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Blake v. United States

United States District Court, W.D. New York

April 17, 2017

EDWARD R. BLAKE, et al., Plaintiffs,
UNITED STATES OF AMERICA, et al., Defendants.


          WILLIAM M. SKRETNY United States District Judge.


         Edward R. Blake and Roxanne R. Blake (together, “Plaintiffs”) commenced this action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346 and 2671 et seq. (“FTCA”) and state law, seeking damages from the United States (the “Government”), NYSARC INC. Chautauqua County d/b/a The Resource Center (the “Resource Center”), and Dr. Nabil Jamal (together, “Defendants”) for an injury sustained by Mr. Blake while in the care of medical professionals working for a clinic and hospital administered by the Department of Veterans Affairs (“VA”).

         Specifically, Plaintiffs allege that Defendants and their agents committed medical malpractice by failing to timely diagnose and treat Mr. Blake's cauda equina syndrome (“CES”) during medical visits between June 29, 2006 and July 2, 2006. Mrs. Blake also makes a claim against Defendants for loss of consortium. The case was tried before this court over 17 days between September 6 and November 3, 2016. The Government has moved for judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure. Plaintiffs, as well as Defendants Dr. Jamal and the Resource Center, have moved for judgment on partial findings under Rule 52 of the Federal Rules of Civil Procedure. Having considered the evidence admitted at trial, assessed the credibility of the witnesses, and reviewed the post-trial submissions of the parties, this Court makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure[1] (“Rule 52”) and ultimately concludes, for the reasons set forth below, that Plaintiffs have failed to prove that Defendants are liable for Mr. Blake's injuries.


         Under the FTCA, the United States is liable in the same manner as a private person for the tortious acts or omissions of its employees acting within the scope of their employment “in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1); see also Molzof v. United States, 502 U.S. 301, 305, 112 S.Ct. 711, 116 L.Ed.2d 731 (1992) (“the extent of the United States' liability under the FTCA is generally determined by reference to state law”) (citations omitted). Accordingly, a federal court presiding over an FTCA claim must apply “the whole law of the State where the act or omission occurred.” Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); see also Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994) (“State law applies to an FTCA claim.”). Because state law applies to the United States in an FTCA claim in the same manner it would apply to a private person, the Government, Dr. Jamal, and the Resource Center are all held to the same standard of care. See 28 U.S.C. § 1346(b) (1).

         To establish a medical malpractice claim under New York law, a plaintiff must prove by a preponderance of the evidence: “(1) the standard of care in the locality where the treatment occurred; (2) that the defendant breached that standard of care; and (3) that the breach of the standard was the proximate cause of injury.” See, e.g., Berger v. Becker, 272 A.D.2d 565, 565, 709 N.Y.S.2d 418 (2d Dep't 2000). Under the first element, the general standard of care in New York requires a physician to exercise “that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where he practices. . . . The law holds [the 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.” United States v. Perez, 85 F.Supp.2d 220, 226 (S.D.N.Y. 1999) (quoting Pike v. Honsinger, 155 N.Y. 201, 49 N.E. 760 (N.Y. 1898)); see also Sitts v. United States, 811 F.2d 736, 739-40 (2d Cir. 1987). An error in medical judgment by itself does not give rise to liability for malpractice. Nestorowich v. Ricotta, 97 N.Y.2d 393, 398, 740 N.Y.S.2d 668, 767 N.E.2d 125 (N.Y. 2002). Consequently, in order to prevail, Plaintiffs must have shown by the preponderance of the evidence that the medical professionals treating Mr. Blake failed to conform to accepted community standards of practice. Id. at 398. 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. And not “every instance of failed treatment or diagnosis may be attributed to a doctor's failure to exercise due care.” Nestorowich, 97 N.Y.2d at 398.

