Case: 14-30328      Document: 00512873188         Page: 1    Date Filed: 12/17/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                      No. 14-30328                              FILED
                                                                        December 17, 2014
                                                                           Lyle W. Cayce
FLOYD HAMILTON, III,                                                            Clerk

                                                 Plaintiff-Appellant,
v.

SHIVANI NEGI; HOLLIS REED; BARBARA WATKINS;
UNITED STATES OF AMERICA,

                                                 Defendants-Appellees.


                   Appeal from the United States District Court
                          Western District of Louisiana
                             USDC No. 1:09-CV-860


Before STEWART, Chief Judge, and BARKSDALE and GRAVES, Circuit
Judges.
PER CURIAM:*
       Plaintiff-Appellant Floyd Hamilton, III, (“Floyd”), brought suit against
Defendants-Appellees, Shivani Negi, Hollis Reed, Barbara Watkins, and the
United States (collectively, “Defendants-Appellees”), under the Federal Tort
Claims Act (“FTCA”) asserting medical malpractice and other related claims.
The district court rendered judgment in favor of Defendants-Appellees and
dismissed Floyd’s claims with prejudice. We affirm.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                     No. 14-30328
                                            I.
      Military veteran Floyd Hamilton, Jr. (“Mr. Hamilton”) was in his
eighties while he was a patient at the Veterans Affairs Medical Center
(“VAMC”) in Alexandria, Louisiana.                After a prolonged stay at the
VAMCJuly 2006 through May 2009Mr. Hamilton died there on May 20,
2009. Prior to his admission to the VAMC, Mr. Hamilton was a heavy smoker
and suffered from multiple health ailments, including hypertension and a
history of stroke. Due to health complications, he was admitted to the VAMC
emergency room in July 2006, and shortly thereafter, was transferred to the
Houston VAMC where he underwent a left carotid endarterectomy. While
recovering from surgery, Mr. Hamilton developed more health complications
and was transferred back to the Alexandria VAMC. Dr. Mark St. Cyr, a board-
certified internist and VAMC hospitalist, began treating Mr. Hamilton on
September 1, 2006, and acknowledged at trial that his prognosis at that time
was poor. Dr. St. Cyr discussed this issue with Floyd who insisted that Mr.
Hamilton remain at full code status 1 and receive every means of support.
      During the first three weeks of September 2006, Dr. St. Cyr treated Mr.
Hamilton for a variety of health problems including multiple cardiac arrests,
respiratory distress, pneumonia, heart and blood pressure problems, agitation,
and lack of responsiveness. During this period, Mr. Hamilton was intubated,
transferred to the intensive care unit (“ICU”), placed on a ventilator, and
treated with intravenous antibiotics and fluids. Floyd was informed of these
events but he reiterated his desire that Mr. Hamilton remain at full code
status.




      1“Full code status” means that the patient will continue to receive all resuscitative
measures should an end-of-life situation occur.
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                                      No. 14-30328
       On Friday, September 22, 2006, Dr. St. Cyr saw Mr. Hamilton and
determined that his long-term prognosis was still poor. During that visit, he
observed lack of responsiveness and a Glasgow Coma Scale (“Glasgow”) score
of 3. 2 Dr. St. Cyr elected not to extubate Mr. Hamilton at this time due to his
low Glasgow score and because he believed Mr. Hamilton would be unable to
breathe on his own. Dr. St. Cyr noted his reasons for keeping Mr. Hamilton
intubated but did not leave orders instructing subsequent physicians to keep
Mr. Hamilton intubated. He also noted at this time that another discussion
should take place with Floyd about putting Mr. Hamilton on DNR, i.e., do not
resuscitate, status. 3
       Dr. Shivani Negi, an internist at the VAMC, was an on-call physician
covering the ICU during the weekend of September 23, 2006. She first
examined Mr. Hamilton on Saturday, September 23, and testified that she
reviewed his medical chart and conducted a clinical examination, which
showed stable vitals and no signs of active infection. She observed that he had
been breathing on continuous positive airway pressure for three days and was
“tolerating [it] well,” which told her that he could breathe on his own and was
stable enough for extubation.
       Dr. Negi called Floyd to discuss the extubation and he stated that he
wanted “everything done” and reiterated his desire that Mr. Hamilton remain
at full code status. Dr. Negi then determined that the family’s consent was not
required in order to extubate Mr. Hamilton and that neither his low Glasgow
score nor Dr. St. Cyr’s notes precluded extubation. Later that morning, Mr.
Hamilton was extubated.



       2  Glasgow Coma Scale measures a patient’s level of consciousness and is based on a
nurse or physician’s subjective assessment. Patients with a score of 3–8 are usually said to
be in a comatose state.
        3 Floyd had power of attorney for Mr. Hamilton.

