Opinion
98 CV 6702 (THK).
November 27, 2000.
OPINION
This is an action for medical malpractice, brought under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2671, et. seq. The case arises of out medical treatment plaintiff James Ford received at the Manhattan Veterans Affairs Medical Center ("VAMC") for an injury to his right ring finger. Mr. Ford claims that the VAMC was negligent in its failure to provide timely and adequate post-surgical occupational therapy, as well as in its choice of suture material used to repair a tendon during surgery. He contends that as a result of defendant's negligence, his right hand has been permanently deformed and disabled. Nancy Ford, Mr. Ford's estranged wife, seeks damages for loss of consortium due to defendant's alleged negligence.
The parties consented to trial before me, pursuant to 28 U.S.C. § 636 (c), and I conducted a bench trial on September 11-18, 2000. Plaintiffs presented the following witnesses: Dr. Michael Rettig, a hand specialist consultant at the VAMC and the attending physician listed for Mr. Ford's first surgery; Dr. Raisa Kuchment, the VAMC rehabilitation medicine physician who prescribed Mr. Ford's initial course of occupational therapy; Dr. Frederic Newman, plaintiffs' expert; James Ford; and Nancy Ford. In addition to relying on the testimony of Drs. Rettig and Kuchment, defendant presented Dr. Steven Beldner, the VAMC orthopedic surgery resident who performed Mr. Ford's first surgery; and Dr. Robert E. Carroll, an expert in hand surgery. The following constitutes the Court's findings of fact and conclusions of law.
There is some dispute about whether Dr. Rettig was actually present at the surgery, but the dispute has no bearing on the outcome of this case.
FACTS
James Ford sustained an injury to his right ring finger on March 24, 1996, when he attempted to intervene in a fight. (Transcript ("Tr.") at 185.) That evening, Ford presented himself at the emergency room of the VAMC, complaining of a swollen and twisted right ring finger. (Joint Exhibit ("JX") 2 at 121.) After Dr. Steven Beldner, a chief orthopedic resident at the VAMC, examined Ford and reviewed radiographs of Ford's finger, he determined that the injury was a "complicated intraarticular fracture" of the proximal phalanx, involving comminution, displacement of the fracture fragments, and damage to the condyles. Dr. Beldner also concluded that the injury required a surgical procedure referred to as an "open reduction internal fixation" ("ORIF"), with replacement of some of the bone with an artificial bone graft. (Tr. at 1053, 1056.)
The proximal phalanx is the bone shaft of the finger that is closest to the palm of the hand. A fracture is intraarticular when it extends into the joint, which in Ford's case was the proximal interphalangeal ("PIP") joint, or the middle joint of the finger. Tr. at 315, 721.) Comminution refers to the extent to which the bone is fragmented, and indicates that there are three or more fragment pieces. (Tr. at 29, 315, 721.) Comminution may also refer to the presence of pieces that are too small to identify, indicating a shattering, or crushing, of the bone. (Tr. at 1053.) A fracture is displaced when the fragments are out of their anatomical position. (Tr. at 721.) The condyles are the "outer lip[s]," or "two shoulders," of the bone shaft that are adjacent to the articular surface. (Tr. at 32, 722.) A subsequent examination of Ford's finger revealed that the fracture was bicondylar, or that both condyles were fractured. (Tr. at 30.)
In an ORIF procedure, the reduction, or refiguration of the bone into a position approximating its anatomical position, is conducted after separating the soft tissue around the bone in order to expose the bone during surgery. (Tr. at 725.) In a closed reduction, the bone is manipulated without opening the skin. (Tr. at 725.) Internal fixation refers to the affixing of screws or wires to the bone in order to hold the refigured pieces together.
On March 26, 1996, Dr. Beldner performed an ORIF on Ford's right ring finger. (JX 2 at 192a.) Fixation was accomplished using a length of Kirschner wire and two screws. (Tr. at 1061-1062.) Collagraft, an artificial bone graft substance, was applied to an area of shattered bone near the PIP joint. (Id.) The extensor tendon, the tendon running along the top of the hand and over the PIP joint, was split longitudinally in order to provide access to the bone, and was repaired using Dexon, an absorbable suture material. (Tr. at 1069.) The operative report indicates that the Kirschner wire was "cut short underneath the skin to allow early range of motion." (JX 2 at 192a.) Ford was discharged the following day, on March 27. (Tr. at 193.) The parties are in agreement that the ORIF resulted in an excellent reduction.
Immediately following the surgery, Ford's right ring finger and three other fingers were placed into a temporary, non-removable splint. (Tr. at 67, 191.) On April 5, the VAMC removed the temporary splint, and placed Ford's middle, ring, and pinkie fingers into a permanent cast. (Tr. at 195.) The permanent cast was removed on April 19, and was replaced with a removable cast. (Tr. at 197-198.) In total, the splinting and subsequent casting prevented Ford from mobilizing his fingers post-surgically for three weeks and three days.
The VAMC medical records reflect that when the permanent cast was removed on April 19, Ford was instructed to begin exercising his fingers at home — specifically, to "wear splint daily and remove 3-4x to perform AROM [active range of motion] exercise and retrograde massage." (JX 2 at 167.) An appointment was also made for Ford to see a rehabilitation medicine physician. (Tr. at 198-199.) Defendant contends that immobilization of the fingers ended on April 19. Plaintiffs argue that Ford's medical record is inaccurate. Ford testified that although the VAMC informed him that he could remove the cast to wash his hands, he received no instruction to begin exercising his fingers at home. (Tr. at 198.) Rather, it was Ford's understanding that he would be advised how to exercise his fingers at his first occupational therapy appointment. Id. Plaintiffs also contend that Ford's right ring finger was in a flexion contracture on April 19, and that therefore, regardless of whether Ford was instructed to move this finger, he would not have been able to do so. (Tr. at 199, 334-335.) Plaintiffs argue that the Court should consider immobilization to have continued until Ford's first occupational therapy session.
