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Dejesus v. USA Liability Opinion 2005

Dejesus v. USA Damages Opinion 2005

Dumble v. USA  Opinion 2005

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

 

MARY THERESE DUMBLE

V.

USA

:

No. 3:04cv1789

This matter having been heard by the court as a non-jury trial on August 24, 2005, we hereby

make the following findings of fact1 and conclusions of law:


 

 

I. Findings of fact

1) Plaintiff’s decedent Arthur E. Dumble (hereinafter “Dumble”) was born on October 15, 1932.

2) Dumble was sixty-eight years of age when he presented himself to Defendant Veterans Affairs Medical Center in Wilkes-Barre, Pennsylvania (“VAMC”) for treatment on February 3, 2001.

3) On February 3, 2001, Dumble presented himself to Defendant VAMC where he conveyed complaints of burning pain in his chest and epigastrum.

4) An EKG performed in the VAMC Emergency Department revealed evidence of an old inferior wall infarct and definite up sloping ST segment depression in leads I, VL, and V2 through V5.

1The findings of fact are derived from undisputed facts found in plaintiff’s pretrial memorandum (Doc. 18). Defendants have agreed to these facts. See (Doc. 21). We have only made slight stylistic changes to the findings of fact. Beginning with finding number 14, we provide citations for the record as these are the matters discussed at the trial.

5) Dumble’s CPK was noted to be elevated to 640 and his troponin I level was noted as being positive by K. Patel, M.D., the Emergency Department physician attending to him.

6) Therapy of sublingual nitroglycerin, subcutaneous Lovenox, aspirin and nitroglycerin ointment was started in the Emergency Department.

7) Medical resident A.K. Azad, M.D., examined Dumble on February 4, 2001. He acknowledged Dumble’s chest pain, abnormal EKG and elevated cardiac enzymes, and he concluded that an acute coronary syndrome had to be ruled out.

8) Azad’s notes indicate that he discussed his findings with Ashok Agarwal, M.D., by telephone and the Agarwal agreed with Azad’s plan of treatment and management.

9) Agarwal ordered repeated troponin levels to be drawn, but the order was subsequently canceled.

10) Dumble was discharged from the VAMC on February 5, 2001 at approximately 5:30 p.m.

11) Dumble went into cardiac arrest while being driven home by his son only minutes after being discharged from the VAMC on February 5, 2001.

12) Dumble was pronounced dead at Mercy Hospital in Wilkes-Barre at 6:16 p.m. on February 5, 2001.

13) Dumble suffered an acute non Q wave myocardial infarction on or about February 3, 2003.

14) Dumble had a life expectancy of 82.6 years (Trial Dep. of Brian P. Sullivan, Ph.D. (“Sullivan Dep.”) at 13).

15) The net retirement income loss resulting from Dumble’s death is $110,595.00. (Def. Ex. 7, Verzilli and Verzilli Report, page 2).

16) Decedent’s funeral related expenses are $8,967.78.(Pl. Ex. 9, p. 6).

17) Estate administration expenses in the instant case are $ 2,285.35 (Pl. Ex. 9, p. 6).


 

 

II. Conclusions of law

1) We have jurisdiction over this matter pursuant to 28 U.S.C. § 1346(b), the Federal Torts Claim Act for medical malpractice committed by the VAMC and its medical personnel and/or employees.

2

 

2) Defendant concedes that it breached the duty of care it owed to Dumble.

3) Under Pennsylvania’s Wrongful Death Statute plaintiff is entitled to recover damages for the death of an individual caused by the wrongful act or neglect of another. 42 PA.C.S.A. § 8301(a).

4) Under the Wrongful Death Statute a plaintiff can recover, “in addition to other damages, damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death.” 42 PA.C.S.A. § 8301(c).

5) The Survival Act allows the plaintiff to recover for decedent’s pain and suffering from the time of the injury to death. Frey v. Pennsylvania Elec. Co., 607 A.2d 796, 798 (Pa. Super. Ct. 1992). 42 PA.C.S.A. § 8302

6) We find that the plaintiff experienced pain and suffering. When his son picked him up at the hospital, Dumble was speaking very little. (N.T. Trial, Aug. 2, 2005 at 21). Evidently, Dumble was uncomfortably hot as the temperature outside was below freezing, and he nevertheless rolled down the window on the car. (Id.). When the car stopped, he started to slide himself out, his eyes rolled up in his head, he gasped twice and his head dropped. (Id.). His son then threw him into a pile of snow and began to perform CPR. (Id.).

Accordingly, we will award the following amounts to the plaintiff: 1) Funeral expenses: $8,967.78; 2) Administrative costs: $2,285.35; 3) Loss of net retirement income: $110,595.00; and 4) Pain and suffering: $80,000.00.

An appropriate verdict follows.

eterans administration medical malpractice new jersey nj lawyer attorney

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
 

 

:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: VERDICT

AND NOW, to wit, this 17th day of October 2005, the court’s verdict is as follows:

Defendant is liable to the plaintiff for the following amounts:

1) Funeral expenses: $8,967.78

2) Administrative costs: $2,285.35

3) Loss of net retirement income: $110,595.00

4) Pain and suffering: $80,000.00

Total amount of damages awarded to the plaintiff and against the defendant: $201,848.13.

BY THE COURT:


 

 

s/ James M. Munley JUDGE JAMES M. MUNLEY United States District Court



 

 

Judge Awards Mothers $7,400,000 in malpractice case against Veterans Administration

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
 

CAMILLE DEJESUS, Individually and as

:

Administratrix of the Estate of Alejandro

:

CIVIL ACTION

DeJesus, Jr., Deceased, and the Estate of

:

 

Felicia Lynne DeJesus, Deceased, et al.

:

 

 

:

 

v.

:

 

 

:

 

UNITED STATES OF AMERICA

:

NO. 02-0253

DEPARTMENT OF VETERANS AFFAIRS

:

 

 

:

 

v.

:

 

 

:

 

THE PHILADELPHIA VETERANS

:

 

MULTI-SERVICE & EDUCATION CENTER,

:

 

 

INC., d/b/a Landing Zone II Transitional Residence : :

v. :

: LANDING ZONE II : TRANSITIONAL RESIDENCE :

Diamond, J. September 6, 2005

In my earlier opinion in this case, I found that the Veterans Administration’s gross negligence had substantially caused the deaths of Felicia DeJesus, Alejandro DeJesus, Jr., Michael Faulk, and Aaron Faulk. I also found the VA liable for the emotional distress suffered by Mrs. DeJesus when she heard her children being murdered.  See DeJesus v. Dep’t of Veteran Affairs, No. 02-0253, 2005 U.S. Dist. LEXIS 15903 (E.D. Pa. July 26, 2005).

I subsequently conducted a four-day bench trial on damages.  Plaintiffs base their damages claim on: (1) the economic losses incurred as a result of their children’s deaths; (2) the children’s pain and suffering; (3) wrongful death damages, such as funeral expenses; and (4) the harm Mrs. DeJesus suffered as she heard her children being murdered.  The parties agreed to reduce their damages calculations to present value. (P-93; G-72; G-73).  Plaintiffs thus contend they are entitled to $11,692,519.43 in damages.  The VA counters that the damages should not exceed $1,752,741.67.

I award damages to Camille DeJesus in the amount of $3,774,429 and Cheryl Faulk in the amount of $3,703,371.67.

FINDINGS OF FACT

Plaintiffs presented compelling, credible evidence of the horrific events of March 23, 1999, when Alejandro DeJesus, Sr. murdered his children and the Faulk children.  My “pain and suffering” determinations reflect both the pain and the dread the children experienced as they were shot, one after another, inside the living room of the small apartment in which the DeJesus family resided.

