Esfandiari v. US, Civ. A. No. 91-2748-LFO.

• Decision Date: 23 December 1992
• Docket Number: Civ. A. No. 91-2748-LFO.
• Citation: 810 F. Supp. 1
• Parties: Caroline ESFANDIARI, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Columbia

810 F. Supp. 1

Caroline ESFANDIARI, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. 91-2748-LFO.

United States District Court, District of Columbia.

December 23, 1992.

Thomas Fortune Fay, Washington, DC, for plaintiffs.

Mark E. Nagle, Asst. U.S. Atty., Washington, DC, for defendant.

MEMORANDUM

OBERDORFER, District Judge.

This is a medical malpractice action brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. Plaintiffs Caroline Esfandiari and Keith Arnold Weeks are the co-executors of the estate of the late Captain Harold Knox Edwards (U.S. Navy — Retired), who died on October 14, 1990 after a prostate cancer metastasized to his spine and elsewhere. The treatment of the decedent's condition by Army physicians at the Walter Reed Army Medical Center and Andrew Rader Clinic is put in issue by this lawsuit. A bench trial was held on December 1-2, 8, and 21. The following findings of fact and conclusions of law are made pursuant to Federal Rule of Civil Procedure 52.

I. FINDINGS OF FACT

A. Treatment During 1986-1987

On November 5, 1986, Captain Edwards, who was then 78 years of age, visited the Andrew Rader Clinic at Fort Myer, Virginia, complaining of a four-day history of constipation and urinary retention. He was sent to the emergency room at Walter Reed Army Medical Center for further examination. He was diagnosed with a urinary tract infection and referred to the Urology Service.

Captain Edwards was evaluated by the Urology Service on November 6, 1986. At that time, the Urology Service undertook procedures with the purpose of ruling out urinary tract infection and prostatitis as well as cancer of the prostate. A prostate biopsy and cystoscopy were performed on November 17. The biopsy was negative, but the cystoscopy revealed a one- by two-centimeter bladder tumor. A transurethral resection of the bladder tumor (TURBT) and a transurethral resection of the prostate (TURP) were scheduled for December 1986.

The TURBT was performed on December 17, 1986. The pathology on the tumor was positive for a papillary transitional cell car-cinoma of the bladder. The TURBT procedure completely and finally cured the bladder cancer. Captain Edwards was discharged from the hospital.

He was readmitted in January 1987. The TURP was performed on January 5, 1987. Pathology of the surgical debris proved positive for extensive invasive moderate to poorly differentiated adenocarcinoma consistent with prostatic primary. The "moderate to poorly differentiated" classification indicated that the cancer lesion was more aggressive than a well-differentiated lesion, requiring more aggressive treatment. The stage of the cancer was classified as "A-2," meaning that the cancer had not progressed beyond the prostate, that it was not detectable by simple palpitation, and that the cancer cell count was above the level indicative of a stage A-1 cancer.

A discharge form dated January 8, 1987 contains the following notation in Captain Edwards' handwriting in a blank captioned "Diet": "Every three months call XXX-XXXX-X ask appt. with Dr. Bishop or Moul for follow-up on bladder cancer." (Emphasis added). Drs. Jay Bishop and Judd Moul were urologists on the Walter Reed staff.

Captain Edwards returned to Walter Reed for a follow-up visit to the Urology Service on February 6, 1987. He was seen by Dr. Moul. He noted that the pathology records revealed extensive poorly differentiated cancer of the prostate. Dr. Moul recommended that Captain Edwards undergo a workup to determine whether there was any metastatic disease.

On March 2, 1987, Captain Edwards' case was presented to Walter Reed's Urology Service Tumor Board. The Tumor Board included Dr. Bishop and Dr. James McNab, a military officer who was Chief of the Radiation Therapy/Oncology Service. The Tumor Board concluded that Captain Edwards had stage A-2 prostate cancer and recommended radiation therapy.

In early March 1987, soon after the Tumor Board reached its conclusion, Dr. Bishop saw Captain Edwards at Walter Reed, apparently by appointment. Dr. Bishop informed Captain Edwards of his prostate cancer, recommended radiation therapy for the condition, and referred Edwards to Dr. McNab.

On March 11, 1987, Captain Edwards was seen by Dr. McNab pursuant to Dr. Bishop's referral. Dr. McNab testified in a videotaped deposition that he did not specifically recall any meetings with Captain Edwards or what he had said to Captain Edwards. He did recognize his signature on a form under the heading "Consultation Report." On the form he had written:

Patient seen and examined. Counseled extensively regarding nature of his malignancy and role of radiation in its management. At this point in time patient does not desire any further medical treatment for his prostate. He is content to delay treatment until he becomes symptomatic.