Active range of motion exercises require the patient to move the injured area without external assistance. (Tr. at 509.) Other types of occupational therapy include active assisted range of motion, which consists of a therapist or the patient himself providing "gentle assistance" to the patient's active range of motion efforts; and passive range of motion, in which an occupational therapist mobilizes the finger beyond the extent to which the patient would be able to move the finger on his own. (Tr. at 124, 511, 762.)
The term "flexion contracture" indicates that the joint is immobilized at a certain degree of flexion. Flexion reflects the degree to which the joint is bent toward the palm, measured from a position of full extension. The record is unclear whether Ford was indeed in a flexion contracture on April 19. The evaluating doctor's notes from that date contain a downward arrow next to the notation for range of motion, which even plaintiff's expert conceded indicated merely a decreased, not zero, range of motion. (Tr. at 444, 446-447.)
The parties agree that by the time Ford saw Dr. Raisa Kuchment, a rehabilitation medicine physician, on April 22, he was unable to move the PIP joints of his middle and ring fingers. (Tr. at 516.) Based on the orthopedic department's recommendation and her own independent evaluation, Dr. Kuchment prescribed an occupational therapy regimen consisting of occupational therapy visits twice a week for one month, retrograde right hand massage to decrease swelling, active range of motion, and active assisted range of motion, with a recommendation that Ford return to the orthopedic clinic in one month. (Tr. at 512, 529; JX 2 at 168.) VAMC procedures required Ford to obtain this prescription before he could begin his occupational therapy. (Tr. at 506.)
Ford had his first occupational therapy session on April 25, 1996, four weeks and two days after the surgery, and six days after the cast was removed from his hand. Ford's occupational therapy visits occurred on a bi-weekly basis, and in addition to the treatment prescribed by Dr. Kuchment, included coban wraps and heat treatment. (JX 2 at 91.) In addition, Ford received instruction on a formal home exercise program, in which he was directed to massage his ring finger and do active range of motion exercises at least three times a day. (Tr. at 203-204; JX 2 at 91.) Ford's first follow-up visit to the orthopedic clinic occurred on May 17. Ford was examined by Dr. Sharon Hame, an orthopedic surgery resident, who measured the PIP joint of Ford's right ring finger at thirty degrees flexion. (JX 2 at 92.) Dr. Hame ordered that Ford "cont[inue] therapy aggressively." (Id.) By May 31, 1996, the PIP joint of Ford's right ring finger measured at a flexion contracture of fifty-seven degrees, with movement up to sixty-five degrees. (Tr. at 560-561.) Compared to measurements taken on April 25, in which the PIP joint was immobilized at fifty degrees, Ford's flexion contracture had increased seven degrees, but he had gained eight degrees of motion. (Tr. at 561-562.) Ford continued with the same occupational therapy regimen until June 7, 1996.
On June 7, an orthopedic resident examined Ford and noted that the PIP joint was again immobilized. (Tr. at 357; JX 2 at 169.) The resident referred Ford to a rehabilitation medicine physician, and on June 10, that doctor prescribed passive range of motion and strengthening exercises. (JX 2 at 169.) Subsequently, Ford's occupational therapist, Elizabeth McGuire, introduced passive range of motion and a wider array of hand exercises, and Ford was fitted with a metal splint with attached rubber bands designed to extend his fingers. (Tr. at 211-212.)
Ford attended all of his occupational therapy sessions and orthopedic clinic visits until June 20, 1996. (Tr. at 649.) Ford testified that in late June, he informed McGuire that he had seen very, very little progress," was "experiencing some marital problems," and that he was going to discontinue therapy for a "couple of weeks" until he "got some things straightened out." (Tr. at 213.) On September 3, 1996, McGuire wrote an occupational therapy discharge summary, stating that Ford had missed ten consecutive occupational therapy sessions, that he "did not achieve OT [occupational therapy] goals secondary to excessive no-shows, " and that he was being discharged from occupational therapy "secondary to" these no-shows. (JX 2 at 191.)
Following his discharge from occupational therapy, Ford visited the orthopedic clinic again on September 27, 1996. During this visit, Dr. Lusskin, the head of the orthopedics department, informed Ford that "there was very little that could be done for [Ford's] finger," and he mentioned the possibility of having the PIP joint fused through an arthrodesis. (Tr. at 215.) On October 4, Dr. Rettig, a hand specialist consulting with the VAMC, examined Ford and recommended a tenolysis of the extensor tendon and a capsulotomy of the PIP joint. (JX 2 at 140.) Dr. Rettig performed the surgery on October 22. Post-surgically, in the operating room, Ford was able to "make a fist and extend his fingers." (Tr. at 140; JX 2 at 195.) Ford began both active and passive range of motion exercises immediately following the surgery. (JX 2 at 195.)
In an arthrodesis, bones are fused, or welded, at a fixed degree of flexion.
In a tenolysis procedure, adhesions that have formed on the tendon are dissolved in order to "free up" scar tissue and thereby facilitate movement of the tendon. (Tr. at 56, 137.) In a capsulotomy, the capsule, or the membranous substance enveloping a joint, is incised in order to "install movement." (Tr. at 56.)
Despite the initial improvement shown in the operating room, by October 30, 1996, the PIP joint of Ford's right ring finger was again in a flexion contracture, measured at fifty-five to fifty-eight degrees. (JX 2 at 179.) Ford continued with occupational therapy, but there was no significant improvement. On November is, Dr. Lusskin examined Ford and again discussed the option of having an arthrodesis performed on Ford's PIP joint to facilitate "ADL" (activities of daily living). (Tr. at 142; JX 2 at 96.)
Ford later sought a second opinion at St. Luke's-Roosevelt Hospital on March 13, 1997, and was informed that the only option for improving the functioning of his right ring finger would be an arthrodesis.
