* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 25 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JERRY FULLMER, as the conservator and husband for and on behalf of DEANNA FULLMER, an incapacitated person, and DEANNA FULLMER, Plaintiffs-Appellants, vs. UNITED STATES OF AMERICA, Defendant-Appellee. No. 97-4136 (D.C. No. 95-CV-9) (D. Utah)

ORDER AND JUDGMENT *

Before BALDOCK , KELLY , and MURPHY , Circuit Judges.
Jerry and Deanna Fullmer brought this medical malpr actice action against the government under the Federal Tort Claims Act (F TCA), 28 U.S.C. § 1346(b), as a result of injuries suffered by Mrs. Fullmer wh ile being treated by medical personnel at a military clinic. Following a two we ek bench trial, the district court ruled against the Fullmers on each of their claims, and this appeal followed. Our- 2 -

jurisdiction arises under 28 U.S.C. § 1291, and we affirm. Background Because the parties are well-versed in the underlyi ng facts, we forego their recitation unless necessary for the issue on review . On appeal, the Fullmers contend that the district court erred in (1) findin g that the physician who restored Mrs. Fullmer’s breathing within five minutes after his arrival at the clinic acted within the relevant standard of care; (2) concludin g that the emergency medical technician (EMT) was under no state law duty to int ubate; and (3) dismissing the claim challenging the military’s policies concernin g clinic staffing and personnel training as excluded by the FTCA’s discretionary fu nction exception. Discussion A. We review the district court’s factual finding thatthe clinic physician’s conduct was within the relevant standard of care fo r clear error. See Fed. R. Civ. P. 52(a). This standard applies both to “subsidiary” and “ultimate” factual findings. See Tinkler v. United States , 982 F.2d 1456, 1466 (10th Cir. 1992). Under this standard, [i]f the district court’s account of the evidence i s plausible in light of the record viewed in its entirety, the court of app eals may not reverse it even though convinced that had it been sitting a s the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.- 3 -

Anderson v. City of Bessemer City , 470 U.S. 564, 573-74 (1985); see also FDIC v. Hamilton , 122 F.3d 854, 860 (10th Cir. 1997). After reviewing the record, we are unable to say th at the district court’s finding was clearly erroneous. Numerous medical experts testified as to the appropriateness of the physician’s conduct, with co nflicting testimony whether the amount of time taken to intubate was reasonable . Although the government’s experts agreed with the Fullmers that, under certai n hypothetical situations, the physician’s conduct would be negligent, the circums tances actually faced by the physician in this case were controverted. In addit ion, each of these experts reiterated on redirect that the physician’s conductwas within the relevant standard of care under the circumstances. B. The district court dismissed the remaining two issu es due to lack of subject matter jurisdiction. Such dismissals are reviewed de novo. See Ayala v. United States , 49 F.3d 607, 611 (10th Cir. 1995); Daniels v. Uni ted States , 967 F.2d 1463, 1464 (10th Cir. 1992). The Fullmers assert that the EMT on duty should hav e intubated Mrs. Fullmer before the clinic physician arrived. Underthe FTCA, the United States is liable for tort claims “in the same manner and to t he same extent as a private individual under like circumstances,” 28 U.S.C. § 2 674, “in accordance with the- 4 -

law of the place where the act or omission occurred .” 28 U.S.C. § 1346(b). We agree with the district court that Utah law does not impose a duty for an EMT Basic even with Advanced Cardiac Life Support ( ACLS) training to intubate a patient in Utah. The law in Utah, that intubatio n is not within the scope of practice of an EMT Basic, does not yield to the sta ndards of the ACLS Handbook nor to the operating procedures of the military cli nic. See Gammill v. United States , 727 F.2d 950, 953 n.4 (10th Cir. 1984) (“It wouldbe anomalous for us to infer a private right of action based upon [an Armyregulation and Standard Operating Procedure] after having found no such rig ht attaching to the underlying civilian laws.”). Because there is no comparable l iability for private persons in Utah, there can be no liability for the government under the FTCA, and thus the district court correctly dismissed this claim for l ack of subject matter jurisdiction. C. Finally, the Fullmers assert that the FTCA’s discre tionary function exception does not apply to the medical clinic in i ts allegedly negligent treatment of Mrs. Fullmer. Under the FTCA, sovereign immunity is not waived for “[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency . . . , whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). If the discretionary function exception applies, the distr ict court lacks subject matter- 5 -

jurisdiction over the claim. See Tippett v. United States , 108 F.3d 1194, 1196 (10th Cir. 1997). To determine whether the discret ionary function exception applies, we must decide “(1) whether the action at issue was one of choice for the government employee; and (2) if the conduct involve d such an element of judgment, ‘whether that judgment is of the kind that the discretionary function exception was designed to shield.’” Id. at 1197 (quoting Berkovitz v. United States , 486 U.S. 531, 536 (1988)). “The exception . . . protects only governmental actions and decisions based on conside rations of public policy.” Berkovitz , 486 U.S. at 537. In essence, the Fullmers claim that the government was negligent in failing to have someone constantly available at the clinic whose scope of duties included intubation. The Fullmers agree that the first pron g of the discretionary function test is met, but contend that the second prong of t he test is not met because medical decisions fall outside considerations of pu blic policy. They find support for this in Barnson v. United States , 816 F.2d 549, 553 (10th Cir. 1987), where we acknowledged that decisions involving medical tr eatment do not come within the exception. However, the government’s staffing decisions at the clinic were not medical treatment decisions. Instead, they wer e, as the district court found, based upon military policy considerations which sat isfy the second prong of the discretionary function exception test. See Black Hills Aviation, Inc. v. United- 6 -

States , 34 F.3d 968, 976 (10th Cir. 1994). Therefore the district court correctly dismissed this claim for lack of subject matter jur isdiction. AFFIRMED.

Entered for the Court Paul J. Kelly, Jr. Circuit Judge