Petition — Edwards v. United States

Supreme Court of the Anited States

JANUARY TERM, 1976

no. @5-1183

PAUL C. EDWARDS,

Petitioner,

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JACK B. SELLERS

300 East Lee Street

Sapulpa, Oklahoma 74066

JOE A. MOORE

4402 Tuckahoe Road ©

Memphis, Tennessee 38117

Attorneys for Petitioner

I]

Washington, 0.C. e CLB PUBLISHERS’ e LAW PRINTING CO. e (202) 393-0625

+ Supreme Court, U. &,

FILED"

FEB 19 1976

IN THE MICHAEL RODAK, JR, CLERK

—— = ae - ~~

IN THE

Supreme Court of the Anited States

JANUARY TERM, 1976

NO.

Sr

PAUL C. EDWARDS,

Petitioner,

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner prays that a writ of certiorari issue to

review the judgment of the United States Court of

Appeals for the Fifth Circuit entered in the appeal of

the petitioner on September 17, 1975.

CITATIONS TO OPINIONS BELOW

The opinion of the Court of Appeals is not yet

officially reported, and is attached hereto as Appendix

2

A, with the judgment of that court attached as

Appendix B and the Order denying petition for

rehearing as Appendix C.

JURISDICTION

The judgment of the Court of Appeals was entered

on September 17, 1975. A petition for rehearing was

denied on January 20, 1976. The jurisdiction of this

Court is invoked under 28 U.S.C., Sec. 1254(1).

QUESTION PRESENTED

Whether a prisoner of the United States, confined in

a federal correctional institution, who suffers from

serious physical infirmity, is to be afforded medical care

and treatment commensurate with a national standard

of care, or, as held by the courts below, the standard of

care is to be afforded only in accordance with the local

standards of the geographical location of the particular

correctional institution.

STATUTORY PROVISIONS INVOLVED

18 U.S.C.A., Sec. 4042 provides:

“4042. Duties of Bureau of Prisons

The Bureau of Prisons, under the direction of

the Attorney General, shall—

“C1) Have charge of the management and regula-

tion of all Federal penal and correctional institu-

tions,

3

(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,

(4) provide technical assistance to State and local

government in the improvement of their correc-

tional systems.

This section shal] not apply to military or naval

penal or correctional institutions or the persons

confined therein.”

28 U.S.C., Sec. 1346(b) provides:

“Subject to the provisions of chapter 171 of this

title, the district courts, together with the United

States District Court for the District of the Canal

Zone and the District Court of the Virgin Islands,

shall have exclusive jurisdiction of civil actions on

claims against the United States, for money

damages, accruing on and after January 1, 1945,

for injury or death caused by the negligent or

wrongful act or omission of any employee of the

Government while acting within the scope of his

office or employment, under circumstances where

the United States, if a private person, would be

liable to the claimant in accordance with the law

of the place where the act or omission occurred.”

28 U.S.C., Sec. 2674 provides; in applicable part:

“The United States shall be liable, respecting the

provisions of this title relating to tort claims, in

the same manner and to the same extent as a

private individual under like circumstances, but

shall not be liable for interest prior to judgment or

for punitive damages...”

4

STATEMENT

In 1966, petitioner, an oil well wildcatter-promoter

seriously ill with high blood pressure, diabetes and heart

trouble was convicted of hotly denied counts of

securities act violations after hard fought jury trial.

Before sentencing medical reports and records were laid

before the trial court with request for probation or

incarceration in a federal medical center. These pleas

were ignored and petitioner was incarcerated in the

Federal Correctional Institution at Texarkana, Texas,

where his medication was immediately reduced or cut

off and the requests of petitioner and his family for

proper medical care, or the right to furnish same at the

petitioner’s expense, also fell on deaf ears. In 1968,

while standing in sick call line attempting to get help,

petitioner suffered a massive cerebral vascular accident

which left him partially paralyzed and totally disabled.

Blood specimens taken were referred to as lipid laden

to extent of being “creamy”. Petitioner’s Federal Tort

Claims Act claim was denied by the U.S. District Judge

for the Eastern District of Texas, who held that

petitioner was entitled to only that standard of medical

care afforded by a general practitioner of medicine

practicing in Texarkana. On appeal the United States

Court of Appeals, Fifth Circuit, was divided, two Judges

affirming the trial court, but with Chief Judge John R.

