Hollis v. United States

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 01-51035

WENDELL HOLLIS, Individually and as next friend
of Mariana Hollis, a minor child; PATRICIA HOLLIS,
Individually and as next friend of Mariana Hollis,
a minor child,

Plaintiffs-Appellants,

versus

United States of America,

Defendant-Appellee.

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Appeal from the United States District Court
for the Western District of Texas
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March 3, 2003

Before JONES, SMITH and SILER*, Circuit Judges.

By EDITH H. JONES, Circuit Judge:

No satisfactory excuse can be made for the district

court’s delay of over twelve years in entering findings of fact and

conclusions of law after a bench trial. Having carefully reviewed

the record, however, we are convinced that the judge’s

determinations not only are unassailable on appeal but represent

the most plausible analysis of the conflicting expert testimony at

*
Judge of the United States Court of Appeals for the Sixth
Circuit, sitting by designation.
the heart of this Federal Tort Claims Act (FTCA) case. The

judgment is affirmed.

BACKGROUND

On October 9, 1985, Wendell and Patricia Hollis, next

friends of their daughter Mariana Hollis, filed suit for damages

pursuant to the FTCA alleging that following Mariana’s premature

birth at the William Beaumont Army Medical Center (WBAMC), in

Texas, she received insufficient and negligent medical care, which

rendered her blind. A bench trial began on January 30, 1989, and

concluded on February 1, 1989. The parties submitted post-trial

briefs. There was no further activity until the court rendered

judgment more than 12 years later in favor of the defendant.

The district court made the following relevant findings

of fact and conclusions of law: At the time of the events from

which the claim arose, Wendell Hollis was an Army officer stationed

at Fort Bliss, Texas. On February 2, 1984, his wife Patricia

Hollis gave birth to a “very premature” daughter, Mariana, at WBAMC

in El Paso, Texas. Mariana weighed roughly one pound five ounces

at birth (590 grams), and her chances for survival were “very

uncertain.” While hospitalized, Mariana was monitored and treated

for diseases and conditions to which premature infants are subject,

particularly lung problems and Retinopathy of Prematurity (ROP),

the latter of which gave rise to the instant lawsuit. Suffering

ROP is recognized as a risk of premature infants, particularly

those like Mariana, who weigh less than 750 grams at birth. Many

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premature infants are also born with respiratory problems, which

require the use of supplemental oxygen. It was known at the time

of Mariana’s birth that the use of supplemental oxygen increased

the risk that the infant would develop ROP. Once ROP developed, it

progressed in stages. If the ROP was detected by examination at an

early stage, and if the health of the infant permitted, the use of

supplemental oxygen could be discontinued. Regardless whether the

condition was detected and/or whether the use of oxygen was

discontinued, a certain percentage of ROP cases regressed naturally

and spontaneously. At ROP’s stage five, the retina would

completely detach, and the infant would be rendered blind in that

eye. At the time of Mariana’s birth, a surgical procedure called

a vitrectomy existed to reattach the retina; however, the success

rate was not high.

When Mariana was approximately seven weeks old, an ROP

examination was conducted, and the results were negative.

Thereafter, Mariana continued to breathe with the assistance of

supplemental oxygen. Roughly six weeks later, when she was 13

weeks old, a second ROP examination was performed. This time, ROP

was discovered, with detachment of the retina in both eyes.

Mariana was thereafter seen by specialists and underwent a

vitrectomy to attempt to reattach the retina of one eye; however,

the surgery was unsuccessful, and Mariana sustained total and

permanent loss of vision.

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 The plaintiffs contended that the physicians at WBAMC

failed to obtain their informed consent to the use of oxygen to

help Mariana breathe. The district court determined under Texas

law that the plaintiffs failed to prove a lack of informed consent,

because Wendell Hollis testified that doctors did inform him that

the use of oxygen could cause Mariana’s eyes to suffer retinal

detachment and, although the doctors never used the word “blind,”

the consent which was obtained after this warning was sufficiently

informed. The district court further concluded that any lack of

informed consent was not the proximate cause of the damage

suffered, because Mariana had such severe respiratory problems that

withholding oxygen was not a viable option, as the alternative was

probably death.

