Medical Negligence Law Case Study

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16th Dec 2019 Dissertation Reference this

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Re: Sam Black v. United States-Medical Malpractice by V.A. Hospital

MEMORANDUM OF LAW

  1. OVERVIEW

The alleged medical negligence of Health Care System (“HCS”) employees in their treatment of Sam Black (“Black”) began on June 1, 2017, when Mr. and Mrs. Black arrived at the emergency room (ER); when Dr. Howard Love (“Love”) was informed by Black of the swelling of his right elbow.  Love was also informed by Mrs. Black that Mr. Black had a history of Methicillin-resistant Staphylococcus aureus (“MRSA”) infections. Black was released from the hospital without ruling out MRSA, possibly leading to spread of the infection to his spine. That required emergency surgery due to progression of spinal cord compression to the point of paralysis resulting in the alleged neurological injury after being released by the hospital two days earlier. Black’s life has been drastically and permanently affected due to the apparent failure of the HCS health care providers to timely surgically treat the MRSA infection of the spine before irreversible nerve damage occurred.

After comparing previous Medical Malpractice by a V.A. Hospital cases to Black’s case, one may conclude that a suit may be brought against the V.A. Texas Health Care System (“HCS”). The applicable standard of care owed was breached; medical care in accordance with the requisite standard of care for MRSA requires testing and antibiotics specific to MRSA sufferers. There are several principles to take into consideration such as; Black informing Love of his previous history of MRSA. The breach of standard of care proximately causing the infection in Black’s spine resulting in cause in fact of his damages was foreseeable. The elements addressed and probability of an outcome resulting in judgement for the Plaintiff seems evident.  Black seeks recovery of all damages to which he is entitled due to VA hospital medical negligence.

  1. FACTS

On June 1, 2017, Black, age 50, arrived at the ER; at that time Love an employee of HCS, was informed by the Blacks of the swelling of his right elbow and history of MRSA. Black was released from the hospital without ruling out MRSA, possibly leading to spread of the infection to his spine. Considering Black’s alleged delay in treatment of the spinal infection and worsening symptomology. Black was transferred to University Medical Center (UMC) for emergency surgery due to progression of spinal cord compression to the point of paralysis. This resulted in the alleged neurological injury after being released by the hospital two days earlier. Black must learn to walk again and still requires a walker. He continues to have uncontrollable jerking movements of his legs, as well as numbness (feeling as if his legs are always asleep). He also has impaired bowel and bladder function which requires self-catheterization during the day and a Foley catheter, (flexible tube that is often passed through the urethra and into the bladder) at night. Moreover, he has sexual dysfunction, and he is unable to participate in activates he used to enjoy such as travel, boating and swimming. His life has been drastically and permanently affected due to the alleged failure of the HCS health care providers to timely surgically treat the MRSA infection of the spine before irreversible nerve damage occurred including but not limited to; a) alleged delay in diagnosis of MRSA infection of the right elbow, perhaps leading to the spread of the infection around the spinal cord; and b) alleged delay in surgical treatment of the spinal infection, perhaps resulting in severe spinal cord compression with nerve damage and significant, permanent disability to Black. MRSA is a gram-positive bacterium that is genetically different from other strains of Staphylococcus aureus, and it is responsible for several difficult-to-treat infections in humans.

The U.S. Government health care provider may have failed to timely diagnose the MRSA infection of the right elbow and may have allowed the infection to spread to the spine.  The delay in surgically treating the extensive spinal infection may have been foreseeable. There may have been evidence of cord compression with the spread of the infection from C6-7 into the thoracic spine, leading to the setting of worsening neurological and infectious picture (increasing pain despite pain medication). Which may have contributed to the elevated white blood count (WBC) thus resulting in the failure of the infection to properly respond to conservative treatment such as antibiotics. This may have led to cervical thoracic spinal abscess extending the entire length of the spine requiring emergency surgery. This may have resulted in permanent neurological damage to Black including but not limited to: physical impairment requiring a walker to ambulate, chronic pain, numbness and tingling of his legs as well as uncontrolled jerking of the legs, neurogenic bladder requiring self-catheterization during the day and a Foley catheter at night, bowel incontinence and sexual dysfunction.