Brown delivering a strongly worded dissent in favor of

petitioner.

The petitioner has been a diabetic since at least

1946. For approximately seven years before his

imprisonment, he had been under the care of his

personal physician, Dr. Liebendorfer. Treatment was

5

based primarily on insulin injection and dietary control.

His physician had maintained petitioner on from 50 to

80 units daily of insulin and had required a low

carbohydrate diet. When petitioner arrived at the

federal correctional institution, the Chief Medical

Officer immediately reduced the insulin usage to 35

units per day. The institution did not have special diet

available, and the medical officer did not require that

such be given to petitioner or others similarly situated.

Petitioner was required to select foods from the normal

prisoner diet. Evidence on the trial indicated the diet

furnished was heavily loaded with carbohydrates.

Although suffering from various ailments upon his

admission to the institution, petitioner was an active

and virile man. After fourteen months confinement,

petitioner suffered the massive stroke that left him

partially paralyzed on his left side, and rendered him

impotent.

Petitioner, in this action, asserted that the negligent

failure of the treating physicians at the federal

institution to control his diabetes was the proximate

cause of his stroke and resulting disability.

The district court found the evidence presented on

behalf of the petitioner insufficient as a matter of law

to establish either causation or negligence and dismissed

the case with prejudice. In so holding, the trial court

took the view that the standard of care required of the

treating physicians at the federal correctional institution

in Texarkana, Texas, was that of a_ reasonably

competent physician in the locality of Texarkana,

Texas, and confined the evidence to that standard over

the repeated objections of petitioner that such standard

was inappropriate to the case inasmuch as the petitioner

6

was in the custody of the United States, and that the

geographical location of the particular institution in

question was of no moment in establishing the

appropriate standard of care pursuant to the mandate

of federal law.

REASONS FOR GRANTING THE WRIT

In recent years, this Court has repeatedly addressed

itseli to the multi-faceted probiems of penal reform and

humane treatment of those persons convicted of crimes

against the United States. With the law now well settled

to the effect that the provisions of the Federal Tort

Claims Act apply to federal prisoners,’ the underlying

rule that State law controis the issue of liability under

the Act becomes of increasing importance in several

situations. The precise extent to which such state law

is to be applied is in need of clarification under

circumstances such as the case at bar to the end that

uniformity of result shall be possible under like

circumstances. As interpreted by the courts below in

this case. the basic rule that state law controls the issue

of liability has been, in the view of petitioner,

misconstrued. The law of the State of Texas, according

to a majority of the Court of Appeals, will determine in

"U.S. v. Muniz, 83 S.Ct. 1850, 374 US. 150, 10 L.Ed.2d

805; Winston v. U.S., C.A. N.Y. 1962, 305 F.2d 253, affirmed

83 S.Ct. 1850, 374 U.S. 150, 10 L.Ed.2d 805.

2United States v. Muniz, 1963, 374 US. 150. 163-163. 83

S.Ct. 1850, 10 L.Ed.2d 805: Richards v. United States, 1962.

369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492.

7

this case whether expert testimony is necessary to

establish the negligence of the United States; and,

further, will control as to the application of the

so-called “locality rule” in medical malpractice cases.

The courts below held that state law controlled in

each instance stated; and then further held that, in as

much as Texas still retains the rule that only a general

practitioner of ordinary prudence and skill, practicing in

the Texarkana community or a similar community

would serve as the guide for treatment of petitioner,

the petitioner could recover only if a breach of that

standard of care was made out by the evidence.

The majority opinion of the Court of Appeals

contains two fundamental errors in implementation of

the rights of petitioner under the Federal Tort Claims

Act:

1. The Court of Appeals erroneously applied a

purely geographic limitation to the locality rule

said to be employed by the Texas courts.

2. The Court of Appeals failed to give proper

consideration to the appropriate “community”

to be used in applying the locality rule.

