                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                                                                 F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                 March 30, 2005
                               FOR THE FIFTH CIRCUIT                       Charles R. Fulbruge III
                                                                                   Clerk


                                      No. 04-30368



       PHYLLIS E. HOLLINGSHEAD; MICHAEL PATTERSON;
       GERALD WAYNE PATTERSON, JR.,

                                                        Plaintiffs-Appellants,

                                          versus

       UNITED STATES OF AMERICA,

                                                        Defendant-Appellee.


                    Appeal from the United States District Court for
                           the Western District of Louisiana
                              (USDC No. 5:02-CV-1373)
           _________________________________________________________


Before REAVLEY, DeMOSS and PRADO, Circuit Judges.

REAVLEY, Circuit Judge:*

       In this medical malpractice case concerning the unfortunate death of Mr.

Patterson, Plaintiffs appeal the judgment in favor of the United States. We affirm for the

following reasons:



       *
        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not be published and is not precedent except under the limited circumstances set forth in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. We review the district court’s findings of fact for clear error and its legal

conclusions de novo. Joslyn Mfg. Co. v. Koppers Co., 40 F.3d 750, 753 (5th Cir. 1994).

       2. The parties agree that Louisiana substantive law governs. We believe the

district court correctly applied Louisiana law. The court understood that in a medical

malpractice case involving the death of a patient, Louisiana law does not require proof

that the patient would have survived, but instead imposes the lesser standard of proving

that “there would have been a chance of survival, and that the patient was denied this

chance of survival because of the defendant’s negligence.” Smith v. State, 523 So.2d

815, 820 (La. 1988) (internal quotation mark omitted). The district court recited the

Smith standard and we cannot agree with plaintiffs that the court ignored this standard

and legally erred in imposing a greater standard of proof of causation. Furthermore, if the

court did err in applying the law governing causation, this error was harmless since the

court correctly applied the law regarding the separate essential element of negligence, and

did not clearly err in finding that the government was not negligent.

       3. Plaintiffs, Patterson’s survivors, do not persuade us that the district court

legally erred in failing to distinguish between doctor and hospital negligence. In its

memorandum opinion the district court detailed the treatment of Patterson by the treating

physicians and the hospital staff, and concluded that “the VA medical staff was not

negligent in treating Patterson’s coagulopathy.” We do not believe that the district court

erroneously thought that Louisiana law of medical malpractice is limited to physician

negligence or that Plaintiffs’ claims in this particular case were so limited.

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       4. On appeal Plaintiffs focus on the coagulopathy that led to Patterson’s death.

We have reviewed the record and cannot say that the district court clearly erred in

rejecting their negligence claim relating to the treatment of this condition. “If the district

court’s account of the evidence is plausible in light of the record viewed in its entirety,

the court of appeals may not reverse it even though convinced that had it been sitting as

the trier of fact, it would have weighed the evidence differently.” Anderson v. City of

Bessemer City, N.C., 470 U.S. 564, 574 (1985).

       5. The parties presented conflicting evidence on the issue of whether the treatment

of Patterson’s coagulopathy was negligent or denied him a chance of survival. The death

of a patient undergoing a colonoscopy is rare. Patterson’s coagulopathy was diagnosed.

The primary treatment for this condition is fresh frozen plasma (ffp). Patterson received

ffp and other fluids to treat his coagulopathy. Plaintiffs contend that Patterson did not

receive a sufficient quantity of ffp to stem the bleeding caused by the coagulopathy.

       6. Plaintiffs point to evidence that a treating physician, Dr. Marr, had ordered four

units of ffp and the hospital staff had only delivered one unit. Plaintiffs also point to

evidence that more than one unit can in theory be administered to a patient at the same

time. There was however evidence that standard procedure is to thaw and deliver one or

two units of plasma at a time, that Patterson’s development of coagulopathy was

unusually rapid, and that Patterson died before sufficient ffp could be administered. Both

sides presented expert testimony on the issues of negligence and causation. The district

court found the testimony of Drs. Cole and Marr more credible than the testimony of Dr.

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Beck. Given the conflicting evidence and our standard of review, we cannot say that the

evidence was so overwhelming in Plaintiffs’ favor that the district court clearly erred in

finding that “the VA medical staff had no indication that Patterson’s coagulopathy would

develop so rapidly,” that the staff “followed the generally accepted protocol for treating

coagulopathy,” and that ultimately it was not negligent treating this condition.

       AFFIRMED.




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