Opinion
Case No. 8:00-CV-562
December 11, 2002
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff Henry J. Evans brought this tort claim against the United States of America based on treatment he received for neck pain through the Omaha Veterans Administration Medical Center ("VA Hospital") in Omaha, Nebraska. The United States denied Evans' claims. This matter was tried to the Court for five days beginning October 8, 2002, and concluding October 15, 2002. The parties submitted post-trial briefs in lieu of closing argument, and all briefs have been received and considered.
Evans contends that agents and employees of the VA Hospital were negligent in providing him with medical care, and that such negligence caused him unnecessary pain as well as permanent neurological damage. The Court finds that agents and employees of the VA Hospital were negligent in their communication regarding Evans' treatment and that such negligence caused Evans to experience severe pain and disability for approximately eight weeks — the time between his visit to the Jefferson Barracks Spinal Cord Center in St. Louis, Missouri, in late March 1998, and the date of his admission to Omaha Methodist Hospital in late May 1998. The Court does not find that Evans suffered permanent neurological damage as a result of such negligence.
FINDINGS OF FACT
Plaintiff Henry J. Evans was an active member of the armed services of the United States of America from 1951 to 1971, after which he received an honorable discharge. While Evans was in the service, he sustained injuries on more than one occasion. In approximately 1952, he was injured after falling off the wing of an airplane. This injury contributed to Evans' need for knee joint replacement surgery in 1995. In 1960, Evans sustained whiplash injuries to his neck as the result of a rear-end collision to his vehicle. In 1984, several years after he was discharged from active duty, Evans was diagnosed with post-traumatic stress disorder associated with his service and transport responsibilities during the Vietnam war.
Immediately after his discharge from the service, Evans was successfully employed in private business. In September 1983, when Evans was still covered by private health insurance, he was involved in another automobile accident which resulted in a serious injury to his cervical spine. Evans sustained herniations of the cervical discs located at the C5-6 and C6-7 levels. Treatment for these injuries included cervical discectomies at the C5-6 and C6-7 levels. The surgery was performed by neurosurgeon Leslie C. Hellbusch on December 6, 1983.
After recuperating from the 1983 surgery, Evans had three or four episodes of neck pain from 1984 through approximately 1993, each of which subsided after a four or five day treatment using prescriptions such as Tylenol with Codeine. In November 1993, after attending an insurance seminar, Evans again sought treatment from Dr. Hellbusch for sudden-onset cervical pain. Following an MRI scan, Dr. Hellbusch diagnosed cervical spondylosis at C3-4 and C4-5. He ruled out surgical intervention based on the lack of neuropathy at that time. Evans was treated with aspirin to relieve the pain, and this treatment was largely successful.
In June 1995, Evans underwent a total right knee replacement at the Omaha Veterans Administration Medical Center.
On or about August 25, 1995, Evans felt severe neck and back pain which he rated ten on a one-to-ten pain scale. Because he was no longer self-employed and was eligible for veterans' benefits, Evans sought treatment at the VA hospital. The physicians initially considered whether his back pain was related to his use of a cane following the knee replacement surgery. At that time, Evans began treatment with a VA neurologist, Alvin Fruin, M.D. Dr. Fruin followed Evans for several months. An April 4, 1996, medical record reflects that Evans had undergone an MRI, and that Dr. Fruin believed Evans was exhibiting Lhermitte's sign, a severe striking pain that radiates from the spine through the body, and radiculopathy, described by one witness as pathology to the peripheral nerves — those nerves coming out of the spinal cord. Radiculopathy is distinguished from myelopathy in that myelopathy is a pathology of the spinal cord itself. Dr. Fruin's treatment plan included following Evans and scheduling another MRI scan in six months.
On October 8, 1996, Evans received an MRI examination of his cervical spine that showed herniations at the C3-4 and C4-5 discs, causing severe spinal stenosis and also mild degenerative disc disease at the C2-3 and C7-T1 levels. Spinal stenosis is an arthritic condition of the spine. The MRI also showed the presence of a mild cervical kyphosis in the mid-cervical spine.
