In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2756
M AURICE G IPSON,
Plaintiff-Appellant,
v.
U NITED S TATES OF A MERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 2:08-cv-137-LJM-JMS—Larry J. McKinney, Judge.
S UBMITTED N OVEMBER 30, 2010—D ECIDED JANUARY 26, 2011
Before E ASTERBROOK, Chief Judge, and P OSNER and
W OOD , Circuit Judges.
P OSNER, Circuit Judge. Maurice Gipson, an inmate of
a federal prison in Indiana, brought suit under the
Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80,
complaining about complications of neck surgery
because the prison’s medical staff had disregarded a
medical directive that he be told to stop taking blood
thinners at least five days before the operation. The
district court granted summary judgment in favor of the
2 No. 09-2756
government because Gipson had failed to submit a
medical expert’s opinion that in disregarding the direc-
tive the prison’s medical staff had violated the ap-
plicable standard of care.
When a medical exam revealed that Gipson’s com-
plaints of pain, numbness, and tingling were caused by
spinal disc disease, the prison’s medical staff directed
him to take a 325 milligram aspirin tablet every day.
Eventually it was decided that he should have spinal
fusion surgery, and it was scheduled to be performed at
a hospital outside the prison on June 28, 2006. A health
company that helps the prison staff arrange for medical
treatments outside the prison twice notified the prison’s
medical staff in writing to “stop all blood thinners” for
Gipson five days before the operation. That is standard
procedure in advance of an operation. Aspirin is a signifi-
cant blood thinner as well as a painkiller. (When taken as
a blood thinner to reduce the risk of a heart attack or
stroke, the standard dosage is 81 milligrams; the higher
dosage that Gipson took was to relieve his pain but
probably did not increase the thinning effect that an
81 mg. pill would have produced. Charles L. Campbell
et al., “Aspirin Dose for the Prevention of Cardiovascular
Disease,” 297 J. Am. Med. Ass’n 2018, 2019-20 (2007).)
But no one told Gipson to stop taking his daily aspirin, so
he continued (or so at least he contends) taking it. And
no one warned the hospital that he was taking a blood
thinner. He suffered serious complications during his
surgery as a result of internal bleeding, and there is
evidence that the bleeding was caused by his aspirin
usage and that the complications would in all likelihood
No. 09-2756 3
have been avoided, or at least have been less serious,
had he stopped taking aspirin at least five days before
the operation.
Since the mishap occurred in Indiana and Gipson’s
suit is under the Federal Tort Claims Act, an essential
question is whether “the United States, if a private
person, would be liable to [Gipson] in accordance with
the law of the place where the act or omission occurred,”
28 U.S.C. § 1346(b)(1), which is to say the law of Indiana.
Indiana’s common law of medical malpractice requires
a plaintiff to present expert evidence of the applicable
standard of medical care unless the defendant’s conduct
is “understandable without extensive technical input” or
“so obviously substandard that one need not possess
medical expertise to recognize the breach.” Narducci v.
Tedrow, 736 N.E.2d 1288, 1293 (Ind. App. 2000); see also
Harris v. Raymond, 715 N.E.2d 388, 394 (Ind. 1999);
Culbertson v. Mernitz, 602 N.E.2d 98, 104 (Ind. 1992);
Musser v. Gentiva Health Services, 356 F.3d 751, 760 (7th
Cir. 2004) (Indiana law).
Does the Indiana rule apply to this case? Cases such
as Arpin v. United States, 521 F.3d 769, 776 (7th Cir. 2008);
Midwest Knitting Mills, Inc. v. United States, 950 F.2d
1295, 1298 (7th Cir. 1991); Pacheco v. United States, 220 F.3d
1126, 1129 (9th Cir. 2000), and Kazanoff v. United States,
945 F.2d 32, 35 n. 3 (2d Cir. 1991), suggest that “law of
the place” means “substantive” law in the same sense
in which the word is used in deciding whether a
federal court in a diversity case should apply local law
or federal law. The considerations are different, however.
4 No. 09-2756
Concern with forum shopping—a concern that favors
interpreting “substantive” broadly in diversity cases—is
absent from cases under the Federal Tort Claims Act.
Such cases can be brought only in federal court—the
plaintiff has no choice of forum. Still, it would make
no sense to interpret “law of the place” in which the
alleged tort occurred to incorporate the state’s entire
procedural code—a move that would involve a whole-
sale preemption of the Federal Rules of Civil Procedure,
an aim not plausibly attributable to the Federal Tort
Claims Act. But a state procedural rule that is in no
wise inconsistent with any federal procedural rule, that
is specific to a particular area of substantive law, and
that is shaped by concerns with particular features of
that area of law, should govern a tort case that is in
federal court solely because of the defendant’s identity,
and specifically because of concern that a state court, in
a contest between a resident and the federal govern-
ment, might be strongly inclined to favor the resident.
Carter v. United States, 982 F.2d 1141, 1143-44 (7th Cir.
1992); see Lozada v. United States, 974 F.2d 986, 988 (8th Cir.
1992); Owen v. United States, 935 F.2d 734, 736-37 (5th
Cir. 1991). It would be odd as well as arbitrary if in a
malpractice case filed under the Federal Tort Claims
Act but identical to a malpractice case filed in an Indiana
state court and governed by Indiana law, the plaintiff
could ask the jury to speculate on the medical standard
of care without the aid of expert testimony even if the
standard was highly technical, or, equally, if the plain-
tiff would lose for want of an expert witness even if
the breach of the standard of care would be obvious to
the most modest, untrained intelligence.
