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Johnson v. United States


October 23, 2009


The opinion of the court was delivered by: Hon. Gary Allen Feess United States District Judge


This case arises under the Federal Tort Claims Act. The case was tried to the Court from September 29, 2009 to October 1, 2009. The plaintiff was represented by Sean M. Burke, Esq. and Jeanne Steffin, Esq. The plaintiff's guardian ad litem, Alisa Malone, was present in court for the trial; the plaintiff, Alvin Johnson, appeared by videotape deposition. The Court, having considered the evidence presented at trial and the argument of counsel, sets forth its findings of fact and conclusions of law. The Court notes that Defendant was given the opportunity to object to the findings and has declined to do so, but without waiving its right to challenge those findings on the merits.


Alvin Johnson is a veteran who currently lives in Lake City, Georgia. Alvin Johnson was born April 20, 1939 and was 66 years old at the time of the incident giving rise to this case on October 17, 2005. He was 70 years old at the time of trial.

At the age of 66, Mr. Johnson reported chronic and increasing back pain. A preoperative physical examination of Mr. Johnson revealed he had near normal to normal function in all his extremities, but suffered from a ruptured disc that was compressing his spinal cord at the C3-C4 level, and which, because of the significant narrowing of the spinal column, created a significant risk that further damage could lead to paralysis. The testifying physicians all agreed that disc surgery was indicated.

On October 17, 2005, Mr. Johnson underwent spinal surgery at the Veterans Administration Medical Center in West Los Angeles to remove the ruptured disc. The surgeons were Antonio DeSalles, M.D., who was the attending surgeon, and Donald Shields, M.D., who was the resident surgeon. During the course of the procedures, the surgeons used a material called Surgifoam, a product that absorbs blood and other fluids, but which should not be used in enclosed spaces according to the manufacturer's warning label.*fn1 In this case, after removing the ruptured disc material, the doctors injected Surgifoam into the cavity created when the disc material was removed. The standard of care requires that excess Surgifoam be removed; and although the surgeons claimed they irrigated the surgical site twice, the evidence discussed below indicated that it was left in a partially enclosed area, absorbed sufficient materials that it expanded, and pressed against the spinal cord.*fn2

The surgical error was compounded by the actions of the doctors following the operation. First, Mr. Johnson was not properly attended to in the immediate postoperative period. The surgery was concluded shortly after 2:00 p.m., but his daughter was not informed and was not brought to his bedside until late afternoon, approximately 4:30 p.m. Although Dr. Shields claims that he spoke with Mr. Johnson at about 3:00 p.m., the evidence persuades the Court that no one had spoken with Mr. Johnson until after his daughter was at his bedside.*fn3 By that time, Mr. Johnson was in a frantic state because he had no feeling from his neck down and was experiencing near complete paralysis. At that point, Dr. Hauptman, who had counseled Mr. Johnson prior to the surgery, conducted an examination and ordered an MRI. Missing from the medical records is the form ordering the MRI. Nevertheless, the images themselves bear a time stamp indicating that they were processed between 5:30 and 6:00 p.m. on October 17.

The MRI image in the saggital plane revealed there was still Surgifoam in the cavity where the disc had been, and an image in the transverse plane showed that the spinal cord was still compressed. Notably, the transverse image of the spinal cord, when compared with a comparable pre-surgery image, show the cord to be at least as compressed, if not more compressed, than prior to surgery. From these images the surgeons should have been aware of the high probability that a surgical error had occurred and taken steps to correct it. They did not. Plaintiff's expert, Dr. Bruce Van Damm, thoroughly and carefully described the evidence from the MRI and concluded that the post-operative MRI showed an increase in pressure on the spinal cord indicating some surgical cause.*fn4 Dr. Van Damm persuasively opined that, had aggressive surgical intervention been undertaken, the pressure could have been relieved and that permanent damage could have been avoided.

