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Page 1
511 F.2d 101
(Cite as: 511 F.2d 101)
170BVIII(K)1 In General
170Bk759 Theory and Grounds of De-
United States Court of Appeals, cision of Lower Court
Fifth Circuit. 170Bk759.1 k. In General. Most
David Nelson STANDEFER, Plaintiff-Appellee, Cited Cases
v. (Formerly 170Bk759, 106k406.1(8))
UNITED STATES of America, Defendant-Appel- Even if the only claim of negligence which was
lant. properly before the trial court in action under the
No. 73-1001. Federal Tort Claims Act was conduct referred to in
administrative claim before the Veterans Adminis-
April 14, 1975.
tration, with respect to alleged negligence at VA
Rehearing Denied May 29, 1975.
hospital, judgment of trial court which took into
Action was brought under the Federal Tort Claims consideration all claims of liability could be af-
Act based on Veterans Administration hospital's al- firmed on basis that liability was explicitly imposed
leged negligent treatment of patient who was for negligent acts “independently and in combina-
rendered quadriplegic. The United States District tion,” and that the allegedly negligent treatment re-
Court for the Southern District of Texas, at Hous- ferred to in the VA claim was sufficient in itself to
ton, John V. Singleton, Jr., J., rendered judgment support judgment. 28 U.S.C.A. §§ 2671 et seq.,
for plaintiff, and the United States appealed. The 2675(a).
Court of Appeals, Dyer, Circuit Judge, held that
[2] Federal Courts 170B 759.1
evidence as to neurosurgeon's failure to warn X-ray
technician or to be present to make sure that pa- 170B Federal Courts
tient's head and neck were carefully handled, in 170BVIII Courts of Appeals
light of suspected injury to cervical spine, was suf- 170BVIII(K) Scope, Standards, and Extent
ficient to support finding of negligence which prox- 170BVIII(K)1 In General
imately caused sudden onset of quadriplegia during 170Bk759 Theory and Grounds of De-
X-ray procedure; that trial court's active participa- cision of Lower Court
tion in trial did not result in prejudice requiring re- 170Bk759.1 k. In General. Most
versal; that there was no error in using standard Cited Cases
mortality tables without adjustment to take account (Formerly 170Bk759, 106k406.1(8))
of impact of disability on plaintiff's life-span; but Decision of trial court finding liability on part of
that trial court erred in allowing an inflationary defendant must be affirmed if there is any theory on
factor to be used in computing damages for future which liability can properly be predicated.
medical expenses and loss of future earnings.
[3] Federal Courts 170B 761
Affirmed in part, reversed in part, and remanded.
170B Federal Courts
West Headnotes 170BVIII Courts of Appeals
170BVIII(K) Scope, Standards, and Extent
[1] Federal Courts 170B 759.1
170BVIII(K)1 In General
170B Federal Courts 170Bk759 Theory and Grounds of De-
170BVIII Courts of Appeals cision of Lower Court
170BVIII(K) Scope, Standards, and Extent 170Bk761 k. Reasons for Decision.
Most Cited Cases and neck were carefully handled was sufficient to
If a decision below is correct, it must be affirmed, support finding of negligence which was proximate
though the lower court relied on a wrong ground or cause of sudden onset of quadriplegia during X-ray
gave a wrong reason. procedure. 28 U.S.C.A. § 2671 et seq.
[4] United States 393 78(3) [6] Federal Courts 170B 850.1
ily with respect to in-court investigation of what ap- Bowers, Jr., Asst. U.S. Atty., Houston, Tex., for de-
peared to be an attempt to tamper with hospital re- fendant-appellant.
cords pertaining to Veterans Administration's treat-
ment of plaintiff, did not indicate prejudice requir- Joseph D. Jamail, John Gano, Gus Kolius, Houston,
ing reversal. 28 U.S.C.A. § 2402. Tex., for plaintiff-appellant.
