Kennedy v. US, Civ. A. No. 88-1922.

• Decision Date: 30 July 1990
• Docket Number: Civ. A. No. 88-1922.
• Court: U.S. District Court — Western District of Louisiana
• Parties: Mrs. Myra Kennedy, wife of/and Jack KENNEDY v. UNITED STATES of America.

750 F. Supp. 206

Mrs. Myra Kennedy, wife of/and Jack KENNEDY v. UNITED STATES of America.

Civ. A. No. 88-1922.

United States District Court, W.D. Louisiana, Shreveport Division.

July 23, 1990.

As Corrected July 30, 1990.

Lawrence S. Kullman, Lewis & Kullman, New Orleans, La., Robert C. Thomas, Natchitoches, La., for plaintiffs.

Asst. U.S. Atty. John R. Halliburton, Shreveport, La., for defendant.

MEMORANDUM OPINION

STAGG, Chief Judge.

This is an action for compensatory damages for personal injuries allegedly caused by the medical malpractice of personnel of the United States government at Barksdale Air Force Base, Bossier City, Louisiana. Plaintiffs, Myra Kennedy and her husband, Jack Kennedy, filed suit under the Federal Tort Claims Act (hereinafter "FTCA"), 28 U.S.C. §§ 2671, et seq., alleging negligent failure to diagnose Mrs. Kennedy's breast cancer soon enough so that her cancer might have been cured. The case was tried to the bench on April 12, 1990. Pursuant to the stipulations, depositions, testimony and post-trial briefs, the court hereby makes the following findings of fact and conclusions of law.

Mrs. Kennedy was born on October 20, 1941, and is now 48 years old. She has been married but once, and then to Jack Kennedy, also a plaintiff herein. At all material times, Mr. Kennedy was employed by the United States Air Force with the rank of Chief Master Sergeant and was assigned to Barksdale Air Force Base, until his retirement from the Air Force on February 19, 1987. Like many women, Mrs. Kennedy periodically performed breast self-examinations for the purpose of detecting lumps in her breasts. Mrs. Kennedy, in fact, found a lump in her left breast on April 19, 1983. Two days later, she presented to the Family Practice Clinic at Barksdale for evaluation of her condition.

Mrs. Kennedy's primary physician at Barksdale was Dr. Dan LaFleur. After waiting over two hours to see Dr. LaFleur, a nurse told Mrs. Kennedy that Dr. LaFleur had been called to the emergency room, but would see Mrs. Kennedy as soon as possible. When Mrs. Kennedy asked if she could see someone else, the nurse told Mrs. Kennedy that she could see Maj. Brenda J. La Orange. Major La Orange was not a doctor, but a primary care nurse practitioner.¹

Major La Orange examined Mrs. Kennedy's left breast and confirmed the presence of a small lump. Major La Orange then called in two doctors from the clinic who also examined Mrs. Kennedy's breast.² The doctors advised Mrs. Kennedy not to worry, but instructed her to get a mammogram to rule out cancer. Major La Orange's notations on plaintiff's medical records indicate that Major La Orange was unable to find the borders of the lump and, therefore, unable to measure the lump. Mrs. Kennedy was referred to a private hospital for a mammogram. No one said anything to Mrs. Kennedy about monitoring the lump or returning to see a doctor.³ She was told, however, that if she needed to know anything Dr. LaFleur would get in touch with her. The independent radiologist who conducted the mammogram told Mrs. Kennedy that the mammogram looked fine and that she should go home and not worry.

On August 4, 1983, Mrs. Kennedy returned to the Barksdale Clinic for a P.A.P. Smear and endometrial biopsy to evaluate an unrelated gynecological condition. There is a substantial conflict in the evidence regarding whether Mrs. Kennedy's breasts were examined during this visit. According to Dr. LaFleur's records, a breast examination was done, the result of which was normal. The records also indicate that a negative mammogram report was reviewed. Medical records do not indicate that any additional treatment or follow-up was recommended. Dr. LaFleur testified that he did not see or evaluate Mrs. Kennedy after August 4, 1983.

Mrs. Kennedy, on the other hand, testified unequivocally that no breast examination was performed by Dr. LaFleur on August 4, 1983. According to Mrs. Kennedy, she went to see Dr. LaFleur because of vaginal bleeding and did not mention her breast, as she had been told not to worry about the lump. This conflict in testimony is substantial, but, for several reasons, must be resolved in favor of Mrs. Kennedy. First, Mrs. Kennedy had an independent recollection of the events surrounding her examination and treatment on this particular day. Dr. LaFleur did not. Second, Dr. LaFleur's notations on the medical records for this date are nearly illegible and, in the court's opinion, ambiguous. Third, the evidence indicates that the lump was malignant in April of 1983 and continued to grow larger over time. This is inconsistent with the notion that the lump had gone away by August 4, 1983. Finally, the court believes that Dr. LaFleur's testimony that a breast examination took place may have been influenced by his awareness that such an examination should have been performed.

