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February 19, 1997


The opinion of the court was delivered by: SPATT

 SPATT, District Judge.

 This is an action brought under the provisions of the Federal Tort Claims Act (28 U.S.C. § 1346[b] and 28 U.S.C. §§ 2671 - 2680) to recover damages for personal injuries allegedly sustained by the plaintiff Gustave Cattaneo (the "plaintiff" or "Cattaneo") as a result of medical malpractice allegedly committed by certain physicians at the Veterans Administration Hospital ("the Hospital") in Northport, Suffolk County, New York.

 The thrust of the plaintiff's claim is that the physicians at the Hospital who participated in his total left hip arthroplasty on January 4, 1994, failed to properly place the implant device, so that it became loosened, is a cause of pain and requires corrective surgery. In sum, the plaintiff contends that the operating physicians departed from accepted practice in performing the hip implant operation, which was a cause of the loosening of the implant, the resultant injuries and the necessity for corrective surgery.

 There are two issues in this case. First, whether the plaintiff proved, by a preponderance of the credible evidence, that the hip implant device inserted in the plaintiff's left leg is "loosened." Second, if the plaintiff proved that the device is "loosened," whether the plaintiff further proved that this condition occurred as a result of a departure from accepted medical practice in the course of the surgery performed at the Hospital.


 This action is brought pursuant to 28 U.S.C. § 1346[b], which establishes the jurisdiction of the United States District Court for civil actions against the United States, "for money damages . . . for personal injury . . . caused by the negligence or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."

 Under the Federal Tort Claims Act, the liability of the United States is the same as that of a private person in the State of New York. ( Guttridge v. United States, 927 F.2d 730 [2d Cir. 1991]; Chen v. United States, 854 F.2d 622, 625, 626 [2d Cir. 1989]).

 The New York law of medical malpractice was clearly stated by Judge Kearse in Sitts v. United States, 811 F.2d 736 (2d Cir. 1987) as follows:

[a] physician's obligations to his patient are to possess at least the degree of knowledge and skill possessed by the average member of the medical profession in the community in which he practices, to exercise ordinary and reasonable care in the application of that professional knowledge and skill, and to use his best judgment in the application of his knowledge and skill. In order to show that the defendant has not exercised ordinary and reasonable care, the plaintiff ordinarily must show what the accepted standards of practice were and that the defendant deviated from those standards or failed to apply whatever superior knowledge he had for the plaintiff's benefit. Toth v. Community Hospital at Glen Cove, 22 N.Y.2d 255, 262-63, 292 N.Y.S.2d 440, 447, 239 N.E.2d 368, 372 (1968); Monahan v. Weichert, 82 A.D.2d 102, 105-06, 442 N.Y.S.2d 295, 297 (4th Dep't 1981). The requirement that the plaintiff introduce expert medical testimony is imposed in part because "without expert assistance, a jury will often have no understanding of what constitutes reasonable behavior in a complex and technical profession such as medicine." Paul v. Boschenstein, 105 A.D.2d 248, 249, 482 N.Y.S.2d 870, 872 (2d Dep't 1984). The requirement is no less applicable in a case that is tried to the court without a jury. See Charlton v. Montefiore Hospital, 45 Misc. 2d 153, 155, 256 N.Y.S.2d 219, 222 (Sup.Ct. Queens Co. 1965).


 This memorandum decision and order disposing of this action includes the Court's findings of fact and conclusions of law as required by Fed. R. Civ. P. 52(a).

 A. The Plaintiff's Case

 The plaintiff Gustave Cattaneo is a 65 year old veteran. He was in an Army Airborne Division from 1951 to 1954. He is a divorced man with six children. Cattaneo is a retired carpenter contractor. He has been treated at the Northport Veterans Hospital for many years, and is still being treated at the Hospital. His first complaint with regard to his left hip was in 1990 when he was treated by Dr. Peter Altner at the Hospital. Dr. Altner is the Chief of Orthopedic Surgery at the Hospital. Cattaneo was suffering from pain in his left groin, left thigh and left knee. Between 1990 and December 1992, the plaintiff was treated by Dr. Altner and other physicians at the Hospital Orthopedic Outpatient Clinic. X-rays were taken and Naprosyn was prescribed. By December 1992, the plaintiff had lost 90 percent of the motion of his left hip and he agreed to the recommendation for a total hip arthroplasty, which was originally scheduled for December 2, 1992. However, the plaintiff developed chest pains causing the hip operation to be postponed. Instead he underwent triple bypass surgery on December 21, 1992.

