12-1098 CYNTHIA JACKSON, as Administratrix of the Estate of Leonard J. Giguere v. United States

United States Court of Appeals
For the First Circuit
Nos. 11-1619, 12-1098
CYNTHIA JACKSON, as Administratrix of
the Estate of Leonard J. Giguere,
Plaintiff, Appellant,
v.
UNITED STATES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Stahl, Circuit Judges.
Brian P. Burke for appellant.
Anton P. Giedt, Assistant United States Attorney, with whom
Rayford A. Farquhar, Assistant United States Attorney, and Carmen
Milagros Ortiz, United States Attorney, were on brief, for
appellee.
February 12, 2013

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LYNCH, Chief Judge. Leonard Giguere served his country
in the U.S. Army in the Vietnam War. He was injured there in a
landmine explosion, causing a diaphragmatic hernia which affected
the arrangement of some of his internal organs. That rearrangement
would have consequences four decades later. On May 6, 2005, at age
58, Giguere underwent surgery at the Veterans Administration
Hospital ("VA Hospital") in West Roxbury, Massachusetts. He died
on May 10, 2005.
Giguere's estate brought a medical malpractice claim
under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346.
After a five-day bench trial, the court entered judgment for the
United States with extensive findings of fact and conclusions of
law. See Jackson v. United States (Jackson I), No. 08-40024-FDS
(D. Mass. Mar. 25, 2011). The court later denied a motion for new
trial, see Jackson v. United States (Jackson II), No. 08-40024-FDS,
2011 WL 6301425 (D. Mass. Dec. 15, 2011), and amended its previous
findings and conclusions, see Jackson v. United States (Jackson
III), No. 08-40024-FDS, 2011 WL 6300996 (D. Mass. Dec. 15, 2011).
On appeal, the estate asserts that the court committed an
error of law as to the standard of care it used, abused its
discretion as to several of its evidentiary rulings, and made
factual findings that the evidence did not support. We conclude
that the district court did not err and affirm its judgment.
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I.
Decedent Giguere served in the U.S. Army in the Vietnam
War. There, he was injured by a landmine explosion that caused him
to suffer a diaphragmatic hernia. As a result, a portion of
Giguere's stomach and his upper intestines moved from his stomach
cavity into the chest cavity where his heart and lungs were
located. Giguere's esophagus thus did not run downward from his
mouth to his stomach, but was bent into an acute angle.
On May 4, 2005, Giguere, then 58 years old, was admitted
to the VA Hospital, complaining of exhaustion, chest tightness, and
elevated blood pressure. VA Hospital staff determined that Giguere
had suffered a heart attack and that he had severe systemic heart
disease posing a constant threat to life, which necessitated
coronary artery bypass graft ("CABG") surgery. CT scans revealed
Giguere's diaphragmatic hernia, and Giguere's cardiothoracic
surgeon, Dr. Michael Crittenden, determined that the hernia would
not pose significant operative or postoperative difficulties.
Giguere was administered anesthesia and underwent CABG surgery on
May 6, 2005. The surgery was performed without complications.
An endotracheal tube was inserted into Giguere's lungs
during his surgery, then anesthesiologists attempted to insert a
nasogastric ("NG") tube into Giguere's stomach to prevent
aspiration (vomiting into the lungs) during the removal of the
endotracheal tube. The anesthesiologists were not able to place
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the NG tube into Giguere's stomach, and later that day Dr.
Crittenden was unable to correctly re-position the NG tube in
Giguere's stomach. Dr. Crittenden concluded that Giguere's unusual
anatomy was preventing the NG tube's insertion and that further
attempts would present risks to Giguere, including the risk of
perforation, infection, and a need for further surgery.
On May 7, 2005, Giguere's endotracheal tube was removed
without incident. By that evening, Giguere appeared to be
recovering normally. At 6:30 p.m., on May 7, another surgical
resident ordered that Giguere's diet be "advanced as tolerated,"
meaning Giguere would be given clear liquids, then full liquids,
and then a regular cardiac diet -- a low-fat, low-sodium, low-
cholesterol meal -- if each were tolerated.
On the morning of May 8, Giguere appeared to be
tolerating clear liquids and also to be recovering from his
surgery; he was able to get out of bed and walk briefly. However,
symptoms of an ileus -- failure of liquids and solids to progress
along the digestive tract -- began showing that morning. Cessation
of digestive function is common after patients are administered
general anesthesia, but an adynamic ileus occurs when digestive
function does not return after a normal recovery period. An
adynamic ileus can lead to distention and rupture of the stomach
and intestines, cut-off of blood supply leading to tissue death,
and vomiting and aspiration. A cardiac patient with Giguere's
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anatomical configuration is also at risk that an ileus will cause
cardiopulmonary stress.
On the morning of May 8, x-rays and Giguere's difficulty
in breathing suggested that he might have developed an ileus. Dr.
Crittenden believed Giguere's gastrointestinal function was
returning because he was passing gas, making bowel sounds,
ambulating, and taking fluids. To treat symptoms of an ileus,
physicians can usually insert an NG tube into the stomach to
evacuate its contents and relieve distention. However, Dr.
Crittenden was concerned that attempting to insert an NG tube into
Giguere's stomach might perforate his esophagus.
At 7:00 p.m. on May 8, Nurse John O'Sullivan recorded
that Giguere consumed 60% of his diet and 200 cc's of clear
liquids. West Roxbury VA Hospital Nurse Kathleen Doherty stated in
her deposition that this notation meant Giguere was given solid
food. The government did not call O'Sullivan at trial, but Doherty
testified at trial that Giguere could not have been given solid
food that evening because no order for solid food had been sent to
the VA Hospital kitchen via the hospital's computerized system.
On May 9, x-rays taken at 5:30 a.m. and 9:15 a.m. showed
no significant changes in the condition of Giguere's ileus.
Giguere was transferred to a step-down postsurgical unit at 10:00
a.m. that morning. Over the next three hours, nurses recorded that
Giguere's abdomen was distended and taut, that he was short of
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breath and experiencing heartburn, that his heart rate was
elevated, and that he reported feeling very full.
At 1:15 p.m. on May 9, Giguere began vomiting, which
relieved his heartburn. Dr. Crittenden had become concerned that
Giguere had developed an ileus that would not resolve, and at 1:30
p.m. he ordered a consultation with the gastroenterology ("GI")
department. In response, gastroenterologist Elihu Schimmel and GI
resident Reina Pai examined Giguere and concluded he had bypassed
the need for an NG tube because he had been passing gas and having
bowel movements. Dr. Schimmel was not aware that Giguere had
vomited, which would have temporarily decompressed his stomach.
Throughout the evening of May 9, Giguere experienced
nausea, vomiting, distention, increased heart rate, and difficulty
breathing. At 8:50 a.m. on the morning of May 10, Drs. Schimmel
and Pai visited Giguere again, noted his worsening condition, and
recommended that an NG tube be placed fluoroscopically (using a
moving x-ray image) to decompress Giguere's stomach. At 9:00 a.m.,
Giguere was taken to the VA Hospital radiology department, where a
radiologist, Stephen Gerzof, attempted to insert an NG tube into
Giguere's stomach fluoroscopically. Dr. Gerzof twice tried to
advance the tube, but each time Giguere began vomiting and Dr.
Gerzof halted the procedure.
Dr. Gerzof then attempted to use a J-tipped guide wire,
inserted down the NG tube, to help him navigate the tube past the
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curve in Giguere's esophagus. As Dr. Gerzof attempted to advance
the wire through the NG tube, Giguere began vomiting, his blood
pressure dropped, he stopped breathing, and he went into cardiac
arrest. Dr. Gerzof called an emergency code and surgical staff
responded, but they were unable to revive Giguere, who was
pronounced dead at 11:10 a.m. on May 10.
