Castillo v. United States of America

Opinion

1 2 3 4 5 6 7 10 11 MANOLITO CASTILLO, Case No.: 19cv00200-JAH-RBB

12 Plaintiff, FINDINGS OF FACT AND 13 v. CONCLUSIONS OF LAW AND JUDGMENT FOR DEFENDANT 15 Defendant. 16 18 Plaintiff Manolito Castillo seeks damages for injuries resulting from Defendant 19 United States of America’s negligence for treatment received from the Veterans Affairs 20 (“VA”) San Diego Heath Care System. Thomas F. Friedberg appeared on behalf of 21 Plaintiff and Steven Poliakoff and Steve Chu appeared on behalf of Defendant at trial. 22 After hearing testimony and argument of counsel at the trial, the matter was taken under 23 submission. The parties filed separate trial briefs following trial, responses to the other 24 party’s brief and replies. Defendant also filed a motion to dismiss which the Court denied 25 in a separate order. 26 Having considered the testimony and argument presented by the parties at trial and 27 the post-trial briefs, this Court makes the following findings of fact and conclusions of law: 28 2 1. Plaintiff was 66 years old when he went to the VA Optometry Clinic in Mission 3 Valley on March 24, 2016, for a follow-up appointment for treatment of his 4 ophthalmological glaucoma. He was examined by Therese Nguyen, Doctor of Optometry. 5 2. At his appointment, Plaintiff reported a sudden change in his vision during the 6 preceding week. Dr. Nguyen, diagnosed Plaintiff with right eye central retinal vein 7 occlusion (“CRVO”). 8 3. CRVOs produce a substance called vascular endothelial growth factor (“VEGF”) 9 which can result in the formation of abnormal blood vessels through a process called 10 neovascularization. The abnormal blood vessels can block drainage from the back of the 11 eye which increases the pressure within the eye (“intraocular pressure” or “IOP”) and can 12 compress the optic nerve, causing neovascular glaucoma. If neovascular glaucoma is not 13 promptly treated, the visual cells of the retina can be irreversibly injured and the individual 14 can lose all vision in that eye. 15 4. Dr. Nguyen was unable to complete her evaluation on March 24, 2016, due to 16 Plaintiff’s uncontrolled high blood pressure and the unavailability of equipment necessary 17 for further evaluation at the Mission Valley clinic. Dr. Nguyen issued an order for an 18 appointment for Plaintiff at the La Jolla VA clinic the next day for further evaluation. 19 5. Dr. Nguyen’s evaluation of Plaintiff between March 24th and 25th included 20 pupillary assessment for a relative afferent pupillary defect (“RAPD”) (a test by which any 21 differences in the reactivity of each of a patient’s pupils to light is assessed), best corrected 22 visual acuity, IOP of both eyes, slit lamp examination, gonioscopy to evaluate for 23 neovascularization at the angle (the area where fluid in the eye is drained), dilated fundus 24 examination (“DFE”), and optical coherence tomography (“OCT”). 25 6. The evaluation demonstrated that Plaintiff did not have a RAPD or visual defect nor 26 did he have an elevated IOP or any neovascularization. Based on the results, Dr. Nguyen 27 concluded that Plaintiff had non-ischemic CRVO, meaning that his eye and retina were 28 receiving sufficient oxygenated blood. 1 7. There are two types of CRVO, ischemic and non-ischemic. Ischemic CRVO is 2 where the blockage of the vein causes a lack of blood flow and oxygen to the retina, causing 3 a release of the VEGF, which in turn causes a greater lack of blood flow and oxygen. Non- 4 ischemic CRVO is more benign, where vision is usually good and there is still blood flow 5 to the retina, meaning the retina is not deprived of oxygen despite being blocked. 6 8. When a CRVO is converting from non-ischemic to ischemic, new blood vessels can 7 be present on the iris and in the angle, or drainage system, as well. When new blood vessels 8 are present, if left unchecked, the patient can develop rubeotic glaucoma or 9 neovascularization glaucoma. This results in raised pressure that affects the optic nerve 10 and will eventually lead to blindness. 11 9. Plaintiff’s 20/20 visual acuity during Dr. Nguyen’s evaluation placed him in a 12 category of non-ischemic CRVO patients where the likelihood of neovascularization is less 13 than 5%. 14 10. Dr. Nguyen developed a treatment plan following her evaluation that included a 15 referral to the ophthalmology/retina clinic within one month. Dr. Nguyen reported that she 16 would overbook Plaintiff’s return appointment if advised to do so by a consulting 17 ophthalmologist. 