Lucenti v. United States

• Court: U.S. District Court — Eastern District of New York
• Writing for the Court: NINA GERSHON, United States District Judge
• Docket Number: 19-cv-6185 (NG)(LGD)
• Decision Date: 06 August 2024
• Citation: Lucenti v. United States, 19-cv-6185 (NG)(LGD) (E.D. N.Y. Aug 06, 2024)
• Parties: DIANA LUCENTI, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• topic: Health Law,Civil Procedure

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DIANA LUCENTI, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

No. 19-cv-6185 (NG)(LGD)

United States District Court, E.D. New York

August 6, 2024

OPINION & ORDER

NINA GERSHON, United States District Judge

I. Introduction

This Opinion and Order follows a four-day bench trial in a medical malpractice action brought by veteran Diana Lucenti against the United States of America in its capacity as the administrator of the Department of Veterans Affairs (“VA”), which owns and operates a hospital in Northport, Virginia (“VAMC Northport”) where the plaintiff received medical treatment. Ms. Lucenti asserts claims under the Federal Tort Claims Act (the “FTCA”), alleging that the government, through the hospital's employees, negligently failed to diagnose her with renal cell carcinoma based on a CT scan that was taken in July 2015, resulting in a three-year delay in her cancer diagnosis and causing Ms. Lucenti's cancer to metastasize. The plaintiff asserts that the delayed diagnosis dramatically changed her prognosis from a 95% chance of being cured to now having a five-year life expectancy from the time of the discovery of a metastasis, or a life expectancy of August 2027.

This Opinion and Order constitutes the court's findings of fact and conclusions of law under Federal Rule of Civil Procedure 52. The court finds for the plaintiff and awards damages in the amount indicated below.

II. Procedural History

The plaintiff commenced this action on November 1, 2019. Prior to trial, the government “stipulated that the generally accepted standard of medical practice was to follow up on the subtle hypodensity in the medial pole of Plaintiff's left kidney seen on Plaintiff's July 3, 2015 abdominal/pelvic CT scan by, after appropriate therapy, conducting imaging of Plaintiff's kidneys using renal mass protocol, and that it was a departure from that standard when that follow up imaging was not done until July 19, 2018.” Joint Pre-Trial Order (“JPTO”), at 3. During the pretrial period, it was discovered that the renal cell carcinoma had metastasized to the plaintiff's thyroid. Additional pre-trial proceedings were necessary as a result of that discovery and, ultimately, the government stipulated “that the aforementioned departure from the standard of care was the proximate cause of metastatic renal cell carcinoma to Plaintiff's thyroid.” Id. However, it contests whether the renal cell carcinoma proximately caused certain of Ms. Lucenti's claimed injuries and the damages to be awarded.

From November 13th until November 17th, 2023, this court held a four-day bench trial. The plaintiff called three witnesses: herself, Dr. Dinesh Singh, an expert in urology, and Kristin Kucsma, an expert in economics. The government called two witnesses: Dr. Mitchell Benson, an expert in urologic oncology, and Dr. Joel Neugarten, an expert in nephrology.^[1]

III. Findings of Fact

I begin by noting my conclusions as to Ms. Lucenti's credibility. Although she testified via video transmission, I was able to observe her carefully.^[2] Throughout her testimony, Ms. Lucenti was candid and straightforward, and she never attempted to embellish her testimony. I found her entirely credible.

Ms. Lucenti was born on September 24, 1954, and, at the time of the trial, was 69 years old. After graduating from high school, Ms. Lucenti joined the United States Navy in 1977 and served until 1979 when she was honorably discharged. Following her service in the Navy, Ms. Lucenti became a licensed practical nurse (“LPN”) and then a registered nurse (“RN”). She also earned a bachelor's degree in behavioral sciences. She currently works part-time as an RN, which has been her occupation for the last twenty-five years.

a. Findings Regarding the History of Ms. Lucenti's Medical Treatment Relating to the Delayed Diagnosis

As a veteran, Ms. Lucenti has relied on the VA for her medical care since 2011.

On July 3, 2015, Ms. Lucenti was admitted to VAMC Northport, after experiencing lower abdominal pain and a 102 degree fever. At the hospital, Ms. Lucenti had a urinalysis and a CT scan of her abdomen and pelvis. The CT scan revealed a “[s]ubtle hypodensity in the medial lower pole of the left kidney.” Ex. B, at 1239-40. The radiology report stated: “[f]ollow-up imaging of the kidneys using renal mass protocol, after appropriate therapy is recommended.” Id., at 1240. At that time, Ms. Lucenti had a mass in her left kidney, which measured 2.1 centimeters. On July 6, 2015, Ms. Lucenti was discharged. The recommended follow-up imaging using renal mass protocol was not performed nor was one scheduled for a future date. This failure is the departure from the generally accepted standard of medical practice to which the government has stipulated.

