Paul C. Edwards v. United States , 519 F.2d 1137 ( 1975 )

PER CURIAM:

Paul C. Edwards seeks in this action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 (1970), to recover damages from the United States for injuries allegedly received as a result of negligent medical treatment while an inmate of the Federal Correctional Institute at Texarkana, Texas (F.C.I.). Edwards, then fifty-five, entered prison an active man, though afflicted with diabetes mellitus, angina pectoris, exogenous obesity, and labile hypertension. Fourteen months later, he had a stroke that left him partially paralyzed on his left side. After his release from prison, he filed this suit, alleging that the negligent failure of the treating physicians at F.C.I. to control his diabetes had been a proximate cause of his stroke. The district court, after a full trial, found the evidence insufficient to establish either causation or negligence and dismissed the case with prejudice. We affirm.

Edwards has been diabetic since at least 1946. For the seven years before his imprisonment, he had been under the care of his personal physician, Dr. Richard Liebendorfer, a board eligible internist. In treating Edwards, Dr. Lieben-dorfer had relied on insulin and dietary control. Edwards’ wife had cooperated closely with Dr. Liebendorfer. She prepared properly balanced diabetic meals and varied insulin dosages to meet demands created by her husband’s dietary indiscretions, changes in levels of activity, stress, and other factors affecting his urine sugars. Dr. Liebendorfer had maintained Edwards on 50 to 80 units of insulin per day.

When Edwards arrived at F.C.I. he was taking 50 units of insulin daily. The Chief Medical Officer, after interviewing him, taking his medical history, and evaluating test results, reduced this insulin dosage to 35 units a day, though he later increased it to 40 units.¹ He and his successor maintained the dosage at that level throughout Edwards’ imprisonment, except for the period immediately following the stroke when dosages were increased to as much as 80 units daily. Otherwise, there were no variations in the daily dosages. When Edwards first arrived, the Chief Medical Officer discussed with him dietary principles with which, as a long-time diabetic, Edwards was familiar. Edwards’ urine sugars were checked four times daily. When high readings resulted, a test for acetone was run. The doctors ordered blood tests at regular intervals during the first eight months of Edwards’ imprisonment. During the six months preceding the stroke, however, they ran no blood tests. In January 1969, Edwards had a stroke which, the experts agreed, bore all the earmarks of a thrombosis. Edwards was left partially paralyzed on his left side, impotent, and unable to earn a living in his former occupation as a used-car salesman. He was released from prison in April 1969.

State law controls the issue of liability under the Act. United States v. Muniz, 1963, 374 U.S. 150, 162-163, 83 S.Ct. 1850, 10 L.Ed.2d 805; Richards v. United States, 1962, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492. Texas law, therefore, would determine if expert testimony is necessary to establish the negligence of a physician. Rewis v. United States, 5 Cir. 1966, 369 F.2d 595; Watson v. United States, 5 Cir. 1965, 346 F.2d 52, cert. denied, 382 U.S. 976, 86 S.Ct. 544, 15 L.Ed.2d 467. Applied to this case, Texas law imposes on the treating physicians a duty to exercise that degree of care which a general practitioner of ordinary prudence and skill, practicing in the Texarkana community or a similar community would have exercised in the same or similar circumstances. See, e. g., Bowles v. Bourdon, 1949, 148 Tex. 1, 219 S.W.2d 779; Bender v. Dingwerth, 5 Cir. 1970, 425 F.2d 378, 384; 45 Tex.Jur.2d § 131. Texas cases are in agreement that a plaintiff, to recover for injuries suffered from medical negligence, must show, by expert testimony, that the treating physicians breached the standard of care.² Hart v. Van Zandt, Tex. 1966, 399 S.W.2d 791; Bowles v. Bour-don. The record supports the district court’s finding that Edwards failed to bear that burden.

Edwards complains of a number of specific acts and omissions allegedly amounting to negligence: the reduction of his insulin dosage to 40 units daily; the failure to provide him with a diet adequate to his special needs; the refusal to transfer him to a medical facility equipped to handle his problems; and the failure of the young practitioners³ who treated him to call in a specialist in internal medicine to monitor Edwards’ health.⁴

We pass the question of the causal connection between these alleged failures and the stroke. The most salient defect in Edwards’ case was the failure to establish by expert testimony that any of these acts amounted to negligence. Dr. Liebendorfer, Edwards’ only expert witness, did not express the opinion that Edwards had received improper medical care, nor did he testify as to a standard of care, a predicate on which the court might have based a finding of negligence.

Dr. Liebendorfer testified that many prominent specialists believed that frequent injections of varying doses, correlated to urine sugar levels, was preferable to the single daily dose administered at F.C.I. He offered this, as the district court pointed out, not as a standard of medical care but as a working medical hypothesis. He conceded that there were other medically acceptable approaches. He did not criticize the decision to reduce the insulin Edwards received, nor did he indicate how the level of insulin administered should be determined. He did not indicate that the readings turned up by Edwards’ urine tests should have alerted the doctors that his diabetes was not in control.^{5 6} In fact, he did not indicate why he thought the diabetes had not been in control. He did not testify that a diabetic, exercising judgment and restraint, could not obtain a generally adequate diet in the prison cafeteria, although after an examination of typical ten-day menu, he concluded it “might be spotty”.⁶ He conceded he had no first hand knowledge of the food served there. He also expressed some doubt about the average diabetic inmate’s ability to avoid some of the items offered that are proscribed for diabetics. He did testify that he believed Edwards should have seen a consulting specialist in internal medicine once a month. He conceded at the same time that general practitioners regularly treated similar patients without the aid of specialists.

