Lead Opinion
Opinion for the court filed by Circuit Judge HENDERSON.
Dissenting opinion filed by Chief Judge MIKVA.
Linda Wheeler Tarpeh-Doe (Linda) and Marilyn Wheeler, Linda’s mother and the legal guardian of Linda’s son, Nyenpan Tar-peh-Doe (Nyenpan), filed this action seeking damages against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b) and §§ 2671 et seq., for the alleged negligent failure of Department of State personnel to supervise a staff doctor whose negligence allegedly caused Nyenpan irreversible neurological injury. Following a bench trial, the district court found in the plaintiffs’ favor and awarded them damages of $4,659,-487.57. See Tarpeh-Doe v. United States,
I.
The district court’s findings reveal the following material facts, supported by the evidence and largely undisputed.
In 1980 Linda, a certified public accountant, was hired as an accountant by the United States Agency for International Development (AID) and shortly thereafter was assigned to Monrovia, Liberia. She arrived in Monrovia on May 26, 1981, and almost immediately met and became romantically involved with Nyenpan “Ben” Tarpeh-Doe (Ben), an employee of the Liberian Ministry of Justice. In September 1981, Ben and Linda visited the United States Embassy health unit twice so that Ben could undergo various medical tests required before their planned marriage. On one visit, Linda mentioned to Dr. Theodore E. Lefton, the Regional Medical Officer assigned to the Embassy in Monrovia, that she was pregnant, a fact she had learned earlier in the month from a test administered by Dr. Kassas, a local physician whom Ben had recommended. Throughout her pregnancy Linda received regular prenatal care from Dr. Johnson, a local obstetrician and gynecologist, to whom either Dr. Lefton or Billie Clement, the Embassy nurse, had referred her for a gynecological problem the previous July. At no time during her pregnancy did Linda seek or receive care from Dr. Lefton.
On January 16, 1982 Ben and Linda were married and on May 18, 1982 Linda gave birth to Nyenpan in a local clinic, with Dr. Johnson present. After she was released from the clinic, Linda continued to see Dr. Johnson who examined both Linda and Nyenpan on May 25 and again on June 2. On each occasion he found them both in good health. Nevertheless, Linda fell ill the evening of June 2. When she showed no improvement by the following evening, Thursday, June 3, a friend called the Embassy health unit and requested medical assistance. Dr. Lefton was unavailable and Linda was visited instead by Dr. Feir, the Embassy psychiatrist, accompanied by Clement, the Embassy nurse. Dr. Feir gave Linda an examination and recommended she seek care that night from Dr. Johnson and visit Dr. Lefton at the Embassy the following morning. According to Linda’s friend, Clement commented at the time that “she didn’t think the baby looked right.” Id. at 436. Dr. Johnson visited Linda at 1:00 a.m. Friday morning and treated her for malaria, staph infection and mastitis. When Linda visited
Later that day, when Nyenpan became lethargic and refused feeding, Linda and Ben took him to the clinic where he had been born and a local physician treated him with ampicillin. When Nyenpan showed no improvement three hours later, his parents took him to the emergency room at a private hospital where two local doctors treated him with an electrolyte solution for dehydration. At 9:00 a.m. the next morning, when Linda attempted to awaken Nyenpan for his feeding, he “ ‘became rigid’ in her arms for one to two seconds,”
When the Tarpeh-Does arrived at the Embassy, Dr. Lefton examined Nyenpan almost immediately and administered gentamicin and procaine, both antibiotics. He told Nyenpan’s parents the child could be evacuated from Liberia on an 11:00 p.m. flight that evening. Dr. Lefton then sent for Dr. Van Reken, an American pediatrician unaffiliated with the Embassy. Dr. Van Reken responded immediately, arriving at the Embassy about 11:30 a.m. The two physicians examined Nyenpan and agreed that he had spinal meningitis. Upon Dr. Van Reken’s assurance that he could “make the baby well,” Dr. Lefton decided not to permit evacuation but instead to transfer Nyenpan’s care to Dr. Van Reken. Dr. Van Reken proposed admitting Nyenpan to John F. Kennedy Hospital (JFK) in Monrovia, a facility with conditions Ben had heard were “appalling.” Nevertheless, “[o]ver the parents’ objections, and with the knowledge and concurrence of Dr. Lef-ton,” Nyenpan was taken to JFK at around noon, accompanied by Dr. Van Reken, Clement, Linda and Ben. When, after a lengthy delay, Nyenpan was finally placed in a room at about 1:30 p.m., Dr. Van Reken and Clement left the hospital and Ben, following Dr. Van Reken’s instructions, visited a local pharmacy to purchase certain prescription drugs unavailable at JFK. Dr. Van Reken returned at about 4:00 p.m. and left instructions for Nyenpan’s overnight care. Linda, along with several friends, including Dr. Wit-ten, a physician whose husband was affiliated with AID, stayed overnight in Nyenpan’s room where they observed both rats and cockroaches moving about. Nyenpan, who was not visited by a hospital doctor from 9:00 p.m. until 6:30 a.m, developed a fever during the night and suffered additional seizures. Dr. Witten recommended giving him oxygen but upon inquiry the group was informed that the hospital’s only oxygen unit was already in use and that the Embassy had none of its own. Dr. Witten then administered valium to treat Nyenpan’s seizures.
