United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
July 19, 2006
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 05-30197
____________
SAMUEL CLEVELAND, through his provisional curator, Bobbie
Jean Cleveland; BOBBIE JEAN CLEVELAND;
Plaintiffs - Appellants,
THERESA CLEVELAND
Appellant,
versus
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court
For the Western District of Louisiana
Before GARWOOD, DAVIS, and GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Samuel Cleveland, through his provisional curator, Bobbie Jean Cleveland (“Cleveland”),
appeals the district court’s ruling in favor of the United States on claims of medical malpractice,
brought under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346 et seq.1 Cleveland challenges
certain evidentiary rulings and the district court’s final determination that she failed to prove that the
defendant’s conduct fell below the requisite standard of care.
I
Samuel sought admission to the emergency room at the Bayne Jones Army Community
Hospital (“BJACH”), presenting with flu-like symptoms, a slightly elevated respiration rate, and a
medical history of diabetes. Samuel was first seen by a triage nurse, who took his medical history and
classified him as a “category four,” a low priority patient. Samuel did not indicate that he had a prior
history of serious medical conditions, including congestive heart failure, hypertension, and other
chronic conditions, nor did he state that he was currently taking medications. Physician assistant
George Eubanks (“Eubanks”) then examined Samuel and concluded that he did not need a chest x-ray
or other further tests. Eubanks diagnosed Samuel with an upper respiratory infection, bronchitis, and
sinusitis, and prescribed a variety of medications: Entex, Proventil, and Zithromax. He then
discharged him.
During the time Samuel was in the emergency room, Eubanks did not consult with an
attending physician. Furthermore, Eubanks did not review Samuel’s medical file, which contained
his full medical history, including his prior congestive heart failure, until one hour after his discharge.
After receiving and reviewing the file, Eubanks did not believe that the file indicated any reason to
call Samuel back into the ER.
Two days later, Samuel returned to the ER. He was diagnosed with pneumonia resulting from
1
Because Samuel Cleveland has passed away, his wife, Bobbie Jean Cleveland, brought
suit on his behalf. For clarity, we will refer to the Appellant as “Cleveland” and the decedent as
“Samuel.”
-2-
congestive heart failure. He eventually went into respiratory and cardiac arrest, became comatose,
and remained so until his death several years later. Samuel’s underlying condition of acute congestive
heart failure led to his incapacitation and eventual death.
Samuel’s wife brought suit against the United States under the FTCA, alleging medical
malpractice. Cleveland asserts that the employees of the BJACH, specifically physician assistant
Eubanks, failed to meet the requisite standard of care. She alleged that the employees of BJACH
misinterpreted her husband’s symptoms and thus misdiagnosed and mistreated the acute onset of
congestive heart failure. She contends that had her husband been properly examined and treated
when he was initially admitted to the emergency room, the doctors would have determined that he
was suffering from acute congestive heart failure and could have prevented his eventual deterioration.
To prove this failure, the expert witnesses who testified on Cleveland’s behalf focused on the actions
Eubanks took when diagnosing Samuel.
Wanda Poret (“Poret”), a certified legal nurse consultant, was prepared to testify on
Cleveland’s behalf that the BJACH employees deviated from the acceptable standard of care by
neglecting to take a chest film and failing to diagnose congestive heart failure. In her report, she
opined that had Samuel been treated for congestive heart failure on his initial visit, his subsequent
deterioration could have been prevented. The United States objected to her admission as an expert
witness, arguing that, as a nurse, she was not qualified to testify as to the standard of care owed by
physician assistant Eubanks. The district court excluded her testimony without a written
memorandum of reasons for the ruling.
Cleveland also proffered testimony by Dr. JayPiland (“Dr. Piland”), who treated Samuel when
he was transferred from the BJACH to the intensive care unit (“ICU”) of Rapides Regional Medical
-3-
Center after he slipped into a coma. Dr. Piland is an internist who does not currently work in an
emergency room setting.2 Dr. Piland’s testimony focused on Samuel’s health after he was admitted
to the ICU and on the medical conditions that resulted in Samuel’s coma. During the course of Dr.
Piland’s deposition, Cleveland’s attorney, over repeated objections by the United States, questioned
whether Samuel was given the proper care when initially admitted to the emergency room at BJACH.
