Wheat v. U.S.

• Decision Date: 30 November 1988
• Docket Number: No. 86-1267,86-1267
• Citation: 860 F.2d 1256
• Parties: William O. WHEAT, et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1256

860 F.2d 1256

William O. WHEAT, et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.

No. 86-1267.

United States Court of Appeals,

Fifth Circuit.

Nov. 30, 1988.

Rehearing Denied Jan. 3, 1989.

Dee V. Benson, Irene M. Solet, Robert S. Greenspan, Atty., Appellate Staff, Civ. Div., Washington, D.C., for defendant-appellant.

William O. Whitehurst, Mack Kidd, Alice Oppenheim, Kidd, Whitehurst, Harkness & Watson, Austin, Tex., for plaintiffs-appellees.

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

Before GEE, SNEED ^* and WILLIAMS, Circuit Judges.

GEE, Circuit Judge:

In this case, we are asked to reassess damage awards to the Estate of Shilla Wheat and to her surviving husband and daughters to determine if the awards are excessive or punitive. We conclude that the awards to the Estate of Shilla Wheat and to Shilla Malette Aaron, Mrs. Wheat's minor daughter, are appropriate, given the grievous injury that Mrs. Wheat and her young daughter have suffered. By contrast, the awards to William O. Wheat, Mrs. Wheat's husband, and to Freda Joyce Barlow, Mrs. Wheat's adult daughter, are excessive because they are entirely disproportionate to the injuries that Mr. Wheat and Ms. Barlow sustained. Therefore, we affirm in part and reverse in part.

The district court granted judgment against the United States in a medical malpractice action brought by the plaintiffs against the United States and Dr. Harold L. Wood, a private physician. The action arose out of treatment that Shilla Wheat received from military physicians and from Dr. Wood. The plaintiffs in this action are Mrs. Wheat's surviving spouse, William O. Wheat, her minor daughter, Shilla Malette Aaron, her adult daughter, Freda Joyce Barlow, and her parents, Albert and Catherine Harper. (We shall refer to the plaintiffs collectively as "The Wheats.").

Shilla Wheat endured a four-year battle with undiagnosed cervical cancer. The malignancy caused Mrs. Wheat pain and mental anguish that intensified and spread with each day. Mrs. Wheat's troubles began in 1978 when she visited a military physician at U.S. Darnall Hospital in Fort Hood, Texas for a routine pap smear. The pap smear revealed minimal dysplasia, an early warning sign of cervical cancer. The military physicians did not perform further tests to determine whether Mrs. Wheat had cancer. Mrs. Wheat returned to Darnall hospital frequently in 1978, complaining of abnormal bleeding and abdominal and pelvic pain. Despite Mrs. Wheat's continuing symptoms, the physicians did not conduct the tests that would have allowed them to diagnose the malignancy that already had developed.

Dissatisfied with her treatment at Darnall Hospital, Mrs. Wheat turned to Dr. Harold L. Wood, a private physician. In 1979 Dr. Wood performed a hysterectomy on Mrs. Wheat, a measure that caused the malignancy to accelerate. A pathology report, completed immediately after the hysterectomy, indicated that Mrs. Wheat was suffering from Stage II-B cervical cancer. Incredibly, although he noted the diagnosis in his records, Dr. Wood neither informed Mrs. Wheat of the cancer nor treated her for it.

In 1980 Mrs. Wheat returned to the military physicians. She saw numerous physicians many times, complaining of increasing pain that was extending throughout her body. The military physicians responded by prescribing pain medication. As her pain increased, the physicians increased the dosage of pain medication, failing, however, to diagnose or treat the malignancy that was the source of her complaints. The district court found that the physicians' choice of treatment "is evidence that the constant pain Shilla Wheat was suffering was severe enough for a trained physician to prescribe medicines strictly for the pain. Thus, the court finds that the pain Shilla Wheat was suffering was substantial and continuous." Moreover, by July 1980, Mrs. Wheat was showing signs of severe emotional distress and mental anguish, which increased until her death. Two factors exacerbated the mental anguish that accompanied Mrs. Wheat's physical pain: the military physicians failed to explain or diagnose the pain and, perhaps worse, they insisted that the pain was psychological.

As a result of the growing and untreated malignancy, Mrs. Wheat lapsed into renal failure in March 1981. Finally, a physician diagnosed the cervical cancer and began a course of treatment. In addition to the pain Mrs. Wheat had withstood for three years, she suffered the agony of chemotherapy and radiation therapy, as well as the indignity and discomfort of a nephrostomy tube. As Mrs. Wheat's illness progressed, she became unable to care for her young daughter, Malette. Eventually, Mrs. Wheat had to relinquish custody of her child. In September 1981 Mr. Wheat moved his wife to a convalescent home in California. Six months later, in March 1982, Mrs. Wheat died.

