                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 9 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

PATRICK G. BROTHERTON, a single                 No.    19-35541
man,
                                                D.C. No. 2:17-cv-00098-SAB
                Plaintiff-Appellant,

 v.                                             MEMORANDUM*

UNITED STATES OF AMERICA,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Eastern District of Washington
                  Stanley Allen Bastian, District Judge, Presiding

                             Submitted June 1, 2020**
                               Seattle, Washington

Before: GOULD, BEA, and MURGUIA, Circuit Judges.

      Patrick Brotherton appeals the district court’s judgment that the United

States was not liable for medical malpractice under the Federal Tort Claims Act

(“FTCA”), 28 U.S.C. §§ 1346, 2671–80. Under the FTCA, a federal court must



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
apply the law that state courts would apply in an analogous tort action. Rhoden v.

United States, 55 F.3d 428, 431 (9th Cir. 1995) (per curiam). The parties agree

Washington tort law applies here.

      After ankle surgery, Brotherton’s leg became infected due to complications

related to his diabetes and was ultimately amputated below the knee. Brotherton

then commenced this action against the United States, alleging medical malpractice

by his primary care physician at the Department of Veterans Affairs (“VA”), Dr.

Sim. Brotherton alleged that Dr. Sim’s duty of care under Washington law

required him to (a) tell Brotherton not to undergo surgery because his diabetic

condition was uncontrolled (creating an unreasonable risk of infection), (b) tell

Brotherton’s surgeon the same message, or (c) de-authorize the VA’s medical care

referral to the surgeon, who was not affiliated with the VA and is therefore not part

of this lawsuit. At a bench trial, the district court found that Brotherton’s only

expert witness on the applicable standard of care was not credible because his

“testimony was of an advocate, rather than an expert.” Therefore, the district court

held that Dr. Sim’s duty of care did not require him to undertake any of those three

actions.

      We have jurisdiction under 28 U.S.C. § 1291, and we affirm. While

Brotherton makes several arguments that the district court erred, his appeal cannot

overcome this single, dispositive obstacle: Without the testimony of his expert


                                           2
witness, which the district court plausibly did not find credible, he could not

establish that Washington’s standard of care required Dr. Sim to perform any of

the three acts (a), (b), or (c) in the preceding paragraph.

      Under Washington law, a plaintiff in a medical malpractice case must show

that “[t]he health care provider failed to exercise that degree of care, skill, and

learning expected of a reasonably prudent health care provider at that time in the

profession or class to which he or she belongs, in the state of Washington, acting in

the same or similar circumstances.” Reyes v. Yakima Health Dist., 419 P.3d 819,

822–23 (Wash. 2018) (quoting Wash. Rev. Code § 7.70.040(1)). “The applicable

standard of care in medical malpractice actions must generally be established

through expert testimony.” Id. at 823 (citing Miller v. Jacoby, 33 P.3d 68 (Wash.

2011).

      The district court did not clearly err when it found that Brotherton’s sole

expert witness, Dr. Leo, was not credible. The record plausibly shows that Dr. Leo

testified to a standard of care that he and his hospital do not practice, that he does

not teach to his residents during training, and that no text or treatise proffered by

Dr. Leo supported. Thus, the district court’s finding that Dr. Leo was acting as an

advocate rather than an expert was not “‘illogical or implausible,’ or without

‘support in inferences that may be drawn from the facts in the record.’” Rodriguez

v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012) (quoting Andersen v. Bessemer


                                           3
City, 470 U.S. 564, 577 (1985)). As such, Brotherton was unable to establish a

required element for his cause of action: that the relevant standard of care required

Dr. Sim to advise Brotherton or his surgeon not to go through with the surgery, or

to de-authorize Brotherton’s referral.

      This conclusion is sufficient to affirm the judgment of the district court, and

none of Brotherton’s other arguments compel a contrary result. First, Brotherton is

incorrect that the district court erred by relying on an orthopedic surgeon’s

testimony to establish the standard of care for a primary care physician, because, in

Washington, “doctors with unlimited licenses are competent to give expert

testimony in the entire medical field.” Kelly v. Carroll, 219 P.2d 79, 85 (Wash.

1950).

      Second, Brotherton’s argument that the district court erred as a matter of law

by adopting the “average physician” standard of care rather than the purportedly

correct “reasonably prudent” standard is similarly unavailing. Brotherton’s sole

expert witness did not present any evidence as to the expectations of “society” as a

whole (not to mention, again, that his testimony was discredited by the district

court). Nor could Dr. Leo have done so: he is not a sociologist and claims no

other knowledge or expertise in social expectations or values.

      Third, the district court did not err by considering Dr. Sim’s training,

because “training is always taken into account in the application of any reasonable


                                          4
person standard.” Harris v. Roberts C. Growth, M.D., 663 P.2d 113, 116 (Wash.

1983). Fourth and finally, Brotherton provides no reason why the district court’s

reliance on Dr. Ledgerwood’s testimony was clearly erroneous. Even if it were the

case that Dr. Ledgerwood’s testimony conflicted with that of Dr. Sim (and it does

not appear that it is), it would not have been clearly erroneous for the district court

to credit the former over the latter.

      AFFIRMED.




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