Haley v. U.S., 82-2008

• Decision Date: 03 August 1984
• Docket Number: No. 82-2008,82-2008
• Citation: 739 F.2d 1502
• Parties: Fleeta H. HALEY, and Allen Haley, Sr., Plaintiffs-Appellees, v. The UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1502

739 F.2d 1502

Fleeta H. HALEY, and Allen Haley, Sr., Plaintiffs-Appellees, v. The UNITED STATES of America, Defendant-Appellant.

No. 82-2008.

United States Court of Appeals Tenth Circuit.

Aug. 3, 1984.

Pamela A. Hornett, Atty., Washington, D.C. (J. Paul McGrath, Asst. Atty. Gen., Mark S. Feldheim, Asst. Director, Torts Branch, Dept. of Justice, Washington, D.C. and Francis Keating, U.S. Atty., Tulsa, Okl., with her on the brief), for defendant-appellant.

James Clinton Garland, Tulsa, Okl. (James E. Frasier, Tulsa, Okl., with him on the brief) of Frasier, Frasier & Gullekson, Tulsa, Okl., for plaintiffs-appellees.

Before BARRETT, DOYLE and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

The United States has appealed from a $190,000 judgment entered against it in a suit brought by Fleeta A. Haley and her husband Allen Haley for medical negligence under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b) and 2671-2680. The government contends that the trial court made several clearly erroneous findings of fact and erred in holding that at the time of the alleged injury Oklahoma recognized the doctrine of informed consent and that Oklahoma law required that Mrs. Haley be referred to a specialist in gastroenterology or advised of the availability of a gastroenterology specialist.

Mrs. Haley first learned that she had an intestinal disease in 1968 when Robert Hinkle, D.O., a surgeon at Oklahoma Osteopathic Hospital, performed an exploratory laparotomy. After viewing Mrs. Haley's intestinal tract during surgery, Dr. Hinkle informed her that she had Crohn's disease. Since 1969, Mrs. Haley has been a patient at the United States Public Health Service Indian Hospital in Claremore, Oklahoma. In 1973, because of unusual pain in her stomach, Mrs. Haley was sent to David W. Jenkins, M.D., a gastroenterologist. Dr. Jenkins referred her to J.D. Shipp, M.D., a surgeon at St. John's Hospital in Tulsa, Oklahoma, who removed an obstruction of her bowel. The operation involved removal of the total colon (large intestine) and the creation of an ileostomy, a channel through which the patient could discharge waste from her body.

On September 6, 1977, Mrs. Haley visited the Claremore hospital complaining of vomiting and abdominal cramps. A rectal biopsy disclosed an inflammation in the rectal stump. Joseph A. Bretza, M.D., a Claremore doctor who analyzed the biopsy, thought that Mrs. Haley might have ulcerative colitis but that regional enteritis (Crohn's disease) could not be ruled out. Dr. Bretza also thought that Mrs. Haley's rectal stump could be cancerous. Removal of the rectal stump was recommended to Mrs. Haley because of Dr. Bretza's diagnosis, her persistent mucous discharge, rectal bleeding, abdominal pain, and a pathological report by Mark Rauter, M.D., dated October 17, 1977. The report states, "A definite diagnosis of chronic ulcerative colitis cannot be made, however, there are suggestions of this process." The report concludes with a diagnosis of chronic ulcerative proctitis. A pathology report of October 26, 1977, states, "changes in the colon are compatible with chronic ulcerative colitis in quiescent phase."

On October 21, 1977, Charles Allen, M.D., the chief of surgery at Claremore, performed a history and physical. Although Mrs. Haley believed that Dr. Allen would perform the surgery, Dr. Allen arranged for Larry Hrdlicka, M.D., a doctor in private practice with surgical privileges at Claremore, to perform the surgery. No evidence was presented to the trial court to show that any of the physicians involved consulted medical records and reports from previous surgeries performed on Mrs. Haley. The physicians did not consult with gastroenterology specialists concerning the ambiguity in the diagnosis of Mrs. Haley's condition. Dr. Hrdlicka, who performed the surgery on Mrs. Haley, testified that he would not have operated on Mrs. Haley if he had been aware of the diagnosis of Crohn's disease.