The opinion of Dr. Mike Bishop (“Bishop”), an expert in MRSA treatment, obtained by contacting an expert in the field of MRSA, stated that Love should have tested for MRSA before starting antibiotic treatment since the drugs that are used to treat an ordinary staph infection will more than likely not be effective against MRSA, and such use could cause serious illness, and more resistant bacteria. In addition to testing for MRSA, Bishop noted that in similar situations, Love could have conducted an ultrasound guided procedure to aspirate a sample of the fluid. Additionally, if Love was unsuccessful in obtaining fluid, he would have consulted surgery or interventional radiology (“IR”) to obtain a fluid sample as to rule out MRSA infection especially in a patient with a recent history of MRSA in the elbow. The MRSA testing will utilize a small tissue sample or nasal secretions. If the diagnosis is positive for MRSA, Love would have utilized antibiotics that have been found effective against the disease. Yet, Love sent Black home without ruling out MRSA infection, after being informed of his recent history of MRSA. Additionally, Love stated his decision to discharge Black was due to “absence of inflammatory stigmata,” even though Black did have signs and symptoms of infection to include pain level of 7 out of 10 (7/10), red, and swollen right elbow (according to Black’s medical record). Moreover, expert opinion by Bishop stated that if Love had ordered lab work, more likely than not, the white blood cell count (WBC) would have been elevated indicative of infection.   In Bishop’s expert opinion if Love would have obtained blood work such as a complete blood count (CBC) to further assess for infection and obtained a fluid sample from   the right elbow to rule out MRSA, a treatment could have been put in place to prevent the infection from spreading before discharging Black. Allegedly by the time the results note was acknowledged, Black had been hospitalized with sepsis and the infection had spread to his spine.

 

III. ISSUES

A. What standard of care did Dr. Love owe to Mr. Black?

B. Did Dr. Love breach the standard of care?

C. If Dr. Love did breach standard of care did the breach proximately cause Mr. Black’s damages?

1. Was the breach the cause in fact of his damages?

2. Were his damages foreseeable?

  1. Answers

 

A. Applicable standard of care owed:  medical care in accordance with requisite standard of care for MRSA. There are several principles to take into consideration. A majority of physicians employ an incision and drainage as definitive treatment for simple abscess and add MRSA-effective antibiotics for more severe infections.

B. Yes, Dr. Love did breach the standard of care.

C. Yes, Dr. Love’s breach of the standard of care proximately causes the damages.

1. Yes, the breach was the cause in fact of his damages.

2. Yes, his damages were foreseeable.

V. DISCUSSION

 

Federal Tort Claims Act (“FTCA”) allows certain kinds of lawsuits against federal employees who are acting within the scope of their employment.  To establish a claim there must be evidence of breach of standard care and proximate cause.

  1. Statutes/ Regulations

 

Black’s legal issue is based on the medical malpractice by the V.A. Hospital. Under the Doctrine of sovereign immunity, a government is not liable for the tortious acts of its employees. The Federal Tort Claims Act (“FTCA”), however, provides a limited waiver of the federal government’s sovereign immunity. In section 2680 of the FTCA, Congress set out the circumstances in which the government is exempt from liability. Congress enacted several statutes making the FTCA the exclusive remedy for medical malpractice claimants. These statutes prevent civil action against the employee by substituting the remedies required under the FTCA.

The Code of Federal Regulations   for suits against department of veteran affairs employees arising out of a wrongful act or omission or based upon medical care and treatment resulted in an understanding that no suit can lie against a federal employee while acting within the scope of his or her office or employment with the Federal Government. 38 C.F.R. § 14.605.

In benefits for persons disabled by treatment or vocational rehabilitation, 38 U.S.C. § 1151, Congress mandated that:

(a) compensation … shall be awarded for a qualifying additional disability … in the same manner as if such additional disability … were service-connected. For purposes of this section, a disability … is a qualifying additional disability … if the disability … was not the result of the veteran’s willful misconduct and—

(1) the disability … was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility …, and the proximate cause of the disability or death was—

(A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or

(B) an event not reasonably foreseeable [.] 38 U.S.C. § 1151.

The U.S. Attorney will decide whether the employee is eligible for the protection. The Regional Counsel has jurisdiction over the place where the employee works and will conduct a preliminary investigation. This will include an affidavit by the employee’s supervisor as to whether the defendant-employee was acting in the scope of his or her employment at the time of the incident, and a request from the defendant-employee for representation. The Regional Counsel will refer the matter to the appropriate U.S. Attorney with a recommendation as to whether the employee is eligible for protection under 28 U.S.C. 2679 or 38 U.S.C. 7316.