In determining “economic damages,” I have generally credited the testimony offered by Plaintiffs’ experts, Drs. Herman Axelrod and Michael Wachter. I have generally discredited the testimony offered by the VA’s experts, Drs. Jasen Walker and Brian Sullivan.  For instance, Dr. Walker, a vocational expert, opined that the “law of familial regression” makes it very likely that children will not significantly surpass their parents’ educational and vocational achievements (7.30–7.32, N.T. of July 10, 2005). If the “law” of familial regression were correct — and the trial evidence underscores that this social science theory is by no means established — it is difficult to understand how human progress could ever occur.  The applicability of this “law” is especially dubious here, given the obvious determination of Mrs. DeJesus and Ms. Faulk that their children achieve and excel. (8.35–8.36, N.T. of July 27, 2005; 8.42; 8.89; 8.91).  In any event, I credit Plaintiffs’ vocational expert, Dr. Axelrod, who testified that the DeJesus and Faulk children — all from impoverished backgrounds — would likely have exceeded their parents’ attainments. (9.172, N.T. of July 28, 2005). I also largely credit the testimony of Dr. Wachter, who set out the work life, potential earnings, and non-wage benefit calculations that I find applicable to the DeJesus and Faulk children. (P-93). Further, in determining economic damages, I have examined their “station in life”:  the circumstances in which the decedents lived, and evidence respecting how the decedents likely would have lived had they not been murdered. (9.155–9.156; 9.160–9.164; 9.169–9.170). See McClinton v. White, 444 A.2d 85, 88 e(Pa. 1982). Accordingly, I have increased the maintenance percentages employed by Dr. Wachter respecting all four decedents.

Finally, in determining the harm Mrs. DeJesus suffered, I have fully credited the harrowing version of events offered by her and her neighbor describing how Mrs. DeJesus saw the murder of Michael Faulk and heard the murders of her own children.  I have also credited the evidence showing the resulting harm Mrs. DeJesus continues to suffer.

A. The Events of March 23, 1999

When Mr. DeJesus burst into his wife’s Media apartment, she and the four children were in the living room. (8.92–8.97). Mrs. DeJesus was seated closest to the doorway on a couch, with Felicia sitting next to her and Aaron Faulk sitting at the opposite end. (8.95–8.96). Alejandro, Jr. was sitting on a red futon on the other side of the doorway.  (8.97).  Michael Faulk had been seated at the computer in the corner on a diagonal from the doorway and was starting to move when Mr. DeJesus entered. (8.97). Upon seeing her husband with a gun, Mrs. DeJesus said, “Oh my God.” (8.98).  Mr. DeJesus passed within inches of Mrs. DeJesus; she saw him immediately shoot Michael. (8.98). Mrs. DeJesus then ran to the adjoining apartment of her neighbor, Doris Rovetti, to get help. (9.108).

When she entered Ms. Rovetti’s apartment, Mrs. DeJesus was frantic. (9.108). Both she and Ms. Rovetti heard gunshots in the hallway and through the common wall she shared with Ms. Rovetti. (1.173, N.T. of March 15, 2005; 9.108).  When Ms. Rovetti asked Mrs. DeJesus to take a seat, Mrs. DeJesus sat down directly on the floor, exclaiming, “He shot the children.” (9.109). Ms. Rovetti phoned the police. (1.173).

As Mrs. DeJesus fled for help, Mr. DeJesus continued shooting and killing the other children before shooting himself in the head. (8.132).  The entire incident took between twenty and sixty seconds. (8.135–8.137). The children sustained thirteen gunshot wounds.  The parties agree that Mr. DeJesus shot Michael Faulk first. (8.98).  They do not agree, however, as to the order of death among the other children, and there is insufficient evidence to make findings on this point. The evidence shows quite plainly, however, that after Michael was shot, each of the other children anticipated his or her death and witnessed the murder of the prior victims.  (8.116­8.138; 8.149). Thus, the DeJesus children anticipated their deaths at the hands of their own father.  I also credit the expert testimony of Dr. Dimitri Contostavlos, a forensic psychologist, who testified that the children were aware of their predicament and experienced various levels of consciousness before their deaths. (8.116–8.138).

I make specific findings regarding each decedent below.

B. Felicia DeJesus’s Damages

I award Camille DeJesus $1,984,950 in survival and wrongful death damages for the loss of Felicia DeJesus.


 

 

Felicia’s Background

Felicia was six years old and in the first grade at the time of her death.  On standardized tests taken in kindergarten, she scored at average levels, with above average marks in language skills. (9.156–9.157; G-66). She had close relationships with a variety of accomplished women. Despite the extraordinary burdens imposed on her by raising three children with a drug-addicted, absent father, Mrs. DeJesus obtained a PJA Paralegal School certificate. (8.177).  Felicia’s older sister Candida attends Delaware County Community College. (G-69).  Her aunt, Lynn Viti, is a college graduate and was a certified Federal Agent until she retired. (2.5, N.T. of March 16, 2005; 9.20). Finally, the DeJesus’s neighbor and close friend, Doris Rovetti, received a Bachelor of Arts degree from Mt. Holyoke College. (9.96).  Experts for both sides agreed that these women would have influenced Felicia for the good. (7.75–7.76; 9.231).  Further, Mrs. DeJesus was committed to the education of her children and aspired to have Felicia attend college. (8.91; 8.205). Candida DeJesus and Ms. Viti were similarly committed to Felicia’s education. (2.11; 9.231)


 

 

Felicia’s Economic Damages

Given her background and salutary influences, it is likely that Felicia would have attended and graduated from a four-year college.  Both sides’ experts agreed that Felicia had the potential and ability to succeed at college.  (7.151; 8.160). In opining that Felicia would not have gone beyond an associate’s degree, the VA’s expert employed the “law” of familial regression. (7.31–7.34). Once again, I do not accept this theory’s application here, and I do not credit the expert’s testimony. Rather, Plaintiff’s expert, Dr. Axelrod, credibly testified that the beneficial influences provided by Felicia’s mother, sister, aunt, and neighbor, combined with Felicia’s ability and the general brightening of the DeJesus family’s fortunes once Mr. DeJesus left the household, made it likely that Felicia would have graduated from a four year college.  (9.210).

The parties agreed in their calculations of lost earning power for a high school graduate, college graduate, and holder of an associate’s degree or certificate.  (P-93; G-72; G-73). They disagreed, however, as to whether to include certain fringe benefits, such as health insurance, in the calculations, and how to calculate maintenance. The VA estimated economic damages for Felicia at $361,699 — assuming a high school degree, 74% maintenance expenditures, and nonwage benefits at 3% of salary.  (G-72). Dr. Wachter (Plaintiffs’ expert) estimated the damages at $2,096,886 — assuming a bachelor’s degree, 35% maintenance expenditures, and nonwage benefits at 20% of salary.  (P-93).

I generally credit Dr. Wachter’s testimony, and find that Felicia’s economic damages should be in the higher range indicated by Dr. Wachter.  I employ a maintenance percentage of 45%, however.  I therefore award $1,774,288 to Camille DeJesus for Felicia’s economic damages.


 

 

Felicia’s Pain and Suffering

In making my determinations on the decedents’ pain and suffering, I considered not only Dr. Contostavlos’s testimony, but the uncontradicted physical evidence.  Felicia suffered three close contact wounds to her chest. (8.123–8.124). She was found on the floor a short distance away from her father.  (8.126). Because she suffered no head wound, it is likely that she remained conscious and experienced severe pain for some period after being shot.  (8.124; G-57). She also witnessed her father shooting Michael Faulk and anticipated her own injuries.  I therefore award her estate $150,000 compensation for the pain and suffering associated with her death, and $50,000 for her anticipation of death.


 

 

Felicia’s Wrongful Death Damages

The parties have stipulated to Plaintiffs’ wrongful death damages in the amount of $10,662 for Felicia’s funeral and burial expenses.  I therefore award that amount to Camille DeJesus.

C. Alejandro DeJesus, Jr.’s Damages

I award Camille DeJesus $1,289,479 in survival and wrongful death damages for the loss of Alejandro DeJesus, Jr.


