Havrum v. U.S.A.

• Decision Date: 13 January 2000
• Docket Number: No. 98-4167,98-4168,98-4167
• Citation: 204 F.3d 815
• Parties: (8th Cir. 2000) Helen Havrum, Appellee/Cross-Appellant, v. United States of America, Appellant/Cross-Appellee. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 815

204 F.3d 815 (8th Cir. 2000)

Helen Havrum, Appellee/Cross-Appellant, v. United States of America, Appellant/Cross-Appellee.

No. 98-4167, 98-4168

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: January 13, 2000

Decided: February 22, 2000

Appeals from the United States District Court for the Western District of Missouri.

Before WOLLMAN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

After a bench trial in an action brought under the Federal Tort Claims Act (FTCA), see 28 U.S.C. § 1346, §§ 2671-2680, the trial court¹ concluded that a nurse at a Veterans Administration (VA) hospital killed veteran Elzie Havrum. The court ordered the United States to pay $450,000 in damages to Mr. Havrum's wife, Helen Havrum, because of the hospital's negligent failure to protect her husband from the nurse. On appeal, the government challenges the sufficiency of the evidence. Ms. Havrum cross-appeals, maintaining that the trial court should have awarded attorney's fees to her. We affirm.

I.

The alleged acts of negligence occurred in Missouri, and thus the elements of Ms. Havrum's claim are determined by Missouri law. See 28 U.S.C. § 1346(b)(1). To prevail, she was required to show that the VA hospital had a duty to protect Mr. Havrum from injury and that its failure to perform that duty caused his death. See Behrenhausen v. All About Travel, Inc., 967 S.W.2d 213, 216-17 (Mo. Ct. App. 1998). The government does not challenge the trial court's conclusion that the hospital breached its duty to protect Mr. Havrum from the nurse, who presented a danger to patients. The government contends, however, that Ms. Havrum failed to establish causation because the evidence did not support the court's finding that the nurse killed Mr. Havrum. We review the court's factual findings for clear error. See Cook v. Nebraska Public Power District, 171 F.3d 626, 630 (8th Cir. 1999).

The trial court found that Richard Williams, the nurse in question, gave Mr. Havrum a lethal dose of codeine and, alternatively, that even disregarding the evidence of codeine poisoning, the circumstantial evidence indicated that Mr. Williams killed Mr. Havrum. After carefully reviewing the record, we conclude that the circumstantial evidence sufficiently supports a finding that Mr. Williams did indeed kill Mr. Havrum; thus we need not address the admissibility of expert testimony that Mr. Havrum received a codeine overdose.

In finding that Mr. Williams killed Mr. Havrum, the trial court relied, in part, on a study by the hospital's epidemiologist, Dr. Gordon Christensen, who investigated a suspected link between Mr. Williams and an increase in deaths on the ward where Mr. Williams customarily worked. The study concluded that patients who were under Mr. Williams's care were almost ten times more likely to die as other patients were: Although statistically one would expect five deaths to occur during Mr. Williams's shifts during the relevant period, the death toll was actually forty-eight. In addition, Mr. Williams was associated with many unexpected deaths that occurred in private rooms. Dr. Christensen also testified that he had never seen anything so unusual as the number of patients who died on the relevant ward from May through July, 1992, between 1:00 a.m. and 3:00 a.m. (a period when fewer deaths generally occur); Mr. Williams was present for eleven of the thirteen deaths in that interim, although he worked on only one-third of the shifts.

Dr. Christensen concluded that there was only one chance in a million that the pattern of deaths on the ward was random, and that there was a compelling correlation between the deaths and Mr. Williams for which Dr. Christensen could find no benign explanation. Although we agree with the government, as we must, that this statistical evidence alone does not establish that Mr. Williams caused Mr. Havrum's death, that evidence is nevertheless probative. It was, moreover, only one aspect of the circumstantial evidence upon which the trial court relied in finding causation.

With regard to Mr. Havrum specifically, the court noted that his death was among those that Dr. Christensen found highly unusual. Mr. Havrum died on the ward in question at 1:15 a.m. in a private room with Mr. Williams present. Mr. Havrum was not expected to die, and the government offered no evidence that he faced death as part of some short-term natural progression. Although Mr. Havrum suffered from a serious illness, the admitting physician did not place him in intensive care and did not believe that his death was imminent. Mr. Havrum actually reported feeling better while he was in the hospital, but sixteen hours after his admission he was pronounced dead.

The trial court, in deciding that Mr. Williams killed Mr. Havrum, also referred to suspicious inconsistencies and alterations in the medical records. According to the records, Mr. Williams was the last nurse to see Mr. Havrum alive. A physician called to the bedside by Mr. Williams stated in her progress note that Mr. Havrum had no pulse, respiration, heart rate, or blood...