Mrs. Wheat's family brought a medical malpractice action against the military physicians under the Federal Tort Claims Act (FTCA), joining an action against Dr. Wood. The case went to trial in the Western District of Texas, and Dr. Wood settled with the plaintiffs before the jury was charged. The district court adjudicated the FTCA action against the United States and held that both the United States and Dr. Wood had committed egregious acts of medical malpractice. Holding that Texas's statutory cap on medical malpractice liability violated the Texas Constitution, the court awarded damages in excess of the statutory ceiling. The district court awarded $6.7 million in damages and apportioned liability equally between the two defendants. The court granted $3 million to the Estate of Shilla Wheat, $1.8 million to William O. Wheat, $1 million to Shilla Malette Aaron, $500,000 to Freda Joyce Barlow and $200,000 to each of Mrs. Wheat's parents, Albert and Catherine Harper.

The United States appeals, raising three issues. First, the United States argues that the district court incorrectly concluded that the Texas statutory cap on medical malpractice liability was unconstitutional. Second, the United States contends that the damage awards are excessive. ¹ Finally, the United States maintains that, despite the district court's statements to the contrary, the court used the damage awards as punitive measures.

A. The Constitutionality of the Texas Cap on Medical Malpractice liability.

The district court correctly predicted that the Texas Court would hold that Texas's statutory limit on medical malpractice liability violated the Texas Constitution. The Texas legislature attempted to limit civil liability for physicians and health care providers by placing a statutory cap on the amount of damages that the court could award. Tex.Rev.Civ.Stat.Ann. 4590i, Secs. 11.02 and 11.03. Predicting that the Texas Supreme Court would declare the liability cap unconstitutional, the district court awarded damages that exceed the statutory limit. The United States has contended that the district court's prediction was erroneous. While this appeal was pending, however, we certified the question in another case to the Texas Supreme Court, asking the court to decide whether the cap violated the Texas Constitution. Lucas v. United States, 811 F.2d 270 (5th Cir.1987). The court held that the cap violated Article I, Sec. 13 of the Texas Constitution, the "open courts" provision of that instrument. Lucas v. United States, 757 S.W.2d 687 (1988). Thus, the district court accurately predicted that the Texas Supreme Court would invalidate the statutory limit on liability. As the parties agree, the Lucas decision moots the constitutional issue in this appeal. The only issues left for our consideration are whether the damages are excessive and whether they constitute punitive damages.

B. The Propriety of the Damage Awards.

Ordinarily, the trial court has wide discretion in awarding damages. Wakefield v. United States, 765 F.2d 55, 59 (5th Cir.1985) (citing Hyde v. Chevron U.S.A., Inc., 697 F.2d 614, 632 (5th Cir.1983)). A trial court's assessment of damages is a finding of fact, which we scrutinize under the clearly erroneous standard. Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1356 (5th Cir.1988) (citations omitted); Sosa v. M/V Lago Izabal, 736 F.2d 1028, 1035 (5th Cir.1984) (citations omitted). Although it is broad, the trial court's discretion is not boundless; the sky is not the limit for damage awards. Caldarera v. Eastern Airlines, 705 F.2d 778, 784 (5th Cir.1983). Unless we are willing to conclude that any verdict, in any amount, is a legally acceptable measure of damages, we must review damage awards. Wakefield, 765 F.2d at 59. We stated the test for determining whether a damage award is excessive in Caldarera:

"The jury's award is not to be disturbed unless it is entirely disproportionate to the injury sustained. We have expressed the extent of distortion that warrants intervention by requiring such awards to be so large as to 'shock the judicial conscience,' 'so gross or inordinately large as to be contrary to right reason,' so exaggerated as to indicate 'bias, passion, prejudice, corruption, or other improper motive,' or as 'clearly exceed[ing] that amount that any reasonable man could feel the claimant is entitled to.' "

Caldarera, 705 F.2d at 784 (footnotes omitted, emphasis in original).

The reassessment of damage awards is not an exact science; rather, it is inherently subjective, involving the interplay of experience, emotions and calculation. Id. Although our determination is, by its nature, subjective, we do conduct our analysis within an objective frame of reference: damage awards in similar cases. We have stated that comparing damage awards in similar cases is helpful in determining whether a particular award is excessive. Wakefield, 765 F.2d at 59 (citing Haley v. Pan Am. World Airways, 746 F.2d 311, 318 (5th Cir.1984); Ferrero v. United States, 603 F.2d 510, 514-15 n. 1 (...