Ronald Marek, as Administrator of the Estate of Beth G. Marek, Deceased v. United States

639 F.2d 1164, 1981 U.S. App. LEXIS 19218

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 16, 1981
• Docket: 79-3336
• Status: Published

Opinions

FRANK M. JOHNSON, Jr., Circuit Judge:

Ronald Marek, as administrator of the Estate of Beth Marek, brought this Florida Wrongful Death Act suit under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680. Plaintiff alleged that the medical malpractice of the agents, servants, and employees of the United States of America resulted in the wrongful death of Beth Marek. Following a nonjury trial, the district court found for defendant. Plaintiff appeals. We affirm.

The district court found the facts to be as follows. In 1975 Ms. Marek, the wife of a sergeant at Patrick Air Force Base, developed chronic tonsillitis. The physicians at the base hospital recommended that she see a civilian ear, nose, and throat specialist for treatment. They gave her a list of civilian doctors, from which she chose the name of Dr. Richard Goldcamp.

On October 24, 1975, Dr. Goldcamp performed on Ms. Marek a tonsillectomy and a fracture of the inferior turbinates at Wuesthoff Memorial Hospital, a private hospital near Ms. Marek’s home. She was released on October 26.

On October 30, 1975, Ms. Marek started bleeding from the tonsillectomy site, and she was treated in the emergency room of Wuesthoff Memorial. She returned home, but the bleeding recurred. This time she went to Dr. Goldcamp’s office, where he cauterized the left tonsillar fosa with silver nitrate. Ms. Marek again returned home. That evening the bleeding again recurred, and she was admitted to Wuesthoff Memorial. The next morning Dr. Goldcamp sutured the bleeding area. She was discharged on November 2.

On the morning of November 5, Ms. Marek began bleeding again. Her husband called Dr. Goldcamp, who told him to bring her to the emergency room at Wuesthoff Memorial. Before they could leave, however, Ms. Marek began bleeding profusely. The blood began squirting and projecting several feet in pulsating streams from her mouth. Mr. Marek decided he should not take the time to drive to Wuesthoff Memorial, but should take his wife to Patrick Air Force Base Hospital, which was only six blocks from the Marek home. Mr. Marek called Dr. Goldcamp’s office to notify them that he was going to Patrick. He went to the bathroom, picked up his wife, and carried her to the ear. Blood continued to gush out of her mouth. About halfway to the hospital, Ms. Marek’s head tilted back so that the blood began bubbling in her mouth. Her husband reached behind her neck and slid her body down so her head was supported by the seat. When they arrived at the hospital, Mr. Marek carried his wife into the emergency room. Once inside the emergency room, he placed her on a table with the assistance of Dr. Avrohm Faber who was in the emergency room. Mr. Marek told Dr. Faber that the bleeding was resulting from a tonsillectomy. Ms. Marek appeared unconscious to Dr. Faber and an attending nurse; blood was flowing freely from her nose and mouth. She was having difficulty breathing.

A Core 0, which indicated that an emergency necessitated that all available personnel come to the emergency room, was announced over the public address system. Several doctors and other employees of the hospital immediately reported to the emergency room. Meanwhile, Dr. Faber attempted to establish an airway. He could not open her mouth because her jaws were locked in trismus, a muscle spasm, so he attempted to establish an airway by surgical means. When he made his incision,¹ he discovered that an endotracheal tube was already, in place. While Dr. Faber had been working on the incision, a Major Least, a nurse-anesthetist who had responded to the Core 0, had performed a nasal intubation, that is, passing an endotracheal tube through the nose.

Once the endotracheal tube was in place, Major Least attempted to ventilate Ms. Marek. Ventilation was difficult, however, because there were some secretions of blood in her lungs, and Major Least found it necessary to suction these secretions. Meanwhile, Ms. Marek’s heart was not beating effectively, so several employees began cardio pulmonary resuscitation. Because Ms. Marek’s stomach appeared distended, Major Least inserted a nasogastric tube. While inserting the nasogastric tube, the endotracheal tube became dislodged, but it was soon manipulated in place.

Dr. Goldcamp, Ms. Marek’s civilian physician, arrived at the hospital about an hour after Ms. Marek was brought there. He asked Dr. Faber to ligate the left external carotid artery to control bleeding in the left tonsillar fosa area. After this was accomplished, Dr. Goldcamp sutured the tonsillar area. Ms. Marek was then transported to Wuesthoff Memorial, where she remained in a comatose state until her death on November 12, 1975. The principal cause of death was hypoxic encephalopathy, lack of oxygen to the brain.

Plaintiff contends the district court misunderstood the testimony relative to the applicable standard of care. At trial plaintiff produced expert testimony that, to accord with the standard of care customarily followed in the community, defendants should have established an airway within four minutes of Ms. Marek’s arrival. In its memorandum opinion the trial court discussed this testimony, saying that the expert testified that an airway must be established within four minutes for the patient to survive. Reasoning that Ms. Marek’s airway was blocked at least a minute before she arrived at the hospital, the court concluded that, even though defendants were able to intubate her within a minute or two, plaintiff had failed to prove that any action by defendants could have prevented Ms. Marek’s death.

We agree with plaintiff that the district court improperly interpreted the expert testimony regarding the four-minute standard.² However, we find this error to-be harmless because the district court’s opinion clearly indicates that the court found that an airway was established within four minutes of her arrival at the hospital.

It is true that the testimony presented by the opposing parties was conflicting. Defendants produced testimony from which the district court could have concluded that an airway was established within a minute of her arrival. On the other hand, plaintiff produced testimony from which the district court could have concluded that fifteen minutes elapsed from the time of arrival to the time an airway was established. It is not for this court to decide which evidence is more credible; “[findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Fed.R.Civ.P. 52(a); see, e. g., Chaney v. City of Galveston, 368 F.2d 774, 776 (5th Cir. 1966). In the absence of clear error, the district court’s holding will stand. We have carefully reviewed the record, and we find no such error.

The judgment is AFFIRMED.

1 . Dr. Faber made the incision in the neck at the thyrohyoid notch, between the hyoid bond and thyroid cartilage. This incision was not a tracheotomy or tracheostomy, which are synonymous terms for an incision made below the cricoid cartilage into the trachea. This incision did not establish an airway, and the district court found that, standing alone, the fact that Dr. Faber made the incision in the wrong place would compel a finding that the required standard of care had not been afforded Ms. Marek. But since the desired ventilation was established via the endotracheal tube at the same time it would have been established through surgery, the district court found, and we agree, that the incorrect incision did not proximately cause Ms. Marek’s death.

2 . It should be noted that in its opinion the district court stated that the only testimony as to the standárd of care was that an airway must be established in four minutes for a patient to survive. Although the Government did not offer an expert witness to testify what the standard of care for establishing an airway is, the Government did produce an expert who testified that, in a hypothetical situation incorporating the facts of this case, the standard of proper medical care for establishing an airway was met. Thus, the district court had available evidence from which it could determine that, even if the four-minute standard was not met, the standard of proper medical care for establishing an airway was met.