The court found that a more difficult issue raised by the

plaintiffs was whether the timing and frequency of the ROP

examinations fell below the requisite standard of care. The court

recognized that the plaintiffs’ experts contended that waiting six

weeks to make a second ROP examination fell below the standard of

care applicable in 1984. The court, however, made the following

findings and concluded that the timing of the follow-up examination

did not fall below the applicable standard of care and, further,

that the timing of the follow-up examination could not be

established as the proximate cause of Mariana’s blindness: (1) in

1984, the medical profession recognized that a certain percentage

of premature babies would fall victim to ROP and that, in a certain

4
percentage of those cases, detached retinas would occur; (2) cases

of ROP were found even in premature babies who were not on

supplemental oxygen; (3) many premature babies using supplemental

oxygen did not fall victim to ROP; (4) at the time of Mariana’s

birth, neither the American Academy of Pediatrics nor the Academy

of Ophthalmologists had adopted a standard calling for the frequent

examinations advocated by plaintiffs’ experts--the Academy of

Ophthalmologists advocated the examination of a premature infant

before discharge and follow-ups of those showing signs of ROP, and

the Pediatric Academy called for examinations before discharge and

follow-ups every three to six months thereafter; (5) it was

impossible to tell from the medical evidence in Mariana’s case when

the ROP process began or when it reached the stage of retinal

detachment; therefore, whether an exam conducted within three weeks

of the first exam, as was advocated by plaintiffs’ experts, would

have disclosed commencement of the ROP process was speculation; and

(6) the alternative treatments (cryotherapy, scleral buckling, and

Vitamin E therapy) which the plaintiffs argued could have been

provided had the ROP been diagnosed prior to stage five were

experimental and controversial, and whether Mariana’s doctors would

have recommended them and whether her parents would have consented

were pure speculation.

The court therefore determined that the plaintiffs had

not established that the physicians’ treatment fell below the

applicable standard of care as it existed in 1984 and, further,

5
that assuming arguendo the physicians had been negligent, the

plaintiffs had failed to show that the negligence was a proximate

cause of Mariana’s blindness. The court thus rendered judgment in

favor of the government. The plaintiffs filed a timely notice of

appeal.

DISCUSSION

On appeal of this judgment rendered after a bench trial,

findings of fact are reviewed for clear error, and legal issues are

reviewed de novo. Kona Tech. Corp. v. Southern Pac. Transp. Co.,

225 F.3d 595, 601 (5th Cir. 2000).

The United States is liable for its torts if a private

person would be liable for the same act or omission under local

laws. 28 U.S.C. § 1346(b). Under the FTCA, liability for medical

malpractice is controlled by state law, the law of Texas in this

case. Ayers v. United States, 750 F.2d 449, 452 n.1 (5th Cir.

1985); see also Urbach v. United States, 869 F.2d 829, 831 (5th

Cir. 1989).

I. Informed Consent

Appellants initially complain that the district court

“disregard[ed]” the consent issue because its reasons for judgment

dealt only with the issue of oxygen, and nowhere did the court

discuss the withholding of treatment for the emerging ROP and the

failure to inform them of the alternative treatments available.

With regard to the issues of withholding treatment for

the emerging ROP or informing the parents of what treatments were

6
available, Appellants have failed to demonstrate that these

allegations sustain a cause of action for failure to obtain

informed consent. At trial, the plaintiffs argued that if a

therapy other than a vitrectomy had been available at stage three

of the ROP, the doctors were required to inform them of that

alternative treatment, and, in turn, the plaintiffs would then have

had the opportunity to give the necessary informed consent; thus,

the doctors’ omissions caused a lack of informed consent. The

definitive response to these contentions was, however, pointed out

by the district court: Mariana’s disease was not discovered at

stage three. Plaintiffs’ purely hypothetical argument is not

viable in light of the fact that Mariana’s ROP was not discovered

until stage five.

Moreover, the district court did address the availability

of alternative treatments in the context of the allegations of

malpractice. The court noted that the plaintiffs’ experts

contended that had the ROP been discovered in its early stages,

other therapies existed which promised a chance for success. The

court, however, found that these treatments were “experimental” and

“controversial.” Consequently, it was speculative whether they

would have in fact been recommended or consented to by the parents.