Dr. Piland opined that when a patient presents with respiratory distress it is important to review a
patient’s full medical history so that the diagnosing physician is aware of any chronic conditions that
the patient may have because respiratory distress may signal more significant medical problems,
including congestive heart failure. He opined that in light of Samuel’s pre-existing chronic conditions,
which Eubanks would have learned from Samuel’s medical records, Eubanks should have run further
tests when Samuel presented with the upper respiratory infection, as his symptoms could have
signaled a more serious underlying condition. Dr. Piland cautioned, however, that in his opinion,
further testing would not necessarily have revealed the underlying heart failure.
Early in the bench trial, the United States moved to exclude Dr. Piland’s expert testimony
based on Cleveland’s failure to provide a report prepared by Dr. Piland pursuant to Federal Rule of
Civil Procedure 26(a)(2)(B). The district court denied that motion, concluding that because he was
a treating physician, Dr. Piland was excluded from the written report requirement. After Dr. Piland
gave his deposition testimony, the United States reurged the motion to exclude, arguing that Dr.
Piland was not qualified to testify as to the care and treatment of Samuel at the BJACH or to the
relevant standard of care, as he was an internist and not an emergency room physician. Applying
2
During his deposition, he stated that he was a “moonlighter” in an emergency room
during his residency, between 1994 and 1997.
-4-
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591 (1993), the district court
concluded that although Dr. Piland was qualified as an expert in internal medicine, his testimony went
beyond the scope of a treating physician and thus did not meet the Daubert test for reliability. The
district court thus excluded Dr. Piland’s testimony as to the standard of care in an emergency room.
Dr. Joe Rankin (“Dr. Rankin”), an expert in radiology, testified during his deposition about
x-rays taken of Samuel’s chest upon his second visit to the ER. Dr. Rankin had no role in Samuel’s
treatment. He stated that the chest x-rays indicated that Samuel’s heart was enlarged and showed
evidence of congested vasculature. Dr. Rankin testified that it was likely, judging from the size of
the heart, that it had been enlarged two days before the film was obtained, i.e., on the day of Samuel’s
initial visit to the ER. This condition could have signaled a serious underlying heart condition, such
as incipient heart failure. Cleveland’s attorney also asked whether it was customary for a patient with
a history of heart conditions to be x-rayed. Dr. Rankin answered that though he was not qualified
to offer an opinion as to when a physician should order x-rays, in his experience people with histories
of heart problems are x-rayed.
Cleveland also proffered an expert in internal medicine, Dr. Carlos Cuenca (“Dr. Cuenca”).3
Dr. Cuenca reviewed Samuel’s medical records for the purposes of testifying at trial, but had no part
in Samuel’s treatment. Dr. Cuenca opined that when an individual with a history of congestive heart
failure presents at the emergency room with an upper respiratory infection, that patient should have
a chest x-ray, as the respiratory distress could be a signal for further heart problems. Dr. Cuenca
3
During his deposition Dr. Cuenca noted that he had practiced emergency medicine for
one year in the early 1970s.
-5-
suggested that because Eubanks was unaware of Samuel’s full medical history, he failed to treat him
adequately. He concluded that more aggressive treatment at the time of Samuel’s initial visit to the
emergency room could have prevented the eventual respiratory and cardiac arrest.
During the depositions of both Dr. Cuenca and Dr. Rankin, the attorney for the United States
objected to questions that focused on the standard of care in an emergency room setting, stating that
neither had been admitted as experts in emergency care. No formal ruling as to the testimony of Drs.
Rankin and Cuenca was issued by the district court.
In its defense, the United States relied on the testimony of Dr. John McMillan (“Dr.
McMillan”), who reviewed Samuel’s medical file in preparation for testifying at trial. Dr. McMillan
had practiced emergency medicine for 18 years and was proffered as an expert in that field. He
concluded that physician assistant Eubanks did not deviate from the standard of care in an emergency
room. He gave his opinion that Eubanks was correct to conclude that Samuel had an upper
respiratory infection and treat him only for that condition. He disagreed with Cleveland’s experts’
opinions that a more extensive work-up should have been done, specifically rejecting the notion that
a chest x-ray was medically indicated, and concluded that the treatment given Samuel for the upper
respiratory infection was appropriate. Dr. McMillan also stated that it is not typical for the medical
records of patients to be available when treated in an emergency room and that Eubanks’ failure to
consult them prior to treating Samuel was not a deviation from the standard of care.