Evans scheduled an office visit with Dr. Fruin to discuss his status and the MRI findings. During the November 21, 1996, office visit, Evans complained of significant pain radiating down his left side and into his arm and fingers. Dr. Fruin stated in Evans' medical record that Evans was "miserable." Ex. 1 at 14. The October 1996 MRI did not show any spinal cord compression or nerve root impingement. Dr. Fruin developed a treatment plan for Evans that included possible surgical exploration, and Dr. Fruin "overbooked" Evans to see VA Hospital neurosurgeon, Charles Taylon, M.D., on November 26, 1996, requiring the clinic to schedule Evans for an appointment even if no opening was available on the schedule.
On November 26, 1996, Dr. Taylon evaluated Evans and considered the October 1996 MRI previously ordered by Dr. Fruin. The MRI revealed a loss of the normal cervical lordotic curvature of the neck and a mid-cervical kyphosis. Dr. Taylon diagnosed spinal stenosis at C3-4 and C4-5, and, mirroring Dr. Fruin's record, Dr. Taylon's record noted that Evans' condition "deserves exploration." The bottom of the note states "overbook 1/97," indicating the month that Dr. Taylon intended to perform neurosurgery on Evans. Evans' pain increased over the following weeks. On January 31, 1997, Dr. Taylon performed a posterior laminectomy on Evans, during which Dr. Taylon removed the posterior bony arches of the cervical spine, the lamina, at levels C3 through C5. Evans' preoperative pain radiating from his neck down his left side was nearly completely relieved by the surgery. However, beginning immediately after the surgery and continuing for nearly a year and a half, Evans experienced severe right neck pain that radiated down his right side, and into his arm, and a pain that he described as a lightening-bolt-type pain that disabled him with nearly any movement of his neck, including movement of his neck from one side to the other. The lightening-bolt-type pain was identified by several of the medical witnesses as a Lhermitte's sign.
Immediately following the January 31, 1997, surgery, and on many occasions during his recuperative period, Evans complained to Dr. Taylon of the new pain on his right side and the lightening-bolt-type pain that he experienced with any movement of his neck. Initially, Dr. Taylon informed Evans that this pain was a normal part of the recuperative process. Evans continued to come to Dr. Taylon for follow-up treatment for his cervical spine and post-operative pain during the following eight months.
During that time, Dr. Taylon suspected that Evans might be exhibiting drug-seeking behavior. The Court finds, however, that Evans was prescribed a number of narcotic medications by VA Hospital physicians following the January 1997 surgery, and Evans' ever-increasing intake of narcotic pain medications was the result of following prescriptions for pain management. Indeed, Dr. Taylon referred Evans to the VA Pain Management Clinic in April 1997, at which time his prescription medications were adjusted. Despite the increase in medication, Evans' lightening-bolt type pain and the post-operative pain on his right side was not satisfactorily relieved.
To rule out compression of the spinal cord as a cause of Evans' pain, Dr. Taylon obtained cervical spine x-rays on June 9, 1997, and another MRI on June 23, 1997. The x-rays and MRI showed an advancement of Evans' cervical kyphosis with persistent spinal stenosis in the region of the previously-formed cervical fusion, and spinal cord atrophy at the C4-5 level. In Dr. Taylon's opinion, there was no evidence of spinal cord compression or nerve root impingement on these radiologic studies. Once again, Dr. Taylon referred Evans to the VA Hospital's Pain Clinic and physical therapy center. Evans began his first round of physical therapy on August 7, 1997, which continued through September 2, 1997. Evans did not tolerate the exercises well and the physical therapist noted that Evans had "severe pain when neck moved through range" of motion. Evans testified that he demonstrated the severity of the pain for the physical therapist by moving his neck in a manner that elicited a Lhermitte's sign. Thereafter, because Evans could not tolerate the pain, his physical therapist discontinued the therapy. The physical therapist also recorded Evans' growing frustration with his care from Dr. Taylon. The record from August 14, 1997, purportedly quoting Evans, states "I've been sent to him before with pain like this and he won't do a thing." This sentiment was also described in Evans' testimony at trial. Even so, Evans returned to Dr. Taylon for evaluation and treatment on September 30, 1997.
