Waffen v. U.S. Dept. of Health and Human Services, 85-1563

• Decision Date: 02 September 1986
• Docket Number: No. 85-1563,85-1563
• Parties: Virginia Christine WAFFEN, Appellant, v. The UNITED STATES of America, DEPARTMENT OF HEALTH AND HUMAN SERVICES, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 911

799 F.2d 911

55 USLW 2202

Virginia Christine WAFFEN, Appellant, v. The UNITED STATES of America, DEPARTMENT OF HEALTH AND HUMAN SERVICES, Appellee.

No. 85-1563.

United States Court of Appeals Fourth Circuit.

Argued Dec. 4, 1985.

Decided Sept. 2, 1986.

Daniel J. Glanz, Alexandria, Va., (Richard J. Mudd, Washington, D.C., on brief) for appellant.

David B. Smith, Trial Atty., U.S. Dept. of Justice, Washington, D.C. (Elsie L. Munsell, U.S. Atty., Nash W. Schott, Asst. U.S. Atty., Alexandria, Va., on brief), for appellee.

Before HALL and ERVIN, Circuit Judges, and SWYGERT, Senior Circuit Judge of the United States Court of Appeals for the Seventh Circuit, sitting by designation.

SWYGERT, Senior Circuit Judge:

This case arises out of the admitted negligence of the National Institutes of Health, Department of Health and Human Services. The United States District Court for the Eastern District of Virginia dismissed the plaintiff's claim that she had been deprived of her chance of survival. For the reasons set out below, we hold that the district court's factual determination that plaintiff failed to prove that the delay in treatment substantially reduced her chance of survival is not clearly erroneous. Therefore, we affirm the judgment of the district court.

I

Plaintiff Virginia Waffen was a thirty-eight year old mother of two children at the time she filed this suit. She was referred in November 1974 to the Arthritis and Rheumatism Branch of the National Institutes of Health ("NIH") in Bethesda, Maryland and was an in-patient for a month starting December 1974; she was an out-patient until 1981 receiving treatments for lupus (systemic lupus erythematosus) and nephritis. She had been smoking cigarettes since the age of eighteen and smoked two packs a day in later years. During this out-patient period, NIH took two sets of chest x-rays, one on March 16, 1977 and one on February 1, 1979, both of which were read as "negative."

On March 26, 1981 Waffen was admitted for the second time to the Clinical Center at NIH for symptoms consistent with lupus. At the time of her admission a standard chest x-ray was ordered. The radiologist's report was printed out on April 3, 1981 and concluded:

Impression: 3 X 5-cm. area of soft tissue density seen within the posterior segment of right upper lobe. Possibilities include area of consolidation vs. mass lesion, and clinical correlation and follow-up examination recommended. (emphasis added)

The radiologist's report was "misplaced" and not included in Waffen's file. The doctors who prepared and signed the discharge summary, attending physicians Cheryl Rubin and John Decker, had not seen the report, but nevertheless stated that Waffen's chest x-ray was "within normal limits." NIH has stipulated that the doctors were clearly negligent.

On October 9, 1981 Waffen's local internist, Dr. John Antus, admitted her to Prince William Hospital in Virginia, because she was suffering with fever, shaking chills, sweats, and cough. Dr. Antus' admission notes stated that "last chest x-ray done at NIH in April this year was normal." On the next day, a chest x-ray was taken, disclosing a mass measuring 4-cm. in diameter.

On October 28, 1981 a pathologist at the Prince William Hospital diagnosed a biopsy from Waffen's right lung as a malignant "infiltrating carcinoma." Waffen returned to NIH for yet another chest x-ray on November 5, which was compared by the Radiology Department with the one taken earlier. The comparison stated that "the mass lesion in the posterior segment of the right upper lobe is again seen and has grown somewhat in size. It now measures approximately 5 X 5-cm." It was at this point that NIH realized that an "error" had been committed.

When Dr. Santoro of NIH became aware of their error between November 12 and November 16, 1981, he immediately reported it to his supervisor, Dr. Decker (who had signed the erroneous discharge summary), and to the director of the Clinical Center. Dr. Santoro did notify the plaintiff's referring internist, Dr. Antus, of the error, but neither Dr. Decker nor Dr. Santoro advised Waffen's Georgetown thoracic surgeon, Dr. Hufnagel, even though he had scheduled her for surgery on November 20. Dr. Hufnagel testified that he was not aware of the lost x-ray until after the suit was commenced in 1983. Dr. Santoro also did not advise Waffen of the error, basing that decision on his belief that the stress of the news would add to the risk of the major surgery she faced and that it might exacerbate her lupus condition.

