Boody v. US, Civ. A. No. 85-1741-T.

• Decision Date: 27 February 1989
• Docket Number: Civ. A. No. 85-1741-T.
• Citation: 706 F. Supp. 1458
• Parties: Gordon BOODY, individually, and as Special Administrator of the Estate of Carol M. Boody, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Kansas

706 F. Supp. 1458

Gordon BOODY, individually, and as Special Administrator of the Estate of Carol M. Boody, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 85-1741-T.

United States District Court, D. Kansas.

February 23, 1989.

As Corrected February 27, 1989.

Richard Cordry, Wichita, Kan., for plaintiff.

Stephen K. Lester, Asst. U.S. Atty., Wichita, Kan., for defendant.

OPINION AND ORDER

THEIS, District Judge.

This matter comes before the court for final disposition after a four day bench trial. Plaintiff brings this medical malpractice action under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680. Plaintiff's claim is based on the "loss of chance of survival" theory adopted by the Kansas Supreme Court in Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149 (1984). After reviewing the evidence heard at trial, the parties' post-trial memoranda and the trial transcript, the court is prepared to rule. Pursuant to Rules 52 and 58 of the Federal Rules of Civil Procedure, the court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. The decedent, Carol Boody, was born June 10, 1935. She was married to plaintiff for more than thirty years. She died on December 1, 1987, at the age of 52.

2. The court will outline decedent's relevant medical history and then review in detail the expert testimony. Decedent went to the McConnell Air Force Base Hospital near Wichita, Kansas on January 3, 1983. She complained of cold symptoms, pleurisy, and a sharp pain in her left side. Pl.Ex. no. 101, at 370. The physician requested chest x-rays, both PA and lateral views. Dr. Tuason, a McConnell radiologist, reviewed the x-rays and gave them a "normal" diagnosis. Pl.Ex. no. 102 at 418; Pl. Exs. nos. 128-29.

3. Fourteen months later on March 9, 1984, decedent returned to the Base Hospital with similar complaints: cold, pleurisy and chest/sternum pain. A physical examination noted considerable tenderness in the sternum. Pl.Ex. no. 101 at 371. The examining physician ordered a second set of x-rays. Dr. Tuason reviewed decedent's x-rays and found a 3 centimeter (cm.) lesion in her right lung. Pl.Ex. no. 102 at 419. On March 13, surgery was performed at St. Joseph Medical Center in Wichita. The lesion in her right lung was a cancerous tumor. Pl.Ex. no. 101 at 9, 14-15, 17-18. A CT scan on March 18 was normal and decedent was soon discharged from St. Joseph's.

4. Less than two months later on May 10, a second CT scan revealed a brain tumor. Pl.Ex. no. 102 at 521; Pl.Ex. no. 112. Decedent underwent radiation therapy. Doctors discovered a second brain tumor in September 1984. Reeves Test. at 44; Pl.Ex. no. 115. Thereafter, decedent fought the cancer with radiation therapy, chemotherapy, and surgery. Plaintiff's Post-trial Brief, Dkt. no. 42, at 19-22. She died several years later on December 1, 1987.

5. Plaintiff alleges negligent care by the Air Force's Dr. Tuason in failing to properly read the January 1983 x-ray and catch the cancer in an early stage. Plaintiff attempted to establish negligence through the expert testimony of Dr. Bradford Reeves. Reeves is a twenty year board certified radiologist. He practiced radiology in Wichita for seventeen years before moving to Texas where he now practices. While in Wichita, he taught radiology to medical students and estimates he read approximately 70,000 chest x-rays in his practice. Reeves is a member of major radiology societies. Tr. at 10-14. The court found Reeves a competent expert witness.

6. The crux of Reeves' critique of Tuason's examination of the January 1983 x-rays is that Tuason failed to notice a "linear density immediately behind the sternum." Id. at 22-23. The linear density appeared to have "the shape of an area of atelectasis." Id. at 23. An atelectasis is an area of the lung that is partially collapsed. Id. An atelectasis is a warning sign to physicians to look for the cause of the collapsed bronchus. Reeves summarized:

"(T)his atelectasis implies that something has caused the air to leave a small segment of the lung, and may be an area of pneumonia and some secretions get in there and cause that part of the lung to collapse, or it could be a little tumor that blocks the bronchus and all of a sudden there's no air in that part of the lung, so it's nonspecific in that it can be due to different causes, the atelectasis."

Id. at 24. The atelectasis was approximately 5 millimeters in diameter and 1.5 cm. in length. Id. at 27. The tumor found in March 1984 was in exactly the same spot as the atelectasis on the January 1983 x-ray. Id. at 38-40.

