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
2
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.
3
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.
9
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.
10
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.
12
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.
16
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