 

 

Alejandro, Jr.’s Background

Alejandro, Jr. was twenty-two years old at the time of his death (not eighteen, as I mistakenly noted in my earlier opinion).  (8.66). He was diagnosed with cerebral palsy when he was one year old, and was limited in his ability to participate in certain activities throughout his childhood. (8.68-8.72). He attended primarily special education classes throughout his school career. (7.51–7.53; 8.188). He also was a Social Security disability recipient for most of his life, and held only part-time and seasonal employment.  (8.199; 8.85–8.86).  Nonetheless, Alejandro was determined to overcome his disability, discarding his leg braces in the ninth grade against the advice of doctors, (8.71), and wrestling on his high school team against disabled and non-disabled individuals, often without accommodation. (9.219–9.221).

Alejandro, Sr. created obstacles and difficulties that in no small measure impaired Alejandro, Jr.’s ability to achieve.  Shortly after his graduation from high school, his parents separated, and Alejandro, Jr. resided with his father for a number of months.  (8.84–8.85). This was certainly a troubled period for him.  He had witnessed his father’s assault of his mother and was himself a victim of his father’s physical and emotional abuse. (1.136–1.137; 8.85).  In the months following his decision to reside with his mother, however, Alejandro, Jr.’s attitude changed. (7.137–7.138; 9.19). Mrs. DeJesus and Alejandro, Jr. had begun to explore the possibility of continuing his education. (8.86).  Shortly before Alejandro, Jr.’s death, Doris Rovetti took him to visit the Delaware County Community College.  (9.106).  He spoke with academic counselors and received an application and financial aid forms.  (9.106–9.107). Alejandro, Jr. told Ms. Rovetti that he would be applying to the College in the Fall.  (9.107). He was excited at the prospect of continuing his education. (9.105). The College had an office specializing in services to disabled individuals, including those with cerebral palsy. (9.150–9.151). I credit the testimony of Dr. Axelrod — whose expertise includes teaching the disabled and handicapped — that the College could have accommodated Alejandro, Jr.’s needs. (9.150–9.152). He was murdered before he could apply for admission to the College.  (8.198).


 

 

Alejandro, Jr.’s Economic Damages

I find it likely that Alejandro, Jr. would have achieved an associate’s degree had he survived.  (9.33).  Alejandro, Jr. had a slight limp, but was physically fit and able to walk quickly. He had obtained employment in the past.  (9.99–9.100). Freed from his father’s influence, Alejandro, Jr. was beginning to accept adult responsibilities and was actively pursuing opportunities for higher education.  Like Felicia, he benefitted from the influences of Mrs. DeJesus, Candida DeJesus, and Ms. Rovetti, all of whom clearly intended to encourage Alejandro, Jr.’s ambitions. (8.89; 9.96–9.97).

The VA estimated Alejandro, Jr.’s economic damages at $0 — assuming he would never be regularly employed or obtain an associate’s degree.  (G-72).  Plaintiffs estimated his economic damages at $1,557,483 — assuming an associate’s degree, 35% maintenance expenditures, and nonwage benefits at 20% of salary.  (P-93). Once again, I look to an award in the higher range, both because of Alejandro’s aspirations and his family influences.  Because of Alejandro, Jr.’s disability, however, I believe his maintenance expenditures would have been somewhat higher than those of the other decedents. Accordingly, I employ a maintenance percentage of 55%.  I thus award $1,078,257 to plaintiff Camille DeJesus for Alejandro, Jr.’s economic damages.


 

 

Alejandro, Jr.’s Pain and Suffering

Alejandro, Jr. suffered seven gunshot wounds: one to the head, five to the back at close range, and one to the right thigh.  (8.117). He was found between the living room and the entry to the kitchen, likely attempting to flee.  (8.118–8.120). The way the wounds were inflicted indicates that he experienced some period of physical pain before death.  (8.117–8.120).  He also witnessed his father shooting Michael Faulk and anticipated his own injuries. (8.98).  I therefore award his estate $150,000 for pain and suffering associated with his death, and $50,000 for his anticipation of death.


 

 

Wrongful Death Damages

The parties have stipulated to wrongful death damages in the amount of $11,222 for Alejandro, Jr.’s funeral and burial expenses.  I therefore award that amount to Camille DeJesus.

D. Michael Faulk’s Damages

I award Cheryl Faulk $2,260,124.67 in survival and wrongful death damages for the loss of Michael Faulk.


 

 

Michael’s Background

Michael Faulk was sixteen years old and in the tenth grade at the time of his death.  A gifted student who scored high on standardized tests, Michael was extremely well-rounded — as comfortable on the chess team or doing sketches as he was playing junior varsity football. (8.30–8.33).  He attended a magnet school for gifted children during most of his life, and aspired to attend college and become a professional.  (8.35; 9.164–9.165). Shortly before his death, he obtained a part time job at a local pizza parlor, but was murdered before he was able to begin work.  (8.35).  Although Michael’s grades had declined in high school, his tenth grade college aptitude test confirmed that he was a strong candidate for college admission.  (8.163; P-75).

The Faulks were a close-knit family.  Like Mrs. DeJesus, Ms. Faulk was a devoted mother, enormously invested in her children’s well-being.  Concerned about their Manhattan neighborhood, Ms. Faulk moved the family to Media, Pennsylvania.  (8.12–8.15).  A single mother with three sons, she eventually earned a diploma from a technical school and found a higher paying job at a cancer treatment center.  (8.12–8.15; 8.20–8.22). I credit the testimony of Dr. Axelrod that Ms. Faulk strongly influenced her children for the good.  (8.166).


 

 

Michael’s Economic Damages

I find it likely that Michael would have achieved a bachelor’s degree had he lived. Michael was a highly motivated, gifted child.  His brother, Mark, was admitted to a four-year college.  (7.159; 8.25–8.26; 9.165–9.166).  Unfortunately, emotional problems brought on by his brothers’ murders caused Mark to drop out of college.  (7.159). Nonetheless, had Michael survived, it is likely that Mark would have encouraged Michael to attend college.

The VA estimated Michael’s economic damages at $1,030,514 — assuming an associate’s degree, 57% maintenance expenditures, and nonwage benefits at 3% of salary. (G­72). Plaintiffs’ estimate was $2,478,937 — assuming a bachelor’s degree, 35% maintenance expenditures, and nonwage benefits at 20% of salary.  (P-93).  Because I find that Michael would have received at least a bachelor’s degree, I again look to the higher range.  I employ a maintenance percentage of 45%.  I thus award $2,097,563 to plaintiff Cheryl Faulk for Michael’s economic damages.


 

 

Michael’s Pain and Suffering

As soon as Mr. DeJesus entered his wife’s living room, he shot Michael in the head and forearm. (8.13; 8.131–8.132). Police took Michael to the hospital, where he died of his wounds. Unlike the other decedents, it is likely that Michael did not have the opportunity to anticipate his death. (9.12–9.13). Accordingly, I award his estate $150,000 for the pain and suffering associated with his death.


 

 

Wrongful Death Damages

The parties have stipulated to wrongful death damages in the amount of $5335.24 in funeral and burial expenses and $7226.43 in medical expenses for Michael Faulk.  I therefore award $12,561.67 to Cheryl Faulk.

E. Aaron Faulk’s Damages

I award Cheryl Faulk $1,443,247 in survival and wrongful death damages for the loss of Aaron Faulk.


 

 

Aaron’s Background

Aaron Faulk was fourteen years old and in the ninth grade at the time of his death.  Less motivated than either of his brothers, he had difficulties in school and did not test well on standardized reading and math assessments.  (G-56; 9.168).  Ms. Faulk and both sides’ experts agreed that Aaron found it very difficult to adjust from the mostly minority school he had attended in Manhattan to the primarily non-minority school he first attended in Media. (7.162–7.163; 8.38–8.40; 9.167–9.168). These problems diminished, however, with the help of Aaron’s brothers once he started high school. (8.39).


