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SCHUNK v. UNITED STATES

January 2, 1992

MICHAEL SCHUNK, Plaintiff, against UNITED STATES OF AMERICA, Defendant.


The opinion of the court was delivered by: THOMAS C. PLATT

 PLATT, Chief Judge.

 INTRODUCTION

 This matter came on for trial May 1, 1990, upon the complaint of Michael Schunk, a Vietnam veteran. Plaintiff claims that, between 1979 and 1985, doctors at the Veterans Administration Medical Centers in Long Beach, California ("Long Beach VA") and in Northport, New York ("Northport VA") committed medical malpractice by failing to diagnose properly the cause of his chronic headaches and pain before prescribing benzodiazepines *fn1" and narcotic analgesics in such a manner that plaintiff "might" have become addicted to them. See Testimony of Dr. Bernard Salzman, RII:12-14. *fn2" Plaintiff further claims that if the VA did not cause his addictions, the VA improperly perpetuated them. See id. Pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80, he seeks damages of more than $ 1 million. See Proposed Joint Pre-trial Order, at para. II(b)-(c).

 Plaintiff filed an administrative claim dated March 24, 1986 in which he complained that the "Veterans Administration Hospital [sic] prescribed tylox continually at sufficient doses to cause addiction by the claimant without notice of risks involved. Permanent emotional trauma." Original Complaint, App. 1.

 Plaintiff filed his original complaint herein on April 6, 1987, and an amended complaint on February 21, 1989. In paragraphs 5 and 6 of the amended complaint, plaintiff alleges that while being treated on both an in-patient and out-patient basis at the Veteran Administration Hospitals in Long Beach, California (June, 1979 through November, 1982) and Northport, New York (December 1982 through September, 1985), plaintiff was negligently prescribed numerous narcotic analgesics and tranquilizers in such quantities as to addict plaintiff to these drugs. See Amended Complaint, paras. 5, 6.

 At trial, the United States renewed its motion to dismiss plaintiff's claims of malpractice against the Long Beach VA 1979-1982 and all allegations concerning medications other than tylox, on the grounds that plaintiff failed to exhaust his administrative remedies and that, in any event, such claims are barred by the two-year statute of limitations. See 28 U.S.C. §§ 2675(a), 2401(b). These motions are now granted. Upon the entire record, the Court makes the following findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a).

 FINDINGS OF FACT

 A. Plaintiff's Prior Medical History: 1968-1979

 1. Prior to his treatment at the VA hospitals, plaintiff had a long history of drug and other substance abuse.

 2. As a teenager, plaintiff smoked marijuana and drank alcohol excessively. See Schunk, RI:46, 48; Pltf's Ex. 1, at 38-39.

 3. While serving in the United States Air Force from 1969 to 1971, plaintiff smoked opium at least once and marijuana several times. He also had numerous experiences with cocaine and hallucinogens such as LSD. See Schunk, RI:50, 52; Pltf's Ex. 1, at 38; Pltf's Ex. 3, at 115A.

 4. Plaintiff reported to a psychiatrist in 1971 that he had had to stop drinking in 1970 because of blackouts. See Pltf's Ex. 1, at 38. Nevertheless, plaintiff resumed drinking alcohol while he was still in the military service. See Schunk, RI:45, 50-51.

 5. Plaintiff also began smoking cigarettes in the service. See id. at 50.

 6. While he was in the military, plaintiff was in three motorcycle accidents. See id. at 40-41. He began to experience headaches, as well as pain in his spine, joints and hands. See Pltf's Ex. 1, at 26, 42, 54, 55, et passim.

 7. For the first time, he was prescribed codeine, a narcotic analgesic derived from opium. See Schunk, RI:40; Dr. Robert Derman, RV:41.

 8. In addition, because he felt "nervous," plaintiff went to the dispensary to obtain valium, which he took for at least two months. See Schunk, RI:42-43. Other prescription drugs plaintiff took during this period included librium for "shakiness," darvon (a synthetic form of codeine) for lower back pain, and parafon forte, a muscle relaxant for shoulder pain. See Pltf's Ex. 1, at 26-27, 51-52; Schunk, RI:39-45; Derman, RII:82.

 9. Plaintiff began talking to the walls. See Schunk, RI:44.

 10. His commanding officer ordered him to see a psychiatrist. See id. at 53.

 11. In 1971, he was admitted to an Air Force Base hospital for a three-month psychiatric evaluation. See id. at 53-54. The official medical chart from that time records a discharge diagnosis of "drug-induced psychosis and schizoid personality." Pltf's Ex. 1, at 39.

 12. After his discharge from the Air Force in August 1971, plaintiff remained unemployed for one year. He drank beer, vodka or "anything he could obtain," as much as he could, from the time he awoke in the morning. He also took LSD at least twice. See Schunk, RI:56-57.

 13. Plaintiff's headaches and pain persisted. See Schunk, RI:21, 58.

 14. In 1973, a private physician in New York prescribed darvon after plaintiff fell off a ladder. See Deft's Ex. C, at 19.

 15. By 1974, plaintiff was seeing a doctor who prescribed maximum strength ergot, a drug commonly used to treat migraine headaches. Plaintiff took this medication for one year. See Schunk, RI:21, 59-60; Derman, RII:85.

