Karen Woods and Gary Woods v. United States of America, Department of the Army, Letterman Army Medical Center

Plaintiffs, in this malpractice action against the United States, 1 allege personal injuries and mental pain and suffering sustained by Karen Woods as a result of the alleged negligent administration of a cervical myelogram during which the physicians negligently failed to aspirate all of the contrast medium (Pantopaque) used, and the residual Pantopaque is alleged to have resulted in brain damage.

The defendant denied any negligence whatsoever and denied that any negligence proximately caused injury to the plaintiffs.

The District Court had subject matter jurisdiction under the Federal Tort Claims Act ( 28 U.S.C. §§ 1346 (b) and 2671 et seq.) and jurisdiction on this appeal is provided by 28 U.S.C. § 1291 . The parties consented to trial before a Magistrate pursuant to 28 U.S.C. § 636 (c), and this case proceeded to trial to the court without a jury pursuant to 28 U.S.C. § 2402 .

Following trial to the Court, Magistrate Langford entered his Memorandum Decision containing extensive findings of fact and conclusions of law, among which were the following: *1453 (Magistrate’s Memorandum Decision, p. 15, 16). The lower court’s findings should be allowed to stand unless clearly…

concurring in part and dissenting in part:

I agree with the majority that the finding by the magistrate that the Woods failed to prove that the Pantopaque proximately caused the brain damage and organic sei-. zures is not clearly erroneous. I agree, therefore, that we need not reach the question of whether malpractice occurred in the myelogram procedure.

I disagree with the majority that the claim involving Dr. Lee should be reversed. The magistrate found that the Woods did not prove that the acts of Dr. Lee proximately caused the damage claimed by the Woods. The Woods have not demonstrated that this finding is clearly erroneous.

As the magistrate pointed out, several doctors testified that the action of Dr. Lee constituted malpractice. But that is not the dispositive question before us. The magistrate found that the Woods failed to prove that Lee’s acts proximately resulted in any damage. Proof as to this issue turned largely on the credibility of Mrs. Woods. The magistrate found she was not a credible witness — he did not believe her on this issue. Credibility is a determination to be made by the finder of fact and this record does not support overruling his assessment. A…

720 F.2d 1451 Karen WOODS and Gary Woods, Plaintiffs-Appellants, v. UNITED STATES of America, Department of the Army, Letterman Army Medical Center, Defendants-Appellees. No. 81-4609. United States Court of Appeals, Ninth Circuit. Argued Dec. 15, 1982. Re-submitted Aug. 25, 1983. Decided Nov. 28, 1983. 1 Charles D. Maurer, Jr., Maurer, Higginbotham & Harris, San Francisco, Cal., for plaintiffs-appellants. 2 John F. Barg, Asst. U.S. Atty., Richard S. Gilardi, San Francisco, Cal., for defendants-appellees. 3 Appeal from the United States District Court for the Northern District of California. 4 Before WALLACE and FERGUSON, Circuit Judges, and GRANT, * Senior District Judge. GRANT, Senior District Judge: 5 Plaintiffs, in this malpractice action against the United States, 1 allege personal injuries and mental pain and suffering sustained by Karen Woods as a result of the alleged negligent administration of a cervical myelogram during which the physicians negligently failed to aspirate all of the contrast medium (Pantopaque) used, and the residual Pantopaque is alleged to have resulted in brain damage. 6 The defendant denied any negligence whatsoever and denied that any negligence…