Chiarino v. United States

189 F. Supp. 3d 1371, 2016 U.S. Dist. LEXIS 70704, 2016 WL 3083379
CourtDistrict Court, S.D. Florida
DecidedMay 31, 2016
DocketCASE NO: 15-cv-80465-MIDDLEBROOKS
StatusPublished
Cited by4 cases

This text of 189 F. Supp. 3d 1371 (Chiarino v. United States) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chiarino v. United States, 189 F. Supp. 3d 1371, 2016 U.S. Dist. LEXIS 70704, 2016 WL 3083379 (S.D. Fla. 2016).

Opinion

OPINION AND ORDER

DONALD M. MIDDLEBROOKS, UNITED STATES DISTRICT JUDGE

This is an action for negligence -brought by Joseph Chiarino against the United States of America. Mr. Chiarino alleges the United States of America is liable under the Federal Torts Claims Act for failure to diagnose bladder cancer during Mr. Chiarino’s treatment at various Veterans Affairs (“VA”) facilities occurring from September 2012 through April 2013. On May g; 2016,1 held a bench trial at which time documentary and testimonial evi-^enee were presented. Based on the evi-denee presented, I make the following findings of fact and conclusions of law.

I.FINDINGS OF FACT

1. Mr. Chiarino is a veteran of the United States Air Force who served as a fighter jet mechanic and was honorably discharged in 1970. (J. Chiarino Testimony).
2. In September 2012, Mr. Chiarino began exhibiting gross hematuria, blood in his urine. (J. Chiarino Testimony; V. Chiarino Testimony).
3. On September 12, 2012, Mr. Chiarino contacted the VA, complaining of the hematuria. (Pretrial Stip. at 2). On September 16, 2012, Mr. Chiarino visited the emergency room at the VA center in West Palm Beach, Florida. The VA performed a CT scan without contrast of Mr. Chiarino’s bladder (“September Scan”). (Yun Testimony; P’s Ex. 1 at 122). The September Scan revealed a bladder diverticulum, an outpouching on the bladder. (Yun Testimony; P’s Ex. 1 at 122). The September Scan did not reveal the presence of any stones in the bladder. (Yun Testimony; P’s Ex. 1 at 122).
4. On September 20, 2012, the VA performed an ultrasound of Mr. Chiari-no’s bladder. (Yun Testimony). The ultrasound did not reveal any stones in the bladder. (Yun Testimony; P. Ex. 1 at 115). The VA then scheduled a consultation with a VA urologist. (P. Ex. 1 at 122).
[1376]*13765. On October 16, 2012, Mr. Chiarino met with Dr. Diaz, a urologist at the VA hospital. (Yun Testimony; J. Chiarino Testimony). Dr. Diaz ordered a urinalysis test and a cytology. (Yun Testimony). A cytology is a test of a patient’s urine by which an examiner looks at cells that have shed from the bladder lining in order to check for the presence of bladder cancer. (Yun Testimony). The evidence does not indicate the cytology was ever performed. (Yun Testimony).
6. On November 5, 2012, Dr. Diaz performed a cystoscopy on Mr. Chiarino. (P. Ex. 1 at 345-46). A cystoscopy is a procedure where the doctor inserts a small rubber camera into the urethra to view the inside of the bladder. (Yun Testimony). In his description of the procedure, Dr. Diaz wrote:
Upon entering the bladder, the bladder mucosa was normal. There was a large diverticulum on the left posteri- or wall and stone pressing in there. There were no mucosal lesions present. The bladder was scanned completely and we did not see any more stones. There were some calcifications on the surface of the prostate gland and the prostate was friable, bled quite easily.
(P. Ex. 1 at 345) (emphasis added). His diagnosis was that Mr. Chiarino had “benign prostatic hyperplasia” (“BPH”) and a “bladder diverticulum with [a] stone.” (Id.).
7. On January 8, 2013, Mr. Chiarino visited his primary care physician at the VA, Dr. Laurence Greenspoon, for his annual physical. The next day Mr. Chiarino reported to Dr. Green-spoon that he still had hematuria. (P. Ex. 1 at 87).
