Bratton v. United States
| Decision Date | 08 May 2022 |
| Docket Number | 20-CV-04108-WJE |
| Parties | GAYLA BRATTON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
Pending before the Court is the government's Motion for Summary Judgment (“Motion”), and suggestions in support thereof. (Docs. 30, 31). Plaintiff Gayla Bratton has filed suggestions in opposition (Doc. 38), to which the United States has timely replied (Doc. 43). The issue is now ripe for consideration. For the reasons that follow, the Motion shall be denied.
This medical malpractice and wrongful death case arises from medical care that decedent Richard Bratton received at the Harry S. Truman Memorial Veterans' Hospital (“VA Hospital”) in Columbia, Missouri. (Doc. 31, ¶ 1; Doc. 38, ¶¶ 4-5). Mrs. Bratton, his surviving wife claims that medical providers at the VA Hospital negligently failed to timely diagnose and treat a cancerous lesion causing injury that resulted in Mr. Bratton's death. (Doc. 1, ¶¶ 31-42).
On March 23, 2016, Mr. Bratton's primary care physician, Dr. Julie Stansfield, ordered a computerized tomography (“CT”) scan of Mr. Bratton's abdomen to evaluate a suspected hernia. (Doc. 31, ¶ 2; Doc. 38, ¶ 6). The CT scan revealed “heavily calcified” nodules located inferior to the liver and posterolateral to the right kidney that the radiologist described as “[possibly] related to dropped gallstones after [his gallbladder was removed].” (Doc. 38-6, pp. 2-3).
This was the first of many scans of Mr. Bratton's developing lesion. (See Docs. 38-9, 38-12, 38-19, 38-24, 38-27, 38-30, 38-35). Images of the lesion were obtained in May 2016, July 2017, November 2017, January 2018, February 2018, April 2018, and July 2018. (Docs. 38-9, 38-12, 38-19, 38-24, 38-27, 38-30, 38-35). Medical providers variously referred to the growth as a cyst, a cystic lesion, a lesion, and a mass. (See Docs. 38-9, 38-12, 38-19, 38-24, 38-27, 38-30, 38-35). Dr. Michael R. O. Aro, a VA Hospital radiologist, described this abnormal area of tissue as a “cystic lesion with calcifications along the wall, ” also noting its growth over time. (Docs. 38-9, 38-12, 38-19, 38-24, 38-27, 38-30, 38-35).
An aspiration biopsy was performed on August 16, 2017, revealing fluid “[n]egative for malignant cells.” (Doc. 38-16, p. 1). At that time, medical providers did not attempt to diagnose the lesion. (Doc. 38, ¶¶ 36-39).
On December 29, 2017, Dr. Stansfield referred Mr. Bratton to Dr. Kevin Staveley-O'Carroll, a surgical oncologist at the VA Hospital, who devised a treatment plan for Mr. Bratton after reviewing his records. (Doc. 31, ¶¶ 21-22; Doc. 38, ¶¶ 49-54). The plan involved obtaining more images of Mr. Bratton's lesion and presenting his case at the University of Missouri Health Care's General Multi-Disciplinary Conference and the Veterans' Affairs Conference to get other medical experts' opinions on the lesion. (Doc. 31, ¶ 22; Doc. 38, ¶ 53). Dr. Staveley-O'Carroll represented in his deposition testimony that he presented Mr. Bratton's case at the conferences in January and May 2018, but there is no other documentation in the record regarding the content of these presentations or the recommendations that resulted. (Doc. 38, ¶¶ 62-71, 126-31).
In January 2018, after magnetic resonance imaging (“MRI”), Dr. Aro suggested that Mr. Bratton consider obtaining another biopsy of the lesion. (Doc. 38-24, p. 3). Dr. Aro also noted that the calcifications did “not appear significantly changed from the older CT[s].”
(Id.; Doc. 38, ¶ 59). He did not review images from a CT scan conducted in 2008 because they were no longer accessible on the hospital's server, but he did observe that there was no reference of the lesion in the notes from the 2008 CT. (Doc. 38-24, p. 3).
Mr. Bratton had multiple follow-up appointments. (Doc. 31, ¶¶ 36, 48, 60; Doc. 38, ¶¶ 72, 101, 139). Dr. Staveley-O'Carroll memorialized an appointment on January 19, 2018, by noting that Mr. Bratton “often worries that the cyst could be malignant . . . [but the lesion is p]ossibly [a] reaction to gallstones spilled at [the] time of [his gallbladder removal].” (Doc. 38-45, pp. 1, 6). Mr. Bratton scheduled a surgery to remove the lesion in August 2018. (Doc. 31, ¶ 68; Doc. 38, ¶ 141; Doc. 38-34, p. 1). However, an MRI in July 2018 revealed the lesion had grown significantly. (Doc. 38, ¶¶ 143-45; Doc. 38-35, pp. 2-3). After also reviewing the previously inaccessible 2008 CT scan, providers no longer believed the lesion resulted from spilled gallstones and Mr. Bratton's surgery was rescheduled for July 16, 2018. (Doc. 38, ¶¶ 146-56; Doc. 38-36, pp. 7-10).
