Estate of Ira J. Sanders v. United States

Case: 12-60901 Document: 00512449465 Page: 1 Date Filed: 11/21/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

November 21, 2013

No. 12-60901 Lyle W. Cayce

Clerk

IN THE MATTER OF THE ESTATE OF IRA J. SANDERS, Deceased, Ruther

Sanders, Administrator,

Plaintiff – Appellant

v.

UNITED STATES OF AMERICA,

Defendant – Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

Before SMITH, DENNIS, and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge.

Ira J. Sanders (“Sanders”), who received medical treatment from the

Department of Veterans Affairs, died of stomach cancer in 2008. Sanders’s

estate (“the Estate”) filed a malpractice suit against his health care providers

under the Federal Tort Claims Act (“FTCA”), alleging in part that they failed to

provide appropriate follow-up care after discovering a mass in Sanders’s stomach

in 2003. The district court granted summary judgment for the United States

based on its finding that the Estate’s expert report failed to establish the

relevant standard of care or create a question of fact as to the remaining

elements of a malpractice claim under Mississippi law. Despite the tragic facts

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of this case, we agree that the expert’s report was legally inadequate, and we

AFFIRM.

FACTS AND PROCEDURAL HISTORY

Sanders experienced symptoms of reflux in 2003 and sought attention

from his primary care doctors at the Meridian Community Based Outpatient

Clinic (“Meridian Clinic”). Doctors at the Meridian Clinic referred Sanders to

the Jackson VA Medical Center (“JVAMC”) for an esophagogastroduodenoscopy

(alternately referred to in the record as an “endoscopy” or “EGD”), a procedure

that visualizes the upper part of the gastrointestinal tract. Dr. Maher Azzouz,

a board-certified gastroenterologist, performed the EGD on December 10, 2003.

According to JVAMC medical records, Dr. Azzouz discovered a “mass” in

Sanders’s stomach, which the medical records describe as: “fragments of

adenomatous dysplatic mucosa, consistent with papillary adenoma.” The

medical records also note findings of “[c]omplete intestinal metaplasia.”

The medical records for December 12, 2003, indicate that due to the

“stomach polyp,” Dr. Azzouz was “to do Endoscreen” on February 12, 2004, and

that Sanders would be “notified by letter.” On January 26, 2004, Dr. Azzouz

rescheduled the follow-up test for March 12, 2004. Under “indications for

procedure,” the records again note: “stomach[] polyp.” Sanders was notified of

the date of the procedure, but the Estate alleges that he was not notified of the

reason it was needed.

Two of Sanders’s children, Belinda and James, accompanied Sanders to

the JVAMC on March 12, 2004. According to Belinda and James Sanders’s

affidavits, upon arrival, they were “told by staff members . . . that there was no

EGD scheduled for [Sanders] that day and that since he had an EGD performed

with[in] the past year that there was no necessity to repeat the test.”

In the summer of 2008, Sanders was again evaluated at the Meridian

Clinic after experiencing weight loss and difficulty eating. He was admitted to

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JVAMC on July 8, 2008; an EGD performed by Dr. Stephen Tuuri the next day

revealed a cancerous stomach mass. Sanders underwent surgery on July 25,

2008. He died on July 29, 2008. The Estate does not allege malpractice in

connection with Sanders’s care in 2008.

Ruther Sanders, Sanders’s widow and the administrator of the Estate,

filed an FTCA claim in June 2010.1 The complaint alleged malpractice on the

part of the United States “acting through its agents, servants and or employees

at the [JVAMC] in Jackson, Mississippi and also at the [Meridian Clinic].”2 The

Estate asserted that employees both of the JVAMC and the Meridian Clinic

“owed a duty to [Sanders] to relay to him the results of the endoscopy performed

by Dr. Azzouz on 12-10-2003 . . . and further to provide appropriate follow-up

care for the pre-cancerous stomach lesion which if performed pursuant to the

standard of care, the cancer would have been detected at an earlier date and

would have been amenable to surgical cure.” The complaint continued: “As a

direct and proximate result of the failure to provide the appropriate standard of

care . . . Sanders’[s] disease remained untreated and he subsequently died.”

The district court, on the agreement of both parties, granted the

government’s motion to dismiss the Meridian Clinic defendants, on the grounds

that they were not government employees under the FTCA. The order noted

that the Estate’s “claims regarding Dr. Azzouz, an employee of the government,

are not the subject of the motion to dismiss,” but did not mention potential

claims against other JVAMC employees.