In comparing Mr. Black’s issues to the C.F.R., there is clear evidence that a wrongful act or omission had occurred. The physician did not properly test or treat Black’s MRSA before releasing him from the hospital and possibly lead to the spread of the infection to his spine. Considering Black’s alleged delay in treatment of the spinal infection and worsening symptomology. Black was transferred to emergency surgery due to the progression of spinal cord compression to the point of paralysis. This resulted in the alleged neurological injury after being released by the hospital two days earlier.

B. Standard of Care

 

In medical negligence cases, plaintiffs must establish by preponderance of evidence acceptable standard of care owed by physician, produce evidence that physician breached duty to render medical care in accordance with requisite standard of care, and establish that breach proximately caused injury alleged. West’s F.S.A. § 766.102(1).  Some of the pre-requisite standard of care for MSRA patients is to order only oxacillin sensitivity testing (often called a MRSA Screen) when screening for MRSA and at least five days apart. Another important tool is to reference the infection prevention & control policies for the hospital to determine how to treat if the patient is colonized with MRSA or has a MRSA infection.

In a case similar to Black’s situation, Powers v. U.S., Robert Powers (“Powers”) filed suit alleging medical malpractice in treatment he received in connection with posterior cervical facet fusion. The Court found that the government doctors failed to receive the informed consent of the plaintiff before they performed the operation and the subsequent treatment. The surgeons that performed the fusion did not take into account pre-fusion spinal condition, including his bone spurs and cervical subluxation. As a result, they fused the plaintiff’s cervical spine at an excessive angulation for him and, in so doing, failed to exercise the good judgment required in each individual case by the standard of due care involved. Thus, the plaintiff was entitled to compensation for the injuries caused by the defendant. The interruption of blood supply causing nerve damage did not fall in accordance with the applicable standard of care and caused Powers to suffer permanent physical injuries.  Powers v. U.S., 589 F.Supp. 1084 (1984).

Comparing the Power’s Court findings to Black’s situation,  Love’s alleged failure to take into account Black’s history of MRSA possibly lead to the treatment that did not include the  required testing and antibiotics specific to MRSA sufferers. The possible Court’s rationale in summarizing Black’s standard of care could be that the alleged deficiency in testing for MRSA fell below the standard of care requirements. To test a tissue sample and treat the resistant bacteria with effective antibiotics for MRSA infections, possibly causing the spread of infection to his spine and resulting neurological injuries.

Another case involving standard of care, Canion v. U.S., involved the physician’s failure to properly treat Irene Canion’s (“Canion”) finger fracture and to properly align the fracture fragments prior to pin fixation in accordance with the applicable standard of care. Canion was seen by Dr. Monsivais (“Monsivais”)  in December of 2001. Testimony by Monsivais did not set forth the standard of care to prevent flexion contractures. However, Monsivais did not follow his own recommendations during the treatment of Canion. Monsivais continued to testify that even if everything was done appropriately for a patient, the hypothetical patient could still develop chronic regional pain syndrome (CRPS). The Court found that CRPS is not well understood within the medical community, and its causes are numerous and extremely complex.Thus, concluding that the Plaintiff did not establish, by a preponderance of the evidence, a failure by the Defendant to conform to the requisite standard of care on Plaintiff’s factual claims of negligence.  Canion v. U.S., No. EP-03-CA-0347-FM, 2005 WL 1514045, (W.D. Tex. June 21, 2005), 180 F. App’x 490 (5th Cir. 2006).

As in the Canion case, the standard of care in MSRA infections is not well understood. The standard principles still remain; resistances to such agents as mupirocin (antibiotic) have developed rapidly, so this topical antibiotic can no longer be recommended for routine use. Black informed the doctor of his history with MRSA. This should have been addressed by the hospital since a lesion cannot reliably distinguish streptococcal infection from staphylococcal infection or indicate anything about antibiotic sensitivity in the patient. In Black’s circumstances, it is possible to conclude that the standard of care received was not evident within the medical treatment guidelines. Standard of care specifies appropriate treatment based on scientific evidence and collaboration between medical professionals involved in the treatment of a given condition. The level at which an ordinary, prudent medical professional with the same training and experience would practice under similar circumstance must be consistent. Black must establish with expert testimony that the standard of care was breached.  Bishop was contacted in regards to his expert experience in MSRA patients. Based on his experiences and training Black was not tested or treated within the guidelines of treating MSRA patients.

