Sullivan v. U.S. Department of Navy

Decision Date23 April 2004
Docket NumberNo. 02-57006.,02-57006.
Citation365 F.3d 827
CourtU.S. Court of Appeals — Ninth Circuit
PartiesMary SULLIVAN, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF the NAVY; Naval Medical Center; Does, 1 through 50, inclusive, Defendants, and United States of America, Defendant-Appellee.

James McElroy, San Diego, CA, for the plaintiff-appellant.

Carol C. Lam, United States Attorney, Richard Tolles, United States Attorney's Office, San Diego, CA, for the defendant-appellee.

Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, District Judge, Presiding. D.C. No. CV-01-00425-TJW/JFS.

Before: NOONAN, THOMAS, and BEA, Circuit Judges.

NOONAN, Circuit Judge:

Mary Sullivan appeals the grant of summary judgment to the United States in this action under the Federal Tort Claims Act (the FTCA). The central question is whether the district court properly excluded the proffered testimony of the plaintiff's medical expert. We reverse the judgment of the district court and remand.


We state the facts as presented by the party not moving for summary judgment, as follows:

On April 2, 1999, Mary Sullivan underwent surgery at the Naval Medical Center (the hospital). A mastectomy was performed by Thomas Nelson, M.D., on her left breast to remove cancer. Then Amy Wandel, M.D., F.A.C.S., performed by endoscope the reconstruction of Sullivan's left breast by relocating a flap consisting of the latissimus dorsi muscle together with overlying tissue and a small panel of skin, moved through the axilla to her chest. Dr. Wandel then performed a mastopexy or reduction of the right breast. According to Dr. Wandel's report of the two operations performed by her, they began at 10:30 and ended at 23:50 or 13 hours and twenty minutes later:

The skin was incised superiorly and using electrocautery the skin was elevated off the deep fat of the back and the latissimus. The endoscope was brought up in the field to dissect up into the axilla to dissect the overlying skin off the latissimus and deep fat. The dissection was carried from the axilla down to the scapula and to the midline of the back. Once this was completed the inferior incision was made and using electrocautery the skin was elevated off the fat inferiorly, harvesting a maximum of fat with the flap

. . .

... [A]n axillary incision was made and the endoscope was brought through the axillary incision and the dissection was carried inferiorly along the anterior border of the latissimus to complete the dissection. The tunnel for passing the latissimus into the chest wall was then completed using electrocautery. The muscle and skin were then passed into the chest wall and the remainder of the axillary dissection was performed using careful blunt dissection.

In lay terms, the report indicates (1) a cut into the skin where the deep back fat was; (2) a cut into this fat by the endoscope up to the axilla or armpit; (3) a continuation of the cut from the armpit to the scapula or shoulder bone and to the middle of the back; (4) a cut to harvest fat and flap; (5) a cut in the armpit to bring through the endoscope; (6) another cut along the border of the latissimus; and (7) a further cut in the armpit. After these events, so the report continues, "Two drains were placed, one Blake drain in the axilla and one Jackson-Pratt along the medial wall." According to the report, there were "no complications." No unexpected delays are mentioned.

Sullivan suffered severe scarring and experienced muscle weakness in her lower back. She had additional surgery to correct the disfigurement of her back. She also had additional plastic surgery on her breasts.


On March 9, 2001, Sullivan brought this suit. On May 15, 2002, Sullivan's deposition was taken. She testified that the morning after the operation, she felt a hole in her back. She asked Dr. Wandel what it was, and was told that it was a seroma or, as Dr. Wandel put it, "an area of skin and tissue that sometimes goes dead during surgery." A week later, according to Sullivan, she returned to the hospital, and Dr. Wandel took off the bandage on this area of her back and said to an intern, "I don't know what happened here. She must have laid on something." On April 14, 1999, additional surgery was performed by Dr. Wandel to debride the hole.

Sullivan submitted a written report and deposition testimony of Anne M. Wallace, M.D., associate professor of clinical surgery at the University of California at San Diego, director of its Breast Care Unit, and the author of fourteen articles in the area of breast care. Dr. Wallace had performed plastic surgery on Sullivan after the operations performed by Dr. Wandel.

