Opinion
No. 4:00-CV-1059
September 11, 2002
OPINION
I. Introduction
On June 13, 2000, Plaintiff Nunzio DeCarlo initiated this action by filing a complaint for damages pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671 through 2680. This case stems from the medical treatment provided to DeCarlo by the government which the government concedes was substandard for a heart attack which he suffered while an inmate at the United States Penitentiary at Allenwood, in White Deer, Pennsylvania.
A two-day bench trial limited strictly to the question of damages was held on June 26 and 27, 2002. On January 2, 2002, DeCarlo had filed a set of facts upon which the parties agreed and a separate set of proposed facts that were disputed by the government (hereinafter "disputed facts"). During the bench trial, the parties filed a set of "Additional Facts as Agreed by Parties." On July 23, 2002, the parties filed a document entitled "Supplemental Agreed To Facts Concerning Hourly Wages." The document setting forth the disputed facts was deficient because it did not contain any alternative facts proposed by the government. Consequently, on June 28, and July 12, 2002, we issued orders requiring the government to file a set of proposed facts to which we could refer in resolving the disputed facts. Although the government filed timely responses to those orders on July 10, and July 19, 2002, those responses did not contain succinct proposed facts directly corresponding to the facts proposed by DeCarlo which were in dispute. On August 1, 2002, we issued a final order allowing the government to file the proposed facts described in our June 28, and July 12, 2002, orders. The government timely filed its third amended proposed facts which are disputed on August 21, 2002, and the filing of that document ripened the matter for disposition.
The parties submitted 535 undisputed proposed findings of fact. As is consistent with our general practice, we have adopted almost every undisputed proposed findings of fact and have set them forth below. We have deleted only the undisputed proposed findings which are duplicative of other proposed findings. Many of the undisputed proposed findings contain medical terminology or abbreviations that were never explained to us. Nonetheless, we have incorporated them here in an effort to make the record as complete as possible.
The following are the Court's findings of fact, discussion, and conclusions of law. Findings of fact which are disputed are noted with a "D" in parentheses after each such finding. Findings of fact which have been either substantially modified by the court or fashioned by the court are noted with the phrase "Not undisputed" in parenthesis after each such findings.
II. Findings of Fact.
1. Nunzio DeCarlo is a white male age thirty-eight.
2. Nunzio DeCarlo's date of birth is July 24, 1964.
3. On September 20, 1988, Nunzio DeCarlo received a sentence of twenty (20) years.
4. On December 22, 1997, Nunzio DeCarlo was a federal prisoner being housed at the United States Penitentiary at Allenwood.
5. Nunzio DeCarlo's projected release date from his federal sentence is December 28, 2002.
6. On December 22, 1997, while Plaintiff DeCarlo was in federal custody he suffered a heart attack.
7. As a result of the heart attack suffered by Plaintiff DeCarlo, he was transferred from the Allenwood facility to Williamsport Hospital during the early morning hours of December 23, 1997.
8. Plaintiff DeCarlo was hospitalized at the Williamsport Hospital from December 23, 1997, through December 26, 1997.
9. Plaintiff DeCarlo was initially seen at the Williamsport Hospital ER on December 23, 1997, at approximately 12:30 AM.
10. At the Williamsport Hospital Emergency Room, Plaintiff DeCarlo reported chest pains which had started at approximately 2:00 PM and continued up to the time he was seen in the ER.
11. Before Plaintiff DeCarlo was transferred to the Williamsport Hospital, he had multiple EKGs which showed some progression of an acute septal myocardial infarction.
12. At the ER a 12-lead EKG was obtained showing septal lead with some mild ST elevations.
13. The Emergency Room doctor, Dr. Aaron Simms, concluded Plaintiff DeCarlo was not a candidate for TPA treatment because he had an evolved acute myocardial infarction.
14. Early intervention in the treatment of acute myocardial infarction results in a significant improvement in both short and long term outlook for patients.
15. When an acute myocardial infarction occurs, thrombosis or blood clot forms inside of a coronary artery, usually in the area of previous atherosclerotic plaque.
16. The thrombosis formation is usually acute and results in a complete shut off of blood supply to a portion of the heart muscle.
17. The longer the artery remains occluded, the more heart muscle is permanently damaged.
18. Appropriate treatment for an acute myocardial infarction of the type suffered by Plaintiff DeCarlo in December of 1997, would have been administration of medication such as tissue plasminogen activator. (TPA).
19. The TPA is commonly known as a clot buster.
20. Administration of the TPA medicine improves blood flow to the heart muscle and results in a significant reduction of mortality and improvement of left ventricle function over time.
21. Because of the delay in transferring Plaintiff DeCarlo to the Williamsport Hospital his symptoms had been present for too long for a drug such as tissue plasminogen activator to be used.
22. As a result of the delay in the treatment of Plaintiff DeCarlo he was left with significant loss of heart muscle function, which is irreversible.
23. Dr. Simms administered medication to Plaintiff DeCarlo in an effort to try to control his pain.
24. Dr. Kevin Kist took over the care of Plaintiff DeCarlo from Dr. Simms. Dr. Kist reviewed the EKGs performed at Allenwood and determined that the first such EKG demonstrated DeCarlo was suffering an acute anterolateral myocardial infarction.
25. Subsequent EKGs performed at Allenwood before the transfer to Williamsport Hospital Emergency Room demonstrated the evolution of the myocardial infarction.
26. Despite the oral complaints made by Plaintiff DeCarlo on December 22, 1997, and the EKG results, Plaintiff DeCarlo was kept at Allenwood from early afternoon until approximately midnight.
27. The harm suffered by Mr. DeCarlo on December 22, 1997, was acute anterior wall myocardial infarction.
28. Based upon Plaintiff DeCarlo's complaints of chest and the EKG results, Plaintiff DeCarlo should have been immediately transported to a hospital for treatment of his acute myocardial infarction. The delay of more than six hours in treating Plaintiff DeCarlo's myocardial infarction significantly contributed to the large size of his infarction and the subsequent appearance of heart failure.
29. Had Plaintiff DeCarlo been treated promptly for his myocardial infarction, his mean life expectancy would have been 17 years based on his documented single vessel coronary artery disease.
30. Based upon the improper medical care, Plaintiff DeCarlo's mean life expectancy has been reduced beginning in 1998 by a period of 7 years. (D)
31. During the period on December 22, 1997, when Plaintiff DeCarlo was being held at Allenwood before being transferred to Williamsport Hospital, he was given Toradol 60 mg for pain.
32. On December 23, 1997, a Physician's Order Sheet was executed concerning Mr. DeCarlo.
33. On December 23, 1997, post-PTCA orders were entered with respect to Mr. DeCarlo.
34. While DeCarlo was hospitalized at the Williamsport Hospital in December 1997, he underwent a Teaching Protocol for Myocardial Infarction.
35. While hospitalized at Williamsport Hospital in December 1997, Williamsport Hospital created a chronological patient log.
36. Dr. Kist admitted Plaintiff DeCarlo to the Williamsport Hospital Intensive Care Unit.
37. Dr. Kist's impression was Mr. DeCarlo had suffered acute anterolateral infarction.
38. The treatment plan was to admit Plaintiff DeCarlo to the ICU and obtain a cardiology consult.
39. Plaintiff DeCarlo was found not to be a candidate for TPA or other thrombolytic agent due to the prolonged time between the initial event and presentation at the hospital.
40. Dr. Kist prescribed heparin IV and a nitroglycerin drip IV for pain management.
41. Dr. Kist administered one-half hour of critical care management.
42. The cardiology consult requested by Dr. Kist was undertaken by Dr. Trautwein at approximately 5:30 AM on December 23, 1997.
43. After evaluation Dr. Trautwein determined it was necessary to do an emergency catheterization and percutaneous transluminal coronary angioplasty (PTCA) if possible.
44. During the consultation on December 23, 1997, Dr. Trautwein explained to Plaintiff DeCarlo the risks and benefits of doing the invasive operative procedure in order to obtain informed consent.
45. The risks explained included the possibility that Plaintiff DeCarlo could die during the operation, that there could be an occlusion, or there could be a reinfarction.
46. The operative procedure undertaken by Dr. Trautwein was invasive.
47. The procedure undertaken by Dr. Trautwein was left heart catheterization with a percutaneous transluminal coronary angioplasty (PTCA)
48. The procedure involves a balloon procedure, but a stint was placed after the artery was stretched.
49. A stint is medical equipment which looks similar to a clear plastic straw, and which is put in place to keep the artery from occluding or closing.
50. In undertaking the operative procedure, Dr. Trautwein determined that there was total occlusion of the proximal left anterior descending artery (LAD)
51. The operation undertaken by Dr. Trautwein was PTCA and stent placement in the proximal LAD.
52. The operative procedure on December 23, 1997, involved the placement of three intracardiac stents within the proximal LAD.
53. Between the time of the operation on December 23, 1997, up to the time of his discharge on December 26, 1997, Plaintiff DeCarlo had constant chest pain which was reproducible on deep palpitation of the costochondral area.
54. After the operation, Plaintiff DeCarlo was returned to the Coronary Care Unit until his discharge on December 26, 1997.
55. At discharge Plaintiff DeCarlo had various medication prescriptions written.
56. When discharged from Williamsport Hospital on December 26, 1997, Plaintiff DeCarlo was discharged on multiple cardiac medications including Ecotrin, 325 mg daily, Ticlid 250 mg daily for three weeks, Lopressor 50 mg twice a day, transdermal nitroglycerin .6 mg per hour patch daily, Zocor 20 mg daily, and nitroglycerin 1/150 to be used as needed for chest pain.
57. Ecotrin is coated Aspirin
58. Ticlid inhibits the clotting of the blood in order to prevent another myocardial infarction.
59. Lopressor is an anti-hypertensive drug which is used to slow down the pulse rate.
60. Nitrodor is a nitroglycerin patch. Nitroglycerin dilates the vessels and increases the blood flow which should serve to decrease the pain.
61. Nitroglycerin tablets are prescribed for chest pain and they serve the same function as the nitroglycerin patch, but these get absorbed rather quickly and help reduce the pain.
62. Zocor is a cholesterol-lowering drug.
63. Plaintiff DeCarlo returned to Allenwood at approximately 1:00 PM on December 26, 1997.
64. Plaintiff DeCarlo refused to stay in the prison hospital observation room and was thus returned to the Special Housing Unit.
65. On December 27, 1997, at approximately 3:00 PM after an EKG was done, Plaintiff DeCarlo was admitted to the prison hospital.
66. On December 28, 1997, at approximately 7:00 PM Plaintiff DeCarlo was allowed to get out of bed and used the shower and toilet.
67. On December 29, 1997, at approximately 11:30 AM Plaintiff DeCarlo refused to remain in the observation area.
68. During a follow up on December 29, 1997, Plaintiff DeCarlo was advised no work, no sports, no lifting, no over exertion (sic) for the next six weeks.
69. Plaintiff DeCarlo was given nitroglycerin for chest pain.
70. On December 29, 1997, DeCarlo was written a work classification form providing for a low fat diet.
71. On December 29, 1997, DeCarlo was written a work classification status form providing that he is to receive a lower bunk assignment.
72. On January 2, 1998, Plaintiff DeCarlo reported being in pain, the pain being 7 to 8 on a 10 scale.
73. The Allenwood fire company ambulance report for January 2, 1998 records a complaint by DeCarlo of chest pain at 10/10.
74. While being transported to the hospital DeCarlo was administered three sprays of nitroglycerin, and reported that his pain was reduced from 10/10 to 6/7/10.