On May 11, an autopsy was conducted on Giguere at which
Drs. Crittenden and Gerzof were present. The cause of death was
determined to be:
Cardiac arrest: acute left ventricular myocardial
infarction (hours to days), Hypostatic, compressed left
lung[.] Secondary to gastric and colonic eventration
through non-patent left diaphragm hiatus, secondary to
abdominal ileus of right colon with gaseous obstipation
and abdominal pressure.
On May 18, the VA Hospital's surgical service held a
weekly review of medical outcomes -- a Surgical Service Quality
Improvement Conference ("SSQIC") -- at which Giguere's case was
discussed. The surgical service staff then prepared a written
evaluation of Giguere's care and treatment (the "SSQIC Comments").
II.
Cynthia Jackson, one of Giguere's two daughters, brought
suit against the United States as administratrix of Giguere's
estate on February 14, 2008, asserting claims under the FTCA for
Giguere's wrongful death, as well as for his conscious pain,
suffering, and emotional distress.
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On July 10, 2009, the estate moved to compel production
of the SSQIC Comments. The government opposed the motion,
contending that the SSQIC Comments were protected under 38 U.S.C.
§ 5705 and 38 C.F.R. § 17.501 as documents produced in a focused
review. The district court referred the estate's motion to a
magistrate judge, who ordered the Government to produce an
unredacted version of the SSQIC Comments. The magistrate judge
concluded that SSQIC Comments did not comply with Veterans Health
Administration ("VHA") Directive 2004-054 because some, but not
all, pages of the document were marked as confidential, which the
magistrate judge considered to be a precondition to assert the
privilege. The government objected to this order, and on April 2,
2010, the district court reversed.
A bench trial commenced on April 12, 2010 and concluded
on April 16, 2010. At trial, plaintiff's expert witness, Andrew
Warner, M.D., testified that Giguere's post-surgical treatment at
the VA Hospital fell below the standard of care. Dr. Warner stated
that an ileus posed a greater risk to Giguere because his abdominal
organs were pressing against his lungs. He opined that when Dr.
Crittenden was unable to insert an NG tube into Giguere on May 6,
the tube should have been inserted endoscopically (using a small
optical camera) or fluoroscopically. Dr. Warner also stated that
Giguere should not have been given anything to eat or drink after
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he exhibited signs of an ileus, and that giving food and drink to
Giguere likely exacerbated his bowel distention.
The government's expert witness, James Richter, M.D.,
testified that a post-operative ileus almost always resolves in a
few days, and that feeding a patient and having a patient move
around usually helps an ileus to resolve. Dr. Richter also
testified that Giguere faced "an underlying constant threat to his
life" from his heart disease, and that advancing an NG tube into
Giguere's stomach was contraindicated because of the risk of
perforation and bleeding. Dr. Richter testified, over objection,
that endoscopic placement of an NG tube posed the same risks; he
also testified that endoscopic placement would require infusing air
into Giguere, which might compromise his ability to expand his
lungs. The estate objected to Dr. Richter's testimony on this
point because the government did not provide notice in its expert
report that Dr. Richter would testify regarding endoscopy. The
district court allowed Dr. Richter's testimony, but permitted the
estate to supplement the record if necessary. The estate submitted
a rebuttal affidavit from Dr. Warner in which he stated that he had
routinely placed NG tubes endoscopically in patients with hernias.
After trial, on March 25, 2011, the district court
concluded that "[w]ith the benefit of hindsight, it seems likely
that a different course of treatment might have led to a different
outcome," and that "Mr. Giguere may have received less-than-perfect
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care." Jackson I, slip op. at 3. However, the court concluded
that "the conservative approach adopted by the VA physicians did
not breach the standard of care," id. at 4, and entered judgment
for the United States. The estate filed a motion for a new trial
on April 25, 2011, and then filed a notice of appeal from the
district court's judgment on May 26, 2011. On December 15, 2011,
the district court denied the estate's motion but made minor
amendments to its findings of fact and conclusions of law. Jackson
II, 2011 WL 6301425, at *4 n.2, *7, *11; see also Jackson III, 2011
WL 6300996. On January 13, 2012, the estate filed a second notice
of appeal.