Thus, as of approximately 6:00 p.m. on the day of surgery, the surgeons were in possession of evidence that a surgical error had occurred but had not yet spoken with or examined Mr. Johnson.*fn5 When he received and read the MRI images, Dr. Shields failed to give adequate consideration to the possibility of the surgical error and apparently failed to review the pre and post-operative images or to obtain an opinion from a radiologist regarding the significance of the images. After concluding his review, Dr. Shields then called Dr. DeSalles and advised him of Mr. Johnson's condition and reported on his review of the MRI images. Dr. DeSalles did not return to examine Mr. Johnson or to review the MRI films at that time and instructed Dr. Shields to wait to see if Mr. Johnson improved. In reaching this decision, the surgeons failed to properly interpret the MRI images and reached a decision that doomed Mr. Johnson to spending his remaining years as a quadriplegic.

The surgeons also failed to meet the standard of care by failing to inform Mr. Johnson of the situation, to fully advise him of his options, and to give him the opportunity to request further surgery. Even if the surgeons believed that the information available to them was ambiguous, they should have disclosed the information to the patient and his family, ambiguities and all, along with the available options and risks. This was not done. Instead, the doctors waited and, when they determined that Mr. Johnson's paralysis was not resolving, it was too late for any further surgical intervention. Mr. Johnson remains quadriparetic to this day, is confined to a wheelchair and depends on others for all activities of daily living.

After his discharge from VAMC-WLA, Mr. Johnson was transferred to the Spinal Cord Injury Program at VAMC-Long Beach, where he received therapy and treatment for one year between October 24, 2005 and October 25, 2006. In spite of the intensive therapy from that program, Mr. Johnson remained quadriparetic: he has some movement and control of his arms but he is confined to bed with a few hours a day spent in a wheelchair. He is incontinent and depends on an indwelling catheter and diapers. He is dependent on others for all of his activities of daily living, including bathing, hygiene, eating and mobility.

When he completed his course of treatment at the VAMC-Long Beach Spinal Cord Injury program, Mr. Johnson moved from California to Tennessee and into his daughter, Alisa Malone's, home in Nashville, Tennessee. Ms. Malone works full time and kept her father at her home with the aid of home health nurses, who watched him during the day between 7 a.m. and 7 p.m. When Ms. Malone returned from work, the home care nurses would leave and Ms. Malone would take care of her father between 7 p.m. and 7 a.m. from Monday to Friday and from 7 p.m. on Friday evening until 7 a.m. on Monday morning. This arrangement lasted from November 20, 2006 to September 2007, at which time Ms. Malone could no longer afford the private nurses during the day with her providing nursing services for 12 hours every evening and on weekends. She therefore moved her father into Briley Nursing and Rehabilitation Center. In February 2009, Ms. Malone moved to Baltimore for her employment and Mr. Johnson was moved to Atlanta, Georgia, so he could be closer to his other daughters, and he moved into Lake City Nursing and Rehabilitation Center, where he lives today.

The charges for the home health care nurses and the charges for the nursing home facilities have been paid by a combination of Mr. Johnson's funds, his daughters' funds, Medicare and Medicaid.

The testimony of Alisa Malone and Mr. Johnson was that Mr. Johnson would prefer to live with one of his daughters and that he would prefer to live in the Atlanta area since he has more family members in that region. If he were to move in with one of his daughters, the house would need to be remodeled to accommodate his wheelchair; the cost for this was provided by Ms. Barnes at $44,900.00.

Plaintiff presented testimony of Alex Barchuk, M.D., a Physical Medicine and Rehabilitation Specialist and Anne Barnes, R.N., a Licensed Nurse Life Care Planner regarding the condition of Mr. Johnson and his medical and care needs for the future. Defendant presented the testimony of Thomas Hedge, M.D., also a Physical Medicine and Rehabilitation Specialist and Linda Olzack, R.N., also a Licensed Nurse Life Care Planner on the same topics. Their recommendations were very similar with respect to the type of care Mr. Johnson will require for the future as a consequence of his injuries.

