Karen Keir and Mary Keir, Individually, and as Next Friend and Mother of Karen Keir v. United States
Docket: 87-5586
Court: Court of Appeals for the Sixth Circuit; September 8, 1988; Federal Appellate Court
Karen and Mary Keir appeal the judgment of the district court, which ruled in favor of the United States in a medical malpractice case under the Federal Tort Claims Act. The case stems from the loss of sight in Karen Keir's left eye, which occurred after she was born prematurely with hyaline membrane disease and subsequently underwent oxygen therapy. By age two, the risk for developing retrolental fibroplasia, a condition linked to oxygen therapy, was deemed nonexistent, eliminating the need for further retinal examinations.
On September 30, 1977, at two and a half years old, Karen was taken to the military optometry clinic because of intermittent strabismus in her left eye. She was examined again on November 28, 1977, where her condition persisted despite wearing glasses. Following her father's transfer to Korea, Karen and her mother moved to Nashville, where Dr. Willard Tirrill treated her from January 1978 to February 1979. During her visits, Dr. Tirrill diagnosed her with farsightedness and accommodative esotropia, believing glasses to be an effective treatment.
Dr. Tirrill conducted dilated examinations but did not specify whether he used a direct or indirect ophthalmoscope, which is critical since the latter allows for a broader view of the retina. No retinal pathology was detected during these examinations. Dr. Tirrill noted challenges in assessing Karen's visual acuity due to her age and communication limitations, but he found no reason to suspect any issues beyond the diagnosed accommodative esotropia when he concluded his treatment. The appellate court reversed the district court's judgment and remanded for further proceedings.
Following the Keir family's transfer to Fort Dix, New Jersey, Mary Keir sought an ophthalmology appointment but was directed to first see an optometrist due to hospital policy. On July 20, 1979, she and her daughter Karen attended the optometry clinic, where they met Dr. Eugene Channing, an Army optometrist. Mary initially believed Dr. Channing was an ophthalmologist.
Dr. Channing was required to take a medical history, but he inaccurately recorded Karen's ocular history, omitting her prior diagnosis of strabismus and care by an ophthalmologist. Instead, he noted a left esotropia. During the examination, Dr. Channing assessed Karen's glasses and performed an external and internal eye examination, which revealed no pathology. He later requested a letter from Karen’s former ophthalmologist, Dr. Tirrill, who confirmed Karen's need for continued ophthalmological care.
Despite a standard operating procedure at Walston Army Hospital that mandated referrals for patients with strabismus, Dr. Channing continued to treat Karen based on his findings, which he deemed manageable with glasses and other interventions. When Dr. Tirrill’s letter was presented to him and indicated no pathology, Dr. Channing believed he could manage her condition independently. During a follow-up examination on September 25, 1979, he conducted a retinoscopy but did not take visual acuities.
On October 3, 1979, Karen was evaluated under cycloplegia, revealing she was farsighted with aided far visual acuity of 20/30 in the right eye and 20/40 in the left, indicative of amblyopia. Dr. Channing recommended patching for the left eye and scheduled a follow-up in three months. During the February 12, 1980 follow-up, the patching was ineffective as it frequently slipped off, and Karen struggled to keep it on, though her visual acuity improved to 20/30 in both eyes. Dr. Channing altered her prescription due to scratched lenses, performed a retinoscopy, and found no signs of eye pathology, deciding to continue the patching for an additional three months.
Karen did not return until August 11, 1980, delayed primarily due to her mother's pregnancy complications. During this visit, a white spot was noted on Karen's eye, prompting an immediate referral to Dr. Biagio Mignone at Fort Dix hospital. Dr. Mignone expressed significant concern regarding Dr. Channing's previous treatment and suspected either a dogworm infection or a tumor. An examination under anesthesia on August 12, 1980, revealed substantial inflammation in the vitreous and a large tumor, estimated to have been present for six to eight months.
Following this, Karen was referred to Dr. Jerry Shields at Wills Eye Hospital, where initial examinations identified a fluffy, white nodular retinal mass with satellite lesions in her left eye, and ultrasonography confirmed the diagnosis of retinoblastoma, a common childhood intraocular cancer. Dr. Mignone also expressed dissatisfaction with Dr. Channing's care for Karen and attempted to secure her medical records, although the request was lost or destroyed.
