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JIMERSON v. U.S.

United States District Court, Western District of New York


January 13, 2003

CHARLES R. JIMERSON, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.

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.

"A: about 5 a.m., yes.

"Q: And then you went to the hospital?

"A: yes.

"Q: Did you try to go to the bathroom at the hospital?

"A: yes, I did.

"Q: Did you go to the bathroom at the hospital?

"A: yes.

"Q: Did you have problems going to the bathroom at the hospital?
"A: no."*fn6

(Tr. at 288) (citing Jimerson Dep. at 63). Moreover, Jimerson told Dr. Iqbal on April 20, 1998 that he had urinated that day and that he had had no problem doing so. (Tr. at 68-69, 109-112, 300-303).*fn7 Dr. Iqbal asked Jimerson whether or not he had urinated that day because an inability to urinate would have suggested spinal cord compression syndrome as opposed to nerve root compression. (Tr. at 109-112, 147-150). Additionally, Jimerson acknowledged deposition testimony indicating that he first experienced bladder dysfunction on April 21, 1998. (Tr. at 304). Finally, both parties' experts agree that there is no record indicating that Jimerson experienced bladder dysfunction on the morning of April 20, 1998. (Tr. at 691-692, 697-698, 700-701, 849-852, 882-883). Consequently, Dr. Cappuccino opined that Dr. Iqbal had not deviated from accepted standards of medical care because the absence of bladder dysfunction "clearly indicated nerve root compression and not cauda equina compression." (Tr. at 849-854, 886-887). Dr. Cappuccino further opined that the fact that Dr. Iqbal was able to elicit a positive straight-leg raising response — i.e., pain — further supported a diagnosis of nerve root compression rather than CES because CES patients experience no feeling from the waist down — as opposed to pain in parts of the leg, which Jimerson exhibited during Dr. Iqbal's exam. (Tr at 852-853).

Although Jimerson testified that he told Dr. Iqbal that, after falling on the kitchen floor, he had attempted to urinate but could only manage a trickle — (Tr. at 238) —, such does not indicate bladder dysfunction. Indeed, Jimerson's expert witness conceded that Jimerson "did not complain of urinary dysfunction or bladder problem" to Dr. Iqbal — assuming that Jimerson told Dr. Iqbal that he urinated two times that morning without difficulty, as is noted above. (Tr. at 705).*fn8 Furthermore, plaintiff's expert witness agreed that there was no "history of bladder dysfunction before April 21st at 11 a.m." (Tr. at 695-702). Finally, as noted above, Jimerson testified that he first experienced bladder dysfunction on April 21, 1998. (Tr. at 304).

Accordingly, in light of the evidence presented at trial,*fn9 this Court finds (1) that Jimerson had urinated at least once without difficulty on April 20, 1998 before seeing Dr. Iqbal, (2) that Jimerson told Dr. Iqbal that he had urinated earlier that day without difficulty, (3) that Jimerson had not experienced bladder dysfunction before Dr. Iqbal's examination*fn10 and (4) that Dr. Iqbal did not deviate from the applicable standard of care by diagnosing nerve root compression rather than CES because Jimerson had not manifested a lack of bladder dysfunction — the hallmark symptom of CES. Consequently, Dr. Iqbal's failure to diagnose CES was neither negligent nor a deviation from the applicable standard of care.*fn11