The physical examination conducted by Dr. Patrick attempt, according to expert testimony, to obtain an
indicated a neurological deficit, evidenced by a ‘oblique’ view. Standefer felt a jerking motion ‘as
flaccid condition of the left leg, substantial weak- though he was going to flip me over,’ and cried out
ness in the left arm, and some weakness on the right that he was unable to move. Regardless of which
side of the body. There is some dispute whether version of the events actually occurred, the out-
Standefer was undergoing progressive paralysis come was the same: Standefer left the x-ray room a
from the time of the accident, but it appears that permanent quadriplegic.
even during his wait in the admissions area of the
VA hospital he was able to light and smoke cigar- *104 In November 1970, Standefer filed an admin-
ettes without assistance, drink water and carry on istrative claim with the Veterans Administration.
normal body functions. After the examination, Dr. The incident giving rise to the claim was described
Patrick was optimistic and indicated, according to by Standefer as follows: ‘Claimant sent to have x-
one member of Standefer's family, that the patient rays taken. Veterans Administration Hospital em-
would be up and around in a few weeks. ployee twisted his neck and/or body causing onset
of quadriplegia.’ After six months had passed with
Although the attending physicians at St. Jude's in no final disposition of the claim,[FN1] Standefer
Brenham had suspected a subdural hematoma, a filed this action alleging essentially the same basis
type of head injury, Dr. Patrick's examination led for the lawsuit. In August 1972, approximately
him to conclude that the injury was in the cervical three weeks before trial, the complaint was
spine. Upon being informed that x-rays had been amended to further charge negligence in admitting
taken at St. Jude's and that the films were in the the patient to the VA hospital, in delaying the be-
family's possession, Dr. Patrick asked that the films ginning of treatment, and for inadequately staffing
be brought to him. The trip to obtain the films took the x-ray department. The district court, sitting
considerably longer than Dr. Patrick anticipated, without a jury, [FN2] accepted these contentions
and he was further disappointed to discover that the and determined that ‘(a)ll such acts of negligence,
x-rays contained no views of the cervical spine. independently and in combination, on the part of
the defendant, its agents and employees, proxim-
At approximately 10:30 p.m., Standefer was taken ately caused the paralysis suffered by the plaintiff.’
to the x-ray department. Because Standefer is a Based upon mortality tables showing that at the
large man, standing over six feet tall and weighing time of trial Standefer had a life expectancy of 20.0
over 200 pounds, the x-ray technician, Reeves, years, the court awarded damages for: (1) loss of
asked Standefer's son-in-law, Glasgow, to assist in earnings, including an inflationary factor of 5.5%,
the x-ray procedures. The first four films were in the amount of $130,439.09; (2) future medical
taken with no difficulty, except that the x-rays were expenses, based on a figure of $120 per day and in-
inadequate to reveal the exact location of the injury. cluding an inflationary factor of 4.5%,
It is undisputed that while the first four x-rays were $929,238.20; (3) past medical expenses,
being taken, Standefer was kept lying on his back, $47,597.90; and (4) pain and suffering, $400,000.
and that his head and neck remained virtually im-
mobile. During the last two films, one arm was po- FN1. 28 U.S.C.A. s 2675(a).
sitioned above his body to obtain a view known as
a ‘swimmer's lateral.’ According to Reeves and Dr. FN2. 28 U.S.C.A. s 2402.