75. Plaintiff DeCarlo reported that although he had taken three nitroglycerin pills, that the pain had not been reduced.
76. After examination, Plaintiff DeCarlo was transferred from Allenwood to the Williamsport Hospital emergency room.
77. The Allenwood ambulance report for the trip to the Williamsport Hospital emergency room on January 2, 1998 shows Plaintiff DeCarlo was found lying on the infirmary bed complaining of chest pain rated 10 on a 1-10 scale, and also complaining of tightness in his throat.
78. On the trip to the hospital the ambulance personnel administered two doses of nitroglycerin which caused the pain to go from 10 down to 6 or 7.
79. At the Williamsport emergency room, Plaintiff DeCarlo was seen by Dr. Bering.
80. From the time of his discharge on December 26, 1997, up to his return to the ER on January 2, 1998, the only physical activity Plaintiff DeCarlo had engaged in was walking around his cell.
81. At approximately 6:00 PM on January 2, 1998, Plaintiff DeCarlo noted the sudden onset of severe 7/10 pressure in the middle of his throat as if someone were "grabbing hold of my throat" accompanied by left arm burning.
82. The pain Plaintiff DeCarlo was experiencing was constant and sometime worsened from 7/10 to 10/10.
83. At the emergency room Plaintiff DeCarlo still had 10/10 chest pain and noted worsening of his mild neck discomfort on deep breaths.
84. Plaintiff DeCarlo was discharged back to Allenwood on a multi-medical cardiac regimen of aspirin, Ticlid, Lopressor, Nitroglycerin patch, and sublingual Nitroglycerin.
85. Plaintiff DeCarlo was returned to Allenwood on January 3, 1998, at approximately 12:30 AM and returned to the Special Housing Unit.
86. On January 14, 1998, a medical record for a federal prisoner in transit was created with respect to Mr. DeCarlo. This document references the various cardiac medications he was receiving and which should be employed while he was en route.
87. On January 20, 1998, at approximately 3:00 PM, Plaintiff DeCarlo was discharged from the Special Housing Unit to the compound where he was to remain medically unassigned for two months.
88. On January 20, 1998, DeCarlo was written a work classification status classifying him as medically unassigned through March 20, 1999.
89. On February 2, 1998, Plaintiff DeCarlo reported to sick call at approximately 7:40 PM claiming that he had not been feeling well since about 5:00 PM. He complained of sharp chest pains.
90. Plaintiff DeCarlo was released to return to his unit at approximately 8:00 PM.
91. On February 9, 1998, Plaintiff DeCarlo was admitted to the U.S. Medical Center for Federal Prisoners in Springfield, Missouri.
92. When DeCarlo was admitted to the Springfield facility the admission note shows the history of the MI and the operative procedure. It is also reported that DeCarlo continues to have mild chest pain off and on which lasts for over a few minutes and is relieved by
93. The purpose of the transfer to Springfield was for further care of status-post coronary artery stent and myocardial infarction.
94. Plaintiff DeCarlo was held in the administrative detention unit at Springfield from February 9, 1998 until February 16, 1998.
95. Plaintiff DeCarlo continued to suffer mild chest pain but the pain was not associated with vomiting, nausea, diaphoresis or numbness.
96. The nurse's notes from the health care facilities show that on February 12, 1998, at approximately 8:30 PM Plaintiff DeCarlo reported chest pains which had started about 7:15 PM.
97. The reported pain started in Plaintiff DeCarlo's left shoulder and radiated down the left arm to the mid-forearm and he also reported central chest pain.
98. The reported pain was not relieved by taking two nitroglycerin tablets.
99. Plaintiff DeCarlo took a third nitroglycerin tablet and was given an EKG which showed normal rhythm.
100. Plaintiff DeCarlo was moved to 1-floor and given a heparin IV with a repeat EKG scheduled for the morning.
101. On February 12, 1998, at approximately 10:30 PM a heparin IV push was started.
102. The nursing notes from February 12, 1998 indicate 5000 units [in the] heparin IV push [were] administered. After this medication was administered DeCarlo reported a decrease in chest pain, but still burning in the left arm.
103. The nursing notes for the remainder of February 12, 1998, record complaints of chest pain and continued efforts to treat same with heparin.
104. Plaintiff DeCarlo reported the chest pain to have decreased, but he was still experiencing burning in his left arm.
105. At 9:15 PM Plaintiff DeCarlo reported taking another nitro pill and also reported burning in the left side of his chest and axillary pain.
106. At 10:00 PM Plaintiff DeCarlo continued his complaint of chest pain.
107. At 10:15 PM a heparin IV push was started with the chest pain and Plaintiff DeCarlo indicated that he was feeling a little relief.
108. On February 13, 1998, DeCarlo reported experiencing chest pain from Thursday in the AM. The pain was in his left chest and the pain level was 6/10. The assessment made was unstable angina.
109. On February 13, 1998 an EKG was performed.
110. The February 13, 1998 EKG showed the left ventricle to be mildly enlarged, the left ventricle function to be mildly to moderately impaired, and the anteroseptal wall and adjacent apex at least moderately hypokinetic.
111. The left ventricle ejection fraction was estimated at forty-three percent.
112. On February 14, 1998 at approximately 5:15 PM Plaintiff DeCarlo was complaining of palpitations in his heart and was found to have an irregular heart rhythm.
113. An EKG was done and showed no change from previous EKGs.
114. A heparin IV was started.
115. On February 17, 1998, Plaintiff DeCarlo was released from 1-floor and returned to his living area.
116. When released Plaintiff DeCarlo was given restrictions of no exercise and a prescription for a lower bunk.
117. His medications were Aspirin 325 mg daily, Metoprolol 100 mg bid, Zocor 20 mg daily, nitroglycerin 0.4 mg sl prn, and nitroglycerin patch 0.8 mg daily.
118. The chest pain being experienced by Plaintiff DeCarlo in February 1998, would last for a few minutes and was relieved with nitroglycerin. The doctor Plaintiff DeCarlo saw on admission at Springfield was Dr. Maung Win.
119. Dr. Win reported Plaintiff DeCarlo complaining of headaches from the nitro-patch.
120. Dr. Win's treatment plan was to increase the beta-blocker Metoprolol to 100mg orally twice daily and continue him on Lipid medication Simvastatin 20 mg orally daily.
121. On February 19, 1998, Plaintiff DeCarlo had a cardiology consult with Dr. Myears during which he reported a continuation of his arm burning with walking.
122. The cardiology consultation of February 19, 1998 indicates Plaintiff DeCarlo has had recurrent burning pericardial and left arm discomfort since December 11, 1997, both with exertion and at rest.
123. The burning pericardial and left arm discomfort occurred nocturnally and at rest as well as with activity.
124. Dr. Myears' plan was to place Plaintiff DeCarlo on an ace inhibitor as well as his beta-blocker, one aspirin and cholesterol management.
125. Dr. Myears' impression was continued patency of the LAD at the prior site of total occlusion and stenting. The diagonal branches remained patent as well.
126. Dr. Myears found the LVEF estimate to be 30% with an extensive anteroapical area of severe hypokinesis to akinesis.
127. Hypokinetic means a decrease in motion, function or activity.
128. Akinesia means absence of motion of a muscle. This means there is decreased motion to no motion of the wall of the left ventricle. There is a great deal of damage to the left ventricle from the heart attack, which means it is not pumping the blood out of the heart to the rest of the body.
In another proposed finding whict-i we deleted because it was duplicative, the parties spelled this drug as "Matoprolal." (Additional Facts as Agreed By Parties, p. 7, para. 540)
129. LVEF is the left ventricular ejection fraction.
130. The ejection fraction is the pumping motion of the heart. Normal ejection fraction should be 70%.
131. Since Plaintiff DeCarlo's ejection fraction for the left ventricle was estimated at 30%, this meant he had a lack of normal pumping motion from the left ventricle.
132. The lower ejection fraction would cause Plaintiff DeCarlo's endurance level to be very poor.
133. The lowered ejection fraction would interfere with Plaintiff DeCarlo's ability to do anything strenuous, as he likely would suffer chest pain every time he tried to do something, because on activity the heart wants to beat harder to give the body more blood, but Plaintiff DeCarlo's heart cannot so respond.
134. The cardiology report of February 19, 1998 shows Plaintiff DeCarlo to be taking Metoprolol, Simvastatin, Aspirin and wearing a nitroglycerin patch .8 mg per hour.
135. Metoprolol is a beta blocker which decreases heart rate, cardiac output and blood pressure in order to keep the heart from having to work so hard.
136. Simvastatin is a cholesterol lowering drug.
137. As a result of this consultation, Dr. Myears recommended that Plaintiff DeCarlo undergo a repeat angiography with intervention if a culprit lesion is found.
138. On March 5, 1998, Plaintiff DeCarlo underwent an operative procedure at St. John's Regional Health Center in Springfield, Missouri.
139. Dr. Donald W. Myears performed the operative procedure.
140. The March 5, 1998 procedures were retrograde left heart catheterization, selective coronary angiogram, angiography and left ventriculography.
141. Dr. Myears discussed with Plaintiff DeCarlo the operative procedure to be undertaken including discussing the risks and benefits in order to obtain informed consent.
142. Widely patent means the vessel was wide open and working okay.
141. With respect to the left ventriculography Dr. Myears found same to be mildly enlarged.
144. Dr. Myears found the left ventricular function significantly impaired with the entire anteroapical wall severely hypokinetic to akinetic.
145. On February or March 10, 1998, DeCarlo was seen in the cardiac clinic. He was reporting substantial chest pain which felt "heavy and pressing", with a radiation of burning pain into his left triceps and forearm. DeCarlo took nitroglycerin and also had on two nitroglycerin patches, and this somewhat eased the pain. DeCarlo reported that with walking the pain increased and at rest it decreased. DeCarlo reported that he had had similar symptoms six days ago.
146. A work classification status report of March 16, 1998 written no exercise, athletic restriction, and DeCarlo was okayed for an elevator pass.
147. The nursing notes for March 17, 1998 at 10:00 AM show Plaintiff DeCarlo complaining of sternum pain and reporting that he had taken two nitro tablets, but that the pain had not been relieved.
148. On March 20, 1998 at approximately 6:30 PM, Plaintiff DeCarlo complained of sub-sternal chest pains which felt heavy and pressing with a radiation of burning pain into his left tricep and forearm.
149. The symptoms purportedly started at approximately 1:00 PM and were getting more constant.
150. Plaintiff DeCarlo took two nitroglycerine tablets and was wearing two nitroglycerine patches, which caused the pain to ease somewhat.
151. The pain increased with walking and decreased at rest.
152. Plaintiff DeCarlo reported that the symptoms were similar to symptoms he had approximately six days prior.
153. On April 1, 1998, DeCarlo reported that he was still having chest pains off and on like a pin prick.
154. On April 22, 1998, a medical record for a prisoner in transit was created for Mr. DeCarlo setting forth the medications which should be made available to him while en route.
155. On June 12, 1998, DeCarlo reported that he qets dizzy when he bends over or tilts his head, and has a headache every night and left arm burning.
156. On July 8, 1998, a transfer summary was prepared for Mr. DeCarlo's move from Springfield to another federal facility.
157. The transfer summary was created by Dr. Ashok Patel.
158. The final diagnosis was coronary artery disease with a history of myocardial infarction, December 1997.
159. The recommendations of Dr. Patel were that Plaintiff DeCarlo have follow up medical care with the physician at the next institution, engage in physical activities as tolerated, be on a low sodium diet, have duty/work status as tolerated and that he travel directly to his next institution.
160. Dr. Patel wrote medication Orders for Metoprolol 50 mg daily, Lisinopril 2.5 mg bid., Triamcinolone ointment, nitroglycerin patch .4 mg/hour, 2 patches daily, Aspirin 325 mg daily, Simvastatin 20 mg daily, nitroglycerin .4 mg sublingual, prn chest pain.