On August 15, 1980, Karen underwent a second ocular examination under anesthesia, where Dr. James Augsburger and Dr. Shields confirmed a peripheral white tumor in her left eye, measuring 13 by 15 mm and 8 mm thick, with signs of seeding. A pediatric examination at the Children's Hospital Oncology Unit revealed no metastatic retinoblastoma, indicating the cancer had not spread beyond the eye. Due to the tumor's location and vitreous seeding, the only treatment options were external beam irradiation or enucleation. Karen refused enucleation, leading the family to choose radiation therapy. She received 5,076 to 5,139 rads over 27 treatments, concluding on October 1, 1980. In December 1981, after moving to Nashville, she began treatment under Dr. Steven Feman at Vanderbilt University Medical Center.
While Karen's cancer was cured, her visual acuity in the left eye is now 20/300, with a cataract and a detached retina, leaving no hope for vision improvement. The plaintiffs argue that her vision loss resulted from Dr. Channing's negligent treatment and delayed diagnosis, which they claim limited her treatment options. Expert testimony in the case discussed appropriate treatment procedures for similar symptoms and the growth rate of retinoblastoma.
Dr. Channing acknowledged knowing how to use an indirect ophthalmoscope but chose not to, adhering to a New Jersey practice standard favoring direct ophthalmoscopy. He believed retinoblastoma would not cause eye crossing unless the tumor was in the macula, which was not the case for Karen. In contrast, Dr. Mignone criticized Dr. Channing's failure to refer Karen to ophthalmology, asserting that the standard operating procedure at Walston Army Hospital mandated such a referral, which Dr. Channing had opposed. Dr. Mignone maintained that even without the policy, the standard of care would require a referral, especially given that Karen's mother had informed Dr. Channing of prior ophthalmology visits.
Dr. Mignone testified about alternative treatments for eye tumors, particularly cryotherapy and photocoagulation. Cryotherapy effectively kills ocular tumors without systemic side effects. Photocoagulation, which uses light to burn tumors, is challenging for peripheral lesions. He indicated that if Karen's tumor had not seeded at diagnosis and conservative treatments were available, her vision prognosis would be excellent. However, on cross-examination, he acknowledged his lack of experience with retinoblastoma treatments and admitted to having only encountered one similar case prior to Karen's. Dr. Mignone estimated the tumor had been present for six to eight months but noted the variable growth patterns of such tumors.
Dr. Ralph Wesley, an ophthalmic plastic surgeon, supported the plaintiffs’ case, stating that cases like Karen's should be referred to an ophthalmologist. He emphasized that any child with a crossed eye should be evaluated for retinoblastoma, adhering to established health care standards. Dr. Wesley criticized Dr. Channing for not performing a dilated examination with an indirect ophthalmoscope during Karen's initial visit, which he considered essential for a comprehensive assessment of the retina. He opined that a competent examination could have diagnosed the tumor during the February 1980 visit and criticized Dr. Channing’s failure to refer Karen to an ophthalmologist. Dr. Wesley also noted that the presence of vitreal seeding indicated advanced tumor progression and that earlier diagnosis and treatment could have improved Karen's chances for maintaining vision.
Dr. Robert Estes provided detailed testimony regarding the diagnosis and treatment of retinoblastoma, focusing on the case of Karen Keir. Although he had not treated retinoblastoma directly, he was qualified to discuss treatment options due to his familiarity with the disease. Estes emphasized the necessity of accurate and timely diagnosis, stating that photocoagulation is preferred for small retinoblastomas, while cryotherapy is also suitable. However, he noted that photocoagulation is contraindicated in cases with widespread vitreal seeding, which applied to Karen's situation. He expressed concern that external beam irradiation, the treatment Karen received, poses greater complications than cryotherapy.
Estes endorsed the standard operating procedure at Fort Dix as reasonable but criticized Dr. Channing's treatment approach for lacking a dilated examination and involving extensive patching. He asserted that an ophthalmologist could have diagnosed Karen's tumor by February 1980 but acknowledged that estimating tumor growth rates involves speculation. He suggested that, under optimal conditions with cryotherapy or photocoagulation, Karen could have retained normal vision in her left eye, though he had never seen these treatments used exclusively for retinoblastoma.
Dr. Jerry Shields, who treated Karen at the Wills Eye Center, testified about the clinic's extensive experience with retinoblastoma cases. He highlighted the importance of using an indirect ophthalmoscope for diagnosis and discussed the common complications associated with external beam irradiation, including radiation retinopathy, cataracts, and glaucoma. He confirmed that photocoagulation is the preferred treatment for select small retinoblastomas due to its lower complication rates compared to irradiation, although it is not suitable for cases with widespread vitreal seeding. Shields also noted the effectiveness of cryotherapy but warned of serious complications such as retinal detachment and vitreous hemorrhage.
