Arpin, Jeannine v. United States ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 07-1079, 07-1106
JEANNINE ARPIN, as administrator of the
estate of Ronald Arpin, deceased,
Plaintiff-Appellee,
v.
UNITED STATES OF AMERICA and ST. LOUIS UNIVERSITY,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Southern District of Illinois.
No. 04-128-DRH—David R. Herndon, Chief Judge.
____________
ARGUED OCTOBER 26, 2007—DECIDED APRIL 8, 2008
____________
Before POSNER, FLAUM, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. The plaintiff’s husband was
a patient at the Belleville Family Practice Clinic, in south-
ern Illinois. The clinic is jointly operated by the U.S. Air
Force and St. Louis University, the defendants in this
suit for wrongful death arising from alleged medical
malpractice. Our jurisdiction over the United States is
conferred by the Federal Tort Claims Act, and the claim
against the university is within both the supplemental
jurisdiction of the district court, 28 U.S.C. § 1367, and the
2 Nos. 07-1079, 07-1106
court’s diversity jurisdiction. After a three-day bench
trial, the district judge found the defendants jointly and
severally liable and awarded the plaintiff damages in
excess of $8 million, consisting of some $500,000 for
medical care and lost wages, $750,000 for pain and suffer-
ing, and $7 million for loss of consortium by her and the
couple’s four children. The appeals challenge both the
finding of liability and the amount of damages awarded for
loss of consortium.
Ronald Arpin, age 54, diabetic and overweight, fell
while working at his job as a welder and landed heavily
and painfully on his right hip. He finished his shift, went
home, took some Advil for the pain, went to bed—but
awoke early in the morning experiencing unbearable
pain and was taken by ambulance to St. Elizabeth’s Hos-
pital in Belleville. X-rays were taken but were negative
and he was sent home with a prescription for a stronger
painkiller, Vicodin. Over the next three days his pain
worsened despite the painkiller and he developed addi-
tional symptoms—sweating, pallor, shortness of breath,
loss of appetite.
On the fourth day he was taken to the Belleville Family
Practice Clinic by his wife and daughter and was seen
by a second-year resident, Dr. Asra Khan, who is em-
ployed by St. Louis University. After a brief examination,
she concluded that Arpin had a muscle strain. She re-
fused the family’s request for an MRI, prescribed no
medication, and did not ask her supervising physician
(“preceptor”), Dr. James Haynes, an air force officer, to
examine Arpin. She denied that she observed Arpin’s
other symptoms or was told about them by the family.
Dr. Khan had a three-minute discussion of Arpin’s case
with Dr. Haynes, and according to her testimony told
Nos. 07-1079, 07-1106 3
him that Arpin’s pain was increasing. He denied that
she told him that and added that if she had, he probably
would have examined the patient himself and ordered a
CAT scan and that if he had done these things he would
have discovered that Arpin had an infection of the psoas,
a muscle in the hip. Such an infection is extremely
rare—and can be deadly. The symptoms are pain, fever,
and a limp, but diagnosis requires a CT scan or an MRI.
Treatment consists of administering broad-spectrum
antibiotics and draining the abscess. See, e.g., T.
Thongngarm & R.W. McMurray, “Primary Psoas Abscess,”
60 Annals of Rheumatic Diseases 173 (2001); H. Mallick et al.,
“Iliopsoas Abscesses,” 80 Postgraduate Medical J. 459 (2004);
M. van den Berge et al., “Psoas Abscess: Report of a Series
and Review of the Literature,” 63 Netherlands J. Medicine
413 (2005); J.P. Garner et al., “Psoas Abscess—Not as Rare
as We Think?” 9 Colorectal Disease 269 (2007).
Dr. Haynes agreed with Khan’s diagnosis of muscle
strain and did not examine Arpin himself.
Arpin had returned home after his examination by
Dr. Khan. His condition continued to worsen, and two
days after returning home he was re-admitted to St.