161. In July 28, 1998, Plaintiff DeCarlo was transferred from the Springfield facility back to USP-Allenwood.
162. On August 4, 1998, DeCarlo's heart medications were renewed.
163. On August 5, 1998, Plaintiff DeCarlo was designated for placement in the cardiac disease clinic.
164. On August 23, 1998, DeCarlo was seen on an emergency basis at UPS-Allenwood.
165. During the contact on August 23, 1998, DeCarlo reported an episode of chest pain which was relieved by ingestion of nitroglycerin.
166. On August 25, 1998, DeCarlo was seen in the cardiac clinic. During this contact DeCarlo's heart medications were renewed for a period of three (3) months. DeCarlo was also directed to the cardiac clinic and was placed on a low fat, low salt diet.
167. On September 24, 1998, DeCarlo was seen on an emergency basis at USP-Allenwood for dizziness and heart bursts.
168. DeCarlo was initially evaluated in the SHU and transferred to the hospital for further tests.
169. The heart "bursts" were described as a feeling of blood rushing into his heart followed by a sharp pain in his left chest which came and went. DeCarlo reported taking a nitroglycerin tablet, which appeared to help some.
170. A note in DeCarlo's chronological medical record, approximately twelve (12) hours after he was seen on an emergency basis, indicates he was given an EKG which showed the old MI and also myocardial ischemia.
171. On November 2, 1998, a prescription was written to refill DeCarlo's heart medications.
172. On November 25, 1998, DeCarlo was seen at the cardiac clinic.
173. On December 7, 1998, a refill for Plaintiff DeCarlo's various medications was written.
174. On December 14, 1998, Plaintiff DeCarlo had a cardiology consult with Dr. Tobiasz.
175. Dr. Tobiasz reports that while at Springfield in March. 1998, Plaintiff DeCarlo had a repeat catheterization, which showed widely patent LAD.
176. Dr. Tobiasz also indicates that Plaintiff DeCarlo has continued to have chest pains since December of 1997.
177. Dr. Tobiasz reports Plaintiff DeCarlo to be on 50 mg of Metoprolol twice a day, 81 mg of aspirin and 20 mg of Zocor.
178. Dr. Tobiasz reports that Plaintiff DeCarlo claims to suffer dizziness when he bends over and stands up quickly and also complains of his heart fluttering when he is lying down.
179. Dr. Tobiasz recommended an exercise stress test on Plaintiff DeCarlo since he has not had such a test post-myocardial infarction.
180. Because of the condition of Plaintiff DeCarlo's heart, Dr. Tobiasz recommended that the stress test be with isonitrile profusion rather than a plain exercise stress test.
181. Since Plaintiff DeCarlo was transferred from the Springfield facility he has continued to undergo cardiology evaluation and treatment up to the time of trial.
182. On December 7, 1998, a refill for Plaintiff DeCarlo's various medications was written.
183. On December 26, 1998, DeCarlo was seen with complaints of numbness and tingling in his left arm and mild chest discomfort, which he treated by taking three (3) nitroglycerin tablets. The entry notes that he was given an EKG, and no change was noted from the EKG given two (2) weeks ago. DeCarlo was awaiting his yearly heart testing.
184. On January 19, 1999, Plaintiff DeCarlo underwent a stress test with myocardial profusion imaging at Williamsport Hospital.
185. During the stress test, Plaintiff DeCarlo was able to exercise on a treadmill and achieved 81% of his maximum age predicted heart rate.
186. The images from the myocardial profusion imaging test revealed a dilated left ventricle with significantly decreased activity in the anterior wall and apex of the left ventricle and moderate to marked decrease in activity in the septum.
187. The imaging test also showed there was mild to moderate decreased activity seen in the diaphragmatic wall.
188. The studies reveal a large area of dyskinesis involving the apex, septum and adjacent antero and interoseptal regions of the left ventricle and hypokinesis in the anterior and inferior wall.
189. The left ventricular ejection fraction was 26%.
190. Dr. Tobiasz described the 26% low left ventricle ejection fraction as quite reduced and quite low.
191. Between March 5, 1998 and January 19, 1999, Plaintiff DeCarlo's ejection fraction got worse as it decreased from 30% to 26%.
192. With the reduced ejection fraction and lack of motion of the vessel walls, Plaintiff DeCarlo is what doctors call a "cardiac cripple."
193. The stress test Plaintiff DeCarlo attempted on January 19, 1999 was terminated because of progressive dyspnea.
194. While attempting the stress test Plaintiff DeCarlo complained of mild arm pain near peak exercise.
195. Plaintiff DeCarlo's baseline cardiogram showed right bundle branch block intraventricular conduction delay with anterior Q waves.
196. The impression of Dr. Tobiasz was that Plaintiff DeCarlo's exercise tolerance was reduced for his age by dyspnea and mild left arm discomfort.
197. As of January 19, 1999, Plaintiff DeCarlo was taking Zocor, Lipicid, ASA, Toprol, and using nitroglycerine patches.
198. DeCarlo's chronological record of medical care shows that on January 26, 1999 his various cardiac medications were refilled.
199. On February 8, 1999, DeCarlo reported to the SHU officers that his legs were swelling.
200. On February 11, 1999, DeCarlo was seen in the cardiac clinic and his cardiac medications were renewed for three (3) months.
201. On February 11, 1999, Allenwood received copies of the stress test done on January 19, 1999.
202. On March 2, 1999, Plaintiff DeCarlo had his medications refilled.
203. On March 6, 1999, Plaintiff DeCarlo experienced chest pains starting at approximately 3:00 PM, with pain radiating into his neck and left arm.
204. Plaintiff DeCarlo reported that the pain radiating into his left arm is a daily happening.
205. To combat the pain Plaintiff DeCarlo took two nitroglycerine tablets and applied a new nitroglycerine patch.
206. Plaintiff DeCarlo reported developing headaches after ingesting the nitroglycerine.
207. DeCarlo was escorted to health services for evaluation, and health services offered to place him in the observation room for twenty-four (24) hours, but DeCarlo refused.
208. The EKG given showed no changes.
209. On March 16, 1999, an order was written to refill his medications.
210. On May 14, 1999, the prescription medications were refilled for three months.
211. On June 23, 1999, Plaintiff DeCarlo was seen on an emergency basis at approximately 11:00 PM with respect to a complaint of irregular heartbeat.
212. Plaintiff DeCarlo reported that the irregular heartbeat had been ongoing for approximately four hours.
213. The severe damage to the left ventricle of Plaintiff DeCarlo's heart may cause Plaintiff DeCarlo to develop congestive heart failure.
214. Plaintiff DeCarlo's complaint of irregular heartbeat on June 23, 1999 was that his heartbeat got so bad that it took his breath away.
215. Plaintiff DeCarlo was scheduled to see a cardiologist on June 25, 1999.
216. Plaintiff DeCarlo was seen at the cardiology clinic on June 25, 1999, and scheduled for a 48-hour Holter on June 28, l999.
217. On June 25, 1999, Plaintiff DeCarlo had a cardiology consult with Dr. Tobiasz.
218. In the report of Dr. Tobiasz, Plaintiff DeCarlo was reporting some chest pains with exertion since the operative procedure on December 23, 1997.
219. Dr. Tobiasz noted diminished ejection fraction which, coupled with the complaints of palpitation, were worrisome to the doctor since Plaintiff DeCarlo is a high risk candidate for ventricular arrhythmias and/or sudden cardiac death.
220. The Holter test showed rare, isolated premature ventricular contractions (PVCs)
221. PVCs is a form of irregular heartbeat where the ventricle contracted before it should have.
222. The report also recounts that the stress test in January 1999 showed extensive anterior septal inferior apical scar with ejection fraction estimated at around 25%.
223. Plaintiff DeCarlo reported that he has been feeling skipped beats and heart pounding on an intermittent basis.
224. The most recent episode of heart pounding was on June 23, 1999 when Plaintiff DeCarlo reported his heart racing and he could "see it through his shirt."
225. Plaintiff DeCarlo took a nitroglycerine tablet, which calmed him down.
226. An EKG after the episode did not show any new ST and T changes and no ectopy, although the monitor noted PVCs.
227. Plaintiff DeCarlo reported that the heart racing and skipped beats makes him feel as though he might pass out although he has never actually fainted.
228. Dr. Tobiasz reports that the January stress test disclosed tolerance was reduced to seven minutes with the EKG showing extensive anterior infarct with Q-waves throughout most precordial leads and right bundle branch block intra ventricular conduction delay.
229. Dr. Tobiasz recommended a 48-hour Holter to see if the type of arrhythmia can be pinpointed.
230. Dr. Tobiasz indicates that he is particularly worried about Plaintiff DeCarlo's complaints of sustained palpitations as sustained ventricular tachycardia at this time could require referral for electro physiologic studies and possible implantation of cardioverter defibrillator.
231. On June 28 and 29, 1999 Plaintiff DeCarlo underwent the 48-hour Holter under the supervision of Dr. Tobiasz.
232. The Holter report shows on June 28, 1999 Plaintiff DeCarlo had rare isolated PVC's and rare PAC's.
233. The Holter report shows that on June 29, 1999 Plaintiff DeCarlo experienced rare to infrequent isolated PVC's and very rare PAC's.
234. The 48-hour Holter Dr. Tobiasz concluded that Plaintiff DeCarlo only was having rare and isolated VPC's and that there was nothing sustained or ominous.
235. Dr. Tobiasz indicated that Plaintiff DeCarlo would just have to live with his condition and that no treatment was indicated.
236. On July 22, 1999, Plaintiff DeCarlo underwent a 24-hour Holter monitored by Dr. Keating.
237. The interpretation of the July 22, 1999 Holter was baseline rhythm is sinus in origin with physiologic rates and a bundle branch block pattern of conduction. Rare PVC's occurring singly in two couplets and one triplet with a ventricular escape as a fourth beat in the series. There is no evidence of sustained ventricular arrhythmias. There are rare PAC's occurring singly and two couplets and one thirteen beat salvo of PAC's. There is no evidence of Atrial Fib. There is no evidence of abnormal bradycardia heart block or pauses.
238. On August 11, 1999, DeCarlo was seen in the cardiac clinic.
239. A work classification status report of August 16, 1999, indicates DeCarlo is to be assigned light duty — avoiding any strenuous activity as a result of his heart disease.
240. DeCarlo was seen on August 16, 1999 and indicated although he was medically unassigned, he wanted to be cleared for light duty status. The heart medications were renewed for thirty (30) days with two (2) refills.
241. On September 22, 1999, a urine test showed positive for morphine.
242. The patient problem list from DeCarlo's central file shows that on August 29, 1998 he had a positive urine for morphine, and also had a positive urine for morphine on September 13, 1999.
243. The patient problem list shows that between September 13, 1999 and March 15, 2002, DeCarlo had no positive urines.
244. At the disciplinary hearing held concerning the ingestion of morphine by DeCarlo on March 15, 2002, Dr. Johnston, DAP coordinator, testified DeCarlo "has serious medical issues and has psychological issues to deal with as a result."
245. On November 6, 1999, Plaintiff DeCarlo reported that it feels like his pulse beat is up.
246. On November 9, 1999, Plaintiff DeCarlo's heart medications were refilled.
247. On November 16, 1999, Plaintiff DeCarlo was seen at the cardiac clinic and reports he was feeling great. Plaintiff DeCarlo indicated he is walking for exercise and he has had no significant chest pain but is using 0-3 NTG per week. His previously written prescriptions along with Zocor 20 mg po qd rewritten. Plaintiff DeCarlo was also given a slip for an extra mattress and a pillow and was to be followed up in three months.
248. On November 16, 1999, an entry was made in DeCarlo's chronological record of medical care that DeCarlo was to exercise cautiously in view of his past MI. Additionally, prescriptions for refills of his heart medication were written for thirty (30) days with two (2) refills.
