Crowley v. US

• Citation: 773 F. Supp. 98
• Decision Date: 15 August 1991
• Docket Number: No. 90 C 0402.,90 C 0402.
• Parties: James CROWLEY, Plaintiff, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Illinois

773 F. Supp. 98

James CROWLEY, Plaintiff, v. The UNITED STATES of America, Defendant.

No. 90 C 0402.

United States District Court, N.D. Illinois, E.D.

August 15, 1991.

Brian J. Diamond, Thomas L. Knight, Walsh, Knippen, Knight & Diamond, Chartered, Wheaton, Ill., for plaintiff.

Fred Foreman, U.S. Atty. by Linda A. Wawzensky, Asst. U.S. Atty., Chicago, Ill., for defendant.

ORDER

BUA, District Judge.

On January 24, 1990, plaintiff James Crowley filed this suit against the United States of America pursuant to 28 U.S.C. § 1346(b). Crowley claims that physicians practicing at a Veterans Administration Hospital deviated from the applicable standard of care when treating him. A bench trial on his claims took place January 14-16, 1991. Based on the evidence presented at trial, the court makes the following findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).

FINDINGS OF FACT

1. Plaintiff James Crowley is a forty-five year old man with a history of knee problems. (Transcript ("Tr.") at 6, 15-16.)

2. In 1978, Crowley began to have difficulties with his left knee. (Tr. at 16.) He sought treatment from Dr. Chand, an orthopedic surgeon, who recommended a regimen of x-rays and therapy. (Tr. at 16.) This treatment proved unsuccessful. Arthroscopic surgery was then done to repair cartilage in the knee. (Tr. at 16.) When Crowley still did not experience relief, Dr. Chand performed a patellectomy. (Tr. 16-17.) After this treatment, pain did not reoccur in Crowley's left knee until 1987. (Tr. at 19.)

3. Crowley first faced difficulty with his right knee in 1973. (Tr. at 15.) X-rays and therapy resolved the problem until 1984, when he again consulted Dr. Chand. (Tr. at 15, 17.) Dr. Chand tried therapy and x-rays, but to no avail. (Tr. at 17-18.) In 1985, Dr. Chand performed a patellectomy on Crowley's right knee. (Tr. at 18.) Even after this surgery, Crowley was still experiencing pain in that knee. (Tr. at 18.)

4. In January 1987, Crowley sought treatment at the Lakeside Veterans Administration Hospital ("Lakeside") located in Chicago, Illinois. He visited Lakeside complaining of pain in both knees. (Tr. at 19.) He told doctors that all activity hurt his knees. (Government's Joint Exhibits A and B ("Exh. AB") at 2-272.) On January 23, 1987, Dr. Mehlhoff, an orthopedic surgeon, examined Crowley. (Tr. at 22.) Dr. Mehlhoff's notes indicate that Crowley had chronic aching pain at the level of the patellofemoral joint. The doctor documented pain in both the left and right knees. However, it appeared that there was less pain and crepitation (rubbing) in the left knee than the right knee. (Exh. AB at 2-278.) No joint line tenderness was found. Crowley was given an injection in his right knee along with medication to try to ease the pain. (Exh. AB at 2-278.) Crowley found the injection to be of "little help." And, because the medication produced side effects, Crowley refused to continue with it. (Exh. AB at 2-277.)

5. Crowley then made an appointment with Dr. Nasim A. Rana, the chief of orthopedic surgery at Lakeside. On May 15, 1987, Dr. Rana examined Crowley and recommended that surgery not be done at that time. Dr. Rana referred Crowley to Dr. James A. Hill. (Exh. AB at 2-275.) On June 1, 1987, Dr. Hill examined Crowley. He found that Crowley was experiencing pain in the anterior aspect of the knee. (Plaintiff's Exhibit K ("Exh. K") at 21.) Dr. Hill recommended that Crowley undergo a Maquet procedure on the right knee since it was the "worst" knee. (Exh. K at 21.) At the time of his recommendation, Dr. Hill discussed with Crowley the possible risks and complications of the Maquet procedure. (Exh. K at 23.) A surgery date was set but subsequently cancelled because of a scheduling conflict. (Tr. at 32.)

6. In July of 1987, Crowley saw Dr. Karzel in the orthopedic clinic. (Tr. at 32-33, 149.) Dr. Karzel examined both of Crowley's knees. He noted that Crowley was experiencing tenderness over the patellar tendon (tendon of the kneecap). The medial or lateral compartments of the knee, though, were not tender. Because Crowley was in pain when his knees were flexed and extended, Dr. Karzel recommended against the Maquet procedure. (Tr. at 101-102). Crowley protested that Dr. Hill had already recommended the procedure. (Tr. at 34.) After consulting with Dr. Hill, Dr. Karzel scheduled Maquet surgery for Crowley's right knee. (Tr. at 103-104.)

7. On August 3, 1987, Crowley was admitted to Lakeside. Both his knees were again examined. He was diagnosed as having patellofemoral arthritis in the right knee. (Exh. AB at 3-44.) The Maquet procedure along with its risks, complications and alternatives were discussed with Crowley on August 5, 1987. (Exh. AB at 3-77.) On August 6, 1987, a Maquet osteotomy was performed on Crowley's right knee. (Exh. AB at 3-74.) The procedure consisted of bringing forward the tibial tubercle (shin bone) one and one-half centimeters by inserting a one inch piece of bone, taken from a different site, underneath it. The purpose of elevating the tibial tubercle in this case was to reduce pressure on the tendon. (Tr. at 312.)