Elizabeth’s Hospital with symptoms of septic shock and
multi-organ failure. He could not be saved. Within two
weeks he was dead.
The Belleville clinic, though jointly operated by the air
force and the university, has two “sides,” one for air force
patients and one for civilian patients from the local com-
munity; Arpin was a “community side” patient. The
plaintiff does not argue that either defendant is respon-
sible for the negligence of an employee of the other
defendant—the air force for Dr. Khan, the university’s
employee, or the university for Dr. Haynes, the air force
4 Nos. 07-1079, 07-1106
officer. We therefore need not consider whether
Dr. Haynes might have been deemed a “borrowed em-
ployee” of the university, which would depend on whether
the university had “the right to control [Haynes] with
respect to the work performed.” Haight v. Aldridge Electric
Co., 575 N.E.2d 243, 252 (Ill. App. 1991); Restatement
(Second) of Agency § 227, comment a (1958).
Dr. Khan should have realized that increasing pain
was inconsistent with her diagnosis of muscle strain and
that there were also symptoms of infection that should
have been attended to. That much is clear. But the United
States is concerned with the district judge’s further find-
ing that it is the duty of a resident’s preceptor (Dr. Haynes
in this case) personally to examine a patient who has
already been examined by the resident and also to assess
the resident’s medical knowledge and experience before
giving any weight to her diagnosis. The judge based this
finding entirely on testimony by the plaintiff’s expert
witness, Dr. Alan Pollock, a specialist in infectious
disease at New York University Medical Center. Pollock’s
testimony about the duties of physicians who supervise
residents concerned hospitalized patients, however, not
outpatients. His experience of supervising residents
had been limited to hospitals. The average hospitalized
patient is much sicker than the average person who goes
to see a doctor at the doctor’s office or clinic. Pollock’s
testimony was insufficient to establish that the standard
of care in Illinois for clinic physicians requires the precep-
tor to examine all walk-in patients himself and to assess
the knowledge and experience of all residents whom he
supervises before accepting any of their diagnoses.
Surprisingly, no cases define the preceptor’s duty of
care with respect to supervision of residents. All one can
Nos. 07-1079, 07-1106 5
gather from the case law is that a supervising physician
need not be present (at a birth, at a surgery, etc.) if his
presence is not required for the patient’s safety, Brooks v.
Leonardo, 561 N.E.2d 1095, 1098-99 (Ill. App. 1990); Young
v. United States, 648 F. Supp. 146, 151 (E.D. Va. 1986); Rogers
v. Black, 173 S.E.2d 431, 432-33 (Ga. App. 1970); cf. Powell v.
Risser, 99 A.2d 454, 456 (Penn. 1953), and must be if it is.
Thomas v. Corso, 288 A.2d 379, 388-89 (Md. App. 1972).
Medicare reimbursement rules endorse a “primary care
exception” that excuses an attending physician from
routinely having to examine or otherwise observe a
resident’s patient. Association of American Medical
Colleges, “Medicare Teaching Physician Question and
Answer” (Dec. 2003), www.aamc.org/ advocacy/library/
teachphys/medicareqa121603.pdf (visited Mar. 25, 2008).
Although the rules have been said to have established
“the standard for the level of supervision that must be
provided [by the attending physician] to the resident
physician,” Paul M. Paulman, Precepting Medical Residents
in the Office 59 (2006); see also Leonard Berlin, “Liability of
Attending Physicians When Supervising Residents,” 171
Am. J. Roentgenology 295, 296, 299 (1998), we cannot be
certain that the Supreme Court of Illinois would adopt
the “primary care exception” as a rule of the Illinois
common law of medical malpractice. But it was the plain-
tiff’s burden to establish a violation of the standard of
care, and she has failed to establish that the standard is
any higher than the standard that the Medicare rules
create.