 

 

Aaron’s Economic Damages

I find it likely that Aaron would have achieved an associate’s degree had he survived. Though not as motivated or, perhaps, as talented as either of his brothers, Aaron was beginning to adjust to high school in Media and expressed interest in becoming a chef, thus emulating his great uncle, with whom he was very close.  Had it not been for the VA’s gross negligence, both of Aaron’s brothers would have attended college and, along with his mother, would have encouraged him to pursue a degree beyond his high school diploma.  (8.42).  With these beneficial influences, I find it likely that Aaron would have obtained an associate’s degree.

The VA estimated Aaron’s economic damages at $310,654 — assuming one to three years of high school, 75% maintenance expenditures, and nonwage benefits at 3% of salary. Plaintiffs’ estimate was $2,520,904 — assuming a bachelor’s degree, 35% maintenance expenditures, and nonwage benefits at 20% of salary.  Because I find that Aaron would have received at least an associate’s degree, I look to the middle of this range.  I employ a maintenance percentage of 45%. In addition, I note that because Aaron was eight years younger than Alejandro, Jr., his working life would have been longer than Alejandro, Jr.’s.  I therefore award $1,259,895 to plaintiff Cheryl Faulk for Aaron’s economic damages.


 

 

Aaron’s Pain and Suffering

Aaron suffered two wounds, one to the right abdomen and the other to his head — entering his right cheek and exiting behind his left ear. (8.127–8.129).  He was found in the same spot he had been in before the shooting began.  (8.130). Accordingly, I find that he was shot quickly after Mr. DeJesus entered the room.

Aaron witnessed his brother’s death, and briefly anticipated his own injuries. He also experienced the physical pain of being shot.  I therefore award his estate $150,000 compensation for the physical pain and suffering associated with his death and $25,000 for his anticipation of death.


 

 

Wrongful Death Damages

The parties have stipulated to wrongful death damages in the amount of $8352 for Aaron’s funeral and burial expenses.  I therefore award that amount to Cheryl Faulk.

F. Damages for Camille DeJesus’s Emotional Distress

I have found that Camille DeJesus heard her husband shoot and kill her children. DeJesus, 2005 U.S. Dist. LEXIS 15903, at *60.  As I noted, “[t]he grief and horror she has suffered were painfully obvious.  Hearing the murder of her children has caused Mrs. DeJesus to suffer stress, anxiety, depression, and post-traumatic stress disorder.”  See id.  In making my determination respecting the harm she suffered, I have credited her testimony, that of Candida DeJesus, and that of Ms. Rovetti, as well as the records of her therapist, John Kessler. I award Mrs. DeJesus $500,000 on this claim.

Mrs. DeJesus was medicated at the emergency room on the night of the murders, and saw a therapist, Mr. Kessler, for approximately one year after the killings.  (8.99). Mr. Kessler diagnosed Mrs. DeJesus with depression, “adjustment disorder,” and post-traumatic stress disorder, and noted that she had trouble concentrating, eating, and sleeping for a period after the murder of her children.  (G-68; P-88; P-89).  The trauma she experienced has also caused Mrs. DeJesus to have memory problems. (G-68).  She continues to relive the events of March 23rd, particularly in her sleep.  (8.100; 9.110).  Mrs. DeJesus cannot sleep without a light on; in public places she will sit near walls because she is afraid to have an open door at her back. (8.100–8.102).

In sum, hearing the murders of her children has caused Mrs. DeJesus to suffer severe emotional distress.  I award her $500,000 for this distress.

CONCLUSIONS OF LAW

A. Economic and Wrongful Death Damages Generally

Under Pennsylvania’s Survival Act, economic damages are properly measured by the loss of earning power less personal maintenance expenses from the time of death through a decedent’s estimated working life span. Incollingo v. Ewing, 282 A.2d 206, 229 (1971). The law does not require mathematical exactness; a plaintiff need only provide evidence of a reasonably fair basis for calculating losses.  Smail v. Flock, 180 A.2d 59, 61 (Pa. 1962).  In calculating the loss of earning power, it is proper for a fact finder to make use of average earnings based upon government statistics.  Weaver v. Ford Motor Co., 382 F. Supp. 1068, 1074–75 (E.D.Pa. 1974), aff’d 515 F.2d 506 (3d Cir. 1975). Personal maintenance is defined as the “necessary and economical sum which a decedent would be expected to spend, based upon his station in life, for food, clothing, shelter, medical attention, and some recreation.” McClinton, 444 A.2d at 88. Maintenance is an amount smaller than the total personal expenditures of a given individual but larger than that necessary for basic subsistence.  Id. at 87,

88.

Under Pennsylvania’s Wrongful Death Act, survivor beneficiaries are entitled to funeral and medical expenses plus any pecuniary loss suffered by reason of a decedent’s death.  42 Pa. Const. Stat. § 830; Kiser v. Schulte, 648 A.2d 1, 4 (Pa. 1994).

B. Judicial Estoppel as to Alejandro, Jr.’s Economic Damages

Alejandro, Jr. was receiving Social Security disability benefits at the time of his death, as he had been for much of his life. (8.199, N.T. of July 27, 2005).  The VA argues that because he qualified for these benefits – that his disability made him “unable to engage in any substantial gainful activity”– his estate is estopped from now claiming that he would have become gainfully employed had he survived.  See 42 U.S.C. § 1382c(a)(3)(A) (2004).  I disagree.

The Supreme Court has held that receiving social security disability payments does not automatically bar the recipient from later claiming ability to work.  See Cleveland v. Pol’y Mgmt. Sys. Corp., 526 U.S. 795, 798 (1999). A contention made by someone seeking Social Security Disability Insurance that he is disabled is not a “purely factual statement,” but is instead a “context-related legal conclusion,” to which the usual judicial estoppel analysis does not apply. Id. at 802; see also Detz v. Greiner Indus., 346 F.3d 109, 116 (3d Cir. 2003) (explaining that the Cleveland Court distinguished “conflicting legal positions” from “contradictory factual assertions” for estoppel purposes).  Instead, when a defendant claims judicial estoppel in this context, a plaintiff “cannot simply ignore” previous statements made to the Social Security Administration, but must explain why that SSDI contention is consistent with any subsequent assertion made for other purposes. Cleveland, 526 U.S. at 798.

Mrs. DeJesus does not contend that Alejandro, Jr. was able to work during the time he was receiving Social Security benefits.  Instead, she submits, and I have found, that he would have become able to work in the future.  This is consistent with the Social Security Administration’s program that encourages claimants to develop a vocational plan and to obtain work and so reduce their reliance on disability benefits.  See 42 U.S.C. § 1382b(a)(4) (2004) (excluding from the SSDI determination “such resources [necessary for the fulfillment of] a plan for achieving self-support approved by the Commissioner of Social Security”); 20 C.F.R. § 416.1181 (2001) (defining “plan to achieve self-support”).  I have also credited the testimony of Dr. Axelrod, an expert in the education of children with disabilities, that Alejandro, Jr. could have been trained to perform a variety of jobs in the workplace, especially if his potential employers made “reasonable accommodations” for him, as required by the Americans with Disabilities Act. (8.136; 8.153–154). See 42 U.S.C. § 12111(8).

Thus, Alejandro, Jr.’s estate has not taken a position before me that is inconsistent with that which Alejandro, Jr. took before the Social Security Administration.  On the contrary, the facts as I have found them underscore that the positions are reconcilable.  Accordingly, I reject the VA’s estoppel argument. Cleveland, 526 U.S. at 798.

C. Recovery for Decedents’ Pain and Suffering

Under Pennsylvania’s Survival Act, all causes of action survive the death of the plaintiff. See 42 Pa. Cons. Stat. § 8302.  The estate of each decedent is entitled to compensation for their physical pain and suffering before death.  Mecca v. Lukasik, 530 A.2d 1334, 1345 (Pa. 1987). The VA acknowledges that the law allows recovery for the pain and suffering associated with the decedents’ deaths. See Def. United States’ Proposed Findings of Fact and Conclusions of Law Concerning Damages at 34–37 (Aug. 8, 2005).  The VA contends, however, that the mental anguish the decedents suffered immediately before their deaths is not compensable.  I disagree.