The VAMC discharged Ford from occupational therapy on January 27, 1997. (Tr. at 144.) At the time of discharge, Ford's PIP joint was in a flexion contracture of fifty-five degrees with thirty degrees range of motion. A hand function evaluation indicates that upon discharge, he was able to use his right hand in a normal manner to hold a glass, fasten buttons and hooks, tie shoes, write, handle money, turn a key in a lock, use scissors, and cut food with a fork and knife. (JX 2 at 185.) With the help of compensatory motions, Ford was able to place items into, and remove items from, his pocket, and open jars and doors. (Id.) There were no functions for which Ford was tested that he was completely unable to perform. (Id.)
Medical evaluations conducted by the parties' experts in January and August of 1999 determined that the thumb, index, and middle fingers of Ford's right hand were capable of a normal range of motion, and that the right pinkie finger had lost some ability to flex, but was functional. (Tr. at 373, 797.) In January of 1999, Dr. Carroll, defendant's expert, measured a sixty degree fixed flexion contracture in the PIP joint of Ford's right ring finger. (Tr. at 800.) In his August 1999 evaluation, Dr. Newman measured a fixed flexion contracture of eighty-five degrees. At the time of trial, Ford testified that he still suffered from functional limitations in his right hand. He testified that he could no longer sustain prolonged writing, needing to stop and massage his hand after filling one-half of a legal pad. (Tr. at 261, 262.) His ability to use a typewriter had also been impaired, as he could no longer fully utilize both hands to type. (Tr. at 262.) Ford further testified that he could no longer engage in athletic activities with his children, such as basketball and golf, and could no longer do "handyman" tasks around the home. (Tr. at 261, 262.) He feels numbness and pain in his hand, particularly in the cold, or when he attempts to move his right ring or pinkie fingers. (Tr. at 257-258.) In addition, Ford is limited to using his thumb, index, and middle fingers to grip objects, and is no longer able to grasp or clutch larger objects such as a bottle or glass. (Tr. at 262, 801.)
DISCUSSION
Under the FTCA, the liability of the United States for the negligent acts of its agents is governed by the law of the state in which the alleged negligence occurred. See 28 U.S.C. § 1346(b)(1); Since the allegedly negligent acts of the Manhattan VAMC staff are the basis of plaintiffs' action, New York law governs this case.
To establish a claim for medical malpractice under New York law, a plaintiff must prove (1) that the defendant breached the standard of care in the locality where the treatment occurred, and (2) that the breach was a proximate cause of the plaintiff's injuries. See Arkin v. Gittleson, 32 F.3d 658, 664 (2d Cir. 1994) (citing New York law); accord Milano v. Freed, 64 F.3d 91, 95 (2d Cir. 1995 (citing Arkin and New York law). A physician breaches the standard of care if he either (1) lacks or fails to exercise the level of knowledge, care, and skill that is expected of the average physician in the same locality and of the same class of physicians to which he belongs, or (2) fails to use his best judgment in applying his knowledge and skill. See Sitts v. United States, 811 F.2d 736, 739 (2d Cir. 1987) (citing New York law); Perez v. United States, 85 F. Supp.2d 220, 222 (S.D.N.Y. 1999) (citing New York Pattern Jury Instruction for medical malpractice); Pike v. Honsinger, 155 N.Y. 201, 209 (1898); Littlejohn v. State of New York, 451 N.Y.S.2d 225, 226 (3d Dep't 1982). Generally, whether such a deviation occurred and whether it constituted proximate cause must be proved through expert testimony. See Sitts, 811 F.2d at 739. Proximate cause is established if the deviation was a "substantial factor" in producing the injury. See Perez, 85 F. Supp.2d at 222;Dunham v. Village of Caisteo, 303 N.Y. 498, 505 (1952);Stewart v. New York City Health and Hosp. Corp., 616 N.Y.2d 499, 500 (1st Dep't 1994).
In this case, plaintiffs do not take issue with either of the two surgeries performed on Ford's finger, nor with the occupational therapy provided following the second surgery. Indeed, plaintiffs have acknowledged that the first surgery achieved an excellent reduction, and that the VAMC acted reasonably in conducting the second surgery and in its subsequent provision of post-surgical care. Plaintiffs' primary malpractice claim focuses instead on the VAMC's provision of post-surgical care following the first surgery. Plaintiffs allege that this post-surgical care deviated from accepted medical standards because (1) the VAMC immobilized Ford's fingers for an excessive length of time; and (2) the VAMC failed to provide timely and sufficiently aggressive occupational therapy. In light of the evidence presented at trial, the Court cannot conclude that plaintiffs have satisfied their burden of establishing, by a preponderance of the evidence, that the VAMC committed medical malpractice. See Metzen v. United States, 19 F.3d 795, 807 (2d Cir. 1994) (plaintiff bringing a medical malpractice action under the FTCA must establish, by a preponderance of the evidence, that treating physicians caused patient's injuries by breaching their duty of care);Perez, 85 F. Supp.2d at 226 (same).
Although plaintiffs claim that the VAMC deviated from the standard of care by using Dexon as a suture material during the first surgery, this claim is unsupported by the record and merits little discussion. Plaintiffs contend that accepted standards of medical practice require the use of unabsorbable, nylon sutures to repair tendons during an ORIF surgery because absorbable sutures cause inflammation, which hampers tendon movement. Plaintiffs' expert, Dr. Newman, testified to this view, stating that "we all" [doctors conducting these types of surgeries] use nylon filament, nonabsorbable and leave it in there." (Tr. at 364.) However, Dr. Newman's position was contradicted by an article in a widely-respected hand surgery journal which included absorbability as a characteristic of an ideal suture material for tendon repair. (Tr. at 637.) In addition, Dr. Carroll, Dr. Rettig, and Dr. Beldner uniformly and credibly testified that Dexon was the standard material used for this type of tendon repair, and was the material they regularly used for this type of procedure. (Tr. at 163-164, 774-776, 1069.) In addition, Dexon is the material that Dr. Carroll and Dr. Rettig continue to teach their students to use for this procedure. (Tr. at 164, 775.) If the evidence presented at trial supports any conclusion, it is that Dexon is the suture of choice for the type of tendon repair that Ford received.
