                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                 April 18, 2006
                         ______________________
                              No. 05-30701                 Charles R. Fulbruge III
                                                                   Clerk
                        ______________________

                             JOANN WAGGONER
                          Plaintiff-Appellant
                                 versus
                        UNITED STATES OF AMERICA
                           Defendant-Appellee
          ___________________________________________________

            Appeal from the United States District Court for
                    the Western District of Louisiana
                               (01-CV-2472
          ___________________________________________________


Before SMITH, BARKSDALE, AND DENNIS, Circuit Judges.

PER CURIAM:1

     Plaintiff, Joann Waggoner, appeals the district court’s

decision in her suit under the Federal Torts Claim Act, 28 U.S.C.

§ 1346(b), in which she alleged that malpractice by the Veterans

Affairs Hospital (“VA”) in Alexandria, Louisiana.

     Mrs. Waggoner challenges the district court’s decision that

Plaintiff failed to show her entitlement to relief because she had

not sufficiently established that the staff of the Alexandria VA

breached a relevant standard of care. She argues that the district




      1
        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 this opinion should not be published and is not precedent except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.
                                                                  1
court erred in its evaluation of the facts.2 Because the district

court did not clearly err in evaluating the facts relevant to

determining breach of a relevant standard of care, we affirm the

district court’s decision.


                             BACKGROUND

     Wilmer Waggoner suffered from multiple medical conditions; in

addition to cardiovascular problems, elevated triglycerides and

moderately elevated cholesterol, and carotid vascular disease, he

had chronic obstructive pulmonary disease, a history of

gastroesophageal reflux disease, and degenerative joint disease

centering on his cervical and lumbar spine. Until his death, he

smoked two packs of cigarettes a day.

     In May 1992, he underwent a catheterization at the Rapides

Regional Medical Center. In August 1992, he became a patient at

the VA. He was notified of appointments by letter, including those

rescheduling of cancelled appointments. In September of that year,

he complained of chest pain during a visit. As a result, he was

admitted to the VA in February 1993 and given a thallium stress

test, which was negative for ischemia (lack of blood flow and

oxygen to the heart muscle). At the time, he was advised of the



      2
        Mrs. Waggoner also argues that, in relying on Hemingway v.
 Ochsner Clinic, 722 F.2d 1220 (5th Cir. 1984), the district court
 applied the wrong standard of proof on the question of causation in
 fact, resulting in a flawed analysis of the evidence. As the trial
 court actually ruled that Mrs. Waggoner had not met her burden in
 proving a breach of a relevant standard of care, this argument will
 not avail her here.
                                                                   2
need to follow a low-sodium, low-cholesterol diet. His discharge

summary indicated that Mr. Waggoner suffered from arteriosclerotic

heart disease (also called coronary artery disease) with angina

pectoralis.

     Mr. Waggoner returned to the VA that August, where he

underwent ultrasounds that revealed blockage in his arteries. He

was referred to the cardiology clinic, but was not seen there

until late March 1994 due to cancellations by both VA (of a

December appointment) and Mr. Waggoner (of an early March

appointment). During the late March visit, he indicated he had not

experienced chest pain in the preceding month, and that

nitroglycerin had alleviated his prior chest pain. In November he

was admitted to the VA having suffered a transient ischemic

attack, and was diagnosed with further blockages in his carotids.

That same month, he had a carotid endarterectomy; he underwent a

second in January 1995. By July 1995, bruits (noises in the

vascular system indicating impeded arteries) had returned.

     In January 1996, Mr. Waggoner returned to the VA complaining

of chest pain. He underwent a stress test, which revealed a left

bundle branch block (“LBBB”). On April 11, 1996, Mr. Waggoner

returned to the VA for a flu appointment, at which time he

complained of angina. During that visit, the VA cancelled Mr.

Waggoner’s scheduled stress test, because the presence of an LBBB

makes regular stress tests much less useful in identifying

ischemia. The VA scheduled a thallium stress test for July 25,

                                                                    3
1996, but Mr. Waggoner cancelled the test. On August 16, 1996, Mr.

Waggoner went to the VA complaining of back pain and continued

angina that was relieved by nitroglycerin. The treating physician,

Dr. Mondal, suggested that Mr. Waggoner admit himself to the

hospital for further tests, but Mr. Waggoner refused admission,

indicating he would return for admission on August 21. In fact,

Mr. Waggoner did not appear for admission until August 26.

     During that hospitalization, Mr. Waggoner told his doctors

that his chest pain had been worsening for the last year, and had

occurred daily for the last two weeks. A thallium stress test was

prescribed, but not performed, for reasons not explained in the

record. Instead, a regular stress was administered, but terminated

due to leg fatigue. Dr. Mondal ordered 24-hour telemetry during

the hospitalization; Mr. Waggoner would leave the ward to smoke,

carrying him out of range of the monitor.