Dr. Jack Smith testified for the United States. Dr. Smith is a diplómate of the American Board of Internal Medicine, an internist in a nineteen-doctor clinic in Texarkana, and a member of the faculty of the Louisiana State University School of Medicine, Shreveport, Louisiana. He testified that the food served at F.C.I. was comparable to a commercial cafeteria; that the exchange method of diet control was available to appellant nine out of ten days on the ten-day menu sample; that all the elements of a proper diabetic diet were there; that Edwards, following instructions, could have eaten food at F.C.I. consistent with a diabetic diet except on one day when he could not get an adequate fruit exchange. He said that the treatment of Edwards at F.C.I. was consistent with the standard of treatment in the community; that [the] decision to reduce Edwards’ insulin from 50 units to 35 units and three months later to 40 units was medically acceptable. Dr. Smith summarized his testimony as follows:

“On a scale of ideal, fair, satisfactory and unsatisfactory, I would classify Mr. Edwards as fair. His control was fair. He was free of symptoms. His blood sugar was low enough that his 6:00 a. m. sugars were usually “trace” to negative. His sugars taken after meals usually showed the presence of a large amount of sugar, which is more or less to be expected. . There’s a physiological reason for trying to keep patients on 35 to 40 units of insulin. The normal human body makes 40 units of insulin a day. This is physiologic. ... I think [his F.C.I. doctors’] assessment and his medication was proper, so that’s about all I have. I think that sums it up.”

Dr. Liebendorfer went so far as to say that he believed the F.C.I. physicians had committed a mistake in judgment. This alone is not enough to establish liability. Hart v. Van Zandt; Bowles v. Bourdon. Expert testimony must establish a professional standard of care and a deviation from that standard. On this record we need not consider the Edwards’ contention that the district court read Texas law too narrowly in holding that the plaintiff had the burden of showing a deviation from the local standard of care; that the “community” involved is the federal penal system and the standards of care to be adhered to must be measured against those of the national community. We find nothing in Dr. Liebendorfer’s testimony or in the testimony of the government’s experts to establish a deviation from any professional standard of care.

The judgment of the district court is affirmed.

1 . On November 28, 1967, Dr. Liebendorfer wrote inquiring about the status of Edwards and stating, “I am curious to know whether or not you were able to get him off insulin and maintain normal blood sugars. I have felt the regularity of eating habits if a more strict diabetic control was carried out would be of great benefit to his diabetic status.”

2 . In Bowles v. Bourdon, the Texas Supreme Court said:

“It is definitely settled with us that a patient has no cause of action against his doctor for malpractice, either in diagnosis or recognized treatment unless he proves by a doctor of the same school of practice as the defendant: (1) that the diagnosis of treatment complained of was such as to constitute negligence and (2) that it was a proximate cause of the patient’s injuries.”

219 S.W.2d 779.

3 . The first doctor to treat Edwards at F.C.I. was graduated by Columbia University with an A.B. degree in 1961 and by the State University in New York, Downstate Medical Center College of Medicine, in Brooklyn, New York in 1965. The Public Health Service assigned him to F.C.I. after completion of his internship at the University of Pittsburgh Health Center Hospitals. His successor was graduated with a B.S. degree from the University of Texas in 1962 and the St. Louis Medical School in 1967. He was assigned to F.C.I. after his internship at Methodist Hospital in Houston, Texas. Both are now board certified internists.

4 . Edwards also presses the contention that the failure to take his blood pressure for six months prior to his stroke constituted negligence on the part of the Chief Medical Officer. The record, however, suggests no causal connection between this omission and Edwards’ stroke, which the experts agreed had all the appearances of a thrombosis. Tests administered after the stroke revealed no evidence of a hemorrhage. Similarly, there is nothing to suggest that the refusal to permit him to take certain medications prescribed by Dr. Lieben-dorfer was a cause of the stroke.

5 . Tests run after meals often registered high readings. Early morning tests were always negative or showed only a trace of sugar. A government expert, Dr. Jack C. Smith, testified that higher urine sugar readings after meals were normal and to be expected. Dr. . Liebendorfer said nothing to contradict this statement.

Dr. Liebendorfer, in response to questions put to him by the court, did testify that it was recommended that blood sugar tests be run about once every two months in the case of a patient whose diabetes is not easily controlled. He did not indicate a conviction that Edwards’ blood should have been checked that often. Indeed, he testified that in Edwards’ case, there was a very high correlation between blood sugars and urine sugars. One of the F.C.I. doctors cited this correlation as one of the reasons for taking fewer blood tests.

6 . Examining the whole menu, Dr. Liebendorfer pointed to two meals that he said were inadequate for a diabetic. Dr. Smith, examining the same menu, found one breakfast inadequate because it failed to offer an adequate “fruit exchange”.