18 11. Dr. Nguyen advised Plaintiff that he should continue with his eye drops and return 19 for an evaluation and treatment sooner if there were any sudden changes in his vision and/or 20 he experienced eye pain. 21 12. Dr. Nguyen forwarded her plan, along with Plaintiff’s fundus photos and OCT, to 22 the Ophthalmologist/Retinal specialist, Henry Ferreyra, M.D., for consultation. 23 13. On March 30, 2016, after reviewing Plaintiff’s records, Dr. Ferreyra found the OCT 24 showed Plaintiff had CRVO with mild cystoid macular edema (“CME”) and concurred 25 with Dr. Nguyen’s assessment. 26 14. Dr. Ferreyra approved Dr. Nguyen’s treatment plan, advising that Plaintiff should 27 be referred to the retina clinic for clinical correlation and repeat OCT in one month. Dr. 28 1 Ferreyra recommended Plaintiff take Avastin, an Anti-VEGF medication, if the CME 2 worsened. 3 15. On March 30, 2016, Dr. Nguyen entered an order for Plaintiff to return to the clinic 4 within one (1) month and indicated “no overbook” in the scheduling order. 5 16. At the time, VA schedulers required a provider’s overbook order to schedule a 6 patient into an appointment timeslot that was already filled by other patients. 7 17. Dr. Nguyen, an optometrist, does not overbook into ophthalmology without 8 instruction from the consulting ophthalmologist. In this case, Dr. Ferreyra did not indicate 9 an overbook was necessary. 10 18. On March 30, 2016, a VA scheduler could not reach Plaintiff by phone to book his 11 follow-up appointment. Per VA policy, a scheduling card was mailed on April 4, 2016 to 12 Plaintiff instructing him to call for an appointment. 13 19. On April 4, 2016, Plaintiff called the VA to ask about the status of his eyeglasses. 14 During the call, Plaintiff asked about his follow-up appointment with ophthalmology and 15 was told there was no record of an ophthalmology appointment. 16 20. On April 11, 2016, Plaintiff called to schedule his appointment with the 17 ophthalmology clinic after receiving his recall reminder letter in the mail. The VA operator 18 informed Plaintiff they had no openings until May 16, 2016, 17 days after Dr. Nguyen’s 19 return to clinic date. Plaintiff responded that he would be out of town on that date, and the 20 operator was able to schedule Plaintiff for a May 23, 2016 appointment as the next available 21 option. 22 21. The VA policy at the time allowed schedulers to offer appointments to patients up 23 to 30 days after the return to clinic date ordered absent an overbook order. Dr. Nguyen’s 24 order for Plaintiff to return to clinic within one (1) month meant that the scheduler could 25 schedule Plaintiff’s appointment up to 30 days beyond that date. 26 22. In early May 2016, while in Pennsylvania, Plaintiff experienced eye redness, eye 27 pain and loss of vision for at least a period of five (5) days before calling the VA on May 28 1 9, 2016, despite Dr. Nguyen’s instruction of March 25, 2016. The VA advised Plaintiff to 2 obtain emergency care within one to two hours. 3 23. Plaintiff did not obtain emergency care on May 9, 2016, as advised. Instead, 4 Plaintiff made an appointment to be seen by an ophthalmologist, Michael Negrey, M.D., 5 in Havertown, Pennsylvania on May 10, 2016. 6 24. On May 10, 2016, Dr. Negrey recorded that Plaintiff complained of his right eye 7 being red for about 7 days and that he had lost vision that week. 8 25. Dr. Negrey found that Plaintiff’s right eye vision was such that he could count 9 fingers and his IOP was 54. Dr. Negrey diagnosed Plaintiff with right eye neovascular 10 glaucoma, indicating Plaintiff’s CRVO had converted from non-ischemic to ischemic and 11 prescribed eye drops for treatment. 12 26. Plaintiff returned to Dr. Negrey on May 16, 2016, for a follow-up appointment and 13 determined Plaintiff’s IOP was still elevated at 46 and his vision had diminished to seeing 14 only hand motion with his right eye. Dr. Negrey advised Plaintiff to follow-up in San 15 Diego for evaluation as soon as he returned. 16 27. After Plaintiff’s return to San Diego, Plaintiff called the VA on May 18, 2016, and 17 asked to speak to any doctor at the clinic, if Dr. Nguyen was not available. He reported 18 that his eye was bulging with a lot of pressure, and that he was experiencing sudden 19 blindness which began after the end of April 2016. Plaintiff asked to see a doctor before 20 his scheduled appointment, but he was not permitted to do so. 21 28. When Plaintiff arrived for his May 23, 2016 appointment, he was examined by 22 Roman Fajardo, M.D., an ophthalmologist under Dr. Ferreyra’s supervision. 