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Kolerski v. United States

September 2, 2008


The opinion of the court was delivered by: William M. Skretny United States District Judge


I. Findings of Fact

A. Background

1. On October 3, 2006, Plaintiffs Janice Kolerski and Benjamin C. Heath, as co-executors of the estate of Edward Heath, filed an Amended Complaint (Docket No. 6) against the United States of America under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §1346(b) and 28 U.S.C. §2671, et seq.

2. Plaintiffs alleged that negligent medical care provided by the Department of Veteran's Affairs Medical Center had proximately caused Heath to "suffer[] severe, permanent and painful injuries, including conscious pain and suffering, ultimately resulting in his death." (Amended Complaint, Docket No. 6, ¶ 13).

3. The United States conceded liability and causation. (Tr. at 3-4).

4. On June 9, 10, and 11, 2008, this Court conducted a Bench Trial on the issue of damages. Plaintiffs called the following witnesses: Benjamin Heath, Janice Kolerski, Dr. Michael Kane, Karl Vogel, Margaret Vogel, Dean Moretti, and Dr. Andrew Esch. The Parties stipulated to the admission of Plaintiff's medical records. Defendant did not call any witnesses.

B. Edward Heath

5. At the time of the events in this case, Edward Heath was 86 years old. (Ex. 2 at 183). He was a veteran, having served in the military in World War II. (Tr. at 43-44).

6. Since the death of his wife in 2000, Heath lived by himself in Lackawanna, NY. (Tr. at 43-44). Heath owned and managed a four-unit apartment, which he maintained with the help of his children. (Tr. at 43-44).

7. Heath had some health problems, including hypertension, atrial fibrillation, general aches and pains, and a history of bladder cancer, which was stable at the time of the events in this case. (Tr. at 302).

8. Heath enjoyed playing golf. (Tr. at 52). He drove a car, and was assessed as "safe to drive" by his physician's office in June of 2004. (Tr. at 303). Heath's family testified that he had no problems speaking or communicating. (Tr. at 49, 52).

C. Events leading up to Heath's Hospitalization

9. Dr. Michael Kane was Heath's primary care physician. (Tr. at 260).

10. Dr. Kane prescribed Heath with Coumadin, a blood thinner, to treat atrial fibrulation. (Tr. at 265).

11. Heath went to the Veteran's Affairs Medical Center ("VA") Coumadin Clinic for monitoring and management of his Coumadin dosage. (Tr. at 267).

12. On June 17, 2004, Heath went to the VA Coumadin Clinic for a blood draw to measure his Coumadin levels. (Ex. 1 at 37-38). At the Clinic, Heath complained of a bruise on his right ankle. (Ex. 1 at 37-38). When Heath returned home, his daughter Margaret Vogel observed the bruise, applied ice, and had Heath elevate his ankle. (Tr. at 396-97).

13. On June 18, 2004, Heath experienced pain, bruising, and swelling in his right leg. (Tr. at 262-63, 272). He called for an ambulance around 7:00 PM, and was taken to the Mercy Hospital Emergency Room. (Tr. at 251).

D. Hospitalization

14. At Mercy Hospital on June 18, 2004, it was determined that Heath's Coumadin level was dangerously high. (Tr. at 263). Heath was admitted to Mercy Hospital for "reversal of his anticoagulation, and pain management and observation of his leg." (Tr. at 263).

15. At the time of his admission, Heath's pain was graded as "a sharp pain and it was three to six out of ten in intensity. Localized to the right leg." (Tr. at 272).

16. Dr. Kane attributed Heath's pain at the time he was admitted to a hematoma which caused swelling in Heath's leg. (Tr. at 273-74). As Dr. Kane explained:

The body generally doesn't like to be stretched, and any part of your body that gets stretched either by fluid or swelling, it hurts. . . . Because of this hematoma at the time of his admission [] it was thought the blood underneath the skin was stretching the skin and pushing on the structures below, which would be muscles, nerve, [and] eventually bone . . . ." (Tr. at 274-75).

17. The day he was admitted, Heath was given a dose of Dilaudid (a morphine relative, prescribed for severe pain). (Tr. at 295).

18. On June 20, 2004, Heath's daughter, Margaret Vogel, visited Heath and observed the following:

"He was gritting his teeth. He was -- any time he couldn't get comfortable -- like everything was hurting. . . . But he was just miserable. He just didn't want to cooperate as far as like you said, reading his card, he was too -- in too much pain to even do that." (Tr. at 407).

19. On June 21, 2004, Heath had a fever and reported to Dr. Kane that he "felt like garbage." (Tr. at 277). Dr. Kane explained that Heath had an open wound on his right leg, which Kane described as a "big blood blister . . . extend[ing] initially pretty much ...

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