On July 16, 2018, Dr. Staveley-O'Carroll removed the lesion. (Doc. 31, ¶ 79; Doc. 38, ¶ 157). A pathology report revealed that the lesion was cancerous. (Doc. 31, ¶ 80; Doc. 38, ¶ 159). After the surgery, Mr. Bratton sought treatment with Dr. Benjamin Powers at the University of Kansas Medical Center, who felt that chemotherapy and radiation were not viable treatment options for this type of cancer. (Doc. 1, ¶ 29). After the surgery, another CT scan revealed that the cancer had metastasized to Mr. Bratton's liver and lungs. (Id., ¶ 30). Mr. Bratton died on April 10, 2019. (Doc. 31, ¶ 81; Doc. 38, ¶ 160). His death certificate listed the cancer as his underlying cause of death. (Doc. 31, ¶ 82; Doc. 38, ¶ 161).
On June 23, 2020, Mrs. Bratton filed suit, alleging Wrongful Death in Count I and Loss Chance of Recovery or Survival in Count II, pursuant to the Federal Tort Claims Act (“FTCA”). (Doc. 1, ¶¶ 31-42). On September 4, 2020, the United States filed its Answer. (Doc. 10).
On September 30, 2021, Mrs. Bratton identified Dr. Norman Bloom as a retained medical expert and disclosed his written reports. (Docs. 23, 23-1, 23-2). Dr. Bloom opines that the physicians at the VA Hospital violated the medical standard of care because: (1) they did not establish a definitive diagnosis for the lesion in a timely manner; (2) they performed an aspiration biopsy rather than an image guided core biopsy; and (3) they erroneously assumed that the lesion was spilled gallstones. (See Docs. 23-1, 23-2). The United States subsequently filed the instant Motion on March 4, 2022. (Doc. 30).
“Summary judgment is proper if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Green Plains Otter Tail, LLC v. Pro-Env't., Inc., 953 F.3d 541, 545 (8th Cir. 2020) (citing Fed.R.Civ.P. 56(c)). “A court considering a motion for summary judgment must view the evidence and inferences that may be reasonably drawn from the evidence in the light most favorable to the nonmoving party.” Dryer v. NFL, 814 F.3d 938, 941-42 (8th Cir. 2016) (citing Enter. Bank v. Magna Bank of Mo., 92 F.3d 743, 747 (8th Cir. 1996)). “A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials, but must set forth specific facts in the record showing that there is a genuine issue for trial.” Id. at 942 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Green Plains Otter Tail, LLC, 953 F.3d at 545 (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)).
The United States argues that Dr. Bloom's opinions are not sufficient to establish that medical providers at the VA Hospital deviated from the standard of care under Missouri law.[1](Doc. 31, pp. 20-26). Mrs. Bratton counters that Dr. Bloom provides specific examples of how the medical providers violated the standard of care. (Doc. 38, pp. 59-64).
Under Missouri law, “a medical malpractice claim requires: (1) breach of the standard of care and (2) causation.”[2] Huffman v. United States, No. 2:20-CV-04079-NKL, 2021 WL 6689722, at *8 (W.D. Mo. Oct. 28, 2021) (citing Jackson v. United States, No. 1:18-CV-9-ACL, 2019 WL 7343442, at *9 (E.D. Mo. Dec. 30, 2019)). To demonstrate a breach of the standard of care, the plaintiff must prove that the defendant physician failed “to exercise ‘the degree of care, skill and proficiency which is commonly exercised by the ordinarily skillful, careful and prudent physician engaged in similar practice under the same or similar conditions.'” Shaffer v. United States, 769 F.Supp. 310, 311 (E.D. Mo. Apr. 15, 1991) (quoting Yoos v. Jewish Hosp. of St. Louis, 645 S.W.2d 177, 183 (Mo.Ct.App. 1982)). Generally, expert testimony must establish that the defendant deviated from the medical standard of care. Huffman, 2021 WL 6689722, at * 9 (citing McLaughlin v. Griffith, 220 S.W.3d 319, 322-23 (Mo.Ct.App. 2007)). “An expert doctor's opinion, however, must be based upon an established standard of care and not upon a personal standard.” Boehm v. Pernoud, 24 S.W.3d. 759, 762 (Mo.Ct.App. 2000) (citing Dine v. Williams, 830 S.W.2d 453, 457 (Mo.Ct.App. 1992)). For example, the Court in Huffman held that the plaintiff failed to demonstrate that the defendant doctor violated the standard of care when the plaintiff's expert cited “no specific examples of the purported failure to employ the appropriate practices or of the proper practices themselves, ” but only gave conclusory opinions regarding what the defendant doctors should have done. Huffman, 2021 WL 6689722, at * 11.
Here Dr. Bloom cites specific examples of how the medical providers at the VA Hospital breached the standard of care when treating Mr. Bratton. First, Dr. Bloom opines that medical providers breached the standard of care...
To continue reading
Request your trial