The Court concludes, as discussed below, that the length of immobilization did not constitute a deviation from accepted standards of medical practice. Futher, although Ford's initial therapy regimen was consistent with accepted standards of medical practice, the VAMC should have intensified Ford's therapy regimen earlier than it did. Nevertheless, the evidence is insufficient to establish that this failure was a proximate cause of Ford's disability.
I. Length of Immobilization
As an initial factual matter, the Court does not accept plaintiffs' position that Ford's fingers were kept immobilized until April 25, 1996, when he had his first occupational therapy session. The Court finds, instead, that mobilization efforts began on April 19, when Ford's cast was removed, he was provided with a removable splint, and when the medical record reflects that he was instructed to begin active range of motion exercises at home three to four times a day, along with massage of his hand. (Tr. at 197-198.) (JX 2 at 167.) The question before the Court, then, is whether immobilization until April 19, or three weeks and three days post-surgically, was a deviation from accepted medical standards.
Although Ford contends that he never received this instruction, he was not credible on this point. His assertion is contradicted by both his medical record and by the testimony of Dr. Kuchment, who stated that it is standard procedure at the VAMC after removal of a cast, for a patient to be instructed to begin attempting to move the casted area. (Tr. at 583-584, 742, 1025-1026.) In any event, whether or not he received the specific instruction, there is no dispute that the cast was removable, and even Ford concedes that he was at least instructed to remove the cast to wash and massage his hands. (Tr. at 198.) Under these circumstances, the Court cannot conclude that Ford's fingers were kept immobilized after April 19.
Plaintiffs further contend that even if Ford was instructed to mobilize his fingers on April 19, the instruction was futile because the PIP joint of Ford's right ring ringer was in a flexion contracture on April 19. However, the Court credits Dr. Carroll's and Dr. Kuchment's views that a patient's effort to mobilize a joint, even where initially unsuccessful, is a useful first step toward eventual mobilization (Tr. at 549, 586, 761.)
As might be expected, plaintiffs' and defendant's experts provided widely divergent views as to the appropriate standard of care. Plaintiffs' expert, Dr. Newman, testified that the proper course of treatment following an ORIF of a fracture such as Ford's would be immobilization for one week, with initiation of mobilization exercises by, at the latest, the tenth day following surgery. (Tr. at 323-324, 333.) Dr. Newman testified that there is a "pretty precipitous drop" in the long-term recovery of range of motion where immobilization exceeds ten days, with less effective results for each successive week that the fingers remain immobilized. (Tr. at 339.) Thus, in Dr. Newman's view, the VAMC's decision to keep Ford's fingers immobilized for three weeks and three days, first in a splint and then in a cast, deviated from the accepted standard of care. Furthermore, because of the direct correlation between the length of immobilization and loss of flexion, Dr. Newman believed that the immobilization was a substantial factor contributing to Ford's current disability.
Dr. Newman is a board-certified plastic and reconstructive surgeon whose practice includes, in addition to hand surgery, post-mastectomy breast reconstruction, cosmetic surgery, and the correction of facial skin cancers. (Tr. at 305.)
Dr. Newman asserted that there would not have been any real risk to initiating mobilization seven to ten days after surgery. Because the reduction was "stable" and "fixed well," it was "not going to move virtually no matter what you do to it." (Tr. at 317, 443.) By seven to ten days, the bone fragments would have been sufficiently "stuck together," or healed, to support motion. (Tr. at 443.) In addition, mobilization would actually have helped the healing process by increasing the flow of blood into the injured area. (Tr. at 443-444.)
Defendant's expert, Dr. Carroll, contradicted Dr. Newman in almost every respect. According to Dr. Carroll, mobilizing a fracture like Ford's, which he regarded as very severe, at seven to ten days would "probably damage the whole reconstruction." (Tr. at 723, 748.) The screws and wire provided enough support to hold the bone fragments together until a callus, or new bone growth, formed to reattach the bone fragments; however, the fixation devices would not have been strong enough to support the additional stress caused by motion. (Tr. at 746-747.) Dr. Carroll further testified that motion generally should not begin until the bone has developed a sufficient amount of callus to prevent further bone injury, and there has been post-surgical healing of the tendon split. (Tr. at 743.) If motion is attempted before the tendon can heal, approximately three weeks post-surgically, "motion would be lost to the joint." (Tr. at 744.) Contrary to Dr. Newman's position that mobilization would facilitate healing by pumping additional blood into the injured area, Dr. Carroll stated that in an injury like Ford's, where blood vessels had been damaged, additional blood flow would only be helpful after new blood vessels capable of handling the blood had had time to develop. In sum, Dr. Carroll concluded that immobilization for three weeks and three days was not a deviation from the standard of care, and in fact that as a general matter, mobilization should not be initiated prior to three weeks. (Tr. at 751, 752.)
Dr. Carroll is a board-certified orthopedic surgeon with a subspecialty in surgery of the hand. (Tr. at 702.) Formerly the chief of the hand surgery division at Columbia Presbyterian Hospital ("CPH") from 1950 until 1986, he is now a hand specialist consultant with CPH. (Tr. at 704-705.) For twenty-five years, Dr. Carroll was a professor in the specialty of hand surgery at Columbia Medical School. (Tr. at 704-705.)
In light of the other evidence presented at trial and the relative experience and credentials of the two experts, Dr. Carroll's position is deserving of greater weight. Although the evidence suggests that there are select circumstances in which mobilization could begin earlier than three weeks, it also supports Dr. Carroll's ultimate conclusion that immobilization for three weeks and three days did not constitute a deviation from the accepted standard of care.
