Neuenswander v. U.S.
| Decision Date | 22 March 2006 |
| Docket Number | No. 1:05-CV-82.,1:05-CV-82. |
| Citation | 422 F.Supp.2d 425 |
| Parties | William NEUENSWANDER, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Vermont |
Edward M. Van Dorn, Van Dorn & Curtiss, Orford, NH, for Plaintiff.
Michael P. Drescher, Office of the United States Attorney, District of Vermont, Burlington, VT, for Defendant.
RULING ON MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (Paper 24)
Plaintiff William Neuenswander brings this medical malpractice action against the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), alleging that medical personnel at the White River Junction Veterans Administration Medical Center ("VAMC") committed malpractice when they failed to properly treat his skin disease. The case is currently before the Court on the Government's motion to dismiss for lack of subject matter jurisdiction. (Paper 8.)
The Magistrate Judge filed his thorough and well-reasoned Report and Recommendation ("R & R") on February 3, 2006, recommending this Court deny the motion. (Paper 24.) The Court has reviewed the R & R and the Government's objections (Paper 25), and has considered de novo those portions of the R & R to which objections pertain. See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(C). Because the Magistrate Judge held a lengthy hearing on the motion to dismiss on January 17, 2006 and the Government presented little new information with its objections, the Government's request for a hearing on its objections (Paper 25 at 27) is DENIED.
The Court, moreover, finds the Government's objections to be without merit. In its foremost objection, the Government argues that the R & R misstated, and thereby heightened, the applicable standard requiring the plaintiff to know that Government doctors caused—rather than "probably caused" or "may have caused"—the worsening of his condition. (Paper 25 at 13.) Although the R & R did not fully state the language of the standard, the Court concludes that the Magistrate Judge properly set out the nuances of the standard and undertook its analysis using the correct standard. Moreover, applying the correct standard, the Court reaches the same result.
The Court therefore AFFIRMS, APROVES and ADOPTS the Magistrate Judge's Report and Recommendation, see 28 U.S.C. § 636(b)(1). The Government's motion to dismiss is DENIED. The matter is hereby returned to the Magistrate Judge for further proceedings.
SO ORDERED.
MAGISTRATE JUDGE'S REPORT & RECOMMENDATION (Document 8)
Plaintiff William Neuenswander filed this medical malpractice action against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. 1346(b). Neuenswander alleges that the doctors at the White River Junction Veterans Administration Medical Center ("VAMC") committed medical malpractice when they failed to properly treat his skin disease. The case is currently before this Court on the government's motion to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction.
For the following reasons, I recommend that the government's motion to dismiss (Doc. 8) be DENIED.
Mr. Neuenswander suffers from Hidradenitis Suppurativa ("HS"), WebMD Health Guide A to Z available at http://www.webmd. com/hw/health _guide _atoz/nord 358 .asp (last visited Dec. 8, 2005).
Mr. Neuenswander first received treatment from the VAMC for HS in 1983. (Doc. 1, ¶ 10). At that time he had bilateral axillary1 sinuses2 excised. (Doc. 8-2 at 5). In 1992, he had a right groin sinus excised and a skin graft. (Id.) In 1996 he had "extensive perineal3 resection4 of abscesses with subsequent grafting." (Id.)
On January 13, 1998, Neuenswander was admitted to the VAMC for treatment of his HS. (Id. at 4). At that time he was diagnosed with "recurrent [HS] of the perineal area." (Id.) Generally, his treatment consisted of debridement5, dressing changes and skin grafts. (Id. at 4-7). However, his treatment was complicated by infection and slow healing. (Id. at 5-7).
More specifically, Neuenswander's wounds were debrided four times during his first month at the VAMC. (Id. at 4). Because his wounds were not healing well, he was given a diverting colostomy in February 1998. (Id. at 5-6). His condition improved after the colostomy. Accordingly, in March 1998 his wounds were debrided again and he received a skin graft. (Id. at 6). The skin graft became infected. (Id.) After more debridement, his wounds showed signs of healing, so he underwent another skin graft on April 17, 1998. (Id.) This graft also failed to heal. (Id.) A series of tests did not reveal any abnormalities to explain his repeated failure to heal. (Id.) His wounds were debrided again on August 12 and 13. (Id. at 4, 6). On August 14, he was diagnosed with a subcutaneous abscess at the site of his colostomy. (Id. at 6). This abscess was incised and drained. (Id. at 7). This wound also failed to heal and he "developed a chronic infected fistula6 ...located medially7 to the colostomy with a minimal amount of purulent discharge." (Id.) His wounds were irrigated eight times during September 1998. (Id. at 4).