III.
A. The District Court's Application of the Standard of Care
The estate opens with the legal argument that the
district court employed an erroneous standard of care. The estate
is wrong. Under Massachusetts law, "the standard of care is based
on the care that the average qualified physician would provide in
similar circumstances." Palandjian v. Foster, 842 N.E.2d 916,
920-21 (Mass. 2006). The estate argues that the district court
erred by failing to consider Giguere's "particular circumstances."
The district court explicitly qualified each of its findings as to
the quality of Giguere's care by stating that Giguere's physicians
did not violate the standard of care "under the circumstances."
Jackson I, slip op. at 26-27, 29, 30; Jackson III, 2011 WL 6300996,
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at *17-19. Each finding was preceded by a detailed discussion of
the particular circumstances of Giguere's case.
The estate's real argument is that the district court
clearly erred in finding that Dr. Crittenden did not violate the
standard of care by not inserting an NG tube between May 6 and May
10, 2005. The estate argues that "Dr. Warner testified [that] NG
tube placement for postoperative patients with hiatal hernia is
easily accomplished using endoscopy" (emphasis added). But that
testimony hardly shows error. Dr. Richter testified that "there
was a 'reasonable likelihood' . . . that the ileus would resolve on
its own," and that "the option of inserting a tube endoscopically
into the stomach raised risks of perforation and bleeding as well
as other risks associated with topical anesthesia and infusion of
air." Jackson I, slip op. at 26; Jackson III, 2011 WL 6300996, at
*16. There were two differing expert opinions regarding the
necessity and risks of endoscopically inserting an NG tube into
Giguere. Where, as here, "there are two permissible views of the
evidence, the factfinder's choice between them cannot be clearly
erroneous." Anderson v. City of Bessemer, 470 U.S. 564, 573
(1985).
B. Challenges to the District Court's Findings of Fact
1. The District Court's Factual Finding That Giguere
Had Not Been Given Solid Food
The court found that "Mr. Giguere was never served, and
did not eat, solid food while at the West Roxbury VA." Jackson I,
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slip op. at 13; Jackson III, 2011 WL 6300996, at *8. The estate
argues that this finding was important because Dr. Warner testified
that giving Giguere solid food after he showed signs of an ileus
breached the standard of care. However, Dr. Richter testified that
feeding a patient who had developed an ileus was recommended
because it usually helped an ileus to resolve. In any event, the
estate argues that the district court's finding was clearly
erroneous, but its argument is based on two sets of equivocal or
conflicting testimony.
First, Dr. Schimmel recorded in his notes and testified
that Giguere was "eating." But he testified that he never
determined if Giguere "was eating solids or only liquids" and that
liquids could include Jell-O. The estate's expert, Dr. Warner,
agreed that the term "eat" does not "presume the intake of
something solid," and that "eating" "could be liquid; it could be
full liquids; it could be soft solids."
Second, nurse John O'Sullivan recorded that Giguere
consumed 60% of his "diet" and 200 cc's of clear liquids on the
evening of May 8, 2005. Nurse Doherty testified at trial that this
meant that Giguere "had 60 percent of the full liquids that was
[sic] on his tray," and the district court found that "[a]lthough
it is unclear, it is likely that nurse O'Sullivan intended to
indicate that Mr. Giguere ate 60% of a full liquid tray and 200
cc's of clear liquids." Jackson I, slip op. at 13; Jackson III,
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2011 WL 6300996, at *8. The estate notes that other nurses at the
VA Hospital who had given Giguere meals recorded the amounts of
liquids consumed using cubic centimeters, not as a percentage of
the meal, but Doherty explained that "[p]eople chart different."
The estate also notes that Doherty agreed in her deposition that
Giguere "was eating solid food by the end of your shift on May
8th." But at trial, Doherty explained that she did not recall this
statement, and that Giguere could not have been given solid food
that evening because the VA Hospital's computerized system did not
reflect that an order for solid food had gone to the kitchen.
