Bradley Guile, Individually and as Representative of the Estate of Emiko Guile and All Her Wrongful Death Beneficiaries v. United States of America, Bradley Guile, Individually and as Representative of the Estate of Emiko Guile and All Her Wrongful Death Beneficiaries, Plaintiff-Appellant-Cross-Appellee v. United States of America, United States of America, Cristina Cruz, Md, Defendant-Appellee-Cross-AppellantBradley Guile, Individually and as Representative of the Estate of Emiko Guile and All Her Wrongful Death Beneficiaries v. United States of America, Bradley Guile, Individually and as Representative of the Estate of Emiko Guile and All Her Wrongful Death Beneficiaries, Plaintiff-Appellant-Cross-Appellee v. United States of America, United States of America, Cristina Cruz, Md, Defendant-Appellee-Cross-Appellant
Appeals from the United States District Court for the Western District of Texas.
GARWOOD, Circuit Judge:
Plaintiff Bradley Guile (Guile) appeals the district court‘s dismissal of his claims against the United States under the Federal Tort Claims Act (FTCA) and the court‘s granting of defendant Cristina Cruz‘s motion for judgment as a matter of law regarding liability for the death of Guile‘s wife. We affirm.
Guile‘s wife, Emiko Guile, was admitted on May 12, 1998 to an inpatient psychiatric ward for military dependents and retirees at William Beaumont Army Medical Center (Beaumоnt) in El Paso, Texas. Beginning in 1991, Mrs. Guile had been seeing military doctors, including neurologists, psychiatrists, and psychologists, at various places that Guile was stationed because of problems including depression, anxiety, and an involuntary head movement. When she was admitted to Beaumont in May 1998, Mrs. Guile had been found unconscious at home by her four-year-old daughter and her husband after overdosing on her antidepressant medication. This was Mrs. Guile‘s second inpatient admission at Beaumont; she had been admitted in February 1998 for a few days, apparently for severe anxiety and becаuse she had expressed concerns that she would overdose on her medications.1
The United States Army had contracted with PHP Healthcare Corporation (PHP) to provide psychiatric services for dependents and retirees at Beaumont. The inpatient ward serving Mrs. Guile was therefore operated by PHP within the Army‘s Beaumont facility. Mrs. Guile‘s psychiatrist while she was admitted to the inpatient ward was Dr. Cristina Cruz, a part-time independent contractor with PHP. Dr. Cruz treated Mrs. Guile from May 13 until Tuesday, June 9, when she left for a few days’ vacation. From June 9 through Friday, June 12, Dr. Cecilia DeVargas, аnother PHP contractor psychiatrist, covered for Dr. Cruz in treating Mrs. Guile. Beginning on the evening of June 12, Dr. Milton Anderson, an active duty Army officer and psychiatrist, was the on-call physician covering the inpatient ward for the weekend.2
On the morning of Sunday, June 14 Emiko Guile was found dead in her room. She had hung herself from a door hinge of an armoire in the room, using the belt from her bathrobe. Mrs. Guile was in a double-occupancy room with a roommate, and two large armoires were positioned between the two beds in the room. The armoires blocked the view from the room‘s doorway of most of Mrs. Guile‘s bed. Although Mrs. Guile likely died soon after midnight, her body was not discovered until about 9:20 the next morning. The nurse on duty during the night, Adree Rojas, had spent much of her shift asleep in a break room, without checking on Mrs. Guile. The mental health technician, Mario Padilla, charged with checking on Mrs. Guile every thirty minutes also did not do so, although he marked her chart to indicate that he had. Padilla also heard a banging noise from the direction of Mrs. Guile‘s room soon after midnight, but did not investigate.
On behalf of himself, his daughter, and his wife‘s estate, Guile sued the United States, Drs. Cruz and DeVargas, PHP, and some of PHP‘s nursеs and technicians in the district court below. The claims against the United States included claims based on premises liability and negligent contractor supervision and a claim based on negligence of Dr. Anderson. At the close of evidence, the court granted a motion to dismiss the non-medical claims (referred to as the “premises liability” claims). The court then instructed the jury that the United States could not be liable if the jury found that there was no doctor-patient relationship between Dr. Anderson and Mrs. Guile, and the jury did in fact find that there was no such doctor-patient relаtionship.