After a bench trial, the district court found in favor of the United States. The district court
first observed that Louisiana law requires that a plaintiff in a medical malpractice suit establish the
applicable standard of care, a breach of that standard, and the causal connection between the breach
and the injury. The district court further noted that if the relevant area of medicine is considered a
-6-
specialty, then the expert testimony must be from physicians with expertise in the specialty. The
district court concluded that because none of Cleveland’s witnesses were experts in the field of
emergency medicine, Cleveland had failed to adduce testimony from an expert as to the applicable
standard of care or a breach thereof. The district court noted that Drs. Rankin and Cuenca were not
experts in the field of emergency medicine and furthermore, did not attempt to establish what the
national standard of care was for specialists in the field of emergency medicine.
Cleveland appeals, protesting the district court’s exclusion of the testimony of nurse Poret and
Dr. Piland’s testimony as to the standard of care, as well as the district court’s decision not to credit
the testimony of Drs. Cuenca and Rankin. Cleveland also contests the district court’s ultimate finding
that she failed to carry the burden of proof.
II
The United States is immune from suits “save as it consents to be sued.” United States v.
Mitchell, 445 U.S. 535, 538 (1980). The Federal Tort Claims Act constitutes a waiver of sovereign
immunity. See 28 U.S.C. § 1346(b). “Under the Act, the United States is liable for the acts of its
employees only under circumstances where the United States, if a private person, would be liable to
the claimant in accordance with the law of the place where the act or omission occurred.” Sanchez
v. Rowe, 870 F.2d 291, 295 (5th Cir. 1989) (internal quotation omitted). Here, the BJACH is a
government entity and thus subject to the waiver of immunity under the FTCA. See Hayes v. United
States, 44 F.3d 377, 378 (5th Cir. 1995) (noting that the FTCA’s waiver of sovereign immunity is
generally applicable to the BJACH). State substantive law applies in suits brought under the FTCA,
Simon v. United States, 891 F.2d 1154, 1156 (5th Cir. 1990), and we apply the law of the state in
which the suit arises, Lucas v. United States, 807 F.2d 414, 417 (5th Cir. 1986). See also Hollis v.
-7-
United States, 323 F.3d 330, 334 (5th Cir. 2003) (“Under the FTCA, liability for medical malpractice
is controlled by state law. . . .”).
Under Louisiana law, the plaintiff in a medical malpractice suit has the burden of proving, by
a preponderance of the evidence:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily
exercised by physicians . . . licensed to practice in the state of Louisiana and actively
practicing in a similar community or locale and under similar circumstances; and
where the defendant practices in a particular specialty and where the alleged acts of
medical negligence raise issues peculiar to the particular medical specialty involved,
then the plaintiff has the burden of proving the degree of care ordinarily practiced by
physicians . . . within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use
reasonable care and diligence, along with his best judgment in the application of that
skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to
exercise this degree of care the plaintiff suffered injures that would not otherwise have
been incurred.
La. R.S. 9:2794. It is “generally necessary” to use an expert witness to prove a medical malpractice
claim. Broussard v. Andersson, 921 So.2d 128, 132 (La. Ct. App. 2005); see also Lindner v.
Hoffman, 894 So.2d 427, 431 (La. Ct. App. 2005) (stating the general rule that in order to establish
a claim of medical malpractice, the plaintiff “must demonstrate the degree of care ordinarily exercised
by a physician in a particular medical specialty”). Importantly, “[w]here the alleged acts of negligence
raise issues peculiar to the particular specialty involved, then only physicians in that specialty may
offer evidence of the applicable standard of care.” Id. In other words, to succeed in a medical
malpractice claim against a medical specialist, the plaintiff must offer testimony of the applicable
standard of care in the particular specialty of the allegedly negligent doctor and the proffered expert
must specialize in that peculiar field.
-8-
We review the district court’s decision to exclude expert testimony for an abuse of discretion.
United States v. Clements, 73 F.3d 1330, 1334 (5th Cir. 1996). If we determine that the district court
abused its discretion in excluding evidence, this court will not overturn the decision “unless the ruling
affected [the] substantial rights of the complaining party.” United States v. Ragsdale, 426 F.3d 765,
774-75 (5th Cir. 2005) (quoting Bocenegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir.
2003)).