         To establish a fact by a preponderance of the evidence, a plaintiff must “prove that the fact is more likely true than not true.” See Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997) (quotation and citation omitted). Each element must be established by expert medical opinion unless the deviation from a proper standard of care is so obvious as to be within the understanding of an ordinary layperson. See, e.g., Sitts, 811 F.2d at 739-40 (noting that “in the view of the New York courts, the medical malpractice case in which no expert medical testimony is required is ‘rare'”) (citation omitted); see also Fiore v. Galang, 64 N.Y.2d 999, 1000-01, 489 N.Y.S.2d 47, 478 N.E.2d 188 (N.Y. 1985) (“except as to matters within the ordinary experience and knowledge of laymen, in a medical malpractice action, expert medical opinion evidence is required to demonstrate merit”).


         A. Background

         Eleven fact witnesses testified at trial. Both Mr. and Mrs. Blake, as well as several of their family members, testified as to the relevant events and as to Mr. Blake's current condition. The fact witnesses also included several of the medical professionals who treated Mr. Blake during the relevant period: Dr. Jamal, who treated Mr. Blake on June 29, 2006 at the VA Clinic in Dunkirk, NY, operated by the Resource Center; Dr. Rabie Stephan, who treated Mr. Blake on June 30, 2006 at the Buffalo VA Hospital; Nurse Cheryl Kline, who took Mr. Blake's telephone triage call to the Buffalo VA Hospital on July 1, 2006; and Drs. Edward O'Brien and Geoffrey Hobika, who treated Mr. Blake on July 1 and 2, 2006 at the Buffalo VA Hospital. In addition, numerous exhibits were entered into evidence, consisting primarily of Mr. Blake's medical records.

         1. CES

         CES is a rare syndrome described as “a collection of signs and symptoms associated with compression of the cauda equina.” (Tr. 783.)[3] Cauda equina is Latin for “horse's tail, ” and refers to the collection of nerve roots in the lower spinal canal. (Id.) As noted in a prior case in this district addressing malpractice and CES:

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. 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. Indeed, . . . bladder dysfunction is the “hallmark” symptom of CES.

Jimerson v. United States, No. 99-CV-0954E(SR), 2003 WL 251950, at *2 (W.D.N.Y. Jan. 13, 2003) (internal punctuation and citations to the record omitted). Based on the credible expert testimony, this Court finds these three symptoms-bladder dysfunction, saddle anesthesia, and loss of the ability to walk-to be “red flag” symptoms of CES.

         2. Mr. Blake's Prior Injury

         Mr. Blake first hurt his lower back in 1972 while serving in the Navy, and had several other injuries through the years, which resulted in his retirement in 1993 at the age of 44. (Tr. 984-85.) He experienced chronic lower back pain from the 1980s through the time of the incident at issue here in 2006, including times where the pain was in remission and other times when his pain worsened. (Tr. 2065, 2466.) During that period, Mr. Blake took narcotic pain relievers and used prescription drugs as sleep aids due to the severity of his back pain. (Tr. 2469.) In addition to a long history of back pain, Mr. Blake also experienced difficulty walking at times. (Tr. 2469, 987-88.) There were also multiple instances prior to 2006 where Mr. Blake reported pain that radiated from his back into his buttocks, hips, or legs, as well as numbness in his lower extremities. (Tr. 2467.)

         3. June 24, 2006 through July 2, 2006

         The events at issue began on the weekend of June 24 and 25, 2006 when Mr. Blake experienced increased pain after painting patio furniture. (Tr. 727.) At the time, he did not think that the injury was any kind of emergency: “I thought . . . it was going to hurt for a couple of days and go away.” (Tr. 1481.) On Monday, June 26, 2006, Mrs. Blake called the VA Clinic in Dunkirk, NY, operated by the Resource Center, and was given an appointment for Mr. Blake with Dr. Jamal on Thursday, June 29, 2006. (Tr. 1482.) Neither Mr. nor Mrs. Blake sought an earlier appointment or went to the emergency room because they did not consider the pain to be an emergency at that time. (Tr. 979-81, 1401-02.)

         Mr. Blake and Mrs. Blake testified that, on the evening of Wednesday, June 28, 2006, Mr. Blake experienced difficulty urinating. (Tr. 1483, 730.) He was “dribbling” and “getting irritated because he was sore from standing.” (Tr. 731.) Mr. Blake testified that he was not sure whether this difficulty was due to the pain in his legs or some other issue. (Tr. 2084.)