In terms of tumor origin, Shields estimated that it likely began in the peripheral retina. He indicated that, by the time he evaluated the tumor, the conditions had progressed beyond the suitability for cryotherapy or photocoagulation, and cobalt plaque treatment was not feasible at diagnosis.
Dr. Shields testified that enucleation is typically recommended for unilateral retinoblastoma, but due to the early detection of the tumor in this case, he believed radiation treatment was warranted. He noted that conservative treatment of unilateral peripheral retinoblastoma is rare because most cases are diagnosed at advanced stages. Dr. Steven Feman, who treated Karen after her release from Wills Eye Center, criticized Dr. Channing's treatment, stating that a competent ophthalmologist would have diagnosed the tumor at least six months prior to August 1980, and faulted Dr. Channing for failing to conduct a dilated indirect ophthalmoscopy during the February 1980 examination. Feman explained that vitreal seeding typically occurs late in the disease, rendering cryotherapy and photocoagulation ineffective afterward. He also asserted that the tumor's anterior origin should not have impeded its discovery during a thorough examination. Of the retinoblastoma cases he diagnosed, over half were treated with enucleation, while less than half received external beam irradiation, and cryotherapy was never the primary treatment.
Dr. Ronald Holweger, testifying for the government, stated his standard of care included annual dilated examinations for symptomatic patients. He acknowledged the challenges of using an indirect ophthalmoscope on children but concluded that Dr. Channing had no reason to conduct a dilated examination during his care of Karen. He also could not confirm with certainty that the tumor was present during any of Dr. Channing's evaluations. Dr. David Abramson, an expert in ophthalmological oncology, noted that 80 percent of the children he examines have tumors filling the eye at first diagnosis, with 95 percent of cases initially identified by mothers rather than physicians.
Dr. Abramson testified that photocoagulation is ineffective for tumors located anterior to the equator, such as Karen Keir's tumor, due to the requirement for light to bend to reach that area. Cryotherapy has a success rate of approximately 70% for tumor destruction but necessitates anesthesia for each session, which carries risks with repeated general anesthetic use. External beam irradiation, the treatment applied in this case, is rarely used in unilateral retinoblastoma, with fewer than 100 cases in the U.S. achieving eye preservation. Its advantages include effective response to low radiation doses, absence of anesthesia, and good patient tolerance.
Dr. Abramson noted that indirect ophthalmoscopy is typically ineffective for viewing anterior to the equator in children without scleral depression due to discomfort and lack of cooperation. He recounted a personal experience with his son, highlighting the difficulty of examining the periphery in young patients. He also indicated that retinoblastomas can exhibit rapid growth, with tumors sometimes appearing within three months. In this case, he concluded that Karen's esotropia was not attributable to the retinoblastoma, as the tumor did not affect the macula or visual axis, and confirmed that the tumor originated anterior to the equator. Ultimately, he stated that cryotherapy, photocoagulation, and cobalt plaque were not viable treatment options for Karen's tumor, leaving irradiation and enucleation as the only remaining treatments.
Dr. Abramson testified that tumor seeding does not necessarily indicate advanced stages; he noted that small tumors could show signs of seeding and that size was only loosely correlated with this phenomenon. He emphasized that he had never seen a small peripheral tumor in a patient without a family history of retinoblastoma, explaining that without such a history, doctors would not typically investigate the eye's periphery. Therefore, the size of Karen's tumor did not imply a delayed diagnosis.
Dr. Abramson assessed that it was "extremely highly unlikely" that Karen's tumor existed during her initial examination by Dr. Channing in July 1979 and also believed it was unlikely to have been present in subsequent examinations in September and October 1979. He doubted the tumor's presence during a February 12, 1980, examination, stating it would have been nearly impossible to detect due to its location and the lack of a family history.
Dr. Roger Hiatt supported Dr. Abramson’s testimony, acknowledging the challenges of performing a thorough eye examination on children and criticizing Dr. Channing for not doing more. However, he agreed that there was no sufficient medical history to warrant an aggressive examination for conditions like retinoblastoma.
