Pietrantonio v. US
| Decision Date | 12 July 1993 |
| Docket Number | No. 2:91-CV-231.,2:91-CV-231. |
| Citation | 827 F. Supp. 458 |
| Parties | Shirley PIETRANTONIO, Personal Representative of the Estate of John Pietrantonio, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
Vincent R. Petrucelli, Petrucelli & Petrucelli, Iron River, MI, for plaintiff.
Judd R. Spray, Asst. U.S. Atty., John A. Smietanka, U.S. Atty., Marquette, MI, for defendant.
This case was brought against the United States by the estate of John Pietrantonio under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, seeking damages for the alleged negligence of the Veterans Administration (VA) in Mr. Pietrantonio's medical care. The alleged negligence occurred when Madison, Wisconsin, VA hospital personnel failed to follow up on an indication of some kind of abnormality which appeared in chest x-rays of Mr. Pietrantonio taken in May and June 1986. This abnormality was diagnosed in 1988 as lung cancer.
This matter was tried without a jury on June 8, 1993. In addition to the testimony heard in court, the Court has watched the video de bene deposition of Dr. Brian H. Rank, M.D., and has examined the other material submitted to the Court at the trial. The Court's findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52 follow.
Most of the facts are not in dispute. Mr. John Pietrantonio was born on November 19, 1925 and was a sixty year-old male in May and June 1986. He had been disabled from any work since about 1970 because of severe headaches. On May 3, 1986, Mr. Pietrantonio went to the Iron Mountain, Michigan, VA hospital for treatment for his headaches. The doctors at the Iron Mountain facility sent Mr. Pietrantonio to the VA facility in Madison, Wisconsin. While the physicians at the Madison facility were seeking a cause for Mr. Pietrantonio's headaches, they caused Mr. Pietrantonio to have a routine chest x-ray on May 22, 1986. The chest x-ray revealed an abnormality on the right lung. The radiologist who examined the x-ray recommended that this x-ray be compared with an x-ray that was taken in 1981.
On June 8, 1986, Mr. Pietrantonio was again admitted to the Madison VA facility because of his headache condition. Another routine x-ray was taken. This time the staff radiologist made the following report:
The VA physicians never located an organic cause for the headaches. More important, they did not promptly follow through on the recommendation of their own radiologist's report of June 26, 1986. Two years later, in February 1988, Mr. Pietrantonio again entered the hospital because of his headaches. At that time, his lungs were again x-rayed and further examination resulted in a diagnosis of cancer. The United States has conceded that the VA's failure to promptly follow through on the June 26, 1986, report is negligence. The United States argues that the negligence was not the cause of any injury to Mr. Pietrantonio. The United States says, in effect, that Mr. Pietrantonio would have died of lung cancer anyway.
I credit the testimony of plaintiff's expert, Dr. Rank. If the VA had promptly followed through on the recommendation of its own radiologist in June 1986, it would have discovered a Stage 1 cancerous growth on the right upper lung of Mr. Pietrantonio. At that time the cancer had not yet metastasized. The cancerous growth could have been excised by surgery, and Mr. Pietrantonio would have had a 51 to 69 percent chance of living a normal life span. Chances are a little better than 50-50 that he would have died from something besides cancer of the lung.
Instead, the VA did not diagnose the cancer until February 1988, when the physicians at the Iron Mountain, Michigan facility noted that the lesion in the upper right lung, which had been seen in June 1986, had grown and was suggestive of a neoplastic process. Mr. Pietrantonio was again sent to the Madison, Wisconsin VA facility where the lesion was diagnosed as adenocarcinoma "in keeping with a lung primary." A biopsy of the liver, failed to reveal any cancer in the liver and a CAT scan of the brain failed to show any abnormality of the brain.
I accept the testimony of Dr. Rank that, by February 1988, the cancer of the lung had progressed to the fourth stage. There was little that could be done for Mr. Pietrantonio at this time. Mr. Pietrantonio was given some experimental chemotherapy treatments, but he died on March 11, 1990. The cause of Mr. Pietrantonio's death was the spread of the lung cancer that was first seen, but not treated, in June 1986. By the time of Mr. Pietrantonio's death, the cancer had spread to his bones.
