Opinion
No. 98-CV-73048-DT.
August 16, 2000.
MEMORANDUM OPINION AND ORDER
Plaintiff, Geraldine Ives, brings this negligence and medical malpractice action under the Federal Tort Claims Act, 23 U.S.C. § 2671 and 1346. Under the Act, the United States shall be liable for personal injury caused by the negligent conduct of government employees "under the circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b).
I. BACKGROUND
Plaintiff alleges that she sought treatment at the Veterans Administration Medical Center (VMAC) in Allen Park, Michigan, on February 10, 1996. She was admitted, treated, and eventually released on February 14, 1996. During her stay, Plaintiff claims that Dr. Stephen Farrow erroneously informed her that she was HIV positive and had Acquired Immune Deficiency Syndrome ("AIDS") before administering the proper diagnostic tests. See Joint Final Pretrial Order at 1.
HIV, or human immunodeficiency virus, is the virus associated with AIDS.
Plaintiff alleges that she believed that she was HIV positive for three weeks — — until the test results were returned indicating that she was HIV negative. Plaintiff claims that she sustained emotional distress and psychiatric injuries" as a result of the alleged misdiagnosis. See Complaint at par; 13. She also alleges that she lost ten to twelve pounds in the three weeks following the HIV diagnosis, was depressed and suicidal, and that she could not perform household chores during that time.
This matter came before the Court for a bench trial on July 31, 2000, and was concluded that same day. To reach its decision on the merits of these issues, the Court heard the testimony of Geraldine Ives; her son, Clinton Ives, Jr.; Dr. Stephen Farrow; and Ethel Kellie, the women veterans coordinator at VMAC. The Court also heard the testimony, by way of deposition, of Doctors George Alangaden, a Board certified specialist in internal medicine; Shivkumar Prabhu, a gastroenterologist; and Andrea Ajayi, a resident on Plaintiff's treatment team. The documentary evidence included Plaintiff's medical records from VMAC, the test results from the HIV-1 Antibody, EIA test administered by Dr. Stephen Senecoff, the progress notes prepared by Ethel Kellie, Plaintiff's VA Patient Data Card, and Dr. Farrow' s curriculum vitae.
At the conclusion of Plaintiff's case — in — chief, Defendant moved for judgment as a matter of law under Fed.R.Civ.P. 52(c). Defendant argued that Plaintiff failed to sustain her burden of proving that she suffered emotional distress, which manifested itself in a definite and objective physical injury. The Court denied Defendant's motion without prejudice.
The Court, having considered the evidence submitted and the legal arguments of the parties, enters the following Findings of Fact and Conclusions of Law pursuant to Fed.R.Civ.P. 52(a).
II. FINDINGS OF FACT
Geraldine Ives was admitted to VMAC on February 10, 1996, with a history of vomiting blood and a two-week history of difficulty swallowing. Defendant's Exhibit 1, VMAC Record at 15. During Plaintiff's hospitalization, Dr. Stephen Farrow, an internal medicine physician, was her attending physician. A team of residents and medical students, including Dr. Andrea Ajayi, participated in Plaintiff's care.
On February 13, 1996, Plaintiff underwent a esophagogastroduodenoscopy (EGD), which reveled gastritis and esophageal candidiasis in the distal esophagus. VMAC Record at 72— 74. Candidiasis is a fungal infection rarely found in the distal esophagus. Its presence in the distal esophagus is usually associated with a compromise of the patient's immune system and is typically found in a patient with diabetes mellitus or a history of steroid use, cancer, chemotherapy, or HIV.
Plaintiff testified that Dr. Farrow and four other doctors came to her room to discuss the results of her EGO. According to Geraldine Ives, Dr. Farrow sat at the foot of her bed, looked at her, and told her she had HIV. In response to his diagnosis, Ives states that she told him she had not had sex in ten years and inquired as to where she could have contracted the disease. Ives added that Dr. Farrow then questioned her about that, and he explained to Ives how the other common causes of esophageal candiasis had been eliminated. Ives indicated that after the discussion took place, all the doctors left.