A
Cleveland challenges the district court’s decision to exclude Poret’s testimony. Under
Louisiana law, a nurse may not testify against a physician. La. R.S. 9:2794D.4 Furthermore, the
Louisiana courts have observed that emergency room physicians and non-physician employees are
governed by different standards of care. Wright v. HCA Health Serv. of Louisiana, 877 So.2d 211,
215 (La. Ct. App. 2004) (differentiating between the standard of care applicable to emergency room
4
The relevant statute states:
D. (1) In a medical malpractice action against a physician, licensed to practice
medicine by the Louisiana State Board of Medical Examiners under R.S. 37: 1261 et
seq., for injury to or death of a patient, a person may qualify as an expert witness on
the issue of whether the physician departed from acceptable standards of medical care
only if the person is a physician who meets all of the following criteria:
(a) He is practicing medicine at the time such testimony is given or was practicing
medicine at the time the claim arose.
(b) He has knowledge of accepted standards of medical care for the diagnosis, care,
or treatment of the illness, injury, or condition involved in the claim.
(c) He is qualified on the basis of training or experience to offer an expert opinion
regarding those accepted standards of care.
(d) He is licensed to practice medicine by the Louisiana State Board of Medical
Examiners under R.S. 37:1261 et seq., is licensed to practice medicine by any other
jurisdiction in the United States, or is a graduate of a medical school accredited by the
American Medical Association’s Liaison Committee on Medical Education or the
American Osteopathic Association.
La. R.S. 9:2794(D).
-9-
physicians and the standard governing the nursing staff). Thus it is without question that under
Louisiana law, Poret could not testify as to the standard of care governing an emergency room
physician. See Taplin v. Lupin, 700 So.2d 1160, 1162 (La. Ct. App. 1997) (holding that a registered
nurse is not qualified to testify as to whether a doctor, certified in internal medicine, breached the
applicable standard of care). In this case, however, we must consider whether Louisiana law permits
a nurse to testify against a physician assistant.
Both parties and their experts applied the standard of care of a physician to Eubanks’ alleged
acts of medical negligence. This is consistent with Louisiana law, which indicates that physician
assistants may perform most of the same tasks as physicians, frequently without direct supervision.5
Indeed, the Louisiana legislature specifically noted that one of the goals of establishing a physician
assistant program in the state was to enable physicians to “delegate certain health care tasks” to
physician assistants. La. R.S. 37:1360.21C.
Poret’s written report focused exclusively on the failure of the physician assistant at BJACH
to meet the requisite standard of care. In her opposition to the United States’ motion to exclude
Poret’s testimony, Cleveland attempted to argue that Poret was qualified to read and explicate the
“chronology of care” Samuel received at BJACH, as Poret possesses a Bachelors Degree in Nursing
and is a Certified Legal Nurse Consultant. However, this argument is inapposite given the content
5
A physician assistant is “qualified to take patient histories, perform physical
examinations, and order and interpret certain diagnostic tests. A physician assistant may implement
treatment plans as delegated by the supervising physician and explain them to patients.” La. R.S.
37:1360.21(B). A physician assistant, while acting under the supervision of a physician, may act
without the “physical presence” of the supervising physician and may act without consultation with
a supervising physician when performing acts with prior delegated authority or when the act is
undertaken pursuant to clinical guidelines or protocols. La. R.S. 37:1360.22. See also Baker v.
Williams, 825 So.2d 563, 570 (La. Ct. App. 2002).
-10-
of her report. As a nurse, Poret is not qualified to testify as to a physician’s standard of care or the
standard of care governing a physician assistant who stands in the place of the treating physician. See
Broussard, 921 So.2d at 132 (stating the rule that only physicians qualified in a particular medical
field may testify as to the standard of care owed by physicians in that specialty). The district court
did not abuse its discretion in excluding Poret’s testimony as she was not qualified to testify as to the
standard of care applicable to a physician assistant.
B
Cleveland also argues that the district court abused its discretion in excluding portions of Dr.
Piland’s testimony. The district court ruled that Dr. Piland’s testimony went beyond the scope of a
treating physician, by offering his opinion on the standard of care owed by emergency room
physicians. The district court noted that Dr. Piland was qualified as an expert in internal medicine
but had not worked in an emergency room other than during a brief time during his residency. Thus,
applying the standards articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
591 (1993), the district court concluded that the acceptable standard of care for an emergency room
was not within the scope of his expertise as an internist.