Patrick, Standefer was again so positioned for the
[1][2][3] The Government argues that no issue with
fifth film, but both Standefer and Glasgow main-
respect to liability was properly before the court
tained that for the last film, Reeves pulled
other than mistreatment vel non in the x-ray room,
Standefer's right arm across his body, possibly in an
since Standefer's administrative claim before the
Veterans Administration referred only to the occur- Even if the VA was negligent in failing to
rences in the x-ray department. Even if we were to render prompt treatment to Standefer, the
accept this position, the judgment of the lower determination that the x-ray room mis-
court could still be affirmed on the basis that liabil- handling proximately caused the onset of
ity was explicitly imposed on the VA for negligent quadriplegia renders the earlier negligence
acts ‘independently and in combination.’ In fact, by irrelevant.
isolating the original basis of the claim, we need
not address other issues such as negligent delay in [4][5][6] In examining the legal basis of the judg-
admission and treatment, for we must affirm the de- ment below we must determine whether a private
cision of the court below if there is any theory on individual would be liable under state law, in this
which liability can properly be predicated. As the case the law of Texas.[FN4] The requisites for es-
Ninth Circuit held when presented with a similar tablishing medical negligence were enunciated*105
situation: ‘In view of the fact that the judgment is by the Supreme Court of Texas as follows:
based on two grounds . . . the judgment must be af-
FN4. 28 U.S.C.A. s 2674. United States
firmed if supportable on either ground.’ Hayden v.
v. Muniz, 1963, 374 U.S. 150, 153, 83
Chalfant Press, Inc., 9 Cir. 1960, 281 F.2d 543,
S.Ct. 1850, 10 L.Ed.2d 805.
547. By limiting out examination of the judgment
to the original charge of negligence-which is essen- It is definitely settled with us that a patient has no
tially unchallenged in the appeal by the United cause of action against his doctor for malpractice,
States-it is unnecessary for us to consider the al- either in diagnosis or recognized treatment, unless
ternative theories of liability which the Government he proves by a doctor of the same school of practice
attacks.[FN3] Thus we now focus our inquiry on as the defendant: (1) that the diagnosis or treatment
whether liability can be premised solely on the al- complained of was such as to constitute negligence
legedly negligent treatment in the x-ray room. and (2) that it was a proximate cause of the patient's
injuries.
FN3. For our disposition of the Govern-
Bowles v. Bourdon, 1949, 148 Tex. 1, 219 S.W.2d
ment's contention that the United States
779, 782. While this action is not against Dr.
cannot be held liable for the manner in
Patrick personally, the underlying theory of the
which it staffs a VA hospital see note 5, in-
lawsuit is that once the neurosurgeon was aware of
fra. As for the other acts of alleged negli-
the probability of injury to the cervical spine, he
gence on which the district court relied, it
was under a duty either to warn the x-ray technician
is sufficient to say that: ‘In the review of
of the need for special precautions or to be present
judicial proceedings the rule is settled that
during the x-ray procedures to make certain that the
if the decision below is correct, it must be
patient's head and neck were carefully handled.
affirmed, although the lower court relied
After reviewing the expert evidence adduced by
upon a wrong ground or gave a wrong
Standefer, we are satisfied that Dr. Patrick was on
reason.’ Helvering v. Gowran, 1937, 302
notice of the need to safeguard Standefer from any
U.S. 238, 245, 58 S.Ct. 154, 158, 82 L.Ed.
twisting or turning which might aggravate the in-
224. In our determination of this appeal,
jury. The plaintiff's expert witness further estab-
we need not and do not reach the merits of
lished that an attempt to pull Standefer's arm across
the Government's arguments that Standefer
his body to obtain an oblique view could have res-
failed either to make a prima facie case or
ulted in the jerking motion that Standefer recalled.
to introduce sufficient evidence to support
If the x-ray technician did so position the patient,
the alleged acts of negligence by the VA
and if neither he nor the neurosurgeon had taken the
prior to the incident in the x-ray room.
required steps to immobilize the patient's neck be-
fore the maneuver was attempted, the result could ard is whether the district court was clearly erro-
have been a ‘new insult’ which proximately caused neous in accepting the plaintiff's factual asser-
the sudden onset of quadriplegia. [FN5] We con- tions. McAllister v. United States, 1954, 348 U.S.
clude that Standefer carried the legal burden estab- 19, 75 S.Ct. 6, 99 L.Ed. 20.