8. On January 9, 2013, Mr. Chiarino reported to Dr. Diaz that he still had hematuria. (Yun Testimony; P. Ex. 1 at 80).
9. On January 22, 2013, Mr. Chiarino called Dr. Diaz’s office to inform him that Mr. Chiarino was exhibiting he-maturia and dysuria (pain when urinating). (Yun Testimony; P Ex. 1 at 76). Dr. Diaz noted Mr. .Chiarino “does have a friable prosatic urethra and a diverticulum with stone. Will start him on finasteride .... If bleeding does not subside will need to have cysto[scopy] and lithotripsy.” (P Ex. 1 at 76). Finasteride is a medication used to prevent bleeding due to an enlarged prostate. (Kava Tesi-mony). A lithotripsy is a procedure used to break up stones. (Yun Testimony).
10. On February 6, 2013, Mr. Chiarino visited Dr. Diaz and informed Dr. Diaz that he never received the fi-nasteride prescription. (P. Ex. at 74). Diaz noted: “Patient has dysuria and hematuria. Having some trouble emptying bladder and very anxious. [H]e never received prosear order on 1/22_ He needs prosear and Flomax,” (Id.). Prosear is a medication similar to finasteride. (Kava Testimony).
11. On March 8, 2013, Mr. Chiarino called the VA complaining of testicle and groin pain. (J. Chiarino Testimony; P. Ex. 1 at 68-69).
12. On March 12, 2013, Mr. Chiarino went to the emergency room at the VA. (P. Ex. 1 at 65). He complained of “low abdominal pain, painful [sic] when voiding and bilateral groin pain radiating to the testicles [1377]*1377(Id.). The VA performed a CT scan with contrast (“March Scan”). The preliminary report — created by the radiologist working the night shift— found an “[i]ll-defíned 2.5-cm crenu-lated lesion with central hypodensity abutting the left bladder, question a collapsed bladder diverticulum.” (P. Ex. 1 at 62); see also (Yun Testimony). The next day, on March 13, 2013, the daytime radiologist, Dr. Henry Stem, reviewed the March Scan- and changed the preliminary report’s conclusion, writing: “[a] suspicious osseous -abnormality is not identified.... Again seen is a left-sided bladder diverticulum.” (P. Ex. 1 at 295). The March Scan did not reveal the presence of any bladder stone. (Ammann Testimony).
13. On March 19, 2013, Mr. Chiarino called the VA complaining of abdominal pain. (P. Ex. 1 at 46-47). He was told to go to the emergency room. (M; J. Chiarino Testimony).
14. On March 21, 2013, Mr. Chiarino saw Dr. Greenspoon. (P Ex. 1 at 41). Dr. Greenspoon referred Mr. Chiarino to a psychologist. (J, Chiarino Testimony; P. Ex. 1 at 43).,
15. On March 22, 2013, Mr. Chiarino saw a psychologist. (J. Chiarino Testimony; P. Ex. 1 at'32). The psychologist told Mr. Chiarino that his hematuria • might be caused by stress in his life. (J. Chiarino Testimony).
16. On April 30, 2013, Mr. Chiarino called the VA reporting further pain and hematuria. Mr. Chiarino asked to see Dr. Diaz but was told that an appointment with Dr. Diaz was not available until August 2013. (J. Chiarino Testimony). The on-call VA nurse told Mr. Chiarino to go to the emergency room. (J. Chiarino Testimony; P. Ex. 1 at 30).
17. On May 8, 2013, Mr. Chiarino saw a private urologist. Dr. Patrick Hunter. Dr. Hunter performed a cystos-copy on May 21, 2013. (Yun Testimony; D. Ex. 11B at 3). During the cystoscopy, Dr. Hunter could not see the entire bladder as there was too much blood; he ordered a follow-up cystoscopy under anesthesia. (Yun Testimony).
18. On May 23, 2013, Dr. Hunter performed a cystoscopy under anesthesia. (Pretrial Stip. at 2). Dr. Hunter identified adema and swelling on the left side wall of the bladder.

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Bluebook (online)
189 F. Supp. 3d 1371, 2016 U.S. Dist. LEXIS 70704, 2016 WL 3083379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chiarino-v-united-states-flsd-2016.