7. Reeves testified that Tuason departed from standard medical practice: "He failed to report this abnormal density we see on the lateral view of the chest at that time." Id. at 32. Defendant United States presented no expert testimony on this question. Defendant's post-trial brief does not address Dr. Tuason's conduct. Dkt. no. 45.

8. Plaintiff's second expert was Dr. Dennis Moore. Moore is board certified in internal medicine, oncology and hematology. He is a member of the American Societies of Hematology and clinical Oncology. Moore works with the Wichita Community Clinical Oncology Program, a prominent, national cancer research center. Moore Test. at 98-104.

9. Moore testified that decedent had Stage I cancer in January 1983 and a fifty-one percent chance of surviving five years if diagnosed then. Id. at 115-16, 135-36. Moore based his conclusion on the research reported in several articles and his long experience with cancer patients and research. Id. at 121-22, 125-26, 190-92. Moore's conclusion is better understood with some scientific background.

10. First, an explanation of the system used to measure the growth stages of cancer. Moore testified that the method presently used by most doctors and hospitals for identifying the growth stage of a tumor is the TNM classification system. T is for tumor size. Id. at 108. "N stands for the number of nodes that are involved with cancer." Id. M stands for metastasis — the growth of a secondary tumor somewhere else in the body. Id. Each letter has a number attached to it which represents the presence of the property represented by the letter. Id. at 108-110. For example, a T1 tumor is a small tumor — less than three cm. in length.

11. Decedent's tumor in January 1983 was most likely a T1 N0 M0: a tumor less than three cm. in length and without nodes or metastases. Decedent's lung tumor was always less than three cm., even when removed in 1984 — a T1. No nodes were found on the tumor in 1984; an N0 in either year. Finally, Reeves explained that his review of the January 1983 x-ray revealed no metastasis. Thus, the 1983 tumor not discovered was a T1 NO MO. A tumor of this type is given a Stage I classification and is the most treatable. Id. at 49-50, 115-18.

12. Decedent's tumor when discovered in 1984 was Stage III, the most serious stage, a T1 N0 M1. By March 1984, a secondary tumor had developed in the brain (metastasis). Id. at 42 (Reeves), 115-18 (Moore). A very slight chance for five year survival exists after brain metastasis.

13. Defendant presented expert testimony that decedent had a Stage III tumor in January 1983. Dr. Vincent Collins based his testimony on his theory of tumor growth. Collins theory rests on two grounds: 1) the growth rate of tumors is constant and 2) primary and secondary tumors grow at the same rate. Collins Test. at 13, 28. Armed with these two assumptions, Collins can calculate a tumor's date of birth if he knows the size of a tumor at two distinct times.

14. Dr. Collins applied his theory to decedent's medical history. He first noted that in January 1983 decedent's lung tumor was one cm. in length and in March 1984, 400 days later, was two cm. Id. at 35. Dr. Collins then calculated:

So, in that case in this period of some 400 days some four doublings occurred, which would give us a doubling time of 100 days. If we apply the doubling of 100 days and that the tumor that was overlooked was a centimeter in diameter, then it had undergone 30 doublings. Thirty doublings of 100 days would be 3,000 days, which is approximately eight years, and this tumor has been present then for eight years before that first chest film.

Q. Do you have an opinion as to whether or not that tumor in her lung had metastasized prior to 1983?

A. It would have to metastasize before that time because the — if the minimal lesion in the brain was on the order of a centimeter in diameter and had undergone some 30 doublings and carrying that back, it would have to have formed back in 1976.

Id. at 35-36.

15. Collins concluded Dr. Tuason's failure to properly read the x-ray in January 1983 had no effect on decedent's chance of survival. Collins opined she would have died even with the proper diagnosis; the lung and brain tumors had been with her for too many years. "Well, in view of the fact that we have shown that not only had this (the lung tumor) been present for several years, but even the brain metastasis had already been present at that time, it would not have changed the evidence for this lady." Id. at 37.

16. Plaintiff's expert, Dr. Moore, directly contradicted Dr. Collins explanation of tumor growth. Moore acknowledged Collins' theory once held wide support; however, he stated that over the last ten years the base assumptions of Collins' theory are no longer considered valid. Moore Test. at 128-29. Moore explained that researchers now believe a tumor has different rates of growth at different times in its life span. The tumor grows very fast up to about one cm. in size and then its growth rate begins to slow down. Id. at 129-31, 132-35. Second, metastases grow faster than primary tumors. Id. at 131, 137-42. Moore expressly disagreed with Collins' view that the metastasis was in the brain eight or ten years earlier. Id. at 141. Although Moore could not say exactly when the metastasis occurred, his view was that...