Appellants do not challenge this finding. The district court did

not ignore the informed consent issue.

On the question of informed consent for Mariana’s oxygen

treatment, the duty of a physician to fully inform a patient of the

7
risks of medical care is governed by Texas’s Medical Liability and

Insurance Improvement Act, TEX. REV. CIV. STAT. ANN. art. 4590i

(Vernon Supp. 2002). The Act states in pertinent part:

In a suit against a physician or health care provider
involving a health care liability claim that is based on
the failure of the physician or health care provider to
disclose or adequately to disclose the risks and hazards
involved in the medical care or surgical procedure
rendered by the physician or health care provider, the
only theory on which recovery may be obtained is that of
negligence in failing to disclose the risks or hazards
that could have influenced a reasonable person in making
a decision to give or withhold consent.

TEX. REV. CIV. STAT. ANN. art. 4590i, § 6.02 (Vernon Supp. 2002).

In a negligence cause of action for the failure fully to inform a

patient of risks attendant to a medical procedure, the plaintiff

must establish (a) the existence of a duty, (b) the breach of that

duty, (c) that the failure to obtain informed consent was a

proximate cause of the injury, and (d) damages. McKinley v.

Stripling, 763 S.W.2d 407, 409-10 (Tex. 1989). The causation

inquiry is an objective one: whether a reasonable person would have

refused the procedure had he been fully informed of all inherent

risks which would influence his decision. Id. at 410. The

plaintiff must additionally establish that he was injured by the

occurrence of the risk of which he was not informed. Greene v.

Thiet, 846 S.W.2d 26, 30 (Tex. App. – San Antonio 1992, writ

denied).

8
 Appellants argue that the evidence showed that the

defendants did not inform them of the nature of ROP; that Mariana

was at high risk for ROP; that there was a known relationship

between the detachment of retinas and the level of supplemental

oxygen used and the length of time the child received supplemental

oxygen; and that no informed consent was obtained.1 Appellants

further assert that the defendants were under a duty to disclose

all risks of oxygen therapy that could have influenced a reasonable

person in making a decision to consent to the procedure. They do

not argue, however, that a reasonable person knowing all the risks

would have refused oxygen treatment. They also fail to show error

in the district court’s express finding that both parents were

aware that the administration of oxygen to Mariana carried a

heightened risk of ROP. Moreover, Appellants do not address other

than conclusionally the district court’s causation determination--

that any alleged failure to obtain informed consent was not the

proximate cause of Mariana’s blindness, because the withholding of

oxygen was simply not a viable option, as death was the likely

alternative.

1
Appellants further argue that the district court erred when
it determined that it could not apply the informed consent cause
of action to a situation where no operative procedure was
performed, because, they argue, the duty to disclose risks and
hazards applies to the giving of any medical care. The
government correctly points out, however, that this proposition
is not found anywhere in, nor can it be inferred from, the
district court’s reasons for judgment.

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 Appellants also cite Hall v. Birchfield, 718 S.W.2d 313

(Tex. App. – Texarkana 1986), rev’d, 747 S.W.2d 361 (Tex. 1987),

for the proposition that a failure to obtain informed consent for

supplemental oxygen treatment proximately caused a premature

infant’s ROP, but Hall is distinguishable for several reasons. The

jury there rejected the doctors’ argument that the child would have

died had she not received oxygen in favor of the parents’ position

that, although the infant had had some problems initially, she was

not a sick infant who required the continued use of oxygen.2

Significantly, the infant was kept on oxygen for an extended

period, even though she had no signs indicating the need for

oxygen. 718 S.W.2d at 333 n.7 & 334. Appellants do not contest

the district court’s observation that Mariana had such severe

respiratory problems that the withholding of supplemental oxygen

was not a viable option.