249. On November 21, 1999, DeCarlo's chronological record shows him requesting nitroglycerine patches.
250. On December 21, 1999, Plaintiff DeCarlo appeared at the pharmacy window requesting nitroglycerine patches. Plaintiff DeCarlo was given nitroglycerine .4 mg patch, with instructions to apply two patches every day for 16 hours and to remove for eight hours.
251. On January 25, 2000, DeCarlo was seen by a cardiologist, and DeCarlo was to remain idle until January 26, 2000. DeCarlo was to be scheduled for his annual stress test.
252. The cardiologist recommended increasing the Zocor to lower Plaintiff DeCarlo's cholesterol and a prescription was written for Zocor, 20 mgs po qd 30 days and one refill.
253. The cardiologist also scheduled Plaintiff DeCarlo for an exercise stress test with isonitrile profusion scan since the last stress test was in December.
254. The cardiologist indicates that Plaintiff DeCarlo should undergo an exercise stress test at least once per year.
255. On January 28, 2000, the prescription for Zocor was discontinued and a new Zocor prescription 40 mgs po qd, 30 days and two refills was written.
256. DeCarlo's chronological record for February 1, 2000 reports that he was complaining of generalized sharp chest pains. The entry also indicates that he had reduced his smoking below one (1) pack per day. (P-117.19)
257. On February 2, 2000, Plaintiff DeCarlo reported generalized chest pains.
258. Plaintiff DeCarlo was advised to continue on his meds and that the stress test had been scheduled.
259. On February 16, 2000, DeCarlo was seen at the cardiac clinic. It was reported that DeCarlo was experiencing chest pains and wearing his nitroglycerine patch. DeCarlo reported he continues to cut back on his smoking. DeCarlo's cardiac prescriptions were rewritten for thirty (30) days with two (2) refills.
260. On February 29, 2000, Plaintiff DeCarlo was transported to an outside hospital for his annual stress test.
261. The stress test of February 29, 2000 showed the percentage of maximum predicted HR achieved was 68%.
262. The METS achieved was 7.0.
263. The test was stopped because Plaintiff DeCarlo became lightheaded, and had neck and throat discomfort consistent with angina — severe greater than moderate intensity.
264. During the stress test of February 29, 2000 Plaintiff DeCarlo experienced mild squeezing on right side of neck and throat, lightheaded, occasional palpitations. The neck tightness was gone three minutes and ten seconds into recovery.
265. On February 29, 2000 Plaintiff DeCarlo also underwent a technetium myoview myocardial profusion scan.
266. This test showed that with stress, Plaintiff DeCarlo's heart rate reached 63% of his predicted maximum.
267. Plaintiff DeCarlo experienced chest symptoms, which he had been having over the prior two weeks, as well as marked dizziness.
268. The left ventricular ejection fraction was found to be .25 post-stress.
269. The ejection fraction is described as markedly reduced.
270. The ejection fraction finding on February of 2000 shows a further decrease since the last stress test on January 19, 1999.
271. The impression from this test was no obvious reversible ischemia.
272. Ischemia means that there is a small area which is not getting blood.
273. The profusion imaging from the test of February 29, 2000 revealed extensive abnormalities.
274. On March 1, 2000, Plaintiff DeCarlo complained of fluttering in his chest and associated chest pain.
275. Plaintiff DeCarlo indicated that once he returned to Allenwood from the stress test he was feeling good and had no complaints, but he went to bed at approximately 10:00 PM and at around 10:30 PM he had fluttering in his chest and associated chest pain described as sharp and rated 4 on a 1-10 scale, radiating into his neck.
276. Plaintiff DeCarlo reported the fluttering lasted about 15 minutes.
277. At about midnight he had a second episode, which was substantially the same as the 10:30 PM episode.
278. Plaintiff DeCarlo was placed in the observation room overnight to be seen by the clinical director in the morning.
279. After 5:30 AM on March 1, 2000, Plaintiff DeCarlo reported soreness in his chest and neck but unlike the chest pain he had before.
280. An EKG was taken and it showed no changes from previous EKGs, so Plaintiff DeCarlo was released to return to his unit to rest and continue on his medications.
281. An EKG of DeCarlo on March 27, 2000 is read as if normal and indicates abnormal extreme QRS axis deviation, right bundle branch block, anteroseptal infarction.
282. On April 10, 2000, shortly after noon Plaintiff DeCarlo was seen in the emergency room because of chest pain which he had been having more frequently over the last few days.
283. The reported pain was sharp and under the left side of the breast with the pain lasting a few minutes after onset, but now lasting longer.
284. Plaintiff DeCarlo also reported cold sweats and soreness in his right arm.
285. It was recommended that Plaintiff DeCarlo be transported to the Williamsport Hospital emergency room for evaluation.
286. On April 10, 2000, at approximately 12:30 PM Plaintiff DeCarlo was transferred to Williamsport Hospital for emergency treatment.
287. Plaintiff DeCarlo returned from Williamsport Hospital emergency room at approximately 5:15 PM.
288. The Williamsport medical records for treatment of Plaintiff DeCarlo on April 10, 2000, show he arrived at the hospital ER via ambulance with complaints of chest pains.
289. At the Hospital an EKG was taken and Plaintiff DeCarlo was treated and released.
290. The ER history was transient left-sided chest pain described as a pinching sensation that lasts 5-10 seconds with multiple episodes throughout the day.
291. Upon return from the Williamsport Hospital ER, DeCarlo was seen at the institution and directed to resume his prior medication program.
292. On April 14, 2000, Plaintiff DeCarlo requested a transfer to FCI-Fairton to participate in a drug abuse program.
293. The request for transfer form memorializes that DeCarlo has had a heart attack which has limited his ability to work.
294. Plaintiff DeCarlo was seen on May 16, 2000, and had no new complaints except for tenderness over the left breast biopsy scar. Plaintiff DeCarlo continued to be medically unassigned. Plaintiff DeCarlo's previously written medications were renewed.
295. The chronological records show DeCarlo was received at FCI-Fairton on June 6, 2000 and his various cardiac medications were to be continued.
296. On June 14, 2000, a medical prisoner in transit report was drawn up on DeCarlo setting forth the medications which should be made available to him while in transit.
297. The chronological medical care records show DeCarlo was seen on May 16, 2000 and his heart medications were rewritten for thirty (30) days with two (2) refills. DeCarlo reported he was smoking a half pack of cigarettes a day.
298. On June 16, 2000, Plaintiff DeCarlo underwent intake screening at FCI-Fairton.
299. On June 22, 2000, Plaintiff DeCarlo's institution medical record disclosed that a medical report of duty status was written indicating Plaintiff DeCarlo was to have a lower bunk pass, an extra pillow and mattress, and light duty due to his heart condition. This status was to last from June 22, 2000 through June 22, 2001.
300. On June 23, 2000 Plaintiff DeCarlo was given a medical report of duty status allowing him to wear soft shoes from June 23 through December 23, 2000 due to his medical condition.
301. On July 5, 2000, DeCarlo wrote a "cop out" to the warden at Fairton about the fact that he was receiving improper medications at Fairton.
302. On July 8, 2000, DeCarlo went to the hospital to request to have his blood pressure checked. DeCarlo was told to come back in forty-five (45) minutes. DeCarlo did not return for a check of his blood pressure, and when asked why stated, "What does it matter."
303. The chronological records show DeCarlo was seen at FCI-Fairton on July 11, 2000. DeCarlo was seeking a refill of his nitro patch prescription. DeCarlo complained that Fairton provided the wrong dosage of Lisinopril (10 mg. versus 5 mg.).
304. The notes also indicate that DeCarlo agreed to break the 10 mg. in half and take a one half (1/2) tablet.
305. DeCarlo was seen on July 19, 2000 at the cardiac clinic at FCI-Fairton.
306. DeCarlo was seen at the cardiac clinic at Fairton on September 22, 2000 and requested a nicotine patch to help him stop smoking. An order was written for a nicotime patch for six (6) weeks. DeCarlo's heart medications were also refilled for ninety (90) days.
307. On October 11, 2000 a note was made in Plaintiff DeCarlo's institutional medical records that he was given authority for early chow due to chest pains.
308. On December 20, 2000 Plaintiff DeCarlo was seen at the cardiology clinic at FCI-Fairton.
309. Plaintiff DeCarlo's various cardiac medications were continued.
310. On January 22, 2001 Plaintiff DeCarlo's prescription for nitroglycerine patch .4 mg was renewed.
311. On January 22, 2001, DeCarlo wrote to Dr. Morales at FCI-Fairton about having his stress test scheduled since it was already over two months past due.
312. On January 23, 2001 Plaintiff DeCarlo was to be scheduled for an exercise stress test.
313. On February 12, 2001 Plaintiff DeCarlo was seen at FCI-Fairton and advised to continue with the taking of his various heart medications including the .4 mg nitroglycerine tablets for chest pain.
314. Plaintiff DeCarlo's institutional records indicate that on February 13, 2001 he reported believing that for the last couple of days his heart was missing beats.
315. An EKG was done on February 13, 2001 showing no acute change.
316. On February 13, 2001 Plaintiff DeCarlo was written a duty status memo directing that he be provided a low sodium, low fat diet due to his medical condition with his diet to run through February 13, 2002.
317. On February 13, 2001 at 9:22 AM Plaintiff DeCarlo underwent an ECG which was read as abnormal. It showed a right bundle branch block, septal myocardial infarction, and cannot rule out anterolateral myocardial infarction.
318. On February 15, 2001 the United States Medical Center for Federal Prisoners at Springfield provided the results of a LIPID test which showed elevated cholesterol triglycerides and low density lipids.
319. As a result of the LIPID test, Plaintiff DeCarlo was to continue his anti-cholesterol medications and follow up with the chronic care clinic.
320. Plaintiff DeCarlo's institutional medical records show on February 17, 2001 he made complaints concerning a burning sensation over his left arm and chest discomfort.
321. On February 17, 2001 Plaintiff DeCarlo underwent an ECG test which was read as abnormal and which showed a right bundle branch block, septal myocardial infarction, and anterolateral myocardial infarction.
322. On February 20, 2001, Plaintiff DeCarlo was seen by Dr. Cohn, a cardiologist, who recommended a low cholesterol diet, a repeat lipid profile, a 24-hour Holter, and a stress test.
323. On March 6, 2001, Plaintiff DeCarlo was taken from FCI-Fairton to a local hospital for a stress test.
324. The stress thallium study done on March 6, 2001 at South Jersey Hospital showed absent profusion of the anterior wall and the greater portion of the septum. The only normally aerated profused region was the lateral wall. Slight reperfusion was noted in the septal region.
325. The impression formed as a result of the stress thallium study was anteroseptal scar. Questionable superimposed small area of ischemia in the septum. Lung to heart ratio suggests ventricular dysfunction. There is also a suggestion of some inferior wall scar.
326. As a result of the March 6, 2001 stress test, there was a request for cardiac follow up in eight weeks.
327. On March 6, 2001 a myocardial profusion imaging study was performed at South Jersey Hospital, Bridgeton, New Jersey.
328. The March 6, 2001 study reveals evidence of an extensive anteroseptal scar and a possible area of ischemia involving the septum.
329. The test disclosed that based upon the heart to lung ratio, there is ventricular dysfunction and some degree of scarring involving the inferior wall of the left ventricle.
330. Plaintiff DeCarlo's institutional records report on April 2, 2001 he was reporting that he was still suffering mild chest pains lasting a minute or two at a time and unrelated to effort. The character of the pain has not changed and has not worsened since the December 1997 incident.
331. On April 2, 2001 Plaintiff DeCarlo was advised to continue taking the various heart medications previously prescribed, and the medications were represcribed.