lished by Texas law. Although the Government,
too, presented expert evidence in support of its the- [7][8] At this juncture, it is appropriate to address
ory that Standefer was undergoing a progressive another point of alleged error raised by the Govern-
paralysis which suddenly culminated in quadriple- ment since it is inextricably connected with the
gia during a properly conducted x-ray procedure, soundness of the district court's findings of
our task is not to choose between conflicting theor- fact. The United States asserts that the court below
ies, but to make certain that the theory accepted by abused its discretion in the conduct of the trial by
the district court has sufficient evidentiary support. summoning its own witnesses, launching collateral
inquiries and otherwise departing from its judicial
FN5. The Government's contention that the role by becoming an advocate for the
district court erred in holding that a prox- plaintiff. Since the action was tried without a jury,
imate cause of Standefer's injury was inad- the district court is accorded great discretion in its
equate staffing of the x-ray department role in the trial. Bowles v. Lentin, 7 Cir. 1945, 151
gives us little pause. The argument that F.2d 615, 620, relied on by the Government to but-
staffing is a discretionary function for tress its position, suggests *106 only that it is
which the United States cannot be held re- ‘conceivable’ that the conduct of a judge might be
sponsible under the Federal Tort Claims so unfair as to evidence prejudice warranting re-
Act presents a legal issue that is undercut versal. Even this less than compelling language is
by the facts of this case. The expert wit- prefaced by the observation that in the absence of a
nesses for both sides agreed that because jury, a court has ‘wide latitude’ in commenting
of Standefer's size, a single x-ray techni- upon the occurrences at trial, and by the caveat that
cian would require additional help. appellate courts must guard against magnification
However, it was made clear that any of instances which are of little importance in their
‘semiintelligent layman’ could, with prop- setting. In this case, the Government complains
er direction, provide the needed assistance. primarily of the in-court investigation into what ap-
As noted before, Standefer's son-in-law peared to be an attempt to tamper with hospital re-
was asked to aid in positioning the patient, cords pertaining to the VA's treatment of Standefer.
but the record leaves no doubt that Glas- Because there was so little non-testimonial evid-
gow was called upon only to hold ence of what actually happened in the x-ray room,
Standefer in the position in which the x-ray we certainly cannot fault the district court for trying
technician placed him, hence the question to ascertain the reliability of records which might
remains whether the x-ray technician and lend credence to one of the versions being urged by
the neurosurgeon took the necessary steps the litigants. While the record does show that the
to protect Standefer's head and neck. court actively participated in the trial, we are unper-
suaded that its expressions indicate prejudice re-
As we view this case, the outcome depends entirely quiring reversal.
on the district court's factual resolution of what oc-
curred in the x-ray room. Because the version of Finding no basis for the contention that the court
the events related by Standefer and Glasgow was exceeded the bounds of judicial propriety in its con-
totally opposed to the version given by the x-ray duct of the trial, our review is limited to determin-
technician and the physician, the applicable stand- ing whether the court's factual resolution of the
controversy fails to meet the clearly erroneous the province of the district court, and we are unwill-
standard. Where, as here, the outcome depends so ing to hold that the court abused its discretion in
greatly on the evaluation of highly conflicting evid- computing damages based on standard mortality
ence, we must give ‘due regard . . . to the opportun- tables considered in conjunction with the other
ity of the trial court to judge the credibility of the variables existent in this case.
witnesses.’ Rule 52, Fed.R.Civ.P. We are satisfied
that the district court was not clearly erroneous in [10] The Government's second attack on the dam-
the resolution of the disputed facts. United States ages awarded is directed at the amount found due
v. Yellow Cab Co., 1949, 338 U.S. 338, 70 S.Ct. for past medical expenses incurred at the VA facil-
177, 94 L.Ed. 150. We affirm the district court's ity prior to the time of trial. We find no basis for
imposition of liability on the United States. overturning the decision of the district court that
unless the Government agreed to waive its lien pur-
[9] Turning now to the damages awarded Standefer, suant to the Medical Care Recovery Act, 42
we address the three specifications of error argued U.S.C.A. s 2651 et seq., Standefer was entitled to
by the Government. The first contention is that the recover an amount equal to his past *107 medical
district court erred by using mortality tables with no expenses from the United States in this action.