 The left hip surgery was rescheduled for January 4, 1994 at the Hospital, and was performed on that date. Prior to the surgery the plaintiff signed a consent form and met with Dr. Altner, Dr. Louis Lombardi, an attending orthopedic surgeon, Dr. Gilligan and Dr. Christian Dee. After the surgery Dr. Lombardi told the plaintiff that he performed the surgery and that his left leg was 1/2" longer. After being discharged from the Hospital the plaintiff had physical therapy treatments and improved steadily. The left hip pain was gone and there was improvement in the function of his left hip. He wore a lift in his right shoe. The plaintiff testified that at various times he was told his left leg was 3/4" and 1" longer than his right leg. At this point, the Court notes that the parties stipulated that there was no departure from accepted medical practice as a result of the lengthening of the plaintiff's left leg during the course of the left hip implant surgery on January 4, 1994.

 On April 21, 1994, Cattaneo complained of a slight pain in the right hip. Naprosyn was again prescribed. On October 17, 1994, the plaintiff complained of pain in the scar on the left hip. In February 1995, he saw Dr. Altner for pain on the right side and also, pain in the scar on the left hip. He was told that this latter pain was "normal." X-rays were taken of both hips. Cattaneo was told by Dr. Altner that the left hip was "fine, perfect" and that his left hip pain was because of "nerves in your back." In May 1995, he developed a slight pain in the left groin.

 In March 1994, the plaintiff saw a private physician, Dr. Richard Goodman, an orthopedic surgeon, for the long left leg length and pain in the right lower back, right side and right groin. He saw Dr. Goodman six or seven times. He underwent physical therapy for ten weeks, which was helpful for movements of his left side, but the pain increased on the right side. Cattaneo also developed pain in the left buttock and groin. Dr. Goodman told him "you have a loose hip." He was devastated.

 On November 13, 1995, the plaintiff saw a second private orthopedic surgeon, Dr. Thaddeus Spak. A bone scan was performed on November 20, 1995. Cattaneo was told by Dr. Spak that the scan showed pockets of fluid in the left hip which was either an infection or a loosened prosthesis. An aspiration was performed by Dr. Spak at Huntington Hospital on December 28, 1995. Dr. Spak told him that there was no infection but the "hip is definitely loose and has to be redone." The plaintiff was told to walk with a cane and "take it easy." He last saw Dr. Spak on January 12, 1996.

 However, Dr. Spak referred the plaintiff to a neurosurgeon, Dr. David Leivy. He saw Dr. Leivy on March 7, 1996. A myelogram was recommended which was performed on March 28, 1996 at Huntington Hospital. Cattaneo was told by Dr. Leivy that he had L4-L5 degeneration in the lower back, but there was no need for an operation.

 At the present time Cattaneo complains of pain in the left hip, knee and groin, occurring twenty-four hours a day, and getting increasingly worse, which is making his life miserable. However, he can move his left hip better than before the operation. He does exercises at home including stretching and bicycle riding. The plaintiff takes daily medications including naprosyn and tylenol with codeine. He is still being treated at the Northport Veterans Administration Hospital. Cattaneo also complains of pain in his right hip, which is increasing. Despite the pain in both hips and other areas of his body, the plaintiff continues to perform certain household chores such as mowing the lawn, doing minor repairs around the house and playing nine holes of golf.

 With regard to his back pain, the plaintiff testified that while he did have such pain prior to the hip surgery, he stated that he never had any medical treatment for that condition.