Dr. Van Reken returned to JFK late the next morning and reluctantly agreed at the Tarpeh-Does’ insistence to transfer Nyenpan to another hospital. That afternoon Nyen-pan was moved to ELWA Hospital, a more sanitary and better run facility, and arrangements were made for a private nurse to attend him through the night. The district court found, however, that “it is more likely than not likely that Nyenpan was beyond hope of recovery at least by the time or shortly after his transfer to ELWA.”
[H]e receives extensive care. He has no independent skills- He has no functional control over his arms and legs,*123 though he can move them.... He is blind. He continues to have ten to twelve seizures a year.... Care providers feed and dress him.... They also turn him every hour or two to prevent skin breakdown. ... In addition, they sometimes give him baths or massages, read him stories, or take him outside in a wheelchair.... He does not communicate in any meaningful way but responds positively to the care providers who are familiar to him.
On January 31, 1984, the appellees filed an administrative claim with the Department of State, alleging negligence by government officials in both Liberia and the United States. The State Department denied the claim and the appellees then filed this action under the Federal Tort Claims Act against the United States and the Secretary of State, alleging negligence by State Department officials in Washington, D.C.
II.
Tort liability under the FTCA is determined according to the law of the state where the alleged acts or omissions occurred. Kugel v. United States,
A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:
(a) in giving improper or ambiguous orders or in failing to make proper regulations; or
(b) in the employment of improper persons or instrumentalities in work involving risk or harm to others;
(c) in the supervision of the activity; or
(d) in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumen-talities under his control.
Restatement (Second) of Agency § 213 (1957), quoted in Murphy v. Army Distaff Found., Inc.,
The district court found, and the record supports, that State Department officials were on notice that Dr. Lefton’s “attitude” and “availability” enjoyed a poor reputation among other United States citizens in Monrovia. Most tellingly, a State Department team that inspected the Embassy in February and March 1982 reported “widespread discontent with Dr. Lefton’s performance” and “dissatisfaction with Dr. Lefton’s attitude and availability.” The team characterized “the magnitude and intensity of the complaints” as “unprecedented in their experience” and specifically cited Dr. Lefton’s “insensitivity, aloofness, lack of sympathy, lack of ... bedside manner, and also frequent unavailability.” Thus, the Department may well, as the district court found, have been under a duty to take steps to improve Dr. Lefton’s availability and attitude. The Department may also have breached that duty. There is no evidence, however, that such a breach was a substantial factor causing Nyenpan’s current condition or the injuries flowing therefrom. Accordingly, we conclude the district court’s findings on causation were clearly erroneous under rule 52(a) of the Federal Rules of Civil Procedure and must therefore be reversed. See Red Lake Band of Chippewa Indians v. United States,
The district court concluded that “Dr. Lefton’s negligent actions and omissions proximately caused Nyenpan’s injuries,”
By the same token, there is no evidence that, had the Department taken steps to ensure Dr. Lefton’s availability or improve his attitude, as the district court found them bound to do, Nyenpan’s medical treatment or condition would have been any different. The district court concluded the “[d]efen-dants could and should have directed Dr. Lefton to focus more attention on his responsibilities and to make himself available in the evenings and on weekends,”
In short, even if Nyenpan’s current condition may have been caused in part by Dr. Lefton’s negligence, it was not the result of any failure by State Department officials to more closely supervise Dr. Lefton’s availability or attitude.
