The opinion of the court was delivered by: John T. Elfvin, United States District Judge
FINDINGS OF FACT, CONCLUSION OF LAW AND ORDER*fn1
On December 2, 1999 Jimerson filed suit against the United States for alleged medical malpractice and/or negligence arising from treatment he received at the Cattaraugus Indian Reservation Health Clinic (the "Clinic") on April 20, 1998. Jimerson brought suit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b) and 2671 et seq.*fn2 The undersigned conducted a bench trial April 8-17, 2002. At the conclusion of plaintiff's presentation of evidence and again at the conclusion of all evidence, defendant moved for judgment as a matter of law pursuant to Rule 52(c) of the Federal Rules of Civil Procedure ("FRCvP").*fn3 After submitting post-trial papers, the parties presented argument December 20, 2002 with respect to their respective proposed findings of fact and conclusions of law. The following constitutes this Court's Findings of Fact and Conclusions of Law pursuant to FRCvP 52.
Jimerson is a Native American who lives on the Cattaraugus Indian Reservation with his girlfriend, Linda Renaldo. Jimerson alleges that Dr. Khalid Iqbal was negligent and/or committed medical malpractice on April 20, 1998 by failing to diagnose his cauda equina syndrome ("CES") and by failing to obtain a timely MRI and neurological consult for Jimerson. Consequently, this Court must, at the threshold, determine whether Dr. Iqbal — a board certified internist — deviated from the applicable standard of care by failing to diagnose CES in light of Jimerson's symptoms and whether his treatment of Jimerson satisfied the applicable standard of care.
The substantive law of New York applies in determining whether Dr. Iqbal committed malpractice or was otherwise negligent. See generally 1A New York Pattern Jury Instructions: Civil 2:150 (3d ed. 2002) ("NY PJI"). To establish medical malpractice under New York law, Jimerson must have proven (1) that Dr. Iqbal breached the community's professional standard of care and (2) that such breach proximately caused Jimerson's injuries. Milano by Milano v. Freed, 64 F.3d 91, 95 (2d Cir. 1995); Nestorowich v. Ricotta, 97 N.Y.2d 393, 398 (2002) (citing Pike v. Honsinger, 155 N.Y. 201, 209 (1898)). An error in medical judgment by itself does not give rise to liability for malpractice. Nestorowich at 398. Dr. Iqbal can be held liable for medical malpractice only where injuries resulted from his lack of the requisite knowledge and skill, a failure to exercise reasonable care or a failure to use his "best judgment." Cruz v. United States, 1998 WL 13839, at *8 (S.D.N.Y. 1998) (citing Sitts v. United States, 811 F.2d 736, 739-740 (2d Cir. 1987)); Nestorowich, at 398. A physician is required to exercise "that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where [the physician] practices * * *. The law holds [a physician] liable for an injury to his patient resulting from want of the requisite knowledge and skill, or the omission to exercise reasonable care, or the failure to use his best judgment." Perez v. United States, 85 F. Supp.2d 220, 226 (S.D.N.Y. 1999) (quoting Pike at 209); Nestorowich at 398. Proving a claim for medical malpractice ordinarily requires expert testimony regarding both a departure from the standard of care and proximate causation. Kerker v. Hurwitz, 558 N.Y.S.2d 388, 390 (4th Dep't 1990); Milano, at 91. Consequently, in order to prevail, Jimerson must have shown by the preponderance of the evidence that Dr. Iqbal failed to conform to accepted community standards of practice. Nestorowich at 398; N.Y. PJI 2:150.
Whereas medical malpractice entails a departure from professional standards of care, "[n]egligence, broadly speaking, is conduct that falls below the standard of what a reasonably prudent person would do under similar circumstances judged at the time of the conduct at issue." Fane v. Zimmer, Inc., 927 F.2d 124, 130 n. 3 (2d Cir. 1991); Kerker at 389 (noting that "[b]ecause medical malpractice is simply one form of negligence, no rigid analytical line separates the two."). Negligence can be proven without the need for expert testimony provided that the trier of fact can discern such negligence "based on common knowledge." Id. at 390. Further, where a risk of harm has been discovered through the use of medical judgment, the failure to take reasonable precautions to prevent such harm constitutes simple negligence. Ibid. In any event, physicians are not required to achieve success in every case. Schrempf v. State, 66 N.Y.2d 289, 295 (1985). Indeed, the "mere fact that a medical procedure was unsuccessful, or had an unfortunate effect, will not support a claim that negligence had occurred." Perez, at 227. Moreover, not "every instance of failed treatment or diagnosis may be attributed to a doctor's failure to exercise due care." Nestorowich, at 398 (citing Schrempf).