The district court explained that its finding was
"[b]ased on the evidence as a whole —- including the medical
records as interpreted in light of the trial testimony, and the
Court's observations of Nurse Doherty's testimony as a witness."
Jackson II, 2011 WL 6301425, at *4. A "reviewing court must give
due regard to the trial court's opportunity to judge the witness's
credibility." Fed. R. Civ. P. 52(a)(6). Given the conflicting
evidence at trial, we are not left here with "the definite and firm
conviction that a mistake has been committed." Anderson, 470 U.S.
at 573 (quoting United States v. U.S. Gypsum Co., 33 U.S. 364, 395
(1948)) (internal quotation mark omitted).
2. The Court's Findings As To Dr. Gerzof's Testimony
In ruling upon the estate's motion for a new trial, the
district court amended its findings to read: "After reviewing the
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CT scans of Mr. Giguere's stomach and colon, Dr. Gerzof believed
that he could 'push and push' an NG tube, but that '[i]t would
never go anywhere,' given the unusual anatomy of Mr. Giguere's
intestinal tract." Jackson II, 2011 WL 6301425, at *7 (alteration
in original); Jackson III, 2011 WL 6300996, at *12 (alteration in
original). The estate argues on appeal that this finding is still
clearly erroneous, since "Dr. Gerzof was [sic] actually testified
that [he] felt he could not insert an NG tube without a J tip guide
wire." The district court's finding accurately represented Dr.
Gerzof's testimony, which explained that he "tr[ied] to insert that
J wire rather than just continuing with the NG tube" because "I
felt that I could push and push that tube. It would never go
anywhere." Moreover, the district court's ruling on the estate's
motion for a new trial makes clear that the court did not take Dr.
Gerzof's testimony to mean that the NG tube could not be advanced
even if a J tip guide wire were used. See Jackson II, 2011 WL
6301425, at *6-7.
C. Admission of Dr. Richter's Testimony on Endoscopic
Placement of an NG Tube
Next, the estate argues that the district court erred in
permitting Dr. Richter to "offer[] testimony regarding the safety
of an endoscopic NG tube insertion" when he "fail[ed] to even
mention the issue in his expert report even after it was discussed
in Jackson's expert report." "[R]eview of decisions to admit
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expert testimony is for abuse of discretion." Mitchell v. United
States, 141 F.3d 8, 13 (1st Cir. 1998).
The Government conceded at trial that Dr. Richter's
expert report did not "mention or rebut the endoscopy argument that
Dr. Warner makes." Even if Dr. Richter's report failed to include
"a complete statement of all opinions the witness will express and
the basis and reasons for them," Fed. R. Civ. P. 26(a)(2)(B)(i),
the government was permitted to present the omitted testimony from
Dr. Richter so long as "the failure was substantially justified or
is harmless," Fed. R. Civ. P. 37(c)(1). Moreover, we "look[] to a
variety of factors in assessing a claim of error under Rule 26,"
including "the ability of the [opposing party] to formulate a
response." Curet-Velázquez v. ACEMLA de P.R., Inc., 656 F.3d 47,
56 (1st Cir. 2011) (alteration in original) (quoting Licciardi v.
TIG Ins. Grp., 140 F.3d 357, 363 (1st Cir. 1998)) (internal
quotation mark omitted).
In overruling the estate's objection to Dr. Richter's
testimony, the district court stated that "I'm going to allow some
testimony as to what those risks were, and if it's necessary before
the evidence closes in fairness to permit either additional time to
the plaintiff or -- or rebuttal testimony, we'll take that up at a
later time." At the close of evidence, the district court told the
estate's counsel that "[i]f you want to file a motion to supplement
the record in some way in that regard or to add additional
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evidence, I will entertain it." The estate's counsel responded
that he "found Dr. Richter to be helpful in some regards."
Nonetheless, the estate later submitted a rebuttal affidavit from
Dr. Warner that the district court admitted into evidence.
