Sanchez v. United States

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals
For the First Circuit

No. 04-1733

JUAN R. SANCHEZ,

Plaintiff, Appellant,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Torruella, Lipez, and Howard, Circuit Judges.

Javier A. Morales Ramos with whom Juan F. Matos Bonet, was on
brief, for appellant.
Lisa E. Bhatia-Gautier, Assistant United States Attorney, with
whom H.S. Garcia, United States Attorney and Miguel A. Fernandez,
Assistant United States Attorney, were on brief, for appellee.

June 3, 2005
 Per Curiam. After a bench trial, the district court

entered judgment for the United States on Dr. Juan R. Sánchez

Infante's claim under the Federal Tort Claims Act ("FTCA"), 28

U.S.C. § 2671 et seq., that certain Veteran's Administration ("VA")

physicians negligently failed to review his MRI, to discuss the MRI

results with him, and to prescribe an anticoagulant therapy that

would have averted his 1994 stroke. Sánchez appeals and we affirm.

I.

We present a brief overview of the case, saving a more

detailed recitation for our analysis. The following facts are

undisputed.

Sánchez began work at the San Juan Veterans

Administration Medical Center as a pathologist in 1991. During his

required physical examination, he was diagnosed with diabetes

mellitus type II, and placed on Glucotrol to control his elevated

blood sugar. Sánchez was 5'2" tall and weighed between 190 and 210

pounds during the relevant time period. He did not exercise, had

a poor diet and a family history of cardiac problems, and drank

socially nearly every day. Sánchez also worked long hours at the

hospital and characterized his duties as stressful. His medical

records from 1991 to 1994 show three blood pressure readings (one

normal and two borderline hypertensive by 1994 standards) and

consistent difficulties in controlling his blood sugar.

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 In early 1994, one of Sánchez's colleagues, Dr. Angel

Noriega, noticed that Sánchez was falling asleep during the day,

and, fearing that Sánchez was suffering from sleep apnea,1 arranged

for an evaluation. Part of the evaluation consisted of a March 7,

1994 polysomnography,2 which revealed a significant number of apnea

episodes during the test period. Noriega also sent Sánchez for a

magnetic resonance imagining ("MRI") study, to check for brain

lesions indicative of a particularly serious form of sleep apnea.

On March 22, 1994, Sánchez had the MRI, which showed no brain

lesions and was essentially normal. However, the MRI report

included the notation: "Multiple hyperintense focci are seen within

the periventricular white matter suggestive of deep white matter

ischemic3 changes. Please, correlate clinically." The medical

records do not indicate whether Sánchez's physicians ever acted

upon the MRI or discussed it with him. Nonetheless, Sánchez was

successfully treated for his sleep apnea condition.

On August 31, 1994, Sánchez suffered a cerebrovascular

accident ("CVA"), a "stroke" in common parlance. The stroke left

1
A serious condition in which an individual stops breathing
while asleep. See Dorland's Illustrated Medical Dictionary 115-6
(30th ed. 2003).
2
A diagnostic test for sleep disorders that monitors the
patient's relevant physiological functions while he is asleep. See
Dorland's Illustrated Medical Dictionary 1485 (30th ed. 2003).
3
Indicating deficiency in blood flow. See Dorland's
Illustrated Medical Dictionary 954 (30th ed. 2003).

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him with significant paralysis of the right side of his body, which

has required him to walk with a cane or braces and learn to perform

his duties as a pathologist with his left hand. The stroke has

also caused emotional disturbances and depression. Sánchez was

placed on anticoagulant therapy immediately after the stroke. In

the following years, Sánchez suffered from a host of other health

problems, including two subsequent CVAs, and has been regularly

treated by VA physicians. Sánchez claims that, upon requesting his

medical records for a 1999 procedure, he learned of the 1994 MRI

report for the first time.