Dr. Barchuk and Dr. Hedge presented testimony regarding Mr. Johnson's life expectancy. Dr. Barchuk testified that Mr. Johnson has suffered a 5-10% reduction of his life expectancy, which, based on calculations of the plaintiff's forensic economist, Susan Bleecker, C.P.A., results in a remaining life expectancy of 12.56 years. Dr. Hedge estimated a life expectancy of 4.7 to 5.9 years. Both experts referred to a table of life expectancy published by the National Spinal Cord Injury Statistical Center in 2007.


A. California Law Applies Under The Federal Tort Claims Act

The Federal Tort Claims Act ("FTCA") preconditions liability and jurisdiction upon proof of an actionable duty, causation and recoverable damages under the law of the state where the conduct complained of occurred. See 28 U.S.C. §§1346(b) & 2674; Dalehite v. United States, 346 U.S. 15, 52-53; 73 S.Ct. 936, 97 L.Ed. 1427 (1953). To have a cognizable claim, the claim must arise from the negligent or wrongful act of a government employee acting within the scope of his employment under circumstances where the United States, if it were a private individual, would be liable under the law of the state where the claim arose. See id. California law applies to this case because the alleged malpractice occurred in California.

B. Plaintiffs Must Prove Their Injuries Were Caused By the United States' Acts

In California, plaintiff must prove by a preponderance of the evidence that their claimed damages were caused by the negligent acts or omissions of persons acting on behalf of the United States. See 28 U.S.C. §2674; C AL. E VID. C ODE § 115. "A physician, surgeon, or dentist must exercise that degree of skill or care usual in the profession in the place in which he or she practices . . . ." 6 Witkin, Torts § 933, at 169 (10 th Ed. 2005). The relationship of physician to patient gives rise to the duty of due care. Keene v. Wiggins, 69 Cal.App.3d 308, 312-13 (1977). The approved jury instruction explains the duty in these words:

A surgeon is negligent if he fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful surgeons would use in the same or similar circumstances. This level of skill, knowledge, and care is sometimes referred to as "the standard of care."

CACI Instruction No. 501. If negligence is proved, a plaintiff may recover any economic damages caused by the malpractice, but non-economic damages are capped at $250,000 under California Civil Code § 3333.2. That statute provides in pertinent part:

(a) In any action for injury against a health care provider based on professional negligence, the injured plaintiff shall be entitled to recover non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement and other non-pecuniary damage.

(b) In no action shall the amount of damages for non-economic losses exceed two hundred fifty thousand dollars ($250,000)." (California Civil Code §3333.2)

C. Plaintiff's Injuries Resulted From Medical Negligence

1. Liability

Based on the Court's factual findings, the Court concludes that the conduct of the physician-surgeons in this case fell below the standard of care in the community in the following respects:

(1) The surgery was performed below the standard of care because Surgifoam that was not properly removed from the disc area where it expanded, and put pressure on the spinal cord, and caused Mr. Johnson to suffer from quadriplegia;

(2) The surgeons were dilatory in conducting a post-operative examination of Mr. Johnson to assess whether or not he might be suffering from complications resulting from the surgery;

(3) When an MRI study was finally ordered, the surgeons failed to properly assess Mr. Johnson's condition, failed to consider all relevant data in reviewing the MRI images, and failed to obtain assistance from a radiologist in reviewing and assessing the images;

(4) Although the MRI images indicated surgical intervention as a reasonable course of action under the circumstances, the surgeons unreasonably rejected that course of action and further failed to properly advise the patient of the information available to them and the possible action that could be taken in those circumstances.

As a result of these failures, Mr. Johnson's condition became irreparable.

Based on Dr. Van Damm's assessment of the evidence, the Court concludes that prompt surgical intervention would have relieved the pressure on Mr. Johnson's spine and avoided permanent damage. In short, the evidence establishes that Mr. Johnson's current condition was caused by the actions of the surgeons that fell below the standard of care.

2. Damages

The Court concludes that the non-economic damages suffered by Mr. Johnson, that is, the pain, suffering, loss of enjoyment of life, anxiety and frustration, to name a few of the elements of non-economic damages, far exceed the maximum which may be awarded in California and that he is therefore entitled to $250,000.00 for his non-economic damages.

