Opinion
EP-03-CA-0347-FM.
June 21, 2005
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Ms. Irene Canion ("Canion") brought this suit for medical malpractice alleging violations of the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. This case was tried to the Court, February 22-24, 2005. Based on the evidence presented at trial together with the briefing from counsel, the Court hereby enters the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.
The facts contained herein are either undisputed or the Court has made the finding based on the credibility or believability of each witness. In doing so, the Court considered all of the circumstances under which the witness testified.
William Beaumont Army Medical Center ("Beaumont") is a hospital facility owned and operated by the Department of the Army, an agent of Defendant United States of America. Canion was eligible to receive medical care at Beaumont due to her status as a dependent spouse of a retired enlisted service member. Canion suffered an injury on August 31, 2001. Beaumont administered medical care to Canion from September 1, 2001 through November 27, 2001.
On September 1, 2001 Canion presented to Beaumont's emergency room with echhymosis (bruising) and swelling for an injury sustained to her left non-dominant hand smallest digit, commonly known as the pinky finger. Dr. Herbert Eidt, a mid-level orthopedic resident, was on call. X-rays were taken and revealed a break in the small bone which goes into the metacarpal phalangeal joint also called a minimal proximal phalanx fracture, hereinafter referred to as a fracture of Canion's left finger. The fracture was determined to be unstable. On September 1, 2001 Canion's finger was percutaneously pinned and cast by Dr. Eidt. Dr. Seth Samuel Leopold was the attending physician and became Canion's treating physician.
The term "purcutaneous pinning" means that under anesthesia, the fractured pieces of bone are manipulated under a real-time x-ray machine called a fluoroscope to align the bones as well as possible. Once aligned to the point where the joint surface is as smooth and congruent as possible, the bones are held in this position by placing a pin through skin and bone.
On September 4, 2001 Canion's left hand was re-cast. On September 7, 2001 Canion complained of a tight cast and the padding was readjusted. On September 11, 2001 the cast was removed and re-applied. On September 12, 2001 the cast was removed and reapplied for a fourth time. Each time Canion complained about cast discomfort, Beaumont physicians removed the cast, examined and evaluated Canion's finger and hand, and then applied a new cast. Canion went for follow-up care at Beaumont continuing on September 14, 19, 21 and 24, 2001. On October 2, 2001, Canion presented to Beaumont with the cast and pin removed by an outside physician. An X-ray showed that the displacement of the fractured bones were within medically acceptable limits. Following this removal, Dr. Leopold scheduled therapy sessions and prescribed Percocet for Canion. Canion began her therapy with Jacqueline Marie Jurkowski ("Jurkowski"), a staff occupational therapist at Beaumont. Therapy and compliance with the therapy plan is an important or essential part of recovering from hand surgery.
The Court finds Jurkowski's testimony credible. The initial therapy was aggressive. However, sessions scheduled for five times per week were not possible because of transportation problems Canion expressed. Jurkowski revised the therapy plan for three visits per week for three weeks.
Stress loading therapy specifically oriented to Reflexive Sympathetic Dystrophy ("RSD"), the earlier name for Chronic Regional Pain Syndrom, ("CRPS"), was initiated. Dr. Jose Monsivais, Plaintiff's expert, testified that therapy treats CRPS and is part of pain control. Moreover, Dr. Monsivais also prescribed stress loading therapy for Canion's pain along with medications. Therefore, even though Canion's CRPS was undiagnosed, it was being appropriately treated through Percocet and therapy at this time. On October 24, Jurkowski reevaluated Canion and found that she was making significant improvements because her swelling was decreasing and her range of motion was increasing. On November 6, 2001, Jurkowski supplied Canion with a handout containing information on RSD and talked with her about RSD. Jurkowski also recommended to Canion psychiatric intervention on November 6 and 20, 2001.
At this point, Canion was not diagnosed with CRPS. CRPS is a diagnosis of exclusion discussed in depth by Dr. Monsivais and Dr. Ladd below.