Under the Survival Act, a plaintiff representative is entitled to all damages to which a decedent would have been entitled under Pennsylvania law had he or she lived.  Harsh v. Petroll, 840 A.2d 404, 437 (Pa. Commw. Ct. 2003). I am obligated to apply Pennsylvania law as announced by that state’s Supreme Court, and to anticipate how that Court would decide an open legal question. See Packard v. Provident Nat’l Bank , 994 F.2d 1039, 1046 (3d Cir. 1993).  Pennsylvania Commonwealth and Superior Court decisions, although not dispositive, are persuasive authority in this regard.  Id. at 1047.

Pennsylvania law is unsettled as to whether damages for pre-impact fright are recoverable. See Nye v. Commonwealth, Dep’t of Transp., 480 A.2d 318, 322 (Pa. Super. 1984) (“[W]e need not decide whether such a recovery [for pre-impact fright] is permitted in Pennsylvania”). The weight of authority is in favor of allowing such a recovery, however.  See Potere v. City of Philadelphia, 112 A.2d 100, 104 (Pa. 1955) (where physical injury is “accompanied by fright or mental suffering directly traceable to the peril in which the defendant’s negligence placed the plaintiff, then mental suffering is a legitimate element of damages”); cf. Niederman v. Brodsky, 261 A.2d 84, 85 (Pa. 1970) (extending Potere to cases where there is no physical impact).  Other states with statutes similar to Pennsylvania’s Survival Act allow recovery for pre-impact fright.  See, e.g., Platt v. McDonnell Douglass Corp., 554 F. Supp. 360, 363 (D. Mich. 1983) (interpreting the Michigan Wrongful Death Act); D’Angelo v. United States, 456 F. Supp. 127, 142 (D. Del. 1978) (interpreting Maryland law).

The VA offers authority addressing the requirement under Pennsylvania law that a living plaintiff claiming infliction of emotional distress demonstrate a physical manifestation of that distress. See, e.g., Sinn v. Burd, 404 A.2d 672, 686 (Pa. 1979); Robinson v. May Dep’t Stores Co., 246 F. Supp. 2d 440, 445 (E.D. Pa. 2003) (“Manifestation of physical injury is necessary to sustain a claim for negligent infliction of emotional distress.”).  Indeed, Pennsylvania courts require proof of physical manifestation in emotional distress cases as a substitute for proof of injury caused by a physical impact.  See Neiderman, 261 A.2d at 85 (rejecting the “impact rule,” which had required proof of “contemporaneous impact,” because the plaintiff could show physical manifestations of his emotional distress); Nelson v. Monroe Regional Medical Center, 925 F.2d 1555, 1561 (7th Cir. 1991).  The law thus draws a clear distinction between the anguish the decedents experienced immediately before their murders, and the emotional distress suffered by someone who experiences no physical impact.

In these circumstances, I anticipate that the Pennsylvania Supreme Court would allow recovery for the dread and fright the decedents experienced immediately before they were murdered.

BY THE COURT:

Paul S. Diamond, J.

 

 

7 F.Supp.2d 709
 

United States District Court,

D. South Carolina,

Columbia Division.

 

 

Vera C. GADDIS, individually and as Personal Representative of the Estate of

Charles E. Cauthen, Deceased, Plaintiff,

v.

UNITED STATES of America, Defendant.

Dec. 3, 1997.


Daughter of patient who died from laryngeal cancer in Veterans Administration (VA) hospital brought medical malpractice action against United States. The District Court, Shedd, J., held that: (1) contract physician at VA breached standard of care by failing to refer patient back to treating radiologist for follow-up examination after radiation therapy, and by failing to diagnose and treat cancer when patient experienced pain, hoarseness, and swelling in throat; (2) VA hospital breached standard of care by allowing condition to deteriorate to a point at which removal surgery was inadvisable or impossible, by failing to discuss with patient and daughter the options available to them, and by failing to properly monitor, treat, and care for patient following his admission to hospital; (3) negligence of hospital in failing to provide proper diagnosis of treatment for patient's cancer caused his death; (4) daughter was entitled to $800,000 in damages for loss of society and companionship, $75,000 for mental shock and suffering, and $75,000 for grief, sorrow, and wounded feelings; and (5) $125,000 would be awarded for the pain and suffering of patient.
Judgment accordingly.

 

 

ORDER


SHEDD, District Judge.
This medical malpractice case involves the 1991 death of Charles E. Cauthen at the Dorn Veterans Administration Hospital in Columbia, South Carolina. Jurisdiction in this Court is proper pursuant to , and the Federal Torts Claims Act, . Plaintiff in this case, Vera Gaddis (hereinafter "Gaddis"), filed a claim with the Veterans Administration alleging that the Veterans Administration's negligent care for her father, Charles E. Cauthen (hereinafter "Cauthen"), resulted in his death. This claim was denied by the Veterans Administration. [FN1] Subsequently, this case came before this Court for a bench trial beginning on September 22, 1997. Based upon the testimony and evidence presented over eight days of trial, the Court hereby makes the following findings of fact and conclusions of law:

 

FN1. In light of the facts presented at this trial, the Court has serious reservations about the credibility of the administrative process which rejected this claim.



 

FINDINGS OF FACT

Background:
Cauthen was a World War II veteran, having served in the Pacific Theater. He was proud of his service to his country, and spoke proudly of his military service. Born in June, 1922, Cauthen lived most of his life in rural Lancaster County, South Carolina. Cauthen lived a simple life, by choice, and was well-known, and respected in his community. An independent man, Cauthen was happy and satisfied with his lifestyle. He was one of seven children, and all others survive him.
He married Ogla Vian Cauthen, and one child, Gaddis, was born of this marriage. During Gaddis' childhood, her mother became ill. Because of Mrs. Cauthen's illness, Cauthen served the role of both mother and father. Although Gaddis moved in with her maternal grandmother because of her mother's illness, Cauthen and Gaddis remained extremely close throughout her life, visiting several times a month and maintaining regular telephone contact.
Through the years, Gaddis remained the most important person in Cauthen's life. This special closeness between father and daughter was due, at least in part, to Gaddis' mother's periods of absence and her mother's ongoing medical problems. This special  closeness between Cauthen and Gaddis continued throughout his entire life.
Gaddis and her family have lived in the Charlotte, North Carolina area for many years. Gaddis lives approximately one hour's travel time from Cauthen's home in Lancaster County, South Carolina. Over the years, Cauthen would visit Gaddis and her family on a frequent and regular basis, often at least two times per month. In addition, Gaddis and her family would often visit Cauthen at his home in South Carolina. In addition to these frequent visits, they continued to maintain frequent and regular telephone contact. Cauthen was always present with Gaddis and her family for holidays and special occasions.
 Diagnosis and Treatment:
In late February, or early March of 1991, Cauthen developed hoarseness in his voice. At that time, Cauthen was a regular smoker, having smoked for many years. Cauthen's sister and Gaddis convinced Cauthen to see a doctor. Cauthen called the Lancaster County Veterans Affairs Office and obtained an appointment at the Dorn Veterans Administration Hospital (hereinafter "VA") in Columbia, South Carolina, for March 14, 1991. Cauthen had great faith in the VA Hospital and felt that, as a veteran, he was privileged to be able to go there. He relied upon their evaluation and judgment, and believed he would be taken care of at the VA.
On March 14th, Cauthen visited the VA Hospital, but received no evaluation of his throat. Although, in addition to his hoarseness, he related to them a history of smoking, there was no examination or evaluation at that time of Cauthen's throat. Only a chest X-ray was done. Cauthen was sent home without any evaluation of the cause of his hoarseness.
Cauthen's hoarseness continued. Although his family continued to be concerned about his hoarseness, Cauthen was hesitant to see another doctor. When Cauthen's hoarseness continued to worsen, Gaddis finally convinced him to have it checked by a private physician.
On May 3, 1991, Gaddis and Cauthen's sister took Cauthen to see his family physician, Dr. Furse. Upon learning of Cauthen's hoarseness, Dr. Furse immediately referred him to Dr. Brian Wilson, an ear, nose and throat specialist in Rock Hill, South Carolina.
Also on May 3, 1991, Dr. Wilson performed an indirect laryngoscopy with a flexible laryngoscope on Cauthen's throat. At that time, Dr. Wilson found a lesion on Cauthen's left vocal cord. Dr. Wilson then ordered that further tests be done, including a direct laryngoscopy and a CT scan, to determine the "stage" of the tumor in Cauthen's throat. Dr. Wilson's orders were to "rule out" a "T2N0M0" carcinoma in his throat. [FN2]

