United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 18, 2006
______________________
No. 05-30701 Charles R. Fulbruge III
Clerk
______________________
JOANN WAGGONER
Plaintiff-Appellant
versus
UNITED STATES OF AMERICA
Defendant-Appellee
___________________________________________________
Appeal from the United States District Court for
the Western District of Louisiana
(01-CV-2472
___________________________________________________
Before SMITH, BARKSDALE, AND DENNIS, Circuit Judges.
PER CURIAM:1
Plaintiff, Joann Waggoner, appeals the district court’s
decision in her suit under the Federal Torts Claim Act, 28 U.S.C.
§ 1346(b), in which she alleged that malpractice by the Veterans
Affairs Hospital (“VA”) in Alexandria, Louisiana.
Mrs. Waggoner challenges the district court’s decision that
Plaintiff failed to show her entitlement to relief because she had
not sufficiently established that the staff of the Alexandria VA
breached a relevant standard of care. She argues that the district
1
Pursuant to 5th Cir. R. 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this opinion should not be published and is not precedent except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 5th Cir. R. 47.5.4.
1
court erred in its evaluation of the facts.2 Because the district
court did not clearly err in evaluating the facts relevant to
determining breach of a relevant standard of care, we affirm the
district court’s decision.
BACKGROUND
Wilmer Waggoner suffered from multiple medical conditions; in
addition to cardiovascular problems, elevated triglycerides and
moderately elevated cholesterol, and carotid vascular disease, he
had chronic obstructive pulmonary disease, a history of
gastroesophageal reflux disease, and degenerative joint disease
centering on his cervical and lumbar spine. Until his death, he
smoked two packs of cigarettes a day.
In May 1992, he underwent a catheterization at the Rapides
Regional Medical Center. In August 1992, he became a patient at
the VA. He was notified of appointments by letter, including those
rescheduling of cancelled appointments. In September of that year,
he complained of chest pain during a visit. As a result, he was
admitted to the VA in February 1993 and given a thallium stress
test, which was negative for ischemia (lack of blood flow and
oxygen to the heart muscle). At the time, he was advised of the
2
Mrs. Waggoner also argues that, in relying on Hemingway v.
Ochsner Clinic, 722 F.2d 1220 (5th Cir. 1984), the district court
applied the wrong standard of proof on the question of causation in
fact, resulting in a flawed analysis of the evidence. As the trial
court actually ruled that Mrs. Waggoner had not met her burden in
proving a breach of a relevant standard of care, this argument will
not avail her here.
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need to follow a low-sodium, low-cholesterol diet. His discharge
summary indicated that Mr. Waggoner suffered from arteriosclerotic
heart disease (also called coronary artery disease) with angina
pectoralis.
Mr. Waggoner returned to the VA that August, where he
underwent ultrasounds that revealed blockage in his arteries. He
was referred to the cardiology clinic, but was not seen there
until late March 1994 due to cancellations by both VA (of a
December appointment) and Mr. Waggoner (of an early March
appointment). During the late March visit, he indicated he had not
experienced chest pain in the preceding month, and that
nitroglycerin had alleviated his prior chest pain. In November he
was admitted to the VA having suffered a transient ischemic
attack, and was diagnosed with further blockages in his carotids.
That same month, he had a carotid endarterectomy; he underwent a
second in January 1995. By July 1995, bruits (noises in the
vascular system indicating impeded arteries) had returned.
In January 1996, Mr. Waggoner returned to the VA complaining
of chest pain. He underwent a stress test, which revealed a left
bundle branch block (“LBBB”). On April 11, 1996, Mr. Waggoner
returned to the VA for a flu appointment, at which time he
complained of angina. During that visit, the VA cancelled Mr.
Waggoner’s scheduled stress test, because the presence of an LBBB
makes regular stress tests much less useful in identifying
ischemia. The VA scheduled a thallium stress test for July 25,
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1996, but Mr. Waggoner cancelled the test. On August 16, 1996, Mr.
Waggoner went to the VA complaining of back pain and continued
angina that was relieved by nitroglycerin. The treating physician,
Dr. Mondal, suggested that Mr. Waggoner admit himself to the
hospital for further tests, but Mr. Waggoner refused admission,
indicating he would return for admission on August 21. In fact,
Mr. Waggoner did not appear for admission until August 26.
During that hospitalization, Mr. Waggoner told his doctors
that his chest pain had been worsening for the last year, and had
occurred daily for the last two weeks. A thallium stress test was
prescribed, but not performed, for reasons not explained in the
record. Instead, a regular stress was administered, but terminated
due to leg fatigue. Dr. Mondal ordered 24-hour telemetry during
the hospitalization; Mr. Waggoner would leave the ward to smoke,
carrying him out of range of the monitor.
Mr. Waggoner went back to the VA on September 30, indicating
that his chest pain had been reduced; Dr. Mondal’s notes indicated
a thallium stress test should be scheduled. None was scheduled
until March 5, 1997 but the record does not indicate whether the
VA or Mr. Waggoner is responsible. Mr. Waggoner did not appear for
the March 5 test, nor for a subsequent April 4 clinic appointment.