Initially, the opinion correctly stated that state law

controls the issues of liability under the provisions of

the Federal Tort Claims Act. From that base, the court

then reasoned that Texas law imposes a duty upon

medical practitioners to exercise only that degree of

care which a general practitioner of ordinary prudence

and skill practicing in the Texarkana, Texas, community

or a similar community would have exercised in the

8

same or similar circumstances.* It is most earnestly

submitted that the federal statutory requirement that

liability issues are controlled by applicable state law

does not require or properly allow such a restricted

community standard to be applied in this case.

Initially, as pointed out in the dissenting opinion by

Chief Judge Brown in this case, it is likely that the

majority opinion below misconstrues the Texas law. It

is most likely that Texas precedent demonstrates a

retreat from the requirement of community or locality

standards in measuring the negligence of medical

practitioners.*

The view that Texas has now abandoned a strict

adherence to the locality or community standard rule is

supported by numerous decisions of the Texas

Appellate Courts. Giles vy. Tyson, 13 S.W.2d 452 (Tex.

Civ. App. 1929); Christian v. Jeter, 445 S.W.2d 51

*In that regard, the opinion of the Court of Appeals contains

the following language: “Applied to this case, Texas law imposes

on the treating physician a duty to exercise that degree of care

which a general practitioner of ordinary prudence and skill,

practicing in the Texarkana community or a similar community

would have excercised in the same or similar circumstances.”

*See Perdue, The Law of Texas Medical Malpractice, 11

Houst. L. Rev. 1, 36-38 (1973) It is also significant to note that

many jurisdictions have recently abandoned the Locality Rule

and have adopted the more realistic 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

practitioner is located is merely one factor to be considered. See,

e.g., Brune V. Belinkoff, 1968, 354 Mass. 102, 235 N.E.2d 793:

Pederson v. Dumouchel, 1967, 72 Wash.2d 73, 431 P.2d 973.

The State of Arkansas, adjacent to the jurisdiction here involved.

has abolished the Locality Rule by judicial decision this year.

Gambill v. Stroud, Ark. 1976, 529 § W.2d 330.

9

(Tex. Civ. App. 1969); Webb v. Jorns, 488 S.W.2d 407

(Tex. 1972).

Even if it be assumed, however, that the locality rule

is still the law of the State of Texas, the Court of

Appeais has misconstrued the rule in its application to

the facts of this case. The Texas Courts have iong

construed the rule as not being a locality rule in the

geographic sense, but, rather, a standard of treatment in

a medical community similar to that in which the

defendant physician practices.*

In sum, a proper reading of the current Texas

decisions leads to the conclusion that the locality

standard to be applied is that of similarity of

circurnstances, not proximity of location.

The impropriety of imposing the location approach

approved in this case to the circumstances of suit by a

Sin Hart v. Van Zandt, Tex. 1965, 399 S.W.2d 791, a

neurosurgeon practicing in Pennsylvania was found to be a

member of the same school of practice as the defendant, a Texas

physician, and was allowed to testify as to the standard of care

which the defendant should have exercised in the treatment of a

Texas patient. In Perdue, The Law of Texas Medical Malpractice,

11 Houst. L. Rev. 1, 36-38 (1973), the author makes the

following analysis of current Texas law on the subject: Although

this rule may appear liberal and completely accepted, close

examination of the holdings in Giles and Christian indicate a

trend toward abandonment of any locality restriction. Giles

appears to apply a national standard to the care required when

using an x-ray. Christian indicates that with the advent of

modern transportation and communication, the reason for the

rule has now disappeared, and that today there is no lack of

opportunity for the physician to keep abreast of current methods

and practice. Taking one step further, the Texas Supreme Court

in King v. Flamm, holds a general practitioner to the standard of

care of a reasonably careful and prudent general practitioner

under the same or similar circumstances.”

10

federal prisoner concerning the care received at a

federal institution is persuasive. Here the plaintiff is in

the custody of the United States, he is confined in a

federal institution, treated by a physician who is a

salaried employee of the United States. The sole

connection this plaintiff and this defendant have with

the State of Texas stems from the purely irrelevant fact

that the correctional institution happens io be located

within the boundaries of that state.