adjustment to take account of the impact of
Standefer's disability on his life-span. The Govern- [11] Finally, we reach the contention of the Gov-
ment's expert evidence was to the effect that quadri- ernment that the district court erred in allowing an
plegia might decrease Standefer's life expectancy inflationary factor to be used in computing damages
by ten to fifteen percent. Although no challenge for future medical expenses and for the loss of fu-
could be made to the admissibility of mortality ture earnings. Our en banc decision in Johnson v.
tables in this case, Kershaw v. Sterling Drug, Inc., 5 Penrod Drilling Co., 5 Cir. 1974, 510 F.2d 234
Cir. 1969, 415 F.2d 1009, 1012, the Government (Nos. 72-2243, 71-2245, March 21, 1974, p. 4581)
argues that reliance by the district court on unadjus- establishes the correctness of the position taken by
ted mortality tables was contrary to the weight of the United States, and thus necessitates a reversal
the evidence. Tabor v. Miller, 3 Cir. 1968, 389 of the judgment on these items. The district court
F.2d 645, cert. denied 391 U.S. 915, 88 S.Ct. 1810, did not have the benefit of our final holding in Pen-
20 L.Ed.2d 654. In Tabor, life expectancy tables rod at the time of trial, hence we remand this case
were excluded but the court concluded that even to the court below for a recomputation of damages
without them, the jury had adequate evidence to re- for future medical expenses and loss of earnings.
solve the ‘necessarily speculative question’ of the
Finding no other meritorious points in the appeal,
plaintiff's probable life-span. Id. at 647. In the case
we affirm the judgment in all other respects.
sub judice, a judge, not a jury, was called upon to
answer this ‘necessarily speculative question,’ and Affirmed in part, reversed in part, and remanded.
while there was evidence that Standefer's life-span
might be diminished by being a quadriplegic, the C.A.Tex. 1975.
court also had other factors to consider. For ex- Standefer v. U.S.
ample, the parties seemed to agree that the figure of 511 F.2d 101
$120 per day for medical care was a reasonable ap-
proximation of costs which would have to be borne END OF DOCUMENT
over a number of years, subject, however, to the
contingency that if Standefer encountered any seri-
ous medical complications, the estimate might be
too conservative. Balancing such factors in within
The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters,
West and their affiliates.
Date of Printing: Aug 20, 2010
KEYCITE
Standefer v. U.S., 511 F.2d 101 (5th Cir.(Tex.),Apr 14, 1975) (NO. 73-1001)
History
Direct History
=> 1 Standefer v. U.S., 511 F.2d 101 (5th Cir.(Tex.) Apr 14, 1975) (NO. 73-1001)
The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters,
West and their affiliates.
Date of Printing: Aug 20, 2010
KEYCITE
Standefer v. U.S., 511 F.2d 101 (5th Cir.(Tex.), Apr 14, 1975) (NO. 73-1001)
The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters,
West and their affiliates.
