Jackson v. U.S., No. 3:04-CV-444-J-32HTS.
| Decision Date | 31 January 2006 |
| Docket Number | No. 3:04-CV-444-J-32HTS. |
| Citation | 469 F.Supp.2d 1068 |
| Parties | Henrietta E. JACKSON, etc., Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Donald Maximilian Maciejewski, Zisser, Robison, Brown, Nowlis & Maciejewski, P.A., Jacksonville, FL, Jamal Alsaffar, The Archuleta Law Firm, Michael Archuleta, Michael Archuleta Law Firm, Austin, TX,for Plaintiff.
Ronnie S. Carter, U.S. Attorney's Office, Jacksonville, FL, Michael Rubinstein, U.S. Attorney's Office, Tampa, FL, Michael I. Coulson, Smith & Coulson, LLP, Jacksonville, FL, for Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On December 14, 2002, Willie Jackson, Jr., tragically died after undergoing an Endoscopic Retrograde Cholangiopancreatography ("ERCP"), which is a procedure used to diagnose and treat recurrent pancreatitis. Mr. Jackson's wife, Henrietta Jackson, brought suit, in her individual capacity and as the personal representative of Mr. Jackson's estate, against the United States of America under the Federal Tort Claims. Act ("FTCA"), claiming that: (1) Javaid Shad, M.D., an employee of the Department of Navy and the United States, fell below the standard of care when he elected to perform an ERCP; (2) Dr. Shad negligently performed the ERCP; (3) Dr. Shad failed to obtain Mr. Jackson's informed consent to perform the ERCP; and (4) various Department of Veterans Affairs ("VA") healthcare providers were negligent in continuing to prescribe sulfonamide drugs in light of Mr. Jackson's history of pancreatitis. At trial, plaintiff withdrew all claims against the VA. The remaining claims were tried before the Court sitting without a jury from November 14-17, 2005. Following, the submission of supplemental proposed findings of fact and conclusions of law by both sides, the Court heard closing arguments on December 9, 2005, and, after careful consideration of the record and relevant law, this case is ready for a decision pursuant to Rule 52(a), Federal Rules of Civil Procedure.
The parties agree that Mr. Jackson died as a result of the ERCP procedure performed by Dr. Shad on December 12, 2002. The parties further agree that Dr. Shad performed the procedure within the scope of his employment with the Department of Navy and the United States. Dr. Shad performed the ERCP to diagnose and potentially treat Mr. Jackson's pancreatitis.2 When a patient presents with pancreatitis, if a physician determines to go beyond simply monitoring the patient to see if the situation resolves itself, there are multiple diagnostic tools available. A physician can perform an ultrasound or CAT scan, or choose from three more invasive procedures: ERCP, Endoscopic Ultrasound (EUS), or Magnetic Resonance Cholangiopancreatography (MRCP).
An ERCP is an invasive procedure performed with an endoscope (a long flexible lighted tube). The endoscope is inserted through the mouth, down the esophagus through the stomach, and into the duodenum, so that the pancreatic ducts and billary tree can be visualized. The physician then uses a small cannular device that goes through the scope and injects dye into the common bile and pancreatic ducts to look for various problems or abnormalities.3
An EUS is performed by passing an endoscope down the esophagus through the stomach and into the small intestine to the area of examination. This particular endoscope is equipped with a noninvasive small ultrasound transducer that emits sound waves that create a viewable image of the digestive tract. An EUS is less invasive than an ERCP.
An MRCP is a special type of MRI (magnetic resonance imaging) technology that highlights the pancreatic and bile ducts. This procedure is performed without injections of contrast, and is less invasive than EUS and ERCP. However, MRCP does not provide the detailed view of the pancreas or pancreatic ducts that either the ERCP or EUS does.
Approximately ninety to ninety-five percent of pancreatitis cases are caused by gallstones, alcohol use, or are considered idiopathic.4 The remaining five to ten percent of cases are attributable to drug induced pancreatitis, microlithiasis,5 pancreatic divisum,6 cancers or tumors, infection, and various other abnormalities.
In July 1995, Mr. Jackson presented to the Naval Hospital Jacksonville with abdominal pain and elevated amylase7 levels. At the time of this admission, Mr. Jackson was taking the anti-hypertension medication Furosernide.8 Furosemide (Lasix) is a sulfonamide, or a sulfa based drug, which can cause pancreatitis in patients who are allergic to sulfa based drugs. The Navy physicians diagnosed Mr. Jackson with drug induced pancreatitis secondary to Lasix, discontinued the Lasix, and observed Mr. Jackson for forty-eight hours. Mr. Jackson's abdominal pain ceased, his amylase levels stabilized, and the pancreatitis resolved. The, doctors discharged Mr. Jackson with a diagnosis of drug induced pancreatitis secondary to Lasix. Mr. Jackson did not experience another clinical episode of pancreatitis for the next seven years, or until July 2002.
