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Weise v. United States

decided: January 5, 1984.

REINHOLD WEISE, PLAINTIFF-APPELLEE,
v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80 C 4349 -- Prentice H. Marshall, Judge.

Bauer and Eschbach, Circuit Judges, and Campbell, Senior District Judge.*fn*

Author: Eschbach

ESCHBACH, Circuit Judge.

Reinhold Weise brought a medical malpractice action against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. ยงยง 2671-2680. The district court entered judgment for Weise. On appeal, the government presents three challenges to the judgment. First, it claims that, in entering judgment for Weise, the district court ignored its own finding that Weise had not met his burden of persuasion. Next, it contends that, in finding that Weise had established the prevailing standard of medical care, the district court improperly applied Illinois law. Finally, the government urges that the district court's use of medical literature violated Federal Rule of Evidence 803(18), and constituted reversible error.

For the reasons expressed below, we affirm the judgment of the district court.

I.

Reinhold Weise slipped on the ice outside his home and injured his knee. He was admitted to a Veteran's Administration hospital, where the injury was misdiagnosed as a sprain. Weise had, in fact, fractured his knee. The government admitted that the misdiagnosis was negligent, but argued that the treatment Weise received was among those medically accepted for a fracture of the type Weise suffered.

The bench trial in this case was brief, consisting of the testimony of Weise and two orthopedic surgeons. Dr. Robert Miller, Weise's expert witness, testified that the preferable course of treatment for Weise's fracture would have been open reduction (surgery), although non-operative closed reduction was an acceptable alternative treatment.*fn1 Dr. Miller also testified that both the treatment Weise received at the V.A. hospital, and the results he obtained, were medically unacceptable. Dr. Mitchell Sheinkop, the government's expert, testified that the treatment Weise received, which consisted of bed rest with initial immobilization of the knee followed within twelve days by gradual weight bearing, was among the medically accepted treatments for a knee fracture.

Several articles from medical journals and excerpts from standard medical texts were relied on by the experts during both direct and cross-examination. At the close of the evidence, counsel for the government offered to provide the trial judge with copies of the medical literature used during trial. When Weise's counsel indicated that he had no objection, the attorney for the government gave the judge copies of all the articles and texts, inadvertently including one which had never been referred to by either expert. At that time, the judge indicated that he would take the materials home with him, and render his decision the following morning.

The next morning, after stating that he had taken the materials home, the judge expressed concern that the articles had not been properly identified as exhibits. Assisted by the government attorney, the judge assigned each piece of literature a number as "defendant's exhibits in evidence." The judge then announced his findings of fact and conclusions of law. He found that Weise had been negligently treated and had as a result suffered a permanent disability. Judgment was entered in favor of Weise for $80,000.

II.

A. Burden of Persuasion

Initially, the government contends that it was entitled to judgment as a matter of law because the trial judge found that the plaintiff had not carried his burden of persuasion. The record reveals that the trial judge indicated, perhaps out of the frustration attendant upon listening to doctors espouse extreme views in support of their clients, that he had doubts about the credibility of both of the experts. The judge stated:

I have expressed somewhat a lack of confidence in Doctor Miller in certain aspects, and a lack of confidence in Doctor Sheinkop in certain incidents, and in those circumstances one might say, "Well, it's a stand off, and because the ...


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