                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 28 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

PHYLLIS AGUCHAK, as Guardian of                 No.    17-36024
Phyllis Rivers, and A.S and J.R, minor
children,                                       D.C. No. 3:15-cv-00105-HRH

                Plaintiffs-Appellees,
                                                MEMORANDUM*
 v.

UNITED STATES OF AMERICA,

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Alaska
                   H. Russel Holland, District Judge, Presiding

                      Argued and Submitted August 14, 2018
                               Anchorage, Alaska

Before: HAWKINS, McKEOWN, and OWENS, Circuit Judges.

      In this action under the Federal Tort Claims Act, defendant-appellant the

United States appeals from the district court’s judgment following a bench trial

imposing liability for the government’s doctors’ treatment of Phyllis Rivers,

daughter of plaintiff-appellee Phyllis Aguchak and mother of plaintiffs-appellees



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
A.S. and J.R. As the parties are familiar with the facts, we do not recount them

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

      1. Contrary to Aguchak’s argument, the government’s election not to move

for more specific findings under Fed. R. Civ. P. 52(b) does not bar it from

challenging the district court’s recklessness finding as clearly erroneous. Reliance

Fin. Corp. v. Miller, 557 F.2d 674, 681–82 (9th Cir. 1977).

      2. Contrary to Aguchak’s argument, the government’s contentions on

appeal are not barred by its pleadings, Fed. R. Civ. P. 36 admissions, and pre-trial

representations. Aguchak does not identify any passage of the government’s

briefing disputing that the government’s doctors knew that Rivers possibly had

infective endocarditis (“IE”) when she was admitted to Alaska Native Medical

Center (“ANMC”) or that she did, in fact, have IE. Nor are the passages

inconsistent with the pre-trial materials Aguchak cites.

      3. The district court did not clearly err in finding that the government’s

doctors acted recklessly. See United States v. Working, 224 F.3d 1093, 1102 (9th

Cir. 2000) (en banc) (“Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.” (quoting Anderson

v. Bessemer City, 470 U.S. 564, 573–74 (1985))).

      The district court found, the medical records show, and the government does

not dispute that the ANMC staff “obtained an accurate medical history of [Rivers]


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and properly examined” her upon admission; knew that Rivers had at least three

minor Modified Duke Criteria (“MDC”) for IE; and recognized on that basis that

she possibly had IE. These facts gave doctors “reason to know” that there was a

substantial risk of misdiagnosis. Restatement (Second) of Torts § 500 cmt. a (Am.

Law Inst. 1965) (“Second Restatement”). Contrary to the government’s argument,

therefore, this is not a case where the defendant was unaware of danger-creating

circumstances and was thus negligent at worst. Cf. Hayes v. Xerox Corp., 718 P.2d

929, 935 (Alaska 1986).

      Ample evidence, moreover, supported the court’s conclusion that the

government’s doctors unjustifiably rejected IE as a diagnosis and ended antibiotic

treatment. See Second Restatement § 500 cmt. a (“[T]he risk must itself be an

unreasonable one under the circumstances.”). Aguchak’s infectious-disease expert,

Dr. Hosea, whose testimony the district court credited, testified that there was no

sound medical basis for the doctors’ conclusions that Rivers was suffering from

“pregnancy-induced vasculitis” and that her possible IE syndrome had resolved

with four days of antibiotic therapy—and thus that there was no sound medical

basis for the doctors to reject IE as a diagnosis under the MDC.

      Finally, the evidence established—or at least could plausibly be viewed as

having established—that both the risk and severity of harm to Rivers posed by a

misdiagnosis of IE were extreme and that the government’s doctors knew, or


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should have known, that fact. See Second Restatement § 500 cmt. a

(“[Recklessness] must involve an easily perceptible danger of death or substantial

physical harm, and the probability that it will so result must be substantially greater

than is required for ordinary negligence.”). Dr. Hosea was unequivocal that left

untreated, IE inevitably causes catastrophic injury or death. He also testified that

given the extreme risk of catastrophic injury following a misdiagnosis and the

government doctors’ inability to properly rule out IE under the MDC, the doctors

should have continued to treat Rivers with antibiotics as if she had a confirmed

case. This testimony amply supports the district court’s finding that Rivers’s

doctors “knew of her predisposition to serious risk if she had contracted IE” yet

recklessly “failed to diagnose and treat it.”

      4. Because the district court’s recklessness finding was not clearly

erroneous, the court did not err in refusing to cap its award of noneconomic

damages to $400,000. See Alaska Stat. § 09.55.549(e)–(f).

      AFFIRMED.




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