The United States argues that the district judge’s errone-
ous reliance on Dr. Pollock’s testimony vitiates the find-
ing that Dr. Haynes was negligent. We do not agree. The
judge’s essential findings, which his erroneous reliance
6 Nos. 07-1079, 07-1106
on Dr. Pollock’s testimony does not undermine because
they were simple findings of fact based on credibility
and independent of medical controversy, were that Arpin
was exhibiting symptoms of infection and that Dr. Khan
told Dr. Haynes that Arpin’s pain was increasing. Haynes
admitted that had he known that Arpin’s pain was in-
creasing he would have examined him and that had he
done so he would have noticed the symptoms of infection
and ordered tests that in all likelihood would have re-
vealed the psoas infection in time for Arpin’s life to be
saved. Although a psoas infection is very rare, both
Haynes and Khan were familiar with it and it is readily
treatable if caught early. Thongngarm & McMurray,
supra, at 175. Once the infection was allowed to spread
untreated through Arpin’s body, he was doomed.
The United States argues that Dr. Haynes’s testimony
about what he would have done had Dr. Khan told him
that Arpin’s pain was increasing was not an admission
that he would have been required by the applicable stan-
dard of care to do those things; and that in any evident his
testimony alone was insufficient to establish what the
applicable standard of care in such a case is. These turn out
to be the same argument. They amount to saying that if a
resident tells her preceptor what she knows about the
patient and then offers a diagnosis that he realizes is
inconsistent with what she has told him he can neverthe-
less accept the diagnosis without conducting his own
examination. That is a breach of the duty of care so funda-
mental as not to require expert evidence to establish. For
a case similar in that respect to this one, see Mozingo v.
Pitt County Memorial Hospital, Inc., 415 S.E.2d 341
(N.C. 1992); see also Voykin v. Estate of DeBoer, 733 N.E.2d
1275, 1280 (Ill. 2000); Walski v. Tiesenga, 381 N.E.2d 279 (Ill.
Nos. 07-1079, 07-1106 7
1978); Ohligschlager v. Proctor Community Hospital, 303
N.E.2d 392, 396 (Ill. 1973); Evans v. Roberts, 154 N.W. 923
(Iowa 1915); Baker v. Story, 621 S.W.2d 639, 642 (Tex. App.
1981); cf. Thomas v. Corso, supra, 288 A.2d at 388.
Suppose Khan had told Haynes that Arpin had fallen on
his hip and was experiencing severe and increasing pain
and that she thought the cause of his pain was that his
shoes were a size too small. Haynes could not have ac-
cepted the diagnosis without examining Arpin. The actual
case is less extreme, but not so much less so that we can
say that it was clear error for the district judge to find
medical negligence. Increasing pain after a fall, as Haynes
acknowledged and the medical literature confirms, is not
a symptom of a mere muscle strain, David S. Smith, Field
Guide to Bedside Diagnosis 185-86 (2d ed. 2006); cf. Scott
Kahan, Signs & Symptoms 102 (2004), unless the patient
continues to use the muscle. Arpin, who was bedridden,
did not.
The defendants make much of the fact that psoas infec-
tions are extremely rare. In 1992, only 12 cases were
reported in the entire world, I. Gruenwald et al., “Psoas
Abscess: Case Report and Review of the Literature,” 147 J.
Urology 1624 (1992); Babafemi Taiwo, “Psoas Abscess: A
Primer for the Internist,” 94 Southern Med. J. 2, 3 (2001),
though they may be underreported. Garner et al., supra,
at 273; van den Berge et al., supra, at 416. Physicians are
not charged with knowledge of every disease, however
rare. All that matters is they have a duty to conduct a
competent search for the cause of a patient’s symptoms,
which they failed to do here. Their failure makes both
the prevalence of the disease and the fact that both physi-
cians were acquainted with this rare disease irrelevant.