The Court finds that Canion did not comply with her therapy plan, cancelled appointments, and performed household tasks which adversely affected the outcome of her treatment and recovery. The Court finds that Canion did not follow Jurkowski's recommendations. Canion's last therapy session with Jurkowski took place on November 20, 2001. Canion never appeared for further scheduled therapy sessions and had not been discharged from Dr. Leopold's care.
On November 27, 2001, Canion sought a second opinion from the hand clinic at Beaumont and saw Dr. Jan Arvin Combs, a hand surgeon at Beaumont. The Court finds Dr. Comb's testimony credible. When Canion presented to Dr. Combs she had a flexion contracture in that she lacked 60 degrees of extension in her left pinky finger. Therapy would have been the appropriate treatment to increase Canion's range of motion. Although the Court finds that Dr. Leopold did not diagnose Canion's CRPS on October 2, 2001, Dr. Combs testified that even had it been diagnosed, the treatment modality would have remained the same. Dr. Combs diagnosed Canion with CRPS on November 27, 2001, because Canion had the hallmark symptom, pain out of proportion with the injury. Dr. Combs recommended to Canion that she must be seen by a pain clinic and that she needed a multi-disciplinary approach. Dr. Combs never actually called a doctor outside of Beaumont to schedule an appointment for Canion. She prescribed Canion Relafen. Canion had previously been prescribed Percocet. The Court finds that Canion refused to see the non-Beaumont providers recommended by Dr. Combs because she did not want to pay the co-payment.
The Court finds that Canion's condition improved until October 24, 2001 and that Canion suffered from uncontrolled pain from November 6, 2001 to December 28, 2001. The Court finds that Beaumont offered to send Canion for non-Beaumont pain treatment but Canion refused such treatment because Canion did not want to pay the co-payment.
Plaintiff sought orthopedic evaluation by a civilian orthopedist and was first seen by Dr. Jose Monsivais on December 28, 2001. The Court finds that Dr. Monsivais is an extremely well-qualified doctor who presented credible testimony.
Dr. Monsivais did not criticize the treatment or healing of Canion's fracture and actually stated that it had healed fine and that the therapist did a very good job of pointing out what the problem was. Dr. Monsivais provided no treatment related to Canion's fracture. Furthermore, Dr. Monsivais did not present testimony setting forth the standard of care to prevent flexion contractures.
The standard recommendation on therapy sessions is three times per week. All of the doctors who testified agreed that therapy was necessary. However, even Dr. Monsivais did not follow his own recommendations during the early part of his treatment of Canion. Specifically, he testified that he would see Canion at least two to three times a weeks and that he would use therapists and psychologists. Canion was seen for therapy or by Dr. Monsivais on the following dates: December 28, 2001, January 3, 11, 21, 29, 30, 31, February 12, 13, 18, 19, 20, March 4, 5, 6, 12, 13, 19, 20, April 8, 11, 15, 19, 22, 26, 29, 30, May 3, 7,8, 10, 15, 2002. Dr. Monsivais did not begin seeing Canion two or three times a week until mid-February 2002.
Dr. Monsivais testified that even if everything was done appropriately for a patient, the hypothetical patient could still develop CRPS. Furthermore, Dr. Monsivais repeatedly testified that there was or could be more than one cause for Canion's CRPS. Specifically, Dr. Monsivais testified on cross examination that:
A. Its not one factor that caused the development of CRPS, but the combination of factors. So it's not just having the match, but having the gasoline or the diesel to cause the explosion and the combustible material present that will cause all of this to occur. So its just not correct. I mean it's — it's scientifically unsound.
Q. Let's put it his way, Doctor. I will rephrase it this way, if this helps. You can't say that the United States did cause Ms. Canion's CRPS, can you?
A. No. I can't say that one factor alone was causing anything.
Q. Well, for all we know, she had an underlying neuropathy.
An underlying asymptomatic neuropathy refers to Canion's peripheral ulnar nerve injury which becomes a peripheral drive of the pain when combined with ongoing compression or irritation.
