the decision of the district court.

Phillip E. Berg, a 73-year-old retired colonel in the United States Army, was admitted to the Fitzsimmons Army Medical Center (hospital) on September 1, 1981, after complaining of dizziness. Neurosurgeons at the hospital diagnosed his condition as a brain tumor and ordered that a cerebral angiogram be performed to determine the nature of the tumor. An angiogram attempted at the hospital the next day was unsuccessful and resulted in a stroke that caused the blindness from which Berg now suffers.

A cerebral angiogram is performed to obtain pictures of the blood vessels within the brain. A radiologist begins by inserting a catheter into the femoral artery in the groin. The catheter is then guided by the radiologist through a series of vessels until it reaches the vertebral artery. At that point, x-ray contrast material (a type of dye) is injected through the catheter into one of the vessels supplying blood to the brain. Rapid sequence x-rays are then taken of the vessels in the brain. These pictures indicate whether there are any abnormalities affecting the blood vessels in the brain. This procedure has a two to five percent risk of stroke because the manipulation of the catheter sometimes results in a blood clot which cuts off circulation in the brain.

A cerebral angiogram requires precisely synchronized work by the radiologist and several angiographic technologists. The radiologist controls the movement of the catheter and informs the technologists when to inject the contrast material and when to take the x-rays. The technologists operate several pieces of equipment that inject the contrast material, take the x-rays and coordinate the timing of the injections and the photography. The radiologist decides when the procedure should be attempted. The radiologist, however, is not generally familiar with the highly sophisticated equipment operated by the technologists.

Dr. Robert Lattes was the radiologist who performed the cerebral angiogram on Berg. Dr. Lattes was a faculty member of the University of Colorado Medical Center, which had an agreement with the hospital to provide radiologists for angiographic procedures. The hospital provided the equipment and employed the technologists necessary to perform angiograms. Dr. Lattes had performed hundreds of cerebral angiograms. He had worked at the hospital for two years prior to September 1981.

The hospital had two rooms that could be used for cerebral angiograms. The primary room contained equipment designed specifically for angiographic procedures. This room, however, had been taken temporarily out of service by the hospital and was not available during the first week of September 1981. The back-up room had somewhat different equipment than the primary room and was not used exclusively for angiograms. One of the differences was that the machines controlling the timing of the injection of the contrast material and the shooting of the x-rays were controlled by a dial system in the primary room, but they were controlled by key punch cards in the back-up room. The hospital technologists were not as familiar with the equipment in the back-up room as they were with the equipment in the primary room. The only instruction manual for some of the equipment in the back-up room was not written in English. There had been problems with the equipment in the back-up room during the months preceding September 1981. Dr. Lattes informed the technologists of these problems so they could inform the hospital administration or the equipment manufacturer, but there is no record that any maintenance was done on the equipment during the months before the procedure that was performed on Berg.

Berg's procedure was scheduled to be performed in the back-up room on the morning of September 2, 1981. Dr. Lattes asked the technologists about the equipment before he began the procedure, and they assured him that the equipment was functioning properly despite some initial problems they had experienced during test runs. Dr. Lattes then inserted the catheter into Berg and positioned it for the x-rays. At this point the memories of those present at the time are unclear. Their recollections as presented at trial, however, are not inconsistent. It is agreed that the equipment operated by the technologists failed on at least three separate occasions while the catheter was in place. On one occasion the injector failed to inject the contrast material. At another point the film jammed. Contrast material was injected during one other attempt but the film changer did not work. After each failure, it was necessary for Dr. Lattes to withdraw the catheter from the vertebral artery to the subclavian artery or to the aorta. The technologists then assured Dr. Lattes that the equipment problems had been resolved and Dr. Lattes decided to reinsert the catheter into the vertebral artery for another attempt to obtain the pictures. On the third or fourth attempt Berg suffered a stroke that rendered him blind.

Berg filed this suit against the United States under the Federal Tort Claims Act (FTCA) ¹ alleging that the negligence of the hospital and its technologists caused his stroke and resulting blindness. The government sought contribution and indemnification from Dr. Lattes and the University of Colorado Medical Center. The district court joined these third-party defendants but then granted their motions for summary judgment before trial. A bench trial resulted in a judgment for Berg against the hospital.

I.

The government claims that the court erred in finding that it was liable for Berg's injuries. The government argues that the acts of Dr. Lattes, not the acts of the hospital, caused the injuries suffered by Berg.

A.

The district court held that the negligence of the hospital was the cause of the injuries suffered by Berg. The government does not challenge on appeal the determination that the hospital was negligent. Rather, the government argues that the evidence presented at trial failed to demonstrate that the actions of the hospital were the proximate cause of Berg's injuries. Colorado law provides that a negligent party is liable for his or her negligence only if that negligence was the proximate cause of the plaintiff's injury. City of Aurora v. Loveless, 639 P.2d 1061, 1063 (Colo.1981) (en banc); Moore v. Standard Paint & Glass Co., 145 Colo. 151, 156, 358 P.2d 33, 36 (1960) (en banc). Proximate cause is a factual question in Colorado unless the facts are undisputed and reasonable minds can draw only one conclusion from them. Sharp v. Kaiser Found. Health Plan, 710 P.2d 1153, 1155 (Colo.Ct.App.1985) (cert. granted Dec. 9, 1985). An act is the proximate cause of an injury if there would have been no injury but for the act and if the act was a substantial factor in bringing about the injury. Moore, 145 Colo. at 156, 358 P.2d at 33; see also Colo. Jury Instructions 2d--Civ. 9:26 (defines "cause" as "that failure to act which in natural and probable sequence produced the claimed injury. It is a cause without which the claimed injury would not have been incurred.") "Substantial factor" was recently defined as conduct "of sufficient significance in producing the harm as to lead reasonable persons to regard it as a cause and to attach responsibility." Sharp, 710 P.2d at 1155. See generally In re Swine Flu Immunization Prod. Liab. Litig., 495 F.Supp. 1188, 1206 (D.Colo.1980) (summarizing the Colorado standard for proximate cause).

Under the definition of proximate cause used in Colorado, the evidence in this case supports the district court's conclusion that the negligence of the hospital was the proximate cause of Berg's injuries. The testimony presented at trial showed that Berg did not suffer a stroke until the third or fourth attempt to take the x-rays. A third or fourth attempt to take the pictures would have been unnecessary if the pictures had been taken during the first insertion of the catheter into the vertebral artery, or even if the second attempt had successfully produced the desired pictures. No pictures were taken during the first insertion or subsequent insertions of the catheter because the equipment operated by the technologists malfunctioned. The record shows that the equipment did not work properly because the hospital failed to maintain the equipment and the technologists were not adequately familiar with the equipment in the back-up room. Therefore, the evidence supports the district court's conclusion that it was the negligence of the hospital and the negligence of the technologists employed by the hospital that caused the first two or three attempts to fail and...