United States District Court, N.D. New York
CHRISTINA M. MANN, as Co-Executor of the Estate of William K. Mann Jr., WILLIAM K. MANN, III, as Co-Executor of the Estate of William K. Mann Jr., VICKI MANN, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
POWERS, SANTOLA LAW FIRM MARGIE A. SOEHL, ESQ. AMBER L.
WRIGHT, ESQ. DANIEL R. SANTOLA, ESQ. LAURA M. JORDAN, ESQ.
Attorneys' for Plaintiffs.
DEPARTMENT OF JUSTICE James T. Foley Courthouse JOHN D.
HOGGAN JR., ESQ. KAREN FOLSTER LESPERANCE, ESQ.
MEMORANDUM-DECISION AND ORDER
D'Agostino, U.S. District Judge.
August 3, 2017, Plaintiffs Christina M. Mann, Vicki Mann, and
William K. Mann III filed a second amended complaint bringing
claims for medical malpractice and wrongful death arising out
of a failure to diagnose lung cancer in the decedent, William
K. Mann Jr. ("Mr. Mann"). See Dkt. No.
The Court held a bench trial on August 7, 2017, through
August 9, 2017. At the trial, Plaintiffs called two expert
witnesses: Dr. Jordan L. Haber, an expert in radiology; and
Dr. Ronald H. Blum, an expert in oncology and internal
medicine. Plaintiffs also called Vicki Mann, Mr. Mann's
surviving spouse, and Donnell Raysor, a family friend, as
well as Mr. Mann's four children: Christina M. Mann,
William K. Mann III, Marcus D. Mann, and Alice A. Mann. The
Government called Dr. Richard Sullivan, who was Mr.
Mann's primary care physician at the Department of
Veterans Affairs Outpatient Clinic in Rome, New York.
Additionally, excerpts of two depositions were played for the
Court: one of the decedent, Mr. Mann, and the other of Dr.
John C. Sandborn, a radiologist who was employed by the
Syracuse VA Medical Center.
reviewed the parties' pre-trial submissions, the trial
transcript and exhibits, and the parties' post-trial
briefs, the Court makes the following findings of fact and
conclusions of law.
FINDINGS OF FACT
The Parties and Jurisdiction
Plaintiff Christina M. Mann was born on June 10, 1987, and is
a resident of Utica, New York. See Transcript of
Trial ("Tr.") at 365. She is William K. Mann
Jr.'s daughter and a co-executor of his estate. See
Plaintiff William K. Mann III was born on May 14, 1985, and
is a resident of Yorkville, New York. See Id. at
302. He is William K. Mann Jr.'s son and a co-executor of
his estate. See id.
Plaintiff Vicki Mann is the widow of William K. Mann Jr.
See Id. at 108.
Defendant United States of America owns and operates the
Syracuse VA Medical Center in Syracuse, New York.
Plaintiffs sue the United States of America pursuant to the
Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671
et seq. This Court has jurisdiction pursuant to 28
U.S.C. § 1331.
May 25, 2011, Mr. Mann was seen by Dr. Richard Sullivan at
the Department of Veterans Affairs Outpatient Clinic in Rome,
New York. See Dkt. No. 46 at ¶ 2.
Sullivan performed a new patient physical and ordered a chest
x-ray, see Id. at ¶ 3, and he listed the
reasons for the chest x-ray as "baseline, hypertension,
smoker, " see Pls.' Ex. 2 at 58.
May 25, 2011, Dr. John C. Sandborn was employed as a
radiologist by the Syracuse VA Medical Center and interpreted
Mr. Mann's chest x-ray within the scope of that
employment. See Dkt. No. 46 at ¶¶ 4-5.
his May 25, 2011 radiology report reviewing Mr. Mann's
x-ray, Dr. Sandborn made the following notation:
"impression: negative chest." See
Pls.' Ex. 2 at 58-59.
Plaintiffs' radiology expert, Dr. Haber, testified that
given Mr. Mann's history of smoking the radiologist
reviewing his chest x-ray should have been looking for lung
cancer, which can present as either a "coin lesion"
or a "spiculated lesion." See Tr. at
Mann's May 25, 2011 chest x-ray showed a 1.5 centimeter
nodular density in the upper left lobe of his lung. See
Id. at 36.
lesion present on Mr. Mann's chest x-ray should have been
clearly visible to a radiologist. See Id. at 39.
Haber and Dr. Ronald Blum, Plaintiffs' oncology expert,
testified that the lesion present in Mr. Mann's May 25,
2011 x-ray indicated that Mr. Mann had cancer and that a CAT
scan was required in order to prove otherwise. See
Id. at 37, 259-60.
Upon discovering the lesion in Mr. Mann's x-ray, a
radiologist following the standard of care would have
communicated that finding to the patient's doctor and
advised that a CAT scan would be necessary. See Id.
Sandborn's interpretation of Mr. Mann's chest x-ray
was a departure from good and accepted medical practices for
a radiologist in New York State in 2011. See Id. at
Blum stated that he had a reasonable degree of medical
certainty that Mr. Mann's lesion was stage 1A lung cancer
as of May 25, 2011, and that it was not metastatic. See
Id. at 237.
Mr. Mann's lung cancer had been diagnosed in May 2011,
then it would likely have been surgically removed and he
would not have required any further treatment in order to
achieve a seventy percent probability of cure. See
Id. at 237.
January 2014, Mr. Mann was hospitalized for multiple days at
Rome Memorial Hospital and a chest x-ray was performed, which
showed a lesion described in a report as "a vague area
of nodularity" measuring 2.2 centimeters. See
Id. at 263.
There is no evidence that Rome Memorial Hospital communicated
to Mr. Mann's doctors at the VA hospital that there was
evidence of malignancy. See Id. at 267.
Blum stated that it was his opinion, with a reasonable degree
of medical certainty, that Mr. Mann already had stage IV
metastatic lung cancer as of January 2014. See Id.
Mann was not diagnosed with cancer until July 2014 when he
was diagnosed with stage IV metastatic lung cancer that had
spread into his spine. See Id. at 238.
When his cancer was diagnosed on July 25, 2014, it was
inoperable and, according to Dr. Blum, it was "basically
incurable, " with a fourteen percent probability of
long-term survival. See Id. at 244.
part of his treatment, Mr. Mann underwent kyphoplasty, which
is an attempt to reinforce the bones in the back to prevent
impingement on the spinal cord and potential paralysis.
See Id. at 245; Pls.' Ex. 5 at 989, 1007-08.
Mann was also treated with four cycles of chemotherapy, which
were intended to relieve symptoms but not necessarily to
impact survival; the treatment ...