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Hohenberger v. United States

United States Court of Appeals, Tenth Circuit

September 7, 2016

EVELYN HOHENBERGER, individually and as representative of the estate of Thomas Hohenberger, Plaintiff - Appellant,

         D.C. No. 1:14-CV-00337-CBS (D. Colo.)

          Before MATHESON, McKAY, and O'BRIEN, Circuit Judges.

          ORDER AND JUDGMENT [*]

          Monroe G. McKay Circuit Judge.

         Thomas 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 affirm.


         Mr. 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.

         In July 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.

         Mrs. 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.

         Mrs. 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.

         The 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.

         Dr. 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.

         The 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.

         In 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.

         The 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 ...

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