Paul C. Edwards v. United States

JOHN R. BROWN, Chief Judge

(dissenting):

While the opinion of this Court cannot cure the grievous physical infirmities of the plaintiff, I regret that we do not take this opportunity to remedy the troika of legal infirmities suffered by the trial court’s opinion.

Infirmity No. 1

The Necrosis Of The Locality Rule In Texas

The trial court apparently attempted to resurrect the dying doctrine that a doctor’s negligence must be established by the testimony of a doctor familiar with the community of treatment standards of medical practice. 1 I believe that such strict adherence by the trial court to what has been termed the Locality Rule cannot be squared with developing Texas precedent 2 as well as that of other jurisdictions. 3 Surely modern medical technology, standardized medical education and practice and modern communication facilities dictate the abandonment of a rule which was initially developed to vary the standards of care according to the expertise and training of practitioners in cities as opposed to those in the rural setting. 4

*1142 In Texas it was long ago established that a doctor need not live and work in a community to qualify as an expert witness 5 and in Hart v. Van Zandt, Tex., 1965, 399 S.W.2d 791 , a neurosurgeon practicing in Pennsylvania was deemed to be a member of the same school of practice as a Texas physician and accordingly was allowed to testify as to the standard of care which the latter should have exercised in the treatment of a patient in Texas.

Particularly with a disease such as diabetes where doctors uniformly agree, as they did in the trial court, 6 that the treatment is a combination of insulin injections and dietary control a doctor experienced in the treatment of this disease would be qualified to testify as to the standard of care to be exercised by physicians treating the disease and in the Eyes of Texas the locality of the witnesses’ own practice or localizing the standard to the community of treatment would not be decisive.

Infirmity No. 2

The Burden Of Proof Is Overweight

Another pointed inadequacy of the trial court’s opinion 7 and that of the majority of this Court 8 is that the plaintiff was required to show by expert testimony that the prison doctors were negligent.

Substantial Texas authority 9 supports the proposition that what constitutes negligence is a mixed question of law and fact and the resolution of this ultimate issue is within the exclusive province of the trier of fact. Accordingly, it is quite improper to require the plaintiff to bear the extraordinary burden of bringing forward expert testimony stated in conclusory terms of negligence or its equivalent to establish negligence (or proximate cause). 10

*1143 This basic error then leads the Court to conclude that there is no evidence of “negligence”. 11 Of course while it is true that the plaintiff’s expert never in so many words testified that the prison doctor’s conduct was negligent or violated a standard of care, but in the Eyes of Texas the weight to be given medical testimony should be determined by the substance of the testimony of the expert witness and does not turn on semantics or on the use by the witness of any particular conclusory term or phrase. 12 Upon a close examination of the substance of Dr. Liebendorfer’s 13 testimony, it is evident that the prison doctors were to some degree negligent 14 and that their negligence was a contributing cause 15 of the plaintiff’s stroke.

Thus, the majority’s broad statement that the plaintiff failed to establish a deviation from any professional standard of care 16 is both overstatement and approval of a fact-legal conclusion under the overpowering influence of an incorrect legal standard. It provides an inadequate basis for the majority’s out of hand rejection of the plaintiff’s case.

Infirmity No. 3

This Is Not Malpractice But A Gaoler’s Case

Probably the most fundamental malady suffered by the trial court’s opinion is that it treated this case as if it were a malpractice suit rather than judging the propriety of the plaintiff’s claim in light of the duty imposed by statute upon the Bureau of Prisons under the direction of the Attorney General of the United States to exercise ordinary care 17 to provide for the health and welfare of federal prisoners. 18

*1144 In the case at hand the parties stipulated that the government had notice of the plaintiff’s physical infirmities 19 before he was incarcerated. Nevertheless, the prison officials following routine practice confiscated from the plaintiff upon his arrival at the prison all of the medications which he took to aid him in coping with his various physical problems except for his nitroglycerin. 20 The doctors' in this case agree that proper treatment of diabetes, includes both dietary control and insulin injections. Yet, the testimony of Dr. .Liebendorfer and Dr. Gyprus indigates'that the prison diet was inadequate for a diabetic’s needs 21 and. Dr. Hotchkiss stated that the plaintiff had a hard time adhering to a proper dietary regimen. 22 Nevertheless, prison doctors refused to recommend the establishment of a special cafeteria line for diabetics. 23 While I recognize that proper dietary control may allow a physician to reduce insulin dosages, it seems inappropriate for Dr. Hotchkiss to reduce the plaintiff’s dosage from 50 units to 35 units per day 24 in view of the prison’s recalcitrance in providing dietary control.