1

On February 2, 2009, a Standard Form 95 “Claim for Damage, Injury, or Death” was

submitted to the Department of Veterans Affairs; it was denied on December 31, 2009.

2

According to the government’s brief, plaintiff also filed a second lawsuit against Staff

Care, Inc., the company employing physicians at the Meridian Clinic. That lawsuit was

dismissed with prejudice pursuant to a stipulation.

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Both parties submitted expert reports. The Estate’s report was authored

by Dr. Robert Sklaroff, an attending physician at Nazareth Hospital,

Philadelphia, who is board-certified in internal medicine and medical oncology.3

Dr. Skarloff’s report concluded that, had Sanders

been provided episodic follow-up gastroscopic evaluations, the lesion

would have been detected at an earlier moment in its natural

history . . . [ellipsis in report] when it would have been amenable to

surgical cure. It was beneath the standard-of-care for such

monitoring not to have been offered to the patient during the half-

decade between the detection of the pathologic abnormalities and

the establishment of the diagnosis of inoperable disease.

The government submitted a report authored by Dr. Thomas L. Abell, chief

of gastroenterology at the University of Mississippi Medical Center. Dr. Abell

concluded:

The procedure and recommendations by Dr. Maher Azzouz, the

Gastroenterologist performing the procedure, were appropriate and

meet the standard of care for this case. Further monitoring of this

patient and follow up care were the responsibility of the patient’s

primary care physician and not the responsibility of Dr. Azzouz, who

met the standard of care in all aspects in this case.

The government moved for summary judgment, arguing that Dr. Skarloff’s

report failed to establish the necessary elements of a medical malpractice claim

against Dr. Azzouz. In its response, the Estate emphasized that its “lone

remaining claim is against employees of the [JVAMC], including but NOT solely

limited to, Dr. Maher Azzouz.” The Estate maintained: “It is Dr. Sklaroff’s

opinion . . . that the standard of care was breached by employees of the [JVAMC]

including Dr. Azzouz, by failing to set up the EGD procedure on 3-12-2004 as

ordered by Dr. Azzouz.”

3

If depositions of either expert were conducted, they neither appear in the record nor

were adverted to by the parties.

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The district court granted summary judgment for the government, finding

that Dr. Sklaroff’s report was inadequate. It agreed with the government that

five deficiencies marred Dr. Sklaroff’s report: failure to mention a government

employee by name as having breached the standard of care; failure to articulate

the applicable standard of care; failure to state Dr. Sklaroff’s familiarity with the

applicable standard of care; failure to indicate that a JVAMC employee rather

than one of Sanders’ primary care providers had the duty to provide follow-up

care; and failure to show causation.

Additionally, the district court found no support in the expert report nor

the medical records for the Estate’s theory that the mass detected in 2003 was

the same mass found to be cancerous in 2008, and that JVAMC employees other

than Dr. Azzouz were negligent in not ensuring the second EGD took place. The

district court interpreted Dr. Sklaroff’s comment that had someone placed

Sanders on a monitoring program, “the lesion would have been detected at an

earlier moment” to imply that the 2003 and 2008 masses were unrelated. The

district court found that the medical records neither described the 2003 mass as

pre-cancerous nor linked it to the 2008 mass. Even assuming a link between the

2003 and 2008 masses, the district court found that “nothing suggests that

Sanders’s cancer would have been discernable by March 2004,” when the follow-

up EGD was scheduled to have been performed.

STANDARD OF REVIEW

This court reviews the district court’s decision to grant summary judgment

de novo, applying the same standard as the district court. Moss v. BMC

Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010). It may award summary

judgment if, viewing all evidence in the light most favorable to the non-movant,

the record demonstrates that there is no genuine issue of material fact and that

the moving party is entitled to a judgment as a matter of law. See United Fire

& Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283, 285 (5th Cir. 2006); Fed. R. Civ.

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P. 56(a). A dispute gives rise to a genuine issue of material fact when the

evidence permits a reasonable jury to return “a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Summary judgment

must be affirmed if it is sustainable on any legal ground in the record, and it

may be affirmed on grounds rejected or not stated by the district court.” S&W

Enterprises, L.L.C. v. SouthTrust Bank of Alabama, NA, 315 F.3d 533, 537–38

(5th Cir. 2003) (citations omitted).