Having found that Dr. Iqbal's diagnosis did not deviate from the applicable standard of care, this Court will now address whether Dr. Iqbal committed medical malpractice or was otherwise negligent in his treatment of Jimerson. As noted above, Dr. Iqbal diagnosed Jimerson as suffering from "prolapsed disc causing nerve root compression." (Tr. at 79). Nonetheless, Dr. Iqbal referred Jimerson for a "stat MRI/neurosurgical eval[uation]" because he wanted to rule out cord compression (i.e., CES). (Tr. at 80, 85-90; Ex. 15 at 56). Dr. Iqbal's staff arranged*fn12 to have Jimerson undergo an MRI within the next 24 hours. (Tr. at 159-161, 204; Exs. 41-42). Indeed, Jimerson received an MRI at 8:00 a.m. the next day (i.e. April 21, 1998) at Southtowns MRI — about 21 hours after Dr. Iqbal's exam. (Tr. at 163, 204, 210, 240; Ex. 41). Dr. Iqbal also arranged a neurological consult for Jimerson at Erie County Medical Center ("ECMC") at 10:00 a.m. on April 21, 1998 — about 23 hours after Dr. Iqbal's exam. (Tr. at 163-164, 211-212, 344; Ex. 42). As discussed below, this Court finds that this treatment — an MRI and accompanying neurological evaluation scheduled to occur within 24 hours — satisfies the applicable standard of care for either nerve root compression or CES. (Tr. at 867-868).

Dr. Iqbal testified that nerve root compression is not an emergent situation. (Tr. at 80-81). Dr. Cappuccino opined that the standard of care for patients with nerve root compression is to be "treated appropriately for their pain and scheduled electively for interventional pain management and studies [such as x-rays and MRIs] on an elective basis." (Tr. at 854). Consequently, Dr. Cappuccino concluded that Dr. Iqbal had satisfied the applicable standard of care for a diagnosis of nerve root compression because he scheduled an MRI and a neurosurgical consult for Jimerson for the next day. (Tr. at 867-869). Moreover, Jimerson introduced no evidence indicating that the standard of care for nerve root compression requires anything else. Accordingly, the stat MRI/neurological evaluation ordered by Dr. Iqbal more than satisfied the applicable standard of care for nerve root compression.

Even assuming arguendo that Dr. Iqbal should have diagnosed Jimerson as having CES absent bladder dysfunction, Dr. Iqbal's treatment nonetheless satisfied the applicable standard of care for CES. Jimerson contends, inter alia, that his deficits were caused by Dr. Iqbal's allegedly inappropriate delay in procuring an MRI. As noted above, Dr. Iqbal arranged to have Jimerson undergo an MRI and neurological evaluation within 24 hours. (Tr. at 161). Such treatment satisfies the applicable standard of care for CES patients*fn13 and Dr. Iqbal did all that was required in the situation.*fn14 Indeed, Dr. Cappuccino testified that the standard of care for CES would require that an MRI, a diagnosis of the area of compression and a decompressive procedure be completed within 48 hours for "the best possible chance of reversing the symptoms." (Tr. at 853-855, 867-869).*fn15 This 48-hour deadline is like a "cliff" — which is confirmed by the medical literature relied on by both parties' medical experts. (Tr. at 683-685, 711-712, 854-858, 867-875; cf. Tr. at 24-25). Inasmuch as Dr. Iqbal arranged for a next day MRI and accompanying neurosurgical evaluation, he satisfied the applicable standard of care.*fn16 (Tr. at 858-859, 867-875, 900-901, 924-926, 931-932). Indeed, Dr. Korenman conceded that a stat MRI/neurosurgical evaluation was the appropriate course of action and that an MRI is the "gold standard" diagnostic method in the situation. (Tr. at 665-669, 721-722, 753).

Moreover, the fact that Dr. Iqbal arranged for an MRI to be conducted within 24 hours is impressive in light of the fact that the typical wait for an MRI in Western New York is between three days and three weeks. (Tr. at 160-161, 842, 866-867, 898-901, 904-905).*fn17 Indeed, Dr. Cappuccino testified that "[u]sually 24 hours is what's considered emergent in this community." (Tr. at 867-868, 898). Accordingly, Dr. Iqbal satisfied the applicable standard of care — for either CES or nerve root compression — when he arranged a next-day MRI and neurosurgical evaluation for Jimerson. (Tr. at 867-869).

Inasmuch as this Court finds that Dr. Iqbal satisfied the applicable standards of care with respect to both his diagnosis and treatment of Jimerson, there is no need to address any other issues such as proximate causation or subsequent events at ECMC. Although this Court sympathizes with Jimerson, he suffered no legal injury.

