34 F. 3d 1076 - Franklin v. United States of America

Before TACHA and EBEL, Circuit Judges and ROGERS,** District Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Plaintiff Verdie Mae Franklin, on her own behalf and as administratrix of the estate of her late husband, Lonnie B. Franklin, appeals from a judgment entered in favor of the United States following a bench trial of her action under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671-2680. Mrs. Franklin's briefs formally designate eight issues on appeal, but, as explained below, only a few matters are properly brought before this court for review. Having considered these in light of the record and the controlling standard of review, we affirm.

Mrs. Franklin brought suit against the United States to recover damages for the wrongful death of her husband, which she claims was the result of unauthorized surgery performed at a VA hospital in Oklahoma City, Oklahoma. Mrs. Franklin alleges that her husband did not, in fact, consent to the surgery, or, if he did, his nominal consent was vitiated by mental incompetence. On a prior appeal, this court considered the nature of these allegations at length, and concluded that they fell exclusively within the intentional tort theory of medical battery. Franklin v. United States, 992 F.2d 1492, 1496-99 (10th Cir.1993). We specifically rejected the application of potential negligence theories regarding informed consent, id. at 1497, and adherence to institutional procedures, id. at 1499. On remand, no attempt was made to amend the pleadings or frame the final pretrial order so as to add any claims for such negligence.2 The district court noted all this in its memorandum opinion. App. at 16, 21. Nevertheless, counsel for Mrs. Franklin inexplicably persists in pursuing these negligence theories through his first several assignments of error. We shall disregard this argument and proceed directly to a review of the medical battery claim.

The district court thoroughly assessed the relevant evidence and found that the decedent consented to surgery and was competent when he did so. These factual findings, based on oral and documentary evidence, "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Salve Regina College v. Russell, 499 U.S. 225, 233 (1991)(applying Fed.R.Civ.P. 52(a)). The parties' briefs ably summarize the conflicting evidence presented to the district court and included in the appellate record. Upon our review thereof, we conclude the district court should be affirmed. Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)("Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.").

The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED.