     Case: 17-60227      Document: 00514509138         Page: 1    Date Filed: 06/12/2018




           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                    No. 17-60227                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            June 12, 2018
JIMMY LEE KELLY; PAMELA KELLY,                                             Lyle W. Cayce
                                                                                Clerk
              Plaintiffs - Appellants

v.

UNITED STATES OF AMERICA,

              Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 3:14-CV-70


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       The plaintiff brought suit under the Federal Tort Claims Act against the
United States for kidney-related injuries allegedly suffered due to a federally-
funded health clinic’s negligence. After an 11-day bench trial, the district court
ruled in favor of the Government, finding there was no proof of a breach of the
standard of care or of causation. We AFFIRM.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 17-60227
              FACTUAL AND PROCEDURAL BACKGROUND
      In November 2011, Jimmy Kelly, a then-40-year-old brick mason and
resident of Jackson, Mississippi, sought treatment for foot pain at Jackson-
Hinds Comprehensive Health Clinic.         That Clinic was certified under the
Federally Supported Health Centers Assistance Act. See 42 U.S.C. § 233.
Accordingly, suits for personal injuries resulting from medical care may be
brought against the Clinic under the Federal Torts Claims Act. 28 U.S.C.
§§ 1346(b), 2671–80. Clinic staff gathered Kelly’s height, weight, vital signs,
and medical history. Kelly reported a history of gout and complained of, among
other things, moderate pain in both feet and problems urinating. Importantly,
his blood pressure was 180/120, indicating hypertension.
      Nurse Practitioner Marsha Austin treated Kelly. According to Austin,
Kelly exhibited no apparent symptoms of renal failure. Clinic medical records
reflect that he had “[n]o acute distress, [and was] well appearing and well
nourished.” In addition, he had normal heart, lung, and abdominal function.
Austin diagnosed Kelly with hypertension and gout, prescribing Lisinopril-
hydrochlorothiazide for his hypertension and Indomethacin for his gout. She
also directed Kelly to make a follow-up appointment one week later.
      Most importantly, Austin ordered various tests from the lab, including
“a Basic Metabolic Panel with eGFR,” a test that would have revealed Kelly’s
renal failure. For the lab work, Kelly’s medical records state only that “[t]he
patient was given the following information: . . . [l]abwork today . . . RTC 1
week for lab results.” At trial, neither Austin nor Clinic staff specifically
recalled treating Kelly or ordering him to get lab work, but it was the standard
practice for Clinic staff to walk patients to the front desk, where they could
schedule lab work and follow-up appointments.              Kelly scheduled an
appointment two weeks later. Although a Clinic employee drew blood and
performed a glucose test, no other lab tests were completed.
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                                 No. 17-60227
      Two weeks after his initial appointment at the Clinic and on the day he
was scheduled for his follow-up appointment, Kelly went to the emergency
room at University of Mississippi Medical Center (“UMMC”), complaining of
sore throat, fever, and chest pains. Because that hospital was too crowded,
Kelly entered the emergency room at St. Dominic’s Hospital. St. Dominic’s
staff completed blood tests and discovered Kelly’s creatinine level was 19.2, a
critically high level indicating impaired kidney function.
      Kelly’s treating physician, Dr. William Smith, initially diagnosed Kelly
with acute renal failure as a result of the medications prescribed by Austin.
Dr. Smith ordered Kelly’s medications withdrawn and performed two red-
blood-cell transfusions to treat Kelly’s anemia, anticipating Kelly would return
to normal kidney function during his hospital stay. Kelly’s creatinine levels
did not drop below 15 during his nine-day hospital stay, indicating chronic
kidney disease. At trial, Dr. Smith testified Kelly’s lab results “suggest[ed] a
chronic component” and “Chronic Kidney Disease,” rather than an acute
kidney injury brought on by his medications.
      After being released from St. Dominic’s, Kelly underwent surgery in
anticipation of dialysis. He was also referred to UMMC’s kidney-transplant
program, where, during routine testing, Kelly tested positive for Human
Immunodeficiency Virus (“HIV”). Ineligible for a kidney transplant due to his
HIV diagnosis, Kelly underwent extensive dialysis. Kelly has missed dozens
of scheduled dialysis appointments, requiring him to be rushed to the
emergency room numerous times.
      Kelly filed this medical-malpractice suit against the United States,
alleging the Clinic and its employees proximately caused his kidney injuries
by negligently prescribing Lisinopril and Indomethacin that combined to cause




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                                        No. 17-60227
his kidney failure. 1 In the bench trial, Kelly claimed Austin breached the
standard of care by, among other things, not “fully assess[ing]” Kelly’s kidney
function in treating his hypertension, not following up on reconciling Kelly’s
lab results, and not cancelling the prescription once Kelly’s kidney problems
were discovered. Kelly called multiple expert witnesses who testified that
Austin’s prescribing Kelly’s medication without the proper lab work was a
breach of the standard of care and the proximate cause of his kidney injuries
and dialysis. The Government called expert witnesses to refute Kelly’s breach-
of-duty and causation contentions.
      The court found for the Government on both issues. The court, basing
its reasoning in part on Kelly’s expert’s testimony, found Austin did not breach
the standard of care in not recognizing Kelly’s kidney impairment or in
prescribing blood-pressure and gout medications before waiting for the lab
results. As to not reconciling the lab-test results, the court found “Kelly was
told to get lab work done,” and “Kelly chose to ignore [Austin’s] instructions”
as to lab work and attending his follow-up appointment. The court stated that
“[t]he standard of care does not require a provider to take extraordinary steps
to force a patient to comply with the provider’s instructions.” In also finding
the Clinic’s actions were not the proximate cause of Kelly’s injuries, the court
credited the Government’s expert’s testimony that “Kelly would have required
dialysis” regardless and “if the drugs had any impact on Kelly’s renal function,
the effect was transient and did not cause Kelly’s Chronic Kidney Disease.”
Kelly timely appealed.