For the preceding reasons, the judgment of the district court is
Reversed.
Notes
. The appellees were precluded from suing for negligent acts or omissions occurring in Liberia because of the FTCA’s "foreign country” exception. See infra note 2 & accompanying text.
. These exceptions bar recovery, respectively, for "[a]ny claim ... 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," 28 TJ.S.C. § 2680(a), or "[a]ny claim arising in a foreign country,” id. § 2680(k).
. The court made this concession while asserting that "D.C. courts have established that where a defendant’s acts or omissions create uncertainty as to whether, had the defendant acted otherwise, the outcome would have been more favorable to the plaintiff, that uncertainty does not provide a defense against the plaintiffs showing of proximate cause.”
. Both are forms of bacterial spinal meningitis, but the two are caused by different bacteria. Gram positive by staph or strep and Gram negative by salmonella, and treated with different antibiotics. See
. The Department’s inspection team reported no complaints about his medical expertise and in fact its leader "emphasized that the team was not qualified to evaluate Dr. Lefton’s medical competence from a technical standpoint.”
.In addition, when Lefton did treat Linda on June 4, he advised her to resume breastfeeding, id. at 436 — there is no reason to believe he would have recommended the contrary one or two days earlier.
. While it is conceivable that immediate evacuation on June 5 might have altered the outcome, it is sheer speculation that Dr. Lefton’s decision not to evacuate in any way resulted from the State Department’s failure to monitor more closely his availability or attitude. Dr. Lefton in fact was present and treating Nyenpan when he made that decision and cited specific medical reasons for it. See id. at 441 ("Dr. Lefton stated that he did not want to evacuate the baby because of the risk of lack of oxygen on the plane while the baby
. Thus, even had the Department "imposed additional reporting requirements” such as that Lef-ton "report any serious illness immediately by telephone or telegram," as the district court suggested it should have done, see
Dissenting Opinion
dissenting:
Trial Judge Oberdorfer found that State Department omissions proximately caused Nyenpan Tarpeh-Doe’s illness. To overturn that finding under a “clearly erroneous” standard of review, the majority must conclude that the finding was not based on a “plausible account” of the evidence viewed in its entirety. See Anderson v. Bessemer City,
I.
The trial court’s conclusion that State Department omissions were a “substantial factor” in causing Nyenpan Tarpeh-Doe’s injuries is a finding of fact; it must be upheld unless it is “clearly erroneous.” See, e.g., Daniels v. Hadley Memorial Hospital,
II.