 

FN2. With regard to throat cancer, the following classifications, or

"stages," are used: A T1 tumor is confined to the vocal cord with no extension off the vocal cord, and no impairment of motion of the cord. A T2 tumor extends off the visible vocal cord into other areas and may produce some impairment of motion. T3 and T4 tumors extend even further into the tissue surrounding the visible vocal cord. The difference between a T1, T2, T3, and a T4 tumor is of critical importance when choosing the method and extent of treatment. If the tumor is still confined to the vocal cords, then very localized radiation treatment or surgical removal will usually cure the cancer completely. If the cancer has spread off of the vocal cords, then localized radiation will not properly attack all of the cancer, leaving it free to continue spreading.


 

For example, the N0M0 classification of a tumor represents that the cancer has not metastasized and that there is no involvement of the nodes.



Dr. Wilson's diagnosis and instructions to rule out a T2 tumor were given because a physical examination of the throat may not be enough to determine the true extent of the tumor. An indirect laryngoscopy limits what can actually be seen of the vocal cords and larynx. A direct laryngoscopy gives a more complete view of the vocal cords and larynx. Moreover, even with a direct laryngoscopy, possible sub-mucosal (under the surface) tumor invasion into the surrounding tissue cannot be seen. Dr. Wilson's orders were to perform a CT scan of the area to properly stage the tumor. With a CT scan, or an MRI, any spread into the surrounding tissue might be seen. A physical exam, employing a direct or indirect laryngoscopy cannot fully show extensions beneath the surface of the vocal cords and into surrounding areas. *712 The misdiagnosis, mis-staging, and under-treatment of a tumor can allow the cancer to spread, while appropriate treatment after a proper diagnosis almost always cures the cancer completely. [FN3]

 

FN3. All of the medical witnesses agreed that laryngeal cancer is one of the most curable of all cancers.



On May 6, 1991, Cauthen went to Columbia in an attempt to be seen at the VA Hospital. After a great deal of difficulty, [FN4] Cauthen was admitted to the VA Hospital on May 8, by Dr. David McKee (hereinafter "Dr. McKee"), a contract physician at VA.

 

FN4. The VA's action toward Gaddis and Cauthen on this occasion were indifferent at best, and callous at worst.



On May 9, a direct laryngoscopy and biopsy of Cauthen's left vocal cord was performed. [FN5] The results of the direct laryngoscopy and biopsy showed a cancerous tumor along the entire length of Cauthen's left vocal cord. Cauthen's tumor was staged as a T1 lesion.

 

FN5. A resident doctor ordered a CT scan of Cauthen's throat, but, in another example of what seems to be the level of medical care provided at the VA, this order resulted in a CT scan of Cauthen's head instead.



Based upon the VA's diagnosis and staging of Cauthen's tumor, the VA's Tumor Board recommended a course of radiation therapy for Cauthen. [FN6] The course of radiation was performed for the VA at Richland Memorial Hospital, while Cauthen was still admitted at the VA. A small and localized radiation field was used. Cauthen's radiation treatment was completed on July 16, 1991. Cauthen was released from the VA on July 17, 1991.

 

FN6. Dr. McKee did not attend the meeting of the Tumor Board.



Dr. McKee did not see Cauthen again during his entire course of radiation treatment, and did not once consult with the physicians at Richland Memorial Hospital who were performing the radiation treatment and monitoring.
On July 30, 1991, Cauthen returned to the VA Hospital with Gaddis for his first follow-up visit with Dr. McKee. At that visit, Cauthen's voice was hoarse. Dr. McKee simply looked down Cauthen's throat with a mirror and told Cauthen and Gaddis that there was no sign of cancer. Dr. McKee's medical notes indicate that the vocal cord looked clear. Cauthen and Gaddis left this visit with high spirits, believing the cancer was cured.
Cauthen's hoarseness worsened. He returned to the VA Hospital on September 3, 1991, for his second follow-up visit with Dr. McKee. Again, Dr. McKee simply looked down Cauthen's throat with a mirror and told him that there was no sign of cancer. Dr. McKee's medical notes for this visit again indicate that the vocal cord looked clear.
After this, Cauthen's hoarseness continued to worsen. In addition, he began having soreness in his throat and pain in his ear. However, he was still eating and drinking well. On October 15, 1991, Cauthen returned to the VA Hospital for his third follow-up visit with Dr. McKee. Once again, Dr. McKee simply looked down Cauthen's throat with a mirror and told him that there was no sign of cancer. Dr. McKee's medical notes again indicate at this visit that the vocal cord looked clear, but noted for the first time since radiation therapy that there was some swelling, or edema, in the area. At no time during any of these follow-up visits did Dr. McKee perform a direct laryngoscopy, order further diagnostic tests, or examine Cauthen's outer neck for lumps or other signs of tumors. The Court finds incredible Dr. McKee's testimony that the now-noted edema was always present, but was noted by him here to change his notes, thereby avoiding the appearance of "rubber-stamping" his notes. This explanation is particularly unbelievable because edema noted for the first time here almost certainly indicated a recurrence, or persistence of cancer. At this stage in Cauthen's treatment, a doctor's failure to respond accordingly in light of a "new" edema would be, in essence, an admission of malpractice. The Court believes that faced with this alternative, Dr. McKee gave this story about not wanting to "rubber stamp" his notes. The Court finds Dr. McKee's testimony on this point wholly without merit. *713 Dr. McKee told Cauthen that there was no cancer and scheduled the next follow-up visit for January of 1992. Dr. McKee prescribed Tylenol for Cauthen's pain.
Shortly thereafter, Cauthen's condition grew considerably worse. His hoarseness worsened, his throat was very sore, he had a severe earache, he was coughing up phlegm, and could not eat or drink well. In addition, he developed dysphasia (difficulty in swallowing) and a large lump appeared on the side of his neck.
On November 5, 1991, Gaddis took Cauthen back to the VA Hospital to see Dr. McKee. Dr. McKee simply looked once again down Cauthen's throat and said that there was no sign of the cancer. Once again, Dr. McKee did not perform a direct laryngoscopy, did not order or perform a CT scan, and did not discuss with Cauthen the possibility that the hoarseness, pain, swelling, dysphasia, and lump could be a sign of the persistence of the tumor. Once again, Dr. McKee did not even examine the outside of Cauthen's throat for lumps or other signs of a tumor.
Gaddis then expressed concern about Cauthen's condition, the fact that he could not eat or drink, and about the large lump on the side of his throat. Dr. McKee explained it as simply a swollen lymph gland. At Gaddis's insistence, Dr. McKee finally agreed to admit Cauthen to the VA Hospital on that day, November 5th.
Dr. McKee's admission notes do not reflect any indication that Dr. McKee was concerned that Cauthen's cancer was persisting or recurring. [FN7] No tests or studies to detect the cancer, such as a direct laryngoscopy and biopsy or a CT scan, were ordered or performed. Only marginal steps were taken to rehydrate Cauthen. Even with clear orders for the administration of liquids and nutrition through intravenous lines, nurses failed to carry out the physicians' directives. On at least one occasion, when Cauthen pulled out his IV lines, the nurses simply left them out without taking any steps to keep them in. Cauthen was an adequate candidate for surgery during the period from approximately November 6th through November 8th, as confirmed by the VA's own witness, Dr. Barwick, a surgical resident who attended Cauthen.