Further, Appellants’ assertion, which was acknowledged by

the district court, that there was a known relationship between the

detachment of retinas and the use of supplemental oxygen is simply

insufficient to establish causation. See McKinley, 763 S.W.2d at

410; Greene, 846 S.W.2d at 30. Appellants are required to

establish based on the evidence presented that, understanding the

risk of developing ROP, a reasonable person would have rejected

supplemental oxygen treatment and that ROP would not have developed

2
The infant at issue in Hall weighed two pounds seven
ounces at birth. 718 S.W.2d at 318.

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but for the administration of supplemental oxygen. The Appellants

did not carry their burden of proof.

II. Standard of Medical Care

A plaintiff in a Texas medical malpractice action must

prove four elements to establish liability: “(1) a duty owed by

the defendant to the plaintiff, (2) a breach of that duty, (3)

actual injury to [the] plaintiff, and (4) . . . [proof that] the

breach [was] a proximate cause of the injury.” Urbach, 869 F.2d at

831. A physician has a duty to render care to a patient with the

degree of ordinary prudence and skill exercised by physicians of

similar training and experience in the same or similar community

under the same or similar circumstances. Speer v. United States,

512 F. Supp. 670, 675 (N.D. Tex. 1981), aff’d on basis of district

court’s opinion, 675 F.2d 100 (5th Cir. 1982). Texas tort law

“places the burden of proof on the plaintiff to establish by expert

testimony that the act or omission of the defendant physician fell

below the appropriate standard of care and was negligent.”

Rodriguez v. Pacificare of Tex., Inc., 980 F.2d 1014, 1020 (5th

Cir. 1993).

Appellants complain that in determining the applicable

standard of care, the district court ignored the testimony of

Mariana’s treating physicians in the following respects: (1) Dr.

Rowe testified that the local standard at WBAMC was to re-examine

the infant for ROP four weeks after the initial evaluation; (2) Dr.

Halverson, a pediatric neurologist, testified that the standard

11
follow-up exam at her hospital was conducted every three weeks and

as often as every day; and (3) Dr. Alverson, a neonatologist,

testified that to meet the standard of care, the follow-up exam

should have been done at one to four weeks, or more frequently if

necessary, and that in his hospital, examinations occur weekly.

Appellants’ characterization of the testimony of these

witnesses is inaccurate. The actual testimony by these witnesses

is as follows:

Dr. Rowe testified that she was doing her internship in

pediatrics at WBAMC when Mariana was born. She further testified

that the standard at WBAMC at the time of Mariana’s birth was to

test premature infants for ROP at six to eight weeks of age and

that the timing of the follow-up exam was left to the discretion of

the ophthalmologist. Contrary to the Appellants’ assertions, she

did not testify that it was the acceptable medical standard at

WBAMC to conduct a follow-up ROP exam at four weeks. She instead

testified that she was unsure when the follow-up exam was typically

conducted at WBAMC at the time of Mariana’s birth, but believed it

was conducted “a little before discharge,” which was when Mariana’s

follow-up exam was conducted. She further testified that as for

the applicable standard of care, she would defer to the

ophthalmologist as to how often an ROP exam should be conducted;

nevertheless, she felt “comfortable” conducting the follow-up exam

at discharge as opposed to four weeks after the initial exam.

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 Dr. Halverson, at the time of her deposition, was the

Director of Child Rehabilitation at Santa Clara Valley Medical

Center and did not treat Mariana Hollis. It is unclear why the

Appellants argue that the district court erred in not considering

her testimony as a treating physician. Nevertheless, her testimony

does not support Appellants’ position. Dr. Halverson responded to

the question “what is the hospital policy [at Santa Clara Valley

Medical Center] about evaluating [premature neonates on oxygen]?”

as follows:

It’s my understanding, although I am not directly
involved in formulating this ophthalmology policy, that
it’s about every three weeks. If children are showing
problems, it’s more frequent than that, on the basis of
the ophthalmologist’s need to examine the patient and
follow up.

In regard to the question regarding what the policy was

for a high-risk premature nenoate for an ophthalmological

examination, Dr. Halverson responded:

I don’t know that there’s a standard policy on that. I
do know the ophthalmologists will see my patients almost
every day and they are not neonoates, if there is a need
for the ophthalmologist to do so. I assume its in the
ophthalmologist’s degree of concern.