The medical literature introduced by the parties was of marginal usefulness. Because it was not clear whether the various articles addressed all of the complicating factors involved in Ford's fracture (i.e., comminution, damage to the articular surface, displacement of both condyles, and surgical repair requiring splitting of the extensor tendon), their relevance was questionable. However, viewing the articles collectively, they did support the proposition that although mobilization could sometimes begin at around seven to ten days or even earlier, it was generally considered appropriate to keep a fracture like Ford's immobilized for approximately three weeks, with one study finding that there was no meaningful difference between immobilization for three and for four weeks. (Tr. at 753-758, 819-820, 835-836, 839-840, 886, 1025.)
The testimony of Dr. Rettig and Dr. Beldner also supported this conclusion. Plaintiffs placed a great deal of emphasis on Dr. Beldner's note in the operative report indicating that the Kirschner wire had been cut short underneath the skin "to allow early range of motion." (JX 2 at 192a.) According to Dr. Newman, the "common understanding in the hand surgery community" as to the meaning of "early range of motion" is mobilization "within the first few days following surgery," and "certainly by day 7 to 10 maximum." (Tr. at 319.) However, Dr. Beldner testified that at the time he made the notation, he had used the phrase to refer to mobilization within two to four weeks. (Tr. at 1059-1061.) Although Dr. Beldner acknowledged that he had mobilized patients after ten to fourteen days, he explained that that would have been unadvisable in Ford's case because of the high degree of comminution of the fracture, and because the repair involved both a bone graft and the use of Kirschner wires. Dr. Rettig similarly testified that although some comminuted fractures could be mobilized at ten to fourteen days, it was consistent with his current practice to immobilize a more severely comminuted fracture like Ford's for three to three and a half weeks. (Tr. at 79, 91, 161.)
Although Dr. Rettig and Dr. Beldner were called as fact, and not expert, witnesses, both parties asked their opinions on standard practices. The Court also notes that several factors lend credibility to their testimony. Neither is alleged to have acted negligently in this case. Dr. Beldner performed the first surgery, and Dr. Rettig the second; plaintiff has acknowledged that both surgeries were performed satisfactorily. In addition, Dr. Beldner is no longer even affiliated with the VAMC. (Tr. at 1049.)
Dr. Beldner explained that for cases involving bone grafting, he typically immobilized fractures for eight weeks; and he typically immobilized injuries involving wire fixation, which was not as secure as a fixation done exclusively with screws, for three to four weeks. (Tr. at 1060, 1064.) It was in the context of potentially immobilizing the, fracture for up to eight weeks that Dr. Beldner had noted "early range of motion" to refer to a much shorter immobilization period of two to four weeks.
Finally, the Court has considered the relative credentials and experience of the two experts. While not questioning Dr. Newman's qualifications as a plastic and reconstructive surgeon, the Court does find it significant that he is not board-certified in either orthopedic or hand surgery, and that hand surgery comprises only twenty to twenty-five percent of his practice, with less than five percent devoted to phalangeal fractures. (Tr. at 397, 399, 406.) In contrast, Dr. Carroll has devoted most of his career to the subspecialty of hand surgery. In addition to being the Chief of the hand surgery division at Columbia Presbyterian Hospital, he has held official positions in several organizations dedicated to the advancement of hand surgery, and of orthopedic surgery in general. (Tr. at 712-713.) These organizations include the American Society for Surgery of the Hand, the Association of Bone and Hand Surgeons, and the New York Society for Surgery of the Hand. (Id.) In his capacity as a professor of medicine at Columbia Medical School, Dr. Carroll has trained a significant number of the country's most prominent hand surgeons, including the current or former chiefs of hand surgery at Jefferson Medical School, the University of Pennsylvania, the Mayo Clinic, and other leading medical institutions. (Tr. at 706.) He has published widely in the field of hand surgery. (Tr. at 713-714.) Finally, not only is he certified by the American Board of Orthopedic Surgery, but Dr. Carroll has authored the Board's qualifying examination for its subspecialty certification in hand surgery. (Tr. at 709.) In light of his experience, and his significant contributions to the field of hand surgery, Dr. Carroll's conclusions that immobilization for three weeks and three days was appropriate, and that mobilization prior to that date would have been potentially dangerous, merit substantial weight.
While the Court credits Dr. Carroll's testimony on this issue, the Court does not rely solely on his credentials, nor was it persuaded by all of Dr. Carroll's testimony. For example, as discussed below, the Court did not find Dr. Carroll's testimony regarding Ford's progress in occupational therapy to be particularly persuasive.
In sum, the Court finds that plaintiffs have not established, by a preponderance of the evidence, that the splinting and subsequent casting of Ford's fingers for three weeks and three days constituted medical malpractice. II. Timing and Level of Occupational Therapy
Even if the Court were to accept plaintiffs' contention that immobilization extended to four weeks and two days, the Court still would not be able to conclude that this was a deviation from accepted standards of medical care. Although the question certainly would be a closer one, at least one medical study reviewing the effect of immobilization found little difference in ultimate mobility between fractures immobilized for three and for four weeks, and the record does not support a conclusion that the marginal increase of two days of immobilization constitutes malpractice. (Tr. at 451, 886-887, 1025.)
Having rejected plaintiffs' first claim, the Court turns to plaintiffs' contention that the VAMC's decision to wait until June 10 to implement passive range of motion was a deviation from accepted standards of medical practice. According to Dr. Newman, the accepted standard would have required the VAMC to hold Ford's first occupational therapy appointment on April 19, the day the cast was removed, and to begin "aggressive" therapy, including passive range of motion, at that time. (Tr. at 333.)