DISCUSSION

The FTCA allows suits against the United States for personal injury or

death caused by a government employee’s negligence “under circumstances in

which a private person would be liable under the law of the state in which the

negligent act or omission occurred.” Hannah v. United States, 523 F.3d 597, 601

(5th Cir. 2008); see also 28 U.S.C. §§ 1346(b)(1), 2674. Liability in FTCA medical

malpractice cases is controlled by state law. Hannah, 523 F.3d at 601; 28

U.S.C. § 1346(b)(1). Thus, we look to Mississippi law to determine the elements

of the malpractice claim.

Under Mississippi law, a prima facie case of medical malpractice requires

proof of the following elements: “(1) the existence of a duty by the defendant to

conform to a specific standard of conduct for the protection of others against an

unreasonable risk of injury; (2) a failure to conform to the required standard;

and (3) an injury to the plaintiff proximately caused by the breach of such duty

by the defendant.” Hubbard v. Wansley, 954 So.2d 951, 956-57 (Miss. 2007). The

plaintiff bears the burden of establishing these elements at the summary

judgment stage through supporting evidence. Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986).

Expert testimony must be used to establish these elements in a medical

malpractice claim. Hubbard, 954 So.2d at 957 (citing Barner v. Gorman, 605

So.2d 805, 809 (Miss. 1992)). “Not only must this expert identify and articulate

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the requisite standard that was not complied with, the expert must also

establish that the failure was the proximate cause, or proximate contributing

cause, of the alleged injuries.” Id. (quoting Barner, 605 So.2d at 809); see also

McDonald v. Mem’l Hosp. at Gulfport, 8 So.3d 175, 180 (Miss. 2009); Cheeks v.

Bio-Med. Applications, Inc., 908 So.2d 117, 120 (Miss. 2005).4 If the plaintiff

fails to present sufficient evidence as to these elements, there is no genuine issue

of material fact, and therefore summary judgment is appropriate. Celotex Corp.,

477 U.S. at 322-23. “The success of a plaintiff in establishing a case of medical

malpractice rests heavily on the shoulders of the plaintiff’s selected medical

expert.” Estate of Northrop v. Hutto, 9 So.3d 381, 384 (Miss. 2009).

The relevant section of Dr. Sklaroff’s report reads as follows:

This 80-year-old male . . . presented on 12/10/2003 for endoscopy due

to symptoms of Gastro-Esophageal Reflux Disease [“GERD”]. The

Procedure Report is not complete, but the Pathology Report revealed

that a “Stomach Mass” demonstrated gastritis, and dysplasia. No

follow-up was provided to assess these findings.

The Problem List was otherwise not contributory . . . .

On 7/25/2008, [Sanders] underwent a gastrectomy for locally

advanced gastric cancer (with posterior fixation and hepatic

involvement), at which time he had a feeding jejunostomy. By

information and belief, it is noted that he died on 7/29/2008.

Therefore, had [Sanders] been provided episodic follow-up

gastroscopic evaluations, the lesion would have been detected at an

earlier moment in its natural history . . . [ellipsis in report] when it

would have been amenable to surgical cure. It was beneath the

standard-of-care for such monitoring not to have been offered to the

patient during the half-decade between the detection of the

4

The exception to this rule is for “situations of obvious negligence,” which “a layman

can understand without expert testimony” as “a matter of common sense and practical

experience.” Hubbard, 954 So.2d at 960–61 (internal quotation marks and citations omitted).

The Estate does not argue that the layman’s exception applies in this case.

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pathologic abnormalities and the establishment of the diagnosis of

inoperable disease.

The district court found, inter alia, that Dr. Sklaroff’s report was deficient,

failing to establish a question of fact as to causation. Under Mississippi law,

“[i]n a medical malpractice case, as in all claims for negligence, causation must

be proven in order to establish a prima facie case.” Hubbard, 954 So.2d at 964.

“Mississippi law does not permit recovery of damages because of mere

diminishment of the chance of recovery. Recovery is allowed only when the

failure of the physician to render the required level of care results in the loss of

a reasonable probability of substantial improvement of the plaintiff’s condition.”

Id. In other words, the plaintiff must present evidence that proper treatment

would lead to “a greater than fifty (50) percent chance of a better result than was

in fact obtained.” Id. (quoting Ladner v. Campbell, 515 So.2d at 889 (Miss.