John Pietrantonio was 64 years old at the time of his death. The evidence shows that if the VA had not breached its duty to Mr. Pietrantonio and earlier treatment of his lung cancer had been successful, he could have expected an ordinary life span of an additional 15.6 years.
Mrs. Pietrantonio was deprived of companionship and services by the death of Mr. Pietrantonio and the Pietrantonio children were deprived of their father's companionship and guidance. This Court was impressed with the sincerity of Mrs. Pietrantonio's and the Pietrantonio children's testimony about the close relationship they had with their husband and father. This testimony was not an act to gain the sympathy of the Court. If Mr. Pietrantonio were able to testify, this Court is sure that he would also testify as to his love for his wife, children, and grandchildren. The John Pietrantonio family was a close, warm, and loving family.
The plaintiff has proven a duty owed to Mr. Pietrantonio by the United States, a breach of that duty, and injury to Mr. Pietrantonio as a proximate result of the breach of duty. To be determined are damages for Mr. Pietrantonio's pain and suffering, Mrs. Pietrantonio's loss of services and companionship, and the Pietrantonio childrens' loss of companionship. Plaintiff did not ask for, and I do not award, damages to the Pietrantonio estate for John Pietrantonio's lost income or lost earning capacity. Because of his total disability, Mr. Pietrantonio was producing no income for the several years before his death.
Under the Federal Tort Claims Act, the United States is "liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). The whole law of the state, including its choice of law rules, must be applied. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). Thus, this Court will look to Wisconsin law to determine what law should apply.
The parties agree that Wisconsin law applies to the issue of liability for malpractice. They disagree, however, as to what law should apply to the determination of damages.1 Wisconsin limits recovery of damages in wrongful death actions. See Wis.Stat.Ann. § 895.04; Rineck v. Johnson, 155 Wis.2d 659, 456 N.W.2d 336 (1990), cert. denied, 498 U.S. 1068, 111 S.Ct. 787, 112 L.Ed.2d 849 (1991). In contrast, the Michigan wrongful death statute does not cap damages. It allows damages that are "fair and equitable" and allows recovery by children, and other next of kin, in addition to the spouse. M.C.L.A. 600.2922; M.S.A. 27A.2922. Since the laws of the two states are different and that difference would affect the outcome of this case, a conflict of laws issue exists. Hunker v. Royal Indem. Co., 57 Wis.2d 588, 204 N.W.2d 897, 901 (1973).
Wisconsin has adopted a five-factor test for determining choice of law. The factors are:
(A) Predictability of results; (B) Maintenance of interstate and international order; (C) Simplification of the judicial task; (D) Advancement of the forum's governmental interests; (E) Application of the better rule of law.
Hunker, 204 N.W.2d at 902 (citations omitted).
In Reminga v. United States, 448 F.Supp. 445, 457-59 (W.D.Mich.1978), aff'd, 631 F.2d 449 (6th Cir.1980), the federal district court applied Wisconsin's choice of law factors to a case similar to this one and concluded that Michigan law should apply. Reminga was a wrongful death claim under the Federal Tort Claims Act in which the decedent, a Michigan resident, had been killed in a plane crash in Wisconsin caused by an error in charts provided by the Federal Aviation Administration. Among the issues in conflict was the limitation on recovery for wrongful death under Wisconsin law. Id. at 458. The court concluded that a Wisconsin court would apply Michigan law. Id.
With respect to predictability of results, the Reminga court noted that Michigan was the residence of decedent and his family and the place where the trip began and was to end. It concluded that application of the Wisconsin limitations on wrongful death was not predictable for plaintiffs. In the instant case, Mr. Pietrantonio and his family resided in Michigan and Mr. Pietrantonio obtained all of his primary...
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...and protection" pursuant to the Federal Tort Claims Act ("FTCA").2 For its best case, EgyptAir cites to Pietrantonio v. United States, 827 F.Supp. 458, 461 (W.D.Mich.1993), where the adult children of a sixty-four year-old man were each awarded non-economic damages of $30,000 for "loss of c......