Unpublished Disposition, 912 F.2d 469 (9th Cir. 1989)

MEMORANDUM^* 

Appellants, Alexander Imm and his parents, Maria and John Imm, appeal the dismissal of their medical malpractice claim brought against appellee, United States, pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2674. Appellants allege that the government's doctors were negligent in the care and treatment of Alexander and Mrs. Imm in connection with Alexander's birth, thereby causing him permanent brain damage. After a six day non-jury trial, the district court dismissed appellants' claim for failure of proof. This appeal timely follows.

FACTS

On December 15, 1986, Maria Imm, wife of Lieutenant John Imm, was admitted to William Beaumont Army Medical Center located in El Paso, Texas. Mrs. Imm, approximately 32 weeks pregnant, was admitted after experiencing a spontaneous premature rupture of her membranes. On the morning of December 18, Mrs. Imm went into labor which progressed without incident until 8:35 pm when Dr. Bayliss, a third-year resident, observed a series of fetal heart decelerations. Following the second deceleration at 8:42 pm, Dr. Bayliss called Dr. Fernandez, the senior obstetric resident, at home and notified him of the decelerations. Dr. Bayliss also ordered the delivery room to prepare for a possible cesarean section. At 8:55 pm, Dr. Bayliss conducted a pelvic exam and found Mrs. Imm's cervix had dilated to 9 centimeters to rim and that the fetus had dropped to +1 station. Dr. Bayliss conducted no pelvic exams after this point. At 9:00 pm, Dr. Bayliss informed the Imms that he might have to perform a cesarean section. Concurrent with Dr. Fernandez's arrival at the hospital at 9:10 pm, the fetus experienced a prolonged heart deceleration and bradycardia. Dr. Bayliss determined that an emergency cesarean section was necessary.

The cesarean section commenced at 9:24 pm when Dr. Bayliss with Dr. Fernandez's assistance made a vertical incision across Mrs. Imm's abdomen. Alexander was delivered by cesarean section by Drs. Bayliss and Fernandez at 9:27 pm after experiencing some difficulty which required, inter alia, an additional incision perpendicular to the first.

Alexander was born clinically dead suffering from hypoxia and ischemia (diminished blood oxygen and blood flow) and sustained bruises on his head, neck, and shoulders. He was revived successfully. Shortly after birth, Alexander underwent hemorrhaging which caused brain damage and now renders him severely disabled.

PROCEDURAL HISTORY

On October 8, 1987, the Imms filed their complaint for money damages against the United States under the Federal Tort Claims Act charging medical malpractice in connection with Alexander's delivery. On February 14, 1989, after a six day non-jury trial, the district court, applying Texas law, ruled orally that the Imms had failed to establish the elements of their claim and dismissed the suit. The court also requested the government to prepare proposed findings consistent with his oral opinion to which he allowed appellants to respond. On March 15, 1989, the court denied appellants' motion for new trial and reconsideration and entered its findings of fact and conclusions of law and its judgment dismissing appellants' action. On April 18, 1989, the court entered amended findings of fact 14 and 31 after allowing appellants an opportunity to comment.

The district court based its decision upon the following findings of fact relevant to this appeal. The court determined that the standard of care called for Dr. Bayliss to perform a pelvic exam immediately prior to conducting the cesarean section; and that Alexander's position in the uterus was then appropriate for a cesarean section. But the court held that even if Alexander were not then in the correct position, a medical judgment that a cesarean section was the most appropriate way to deliver Alexander was not below the standard of care. The court also found that the evidence did not show that Alexander's injuries would have been avoided had a vaginal delivery been performed. With respect to the time it took to perform the cesarean section, the court found it met the applicable standard of care. Finally, the court found that the force used by Drs. Bayliss and Fernandez was not excessive and that Alexander's bruising was not the result of the doctors' use of excessive force.

On appeal, the Imms argue that the district court applied the incorrect standard of proof. Moreover, excepting the finding that Dr. Bayliss violated the standard of care when he failed to perform a pelvic exam immediately prior to performing the cesarean section, the appellants argue that the court's findings of fact recited above are clearly erroneous. Finally, the appellants argue that the district court abused its discretion in questioning plaintiffs' witnesses Drs. Bayliss and Schwendeman.¹ 