In April 1996, physicians at the Naval Hospital Jacksonville prescribed Mr. Jackson Bumetanide (Bumex). Similar to Lasix, Bumex is a sulfa based diuretic designed to treat hypertension. Mr. Jackson was continually on this medication until April 2000, a four year period, without any known episodes of pancreatitis.9
In August 2001, physicians at the Naval Hospital Jacksonville prescribed Mr. Jackson Hydrochlorothiazide (HCTZ), another sulfa based diuretic, to treat hypertension. Mr. Jackson was prescribed HCTZ for the following eleven months, until approximately July 2002.10
In July 2002, Mr. Jackson presented to MacDill Air Force Base Hospital in Tampa, Florida, with abdominal pain, and was referred to Tampa Memorial Hospital where it was determined he had elevated pancreatic enzyme levels. At the time of his admission, Mr. Jackson was taking HCTZ. The Tampa Memorial physicians diagnosed Mr. Jackson with drug induced pancreatitis, this time due to HCTZ. The physicians admitted Mr. Jackson to the hospital for three days and discontinued the HCTZ prescription. Mr. Jackson's abdominal pain resolved, his pancreatic enzyme levels declined, and he was discharged with a diagnosis of drug induced pancreatitis secondary to HCTZ.
On September 22, 2002, Mr. Jackson presented to the Naval Hospital Jacksonville emergency room with abdominal pain and elevated pancreatic enzyme levels. The hospital records denote that Mr. Jackson had been experiencing abdominal pain for three weeks, but that his symptoms had worsened that day. The physicians gave Mr. Jackson Mylanta, which resolved the problem somewhat, and discharged him with a prescription for Percocet, a painkiller. Mr. Jackson was referred for a follow-up appointment with Dr. Javaid Shad, the board certified head of gastroenterology at Naval Hospital Jacksonville; his appointment was scheduled for October 16, 2002.
On October 15, 2002, one day before Mr. Jackson's appointment with Dr. Shad, Mr. Jackson had lab work taken, which showed his pancreatic enzyme levels (amylase and lipase) were normal.11 Mr. Jackson also underwent an ultrasound and CAT scan. The following day, after examining Mr. Jackson, Dr. Shad noted that the etiology of the pancreatitis was not "completely clear",12 but that there did not appear to be any evidence of gallstones on the ultrasound or CAT Scan; Dr. Shad further noted that his differential diagnosis for Mr. Jackson "include[d] microlithiasis, drugs, pancreatic divisum or idiopathic."13 Based on his examination and findings, Dr. Shad determined to order further laboratory testing, and a subsequent ERCP to further examine the pancreatic duct.14 Dr. Shad scheduled Mr. Jackson to return in a week to review the test results and further discuss an ERCP.
On November 6, 2002, Mr. Jackson returned to Dr. Shad. His amylase and lipase levels were normal, and Dr. Shad noted that Mr. Jackson "continue[d] to do well."15 Dr. Shad further noted his impression that Mr. Jackson had experienced "recurrent pancreatitis most likely due to drugs," but that he wished to further evaluate with an ERCP, on December 12, 2002.16
Dr. Shad's decision to perform the ERCP implicates the chronology of Mr. Jackson's Bumex17 prescription, which was a source of great debate at trial:18
The government pharmacy and hospital records concerning Mr. Jackson's 2002 prescription for Bumex do not conclusively elucidate the precise time frame during which Mr. Jackson was taking Bumex that year. The medical records in evidence show that Mr. Jackson was prescribed Bumex on April 26, 2002; the prescription was for a thirty day supply and five refill.19 However, it is not entirely clear whether Mr. Jackson was taking Bumex from April 26, 2002 through September 22, 2002, when he went to the emergency room, or whether Mr. Jackson was prescribed Bumex on April 26, 2002, and did not fill it fox the first time until September 7, 2002, which is denoted as the "Last Fill Date" on the pharmacy record.20
The government posits that the notation on this pharmacy record that the "Last Fill Date" was September 7, 2002, and that there were 5 refills remaining, shows Mr. Jackson received the Bumex prescription on April 26, 2002, but did not fill it for the first time until September 7, 2002, which is purportedly after the onset of Mr. Jackson's September 2002 pancreatitis. Plaintiff argues that the logical interpretation of the record is that Mr. Jackson was continually on Bumex from April 26, 2002 until September 22, 2002, when he presented to Naval Hospital Jacksonville with pancreatitis.21 The Court is unable to determine which of these...
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..."codif[ies] the negligence standards governing the performance of unnecessary diagnostic procedures." Jackson v. United States, 469 F. Supp. 2d 1068, 1082 (M.D. Fla. 2006). In turn, section 766.111(3) permits a plaintiff who "prevails in a suit brought against a health care provider predica......