Appeals from the United States District Court for the Southern District of Illinois. No. 04-128-DRH-David R. Herndon, Chief Judge.
The opinion of the court was delivered by: Posner, Circuit Judge.
Before POSNER, FLAUM, and ROVNER, Circuit Judges.
The plaintiff's husband was a patient at the Belleville Family Practice Clinic, in southern 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 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 suffering, 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 Hospital 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 additional 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 employed by St. Louis University. After a brief examination, she concluded that Arpin had a muscle strain. She refused 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 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 community; Arpin was a "community side" patient. The plaintiff does not argue that either defendant is responsible 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 officer. We therefore need not consider whether Dr. Haynes might have been deemed a "borrowed employee" 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 finding 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 preceptor 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 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 erroneous reliance on Dr. Pollock's testimony vitiates the finding that Dr. Haynes was negligent. We do not agree. The judge's essential findings, which his erroneous reliance 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 increasing 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 revealed 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 standard 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 nevertheless accept the diagnosis without conducting his own examination. That is a breach of the duty of care so fundamental 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. ...