Emergency room medicine is considered its own medical specialty. Iseah v. E.A. Conway
Mem’l Hosp., 591 So.2d 767, 772 (La. Ct. App. 1991). A medical specialist is held to the standard
of care “ordinarily exercised and possessed by physicians within his medical specialty.” Ardoin v.
Hartford Accident & Indem. Co., 360 So.2d 1331, 1340 (La. 1978). Thus, “emergency room
physicians are held to the standard of care of specialists in emergency care.” Wright v. HCA Health
Serv. of La., 877 So.2d 211, 215 (La. Ct. App. 2004). When the claim of malpractice turns on the
negligence of a specialist, “only those qualified in that specialty may offer expert testimony and
-11-
evidence of the applicable standard of care.” Primeaux v. St. Paul Fire & Marine Ins. Co., 862
So.2d 496, 503 (La. Ct. App. 2003).
Although acknowledging this general rule, Cleveland argues on appeal that the district court
abused its discretion in excluding Dr. Piland’s testimony because the diagnosis of congestive heart
failure is not unique to the emergency room setting and because as an internist, Dr. Piland was
qualified to testify as to the appropriate standard of care for diagnosing that disease. Cleveland
supports this argument through reference to McDaniel v. Reed, 798 So.2d 1121 (La. Ct. App. 2001),
where the court held “it is the specialist’s knowledge of the requisite subject matter, rather than the
specialty within which the specialist practices, which determines whether a specialist may testify as
to the degree of care which should be exercised.” Id. at 1123.
However, Dr. Piland never stated that the standard of care for diagnosing congestive heart
failure in the emergency room setting is identical to its diagnosis in the field of internal medicine. See
Richardson v. State, 726 So.2d 417, 421 (La. Ct. App. 1998) (discussing that an expert witness must
establish that there is an identical standard of care for a medical procedure that is performed regularly
in different medical disciplines if he wishes to testify as to practices outside of his own speciality).
Louisiana courts have recognized that the emergency room setting is different in kind from other
medical disciplines. See Dalgo v. Landry, 424 So.2d 1159, 1161 (La. Ct. App. 1982) (affirming the
district court’s conclusion that “emergency room physicians are in a different forum than a
specialist”); see also Campbell v. Hosp. Serv. Dist. No. 1 Caldwell Parish, 862 So.2d 338, 350-51
(La. Ct. App. 2003) (discussing extensively the distinction between the standards of care applicable
when treating the same disease in the emergency room setting versus other specialities); Armand v.
State, Dept. of Health and Human Resources, 729 So.2d 1085, 1095 (La. Ct. App. 1999)
-12-
(Fitzsimmons, J., dissenting) (noting the time-sensitive nature of admissions and the different nature
of the diagnostic work in an emergency room). In the absence of some testimony establishing that
the standard of care for diagnosing congestive heart failure is the same in the fields of both internal
medicine and emergency medicine, Cleveland cannot rely on Dr. Piland’s testimony as to the
applicable standard of care. Therefore, the district court did not abuse its discretion in excluding
testimony by Dr. Piland as to the standard of care for diagnosing congestive heart failure in the
emergency room setting.6
C
Cleveland next argues that the district court erred in disregarding the testimonies of Drs.
Rankin and Cuenca as to the relevant standard of care. In its memorandum opinion, the district court
stated that neither Dr. Rankin nor Dr. Cuenca was an expert in emergency medicine and furthermore
that neither had established the relevant standard of care. In a footnote, the district court went on
to state, “[e]ven if the plaintiff’s physicians’ testimony were accepted, it is greatly outweighed by the
testimony of Dr. John McMillan, a physician who has practiced emergency room medicine full-time
6
Appellant briefly argues that the trial court erred when it ruled that res ipsa loquitur
did not apply. Appellant observes that “expert testimony is not required where the physician does
an obviously careless act, such as the failure to attend a patient when the circumstances demonstrate
the serious consequences of the failure.” Aultman v. Ins. Corp. of Am., 716 So.2d 182, 186 (La. Ct.
App. 1998). In order to take advantage of the doctrine, the plaintiff must demonstrate that “the injury
[is] of the type which does not ordinarily occur in the absence of negligence. In other words, the
event must be such that in light of ordinary experience it gives rise to an inference that someone must
have been negligent.” Henderson v. Homer Mem’l Hosp., 920 So.2d 988, 996 (La. Ct. App. 2006);
see also Gisclair v. Bonneval, 928 So.2d 39, 43 (La. Ct. App. 2005) (noting that examples of
situations in which res ipsa loquitur would apply include “fracturing a leg during examination,
amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a
patient’s body”). In those situations, a lay person may infer negligence. Gisclair, 928 So.2d at 43.