STANDARD OF REVIEW

Texas law governs appellee's liability in this case. 28 U.S.C. § 1346(b). However, judgments under the Federal Tort Claims Act are reviewed by federal standards. Miller v. United States, 587 F.2d 991, 994 (9th Cir. 1978). Thus, the district court's interpretation of state law is reviewed de novo. In re McLinn, 739 F.2d 1395, 1397 (9th Cir. 1984) (en banc). Its findings of fact are reviewed for clear error. Rozay's Transfer v. Local Freight Drivers, 850 F.2d 1321, 1326 (9th Cir. 1988), cert. denied, 109 S. Ct. 1768 (1989). Likewise, its determinations regarding proximate cause and whether a duty of care has been breached are reviewed for clear error. Armstrong v. United States, 756 F.2d 1407, 1409 (9th Cir. 1985). Finally, deference is accorded the district court's witness credibility determinations and when the court's findings are based upon credibility and plausibility and internal consistency it can virtually never be clear error. Anderson v. City of Bessemer, 470 U.S. 564, 575 (1984); Spain v. Rushen, 883 F.2d 712, 717 (9th Cir. 1989).

ANALYSIS

Appellants contend that three errors of law require reversal. They argue that the court required them to prove the elements of their case to a certainty by reasonable medical probability. In support of this contention, they point to the court's oral decision where it stated that it would discount the testimony of appellants' expert, Dr. Zurawin, because his opinion was "based on some probabilities ... rather than things that are sure." (TR 814; ER at 65). As a result, they point to findings of fact 26, 47, 50 as based on legal error and therefore clearly erroneous.

Under Texas law, a medical malpractice suit is essentially a negligence action, James v. Brown, 637 S.W.2d 914, 918 (Tex.1982) (per curiam), requiring plaintiff to establish causation to a "reasonable medical probability." Lenger v. Physician's General Hospital, 455 S.W.2d 703, 706 (Tex.1970). The district court did not deviate from this standard. Placed in context, the district judge used the word "sure" to indicate his conviction that Dr. Zurawin's testimony was speculative and did not establish causation to a reasonable medical probability. (TR 813-816). The court did not articulate a higher burden of proof or require appellants to meet any higher standard. Findings of fact 26, 47, and 50 are not founded on legal error.

Appellants also argue that the court failed to apply the correct proximate cause standard in conclusions of law 9 and 10, and failed to consider both the cause in fact and foreseeability elements of that standard. See Arrendondo v. Lindley Int'l Trucks, Inc., 758 S.W.2d 846, 848 (Tex.App.1988) (setting forth the elements of proximate cause). Finally, they argue that the district court erred in allowing evidence of the possible causes of Alexander's injuries to controvert their causation evidence which they argue was based upon reasonable medical probability.

These arguments also lack merit. Conclusions of law 9 and 10 are virtual restatements of Texas' proximate cause standard, see, e.g., Hart v. Van Zandt, 399 S.W.2d 791, 793 (Tex.1966), and discussion of foreseeability was rendered unnecessary by the court's finding that appellants had failed to show that government's agents caused Alexander's injuries. Finally, expert testimony does not establish reasonable medical probability merely because an expert may testify that her opinion is based upon reasonable medical probability. Reasonable medical probability is for the fact finder to determine, and testimony regarding the possible causes of an injury is admissible and may be used to evaluate other evidence in a case. Lenger, 455 S.W.2d at 707. No error of law was thus committed.

26. The evidence does not show, to a probability, that Alexander had descended to a position further down the birth canal. (ER at 98).

Appellants argue finding of fact 26 is clearly erroneous for the following reasons: They note that Mr. and Mrs. Imm testified that Mrs. Imm told Dr. Bayliss prior to her cesarean section that she was on the verge of having a bowel movement. They also argue that, based upon the Friedman Curve, Mrs. Imm's cervix would have been fully dilated and Alexander thus descended to + 3 station by the time the cesarean section was performed. Furthermore, they contend the difficulties Dr. Bayliss had in freeing Alexander's head, his need to make a second incision, and the need to push Alexander's head are indications of a lower station. Finally, they argue that the court gave undue weight to the testimony of appellee's expert, Dr. Perkins.

Based on all the evidence, it does not appear that finding of fact 26 is clearly erroneous. The district court discredited Mrs. Imm's testimony concerning the bowel movement, but even assuming she did tell him, sufficient doubt exists whether this was before or after the last pelvic exam at 8:55 pm. John Imm, the only person to testify as to the time, said that it occurred approximately 30 or 40 minutes prior to the delivery which began at 9:24 pm. (TR 625-626). If so, as the government contends, Dr. Bayliss would have performed the last pelvic examination after this point.

Additionally, the fact that Mrs. Imm was dilated to 9 centimeters to rim at 8:55 pm does not indicate that the court committed clear error. Mrs. Imm's cervix did not dilate at a steady rate; having dilated from 9 centimeters to 9 centimeters to rim in ten minutes, it previously took one hour for dilation to progress from 8 centimeters to 9 centimeters. (TR 60-61). Moreover, the rate of dilation decreases the closer the cervix is to full dilation. (TR 364-365).