 16. In 1975, he saw a neurologist in New York, Dr. Frederick Mendelsohn, who prescribed bellergal, another medication for migraine headaches. See Derman, RII:85-86.

 17. Plaintiff's marriage dissolved and he quit his job in 1975. See Schunk, RI:60.

 18. In the years that followed, plaintiff was terminated from subsequent jobs due to poor attendance and poor performance. Or he simply quit. See id. at 20, 71, 83-84; Derman, RII:114.

 19. In 1978, plaintiff resolved to quit drinking and he moved to California to start a new life. See Schunk, RI:64-65.

 20. There, he consulted a number of private physicians who, again, tried a series of medications, including caffergot, fiorinal, soma, librium, valium and codeine. See Pltf's Ex. 2, at 1. Of these, only the valium in the 10mg. dosage and codeine-derivative drugs proved effective. See Schunk, RI: 65-66.

 21. However, none of plaintiff's private doctors were able to diagnose the cause of his headaches. See id. at 71-72.

 22. The Court finds that during the period 1969 to 1979 plaintiff became habituated to alcohol and various forms of drugs unrelated to any kind of medicine administered by the Veteran's Administration Hospital.

 B. Treatment at the VA Hospital in Long Beach, California: June 1979 through November 1982

 23. On June 25, 1979, plaintiff visited the emergency room at the Long Beach VA in California. He complained of headaches and demanded pain medication immediately. See Pltf's Ex. 2, at 1; Schunk, RI:74, 79.

 24. When the hospital staff would not dispense medication but suggested instead a medical work-up for the headaches, plaintiff threatened to throw a metal file box in the intake nurse's face, telling her, "I don't want to be a guinea pig to this bureaucracy, bitch." Pltf's Ex. 2, at 1-2; Schunk, RI:76-77.

 25. The next day, plaintiff telephoned the Long Beach VA and asked if the VA had percodan, a narcotic analgesic. See Pltf's Ex. 2, at 3; Derman, RII:87. Plaintiff was advised to have a neurological work-up and an electroencephalograph (EEG). He refused to undergo any tests and refused to reveal what medications he had taken in the past. See Pltf's Ex. 2, at 3.

 26. There is no certified record from the Long Beach VA other than the emergency room records.

 27. Plaintiff having never filed an administrative claim with respect to treatment in California, the complete chart is not available ten years later.

 28. The few progress notes which remain suggest that plaintiff was treated in one of the Long Beach VA outpatient clinics on a monthly basis from June 20, 1979 to November 9, 1982. See Pltf's Ex. 3, at 143-48.

 29. Doctors prescribed tylenol with codeine "gr ss," a medical notation for "grains one-half," or 30 mg. codeine. This is a pain reliever commonly called tylenol # 3. See id.; Derman, RII:96.

 30. The doctors also gave plaintiff valium in 5 to 10mg. doses, or another benzodiazepine, as a muscle relaxant. See Pltf's Ex. 3, at 143-48; Derman, RII:96, 104-05.

 31. These valium and tylenol # 3 prescriptions did in fact reduce plaintiff's headaches. See Schunk, RI:24. But none of the prescriptions by Long Beach VA doctors were excessive. See Derman, RII:105, 111.

 32. Plaintiff saw at least two private physicians while he was under the Long Beach VA's care.

 33. From approximately May 1981 through June 1982, he saw Dr. Braitsch, a general practitioner. Dr. Braitsch prescribed 100 valium 10mg at a time and 100 codeine pills to last one or two months. See Schunk, RI:66-67.

 34. A blood test run in January 1981 by Dr. Braitsch shows elevated hemoglobin values which suggest excessive alcohol consumption by plaintiff over a long period of time. See Pltf's Ex. 3, at 149; Derman, RII:103.

 35. Another of his private doctors also prescribed tylox. See Pltf's Ex. 3, at 15B.

 36. Tylox consists of tylenol combined with approximately 5mg. oxycodone, a synthetic form of codeine. Tylox is manufactured in only this one strength.

 37. One milligram of oxycodone has the same analgesic effect as six milligrams of codeine; thus, 5mg. oxycodone is as potent as 30mg. codeine.

 38. Stated another way, one tylox pill is the equivalent of one tylenol # 3. Both tylox and tylenol # 3 are considered moderate strength pain relievers. See Derman, RII:100-101, RIII:72, RIV:69-70.

 39. In 1982, plaintiff lost his last job in California and remained unemployed for several months. See Schunk, RI:80-81.

 40. In November 1982, he returned to New York. He consulted another private physician, the late Dr. William Diefenbach, a well-reputed internist. See Deft's Ex. C (deposition of Dr. William Diefenbach); Derman, RIV:59.

 41. For seven years, 1982-1989, Dr. Diefenbach saw plaintiff almost every month. See Derman, RIV:58.

 42. He regularly prescribed for plaintiff valium 10mg., one pill to be taken every four hours for anxiety, as needed.

 43. In addition, Dr. Diefenbach occasionally prescribed tylox, but more often tylenol, fiorinal, or ascriptin with codeine for plaintiff's headaches.

 44. Many of these prescriptions were refillable up to four times. See Deft's Ex. A, at 1, 4, 6, 7, 19-21.

 45. Dr. Diefenbach was never able to diagnose the cause of plaintiff's headaches or joint pain. See Derman, RIV:58-59.

 46. Nevertheless, he believed plaintiff needed medication and could not function without it. See ...


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