         The following morning, June 29, 2006, Mrs. Blake drove Mr. Blake to the Resource Center in Dunkirk, New York for his appointment with Dr. Jamal. (See Exhibit K, pp. 814-816.) Although Mr. Blake used a wheelchair to enter the clinic, he was able to walk into the examination room (Tr. 1483-85), where Dr. Jamal conducted a physical examination and took his medical history. (Exhibits M at 4431, K at 815.) Mr. Blake testified that he told Dr. Jamal at the start of his examination about his difficulty urinating the prior evening. (Tr. 1485.) The written records from the admitting nurse and Dr. Jamal note Mr. Blake's back pain, but neither notes any red flag symptom of CES. (Id.) In particular, there is no record of any complaint regarding urinary dysfunction from the June 29, 2006 visit. Dr. Jamal credibly testified[4] that it is his custom to ask patients with low back pain whether they are experiencing urinary dysfunction and to document any positive findings, but not negative findings. (Tr. 151.) He further testified that, although he considered CES as a potential diagnosis, he ruled it out due to the lack of red flag symptoms, including the absence of urinary dysfunction. (Tr. 141, 2220, 2262-63.) Dr. Jamal diagnosed Mr. Blake with chronic back pain, prescribed additional pain medication, and ordered a urine toxicology test in conjunction with that prescription. (Exhibit K at 816.) Mr. Blake successfully provided the requested urine sample. (Tr. 2087.)

         Although this court is confident that Mr. Blake testified in good faith that he reported his difficulty urinating to Dr. Jamal, it finds that his memory is less than clear with respect to the relevant events, and therefore does not fully credit his account. Mr. Blake first testified about the events of this case during his deposition seven years after his visit with Dr. Jamal. His testimony in Court was taken more than ten years after the visit. Although anyone might have difficulty remembering events after such a long period, Mr. Blake may be particularly susceptible to forgetfulness. Several of the prescription drugs that he has taken have been shown to lead to memory loss. (Tr. 879.) Further, Mrs. Blake testified that Mr. Blake's memory is not as good as it used to be. (Tr. 975.) Indeed, so much of Mr. Blake's testimony was inconsistent with the contemporaneous records of June 29, 2006 that it almost seemed that Mr. Blake was describing a different encounter. For example, Mr. Blake initially testified that he had seen Dr. Jamal several times prior to the June 29 visit, which was, in fact, his first time seeing Dr. Jamal. (Tr. 2085, 2099.) Mr. Blake also testified that he had not signed a pain management contract during the visit, but later admitted that he was mistaken after seeing the contract with his signature on it. (Tr. 2088.) Accordingly, and as explained in greater detail below, this Court finds that Mr. Blake did not report any urinary dysfunction to Dr. Jamal or the staff at the Resource Center on June 29, 2006.

         On June 30, 2006, Mr. Blake's pain had increased again. Mrs. Blake brought him to the VA Hospital in Buffalo, where he was seen by Nurse Veronica Fagley and Dr. Rabie Stephan. The records indicate that Mr. Blake complained of severe low back pain that radiated down both legs and intermittent numbness. (Exhibit K at 812-13.) Although Mrs. Blake testified that she brought Mr. Blake into the hospital in a wheelchair, the records indicate that he was “ambulatory.” (Id.) Mr. Blake testified that he told both Nurse Fagley and Dr. Stephan that he was having trouble urinating.[5] (Tr. 1489.) The written records from this visit again contain no documentation of CES red flag symptoms. (Exhibit K at 812.) Further, Dr. Stephan recorded that Mr. Blake denied any bladder or bowel dysfunction. (Id. at 1010.) Dr. Stephan testified[6] that, after taking a history and conducting a physical exam, and given the denial of bladder and bowel dysfunction and a finding of no sensory or motor loss, he ruled out CES as a possible diagnosis because there were no red flag symptoms. (Tr. 318.) Dr. Stephan ultimately diagnosed Mr. Blake with acute and chronic back pain, an acute myofascial strain, and degenerative disc disease, and administered Dilaudid to ease Mr. Blake's pain. (Exhibit K at 1011, 814.)