332. On June 22, 2001, Plaintiff's various medications were renewed for a period of ninety (90) days.
333. While at FCI-Fairton DeCarlo was allowed to "lay in" for two (2) weeks between August 15, 2001 and August 29, 2001, due to his medical condition.
334. While being transported from FCI-Fairton to USP-Allenwood DeCarlo was held over at USP-Lewisburg, and while at Lewisburg was assigned a lower bunk with extra mattress and pillow.
335. On October 15, 2001, Plaintiff was seen at the cardiac clinic at FCI-Fairton, and his various cardiac medications were renewed for a period of three (3) months.
336. On October 19, 2001, Plaintiff was transferred from FCI-Fairton back to USP-Allenwood.
337. In conjunction with his transfer, a medical summary form was drawn up listing the heart medications he was taking with an indication that the medications were to continue indefinitely.
338. On October 24, 2001, Plaintiff underwent an intake screening at USP-Allenwood.
339. As part of the intake screening, it was recommended that DeCarlo be placed on cardiac clinic within one week, and that he was to remain medically unassigned until evaluated by a doctor.
340. An order was written for DeCarlo to have a bottom bunk, and an extra mattress and pillows.
341. DeCarlo was seen by a doctor on October 29, 2001, and an order was written for his cardiac medications for thirty (30) days with two refills.
342. On December 26, 2001, DeCarlo wrote a cop out about being evaluated by a cardiologist.
343. On January 25, 2002, DeCarlo was seen in the cardiac clinic. DeCarlo reported he was no longer smoking, but he was chewing. DeCarlo's heart medications were rewritten for thirty (30) days with two (2) refills.
344. On February 14, 2002, DeCarlo reported nocturnal episodes of dyspnea, which had been ongoing for a period of two (2) months.
345. On February 21, 2002, DeCarlo had a brief counseling session with Chief Psychologist Mitchell concerning his emotional reaction to learning that he only has one (1) or two (2) years left to live. DeCarlo related he felt distressed, depression and grief with associated irritability, tension and sleep disturbance. DeCarlo is reported to have openly cried about the prospect of dying and the life he will miss out on.
346. On March 4, 2002, DeCarlo had a cardiac consult.
347. On March 6, 2002, DeCarlo had a consultation with Dr. Grant at the Springfield facility. Dr. Grant made an axis one diagnosis of anxiety/depression. Dr. Grant considered prescribing Paxil, but needs approval from the cardiology department since Paxil can cause tachycardia/palpitations.
348. DeCarlo's medical records show that on March 7, 2002 Dr. Grant wrote a prescription for Paxil and Atarax. On the prescription Dr. Grant indicated that Paxil can cause tachycardia and palpitations, but the incidents of same are low.
349. On March 7, 2002, DeCarlo's chronological medical records report the March 6, 2002 contact which was a consultation with psychiatry for anxiety and depression.
350. On March 8, 2002, DeCarlo had a brief counseling session with Chief Psychologist Mitchell in which DeCarlo reported himself being depressed, and ongoing rumination patterns of thinking about his death and concerns about whether/how to tell his mother about his medical condition.
351. On March 8, 2002, DeCarlo was prescribed Paxil and Hydroxyzine for his depression.
352. On March 11, 2002, DeCarlo complained about a burning sensation in his chest up into his neck and into his left forearm. He reported the burning sensation four (4) on a scale of ten (10). The first such episode was about 11:30 AM, and he had three additional episodes between 11:30 AM and 2:45 PM. DeCarlo took six (6) nitroglycerine tablets and was wearing his nitro patch.
353. On March 19, 2002, DeCarlo complained of recurring chest pain and having six (6) episodes of the chest pain, which responded temporarily to the nitroglycerine.
354. It was decided to transfer DeCarlo to the Williamsport Hospital emergency room for further management.
355. DeCarlo was transferred from the institution to the Williamsport Hospital emergency room where he was evaluated, and then returned to the institution. Upon return to the institution, he was to resume his prior medications.
356. The Williamsport Hospital emergency room records indicate that DeCarlo had been experiencing a racing heart for a period of time, he went to the institution hospital, and was transferred to the ER.
357. DeCarlo was transferred to FCI-Fairton and in conjunction with that transfer, the institution drew up a request for transfer form.
358. The request for transfer form shows that prior to March 15, 2002, DeCarlo was found to have used drugs on four (4) other occasions, December 18, 1997, September 10, 1998, January 26, 1999, and September 28, 1999.
359. On March 19, 2002, DeCarlo underwent an EKG which was read as abnormal. The EKG indicates there is a marked left axis deviation, a right bundle branch block with left anterior fascicular block, and evidence of anterolateral infarction.
360. On March 20, 2002, DeCarlo had a consultation with Dr. Grant at Springfield, and Dr. Grant's diagnosis was anxiety/depression/insomnia. DeCarlo reported memory loss, irritability, crying, racing thoughts and thoughts of jumping off the tier while he was on Paxil. Dr. Grant discontinued the Paxil and Atarax and started DeCarlo on Zoloft.
361. On March 25, 2002, DeCarlo had a brief counseling session with Chief Psychologist Mitchell wherein he reported his feeling of needing to "jump off the tier", and other feelings of agitation and restlessness.
362. DeCarlo was given a Patient Medication Information sheet concerning Lisinopril. This drug is commonly used as an ACE inhibitor to treat high blood pressure. This drug may also be used to treat congestive heart disease and other conditions as determined by the doctor. Possible side effects of taking this drug include dizziness, lightheadedness, or fainting. Possible side effects include nausea, vomiting, or diarrhea; headache; dry cough; dizziness or lightheadedness when sitting or standing; or fatigue.
363. DeCarlo was given a Patient Medication Information sheet concerning Furosemide. This medication is a loop diuretic used to treat high blood pressure, congestive heart failure, and swelling due to excess body water. Possible side effects of this drug include dizziness or lightheadedness when sitting or standing, or nausea.
364. DeCarlo was given a Patient Medication Information sheet concerning Paroxetime. This medication is used to treat obsessive-compulsive disorder, panic disorder, or social anxiety disorder. It may also be used to treat depression or other conditions as determined by the doctor. Possible side effects include nervousness, trouble sleeping, headache, drowsiness, fatigue, nausea, vomiting, diarrhea, loss of appetite, dry mouth, sweating, dizziness, lightheadedness, muscle spasm, or change in sexual function.
365. DeCarlo was given a Patient Medication Information sheet concerning Metoprolol. This medication is a beta-blocker used to treat high blood pressure and angina pectoris (chest pains). It is also used after a heart attack. Possible side effects may include drowsiness, lightheadedness or dizziness, unusual tiredness or weakness.
366. DeCarlo was given a Patient Medication Information sheet concerning Lovastatin. This medication is an inhibitor used to lower cholesterol and triglyceride levels in your blood. Possible side effects include dizziness and constipation.
367. DeCarlo was given a Patient Medication Information sheet concerning Sertraline. This medication is used to treat depression, panic disorder, obsessive-compulsive disorder, or post-traumatic stress syndrome. Possible side effects include nervousness, trouble sleeping, headache, drowsiness, fatigue, vomiting, loss of appetite, dizziness, lightheadedness, and muscle spasm.
368. On March 27, 2002, DeCarlo had a consultation with Dr. Grant in Springfield. Dr. Grant diagnosed anxiety/depression. This records the change from Paxil to Zoloft.
369. In conjunction with receiving the Zoloft, DeCarlo executed a consent form dated March 29, 2002.
370. On May 3, 2002, DeCarlo was seen in the cardiac clinic and inquired concerning when he was going to receive his yearly stress test. DeCarlo's heart medications were rewritten for thirty (30) days plus two (2) refills.
Education and Work Background
371. Plaintiff DeCarlo dropped out of school in December 1979, and completed his formal education only through the 8th grade.
372. Prior to his incarceration Plaintiff DeCarlo worked as a roofer, an auto body repairman, a shaper in a fish market, limousine driver, and construction worker.
373. During the course of his incarceration, Plaintiff DeCarlo has been assigned to multiple work areas.
374. In January 1991, Plaintiff DeCarlo's work supervisor made a recommendation that he receive extra good time for the work he had performed in the recreation department in that he had performed all his duties satisfactorily and had assisted in the completion of many recreational projects.
375. In March 1992, Plaintiff DeCarlo's work supervisor made a recommendation that he be awarded extra good time for the outstanding work he performed as an orderly.
376. In April 1993, Plaintiff DeCarlo's work supervisor recommended he be awarded extra good time for his work as a orderly during which he removed paint from the floors, patched cement on the floors, waxed the floors, moved beds and mattresses. The supervisor indicated Plaintiff DeCarlo worked earnestly.
377. In December 1993, Plaintiff DeCarlo's work supervisor recommended he be awarded extra good time for the work he was doing and indicted that Plaintiff DeCarlo prepares all laundry, is an excellent worker, is a dependable worker who gets along well with other inmates and is always willing to work extra.
378. In February 1996, Plaintiff DeCarlo's work supervisor recommends he be awarded extra good time for the outstanding work he did repairing damaged plumbing in I and J blocks while he was on loan to the plumbing shop/mechanical services.
379. In June 1997, Plaintiff DeCarlo's work supervisor recommends he be awarded extra good time for the work he has done in his position of compound sanitation, which work he does with no complaints or errors and that Plaintiff DeCarlo requires little or no supervision. The supervisor also notes Plaintiff DeCarlo has volunteered on his days off when needed.
380. On December 29, 1997 Plaintiff DeCarlo received a work classification status directing he receive a low fat diet.
381. On December 29, 1997 Plaintiff DeCarlo received a work classification status directing he be given a lower bunk.
382. On January 20, 1998 Plaintiff DeCarlo was given a work classification status of medically unassigned.
383. The transfer summary of July 8, 1998 indicated Plaintiff DeCarlo could engage in physical activities as tolerated, that he have a low sodium diet, and have duty/work status as tolerated.
384. On August 25, 1998 Plaintiff DeCarlo was given a work classification status of low fat, low salt diet.
385. On August 16, 1999 Plaintiff DeCarlo received a work classification status of "light duty" wherein he is to avoid strenuous activity due to his heart disease.
386. The light duty status is to remain in effect until February 15, 2000.
387. On April 4, 2000, DeCarlo received a completion certificate for Self-Discovery II.
388. The transfer summary of April 14, 2000 shows Plaintiff DeCarlo has been unassigned for work duty since February 16, 2000 due to his heart condition.
389. The intake screening at FCI-Fairton on June 16, 2000 indicates Plaintiff DeCarlo is approved for temporary work assignment with the exception of performance of food service work until he is medically cleared.
390. On June 22, 2000 Plaintiff DeCarlo institution medical record disclosed that a medical report of duty status was written indicating Plaintiff DeCarlo was to have a lower bunk pass, an extra pillow and mattress, and light duty due to his heart condition. This status was to last from June 22, 2000 through June 22, 2001.
391. On June 28, 2000, DeCarlo received a certificate of award for Parenting Skills Program — Level II.
392. On September 11, 2000, DeCarlo received a certificate of achievement for completing Jewish Parenting.
393. On September 26, 2000, DeCarlo received a certificate of achievement for satisfactory completion of Parenting I — Raising Infants and Toddlers.
394. On September 27, 2000, DeCarlo received a certificate of achievement for satisfactory completion of Parenting II — Raising Young Children.
395. A job evaluation on September 23, 2000 indicates Plaintiff DeCarlo's quality of work is good and that he is a willing worker, able to work on his own and demonstrates an above average interest in his job.
396. The evaluation also indicates Plaintiff DeCarlo has a good ability to learn, that he learns rapidly, demonstrates a good memory and rarely makes the same mistake twice.
397. Plaintiff DeCarlo needs little supervision in the performance of his work, is friendly and congenial and helpful when working with others, and has not demonstrated any hostility or resentment in regard to supervision instruction.
