EVELYN HOHENBERGER, individually and as representative of the estate of Thomas Hohenberger, Plaintiff - Appellant,
UNITED STATES OF AMERICA, Defendant-Appellee.
No. 1:14-CV-00337-CBS (D. Colo.)
MATHESON, McKAY, and O'BRIEN, Circuit Judges.
ORDER AND JUDGMENT [*]
G. McKay Circuit Judge.
Hohenberger had been receiving medical care from the
Department of Veterans Affairs (VA) when he died from
coronary artery disease that had not been diagnosed or
treated. His widow, Evelyn Hohenberger, acting individually
and as the representative of his estate, sued the United
States for medical malpractice under the Federal Tort Claims
Act (FTCA). After a bench trial, the district court found in
favor of the United States, and Mrs. Hohenberger appeals.
Exercising jurisdiction under 28 U.S.C. § 1291, we
Hohenberger, born in 1946, was a Vietnam veteran who received
medical care from a VA facility in Grand Junction, Colorado.
Between 1998 and July 2011, his primary care physician was
Paul Preston, M.D. While under Dr. Preston's care, Mr.
Hohenberger was treated for several conditions, including
chronic obstructive pulmonary disease (COPD), osteoarthritis,
low testosterone, and post-traumatic stress disorder (PTSD).
He was a smoker and considered to be an alcoholic. Dr.
Preston's last exam of Mr. Hohenberger was in February
2011, Kathleen Ono, D.O., replaced Dr. Preston as Mr.
Hohenberger's primary care physician. Dr. Ono, however,
never saw Mr. Hohenberger in person. On September 24, 2011,
he died suddenly at home. The cause of death was ischemic
heart disease due to coronary artery atherosclerosis. Mr.
Hohenberger had not been diagnosed with or treated for
coronary artery disease.
Hohenberger, on behalf of herself and her husband's
estate, filed an administrative tort claim and then this FTCA
suit. She alleged that Dr. Preston failed to properly
diagnose and treat Mr. Hohenberger's coronary artery
disease, leading to his death. The parties consented to have
a magistrate judge preside over the case and then filed
several pre-trial motions.
Hohenberger moved for summary judgment as to liability and
moved to exclude the United States' expert witness. The
district court denied both of those motions. The United
States filed a motion to exclude Mrs. Hohenberger's
expert witness, which the district court also denied. The
United States was more successful with its motion to preclude
Mrs. Hohenberger's expert witness from testifying about
Dr. Ono's performance. The district court granted that
motion because the complaint focused on Dr. Preston's
negligence and Mrs. Hohenberger had never moved to amend to
include allegations about Dr. Ono. Thus, the court concluded,
Dr. Ono's performance was not relevant to the case as
Mrs. Hohenberger had framed it and testimony about Dr. Ono
would not assist the court in deciding the issues before it.
district court conducted a three-day bench trial. In addition
to hearing testimony from Mrs. Hohenberger, the court heard
testimony from three medical witnesses: (1) Dr. Preston, who
is board-certified in internal medicine and who testified
both as a fact witness and as an expert in primary care
medicine; (2) the United States' expert witness, John
Johnson, M.D., who is board-certified in family medicine; and
(3) Mrs. Hohenberger's expert witness, Michael Jones,
M.D., who is board-certified in cardiovascular medicine and
was board-certified in internal medicine from 2000 to 2010.
The medical records showed that over the years Mr.
Hohenberger presented with various complaints, including
shortness of breath, fatigue, and lightheadedness. The
medical witnesses differed on the proper interpretation of
those complaints and the appropriate standard of care for a
primary care physician.
Preston reviewed his treatment of Mr. Hohenberger. He
testified that Mr. Hohenberger had no symptoms of coronary
artery disease. He did not present with the primary symptom,
angina, and the symptoms he reported were more consistent
with other conditions, such as COPD and low testosterone. Dr.
Preston opined that the standard of care for an asymptomatic
patient was to conduct a yearly cardiovascular risk
assessment and to treat modifiable risk factors for coronary
artery disease. He testified that it was his practice to do a
cardiovascular risk assessment at every primary care visit.
He identified smoking as Mr. Hohenberger's only
modifiable risk factor, and he testified that he consistently
advised Mr. Hohenberger to stop smoking or at least to cut
down on his smoking.
United States' expert, Dr. Johnson, testified similarly
to Dr. Preston. He opined that the standard of care for a
primary care physician was focused on prevention, identifying
a patient's risk factors and attempting to modify them.
His calculations put Mr. Hohenberger in the intermediate
range. Treatment for asymptomatic patients, whether low,
intermediate, or high risk, was to modify risk factors. Dr.
Johnson considered Mr. Hohenberger to be asymptomatic for
coronary artery disease because his symptoms were not
characteristic of coronary artery disease. Accordingly, Dr.
Johnson opined that Dr. Preston met the standard of care.
contrast, Mrs. Hohenberger's expert, Dr. Jones, opined
that Mr. Hohenberger's complaints were symptoms of
coronary artery disease. He therefore did not consider Mr.
Hohenberger to be an asymptomatic patient. In light of Mr.
Hohenberger's age, his status as a smoker, and his
medical history, Dr. Jones testified that the standard of
care required more aggressive evaluation for cardiac disease.
At the least, Dr. Preston should have ordered an exercise
stress test. Then, depending on results, the initial test
could be followed by other treatments such as an angiogram.
When questioned about persons considered to be an
intermediate risk, Dr. Jones reaffirmed that the appropriate
treatment was an exercise stress test. He further opined that
had Dr. Preston ordered the additional testing, Mr.
Hohenberger probably would have lived longer.
district court found in favor of the United States. It
credited Dr. Johnson's and Dr. Preston's opinions
over Dr. Jones's opinion, finding that Mr.
Hohenberger's complaints were not symptoms of coronary
artery disease. Having found that Mr. Hohenberger was
asymptomatic, it further found that the applicable standard
of care was for Dr. Preston to identify risk factors and
attempt to modify them, which he did. It concluded that Mrs.
Hohenberger had failed to demonstrate by a preponderance of