  1. Breach of Standard of Care

Breach of standard of care is evident when a health care provider fails to exercise the degree of care expected of a prudent health care provider. A breach of duty occurs when a person’s conduct falls below the relevant standard. Breach of care has also been described as proceeding with such reasonable caution as a prudent man would exercise.

The standard of care breached in Hogan v. U.S., decided what cause or causes came together to create Grace Hogan’s (“Hogan”) condition. A District Court judgment held the United States liable for the negligence of physicians at an army hospital in delaying their use of standard diagnostic procedures to identify the plaintiff’s illness. Hogans’ case included the lack of treatment which resulted in major injury and could have been prevented if doctors had consulted an urologist and had an intravenous pyelogram (IVP) performed. Applying Washington state comparative liability concepts, a plaintiff alleging medical negligence is by statute required to prove two elements:

1.) The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the state of Washington, acting in the same or similar circumstances;

2.) Such failure was a proximate cause of the injury complained of.

In 1990 and 1992, the standard of care required an MRI to rule out an acoustic neuroma as the case of Hogans’ symptoms. The government health worker employees fell below the standard of care when they failed to do an MRI in February of 1990. If the MRI had been performed, the probabilities would have been very high to have diagnosed the acoustic neuroma. The Court decided, based on the evidence presented and conflicting expert opinion that the plaintiffs and defendant had proven proximate cause in equal proportions. Hogans v. U.S., No. CIV.A.SA-03-CA-439FB, 2005 WL 3338065, (W.D. Tex. Sept. 30, 2005).

In applying the facts of the Hogans’ case with Black’s point of view, the attending physician could have conducted an ultrasound guided procedure to aspirate a sample of the fluid or if he was unsuccessful in obtaining fluid, he would have consulted surgery or interventional radiology to obtain a fluid sample as to rule out MRSA infection especially in a patient with a recent history of MRSA in the elbow. Love stated his decision to discharge Black was due to “absence of inflammatory stigmata.”  However, Black did have signs and symptoms of infection to include painful levels of 7 out of 10 (7/10), red, and swollen right elbow. It appears these actions define the elements of a standard of care breach.

The standard of care as in the case of Jackson v. U.S., the Plaintiff failed to prove by a preponderance of the evidence that Dr. Shad’s treatment of Henrietta Jackson (“Jackson”) fell below the standard of medical care required by Florida law. The District Court, Corrigan, J., held that:

1) physician did not fall below standard of care when he elected to perform ERCP;

2) physician did not negligently perform ERCP; and

3) physician did not fail to obtain patient’s informed consent to perform ERCP.

Multiple hospital visits and tests were performed over the eleven years that Jackson pancreatitis showed symptoms. The reasoning used in the Jackson case did not establish that breach proximately caused injury alleged. Therefore, the Court gave judgement for defendant.  Jackson v. U.S., 469 F.Supp.2d 1068 (2006).

In comparison, Black’s injuries were a result of the care received proximately causing the spinal infection.  If Love had obtained blood work such as a complete blood count to assess for infection and would have obtained a fluid sample from   the right elbow to rule out MRSA, a treatment could have been put in place to prevent the infection from spreading.  If Love was unable to obtain a sample of the fluid from    the elbow, he could have had a surgical staff or IR obtain the sample   of fluid to rule out MRSA before discharging Black. Yet, Black had been hospitalized with sepsis and spread of the infection to his spine two days after his discharge.

As in the case of Canion v. U.S., the testimony of the attending physician stated that the government’s treatment of Canion’s unrelieved pain breached the standard of care by delaying the implementation of therapy because of the delay in diagnosing the CRPS. However, the testimony lacked the explanation as to what the standard of care should have been. The doctor also noted that the repeated refusal of Canion to do as instructed equally caused the uncontrolled pain in her finger. The hospital did not breach standard of care, resulting in case dismissal.  Canion v. U.S., No. EP-03-CA-0347-FM, 2005 WL 1514045, (W.D. Tex. June 21, 2005), 180 F. App’x 490 (5th Cir. 2006).