Contrary to Plaintiff's version of events, Dr. Farrow testified that he would never tell a patient that she had HIV before the diagnosis had been established by appropriate laboratory tests. He could not recall specifically his conversation with Ms. Ives. However, he is certain that he did not tell her that she had HIV. Dr. Farrow stated that he had never diagnosed HIV in a patient and that he had never been the first doctor to inform a patient that she had HIV.
Dr. Farrow's testimony is further bolstered by the testimony of Dr. Ajayi. She testified that she did not recall Dr. Farrow telling Ms. Ives that she had HIV before testing her. Deposition of Ajayi at 22-23. She claims she would have recalled such a diagnosis because it would have been "remarkable" and "outrageous" to tell a patient she had HIV before obtaining test results. Id. at 23-25.
The Court finds Dr. Farrow's testimony credible and believes that Plaintiff was mistaken about what precisely she was told at the time Dr. Farrow discussed the results of her EGD. The other evidence offered by Plaintiff does not undermine this conclusion.
Plaintiff's son, Clinton Ives, Jr., testified that he arrived at the hospital on the day in question and discovered his mother in the fetal position, crying. Clinton Ives testified that he believed his mother had received horrible news, given her mental state. This testimony is entirely consistent with Plaintiff having misunderstood Dr. Farrow's communication. Clinton Ives was not present at that meeting, and his testimony does not discredit Dr. Farrow's testimony.
Likewise, neither the testimony of Ms. Kellie nor the progress note she prepared dated March 6, 1996, confirms the accuracy of Ives' contention regarding Dr. Farrow. In her position as the women veterans coordinator, Ms. Kellie handled patient complaints. The note merely provides confirmation that Ms. Ives believed she had been told that she was HIV positive by Dr. Farrow before testing had been done. See Plaintiff's Exhibit C. Other evidence garnered by Plaintiff and argument offered in support of her claim fail to persuade this Court that her claim is meritorious.
Plaintiff maintains that Diflucan was prescribed to treat her because she was HIV positive. She also argues that the fact that other causes for her esophageal candidiasis were ruled out strengthens her claim that Dr. Farrow told her she was HIV positive. Finally, Plaintiff notes that Dr. Farrow admitted that his working diagnosis in her case was HIV.
Plaintiff's argument about the import of the evidence she cites pales in light of other evidence in the record. Dr. Farrow testified that Diflucan is an appropriate treatment for esophageal candidiasis regardless of whether the patient is HIV positive. Diflucan is an antifungal agent that is used to treat candidiasis. Deposition of Alangaden at 34. The mere fact that Plaintiff was prescribed Diflucan therefore does not compel this Court to credit her version of events. Further, there is no question that Dr. Farrow was investigating the possibility that Geraldine Ives might be HIV positive. Dr. Farrow ruled out the other known conditions commonly associated with esophageal candidiasis. He testified that it is appropriate totest a patient for HIV when she is suffering from esophageal candidiases and the other common causes are ruled out. This holds true even when no specific risk factor for the transmission of HIV has been identified. Doctors Alangaden and Prabhu confirmed this testimony. See Alangaden Deposition at 38— 39; Prabhu Deposition at 9— 10. There is no question that HIV testing was appropriate here. Finally, Plaintiff presented no evidence to show that the working diagnosis would have been shared with the patient in the form of a diagnosis. Moreover, the Court observes that Dr. Farrow was not a new doctor at the time of this incident, and he is Board certified. There is no reason to believe, on the basis of the record before this Court, that Dr. Farrow would have made such a mistake. Therefore, the Court finds that this evidence does not discredit Dr. Farrow's testimony.
In addition to Dr. Farrow's testimony denying Plaintiff's claim, the Court observes that the diagnostic process itself renders Plaintiff's assertion unlikely. HIV cannot be diagnosed in the absence of a series of laboratory tests conducted on a sample of the patient's blood. Deposition of Alangaden at 9-10. First, an enzyme immunosorbent assay (ELISA) is done. Because ELISA is a screening test, if the result is negative, the patient is presumed not to have HIV. IF the test is positive, it is repeated to verify the accuracy of the first test. Id. at 10. If the second test is positive, the result is confirmed by a more specific test, the Western Blot. When all three tests are positive, a diagnosis of HIV can be made. Id. Dr. Farrow testified knowledgeably about the diagnostic process.