      1   Kelly’s wife, Pamela Kelly, filed a derivative loss-of-consortium claim as well.
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                                 No. 17-60227
                                 DISCUSSION
      Kelly asserts the district court erred in finding the Clinic did not breach
the standard of care and proximately cause his injuries. A court’s findings of
fact are reviewed for clear error. Guzman v. Hacienda Records & Recording
Studio, Inc., 808 F.3d 1031, 1036 (5th Cir. 2015).          A finding “is clearly
erroneous when although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” Id. (quoting Anderson v. City of Bessemer City,
470 U.S. 564, 573 (1985)). “[W]here there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.”
Id. (quoting In re Luhr Bros., Inc., 157 F.3d 333, 338 (5th Cir. 1998)). In
addition, in reviewing findings from bench trials, we extend “greater
deference” to the court’s credibility determinations. Id. (citation omitted).
“[T]his court may not second-guess the district court’s resolution of conflicting
testimony or its choice of which experts to believe.” Grilleta v. Lexington Ins.
Co., 558 F.3d 359, 365 (5th Cir. 2009).
      The Federal Tort Claims Act permits recovery “under circumstances
where the United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred.” 28
U.S.C. § 1346(b)(1).    Here, we apply the Mississippi medical-malpractice
standard, which requires the plaintiff to show:
      (1) the defendant had a duty to conform to a specific standard of
      conduct for the protection of others against an unreasonable risk
      of injury; (2) the defendant failed to conform to that required
      standard; (3) the defendant's breach of duty was a proximate cause
      of the plaintiff's injury, and; (4) the plaintiff was injured as a
      result.




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                                 No. 17-60227
McGee v. River Region Med. Ctr., 59 So. 3d 575, 578 (Miss. 2011) (quoting Delta
Reg’l Med. Ctr. v. Venton, 964 So. 2d 500, 504 (Miss. 2007)). Both the standard
of care and proximate cause must be proven by expert testimony. Id.


I.    Breach of the standard of care
      Mississippi requires medical providers to adhere to a national, objective
standard of care, established by expert testimony. Estate of Northrop v. Hutto,
9 So. 3d 381, 384 (Miss. 2009). “Given the circumstances of each patient, each
physician has a duty to . . . treat . . . each patient, with such reasonable
diligence, skill, competence, and prudence as are practiced by minimally
competent physicians in the same specialty or general field of practice
throughout the United States.” Id. (quoting Palmer v. Biloxi Reg’l Med. Ctr.,
564 So. 2d 1346, 1354 (Miss. 1990)).
      On appeal, Kelly discusses the Clinic’s alleged breaches as being two-
fold: Austin and the Clinic breached the standard of care first by prescribing
an improper combination of medications and second by failing to reconcile
Kelly’s lab-test results. We do not analyze the validity of the district court’s
findings as to whether there was a breach of the standard of care. The issue
largely turns on whether it was Kelly or instead the Clinic and its staff who
were responsible for assuring Kelly had scheduled lab work completed, as the
results of the tests might have indicated the prescribed medication was
inappropriate. Regardless of the district court’s fact finding on that point,
another part of Kelly’s burden was to introduce evidence that any negligence
on the part of the defendants was the cause of his claimed injuries. See McGee,
59 So. 3d at 578. As we describe, he failed to do so. Because “we may affirm
the district court’s decision on any grounds supported by the record,” we turn
to that issue. Phillips ex rel. Phillips v. Monroe Cnty., 311 F.3d 369, 376 (5th
Cir. 2002).
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                                 No. 17-60227


II.    Proximate causation
       Under Mississippi law, “a plaintiff claiming medical malpractice must
show that there is a causal connection between the injury and the defendant’s
conduct or acts, and this requires expert medical testimony.” McMichael v.
Howell, 919 So. 2d 18, 24 (Miss. 2005).
       The district court credited the Government’s experts in finding Kelly had
chronic kidney disease and would have required dialysis regardless of the
medication that Austin and the Clinic prescribed. The Government’s expert
nephrologist, Dr. Fine, testified Austin’s prescribing Kelly medication did not
cause Kelly’s kidney failure because Kelly had chronic kidney disease before
he ever entered the Clinic, most likely resulting from his HIV.        Dr. Fine
testified that any rise in creatinine levels attributable to the prescription
medications was transient, as indicated by Kelly’s creatinine levels not
returning to normal during his nine-day stay. Dr. Smith, Kelly’s treating
physician, also testified for the Government. He mirrored Dr. Fine’s testimony.
Although Dr. Smith originally diagnosed Kelly with an acute kidney injury, he
testified Kelly had chronic kidney disease before he entered the Clinic.
       The district court was presented with conflicting testimony. Because
“this court may not second-guess the district court’s resolution of conflicting
testimony or its choice of which experts to believe,” we cannot overturn the
district court’s finding on proximate cause. Grilleta, 558 F.3d at 365. The
district court’s findings as to proximate causation were not clearly erroneous.
       AFFIRMED.




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