The federal correctional institution involved in this

litigation is situated on the southwestern boundaries of

the City of Texarkana. The city is one of the few in

the nation which encompasses a portion of two states

within its corporate limits. The impropriety of the rule

followed in this case is readily demonstrable by

postulation of a situation under which this federal

enclave were to be physically moved less than two miles

to the east - which would place it within the boundaries

of the State of Arkansas. In Gambill v. Stroud, Ark.

1976, 529 §.W.2d 330, the Supreme Court of Arkansas

has abandoned, as out-of-date in view of modern

communication and travel facilities, the rule that

physicians wili be held to that standard of skill

possessed by doctors in the “same or similar locality.”

Adopted instead was the test whether the physician, if

a general practitioner, has exercised the degree of care

and skill of the average qualified practitioner, taking

into account the advances in the profession.

Thus, while the petitioner here would remain in

federal custody, and incarcerated in premises owned

and operated by the United States, staffed with

employees of the United States, his right to recover

would be sustantially affect by the particular locality in

which he was incarcerated. Upon transfer from one

1]

federal correctional institution to another, under the

rule approved here, the rights of the prisoners of the

United States to care at the hands of the United States

would alter and change depending upon the vagaries of

state law.

The community standard rule, as it now stands under

Texas law, is not a locality rule bounded by the

corporate limits of the City of Texarkana, but, rather, a

standard of treatment in a community “similar” to that

in which the defendant physician practices. In this case,

the only community similar to the one in which this

physician practiced his profession is another federal

facility. The federal correctional institution is not a par’

of Texarkana, Texas, and the standards of medical

competence in that city are in no way shown to be

“similar” to the care afforded federal prisoners in other

similar federal correctional institutions across the

nation.

Whether a national standard is the proper measure of

custodial care in a federal enclave or whether the Court

determines that Texas has retained a locality rule, the

Court of Appeals has approved a construction of the

Texas locality rule which is too narrowly drawn. There

can be no question Dut that the rule in Texas reaches at

least as far as the community or other “similar

communities.” In this case, the community in question

is the federal enclave, and the only similar communities

are other federal enclaves of like nature. _

It is most earnestly submitted that this narrow

drawing of the duty of the United States to its

prisoners violates fundamental concepts of due process

of law. The fundamental fairness which undergirds due

process dictates that the medical treatment afforded

12

federal prisoners may not be determined by the luck of

the draw as to where their prison term is to be served.

CONCLUSION

For the reasons set forth above, the petition for

certiorari should be granted.

Respectfully submitted,

JACK B. SELLERS

300 E. Lee Street

Sapulpa, Oklahoma 74066

JOE A. MOORE

4402 Tuckahoe Road

Memphis, Tennessee 38117

Attorneys for Petitioner

la

APPENDIX A

Panl C. EDWARDS,

Plaintiff-Appellant,

Vv.

UNITED STATES of America,

Defendant-Appellee.

No. 74-2922.

United States Court of Appeals,

Fifth Circuit.

Sept. 17, 1975.

Appeal from the United States District Court for the

Eastern District of Texas.

Before BROWN, Chief Judge, and WISDOM and

COLEMAN, Circuit Judges.

PER CURIAM:

Paul C. Edwards in this action under the Federal

Tort Claims Act, 28 U.S.C. §§1346(b), 2671-80

(1970), to recover damages from the United States for

injuries allegedly received as a result of negligent

medical treatment while an inmate of the Federal

Correctional Institute of Texarkana, Texas (F.C.I.).

Edwards, then fifty-five, entered prison an active man,

though afflicted with diabetes mellitus, angina pectoris,

exogenous Obesity, and labile hypertension. Fourteen

months later, he had a stroke that left him partially

paralyzed on his left side. After his release from prison,

he filed this suit, alleging that the negligent failure of

the treating physicians at F.C.I. to control his diabetes

had been a proximate cause of his stroke. The district

court, after a full trial, found the evidence insufficient

2a

to establish either causation or negligence and dismissed

the case with prejudice. We affirm.