 

FN7. While the Government has tried to convince the Court that the doctors knew cancer recurrence was a possible diagnosis, that testimony is

completely unpersuasive.



Incredibly, in light of Cauthen's condition and the clear indications of the persistence of his laryngeal cancer, on November 7, 1991, the VA informed him that they were getting ready to send him home. Cauthen called Gaddis and informed her of this development. Gaddis called Cauthen's attending resident, Dr. Lynn Flowers, and asked him about such an apparent mistake. Dr. Flowers indicated that Cauthen was being sent home with orders to re-hydrate him and to receive guidance from a dietician regarding his eating habits. Dr. McKee had not seen Cauthen since he was first admitted.
On November 9, 1991, Dr. Flowers called Gaddis to ensure that she was coming to the VA to pick up Cauthen on that day, as the VA was preparing to release him. When Gaddis arrived, she found Cauthen curled up, lying in a urine-soaked bed. The urine stain on the bed sheet was brownish and drying around the edges, suggesting that Cauthen had been lying in the urine-soaked bed for some time. He had no IV tubes in his arm and was greatly disoriented. Gaddis' efforts to obtain nurse assistance were futile, and Gaddis had to clean up Cauthen herself. [FN8]

 

FN8. Gaddis, then 37 years old, had never seen her father naked and had never before had to assist her father in such a manner.



Finally, Dr. Flowers arrived and Gaddis explained the situation. The doctor tried to find a lighted instrument to look down Cauthen's throat but could not find one. Dr. Flowers was joined by another doctor, and the doctors finally looked down Cauthen's throat with a mirror. The doctors determined that there was a blockage in the throat. They then put Cauthen in the surgical intensive care unit because of bronchial spasms. Dr. McKee still had not seen Cauthen since he was admitted on November 5. In addition, there had still been no tests or studies done, such as a direct laryngoscopy *714 and biopsy or CT scan, to test for the persistence or recurrence of Cauthen's throat cancer.
In response to Cauthen's breathing difficulties, Dr. Flowers finally placed an endotracheal tube down Cauthen's throat on November 12. Cauthen was admitted by Dr. McKee for dehydration. However, Dr. McKee took no steps to address Cauthen's throat pain, his difficulty in swallowing, and the general critical and serious problems with his throat.
Cauthen remained in the surgical intensive care unit from November 9 until December 2, 1991. It was not until November 14, that Dr. McKee even saw Cauthen. On that day, a direct laryngoscopy was performed and it was determined that Cauthen's cancer had persisted and that he now had a tumor the size of a "golf ball" in his throat. [FN9] Dr. Flowers went with Gaddis to tell Cauthen that his cancer was still there. When told of the cancer, Cauthen cried.

 

FN9. A CT scan was still not performed until the next day, November 15, 1991. Even then it seems that a CT scan of the throat was a mistake. The doctor's orders are for a CT scan of the chest, abdomen, and hips. Ironically in May a neck CT scan had been ordered but one of the head was done. See, note 4.



During the next two weeks, more tests and scans were performed, many in an untimely manner. There was no urgency in the care of Cauthen. On November 29, 1991, a tracheostomy was performed on Cauthen to ensure his ability to breathe. Even though there was a slight rebound after November 29, Cauthen never recovered from the effects of sustained hypoxia. [FN10]

 

FN10. Dr. Spencer, a government pathologist, now disagrees with the VA autopsy and claims that Cauthen's death was caused by an independent and unrelated heart attack. However, all of the Plaintiff's expert physicians concur with the VA's autopsy that Cauthen's untreated cancer led to sepsis, hypoxia, multiple organ failure, and his death. Although unwilling to go so far as to officially change his opinion, Dr. Spencer admitted that the full and complete facts of the case, when finally brought to his attention

during cross examination, were surprising and that he would have liked to have known about them when forming his opinion.



On December 2, 1991, despite Cauthen's obviously critical condition, he was removed from the intensive care unit to a room with no continual monitoring. Despite Cauthen's critical and dangerous condition, the hospital records reflect very long periods of time in which no VA medical personnel, either doctors or nurses, properly checked on Cauthen.
On December 10, 1991, the medical records reflect that the mucous which was coming from Cauthen's trach tube was increasing in flow and changing in color and character. On that morning, Cauthen's brother and sister-in-law came to visit him. The VA had Cauthen sitting up, tied to a chair with wrist straps and posey belts. Cauthen was disoriented, unresponsive, and coughing up large amounts of phlegm.
Between approximately 11:00 a.m. and 4:30 p.m., Cauthen's brother and sister-in-law tried in vain to get the VA nurses to help Cauthen. During that entire time, no one came into Cauthen's room. Hours later, Cauthen was found dead, still tied to the chair. He was sixty-nine years old.
The testimony and evidence in this case, especially the medical records, paint a dismal picture of neglect by the VA Hospital; especially during the last days leading up to Cauthen's death. There are only sparse records about the care, cleaning, and suctioning of Cauthen's trach tube. The sparse medical notes which are present during this time are often illegible. There are several shifts during those days for which no nursing notes are entered. Vital signs were often not checked or charted for long periods of times; often several shifts. There is often a failure to chart a record of Cauthen's breathing as ordered by the physicians. Cauthen's nurse-call button was often not within his reach when he was restrained. Many doctors' orders were never followed and many were followed only after several days had passed.
Dr. Hirst-Allen, a VA physician, performed an autopsy and determined that Cauthen's death was caused by his untreated and spreading laryngeal cancer, which led to infection and multiple organ failure, which led to the stoppage of his heart. The autopsy also revealed that the cancer was found to be *715 large and localized, on both sides of the vocal cords without metastasis.
 

CONCLUSIONS OF LAW

Negligence:
There are literally dozens of breaches of the medical standard of care in this case. Many of these breaches are admitted by the VA's own witnesses. Many others are clearly proven from the evidence and testimony presented. Cauthen's death was directly caused by such neglect and error.
Breach of the Standard of Care:
Cauthen's diagnosis and treatment can be separated into three time periods. First is the period from March, 1991 through his radiation treatment, ending on July 17, 1991. Second is the follow-up period which begins on July 17, 1991, and runs through November 5, 1991. Third is Cauthen's final period of hospitalization beginning on November 5, 1991 and ending with his death on December 10, 1991.
Initial diagnosis and treatment:
Although the Court does not find it necessary to causally connect the treatment received during this period with Cauthen's death, it appears the VA breached the appropriate standard of care in several ways:
Dr. McKee never even saw Cauthen after the direct laryngoscopy on May 9th until the first post-radiation follow up visit on July 30, 1991. This includes the entire six week radiation treatment period. [FN11] Dr. McKee himself admitted that his own record keeping was not very good and that he failed to read all of the orders and progress notes of the residents, interns, medical students, and nurses who were attending Cauthen. Dr. McKee never consulted with the physician administering Cauthen's radiation treatment. Dr. Wells, the VA's own expert witness, testified that this fact was surprising to him.

 

FN11. Although Cauthen was diagnosed with laryngeal cancer on May 9,

1991, the VA delayed his treatment until May 30, 1991, twenty-one days later.