On January 25, 1999, after more than a year of inpatient treatment, Neuenswander was discharged from the VAMC. (Id.) According to the discharge report, he was in stable condition, his dependence on pain killers had subsided because of his improved condition, but he had a chronic non-healing wound in the perineal area. (Id. at 7). He was transferred to Brookside Health and Rehabilitation Center ("Brookside") with, recommendations "to continue daily dressing changes of his wounds in the perineal and colostomy areas." (Id.)
Neuenswander was scheduled to follow-up with general and plastic surgery at the VAMC on February 18, 1999. (Doc. 8-2 at 12). However, he cancelled these appointments because he thought they were too soon. (Id. at 12-13). He also cancelled his next follow-up appointment with the plastic surgery department that was scheduled for March 11, 1999. (Id. at 12). On March 16, 1999, he went to his first follow-up appointment at the VAMC. (Id.) In May 1999, a Brookside nurse reported that Neuenswander's groin wound showed "little to no improving." (Doc. 8-2 at 16). The nurse also reported that Neuenswander "refuses to be an experiment any more—Adamant about never going back to VA—`would rather die here.'" (Id.)
On June 17, 1999, Neuenswander had another follow-up appointment at the VAMC. (Doc. 8-3 at 13). At this appointment, he told the doctor that he was concerned that his condition was getting worse. (Id.) The doctor reported that the groin wounds were much improved with no signs of infection, and that there was a wound between the glans and the shaft of the penis with purulent drainage but no cellulitis. (Id.) The doctor noted that Neuenswander was "overall probably improved." (Id.) After this visit, Neuenswander did not receive any further treatment at the VA.
On July 19, 1999, Dr. Holub, the physician at Brookside, noted that Neuenswander had reported adequate pain control and increased ability to get up and irrigate his groin and perianal wounds. (Doc. 8-3 at 2). Dr. Holub also reported that Neuenswander, since taking antidepressant medication, "general[ly] feels quite satisfied but typically and appropriately concerned about the chronicity of illness." (Id.)
On August 8, 1999, a Brookside nurse reported an increase in the discharge and odor of Neuenswander's wounds, little to no improvement of his penis and copious yellow discharge. (Doc. 8-3 at 15). Dr. Holub saw Neuenswander on August 11 and reported that although the nurses thought the wounds were getting worse, Neuenswander thought his condition was the same. (Doc. 8-2 at 18). Neuenswander also reported that he was encouraged by his last visit to the VAMC because Dr. Brown noted improvements. (Id.) Neuenswander agreed to more testing to discover the cause for his delayed healing. (Id.) Dr. Holub concluded that he was "not sure that given extreme nature of [Neuenswander's] case that the VA hospital are the only specialists we should be using and I will likely be contacting another plastic surgeon for a second opinion." (Id.)
Neuenswander reported to a nurse at Brookside on September 14, 1999 that he did not want to return to the VAMC for his three-month appointment scheduled for September 16. (Doc. 8-2 at 20). He also expressed "concern that penis has increase discharge from around shaft." (Id.) The nurse also noted that the "pocket under glans" has "dark thick discharge." (Id.) Neuenswander asserted that he did not want to return to the VAMC because "the trip ... was extremely painful ... and at every appointment all the doctors would do is to take the dressings off, look at the wound, write notes and tell me they were satisfied with the progress." (Doc. 11-2, ¶ 10). On September 16, 1999, he told Dr. Holub that he didn't want to go to the VA because "they never have anything new to offer." (Doc. 8-3 at 2). Dr. Holub noted that he was (Id.) Dr. Holub also reported a general improvement in Neuenswander's condition since coming to Brookside, but noted the extensive wounds on the sacrum, perineum, penile shaft and bilateral inguinal folds. (Id.)
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