Accordingly, it is hereby ORDERED that this Court finds that Dr. Khalid Iqbal satisfied all applicable standards of care in his diagnosis and treatment of plaintiff, that judgment in favor of the defendant shall be entered with respect to all claims, that defendant's FRCvP 52(c) motions are denied as moot and that this case shall be closed.

*fn2 The Clinic is funded by the United States, which concedes that Jimerson's claim against the Clinic staff is a claim against the United States. (Tr. at 138-139).

*fn3 Inasmuch as this Court will render a verdict in the defendant's favor, there is no need to address defendant's FRCvP 52(c) motions.

*fn4 Which testimony this Court finds to have been extremely credible.

*fn5 Although Jimerson testified at his deposition that he urinated at 5:00 a.m., such discrepancy is without consequence. (Tr. at 300).

*fn6 Taken verbatim from transcript.

*fn7 The notes from Dr. Iqbal's exam of Jimerson state that Jimerson "hasn't urinated since this AM." (Ex. 15 at 56).

*fn8 Moreover, Jimerson introduced no evidence that an attempt to urinate that results in only a trickle would suggest the existence of bladder dysfunction where the patient urinated twice without difficulty a few hours earlier. On the other hand, both parties' medical experts agreed that an inability to urinate a third time by 11:20 a.m. is normal and not indicative of bladder dysfunction. (Tr. at 148, 691-692, 850-851, 887-888).

*fn9 Jimerson believes that the staff at Southtowns had asked him how long he had been hurt, to which he had replied "three days." (Tr. at 243, 355). Records maintained by the staff at Southtowns, however, suggests that they asked Jimerson how long he had been incontinent and recorded his reply of "three days." Ex. 16 at 5; Tr at 715-717). Such discrepancy, however, is irrelevant. Indeed, both parties' medical experts agree that, if Jimerson had been incontinent for three days as of April 21, 1998, his opportunity for a positive outcome was already compromised by the time Dr. Iqbal examined him. (Tr at 715-717, 869); see also Harty v. Lenci, 743 N.Y.S.2d 97, 98 (1st Dep't 2002) (granting summary judgment because defendant could not be held liable for alleged delay in treating patient with CES where undisputed evidence indicated that onset of CES had occurred five days before defendant first treated the plaintiff). Nonetheless, not only would it have been too late to effectively treat Jimerson, but there is no evidence that Jimerson conveyed such information to Dr. Iqbal. In any event, in light of Jimerson's testimony that he had urinated without difficulty on April 20, 1998, this Court construes such discrepancy as Jimerson's misunderstanding of the word "incontinent" — which he did not understand at the trial. (Tr. at 330-333, 355, 363-364, 368-372). Accordingly, this discrepancy is of no significance.

*fn10 Moreover, even if Jimerson had experienced bladder dysfunction before Dr. Iqbal examined him, he did not communicate such to Dr. Iqbal. Accordingly, Dr. Iqbal had no information upon which to conclude that Jimerson had experienced bladder dysfunction.

*fn11 Jimerson's expert witness, Dr. Gary Korenman, testified that the onset of CES in Jimerson occurred at around 9:00 a.m. on April 20, 1998 when he fell onto the kitchen floor and that Dr. Iqbal should have diagnosed CES despite a lack of bladder dysfunction. (Tr. at 663-664, 717-718). Nonetheless, this Court finds Dr. Korenman's expert opinion unpersuasive. First, Dr. Korenman testified in a previous case that bladder dysfunction is the "hallmark" of CES. (Tr. at 703-705). Indeed, Dr. Korenman testified that bladder dysfunction is a clinically significant indicator of CES — (Tr. at 701-705) — and that Jimerson did not exhibit bladder dysfunction on April 20, 1998 (Tr. at 695-705). Second, Dr. Korenman testified that — of the 6-10 cases of CES that he has treated — he has never seen a single case of CES that did not involve bladder dysfunction. (Tr. at 665, 703). Accordingly, this Court does not accept Dr. Korenman's opinion that Dr. Iqbal should have diagnosed Jimerson as having CES despite the absence of bladder dysfunction on April 20, 1998. (Tr. at 663-664).

