736 F.3d 430 (5th Cir. 2013), 12-60901, Estate of Sanders v. United States

Docket Nº:12-60901.
Citation:736 F.3d 430
Opinion Judge:HIGGINSON, Circuit Judge.
Party Name:In the matter of the ESTATE OF Ira J. SANDERS, Deceased, Ruther Sanders, Administrator, Plaintiff-Appellant v. UNITED STATES OF AMERICA, Defendant-Appellee.
Attorney:T. Jackson Lyons, Esq., T. Jackson Lyons & Associates, P.A., Jackson, MS, for Plaintiff-Appellant. David Harrison Fulcher, U.S. Attorney's Office, Jackson, MS, for Defendant-Appellee.
Judge Panel:Before SMITH, DENNIS, and HIGGINSON, Circuit Judges.
Case Date:November 21, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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736 F.3d 430 (5th Cir. 2013)

In the matter of the ESTATE OF Ira J. SANDERS, Deceased, Ruther Sanders, Administrator, Plaintiff-Appellant

v.

UNITED STATES OF AMERICA, Defendant-Appellee.

No. 12-60901.

United States Court of Appeals, Fifth Circuit.

November 21, 2013

Page 431

[Copyrighted Material Omitted]

Page 432

T. Jackson Lyons, Esq., T. Jackson Lyons & Associates, P.A., Jackson, MS, for Plaintiff-Appellant.

Page 433

David Harrison Fulcher, U.S. Attorney's Office, Jackson, MS, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before SMITH, DENNIS, and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge.

Ira J. Sanders (" Sanders" ), who received medical treatment from the Department of Veterans Affairs, died of stomach cancer in 2008. Sanders's estate (" the Estate" ) filed a malpractice suit against his health care providers under the Federal Tort Claims Act (" FTCA" ), alleging in part that they failed to provide appropriate follow-up care after discovering a mass in Sanders's stomach in 2003. The district court granted summary judgment for the United States based on its finding that the Estate's expert report failed to establish the relevant standard of care or create a question of fact as to the remaining elements of a malpractice claim under Mississippi law. Despite the tragic facts of this case, we agree that the expert's report was legally inadequate, and we AFFIRM.

FACTS AND PROCEDURAL HISTORY

Sanders experienced symptoms of reflux in 2003 and sought attention from his primary care doctors at the Meridian Community Based Outpatient Clinic (" Meridian Clinic" ). Doctors at the Meridian Clinic referred Sanders to the Jackson VA Medical Center (" JVAMC" ) for an esophagogastroduodenoscopy (alternately referred to in the record as an " endoscopy" or " EGD" ), a procedure that visualizes the upper part of the gastrointestinal tract. Dr. Maher Azzouz, a board-certified gastroenterologist, performed the EGD on December 10, 2003. According to JVAMC medical records, Dr. Azzouz discovered a " mass" in Sanders's stomach, which the medical records describe as: " fragments of adenomatous dysplatic mucosa, consistent with papillary adenoma."

The medical records also note findings of " [c]omplete intestinal metaplasia." The medical records for December 12, 2003, indicate that due to the " stomach polyp," Dr. Azzouz was " to do Endoscreen" on February 12, 2004, and that Sanders would be " notified by letter." On January 26, 2004, Dr. Azzouz rescheduled the follow-up test for March 12, 2004. Under " indications for procedure," the records again note: " stomach[ ] polyp." Sanders was notified of the date of the procedure, but the Estate alleges that he was not notified of the reason it was needed.

Two of Sanders's children, Belinda and James, accompanied Sanders to the JVAMC on March 12, 2004. According to Belinda and James Sanders's affidavits, upon arrival, they were " told by staff members ... that there was no EGD scheduled for [Sanders] that day and that since he had an EGD performed with[in] the past year that there was no necessity to repeat the test."

In the summer of 2008, Sanders was again evaluated at the Meridian Clinic after experiencing weight loss and difficulty eating. He was admitted to JVAMC on July 8, 2008; an EGD performed by Dr. Stephen Tuuri the next day revealed a cancerous stomach mass. Sanders underwent surgery on July 25, 2008. He died on July 29, 2008. The Estate does not allege malpractice in connection with Sanders's care in 2008.

Ruther Sanders, Sanders's widow and the administrator of the Estate, filed an

Page 434

FTCA claim in June 2010.1 The complaint alleged malpractice on the part of the United States " acting through its agents, servants and or employees at the [JVAMC] in Jackson, Mississippi and also at the [Meridian Clinic]." 2 The Estate asserted that employees both of the JVAMC and the Meridian Clinic " owed a duty to [Sanders] to relay to him the results of the endoscopy performed by Dr. Azzouz on 12-10-2003 ... and further to provide appropriate follow-up care for the pre-cancerous stomach lesion which if performed pursuant to the standard of care, the cancer would have been detected at an earlier date and would have been amenable to surgical cure." The complaint continued: " As a direct and proximate result of the failure to provide the appropriate standard of care ... Sanders'[s] disease remained untreated and he subsequently died."

The district court, on the agreement of both parties, granted the government's motion to dismiss the Meridian Clinic defendants, on the grounds that they were not government employees under the FTCA. The order noted that the Estate's " claims regarding Dr. Azzouz, an employee of the government, are not the subject of the motion to dismiss," but did not mention potential claims against other JVAMC employees.

Both parties submitted expert reports. The Estate's report was authored by Dr. Robert Sklaroff, an attending physician at Nazareth Hospital, Philadelphia, who is board-certified in internal medicine and medical oncology.3 Dr. Skarloff's report concluded that, had Sanders

been provided episodic follow-up gastroscopic evaluations, the lesion would have been detected at an earlier moment in its natural history ... [ellipsis in report] when it would have been amenable to surgical cure. It was beneath the standard-of-care for such monitoring not to have been offered to the patient during the half-decade between the detection of the pathologic abnormalities and the establishment of the diagnosis of inoperable disease.

The government submitted a report authored by Dr. Thomas L. Abell, chief of gastroenterology at the University of Mississippi Medical Center. Dr. Abell concluded:

The procedure and recommendations by Dr. Maher Azzouz, the Gastroenterologist performing the procedure, were appropriate and meet the standard of care for this case. Further monitoring of this patient and follow up care were the responsibility of the patient's primary care physician and not the responsibility of Dr. Azzouz, who met the standard of care in all aspects in this...

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