The follow-up period:
 The second period of Cauthen's care, the follow up period from July 17 until November 5, 1991, is when the most crucial breaches of the standard of care occurred. It is during this period that the signs of persistence of Cauthen's cancer were surfacing more and more clearly with each follow-up visit. Dr. McKee ignored these obvious signs, and missed several opportunities to diagnose and treat Cauthen's tumor with salvage surgery (surgical resection of the tumor); a step which, by everyone's account, would have saved Cauthen's life.
Initially, Dr. McKee erred during the follow-up period by failing to refer Cauthen back to the treating radiologist for a follow-up examination during the first six weeks following radiation therapy. The VA's own witness, Dr. Wells, testified that the standard of care required such a referral.
As discussed above in the findings of fact, Cauthen's symptoms worsened from one follow-up visit to the next. If the radiation therapy was successful, and reduced or eliminated the tumor located on the cord, then the hoarseness, pain, and swelling were indications that there was another reason for the symptoms, likely a recurrence or persistence of the tumor in the surrounding tissue. This was made clear by the testimony of the Plaintiff's physician witnesses as well as the VA's expert, Dr. Wells. This should have been a red flag to Dr. McKee.
It was a breach of the standard of care for Dr. McKee to have failed to at least inform Cauthen that there was a possibility that the tumor was persisting or recurring, and to have failed to give him further diagnostic and treatment options. There is absolutely no question that on October 15, 1991, when Cauthen's hoarseness continued to worsen, when Cauthen experienced pain, and when swelling was noted for the first time, Dr. McKee breached the medical standard of care when he failed to take further steps to properly evaluate and treat Cauthen. The testimony was uncontroverted that, had Dr. McKee discovered the persistence of the tumor at that time, Cauthen would have been able to undergo removal surgery and that it almost certainly would have been curative and saved his life.
*716Dr. McKee testified that his notes on October 15, indicating the appearance of swelling for the first time, may not really have meant that. He testified that there may have been swelling during the past visits but that he did not like to "just rubber-stamp" his progress notes. He indicated that he might have added the note about swelling so that there was some variety in his notes. First, if Dr. McKee's practice really was as he stated, this was a breach of the standard of care according to VA witness Wells. In medical treatment, trends are of critical importance. As in Cauthen's case, if swelling appeared for the first time in October, this was a critical factor for monitoring Cauthen's condition.
Cauthen's November 5 visit to Dr. McKee almost had the same result as his previous follow-up visits. If Gaddis had not insisted, it is doubtful that McKee would have admitted Cauthen to the hospital. Once again, Dr. McKee did not even order or perform further diagnostic tests to investigate the cause of his problems (i.e., recurrence or persistence of the tumor), such as a direct laryngoscopy and biopsy or a CT scan. He simply stated that there was no sign of cancer and that the lump on Cauthen's neck was only a swollen lymph gland.


The final hospitalization:
 

 Cauthen's final hospitalization was one of continuing neglect and error containing many individual breaches of the standard of care. Among these areas were: The VA's failure to quickly diagnose, treat, and remove the growing tumor in Cauthen's throat; VA's failure to address Cauthen's immediate medical needs which caused his condition to deteriorate to a state in which removal surgery was inadvisable or impossible; VA's failure to discuss with Cauthen or Gaddis the options available to them, including the weighing of risks for waiting or performing the removal surgery in light of Cauthen's condition; and VA's failure to properly monitor, treat and care for Cauthen caused continued decline, distress, pain, suffering, and eventually death.
The many breaches of the standard of medical care during this final hospitalization, as listed in detail in the findings of fact, fall under one of the four general areas of breach listed above. It is noteworthy that many of the breaches were freely admitted by VA personnel or other VA witnesses.
VA nurse Ellastine Horne, herself, admitted at least fourteen breaches involved in Cauthen's care. In addition, many of the VA's physician witnesses, whether fact witnesses or expert witnesses, admitted several breaches and further admitted "surprise" when specifically questioned about details in the medical records which were evidence of negligent care. [FN12]

 

FN12. On several occasions, the VA's expert witnesses began by giving opinions which defended Dr. McKee and the VA's actions, or in some other way defended the VA's case. However, upon cross examination, when all of the details of Cauthen's care were made clear to them, they expressed some surprise. Dr. Wells, the VA's ENT expert, even admitted that if some of the facts in the record were true, then that might affect his opinions; in his words: "all bets are off." Dr. Spencer, the VA's pathologist, who first testified that Cauthen's death was not the result of cancer but was the result of an independent heart attack, clearly indicated that he would have liked to have had more of the facts of the case in the formation of his opinions. These assertions by the VA's own witnesses lead this Court

to seriously question some of the VA's expert's opinions based upon the strong suspicion that they had not been fully and fairly informed of all of the facts of the case before they were asked to give their opinions.



Dr. Flowers, the VA resident attending to the care of Cauthen, was, in many ways, typical of the VA's witnesses in this case. He attempted to respond with an unseemly willingness to defend the VA in this case. In so doing, he was often caught in an inconsistency. For instance, Dr. Flowers attempted to defend the VA's delay in action by testifying that it would have been nearly impossible for Cauthen to have been moved from surgical intensive care to have the CT scan of the neck performed. Yet, when confronted with the clear records in this case, he had to admit that he himself ordered several CT scans for other areas on several days while Cauthen was actually in surgical intensive care.
It is further evident from the testimony and evidence, that Cauthen's final weeks in the VA Hospital were filled with pain and suffering, both physical and emotional. He was, for the most part, placed and kept in a helpless state, tied to a chair, often without *717 the ability to eat, drink, breathe properly, or use the bathroom. In addition, he suffered with the knowledge that his cancer was not cured as he had been earlier assured by Dr. McKee, and that he was probably going to die under the most painful and helpless conditions. [FN13] While his pain and suffering really began during the period from July through November, his physical and emotional pain and suffering was many times worse during his final hospitalization. During this final period, for example, pain medicine was ordered for him but never given.

 

FN13. The Court notes that Cauthen's desire, as recounted through testimony, to defeat his cancer, and the happiness expressed by him when he was told the cancer was defeated, were rivaled in intensity only by the dread which he was forced to endure due to the VA's negligence over the course of his illness.



Causation:
  The VA's own autopsy concluded that Cauthen's death was caused by his untreated and spreading laryngeal cancer, which led to infection and multiple organ failure, which led to the stoppage of his heart. [FN14]

 

FN14. It is interesting to note that the VA defends everything it did except the autopsy.



It is clear that Cauthen died as a result of his untreated cancer and the negligence of the VA Hospital. [FN15]

 

FN15. On the day of Cauthen's funeral, an individual from the VA called Gaddis's office to tell her that everything was all right with her father. The caller did not even know that Cauthen was dead.



There is no question that, at the very latest, on October 15, 1991, Dr. McKee missed an opportunity to save Cauthen's life. [FN16] On November 5, 1991, Dr. McKee also missed an opportunity to save Cauthen's life. Dr. McKee's failures on these two dates, as well as later failures, directly caused a death which would not have occurred otherwise. Testimony in this case put Cauthen's survival percentage at over 90% had salvage surgery been performed, as it should have, on or about October 15, 1991.

 

FN16. It is probable that even as early as July 30, 1991, or September 3, 1991, Dr. McKee could and should have taken another course of action which would have saved Cauthen's life.



Damages:
Wrongful Death:
 [4]  According to the statutory life expectancy tables, Cauthen would have had a life expectancy of 11.54 years. In addition is the fact that all of Cauthen's brothers and sisters are still alive, indicating a familial propensity towards longevity. Further, it is clear from the testimony and evidence in this trial that Cauthen could have expected love, care, and support from his family. Accordingly, this Court finds that Cauthen would have had a life expectancy of ten (10) years.
As discussed above, this Court is convinced that Gaddis and Cauthen enjoyed a close, loving relationship. Accordingly, this Court values the loss of society and companionship at $80,000.00 per year, for a total of $800,000.00. For mental shock and suffering, this Court awards $75,000.00. For grief, sorrow, and wounded feelings, this Court awards $75,000.00. For funeral expenses, based upon evidence presented, this Court awards $3,526.65.


Pain and Suffering of Cauthen:
 

 Cauthen died a horrible death. He endured terrible pain and suffering while slowly suffocating to death. Although pain medication was ordered, none was given to help offset the terrible pain caused as Cauthen's cancer slowly ate away the cartilage and muscle of his throat and neck. In addition, Cauthen suffered a severe loss of dignity and pri