398. Plaintiff DeCarlo's institutional employment record shows him to have been a diligent, valued worker, who works well with others, is quick to learn, and a worker who does not need supervision and is willing to work beyond his regularly scheduled work shift.
399. On September 28, 2000, DeCarlo received a certificate of achievement for satisfactory completion of Parenting III — Raising Teenagers.
400. On April 10, 2001, DeCarlo received a certificate of achievement for satisfactory completion of Cage Your Rage.
401. On January 16, 2002, the staff drew up an extra good time recommendation for DeCarlo concerning his work from November 5, 2001 through January 16, 2002.
402. The extra good time recommendation describes DeCarlo as a "dependable worker, willing to learn all aspects of the job, . . . is respectful, helpful and often times volunteers to perform extra work assignments even though he is in poor health".
403. An inmate education data transcript of March 21, 2002 sets forth the various educational courses DeCarlo has taken while in custody.
404. A work performance rating form drawn up on DeCarlo for the period of October 26, 2001 through November 25, 2001 rates DeCarlo as a good worker who makes fewer mistakes, does a full days work, acts on his own, has above-average interest in the job, learns rapidly, needs little supervision, and is friendly, congenial, and helpful to others.
Future Medical Expenses
405. The reasonable and necessary medical expenses associated with treating Plaintiff DeCarlo's heart condition have been borne and will continue to be borne by the Defendant up to his date of release.
406. Once Plaintiff DeCarlo is released from federal custody, he clearly will require ongoing cardiology care.
407. The reasonable and necessary medical expenses relating to the treatment of Plaintiff DeCarlo's heart problem will be borne by him once he is released from custody.
408. Plaintiff DeCarlo continues to be treated with a variety of cardiac medications including Simvastatin 40 mg daily, coated aspirin 81 mg a day to decrease the likelihood of recurrent myocardial infarction, Lisinopril 5 mg a day to decrease the likelihood of congestive heart failure, Metoprolol 50 mg twice a day to prevent myocardial infarction and decrease the likelihood of congestive heart failure, and nitroglycerin .4 mg sublingually to be used for chest pain.
409. The medications which Plaintiff DeCarlo has been receiving on a continual basis since December 23, 1997 will have to be continued for the remainder of his life.
410. The current reasonable and necessary charges for the medications Plaintiff DeCarlo is receiving is $1,920.00 per year.
411. The Williamsport Hospital bill for the Holter procedure on June 28, 1999 was four hundred and fifty ($450.00) dollars.
412. The charge for the Holter monitor scan on June 29, 1999 was two hundred and forty-eight ($248.00) dollars.
413. The Williamsport Hospital charge for the Holter monitor and scan on August 2, 1999 was four hundred and sixty-eight ($468.00) dollars.
414. The Williamsport Hospital charge for the stress test of February 29, 2000 was two thousand five hundred and two ($2,502.00) dollars.
415. The treatment at the Williamsport Hospital emergency room on April 10, 2000 cost six hundred and ten ($610.00) dollars.
416. The charges by the Williamsport Hospital were reasonable.
417. Since December 22, 1997, Plaintiff DeCarlo has undergone and received various health care relating to his heart condition including pain medications, heart medications, and periodic testing.
418. The continuing cardiology care Plaintiff DeCarlo will have to undergo once he is released from custody will include office visits with a cardiologist for the purpose of undertaking a history, physical exam and electrocardiogram.
419. The number of yearly office visits would be determined by the treating cardiologist.
420. The reasonable and necessary costs for each office visit would be $125.00 per visit.
421. If Plaintiff's expert, Dr. Meshkov, was Plaintiff DeCarlo's treating physician, he would want to see him a minimum of four times per year.
422. Plaintiff DeCarlo's continuing cardiology care would require laboratory studies to check his electrolytes as well as his lipid profile.
423. These laboratory studies would be required at least three times a year.
424. The estimated reasonable and necessary charges for these laboratory studies would be $600.00 per year.
425. Plaintiff DeCarlo would require various cardiology testing at least once a year including echocardiogram with Doppler.
426. The reasonable and necessary charge for the cardiology testing would be $650.00 for each such test.
427. The cardiology testing would have to continue for the balance of Plaintiff DeCarlo's life.
428. Plaintiff DeCarlo is presently under medical orders to receive a stress test on a yearly basis.
429. The need for stress tests will continue for the rest of Plaintiff DeCarlo's life.
430. The reasonable and necessary cost of each stress test is $1,500.00.
431. Plaintiff DeCarlo's heart condition is a progressive condition.
432. With the passage of time Plaintiff DeCarlo's heart condition will become progressively worse, and it is likely he will have to be hospitalized for treatment and stabilization of congestive heart failure.
433. Even if the government had not been negligent in its treatment of DeCarlo after his heart attack, DeCarlo would have experienced congestive heart failure.
434. There may be up to four to five hospitalizations during Plaintiff DeCarlo's lifetime for treatment and stabilization of congestive heart failure. (Not undisputed)
435. The reasonable and necessary cost of each hospitalization for treatment and stabilization of congestive heart failure will be $35,000.00.
436. If DeCarlo develops severe heart failure within the next five to ten years, it is reasonably likely that he will become a candidate for cardiac transplant. (D)
437. Cardiac transplantation might eventually be required for Mr. DeCarlo.
438. The present estimated costs in the United States for cardiac transplantation is $50,000.00.
Non-economic Damages
439. During the time frame from the onset of his symptoms on December 22, 1997, up to the point when the Bureau of Prisons transferred him to Williamsport Hospital, Plaintiff DeCarlo suffered constant pain.
440. From the time of the onset of his symptoms on December 22, 1997, up to the time of his transfer to Williamsport Hospital, Plaintiff DeCarlo suffered significant mental anguish.
441. During the period Plaintiff DeCarlo was in the Williamsport Hospital in December 1997, he suffered continual physical pain and mental anguish.
442. Since his discharge from Williamsport Hospital Plaintiff DeCarlo continued, and continues to the present, and will continue for the rest of his life to experience physical pain and mental anguish as a result of his present physical condition. (Not undisputed)
443. The physical pain and mental anguish Plaintiff DeCarlo has experienced from December 22, 1997, up to the present and which he will experience in the future have had various psychological effects upon him such as anger, frustration, and depression.
444. Prior to his disability, Plaintiff DeCarlo actively engaged in various athletic pursuits.
445. Since December 22, 1997, up to the present, Plaintiff DeCarlo's physical condition has prevented him from engaging in these athletic pursuits.
446. Based upon Plaintiff DeCarlo's present physical condition, he will be prevented from engaging in athletic pursuits for the remainder of his life.
447. As a result of the negligent conduct of the defendant, Plaintiff DeCarlo has suffered a loss of enjoyment of life from December 22, 1997, up to the present.
448. Plaintiff DeCarlo's pain and suffering, mental anguish and loss of enjoyment of life will continue into the future until the day he dies.
449. Plaintiff DeCarlo has requested damages for future medical expenses, past and future pain, past and future mental anguish, past and future loss of enjoyment of life, and future lost earning capacity.
450. It is essentially undisputed that Plaintiff DeCarlo underwent significant physical pain and mental anguish during the period of time on December 22, 1997 when Plaintiff DeCarlo was being held at USP-Allenwood, rather than being transported to an appropriate outside hospital as required by his medical condition.
451. The evidence establishes that since December 22, 1997, Plaintiff DeCarlo has experienced physical pain on a daily basis, some days being worse than others.
452. Since December 22, 1997 Plaintiff DeCarlo has had in excess of 1,460 days of experiencing some degree of physical pain.
453. Plaintiff DeCarlo's heart condition will be a progressively deteriorating condition.
454. Due to the progressively deteriorating nature of Plaintiff DeCarlo's condition, the daily pain will continue for the rest of his life and likely will increase.
455. Since December 22, 1997 Plaintiff DeCarlo has experienced some degree of mental suffering on a daily basis.
456. As of the date of trial, Plaintiff DeCarlo has experienced mental suffering for in excess of 1,460 days.
457. Given the nature of Plaintiff DeCarlo's heart problem, the mental suffering will continue on a daily basis until his date of death.
458. Given the progressive nature of Plaintiff DeCarlo's heart damage, the mental suffering will likely become more intense over time.
459. Since December 22, 1997 Plaintiff DeCarlo's activities have been restricted.
460. Prior to December 22, 1997 Plaintiff DeCarlo enjoyed and participated in various recreational/athletic activities.
461. Since December 22, 1997 Plaintiff DeCarlo has essentially been precluded from participating in these recreational/athletic activities.
462. Given the progressive nature of Plaintiff DeCarlo's heart condition, his ability to participate in recreational/athletic activities has been substantially impaired.
463. Given the progressive deteriorating heart condition, this impairment will likely increase over time.
464. Given the progressive deteriorating heart condition, this impairment will last the balance of Plaintiff DeCarlo's life.
465. It is undisputed that Plaintiff DeCarlo will die prematurely due no Defendant's negligence.
466. It is undisputed that but for the negligent conduct of Defendant the normal life expectancy of Plaintiff DeCarlo would have been 17 years from December 23, 1997.
Future Wage Loss
467. The Defendant retained Daniel M. Rappucci, M.A., CRC, CCM, disability analyst, to provide an opinion on the vocational potential and associated earning power of Plaintiff DeCarlo.
468. The witness Rappucci testified that in his opinion to a reasonable degree of vocational certainty based upon his present physical condition, with his educational background, prior employment, prior level of vocational attainment and history of incarceration, Plaintiff DeCarlo would be at the 10th percentile of wage earners which jobs pay an average of $7.54 per hour.
469. The Defendant's disability analyst, Mr. Rappucci, used 52 weeks a year at 40 hours per week to calculate an annual loss of income figure.
470. The Defendant's disability analyst calculated Plaintiff DeCarlo's annual wage loss at $15,683.20, having used the average hourly rate for individuals in the 10th percentile of $7.54 per hour.
471. Plaintiff DeCarlo's heart attack and resulting physical restrictions have reduced his access to the labor market, limiting him to sedentary and light unskilled or low-end semi-skilled work.
472. Plaintiff DeCarlo has presented the testimony of three business owners who testified that on the basis of the facts known to them they would have been willing to employ him on his release from custody. (Not undisputed)
473. When they made their original offers of employment, none of the three potential employer knew that DeCarlo had suffered a heart attack. (Not undisputed)
474. Two of them learned about DeCarlo's heart attack shortly before being deposed in this case. (Not undisputed)
475. There is no evidence that third potential employer was ever informed of DeCarlo's heart attack. (Not undisputed)
476. All three of the witnesses are aware Plaintiff DeCarlo served a sentence of incarceration and have testified his criminal record would not diminish his earnings.
477. If Plaintiff DeCarlo had obtained employment with Peregrine Manufacturing Corp. as a laborer, his starting hourly pay rate would have been $16.25 per hour plus benefits.
478. If Plaintiff DeCarlo had obtained employment with Five Borough Construction as a laborer, his starting hourly pay rate would have been $16.25 per hour plus benefits.
479. If Plaintiff DeCarlo had become employed at a starting hourly rate of $16.25 per hour, his yearly earnings would have been $33,800.00 plus benefits.
480. Had Plaintiff DeCarlo become employed by either Peregrine Manufacturing Corp. or Five Borough Construction, the difference between the wages he would have earned with the starting salary of $16.25 per hour and his earning ability as established in the report of Government expert Rappucci would have been $18,116.80 per year plus benefits.
481. Had Plaintiff DeCarlo become employed by Lewis Venosa, Inc., his starting rate would have been $15.00 per hour, and his annual earnings would have been $31,200 plus benefits.
