841 F2d 1129 Johnson Johnson v. United States

841 F.2d 1129

Unpublished Disposition

Michael T. JOHNSON, an Incompetent, by Co-Conservators
Robert Royal JOHNSON and Veronica Johnson,
Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

No. 86-6393.

2

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 5, 1988.
Decided March 3, 1988.

3

Before FERGUSON, BEEZER and LEAVY, Circuit Judges

4

MEMORANDUM*

5

Michael Johnson entered the alcohol rehabilitation ward at Long Beach Veterans Administration Hospital (hereinafter VAH) while experiencing alcohol withdrawal. Between admission examinations he was found in the VAH parking lot, having suffered severe injuries. His conservators (hereinafter "Johnson") sued the United States under the Federal Tort Claims Act claiming that the VAH had acted negligently. After a bench trial, the district court ruled in favor of the United States. We reverse and remand for a new trial.

I.

6

Johnson first visited the VAH on April 21, 1980, when he was transferred from another hospital after suffering two alcohol withdrawal seizures. He was admitted to the VAH's detoxification program. While going through detoxification, Johnson experienced delirium tremens. He was discharged from the VAH on May 2, 1980, at which time his treating physician gave him prescriptions for dilantin and dicloxacillin and scheduled follow-up appointments.

7

On the morning of May 28, 1980, Johnson, accompanied by his ex-wife, Charlene Olson, returned to the VAH. They went to the K-2 ward for Johnson's scheduled admission to the hospital's alcohol rehabilitation program. Upon arrival at the ward, Johnson took and passed the breathalyzer test required for admission to the program. He did not go to the Bed Control Office to check in--although that would have been the normal course of action--apparently because he had already been assigned a room prior to his arrival. After locating Johnson's room and unpacking, Johnson and Olson toured the ward. Olson then left to go to work.

8

At approximately 9:30 a.m., Dr. Carlotta Carvajal, the staff physician of the K-2 ward, gave Johnson a physical exam. She prepared a detailed report on Johnson's medical history. This report indicated that Johnson had been discharged from VAH on May 2, 1980, after detoxification following delirium tremens and an alcohol withdrawal seizure. The report also indicated that Johnson was addicted to alcohol, that he had been drinking since his previous discharge from VAH, that he last drank two days before, and that he had been taking dilantin and librium given to him when he was previously discharged.

9

Dr. Carvajal also prepared a detailed report on Johnson's physical condition. Among other things, the report indicated that Johnson's K-2 program objective was to "achieve sobriety". Significantly, Dr. Carvajal also noted in her report her belief that seizures were not a special consideration calling for precautions and restrictions. Dr. Carvajal then prescribed continued medication of dilantin and librium.

10

At trial, Dr. Carvajal testified that she normally takes about 45 minutes to examine a K-2 patient. She thus would have finished examining Johnson at approximately 10:15 a.m. Dr. Carvajal also testified that, as was her usual practice, when she finished the physical examination of Johnson, she told him to go to the ward's waiting area to await his psychiatric examination.

11

It appears that no one saw Johnson after his examination with Dr. Carvajal until he was found at approximately 10:45 a.m. in the VAH's parking lot. He was admitted to the emergency room suffering from head trauma. He had experienced seizures, had then lapsed into coma, and registered a temperature of 108 degrees. Today Johnson is totally and permanently disabled.

12

Johnson, by his conservators, sued the United States for medical malpractice under the Federal Tort Claims Act. See 28 U.S.C. Secs. 1346, 2671 et seq. Johnson's theory was that if he had been admitted to the detoxification program rather than the K-2 program, or if he had been properly medicated, supervised, and protected in the K-2 ward, he would not have been injured as he was.

13

After a bench trial, the district court decided in favor of the United States.1 Pursuant to Local Rule 14.3 of the Central District of California, the United States lodged proposed findings of fact and conclusions of law with the district court. The district court then modified and signed the United States' proposed findings and conclusions. See Federal Rule of Civil Procedure 52(a). However, the court did so on July 28, 1986, before Johnson had filed objections and before the time for objections had run under Local Rule 14.6.

14

Johnson appeals the district court's decision that the United States is not liable for his injuries. Johnson also challenges the propriety of the district court's having filed its Findings of Fact and Conclusions of Law before the time in which Johnson could submit his objections had expired. This court has jurisdiction under 28 U.S.C. Sec. 1291.

II.

15

This court reviews findings of fact under the clearly erroneous standard, Louie v. United States, 776 F.2d 819, 822 (9th Cir.1985); United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984), while conclusions of law are subject to de novo review. McConney, 728 F.2d at 1201.

III.

A.

16

The district court held that the United States was in no way liable for the injuries suffered by Johnson. Specifically, Johnson challenges the district court's determinations that the VAH was not negligent and that the proximate cause of Johnson's fall and injuries is unknown. We agree with Johnson that those determinations were incorrect and thus reverse the district court's decision and remand the case for a new trial.

17

The liability of the United States for the allegedly negligent or wrongful conduct of personnel at the VAH is determined under the "law of the place where the [negligent] act or omission occurred." 28 U.S.C. Sec. 1346(b); Richards v. United States, 369 U.S. 1, 10 (1962); Ducey v. United States, 713 F.2d 504, 508 n. 2 (9th Cir.1983).