Edwards has been diabetic since at least 1946. For

the seven years before his imprisonment, he had been

under the care of his personal physician, Dr. Richard

Liebendorfer, a board eligible internist. In treating

Edwards, Dr. Liebendorfer had relied on insulin and

dietary control. Edwards’ wife had cooperated closely

with Dr. Liebendorfer. She prepared properly balanced

diabetic meals and varied insulin dosages to meet

demands created by her husband’s dietary indiscretions,

changes in levels of activity, stress, and other factors

affecting his urine sugars. Dr. Liebendorfer had

maintained Edwards on 50 to 80 units of insulin per

day.

When Edwards arrived at F.C.I. he was taking 50

units of insulin daily. The Chief Medical Officer, after

interviewing him, taking his medical history, and

evaluating test results, reduced this insulin dosage to 35

units a day, though he later increased it to 40 units.'

He and his successor maintained the dosage at that level

throughout Edwards’ imprisonment, except for the

period immediately following the stroke when dosages

were increased to as much as 80 units daily. Otherwise,

there were no variations in the daily dosages. When

Edwards first arrived, the Chief Medical Officer

discussed with him dietary principles with which, as a

‘On November 28, 1967, Dr. Liebendorfer wrote inquiring

about the status of Edwards and stating, “I am curious to know

whether or not you were able to get him off insulin and

maintain normal blood sugars. I have felt the regularity of eating

habits if a more strict diabetic control was carried out would be

of great benefit to his diabetic status.”

3a

long-time diabetic, Edwards was familiar. Edwards’

urine sugars were checked four times daily. When high

readings resulted, a test for acetone was run. The

doctors ordered blood tests at regular intervals during

the first eight months of Edwards’ imprisonment.

During the six months preceding the stroke, however,

they ran no blood tests. In January 1969, Edwards had

a stroke which, the experts agreed, bore all the

earmarks of a thrombosis. Edwards was left partially

paralyzed on his left side, impotent, and unable to earn

a living in his former occupation as a used-car salesman.

He was released from prison in April 1969.

[1-6] State law controls the issue of liability under

the Act. United States v. Muniz, 1963, 374 U.S. 150,

162-163, 83 S.Ct. 1850, 10 L.Ed.2d 805; Richards y.

United States, 1962, 369 U.S. 1, 82 S.Ct. 585, 7

L.Ed.2d 492. Texas law, therefore, would determine if

expert testimony is necessary to establish the negligence

of a physician. Rewis v. United States, 5 Cir. 1966, 369

F.2d 595; Watson v. United States, 5 Cir. 1965, 346

F.2d 52, cert. denied, 382 U.S. 976, 86 S.Ct. 544, 15

L.Ed.2d 467. Applied to this case, Texas law imposes

on the treating physicians a duty to exercise that degree

of care which a _ general practitioner of ordinary

prudence and _ skill, practicing in the Texarkana

community or a_ similar community would have

exercised in the same or similar circumstances. See, e.g.,

Bowles v. Bourdon, 1949, 148 Tex. 1, 219 S.W.2d 779;

Bender v. Dingwerth, 5 Cir. 1970, 425 F.2d 378, 384;

45 Tex. Jur. 2d § 131. Texas cases are in agreement that a

. plaintiff, to recover for injuries suffered from medical

negligence, must show, by expert testimony, that the

4a

treating physicians breached the standard of care.? Hart

r Van Zandt, Tex. 1966, 399 §.W.2d 791: Bowles y.

Bourdon. The record suppoits the district court’s

finding that Edwards failed to bear that burden.

Edwards complains of a number of specific acts and

omissions allegedly amounting to negligence: the

reduction of his insulin dosage to 40 units daily; the

failure to provide him with a diet adequate to his

special needs; the refusal to transfer him to a medical

facility equipped to handle his problems; and the failure

of the young practitioners* who treated him to call in a

specialist in internal medicine to monitor Edwards’

health.*

—_---- —

*In Bowles v. Bourdon, the Texas Supreme Court said:

“It is definitely settled with us that a patient has no cause

of action against his doctor for malpractice, either in

diagnosis or recognized treatment unless he proves by a

doctor of the same school of practice as the defendant: (1)

that the diagnosis of treatment complained of was such as

to constitute negligence and (2) that it was a proximate

cause of the patient’s injuries.”