The trial court found that Dr. Allen did not discuss removal of Mrs. Haley's uterus during the October 21, 1977 visit, nor did Dr. Allen intend to remove the uterus. Although Dr. Allen informed Mrs. Haley that surgical removal of the rectal stump was elective, she thought the surgery was necessary because of the threat of cancer in the rectal stump. Mrs. Haley was admitted for surgery at the Claremore hospital on October 24, 1977. She signed the Request for Administration of Anesthesia and for Performance of Operation and Other Procedures two different times. On the first occasion, at 12:30 p.m. on October 24, a nurse, Ellen Parese, brought the form which Mrs. Haley signed to indicate that she understood the nature of the rectal surgery. Mrs. Haley signed the consent form for the second time on the morning of October 25, 1977. At 9:00 a.m. Mrs. Haley received her pre-operative medication. The record is unclear as to whether Mrs. Haley had received any medication prior to 8:00 a.m. on that day, but evidence was presented that she was awakened at 8:00 a.m. on October 25 to sign the consent form. At this time the hospital apparently wished to obtain Mrs. Haley's consent for a "possible hysterectomy." Mrs. Haley wrote "Remove my rectum and possible removal of uterus," as her understanding of the procedure, and signed her name, the date, and the time of 8:00 a.m. On the morning of October 25, 1977, Dr. Hrdlicka removed the rectal stump and uterus. Dr. Hrdlicka admitted that there was no disease in the uterus; he removed the uterus to expose the rectum and facilitate its removal. Dr. Hrdlicka testified that he explained to Mrs. Haley the evening before the surgery that such a procedure might be necessary to facilitate the surgery and that Mrs. Haley told him that she did not want to have any more children. Mrs. Haley testified that she and her husband did wish to have more children and that she understood that the uterus would be removed only if Dr. Hrdlicka, or whoever performed the surgery, determined during surgery that it was diseased.

Subsequent to her surgery, Mrs. Haley developed both an abdominal wound infection and a perineal wound infection, which required incision and drainage. On October 26, 1977, the ileostomy bag leaked. Dr. Allen testified that cultures showed that the infection probably occurred at the time of surgery. He also testified that there was no way to prevent leakage following surgery.

In its Findings of Fact and Conclusions of Law the district court found that no evidence had been presented that Doctors Bretza, Rauter, or Allen had consulted the medical records and reports from previous surgeries performed on Mrs. Haley. Also, the court found that the examining physicians (Bretza, Rauter, and Allen) did not inform Mrs. Haley as to the risks of surgery and the alternatives to surgery. The trial judge concluded as a matter of law that the physicians who treated Mrs. Haley in October 1977 did not comply with the standard of care ordinarily exercised in the same or similar communities because they failed to consult the previous records and reports relating to the earlier hospitalizations and surgeries, failed to seek or advise Mrs. Haley of the availability of the specialized knowledge of a gastroenterologist, and failed to adequately inform Mrs. Haley of the potential complications from surgery and the alternatives to surgery. Moreover, the court held that the doctrine of informed consent existed in Oklahoma in 1977. The court entered judgment against the United States for $150,000 in damages for Mrs. Haley and $40,000 for Mr. Haley's loss of services and consortium. We affirm.

I

Defendant argues that the trial court committed clear error in finding that (1) the doctors treating Mrs. Haley did not consult the medical records and reports pertaining to prior surgical procedures; (2) the precise diagnosis of the disease was necessary to justify surgical intervention; and (3) the physicians did not explain the risks of surgery to Mrs. Haley nor did they adequately inform her about potential wound infection or the circumstances under which they would remove her uterus. We disagree.

On the first issue, Dr. Bretza admitted that he was confused about Mrs. Haley's condition and that he was not sure whether he reviewed Mrs. Haley's records from the Oklahoma Osteopathic Hospital. Dr. Allen stated that he did not seek the Osteopathic Hospital records. Dr. Hrdlicka testified that he would not have performed the surgery had he known that the correct diagnosis was Crohn's disease, that he did not review the medical records, and that he relied on others to get consent for the hysterectomy. Although some evidence exists to support a finding that these doctors did consult records concerning Mrs. Haley's medical history, we cannot say that the trial court clearly erred in finding that the doctors had not adequately consulted Mrs. Haley's prior medical records and reports.

On the second issue, substantial evidence was presented at trial that it made a great deal of difference whether the diagnosis of Mrs. Haley's condition was Crohn's disease or ulcerative colitis. Three doctors testified that ulcerative colitis carries with it a much greater risk of cancer than Crohn's disease. Dr. James Reynard stated that surgeons should avoid operating on a patient with Crohn's disease absent life threatening complications. Dr. Leon Yoder testified that an erroneous diagnosis created unwarranted and unnecessary problems for Mrs. Haley. Because surgery is generally performed in cases of ulcerative colitis to eliminate the risk of cancer associated with that disease and surgery is generally avoided in cases of Crohn's disease because of the risk of post-surgical infection and the efficacy of non-surgical therapeutic techniques, we...