We would not hesitate to impose liability upon the government if a prisoner sustained injury because he was required to live in conditions not fit for human habitation and in the same way we should not allow the federal prison sys-tern to force a prisoner to live under conditions which are repugnant to his individual physical needs. Similarly, it has been held in this Circuit 25 that state prisons have the duty to provide adequate medical care and failure to do so gives rise to a cause of action with due process underpinnings under 42 U.S.C.A. § 1983 . I believe that the liability of federal prisons should be judged by the same standards under the Federal Tort Claims Act. 26

In Logue v. United States, 1973, 412 U.S. 521, 532-33 , 93 S.Ct. 2215, 2222 , 37 L.Ed.2d 121, 131 , the Supreme Court clearly recognized that liability under the Federal Tort Claims Act could arise if a federal official knew or should have known of a prisoner’s infirmity and yet failed to take action to prevent injury to the prisoner. Upon the same rationale, the prison officials could be held to have violated their duty of safe keeping by failing to adequately attend to the plaintiff’s medical needs after having been apprised of his various physical infirmities.

One could argue that liability under the Tort Claims Act is improper in the prison setting because the Act is designed to impose liability on the government as if it were a private individual and individuals do not operate prisons. But to those doubting souls I must once *1145 against stress, as I did in my dissenting opinion in Logue v. United States, 5 Cir., 1972, 463 F.2d 1340, 1341-42 , vacated and remanded, 1973, 412 U.S. 521 , 93 S.Ct. 2215 , 37 L.Ed.2d 121 (on petition for rehearing en banc), that “[o]nce the Government undertakes performance of an act entailing a duty of ordinary care it may not thereafter avoid liability under the Federal Tort Claims Act simply by abandoning the undertaking and attempting to attribute the responsibility to someone else.” Indian Towing Company v. United States, 1955, 350 U.S. 61, 69 , 76 S.Ct. 122, 126 , 100 L.Ed. 48, 56 ; United States v. Gavagan, 5 Cir., 1960, 280 F.2d 319 , cert. denied, 1961, 364 U.S. 933 , 81 S.Ct. 379 , 5 L.Ed.2d 365 .

Another reason why it is absurd to measure the duty of the Federal Government to provide medical care to prisoners by standards of medical malpractice is that the degree of care which the government must exercise varies according to the locality of the prison. Indeed, a uniform standard would be more appropriate for prison physicians whose only nexus with the medical standards of the locality is that the prison to which they are assigned happens to be geographically situated there.

For any one or all of these three reasons the action of the trial court ought not to be accepted and this Court ought to declare these principals and remand the case for a consideration of the facts in light of the correct legal standards rather than artificially characterizing this ease as a malpractice suit between a private citizen and a freely selected physician.

. The memorandum opinion of the trial court entered April 22, 1974 provides in pertinent part:

“Dr. Liebendorfer twice stated that he had never been in Texarkana, Texas; that he had no idea what the medical standards of that community were; and that he knew no doc-otors [sic] who practived [sic] in Texarkana * * * In addition, the United States called two medical experts who were familiar with medical practices in the Texarkana community. Both stated that there was nothing about Dr. Hotchkiss’ treatment of the plaintiff that they considered inadequate by community medical standards.

The court has considered the plaintiffs arguments that the requirement of expert testimony relating to local medical standards is archaic and arbitrary, and that it should not preclude the plaintiff’s recovery in a case such as this one, in which the record contains some evidence of mistreatment and neglect. While this court regards the plaintiffs contentions to be forceful and persuasive, nevertheless it cannot justify a departure from the principles of Texas law regarding medical malpractice.

See Appendix at 38-39.

. See generally, Perdue, The Law of Texas Medical Malpractice, 11 Houst.L.Rev. 1, 36-38 (1973).