1987)) (internal quotation marks omitted). Thus, a “mere better result absent

malpractice” would not meet the causation requirement. Id. (quoting Ladner,

515 So.2d at 889).

Further, the “expert opinion of a doctor as to causation must be expressed

in terms of medical probabilities as opposed to possibilities.” Univ. Of

Mississippi Med. Ctr. v. Lanier, 97 So.3d 1197, 1202 (Miss. 2012), reh’g denied

(Oct. 4, 2012). “[T]he intent of the law is that if a physician cannot form an

opinion with sufficient certainty so as to make a medical judgment, neither can

a jury use that information to reach a decision.” Id. (quoting Catchings v. State,

684 So.2d 591, 597 (Miss. 1996)). This does not, however, mean that experts

must use “magic words” like the phrase “within a reasonable degree of medical

certainty.” Vanlandingham v. Patton, 35 So.3d 1242, 1249 (Miss. Ct. App. 2010).

If the “import of [the expert’s] testimony [is] apparent,” id., that is enough:

The Mississippi Supreme Court has recognized “that the plaintiff is

rarely able to prove to an absolute certainty what would have

happened if early treatment, referral or surgery had happened.”

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Clayton v. Thompson, 475 So.2d 439, 445 (Miss.1985). Thus,

causation may be established through circumstantial evidence so

long as the circumstances shown “take the case out of the realm of

conjecture and place it within the field of legitimate inference.”

Estate of Gibson ex rel. Gibson v. Magnolia Healthcare, Inc., 91

So.3d 616, 625 (Miss. 2012).

Ladner ex rel. Ladner v. Forrest Gen. Hosp., 2:12CV19-KS-MTP, 2013 WL No.

3776695, at*5 (S.D. Miss. July 18, 2013).

Mississippi courts have recognized that in cases such as this one, where

the injury resulted from an underlying disease and the alleged malpractice took

the form of a failure to cure, rather than the results of “any positive effects of

mistreatment,” establishing causation is “particularly difficult.” Ladner, 515

So.2d at 888. Nonetheless, the plaintiff must still establish “with evidence that

it was probable, or more likely than not, that the patient would have been helped

by proper treatment.” Id.

In Hubbard v. Wansley, the Mississippi Supreme Court considered a case

in which a patient fell unconscious at a hospital and struck her head during the

fall. 954 So.2d at 954. Her doctor, Dr. Wansley, was contacted by telephone and

advised the nurse to monitor the patient’s blood pressure and consciousness for

two hours and to send her home if there was no change. Id. at 954–55. The

patient was sent home, but she was later diagnosed with a hemorrhage. Id. at

955. The court affirmed the trial court’s summary judgment in favor of Dr.

Wansley, in part because the plaintiff’s expert, Dr. Stringer, failed to establish

causation. Id. at 966.

Dr. Stringer authored two affidavits. Id. at 964. In the first, he stated: “In

my opinion, [the patient] was deprived the opportunity of full recovery after her

fall because of lack of treatment.” Id. In deposition testimony, Dr. Stringer

admitted that even had the patient received “optimum medical care,” she could

still have ended up in the same poor condition. Id. at 965. In his second

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affidavit, Dr. Stringer asserted that the patient would have had a greater than

fifty percent chance of reduced injury with “proper[]” treatment, but that

assertion was “given with no real facts to back it up”; instead, it was “almost

wholly conclusory on the issue of causation and [gave] very little in the way of

specific facts and medical analysis to substantiate the claim.” Id. at 965–66; see

also Perez v. Univ. of Mississippi Med. Ctr., 75 So.3d 609, 612 (Miss. 2011)

(expert’s affidavit was “conclusory” where he “failed to explain how or why using

Floxin Otic instead of Ocuflux could have caused Perez’s eye injury.”).

In this case, Dr. Sklaroff’s report concluded: “[H]ad [Sanders] been

provided episodic follow-up gastroscopic evaluations, the lesion would have been

detected at an earlier moment in its natural history . . . when it would have been

amenable to surgical cure.” The district court noted that it is unclear whether

by stating that “the lesion would have been detected” (emphasis added), Dr.

Sklaroff was suggesting that the 2003 mass did not itself become cancerous. But

even assuming, as the Estate urges, that the mass detected in 2003 later became

cancerous, Dr. Sklaroff’s assertion that the lesion “would have been amenable

to surgical cure” does not establish the probability of a better outcome nor take

that probability out of the realm of conjecture. See Estate of Gibson, 91 So.3d at

625 (holding that “testimony, taken as a whole, must establish ‘reasonable

medical certainty’ that the negligence caused the injuries at issue”) (citation

omitted); Hubbard, 954 So.2d at 964; Lanier, 97 So.3d at 1202 n.3 (“[W]e take

this opportunity to state with clarity that expert medical testimony as to

causation must be set forth in terms of medical probability.”).

