The opinion of the court was delivered by: Scheindlin, District Judge.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
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).
II. PRELIMINARY FINDINGS OF FACT
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
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
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
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 ...