On November 20, 1981, Dr. Hufnagel surgically removed the upper right and middle lobes of the plaintiff's lung. From this was taken a tumor mass measuring approximately five to six centimeters. The pathologist diagnosed Waffen as having adenocarcinoma of the right lobe in her lung, but found no evidence of metastatic disease in the lymph nodes. On December 30, 1981 Dr. Hufnagel noted that Waffen had been suffering from "definite adenocarcinoma," but believed that patients "of her type seldom had recurrences."

On February 4, 1982, when Waffen returned to the clinic, NIH doctors first reported to her their failure to get the report on her chest x-ray in March 1981. She was advised of the possibility of a tort claim and the option of treatment elsewhere, but she elected to remain at NIH and indicated that she did not plan to sue the doctors or the Clinical Center. From February 4, 1982 until May 18, 1983, additional x-rays taken at NIH showed no change. She reported symptoms of tingling and numbness in her upper right arm on May 19, 1983, but an x-ray was negative. However, the symptoms of tingling and numbness returned in September 1983 accompanied by headaches. A bone scan and chest x-rays suggested a recurrence. On October 26 a chest x-ray showed a "3 X 5-cm. spherical mass" and metastatic spreading to a rib. Finally, a biopsy completed on a node in Waffen's neck on November 10, 1983 showed recurrent adenocarcinoma.

From December 12, 1983 to January 23, 1985 the plaintiff underwent radiation at Georgetown, but it had to be discontinued due to a lupus related skin reaction. She is currently being treated at Georgetown Hospital. It is uncontested that Waffen's cancer is terminal, and she has no hope of long-term survival.

On December 15, 1983 plaintiff made an administrative claim against the United States under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671 et seq., alleging medical malpractice by NIH. The claim was never formally accepted or denied. On July 30, 1984 the plaintiff filed her complaint in the United States District Court for the Eastern District of Virginia, Alexandria Division. On March 8, 1985, Waffen filed an amended complaint charging nine counts of medical malpractice, including failure to communicate, failure to supervise medical care, and abandonment. She charged that the acts of the doctors were grossly negligent, wilful, and deliberate.

A bench trial was held on April 9, 1985. On May 1 the district court ordered plaintiff's claims dismissed; on May 13 the plaintiff filed a motion to reconsider or, in the alternative, to grant a new trial. The district court denied the motion, and plaintiff then filed this appeal.

II

This case raises a thorny question of what constitutes legal injury and proximate causation in the medical malpractice context. The answer must be determined by State of Maryland law, which governs. There is, however, an absence of Maryland caselaw on facts like those presented here, leading to a dispute between the parties concerning the basic legal analysis which should be employed.

The first part of our analysis is straightforward. The general principles which ordinarily govern in negligence cases also apply to medical malpractice claims under Maryland law. A prima facie case of medical malpractice must consist of evidence which (1) establishes the applicable standard of care, (2) demonstrates that this standard has been violated, and (3) develops a causal relationship between the violation and the harm complained of. Fitzgerald v. Manning, 679 F.2d 341, 346 (4th Cir.1982). As in any other case founded upon negligent conduct, the burden of proof in a medical malpractice claim rests upon the plaintiff. Shilkret v. Annapolis Emergency Hospital Ass'n, 276 Md. 187, 349 A.2d 245, 247 (1975); Paige v. Manuzak, 57 Md.App. 621, 471 A.2d 758, 766-67 (1984).

Plaintiff has met her burden of proof with respect to the first two elements of the cause action: duty and breach. Defendant NIH has stipulated that it violated the applicable standard of care by its negligence. Specifically, NIH has admitted that its failure to communicate to Waffen the results, in a timely manner, of the x-ray taken on March 26, 1981 and to suggest to her that further evaluation was mandatory and urgent constituted a breach of the standard of care due and owing her.

The elements of the cause of action which are in dispute, and on which we must focus, are those including "harm" and "causation." Plaintiff has framed the issue on her appeal as being whether the negligence of defendant NIH removed or diminished any substantial possibility of survival remaining to her. Defendant NIH contends that the type of injury alleged by Waffen is not compensable under Maryland law, except perhaps in cases involving abandonment of a patient by a physician. The district court held that Maryland does recognize a harm in the loss or diminution of the chance to survive, but that the plaintiff failed to prove causation, and failed to present the evidence necessary to prove that prompt revelation of the March 26, 1981 x-ray would have resulted in any substantial possibility of survival.

The district court looked for its standard on these elements to Hicks v. United States, 368 F.2d 626 (4th Cir.1966), and to Thomas v. Corso, 265 Md. 84, 288 A.2d 379, 390 (1972), in which the highest court in Maryland cites Hicks with...