Had Haynes realized that Arpin had symptoms of infec-
8 Nos. 07-1079, 07-1106
tion, a search for the cause would have ensued, and soon
revealed it. Even before the cause was discovered, anti-
bacterial medication would have been administered,
as in any case of a serious infection, and would have
prevented the infection from spreading to Arpin’s other
organs while the search for the cause proceeded. See Robert
F. Betts et al., A Practical Approach to Infectious Diseases 453
(5th ed. 2003); C.H. Chern et al., “Psoas Abscess: Making
an Early Diagnosis in the ED,” 17 Am. J. Emergency Medicine
83 (2007).
Likewise had Khan grasped the significance of the
symptoms of infection that were exhibited by Arpin and
were disclosed to her by Arpin’s wife and daughter (or
so they testified, and the judge was entitled to credit
their testimony, as he did, over Khan’s conflicting testi-
mony), she would have been duty-bound to treat the
infection and begin a search for its cause, or at least report
the symptoms to Dr. Haynes (or perhaps all three steps
would have been required). Wingo v. Rockford Memorial
Hospital, 686 N.E.2d 722, 729 (Ill. App. 1997).
It is true that she was just a resident. But the majority
rule, which in default of any Illinois case we’ll assume is
the rule in Illinois as well, holds residents to the same
standard of care as physicians who have completed their
residency in the same field of medicine. McBride v. United
States, 462 F.2d 72, 73-74 (9th Cir. 1972); Ayers v. United
States, 750 F.2d 449, 455-56 (5th Cir. 1985); Eureka-Maryland
Assurance Co. v. Gray, 121 F.2d 104, 107 (D.C. Cir. 1941);
Centman v. Cobb, 581 N.E.2d 1286, 1290 (Ind. App. 1991);
Green v. State Through Southwest Louisiana Charity Hospital,
309 So. 2d 706, 709 (La. App. 1975); contra, Rush v. Akron
General Hospital, 171 N.E.2d 378, 381 (Ohio App. 1957); see
generally Joseph H. King, “The Standard of Care for
Nos. 07-1079, 07-1106 9
Residents and Other Medical School Graduates in Train-
ing,” 55 Am. U. L. Rev. 683, 751 (2006); Justin L. Ward,
“Medical Residents: Should They be Held to a Different
Standard of Care,” 22 J. Legal Med. 283 (2001). The majority
rule seems sensible, when one considers the amount of
responsibility for patient care that attending physicians
delegate to residents, as illustrated by the “primary
care exception” that we noted earlier and the fact that
residents are physicians, not students. A physician who
like Dr. Khan has completed her first year as a resident
(that is, has completed her internship, as the first year of a
residency used to be called), is eligible to be licensed
to practice medicine without supervision. 225 ILCS
60/11(A)(1)(a).
So both defendants were liable for Arpin’s death, and the
liability was joint and several; we now consider whether
the judge’s award of $7 million in damages for loss of
consortium was so excessive as to “shock the judicial
conscience,” which is the test under Illinois law. Richardson
v. Chapman, 676 N.E.2d 621, 628 (Ill. 1997); Velarde v. Illinois
Central R.R., 820 N.E.2d 37, 55 (Ill. App. 2004). The award-
ing of damages, such as for pain and suffering and loss of
consortium, that do not merely replace a financial loss has
been criticized, especially in medical malpractice cases
because of concern with the high and rising costs of health
care. Damages awards in malpractice cases drive up
liability insurance premiums and, what may be the
greater cost, promote “defensive medicine” that costs a
lot but may do patients little good. Daniel P. Kessler &
Mark B. McClellan, “Do Doctors Practice Defensive
Medicine?,” 111 Q.J. Econ. 353 (1998). A reaction has set in
that includes the recent passage of an Illinois law capping
noneconomic damages in malpractice cases at $1 million
10 Nos. 07-1079, 07-1106
for hospitals and hospital affiliates and $500,000 for
physicians and other health-care professionals, 735 ILCS
5/2-1706.5(a)(1), (2), though the law was passed too
recently to be applicable to this case and a judge has
ruled that it violates the Illinois constitution. LeBron v.