Nor does the progress of the surgery reveal that the district court's findings are clearly erroneous. Dr. Fernandez would not have been able to insert his fingers in Mrs. Imm's vagina if Alexander had been at + 3 station. (TR 223). Moreover, while it is unclear why Dr. Bayliss had difficulty extracting Alexander, the explanation offered by Dr. Zurawin, appellants' expert, that it was due to Alexander's descent to + 3 station, does not appear to be the only plausible explanation. As the district court noted, Alexander's head may have become wedged in Mrs. Imm's pelvis due to Alexander's positioning in the uterus or for the reasons offered by, the government's expert, Dr. Perkins. (TR 815-816).

Although the testimony indicated that Mrs. Imm's pelvis was enlarged enough to accommodate Alexander's head, (TR 101-103, 505), the testimony also indicated that pelvis size alone does not determine an infant's ability to pass through the pelvis. (TR 273, 511-512). The court accepted Dr. Perkins' testimony on this subject because it found him to be more credible than Dr. Zurawin. Mindful of the appropriate standard of review, we defer to this credibility finding.

29. Even if a vaginal delivery had been performed on Mrs. Imm, the evidence does not show it to be more probable than not that Alexander's injuries would have been avoided. (ER at 98).

In support of their claim that this finding is clearly erroneous, appellants rely exclusively on Dr. Zurawin's testimony that, if delivered vaginally, Alexander would not have been injured. They also argue that the district court required them to prove to a certainty that following this procedure would have avoided all injuries.

Appellants' claim is without merit. Dr. Zurawin's testimony is based upon the assumption that Alexander had descended to + 3 station. (TR 79-80, 94-95, 181). As discussed above, there is no evidence in the record to support these contentions. This finding of fact is, therefore, not clearly erroneous.

31. The time taken from the decision to start preparation for a cesarean section to the initial incision was approximately 37 minutes and met the standard of care. (ER at 106)³ 

41. The time taken to effect delivery of Alexander Imm met the standard of care. (ER at 99).

Relying upon the standard set by the American College of Obstetrics and Gynecology (ACOG), in finding of fact 25 the district court held that the standard of care required that an emergency cesarean section be performed within 30 minutes of the time it is called for. (ER at 97). Neither party disagrees with this standard.

Instead, appellants argue that Drs. Bayliss and Fernandez made the decision to perform the cesarean section approximately 37 minutes before they began the cesarean section at 9:24 pm. Because it then took an additional 3 minutes and 40 seconds to deliver Alexander, the appellants contend that the resulting lapse of 40 minutes and 40 seconds from decision to delivery fell below the ACOG standard. In support of their contention, appellants argue that the hospital records, Dr. Bayliss' conversation with Dr. Fernandez, Dr. Bayliss' request that the delivery room prepare for a cesarean section, Dr. Bayliss' counseling of Mrs. Imm at 9:00 pm, and the series of fetal heart decelerations all indicate that the decision to perform a cesarean section took place more than the 30 minutes prescribed by the ACOG standard.⁴ 

Again, the district court's findings are not clearly erroneous. As the district court found, the record indicates that the doctors anticipated the possible need for a cesarean section but did not make the actual decision to perform one before 9:10 pm. (TR 811-813).

The medical records, upon which appellants rely, indicate only that Drs. Bayliss and Fernandez predicated the need for a cesarean section upon repetitive heart decelerations. They do not indicate, as appellants argue, that the doctors had excluded all options but the cesarean section prior to 9:10 pm. (ER at 39, 42). Dr. Bayliss' testimony at trial, likewise, does not suggest that he actually decided to perform the cesarean section prior to 9:10 pm. To the contrary, Dr. Bayliss testified that the decision to perform a cesarean section was contingent upon the development of bradycardia which occurred at 9:10 pm. (TR 256). Dr. Bayliss' request that the delivery room prepare for a cesarean section, his counseling of Mrs. Imm regarding the risks of a cesarean section, and the series of fetal heart decelerations also do not render the district court's findings clearly erroneous.

The request for delivery preparation appears to have been nothing more than a precaution. As Dr. Zurawin testified, a cesarean section requires a fair amount of preparation. (TR 69). With regard to Dr. Bayliss' counseling of Mrs. Imm, he testified that he informed her of the possible need for a cesarean section, not the necessity of one. (TR 248-249). There is nothing in the record controverting his testimony. The only other testimony on the subject of Dr. Bayliss' counseling was elicited from Mr. and Mrs. Imm, who could not recall any counseling. (TR 628-631, 693). Finally, the occurrence of fetal heart decelerations do not indicate an earlier decision because, as noted, the doctors appear to have reached their decision to perform the cesarean section on the presence of bradycardia, not fetal heart decelerations. Finding of fact 31 is therefore not clearly erroneous.

