Campbell v. U.S.

• Decision Date: 20 June 1990
• Docket Number: No. 89-2206,89-2206
• Citation: 904 F.2d 1188
• Parties: Aaron CAMPBELL, Administrator of the Estate of Raymond Campbell, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1188

904 F.2d 1188

Aaron CAMPBELL, Administrator of the Estate of Raymond Campbell, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 89-2206.

United States Court of Appeals Seventh Circuit.

Argued April 2, 1990.

Decided June 20, 1990.

Rick M. Schoenfield, Ettinger & Schoenfield, Chicago, Ill., for plaintiff-appellant.

Ann L. Wallace, Asst. U.S. Atty., Chicago, Ill., for defendant-appellee.

Before FLAUM and KANNE, Circuit Judges, and NOLAND, Senior District Judge. ^*

NOLAND, Senior District Judge.

The plaintiff brought this medical malpractice suit against the United States under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b), Secs. 2671-2680. The plaintiff alleges that he was injured by the negligence of a surgeon employed by the defendant while undergoing an operation at the Veterans' Administration ("VA") hospital in Chicago. After a bench trial, the district court held that the plaintiff failed to meet his burden of showing that the surgeon's actions deviated from the relevant standard of care. The district court also found that the plaintiff failed to prove that the surgeon's acts or omissions proximately caused the plaintiff's injuries. The plaintiff appeals the district court's judgment in favor of the defendant, and we affirm.

I. FACTUAL BACKGROUND

On November 7, 1984, Raymond Campbell was admitted to the VA hospital in Chicago for medical evaluation, diagnosis, and treatment relating to numerous transient ischemic attacks ("TIAs") that he had been suffering. In simplest terms, TIAs are warning signs of an impending stroke. At the VA hospital, Campbell underwent an operation known as a carotid endarterectomy ("CE"), which is performed to remove atherosclerotic debris from a stenotic (or narrowed) artery in the hope of preventing a stroke. The operation was performed by Dr. James Schuler, a vascular surgeon. Prior to the operation, Campbell was fully informed of the risks, including the risk of stroke, of this dangerous but necessary operation. When Campbell awoke from general anesthesia following the operation, Dr. Schuler discovered that Campbell had suffered a stroke. ¹

Blood is supplied to the brain from four vessels: the left and right internal carotid arteries and the left and right vertebral arteries. Campbell's left and right vertebral arteries were functioning adequately. However, medical tests revealed a 50% "stenosis" (or narrowing) of Campbell's left internal carotid artery; they also indicated that his right internal carotid artery was completely "occluded" (or obstructed). ²

A right CE was out of the question, for it is standard medical practice never to operate on a completely occluded artery because of the high risk of stroke. Dr. Schuler, therefore, decided to perform a left CE on Campbell. Both parties agree that a left CE was necessary given the patient's condition and symptoms. Campbell's operation involved even a greater risk of stroke than other CEs because Campbell's opposite side carotid was completely occluded. An opposite side blockage such as this is known as a "contralateral occlusion."

During the operation, Campbell's arteries on his left side were clamped for 40 minutes, a medically acceptable length of time. At the conclusion of the operation, an ultrasound was performed on the patient, which showed the carotid artery repaired with a normal lumen or interior. There was no evidence of residual plaque in the artery or blood clots forming at the suture line or constriction of the artery. In the opinion of defendant's expert witness, Dr. William Baker, the ultrasound indicated that Dr. Schuler had performed a technically perfect operation. When Campbell awoke from general anesthesia, however, Dr. Schuler discovered that Campbell had suffered a stroke.

Dr. Schuler performed the operation without the use of a shunt. A shunt is a plastic tube used as a bypass for continued carotid blood flow during the operation. It was Dr. Schuler's practice in 1984 to never shunt a patient during a CE. Dr. Schuler's practice of never using a shunt was based on four factors:

(1) he was trained not to use a shunt when performing a CE;

(2) his stroke rate was excellent without utilizing a shunt;

(3) it is easier to perform a technically perfect operation without a shunt in the way; and

(4) nothing in the medical literature convinced him that his stroke rate would improve by using a shunt.