. Several other jurisdictions have abandoned the Locality Rule and adopted a rule whereby the standard of care required of a doctor is that of an average practitioner under the same or similar circumstances and the locality in which the practices is merely a factor to be considered in determining proper care and skill under the circumstances. See, e. g., Brune v. Belinkoff, 1968, 354 Mass. 102 , 235 N.E.2d 793, 798 ; Fernandez v. Baruch, 1967, 96 N.J.Super. 125 , 232 A.2d 661, at 666 ; Douglas v. Bussabarger, 1968, 73 Wash.2d 476 , 438 P.2d 829, 837-38 . See also Pederson v. Dumouchel, 1967, 72 Wash.2d 73 , 431 P.2d 973 (held reversible error to limit the standard of care solely to that of the same or similar community); Hundley v. Martinez, 1967, 151 W.Va. 977 , 158 S.E.2d 159 (Court allowed a New York specialist to testify as to standard of care in a suit tried in West Virginia against a physician with the same special training); Blair v. Eblen, Ky., 1970, 461 S.W.2d 370 (where the Court called for the adoption of a national standard of care). See generally Waltz, The Rise and Gradual Fall of the Locality Rule in Medical Malpractice Litigation, 18 DePaul L.Rev. 408, 418 (1969); Note, Locality Rule in Malpractice Suits, 5 Calif.W.L.Rev. 124, 128-31 (1969); Note, Malpractice and Medical Testimony, 77 Harv.L.Rev. 333, 338 (1963); Note, An Evaluation of Changes in the Medical Standard of Care, 23 Vand.L.Rev. 729, 737-38 (1970).

. See Perdue, The Law of Texas Medical Malpractice, supra at 36.

. Turner v. Stoker, Tex.Civ.App., 1926, writ ref’d, 289 S.W. 190, 194 .

. The District Court recognized in its memorandum opinion that all the doctors who testified believed that dietary control was an integral part of the treatment of diabetes. See App. at 34.

. The trial court states in its memorandum opinion that:

It is further required that the opinion evidence offered by the plaintiff be to the effect that the physician whose conduct is the subject of inquiry was negligent according to the standards of the community in which he was practicing. Cleveland v. Edwards, 494 S.W.2d 578 (Tex. Civ.App. — Houston [14th Dist.] 1973).

See App. at 37.

The Court further aborated its belief that the expert witness must state that the doctor’s conduct was negligent by saying:

Although Dr. Liebendorfer testified that he would have procured the services of a dietician had he been the medical authority at FCI, he did not give the opinion that the failure to do so was negligent or inadequate according to medical standards. (Emphasis added).

Id.

. This Court states unequivocally:

The most salient defect in Edwards’ case was the failure to establish by expert testimony that any of these acts amounted to negligence.

P. 1139.

. The leading case is Snow v. Bond, Tex., 1969, 438 S.W.2d 549 , 550-51 which states in pertinent part:

“What constitutes negligence or malpractice is a mixed question of law and fact that can only be determined by the trier of fact on the basis of evidence admitted and instructions given by the court. A medical expert is not competent to express an opinion thereon. See Houston & T. C. R. Co. v. Roberts, 101 Tex. 418 , 108 S.W. 808 . The question of what a reasonable and prudent doctor would have done under the same or similar circumstances must also be determined by the trier of fact after being advised concerning the medical standards of practice and treatment in the particular case. An expert witness can and should give information about these standards without summarizing, qualifying or embellishing his evidence with expressions of opinion as to the conduct that might be expected of a hypothetical doctor similarly situated. The latter is not an appropriate subject for expert testimony. See Phoenix Assur. Co. of London v. Stobaugh, 127 Tex. 308 , 94 S.W.2d 428 .”

See also Sanchez v. Wade, Tex.Civ.App. — El Paso, no writ, 1974, 514 S.W.2d 812, 815 ; Prestegord v. Glenn, Tex.Civ.App. — Amarillo, 1970, 451 S.W.2d 791 , reversed on other grounds, Tex., 456 S.W.2d 901 ; cf. Bender v. Dingwerth, 5 Cir., 1970, 425 F.2d 378, 385 .