8. Crowley's leg was put in a cast following surgery. (Exh. AB at 3-73.) Four days after surgery, the cast was changed. (Exh. AB at 3-68.) At that time, redness near the wound was noticed and antibiotics were prescribed. (Exh. AB at 3-68; Tr. at 116.) A few days later a window was put in the cast to allow Crowley to practice daily wound care. (Exh. AB at 3-64; Tr. at 167.) Crowley was discharged on August 14, 1987. (Exh. AB at 3-64.) After his discharge, Crowley continued with follow-up visits to the orthopedic clinic. (Exh. AB at 2-288, 2-289.)

9. After the right knee surgery, Crowley still complained of significant pain and limitation in his left knee. (Exh. AB at 2-287.) On November 30, 1987, he was admitted to Lakeside for a Maquet procedure on his left knee. (Exh. AB at 3-134.) He was again examined by physicians at Lakeside. (Exh. AB at 3-133, 3-134.) On December 1, 1987, Dr. Bielski took a history of Crowley's left knee. (Plaintiff's Exhibit L ("Exh. L")) at 66-67.) The preoperative diagnosis was patellar femoral arthritis. (Exh. AB at 3-134.) The Maquet surgery on Crowley's left knee was performed by Drs. Karzel and Bielski on December 2, 1987. (Exh. AB at 3-123.)

10. Crowley's leg was placed in a temporary cast following surgery. (Tr. at 121.) Two days after surgery, the cast was changed. (Tr. at 121.) At that time, Dr. Karzel noted that the wound was "clean and dry." (Exh. AB at 3-117.) Crowley was then put in a permanent cast. (Tr. at 121.) He was discharged from Lakeside on December 7, 1987. (Exh. AB at 3-115.)

11. Crowley returned to the clinic on December 18, 1987. His cast was removed and deep necrosis of the skin was observed at the wound site. (Exh. AB at 3-135.) (Necrosis is dead skin produced when blood supplying oxygen is cut off. (Tr. at 366.)) Crowley was readmitted to Lakeside. (Exh. AB at 2-42.) He underwent surgery on December 21, 1987 to debride and close the wound. Toward that end, a lateral relaxing incision was attempted, (Exh. AB at 2-134), but it proved unsuccessful. (Exh. AB at 2-124.)

12. On December 24, 1987, Crowley was transferred to Hines Veterans Administration Hospital ("Hines"). (Exh. AB at 2-124.) He underwent a second surgery to debride and close the wound on December 29, 1987. (Exh. AB at 2-116.) However, a portion of the wound remained exposed. Crowley underwent further surgery on February 9, 1988. (Exh. AB at 2-181.) Crowley was discharged from Hines on March 1, 1988. (Exh. AB at 2-171.)

13. On September 15, 1988, Crowley saw Dr. S. J. Yelich at the Lakeside pain clinic. Crowley complained of pain centered around the left knee joint, medial leg and the ankle. Although he was able to walk, his left leg was stiff. (Exh. AB at 2-315.) Saphenous nerve blocks were administered to the left leg on September 23, September 30 and October 7, 1988 to combat the pain. (Exh. AB at 2-321, 2-325, 2-335.) A sympathetic chain block was mentioned, but Crowley objected to that treatment. (Exh. AB at 2-334.) As a check for infection, Crowley underwent a bone scan, gallium scan, indium scan and MRI. (Exh. AB at 1-369 to 1-373.) These tests turned up negative. (Exh. AB at 1-369 to 1-373.)

14. Still seeking treatment, Crowley revisited Dr. Chand. (Tr. at 70.) Dr. Chand performed arthroscopic surgery on Crowley's left knee on August 14, 1989, with little result. (Tr. at 71.) Crowley remains in pain. (Tr. at 72.)

15. To the extent that any of the foregoing findings of fact are deemed to be conclusions of law, they are hereby adopted as conclusions of law.

CONCLUSIONS OF LAW

I. Jurisdiction

1. Under 28 U.S.C. § 1346(b), a district court has exclusive jurisdiction over civil actions brought against the United States in which a plaintiff seeks money damages for personal injury caused by the negligent or wrongful acts or omission of any employee of the government who was acting within the scope of his office or employment.

2. Dr. Ronald P. Karzel and Dr. Robert G. Bielski were employed by the United States as treating physicians in a Veterans Administration Hospital ("VA Hospital") and acting within the scope of their employment when they diagnosed and treated Crowley. (Government's Answer at 1.)

3. Therefore, the court concludes that it has jurisdiction over this matter.

II. Claims

4. To establish negligence on the part of the physicians, Crowley must demonstrate the proper standard of care against which the defendant physicians' conduct should be measured; an unskilled or negligent deviation from that standard of care; and an injury proximately caused by the physicians' lack of skill or care. Purtill v. Hess, 111 Ill.2d 229, 95 Ill.Dec. 305, 310, 489 N.E.2d 867, 872 (1986); Borowski v. Von Solbrig, 60 Ill.2d 418, 328 N.E.2d 301, 304-305 (1975).

5. The appropriate standard of care is "that degree of knowledge, skill, and care...