Dr. Halverson acknowledged that her area of expertise concerned

rehabilitative medicine costs for Mariana and that she would defer

opinions on the ophthalmological standards of care to an

ophthalmologist who treated children like Mariana.

Dr. Alverson was also not one of Mariana’s treating

physicians. At the time of his deposition, he was a faculty member

13
of the University of New Mexico Medical School in the areas of

pediatrics and neonatology. He testified that with an infant as

premature as Mariana, the first ROP examination should be conducted

between six and eight weeks postpartum. Dr. Alverson further

testified that the timing of repeat exams would be left to the

discretion of the ophthalmologist, which might be as often as once

a week or every two weeks, but which could be deferred for three to

four weeks. Alverson testified that at his hospital, any

subsequent ROP exams

would depend on [the ophthalmologist’s] findings and his
decision on when he thinks the next exam would be
optimal. [The ophthalmologist] would not necessarily
examine every infant that has been identified at risk
every week. It would depend on the findings of his prior
exam.

In sum, Drs. Rowe and Halverson testified that they would

defer a determination on the applicable standard of care for

follow-up ROP exams to an ophthalmologist. The district court did

not err in not considering their testimony on this issue.

Insofar as Appellants assert that the district court

ignored Dr. Alverson’s testimony that a follow-up exam should have

been conducted between three to four weeks after the initial test,

his opinion was consistent with the expert ophthalmological

testimony that the district court recognized as representative of

the plaintiffs’ position on the applicable standard of care. The

court cited Drs. Kenneth Fox and Melvin Burt, who testified that

Mariana’s second exam should have taken place within three weeks of

14
the first exam. Thus, Appellants have not shown that the district

court erred in failing expressly to mention Dr. Alverson’s

testimony.

Appellants’ root complaint about the court’s finding on

the standard of care is that the court credited, over their

witnesses, the government’s expert witnesses, the publications of

prominent specialty organizations, and even admissions by witnesses

for the Appellants that no agreed protocol existed in 1984 for

follow-up ophthalmological exams to detect ROP. Appellants’ brief

does nothing to undermine the solid basis in the record for the

district court’s finding.

We also point out, though the government’s brief did not

do so, that Appellants do not challenge the district court’s

determination that, since it is unknown when the ROP developed and

at what point in Mariana’s treatment it reached stage five, it was

impossible to determine whether testing performed one, two, or

three weeks after the first examination would have disclosed the

commencement of the ROP process. Appellants could not prove

proximate cause even if they had shown a violation of the standard

of care.

III. Due Process

Appellants’ last contention is that the district court,

in waiting nearly 13 years to issue its opinion, misapplied

important facts and failed to consider others, rendering review on

appeal nearly impossible. Pursuant to Keller v. United States, 38

15
F.3d 16 (1st Cir. 1994), they urge this court to review the entire

record de novo, taking the place of the trial court. We decline

the invitation, but we have reviewed the record with extra care.

In the context of a five-month delay between trial and

judgment, this court held that if there was affirmative evidence

that the trier of fact had prejudiced the complaining party by

abusing its discretionary powers in handling the case, we would

order a new trial. Ciccarello v. Graham, 296 F.2d 858, 860 (5th

Cir. 1961). While a 12-year delay is certainly more egregious than

the one at issue in Ciccarello, the Appellants have nonetheless not

successfully pointed out any misstatement of fact made by the

district court as a result of the delay or any legal issue the

court forgot to address, nor have they shown that the admittedly

substantial delay prejudiced them. Appellants express concern over

the district court’s ability to analyze the case when the

transcript was completed after it entered findings and conclusions.

The problem was not fatal, however, because most of the expert

testimony was offered in deposition form readily available for the

court’s review. Again, there is no showing of any factual or legal

errors by the district court. We cannot help but think that while

the district court’s unexplained delay – even in the face of a

growing criminal caseload – is inexcusable, plaintiffs’ counsel

also bears a heavy responsibility for never having uttered a word

to the trial court or this court seeking a ruling. The delay did

not legally prejudice Appellants.

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 CONCLUSION

For the foregoing reasons, the Appellants have failed to

demonstrate error in the district court’s judgment or reversible

error attributable to the court’s delay.

AFFIRMED.

17