Sánchez filed his administrative claim in December 2000,

and, after it was denied, he filed this action in the district

court on April 17, 2002. As noted, he alleged that the treating VA

physicians failed to review the MRI, to discuss the MRI with him,

and to provide proper treatment to avert the stroke that he would

suffer five months later. The government moved to dismiss on

grounds of lack of jurisdiction, arguing that Sánchez failed to

file his administrative claim within two years of his 1994 stroke.

The court denied the motion because, on the pleading record, there

was no indication that Sánchez was aware of the alleged malpractice

until he saw the MRI report in October 1999. See generally

Gonzalez v. United States, 284 F.3d 281, 288-89 (1st Cir.

2002)(discovery rule tolls running of statute of limitations

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applicable to the filing of the administrative claim that is a

prerequisite to an FTCA action).

Six witnesses testified at the bench trial: Sánchez; his

medical expert, Dr. Angel Román Franco; two psychiatrists; the

original treating physician, Dr. Noriega; and the government's

expert, Dr. Antonio Alvarez Berdecía. The gist of Sánchez's claim

was that if he had been placed upon anticoagulants after the 1994

MRI, he would not have suffered his stroke.

Dr. Román, a pathologist for the University of Puerto

Rico Medical School, testified that there would have been a good

chance of avoiding the stroke if Sánchez had been placed on

anticoagulants (such as aspirin) at the time of the MRI. Román

emphasized Sánchez's apnea, which significantly increased his heart

rate and blood pressure, and resulted in oxygen deprivation to his

brain that caused "cell death" (as revealed by the ischemic changes

in the brain shown in the MRI). Román asserted that the white

matter changes shown in the MRI were indicative of "mini strokes"

that had already occurred and were harbingers of a larger stroke to

come if not prevented with anticoagulant therapy. Román further

testified that Sánchez's other risk factors beyond apnea were

essentially inconsequential, as his diabetes mellitus had only been

present for a short time (as evidenced by his normal kidney

functions), his high blood pressure was only marginal and of recent

onset, and he had normal cholesterol and triglyceride levels.

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 Sánchez testified at length about his experiences,

medical treatment, level of disability, and rehabilitation. He

stated that he never inquired about the results of the MRI because

he had complete confidence in his colleagues. He also stated that

he could not have reviewed his own medical records, as that was

strictly forbidden by the hospital.

Dr. Noriega,4 a board certified neurologist, testified

that, while he could not specifically recall speaking with Sánchez

about the MRI, it was standard hospital practice to discuss test

results with patients, and no less so if they were also colleagues.

He further testified that he would never have begun Sánchez's sleep

apnea treatment without reviewing all test results and discussing

them with Sánchez. He also stated that all VA physicians have

access to all medical records, including their own, and that, on

one occasion, Sánchez brought his own medical records to Noriega.

He also testified that the phrase "correlate clinically" on the MRI

report meant to relate the radiological findings to any actual

physical manifestations in the patient. He stated that Sánchez had

no symptoms –- no evidence of "little strokes" -- so there was

nothing to treat. He further testified that nothing could have

4
Noriega had retired from his duties at the VA Hospital some
years before, and neither side had arranged for his testimony.
Mid-trial, the district judge decided that his testimony was
critical and ordered the parties to bring him in as a witness.

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been done to prevent this type of stroke, and that he would not

have prescribed aspirin out of a fear of hemorrhage.

Dr. Alvarez, a board certified neurologist, testified

that Sánchez's stroke was occasioned by small vessel disease that

was primarily caused by Sánchez's hypertension and diabetes.5 He

noted that the negative effects of diabetes and hypertension were

additive, with hypertension being the primary culprit for such

strokes in 70% of the cases. He further testified that Sánchez's

hypertension and diabetes were longstanding, as evidenced by

Sánchez's left ventricular hypertrophy and diabetic retinopathy.