Dr. Newman did not clearly specify what "aggressive" therapy would entail, but he did testify that he would not characterize a therapy regimen including active and active assisted range of motion, but not passive range of motion, as being "aggressive." (Tr. at 355.) In addition, Dr. Newman took the position that passive range of motion, preferably done along with heat treatment, was the only way, short of surgery, to effectively induce motion in a fixed joint. (Tr. at 337.) Since Dr. Newman credited Ford's contention that the PIP joint of his right ring finger was immobilized on April 19, the reasonable conclusion would be that, in Dr. Newman's view, passive range of motion should have been included in the initial therapy.
Plaintiffs argue that because Ford did not see an occupational therapist until April 25, the VAMC essentially did nothing to help mobilize Ford's finger until that date. However, as the Court has already discussed, we credit the notation in the medical records that Ford was instructed on April 19 to begin active range of motion exercises and retrograde massage at home three to four times a day. (JX 2 at 167.) We also credit Dr. Carroll's and Dr. Kuchment's testimony that efforts to mobilize a joint, even where the patient is initially unable to achieve motion, can be useful first steps toward ultimate mobilization. (Tr. at 549, 586, 761.) In addition, the Court finds that the VAMC did not act unreasonably in scheduling the first occupational therapy appointment for April 25. VAMC procedures require a patient to see a rehabilitation medicine physician before beginning occupational therapy. (Tr. at 506.) Ford's cast was removed on April 19, a Friday. Ford saw a rehabilitation medicine doctor on the next day the VAMC clinic was open, Monday, April 22. (Tr. at 588.) Ford went to his first occupational therapy appointment three days later, on Thursday, April 25. There is no basis to conclude that this delay was unreasonable, especially since Ford was instructed to mobilize his fingers during this time.
As for plaintiffs' argument that passive range of motion therapy should have started immediately on April 19, plaintiffs did not support this position with any evidence that passive range of motion was generally required immediately upon removal of a cast, or even that there was a standard time frame for the initiation of passive range of motion. Rather, they relied solely on Dr. Newman's testimony that because the condition of Ford's fingers on April 19 constituted an emergency situation, it required the emergency response of starting Ford immediately on passive range of motion, an extremely aggressive form of occupational therapy.
Dr. Carroll testified that it would not have been appropriate to begin occupational therapy with passive range of motion. (Tr. at 763.) He explained that therapy should be a graduated process, in part because passive range of motion is a "double-edged sword". (Tr. at 763.) While an occupational therapist employing passive range of motion can mobilize a joint further than a patient's own capacity, this type of therapy is dangerous for exactly that reason. (Tr. at 763.) By forcing too much movement in a joint too early, tearing of the scar tissue can result, causing additional scarring and further jeopardizing mobilization. (Id.) Dr. Kuchment corroborated Dr. Carroll's testimony, stating that passive range of motion is "only done late," and "[is not] recommended [at the beginning of therapy] usually." (Tr. at 511.) Although Dr. Newman argued that passive range of motion would not be dangerous in the hands of a skilled therapist because the therapist would not overextend the joint, he conceded that a therapist would be unable to independently gauge whether the joint was overextended, and that overextension could cause inflammation, swelling, and scar tissue. (Tr. at 462.) The Court credits Dr. Carroll's and Dr. Kuchment's testimony that there were legitimate concerns weighing against initiating passive range of motion at the start of Ford's occupational therapy. Therefore, the Court cannot conclude that the initial therapy regimen of retrograde massage, active range of motion, active assisted range of motion, coban wraps, and heat treatment was unreasonable because it did not also include passive range of motion.
Plaintiffs additionally claim that even if it was acceptable for the VAMC not to begin passive range of motion on April 19, the VAMC deviated from accepted medical standards by waiting until June 10 to initiate it. Based on their position that passive range of motion should have started on April 19, plaintiffs' argument essentially is that every day beyond April 19 that this therapy was not provided constituted a deviation from accepted medical standards. Since the Court has rejected plaintiffs' claim that passive range of motion should have commenced on April 19, this logic carries little weight.
The weight of the evidence does establish, however, that by May 17 or soon thereafter, the VAMC should have intensified Ford's occupational therapy by adding passive range of motion and/or increasing the amount of therapy Ford was receiving. May 17 was approximately one month after Ford's initial orthopedic clinic visit, and was the date of Ford's first follow-up visit to the orthopedic clinic. Dr. Kuchment testified that follow-up appointments in the orthopedic clinic were normally scheduled after one month because it was considered proper to "progress therapy to . . . passive range of motion" at that time. (Tr. at 556.) The orthopedic clinic staff would determine whether passive range of motion was appropriate for a given individual patient, and would make a recommendation to rehabilitation medicine for any changes in treatment. (Id.)
On May 17, Ford was examined by Dr. Sharon Hame, an orthopedic surgery resident. The record reflects that on that date, Dr. Hame's attention was drawn in a more specific way to the question of whether Ford needed a change in his occupational therapy. Elizabeth McGuire, Ford's therapist, had written a note to the orthopedic clinic in which she described Ford's occupational therapy program and asked the clinic to "write orders if there is a change in tx [treatment] recommendation." (JX 2 at 91.) Yet, after examining Ford, Dr. Hame ordered that Ford should "cont[inue] therapy aggressively," without noting any specific changes to the therapy. (JX 2 at 92.) Ford's occupational therapy regimen did not change after the May 17 visit, and remained unchanged until June 10.
The failure to intensify or alter Ford's occupational therapy after the May 17 examination was a deviation from accepted standards of medical practice. The record shows that at the May 17 visit, Dr. Hame significantly mismeasured the flexion contracture in the PIP joint of Ford's right ring finger at thirty degrees. Drs. Newman, Carroll, and Beldner were all asked, either at or prior to trial, to examine an x-ray of Ford's right hand taken on May 16, and all measured the flexion contracture at greater than thirty degrees. Dr. Newman measured the contracture at approximately sixty or seventy degrees, Dr. Carroll at greater than fifty degrees, and Dr. Beldner at forty-five to fifty degrees. (Tr. at 607, 909, 1138.) Dr. Hame's error casts significant doubt on the propriety of her treatment recommendation. Although her notes do not reflect any reasons for her decision to continue Ford's therapy regimen without change, it appears that her decision was based, at least in part, on an erroneous conclusion that Ford was making much greater progress than he actually was. In fact, the contracture of the PIP joint had not changed, or had gotten worse since his cast had been removed. At the very least, Dr. Hame's measurement error indicates an unacceptable level of carelessness in her examination.