Dr. Cruz renewed with the district court the motion for judgment as a matter of law that she had made unsuccessfully at the close of the plaintiff‘s evidence and at the close of all evidence. The court agreed that there was not “sufficient evidence for the jury to find that Defendant Cruz‘s allegedly negligent acts or omissions were the proximate cause of Emiko Guile‘s death,” and granted Dr. Cruz‘s motion for judgment as a matter of law. Dr. Cruz‘s motions for a new trial and for remittitur were denied as moot. Guile aрpeals the grant of Cruz‘s motion for judgment as a matter of law and the dismissal of the non-medical claims against the government.
Discussion
I. Standard of Review
As with other questions of law, we review a grant of judgment as a matter of law de novo. Morante v. Am. Gen. Fin. Ctr., 157 F.3d 1006, 1009 (5th Cir. 1998). The jury‘s verdict can be overturned only if “there is no legally sufficient evidentiary basis for a reasonable jury to find as the jury did.” Id. In evaluating this evidentiary basis, we view the evidence and inferences therefrom in the light most favorable to the party opposing the motion. Delano-Pyle v. Victoria County, 302 F.3d 567, 572 (5th Cir. 2002). We review de novo the district court‘s granting of a motion to dismiss based on exceptions to the FTCA. Jeanmarie v. United States, 242 F.3d 600, 602 (5th Cir. 2001).
II. Liability of Dr. Cruz
It has long been the law in Texas that a plaintiff in a medical negligence case must “prove by a preponderance of the evidence that the allegedly negligent act or omission was a proximate cause of the harm alleged.” See, e.g., Archer v. Warren, 118 S.W.3d 779, 782 (Tex. App.—Amarillo 2003); Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995); Kramer v. Lewisville Mem‘l Hosp., 858 S.W.2d 397, 399-400 (Tex. 1993); Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (1949). For the alleged negligence to be a proximate cause of the harm, the harm must have been a foreseeable result of the negligence, and the negligence must have been “a substantial factor in bringing about the harm, and without which the harm would not have occurred.”3 Archer, 118 S.W.3d at 782; Park Place, 909 S.W.2d at 511; Kramer, 858 S.W.2d at 400. Because medical treatment is beyond the reach of a laypеrson‘s knowledge and experience, expert evidence is required to show both a breach of a standard of care and that the breach was a proximate cause of the harm suffered. See Chambers v. Conaway, 883 S.W.2d 156, 158 (Tex. 1993); Bowles, 219 S.W.2d at 782-83. In granting Dr. Cruz‘s motion, the district court concluded that Guile‘s expert had not established that any negligence on the part of Dr. Cruz was a proximate cause of Emiko Guile‘s suicide.
Guile argues that the testimony of his expert, Dr. George Meyer, did establish breaches of the relevant standard of care. The breaches that Guile contends were established are: imprоper drug dosing, lack of necessary suicide precautions, improper handling of test results, failure to re-evaluate the treatment plan, failure to transfer Mrs. Guile to another hospital, improper discussion of discharge with Mrs. Guile, improper sending of Mrs. Guile out on a pass, and failure to have the armoires removed from Mrs. Guile‘s room.4
In the case of some of these alleged breaches, there is no evidence that Dr. Cruz committed the alleged act or omission, whether or not such act or omission would constitute a breach of the standard of care. For example, the expert‘s reference to discussion of discharge with Mrs. Guile involved acts of Dr. DeVargas, not Dr. Cruz. All evidence showed that Dr. Cruz continually re-evaluated and adjusted the treatment plan, including seeking of second opinions. Dr. Cruz did read the results of the testing she ordered, and discussed the results with the testing psychologist. There was no evidence that Dr. Cruz had anything to do with any subsequent unavailability of the test results. Mrs. Guile‘s charts showed that Dr. Cruz did increase the dosages of medication over time, as Dr. Meyer testified was necessary to meet the standard of care.