Turning to Jimerson's allegation that Dr. Iqbal failed to properly diagnose CES, it is important to understand what CES is. The cauda equina comprises the end of the spinal cord and the nerve roots below the first lumbar vertebrae ("L-1"); such spinal nerves start in the L-1 area and splay outwardly from the end of the spine, thereby resembling a horse's tail. (Tr. at 638-640, 840, 876). Indeed, cauda equina is Latin for "horse's tail." (Tr. at 638, 840). CES is "a rapidly-evolving neurologic disorder related to spinal cord and spinal cord leash compression * * * which causes a very specific constellation of symptoms, which are necessary in order to make the diagnosis." (Tr. at 840). These symptoms are: (1) saddle anesthesia (i.e., no sensation in the legs, anus or accompanying regions), (2) rapidly progressing neurologic weakness progressing to paralysis and (3) bladder dysfunction. (Tr. at 840-841, 902-903). Indeed, both expert witnesses testified that bladder dysfunction is the "hallmark" symptom of CES. (Tr. at 701-705, 840-842, 852, 882-883, 887-888, 903, 909, 927, 929). Moreover, the testimony of defendant's expert witness, Dr. Cappuccino,*fn4 is that a diagnosis of CES cannot be made unless there is evidence of bladder dysfunction. (Tr. at 849-850). Such is confirmed by the peer-reviewed literature relied on by both parties' experts. (Tr. at 707-711, 856-857). Accordingly, whether Jimerson urinated during the morning of April 20, 1998 and whether he conveyed such information to Dr. Iqbal are of primary importance in determining whether Dr. Iqbal should have diagnosed Jimerson as having CES.
On April 20, 1998 Jimerson awoke at around 4:00 a.m. at which time he urinated without difficulty. (Tr. at 232, 287-288, 300).*fn5 He then sat on the couch and watched television. Ibid. At about 5:00 a.m., Jimerson unsuccessfully attempted to get up from the couch. Ibid. He called Renaldo for help, instructing her to call 9-1-1 because he could tell that something was wrong with him. (Tr. at 232-233). Renaldo called for an ambulance at 5:12 a.m. and such arrived at the Jimerson-Renaldo home at 5:36 a.m. (Ex. 14 at 5). Jimerson was taken to Tri-County Community Hospital ("Tri-County"). (Tr. at 233). Jimerson arrived at Tri-County at 6:14 a.m. and was examined. (Tr. at 233-234; Ex. 14 at 5). Tri-County gave Jimerson a shot and sent him home with a prescription for pain medication. (Tr. at 234). Upon arriving home, Jimerson fell onto the kitchen floor, where he remained for about 30 to 60 minutes until friends arrived to help him into a wheelchair. (Tr. at 234-235). Renaldo called the Clinic and scheduled an appointment for 11:15 a.m. (Tr. at 384; Ex. 15 at 56).
Jimerson went to the Clinic at around 11:00 a.m., but was unable to walk inside; accordingly, he used the wheelchair. (Tr. at 235-236). Jimerson was examined by Dr. Iqbal at 11:20 a.m. (Tr. at 237; Ex. 15 at 56). Dr. Iqbal questioned Jimerson about his medical history and symptoms. (Tr. at 68-69). Jimerson complained of numbness and pain radiating from his back to his legs and feet. (Tr. at 67-69, 94, 238). Dr. Iqbal's examination of Jimerson indicated that Jimerson (1) was suffering from paravertebral muscle spasm and a loss of sensation in limited areas of the feet and legs and that such loss was confined to areas enervated by the L-4, L-5 and S-1 nerve roots, (2) exhibited no ankle or knee reflexes, (3) exhibited peripheral pulses that were normal bilaterally, (4) experienced pain from a distracted straight-leg raising test and (5) could not stand because of pain, thereby prohibiting Dr. Iqbal from assessing motor strength or from completing the neurological exam. (Tr. at 70-72, 95, 155, 186-188, 239). Importantly, Jimerson testified that Dr. Iqbal
"asked me if I had gone to the bathroom and I told him
yes, before I went to Tri-County Hospital. And he
asked me if I had gone since, and I said no. I could
only go a little bit like trickle out." (Tr. at 238).
Dr. Iqbal thus determined that Jimerson exhibited no bladder dysfunction at the time of his examination. (Tr. at 68-69, 109-112). Given the primary importance of when Jimerson first experienced bladder dysfunction, such will be discussed in more detail below. Accordingly, in light of these symptoms — including the absence of bladder dysfunction and the pain in Jimerson's legs — Dr. Iqbal diagnosed Jimerson as suffering from "prolapsed disc causing nerve root compression" as opposed to CES. (Tr. at 79). The Court agrees with Dr. Cappuccino's opinion that Dr. Iqbal had not deviated from accepted standards of medical care when he diagnosed Jimerson with nerve root compression rather than CES. (Tr. at 847-850).
The evidence presented at trial indicates that Jimerson had not experienced bladder dysfunction — the hallmark of CES — before Dr. Iqbal examined him on April 20, 1998. As noted above, Jimerson told Dr. Iqbal that he had urinated that morning when he awoke and again at Tri-County Hospital. (Tr. at 68-69, 238, 286-287, 300-303). Indeed, Jimerson acknowledged that he had testified at his deposition as follows with respect to his Tri-County visit:
"Q: You said you went to the bathroom at about 5.a.m.
"Q: And then you went to the ...