Comparing the Canion case to Black’s situation it is evident that at the time of admittance to the emergency room, Black did inform the hospital of his MRSA history and did follow instructions given by physicians. Yet, the lack of testing and treatment for MRSA was not within the requisite of the standard of care. When taking into account that MRSA is difficult to treat some expert opinions note effective ways to test for and treat according to the center for disease control (“CDC”).

  1. Proximate Cause

An interpretation of proximate cause considers whether the injury would not have occurred but for the defendant’s negligent act. Some jurisdictions apply the “substantial factor” formula to determine proximate cause. This rule considers whether the defendant’s conduct was a substantial factor in producing the harm. If the act was a substantial factor in bringing about the damage, then the defendant will be held liable. (Legal Dictionary)

Again using the example of Powers v. U.S., the Court found that the government doctors failed to receive the informed consent of the plaintiff before they performed the operation and the subsequent treatment. The interruption of blood supply causing nerve damage did not fall in accordance with the applicable standard of care and the negligent treatment received proximately caused Powers to suffer permanent physical injuries.  Powers v. U.S., 589 F.Supp. 1084 (1984).

The opinion of Bishop, an expert in MRSA treatment, stated that Love should have tested for MRSA before starting antibiotic treatment since the drugs that are used to treat an ordinary staph infection will not be effective against MRSA and such use could cause serious illness and more resistant bacteria. Therefore, the use of the alleged inefficient antibiotics on Black proximately caused the infection to spread to his spine.

Referencing the Canion case, there are two elements of proximate cause under Texas law: foreseeability and cause in fact. Establishing cause in fact involves a determination of what actually occurred and is generally left to the jury. Under Texas law, to recover from the government in a medical malpractice action for the alleged negligent acts or omissions of a physician, Plaintiff must prove the following elements by a preponderance of the evidence: (1) a duty by the physician to act according to an applicable standard of care; (2) a breach of that standard of care; (3) actual injury to the Plaintiff; and (4) proximate causation. The Court found after reviewing expert testimony that the hospital’s actions were not the proximate cause of Canion’s injuries. Canion v. U.S., No. EP-03-CA-0347-FM, 2005 WL 1514045, (W.D. Tex. June 21, 2005), 180 F. App’x 490 (5th Cir. 2006).

After weighing the evidence and considering the credibility of the witnesses, the Court may conclude that Black has established a failure by the Defendant to conform to the requisite standard of care on Black’s factual claims of negligence proximately causing his injuries. In Black’s situation all elements have probability of being admitted as evidence of medical malpractice. The lack of testing and treatment with antibiotics that are resistant in a patient with a history of MRSA may have led to the spread of the infection to Black’s spine. Hence the physicians alleged actions proximately causing the permanent neurological damage to Black.

Another case using similar reasoning was in Bond v. U.S., the Plaintiff, Pamela L. Bond, the widow of Craig R. Bond (“Bond”), alleged that the defendant was negligent for failing to properly and timely diagnose Bond’s cardiac condition. Failing to provide Bond with appropriate specialty surgical intervention or to conduct medically necessary testing prior to his discharge and for improperly discharging him before his cardiac condition was properly stabilized. As a result, plaintiff claimed that Bond died from his cardiac condition, approximately 48 hours after he was discharged from the VAMC. The Court found that based on sufficient testimony, the VAMC doctors did not violate the standard of medical care in the community and was not the proximate cause of his death. Thus, the Court found in favor of the defendant. Bond v. U.S., No. CIV. 06–1652–JO, 2008 WL 655609 (2008).

In comparing the Bond case to Black’s treatment by  Love, it can be noted that Bond had multiple hospital tests performed over the time that  Bond was in the hospital and could not have prevented the unforeseen death. As opposed to Black who was not treated by antibiotics that were designated for MRSA patients but released from the hospital before results were reviewed. The delay in surgically treating the extensive spinal infection may have proximately caused Black’s; physical impairment requiring a walker, chronic pain, numbness, tingling uncontrolled jerking of the legs, neurogenic bladder, bowel incontinence and sexual dysfunction.