*fn12 Dr. Iqbal and the Clinic staff arranged for a stat MRI and neurosurgical evaluation to be conducted off-site because the Clinic had neither the staff nor the facilities to provide such services. (Tr. at 45-46, 86-92, 725). In any event, Jimerson does not allege otherwise.

*fn13 This Court finds that Dr. Iqbal's conduct satisfied the standard of care applicable to board certified internists practicing in any locality — be it Cattaraugus County or New York City.

*fn14 With respect to the decompressive procedure required for CES patients, such would be arranged by the physicians at the hospital to which Jimerson was referred, and was not the responsibility of Dr. Iqbal or the Clinic in which he practiced. Dr. Korenman concedes that an MRI was required before neurosurgical intervention. (Tr. at 667; cf. Tr. at 162-163, 211-212).

*fn15 Although Dr. Korenman indicated that he "would have liked to see [an MRI] done within the hour," (Tr. at 669), and that a 24-hour wait for an MRI was unacceptable, (Tr. at 671, 676), he conceded that MRI's are not obtained immediately in the "real world" and that he has seen no study upon which to base his preference for a one-hour MRI. (Tr at 689, 712-714; cf. Tr. at 859-860). Moreover, he noted that physicians diagnosing CES should "act within the first 24 hours." (Tr. at 687). Furthermore, Dr. Korenman has no basis for opining what is a reasonable time to obtain an MRI in Western New York. (Tr. at 725-727). Consequently, this Court does not find persuasive Dr. Korenman's opinion that an MRI should have been obtained within the hour.

*fn16 Moreover, Jimerson was operated on within 36 hours after Dr. Iqbal's examination, which is before the 48-hour deadline implicated by the standard of care for CES — even assuming that the onset of CES occurred at 9:00 a.m. on April 20, 1998. (Tr. at 718-719, 871-875). In any event, scheduling Jimerson's surgery was beyond Dr. Iqbal's discretion. Although this Court does not address the issue of proximate causation, it is noteworthy that the medical literature relied on by both parties' medical experts indicates that there is "no difference in outcome between patients treated less than 24 hours after the onsent of CES and those treated within 24-48 hours." (Tr. at 683-684, 711-712, 927-928, 930). Moreover, Dr. Cappuccino is aware of no medical literature establishing a contrary time frame. (Tr. at 930).

*fn17 The two hospitals closest to the Clinic — Tri-County or Lake Shore Hospital — have no MRI facilities and the mobile MRI units that serve these hospitals were not available on April 20, 1998. (Tr. at 126-127, 206-208). Moreover, the Clinic's referral clerk, Toonie Pierce, initially scheduled Jimerson for an MRI on April 24, 1998 — which Dr. Iqbal rejected as inadequate, thus prompting Pierce to obtain a next day MRI for Jimerson. (Tr. at 88-89, 161-162, 204, 209-210). Plaintiff contends that Dr. Iqbal should have sent Jimerson to ECMC immediately. As noted above, however, such is not the applicable standard of care. See also Tr. at 860-864. Moreover, there was no evidence that Jimerson would have been able to undergo an MRI immediately if he had been sent to ECMC on April 20, 1998. Although plaintiff's counsel elicited testimony that ECMC had MRI facilities on March 20, 1998 — which this Court will treat as an erroneous reference to April 20, 1998 — such nonetheless fails to show whether there was an available appointment that Jimerson could have obtained. (Tr. at 825-826). Indeed, the parties' medical experts could only speculate as to how long Jimerson would have waited for an MRI and neurological consult if he had gone immediately to ECMC. (Tr. at 728-730, 864-867). Accordingly, Jimerson has offered no evidence that an MRI could have been obtained any earlier than the 8:00 a.m. appointment made by the Clinic.


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