Mrs. Kennedy continued to do breast self-examinations. On August 14, 1984, she returned to the Barksdale Clinic, complaining that the lump had grown even larger. She was examined by Dr. Stanley Jones, who found a lump in the same location noted earlier by Major La Orange. The lump was described as a 2×3 centimeter freely-movable, non-tender mass near the left nipple. In a clear deviation from the standard of care applicable in evaluating breast lumps,⁴ Dr. Jones did not order a biopsy; instead, he ordered a repeat mammogram at an independent institution, the result of which was negative. Mrs. Kennedy was again sent home and told not to worry. Dr. Jones dismissed the lump as fibrocystic disease. Although the medical records indicate that Mrs. Kennedy was told to return in six months, she did not return until October 23, 1985. Mrs. Kennedy had no independent recollection of Dr. Jones telling her to return, as indicated in the medical records.

It is clear that Mrs. Kennedy returned to the Clinic on October 23, 1985, because her breast had started to crease toward the lump, and the lump was getting larger. She was again examined by Dr. Jones. After an initial examination, Dr. Jones left the room to consult with a surgeon, Dr. Larry Killebrew. Dr. Killebrew immediately suspected that the lump was malignant. He performed a biopsy three days later, confirming the malignancy in Mrs. Kennedy's left breast. Dr. Killebrew then performed a modified radical mastectomy on the left breast on November 1, 1985. Unfortunately, Mrs. Kennedy's cancer had metastasized prior to the surgery.

Following the mastectomy, Mrs. Kennedy continued to be monitored by physicians at the Barksdale Clinic until February, 1988, when a routine chest x-ray showed a nodule in the upper lobe of her left lung. Mrs. Kennedy was referred for consultation to Dr. James Ciaravella. Dr. Ciaravella admitted Mrs. Kennedy to Schumpert Medical Center in Shreveport, Louisiana, for evaluation on February 29, 1988. A bone and CAT scan were performed, which indicated that Mrs. Kennedy breast cancer had metastasized to her sternum. The presence of cancer was confirmed on March 3, 1988 following an open sternal biopsy. Pathologists who examined the biopsy sample taken from Mrs. Kennedy's sternum compared the sample to the pathological slide taken in connection with her breast biopsy and confirmed that the cancer in the sternum was, in fact, a metastasis of Mrs. Kennedy's original breast cancer. She was next examined by Dr. Christopher McDonald on March 3, 1988, a specialist in the field of medical oncology. Dr. McDonald also determined that Mrs. Kennedy probably had recurrent carcinoma of the breast with metastasis to the sternum and lung. He prescribed for Mrs. Kennedy a hormonal chemotherapy agent, Tamoxifen, which has continued to this date. She also received a course of radiation therapy under the care of Dr. Stephen Hightower to relieve pain in her sternum. Additionally, she received six courses of adjuvent chemotherapy administered over a four-week period under the supervision of Dr. McDonald. In September of 1988, Mr. and Mrs. Kennedy moved to Pennsylvania, where Mrs. Kennedy has been under the care of Dr. Frederick Kass. As mentioned, Dr. Kass has continued to treat Mrs. Kennedy's cancer with Tamoxifen. Although her cancer is in remission, such remission is temporary. The evidence is clear that Mrs. Kennedy's breast cancer will, in the not-too-distant future, result in her death.

Under the FTCA, the United States is liable in the same manner and to the same extent as a private individual under like circumstances. 28 U.S.C. § 2674; Sewell v. United States, 629 F.Supp. 448, 451 (W.D.La.1986). The appropriate law to follow in determining liability under the FTCA is the law of Louisiana, where the negligent act is alleged to have occurred. Sewell, supra. The controlling Louisiana provisions are found in La.Rev.Stat. 9:2794, which provides, generally, that in an action based on the malpractice of a physician, the plaintiff has the burden of proving: (1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians licensed to practice in the State of Louisiana and actively practicing in a similar community or locale and under similar circumstances;⁵ (2) that the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill; and (3) that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

Louisiana law further provides that every person is responsible, not only for damages occasioned by his own act, but also for damages caused by the acts of persons for whom he is answerable. La. Civ.Code art. 2317. Under Louisiana law, an employer is responsible for the damages occasioned by his employees in the exercise of their duties. La.Civ.Code art. 2320. Louisiana courts apply a duty-risk analysis in assessing liability...