  1. Cause in Fact

As in the case of Canion v. U.S., plaintiff presented an injury to her left pinky finger. After examination, it was found that Canion suffered from a fracture of her left finger. After three re-casts Canion’s pain did not levitate and she was diagnosed with CRPS. The Court found that based on evidence and credible witness’ statements that she did not follow doctors instructions and did not substantiate the claim of failure to treat acute pain early causing CRPS. The case was dismissed due to insufficient evidence. Canion v. U.S., No. EP-03-CA-0347-FM, 2005 WL 1514045, (W.D. Tex. June 21, 2005), 180 F. App’x 490 (5th Cir. 2006).

When an antibiotic drug no longer has an effect on a certain strain of bacteria, those bacteria are said to be antibiotic resistant. The overuse and misuse of antibiotics are key factors contributing to antibiotic resistance. In Black’s situation the attending physician’s duty is to ensure proper use of the drugs and minimize the development of antibiotic resistance. Yet, when Love allegedly did not consider Black’s MRSA history and released him from the hospital this could be construed as cause in fact.

The Court of appeals reversed and remanded the Kennedy v. U.S. Veterans Administration case due to lack of subject-matter jurisdiction. The Plaintiff alleged that he was never advised of the possible adverse consequences of the surgery nor did he give informed consent, and that as a result of Defendants’ negligence and medical malpractice he sustained damages to all three branches of his trigeminal nerve. The Court held that a vested right to a cause of action under Ohio’s statute of repose is preserved pursuant to the statute of limitations under the FTCA, and accordingly,  REVERSED the District Court’s judgment and REMANDED for further proceedings. Kennedy v. U.S. Veterans Admin., 526 Fed.Appx. 450 (2013).

Even if Black had pressured Love to relieve the pain and symptoms quickly, the consideration of Black’s history should have been a key decision factor. If the MSRA test had been administered and results viewed before starting the antibiotic treatment since the drugs that are used to treat an ordinary staph infection will not be effective against MRSA and such use could cause serious illness and more resistant bacteria. Then Black’s infection may not have worsen and spread into his spine. Therefore, releasing Black before MRSA antibiotics were given may have been the cause in fact for the spread of the infection to his spine and resulting injuries.

In Hogans v. U.S., the Court recognized Washington law cause in fact and legal causation as the elements, in contrast to Texas law under which the elements of proximate cause are foreseeability and cause in fact. Establishing cause in fact involves a determination of what actually occurred and is generally left to the jury. Unlike factual causation, which is based on a physical connection between an act and an injury, legal cause is grounded in policy determinations as to how far the consequences of a defendant’s acts should extend.  The focus in the legal causation analysis is whether, as a matter of policy, the connection between the ultimate result and the act of the defendant is too remote or insubstantial to impose liability. The Court awarded Hogans’ restitution. The Court’s holding clearly answered the issue regarding the elements required to establish liability against the hospital for the acts of the employees. The Court clearly defined the applicable rule of law before applying the rule to the facts of the case. Hogans v. U.S., No. CIV.A.SA-03-CA-439FB, 2005 WL 3338065, (W.D. Tex. Sept. 30, 2005).

Compared to Black’s facts Hogans’ case involved a standard of care cause in fact to do a MRI based on her symptoms. Therefore, the neuroma would have been diagnosed. Similarly, if Love had taken a sample of tissue and had it tested, the diagnosis of MRSA would have been addressed at an earlier stage. Ideally, dismissing the need for emergency surgery since the infection would have been treated and not spread to the spine.

  1.  Foreseeability

Foreseeability is one of the elements of negligence. It is more appropriately attached to the issues of whether defendant owed plaintiff a duty, and, if so, whether the duty imposed by the risk embraces that conduct which resulted in injury to the plaintiff. In the case of Schertz v. Shinseki, veteran Gene R. Schertz (Schertz”) went in for bypass graft surgery. After signing a consent form and being discharged, Schertz could not feel his legs. The Court found that the spinal cord paralysis was reasonably foreseeable complications of his surgery. Dr. DePinto’s statement that paralysis “would not normally be discussed in the preoperative discussion” establishes that a reasonable health care provider would not have disclosed the risk of paralysis as a consequence of Schertz’s surgery. The Court’s decision was set aside and remanded.  Schertz’s disability was not proximately caused by an “event not reasonably foreseeable.” Schertz v. Shinseki, 26 Vet.App. 362 (2013).