23 29. Plaintiff’s May 23, 2016 examination demonstrated right eye neovascularization, a 24 right eye IOP of 47, and vision limited to hand movement with his right eye. Plaintiff was 25 treated with an injection of an anti-VEGF treatment into his right eye to stop the 26 progression of the neovascularization, as well as Diamox, an oral medication, and 27 eyedrops. Plaintiff was scheduled for the glaucoma clinic 4 days later. 28 1 30. When Plaintiff was evaluated at the glaucoma clinic on May 27, 2016, the damage 2 was such that the treatments he received were unsuccessful. Plaintiff had no light 3 perception and was permanently blind in his right eye. 4 31. Duane Bryant, M.D., testified that on March 24, 2016, Plaintiff had high 5 comorbidities that placed him at high risk of CRVO, such as his age of 55, uncontrolled 6 blood pressure, sleep apnea, increased levels of cholesterol, heart problems, a previous 7 ischemic stroke, and diabetes. Dr. Bryant opined that Plaintiff’s fundus photographs 8 revealed a great deal of blot hemorrhage, more than normally seen in non-ischemic CRVO, 9 such that if Plaintiff was not already ischemic Dr. Bryant would assume Plaintiff’s 10 condition was going that way. 11 32. Dr. Bryant testified that on the basis of the photographs, additional testing should 12 have been done, specifically a fluorescein angiogram in order to meet the standard of care. 13 A fluorescein angiogram is an eye test that uses a special dye and camera to look at blood 14 vessels at the back of the eye. Dr. Bryant opined that this test would have definitively 15 determined whether Plaintiff’s CRVO was more non-ischemic versus ischemic and failure 16 to order this test in light of the photographs fell below the standard of care. 17 33. Dr. Bryant testified that, based on a 2021 standard, the standard of care for ischemic 18 CRVO required the patient to be seen once a month for six months. Dr. Bryant opined the 19 standard of care required Plaintiff return in 30 days due to his comorbidities, the 20 photographs, and the failure to provide a fluorescein angiogram. 21 34. Dr. Bryant also testified that it was below the standard of care for Dr. Fajardo to not 22 provide a tube shunt or cyclocryotherapy or laser therapy when he saw Plaintiff on May 23 23, 2016. 24 35. Melissa Neuwelt, M.D., a vitreoretinal surgeon at the San Francisco Veteran Affairs 25 Medical Center and an Assistant Professor of Clinical Ophthalmology at the University of 26 California, San Francisco, testified that presenting visual acuity and the absence of a RAPD 27 are the most important distinguishing factors between non-ischemic and ischemic CRVOs. 28 1 36. Dr. Neuwelt opined that Dr. Nguyen met the standard of care in determining 2 Plaintiff had a non-ischemic CRVO using his vision, pupillary exam, DFE, and 3 gonioscopic findings. 4 37. Citing the Central Vein Occlusion Study Group’s (“CVOS”) 1997 study, the 5 “Natural History and Clinical Management of Central Retinal Vein Occlusion,” Dr. 6 Neuwelt testified that the standard of care for follow-up of non-ischemic CRVO patients 7 with 20/40 visual acuity or better was 1-2 months. 8 38. The CVOS study is considered to provide the most extensive evidence on the natural 9 history of CRVO. 10 39. Dr. Neuwelt testified Plaintiff fit the criteria of the CVOS study participants and his 11 visual acuity of 20/20 placed him in the category of non-ischemic CRVO patients where 12 the likelihood of conversion to neovascularization was less than 5%; and, even if Plaintiff 13 had been seen prior to April 29, 2016, there was less than a 15% chance he would have had 14 signs of ischemia and less than a 5% chance he would have had neovascularization of his 15 iris or angle. 16 40. Dr. Neuwelt opined that, based upon her experience and knowledge, a follow-up 17 appointment within 1-2 months was the standard of care in 2016 for a patient like Plaintiff 18 with a non-ischemic CRVO, visual acuity of 20/20, and no RAPD. 19 41. Dr. Neuwelt testified that treatment of neovascular glaucoma is often managed by 20 both retinal subspecialists and glaucoma subspecialists. As a retinal specialist who shares 21 responsibility with her glaucoma colleagues, Dr. Neuwelt testified that Dr. Fajardo’s 22 referral of Plaintiff to a glaucoma specialist on May 23, 2016 was appropriate and met the 23 standard of care. 24 42. John Shan, M.D., Chief of Service of the Department of Optometry at the Kaiser 25 Panorama City Medical Center and the Regional Co-chair of the Kaiser Southern 26 California Optometry Scope of Practice Committee, whose purpose is to “develop and 27 inform” the 300-350 Permanente Medical Group optometrists of the standard of care, 28 testified that a fluorescein angiogram would not have been appropriate on March 24th or 1 25th, because active intraretinal hemorrhages will block where the dye enters which results 2 in increased darkening. 