Date of Printing: Aug 20, 2010
KEYCITE
Standefer v. U.S., 511 F.2d 101 (5th Cir.(Tex.) Apr 14, 1975) (NO. 73-1001)
Citing References
Cited
1 Martinez v. U.S., 780 F.2d 525, 528+, 54 USLW 2389, 2389+ (5th Cir.(Tex.) Jan 16, 1986) (NO.
85-2087) HN: 5 (F.2d)
2 Culver v. Slater Boat Co., 688 F.2d 280, 290, 1983 A.M.C. 2251, 2251 (5th Cir.(La.) Sep 22,
1982) (NO. 79-3985) HN: 11 (F.2d)
3 Thomas v. Shelton, 740 F.2d 478, 482 (7th Cir.(Ind.) Jul 06, 1984) (NO. 83-1666, 83-1951) HN:
10 (F.2d)
4 Chernock v. U.S., 718 F.Supp. 900, 904 (N.D.Fla. Jun 14, 1989) (NO. 87-50009-RV) HN: 4
(F.2d)
5 Graci v. U.S., 435 F.Supp. 189, 195 (E.D.La. Jul 22, 1977) (NO. CIV 15962, CIV 15976, CIV
16091, CIV 66-306, CIV 67-1280) HN: 4 (F.2d)
6 Johnson v. Sawyer, 640 F.Supp. 1126, 1137, 58 A.F.T.R.2d 86-5950, 86-5950, 86-2 USTC P
9677, 9677 (S.D.Tex. Aug 04, 1986) (NO. H-83-2173) HN: 10 (F.2d)
Mentioned
7 Dickens v. U.S., 545 F.2d 886, 890 (5th Cir.(Tex.) Jan 20, 1977) (NO. 74-3084) HN: 6 (F.2d)
8 Crain v. Krehbiel, 443 F.Supp. 202, 212 (N.D.Cal. Dec 05, 1977) (NO. C-76-1018-CBR) HN: 4
(F.2d)
9 Simon v. U. S., 438 F.Supp. 759, 761 (S.D.Fla. Sep 14, 1977) (NO. 77-102-CIV-CA) HN: 4
(F.2d)
10 Bohn v. U.S., 724 F.Supp. 443, 446 (N.D.Tex. Oct 16, 1989) (NO. CIV A 4-87-507-E) HN: 4
(F.2d)
11 Rojas v. U.S., 660 F.Supp. 652, 656, Unempl.Ins.Rep. (CCH) P 17,658, 17658 (D.Puerto Rico
Apr 30, 1987) (NO. CIV. 86-149866) HN: 4 (F.2d)
Court Documents
Appellate Briefs
27 Naomi MORGAN, Administratrix of The Estate of Clarence Moriston Morgan, Jr., Appellant, v.
George L HANBURY, Jr., W.W. Davis and Douglas W. Nicholson, Appellees., 1978 WL
221016, *221016+ (Appellate Brief) (4th Cir. Sep 15, 1978) Brief of Appellees (NO. 78-1315)
HN: 11 (F.2d)
28 ICE EMBASSY, INC. et al., Plaintiffs - Appellants, v. THE CITY OF HOUSTON, Defendant -
Appellee., 2007 WL 4559388, *4559388+ (Appellate Brief) (5th Cir. Jul 27, 2007) Appellee's
Brief (NO. 07-20329) HN: 6 (F.2d)
29 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Mario ROQUE-VILLANUEVA, De-
fendant-Appellant., 1998 WL 34078342, *34078342+ (Appellate Brief) (5th Cir. Dec 28, 1998)
Brief of Plaintiff-Appellee (NO. 98-40115) HN: 1,3 (F.2d)
30 Lloyd Edwin HUMPEREYS, Petitioner-Appellant, v. UNITED STATES OF AMERICA; Bureau
Trial Pleadings
36 Alvin Lavon MOORE, Plaintiff, v. UNITED STATES OF AMERICA, State of Georgia, Ms.
Manns, Southeast Regional Staff for the Bureau of Prisons, Chantel Kent, Community Correc-
tional Administrator for the Bannum Place of Savannah Georgia, et al Defendants., 2007 WL
2982161, *2982161 (Trial Pleading) (S.D.Ga. Aug 21, 2007) Complaint-Personal Injury-
Negligent administration or Lack of care or supervision of community placement center-
Losses of liberty interest, wages from employment, future earnings, reputation, ... (NO.
CV407-123)