Around July 2018, Ms. Lucenti was “consistently not feeling well” and had “left flank pain and, again, lower abdominal pain.” Trial Tr. 22. On July 19, 2018, she presented to the VAMC Northport emergency department with “lower abdominal pain, nausea, chills,” “dizziness,” and “blood in the toiliet” (sic). Ex. B, at 0450. On the same date, she underwent a CT scan of her abdomen and pelvis. The CT scan showed a 6.8 centimeter mass in her left kidney, which was “highly concerning for a renal cell carcinoma.” Id., at 0459. It is not disputed that Ms. Lucenti's 6.8 centimeter mass, which had grown from the 2.1 centimeter mass that was detected in July 2015, was, indeed, renal cell carcinoma. Thus, the government's delayed diagnosis of Ms. Lucenti's left kidney cancer was approximately three years. And Ms. Lucenti has established that the symptoms that she experienced around July 2018 were proximately caused by the government's missed diagnosis.

After the CT scan, Ms. Lucenti was referred to John Fitzgerald, a urologist at VAMC Northport, for further evaluation. In August 2018, Dr. Fitzgerald recommended a total nephrectomy (complete removal) of her left kidney, which occurred on August 24, 2018. She spent six days in the hospital. Ms. Lucenti did not establish that the government's negligence proximately caused any physical injuries relating to the total nephrectomy surgery itself or any physical symptoms associated with the recovery from that surgery: She presented no evidence that would distinguish between the pain and suffering that she experienced from the total nephrectomy procedure, as opposed to an alternative procedure, such as a partial nephrectomy, that she would have had to undergo had she been properly diagnosed in 2015.

Ms. Lucenti had medical issues involving her thyroid. In 1999, Ms. Lucenti had a partial thyroidectomy, or part of her thyroid removed, for benign goiter. After that, her thyroid was under increased surveillance. In October 2018, in a follow-up visit with Dr. Fitzgerald at the VAMC Northport, she was advised that she should be evaluated by the endocrinology department. On December 13, 2018, Ms. Lucenti had a biopsy taken of her left thyroid, which showed a benign nodule.

In July 2019, Ms. Lucenti received medical treatment for her right kidney at Stony Brook University Hospital. A biopsy taken of her right kidney showed kidney cancer, which was successfully treated with cryoablation, a procedure that freezes the portion of the kidney with the tumor to kill the cancer within it. The procedure results in the loss of functioning of that portion of the kidney but allows the rest of the kidney to maintain its functioning. Ms. Lucenti does not assert any claim arising from her right kidney cancer.

In 2019, Ms. Lucenti moved to Florida because she has “a lot of family” there and she “was told that it was cheaper to live” in Florida. Trial Tr. 37.

In September 2021, Ms. Lucenti had another biopsy taken of her left thyroid at the VAMC West Palm Beach. It was diagnosed as a “[b]enign nodule.” Ex. B, at 2325. In July 2022, the VAMC West Palm Beach referred Ms. Lucenti to the University of Miami Medical Center (“UMMC”). In August 2022, the UMMC reviewed the results of the biopsy that was taken at the VAMC West Palm Beach in September 2021 and diagnosed Ms. Lucenti with metastatic renal cell carcinoma. In other words, the UMMC determined that Ms. Lucenti's left kidney cancer had metastasized to her thyroid. As noted, the government has stipulated that its departure from the standard of care in not diagnosing her renal cell carcinoma in 2015 was the proximate cause of the metastasis to her thyroid.

On September 22, 2022, Ms. Lucenti underwent a PET/CT scan from skull to thigh at UMMC, which revealed an “[e]nlarged neck mass centered at the thyroid gland measuring approximately 6.5 x 5.3 cm” and “extending from the left oropharynx to the thoracic inlet/upper anterior mediastinum,” “resulting in displacement of the supraglottic, glottic airway, as well as the trachea.” Ex. D, at 0603 & 0604. On September 29, 2022, Ms. Lucenti had an appointment with Dr. Rakesh Singal, an oncologist at the UMMC. She reported “dizziness for the last month,” feeling “tired,” and “constipation.” Id., at 0598. Dr. Singal recommended that she undergo a “surgical resection” of the tumor. Id., at 0605.

On November 23, 2022, Ms. Lucenti underwent a total thyroidectomy and mediastinotomy at UMMC to remove the tumor. The surgery performed was “transcervical mediastinotomy and resection of mediastinal mass.” Id., at 0030. Ms. Lucenti was “scared to death” to have the thyroidectomy because they told her “that the nodule was huge, and it was very risky surgery.” Trial Tr. 28. After the surgery, Ms. Lucenti was in “a lot of pain” at the “incision site” in her neck. Id. She also “experienced a lot of pain in the back of [her] neck from the continual hyperextension of [her] neck while they were doing the surgery” and “nausea and vomiting from the...