Although Dr. Carroll stated that the x-ray merely reflected the position Ford's hand was placed in at the time, he also conceded that it was unlikely that the PIP joint would have been at a thirty degree flexion contracture on May 17, considering that it was measured at a fifty degree flexion contracture on April 25, and at a fifty-seven degree flexion contracture with some movement on May 31. (Tr. at 911.)
Defendant argues that the degree of Ford's flexion contracture on May 17 is irrelevant because Ford made acceptable progress between April 25 and May 31. (Tr. at 1178.) Defendant emphasizes that Ford gained eight degrees in his range of motion, and that his overall hand function improved. (Id.) However, even defendant's expert, Dr. Carroll, described this increase in movement as "modest," and found that Ford's hand function "[had] not increased a great deal," having improved only with the use of compensatory motions. (Tr. at 764, 767.) Despite this concession, Dr. Carroll touted the minimal increase in flexion as a significant positive indicator of the propriety of the therapy, while at the same time characterizing the seven degree increase in contracture as being insigificant. (Tr. at 764) Dr. Carroll's testimony reflected a bias for defendant on this issue, and the Court credits Dr. Newman's view that the increased flexion contracture should have caused concern. (Tr. at 350.)
Dr. Carroll's bias was further reflected in his testimony that patients who missed occupational therapy visits damaged their chances for recovery, while similar failures of a therapist to keep occupational therapy appointments would not be damaging to a patient's progress. (Tr. at 918-919.) While Dr. Carroll's medical and surgical expertise merit deference to his views on the initial post-surgical treatment, the same cannot be said of his attempt to rationalize the VAMC's later course of therapy.
Given the very modest increase in the flexion in Ford's finger, and the deterioration of the contracture of the finger between April 19 and May 17, and based upon its one-month assessment, the VAMC should have intensified Ford's therapy regimen, if not altered it to include passive range of motion. Even Dr. Carroll agreed that the growth of additional scar tissue was a major cause of the increased contracture, and that moving the finger was the only way, short of surgery, to break up the scar tissue. (Tr. at 766, 884.) As discussed above, Dr. Kuchment testified that at the VAMC, it was generally considered appropriate to initiate passive range of motion after one month of therapy. (Tr. at 556.) No one from the VAMC provided an explanation for why, after one month, Ford's occupational therapy regimen was not altered. Nor did Dr. Carroll provide any credible reason why passive range of motion should not have been started at this time. In fact, in supporting his conclusion that it was appropriate to begin passive range of motion on June 7, Dr. Carroll stated that because Ford's tendon would have healed by that time, the VAMC could "add a very judicious passive range of motion." (Tr. at 769.) In light of Dr. Carroll's testimony that it normally takes three weeks post-surgically for a tendon to heal, the Court sees no reason why the same rationale would not also apply to commencing passive range of motion on May 17, over seven weeks after Ford's surgery. (Tr. at 744.) Finally, even Dr. Carroll conceded that Dr. Hame's note that therapy was to continue "aggressively," suggested that different modalities of therapy, or at the very least additional occupational therapy sessions, were needed. (Tr. at 900, 1029.) This did not occur.
The only support Dr. Carroll provided was the potential for passive range of motion to create additional scar tissue. (Tr. at 1030.) He testified that he would not initiate passive range of motion if there was "success with the ordinary active, active assisted, and his [Ford's] own range of motion." (Id.) However, as discussed above, the Court does not accept Dr. Carroll's assessment that the initial course of therapy produced "success." While the active and active assisted range of motion produced some minimal increase in movement, it made no difference in the contracture, which actually grew worse after one month of the initial therapy regimen.
Although the Court finds that the VAMC should have intensified or altered Ford's therapy regimen on or soon after May 17, it cannot find that the failure to do so was a proximate cause of, or "substantial factor" contributing to, Ford's current disability. A finding that there was a deviation from accepted standards of medical practice does not require a conclusion that the deviation was a proximate cause of a plaintiff's injuries. See Perez, 85 F. Supp. at 231 (finding that while the VAMC deviated from accepted medical standards by prematurely removing plaintiff's catheter, the evidence was insufficient to establish that this departure was a proximate cause of plaintiff's injuries); Brown v. State of New York, 596 N.Y.S.2d 882, 884, (3d Dep't 1993) (affirming Court of Claims determination that although claimant established there was an unnecessary delay in treatment, he failed to establish that these delays were a proximate cause of his injury). In New York, it is plaintiff's burden to produce expert testimony to establish not only that there was a deviation, but also that the deviation was a substantial factor contributing to the ultimate disability. See Marson v. United States, No. 84 Civ. 7348 (MJL), 1987 WL 12407, *7 (S.D.N.Y. Jun. 5, 1987) ("Expert testimony is generally required to establish both that the standard of care has been violated and that this was the proximate cause of plaintiff's injury.") (citing Sitts, 811 F.2d at 740).
Both parties agree that the orthopedic clinic altered Ford's therapy on June 10 by adding passive range of motion and strengthening exercises. (Tr. at 1220; JX 2 at 93.) Thus, the Court is presented with the narrow question of whether a delay of approximately three weeks in intensifying the therapy was a substantial factor in causing the deformity and loss of functionality in Ford's hand.
