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August 11, 1999


The opinion of the court was delivered by: Scheindlin, District Judge.



This is a medical malpractice action brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), 2671 et seq. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because the acts of negligence alleged in the complaint took place at the Manhattan Veteran's Administration Medical Center ("VAMC"), which is located in the Southern District of New York.

Plaintiffs' claims were tried to the Court without a jury in accordance with 28 U.S.C. § 2402. Plaintiffs' claims consisted of Raul Perez's ("Perez") claim of negligent medical treatment (Count I of the complaint) and Mercedes Perez's ("Mrs.Perez") claim of loss of consortium (Count III of the complaint).

Because this case was tried without a jury, it is important to recall the standard that would govern a jury's deliberations had one been called upon to reach a verdict. Under New York law, a jury would have been given the following instruction:

    Malpractice is professional negligence and medical
  malpractice is the negligence of a doctor. Negligence
  is the failure to use reasonable care under the
  circumstances, doing something that a reasonably
  prudent doctor would not do under the circumstances,
  or failing to do something that a reasonably prudent
  doctor would do under the circumstances, it is a
  deviation or departure from accepted [medical]
    A doctor who renders medical service to a patient
  is obligated to have that reasonable degree of
  knowledge and ability which is expected of doctors
  who perform that operation in the medical community
  in which the doctor practices.
    The law recognizes that there are differences in
  the abilities of doctors, just as there are
  differences in the abilities of people engaged in
  other activities. To practice medicine a doctor is
  not required to have the extraordinary knowledge and
  ability that belongs to a few doctors of exceptional
  ability. However every doctor is required to keep
  reasonably informed of new developments in his field
  and to practice medicine in accordance with approved
  methods and means of treatment in general use. The
  standard of knowledge and ability to which the doctor
  is held is measured by the degree of knowledge and
  ability of the average doctor in good

  standing in the medical community in which the doctor
    In performing a medical service, the doctor is
  obligated to use his best judgment and to use
  reasonable care. By undertaking to perform a medical
  service, a doctor does not guarantee a good result.
  The fact that there was a bad result to the patient,
  by itself, does not make the doctor liable. The
  doctor is liable only if he was negligent. Whether
  the doctor was negligent is to be decided on the
  basis of the facts and conditions existing at the
  time of the claimed negligence.
    A doctor is not liable for an error in judgment if
  he does what he decides is best after careful
  examination if it is a judgment that a reasonably
  prudent doctor could have made under the
    If the doctor is negligent, that is, lacks the
  skill or knowledge required of him in providing a
  medical service or fails to use reasonable care and
  judgment in providing the service, and such lack of
  skill or care or knowledge or the failure to use
  reasonable care or judgment is a substantial factor
  in causing harm to the patient, then the doctor is
  responsible for the injury or harm caused.

1A New York Pattern Jury Instructions-Civil 2:150 (3d ed. 1998).


1. Perez was born in 1931, and is presently 68 years old.

2. Mrs. Perez was born in 1931 and is presently 67 years old.

3. After being diagnosed with advanced local prostate cancer, Perez underwent surgery at the VAMC on August 20, 1993, for the purpose of removing the cancer.

4. This procedure is known as a "prostatectomy," and the particular kind of prostatectomy that Perez underwent is known as a "radical perineal prostatectomy." The word radical simply means that the entire prostate is removed. A more common procedure is known as a "radical retropubic prostatectomy." The difference between the two procedures is the approach taken by the surgeon. In the perineal approach, the incision is made between the scrotum and the rectum, which allows better visualization of the anastomosis, the joining of the urethra and the bladder. See Trial Transcript "Tr." 715-16, 802-03 (Dr. Eli Lizza ("Dr. Lizza"), Government's urology expert); Government's Exhibit ("GX") D. This approach has a higher incidence of impotence and rectal injury (11% of perineal approaches result in rectal injury compared to 1% of retropubic approaches, GX E), but is less bloody, resulting in a lower likelihood of blood transfusions. In the suprapubic approach, the incision is through the abdomen, below the belly button and above the pubic bone, and allows better visualization of the lymph nodes. There is no claim that the choice of the perineal approach was negligent.