Alvarez testified that the white matter lesions on the

MRI were only just beginning to be noted in 1994, and that their

meaning is still the subject of debate today. He was adamant that

the white matter changes were not "strokes," and that there was no

real treatment available, in 1994 or at present, other than to

control the major risk factors – hypertension, diabetes, and

obesity. As to risk factor management, Alvarez noted that Sánchez

appeared to take poor care of himself, noting his failure to

control his blood sugar, to follow a diet, and to monitor his blood

pressure. As to anticoagulant therapy, Alvarez emphasized that

there was no evidence that aspirin or other anticoagulants were

5
He also noted Sánchez's other risk factors –- obesity, poor
diet, lack of exercise, family history of heart problems, and
alcohol use.

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effective in the primary prevention6 of strokes. Indeed, he

asserted that the primary efficacy of such anticoagulants was in

secondary prevention of strokes. Further, he noted that aspirin

increased the risk of hemorrhagic strokes, which were typically

worse than ischemic strokes. Moreover, he stated that

anticoagulants would not have helped Sánchez because his stroke was

not caused by a clot. In support of this opinion, he observed that

an echocardiogram from the time of the stroke showed no embolic

source from the heart and normal blood flow in Sánchez's large

arteries. Alvarez also noted that Sánchez showed continued

evidence of CVAs even while he was on anticoagulants after his

first stroke.

The district court issued a memorandum order dismissing

the action as a "no-liability" case. See Sanchez v. United States,

No. 02-1590 (D.P.R. Apr. 12, 2004). Relying largely on Noriega's

testimony, the court concluded that Sánchez was made aware of the

MRI results at the time of his treatment for sleep apnea and had

access to his own medical records. Id. at 6. The court also

credited the testimony of Alvarez, accepting his conclusions that

the white matter lesions on the MRI were secondary to small vessel

disease brought about by Sánchez's hypertension and diabetes. Id.

6
The experts distinguished between primary prevention, which
they defined as efforts to prevent the initial stroke, and
secondary prevention, which they defined as efforts to prevent
additional strokes.

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at 6-11. The court found that the VA physicians did not violate

any standard of care, Sánchez did nothing to control his risk

factors, and anticoagulants would not have been beneficial in

preventing Sánchez's stroke (but might have made it worse). Id.

As to Román, the district court praised his credentials, but,

referring to his prior experience with him in other cases, deemed

his testimony unacceptable "Monday-morning quarterbacking" that

ignored this case's factual realities. Id. at 11-12.

II.

A district court's findings after a bench trial "shall

not be set aside unless clearly erroneous, and due regard shall be

given to the opportunity of the trial court to judge of the

credibility of the witnesses." Fed. R. Civ. P. 52(a). A finding is

only clearly erroneous if a review of the entire record leads to a

definite and firm conviction that an error has been made. See

Primus v. United States, 389 F.3d 231, 237 (1st Cir. 2004). "When

the proof supports plausible but competing inferences, the trier's

choice cannot be clearly erroneous." Cape Fear, Inc. v. Martin,

312 F.3d 496, 500 (1st Cir. 2002)(internal citation and quotation

omitted). "That the evidence also might support a contrary finding

is often the inevitable reality when cases present difficult

factual questions; it is not, however, a basis for reversal." Id.

at 502. Further, a district court's credibility determinations are

only clearly erroneous when they are "based on testimony that was

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inherently implausible, internally inconsistent, or critically

impeached." Mitchell v. United States, 141 F.3d 8, 17 (1st Cir.

1998).

In an action under the FTCA, the state law where the

alleged tort occurred provides the standard of liability.

Mitchell, 141 F.3d at 13. To establish a case of medical

malpractice under Puerto Rico law, a plaintiff must prove "(1) the

duty owed (i.e., the minimum standard of professional knowledge and

skill required in the relevant circumstances), (2) an act or

omission transgressing that duty, and (3) a sufficient causal nexus

between the breach and the claimed harm." Cortes-Irizarry v.

Corporacion Insular De Seguros, 111 F.3d 184, 189 (1st Cir. 1997).

Puerto Rico law presumes that a treating physician observes a

reasonable standard of care in treating a patient, so a plaintiff

has the burden of refuting this presumption. Rolon-Alvarado v.