There is a risk trade-off involved in the use of a shunt. Dr. Schuler was fully aware of the relative advantages and disadvantages of using a shunt prior to operating on Campbell. Although CEs are performed to prevent stroke, stroke is a known risk of such an operation. A stroke can be caused either by emboli (small blood clots that lodge in blood vessels in the brain) or by ischemia (lack of blood flow to the brain). The medical literature attributes strokes more often to emboli than to ischemia. The use of a shunt increases the risk of stroke caused by emboli. There are also other risks associated with the use of a shunt, such as damage to vessel walls caused by its insertion. On the other hand, the use of a shunt improves blood flow to the brain and may therefore decrease the risk of stroke caused by brain ischemia. At the time of Campbell's operation, Dr. Schuler believed that the risks involved with the use of a shunt outweighed any benefits.

In 1984, surgeons who performed CEs fell into three groups:

(1) those who always used a shunt;

(2) those who selectively used a shunt depending on varying criteria; and

(3) those who never used a shunt.

Prior to the time of Campbell's operation (and still today), there existed a substantial debate in the medical community regarding the relative advantages and disadvantages to these three approaches. The stroke rate in each of the three categories of surgeons was in 1984 and is today about the same.

In 1984, Dr. Schuler's stroke rate was approximately 3%. Both doctors testifying as expert witnesses agreed that a stroke rate of less than 5% is medically acceptable. Sometime in 1985, Dr. Schuler altered his approach as to the use of a shunt and now selectively shunts in limited cases depending on strict criteria. Today, Dr. Schuler shunts only about 10% of his patients. Since altering his approach, Dr. Schuler's stroke rate has remained the same--approximately 3%.

Campbell brought this suit against the United States under the Federal Tort Claims Act. Prior to trial, Campbell died; his son Aaron Campbell, as Special Administrator of the Estate of Raymond Campbell, was substituted as the named plaintiff. The complaint alleges that Dr. Schuler, an employee of the VA hospital, committed medical malpractice when performing the left carotid endarterectomy on Campbell. Specifically, the plaintiff alleges that Dr. Schuler was negligent in failing to use a shunt and in failing to monitor collateral blood flow.

After a three day bench trial, the district court entered judgment in favor of the defendant. Findings of Fact and Conclusions of Law, dated May 11, 1989 [hereafter referred to as the District Court Opinion ]. In rendering its decision, the district court credited highly the testimony of Dr. Baker, the defendant's expert witness; however, it discredited the testimony of Dr. Carter, the plaintiff's expert witness. District Court Opinion, p. 24. The district court stated that Dr. Carter's opinions were "based on many levels of speculation and assumptions based on those speculations" and that Dr. Carter had testified "in the worst tradition of the expert witness." Id. at 17-19.

The district court first concluded that Dr. Schuler "plainly satisfied" the standard or care of a reasonably well-qualified surgeon "and may fairly be found to have met even the more demanding standard ('highest degree of skill possible')." Id. at 23. Second, the district court concluded that the plaintiff had failed to prove proximate causation, referring to the plaintiff's proof regarding causation as "speculative." Id. at 24. In short, the district court concluded: "By every objective standard Dr. Schuler's conduct was impeccable in medical and surgical terms." Id. at 21.

II. ANALYSIS

The Federal Tort Claims Act ("FTCA") provides in part: "The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances...." 28 U.S.C. Sec. 2674. The FTCA "was designed primarily to remove the sovereign immunity of the United States from suits in tort and, with certain specific exceptions, to render the Government liable in tort as a private individual would be under like circumstances." Richards v. United States, 369 U.S. 1, 6, 82 S.Ct. 585, 589, 7 L.Ed.2d 492 (1962). A case brought under the FTCA is governed by "the law of the place where the act or omission occurred." 28 U.S.C. Sec. 1346(b); see Richards, 369 U.S. at 9-10, 82 S.Ct. at 591. Thus, this medical malpractice case is controlled by the law of the state of Illinois.

Under Illinois law,

[t]he elements which must be proved by a plaintiff to establish medical malpractice are: (1) the standard of care by which the physician's treatment is measured; (2) a deviation from that standard; and (3) that the deviation proximately caused the plaintiff's injury. Proof of these elements is generally based upon expert testimony....

Ramos v. Pyati, 179 Ill.App.3d 214, 128 Ill.Dec. 290, 293, 534 N.E.2d 472, 475 (1989) (citations omitted). See also Purtill v. Hess, 111 Ill.2d 229, 95 Ill.Dec. 305, 310, 489 N.E.2d 867, 872 (1986). The district court found that the plaintiff had failed to prove all three elements of his prima facie case. District Court Opinion, p. 24. We agree.

A. Deviation from the Standard of Care

Illinois law "requires a physician to possess and to apply that degree of knowledge, skill, and care which a reasonably well-qualified physician in the same or...