883 F2d 1025 Torrens v. United States

883 F.2d 1025

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Teresa E. TORRENS and David J.Torrens, Plaintiffs-Appellants
v.
UNITED STATES of America, Defendant-Appellee.

No. 88-2693.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 28, 1989.
Decided Aug. 11, 1989.

Before TANG, REINHARDT, and WIGGINS, Circuit Judges.


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1

MEMORANDUM*

2

Teresa Torrens, on behalf of herself and her son, David Torrens, sued the government under the Federal Torts Claim Act for the alleged medical malpractice of certain medical personnel at Luke Air Force Base Hospital. The appellants alleged that Teresa Torrens suffered complete renal failure and that David Torrens was born with permanent neurological damage because of the negligence of the medical personnel. The government denied these allegations, although it conceded that the Luke physicians were negligent in failing properly to treat Teresa's megaloblastic anemia. Following a bench trial, the district court concluded that the plaintiffs had failed to prove that the physicians' negligence in treating Teresa's megaloblastic anemia was a cause of Teresa's renal failure, or that that negligence was a cause of David's birth defects.1 However, the court did conclude that Teresa was entitled to $25,000 for her pain and suffering which resulted from the negligent treatment. The court also awarded David $15,000 for the suffering he endured during the first few weeks following his birth because of the maternal folate deficiency which resulted from his mother's anemia. Teresa and David appealed.

3

Appellants contend that the Luke personnel were negligent in failing to refer Teresa to a qualified hematologist or board certified obstetrician. They also claim that the physicians were negligent in failing to transfer her to a tertiary care hospital. The district court found to the contrary. It found that the physicians were not negligent in failing to diagnose her acute atypical preeclampsia, because the disease was rare and extremely difficult to diagnose.2 It further found that "the respective diagnoses and treatments, transfer to Good Samaritan Hospital and treatment of the observable conditions on March 17 at Luke and Good Samaritan Hospitals were both appropriate and within acceptable medical standards in 1980." Following a careful review of the record, we cannot say that the district court's findings on these issues were clearly erroneous.3 To the contrary, there is ample evidence in the record to support them.4

4

The appellants also contend that the district court applied an improper legal standard. The district court concluded that "Plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result." The appellants contend that under Thompson v. Sun City Community Hospital, Inc., 141 Ariz. 597, 688 P.2d 605 (1984), a jury (or a court) may impose liability if the evidence permits a finding that the defendant's negligence increased the risk of harm or deprived plaintiff of some significant chance of survival or better recovery.5 Here, the appellants contend that Teresa did not have the benefit of the accepted treatment for preeclampsia, namely prompt delivery of the fetus, because of her debilitated condition caused in part by the negligence of the Luke Air Force Base personnel in failing to diagnose and treat her megaloblastic anemia, and that the failure to deliver the fetus on March 17, 1980 increased the chance that Teresa would suffer renal failure.6 Accordingly, the appellants assert that under a proper reading of Arizona law, the appellee should have been found liable.

5

We need not decide whether the district court's statement of Arizona law was correct. Initially, we note that the district court made contradictory findings as to whether Teresa's illness, caused in part by the anemia, contributed to the decision not to perform a Caesarian section on March 17. If the anemia did not contribute to the decision not to perform a Caesarian section on March 17, then the appellants would have failed to show any causal connection between the megaloblastic anemia and Teresa's renal failure. However, the contradictory findings do not, as the appellants assert, warrant remand for clarification, because the district court specifically found that Teresa would have sustained renal failure even if David had been delivered on the 17th. The appellants contend that this finding is clearly erroneous. They cite to the testimony of Dr. Weinstein, who is board certified in obstetrics, gynecology, and fetal medicine. He testified that there was a 50-50 chance that Teresa would not have suffered renal failure if David had been delivered on March 17. However, Dr. Lee, a nephrologist, testified that there was a very high chance that Teresa's renal failure would have occurred even if David had been delivered on March 17. While it might have been possible for the district court to reach a contrary result, the judge was free to accept the testimony of a kidney specialist over that of an obstetrician. Thus, we cannot say that his finding is clearly erroneous.7

6

Appellants also claim that the award of damages to Teresa and David was grossly inadequate. However, their claim is based on different injuries than those which the district court found were attributable to the defendant's negligence. To uphold the claim for damages in the larger amount, we would have to find that the district court's findings of fact were clearly erroneous. However, we have already concluded they were not. Thus, we have no basis for increasing the award.

7

The parties point out that there is a mistake in the judgment with respect to the damages award. Although the district court awarded $25,000 to Teresa and $15,000 to David, the judgment has the amounts reversed. We will modify the judgment accordingly. With this modification, the decision of the district court is affirmed.


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8

AFFIRMED.

*

This disposition is not suitable for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

As to David, the court concluded that his birth defects, if any, were due to hereditary and environmental factors, as well as his premature delivery due to Teresa's preeclampsia and its complications

2

This disease was identified in 1982 as the HEELP Syndrome and is still very difficult to diagnose

3

The district court's findings of fact in this case were prepared by the government and were adopted by the court with some minor modifications. While this practice may be acceptable in cases, such as this one, which involve complex scientific proof, we subject findings made in this manner to "painstaking review." Mattel, Inc. v. Hyatt, 664 F.2d 757, 759 (9th Cir.1981). However, we must still accept those findings unless they are clearly erroneous. Id

4

The appellants also contend that the physicians' negligence in failing to treat the megaloblastic anemia caused Teresa's DIC, and increased the risk of preeclampsia, DIC, placental insufficiency, or renal failure. However, the trial court found that recognized medical research has not associated megaloblastic anemia as a cause of DIC and that the appellants failed to meet their burden of proof that the folate deficiency either caused or increased the risk of preeclampsia, HEELP Syndrome, DIC, placental insufficiency, or renal failure. After reviewing the record, we cannot say that this finding was clearly erroneous

5

Essentially, this rule allows a plaintiff to survive a motion for summary judgment if he can show a possibility that the defendant's negligence caused his harm. The jury may then infer from that possibility the existence of a probability that defendant's negligence was a cause in fact of the injury. The trier of fact will be allowed to find liability due to the loss of a chance caused by defendant's negligence, but need not do so

6

David Torrens was born naturally, but prematurely, on March 19, 1980

7

The issue whether Teresa's anemia affected David's delivery date does not affect the question of what damages are owed David. As we mentioned, the trial court found that any permanent injuries that David suffered were the result either of his premature birth or heredity. David's birth would have been premature regardless whether he was delivered on March 17 or March 19. While the appellants claim that David would not have suffered any injury if Luke had referred Teresa to a qualified hematologist or obstetrician or if she had been transferred to a tertiary care hospital, as we have already concluded, we cannot say that the district court's findings that the physicians were not negligent in failing to do so were clearly erroneous