. The Texas Supreme Court has held that while expert testimony as to the “possibility” *1143 of medical negligence or causation is not determinative of negligence, it is admissible and probative of the issue. Bowles v. Bourdon, 1949, 148 Tex. 1 , 219 S.W.2d 779 ; see also Musselwhite, Medical Causation Testimony in Texas: Possibility v. Probability, 23 Sw.L.J. 622, 624.

. P. 1141.

. Insurance Company of North America v. Myers, Tex., 1966, 411 S.W.2d 710 .

. Dr. Liebendorfer not only fills the shoes of an expert witness, but also has additional knowledge of the plaintiff’s individual physical problems because he successfully treated him for a number of years before he was incarcerated.

. The plaintiffs expert witness, Dr. Lieben-dorfer, made several statements which indicated that the prison doctors negligently treated plaintiffs diabetic condition. See, e. g., R.Vol. Ill at 74 (that the combination of diet, insulin injections and the administering of other drugs to control the other maladies of the plaintiff had resulted in successful treatment prior to his incarceration); R.Vol. Ill at 91 (prison officials should have provided a special diet for inmates with need for dietary control); R.Vol. Ill at 99 (the prison doctors should have checked plaintiff’s blood pressure more often); R.Vol. Ill at 86, 126 (prison doctors should have kept plaintiff on a controlled regimen of insulin dosages and dietary control and the failure to do so in the witnesses estimation was a contributing factor to the plaintiff’s stroke).

. There is also ample expert medical testimony of causation. See, e. g., R.Vol. III at 68-69 (causal connection between diabetes and circulatory ailments and more particularly stroke); R.Vol. III at 86 (failure to control plaintiff’s insulin dosages and diet was a contributing cause of the stroke); R.Vol. III at 126 (expert states that if plaintiff had been kept on the controlled regimen, as to diet and drug dosages, which he lived under prior to his incarceration he probably would not have had his stroke).

. P. 1141.

. Bourgeois v. United States, N.D.Tex., 1974, 375 F.Supp. 133 ; Brown v. United States, E.D. Ark., 1972, 342 F.Supp. 987 ; Cohen v. United States, N.D.Ga., 252 F.Supp. 679 , reversed on other grounds, 5 Cir., 389 F.2d 689 .

. 18 U.S.C.A. § 4042 requires:

§ 4042. Duties of Bureau of Prisons The Bureau of Prisons, under the direction of the Attorney General, shall—

(1) have charge of the management and regulation of all Federal penal and correctional institutions;

(2) provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States, or held as witnesses or otherwise;

(3) provide for the protection, instruction, and discipline of all persons charged with or convicted of offenses against the United States;

*1144 (4) provide technical assistance to State and local government in the improvement of their correctional systems.

This section shall not apply to military or naval penal or correctional institutions or the persons confined therein.

. See R.Vol. I at 65. See also letters set out in the appendix at 417-24.

. See R.Vol. I at 66. At the time of his incarceration the plaintiff was taking marplan, a drug which was used in conjunction with nitroglycerin to treat his heart condition. R.Vol. Ill at 74. In addition, he was taking a drug called Rauwiloid for his high blood pressure as well as Librium and Phenobarbital which were relaxants. Id. Dr. Liebendorfer testified that these drugs were necessary for the continued maintenance of plaintiff’s health. See R.Vol. Ill at 100-01.

. For medical testimony to the effect that the prison diet was inadequate for a diabetic, see R.Vol. Ill at 86, 91, 99, 126, 301.

. R.Vol. II at 96.

. R.Vol. II at 98.

. R.Vol. II at 29-30.

. See, e. g., Newman v. Alabama, 5 Cir., 1974, 503 F.2d 1320 (pending en banc on Eleventh Amendment issue) (class action by inmates in state prison challenging the uniform practices of neglectful medical treatment by prison officials); Gates v. Collier, 5 Cir., 1974, 501 F.2d 1291 (pending en banc on Eleventh Amendment issue) (conditions which deprived inmates of basic elements of hygiene and adequate medical treatment held constitutionally impermissible).

. Particularly, 18 U.S.C.A. § 4042 .