     Mr. Waggoner went back to the VA on September 30, indicating

that his chest pain had been reduced; Dr. Mondal’s notes indicated

a thallium stress test should be scheduled. None was scheduled

until March 5, 1997 but the record does not indicate whether the

VA or Mr. Waggoner is responsible. Mr. Waggoner did not appear for

the March 5 test, nor for a subsequent April 4 clinic appointment.

He next returned to the VA on May 5, 1997, at which time a

thallium stress test was scheduled for May 20.

     The results of that test indicated that his coronary artery

disease had worsened, that he suffered from ischemia, and that he

                                                                    4
had a permanent defect on the heart wall. Dr. Mondal accordingly

ordered a battery of tests, scheduled for June 3, 1997 and then

rescheduled for June 17. Mr. Waggoner did not appear for the first

appointment and cancelled the second; the tests were not

rescheduled.

     On September 3, 1997, Mr. Waggoner arrived at the VA

complaining of chest pain. Dr. Mondal referred Mr. Waggoner to the

cardiology clinic, and informed Mr. Waggoner that he could be

admitted for more tests, but the patient declined. On November 14,

1997, Mr. Waggoner once again returned to the VA complaining of

chest pain that radiated across his chest and that was alleviated

by nitroglycerin. When told that Mr. Waggoner had not yet been

seen by a cardiologist, Dr. Mondal requested he be seen by a

cardiologist within the “next week or so” and instructed Mr.

Waggoner to call if not given an appointment in the next two

weeks. Although the appointment was not scheduled until December

16, 1997, Mr. Waggoner never contacted Dr. Mondal.

     During Mr. Waggoner’s course of treatment at the VA, his

lipid levels were tested. His cholesterol ranged from 197 to 295,

falling frequently within the 200-240 range, which was described

at trial as “moderate risk”. His triglyceride levels ranged

between 300 and 500. He received no medication for hyperlipidemia,

but was instructed to change to a low cholesterol/low sodium diet,

to exercise and to stop smoking. At trial, defendant’s expert

witness testified that it was not a breach of the standard of care

                                                                    5
to treat Mr. Waggoner with diet and exercise rather than with

medication, given the severe side effects of such drugs.

Plaintiff’s experts both testified that, in their opinion, Mr.

Waggoner should have been medicated, but did not indicate that

medication was the only means by which hyperlipidemia could be

treated.

     On December 13, 1997, Mr. Waggoner suffered a heart attack.

He died on January 4, 1998. The cause of death was described as

respiratory failure, congestive heart failure, myocardial

infarction, and coronary heart disease.

     Mrs. Waggoner filed suit on November 2001, which was

initially dismissed for lack of jurisdiction. On appeal, this

court reversed and reinstated the action, which then went to a

bench trial on April 13, 2005. The district court rendered

judgment for the United States, awarding appellant nothing. She

timely filed a notice of appeal.



                        STANDARD OF REVIEW



     Challenged factual findings “shall not be set aside unless

clearly erroneous.” Fed. R. Civ. P. 52(a); see also Dickerson ex

rel Dickerson v. United States, 380 F.3d 470, 474 (“The standard

of review for factual determinations in a FTCA case is whether the

district court's findings are clearly erroneous.” (citing Low v.

United States, 795 F.2d 466, 470 (5th Cir.1986); Ferrero v. United

                                                                   6
States, 603 F.2d 510, 512 (5th Cir.1979)). Findings are clearly

erroneous when “after reviewing the entire evidence, the Court is

left with the definite and firm conviction that a mistake has been

committed.” Dickerson, 380 F.3d at 474 (citing Ferrero, 603 F.2d

at 512).



               THE FEDERAL TORTS CLAIM ACT (“FTCA”)



     Under the FTCA, the United States is liable for those

personal injuries “caused by the negligent or wrongful act or

omission of any employee of the Government.” 28 U.S.C. § 1346(b).

This court extends liability to the United States under the FTCA

just as we would to a private individual in a similar situation;

accordingly, we follow state law in determining that liability.

Richards v. United States, 369 U.S.1, 82 S. Ct. 585 (1962);

Charles v. Louisiana, 15 F.3d 400, 402 (5th Cir. 1994); see also,

28 U.S.C. § 2674.

     According to Louisiana law, the plaintiff in a medical

malpractice action has the burden of proving: 1) the relevant

standard of care in that community under similar circumstances; 2)

a breach of that standard of care by defendant; and 3) causation.

See LA. REV. STAT. ANN. § 9:2794; Martin v. East Jefferson General

Hospital, 582 So.2d 1272, 1276 (La. 1991).



                               ANALYSIS

                                                                     7
     Mrs. Waggoner alleges error on the trial court’s

determination of three issues: 1) whether plaintiff established

that the applicable standard of care required the VA physicians to

medicate Mr. Waggoner for hyperlipidemia; 2) whether plaintiff

established a breach of a standard of care because the thallium

stress test prescribed in April 1996 was not performed until May

1999; and 3) whether plaintiff established a breach of a standard

of care because Mr. Waggoner was not given a cardiac

catheterization after the results of his May 1997 thallium stress

test were known. We address each issue in turn.