3 43. Dr. Shan testified that a follow-up appointment of one month with a retina specialist 4 was conservative because the probability of Plaintiff developing neovascular glaucoma 5 within three months was low. Dr. Shan further testified that the probability of a non- 6 ischemic CRVO developing into neovascular glaucoma was below 15% within the first 7 four months after diagnosis. 8 44. Dr. Shan opined that Dr. Nguyen met the standard of care when she instructed 9 Plaintiff to return to the clinic if he developed any visual changes or eye pain so that he 10 could be evaluated for the possible development of neovascular glaucoma. 11 45. Dr. Shan testified that the conversion from non-ischemic to ischemic does not mean 12 the patient will develop neovascularization glaucoma. Dr. Shan explained that, in the 13 context of vision loss, CRVO has to convert, develop neovascularization at the angle, 14 increase the eye pressure, block the drainage system of the eye to the point where there’s 15 damage, qualify it for nerve damage, and then qualify it as a neovascularization glaucoma 16 case. 18 46. California law governs this action brought under the Federal Tort Claims Act. See 19 28 U.S.C. § 1346(b)(1). 20 47. To establish medical negligence under California law, Plaintiff must prove, by a 21 preponderance of the evidence (1) Defendant was negligent, (2) Plaintiff was harmed, and 22 (3) Defendant’s negligence was a substantial factor in causing Plaintiffs’ harm. See CACI 23 400; Uriell v. Regents of University of California, 234 Cal.App.4th 735 (2015). 24 48. A substantial factor is more than a remote or trivial factor that a reasonable person 25 would believe contributed to the harm. CACI 430. 26 49. A medical service provider must exercise the level of skill, knowledge, and care in 27 diagnosis and treatment ordinarily possessed and exercised by medical providers in similar 28 circumstances. Landeros v. Flood, 17 Cal.3d 399, 408 (1976). 1 50. The level of skill, knowledge and care used by reasonably careful medical service 2 providers is determined by expert witness testimony. Id. at 410. 3 51. Causation must be proven within a reasonable medical probability based upon the 4 expert testimony. Jones v. Ortho Pharmaceutical Corp., 163 Cal.App.3d 396, 402–403 5 (1985). 6 52. “A medical specialist must possess and use the learning, care and skill normally 7 possessed and exercised by practitioners of that specialty under the same or similar 8 circumstances.” Carmichael v. Reitz, 17 Cal. App. 3d 958, 976 (1971). 9 53. “[I]n treating a patient a physician can consider only what is known at the time he 10 or she acts.” Vandi v. Permanente Med. Grp., Inc., 7 Cal. App. 4th 1064, 1070 (1992). 11 54. “A difference of medical opinion concerning the desirability of one particular 12 medical procedure over another does not…establish that the determination to use one of 13 the procedures was negligent.” Clemens v. Regents of Univ. of Calif, 8 Cal. App. 3d 1, 13 14 (1970) (citing Meier v. Ross Gen. Hosp., 69 Cal 2d. 420, 434 (1968)). 15 55. “A medical practitioner is not necessarily negligent just because she chooses one 16 medically accepted method of treatment or diagnosis and it turns out that another medically 17 accepted method would have been a better choice.” CACI 506; see also Meier, 69 Cal.2d 18 at 434. 19 56. Dr. Nguyen met the standard of care existing for medical providers in 2016, and, 20 therefore, was not negligent when she diagnosed Plaintiff with non-ischemic CRVO. 21 57. Based upon the weight of the expert testimony, there is no credible evidence that 22 Plaintiff’s condition would have materially changed in the 30 day period from that existing 23 when Dr. Nguyen examined him on March 24, 2016 and March 25, 2016. 24 58. The standard of care in Plaintiff’s case required his follow-up appointment to be 25 scheduled within 1-2 months. 26 59. Dr. Nguyen did not fall below the standard of care and, therefore, was not negligent 27 when she entered the order for Plaintiff to return to the clinic within one (1) month and did 28 not order an overbook. 1 60. Dr. Fajardo did not fall below the standard of care, and therefore was not negligent, 2 when he referred Plaintiff to a glaucoma specialist. 3 61. Plaintiff fails to establish by a preponderance of the evidence that Defendant was 4 negligent in the diagnosis and treatment he received from VA medical providers. 5 The Clerk of Court shall enter judgment in favor of Defendant. 7 DATED: June 2, 2022 8 9 _________________________________ JOHN A. HOUSTON 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28