Notes from that examination state that Evans continued to complain of neck pain and pain radiating into his arms bilaterally. Dr. Taylon noted "official post op. MRI reading is worthless." Dr. Taylon testified that he was expressing his continuing dissatisfaction with the quality of the VA Hospital radiologists' interpretations of MRIs, but that the scan itself was well done and that he was able to read and interpret it himself. Dr. Taylon determined, based on the MRI, that Evans' spinal cord was not compressed, and that there was some post-operative "kyphosis of ? significance." [sic] Ex. 2 at 72. He recommended that Evans try a new cervical collar. Evans testified that Dr. Taylon told him during this visit that Evans was not a surgical candidate, and that there was nothing more that Dr. Taylon could do for him.
At the bottom of the September 30, 1997, record are two notes that read, "12 7 98 @ 0800 N S Taylon" and "overbook 1/98." Ex. 2 at 72. The discharge instruction from the Neurosurgery Clinic, also completed on September 30, 1997, includes the form language "Return to Clinic," followed by the notation: "Return Jan. `98." Dr. Taylon testified that the notes demonstrate that he intended that Evans return for a follow-up visit in the neurosurgery clinic in December or January 1998. However, Evans did not return to Dr. Taylon for treatment after September 30, 1997. Evans testified that he did not know that another appointment had been scheduled for him with Dr. Taylon because he received no notice from the neurosurgery clinic. That he did not have another appointment scheduled with Dr. Taylon did not surprise Evans because Dr. Taylon had told him that there was nothing more that he could do for him.
At this time, Evans decided to get a second opinion from a neurosurgeon. On October 6, 1997, Evans discussed his desire to have a second opinion with the physician at the VA Pain Clinic, Dr. Scott Hofmann. Dr. Hofmann is a board certified anesthesiologist. He supported Evans' desire to get another opinion, and he recommended that Evans be evaluated by Bizhan Aarabi, M.D., another neurosurgeon at the VA Hospital. Like Dr. Taylon, Dr. Aarabi is a neurosurgeon who was then employed by the VA Hospital. Dr. Taylon's and Dr. Aarabi's practices within the VA Hospital were viewed as independent, however, because the doctors' affiliations were with different teaching centers: Dr. Taylon with Creighton University Medical Center's medical school and Dr. Aarabi with the University of Nebraska Medical Center's ("UNMC") medical school.
Dr. Aarabi agreed to examine Evans and to evaluate him as a candidate for surgical intervention. Following a physical examination, Evans underwent a CT myelogram at the request of Dr. Aarabi on November 13, 1997. On physical examination, Dr. Aarabi noted a normal neurologic examination despite Evans' complaint that his right side was becoming weak and partially unusable. In Dr. Aarabi's opinion, the CT myelogram showed moderate to severe cervical kyphosis, which he referred to as a "swan neck deformity."
Dr. Aarabi viewed Evans' condition as presenting a difficult case, and he sought Evans' permission to present his case at a neurosurgery Grand Rounds — a regular meeting of local neurosurgeons. After presenting Evans' case at a UNMC Grand Rounds in late November 1997, which included review of Evans' June 1997 MRI and the November 1997 CT myelogram, Dr. Aarabi informed Evans that the unanimous recommendation of the Grand Rounds neurosurgeons was not to perform surgery on Evans at that time. Based largely on that basis, and supported by his own conclusion that there were no objective findings of spinal cord compression on radiologic studies, he informed Evans that he would not perform surgery at that time.
Dr. Aarabi's second opinion was provided to Evans on or about December 9, 1997. Dr. Aarabi testified that, having provided the second opinion, his only treatment plan for Evans was to return Evans' care back to his primary neurosurgeon, Dr. Taylon. There is no record that Evans obtained treatment from Dr. Taylon at any time after he was released from Dr. Aarabi's care. Evans' chart contains a discharge instruction sheet indicating that on December 9, 1998, he was discharged from the neurology clinic and referred to the pain clinic. Dr. Hofmann testified that once a veteran is discharged from a specialty clinic, he needs a referral from to get back into the clinic. Evans was referred back to Dr. Aarabi for one last neurosurgery evaluation by Evans' primary or "gatekeeping" physician, Dr. Allen.
The last appointment with Dr. Aarabi was February 10, 1998. On physical examination, Dr. Aarabi found Evans had full strength in the upper extremities on both sides. Because he found no objective neurological deficits on examination, and because Evans continued to complain of pain, Dr. Aarabi referred Evans back to the VA Hospital Pain Clinic for a previously-scheduled follow-up with Dr. Hofmann. It was Dr. Aarabi's expectation that Evans would be followed by Dr. Taylon with respect to neurosurgical matters.