219 S.W.2d 779.

*The first doctor to treat Edwards at F.C.I. was graduated by

Columbia University with an A.B. degree in 1961 and by the

State Univeristy in New York, Downstate Medical Center College

of Medicine, in Brooklyn, New York in 1965. The Public Health

Service assigned him to F.C.I. after completion of his internshir

at the University of Pittsburgh Health Center Hospitals. His

successor was graduated with a B.S. degree from the University

of Texas in 1962 and the St. Louis Medical Scnool in 1967. He

was assigned to F.C.I. after his internship at Methodist Hospital

in Houston, Texas. Both are now board certified internists.

*Edwards also presses the contention that the failure to take

his blood presssure for six months prior to his stroke constituted

negligence on the part of the Chief Medical Officer. The record,

however, suggests no causal connection between this omission

foorltittvgd

Sa

We pass the question of the causal connection

between these alleged failures and the stroke. The most

salient defect in Edwards’ case was the failure to

establish by expert testimony that any of these acts

amounted to negligence. Dr. Liebendorfer, Edwards’

only expert witness, did not express the opinion that

Edwards had received improper medical care, nor did he

testify as to a standard of care, a predicate on which

the court might have based a finding of negligence.

Dr. Liebendorfer testified that many prominent

specialists believed that frequent injections of varying

doses, correlated to urine sugar levels, was preferable to

the single daily dose administered at F.C.I. He offered

this, as the district court pointed out, not as a standard

of medical care but as a working medical hypothesis.

He conceded that there were other medically acceptable

approaches. He did not criticize the decision to reduce

the insulin Edwards received, nor did he indicate how

the level of insulin administered should be determined.

He did not indicate that the readings turned up by

Edwards’ urine tests should have alerted the doctors

that his diabetes was not in control.’ In fact, he did

(footnote continued from procecding page)

and Edwards’ stroke, which the experts agreed had all the

appearances of a thrombosis. Tests administered after the stroke

revealed no evidence of a hemorrhage. Similarly, ‘here is nothing

to suggest that the refusal to permit him to take certain

medications prescribed by Dr. Liebendorfer was a cause of the

stroke.

‘Tests run after meals often registered high readings. Early

morning tests were always negative or showed only a trace of

sugar. A government expert, Dr. Jack C. Smith, testified that

higher urine sugar readings after meals were normal and to be

expected. Dr. Liebendorfer said nothing to contradict this

Statement.

(continued)

6a

not indicate why he though the diabetes had not been

in control. He did not testify that a diabetic, exercising

judgement and restraint, could not obtain a generally

adequate diet in the prison cafeteria, although after an

examination of typical ten-day menu, he concluded it

“might be spotty”.° He conceded he had no first hand

knowledge of the food served there. He also expressed

some doubt about the average diabetic inmate’s ability

to avoid some of the items offered that are proscribed

for diabetics. He did testify that he believed Edwards

should have seen a consulting specialist in internal

medicine once a month. He conceded at the same time

that general practitioners regularly treated similar

patients without the aid of specialists.

Dr. Jack Smith testified ‘or the United States. Dr.

Smith is a diplomate of the American Board of Internal

Medicine, and internist in a nineteen-doctor clinic in

Texarkana, and a member of the faculty of the

Louisiana State Univeristy School of Medicine, Shreve-

port, Louisiana. He testified that the food served at

F.C.1. was comparable to a commercial cafeteria; that

footnote continued trom proccedime page)

Dr. Liebendorfer, in response to questions put to him by the

court, did testify that it was recommended that blood sugar tests

be run about once every two months in the case of a patient

whose diabetes is not easily controlled. He did not indicate a

conviction that Edwards’ blood should have been checked that

often. Indeed, he testified that in Edwards’ case, there was a very

high correlation between blood sugars and urine sugars. One of

the F.C.1. doctors cited this correlation as one of the reasons for

taking fewer blood tests.

°Examining the whole menu, Dr. Liebendorfer pointed to two

meals that he said were inadequate for a diabetic. Dr. Smith,

examining the same menu, found one breakfast inadequate

because it failed to offer an adequate “fruit exchange”.