In reaching the opposite conclusion, the majority understates Dr. Lefton’s negligence and misconstrues the trial court’s findings as to its likely effect on Nyenpan’s condition. A recitation of those findings and their eviden-tiary basis is thus in order:
Dr. Lefton’s negligent action and omissions proximately caused Nyenpan’s injuries. Dr. Lefton did not administer or in any way supervise or check on any gynecological, prenatal, or obstetrical care to Linda Wheeler Tarpeh-Doe despite her manifest need for such care. Instead, he referred her to a local gynecologist and obstetrician for care for a period of over nine months without advising her that she should or could call him if she needed advice, without arranging to see her even once to determine whether she was receiving adequate local care, and without inquiring about her care of her treating physicians. He did not inform her of the known risks of delivery and post-natal care of a child, particularly a first child, in disease-ridden Monrovia. He never alerted her to the conditions of the various clinics and*127 hospitals in Monrovia, some of which were evidently notorious. He did not visit her upon or after her delivery. When she became sick on Thursday, June 3, and needed prompt attention at 10:00 p.m. he was unavailable for unexplained reasons— the likely inference being that he refused to make a housecall as he had refused several times in the past. When Tarpeh-Doe visited Dr. Lefton for treatment for mastitis on Friday, June 4, Dr. Lefton did not examine, or even ask about the child. He advised her at that time to resume breast feeding. That advice, if followed, could have caused or increased the child’s exposure to infectious bacteria. When the Tarpeh-Does came to Dr. Lefton on June 5, he did not administer any tests. Dr. Lefton considered, but decided against, attempting to evacuate the child by commercial airplane. He did not request the services of a MAC flight for evacuation. He handed over all care to Dr. Van Reken, a physician to whom he had never referred a patient before. He permitted Dr. Van Reken to admit Nyenpan into a local hospital with deplorable conditions at a critical point in the baby’s care — against the baby’s parents’ vehement objections. He was not familiar with conditions at JFK, despite his duty to be aware of conditions at local health facilities in order to advise State Department and AID employees where to safely obtain services. He did not visit or inquire about his American charges at JFK hospital during the initial afternoon of June 5, nor did he visit or inquire that night or the next morning. He never evaluated its facilities for himself to determine whether the parents’ pronounced fears were justified. He did not check to see whether medications, or oxygen, or 24-hour care by doctors or other trained medical attendants, would be available there. He did not contact the Office of Medical Services immediately to request advice or support from a neonatologist or an expert in bacterial spinal meningitis in the United States. When he did cable the Office, he did not inform persons there that he had not examined the child since June 5 nor that he had turned over care to Dr. Van Reken, nor did he request assistance or advice. He did not visit Tarpeh-Doe until June 12. After the June 5 visit to him at the Embassy health clinic, he did not examine the baby at all. He did not authorize evacuation either upon the parents’ repeated requests or upon Dr. Van Reken’s approval of evacuation.
In short, Dr. Lefton washed his hands of Linda Tarpeh-Doe and her baby and turned his back on them, doing as little as possible to attend to Tarpeh-Doe’s care during pregnancy or to plan for the close medical supervision of mother and child after delivery. He was supposed to be the family doctor. Had Dr. Lefton provided Tarpeh-Doe with gynecological or prenatal care or taken any interest at all in her condition by anticipating and preparing himself and herself for the risks awaiting the mother and child after delivery, he would have visited her or otherwise made himself available so that she would have automatically called or visited him with the child on Friday, or even Thursday, when she first noticed signs of illness. Had she felt that he would willingly, as opposed to reluctantly, attend to her medical needs, she would have sought him out instead of waiting until Nyenpan required emergency care and seeking that care from local, inadequate, facilities. On June 5, had Billie Clement not directed the Tarpeh-Does to the embassy health unit, it is even possible that Nyenpan would have received better care from Dr. Johnson at Cooper’s clinic than he received from Dr. Lefton who permitted Dr. Van Reken to place him in a hospital with roaches and rats and with no medications, no medical attendants during the night, and no oxygen. From Tarpeh-Doe’s arrival in Monrovia throughout her pregnancy, delivery, and most important, from the onset of the post-natal illness of mother and child, Dr. Lefton took none of the initiatives required of him by the State Department directives or by any conceivable standard of care for a physician in his circumstances.