Gottlieb Memorial Hospital, 2007 WL 3390918 (Ill. Cir. Ct.
Nov 13, 2007).
It used to be thought that noneconomic losses were
arbitrary because incommensurable with any dollar
valuation. That is not true. People are constantly trading
off hazards to life and limb against money; consider
combat pay and re-enlistment bonuses in the army.
Even when the tradeoff is between two nonmonetary
values, such as danger and convenience (as when one
crosses a street against the lights because one is in a
hurry, or drives in excess of the speed limit), it may be
possible to express the tradeoff in monetary terms, for
example by estimating, on the basis of hourly wage rates,
the value of the time saving. And if we know both the
probability of a fatal accident and the benefit that a person
would demand to bear it we can estimate a value of life
and use that value to calculate damages in wrongful
death cases. See W. Kip Viscusi and Joseph E. Aldy, “The
Value of a Statistical Life: A Critical Review of Market
Estimates Throughout the World,” 27 J. Risk & Uncertainty
5 (2003); Paul Lanoie, Carmen Pedro & Robert Latour, “The
Value of a Statistical Life: A Comparison of Two Ap-
proaches,” 10 J. Risk & Uncertainty 235 (1995); W. Kip
Viscusi, “The Value of Risks to Life and Health,” 31 J. Econ.
Lit. 1912 (1992). Suppose a person would demand $7 to
assume a one in one million chance of being killed. Then
we would estimate the value of his life at $7 million. Not
that he would sell his life for that (or for any) amount of
Nos. 07-1079, 07-1106 11
money, but that if the risk could be eliminated at any
cost under $7 he would be better off. Suppose it could
be eliminated by the potential injurer at a cost of only $5.
Then we would want him to do so and the prospect of a
$7 million judgment if he failed to would give him the
proper incentive.
Loss of life is a real loss even when it has no financial
dimension (the decedent might have had no income). So
is the loss of the companionship (“consortium”) of a
loved one. The problem is the lack of a formula for cal-
culating appropriate damages for loss of consortium. The
plaintiff’s lawyer presented a good deal of evidence of the
close and loving relationship between Mr. Arpin and his
wife and children, but did not attempt—how could he?—to
connect the evidence to the specific figures that he re-
quested in his closing argument. He requested $5 million
for Arpin’s widow and $1 million for each of the children;
the judge awarded $4 million to her and $750,000 to
each child. All the judge said in explanation of his award
of these amounts was that “it is difficult to put a value
on something that is priceless. Mrs. Arpin is far more
dependent on her husband than are her children. Her
children have suffered the loss of a father that is great
and the devastation to this family is immeasurable.”
When a federal judge is the trier of fact, he, unlike a
jury, is required to explain the grounds of his decision. Fed.
R. Civ. P. 52(a). “This means, when the issue is the amount
of damages, that the judge must indicate the reasoning
process that connects the evidence to the conclusion.” Jutzi-
Johnson v. United States, 263 F.3d 753, 758 (7th Cir. 2001).
One cannot but sympathize with the inability of the dis-
trict judge in this case to say more than he did in justifica-
tion of the damages that he assessed for loss of consortium.
12 Nos. 07-1079, 07-1106
But the figures were plucked out of the air, and that
procedure cannot be squared with the duty of reasoned,
articulate adjudication imposed by Rule 52(a).