Furthermore, there was no evidence that Dr. Cruz knew about the armoires in Mrs. Guile‘s room. Dr. Cruz testified that she had not been in Mrs. Guile‘s room and did not know about the furniture, and there was no evidence that she had been in the room. Guile argues that there was sufficient circumstantial evidence for the jury to infer that Dr. Cruz had seen the armoires or should have seen them.5 Inferences drawn from circumstantial evidence must be reasonable inferences, however. Seven-Up Co. v. Coca-Cola Co., 86 F.3d 1379, 1387 (5th Cir. 1996); Brock v. Merrell Dow Pharm., Inc., 874 F.2d 307, 308 (5th Cir. 1989). An inference that Dr. Cruz should have noticed the furniture in Mrs. Guile‘s room because it may have been possible to see the furniture from the nurse‘s station is not a reasonable inference in view of evidence that (1) her practice was to see patients in her office, and (2) the arrangement of patient rooms was not her responsibility (so that there would be no reason for her to be looking at the patient rooms while at the nurse‘s station). Such an inference would be “mere speculation and conjecture,” which is not sufficient to support a jury verdict. Anthony v. Chevron USA, Inc., 284 F.3d 578, 583-84 (5th Cir. 2002) (concluding that testimony showing ways in which it was possible that an oil drilling operation contaminated an aquifer was not sufficiеnt to allow an inference that the operation actually did so). Dr. Cruz can of course not be held liable for these acts or omissions that she was not shown to have committed.
Guile argues that the district court was incorrect in concluding that Dr. Meyer had retracted his statements asserting that Dr. Cruz breached the standard of care. He argues that Dr. Meyer instead created “contradictions” the resolution of which is the province of the jury. We must remember, however, that evidence sufficient to support a jury verdict must be substantial evidence. Anthony, 284 F.3d at 583. An expert‘s opinion must be supported to provide substantial evidence; “we look to the basis of the expert‘s opinion, and not the bare opinion alone.” Archer, 118 S.W.3d at 782. “A claim cannot stand or fall on the mere ipse dixit of a credentialed witness.” Id. (footnote omitted). Many of the alleged breaches described above come from statements of Dr. Meyer that are unsupported by any data (such as studies evaluating treatment techniques), in addition to being later contradicted by him, or to be nothing but his incorrect factual assumptions based on examination of incomplete records. The contradictions coupled with the lack of suppоrt for the statements take them out of the realm of substantive evidence. In the context of admissibility of expert testimony, this court has noted that “[i]f an opinion is fundamentally unsupported, then it offers no expert assistance to the jury.” Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987).
B. Proximate cause
Even to the extent Guile could establish any breaches of the standard of care, there can be no liability unless such breaches are shown to be a proximate cause of Mrs. Guile‘s death. For example, Dr. Meyer did testify to a belief that Dr. Cruz breached the standard of care when she allowed Mrs. Guile to go on a pass with her fаmily on May 28. This was arguably contradicted by his later testimony acknowledging that Mrs. Guile‘s passes appeared to make her feel better, but even if we assume that the pass was a breach of the standard of care, there can be no liability from this breach because Dr. Meyer testified that the pass was not a cause of Mrs. Guile‘s death.
Similarly, there is no expert evidence establishing that any of the alleged breaches by Dr. Cruz were a proximate cause of Mrs. Guile‘s suicide. Evidence of proximate cause must show that in the absence of the allegеd breach the harm would not have occurred, and must state, describe or explain the connection between the breach and the harm in sufficient detail to support the expert‘s assertion of proximate cause. See, e.g., Bottoms v. Smith, 923 S.W.2d 247, 251-52 (Tex. App.—Houston 1996) (holding that fact issue existed as to proximate cause when expert opined that polyp would more likely than not have been diagnosed if omitted test had been done, that polyp diagnosed at that time would more likely than not have been at cancer stage having an 88% or better survival rate, and that delay in diagnosis resulted in a cancer stage having a 0% survival rate).
Because Guile did not establish by expert testimony any negligence on the part of Dr. Cruz that was a proximate cause of Emiko Guile‘s suicide, the district court was correct in granting Dr. Cruz‘s motion for judgment as a matter of law.