The district court ruled in favor of the United States, concluding that the plaintiffs' negligence claim regarding internal safeguards involved a discretionary function with no waiver of immunity. The claim of lack of informed consent was deemed a battery under state law, also without immunity waiver, and claims of misrepresentation fell under an immunity exception. The court dismissed the negligence per se claim, stating New Jersey law treats statutory violations as evidence of negligence rather than conclusive proof. Finally, the court found that Dr. Channing had adhered to accepted optometric practices, reasonably did not suspect retinoblastoma, and thus his examination methods were appropriate. The plaintiffs subsequently appealed this judgment.
The Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346(b), allows individuals to sue the United States for damages resulting from negligent acts by government employees acting within their official capacity, provided the U.S. would be liable as a private entity under local law. However, this waiver of immunity is limited by exceptions in 28 U.S.C. Sec. 2680, particularly the discretionary function exception outlined in Sec. 2680(a). This exception states that the FTCA does not apply to claims based on an employee's actions taken with due care in executing a statute or regulation, or in performing a discretionary duty, regardless of whether the discretion was abused.
In this case, plaintiffs argued that the district court erred in determining that Dr. Channing's failure to follow a Standard Operating Procedure (SOP) fell under the discretionary function exception. They contended that non-compliance with a formal procedure does not qualify as a discretionary function. The court referenced various precedents indicating that decisions involving policy implementation are discretionary, while failures to adhere to established safety protocols do not afford the government immunity.
The district court affirmed that the government's failure to create and enforce internal safeguards constituted a discretionary function, a point the plaintiffs did not contest on appeal. However, the plaintiffs correctly asserted that Dr. Channing's failure to comply with the SOP is not shielded by the discretionary function exception, allowing their suit to proceed on those grounds.
Additionally, the district court held it lacked jurisdiction over the plaintiffs' claims related to lack of consent for treatment by an optometrist, clarifying that informed consent under New Jersey law is a negligence issue tied to a healthcare provider's duty to disclose risks to the patient before treatment.
Plaintiffs must demonstrate that a failure to disclose risks was negligent, leading a reasonable person to decline a medical procedure had the risks been adequately communicated, according to New Jersey law (Perna v. Pirozzi). However, a distinction exists between informed consent and a total lack of consent, the latter constituting battery. In this case, the district court determined that the crux of the plaintiffs' claim was a complete absence of consent for treatment, categorizing it as battery, which is immune from suit under U.S. law (28 U.S.C. § 2680(h)). The court overlooked that 10 U.S.C. § 1089(e) modifies this immunity for medical malpractice cases against military doctors. This statute allows injured parties to pursue claims under the Federal Tort Claims Act (FTCA), even if such claims might be framed as battery under state law. Legislative history supports that § 1089 is intended to waive immunity for malpractice actions, making the FTCA the sole remedy for claims that can be construed as malpractice, including those arising from assault and battery. New Jersey law maintains a clear distinction between cases of total lack of consent and those involving insufficient disclosure, where informed consent requires physicians to adequately inform patients of risks and alternatives before treatment.
In Perna v. Pirozzi, the New Jersey Supreme Court established that a claim based on a total lack of consent, such as when a physician performs an operation without the proper consent, constitutes battery, allowing for nominal damages regardless of injury. In the current case, the district court mischaracterized the plaintiffs' claim as battery; it is, in fact, grounded in negligence, specifically the lack of informed consent due to Dr. Channing's failure to disclose his status as an optometrist. The plaintiffs contended that they were misled into believing Dr. Channing was an ophthalmologist, which they argued affected their consent to treatment. They also cited a violation of N.J.Rev. Stat. Sec. 45:12-26 regarding Dr. Channing's use of the title "Dr." without qualification. The district court ruled these claims were barred by the misrepresentation exception to the Federal Tort Claims Act, 28 U.S.C. Sec. 2680(h). However, this interpretation is deemed erroneous based on Ramirez v. United States, which held that the misrepresentation exception does not apply to malpractice claims. The Ninth Circuit emphasized that Congress intended to allow malpractice claims against the government, and distinguishing misrepresentation from medical malpractice is unwarranted. Other courts have similarly found that when misrepresentation is a secondary element of a medical malpractice claim, it does not invoke the misrepresentation exception in section 2680(h).
The district court's ruling that plaintiffs' claims based on misrepresentation were barred by the Federal Tort Claims Act (FTCA) was found to be incorrect. It was determined that Dr. Channing's failure to adhere to the Standard Operating Procedures (SOP) did not qualify as a discretionary function under the FTCA. The plaintiffs' allegations regarding informed consent were categorized as negligence claims under New Jersey law, thus not falling under the battery exception in 28 U.S.C. § 2680(h). Even if classified as a battery claim, jurisdiction remained with the district court due to 10 U.S.C. § 1089(e).
