Woods v. U.S., 81-4609

• Citation: 720 F.2d 1451
• Decision Date: 15 December 1982
• Docket Number: No. 81-4609,81-4609
• Parties: Karen WOODS and Gary Woods, Plaintiffs-Appellants, v. UNITED STATES of America, Department of the Army, Letterman Army Medical Center, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1451

720 F.2d 1451

Karen WOODS and Gary Woods, Plaintiffs-Appellants, v. UNITED STATES of America, Department of the Army, Letterman

Army Medical Center, Defendants-Appellees.

No. 81-4609.

United States Court of Appeals, Ninth Circuit.

Argued Dec. 15, 1982.

Re-submitted Aug. 25, 1983.

Decided Nov. 28, 1983.

Charles D. Maurer, Jr., Maurer, Higginbotham & Harris, San Francisco, Cal., for plaintiffs-appellants.

John F. Barg, Asst. U.S. Atty., Richard S. Gilardi, San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before WALLACE and FERGUSON, Circuit Judges, and GRANT, ^* Senior District Judge.

GRANT, Senior District Judge:

Plaintiffs, in this malpractice action against the United States, ¹ allege personal injuries and mental pain and suffering sustained by Karen Woods as a result of the alleged negligent administration of a cervical myelogram during which the physicians negligently failed to aspirate all of the contrast medium (Pantopaque) used, and the residual Pantopaque is alleged to have resulted in brain damage.

The defendant denied any negligence whatsoever and denied that any negligence proximately caused injury to the plaintiffs.

The District Court had subject matter jurisdiction under the Federal Tort Claims Act (28 U.S.C. Secs. 1346(b) and 2671 et seq.) and jurisdiction on this appeal is provided by 28 U.S.C. Sec. 1291. The parties consented to trial before a Magistrate pursuant to 28 U.S.C. Sec. 636(c), and this case proceeded to trial to the court without a jury pursuant to 28 U.S.C. Sec. 2402.

Following trial to the Court, Magistrate Langford entered his Memorandum Decision containing extensive findings of fact and conclusions of law, among which were the following:

Considering all of the evidence and testimony the Court finds that the Plaintiffs have failed to prove by a preponderance of the evidence that there was any negligence in the administration of the cervical myelogram to Karen Woods. The Court finds as a matter of fact that said myelogram was expertly performed, free of negligence and within the required medical standard of care.

The Court further finds that the Plaintiffs have failed to establish by a preponderance of the evidence that intracranial Pantopaque can cause organic seizures or epilepsy.

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The Court further finds that the weight of the evidence presented establishes that there is no medical evidence that intracranial Pantopaque can cause or result in organic seizures or epilepsy. Accordingly, the Court further finds that there was no professional negligence in failing to advise Karen Woods that one of the risks of the myelographic procedure was the possibility of organic seizures subsequently occurring.

(Magistrate's Memorandum Decision, p. 15, 16). The lower court's findings should be allowed to stand unless clearly erroneous. Fed.R.Civ.P. 52(a).

Plaintiffs offered the testimony of three doctors, one of whom suggested that retained Pantopaque could have caused seizures. Two other doctors testified that they accepted that theory but plaintiffs failed to provide any empirical evidence to show that such hypothesis was anything more than a theory. Following a review of the record, we hold that the Court's finding that plaintiffs had failed to prove that intracranial Pantopaque caused or can cause or result in organic seizures was not clearly erroneous. Since plaintiffs have failed to prove that the use of Pantopaque, or the manner in which the Pantopaque was administered, was the proximate cause of any damages sustained, we need not address the issue of informed consent concerning any such possible side effects from its use.

The Applicability of Section 2680(h) of the Federal Tort Claims Act

Mrs. Woods also seeks damages allegedly sustained when Dr. Lee, a medical resident, finding her behaving in a bizarre manner, decided to use "shock therapy" to determine whether her "episode" was organic or psychogenic. He "grabbed her around the neck" and shouted profanities at her. The Magistrate's decision states:

Several of the doctors who testified during the course of the trial testified, without exception, that they did not believe Dr. Lee's actons [sic] to be within the acceptable bounds of propriety insofar as treating such a patient.

(Magistrate's Memorandum Decision, p. 27). Magistrate Langford concluded that these acts constituted an assault and battery ² within the scope of 28 U.S.C. Sec. 2680(h) and were thus barred by the doctrine of sovereign immunity.

The Eighth Circuit, in Moos v. United States, 225 F.2d 705 (8th Cir.1955), was faced with a challenge to Federal Tort Claims Act jurisdiction in a case wherein the surgeon had mistakenly operated on the patient's wrong leg. That Court held that that action was barred as an assault and battery within the meaning of Section 2680(h).

However, we believe that the better view is expressed in Lane v. United States, 225 F.Supp. 850 (E.D.Va.1964). That case provides a thorough analysis of Section 2680(h) and of its legislative history. In the case before us, Dr. Lee testified that he did not use the "shock therapy" procedure to abuse Mrs. Woods, and that he had used this same therapy on other patients. Thus, in Dr. Lee's mind, what he was doing was diagnostic and a form of treatment to see if he could determine whether Karen Woods' seizures were organic or psychogenic. We adhere to the holding in Lane that where, as here, there was no intentional wrongful act on the part of Dr. Lee, Section 2680(h) is inapplicable. See Lane at p. 853.

Judge Hoffman's opinion in Lane has been quoted with approval in Fontenelle v. United States, 327 F.Supp. 801 (S.D.N.Y.1971) wherein that Court stated:

While neither Moos nor Lane are applicable to this case since the plaintiff consented to a particular type of surgery which was performed on the indicated part of his anatomy, the court agrees with Lane that unless there was an intentional wrongful act on the part of the surgeon, the operation did not constitute an assault and battery on the plaintiff.

Another Court, in Hernandez v. United States, 465 F.Supp. 1071, 1074 (D.Kan.1979), in discussing the Moos and Lane cases, had reason to say:

The Lane view is generally recognized as the more reasonable approach.

See also Jablonski by Pahls v. United States, 712 F.2d 391 at 395 (9th Cir.1983 (as amended)). There, Judge Wallace stated: "Meghan's [plaintiff's] suit is based on the negligence of government employees that...