/

7a

the exchange method of diet control was available to

appellant nine out of ten days on the ten-day menu

sample; that all the elements of a proper diabetic dict

were there; that Edwards, following instructions, could

have eaten food at F.C.I. consistent with a diabetic diet

except on one day when he could not get an adequate

fruit exchange. He said that the treatment of Edwards

at F.C.i. was consistent with the standard of treatment

in the community: that [the] decision to reduce

Edwards’ insulin from 50 units to 35 units and three

months later to 40 units was medically acceptable. Dr.

Smith summarized his testimony as follows:

“On a seale of ideal, fair, satisfactory and

unsatisfactory, | would classify Mr. Edwards as

fair. His control was fair. He was free of

symptoms. His blood sugar was low enough that

his 6:00 a.m. sugars were usually trace[d] to

negative. His sugars taken after meals usually

showed the presence of a large amount of sugar,

which is more or less to be expected... . There’s a

physiological reason for trying to keep patients on

35 to 40 units of insulin. The normal human body

makes 40 units of insulin a day. This is

physiologic. ...1 think [his F.C.I. doctors] assess-

ment and his medication was proper, so that’s

about all [ have. | think that sums it up.”

Dr. Liebendorter went so far as to say that he

believed the F.C.1. physicians had committed a mistake

in judgment. This alone is not enough to establish

liability. //art vy. Van Zandt; Bowles vy. Bourdon. Expert

testimony must establish a professional standard of care

and a deviation from tat standard. On this record we

need not consider the Edwards’ contention that the

district court read Texas law too narrowly in holding

that the plaintiff had the burden of showing a deviation

from the /ocal standard of care: that the “community”

8a

involved is the federal penal system and the standards

of care to be adhered to must be measured against

those of the national community. We find nothing in

Dr. Liebendorfer’s testimony or in the testimony of the

government’s experts to establish a deviation from any

professional standard of care.

The judgment of the district court is affirmed.

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 infirmitizs suffered by the trial court’s

opinion.

infirmity No. |

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.' I believe that such strict adherence by the

'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

docoiors [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.

f/continned)

9a

trial court to what has been termed the Locality Rule

cannot be squared with developing Texas precedent? as

well as that of other jurisdictions.’ Surely modern

(footnote continued from proceeding page;

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

ithe principles of Texas law regarding medical malpractice.

See Appendix at 38-39.

*See generally, Perdue, The Law of Texas Medical Malprac-

tice, 11 Houst.L.Rev. |, 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, ¢.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.ld 661. at 666; Douglas y.

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,

1S] 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).

10a

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.*

In Texas it was long ago established that a doctor

need not live and work in a community to qualify as an

expert witness® and in Hart v. Van Zandt, Tex., 1965,

399 S.W.2d 791, a neurosurgeon practicing in Pennsyl-

vania 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,®

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.

4See Perdue, The Law of Texas Medical Malpractice, supra at

36.

STurner vy. 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.

lla

Infirmity No. 2

The Burden Of Proof Is Overweight

Another pointed inadequacy of the trial court’s

opinion’ and that of the majority of this Court® is that

the plaintiff was required to show by expert testimony

that the prison doctors were negligent.

Substantial Texas authority? 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.

7The 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 yv. 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. 7843.

*The leading case is Snow v. Bond, Tex., 1969, 438 S.W.2d

549, 550-51 which states in pertinent part:

/continued)

12a

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).'°

This basic error then leads the Court to conclude

that there is no evidence of “negligence’’.'' Of course

(footnote continued from proceeding page)

“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 and 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 summar-

izing, qualifying or embellishing his evidence with expres-

sions 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.—Ama-

rillo, 1970, 451 S.W.2d 791, reversed on other grounds, Tex.,

456 $.W.2d 901; cf Bender v. Dingwerth, 5 Cir., 1970, 425 F.2d

378, 385.

The Texas Supreme Court had held that while expert

testimony as to the “possibility” 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 SW.2d 779; see also Musselwhite, Medical Causation

Testimony in Texas: Possibility v. Probability, 23 Sw.L.J. 622,

624.

'p 7845.

13a

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.'? Upon a close examination

of the substance of Dr. Liebendorfer’s'* testimony, it is

evident that the prison doctors were to some degree

negligent'* and that their negligence was a contributing

"Insurance Company of North America v. Myers, Tex., 1966,

411 S.W.2d 710.

'3Dr. 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 plaintiff's expert witness, Dr. Liebendorfer, made

several statements which indicated that the prison doctors

negligently treated plaintiff's diabetic condition. See, e.g., R.Vol.