Also in February 1998, Evans saw a poster for the spinal cord injury registry at the VA Hospital and phoned a VA Hospital social worker, Jane Clausen Noden, about adding his name to the registry. Noden is a social worker, who since 1994 has been the administrative coordinator for the spinal cord injury team at the Omaha VA Hospital. The spinal cord injury team at the Omaha VA Hospital also included, at the time, Sharon Hayes, R.N., and Edwin Garcia, M.D., a neurologist. The team served a treatment-coordination function, but the team did not provide medical treatment to the spinal cord injury patients. After consulting with Hayes, Noden added Evans' name to the spinal cord injury registry.
Given that the neurosurgeons did not view Evans as a candidate for surgical intervention, and given that he was not able to tolerate physical therapy, during the March 16, 1998, follow-up visit at the VA Pain Clinic, Evans asked Dr. Hofmann to refer Evans to one of the national VA Hospital Spinal Cord Injury Clinics. Dr. Hofmann, who was unfamiliar with the VA's process for referring a patient to a specialized clinic, agreed to investigate. Dr. Hofmann contacted Noden's assistant on March 16, 1998, to inquire about the referral process. The next day, Noden spoke with Dr. Hofmann and Evans and confirmed the request for a referral. On March 17, 1998, Dr. Hofmann referred Evans to the Jefferson Barracks Spinal Cord Injury Center in St. Louis, Missouri ("Jefferson Barracks"). In Dr. Hofmann's record from March 16, 1998, his assessment was that Evan's pain was getting worse and his quality of life was poor, meaning that Evans' pain was becoming intolerable. Evans was admitted to the Jefferson Barracks Spinal Cord Clinic on March 24, 1998.
A record prepared by Noden on March 17, 1998, was sent to Jefferson Barracks prior to Evans' arrival. In that record, Noden stated that Dr. Hofmann had spoken to Dr. Robert Woolsey, a neurologist at Jefferson Barracks. Dr. Hofmann testified that he does not remember talking to Dr. Woolsey "at all." Dr. Woolsey accepted Evans as a patient at Jefferson Barracks. Noden's record also stated "that veteran has atrophy C4 to T1 on spinal cord `more than spinal stenosis'. . . ." Noden included the following medical records in the materials sent to Jefferson Barracks: the referral from Dr. Hofmann, two records from 1995, a discharge summary from 1997, and some records related to Evans' treatment for post traumatic stress disorder. The medical records that were sent to St. Louis were selected by her alone. Noden explained that any other records that the medical professionals at Jefferson Barracks might have wanted were available to them, but the Jefferson Barracks personnel would have had to request Evans' medical chart from medical records personnel in Omaha.
This is the same medical chart that Noden was unwilling to "wade through" to find the Jefferson Barracks' discharge summary in preparation for her own deposition. Ex. 92, Noden Deposition at 28.
When Evans arrived in St. Louis, Evans was examined by Dr. Woolsey, who is board certified in neurology and in spinal cord injury medicine. Dr. Woolsey performed a physical examination and found weakness bilaterally in Evans' hands, weakness in his grip strength, and a staggering gait. After a little more than one week at Jefferson Barracks, undergoing physical therapy and trigger point injections, Evans was discharged on April 1, 1998. In the discharge summary prepared by John McGarry, M.D., the board-certified neurologist and spinal cord injury specialist who supervised Evans' treatment at Jefferson Barracks, Evans was diagnosed as suffering from several conditions, first among which was cervical myelopathy. He was to have been sent a cervical collar, which did not arrive for several days following Evans' return to Omaha.
Dr. McGarry's discharge diagnosis of "cervical myelopathy" is significant because it was the first such diagnosis of Evans' condition, and it meant that Evans had developed spinal cord dysfunction. In addition to the diagnosis of cervical myelopathy, the discharge summary contained the first indication that Evans exhibited objective neurological deficits upon examination. Those deficits were observed when Dr. Woolsey performed the intake physical on March 28, 1998.