After the meeting between Dr. Farrow and Ms. Ives, she consented to a blood test for HIV antibodies, and Dr. Ajayi wrote an order for an HIV antibody test. Although Plaintiff testified she did not recall whether she read the consent form prior to signing it, the form clearly states that the test is to determine if a patient's blood contained antibodies to HIV and that it was not a test for AIDS. VMAC record at 87— 88. The form indicated that if the initial test came back positive, it would be repeated. This evidence renders Plaintiff's testimony that she believed she was HIV positive unreasonable.
In sum, the variance between Ives' testimony and that of Farrow is best explained by a misunderstanding. The Court does not believe that Ives failed to testify truthfully; it merely finds that she misunderstood the information which Dr. Farrow related to her. At the time, she was ill; and it is clear from her testimony that she was very fearful of AIDS. For example, Ms. Ives testified that AIDS was a "death sentence;" that she had been celibate for ten years because of her concern about AIDS; that she was a "very clean person . . . trying not to have this disease;" and that she was afraid to prepare food for her family while the test results were pending. These factors likely contributed to the misunderstanding.
The Court's finding is strengthened by the fact that Plaintiff's misunderstanding here was not an isolated incident. The medical records and the testimony of Dr. George Alangaden establish that a similar misunderstanding arose when Plaintiff was evaluated for breast cancer. Despite Plaintiff's contention that she was told that she had breast cancer in the spring of 1996. the evidence shows that she was tested, not treated, for breast cancer. A report dated April 9, 1996, indicates that Plaintiff had a mammogram which revealed a nodular density. VMAC Record at 149. A subsequently ultrasound showed a "slightly irregular oval shaped solid lesion within the upper quadrant of her breast." Deposition of Alangaden at 16. Plaintiff was referred for surgical evaluation — fine needle aspiration — — and ultimately diagnosed with fibrocycstic disease, a benign condition of the breast.Id. at 20. Dr. Alangaden testified that he never told Plaintiff that she had breast cancer. Id. at 21-22.
III. CONCLUSIONS OF LAW
Plaintiff exhausted all required administrative remedies prior to filing her Complaint. Jurisdiction in this Court is appropriate under 28 U.S.C. § 1346(b), which provides that the district courts shall have exclusive jurisdiction of civil actions against the United States based on claims for personal injuries.
Whether a claim can be made out against the United States under the Federal Tort Claims Act ("FTCA") depends upon whether a private individual under like circumstances would be liable under (6th Cir. 1996). Because the alleged negligence occurred in Michigan, the Court applies its substantive law.
To establish a legally cognizable medical malpractice claim under Michigan law, Plaintiff must show:
1. Defendant owed plaintiff a duty to render medical care within the appropriate standard of care;
2. The standard of care owed to plaintiff was breached;
3. The plaintiff suffered injury; and
4. The injury was proximately caused by the breach of the standard of care.See generally, Carlton v. St. John Hosp., 182 Mich. App. 166 (Mich.Ct.App. 1989) (per curiam). Accord, Theisen v. Knake, 23 Mich. App. 249, 257 (Mich.Ct.App. 1999) (per curiam)
In a prior Court order, this Court determined that although expert testimony typically establishes the standard of medical practice in this case, "the court is capable of determining whether [the alleged conduct] falls below a professional standard of practice based on the testimony presented by the parties at trial." June 16, 2000, Order at 4. After hearing the testimony, the Court concludes that there is no dispute in this case that informing a person that she is HIV positive prior to diagnostic testing falls outside the appropriate standard of care. Accordingly, Plaintiff proved the first element necessary to establish her claim.
Plaintiff failed to show that Dr. Farrow rendered medical care falling outside the appropriate standard of care. This Court finds that Dr. Farrow did not inform Plaintiff that she was HIV positive. Hence, he did not treat her negligently, and the United States is not liable for damages.
IV. CONCLUSION
Based upon the evidence before this Court, the Court finds that Plaintiff failed to prove her charges by a preponderance of the evidence and holds in favor of the Defendant in this action.
It is so ordered.