 On cross-examination, the plaintiff testified that he made 15 or 16 parachute jumps while in the Army in 1951 or 1952. During one of these jumps, he sustained a sprain of his lower back. A medical record dated March 5, 1952 (Defendant's Exh. R) reveals a diagnosis of a "low back pain" with full range of motion and no neurological findings. In a document entitled "Veteran's Application for Compensation or Pension" (Defendant's Exh. S), signed by the plaintiff, he stated that the injury for which claim is made is "Back trouble Jan. 52" It is also stated in this application that the plaintiff complained of "back trouble" four times from January 1952 to June 1953 and was treated in a hospital and three dispensaries. There is also in evidence an x-ray report dated May 6, 1954 (Defendant's Exh. T) in which it is stated "Low back ache (upon long sitting, in damp weather or in heavy lifting)". The x-ray report states that the lumbo-sacral spine "Reveals slight levo scoliosis of the lumbar spine and no other significant findings." At the time Cattaneo enlisted in 1951 he was told he had an "abnormal curvature of the lumbar spine."

 Starting in 1957 Cattaneo was employed as a general contractor doing masonry, which was "hard work" and involved lifting bags of cement weighing about 96 pounds. In 1975 he changed his occupation to that of a carpenter which involved less lifting. In the 1980s Cattaneo had left hip pain and started limping. He also had numbness and a burning feeling in his toes. In addition, he was diagnosed as having diabetes. By 1991 the plaintiff was having excruciating pain in the left hip, walked with a cane and could not drive. In October 1991, he had to stop working and he received social security disability benefits.

 Further, Cattaneo testified that following his left hip surgery, after a period of time on crutches, his left hip did very well:

Q Going to the post-operative period, after the surgery you were on crutches for about two -- three or four months?
A Yes.
Q And then after that your left hip progressed fine?
A Yes.
Q The pain in your left lower back went away?
A Yes.
Q And the pain in your left knee went away?
A Yes.
Q The pain in your left groin went away?
A Yes.
Q And you could sit without excruciating pain?
A Yes.
Q Today you don't walk with a crutch?
A With a cane, no.
. . . .
A Correct.
Q You can dress yourself, correct?
A Yes.
Q And you can drive a car?
A Automatic transmission.
Q You mentioned that you were doing exercise five days a week on a stationary bicycle?
A Yes.
Q And you were doing leg exercises several times a week?
A Yes.

 (Tr. at 612-613).*

 Also, at the present time, despite his complaints of pain in the left hip, his right hip and other parts of his body, Cattaneo leads a moderately active life:

Q Okay.
I think you testified you can play golf?
A Nine holes, yes.
Q And you also go boating?
A My son takes me boating.
Q You have gone out fishing?
A On a big boat out of Crab Tree.
Q Since your hip replacement surgery?
A Yes, but I have gone before, yes.
Q And you wear -- you also do some painting around the house?
A Yes, I do.
Q And you take your grandchildren to lunch?
A Yes, I do.
. . . .
Q So, you have no used a special device for the toilet seat since June of 1994?
A I was told by the VA doctors it wasn't necessary.
Q Okay.
So, you haven't used one since that date?
A No.

 (Tr. at 617-618).

 Until May 1995, Cattaneo's major complaints were pain in his right hip and lower back. There is also evidence in the record that only in May or June 1995 did he start to get pain in his left hip. (Tr. at 619).

 The plaintiff produced four physicians in person and one by deposition. The deposition of Dr. Christian Dee is not significant and adds little to the relevant facts. The first physician to testify on behalf of the plaintiff was Dr. Dennis Rossi, a radiologist. He reviewed the x-rays taken at the time of the left hip surgery and stated that the implant was in "an anatomically correct position." Dr. Rossi reviewed a second set of x-rays taken on October 27, 1994 and stated that he found a "slight lucency along the upper margin of the stem portion of the prosthesis . . . that is suggestive of loosening of the stem portion of the prosthesis" (Tr. at 23).

 Dr. Rossi saw the same "lucent line" on the June 6, 1995 x-rays. Also in a bone scan done on November 21, 1995, he saw some activity which is "highly suspicious of loosening of the prosthesis" (Tr. at 30). In addition, he reviewed an arthrogram taken on December 22, 1995 and saw evidence of loosening of the stem. There was no evidence of loosening of the head and neck of the implant. Asked his opinion as to whether the left prosthesis stem is loose, Dr. Rossi answered, "I think it is." He also agreed with a report from Dr. Spak, the orthopedic surgeon, which report stated that it was a loose prosthesis. Taking all the components together, including the patient's symptoms and all the films, his opinion is that this is a loose prosthesis.