The core of the plaintiffs' complaint asserted that Dr. Channing's negligence in treating Karen Keir led to a delayed diagnosis and increased the risk of requiring invasive treatments, which allegedly resulted in the loss of her left eye. The negligence claim incorporated various elements, including misrepresentation and violations of the SOP and New Jersey statutes as negligence per se, but fundamentally asserted that Dr. Channing did not meet the standard of care, causing injury to Karen Keir.
The standard of review for the district court's negligence findings is narrow, only being overturned if clearly erroneous. The appellate court will uphold the district court's findings if they are plausible based on the entire record, even if the appellate court would have weighed the evidence differently. The plaintiffs also claimed Dr. Channing was guilty of negligence per se for practicing medicine unlawfully, in violation of specific New Jersey statutes, including N.J.Rev. Stat. § 45:9-5.1 and N.J.Rev. Stat. §§ 45:12-1 and 45:12-26, as well as for breaching the SOP.
To assess whether the plaintiffs have a valid claim under New Jersey law, the court examines the concept of negligence per se. Under New Jersey statutes, a statutory violation is not considered negligence per se but merely evidence of negligence. The court agrees with the district court's determination that plaintiffs cannot recover under this theory, noting that even if standard operating procedures (SOP) were legally binding, violating them would not elevate the status of negligence per se.
In medical malpractice cases, plaintiffs must demonstrate injury due to a physician's failure to meet the standard of care typically exercised by peers in similar circumstances. The plaintiffs argue that Dr. Channing was negligent for not referring a patient, Karen Keir, to an ophthalmologist and for not performing a thorough examination.
The district court found no negligence in Dr. Channing's actions regarding the referral, stating that the SOP did not impose an actionable duty since tort obligations cannot arise from private actions. However, the court's reliance on the case of Coyle v. Englander's, which dealt with personal injuries stemming from a breach of contract, is deemed inappropriate as it does not address the essential duty of care inherent in the healthcare provider-patient relationship. The court concludes that the duty to refer did not need to stem from the SOP, as it exists independently due to the nature of the provider-patient relationship, emphasizing that the relevance of the SOP in establishing duty should not be dismissed.
The standard operating procedure (SOP) is critical in assessing the duty owed by Dr. Channing to Karen Keir in a negligence claim. Courts have recognized that while SOPs do not create a duty, they are relevant in determining the scope of that duty. In preceding cases, such as Downs, courts noted that adherence to internal guidelines can inform whether a defendant acted reasonably. Similarly, various courts have affirmed that hospital regulations and standards are pertinent to evaluating the duty of care owed to patients.
In the case of Sanna, the New Jersey appellate court highlighted that regulatory guidelines, like OSHA standards, could serve as objective safety benchmarks if supported by expert testimony. This affirms the relevance of SOPs in determining negligence, though they do not explicitly define the duty owed.
The record indicates that Dr. Channing was negligent for failing to refer Karen Keir to ophthalmology. His non-compliance with the SOP stemmed from a disagreement with Dr. Mignone over its applicability, leading him and other optometrists to use their discretion instead. Evidence suggests that referrals to ophthalmology were standard practice for cases like Karen's, supported by statements from Dr. Mignone, Dr. Wesley, and Dr. Estes, all asserting that Dr. Channing should have made the referral based on standard care practices.
Dr. Tirrill recommended a referral for Karen due to her ongoing ocular issues. Criticism arose against Dr. Channing for not referring her to an ophthalmologist, with Dr. Hiatt stating he was not a substitute for such a specialist. Evidence suggested that even if a referral was not made initially, it should have occurred on February 12, 1980, as indicated by Dr. Mignone, who noted that a lack of improvement after initial treatment warranted a referral. Although some improvement in Karen's vision was noted, Dr. Wesley also recommended a referral on that date due to her struggles with patching therapy. Dr. Feman stated that Dr. Channing’s treatment, which yielded no significant improvement, necessitated further evaluation, such as a dilated examination or referral. The district court's finding of no negligence in the failure to refer was deemed clearly erroneous.
Additionally, the district court rejected claims that Dr. Channing did not meet the standard of care by failing to perform a dilated examination with an indirect ophthalmoscope. Testimony from multiple medical professionals indicated that such an examination was essential in Karen's treatment. Dr. Mignone asserted that a dilated examination should have been included in the initial assessment if a referral had been made. Both Dr. Wesley and Dr. Estes confirmed that the standard of care required this examination at the first visit. Dr. Hiatt also emphasized the necessity of a dilated examination, particularly if the child could cooperate.