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                                 No. 14-30328
      Following the extubation, Mr. Hamilton remained in the ICU where he
received one-on-one supervision for approximately 24 hours. Dr. Negi saw Mr.
Hamilton again on the morning of Sunday, September 24, and noted that he
was “doing well” but was not “waking up.” She testified that she considered
Mr. Hamilton’s neurological status, examined his vital signs and secretions
levels, and looked for other signs of continued infection, including fever, but
that he showed no signs of active infection upon examination. Dr. Negi then
concluded that Mr. Hamilton was stable enough to be moved out of the ICU
and for his antibiotic coverage to be discontinued.
      Mr. Hamilton was transferred out of the ICU to a room on the fourth
floor where one-on-one supervision was not available. Dr. Negi issued detailed
transfer orders pertaining to Mr. Hamilton’s care upon transfer. That night,
Mr. Hamilton was seen by Dr. Rakiya Akwa, another on-call physician, who
observed that his condition was worsening and restarted him on antibiotics.
He noted that if Mr. Hamilton’s condition continued to deteriorate, he should
be transferred back to the ICU, however, he remained stable overnight.
      On Monday, September 25, 2006, Dr. St. Cyr resumed treatment of Mr.
Hamilton. He determined that Mr. Hamilton’s condition had worsened since
his previous visit and transferred him back to the ICU. He also ordered that
Mr. Hamilton be reintubated and placed on a ventilator.
      Mr. Hamilton’s remaining years at the VAMC were complicated by
pneumonia, sepsis, a recurrent pneumothorax that required chest tube
placement, difficulty breathing and the continued need for ventilator support,
urinary tract infections, gastrointestinal bleeding requiring transfusions,
renal failure, ventricular tachycardia, hypotension, and skin breakdowns.
Despite repeated conversations between Floyd and VAMC personnel, Mr.
Hamilton was never moved to a community nursing home or long-term acute
care facility. He remained at the VAMC where he received long-term
                                       4
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                                        No. 14-30328
supportive care until he was pronounced dead after cardiac arrest on May 20,
2009. His autopsy revealed that he had bullous emphysema and invasive
adenocarcinoma of the lung.
       After Mr. Hamilton’s death, Floyd filed suit in district court pursuant to
the FTCA against Dr. Negi, Dr. Hollis Reed, Ms. Barbara Watkins, and the
United States. See 28 U.S.C. § 2671, et seq. Floyd argued that Dr. Negi
breached the standard of care during the weekend of September 23, 2006 by:
(1) extubating Mr. Hamilton, (2) discontinuing his antibiotics, (3) transferring
him out of the intensive care unit, and (4) failing to obtain Floyd’s informed
consent prior to doing these things. Additionally, Floyd alleged that Dr. Negi
obtained her medical license through fraud. 4
       After a Daubert hearing and three-day bench trial, the district court
ruled in favor of Defendants and dismissed Floyd’s claims with prejudice. In
its reasons for judgment, the district court concluded that the expert testimony
and evidence in the record supported that Dr. Negi’s medical decisionsto
have Mr. Hamilton extubated, discontinue his antibiotics, and to transfer him
out of the ICUdid not fall below the applicable standard of care.
Additionally, the expert testimony and VAMC guidelines supported Dr. Negi’s
decision to do these things without obtaining Floyd’s prior informed consent.
       Because it found that Dr. Negi did not breach the standard of care and
did not have a duty to obtain Floyd’s informed consent, the district court found
it unnecessary to address the element of causation or Floyd’s arguments with
regard to Dr. Negi’s license and credentialing. Floyd filed the instant appeal.




       4In addition to this suit, Floyd brought a separate suit in federal district court against
Dr. Negi with respect to his claims that she obtained her medical license through fraud and
that suit was dismissed for lack of jurisdiction over the Virginia licensing authorities. See
Hamilton v. Negi, 13-cv-0041, 

, at *3 (W.D. La. 6/4/13).
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                                       No. 14-30328
                                             II.
         Proceeding pro se on appeal, Floyd challenges the district court’s
judgment that Dr. Negi did not breach the applicable standard of care when
she extubated Mr. Hamilton, discontinued his antibiotic coverage, and
transferred him out of the ICU. Floyd also argues that the district court erred
in failing to find that Dr. Negi obtained her medical license 5 through fraud. 6
                                            III.
         Following a bench trial, this court reviews a district court’s factual
findings for clear error and its conclusions of law de novo. French v. Allstate
Indem. Co., 

, 577 (5th Cir. 2011) (citation omitted).
         After considering the parties’ arguments as briefed on appeal, and after
reviewing the record, the applicable law, and the district court’s judgment and
reasoning, we AFFIRM the district court’s judgment and adopt its analysis in
full.




         5
         We agree with the district court’s decision to pretermit discussion of Floyd’s claim
that Dr. Negi obtained her medical license through fraud in light of its finding that Dr. Negi
did not breach the applicable standard of care.
       6 Floyd also includes the following language in his statement of the issues in his
appellate brief: “did Attorney Broadwell commit unethical acts to protect Dr. Negi and VA
Alexandria from future suits” and “also at Issue is had Dr. Negi commit similar acts of
omission and commission that showed a PROOF OF PATTERN.” Assuming that Floyd
intended for these statements to be considered by this court as assignments of error, we hold
that his arguments on these issues are waived due to inadequate briefing on appeal. See
United States v. Whitfield, 

, 346 (5th Cir. 2009).

                                              6