The Jefferson Barracks discharge summary for Evans was faxed to the Omaha VA Hospital on April 2, 1998. Although Noden has no independent recollection of receiving Evans' discharge summary, Noden testified that she would have received the discharge summary, and that she would have distributed the discharge summary on the same day to the other members of the Omaha spinal cord injury team (Hayes and Dr. Garcia) and to Dr. Hofmann because he was the referring physician. In addition, Noden testified that she would have sent a copy to the VA Hospital medical records department so that it could be inserted into Evans' medical chart and would be available to any of his treating physicians at the VA Hospital.
Dr. Hofmann testified that he does not recall receiving the discharge summary. It is undisputed that Dr. Aarabi and Dr. Taylon never saw the discharge summary before Evans sought and received surgery at Omaha Methodist Hospital in 1998. Other than the discharge summary, no other medical records from Jefferson Barracks Spinal Cord Clinic, including the record of the physical examination conducted by Dr. Woolsey, the treatment notes of Dr. McGarry, or the physical therapy records, were ever sent to the Omaha VA Hospital. It does not appear that these records were even requested by anyone at the Omaha VA Hospital until after notice of Evans' claim that is the basis of this lawsuit.
After his return from St. Louis, Evans continued to come to the VA Hospital for treatment at the Pain Clinic and other VA clinics, including the gastroenterology clinic and the orthopaedic clinic. On April 24, 1998, Evans' orthopedic physician noted weakness in Evans' upper body and the diagnosis of cervical myelopathy, but those observation were not communicated to the neurosurgeons. In a medical record dated April 23, 1998, the VA physician treating Evans' post traumatic stress disorder recorded that Evans said, "there have been times that I wish God would take my life rather than go through this pain." Ex. 2 at 19. For eight weeks following Evans' return from St. Louis, none of the physicians at the Omaha VA Hospital either knew about, or appreciated, the significance of the cervical myelopathy diagnosis, the objective findings of Evans' neurological deficits made by Dr. Woolsey and others at Jefferson Barracks, or Evans' ever-worsening symptoms. During those eight weeks, no health care professional at the Omaha VA Hospital followed-up with the physicians at Jefferson Barracks relative to the treatment Evans had received there. Dr. Woolsey and Dr. McGarry assumed that an Omaha VA Hospital physician had already diagnosed cervical myelopathy, and they did not know that their findings of objective neurological deficits upon examination were new findings. They took no steps, therefore, to contact neurosurgeons at the Omaha VA Hospital regarding their findings. As a consequence, no health care professional followed Evans for his neurological symptoms while his condition was quickly deteriorating. By late May 1998, Evans' symptoms had worsened such that he was not only in extreme pain but was nearly incapacitated.
On May 29, 1998, Evans arrived at the Nebraska Methodist Hospital, in Omaha, Nebraska, where he complained of unbearable pain and was evaluated by neurologist, Joel Cotton, M.D., and Jack Lewis, M.D. Upon examination, Dr. Cotton found objective neurological deficits and diagnosed "cervical myelopathy." Dr. Cotton's findings were consistent with the findings of Dr. Woolsey that were manifest in March 1998.
After Evans was admitted to Methodist Hospital, Dr. Leslie Hellbusch again became involved with his care. Dr. Hellbusch ordered another MRI of Evans' cervical spine, which showed marked compression of the spinal cord at the C3-4, C4-5, and C5-6 levels and moderate compression of the spinal cord at C6-7 levels. Cervical spine x-rays taken at that time demonstrated Evans' "prominent cervical kyphosis." Ex. 77 at 12.
On June 4, 1998, Dr. Hellbusch performed a C3-4 discectomy, and a C-4, C-5, C-6 and superior C-7 corpectomy, anterior cervical fusion with right iliac bone graft from C-3 through C-7 with an Orion plate internal fixation and application of a halo brace. Dr. Hellbusch's preoperative diagnosis and postoperative diagnoses were the same: cervical myelopathy secondary to moderate cervical kyphosis and severe spinal stenosis.
Evans testified that after his January 31, 1997, surgery performed by Dr. Taylon, he experienced tremendous and unremitting pain, and he was unable to drive a car, to sleep more than a few hours at a time, or to travel. At Jefferson Barracks, Evans' grip strength was so poor that he was instructed in the use of special eating utensils. After the June 1998 surgery and rehabilitation, Evans testified that much of his strength and coordination returned, although he still suffers residual weakness in his hands and legs and has some difficulty walking. Pain emanating from his neck continues to afflict Evans, although he testified that the pain has been less severe since the June 1998 surgery and can be controlled with regular narcotic medications. Evans has not experienced the lightening-bolt-type pain since the June 4, 1998, surgery.