Since finding 31 is fairly supported by the record, finding of fact 41 is also not clearly erroneous. The decision to perform the cesarean section was made at 9:10 pm and Alexander was delivered at 9:27 pm. The 17 minutes between decision and delivery is well within ACOG's 30 minute standard.

37. The degree of force to be applied in these maneuvers and procedures must be within the discretionary judgment of the physicians performing them. There was no evidence showing more probable than not that the forces applied to deliver Alexander were excessive beyond what was reasonably required under the emergency circumstances presented by Drs. Bayliss and Fernandez. (ER at 99).

38. At birth, Alexander was found to have suffered extensive global bruising of his shoulders, neck, and head. It is unknown whether most of the bruising occurred before or during ceasarean [sic] section. The bruising sustained by Alexander was not evidence of excessive force applied to Alexander by Drs. Bayliss and Fernandez. (ER at 99).

At trial, appellants pointed to Alexander's bruises and brain hemorrhaging as evidence of Drs. Bayliss' and Fernandez's use of excessive force. In his oral decision, the district court found that the bruises were not sufficient proof of Drs. Bayliss' or Fernandez's application of excessive force and that there was insufficient evidence to show that the doctors caused the hemorrhaging in Alexander's brain. (TR 817-822).

To support their claim that findings of fact 37 and 38 are clearly erroneous, appellants argue that the district court should have concluded from the nature of the bruising to Alexander's head that this was the cause of the brain damage. They also note that their experts testified that trauma was the most tenable explanation for Alexander's brain damage. Furthermore, they argue that the explanations offered by appellee were speculative and not based upon reasonable medical evidence.

Testimony offered by both parties agreed that the birthing process is traumatic and that trauma, of which bruising is one result, may occur naturally. (TR 118-120, 122) (testimony of Dr. Zurawin); (TR 484) (testimony of Dr. Glass); (TR 573-574) (testimony of Dr. Schwendeman). Both Drs. Zurawin and Perkins also testified that preterm infants are susceptible to spontaneous brain hemorrhaging. (TR 100, 120) (testimony of Dr. Zurawin); (TR 345-347) (testimony of Dr. Perkins).

With regard to the explanations offered by appellants' experts, only Dr. Zurawin remained convinced that, despite the possibility of natural causes, Drs. Bayliss and Fernandez caused Alexander's injuries. See, e.g., TR 100, 141, 142. Dr. Bennett, upon whom appellants relied, testified that Alexander's injury was caused by hypoxic ischemic insult, the weakening of the blood vessels due to diminished blood flow and blood oxygen, to Alexander's brain complicated by direct trauma, (Deposition of Dr. Bennett at 40); however, Dr. Bennett testified that the type of bleeding which occurred in Alexander's brain could be associated with either hypoxic ischemic insult or trauma. (Id. at 43). Appellants' expert, Dr. Glass, also agreed that Alexander's condition was complicated by trauma. (TR 465). However, he admitted that he could not necessarily state whether the trauma was inflicted by the doctors or by natural forces. (TR 449-450). Dr. Glass further testified that the seizures Alexander experienced in day one of life are statistically more often than not associated with hypoxic injury rather than trauma. (TR 491). For the above reasons, the district court's findings of fact 37 and 38 are not clearly erroneous.

III. The District Court's Questioning of Drs. Bayliss and Schwendeman

Appellants argue that the district court abused its discretion when it elicited expert testimony from Drs. Bayliss and Schwendeman. However, appellants failed to object to this questioning. Therefore, we review for plain error. Fed.R.Evid. 103(a) (1), (d); United States v. Morris, 827 F.2d 1348, 1350 (9th Cir. 1987), cert. denied, 484 U.S. 1017 (1988). No plain error exists. Appellants had full opportunity to question Drs. Bayliss and Schwendeman both before and after the district court. More importantly, the court's questioning merely allowed the doctors to clarify their testimony already received without objection. See TR 198-298 (testimony of Dr. Bayliss); TR 557-612 (testimony of Dr. Schwendeman).

CONCLUSION

The district court committed no error of law and the contested findings of fact are not clearly erroneous. Finally, the court did not commit plain error when it asked questions of Drs. Bayliss and Schwendeman. The district court's judgment is affirmed.

AFFIRMED.