Dr. Wallace reported:

There were complications with the equipment in the operating room and the surgery took approximately 13 hours. Post-operatively, the patient went on to develop fat nercrosis in the left latissimus flap and a full thickness necrosis of the donor site at the left back region and was told that she had had an infection. She went on to debridement and secondary closure of the back wound which left a large scar and indentation down to the underlying back musculature. The scar tissue then resulted in some chronic back pain.

. . .

Under normal circumstances this form of reconstruction takes 3 to 4 hours to perform. In this particular case, the reconstruction took approximately 13 hours after the mastectomy. That is near triple the time that a normal latissimus dorsi myocutaneous reconstruction should take. It is my opinion that complications which are possible to occur become much more probable to occur because of the length of surgical time. The time for which the wound was open, exposed and manipulated, to a reasonable degree of medical certainty, aggravated an already known complication of a latissimus dorsi flap.... The most likely and probable cause of her wound complication following the reconstruction was the prolonged time of surgery and resultant stress it put on the tissue.

. . .

At the heart of Dr. Wallace's report was this opinion:

It is difficult to always know when a patient is going to have a donor site complication. There are specific risk factors such as smoking, diabetes, etc., of which this patient had none. But stress on a wound because of an excessively long surgical time could result in such a complication. Even though this complication can happen when everything is done by the standard of care, the length of surgery led to a situation in which a possible wound complication became a probable wound complication.

The report included the following foundation:

2) The Basis and Reasons for the Expert's Opinion — The reason for my opinion is based on 7 years of surgical oncology and oncologic reconstruction experience, as well as a Fellowship at the MD Anderson Cancer Center where this was a common operation.

3) The Data and Information [On] Which the Opinion is Based — This information is based on experience with many patients who have had the latissimus dorsi flap reconstruction and second opinions on multiple patients from the community and elsewhere that have also had this procedure. I also have some experience with endoscopic latissimus dorsi harvesting from fellowship training.

In her subsequent deposition by defendant's counsel, Dr. Wallace stated:

The infection was up in the axilla. And when you turn the patient back to supine, that whole incision is still open, the flap has been turned into it, and then you spend the next hour shaping it, putting drains in it and closing the incision.

Dr. Wallace further testified as to the necrosis of the flap suffered by Sullivan. She could not say with certainty that the infection caused this necrosis and added:

But infection is one of those causes [of necrosis] and necrosis was along the track of where it was coming through right along the axilla. The axilla is right where the pedical was.

Sullivan subsequently submitted the affidavit of Dr. Wallace, dated August 22, 2002, stating that the laboratory report showed that "a wound culture was taken from the incision on Mrs. Sullivan's back" and that the report was "positive for an infection." Dr. Wallace then cited four standard medical texts that stated that the length of an operation was "an influencing factor for infection." She gave as her opinion that "the excessive length of the surgery increased the risk of infection by at least six times," and that it was below the standard of care for the reconstructive surgery to last 10-1/2 hours.

Dr. Wandel, deposed by plaintiff's counsel, testified:

Q: Was the outcome less than what you expected?

Dr. Wandel: Yes

Q: In what way?

Dr. Wandel: She had a back wound which required wound care.

Q: When you went into the surgery, did you expect that she would have a back wound following the surgery?

Dr. Wandel: I expected her to have a healing incision from where I took her flap from. She ended up having a breakdown of that area, which required wound care.

In her deposition, Dr. Wandel went on to deny that the wound was infected and to maintain that the debridement was of dead skin. However, the report from the hospital's lab on the culture taken at the time of the debridement reads in relevant part as follows:

Sullivan, Mary Angela

Req Phys: Wandel, Amy G.

Test: Wound Culture Site Spec:

Incision (Back)

1+ Staphylococcus aureus

Photographs of Sullivan's back taken on April 7, 1999, and on subsequent occasions up to September 9, 1999, show a hole in her lower back.

July 19, 2002, the United States moved for summary judgment. Having maturely considered the matter, on October 2, 2002, the district court granted the motion. The district court made these findings of fact (the numbering is added):

1. Sullivan's three operations lasted "a total of approximately 13 hours."

2. The time "included an unforeseen 45 minute delay."

3. "After the operations, P...

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