CONCLUSIONS OF LAW
Evans presented his Tort Claim to the VA Hospital in a timely manner and in the proper form. His claim was denied in correspondence dated September 28, 2000. To the extent that Evans' wife, Janet Evans seeks to assert a claim based on loss of consortium, the Court finds that her claim was not properly presented to the appropriate federal agency; that the government did not have adequate notice of it by other means; and that it is now time-barred. See Vaughns v. United States of America, 20 Fed. Appx. 585, 586 (8th Cir. 2001) citing 28 U.S.C. § 2675(a) (1994) (providing that an "action shall not be instituted . . . against the United States for money damages . . . unless the claimant shall have first presented the claim to the appropriate Federal agency . . ."); 28 U.S.C. § 2401(b) (1994) (providing that a tort claim against the United States shall be "forever barred" unless presented to the appropriate federal agency within two years after the claim "accrues"); and Walker v. United States, 176 F.3d 437, 438 (8th Cir. 1999) (stating that timely filing of an administrative claim is a jurisdictional prerequisite in FTCA action).
Evans claims that he is entitled to damages based on the negligence of the VA health care professionals who were responsible for his neurological care and treatment. Over the course of five days, several of Evans' treating physicians, as well as expert witnesses for both Evans and the government, testified. Evans' expert witness, neurosurgeon Karl Manders, M.D., expressed the opinion that care Evans received from the VA Hospital after the June 1997 MRI was below the standard of care because: 1) the June 1997 MRI showed compression of the spinal cord; 2) Evans exhibited a Lhermitte's sign following the January 1997 surgery which is an indication to a neurosurgeon that Evans was experiencing spinal cord irritation; 3) Evans' subjective complaints of pain were intensifying, and 4) Evans' neurosurgeon knew or should have known that a posterior laminectomy increased the risk that Evans' kyphosis would become more pronounced thereby increasing the potential for spinal cord irritation. Dr. Manders explained that surgical decisions should be based on two premises, the objective findings based on diagnostic tools such as radiologic studies and the patient's clinical status. The government's expert witness, Dr. Behrouz Rassekh, also a neurosurgeon, testified that a diagnosis of "myelopathy" is a clinical diagnosis, which means that there must be a clinical basis for the diagnosis either by radiologic examinations or objective findings upon physical examination.
In Dr. Manders' opinion, Evans should have received a corpectomy and cervical fusion after the June 1997 MRI, because the MRI showed spinal cord compression evident by the shape of the spinal cord at different levels of the scan. Other neurosurgeons, including Doctors Rassekh, Taylon, and Aarabi, testified that the June 1997 MRI showed spinal cord fluid encircling the spinal cord, providing a cushion to the cord. Dr. Rassekh testified that the normal shape of the spinal cord was similar to the shape of a kidney bean, with a normal indentation, and that the spinal cord is not a consistent shape throughout the length of the cord. The testimony of Doctors Rassekh, Taylon, and Aarabi, and their interpretations of the June 1997 MRI and the November 1997 CT myelogram, persuade the Court that there was no objective evidence of spinal cord compression on radiologic examination through the end of 1997, and even until May 1998. Accordingly, the Court rejects Evans' contention that agents or employees of the VA Hospital were negligent in providing him with medical care as early as 1997.
From June 1997 until the physical examination that was performed by Dr. Woolsey at Jefferson Barracks on March 28, 1998, Evans' radiologic studies and clinical presentation remained fairly consistent, even though Evans' subjective complaints of pain certainly intensified. The Court was also persuaded by the physicians who testified that cervical spine surgery, with all of its inherent risks including paralysis and death, is not indicated based solely on the patient's subjective complaints. Referring to the testimony of Doctors Manders and Rassekh, the Court concludes that the VA neurosurgeons were reasonable in requiring objective findings, either by radiologic study or upon physical examination, before performing surgery.