18

Under California law, a plaintiff establishes negligence by establishing that the defendant was guilty of a wrongful act or omission and that such act or omission was the proximate cause of the plaintiff's injuries. Spencer v. Beatty Safway Scaffold Co., 141 Cal.App.2d 875, 880-82 (1956).

19

In Anderson v. City of Bessemer City, 470 U.S. 564 (1985), the Supreme Court repeated the principle that a district court's finding of fact is clearly erroneous only when the reviewing court "is left with the definite and firm conviction that a mistake has been committed." 470 U.S. at 573.

20

In contrast, a district court's conclusion of law receives no deference at all. McConney, 728 F.2d at 1201. This is because "de novo" review means " 'trying the matter anew, the same as if it had not been heard before and as if no decision had been previously rendered.' " Exner v. F.B.I., 612 F.2d 1202, 1209 (9th Cir.1980) (quoting Farmingdale Supermarket, Inc. v. United States, 336 F.Supp. 534, 536 (D.N.J.1971)).

1.

21

The decision of the district court must be reversed because the court made a clearly erroneous determination about the cause of Johnson's injuries. This led to the application of an incorrect standard when determining whether the United States was negligent in its care of Johnson.

22

In its Findings of Fact, the district court stated that Johnson's injuries resulted from his having fallen. The court made no determination as to the cause of that fall, concluding as a matter of law, that "the evidence at trial did not establish the manner in which the plaintiff's injury occurred except that it occurred in the parking lot of the VAH...." Conclusion No. 6.

23

The evidence is clear and uncontradicted that Johnson's fall was caused by a seizure. Dr. Barceloux, plaintiff's expert witness, so testified. The hospital records, which were introduced into evidence by stipulation, reveal that each of the three physicians who treated Johnson in the emergency room after he was discovered in the parking lot, concluded that his injuries were the result of a fall brought about by a seizure.

24

This court must assume that a judge considers all of the evidence, relies on what supports his finding, and rejects what does not. Western Pac. Fisheries, Inc. v. SS President Grant, 730 F.2d 1280, 1285 (9th Cir.1984). To find that the manner in which Johnson's injury occurred was unknown, the district court had to have rejected the testimony of an expert and the statements of the three emergency room physicians. From the record, there appears to be no credible alternative explanation for Johnson's injuries, nor is there evidence which could discredit the judgment of the emergency room physicians. Thus, the district court's finding is clearly erroneous.

2.

25

Since Johnson's injuries were proximately caused by a seizure, this court must also review whether the United States had--and breached--a duty to protect Johnson from the effects of a seizure.

26

Johnson argues that the district court erred in finding that the United States was not negligent. We agree. The district court erred by applying an incorrect standard when it determined the United States' non-liability. In assessing liability, the court's inquiry focused on the foreseeability of Johnson's actions rather than the foreseeability of his suffering an alcohol withdrawal seizure.

27

In this regard, the court held that "[t]he VAH ... is ... held to a standard of care to guard against a patient's actions which a reasonable person under the circumstances could anticipate as likely to happen...." Conclusion No. 10 (emphasis added). The district court found that Johnson left the K-2 ward against medical advice and of his own volition. Thus the court concluded that "Michael Johnson was capable of looking after his own safety ... his medical condition was not of such a status that a reasonable person could have anticipated that within two hours of his arrival at the VAH ... he would of his own volition walk off the K-2 Ward and end up in the VAH parking lot suffering injuries from a fall...." Conclusion No. 11. This was an incorrect standard.

28

Since his injuries were the result of an alcohol withdrawal seizure, the relevant inquiry should have been into the foreseeability of Johnson seizing--whether his medical condition would have led a reasonable medical professional to foresee the likelihood of his suffering an alcohol withdrawal seizure. Thus, the district court applied an incorrect standard when it determined that the treatment accorded Johnson by the United States conformed to the prevailing standard of care by the relevant community of medical professionals.

29

It is reversible error where a judgment was reached by application of an incorrect rule of law. See Dayton Board of Education v. Brinkman, 433 U.S. 406, 417-18 (1977); Int. Molders' & Allied Workers' Local U. v. Nelson, 799 F.2d 547, 550 n. 1 (9th Cir.1986) (preliminary injury will be reversed for abuse of discretion where court applied incorrect rule of law); Paul E. Iacono Structural Engineer, Inc. v. Humphrey, 722 F.2d 435, 438 (9th Cir.), cert. denied, 464 U.S. 851 (1983) (order will be reversed where court "misperceives the relevant rule of law."). Accordingly, the decision by the district court is reversed and the case remanded for a new trial.

IV.

30

The district court erred in its determination that the cause of Johnson's injuries was unknown. As a result, it applied an erroneous standard of law when it assessed the possible negligence of the United States. The proper inquiry would have focused not on the likelihood of Johnson's walking outside the VAH and falling, but rather on the foreseeability of Johnson suffering an alcohol withdrawal seizure.

31

Thus the decision of the district court is REVERSED and the case REMANDED for a new trial.2

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

In its Conclusions of Law, the district court set forth the standard for determining what is commonly referred to as "premises liability." Despite its inclusion, there is no other indication that the court based its judgment on the premises liability theory. Rather, its inclusion appears to support the conclusion of the district court that while the immediate cause of the injuries suffered by the plaintiff once he was in the VAH parking lot is unknown, they were not due to any hazardous condition in the parking lot for which the VAH would be responsible

2

Because we reverse the decision of the district court on the basis of its determinations regarding causation and negligence, we do not address the other issues raised by Johnson on appeal