 On cross-examination Dr. Rossi conceded that in the June 4, 1994, October 27, 1994 and June 6, 1995 x-rays, the prosthesis was still in alignment. Dr. Rossi hedged somewhat, with regard to his opinion as to a loosening, when he stated:

A What I would do in the ordinary course of practice is to report the finding of the lucency as I have seen it, and suggest it could be a sign of early loosening, and recommend a bone scan for further evaluation. And I would certainly defer to the orthopedist's judgment in evaluating these findings in correlation with the patient's symptoms.
Q And that correlation would be done by the orthopedic surgeon; is that correct?
A Yes.

 (Tr. at 50).

 Dr. Rossi also conceded that the arthrogram of December 22, 1995 was of poor quality and was of limited value. He also stated that increased activity in bone scans may be of no significance and may constitute a false diagnosis of loosening. In fact, the radiologist who read the bone scan at the Huntington Medical Group reported that "loosening is possible."

 Dr. Rossi also testified that he had no opinion as to what caused this loosening and he could not state the degree of loosening. Dr. Rossi also agreed that a certain percentage of patients who have had total hip replacements develop looseness, which is a known risk after such surgery. Of importance, he also stated that he did not see any change in the alignment of the implant from October 1994 to June 1995 and he saw no movement of the cemented component. Further, Dr. Rossi conceded that cemented hip implant components normally show "one to two millimeter wide radiolucent zones at cement interfaces" (Tr. at 77) and that a "progressive widening" of the lucency coupled with cement fractures are particularly suggestive of loosening. The Court finds that in this patient there was no progressive widening of the lucency nor were there any cement fractures in the hip implant.

 The second physician produced by the plaintiff is Dr. Richard Goodman, an orthopedic surgeon, who ceased doing surgery in 1984, but is still in practice. He is also an attorney. Dr. Goodman described the method of doing a total hip arthroplasty. He stated that the normal life expectancy of a hip implant was ten to twenty years, depending on the size, weight and activities of the person involved. However, the Court notes that Dr. Goodman has not performed a total hip arthroplasty since the early 1980s, and only did two or three such operations as the attending surgeon.

 Dr. Goodman first examined the plaintiff on March 23, 1994. His complaints were pain in the left hip, groin and knee. Dr. Goodman ordered and reviewed x-rays of Cattaneo's left hip. Dr. Goodman's diagnosis in June 1995 was that the plaintiff "had a loose hip prosthesis." He made the diagnosis based on the June 1995 x-rays which demonstrated movement of the stem causing a "slight decrease of the shadow on the x-rays." Dr. Goodman further opined that a loose prosthesis can be a competent producing cause of pain. More importantly, Dr. Goodman testified that the doctors who performed the operation deviated from good and accepted procedures during the course of the left hip arthroplasty:

Q What is the basis of your opinion that these doctors deviated from good and accepted procedure?
A Well, if you look at the original of this X-ray here, there is a space between the collar of the prosthesis, and the top bony edge of the femur. Which means if there is a space there, even if it is packed with bone grafting, which they did, that it would allow this part to ride back and forth when patient puts weight on his femoral head. And the weight line is through the acetabulum.
If this is not on the bone solidly, this is going to cause a downward pressure here. When he lifts his leg up this is going to come back. And there will be a constant wiggle, twisting or torquing here. This collar rests on the bone to absorb that and prevent that. That's the idea of the collar.
THE COURT: You said there is a space between the collar and what?
THE WITNESS: And the cortex of the femur.
THE COURT: Show it to me again, please.
THE WITNESS: There is a quarter inch space in here approximately, on this film. But since this film is not exactly horizontal, and this collar is thinner than this and this is tilted. So this is based and spaced a lot higher than that.
Q You say there is a space between the uppermost top of the femur and where the collar is supposed to sit on the femur?
. . . .
Q All ...

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