Objective findings of Evans' neurological deficits were first observed when Dr. Woolsey performed the intake physical examination at Jefferson Barracks on March 28, 1998. The persuasive and overwhelming evidence from Evans' treating and consulting physicians, when asked to assume as true the findings of Dr. Aarabi's neurological examination from November 1997 and the findings of Dr. Woolsey's neurological examination from March 28, 1999, was that the difference in those findings reflected a serious or significant change in Evans' neurological condition. While Dr. Rassekh agreed that Dr. Woolsey's examination of Evans on March 28, 1998, revealed weakness in Evans' arms and grip, Dr. Rassekh minimized the effect of those findings based on admittedly less-thorough notes taken by a physical therapist a few days later. The Court is inclined to rely upon Dr. Woolsey's findings on the more thorough neurological examination than upon the notes of the physical therapist.
The evidence demonstrates that by March 28, 1998, objective findings of neurological deficits had been made by a board-certified neurologist and spinal cord injury medicine specialist, and these findings were contained in the discharge summary dated April 2, 1998, prepared by Dr. McGarry. The evidence also demonstrates that Dr. McGarry diagnosed cervical myelopathy and included that diagnosis as his first diagnosis on Evans' discharge summary. That this critical information was not communicated to the Omaha VA Hospital physicians who were, or should have been, following Evans for his neurological problems and pain establishes by a preponderance of the evidence that agents and employees of the defendant failed to exercise due care in their treatment of Evans. In failing to communicate the critical information contained in the Jefferson Barracks' discharge summary, agents and employees of the VA Hospital breached the standard of care they owed to Evans. This conclusion is consistent with the opinion of Dr. Manders, who stated that the VA Hospital's treatment fell below the applicable standard of care because Evans' discharge summary from Jefferson Barracks — which included the objective findings of Dr. Woolsey's neurological examination — was not communicated to the other VA physicians responsible for Evans' neurological care.
The facts surrounding this failure are not in dispute. The administrative coordinator of the spinal cord injury team, Jane Noden, testified that she did not expressly recall what she did with the discharge summary, but her routine practice would have been to provide a copy to the spinal cord team (who in this case had nothing to do with Evans' treatment), to the referring physician, and to the patient's chart. She did not provide a copy of the discharge summary to the VA neurosurgeons, because the summary was available in Evans' chart. Dr. Hofmann, who referred Evans to Jefferson Barrack, recalls that he did not ever see the Jefferson Barracks' discharge summary, despite his expectation that he would have seen it.
Having the record available in Evans' chart would only have been effective if Evans had been properly followed by the neurosurgery clinic. Evans was discharged from the clinic on December 9, 1997, after Dr. Aarabi rendered his second opinion. Although Dr. Taylon testified that he intended for Evans to return to the neurology clinic in December or January 1998, there is no evidence that Evans knew he was scheduled for an appointment in the neurosurgery clinic in December 1997 or January 1998.
Dr. Taylon testified that Evans failed to present himself for the January 1998 appointment. In addition, Dr. Taylon testified that Evans knew how to reach him if he needed treatment. However, Evans testified that Dr. Taylon told him in September 1997, that there was nothing more that he could do for Evans. With regard to the appointment that Dr. Taylon had scheduled for Evans in either December 1997 or January 1998, Evans and his spouse, Janet Evans, testified that they did not know about the appointment. Both testified that they did not receive notification of an appointment, which ordinarily came in the form of confirming correspondence through the U.S. mail. The Court specifically finds that Evans exercised all due diligence in seeking health care from the VA Hospital, and that he had a reputation with Doctors Aarabi and Hofmann for keeping all appointments that they made with him.
In addition to the failure of defendant's agents and employees to communicate critical medical information between Jefferson Barracks and the Omaha VA Hospital neurosurgeons, the Court also concludes that the defendants' agents and employees were negligent in failing to follow Evans neurosurgically after February 1998. Dr. Aarabi, who provided a second neurosurgery opinion on December 9, 1997, discharged Evans from the neurosurgery clinic (although he was referred back to Dr. Aarabi one time). Dr. Aarabi testified that he expected Dr. Taylon to be following Evans during this time. A neurosurgeon should have been following Evans. Dr. Manders testified that any neurosurgeon following Evans should have known that a common risk associated with a posterior laminectomy is destabilization of the cervical spine, increasing the risk of kyphosis. An increasingly-pronounced kyphosis creates a more significant risk for spinal cord irritation. The June 1997 MRI and X-rays taken by Dr. Taylon showed some kyphosis. The CT myelogram showed an increased kyphotic condition. In the opinion of Dr. Hellbusch, Evans' myelopathy was secondary to moderate kyphosis and spinal stenosis. Had Dr. Hellbusch seen the Jefferson Barracks discharge summary and had Evans been his patient, he would have ordered an MRI based upon the significant differences between Dr. Aarabi's examination of Evans in November 1997 and the notes from Dr. Woolsey's examination in March 28, 1998.