Wheeler Tarpeh-Doe v. United States,
As the foregoing passage makes clear, Judge Oberdorfer based his negligence find
Even if Dr. Lefton’s negligence could be characterized as strictly medical, I disagree that the State Department had no duty whatsoever to monitor his medical decisions, particular in emergency cases. First, as the majority indicates, the State Department’s review of Dr. Lefton’s previous activities reported widespread dissatisfaction with his “performance” in general, which reasonably could be taken to include his medical decisions. More importantly, a doctor’s unavailability and poor attitude almost necessarily affect both the level and quality of treatment his patients receive. If a doctor is unavailable to give treatment, it is irrelevant how competent that treatment may have been. And, if a patient has lost confidence in her primary doctor because of his habitual bad attitude, it is foreseeable that she will choose not even to seek treatment or to seek it from less competent sources. The potential consequences of such a crisis of confidence might not be altogether clear were this the ordinary tort action arising in this country. It could be assumed in such a case that the patient would receive quality care elsewhere. In this case, however, the State Department touts its medical services as an inducement for employees to accept employment in isolated and medically substandard outposts around the world. See
III.
With Dr. Lefton’s negligence and its foreseeability to State Department officials in clearer focus, I fail to see how the trial court’s causation finding is “clearly erroneous” given the deference that the standard affords the finder of fact. Judge Oberdorfer identified four remedial actions that the State Department failed to take that might have prevented or ameliorated Nyenpan’s illness: (1) “directing] Dr. Lefton to focus more attention on his responsibilities and to make himself more available” after hours; (2) imposing additional reporting i*equire-ments on Dr. Lefton so that State Department officials could monitor emergency situations; (3) warning the Ambassador and other embassy medical personnel to notify Washington should emergency treatment situations arise; and (4) requiring Dr. Lefton to adopt plans addressing the care of pregnant mothers and their children, a particularly vulnerable class of patients.
Each of these precautions would have been a reasonable response upon learning that Dr. Lefton was inclined to neglect his patients, and under a plausible account of the facts,
Assuming it had occurred, earlier care by a conscientious doctor would have increased the likelihood of proper diagnosis and treatment during the critical June 3-6 period. First, Nyenpan’s doctors would have had more time to identify the type of bacteria that caused Nyenpan’s meningitis. As it was, the doctors tested the baby only for Gram-positive bacteria (staph and strep) during the critical period.
Earlier care also would have revealed the urgency of Nyenpan’s condition at a time when State Department intervention could have improved the baby’s chances. Had Dr. Lefton or other embassy personnel been required to report emergency situations, and had they actually done so, stateside experts could have assisted Dr. Lefton in making a proper diagnosis. For example, they could have alerted Dr. Lefton of the possibility of Gram-negative infection and recommended a course of treatment. Or, they could have directed Dr. Lefton to forward Nyenpan’s fluid samples for a full battery of tests in the States. Or, they could have intervened in the decision whether to airlift Nyenpan when the seriousness of his illness first became apparent. On this score, I find severely lacking Dr. Lefton’s justification for not evacuating Nyenpan — namely, that lack of oxygen on the plane would have made intubation more difficult. The hospital to which the baby was assigned had a total absence of oxygen available, a fact Dr. Lefton was under a duty to know. The lack of oxygen at the JFK hospital leaves Dr. Lefton no valid reason for preventing prompt evacuation. In any event, the State Department should have known that prompt evacuation from Monrovia might be needed in emergency situations, and it should have provided for safe and effective means to carry it out.
IV.
Admittedly, the causal link between State Department omissions and Nyenpan’s illness is somewhat attenuated: because the exact cause of Nyenpan’s injury is impossible to pinpoint, the effect of the State Department’s inattention to Dr. Lefton’s documented deficiencies is likewise difficult to gauge. But as the majority acknowledges, a plaintiffs burden on causation is lightened when a doctor’s (or his supervisor’s) negligent omissions make it difficult to determine whether the injury would have occurred but for those omissions. In such cases, plaintiffs may prevail so long as the defendant’s inaction creates uncertainty as to whether, had the defendant acted otherwise, the injury would have been averted. See, e.g., Daniels v. Hadley Memorial Hospital,