He next returned to the VA on May 5, 1997, at which time a
thallium stress test was scheduled for May 20.
The results of that test indicated that his coronary artery
disease had worsened, that he suffered from ischemia, and that he
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had a permanent defect on the heart wall. Dr. Mondal accordingly
ordered a battery of tests, scheduled for June 3, 1997 and then
rescheduled for June 17. Mr. Waggoner did not appear for the first
appointment and cancelled the second; the tests were not
rescheduled.
On September 3, 1997, Mr. Waggoner arrived at the VA
complaining of chest pain. Dr. Mondal referred Mr. Waggoner to the
cardiology clinic, and informed Mr. Waggoner that he could be
admitted for more tests, but the patient declined. On November 14,
1997, Mr. Waggoner once again returned to the VA complaining of
chest pain that radiated across his chest and that was alleviated
by nitroglycerin. When told that Mr. Waggoner had not yet been
seen by a cardiologist, Dr. Mondal requested he be seen by a
cardiologist within the “next week or so” and instructed Mr.
Waggoner to call if not given an appointment in the next two
weeks. Although the appointment was not scheduled until December
16, 1997, Mr. Waggoner never contacted Dr. Mondal.
During Mr. Waggoner’s course of treatment at the VA, his
lipid levels were tested. His cholesterol ranged from 197 to 295,
falling frequently within the 200-240 range, which was described
at trial as “moderate risk”. His triglyceride levels ranged
between 300 and 500. He received no medication for hyperlipidemia,
but was instructed to change to a low cholesterol/low sodium diet,
to exercise and to stop smoking. At trial, defendant’s expert
witness testified that it was not a breach of the standard of care
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to treat Mr. Waggoner with diet and exercise rather than with
medication, given the severe side effects of such drugs.
Plaintiff’s experts both testified that, in their opinion, Mr.
Waggoner should have been medicated, but did not indicate that
medication was the only means by which hyperlipidemia could be
treated.
On December 13, 1997, Mr. Waggoner suffered a heart attack.
He died on January 4, 1998. The cause of death was described as
respiratory failure, congestive heart failure, myocardial
infarction, and coronary heart disease.
Mrs. Waggoner filed suit on November 2001, which was
initially dismissed for lack of jurisdiction. On appeal, this
court reversed and reinstated the action, which then went to a
bench trial on April 13, 2005. The district court rendered
judgment for the United States, awarding appellant nothing. She
timely filed a notice of appeal.
STANDARD OF REVIEW
Challenged factual findings “shall not be set aside unless
clearly erroneous.” Fed. R. Civ. P. 52(a); see also Dickerson ex
rel Dickerson v. United States, 380 F.3d 470, 474 (“The standard
of review for factual determinations in a FTCA case is whether the
district court's findings are clearly erroneous.” (citing Low v.
United States, 795 F.2d 466, 470 (5th Cir.1986); Ferrero v. United
6
States, 603 F.2d 510, 512 (5th Cir.1979)). Findings are clearly
erroneous when “after reviewing the entire evidence, the Court is
left with the definite and firm conviction that a mistake has been
committed.” Dickerson, 380 F.3d at 474 (citing Ferrero, 603 F.2d
at 512).
THE FEDERAL TORTS CLAIM ACT (“FTCA”)
Under the FTCA, the United States is liable for those
personal injuries “caused by the negligent or wrongful act or
omission of any employee of the Government.” 28 U.S.C. § 1346(b).
This court extends liability to the United States under the FTCA
just as we would to a private individual in a similar situation;
accordingly, we follow state law in determining that liability.
Richards v. United States, 369 U.S.1, 82 S. Ct. 585 (1962);
Charles v. Louisiana, 15 F.3d 400, 402 (5th Cir. 1994); see also,
28 U.S.C. § 2674.
According to Louisiana law, the plaintiff in a medical
malpractice action has the burden of proving: 1) the relevant
standard of care in that community under similar circumstances; 2)
a breach of that standard of care by defendant; and 3) causation.
See LA. REV. STAT. ANN. § 9:2794; Martin v. East Jefferson General
Hospital, 582 So.2d 1272, 1276 (La. 1991).
ANALYSIS
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Mrs. Waggoner alleges error on the trial court’s
determination of three issues: 1) whether plaintiff established
that the applicable standard of care required the VA physicians to
medicate Mr. Waggoner for hyperlipidemia; 2) whether plaintiff
established a breach of a standard of care because the thallium
stress test prescribed in April 1996 was not performed until May
1999; and 3) whether plaintiff established a breach of a standard
of care because Mr. Waggoner was not given a cardiac
catheterization after the results of his May 1997 thallium stress
test were known. We address each issue in turn.