         Again, although this Court is confident that Mr. Blake testified in good faith and gave his best recollection of the visit on June 30, 2006, greater credit must be accorded to the contemporaneous medical records, which record that Mr. Blake did not have bladder dysfunction or any other red flag symptom of CES, and to Dr. Stephan's credible testimony as to his custom and practice. Accordingly, this Court finds that Mr. Blake did not report any urinary dysfunction or other red flag symptom to Dr. Stephan or the staff at the VA Hospital on June 30, 2006.

         Mr. Blake fell asleep around 10 pm on the evening of June 30, 2006 and did not wake until 3 pm the following day, July 1, 2006.[7] (Tr. 1494-95.) When he attempted to get out of bed, he realized he could not feel his legs and he urinated on himself. (Tr. 1495.) Mrs. Blake estimated that Mr. Blake voided approximately 500-600 milliliters of urine. (Tr. 755-56.) Mr. Blake called the VA emergency line at 4:16 pm that afternoon and spoke to Nurse Kline, a registered nurse. He described his symptoms to her, including the loss of bladder control and the loss of feeling in his legs, both of which Nurse Kline recorded as “new” symptoms. (Exhibit K at 810.) Nurse Kline asked Mr. Blake a series of questions prompted by “TelCare, ” a program that uses an algorithm to make recommendations for medical care, and instructed Mr. Blake to proceed urgently to the VA Hospital emergency room. (Id.)

         Mr. Blake checked into the VA Hospital at 5:56 pm on July 1, 2006. (Id. at 805.) The emergency room triage note indicates that he arrived in a wheelchair with “new” urinary incontinence. (Id. at 806.) Mr. Blake was treated first by Dr. O'Brien, then by Dr. Hobika after the shift changed at midnight. Dr. O'Brien recorded Mr. Blake's chief complaints to be back pain and incontinence. (Id. at 1008.) Dr. Hobika, when he took over Mr. Blake's care, recorded that Mr. Blake stated he “awoke 7/1/2006 in the morning with urinary incontinence, bilateral lower extremity burning dysesthesias, and significant right lower extremity weakness (unable to walk or get up from a chair) all new symptoms.” (Id. at 803-804.) At 9:02 pm, the VA nurses allowed Mr. Blake to use a urinal and used a catheter to drain what remained in Mr. Blake's bladder; he voided a total of 1100 milliliters of urine. (Id. at 807, 1009.)

         Dr. O'Brien ordered a number of tests, as well as an x-ray, in an attempt to rule out potential causes for Mr. Blake's symptoms. (Id. at 1009.) An MRI was not available at the VA Hospital during the weekend, so Dr. O'Brien ordered a CT scan instead. (Id.) There was a delay in obtaining Mr. Blake's CT scan because of his severe back pain and inability to lie flat for the exam. (Tr. 453.) After additional pain medication, a “heart-to-heart” talk from Dr. Hobika, and with pillows taped into place to support his knees, Mr. Blake was finally able to lie flat for the CT scan at 1:30 am on July 2, 2006. (Exhibit K at 808.) Once the images were evaluated, Mr. Blake was diagnosed with CES and transferred to Millard Fillmore Gates Hospital (“MFGH”) for surgery because the VA Hospital did not have a neurosurgeon on call. (Tr. 533-34.) Mr. Blake arrived at MFGH at 6:05 am on Sunday July 2, 2006, and was in surgery with Dr. James Budny at 10:45 am that day. (Exhibit L at 1815.) The surgery was complete at 1:15 pm on July 2, 2006 (id.), less than 24 hours after Mr. Blake first contacted the VA Hospital emergency room line.

         4. Mr. Blake's Continuing Symptoms

         Since his CES surgery, Mr. Blake has been primarily confined to a wheelchair. (Tr. 1472.) He is able to walk with “euro canes” that grip his arms, but only for short distances. (Tr. 700-701.) Mr. Blake cannot control his bladder or bowels, and so must follow a strict regimen and receive assistance from his wife to avoid soiling himself. (Tr. 832-33, 1476.) He takes morphine, but still suffers ...

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