A. Correct.
Q. that was triggered by the volleyball hitting her finger which caused the CRPS, correct?
A. Or the internal fixation.
Q. We don't know?
A. We don't know.
Moreover, on direct examination, Plaintiff's counsel asked Dr. Monsivais:
Q. What do you think was the cause of Ms. Canion's CRPS?
A. I think it's the combination of factors. One is the injury on a patient that had an underlying asymptomatic neuropathy, that then this was somewhat compensated. Then she had a second episode of trauma, which is the surgery, and I think that was enough to go over — to trigger the diathesis.
A diathesis is a ten-fold exacerbation of pain symptoms or uncontrolled pain which are more difficult to treat.
Furthermore, Dr. Monsivais acknowledged other possible causes of Canion's CRPS that he could not exclude as the cause, such as pressure from the cast, the passages from the pin and swelling. Dr. Monsivais concluded that without the underlying ulnar nerve injury, CRPS may not have developed, though still a possibility, it was less likely.
Dr. Monsivais's largest criticism of the government's treatment of Canion is the unrelieved pain in a depressed patient and that the government breached the standard of care by delaying the implementation of therapy because of the delay in diagnosing the CRPS. Dr. Monsivais pointed out that the frequent changes of Canion's cast reflected her unrelieved pain, were a warning sign and that more than three changes of a cast is a very ominous sign that the pain is not being controlled. However, Dr. Monsivais did not show what the standard of care for a depressed patient should have been, nor did he testify that the failure to treat acute pain early can cause CRPS. In fact, Dr. Monsivais admitted that there was no supporting literature showing that treating acute pain early avoids CRPS. As noted above, Dr. Monsivais repeatedly refused to testify that the government's acts or omissions alone could have caused CRPS. Instead, he testified that Canion's August 31, 2001 injury triggered something that already existed, Canion's ulnar nerve injury. The government's failure to diagnose CRPS on October 2, 2001 was not the Cause of Canion's uncontrolled pain. The record shows that Canion's unrelieved or uncontrolled pain could have been just as equally caused by Canion's failure to do what she was instructed to do by Jurkowski.
This finding is in accord with a study performed by Dr. Monsivais' which found that "patients could have a pre-existing nerve compression undiagnosed, asymptomatic, but then they have an injury, and the injury triggers the symptoms and all this complexity that does not seem to comply with the initial event."
Dr. Monsivais testified that a physician should control the pain first and that without proper pain control, a CRPS patient should not be in therapy. Dr. Monsivais testified as to the proper use of methods of pain control, especially for a CRPS II patient. Step I is the use of non-steroidal anti-inflammatory and non-narcotics. Step II is using weak narcotics. Percocet is a weak narcotic. Step III is the use of stronger narcotics and intrathecal administration. The minimum standard is to control the pain. Where the professional is not capable of controlling the pain, the treating physician must refer the patient to a pain clinic or other professional capable of controlling pain. The minimum standard for referrals is to call the office where the patient is to be referred and set up an appointment for the patient. The government did not meet the standard of care established by Dr. Monsivais for making a referral to a pain management clinic or pain specialist. It should be noted that Dr. Monsivais began pain medication intervention at the same levels as Beaumont physicians and testified that even had he been involved from the day of removal of the cast, it would have been three to six months before he felt operating on Canion's hand appropriate.
Under Dr. Monsivais' care, Plaintiff improved and has regained almost normal use of her left hand. Based on Dr. Monsivais' testimony, Canion is doing fine and after the litigation will be a lot better.
Dr. Amy Ladd testified as Defendant's expert. The court finds Dr. Ladd similarly well-qualified and credible. Dr. Ladd testified that the percutaneous pinning and casting of Canion's left hand met the standard of care. Furthermore, after the pin was removed, Canion's fracture healed radiographically perfectly. Additionally, she testified that a contracture, the inability to fully extend a finger, is almost a guarantee when a patient, like Ms. Canion, comes out of a cast because fractures associated with the proximal phalanx are notoriously associated with stiffness in the post-fracture phase.
