NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHYLLIS AGUCHAK, as Guardian of 

Phyllis Rivers, and A.S and J.R, minor 

children, 

Plaintiffs-Appellees, 

 v. 

UNITED STATES OF AMERICA, 

Defendant-Appellant.

No. 17-36024 

D.C. No. 3:15-cv-00105-HRH 

MEMORANDUM*

Appeal from the United States District Court

for the District of Alaska

H. Russel Holland, District Judge, Presiding

Argued and Submitted August 14, 2018

Anchorage, Alaska

Before: HAWKINS, McKEOWN, and OWENS, Circuit Judges.

In this action under the Federal Tort Claims Act, defendant-appellant the 

United States appeals from the district court’s judgment following a bench trial 

imposing liability for the government’s doctors’ treatment of Phyllis Rivers, 

daughter of plaintiff-appellee Phyllis Aguchak and mother of plaintiffs-appellees 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

AUG 28 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

A.S. and J.R. As the parties are familiar with the facts, we do not recount them 

here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. Contrary to Aguchak’s argument, the government’s election not to move 

for more specific findings under Fed. R. Civ. P. 52(b) does not bar it from 

challenging the district court’s recklessness finding as clearly erroneous. Reliance 

Fin. Corp. v. Miller, 557 F.2d 674, 681–82 (9th Cir. 1977).

2. Contrary to Aguchak’s argument, the government’s contentions on 

appeal are not barred by its pleadings, Fed. R. Civ. P. 36 admissions, and pre-trial 

representations. Aguchak does not identify any passage of the government’s 

briefing disputing that the government’s doctors knew that Rivers possibly had 

infective endocarditis (“IE”) when she was admitted to Alaska Native Medical 

Center (“ANMC”) or that she did, in fact, have IE. Nor are the passages 

inconsistent with the pre-trial materials Aguchak cites.

3. The district court did not clearly err in finding that the government’s 

doctors acted recklessly. See United States v. Working, 224 F.3d 1093, 1102 (9th 

Cir. 2000) (en banc) (“Where there are two permissible views of the evidence, the 

factfinder’s choice between them cannot be clearly erroneous.” (quoting Anderson 

v. Bessemer City, 470 U.S. 564, 573–74 (1985))). 

The district court found, the medical records show, and the government does 

not dispute that the ANMC staff “obtained an accurate medical history of [Rivers] 
3 

and properly examined” her upon admission; knew that Rivers had at least three 

minor Modified Duke Criteria (“MDC”) for IE; and recognized on that basis that 

she possibly had IE. These facts gave doctors “reason to know” that there was a 

substantial risk of misdiagnosis. Restatement (Second) of Torts § 500 cmt. a (Am. 

Law Inst. 1965) (“Second Restatement”). Contrary to the government’s argument, 

therefore, this is not a case where the defendant was unaware of danger-creating 

circumstances and was thus negligent at worst. Cf. Hayes v. Xerox Corp., 718 P.2d 

929, 935 (Alaska 1986).

Ample evidence, moreover, supported the court’s conclusion that the 

government’s doctors unjustifiably rejected IE as a diagnosis and ended antibiotic 

treatment. See Second Restatement § 500 cmt. a (“[T]he risk must itself be an 

unreasonable one under the circumstances.”). Aguchak’s infectious-disease expert,

Dr. Hosea, whose testimony the district court credited, testified that there was no 

sound medical basis for the doctors’ conclusions that Rivers was suffering from 

“pregnancy-induced vasculitis” and that her possible IE syndrome had resolved 

with four days of antibiotic therapy—and thus that there was no sound medical 

basis for the doctors to reject IE as a diagnosis under the MDC. 

Finally, the evidence established—or at least could plausibly be viewed as 

having established—that both the risk and severity of harm to Rivers posed by a 

misdiagnosis of IE were extreme and that the government’s doctors knew, or 
4 

should have known, that fact. See Second Restatement § 500 cmt. a

(“[Recklessness] must involve an easily perceptible danger of death or substantial 

physical harm, and the probability that it will so result must be substantially greater 

than is required for ordinary negligence.”). Dr. Hosea was unequivocal that left 

untreated, IE inevitably causes catastrophic injury or death. He also testified that

given the extreme risk of catastrophic injury following a misdiagnosis and the 

government doctors’ inability to properly rule out IE under the MDC, the doctors 

should have continued to treat Rivers with antibiotics as if she had a confirmed 

case. This testimony amply supports the district court’s finding that Rivers’s 

doctors “knew of her predisposition to serious risk if she had contracted IE” yet 

recklessly “failed to diagnose and treat it.”

4. Because the district court’s recklessness finding was not clearly 

erroneous, the court did not err in refusing to cap its award of noneconomic 

damages to $400,000. See Alaska Stat. § 09.55.549(e)–(f).

AFFIRMED.