Mr. Johnson and his family have incurred past medical and care expenses. Evidence was presented that the past out-of-pocket expenses have totaled $92,397.98.

In addition, Medicare and Medicaid claim liens in the amounts of $14,236.22 and $16,650.28.

California law allows reimbursement to an injured plaintiff of the reasonable value of the care rendered to him even if it is by his family members and even if there is no expectation of payment. The reasonable value of the nursing services rendered to Mr. Johnson is an economic loss Mr. Johnson is entitled to claim as part of this case. See Hanif v. Housing Authority of Yolo County, 200 Cal. App. 3rd 635, 644-646 (1988):

"It is established that "[t]he reasonable value of nursing services required by the defendant's tortious conduct may be recovered from the defendant even though the services were rendered by members of the injured person's family and without an agreement or expectation of payment. Where services in the way of attendance and nursing are rendered by a member of the plaintiff's family, the amount for which the defendant is liable is the amount for which reasonably competent nursing and attendance by others could have been obtained. The fact that the injured party had a legal right to the nursing services (as in the case of a spouse) does not, as a general rule, prevent recovery of their value, ...' (Citations.)

"Thus, in Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626 [151 Cal.Rptr. 399], the plaintiff was entitled to recover the reasonable value of 24-hour home attendant care provided by his spouse and necessitated by the defendant's tortious conduct: 'We reject the premise that the cost of attendant care, past or future, should not have been an item for consideration by the jury because of the presence of [the plaintiff's wife]. It is not part of her duties as a wife to render 24-hour-a-day attendant care.' (Id., at p. 661.) Moreover, the jury was entitled to calculate the reasonable value of that care on the basis of uncontroverted evidence respecting the wage ordinarily paid to those who provide such services. (Id., at pp. 661-662.)"

Ms. Barnes testified that the reasonable value of the type of nursing services provided by Alisa Malone was between $17.00 and $23.00. Multiplying the number of hours Ms. Malone provided to her father between November 2006 and September 2007 by the average of these figures, $20.00, results in $96,000.00.

As for future economic damages, I find the Life Care Plan and the forensic economic workup presented by Dr. Barchuk, Ms. Barnes and Ms. Bleecker to be the more persuasive.

With respect to Life Expectancy, the Court adopts the life expectancy from the table published by the National Spinal Cord Injury Statistical Center for individuals with Motor Functional Any Level which lists a life expectancy of 11.1 years for a person who is 70 years old. At the conclusion of the trial, the Court requested plaintiff's counsel to have his forensic economist recalculate the present value and future value of the loss suffered by Mr. Johnson using a life expectancy of 11.1 years. Based on this recalculation, the present value of the future economic loss is $3,812,852.00 and the future value is $4,632,287.00. A copy of Ms. Bleecker's updated report dated October 6, 2009 is attached hereto as Exhibit 1.

3. Award

In summary, the Court concludes that plaintiff is entitled to the following:

Non-Economic Damages $250,000.00 Economic Damages   Past Medical and Care Expenses   Past Medical Expenses (Ex. 74)$92,397.98  Medicare Lien (Ex. 75)$14,236.22  Medicaid Lien (Ex. 118)$16,650.28  Value of Past Family Nursing Services$96,000.00  Subtotal Past Economic Damages$219,284.48$219,284.48 Present Value of Future Medical and Care Expenses   Home Modifications to Daughter's Home$44,900.00  One Time Cost per Ms. Barnes Life Care Plan$14,835.00  Future Medical Expenses - Present Value$3,812,900.00  Subtotal Present Value of Future Economic Damages$3,872.635.000$3,872,635.00 TOTAL$4,341,919.48 

For purposes of evaluating proposed future periodic payments, I find the future undiscounted value of the future economic damages to be $4,632,300.00.

Judgment shall therefore be entered in favor of Alvin Johnson in the amount of $4,341,919.48.

IT IS SO ORDERED this 23rd day of October, 2009.

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