The reasoning by the Court of Appeals for Veterans Claims, Kasold, Chief Judge, held that:

1. term “reasonably foreseeable” in statute authorizing award of compensation for service-connected death or disability where proximate cause of disability resulting from surgical treatment was an event not reasonably foreseeable was susceptible to multiple interpretations and Congress had not given Secretary of Veterans Affairs any explicit or implicit guidance to help it sift through competing interpretations;

2. as matter of first impression, Secretary’s regulatory interpretation of phrase “event not reasonably foreseeable” to mean what a reasonable health care provider would have foreseen was well within scope of phrase and thus permissible construction of statute; and

3. Board of Veterans’ Appeals did not properly apply Secretary’s interpretation and failed in its statement of reasons or bases to render determination that a reasonable health care provider seeking to obtain informed consent would have disclosed possibility of spinal cord impairment and paralysis as a reasonably foreseeable risk, and statement was inadequate for judicial review. Id.

The similarities in the  Schertz case to Black’s position, alleges that the U.S. Government health care provider may have failed to timely diagnose the MRSA infection of the right elbow and may have allowed the infection to spread to the spine.  This delay in surgically treating the extensive spinal infection may have been foreseeable. The issue of whether defendant owed Black a duty, and, if so, whether the duty imposed by the risk embraces that conduct which resulted in injury to Black was evident.

Again referencing the Powers v. U.S. case was the interpretation of foreseeability. It was found to be the duty of the United States that excessive angulation of the cervical spine, which had never previously been recognized as a possible cause of paresis in medical literature did not remove it from the realm of reasonably foreseeable harm. For purpose of medical malpractice action based on injury that allegedly resulted in paresis due to impingement of spinal cord, that interruption of blood supply will cause nerve damage, and that failure to act amounts to a foreseeable breach of physician’s duty of care. Powers v. U.S., 589 F.Supp. 1084 (1984).

Black’s claim is similar in the foreseeability aspect in respect to there may have been evidence of cord compression with the spread of the infection from C6-7 into the thoracic spine, leading to the setting of worsening neurological and increasing pain despite pain medication, which may have contributed to the elevated white blood count. Foreseeably could be argued as an element resulting in the failure of the infection to properly respond to the conservative use of antibiotics. This may have led to cervical thoracic spinal abscess extending the entire length of the spine requiring emergency surgery.

In Canion v. U.S., the hospital did not foresee CRPS developing due to the recasting of her finger. The doctor pointed out that the frequent changes of Canion’s cast reflected her continuing pain, and that more than three changes of a cast is a sign that the pain is not being controlled. However, the doctor did not show what the standard of care for a depressed patient should have been, nor did he testify that the failure to treat acute pain early can cause CRPS. The Court found that the evidence at trial indicated that CRPS is not well understood within the medical community, and its causes are numerous and extremely complex. Therefore, the case was dismissed. Canion v. U.S., No. EP-03-CA-0347-FM, 2005 WL 1514045, (W.D. Tex. June 21, 2005), 180 F. App’x 490 (5th Cir. 2006).

In comparing foreseeability in Black’s situation, it must be considered by the treating physician, that MRSA is a gram-positive bacterium that is genetically different from other strains of Staphylococcus aureus, and it is responsible for several difficult-to-treat infections in humans. The MRSA testing typically utilizes a small tissue sample or nasal secretions. If the diagnosis is positive for MRSA, Love would have utilized antibiotics that have been found effective against the disease. Yet, Love sent Black home without ruling out MRSA infection, after being informed of his recent history of MRSA. Additionally, Love stated his decision to discharge Black was due to “absence of inflammatory stigmata.”  However, Black did have signs and symptoms of infection to include painful levels of 7 out of 10 (7/10), red, and swollen right elbow.

In Bond v. U.S., the patient died of an unforeseen arrhythmia from an unknown cause that would not definitively have been prevented by an invasive surgical procedure. The Court found that based on all of the evidence, and particularly on the well-supported testimony of Dr. McAnulty, that even if Bond had undergone an invasive cardiac surgery with four bypasses, as recommended by Dr. Schapira, his life expectancy would not have been extended as compared to treating him medically. Bond v. U.S., No. CIV. 06–1652–JO, 2008 WL 655609 (2008).