1. Mr. Waggoner’s Hyperlipidemia

     On appeal, Mrs. Waggoner’s arguments focus on whether or not

Mr. Waggoner complied with the prescribed low-cholesterol, low-

sodium diet, and on whether medicating him for hperlipidemia would

have prevented his heart attack. The trial court’s actual ruling,

however, is that “[p]laintiff has failed to establish that the

applicable standard of care required Alexandria VA physicians to

medicate Mr. Waggoner for his hyperlipidemia.”

     The evidence introduced on this point comes from competing

expert witnesses. Plaintiff’s experts urged that Mr. Waggoner’s

physicians should have put him on medication for his

triglycerides, but did not claim that medication was the only

means. Defendants’ witness, by contrast, argued that in the 1990s,

dietary changes were a prevalent treatment for elevated

                                                                    8
triglycerides. The record further indicates that Mr. Waggoner’s

overall cholesterol frequently tested in only the “moderate risk”

range, and that lipid-reducing drugs can carry serious side

effects. Based on this evidence, we cannot say that the district

court committed clear error in concluding that plaintiffs did not

establish that the standard of care in Alexandria, LA, for a

patient with Mr. Waggoner’s characteristics required the VA to

place Mr. Waggoner on medication for his hyperlipidemia.



2. The Delay in Thallium Testing

     Mrs. Waggoner’s next argument is that the trial court

accorded too much weight to Mr. Waggoner’s failure to appear for

or schedule appointments in determining that the delay in

obtaining a thallium stress test was not due to the VA’s

negligence. In support, she cites to delays and cancellations by

the VA, namely: the cancellation of the December 1994 cardiology

appointment; a two year delay between the March 29, 1994

cardiology clinic visit and the April 24, 1996 stress test; a

failure to administer a thallium stress test during his August

1996 hospitalization; cancellation of a regular stress test

scheduled for February 19, 1997; and further delay in scheduling a

thallium stress test until May 20, 1997.

     The district court also had before it, however, evidence

indicating that Mr. Waggoner had missed appointments for thallium

tests scheduled for July 25, 1996 (three months after the test had

9
been ordered) and March 1, 1997. Further, the record notes that a

thallium test was ordered during Mr. Waggoner’s August 1996

hospitalization, but the request changed to a regular stress test.

No explanation is given for the change, but the district court

noted that Mr. Waggoner arrived for his August stay without giving

notice of his arrival (and, indeed, he had failed to arrive for

his scheduled admission on August 21, 1996). “Given this,” the

district court notes, “it is just as likely that the necessary

equipment or personnel were not available at that time.” On the

balance of the above evidence, it was not clearly erroneous to

determine that the VA’s negligence was not responsible for the

delay in obtaining a stress test. We are not left with a definite

and firm conviction that the district court’s interpretation of

the evidence is mistaken. See Anderson v. City of Bessemer City,

N.C., 470 U.S. 573-5 (1985). It is not for us to disturb that

court’s factual findings where the district court’s conclusion is

plausible, as it is here. See Bartmess v. Federal Crop Ins. Corp.,

845 F.2d 1258, 1262 (5th Cir. 1988).



3. Failure to Order a Cardiac Catheterization

     Mrs. Waggoner’s final argument contends that the VA was

negligent in failing to give Mr. Waggoner a cardiac catheterzation

or other treatment for his coronary artery disease after the

results of the May 1997 thallium stress test revealed that his

coronary artery disease had worsened, identified his ischemia, and

10
found a permanent defect in the heart wall. She challenges Dr.

Mondal’s decision to perform more tests to confirm the diagnosis,

and that his characterization of Mr. Waggoner’s medical condition

did not “lead [Mr. Waggoner] to be overly concerned about his

health.” She also challenges the doctor’s action after the

September 3 and November 14, 1997 visits, which, respectively,

constituted a referral to the cardiology clinic and a decision to

increase his medication, but not to order further testing.

     The district court, however, also had evidence that indicated

that Mr. Waggoner, who was complaining of chest pain and had been

told that his coronary condition had worsened, missed both of the

testing appointments scheduled in June 1997 that were meant to

provide his doctors with additional information for treatment.

When he returned to the VA in September, he was referred to the

cardiology clinic, but declined to be admitted for more testing at

that time. When Mr. Waggoner returned again in November, Dr.

Mondal told Mr. Waggoner that he needed to make the cardiology

appointment within two weeks, and to call if the appointment could

not be scheduled within that time frame. Although the appointment

was ultimately scheduled for December 16, 1997, Mr. Waggoner never

contacted Dr. Mondal. Again, we find the record provides ample

support for the court’s finding that Mr. Waggoner’s lack of

treatment for with coronary artery disease is not the result of

the VA’s negligence, and must, therefore, affirm the trial court

on this issue.

11
                           CONCLUSIONS



      Based on the record before us, we cannot say the district

court clearly erred in evaluating the facts before it in

determining that Mrs. Waggoner had not met her burden of proof

regarding a breach of a relevant standard of care on the issues

above. The judgement of the district court is therefore AFFIRMED.




                                                                  12
