UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-30691
Summary Calendar
STERLING HEBERT, CHERYL HEBERT,
TODD HEBERT and JODY HEBERT,
Plaintiffs-Appellants,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
For the Eastern District of Louisiana
(CA-92-3356 “L”)
December 16, 1996
Before POLITZ, Chief Judge, DUHÉ and STEWART, Circuit Judges.
POLITZ, Chief Judge:*
Sterling Hebert and his wife and children appeal the district court’s judgment
in favor of the United States in this medical malpractice action. For the reasons
assigned, we vacate and remand.
*
Pursuant to Local Rule 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in Local Rule
47.5.4.
Background
In March of 1991 Hebert sought the services of Richard A. Morvant, M.D.,
an orthopedic surgeon, for treatment of knee pain. Determining that the reported
pain was a result of arthritis, Dr. Morvant prescribed Voltaren, an anti-
inflammatory drug. During the next several weeks Hebert experienced a worsening
of the pain in his elbows, wrists, and shoulders, and he went to see his family
physician, John W. Magee, M.D., who ordered, inter alia, a creatinine test to
measure his renal function and a chest x-ray. Hebert’s creatinine level, l.3, was
within the normal range; the x-ray disclosed, however, a possible mass on his lung.
Dr. Magee advised Hebert that additional testing was needed. Hebert went to the
Veterans Administration Medical Center in New Orleans, Louisiana on April 10,
1991 and was examined by Edward D. Mathews, M.D., an internist, who ordered
several tests. The results of those tests, performed the following day, showed that
Hebert’s creatinine level was 2.2, which is abnormal, and the x-ray showed a
possible tumor in his left lung. Dr. Mathews then ordered a CT scan to be
performed on the next available date. The test was scheduled for May 25, 1991.
Dr. Mathews planned to retest Hebert’s creatinine level at the same time that the
CT scan was performed.
In order to obtain the CT scan sooner, Hebert went to the South Louisiana
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Medical Center in Houma, Louisiana on April 18, 1991, where a CT scan was
scheduled for a few days later. The next day, April 19, 1991, Hebert collapsed in
his home and his family took him to the emergency room at Thibodaux General
Hospital. Laboratory tests there revealed that Hebert’s creatinine level was 10.8.
The attending physician, Stephen Harris, M.D., diagnosed acute renal failure and
arranged for his immediate transfer to Ocshner Hospital in New Orleans. Upon
arrival at Ocshner, Hebert’s creatinine level was 11.1. John Copley, M.D., the
attending physician at Ocshner, confirmed that Hebert was suffering from renal
failure.
The instant action, under the Federal Torts Claims Act, was filed against the
United States as owner and operator of the Veterans Administration Medical Center
in New Orleans, alleging that the VA failed to diagnose timely Hebert’s renal
disease which lessened his chances of avoiding permanent renal failure. After
conducting a bench trial, the district court issued findings of facts and conclusions
of law holding that the scheduling of the CT scan and follow-up lab tests more than
six weeks after referral to the VA fell below the acceptable standard of medical
care, but that Hebert had failed to prove causation. The Heberts timely appealed.
Analysis
We review the district court’s findings of fact for clear error and its legal
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conclusions de novo.1 Clear error exists when we are left with the definite and firm
conviction that a mistake has been made.2 Actions under the FTCA are determined
in accordance with the law of the place where the act or omission occurred.3 Under
Louisiana law, a medical malpractice plaintiff’s burden is two-fold: “The plaintiff
must first establish by a preponderance of the evidence that the doctor’s treatment
fell below the ordinary standard of care expected of physicians in his medical
specialty, and must then establish a causal relationship between the alleged
negligent treatment and the injury sustained.”4 Both determinations are questions
of fact.5
Under Louisiana’s “loss-of-chance” doctrine a plaintiff must prove that he
lost a chance of recovery6 and that the defendant’s conduct was a substantial factor
in causing the loss of that chance.7 The district court held that the defendant’s
1
Seal v. Knorpp, 957 F.2d 1230 (5th Cir. 1992).
2
Burlington Northern R.R. v. Office of Inspector Gen., R.R. Retirement Bd., 983 F.2d
631 (5th Cir. 1993).
3
28 U.S.C. § 1346(b).
4
Martin v. East Jefferson Gen. Hosp., 582 So.2d 1272, 1276 (La. 1991).
5
Id.; see also Broussard v. United States, 989 F.2d 171 (5th Cir. 1993).
6
Smith v. State, 676 So.2d 543 (La. 1996).
7
Ruff v. Bossier Medical Center, 952 F.2d 138 (5th Cir. 1992); Smith v. State, 523
So.2d 815 (La. 1988).
4
actions fell below the relevant standard of care. The court found, however, that the
plaintiff had “failed to establish a causal relationship between the defendant’s
negligence and their injuries.” In reaching this conclusion, the district court relied
on the testimony of defense witnesses who testified that the defendant’s failure to
order a CT scan and additional tests in a timely manner did not cause the renal
failure. While this evidence adequately supports a finding that a breach of the
standard of care did not cause the renal failure, it does not support a finding that the
breach of the standard of care found by the district court did not cause the loss of
a chance of recovery, or a chance to limit the adverse effects of the renal failure.
The evidence compels a contrary finding. The record reflects that there was
no disagreement that Hebert lost a significant chance of recovery. Ronald J.
Falk, M.D., one of the plaintiff’s expert witnesses, testified that Hebert lost a
chance of recovery, i.e., maintaining some renal function, due to the delay in
diagnosis and treatment. Two of the government’s expert witnesses agreed.
Dr. O’Donovan stated that if Hebert had received treatment at the time he was seen
at the VA he would have had a better chance of avoiding renal failure.
Dr. Rodriguez testified that Hebert’s chance of avoiding permanent renal failure
would have been better if the diagnosis had been made earlier.
The district court failed to make the relevant finding about the standard of
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care, that is, whether the defendant breached the standard of care by failing to order
follow-up tests, and begin treatment, prior to Hebert’s renal failure. The district
court’s finding regarding causation inappropriately focuses on the cause of the
renal failure rather than on the inquiry whether a breach of the standard of care
caused a recoverable loss of chance of avoiding the extent of renal failure.
Accordingly, we must VACATE and REMAND for the determination whether the
failure to retest Hebert’s creatinine level and perform a CT scan timely and prior
to his renal failure was a breach of the standard of care, and whether that breach
caused a loss of chance of recovery and, if so, the damages for the injury sustained.
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