* Pursuant to Local Rule 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 Local Rule

47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-30691

Summary Calendar

STERLING HEBERT, CHERYL HEBERT,

TODD HEBERT and JODY HEBERT,

Plaintiffs-Appellants,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

For the Eastern District of Louisiana

(CA-92-3356 “L”)

December 16, 1996

Before POLITZ, Chief Judge, DUHÉ and STEWART, Circuit Judges.

POLITZ, Chief Judge: *

Sterling Hebert and his wife and children appeal the district court’s judgment

in favor of the United States in this medical malpractice action. For the reasons

assigned, we vacate and remand.2 Background

In March of 1991 Hebert sought the services of Richard A. Morvant, M.D.,

an orthopedic surgeon, for treatment of knee pain. Determining that the reported

pain was a result of arthritis, Dr. Morvant pre scribed Voltaren, an antiinflamm atory drug. During the next several weeks Hebert experienced a worsening

of the pain in his elbows, wrists, and shoulders, and he went to see his family

physician, John W. M agee, M.D., who ordered, i nter alia

, a creatinine test to

measure his renal function and a chest x-ray. Hebert’s creatinine level, l.3, was

within the normal range; the x-ray disclosed, however, a possible mass on his lung.

Dr. Magee advised Hebert that additional testing was needed. Hebert went to the

Veterans Administration Medical Center in New Orleans, Louisiana on April 10,

1991 and was examined by Edward D. Mathews, M.D., an internist, who ordered

several tests. The results of those tests, performed the following day, showed that

Hebert’s creatini ne level was 2.2, which is abnormal, and the x-ray showed a

possible tumor in his left lung. Dr. Mathews then ordered a CT scan to be

performed on the next available date. The test was scheduled for May 25, 1991.

Dr. Mathews planned to retest Hebert’s creatinine level at the same time that the

CT scan was performed.

In order to obtain the CT scan sooner, Hebert went to the South Louisiana3

Medical Center in Houma, Louisiana on April 18, 1991, where a CT scan was

scheduled for a few days later. The next day, April 19, 1991, Hebert collapsed in

his home and his family took him to the emergency room at Thibodaux General

Hospital. Laboratory tests there revealed that Hebert’s creatinine level was 10.8.

The attending physician, Stephen Harris, M.D., diagnosed acute renal failure and

arranged for his immediate transfer to Ocshner Hospital in New Orleans. Upon

arrival at Ocshner, Hebert’s creatinine level was 11.1. John Copley, M.D., the

attending physician at Ocshner, confirmed that Hebert was suf fering from renal

failure.

The instant action, under the Federal Torts Claims Act, was filed against the

United Sta tes as owner and operator of the Veterans Administration Medical Center

in New Orleans, a lleging that the VA failed to diagnose timely Hebert’s renal

disease which lessened his chances of avoiding pe rmanent renal failure. After

conducting a bench trial, the district court issued findings of facts and conclusions

of law holding that the scheduling of the CT scan and follow-up lab tests more than

six w eeks after referral to the VA fell below the acceptable standard of medical

care, but that Hebert had failed to prove causation. The Heberts timely appealed.

Analysis

We review the district court’s findings of fact for clear e rror and its legal1 Seal v. Knorpp , 957 F.2d 1230 (5th Cir. 1992).

2 Burlington Northern R.R. v. Office of Inspector Gen., R.R. Retirement Bd. , 983 F.2d

631 (5th Cir. 1993).

3 28 U.S.C. § 1346(b).

4 Martin v. East Jefferson Gen. Hosp. , 582 So.2d 1272, 1276 (La. 1991).

5 Id. ; see also Broussard v. United States , 989 F.2d 171 (5th Cir. 1993).

6 Smith v. State , 676 So.2d 543 (La. 1996).

7 Ruff v. Bossier Medical Center , 952 F.2d 138 (5th Cir. 1992); S mith v. State

, 523

So.2d 815 (La. 1988).

4 conclusions de novo

. 1 Clear error exists when we are left with the definite and firm

conviction that a mistake has been made. 2 Actions under the FTCA are determined

in accordance with the law of the place where the act or omission occurred. 3 Under

Louisiana law, a medical malpractice plaintiff’s burden is two-fold: “The plaintiff

must first establish by a preponderance of the evidence that the doctor’s treatment

fell below the ordi nary standard of care expected of physicians in his medical

specialty, and must then establish a ca usal relationship between the alleged

negligent treatment and the injury sustained.” 4 Both determinations are questions

of fact. 5

Under Louisiana’s “loss-of-chance” doctrine a plaintiff must prove that he

lost a chance of recovery 6 and that the defendant’s conduct was a substantial factor

in causing the loss of that chance. 7 The district court held that the defendant’s5

actions fell below the relevant standard of care. The court found, however, that the

plaintiff had “failed to establish a causal relationship between the defe ndant’s

negligence and their injuries.” In reaching this conclusion, the district court relied

on the testimony of defense witnesses who testified that the defendant’s failure to

order a CT scan and ad ditional tests in a timely manner did not cause the renal

failure. While this evidence adequately supports a finding that a breach of the

standard of care did not cause the renal failure, it does not support a finding that the

breach of the standard of care found by the district court did not cause the loss of

a chance of recovery , or a chance to limit the adverse effects of the renal failure.

The evidence compels a contrary finding. The record reflects that there was

no disagreement that Hebert lost a significant chance of recovery. Ronald J.

Falk, M.D., one of the plaintiff’s expert witnesses, testified that Hebert lost a

chance of recovery, i.e.

, maintaining some renal function, due to the delay in

diagnosis and treatment. Two of the government’s expert witnesses agreed.

Dr. O’Donovan stated that if Hebert had received treatment at the time he was seen

at the VA he would have had a better chance of avoiding renal failure.

Dr. Rodriguez testified that Hebert’s chance of avoiding perman ent renal failure

would have been better if the diagnosis had been made earlier.

The district court fail e d to make the relevant finding about the standard of6

care, that is, whether the defendant breached the standard of care by failing to order

follow-up tests, and begin treatment, prior to Hebert’s renal failure. The district

court’s finding regarding causation inappropriately focuses on the cause of the

renal failure ra ther than on the inquiry whether a breach of the standard of care

caused a recoverable loss of chance of avoiding the extent of renal failure.

Accordingly, we must VACATE and REMAND for the determination whether the

failure to retest Hebert’s creatinine level and perform a CT scan timely and prior

to his renal failure was a breach of the standard of care, and whether that breach

caused a loss of chance of recovery and, if so, the damages for the injury sustained.