Lemke v. United States

• Decision Date: 23 February 1983
• Docket Number: Civ. No. A3-81-112.
• Citation: 557 F. Supp. 1205
• Parties: William P. LEMKE and Bernadine B. Lemke, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of South Dakota

557 F. Supp. 1205

William P. LEMKE and Bernadine B. Lemke, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. No. A3-81-112.

United States District Court, D. North Dakota, Southeastern Division.

February 23, 1983.

Reed K. McKenzie and Mark Hallberg, Hvass, Weisman & King, Ctd., Minneapolis, Minn., for plaintiffs; Ward D. Briggs, Aarestad & Briggs, Ltd., Fargo, N.D., of counsel.

Lynn E. Crooks, Asst. U.S. Atty., Rodney S. Webb, U.S. Atty., Fargo, N.D., for defendant.

MEMORANDUM OF DECISION AND ORDER FOR JUDGMENT

BENSON, Chief Judge.

This is an action under the Federal Tort Claims Act in which negligence in the providing of medical treatment by agents and employees of the Veterans Administration Medical Center in Fargo, North Dakota is alleged. Plaintiff William P. Lemke seeks monetary damages for permanent injury and disability to his left recurrent laryngeal nerve and left vocal cord. Plaintiff Bernadine B. Lemke, the wife of William Lemke, seeks monetary damages for the loss of her husband's consortium as a result of Mr. Lemke's injuries.

FINDINGS OF FACT

The plaintiffs in this case, a husband and wife, are William P. Lemke and Bernadine B. Lemke. They reside at Route 3, Fergus Falls, Minnesota. The defendant is the United States of America, acting through its agents and employees at the Veterans Administration Hospital at Fargo, North Dakota.

On December 14, 1979 Mr. Lemke, a contract machinery hauler involved primarily in long distance driving, was admitted to Overlake Hospital in Bellevue, Washington, with a history of recurrent and increasingly severe chest discomfort. A coronary angiography performed while Mr. Lemke was a patient at Overlake Hospital revealed a 95% obstruction of the right coronary artery with minimal disease in the anterior descending and circumflex coronary arteries. Left ventricular function was normal. Mr. Lemke was discharged from Overlake on December 19, 1979 to return home to Fergus Falls, Minnesota. The physicians at Overlake had recommended that Mr. Lemke consider having coronary bypass surgery, primarily because his occupation took him away from immediate access to medical care.

Mr. Lemke flew home and, after consulting with his family physician, was referred to the Veterans Administration Hospital in Fargo, North Dakota. He was admitted to the VA Hospital on January 7, 1980. While hospitalized, a four vessel angiogram was performed on Mr. Lemke. The results of this test were interpreted by the doctors at the VA Hospital as indicating that Mr. Lemke was suffering from occlusive disease of the left and right carotid arteries. Carotid occlusive disease is a condition where plaque builds up on the walls of the carotid arteries, reducing the amount of blood flowing through them. The angiogram revealed 85% narrowing of the left carotid artery and approximately 70% narrowing on the right. The carotid arteries are the principal vessels supplying blood to the head and neck. It was believed by the doctors at the VA Hospital that this narrowing of the carotid arteries was causing Mr. Lemke's blurred vision, headaches, numbness and weakness.

Dr. George Iwen, a thoracic-cardiovascular surgeon on the VA Hospital's Surgery Service, examined Mr. Lemke and recommended that Mr. Lemke's condition be treated by bilateral endarterectomy. An endarterectomy is a surgical procedure where the plaque from the inside of the carotid arteries is removed, thereby increasing the arteries' blood flow capacity.

Prior to surgery, Dr. Iwen informed Mr. Lemke of risks associated with having surgery and risks associated with not having surgery. These risks were also discussed somewhat with Mrs. Lemke. Mr. Lemke was informed there was a chance he may suffer a stroke during surgery as a result of decreased blood supply to the brain or a clot travelling to the brain, and that such a stroke might cause paralysis in one half of his body. Mr. Lemke was also told if he were not to have the surgery, there was a 30% chance over the next five years that he would either suffer a stroke, continue to have the same symptoms, or die. Mr. Lemke was not informed of other risks associated with the procedure. Other risks include post-operative bleeding, hypoglossal nerve damage resulting in partial tongue paralysis, and recurrent laryngeal nerve damage causing hoarseness. Dr. Iwen was aware of these additional risks, although he had no experience with any of them in his prior surgeries. Dr. Iwen did not discuss these risks with Mr. Lemke because cranial nerve damage is not a usual risk, and doctors do not normally warn of all conceivable risks. Patients are not normally warned of the possibility of nerve damage resulting from an endarterectomy.