5. During the surgery, a Foley catheter was inserted into Perez's bladder, to allow him to urinate and to protect the anastomosis, so that it could properly heal. This is standard procedure. A Penrose drain was also inserted, to permit any urine leaking from the anastomosis to exit from the site of the surgical incision. The Penrose drain was removed on August 22, 1993. Tr. 184 (Dr. Pablo Torre ("Dr. Torre"), attending urologist in charge of Perez's care at the VAMC). The Foley catheter was discontinued on August 30, 1993, the tenth post-operative day. Tr. 183 (Dr. Torre). It is noteworthy that Perez had a fever on that day. Tr. 188-89 (Dr. Torre); 758-59 (Dr. Lizza).

6. Perez did not have any cystograms, Methylene blue or charcoal tests between post-operative days one and ten.

8. Following the removal of his Foley catheter on August 30, 1993, Perez went into urinary retention. He was given Tylenol at approximately 5 a.m. on the morning of August 31. See One Time Medication Record, GX A, Bates 132; Tr. 525-26 (Dr. Michael S. Brodherson ("Dr. Brodherson") Plaintiffs' urology expert).

9. As a result, sometime during the early morning hours of August 31, 1993, attempts were made to reinsert the catheter. It is not clear whether more than one attempt was made. What is known is that the attempts were made without the aid of a cystoscope or cystogram and were unsuccessful. Dr. Rosenblum, the chief resident, was present at the first recatheterization attempt. Tr. 200-201 (Dr. Torre). Plaintiff claims that he was injured during these attempts to blindly reinsert the catheter.

10. On August 31, 1993, the physicians booked Perez to the Operating Room for the purpose of performing a flexible cystoscopy to replace the Foley catheter under direct visual guidance. Tr. 207-208 (Dr. Torre).

11. The operation was booked for 10:32 a.m. and was completed at 10:44 a.m. Tr. 208 (Dr. Torre); GX A at Bates 102-03. A Foley catheter was reinserted into Perez's bladder.

12. The operative note for the August 31, 1993, flexible cystoscopy states that Perez's anastomosis "was visualized and found to be intact and open with easy entrance into the bladder using the flexible scope." GX A at Bates 102-03.

13. The operative note for the August 31, 1993 flexible cystoscopy further states that "[a]ttempts to reinsert this catheter on the floor were met with difficulty with the catheter meeting resistance at the level of the bladder neck. . . . The angulation at the bladder neck was felt to be such that it made the catheterization difficult." GX A at Bates 102-03.

14. After August 31, 1993, the VAMC physicians administered a charcoal test to determine if any of the charcoal was passed in the urine. This test shows that the doctors were concerned that Perez might have developed a recto-urethral fistula, an abnormal communication between the urethra and the rectum. The charcoal goes through the intestine and the rectum. If there is a fistula, the urine might show charcoal. This test was negative. Plaintiff argues that the use of this test immediately after the reinsertion of the catheter demonstrates that the physicians believed that they had injured the anastomosis during the removal and reinsertion of the catheter, and might have created a recto-urethral fistula.

15. A cystogram performed on September 7, 1993, one week after the reinsertion of the catheter, showed some leaking, indicating a break in the anastomosis. The medical term for the test result was that it showed an "extravasation." A VCU (voiding cystourethrogram) done on the same date showed the same result.

16. On September 10, 1999, a second charcoal test was done. Once again, this test was negative, demonstrating that there was no urine leaking from the rectum or feces traveling through the urethra. As a result, the physicians concluded that there was no recto-urethral fistula.

17. A cystogram and a VCU (voiding cystourethrogram) performed on September 13, 1993, indicated that there was a communication between the proximal urethra and the skin of the perineum. This is known as a urethro-cutaneous fistula and simply means that urine was leaking into the perineum. The VAMC physicians used Foley catheter drainage to treat Perez's anastomotic leak of urine. The cystogram also showed a stricture of the urethra. Tr. 80 (Dr. Torre); 773-76 (Dr. Lizza); GX. A at Bates 90.

18. On September 20, 1999, another cystogram was done as well as a study known as a methylene blue test. The latter test consists of injecting blue dye into the bladder through the catheter to see where the dye goes. While there are no results of the cystogram in the record, the methylene blue test revealed blue dye on the perineum, documenting the presence of an anastomotic leak. No blue dye was excreted through the rectum, so the study was negative for the presence of a recto-urethral fistula.

19. On September 23, 1993, a hypaque enema study was conducted, which injects dye into the rectum to determine if there is an abnormal communication ...

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