Torres-Lazarini v. United States

523 F.3d 69, 2008 U.S. App. LEXIS 8138, 2008 WL 1735381
CourtCourt of Appeals for the First Circuit
DecidedApril 16, 2008
Docket06-2634
StatusPublished
Cited by19 cases

This text of 523 F.3d 69 (Torres-Lazarini v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Torres-Lazarini v. United States, 523 F.3d 69, 2008 U.S. App. LEXIS 8138, 2008 WL 1735381 (1st Cir. 2008).

Opinion

KEENAN, District Judge.

Plaintiff-appellant Sigfrido Torres-La-zarini appeals from the district court’s entry of judgment in favor of defendant-appellee the United States (the “government”). Plaintiff brought suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et seq., alleging that the medical staff of the Veterans Administration Hospital in San Juan, Puerto Rico (the “VA hospital”) failed properly to diagnose an injury to his right shoulder. After a bench trial, the district court issued a memorandum order finding that plaintiff had not proven medical malpractice and dismissed the action. We affirm.

Background

The testimony presented at trial established the following. Torres-Lazarini is a retired Marine and veteran of the Korean War who has been receiving treatment at the VA hospital since 1953. On September 9, 2002, when he was seventy-one years old, he collapsed at his home due to dizziness and injured his right shoulder in the fall. He went to the VA hospital’s emergency room and was referred for treatment to Sylvia Rodríguez, M.D., his primary physician, complaining of pain and limited range of motion. Dr. Rodriguez examined his shoulder and ordered x-rays of the area. The x-rays revealed no damage from the fall but did reveal a mild degenerative bone condition, a precursor to osteoporosis. Torres-Lazarini was of *71 fered anti-inflammatory medication but refused it. Dr. Rodriguez suggested that he apply ice to the shoulder and told him to return to see her in two weeks if there was no improvement.

Torres-Lazarini did not return to the VA hospital with complaints of shoulder pain until mid-November 2002. Dr. Rodriguez examined the shoulder and concluded that its condition had worsened. She offered to refer Torres-Lazarini to a physia-trist, a specialist who could determine if an MRI study was indicated, and gave him an “emphatic” recommendation to undergo physical therapy. He turned down these suggestions and agreed only to undergo a bone densitometry test and to begin a home exercise program. He returned to the VA hospital again in December 2002, complaining of shoulder pain and a delay in obtaining an appointment for the bone densitometry test. He refused Dr. Rodriguez’s offer to evaluate his shoulder. Dr. Rodriguez told him that he had an open appointment to come see her in the event he changed his mind and wanted further medical evaluation.

In May 2004, Torres-Lazarini brought a mandamus action in district court against the government, alleging that he had received no follow-up treatment and that, despite having sent numerous letters to the Veterans Administration requesting treatment, he received no response. In August 2004, he had another appointment with Dr. Rodriguez. He requested to have another doctor assigned as his primary physician and refused further evaluation of his shoulder. Dr. Rodriguez recommended that he undergo an MRI, receive physical therapy, and schedule follow-up appointments. Torres-Lazarini underwent an MRI for his shoulder a few weeks later. The MRI revealed osteoarthritis and tearing of several tendons in the shoulder. The VA hospital offered him the option of surgery to implant a prosthetic replacement of the humeral head of his right shoulder. Torres-Lazarini was told that, although the surgery would not necessarily help restore range of motion, it would ease his pain. He declined the surgery.

In October 2004, Torres-Lazarini moved to dismiss his mandamus action without prejudice, stating that he was receiving therapy. The court entered judgment dismissing the action.

Torres-Lazarini filed the present action against the government on February 3, 2005. At the bench trial, he presented the testimony of an expert witness, Dr. Humberto Díaz-Negrón, a disability specialist and orthopedic surgeon. Dr. Díaz-Negrón had examined Torres-Lazarini’s medical records but had never performed a physical examination of him. The expert testified that, in his opinion, the VA hospital breached its duty of care by failing to conduct an orthopedic evaluation shortly after the September 9, 2002 fall and by waiting two years before conducting an MRI. He also testified that surgery soon after the accident would have restored range of motion and alleviated pain.

The government presented the testimony of its expert, Dr. Carlos Grovas Badre-na, an orthopedic surgeon. Dr. Grovas physically examined Torres-Lazarini and also examined his medical records. He testified that the medical records indicated that, between September 9, 2002 and May 4, 2004, Torres-Lazarini visited the VA hospital on nine occasions without complaining of shoulder problems. Dr. Grovas also testified that, as a result of his physical examination of Torres-Lazarini, he believed severe osteoarthritis was causing the shoulder pain. Further, Dr. Grovas stated that Dr. Rodriguez’s recommendation of physical therapy was the proper treatment for loss of motion due to a dislocated shoulder. In addition, Dr. Grovas *72 testified that, in his opinion, there was no breach of care by the VA hospital because it was not standard practice to refer a patient with negative x-rays to an orthopedist. Rather, Dr. Rodriguez followed standard procedure by. immediately ordering x-rays, recommending a course of anti-inflammatory medication and a follow-up appointment. Finally, Dr. Grovas stated that Dr. Rodriguez’s recommendations to Torres-Lazarini that he receive evaluation from a physiatrist — who would then be in a position to decide whether an MRI was indicated — and that he undergo physical therapy, were proper.

Torres-Lazarini testified, in contradiction of his medical records, that he did not refuse treatment on several occasions. He also testified about the unanswered letters he sent to the Veteran’s Administration requesting treatment.

At the conclusion of the bench trial, the district court found no medical malpractice and entered judgment for the government. On appeal, Torres-Lazarini raises several challenges to the district court’s findings. He claims that the court erred in finding that he refused treatment because he asserts that the VA hospital ignored his repeated letters requesting treatment; that the court improperly considered his prior lawsuits against the Veterans Administration and arrests at the hospital; that the court erred in finding that his testimony was not credible; and that the court’s findings of fact are deficient because they failed to address, or even mention, the testimony of his expert, Dr. Díaz-Negrón. These claims can be collapsed into one issue: whether the district court clearly erred in finding that Dr. Rodriguez’s treatment of plaintiffs shoulder did not deviate from the standard practice of care.

Discussion

A district court’s findings after a bench trial “must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” Fed.R.Civ.P. 52(a). A finding is only clearly erroneous if review of the entire record leads to a definite and firm conviction that an error has been made. See Primus v. United States, 389 F.3d 231, 237 (1st Cir.2004).

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Bluebook (online)
523 F.3d 69, 2008 U.S. App. LEXIS 8138, 2008 WL 1735381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/torres-lazarini-v-united-states-ca1-2008.