The technique employed in performing an endarterectomy is fairly standard. An incision is made between muscles in the neck. The carotid sheath is opened and the carotid artery is separated from the vagus nerve and the jugular vein. The carotid artery is clamped to prevent blood flow or, in the alternative, a temporary carotid shunt is used. An incision is then made in the artery, the plaque is cleaned out, and finally the artery is closed. The clamps or shunt are removed and the incision in the neck is also closed.

Dr. Iwen performed an endarterectomy on Mr. Lemke's left carotid artery on January 22, 1980. He employed the above procedure, including the use of a shunt. He observed nothing peculiar about Mr. Lemke's anatomy in the operative area or about the location of the nerves adjacent to the operative site. Additionally, nothing unusual occurred during the operation. Following the January 22, 1980 surgery, Mr. Lemke noticed that his voice was hoarse and that his ability to speak at a normal volume was substantially reduced. His physicians initially believed that his voice would return to normal and that the hoarseness had been caused by the placement of the endotracheal tube through which the general anesthesia had been administered. However, his voice did not improve. Mr. Lemke's physicians then surmised that the voice problem was due to a nerve injury which should heal itself after approximately six weeks.

Mr. Lemke was discharged from the VA Hospital on February 2, 1980. His voice still had not improved. He was concerned about the endarterectomy that was to be performed on his right carotid artery and discussed this concern with Dr. Iwen. Mr. Lemke was concerned that a second operation might further damage his voice. Dr. Iwen told him that the second surgery was necessary. Additionally, Mr. Lemke was advised that the occurrence of nerve damage during the first operation resulting in voice loss was unusual, and therefore the likelihood of a recurrence was small. Dr. Iwen made these statements in an effort to allay Mr. Lemke's fears. Based upon these statements made by Dr. Iwen, Mr. Lemke consented to the endarterectomy on his right carotid artery.

The second endarterectomy was performed on April 9, 1980. Immediately after the operation, Mr. Lemke's voice was stronger. However, it returned to a whisper within a short time. He was discharged from the hospital on April 14, 1980, and not seen by Dr. Iwen after that.

Because his voice did not improve, he was evaluated by Dr. Arvid Johnsen, an otolaryngologist at the Oakdale Ear, Nose and Throat Clinic in Minneapolis on September 4, 1980. A physical examination revealed that he suffered left vocal cord paralysis characteristic of loss of innervation by the recurrent laryngeal nerve. The left vocal cord paralysis was confirmed by Dr. Markus Wolfensberger at the Minneapolis VA Hospital ear, nose and throat clinic. Mr. Lemke entered the VA Hospital in Minneapolis on January 26, 1981. On January 27, 1981, while he was under local anesthesia, teflon was injected into the left true vocal cord. During the procedure his voice was continuously monitored. After the procedure, which was frightening to him, it was necessary that his mouth remain open for two weeks. He has since had nightmares about the teflon injection procedure.

As a result of the teflon injection procedure, however, Mr. Lemke's voice quality has improved. After a followup visit to the ear, nose and throat clinic at the VA Hospital, he was again evaluated by Dr. Johnsen on November 15, 1982. Mr. Lemke's voice quality is described as "gurgly" and voice production is adversely affected by his attempts to speak loudly and by backward motion of the head. Although he has no discomfort in the laryngeal area and no difficulty swallowing, his voice quality is not expected to improve with time. Additional teflon injections might improve his voice, but the possibility exists that they would be of no benefit or would cause other laryngeal problems.

Mr. Lemke's poor voice quality has affected his social and family life. Prior to the teflon injection procedure he was reluctant to go out or to family get togethers. Additionally his poor voice quality caused him to get depressed and caused stress in the relationship he had with his wife. Mrs. Lemke went to see a psychiatrist, thinking she was causing the problems between herself and her husband. The psychiatrist assured Mrs. Lemke that the problem was not with her and the stress in their relationship decreased only after the teflon injection treatment caused his voice to improve.

Additionally, Mr. Lemke's poor voice quality has affected his ability to work. Prior to the January 22, 1980 endarterectomy, he worked for International Machinery, hauling machinery long distances. The hauling of machinery involved the phoning of a dispatch center on a daily basis and the instructing of workmen while loading and unloading the machinery. His voice quality since his surgery has made it difficult, if not impossible, to perform these duties. Therefore, since December 1980 he has worked hauling grain. The hauls are of a shorter distance and he earns less money per mile hauling grain than he did hauling machinery. His doctors have...