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Acevedo v. United States

United States District Court, S.D. California

April 22, 2014



ROGER T. BENITEZ, District Judge.

Plaintiff Eugene Acevedo filed a Complaint against the United States pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. ยงยง 1346(b), 2671-2680. Plaintiff claims that the Veterans Administration Medical Center in San Diego (VAMC) negligently failed to diagnose and treat a subdural hematoma, resulting in physical, emotional, and cognitive injuries.

A bench trial was held before this Court for four days between April 1, 2014 and April 9, 2014. Pursuant to Federal Rule of Civil Procedure 52(a), this Court now makes the following findings of fact and conclusions of law. Where appropriate, findings of fact shall operate as conclusions of law, and conclusions of law shall operate as findings of fact.

In view of this Court's findings and conclusions, this Court finds that Plaintiff has not proven by a preponderance of the evidence that the actions of Defendant's employees fell below the standard of care, or that any failure to meet the standard of care caused Plaintiff's damages. The Court therefore finds in favor of the United States and against Eugene Acevedo. Defendant's Rule 52 Motion for Judgment on Partial Findings is DENIED AS MOOT. (Docket Nos. 44, 45).


Plaintiff Eugene Acevedo was born in 1951. At the age of approximately 19 years old, he joined the Marine Corps. He was honorably discharged two years later.

Plaintiff has a history of using controlled substances and alcohol. He began using drugs and alcohol at the approximate age of fourteen years old. In the 1980s, Plaintiff began to use cocaine, approximately twice a week, and methamphetamine, approximately three or four times a week. Plaintiff worked in construction until he entered into an alcohol and drug treatment program in 2008. Plaintiff reports using marijuana about once a day. There is no evidence that Plaintiff has abused other controlled substances or alcohol since completing the rehabilitation program.

Plaintiff was diagnosed with gastrointestinal problems around 2007. He underwent multiple abdominal surgeries to treat his conditions in late 2009 and 2010. After the abdominal surgeries, Plaintiff developed a problem with blood clots. To address the potentially dangerous blood clots, Plaintiff was placed on Coumadin, an anticoagulant, on August 24, 2010. Plaintiff was also placed on a number of different pain medications following the abdominal surgery.

Plaintiff began reporting headaches in the Fall of 2010. Prior to the Fall of 2010, Plaintiff reports that he had last experienced severe headaches approximately 40 years earlier, when he was leaving the Marine Corps. Plaintiff remembers being told by a medical provider that these headaches were migraines.

On September 18, 2010, Plaintiff presented at the Emergency Department of the VAMC. He reported experiencing a headache for two days. He subjectively reported a pain level of 7 on a scale of 1 to 10. A computerized tomography (CT) scan of Plaintiff's head was performed. The CT scan revealed no intercranial bleeding. Plaintiff was given medication, and reported improvement. He was then discharged.

Plaintiff reported to the VAMC Emergency Department again on September 20, 2010. Plaintiff complained of a headache and presented with a fever. His treating physician was concerned that Plaintiff could be suffering from meningitis, and recommended that Plaintiff undergo a CT scan and lumbar puncture. The CT scan was offered in conjunction with the lumbar puncture, and was recommended in order to ensure that the lumbar puncture could be safely performed. Plaintiff did not want to undergo the lumbar puncture and refused the treatment advised by the physician.

Plaintiff was next seen by the VAMC Emergency Department on October 22, 2010. Plaintiff presented with complaints of a headache. He reported that he had been experiencing headaches for four days, and reported a pain level of 10 out of 10. Plaintiff was nauseous and vomited while in the Emergency Department. Plaintiff was given medication, reported improvement, and was discharged. The doctor also referred him to a neurologist.

Plaintiff was seen by his primary care provider, a nurse practitioner, on November 4, 2010. He reported experiencing headaches. The nurse practitioner noted that Plaintiff was having difficulty concentrating. She prescribed propranolol, a medication that can prevent headaches.

Plaintiff was seen on December 1, 2010 by a neurology attending physician and a resident. Plaintiff reported that he had improved after he had begun to take the propranolol, and had stopped taking the medication. He had resumed the medication three days before the appointment. The neurology attending physician, Dr. Bui interpreted this history to support the conclusion that the drug had been effective in treating a primary headache. A full neurological examination of Plaintiff was performed. The only notable finding was some difficulty with "tandem walking, " which involves placing one foot directly in front of the other while walking in a line. Dr. Bui stated that this is not very helpful by itself in the case of the elderly. There were no other abnormalities, and Plaintiff's mental status was normal. Plaintiff was diagnosed with migraine and tension headaches, and given additional medication.

Plaintiff reported to the Emergency Department on December 3, 2010, reporting a headache lasting two days, nausea, and photophobia. Dr. Xue performed a physical examination and neurological examination, and found no neurological abnormalities. Dr. Xue ordered medication and kept him for observation, then passed responsibility for his care to Dr. Busby at the shift change. Dr. Busby re-examined Plaintiff and added additional medication. Plaintiff reported improvement, and was discharged home.

On the morning of December 5, 2010, Plaintiff experienced a severe headache. He telephoned a friend, Jennie Selby, who took him to the VAMC Emergency Department. After waiting approximately one hour, Plaintiff left the VAMC. Ms. Selby took Plaintiff to Scripps Mercy Hospital. At Scripps Mercy Hospital, a CT scan was ordered ...

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