We cannot say that this is a “situation involving [an] accident[ ] that normally do[es] not occur,
absent negligence.” Honeycutt v. State Farm Fire & Casualty Co., 890 So.2d 756, 759-60 (La. App.
Ct. 2004). The district court did not err in declining to apply this doctrine.
-13-
for 18 years.” The district court’s ruling in favor of the United States was based on its finding that
Cleveland had failed to offer testimony as to the relevant standard of care, as required by Louisiana
law. This ruling was premised on the court’s decision to disregard the doctors’ testimony as to the
standard of care. The district court also concluded, however, that even if it accepted that Cleveland
had offered evidence of the standard of care through the testimonies of these doctors, that the expert
testimony provided by the United States outweighed that of Cleveland.
As a reviewing court, we owe great deference to the findings of the trial court with respect
to expert testimony. Bursztajn v. United States, 367 F.3d 485, 489 (5th Cir. 2004). Insofar as the
district court chose to exclude the testimony of the doctors, we review for an abuse of discretion.
United States v. Dixon, 413 F.3d 520, 523 (5th Cir. 2005). We also review for an abuse of discretion
the district court’s decision to credit one expert over another. See Pittman v. Gilmore, 566 F.2d
1259, 1261 (5th Cir. 1977) (stating that “the trier of fact is the final arbiter as between experts whose
opinions may differ” and finding no abuse of discretion in the district court’s ultimate decision).
Cleveland summarily asserts that Dr. Rankin, as a radiologist, was qualified to testify that in
his experience, patients with a history of congestive heart failure typically are given x-rays and that
it was a deviation from the standard of care for Eubanks not to order chest film. However, as
discussed above, an expert in one medical speciality must demonstrate that the standard of care is
identical to that in another area before he may testify as an expert in the other area. See Richardson,
726 So.2d at 421. Not only did Dr. Rankin not assert that the standard was the same, but specifically
stated during his deposition, “I would also feel that I would not be qualified to make an opinion about
when a medicine type doctor should nor should not order x-rays on someone given the
symptomatology of what they are having.” Therefore, the district court did not abuse its discretion
-14-
in disregarding the testimony by Dr. Rankin as to the applicable standard of care.
Cleveland also argues that Dr. Cuenca was qualified to offer testimony as to the requisite
standard of care because he practiced internal medicine and had emergency room experience. Dr.
Cuenca asserted that as an internist he dealt with patients with congestive heart failure on a “daily”
basis and was very familiar with the risk factors for complications from congestive heart failure, as
well as methods of diagnosis and treatment. Dr. Cuenca asserted that Eubanks did not take into
account Samuel’s risk factors, including morbid obesity, chronic hypoxemia (low circulating blood
oxygen), a prior history of congestive heart failure, diabetes, hypertension, subendocardial infarctions
(heart attacks), signs of coronary artery disease, renal failure, and gouty arthritis. Although Eubanks
was aware of the morbid obesity and the diabetes, his failure to review the medical records prior to
Samuel’s discharge from the emergency room meant that he did not take these other risk factors into
account. Dr. Cuenca concludes that in light of these risk factors, Eubanks should have performed
a number of tests on Samuel, including a chest x-ray and tests to determine his blood oxygen level.
Dr. Cuenca opined that had these tests been performed, Eubanks would have diagnosed congestive
heart failure at that time and aggressively treated that disease rather than simply treating Samuel for
an upper respiratory infection.
Dr. McMillan was proffered by the United States as an expert in emergency medicine. He
directly contradicted Dr. Cuenca’s testimony and concluded that Eubanks had not deviated from the
standard of care. Dr. McMillan’s report specifically addressed Dr. Cuenca’s assertion that Samuel
should have had more extensive tests during his initial visit to the ER and that Eubanks’ failure to give
those further tests was a deviation from the standard of care. Dr. McMillan correctly observed in his
initial report that Dr. Cuenca himself admitted that if an individual presented with only morbid obesity
-15-
as a risk factor (as did Samuel), then a chest x-ray and other tests would not be medically indicated.