Dr. McNab stated that his typical consultation was one to two hours in length. When asked what advice he gave to Captain Edwards during the March 1987 consultation, Dr. McNab stated:

I can't tell from the medical records. As a matter of practice, I always give patients the choice of observation as an option in treatment. For treatment of early stage prostate cancer, there are multiple approaches. Radiation is only one of these. Alternatives include radical prostatectomy, castration, estrogen administration, various other forms of hormonal therapy. (emphasis added).

Upon being asked whether it was possible that he advised Captain Edwards that radiation therapy was not necessary, Dr. McNab replied: "I doubt that. I — again, I give patients an extensive explanation as to what the disease is, what the risk and benefit of treatment are and then the patient really has the choice." Dr. McNab further stated that he "would have told Captain Edwards what the likely outcome of radiation treatment would have been and that for high grade poorly differentiated tumors the ultimate cure rate is only 60 percent with treatment." He also testified regarding the option of radiation treatment as opposed to simple observation:

My understanding then is as it is today, that there is no difference in the ultimate survival rate with or without radiation treatment. The value of radiation is to keep the urinary tract open. This was a man who had just required a transurethral resection of his prostate. The only benefit of giving him radiation would have been to preserve potency of the urinary tract. Treatment would not have prevented subsequent development of metastatic disease.

In addition, Dr. McNab testified that the physicians at Walter Reed "never told a patient that they — that nothing needed to be done. At a very minimum periodic follow-up, medical examination was important. The burden for obtaining follow-up appointment was the patient's." Dr. McNab stated that he was "sure that after seeing Mr. Edwards in March 1987 that he would have ensured that he had some follow-up appointment."

Captain Edwards, on de bene esse deposition, recounted his March 1987 meeting with Dr. McNab in the following way:

He said, "A good doctor is always going to protect his patients," and then he told me the case history they had known on it sic, that that was normal to have those cells in there, that if those Wild Indian cells had been going to cause me cancer, I would have been in pain a hell of a long time before. He had no objection to giving me the treatment or sending me to Fairfax or this hospital, you can get it every one the same, and he said, "We'll burn that prostate to a cinder," and he said, "You will probably lose hair and experience some nausea and that sort of thing, but if you want to, we are perfectly happy to do it." He just thought it was unnecessary.

On April 29, 1987, Captain Edwards returned to the Walter Reed Urology Service and was again seen by Dr. Bishop. Dr. Bishop advised Captain Edwards that he was suffering from prostate cancer — which he termed "wild Indian cells," according to Captain Edwards' deposition testimony — and recommended radiation therapy in an emphatic way, again referring Captain Edwards to Dr. McNab for that purpose.

Captain Edwards then, on April 29, 1987, went to see Dr. McNab in Radiation/Oncology for the second time and informed him of Dr. Bishop's recommended treatment. Dr. McNab offered to provide the radiation therapy and suggested the alternative of receiving the radiation therapy at Fairfax Hospital. According to Captain Edwards' testimony, however, Dr. McNab reiterated "pretty much the same thing both times, except much stronger the second time.... He wasn't saying `Don't do it.' He just said, `All the evidence I have, including this outstanding doctor, says why go through all that pain?'" In addition, there is no evidence that Dr. McNab took any step following the April 29 visit to insure, by scheduled follow-up, a specific appointment or recommended sequence of appointments either for radiation or for periodic observation for prostate cancer.

At some point after the consultations of April 29, Captain Edwards filled out and returned a "Tumor Registry Questionnaire" sent to him from Walter Reed. A typewritten notation on the questionnaire bearing the initials "H.K.E." (Harold K. Edwards) reads: "Radiologist ready to treat. However said cancer cells common in older male prostates. Mine probably there for years. Would have caused trouble long ago if intended. Radiologist at another hospital said same.... Elected not to take it. Am solely responsible for any consequences." In explaining this last sentence on the Questionnaire, Captain Edwards testified that he had felt that "this officer has to be protected" and that he had wanted to make "a very clear statement that any decision made was my decision." When asked to what extent his decision regarding treatment was based on Dr. McNab's advice, Captain Edwards responded: "I would say 100 percent, plus, of course, the knowledge of my own family's case history...