David Keller v. United States

Citations: 58 F.3d 1194; 1995 U.S. App. LEXIS 16157; 1995 WL 392487Docket: 94-2633

Court: Court of Appeals for the Seventh Circuit; June 29, 1995; Federal Appellate Court

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David Keller appeals the denial of his medical malpractice claim against the United States under the Federal Tort Claims Act following a debilitating surgery at a Veterans Administration Hospital in New Mexico. The case involves a surgical procedure performed by Dr. Stuart Pett on April 1, 1988, to repair a chronic pseudoaneurism in Keller's descending thoracic aorta. Post-surgery, Keller experienced paraparesis, a neurological condition characterized by reduced sensation and muscle control, which he attributes to the surgeon's negligence in ensuring adequate blood flow during the procedure.

The surgical process involved clamping the aorta above and below the aneurism for approximately fifty minutes, during which various clamping methods were available, including the use of a passive shunt and a pump-assisted shunt. Dr. Pett utilized a Biomedicus centrifugal pump to enhance blood flow during the operation. Medical testimony indicated a 3-5% risk of spinal cord injury from such surgeries, regardless of the technique employed.

Keller's claim centers on the assertion that the surgeon’s actions led to insufficient blood flow, resulting in his neurological impairment. Clinical measurements of blood flow and pressure were taken during the surgery to monitor Keller’s condition. The district court's judgment denying Keller's claim was ultimately affirmed by the Seventh Circuit Court of Appeals.

The medical record regarding Mr. Keller's surgery lacks sufficient evidence on blood flow to his lower spine. The absence of the pump record led parties to rely on blood pressure readings to assess whether the pump was functioning adequately. Mr. Keller highlights consistently low blood pressure during the procedure, while Dr. Michaelis, the government's expert, noted that upstream pressures to the upper body were normal. He explained that a constant flow from the pump could decrease blood pressure, despite adequate blood flow. Following a bench trial, the district court found no credible evidence to establish a breach of the standard of care during the surgery. Mr. Keller contests this ruling, arguing that improper monitoring and use of the Biomedicus pump by Dr. Pett led to inadequate blood supply to the spinal cord, resulting in paraparesis. He claims Dr. Pett was negligent for not recognizing the insufficient blood flow, proceeding with surgery despite knowing the risk, or failing to activate the pump beforehand. The appellate court reviews the district court's factual findings under a clearly erroneous standard and applies New Mexico state law to assess potential liability under the Federal Tort Claims Act. The New Mexico Supreme Court defines the standard of care for physicians as the level of knowledge, skill, and care typical among well-qualified practitioners in similar circumstances. Establishing a medical malpractice claim requires demonstrating that the defendant owed a legal duty, breached that duty, and caused the plaintiff's injuries.

Mr. Keller raises evidentiary issues regarding blood flow, arguing that the government's inability to produce the pump record justifies a negative inference about whether it provided sufficient blood flow. The district court noted that the records could not be located, though there was no finding of bad faith in the government's actions. Consequently, the court properly declined to infer that the missing evidence would have been detrimental to the government, supported by the fact that the university may not have retained the records and no evidence suggested they were destroyed.

Additionally, Mr. Keller claims Dr. Pett made judicial admissions that would bind the United States, but the court finds this argument unsubstantiated, as it is not the court's role to formulate arguments for litigants. Dr. Pett’s statements about blood pressure, pump checks, and safe operational timeframes were either misrepresented or misconstrued, with clarifications indicating these were not absolute requirements.

Furthermore, Mr. Keller asserts that the district court erred in its negligence determination. He carries the burden of proof and must demonstrate that the district court's decision lacks evidentiary support. The court had credibility determinations in its favor and found that the pump was functioning adequately during the surgery, attributing low blood pressure to factors other than pump malfunction. Testimony supported the conclusion that the pump was operational, undermining Mr. Keller's negligence claim regarding Dr. Pett's actions during the surgery.

Mr. Keller asserts that the surgical pump was not activated until after the aorta was opened. However, the district court determined the pump was operational post-cross-clamping, finding no proof that Dr. Pett breached the standard of care. There is no direct evidence suggesting Dr. Pett failed to check the pump prior to the aorta incision, nor is there circumstantial evidence that would necessitate the conclusion that the pump was off. The court did not find a clear error in this determination. Additionally, Mr. Keller argues that the surgeon should not have proceeded with the operation due to low blood pressure, a claim contested by Dr. Michaelis. He testified that significant complications, such as a heart attack, would be required to halt the surgery, and the court favored Dr. Michaelis’ expert testimony after thorough evaluation. Ultimately, the district court's finding that there was no breach of the standard of care by the attending surgeon was well-supported, leading to the affirmation of its judgment.

In BASF Corp. v. Old World Trading Co., the Seventh Circuit indicated that a district court's reluctance to infer from missing documents was justified as there was no finding of willful destruction. Similarly, in United States v. Esposito, the court emphasized that bad faith is essential for invoking the spoliation doctrine. Other cases, such as United States v. 94,000.00 in U.S. Currency, demonstrated that a lack of bad faith led to the denial of sanctions for missing documents. Mr. Keller argued that the government failed to show the destruction of documents, claiming only that the government had notice of their relevance. However, the court rejected this argument, clarifying that bad faith is necessary for destroyed documents, and that Nation-Wide Check did not support a lesser standard for merely missing documents. Discussions included state law's applicability to the duty to preserve evidence, as seen in Allstate Ins. Co. v. Sunbeam Corp. and Unigard Security Ins. Co. v. Lakewood Eng'g, which indicated that spoliation claims should adhere to state law under certain circumstances. The inherent discretionary power of federal courts to address spoliation through evidentiary rulings was also highlighted, with references to cases suggesting that adverse inferences can only be drawn if evidence was destroyed in bad faith. Notably, New Mexico law does not recognize negligent or intentional spoliation as a tort.

Dr. Pett could not confirm whether a record was maintained regarding the perfusionist for the operation, despite efforts to locate it. Neither he nor the perfusionists he consulted could identify who performed the procedure. Defense counsel communicated that the medical center did not employ perfusionists but sourced them from the University of New Mexico Medical School. It was noted that the university typically did not keep pump records from surgeries other than heart transplants. Judicial admissions, which are formal acknowledgments in legal pleadings that bind the admitting party and withdraw certain facts from contention, were explained. Such admissions cannot be disputed at trial or on appeal, contrasting with ordinary evidentiary admissions, which can be challenged. Additionally, the district court found that Dr. Michaelis, the government's expert, was more qualified than Mr. Keller's expert and provided a credible opinion that was better supported by the evidence.