The opinion of the court was delivered by: Hon. Manuel L. Real United States District Court
FINDINGS OF FACT AND CONCLUSIONS OF LAW
After trial and review of the evidence, the Court finds as follows:
1. Defendant United States is sued in this matter based on the medical care Plaintiff received from the U.S. Department of Veteran's Affairs.
2. At all relevant times, John Williams, D.P.M. and Lana Lem (maiden name: Hau), D.P.M., were federal employees acting within the course and scope of their employment.
3. On or about February, 2007, Plaintiff Glenn Earl Roberts, a 59-year old male, was diagnosed with degenerative joint disease (arthritis) of the left ankle.
4. The VA doctors recommended that Mr. Roberts undergo a left ankle fusion (arthrodesis), where surgeons would, among other things, fuse the ankle joint in place with two surgical screws. An ankle fusion was intended to preclude motion and thereby eliminate pain in the ankle joint.
5. On August 24, 2007, Mr. Roberts visited Dr. Alexander Tischler, a private orthopedic surgeon to obtain his opinion about the fusion procedure.
6. Dr. Tischler observed that Mr. Roberts had a "classic arthritic joint" and concluded that fusion of the ankle was appropriate. He noted also that Mr. Roberts had a "good supple talar joint" and, therefore, recommended against a procedure that would fuse other joints in addition to the ankle joint.
7. On September 13, 2007, Mr. Roberts visited the VA for a pre-operative examination, x-rays, and a discussion of the risks and benefits of ankle fusion with Drs. Lana Lem and John Williams.
8. Mr. Roberts elected to have surgery after being informed, and consenting to, the risks attendant to a bone fusion.
9. He signed the surgical consent form, which, among other things, cautioned that "[k]nown risks of this treatment/procedure include, but are not limited to: Failure of fusion, solidifying and requiring additional procedures. Loss of alignment requiring additional procedures."
10. Dr. Lem also told Mr. Roberts, among other things, that she would be performing the surgery with an attending physician.
11. On September 18, 2007, a left ankle fusion was performed by two podiatric surgeons, Drs. Lem and Williams, at the VA Loma Linda Medical Center.
12. At that time, Dr. Lem was a resident and Dr. Williams was the attending surgeon.
13. Prior to this ankle fusion, Dr. Lem had participated in at least 100 fusions, including three ankle fusions. She had primary responsibility on approximately 78 fusions, including one ankle fusion that occurred merely three months before, on June 16, 2007.
14. In addition, Dr. Williams, the attending surgeon, was well experienced having been involved with 30-50 ankle fusions in his medical career.
15. The surgical plan for Mr. Roberts involved fusion of the tibia and talus bones to eliminate arthritic pain in the ankle joint. The surgery went according to plan with no complications.
16. During the surgery, the alignment of the ankle and foot was checked clinically by Drs. Lem and Williams. Additionally, a fluoroscopy was taken to check for proper alignment prior to two surgical screws being inserted to fuse the ankle joint in place. According to the surgical report, the alignment of the foot and ankle was noted to be "excellent." Both Drs. Lem and Williams testified ...