Welsh v. U.S.

• Decision Date: 07 June 1988
• Docket Number: No. 86-5520,86-5520
• Citation: 844 F.2d 1239
• Parties: , 25 Fed. R. Evid. Serv. 979 Nellie F. WELSH, Administratrix of the Estate of Francis John Welsh, Deceased, and Nellie Welsh, Individually, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1239

844 F.2d 1239

56 USLW 2679, 25 Fed. R. Evid. Serv. 979

Nellie F. WELSH, Administratrix of the Estate of Francis

John Welsh, Deceased, and Nellie Welsh, Individually, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 86-5520.

United States Court of Appeals,

Sixth Circuit.

Argued April 21, 1987.

Decided April 20, 1988.

Rehearing Denied June 7, 1988.

Louis DeFalaise, U.S. Atty., Lexington, Ky., Dell W. Littrell (argued), Fred A. Stine, for defendant-appellant.

Robert L. Elliott (argued), Savage, Garmer & Elliott, Lexington, Ky., for plaintiff-appellee.

Before MERRITT, WELLFORD and NELSON, Circuit Judges.

MERRITT, Circuit Judge.

In this medical malpractice action brought under the Federal Tort Claims Act for wrongful death arising from surgery in a Veterans Administration hospital, the District Court after a bench trial awarded plaintiff-appellee $606,203.95 in damages against the United States. Plaintiff's decedent died from an E. Coli infection of the brain (meningitis) after a prolonged period of decline that followed two brain operations in 1980, the first on June 9 to remove a large benign brain tumor and the second on October 15 to treat the infection. The United States argues on appeal that the verdict was based upon insufficient evidence of negligence and proximate causation and upon impermissible inferences drawn by the District Court. The outcome of this appeal turns upon what effect a defendant's negligent destruction of crucial evidence under its exclusive control should have on the plaintiff's burden of proof. Two acts by the hospital surgeons in this case create a rebuttable presumption of negligence and proximate causation against the defendant--the negligent destruction of a skull bone flap after the second operation, and the consequent failure at that time to undertake a pathological examination of this evidence in accordance with customary standards of medical practice. The defendant has not rebutted that presumption, and the judgment of the District Court therefore is affirmed.

I.

Plaintiff's decedent, Francis Welsh, entered the VA Medical Center in Lexington, Kentucky on May 27, 1980, complaining of depression, loss of appetite and memory, fatigue, and headaches. Tests led to the diagnosis of a brain tumor, and on June 9, 1980, a large benign tumor called a meningioma was removed surgically. The surgeons used an artificial material called duraplast to replace the brain lining that was removed at surgery, but the flap of skull bone that was removed to permit access to the brain was put back in place. It was this piece of the skull that later acquired crucial evidentiary value and was removed and discarded at the second operation.

Six days after surgery, Mr. Welsh began to run a low grade fever; a spinal tap revealed bloody fluid, which is often seen in the postoperative period. Although there was no definite evidence of infection, he was treated with antibiotics for seven days. On the fourth day of antibiotic treatment, he had an epileptic seizure; six days after that, swelling was noted in the area near the skin incision. Three days later, on June 26, his surgeons placed a drain in his lower back to siphon spinal fluid away from the brain; the swelling receded. On June 30 the drain was removed, and on July 9 Mr. Welsh was finally discharged from the hospital.

During the succeeding three months Mr. Welsh visited the VA clinic either two or four times--there is no record of the first and last putative visits, and the parties' testimony concerning the very existence of these visits is in dispute. The first disputed visit was on July 9, for which there was no doctor's note. Some independent evidence exists that it took place, however, in the form of a nurse's note. Plaintiff testified that at the next visit, on July 15, Mr. Welsh complained of headaches, upset stomach, and loss of appetite. The VA medical record for July 18 does not reflect these complaints, noting only that he was "nervous at times then depressed but coping well." The doctor scheduled him for a return visit three months later. At the next visit, an unscheduled but undisputed appearance on August 22, Mr. Welsh complained of "extreme weakness and nausea," according to the medical record. Despite this complaint, his temperature was not taken (nor was it taken on any other clinic visit). The resident surgeon who saw him on August 22 noted only a possible problem with "hyper-reactive smell." Suspecting possible brain seizures as a cause, the resident scheduled an electroencephalogram (EEG), or brain-wave test, to be done two months later in October.