Municipality of San Juan, 1 F.3d 74,78 (1st Cir. 1993).

Although Sánchez asserts a host of overlapping errors by

the district court, his claims boil down to two significant issues:

(1) whether the court erred in concluding that Sánchez knew about

the MRI report in 1994; and (2) whether the court erred in

concluding that the failure to discuss the MRI with Sánchez and to

prescribe anticoagulant therapy was not the cause of the stroke.

We note at the outset that Sánchez is climbing a steep

hill. We must view the record as a whole, so that even if there is

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some evidence supporting Sánchez's contentions, we will still

affirm if there is evidence supporting the contrary view. See Cape

Fear, Inc., 312 F.3d at 500.

We first consider Sánchez's challenge to the district

court's conclusion that Sánchez was aware of his MRI results in

1994. Noriega testified that the standard VA hospital practice was

to discuss test results with patients,7 Sánchez had access to his

medical records, and Noriega would not have ordered treatment for

Sánchez's apnea without discussing all test results with him.

While Sánchez argues the truism that testimony regarding "standard

practice" must yield to actual events in a specific case, standard

practice evidence is nonetheless relevant and properly considered.

See generally Fed. R. Evid. 406. The contrary evidence was the

absence of notations in the medical record, which Román conceded

could occur by mistake, and Sánchez's testimony that the MRI was

not discussed with him, which the district court deemed not

credible. We cannot fault the district court for doubting

Sánchez's account. First, Sánchez's claimed indifference to his

test results is at best surprising. Alvarez testified that most

physician "patients" are very demanding about test results and tend

to read the MRI with the radiologist as soon as it is produced.

Second, Sánchez produced no evidence regarding the claimed hospital

7
Sánchez, Román, and Alvarez all confirmed this VA hospital
practice in the course of their own testimony.

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policy that a VA physician cannot review his own medical records.

Third, Sánchez's claim as to this policy was undercut by evidence

that he regularly returned his medical file to the records room and

could obtain copies of his records as he wished. Finally, there is

nothing innately suspicious about Noriega's inability to remember

a specific discussion about a specific MRI a decade after the fact.

In sum, the district court's conclusion is not clearly erroneous.8

The district court's conclusions regarding causation of

the stroke and possible preventive treatment implicate the experts'

differing views. As set forth above, Alvarez and Román disagreed

on the relative importance of Sánchez's diabetes and hypertension.

They also disagreed on the significance of the white matter changes

in the MRI and the appropriateness and likely efficacy of

anticoagulant therapy.9

8
At oral argument, Sánchez asserted that the record was
unclear as to the district court's ultimate finding regarding when
Sánchez saw his MRI. Sánchez maintains that the court's conclusion
in the memorandum order after the trial that he knew of his MRI
results in 1994 is in hopeless conflict with the district court's
prior conclusion that he did not see the MRI until 1999 in its
order denying the government's motion to dismiss. But the court's
initial assessment of the pleadings must of course give way to its
factual findings after a full trial on the merits.
9
Sánchez's contention that the district court inappropriately
minimized the relationship between Sánchez's sleep apnea and the
stroke is a nonstarter. Both sides agree that he was successfully
treated for apnea in 1994. Further, if apnea was a factor in the
stroke, the blame would appear to fall on Sánchez, as he conceded
that he failed to follow the prescribed therapy prior to his
stroke.

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 Sánchez claims that he was not hypertensive (or only

marginally so), and that his diabetes was of too recent an onset to

have factored in his stroke. This thesis is based upon the few

blood pressure readings for the relevant period in the record10 and

the 1991 diagnosis of diabetes mellitus. But Sánchez's argument

ignores the balance of the evidence. First, as to hypertension,

Alvarez testified, without significant challenge, that Sánchez had

left ventricular hypertrophy, a condition that can only exist with

longstanding hypertension. The fact that Sánchez might not have

been definitively diagnosed with hypertension does not mean that he

did not have it. Second, Sánchez himself conceded that, in 1994,

he was aware that he had untreated hypertension. Third, his

argument that his blood pressure was merely "borderline" (by 1994

standards) ignores the fact that both experts agreed that such

blood pressures were subsequently determined to be dangerously high

for diabetics.