The estate argues that it was prejudiced by its inability
to present this response in the form of live testimony, claiming
that because Dr. Warner's rebuttal affidavit was not cited in the
district court's findings of fact and conclusions of law, "it is
impossible to conclude that this critical piece of testimony . . .
was given any deliberation, let alone the thoughtful consideration
it deserved." The key opinions that the estate identifies in the
rebuttal affidavit were presented by Dr. Warner at trial, and the
district court described this testimony in its findings of fact and
conclusions of law. Jackson I, slip op. at 24; Jackson III, 2011
WL 6300996, at *15. The district court was under no obligation to
cite both Dr. Warner's live testimony and his rebuttal affidavit
regarding these issues.
Since the estate was given an opportunity "to formulate
a response" to Dr. Richter's testimony, Curet-Velázquez, 656 F.3d
at 56, and has demonstrated no prejudice from the admission of this
testimony, there was no abuse of discretion here.
D. Denial of Plaintiff's Motion to Compel Production of a
Privileged and Confidential Document
The district court overruled the magistrate judge's
determination that the VA Hospital was required to produce the
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SSQIC Comments. The magistrate judge had determined that the four-
page document did not comply with VHA Directive 2004-054 because
only its first two pages were marked as confidential, and that the
document was therefore not privileged.
38 U.S.C. § 5705 and 38 C.F.R. § 17.501 together make
documents produced by the VA at focused reviews confidential and
privileged. The estate argues that although "the weekly surgical
review constituted a privileged Focused Review," the VA waived
privilege because the VA Hospital "failed to comply with its
agency's own directives because only the first page of these [SSQIC
Comments] contained 'language mandating protection,'" as VHA
Directive 2004-054 required, and that therefore no privilege
attached.
The Acting Under Secretary for Health of the VHA issued
VHA Directive 2004-054 on September 29, 2004, and it expired on
July 31, 2009. VHA Directive 2004-054(g)(5)(c) states that:
Protected peer review documents for quality improvement
include all reviews of patient care by an individual
provider that are performed for the purpose of improving
the quality of health care and/or improving the
utilization of health care resources. In order for the
documents generated by a peer review to be protected
confidential [sic] under 38 U.S.C. § 5705, and its
implementing regulations, each peer review must be
designated in writing as being conducted and/or prepared
for quality improvement and/or resource utilization
purposes prior to the initiation of the peer review.
This designation can be issued by the Under Secretary for
Health (for all VHA facilities), by a Veterans Integrated
Services Network (VISN) Director (for VHA facilities
within that VISN), and/or by the facility Director (for
the individual facility).
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1. Language mandating protection under 38
U.S.C. § 5705 (such as the language in
following subpar. 2g(5)(c)2) must be clearly
and visibly placed on every page of every
document to be made confidential.
2. All documents associated with this activity
need to be treated as strictly confidential,
unless determined otherwise after careful
review (with documentation) by qualified VHA
personnel. The following statement is
recommended for required documentation . . .
The district court correctly ruled that:
VHA Directive 2004-054 indicates that privileged
documents should be marked on every page. The obvious
purpose of that requirement is to ensure that such
documents are appropriately identified, so that they are
not inadvertently produced or intermingled with
nonprivileged documents. There is no indication that the
VHA (or Congress) intended that an otherwise-privileged
document should lose its protection because of a minor
clerical error in marking the document.
Nothing in the language of the directive mandates that we conclude,
as the estate would have us do, that where a four-page document is
clearly marked on its first two pages as confidential,
confidentiality is lost as to the remaining pages. VHA Directive
2004-054(g)(5)(c)(1) and (2), when read together, demonstrate that
the requirement imposed was a clerical one meant to ensure that
documents were not "inadvertently produced or intermingled." The
estate does not argue that 38 U.S.C. § 5705 and 38 C.F.R. § 17.501
-- which extend privilege and confidentiality to all documents
resulting from protected activities -- do not apply to the SSQIC
Comments. There was no risk of confusion or prejudice. The
argument is without merit.
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IV.
The judgment of the district court is affirmed. No costs
are awarded.
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