Jackson v. United States
| Decision Date | 30 December 2019 |
| Docket Number | Case No. 1:18 CV 9 ACL |
| Parties | COYVELL JACKSON and BRENDA JACKSON, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court following a one-day bench trial, upon consent of the parties pursuant to 28 U.S.C. § 636(c). The action was filed pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 et seq. Plaintiff Coyvell Jackson claims that the Defendant, through its agency the Department of Veterans Affairs, was negligent in failing to timely diagnose prostate cancer. Plaintiff Brenda Jackson, Mr. Jackson's wife,1 brings a derivative claim for loss of consortium. Together, the couple requests a total of $12 million in damages. The Defendant argues that application of the Missouri damage caps for noneconomic damages in medical malpractice actions limits the Jackson's to a combined Judgment of not more than $1,511,480; that being a total of $762,652 for Coyvell Jackson's economic losses and $748,828 for the couple's noneconomic damages. If applicable, in addition to restricting Jackson's noneconomic losses to $748,828, the Missouri damage cap prevents an award of additional damages to Mrs. Jackson for loss of consortium. The $1,511,480 figure is in fact the maximum damage award permitted by the Missouri statutes in effect beginning August 28, 2015.
Having considered the pleadings, trial and deposition testimony, and exhibits, the Court finds in favor of the Plaintiffs in the amount of $5,712,402. The following findings of fact and conclusions of law are entered in support of the Judgment, in accordance with Rule 52 of the Federal Rules of Civil Procedure.
The parties submitted a detailed Joint Statement of Uncontroverted Facts prior to trial. (Doc. 34.) At trial, Plaintiffs Coyvell Jackson and Brenda Jackson testified. Plaintiffs also presented the deposition testimony of VA treating physician Dr. Richard Tipton; private treating urologist and expert Dr. Arnold Bullock; and economist Rebecca M. Summary, Ph.D. Defendant retained no experts and presented no witnesses at trial.
Coyvell Jackson was born in Illinois on May 5, 1963. He lived mostly in California and Missouri as he grew up. Jackson joined the Navy in 1981 and received an honorable discharge in 1985 after having served in Beirut, the Philippines, and Korea. Jackson has an undergraduate degree in Psychology. He lived and worked in California for many years. He has five adult children—three whom he adopted and two biological children.
In 2008, Jackson's mother developed health problems and he returned to Cape Girardeau, Missouri to help her. Shortly thereafter, Jackson reconnected with his high school sweetheart, Brenda, who had returned to the area to visit family and friends. By 2010, the couple married. Their love, mutual respect, and general affection for one another was apparent in the courtroom.
Jackson worked as the Treatment Family Home Coordinator for the Community Counseling Center. In that role, he helped transition children from the residential setting to a traditional family setting. He also educated the families on how to deal with anticipated behavioral issues. Jackson loved his job and expected he would have worked there into his seventies. Mrs. Jackson was the head baker at the casino in town. She was passionate about baking and enjoyed her work.
Together, the Jacksons enjoyed attending church and volunteering for various programs in their church. For instance, they provided marriage counseling to others. They were also involved with "Man Camp," a program for young boys with absent fathers that offered the boys an opportunity to interact with positive male figures. The couple were also physically active together. They often enjoyed going on walks and travelled. Another important part of their lives was entertaining and socializing with others. In addition, the couple enjoyed frequent marital intimacy, including sexual intercourse and affectionate behavior.
When Jackson returned to Missouri in 2008, he began to receive his routine medical care at the VA Medical Center in Poplar Bluff, Missouri, and the VA Community Based Outpatient Clinic in Cape Girardeau (hereinafter "VA").
In 2009, Jackson began having PSA testing done with his regular physical exams at the VA. PSA blood testing is a blood test used primarily to screen for prostate cancer and it measures the amount of prostate-specific antigen (PSA) in a person's blood. PSA is a protein produced by both cancerous and noncancerous tissue in the prostate, a small gland that sits below a man's bladder. The reference range used by the VA for PSA levels in the blood is 0 to 4; a score above 4 is considered high.