11f 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. II] at 91 (prison officials should have

provided a special diet for inmates with need for dietary

control); R.Vol. If] at 99 (the prison doctors should have

checked plaintiff's blood pressure more often); R.Vol. III 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).

14a

cause'*® 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'® 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’? to provide for the

'SThere is also ample expert medical testimony of causation.

See, e.g., R.Vol. Ili at 68-69 (causal connection between diabetes

and circulatory ailments and more particularly stroke); R.Vol. III

at 86 (failure to control plaintiffs insulin dosages and diet was a

contributing cause of the stroke); R.Vol. II] 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_ 7845.

'7Bourgeois 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.

1Sa

health and welfare of federal prisoners.'®

In the case at hand the parties stipulated that the

government had notice of the plaintiff's physical

infirmities’? before he was incarcerated. Nevertheless,

the prison officials following routine practice confis-

cated 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.2°’ The doctors in this case agree that

818 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;

(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 instituiions 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. /d. Dr. Liebendorfer testified

that these drugs were necessary for the continued maintenance of

plaintiff's health. See R.Vol. Il at 100-01.

l6a

proper treatment of diabetes includes both dietary

control and insulin injections. Yet, the testimony of Dr.

Liebendorfer and Dr. Cyprus indicates that the prison

diet was inadequate for a diabetic’s needs?’ and Dr.

Hotchkiss stated that the plaintiff had a hard time

adhering to a proper dietary regimen.” Nevertheiess,

prison doctors refused to recommend the establishment

of a special cafeteria line for diabetics.?* While I

recognize that proper dietary control may allow a

physician to reduce insulin dosages, it seems inappro-

priate for Dr. Hotchkiss to reduce the plaintiff's dosage

from 50 units to 35 units per day”* 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 system to force a prisoner to live

under conditions which are repugnant to his individual

physical needs. Similarly, it has been held in this

Circuit?’ ‘that state prisons have the duty to provide

21For medical testimony to the effect that the prison diet was

inadequate for a diabetic, see R.Vol. III at 86, 91, 99, 126, 301.

22R'Vol. Il at 96.

22 Vol. Il at 98.

24R Vol. Il at 29-30.

25 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 off icials); 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 ).

17a

adequate medical care and failure to do so gives rise to

a cause of action with due process underpinnings under

42 US.C.A. §1983. I believe that the liability of

federal prisons should be judged by the same standards

under the Federal Tort Claims Act.?°

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 against

stress, as I did in my dissenting opinion in Logue y.

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 “[olnce 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

und attempting to attribute the responsibility to

someone else.” /ndian Towing Company y. United

States, 1955, 350 U.S. 61. 69, 76 S.Ct. $22, 126. 100

Particularly, 18 U.S.C.A. § 4042.

18a

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 r-mand the

case for a consideration of the facts in light of the

correct legal standards rather than artificially charac-

terizing this case as a malpractice suit between a private

citizen and a freely selected physician.

lb

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October Term, 1974

No. 74-2922

D.C. Docket No. CA 1943

PAUL C. EDWARDS,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court for the

Eastern District of Texas

Before BROWN, Chief Judge, and WISDOM and

COLEMAN, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Eastern District of Texas, and was argued by counsel:

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be, and the same

is hereby, affirmed;

2b

It is further ordered that plaintiff-appellant pay to

defendant-appellee, the costs on appeal to be taxed by

the Clerk of this Court.

September 17, 1975

JOHN R. BROWN, Chief Judge, dissenting.

Issued as Mandate:

le

APPENDIX C

IN THE UNITED STATES COURT

OF APPEALS

FOR THE FIFTH CIRCUIT

PAUL C. EDWARDS,

versus

UNITED STATES OF AMERICA,

Appeal from the United States District

Court for the Eastern District of Texas

ON PETITION FOR REHEARING

(JANUARY 20, 1976)

Before BROWN, Chief Judge. WISDOM and COLE-

MAN, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the

same is hereby denied.