The testimony was conflicting on whether Mr. Welsh came back for another visit to the clinic around September 25--his family members testified with some specificity that he had, but VA witnesses denied it. The VA records do not reflect such a visit. On the basis of other indications of sloppy recordkeeping by the VA and of credence placed in the testimony of Welsh family members, the District Court found that a visit did occur around September 25 and that--once again--Mr. Welsh's complaints were not fully investigated.

Finally, on October 10, Mr. Welsh made a scheduled visit to the clinic, again made similar complaints, and again did not have his temperature taken. The VA doctor did order a computed tomography (CT) study of the head, and the EEG ordered in August was performed. The results of both tests were within normal limits. On the way home, Mr. Welsh began to feel dramatically worse, and the family returned him to the VA that night. Examination at this time determined his temperature to be 102 degrees Fahrenheit; later that night, it rose to 104.6 degrees. The next day a needle tap of the area immediately under the incision on his forehead revealed pus, and his doctors instituted a course of an antibiotic treatment. Infectious disease consultants within the VA recommended a still deeper tap to search for a collection of pus near the surface of the brain called a "subdural empyema." This procedure, however, was not performed until October 15, four days later.

On October 14, a repeated CT scan revealed the formation of a "crescent" appearance suggestive of subdural empyema; the next day a deep exploration was undertaken. The old bone flap noted above was removed and discarded, rather than sent to the pathology laboratory for examination; a subdural empyema was discovered and drained. The antibiotics thereafter ultimately cured the infection, but by this time Mr. Welsh had sustained permanent brain damage. He remained in a semi-coma from October 1980 until his death more than four years later in May 1985. Except for a six-month stay at home during 1981, this final period of his life was spent in the care of the VA.

In 1982, Mrs. Welsh filed an administrative claim, which was denied by the VA. In February 1983, she filed suit in the United States District Court for the Eastern District of Kentucky pursuant to the Federal Tort Claims Act, 28 U.S.C. Sec. 1346. At trial the theory of plaintiff's expert witness, a Buffalo, New York specialist in infectious disease, was that Mr. Welsh had developed a postoperative infection in June which was incompletely treated with antibiotics. His condition then smoldered through the summer as an undiagnosed infection of the organism E. Coli in the skull bone flap called osteomyelitis. According to plaintiff's expert, the infection then moved into the spinal fluid under the skull creating the localized collection of pus, or subdural empyema. Finally, the subdural empyema burrowed into and through the brain on October 10, rupturing into a brain ventricle (a lake of inner brain fluid), causing infection of the brain lining and fluid, or meningitis.

Defendant's theory was that there was no infection in June, and that the complaints Mr. Welsh made during the summer clinic visits were unrelated to the disaster that befell him in October. Defendant's experts theorized that the subdural empyema resulted from a gallbladder infection that occurred no more than a few weeks before the catastrophic downturn in Mr. Welsh's condition that took place on October 10. This theory essentially was based upon a description given a VA doctor on October 14 by Mrs. Welsh of an episode of transient jaundice--possibly a gallbladder attack--that Mr. Welsh had experienced in late September. According to this defense theory, infection in Mr. Welsh's gallbladder would have escaped into his bloodstream, travelled to the head, seeded into the devitalized bone flap, and eventually spread into the brain area. The VA resident who first propounded the "gall bladder theory" as an explanation for the intervening cause of Mr. Welsh's empyema contemporaneously described this hypothesis as "certainly grasping at straws," App. 473, and a review of the record suggests that this observation, made in a moment of candor, is correct. As we shall see momentarily, the District Court accepted a modified version of defendant's "gall bladder theory" concerning the onset of the infection.

Both plaintiff's and defendant's experts agreed that the infection had gone from the skull bone to the brain; the principal difference in their testimony lay in how long the infection had been in the bone. Plaintiff's expert said since June, or at least three months; defendant's experts said since late September, or not longer than two weeks.

In its findings of fact and conclusions of law, the District Court largely rejected plaintiff's theory in favor of defendant's, but nonetheless found defendant liable. The District Court found that Mr. Welsh's "gall bladder problems" had their onset on August 25 and that "shortly before" September 15 the E. Coli infection traveled from "the gall bladder, the liver, or a combination" and seeded in his brain. The District Court thus found that there was no infection anywhere in Mr. Welsh's head before early September. Therefore,...