As to diabetes, Sánchez ignores Alvarez's testimony that

Sánchez's diabetes retinopathy was indicative of longstanding

diabetes. While Sánchez attempted to undermine this conclusion by

pointing to test results showing normal kidney functions, Alvarez

testified, without significant contradiction, that some diabetics

have such results. The district court's choice between two

10
The doctors all agreed that one could not positively diagnose
hypertension from three scattered blood pressure readings.

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interpretations of the significance of Sánchez's diabetes, both

with record support, cannot be clear error. See Cape Fear, 312

F.3d at 500. Similarly, the district court's decision to credit

Alvarez's testimony over Román's regarding the significance of the

white matter changes in MRI, even if both experts' accounts had

support in the record, would not constitute clear error.11

As to the advisability of using anticoagulant therapy on

Sánchez, the balance of the evidence favors Alvarez's view. First,

Noriega supported Alvarez's conclusion that anticoagulants would

not have prevented a stroke of the type Sánchez suffered and would

have increased the risk of a hemorrhage. Second, Alvarez pointed

to an electrocardiogram at the time of the stroke, which supported

his view that a clot was not involved. Third, Sánchez and Román

conceded that Sánchez continued to have CVAs while on

anticoagulants. Finally, Román acknowledged that most of the

anticoagulant studies that he cited related to secondary rather

than primary prevention.

11
The district court did list hypercholesterolemia and
hypertriglyceridemia among the conditions that Román failed to
consider in rejecting Román's conclusions. Sánchez is correct that
Alvarez retreated from the conclusion in his initial report that
these maladies were additional contributors to the stroke and
acknowledged that most of the test results were normal. Thus, the
district court may have errantly included these secondary factors
based upon Alvarez's initial report. Nonetheless, Alvarez's thesis
was always that hypertension and diabetes were the primary causes,
and the district court supportably accepted this thesis, as
discussed above.

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 Moreover, there were other more general factors that

justified the decision to accord Román's conclusions less weight.

Román conceded that hypertension and diabetes were significant

factors in strokes, but did not even mention these matters in his

report. His testimony also failed to take into account significant

medical evidence, such as Sánchez's left ventricular hypertrophy

and diabetic retinopathy, which should at least have warranted a

comment. Román also conceded that he had no personal experience

managing patients with sleep apnea or CVAs. In sum, the district

court accepted Alvarez's assessment on both causation and course of

treatment, and our review reveals nothing about his testimony that

was implausible, inconsistent, or critically impeached.12 See

generally Mitchell, 141 F.3d at 17.

Sánchez faults the district court for concluding that he

was a careless person who took inadequate care of himself. But to

prevail, Sánchez needed to prove that the VA physicians were

negligent and that their negligence caused his injury. The

12
In addressing the district court's decision to credit
Alvarez's testimony over Román's, Sánchez suggests that the
district court showed an improper bias against Román by commenting
on other cases in which Román testified as an expert. We disagree.
Prior judicial exposure to an individual is not by itself enough to
establish bias, see United States v. Ayala, 289 F.3d 16, 27 (1st
Cir. 2002), and the weight accorded to the testimony of a physician
regarding an area outside his speciality can be adjusted
accordingly, see Mitchell, 141 F.3d at 15. The district judge
generally praised Román's credentials, and his criticism was far
less derogatory than other comments found not to amount to bias.
See, e.g., Malave-Felix v. Volvo Car Corp., 946 F.2d 967, 973 (1st
Cir. 1991)("come-for-hire expert" and "Mr. So and So").

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district court supportably concluded that Sánchez did not meet this

burden, so any comments made by the court as to the true cause of

Sánchez's unfortunate illness are largely beside the point.

III.

For the reasons stated above, the judgment of the

district court is affirmed.

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