Dr. Ladd testified that the most likely cause of Canion's CRPS and all CRPS is insult or injury and classic association of pain out of proportion. Dr. Ladd does not agree with Dr. Monsivais that there was nerve injury or weakness on top of the physical injury but did agree that changing Ms. Canion's cast was a potential warning sign, but not necessarily indicative of CRPS. Dr. Ladd testified that the standard of care is to have a high index of suspicion for CRPS and one need not make the diagnosis or actually write it down. Although there is some disagreement in this testimony, it does not go to the crux of the issue. The crux of the issue is whether or not the government was the cause in fact of Canion's CRPS.
The Court finds the overwhelming credible evidence at trial indicated that CRPS is not well understood within the medical community, and its causes are numerous and extremely complex. Furthermore, the hallmark of CRPS is pain out of proportion to the injury but can be accompanied by a whole host of other symptoms including stiffness, subjective numbness, tingling, abnormal swelling, redness, discoloration, warmth and abnormal sweating patterns. The evidence demonstrated that CRPS is a syndrome which is not fully understood, and is known to occur in the absence of negligence. Moreover, it is a syndrome for which there is no absolute diagnostic criteria and different practitioners define it different ways.
The parties have stipulated that Canion incurred $12,888.22 in medical bills.
The Court does not question Canion's sincerity in making her statements and that she believed she did everything she was supposed to do. However, the preponderance of the credible evidence proves that she did not. Canion's testimony is inconsistent with the testimony of the government witnesses and with independently kept records. III. CONCLUSIONS OF LAW
A conclusion of law that should have been treated as a finding of fact is hereby adopted as such, and a finding of fact that should have been treated as a conclusion of law is hereby adopted as such.
This action for medical malpractice was brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq. Under the FTCA, the U.S. Government may be held liable for negligent acts or omissions of its employees if its employees acted within the scope of their employment. Plaintiff alleged in her Complaint that the Defendant was negligent in the following seven ways because it: "(1) failed to properly treat the finger fracture; (2) failed to properly align the fracture fragments prior to pin fixation; (3) caused to step off the fracture; (4) failed to properly stabilize the finger fracture; (5) failed to properly cast the fracture; (6) failed to prevent flexion contracture; and (7) caused chronic regional pain syndrome to develop." [Rec. No. 1].
The Court has jurisdiction over the parties and subject matter pursuant to 28 U.S.C. § 1346 (b) and venue is proper in the Western District of Texas under 28 U.S.C. 1402 (b).
State law governs the standard for medical malpractice for claims brought under the FTCA. See Molzof v. United States, 502 U.S. 301, 305 (1992). The alleged negligent acts occurred in El Paso, Texas. Consequently, the substantive law of Texas controls.
Under Texas law, to recover from the government in this medical malpractice action for the alleged negligent acts or omissions of a physician at Beaumont, Plaintiff must prove the following elements by a preponderance of the evidence: (1) a duty by the physician to act according to an applicable standard of care; (2) a breach of that standard of care; (3) actual injury to the Plaintiff; and (4) proximate causation. See Quijano v. United States, 325 F.3d 567 (5th Cir. 2003) (citing Mills v. Angel, 995 S.W.2d 262, 267 (Tex.App.-Texarkana 1999, no. pet.); Denton Reg. Med. Ctr. v. LaCroix, 947 S.W.2d 941, 950 (Tex.App. — Fort Worth 1997, no pet.)).