Dr. Sklaroff’s report is distinguishable from testimony in another failure-

to-diagnose case, Ladner v. Campbell, which the Mississippi Supreme Court

found did create a triable issue of fact. 515 So.2d at 887. In Ladner, the

defendant physician failed to diagnose a lump in the patient’s breast as

cancerous. Id. at 884. The plaintiff introduced an expert report stating that

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“within a reasonable medical probability, a mammography on that day [that the

defendant first examined the lump] would have detected the lesion; and that the

failure to diagnose probably caused her long term survival to be significantly

decreased.” Id. at 887. Although the report acknowledged that “prognostication

about a cancer patient’s chances is difficult,” it went through specific factors that

would give the patient a “five year survival chance of 62 percent on [the day the

lesion should have been discovered], as opposed to 32 percent at the time of her

surgery.” Id. at 887 (noting, inter alia, the small size of the tumor and the

number of lymph nodes affected). By contrast, Dr. Sklaroff’s affidavit included

no specific analysis of the results of Sanders’s EGD, nor the point at which

surgical intervention would have yielded a better outcome. We therefore

conclude that the Estate failed to establish a triable issue of fact on the question

of causation.

In addition, we conclude that Dr. Sklaroff failed to establish with any

specificity the standard of care applicable to Dr. Azzouz, or the particulars of Dr.

Azzouz’s, or any other hospital employee’s, alleged breach of duty. Expert

testimony under Mississippi law must “(a) articulate[] the duty of care the

physician owes to a particular patient under the circumstances, and (b) identify[]

the particular(s) wherein the physician breached that duty and caused injury to

the plaintiff patient.” Phillips ex rel. Phillips v. Hull, 516 So.2d 488, 491 (Miss.

1987) (en banc) (overruled on other grounds by Whittington v. Mason, 905 So.2d

1261 (Miss. 2005)). Dr. Sklaroff asserted that Sanders should have been

“provided episodic follow-up gastropic evaluations,” and that “[i]t was beneath

the standard-of-care for such monitoring not to have been offered to the patient

during the half-decade” following the first EGD. Dr. Sklaroff did not clarify how

often “episodic” evaluations should have taken place. See Hans v. Mem’l

Hospital at Gulfport, 40 So.3d 1270, 1280 (Miss. Ct. App. 2010) (holding that an

expert’s report failed to establish the standard of care when it did not clarify

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“[h]ow soon is ‘soon,’” “[w]hat would be considered ‘an appropriate disposition,’”

and “how any other procedure would have reduced delay”). In addition, although

Dr. Sklaroff asserts that “no follow-up was offered” (emphasis added), he did not

mention that Sanders was scheduled for a repeat EGD. This omission is

significant because Dr. Sklaroff does not identify a particular alleged breach of

duty—for example, not notifying Sanders of the EGD results; turning him away

at his follow-up appointment; or not scheduling future follow-up

appointments—nor does he specify the individual hospital staff member at fault

for the alleged breach. See Hans, 40 So.3d at 1279; Powell v. Methodist Health

Care Jackson Hosps., 856 So.2d 353, 356 (Miss. Ct. App. 2003); cf. Estate of

Guillotte ex rel. Jordan v. Delta Health Grp., Inc., 5 So.3d 393, 408–09 (Miss.

2009) (reversing a grant of summary judgment to defendants where, although

the plaintiff’s experts did not identify individual defendants by name, there was

“a significant amount of expert testimony . . . regarding individual staff

members’ negligence,” and “the depositions as a whole clearly indicate that

individual staff members breached the standard of care”).5

CONCLUSION

Because Dr. Sklaroff’s report does not establish causation as a medical

probability or point to a breach of the standard of care with the requisite

specificity, we AFFIRM the district court’s grant of summary judgment to the

government.

5

Because we find that Dr. Sklaroff’s report did not create a fact issue as to causation,

nor as to standard of care and breach of duty, we do not reach the question of whether Dr.

Sklaroff was qualified to give an expert opinion as to the standard of care applicable to a

gastroenterologist such as Dr. Azzouz.

12