1. Mr. Waggoner’s Hyperlipidemia
On appeal, Mrs. Waggoner’s arguments focus on whether or not
Mr. Waggoner complied with the prescribed low-cholesterol, low-
sodium diet, and on whether medicating him for hperlipidemia would
have prevented his heart attack. The trial court’s actual ruling,
however, is that “[p]laintiff has failed to establish that the
applicable standard of care required Alexandria VA physicians to
medicate Mr. Waggoner for his hyperlipidemia.”
The evidence introduced on this point comes from competing
expert witnesses. Plaintiff’s experts urged that Mr. Waggoner’s
physicians should have put him on medication for his
triglycerides, but did not claim that medication was the only
means. Defendants’ witness, by contrast, argued that in the 1990s,
dietary changes were a prevalent treatment for elevated
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triglycerides. The record further indicates that Mr. Waggoner’s
overall cholesterol frequently tested in only the “moderate risk”
range, and that lipid-reducing drugs can carry serious side
effects. Based on this evidence, we cannot say that the district
court committed clear error in concluding that plaintiffs did not
establish that the standard of care in Alexandria, LA, for a
patient with Mr. Waggoner’s characteristics required the VA to
place Mr. Waggoner on medication for his hyperlipidemia.
2. The Delay in Thallium Testing
Mrs. Waggoner’s next argument is that the trial court
accorded too much weight to Mr. Waggoner’s failure to appear for
or schedule appointments in determining that the delay in
obtaining a thallium stress test was not due to the VA’s
negligence. In support, she cites to delays and cancellations by
the VA, namely: the cancellation of the December 1994 cardiology
appointment; a two year delay between the March 29, 1994
cardiology clinic visit and the April 24, 1996 stress test; a
failure to administer a thallium stress test during his August
1996 hospitalization; cancellation of a regular stress test
scheduled for February 19, 1997; and further delay in scheduling a
thallium stress test until May 20, 1997.
The district court also had before it, however, evidence
indicating that Mr. Waggoner had missed appointments for thallium
tests scheduled for July 25, 1996 (three months after the test had
9
been ordered) and March 1, 1997. Further, the record notes that a
thallium test was ordered during Mr. Waggoner’s August 1996
hospitalization, but the request changed to a regular stress test.
No explanation is given for the change, but the district court
noted that Mr. Waggoner arrived for his August stay without giving
notice of his arrival (and, indeed, he had failed to arrive for
his scheduled admission on August 21, 1996). “Given this,” the
district court notes, “it is just as likely that the necessary
equipment or personnel were not available at that time.” On the
balance of the above evidence, it was not clearly erroneous to
determine that the VA’s negligence was not responsible for the
delay in obtaining a stress test. We are not left with a definite
and firm conviction that the district court’s interpretation of
the evidence is mistaken. See Anderson v. City of Bessemer City,
N.C., 470 U.S. 573-5 (1985). It is not for us to disturb that
court’s factual findings where the district court’s conclusion is
plausible, as it is here. See Bartmess v. Federal Crop Ins. Corp.,
845 F.2d 1258, 1262 (5th Cir. 1988).
3. Failure to Order a Cardiac Catheterization
Mrs. Waggoner’s final argument contends that the VA was
negligent in failing to give Mr. Waggoner a cardiac catheterzation
or other treatment for his coronary artery disease after the
results of the May 1997 thallium stress test revealed that his
coronary artery disease had worsened, identified his ischemia, and
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found a permanent defect in the heart wall. She challenges Dr.
Mondal’s decision to perform more tests to confirm the diagnosis,
and that his characterization of Mr. Waggoner’s medical condition
did not “lead [Mr. Waggoner] to be overly concerned about his
health.” She also challenges the doctor’s action after the
September 3 and November 14, 1997 visits, which, respectively,
constituted a referral to the cardiology clinic and a decision to
increase his medication, but not to order further testing.
The district court, however, also had evidence that indicated
that Mr. Waggoner, who was complaining of chest pain and had been
told that his coronary condition had worsened, missed both of the
testing appointments scheduled in June 1997 that were meant to
provide his doctors with additional information for treatment.
When he returned to the VA in September, he was referred to the
cardiology clinic, but declined to be admitted for more testing at
that time. When Mr. Waggoner returned again in November, Dr.
Mondal told Mr. Waggoner that he needed to make the cardiology
appointment within two weeks, and to call if the appointment could
not be scheduled within that time frame. Although the appointment
was ultimately scheduled for December 16, 1997, Mr. Waggoner never
contacted Dr. Mondal. Again, we find the record provides ample
support for the court’s finding that Mr. Waggoner’s lack of
treatment for with coronary artery disease is not the result of
the VA’s negligence, and must, therefore, affirm the trial court
on this issue.
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CONCLUSIONS
Based on the record before us, we cannot say the district
court clearly erred in evaluating the facts before it in
determining that Mrs. Waggoner had not met her burden of proof
regarding a breach of a relevant standard of care on the issues
above. The judgement of the district court is therefore AFFIRMED.
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