The ongoing theme in the Courts appears to be that in filing a suit. Black would need to show sufficient expert testimony and evidence to prove that his life has been drastically and permanently adversely affected due to the apparent failure of the HCS health care providers. To timely surgically treat the MRSA infection of the spine before irreversible nerve damage occurred, including, but not limited to: a) alleged delay in diagnosis of MRSA infection of the right elbow, perhaps leading to the spread of the infection around the spinal cord; and b) alleged delay in surgical treatment of the spinal infection, perhaps resulting in severe spinal cord compression with nerve damage and significant, permanent disability to Black.

  1.  Application of Law to Black’s facts

 

Black’s injuries do warrant: (a) compensation … shall be awarded for a qualifying additional disability … in the same manner as if such additional disability … were service-connected. For purposes of this section, a disability … is a qualifying additional disability … if the disability … was not the result of the veteran’s willful misconduct and… was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility …, and the proximate cause of the disability or death. 38 U.S.C. § 1151.

Black’s injuries establish the two elements of medical negligence;

1. The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider when told of the existing history of MRSA.

2. Such failure was a proximate cause of the injury complained of resulting in infection of the spine and physical impairment.

Under FTCA, the statute of limitations (SOL) is two (2) years from the date of the wrong. Black’s claim is well within the statute of limitations. Black’s case must also demand a certain sum. Probability based on the injuries is high that the Court will find in favor of Black. Each agency has limited settlement authority, after which they must go to the Department of Justice (DOJ) for approval to pay more than the agency authority including the Veterans Administration. The United States has 60 days to file an answer and, after that, Black’s case will proceed just as any other case filed.

  1. CONCLUSION

 

To summarize the main points, although some cases support judgment for defendant, the elements in those cases were not supported by evidence. My general conclusion is that the treatment Black received by Love did not meet the applicable standard of care. As a result of the negligence of United Sates employee health care providers, Black has sustained damages and injuries. It is clear the treatment by Love was the proximate cause of Black’s physical injuries. The United States has been held liable in several cases in which patients at government hospitals suffered injury or death as the result of negligence of medical personnel in connection with surgery or postoperative care.

The implications of MRSA infections are life-threatening and the risk of death in patients has been found to be three times greater than with other infections. MRSA is transmitted via contact transmission and occurs through either direct or indirect contact with infected persons or objects. In researching MRSA, the BioMed Central medical journal was helpful in contributing to the ongoing importance of infection control. Suggestions for more serious infections, including those not responding to oral therapy advised, requiring parenteral treatment. Most cases obviously require hospitalization and consultation with an (ID) Infectious Diseases specialist. Another advisement was the use of decolonization, but it doesn’t always work. Even when it does, recolonization often occurs within months. At times resistance to such agents as in topical antibiotics can no longer be recommended for routine use. Considering decolonization regimens only for an outbreak or recurrent infections in the same individual causes resistance bacteria. The Infectious Diseases Society of America (IDSA) has released evidence-based guidelines on the treatment of MRSA infections. In addition to common clinical syndromes, the guidelines address treatment with vancomycin, limitations of susceptibility testing, and alternative therapies. In applying these guidelines to Black’s situation, if Love had tested Black for the MRSA once he was informed of the history the need for emergency surgery would not have been needed as the infection would not have spread to the spine. Veterans have served this country honorably and one of their benefits is veteran’s medical care. When someone is injured or killed by malpractice at a VA hospital or facility, it doesn’t affect just them. It affects their entire family.

CITED

Statutes

  1. West’s F.S.A. § 766.102
  2. 38 C.F.R. § 14.605
  1. 38 USCA § 1151 (2004).

Case Briefs:

  1. Powers v. U.S., 589 F.Supp. 1084 (1984).
  1. Canion v. U.S., No. EP-03-CA-0347-FM, 2005 WL 1514045, (W.D. Tex. June 21, 2005), 180 F. App’x 490 (5th Cir. 2006).
  2. Hogans v. U.S., No. CIV.A.SA-03-CA-439FB, 2005 WL 3338065, (W.D. Tex. Sept. 30, 2005).
  3. Jackson v. U.S., 469 F.Supp.2d 1068 (2006).
  4. Bond v. U.S., No. CIV. 06–1652–JO, 2008 WL 655609 (2008).
  1. Kennedy v. U.S. Veterans Admin., 526 Fed.Appx. 450 (2013).
  2. Schertz v. Shinseki, 26 Vet.App. 362 (2013).

Website References

Legal Dictionary

https://aricjournal.biomedcentral.com/articles/10.1186/2047-2994-2-17

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