Because of the negligence of agents and employees of the VA Hospital, Evans is entitled to damages. As a result of the failure of VA Hospital personnel to diagnose and treat Evans promptly during the period of April 2, 1998, through May 28, 1998, Evans suffered unremitting pain and incapacitation. Although Dr. Fruin made mention of Evans experiencing a Lhermitte's sign in an April 4, 1996, medical record, Evans' testimony was that he had not felt the lightening-bolt-type pain before the January 31, 1997, surgery, and that this pain was immediately and entirely relieved with the surgery performed by Dr. Hellbusch on June 4, 1998. The severe and increasing pain that he felt down his right side also was relieved with the June 1998 surgery.
While the Court also finds that Evans has sustained some permanent impairment to the strength in his hands and arms due to the cervical myelopathy, relying on the medical opinions provided by Dr. Aarabi and Dr. Hellbusch, the Court does not conclude that this impairment was proximately caused by the two-month delay in appropriate treatment. Moreover, while Evans' pain, weakness, and related anxiety may have increased with each passing month after his January 31, 1997, surgery, the Court finds that personnel of the VA Hospital were negligent in their care of Evans only after April 2, 1998 — the date after which Dr. Woolsey's objective findings of neurological deficits should have been communicated to the neurosurgeons in Omaha.
Accordingly, Evans is entitled to damages for pain and suffering for the two-month period between his discharge from Jefferson Barracks and his June 4, 1998, surgery by Dr. Hellbusch. In addition to the actual pain, the Court considers it appropriate to award some damages to Evans based on the anxiety that he experienced because of the VA Hospital's failure to follow his worsening neurologic condition. In his post-trial brief, the Plaintiff expressed his view that he is entitled to damages in the amount of $750,000. The Court has considered recent damages awards and verdicts based on past physical pain and suffering and past mental and emotional suffering. While none of the cases presents facts upon which a direct correlation can be drawn, they are informative as guidelines. Having considered the evidence in the case, the severity of Evans' pain, the inability of physicians to relieve the pain through medication, the restriction of Evans' mobility, and the anxiety he experienced in not knowing whether the pain would ever be alleviated, the Court awards Mr. Evans the sum of $80,000 for his past pain and suffering.
See Mastrantuono v. U.S. 163 F. Supp.2d 244, 258-259 (S.D.N.Y. 2001) (awarding one plaintiff $100,000 for past and future pain and suffering related to lumbar instability and a second plaintiff $150,000 for the excruciating pain she must have felt during two surgeries and the possibility that any future medical treatment may never alleviate her pain); Taylor v. National R.R. Passenger Corp., 868 F. Supp. 479 (E.D., N.Y. 1994) (past pain and suffering award for $105,000 upheld where plaintiff suffered from three herniated discs, decreased sensation in her right hand, and an inability to extend and raise her arms over several months, but required no surgery or period of hospitalization); and Duncza v. Gottschalk, 218 Neb. 879, 880, 359 N.W.2d 813, 815 (1984) (affirming an award of $6,500 for damages sustained as the result of an assault and battery that caused a black eye to the plaintiff, bruised her face, and caused emotional upset). A search of an electronic jury verdict database revealed an award of $97,000 for past pain and suffering to a plaintiff who suffered cervical radiculopathy, mental anxiety, and limitation of daily movement; and an award of $100,000 for past pain and suffering to a plaintiff who suffered a herniated disc with spinal cord impingement and treated with a chiropractor and physical therapist for seven months.
For all the reasons provided herein,
IT IS ORDERED:
Judgment is entered in favor of the Plaintiff Henry J. Evans and against the Defendant United States of America in the amount of $80,000.