Kwasny v. U.S., 86-2694

• Decision Date: 13 July 1987
• Docket Number: No. 86-2694,86-2694
• Citation: 823 F.2d 194
• Parties: Alyce M. KWASNY, administrator of the estate of William C. Kwasny, deceased, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 194

823 F.2d 194

Alyce M. KWASNY, administrator of the estate of William C.

Kwasny, deceased, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 86-2694.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 24, 1987.

Decided July 13, 1987.

Linda A. Wawzenski, Asst. U.S. Atty., Chicago, Ill., for defendant-appellant.

Michael L. Bolos, Michael L. Bolos, Ltd., Chicago, Ill., for plaintiff-appellee.

Before WOOD, POSNER, and MANION, Circuit Judges.

POSNER, Circuit Judge.

This suit for wrongful death, brought under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671-2680, charges that William Kwasny's death was due to negligence by doctors employed at a hospital owned by the Veterans Administration. The district judge found negligence and awarded damages of $485,215. The government appeals, complaining about both the finding of liability and the size of the damage award, which, the government argues, should not exceed $100,000.

A veteran of World War II, Kwasny contracted rheumatoid arthritis in 1945, when he was 30 years old. This is a chronic, crippling, incurable disease. It is sometimes virulent, and was in Kwasny's case. By 1978, when he was 63, his spine and knees were frozen in a bent position, he was confined to a wheelchair, and for the last 10 years he had been unable to work. Despite his disability he made recordings for the blind as a community service.

He had had many operations, the most recent one in 1976, and in all of these he had been operated on while under a general anesthetic. On one occasion he had explicitly refused to have a spinal anesthetic instead. In 1978 he was admitted to the hospital for another operation, this one on a knee. The doctors were concerned that it might be difficult to "intubate" Kwasny, i.e., to insert a tube in his windpipe through which oxygen would be pumped while he was anesthetized (a general anesthetic paralyzes the lungs). One doctor suggested a spinal anesthetic, but Kwasny refused; he wanted a general anesthetic, as he had always had. But he was heavily medicated when he made this decision, so it may not have been well considered.

Before the general anesthetic was administered, Kwasny was put into a light sleep (one in which he would still be breathing under his own power). The next step was to "preoxygenate" Kwasny, that is, fill his lungs with oxygen, so that he would not be deprived of oxygen during the few minutes occupied by the next stage of the procedure. That stage begins with the administration of a muscle relaxant that causes the patient to stop breathing. The doctors then "intubate" the patient, which means inserting a tube through the mouth (or nose) and down the trachea. When intubation is complete the breathing machine is switched on and the general anesthetic is administered. See 3 Gray & Gordy, Attorneys' Textbook of Medicine paragraphs 58.80-58.81(2) (3d ed. 1986).

At first the doctors tried to intubate Kwasny through the mouth (the normal procedure). His neck was so bent that they had to apply considerable force with the intubating instrument (a laryngoscope), causing his lip to be lacerated and a tooth to be loosened. Even so they were unable to effect an intubation. They then tried to intubate him through his nose; this worked easily, and they then gave him the general anesthetic and performed the operation without incident.

When Kwasny awoke after the operation, he complained of difficulty in swallowing. The next day the tissues of his neck swelled. Two days later he suffered an arrest of breathing and an emergency tracheotomy was performed. He appeared to recover, and was discharged from the hospital, but continued to complain about his throat. Six months later he suffered an acute respiratory arrest, was hospitalized, went downhill rapidly, and died. The death certificate lists many causes of death, including acute respiratory failure, airway obstruction, kidney failure, and rheumatoid arthritis. The plaintiff's theory of the case, in support of which expert medical testimony was presented and which the district judge accepted, was that the initial attempt to intubate Kwasny during his last operation had been negligent and had perforated his windpipe and that the perforation had led ultimately to his death. The government presented contrary evidence on both negligence and causation.

The government points out correctly that the district judge's findings contain factual errors and that its expert witnesses were more experienced than the plaintiff's. There is no need to take up space in the Federal Reporter to rehearse these purely factual and evidentiary disputes. Suffice it to say that there is enough evidence to support the judge's conclusions and that his findings, while probably erroneous in some respects, do not reflect so fundamental or pervasive a confusion as to invalidate his conclusions. An error that would not (if corrected in time) have altered the judge's conclusion is a harmless error, and therefore not a ground for reversal. See Fed.R.Civ.P. 61; Nord v. United States Steel Corp., 758 F.2d 1462, 1467-68 (11th Cir.1985); Phillips v. Crown Central Petroleum Corp., 602 F.2d 616, 626 (4th Cir.1979). The government has never explained why its doctors thought it necessary--in what it concedes and indeed emphasizes was elective surgery, and given the possibility of nasal intubation--to use such force in trying to push a tube through the windpipe of this frail and badly crippled man that they lacerated his lip, loosened a tooth, and, more seriously, may have perforated his trachea; and while the causality of his death is by no means certain, uncertainty cannot by itself justify reversing a judgment of liability.

The general tendency of courts in tort cases, once negligence is established, is to resolve doubts about causation, within reason, in the plaintiff's favor. See Prosser and Keeton on the Law of Torts Sec. 41, at p. 270 (5th ed. 1984); 4 Harper, James & Gray, The Law of Torts Sec. 20.2, at pp. 92-93, 97 (2d ed. 1986). Kwasny...