Before proving that Defendant has violated the standard of care, Plaintiff must establish by expert testimony the standard of care required of the physician. Quijano, 325 F.3d at 567. The standard of care of a physician in Texas is that of a duty of ordinary care "to render care to a patient with the degree of ordinary prudence and skill exercised by physicians of similar training and experience in the same or similar community under the same or similar circumstances." Hollis v. United States, 323 F.3d 330, 336 (5th Cir. 2003). There are two elements of proximate cause under Texas law: foreseeability and cause in fact. Urbach v. United States, 869 F.2d 829, 831 (5th Cir. 1989) (citing City of Gladewater v. Pike, 727 S.W.2d 514, 517 (Tex. 1987); Williams v. Steves Industries, Inc., 699 S.W.2d 570, 575 (Tex. 1985)). Foreseeability in the medical malpractice instance means that a physician using ordinary care should have anticipated the danger that might reasonably have resulted from the acts or omissions at issue. Cruz v. Paso Del Norte Health Foundation, 44 S.W.3d 622, 630 (Tex. App — El Paso 2001, pet. denied). Cause in fact means that a physician's conduct was a substantial factor in bringing about the injury and without which no harm would have occurred. Id. Plaintiff bears the burden of establishing a causal connection to a reasonable medical probability, beyond the point of conjecture. Id., Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988). Moreover, where there is more than one possible cause "of the injury or condition that could be negated, the Plaintiff must offer evidence excluding those causes with reasonable certainty." Merell Dow Pharmaceuticals v. Havner, 953 S.W.2d 706, 720 (Tex. 1997). After weighing the evidence and considering the credibility of the witnesses, the Court concludes that Plaintiff has not established, by a preponderance of the evidence, a failure by the Defendant to conform to the requisite standard of care on Plaintiff's factual claims of negligence 1-6. Regarding Claim 1, Dr. Monsivais stated that the fracture healed fine and did not establish that Beaumont failed to properly treat the fracture. Regarding claims 2 and 3, X-ray evidence shows that the fracture, although not anatomical, healed within medically acceptable displacement limits. Regarding claim 4, no expert testimony was presented by Plaintiff to establish that the pinning of the fracture to stabilize the finger fell below the standard of care. Regarding claim 5, although Dr. Monsivais prefers splinting to casting, and would himself have splinted Canion, there was no expert testimony that Beaumont's choice to cast Canion fell below the standard of care or that Beaumont physicians cast Canion's left hand improperly. Moreover, re-casting Canion's hand four times shows that Beaumont was responsive to Canion's complaints. Regarding, claim 6, there was no evidence presented that set the standard of care for flexion contractures and that Beaumont fell below this standard. Claim 7 alleges that Defendant caused Canion's CRPS to develop. The Court has found that Canion suffered un-controlled pain from November 6, 2001 to December 28, 2001 and that recommendations but not actual referrals to pain specialists or pain management clinics were made. Through Dr. Monsivais' testimony, Defendant's conduct fell below the standard of care by not actually referring Canion to a pain specialist or by not treating the pain early enough. However, Plaintiff has not demonstrated that either breach proximately caused Canion's CRPS. To find Defendant negligent, Plaintiff must show that Defendant's failure to control Canion's pain was a substantial factor without which her CRPS would not have occurred. The acts or omissions of the United States could not be shown to be the cause in fact of Canion's CRPS. The Court finds that Dr. Monsivais' refusal to state that the government's acts or omissions were the substantial factor bringing about Canion's CRPS to a reasonable medical probability shows that Defendant was not the cause in fact of Canion's CRPS. See Cruz, 44 S.W.3d at 630. Thus, proximate cause fails. The evidence adduced by Plaintiff and Defendant showed that there could have been many substantial factors bringing about Canion's CRPS, the most likely candidate being Canion's underlying nerve condition. Alternatively, where there are multiple possible causes, Plaintiff is required to exclude those other causes that could be negated with reasonable certainty. See Merell Dow Pharmaceuticals, 953 S.W.2d at 720. Plaintiff has not done so. The cause in fact of Canion's CRPS remains conjecture. Because Plaintiff failed to prove by a preponderance of the evidence that Defendant was negligent in its medical care of Canion, she is not entitled to recover from the government and her action must be dismissed.
Dr. Monsivais referred to the repeated re-casting as a warning sign for CRPS.