No. 09-2756 5
Even if we insisted on a sharp line between substance
and procedure in conforming federal tort claim actions
to state suits, the Indiana rule would govern this case.
“A substantive law is one motivated by a desire to in-
fluence conduct outside the litigation process, such as
a desire to deter accidents, while a procedural law is one
motivated by a desire to reduce the cost or increase
the accuracy of the litigation process, regardless of the
substantive basis of the particular litigation. If an ostensi-
bly procedural rule of state law is confined to a par-
ticular substantive area of law, this suggests that it proba-
bly was motivated by substantive concerns and there-
fore should be applied by the federal court in a case
governed by state law.” Gacek v. American Airlines, Inc., 614
F.3d 298, 302 (7th Cir. 2010) (citations omitted). We held
in Murrey v. United States, 73 F.3d 1448, 1456 (7th Cir.
1996), that an Illinois rule similar to the Indiana rule at
issue in this case was “ ‘substantive’ and thus part of the
Illinois law of medical malpractice . . . because it is a rule
limited to a particular area of law and motivated by
concerns about the potential impact on primary
behavior (here, medical treatment) of making it too easy
for plaintiffs to win a particular type of case. (On the
general principle, see S.A. Healy Co. v. Milwaukee Metro-
politan Sewerage District, 60 F.3d 305, 310 (7th Cir. 1995),
and for its application to state laws erecting procedural
barriers to medical malpractice plaintiffs, see Jones v.
Griffith, 870 F.2d 1363, 1368 (7th Cir. 1989), and Hines v.
Elkhart General Hospital, 603 F.2d 646, 648 (7th Cir. 1979).).”
If it’s too easy for a plaintiff to prove malpractice, the
incentive of physicians and hospitals to engage in costly
defensive medicine will be increased.
6 No. 09-2756
That state law governing expert testimony in medical
malpractice cases is applicable to malpractice suits
under the Federal Tort Claims Act is an important princi-
ple. But probably nothing turns on its application to
this case, since federal courts as a matter of federal com-
mon law also dispense with expert testimony in a med-
ical malpractice case if no technical issues have to be
resolved to determine whether there was malpractice.
Gil v. Reed, 535 F.3d 551, 558 n. 2 (7th Cir. 2008); see
also Ledford v. Sullivan, 105 F.3d 354, 359-60 (7th Cir. 1997);
Blackmore v. Kalamazoo County, 390 F.3d 890, 899-900 (6th
Cir. 2004); cf. Wong v. Belmontes, 130 S. Ct. 383, 388 (2009);
Wyers v. Master Lock Co., 616 F.3d 1231, 1240 (Fed. Cir.
2010). Were it disputed whether blood thinners should
be stopped five days before an operation or one day or
two weeks, expert testimony would be necessary to
resolve the dispute because a layperson would be incap-
able of doing so without expert assistance. But it’s con-
ceded that five days was the minimum (for which, in-
cidentally, there is support in the medical literature—see
Ronan A. Cahill et al., “Duration of Increased Bleeding
Tendency After Cessation of Aspirin Therapy,” 200 J. Am.
College of Surgeons 564, 572 (2005)), so that the only
issue bearing on the standard of care is whether the
prison’s medical staff was required to tell Gipson that
aspirin is a blood thinner and that he had to stop taking
it at least five days before the operation or he might
suffer serious internal bleeding during the operation.
It doesn’t require medical knowledge to answer
“yes”—indisputably, the staff should have told him. Gil
v. Reed, supra, was a similar case, and see also Cox v. Paul,
No. 09-2756 7
828 N.E.2d 907 (Ind. 2005); Bader v. Johnson, 732
N.E.2d 1212, 1218 (Ind. 2000) (“if Healthcare Providers
did not provide the Johnsons with the result of the ultra-
sound, then Healthcare Providers breached its duty. It
does not appear to us that expert testimony is required
on this point”), and Harris v. Raymond, supra, 715 N.E.2d
at 394-95. The “yes” is so obvious in this case that
Gipson should have been able to move successfully for
partial summary judgment, establishing a breach of the
standard of care and leaving only issues of causation
and damages for further proceedings.
Of course, if the distinct and also critical issue of causa-
tion turns on the answers to technical questions, as it
might in this case since there can be other causes of
internal bleeding during an operation besides a blood
thinner, the need for expert evidence reoccurs. Nasser v.
St. Vincent Hospital & Health Services, 926 N.E.2d 43, 48
(Ind. App. 2010); Wallace v. McGlothan, 606 F.3d 410, 420
(7th Cir. 2010) (Indiana law). But Gipson presented
expert evidence of causation: the surgeon who operated
on him opined that it was Gipson’s failing to discon-
tinue taking aspirin at least five days before the
surgery that caused the complications. That opinion is
contained in a medical report rather than a deposition
or affidavit, but the report is admissible. Fed. R. Evid.
803(6); Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir.
2008); United States v. Hall, 419 F.3d 980, 987 (9th Cir. 2005);
Sosna v. Binnington, 321 F.3d 742, 747 (8th Cir. 2003). The
government argues that Gipson ran out of aspirin more
than five days before his operation, but the evidence
is conflicting and the conflict unresolved.
8 No. 09-2756
The judgment is reversed and the case remanded for
further proceedings consistent with this opinion.
1-26-11