The judge should have considered awards in similar
cases, both in Illinois and elsewhere. It is true that the
Supreme Court of Illinois does not require or even en-
courage such comparisons. E.g., Richardson v. Chapman,
supra, 676 N.E.2d at 628; Velarde v. Illinois Central R.R.,
supra, 820 N.E.2d at 55-56; Epping v. Commonwealth
Edison Co., 734 N.E.2d 916, 918-19 (Ill. App. 2000). It is also
true, though denied by the United States, that in a suit
under the Federal Tort Claims Act, as in a diversity suit,
the damages rules of the state whose law governs the
substantive issues in the case bind the federal court;
damages law is substantive law. But whether or not to
permit comparison evidence in determining the amount
of damages to award in a particular case is a matter of
procedure rather than of substance, as it has no inherent
tendency (as does a rule requiring heightened review
of damages awards challenged as excessive, as in Gasperini
v. Center for Humanities, Inc., 518 U.S. 415 (1996)) either
to increase or decrease the average damages award; the
tendency is merely to reduce variance. The policy of
permitting such comparison evidence is based, as sug-
gested above, on the requirement in Fed. R. Civ. P. 52(a)
that judges explain their reasoning. Rule 52(a) is of course
a rule of procedure, rather than anything to do with
how stingy or how generous damages awards should be.
And so in Jutzi-Johnson v. United States, supra, 263 F.3d
at 759-60, we ruled that Illinois’s rule on comparison
evidence in damages cases does not bind the federal
courts even in cases such as this where the rule of deci-
sion is given by Illinois law. A later decision of this court,
Nos. 07-1079, 07-1106 13
without citing Jutzi-Johnson—nor had the parties cited it
to the court—contains dicta to the effect that the rule
does bind the federal courts. The court nevertheless up-
held the district judge’s refusal to set aside the jury’s
award even though the judge had based his ruling in part
on a comparison with awards in like cases. Naeem v.
McKesson Drug Co., 444 F.3d 593, 611-12 (7th Cir. 2006).
Courts may be able to derive guidance for calculating
damages for loss of consortium from the approach that
the Supreme Court has taken in recent years to the re-
lated question of assessing the constitutionality of punitive
damages. The Court has ruled that such damages are
presumptively limited to a single-digits multiple of the
compensatory damages, and perhaps to no more than
four times those damages. State Farm Mutual Automobile
Ins. Co. v. Campbell, 538 U.S. 408, 424-25 (2003); see, e.g.,
International Union of Operating Engineers, Local 150 v. Lowe
Excavating Co., 870 N.E.2d 303, 320-22 (Ill. 2006). The first
step in taking a ratio approach to calculating damages
for loss of consortium would be to examine the average
ratio in wrongful-death cases in which the award of
such damages was upheld on appeal. The next step
would be to consider any special factors that might war-
rant a departure from the average in the case at hand.
Suppose the average ratio is 1:5—that in the average
case, the damages awarded for loss of consortium are
20 percent of the damages awarded to compensate for
the other losses resulting from the victim’s death. The
amount might then be adjusted upward or downward
on the basis of the number of the decedent’s children,
whether they were minors or adults, and the closeness of
the relationship between the decedent and his spouse and
children. In the present case the first and third factors
14 Nos. 07-1079, 07-1106
would favor an upward adjustment, and the second a
downward adjustment because all of Arpin’s children
were adults when he died.
We suspect that such an analysis would lead to the
conclusion that the award in this case was excessive,
cf. Brown v. Arco Petroleum Products Co., 552 N.E.2d 1003,
1010 (Ill. App. 1990); Bart v. Union Oil Co., 540 N.E.2d 770,
773 (Ill. App. 1989), but it is not our place to undertake
the analysis. It is a task for the trial judge in the first
instance, though we cannot sustain the award of dam-
ages for loss of consortium on the meager analysis in
the judge’s opinion; it does not satisfy the requirements
of Rule 52(a). We have suggested (without meaning to
prescribe) an approach that would enable him to satisfy
them.
We affirm the joint and several liability of the defendants.
and the award of damages other than for loss of consor-
tium. With regard to those damages we vacate the judg-
ment and remand the case for further proceedings con-
sistent with this opinion.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED WITH DIRECTIONS.
USCA-02-C-0072—4-8-08