III. Dismissal of Claims Against United States
Guile argues that the district court erred in applying the discretionary function exception to the FTCA to dismiss his non-medical claims against the United States. The United States has sovereign immunity from suit except as it waives this immunity by consent. United States v. Sherwood, 312 U.S. 584, 61 S. Ct. 767, 769, 85 L. Ed. 1058 (1941). One example of such a waiver is the FTCA, which provides that the United States may be sued “for injury or loss of property, or personal 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.”
Guile argues that the United States failed to properly supervise PHP, failed to provide safe premises, failed to protect the safety of hospital patients, and failed to ensure that PHP had the malpractice insurance required by its contract with the Army.10 Guile‘s reasons for arguing that the discretionary function exception does not apply to these claims appear to be that (1) when the government retains safety oversight authority over a cоntractor, enforcement of safety obligations is not a discretionary function; (2) that medical judgments are not covered by the discretionary functions exception, and (3) that the government‘s negligence in this case was too egregious to be rooted in the policy considerations that the discretionary function exception is intended to protect.
Guile cites a Ninth Circuit case holding the United States liable for injuries to workers on a post office construction project. Camozzi v. Roland/Miller & Hope Consulting Group, 866 F.2d 287 (9th Cir. 1989). The workers were injured falling through uncovered openings in metal decking. Id. at 288. In its contract with the construction contractor, the Postal Service specifically required that metal deck openings be covered, and a contract with a company hired to supervise construction required daily inspections of 35 listed items, including “floor openings.” Id. at 288-89. The court held that the Postal Service‘s negligence in not discovering and remedying the uncovered openings was not a policy choice warranting protection by the discretionary function exception but rather “a failure to effectuate policy choices already made and incorporated in the contracts.” Id. at 290.
Guile‘s argument that governmental medical judgments are not covered by the discretionary function excеption is not applicable to his claims against the government, since the claims do not involve governmental medical judgments at all. Dr. Anderson is the only government employee who could have applied any medical judgment with respect to Emiko Guile, and Guile does not appeal the jury‘s finding that he incurred no liability because there was no doctor-patient relationship. Guile‘s argument that the government‘s negligence was too egregious to be protected by the discretionary function exception appears to be in referenсe to the government‘s alleged failure to ensure that PHP had insurance. There are cases denying application of the discretionary function exception when extreme negligence was exhibited by government employees, on the theory that such negligence could not be grounded in any legitimate policy consideration. See Glickman v. United States, 626 F. Supp. 171, 175 (S.D.N.Y. 1985); Orlikow v. United States, 682 F. Supp. 77, 82 (D.D.C. 1988) (both involving CIA drug experiments on unwitting subjects). Even if we assume that hiring an uninsured contractor constitutes this degree of negligence, there was no evidence presented that PHP was uninsured, much less that the government was aware of suсh a situation.
Guile‘s claims against the United States largely involve negligent supervision of PHP, with respect to either safety in patient rooms or insurance coverage. Supervision of a contractor‘s work, including the degree of oversight to exercise, is inherently a discretionary function. Kirchmann v. United States, 8 F.3d 1273, 1276-77 (8th Cir. 1993). Similarly, a decision to hire a contractor and the choice of contractor are policy-based discretionary decisions. Williams v. United States, 50 F.3d 299, 310 (4th Cir. 1995). To the extent that Guile claims that one or more United States employees were involved in placement of the armoirеs in Mrs. Guile‘s room,11 this is also a discretionary function involving balancing of considerations such as patient safety, patient privacy, and patient convenience with regard to storage space. There was no evidence presented of a statute, regulation or policy giving specific direction as to any of these functions in a way that would make them non-discretionary.12 See Gaubert, 111 S. Ct. at 1273 (act is non-discretionary if a “‘federal statute, regulation or policy specifically prescribes a course of action for an employee to follow‘“).
Conclusion
For the foregoing reasons, the judgment of the district court is
AFFIRMED.14
GARWOOD
Circuit Judge
Notes
“(1) 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 loss of property, or personal 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.
(2) No person convicted of a felony who is incarcerated while awaiting sentencing or while serving a sentence may bring a civil action against the United States or any agency, officer, or employee of the Government, for mental or emotional injury suffered while in custody without a prior showing of a physical injury.”
“The prоvisions of this chapter and section 1346(b) of this title shall not apply to—
(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
. . . .”