Support for the need for a dilated examination on February 12, 1980, was further corroborated by Dr. Wesley and Dr. Estes, with Dr. Feman suggesting it should be a routine practice annually. Given that Karen's last dilated examination was in February 1979, it should have been repeated in February 1980. The evidence overwhelmingly supported that a dilated indirect ophthalmoscopy was required during Dr. Channing's care, rendering the district court's finding on this matter also clearly erroneous.
Dr. Channing's failure to meet the standard of care alone does not establish liability; the plaintiff must demonstrate a causal link between this breach and the injury incurred. In medical malpractice cases, proving causation can be challenging, prompting some courts to adopt a more lenient standard. The New Jersey case Evers v. Dollinger illustrates this. In Evers, the plaintiff consulted her gynecologist about a breast lump but was reassured without proper examination. Later diagnosed with breast cancer, she underwent a mastectomy, but the cancer later spread, leading to a terminal condition. The appellate court found it inappropriate for the trial court to rule in favor of the defendant at the close of the plaintiff’s case and emphasized a flexible causation standard for retrial, acknowledging that a negligent act that increases the risk of harm allows the finder of fact to assess its substantial contribution to the injury. On remand, the plaintiff must show, with reasonable medical probability, that the delay in diagnosis and treatment increased the risk of cancer recurrence or spread, and that this risk was a significant factor in her current condition. To establish a prima facie case, the plaintiff must prove Dr. Channing's negligence and that it increased the risk of losing conservative treatment options.
The trier of fact is tasked with determining if the increased risk of harm was a substantial factor in causing the injury. The district court failed to apply the New Jersey legal analysis mandated in Evers, only noting that Dr. Abramson deemed the chance for earlier detection as "remote." This oversight may stem from the court's erroneous conclusion that Dr. Channing was not negligent. Consequently, the case requires remanding for a proper causation analysis according to New Jersey law. Under this law, a plaintiff can establish a prima facie case by showing that the defendant's negligence raised the risk of harm. In this instance, medical experts testified that a tumor was present during a February 12, 1980 examination, which should have led to its discovery. Additional expert testimony indicated that vitreal seeding, a critical factor preventing conservative treatment, occurs later in the disease's progression. The failure to diagnose promptly resulted in an increased risk of requiring radical treatment, supporting the plaintiffs' causation claims. Relevant precedents demonstrate that sufficient evidence exists to establish a prima facie case, necessitating the trier of fact to assess whether the defendant's actions were a substantial factor in the plaintiff's injury.
In Aasheim v. Humberger and related cases, the determination of causation in medical negligence claims hinges on assessing two critical factors: the patient’s chances of survival if treated according to accepted medical procedures, and the extent to which these chances diminish due to deviations from those procedures. The district court's finding that earlier detection of a condition was "remote" was deemed inadequate, as it failed to properly consider these factors. While factual determinations are generally evaluated under a "clearly erroneous" standard, findings resulting from the misapplication of law are not upheld. The appellate court reversed the district court's judgment, remanding the case for reevaluation of whether Dr. Channing's negligence was a substantial factor in Karen Keir's harm, specifically in light of New Jersey Supreme Court precedents. Additionally, a concurring opinion noted that the district court had made clear findings regarding causation, emphasizing that substantial evidence was presented, including persuasive expert testimony. The key issue remains whether non-negligent care could have led to earlier detection of the tumor affecting Keir.
The district court appropriately accepted Dr. Abramson's testimony, given his status as a leading expert in the relevant medical field, while other witnesses had only limited experience. The court's application of the "lost chance" causation standard in New Jersey was justified, as it requires showing that the negligent act increased the risk of harm and that this increased risk was a substantial factor in causing the plaintiff's condition. The government’s evidence, particularly Dr. Abramson’s credible testimony, established that Dr. Channing's errors did not increase the risk of harm since the tumor would not have been detected even with proper care. The court's use of the term "remote" regarding the chance of discovering the tumor reflects a risk that is too small to be considered an increased risk of harm. A remand to clarify this point is seen as unnecessary. Additionally, the court affirmed that the Federal Tort Claims Act does not bar the claims presented and determined that the "Good Samaritan doctrine" does not apply, as there was no actionable duty created under New Jersey law. Plaintiffs conceded this point and focused on the scope of Dr. Channing's duty rather than asserting the SOP established a legal duty.
