Helen Havrum, Appellee/cross-Appellant v. United States of America, Appellant/cross-AppelleeHelen Havrum, Appellee/cross-Appellant v. United States of America, Appellant/cross-Appellee
After a bench trial in an action brought under the Federal Tort Claims Act (FTCA), see
I.
The alleged acts of negligence occurred in Missouri, and thus the elements of Ms. Havrum’s claim are determined by Missouri law.
See
The trial court found that Richard Williams, the nurse in question, gave Mr. Havrum a lethal dose of codeine and, alternatively, that even disregarding the evidence of codeine poisoning, the circumstantial evidence indicated that Mr. Williams killed Mr. Havrum. After carefully reviewing the record, we сonclude that the circumstantial evidence sufficiently supports a finding that Mr. Williams did indeed kill Mr. Havrum; thus we need not address the admissibility of expert testimony that Mr. Havrum received a codeine overdose.
In finding that Mr. Williams killed Mr. Havrum, the trial court relied, in part, on a study by the hospital’s epidemiologist, Dr. Gordon Christensen, who investigated a suspeсted- link between Mr. Williams and an increase in deaths on the ward where Mr. Williams customarily worked. The study concluded that patients who were under Mr. Williams’s care were аlmost ten times more likely to die as other patients were: Although statistically one would expect five deaths to occur during Mr. Williams’s shifts during the relevant period, the dеath toll was actually forty-eight. In addition, Mr. Williams was associated with many unexpected deaths that occurred in private rooms. Dr. Christensen also testified that he had never seen anything so unusual as the number of patients who died on the relevant ward from May through July, 1992, between 1:00 a.m. and 3:00 a.m. (a period when fewer deaths generally occur); Mr. Williams was present for eleven of the thirteen deaths in that interim, although he worked on only one-third of the shifts.
Dr. Christensen concluded that there was only one chance in a million that the pattern of deaths on the ward was random, and that there was a compelling correlation between the deaths and Mr. Williams for whiсh Dr. Christensen could find no benign explanation. Although we agree with the government, as we must, that this statistical evidence alone does not establish that Mr. Williams caused Mr. Havrum’s death, that evidence is nevertheless proba
With regard to Mr. Havrum specifically, the court noted that his death was among those that Dr. Christensen found highly unusual. Mr. Havrum died on the ward in question at 1:15 a.m. in a private room with Mr. Williams present. Mr. Havrum was not expected to die, and the government offered no evidence that he faced death as part of somе short-term natural progression. Although Mr. Havrum suffered from a serious illness, the admitting physician did not place him in intensive care and did not believe that his death was imminent. Mr. Havrum аctually reported feeling better while he was in the hospital, but sixteen hours after his admission he was pronounced dead.
The trial court, in deciding that Mr. Williams killed Mr. Havrum, also referred to suspicious inconsistencies and alterations in the medical records. According to the records, Mr. Williams was the last nurse to see Mr. Havrum alive. A physician called to the bedside by Mr. Williams stated in her progress note that Mr. Hav-rum had no pulse, respiration, heart rate, or blood pressure and that she pronounced him dead at 1:15 a.m. Although the physician’s note further states that Mr. Havrum was “found unresponsive by nursing,” Mr. Williams’s medical note states that he found Mr. Havrum in “severe respiratоry distress,” a description that Mr. Williams frequently used in his medical notes on a patient’s death. “Respiratory distress,” according to several nurses, indicates that the patient is struggling to breathe and is inconsistent with being “unresponsive.”
The trial court also remarked that Mr. Williams first wrote a medical note indicating that he found Mr. Havrum in severe respiratory distress at about 1:15 a.m., the same time that the doctor pronounced him dead. The time in the note was then changed to 1:10 a.m., a line was drawn through the note, and the note was marked “error R.W.” Mr. Williams then wrote another medical note; this time he stated that he found Mr. Havrum in severe respiratory distress at about 1:10 a.m. and that the dоctor arrived at about 1:15 a.m., just as Mr. Havrum stopped breathing. Although the government suggests possible innocent explanations for the changed entries and omissions, thе trial court, which noted that Mr. Williams had been fired by another hospital for inserting a false entry into a patient’s chart, was free to draw its own less innocent inferenсes from Mr. Havrum’s hospital records.
See Newhouse v. McCormick and Company, Inc.,
With regard to the government’s complaint that the trial court improperly relied on a physician’s hеarsay statement to find causation, we conclude that the court relied on other evidence that was admissible and sufficient to support its findings, and the court’s оpinion clearly indicates that it would have reached the same conclusion without the challenged evidence.
See Estate of Largent v. United States,
II.
In her cross-appeal, Ms. Havrum сontends that prior to being sued the Department of Veterans Affairs attempted to hide from the public information indicating that its nurse was endangering patients, and that this misconduct entitled her to an award of attorney’s fees under
Accordingly, we affirm the judgment of the trial court.
Notes
. The Honorable Nanette K. Laughrey, United States District Judge for the Western District of Missouri.