Michelle Day v. United States

865 F.3d 1082, 2017 WL 3254659, 2017 U.S. App. LEXIS 14079
CourtCourt of Appeals for the Eighth Circuit
DecidedAugust 1, 2017
Docket16-3118
StatusPublished
Cited by6 cases

This text of 865 F.3d 1082 (Michelle Day v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Michelle Day v. United States, 865 F.3d 1082, 2017 WL 3254659, 2017 U.S. App. LEXIS 14079 (8th Cir. 2017).

Opinion

MELLOY, Circuit Judge.

In 2011, a radiologist with the United States Department of Veterans Affairs (“VA”) failed to identify a cancerous mass in the liver of James Avery Deweese Sr. The mass nearly doubled in size before it was finally diagnosed in 2013, and Dew-eese died shortly thereafter. Asserting survival and wrongful-death claims under Arkansas law, Deweese’s family and the administrator of his estate (“Plaintiffs”) filéd the present action against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1). The United States conceded that the VA radiologist provided substandard care, but it moved for summary judgment on the issue of proximate causation. The district court 1 granted the motion. After carefully reviewing the record in the light most favorable to Plaintiffs, we affirm.

I.

Deweese was approved for home-based primary care by the Central Arkansas Veterans Healthcare System in 2009. Among other medical conditions, Deweese suffered from cirrhosis, diabetes mellitus, diabetic peripheral neuropathy, chronic kidney disease, degenerative joint disease, chronic back pain, anxiety, and depression.

In 2011, Deweese’s laboratory results revealed elevated liver function. Rose Ann Hodges, an advanced practice registered nurse who led Deweese’s care team, recommended that Deweese undergo a computerized tomography (“CT”) scan. Dew-eese underwent the CT scan in October 2011 at a VA hospital in Little Rock, Arkansas. The VA radiologist who read the scan noted that Deweese’s cirrhosis was stable, but identified nothing further.

Nearly two years later, on July 7, 2013, Deweese presented to the emergency room complaining of increased and painful urination, incontinence, and suprapubic pain. His wife also reported disorientation, confusion, and slurred speech. On suspicion of hyperammonemia, Deweese was admitted to the hospital for further testing. An ultrasound on July 8 revealed a suspicious mass in Deweese’s liver, and a CT scan on July 12 revealed that the mass measured 11.8 x 9 x 12.6 centimeters in size. This CT scan was subsequently compared to the CT scan from 2011. Upon comparison, the radiologist noted that the mass was present in the 2011 scan and that, at that time, it had only measured 6.4 x 4.7 x 6.3 centimeters.

Deweese, too weak to receive treatment, was placed on palliative care. He died on July 22, 2013, at the age of 77. An autopsy confirmed heptocellular carcinoma, ie., cancer in Deweese’s liver. The immediate cause of Deweese’s death, however, was not determined because the autopsy was limited to a single organ.

*1085 Plaintiffs filed administrative claims with the VA, asserting that it negligently failed to identify Deweese’s liver cancer in the 2011 CT scan. As .a result of this negligence, Plaintiffs alleged, Deweese “suffered a loss of enjoyment of life over the two years between the [2011 and 2013] CT scans” and died from the liver cancer. Deweese’s wife, Plaintiff Ruth Deweese, also claimed loss of consortium and companionship. The VA denied Plaintiffs’ administrative claims.

Renewing their allegations, Plaintiffs filed the present action against the United States. The United States conceded before the district court that the VA radiologist was negligent in reading the 2011 scan. However, in moving for summary judgment, the United States argued that Plaintiffs presented insufficient evidence that the VA’s negligence was the proximate cause of Deweese’s death.

The summary-judgment record contains the following evidence. First, Plaintiffs offered deposition testimony regarding the possibility Deweese might have received a liver transplant had the cancer been detected in 2011. Plaintiffs’ expert Dr. Frederick Bentley, a surgeon trained in liver transplants, testified that not all patients are eligible for transplants because donor livers are limited. According to Dr. Bentley, Deweese would not have been eligible to be placed on the national list for a transplant because, on the 2011 CT scan, the mass in his liver exceeded 5 centimeters in dimension. Plaintiffs’ expert Dr. James Stark, a professor of internal medicine who teaches oncology, testified that “[w]e don’t know” whether Deweese would have received a liver transplant.

Second, Plaintiffs offered deposition testimony regarding the possibility the tumor could have been surgically removed through liver resection in 2011. Dr. Bentley opined that Deweese, like most patients with liver cancer, would not have tolerated the physiological stress of resection. To support this opinion, Dr. Bentley cited evidence that Deweese had portal hypertension, which makes resection surgeries “very risky” because of blood loss, as well as Deweese’s “functional status and comorbidities.” Dr. Stark opined there was a 30% chance that liver resection would have cured Deweese’s cancer.

Third, Plaintiffs offered deposition testimony from Dr. Bentley regarding non-curative treatments that could have extended Deweese’s life. In some studies, Dr. Bentley testified, the median patient receiving a particular treatment lived for 28 months; Deweese, by contrast, lived approximately 21 months after the 2011 CT scan. Nevertheless, Dr. Bentley could not say whether Deweese would have fallen above or below the median.

Finally, Plaintiffs offered deposition testimony regarding pain damages. According to Nurse Hodges, Deweese consistently reported his pain to be a seven-out-of-ten in the years the home-based care team visited him. A seven, she testified, is “pretty high.” Nurse Hodges continued: “But he’s laughing and he’s joking and carrying on every visit; not the typical seven you would think.” Nurse Hodges also testified that Deweese complained of “generalized abdominal tenderness.” She stated, however, that Deweese “didn’t complain of any pain without palpating,” i.e., compressing, his abdomen. She testified that “sometimes his pain would be up here [indicating]. Sometimes—his little belly pain, when you palpate, would be down here [indicating]. Sometimes it would be all over, just nonspecific.” (alterations in original). Nurse Hodges did not specify when Deweese first began complaining of abdominal tenderness, but she did testify that his pain reports did not change from 2011 to 2013.

The United States’s expert Dr. Lawrence Lessin, a former cancer institute *1086 director, testified that the growth of a liver tumor “can” produce pain in patients. Dr. Lessin also noted that Deweese was “never on strong anodyne or pain medications.” If Deweese had in fact been experiencing pain from the liver cancer, Dr. Lessin testified, Deweese could have been placed on a variety of pain management protocols that “could have significantly reduced [his] pain.” Dr. Lessin, however, testified that “[s]ome [liver cancer] patients ... have no symptoms. It can be a silent tumor.” Further, like Nurse Hodges, Dr. Lessin noted the inconsistency between Deweese’s pain reports to the care team and his demean- or. Because of this inconsistency, Dr. Les-sin was not certain “whether [Deweese] was really experiencing pain at [a high] level or not.... [T]hat would have to be evaluated by a pain expert.”

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Cite This Page — Counsel Stack

Bluebook (online)
865 F.3d 1082, 2017 WL 3254659, 2017 U.S. App. LEXIS 14079, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michelle-day-v-united-states-ca8-2017.