Unpublished Disposition, 843 F.2d 501 (9th Cir. 1982)

MEMORANDUM^* 

This medical malpractice case is brought under the Federal Tort Claims Act ("FTCA") by a retired Air Force sergeant who alleges that physicians at Madigan Army Medical Center ("Madigan") at Fort Lewis, Washington made a diagnosis without adequate information and failed to obtain plaintiff's informed consent to a carotid arteriogram. The district court awarded damages to Kerns, and the government appealed.

FACTS AND PROCEEDINGS

On April 13, 1982 Kerns had a routine physical examination at Madigan. His only complaint was of a loss of peripheral vision for five to ten minute periods, three or four times over a period of ten years, usually occurring in one eye, but occasionally in both eyes. It was associated with "tunnel vision" and a "herring bone vision pattern." He reported these symptoms to an optometrist, who referred him to an ophthalmologist and noted that he possibly had a circulatory problem. An ophthalmologist never saw Kerns, but a vascular surgeon, who assumed Kerns had had an ophthalmological examination, examined Kerns and referred him to a radiologist for a carotid arteriogram based on the diagnosis of ulcerated plaques in the carotid artery. The vascular surgeon did not fully discuss the risks and benefits of carotid artery surgery with Kerns prior to referring him for this diagnostic procedure.

Carotid arteriography carries a significant risk, between two and three percent, of complications resulting in serious injury or death. The radiologist had no independent recollection of speaking with Kerns, but affirmed that he would have given Kerns his standard pre-procedure instruction as to risks and benefits. Kerns signed, without reading because he did not have his glasses, a consent form identifying the procedure and stating generally risks involved with arteriograms, but not specifying or differentiating by assigning numerical values to those risks relating to carotid arteriograms.

During the procedure performed by the radiologist, Kerns had a stroke. He is permanently disabled, has constant pain, and needs continuous nursing and medical care. No ulcerated plaques were visualized by the carotid arteriograms.

After a bench trial, Judge Tanner accepted proffered findings of fact and conclusions of law from Kerns and issued a judgment of $1,037,059.53 for Kerns. The government appealed. This court, without reaching the merits, remanded the matter to the district court for revision of the court's findings so that they may be "so explicit as to give the appellate court a clear understanding of the basis of the trial court's decision...." Judge Tanner issued supplemental and amended findings of fact and conclusions of law and a supplemental and amended judgment in the amount of $1,018,870.63.

STANDARD OF REVIEW

We review the district court's findings of fact under the deferential clearly erroneous standard. Anderson v. City of Bessemer City, 470 U.S. 564, 572 (1985). "A finding of fact is clearly erroneous when the reviewing court on the entire evidence is 'left with the definite and firm conviction that a mistake has been committed.' " SEC v. Rogers, 790 F.2d 1450, 1455 (9th Cir. 1986) (citing Dollar Rent a Car of Washington, Inc. v. Travelers Indemnity Co., 774 F.2d 1371, 1374 (9th Cir. 1985)). Findings that the district court adopts from proposed findings submitted by the parties are also reviewed for clear error: "even when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous." Anderson, 470 U.S. at 572. However, such findings are to be reviewed with "special scrutiny." Cher v. Forum Int'l Ltd., 692 F.2d 634, 637 (9th Cir. 1982). Credibility determinations by the trial court are required by Fed. R. Civ. P. 52(a) to be paid special deference. Anderson, 470 U.S. at 573. A district court's determination of negligence is reviewed as a finding of fact. Rogers, 790 F.2d at 1455; United States v. McConney, 728 F.2d 1195, 1204 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984). We are mindful that we are not to reverse the findings of a trier of fact simply because we are convinced that we might have decided the case differently. Anderson, 470 U.S. at 573.

DISCUSSION

The government contends that Madigan's "advised consent procedure" is legally sufficient to meet the standards codified in Washington law, which require that the patient be informed of the "material facts" relating to proposed treatment. Those facts are statutorily defined to include the nature, character, and anticipated results of the treatment proposed, recognized possible alternative forms of treatment, or the recognized serious risks, complications, and anticipated benefits involved in the treatment administered and in the recognized possible alternative forms of treatment, including non-treatment. See Wash.Rev. Code Sec. 7.70.050. The informed consent doctrine in Washington applies to diagnostic procedures as well as treatment modalities. See Gates v. Jensen, 92 Wash. 2d 246, 250, 595 P.2d 919, 923 (1979).

The district court found credible Kerns' testimony that he had not been fully informed of the risks and benefits of the proposed carotid arteriogram as well as those of any proposed surgery. This is consistent with testimony of the referring vascular surgeon that he deferred the discussion of the risks and benefits of carotid arteriography to the radiologist who would perform the procedure, and with testimony of that radiologist that he had no independent recollection of talking to Kerns. The written consent form lacks specificity, and thus is not evidence that material facts relating to the proposed treatment had been imparted to the patient. Because the district court's findings have support in the record, we must affirm.

In Washington, the relevant medical negligence law is codified at Wash.Rev. Code Sec. 7.70.030, and the necessary elements of proof that injury resulted from failure to follow the accepted standard of care are codified at Wash.Rev. Code Sec. 7.70.040. Under that provision, the health care provider will be guilty of negligence if he fails to exercise that degree of care, skill, and learning expected of a "reasonably prudent" health care provider. The issue before the district court was whether Madigan doctors had sufficient adequate information to recommend carotid arteriography. The evidence was sharply divergent, with Kerns presenting a treating physician and two expert witnesses, each of whom unequivocally stated that the standard of care in Pierce County, Washington to be observed in referring a patient for a diagnostic procedure carrying demonstrable risk of serious injury and death was not met. Kerns' witnesses pointed out that contradictions in Kerns' symptoms suggested ophthalmologic and neurologic workups be performed prior to referral for an invasive risk-bearing diagnostic procedure. Madigan presented two treating physicians and three experts whose testimony was directly contrary. The district court chose to accept the view promulgated by Kerns' physicians. Because that view is supported by competent testimony in the record, we affirm the district court on this issue as well.

AFFIRMED.