Jackson's medical records from the VA show that his PSA was screened on seven separate occasions between May of 2009 and December 4, 2015, except that no PSA testing was done between 2011 and 2013. During a Compensation and Pension Examination (CPE) with a VA claim's adjuster, on February 23, 2016, Jackson was advised that he may have prostate cancer since his most recent PSA level was over 10. Prior to this news, Jackson was unaware what a PSA level meant. Jackson was then diagnosed with prostate cancer on April 28, 2016. The following paragraphs summarize the VA's treatment of Jackson prior to his cancer diagnosis.
Jackson's PSA level in May 2009 was 3.87, and in November 2010 was 3.68. These levels would be considered elevated or high normal, but still within normal limits. Typically, in a patient his age, Jackson should have been retested on a yearly basis. This monitoring did not take place in that Jackson's PSA levels were not monitored or tested from 2010 until 2014.
After November 2010, Jackson's PSA was not tested again until July 9, 2014, at which time it had risen to 7.73. This level is considered high and was flagged by the VA system as abnormal and high. Jackson's PSA was retested on July 16, 2014, showing a level of 8.75. Again, this was flagged by the VA system as high. A course of antibiotics was ordered to rule out infection as the cause of the elevated PSA. Despite two elevated PSA test results, Jackson was not referred to a urology specialist to evaluate whether he had prostate cancer. Jackson was again tested on August 18, 2014, with a PSA level of 8.02, and a urology consult was requested on that date.
Jackson was seen by VA urologist Dr. Madduri in October of 2014. Based on the amount of time since his last PSA check, the VA system required another round of antibiotics and a recheck of the PSA level rather than immediate biopsy and ruling in or out of prostate cancer. The October 20, 2014 PSA was again high at 8.35. Even though Jackson's PSA level remained high after antibiotics had been given, a biopsy was not performed and Jackson's referral for additional testing for cancer was not completed by the VA providers. More than one year passed before Jackson's next PSA test on December 4, 2015, at which time his PSA level had risen to more than 10.
Earlier in 2015, on March 3, Jackson presented to the VA with complaints of right hip pain. On June 2, 2015, Jackson presented to the VA with complaints of low back pain. Following the reports of right hip and low back pain, an additional PSA check was not ordered and there was no further workup to rule out prostate cancer.
On June 15, 2015, Jackson presented to the VA with complaints of decreased libido. His treating physician, Dr. Richard Tipton, noted "he does have an elevated PSA, it has been up around 8." Dr. Tipton also noted Jackson's high PSA "has never been evaluated." Although this observation was made, no further PSA testing was ordered, and no further workup was done to rule out prostate cancer.
On December 4, 2015, Jackson was seen at the VA by Dr. Tipton for a groin rash. Dr. Tipton's progress notes include a comment that Jackson "has also had an elevated PSA in the past year and did a month of Cipro but has never been evaluated past this to include a possible biopsy." There is also an addendum to this note on December 9, 2015, which indicates a need for a referral to a urological specialist. A referral to Dr. Sam Stokes, a civilian urologist, was approved on January 26, 2016. Jackson's PSA level was checked again on February 15, 2016, with a result of 10.52.
Jackson saw Dr. Stokes on March 2, 2016, who immediately ordered a biopsy of the prostate. The results, returned on April 28, 2016, indicated Jackson had prostatic adenocarcinoma with a Gleason's Score of 6 (3+3). As a result of this cancer diagnosis, Jackson's care was referred to Dr. Arnold Bullock, a urological surgeon at Washington University in St. Louis, Missouri, for further work-up and treatment. Dr. Bullock ordered the biopsy sample retested by Washington University pathologists in June 2016, and determined that it in fact showed a prostatic adenocarcinoma with a Gleason's Score of 7 (3+4), necessitating surgery. On August 25, 2016, Dr. Bullock performed a radical prostatectomy on Jackson.
Following his prostatectomy, Jackson experienced stress urinary incontinence requiring daily use of four to five pads. Additionally, Jackson had post-operative erectile dysfunction, which did not respond well to Viagra. Jackson continued to be followed by Dr. Bullock and his PSA was elevated on recheck in March of 2017. In light of the findings, a referral to radiation oncology for salvage radiotherapy was made. As a result of the increased PSA and concern of a reoccurrence of cancer, Jackson then had external beam radiation treatment to the prostatic fossa and pelvis. He was additionally treated with androgen deprivation therapy to improve progression-free survival as well as overall survival. He was scheduled for six to seven weeks of radiation treatment and hormone therapy. In approximately October...
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