The issue presented here raises one of the most difficult kinds of causation problems. As the New York Court of Appeals has stated,
The issue of causation in medicine is always difficult but, when it involves the effect of a failure to follow a certain course of treatment, the problem is presented in its more extreme form. We can then only deal in probabilities since it can never be known with certainty whether a different course of treatment would have avoided the adverse consequences.Toth v. Community Hosp. at Glen Cove, 22 N.Y.2d 255, 261 (1968). In the instant case, the usual difficulties are compounded by plaintiffs' failure to produce evidence even of probabilities. Although plaintiffs elicited testimony from their expert about whether failure to intensify or alter Ford's occupational therapy on May 17 was a deviation, they failed to elicit any specific testimony about whether this deviation also constituted proximate cause.
The only portions of Dr. Newman's testimony that arguably addressed this issue were vague and insufficient to support a finding of proximate cause. In response to plaintiffs' counsel's question of whether the "delay in performing therapy" or "failure to change therapy" was "the proximate producing cause" of Ford's lack of progress after the tenolysis procedure, Dr. Newman responded, "[i]t obviously would have been much better if he had had the intervention earlier." (Tr. at 370-371.) Dr. Newman's statement covered his general criticisms of the overall therapy regimen Ford received, some of which the Court has determined to be acceptable. Counsel failed to direct Dr. Newman's attention to any specific aspect of the therapy, and Dr. Newman's response that it "would have been much better" is hardly a conclusion that had the therapy regimen been changed three weeks earlier, it would have produced a different result.
Dr. Newman also testified generally that if the VAMC had treated Ford in the manner Dr. Newman recommended, the result would have been "a good useful hand." (Tr. at 387.) This conclusion was based on his views of the VAMC's entire course of post-surgical treatment, including the length of casting. Moreover, the testimony failed to specify what effect, if any, a change in any one aspect of the. therapy would have had. Dr. Newman's view was speculative, and undermined by the fact that he significantly underestimated the severity of Ford's fracture. Dr. Newman was alone in his assertion that Ford's fracture was not severely comminuted, that the prognosis was good, and that with appropriate occupational therapy, Ford should have had a "good useful" hand. (Tr. at 315.) Both Dr. Carroll and Dr. Beldner testified that in addition to the bone fragments that were large enough to support reduction, there was shattering, or crushing, of the bone near the PIP joint. (Tr. at 824, 1053.) Indeed, the medical record reflects that a bone graft was needed to repair the shattered area. (Tr. at 1067; JX 2 at 192a.) Dr. Carroll and Dr. Rettig each testified that they would rank Ford's fracture as a nine or ten on a scale of one to ten, with ten being the most severe. (Tr. at 156, 723.) Dr. Beldner testified that Ford's fracture was one of the worst he had ever seen. (Tr. at 1054.) Even Dr. Newman conceded that the various complicating factors in Ford's fracture — comminution, displacement, damage to the articular surface, involvement of both condyles, and Ford's age at the time of injury — made the prognosis for regaining mobility worse. (Tr. at 411-415, 423, 427-429.) In addition, the medical literature supports the conclusion that comminuted fractures are often "difficult to manage," and have a "poor prognosis no matter what treatment is provided." (Tr. at 426.)
Apart from the lack of expert testimony, plaintiffs concede that the passive range of motion initiated on June 10 had no effect. Although there are no medical records documenting Ford's progress between June 10 and June 20, Ford testified that he saw no improvement in the PIP joint of his right ring finger after the VAMC began passive range of motion exercises on June 10. (Tr. at 212-213.) And, while Ford's leaving therapy on June 20, only ten days later, precluded any possibility that an extended course of passive range of motion exercises would benefit his finger, it was Dr. Newman's view that by that point, the therapy would not have had any impact. (Tr. at 651.) Absent speculation, there is no sound basis for the Court to conclude that passive range of motion would have made a difference had it been commenced three weeks earlier, on May 17. In fact, this conclusion would run counter to plaintiffs' general theory of the case, which was that the VAMC jeopardized Ford's chances of recovery primarily by the length of time the finger was immobilized, and that passive range of motion should have been implemented immediately upon removal of the cast, as an emergency measure. It is more consistent with this theory to conclude that beginning passive range of motion on May 17, seven weeks after when plaintiffs allege it should have been started as an emergency intervention, would have had no effect because it was simply too late to make a difference.
CONCLUSION
In sum, the Court finds that the VAMC did not deviate from accepted standards of medical care by immobilizing Ford's finger after his first surgery for three weeks and three days, or by deciding not to implement passive range of motion exercises at the start of Ford's occupational therapy. Although the Court does find that the VAMC's failure to intensify or otherwise alter the therapy approximately one month later, in the third or fourth week of May, rather than on June 10, was such a deviation, the Court is unable to conclude that this two to three week delay was a proximate cause of Ford's ultimate disability. The Court understands that Ford has suffered a serious deformity to his right ring finger that continues to impair the function and cosmetic appearance of his right hand. However, a bad result standing alone is not sufficient evidence to support a conclusion that negligence has occurred. See,e.g., Schoch v. Dougherty, 504 N.Y.S.2d 855, 857 (3d Dep't 1986), appeal denied, 69 N.Y.2d 605 (1987); George v. City of New York, 253 N.Y.S.2d 550, 552 (1st Dep't 1964), aff'd, 17 N.Y.2d 561 (1966).
Because the Court finds that the VAMC was not negligent in its care of James Ford, Nancy Ford's loss of consortium claim also fails. A claim for loss of consortium is derived from, and is dependent upon, the primary claim of negligence; termination of the primary action bars the derivative action. See Jones v. United States, 720 F. Supp. 355, 369 (S.D.N.Y. 1989); Millington v. Southeastern Elevator Co., Inc., 22 N.Y.2d 498, 508 (1968); Cody v. Village of Lake George, 576 N.Y.S.2d 912, 913 (3d Dep't 1991).
Accordingly, judgment shall be entered for the defendant.
SO ORDERED.