482. The difference between the annual earnings for Plaintiff DeCarlo via employment with Lewis Venosa, Inc. ($31,200) and the yearly earnings as established by Government expert Rappucci would be $15,516.80 per year plus benefits.
483. There is no evidence in record demonstrating that the government's negligence, as opposed to DeCarlo's heart attack, has limited DeCarlo's job prospects. (Not undisputed)
484. None of the 3 potential employees knew that DeCarlo had suffered a heart attack when they originally extended their offers of employment. (Not undisputed)
485. The fact that DeCarlo suffered a heart attack makes it extremely unlikely that he would be hired by any employer to perform the physical labor described by the owners of Peregrine Manufacturing Corp., Five Borough Construction, and Lewis Venosa, Inc. (Not undisputed)
486. The Defendant's disability analyst calculated Plaintiff DeCarlo's annual wage loss at $15,683.20, having used the average hourly rate for individuals in the 10th percentile of $7.54 per hour.
III. Discussion.
Plaintiff Nunzio DeCarlo was born on July 20, 1964. On December 22, 1997, DeCarlo was incarcerated at the United States Penitentiary at Allenwood, in White Deer, Pennsylvania. Through no fault of the government, at approximately 4:00 p.m., on December 22, 1997, DeCarlo suffered a heart attack. The United States was responsible for providing DeCarlo with adequate medical care for his heart attack. DeCarlo was not transferred to a hospital for treatment for approximately 6 hours.The United States admits that, under the circumstances of this case, its failure to transfer DeCarlo immediately upon discerning his condition on December 22, 1997, was below the standard of good medical care. The parties have agreed upon the following description of the injuries suffered by DeCarlo and caused by the government's negligence:
Based upon the negligence in handling Plaintiff DeCarlo's heart health care, the heart attack evolved from a minor heart attack to a massive myocardial infarction which caused significant heart scarring. The primary injury is the scarring of the heart and the fact that the ability of the heart to properly perform has been significantly compromised. Had Plaintiff DeCarlo been properly cared for, his life expectancy would have been seventeen (17) years. However, due to the improper care rendered Plaintiff DeCarlo has suffered a significant loss of life expectancy with the Defendant's expert establishing his life expectancy at five (5) years and the Plaintiff's expert establishing the life expectancy at up to ten (10) years.
(Document 45, p. 58)
As a result of the government's admission regarding liability, the only unresolved issues in this case relate to the amount of damages to be awarded in light of the conceded negligence. DeCarlo seeks damages for 1) past, present, and future physical pain and suffering; 2) past, present, and future mental anguish; 3) past, present, and future loss of enjoyment of life; 4) future wage loss; and 5) future medical expenses.
With respect to the governing legal standard, it is well settled that we are
bound to apply Pennsylvania damage law to this case because in fashioning the [Federal Tort Claims Act] Congress defined the liability of the United States in terms of a "private person" in the place of where the tort occurred.
Barnes v. United States, 685 F.2d 66, 68 (3d Cir. 1982) The Court of Appeals for the Third Circuit in Barnes further stated with respect to damage awards that
the standard under the Tort Claims Act is compensatory. The objective of compensation in tort law is "to place the plaintiff in the same economic position as would have been his if the injury had not occurred." Russell v. City of Wildwood, 428 F.2d 1176, 1181 (3d Cir. 1970) "The purpose of personal injury compensation is neither to reward the plaintiff, nor to punish the defendant, but to replace plaintiff's losses." Domeracki v. Humble Oil Refining Company, 443 F.2d 1245, 1250 (3d Cir.) cert. Denied, 404 U.S. 883, 92 S.Ct. 212, 30 L.Ed.2d 165 (1971)Id. at 69. Those principles govern our disposition of this case.
The parties have agreed upon an extensive number of facts and only the following 4 issues remain unresolved: 1) the extent to which DeCarlo's mean life expectancy has been reduced as a result of the Defendant's negligence; 2) whether DeCarlo is a candidate for a heart transplant and is therefore entitled to an additional $50,000.00 in future medical expenses to cover the cost of a heart transplant operation; 3) what is DeCarlo's wage loss; and 4) the amount of damages to be awarded to DeCarlo for pain and suffering, mental anguish, loss of enjoyment of life, future medical expenses, and future lost earning capacity attributable to the Defendant's negligence. We will address those issues in that order.
The initial three issues are primarily questions of fact. The first one concerns the extent to which DeCarlo's mean life expectancy was reduced as a result of the Defendant's negligence. On the date that he had his heart attack, DeCarlo was 33 years old. The parties do not dispute that, had DeCarlo been treated properly, his mean life expectancy from the date of the heart attack would have been 17 years. However, the evidentiary record before us contains two conflicting figures concerning the degree to which DeCarlo's mean life expectancy has been reduced due to the government's negligence.
The testimony of DeCarlo's expert witness, Dr. Arnold Bruce Meshkov, was presented at trial via a videotaped deposition, and his curriculum vitae was entered as an exhibit. (P-145) Dr. Meshkov graduated from the University of Pennsylvania School of Medicine in 1975; had 2 fellowships in cardiology from 1978 to 1981; has practiced Cardiology since 1981; and is currently an Associate Professor of Medicine at Temple University Hospital and in the Cardiology Division of the Temple University School of Medicine. Dr. Meshkov has been involved with 15,000 to 20,000 cardiac patients and is board-certified in internal medicine and cardiology. He has also been involved with a number of research activities in the field of cardiology.
Dr. Meshkov testified in his deposition that DeCarlo's mean life expectancy has been reduced by 7 years because of the government's negligence. In other words, according to Dr. Meshkov, DeCarlo's mean life expectancy from the date of the heart attack was 10 years. All of Dr. Meshkov's conclusions are based on accurate, undisputed facts and we are of the view that his testimony is credible.
During his deposition, Dr. Meshkov was asked to comment on the report prepared by the government's expert, Dr. Michael J. Barrett, in which Dr. Barrett found DeCarlo's mean life expectancy to have been reduced by 12 years. Dr. Barrett is of the view that DeCarlo's mean life expectancy from the date of the heart attack is only 5 years. Dr. Meshkov concluded that Dr. Barrett's assessment of DeCarlo's life expectancy is "wrong." (Deposition transcript, p. 42)
Dr. Barrett's report has never been submitted to us as an exhibit and the record is devoid of any testimony from him via deposition or otherwise. The record contains absolutely no information upon which we may rely to compare the different conclusions reached by Doctors Meshkov and Barrett. We have not seen Dr. Barrett's report, are unaware of the grounds upon which he relied in reaching his conclusions, and have no idea of what his credentials are. Based on this record, we will adopt Dr. Meshkov's determination that DeCarlo's mean life expectancy from the date of DeCarlo's heart attack was 10 years.
The second issue is whether DeCarlo is entitled to the $50,000.00 that represents the future medical expenses he would incur to pay for a heart transplant operation. The government contends that DeCarlo is not entitled to that portion of his future medical expenses because he has not produced sufficient evidence establishing his candidacy for such an operation. The government specifically contends that DeCarlo's history of drug use disqualifies him from such an operation. Our resolution of this issue requires us to consider the burden of proof imposed upon the parties in determining the damages to be awarded.
According to Pennsylvania law "a plaintiff is entitled to be compensated for . . . all future medical expenses reasonably likely to be incurred for the treatment and care of his inuries." McDonald v. United States, 555 F. Supp. 9351 962 (M.D. Pa. 1983) (Conaboy, J.) (Emphasis added). The court in McDonald further commented that
[t]he "law does not require that proof in support of claims for damages or in support of compensation must conform to the standard of mathematical exactness." . . . All that the law requires is that "(a) claim for damages must be supported by a reasonable basis for calculation; mere guess or speculation is not enough." . . . "If the facts afford a reasonably fair basis for calculating how much plaintiff's entitled to, such evidence cannot be regarded as legally insufficient to support a claim for compensation."Id. (quoting Kaczkowski v. Bolubasz, 491 Pa. 561, 567, 421 A.2d 1027 (1980).
At one point in his deposition, Dr. Meshkov stated that "I think Mr. DeCarlo has a significant chance of becoming a candidate for a heart transplant." (Deposition Transcript, p. 22) When asked if the medical facility with which Dr. Meshkov is currently affiliated would approve DeCarlo for a transplant, Dr. Meshkov replied as follows: "If the Temple transplant org — group could feel comfortable that he was not currently using illegal drugs, they would approve him for a transplant, yes." ( Id. at 24)
The issue here is not whether DeCarlo has submitted adequate proof regarding the cost of the heart transplant operation. In fact the government concedes that $50,000.00 is the present estimated costs for such an operation. The issue here is whether the evidence of record sufficiently establishes that DeCarlo would be a candidate for such an operation. A case we handled approximately 20 years ago sheds further light on this issue.
In the case of Funston v. United States, 513 F. Supp. 1000 (M.D. Pa. 1980) (Muir, J.), the government sought to reduce a plaintiff's award for future lost earning capacity by the amount of tax which would have been withheld from his salary. The only evidence presented by the government in support of its position was an "exhibit that showed the amount of tax withheld from (plaintiff's] salary." Id. at 1010. We rejected the government's argument, reasoning that the government had "failed to produce sufficient evidence upon which to base a calculation as to the appropriate reduction." Id.
The Court of Appeals for the Third Circuit in Barnes, supra., relied upon and favorably cited the standard set forth in Funston. Barnes, 685 F.2d at 69. The Court of Appeals in Barnes stated that
[t]he party seeking to reduce the amount of damages shown to a reasonable certainty has the burden "of producing evidence to show the proper reduction." Funston v. United States, 513 F. Supp. 1000, 1010 (M.D. Pa. 1981); Roadway Express, Inc. v. Highway Truck Drivers Helpers, Local 107, 299 F. Supp. 1058, 1063 (E.D. Pa. 1969). See also Overton v. United States, 619 F.2d 1299, 1309 n. 16 (8th Cir. 1980) (the United States has the burden of proving reduction of damages in FTCA actions). The reason for the rule is quite plainly that the risk of uncertainty should be placed on the wrongdoer, rather than the innocent party.
Barnes, 685 F.2d at 69 (citing Story Parchment Co. v. Paterson Parchment Co., 282 U.S. 555, 563, 51 S.Ct. 248, 250 (1931)).
We are of the view that the cases cited above establish a procedure whereby the burden of proof shifts to the government after a plaintiff in a Federal Tort Claims Act case establishes the amount of and entitlement to damages to a reasonable degree of certainty. Dr. Meshkov's statements fulfill that standard with respect to the amount of, and DeCarlo's entitlement to, the expenses associated with a heart transplant.
In light of that evidence, the government has the burden of proof to show that DeCarlo's history of sporadic drug use undermines Dr. Meshkov's conclusions and disqualifies DeCarlo as a candidate for a heart transplant. Dr. Meshkov was aware of DeCarlo's history of drug use and despite that history, Dr. Meshkov concluded that DeCarlo "has a significant chance of becoming a candidate for a heart transplant." (Deposition Transcript, p. 22)
At its core, this issue actually relates to the likelihood that DeCarlo will refrain from using illegal drugs to undergo a heart transplant operation. The record does not support a conclusion that DeCarlo is addicted to any illicit drugs or used such drugs on a frequent or even regular basis. The evidence of DeCarlo's drug use consists solely of 5 instances of ingesting morphine between December 18, 1997, and March 15, 2002; the undisputed facts are that DeCarlo was found to have used morphine on December 18, 1997, September 10, 1998, January 26, 1999, September 28, 1999, and March 15, 2002. We are of the view that, under the circumstances of this case, 5 instances of drug use over a period of approximately 5 years does not establish a pattern or habit of drug use.