Dr. Cuenca’s opinion that further tests should have been administered rested on his awareness of
Samuel’s other risk factors, such as his history of congestive heart failure, renal insufficiency, and
other cardiac problems, which were evident in his medical record. However, Dr. McMillan asserted
that it was not typical for an emergency room physician to have access to a patient’s medical history.
Dr. McMillan explained that while the records might be called for, they are frequently unavailable,
particularly at night, or might take a while to arrive in the emergency room during the day. Physicians
therefore will see the patients prior to their review of the records and rely on the patient’s description
of his medical history and current medications. Dr. Cuenca did not offer an opinion))and as an
internist was not qualified to do so))as to typical emergency room procedures regarding medical
records.
We need not decide whether it was an abuse of discretion for the district court to disregard
Dr. Cuenca’s testimony as to the diagnosis and treatment of an individual with congestive heart
failure as it was within the court’s discretion to choose to give greater weight to the testimony of Dr.
McMillan, the expert witness for the United States. See Albany Ins. Co. v. Anh Thi Kieu, 927 F.2d
882, 894 (5th Cir. 1991) (stating that the district court is “not obligated to accept or even credit the
testimony of [the plaintiff’s] experts”). Dr. Cuenca’s theory of Eubanks’ deviation from the standard
of care turned on Eubanks’ disregard for Samuel’s extensive risk factors which were contained only
in his medical records. However, Dr. Cuenca was not proffered as an expert in emergency medicine
and thus, could not))and indeed did not))speak to typical procedures in emergencyrooms regarding
the examination of a patient’s medical history. It was thus not an abuse of discretion for the district
court to accept the opinion of the United States’ expert witness. See Pittman v. Gilmore, 556 F.2d
-16-
1259, 1261 (5th Cir. 1977) (“It is settled law that the weight to be accorded expert opinion evidence
is solely within the discretion of the judge sitting without a jury. While he may not arbitrarily fail to
consider such testimony, he is not bound to accept it.”).
III
Finally, Appellant argues that the district court erred in concluding that she did not establish
her case by a preponderance of the evidence because the United States own witness testified that the
defendant’s conduct fell below the requisite standard of care. Appellant characterizes Dr. McMillan’s
testimony as including his opinion that BJACH’s treatment of Samuel fell below the applicable
standard of care because Eubanks prescribed a drug without a physician approval and did not consult
with a physician prior to determining a course of treatment for Samuel.
We review the district court’s factual determinations in a FTCA case under the clearly
erroneous standard. See Fed. R. Civ. P. 52(a); Dickerson ex rel. Dickerson v. United States, 280
F.3d 470, 474 (5th Cir. 2002). “A trial court’s 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.” Id. “This standard applies to a district court’s determination that a plaintiff has failed
to carry its burden of proof.” Bartmess v. Federal Crop Ins. Corp., 845 F.2d 1258, 1261 (5th Cir.
1988).
Dr. McMillan testified that whether or not a physician assistant could prescribe drugs without
a supervising physician’s authorization varied from emergency to emergency room and turned on
whether there was general authorization to prescribe. Contrary to Cleveland’s assertion, however,
Louisiana law does permit a physician’s assistant to prescribe certain drugs and medicines. See La.
-17-
R.S. 37:1360.31B(8) (authorizing a physician assistant to “prescrib[e] certain drugs and medical
devices to the extent delegated by the supervising physician. . . .”). Although Eubanks’ authorization
by BJACH was not part of the original trial record,7 on appeal the United States has provided this
court with the documents indicating that Eubanks was authorized to prescribe the class of autonomic
drugs known as sympathomimetic (adrenergic) agents, which included Proventil. He was also
authorized to prescribe expectorants and decongestents (Entex) and antibiotics (Zithromax).
Furthermore, Louisiana law permits a physician assistant to act independently of a supervising
physician when the authority to act had been previously delegated. See La. R.S. 37:1360.22. The
authorizations provided to this court on appeal indicate that Eubanks was authorized to “diagnose
and treat minor illnesses” without a physician being present.
Dr. McMillan’s testimony thus does not indicate that Eubanks violated the standard of care,
as he is authorized by statute and by hospital policy to act without the presence of a physician and
to prescribe certain drugs. Thus we cannot conclude that the district court clearly erred in
determining that Cleveland failed to carry her burden of proof.
For the foregoing reasons we AFFIRM the judgment of the district court.
7
This court granted the unopposed motion to supplement the record.
-18-