United States District Court, W.D. New York
EDWARD R. BLAKE, et al., Plaintiffs,
UNITED STATES OF AMERICA, et al., Defendants.
DECISION AND ORDER
WILLIAM M. SKRETNY United States District Judge.
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”).
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 (“Rule 52”) and ultimately
concludes, for the reasons set forth below, that Plaintiffs
have failed to prove that Defendants are liable for Mr.
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).
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.
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
FINDINGS OF FACT AND CONCLUSIONS OF
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.
a rare syndrome described as “a collection of signs and
symptoms associated with compression of the cauda
equina.” (Tr. 783.) 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
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
Mr. Blake's Prior Injury
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.)
June 24, 2006 through July 2, 2006
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.)
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.)
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 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.)
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.
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. (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 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.)
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.
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. (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.)
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.)
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.
Mr. Blake's Continuing Symptoms
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