The government has not met its burden of demonstrating that DeCarlo will use drugs in the future and thereby forfeit the opportunity to undergo a heart transplant operation. Since the government has not produced sufficient evidence to support its contention that DeCarlo will continue to use illegal drugs, Dr. Meshkov's conclusions regarding the likelihood that DeCarlo will qualify for a transplant operation remain valid. DeCarlo is entitled to the $50,000.00 in future medical expenses associated with a heart transplant operation.
The third factual issue requires us to determine the amount of DeCarlo's future wage loss as a result of the government's negligence. The component of DeCarlo's damages based on future wage loss is the difference between what DeCarlo would have earned during the 17 years of his life after December 22, 1997, in the absence of the government's negligence and what he actually could earn in the reduced 10-year period of his life after December 22, 1997, in light of that negligence. This component of damages is further divided into the following three periods: 1) the first 5 years after December 22, 1997, during which DeCarlo will experience no wage loss because he was and will remain incarcerated; 2) the first 5 years following DeCarlo's release, which, according to our previous findings, are projected to be DeCarlo's last 5 years of life; and 3) the 7 years of life than DeCarlo would have had but for the government's negligence.
Our consideration of DeCarlo's future wage loss for the second and third periods begins with establishing a baseline figure of what he may still expect to earn in his present condition. It is undisputed that DeCarlo's heart attack and resulting physical restrictions have reduced the number of jobs in the labor market which he is physically able to perform. The evidence provided by the government's vocation expert indicates that as a result of his heart attack, limited education, incarceration, and relatively limited vocational skills, DeCarlo is qualified for sedentary and light unskilled or low-end semiskilled work. The vocational expert concluded that DeCarlo may anticipate obtaining employment that would pay $7.54 per hour; based on a 40-hour work week, DeCarlo would make $15,683.20 per year.
We note that there is no evidence indicating that this figure is in any way dependent upon the degree or severity of DeCarlo's heart condition. In other words, even if DeCarlo had been treated properly and there had been no negligence, the mere fact that he suffered a heart attack would limit the prospects of DeCarlo's employment to those described above (i.e., sedentary and light unskilled or low-end semi-skilled work paying $15,683.20 per year).
DeCarlo presented the deposition testimony of three prospective employers in an effort to establish the amount of money he could have made in the absence of the government's negligence. Those individuals were Mario Garafola, Richard Calabro, and Louis Venosa; each of them is affiliated with a construction company in the area where DeCarlo will live upon his release form prison. Garafola and Calabro initially testified that they would be willing to hire DeCarlo and pay him $16.25 per hour plus benefits, or $33,800 per year plus benefits assuming that DeCarlo worked 40 hours per week for 52 weeks each year. Veriosa testified that he would hire DeCarlo and pay him at a starting rate of $15.00 per hour, or $31,200 per year assuming that DeCarlo worked 40 hours per week for 52 weeks each year. The wage and salary figures provided by Garafola, Calabro and Venosa were based on the assumption that DeCarlo would work as a "B Man," or a laborer, doing "physical labor." (Exhibit P-149, p. 28; Exhibit P-151, pp. 15-16).
Although Garafola initially stated that DeCarlo could work for him as a laborer, he was subsequently asked if the offer remained open despite DeCarlo's "congestive heart failure." (Exhibit P-149, p. 28) Garafola replied as follows:
Well, if he had a mild heart attack, you know, I guess — I don't know anybody who works for me; there are people, you know, he could come to work without a doubt. But as far as moving stuff and have a very bad heart? No, because he can't work for me only because he becomes a liability. He becomes a liability to my company. If he drops dead on my job, my Insurance is — something's gonna happen. We'll be in a different deposition.
(Id., pp. 28-29).
Shortly before his deposition, Calabro was advised of the "fact that [DeCarlo's] had a heart attack and his life expectancy isn't long, that he can't perform work without tiring or without risk of crumbling, basically." (Exhibit P-151, p. 15) Based on those facts, Calabro stated that "[u]nfortunately, at this point I won't be able to use him." (Id., p. 14).
Venosa's deposition indicates that he was never informed of the fact that DeCarlo suffered a heart attack. However, Venosa's testimony indicates that the job to be made available to DeCarlo was practically identical to the positions described by Garafola and Calabro (i.e., a laborer performing physical work).
The testimony provided by Garafola, Calabro, and Venosa does not shed much light on the critical issue of whether they would have hired DeCarlo if he had been treated properly in the wake of his heart attack. That gap in the evidence is significant because it requires us to speculate as to what each of those three potential employers would have done if DeCarlo had been treated properly. Based on our reading of those three depositions, Garafola, Calabro, and Venosa presumed that DeCarlo was physically sound when they originally extended their employment offers to DeCarlo.
The mere fact that DeCarlo suffered a heart attack, regardless of any negligence on the part of the government, creates a substantial doubt that DeCarlo would have been able to work as a "B man," or a laborer, for Garafola, Calabro, or Venosa. DeCarlo has not met his burden of showing with reasonable certainty that he would have been hired by one of those three employers as a "B Man," or a laborer, if he had received the appropriate medical treatment immediately after his heart attack.
Based on the entire evidentiary record, DeCarlo has failed to show that the government's negligence has caused a reduction in wages he will earn during the remaining years of his life (i.e., the second period to be considered in connection with DeCarlo's future wage loss). However, DeCarlo remains entitled to $15,683.20 per year in lost wages for the third period, consisting of the 7 years that his mean life expectancy has been reduced. DeCarlo's total economic damages for the wage loss resulting from the government's negligence is $15,683.20 per year multiplied by those 7 years, or $109,782.40.
Before we address the total amount of damages to be awarded to DeCarlo, there is one element of DeCarlo's claim for future medical expenses which needs to be addressed. In its Trial Brief filed on December 27, 2001, the government "agrees that Plaintiff is entitled to recover for the costs of any future reasonable medical expenses . . . ." (Document 38, p. 9) The only evidence presented by DeCarlo in support of those expenses is the testimony of Dr. Meshkov.
There is no question that Dr. Meshkov's testimony regarding the following care and procedures fulfills DeCarlo's burden of proof as to the amounts stated: 1) $500.00 per year in office visits; 2) $600.00 per year for laboratory studies; 3) $1,920.00 per year for cardiac and pain medication; 4) $650.00 per year for EKG tests; 5) $1,500.00 per year for a stress test; and 6) $50,000.00 for a cardiac transplant. However, with respect to any future hospitalizations, Dr. Meshkov stated as follows:
I estimated that [DeCarlo] would require hospitalization, perhaps four to five times in a ten-year life span, and that the — again, the hospital charges for a week in the hospital would be in the range of $35,000.00 per hospitalization.
(Deposition transcript, p. 27) Although that portion of Dr. Meshkov's testimony supports an award of future medical expenses for 4 future hospitalizations, we are of the view that it is too tenuous to justify an award for a fifth hospitalization. Consequently, as part of DeCarlo's future medical expenses, the evidence supports an award of the costs of only 4 future hospitalizations.
We previously determinated that DeCarlo's mean life expectancy from December 22, 1997, was 10 years. It appears as though DeCarlo will be released from prison on December 28, 2002, which means that he will be responsible for his medical expenses for the remaining projected 5 years of his life. DeCarlo is entitled to a total amount of future medical expenses of $215,850.00.
The total figure of $215,850.00 is the sum of the following figure as: $2,500.00 (the cost of 4 office visits per year for 5 years), $3,000.00 (the cost of laboratory studies for 5 years), $9,600.00 (the cost of cardiac and pain medication for 5 years), $3,250.00 (the cost of an EKG each year for 5 years), $7,500.00 (the cost of a stress test each year for 5 years), $140,000.00 (the cost of 4 hospitalizations), and $50,000.00 (the cost of a heart transplant)
The final issue to resolve concerns the ultimate dollar value of the damages to be awarded to DeCarlo for pain and suffering, mental anguish, loss of enjoyment of life including reduction in life expectancy, future medical expenses, and future lost earning capacity. In the earlier portions of this opinion, we resolved the issues relating to future medical expenses and future lost earning capacity. Thus, the final matter facing us is the assignment of a dollar value to DeCarlo's non-economic damages — physical pain and suffering, mental anguish, and loss of enjoyment of life (which encompasses the decrease in DeCarlo's life expectancy).
Pennsylvania law requires an award of non-economic damages to include compensation for a plaintiff's physical pain and suffering, mental anguish, inconvenience, and loss of enjoyment of life including reduction in life expectancy. See McDonald v. United States, 555 F. Supp. 935, 971 (M.D. Pa. 1983) (Conaboy, J.) (citing Frankel v. Heym, 466 F.2d 1226 (3d Cir. 1972)). Beyond that requirement, the law provides no significant guidance to assist us in determining an appropriate award for DeCarlo's non-economic damages.
While the facts regarding DeCarlo's non-economic damages are set forth above in great detail in the findings of fact numbered 439 through 466, we briefly summarize here the most significant facts which have molded our determination as to the non-economic damages.
When DeCarlo experienced the symptoms of his heart attack on December 22, 1997, he was kept at Allenwood from early afternoon until approximately midnight. The delay of more than six hours in treating DeCarlo's myocardial infarction caused DeCarlo to suffer great pain, greatly limited the options available to treat his condition, and significantly contributed to damage to his heart. It is undisputed that DeCarlo had, as of January 2, 2002, experienced more than 1,460 days of physical pain and mental suffering, and that the pain and suffering would likely continue until DeCarlo's death. It is further undisputed that the government's negligence has reduced DeCarlo mean life expectancy by at least 7 years. Based on those facts, we are of the view that $450,000.00 will fairly and adequately compensate DeCarlo for his non-economic damages.
IV. Conclusions of law.
Conclusions of law 1, 2, and 4 through 10 (including 10) are undisputed by the parties.
1. The Defendant is liable to Plaintiff DeCarlo under the Federal Tort Claims Act for the following damages: a) compensation for past, present and future physical pain, mental anguish, and loss of enjoyment of life; b) future medical expenses; and c) future lost earnings.
2. Pennsylvania law applies to the calculation of damages to be awarded.
3. The damages standard under the Federal Tort Claims Act is compensatory.
4. Plaintiff DeCarlo is entitled to claim and recover for future consequences based on the probability of his hastened death.
5. The objective of compensatory damages is to place the Plaintiff in the same position in which he would have been if his injury had not occurred.
6. Elements to be considered by the court in determining damages for loss of enjoyment of life include the degree to which the physical condition impacts on the Plaintiff's ability to engage in recreational and household activities.
7. With respect to the damages to be awarded for future lost earning capacity, these damages are based on Plaintiff DeCarlo's prospective earnings for the balance of his life expectancy at the time of the injury (17 years), undiminished by any shortening of that expectancy as a result of the injury and harm arising from the negligence of Defendant.
8. In calculating the losses for physical pain, mental anguish, loss of enjoyment of life, and future medical expenses, these damages are calculated based on the assumption Plaintiff DeCarlo would have lived out his normal life expectancy of 17 years.
9. Reducing the period of time for calculating these damages to the life expectancy of Plaintiff DeCarlo as a result of the negligence of the Defendant would serve to reward the Defendant for its negligence.
10. It is appropriate to calculate the damages for physical pain, mental anguish, loss of enjoyment of life, and future medical expenses based upon the assumption Plaintiff DeCarlo would live to a normal life expectancy of 17 years had the Defendant treated Plaintiff DeCarlo according to the appropriate standard of care.
11. An award of $215,850.00 fairly and adequately compensates DeCarlo for future and medical expenses.
12. An award of $109,782.40 fairly and adequately compensates DeCarlo for his future wage loss.
13. An award of $450,000.00 fairly and adequately compensates DeCarlo for his past, present and future pain, mental anguish, and loss of enjoyment of life.
An appropriate order will be entered.
ORDER
The Clerk of Court shall enter a judgment in favor of Plaintiff Nunzio DeCarlo in the amount of $775,632.40.