Powers v. United States

• Decision Date: 10 May 1984
• Docket Number: Civ. No. H-78-68.
• Citation: 589 F. Supp. 1084
• Court: U.S. District Court — District of Connecticut
• Parties: Robert POWERS v. UNITED STATES of America.

589 F. Supp. 1084

Robert POWERS v. UNITED STATES of America.

Civ. No. H-78-68.

United States District Court, D. Connecticut.

May 10, 1984.

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Norman Ebenstein, Douglas S. Ebenstein, Hartford, Conn., for plaintiff.

Frank Santoro, Asst. U.S. Atty., Alan H. Nevas, U.S. Atty., New Haven, Conn., for defendant.

MEMORANDUM OF DECISION

CLARIE, District Judge.

The plaintiff, a resident of Northampton, Massachusetts, brought this action pursuant to the Federal Tort Claims Act to recover damages for alleged medical malpractice in treatment he received at the Veterans' Administration Hospital, in Newington, Connecticut. The case was tried to the Court, without a jury, during the period from February through July of 1982 with intermittent continuances for the convenience of counsel and medical witnesses. The plaintiff and the defendant both presented extensive medical expert testimony during the trial. The Court finds that the plaintiff has proven that the treatment he received was not in accordance with the applicable standard of care and the negligent treatment he received proximately caused him to suffer permanent physical injuries. The Court further finds that the government doctors failed to receive the informed consent of the plaintiff before they performed the operation and the subsequent treatment that followed therefrom. Thus, the plaintiff is entitled to compensation for the injuries caused by the defendant.

Facts

At the time of trial, in 1982, Robert Powers was a 56-year old male, born September 1, 1925. He was a World War II veteran of the United States Army. Powers began employment as a route salesman for Twin Cleaners of Northampton, Massachusetts in 1948 and he was employed there continuously for twenty-four years until 1972. He was active for many years as a recreational softball umpire and he served two terms as a city councilman in his hometown of Northampton. Powers is married to his wife of thirty-five years and they have no children.

In late 1971, while employed at Twin Cleaners, Powers experienced a fall on the ice, from which he developed pains in his neck. He also began to experience some numbness in his hands and a slight dragging of his right leg. His neck pain became worse over a period of time, and he was forced to leave his employment in early 1972.

On July 3, 1972, Powers had a decompression cervical laminectomy from C3 to C6, performed at Providence Hospital in Holyoke, Massachusetts. A laminectomy is a medical procedure wherein all of the back of the cervical posterior elements are removed. Powers was diagnosed as requiring this procedure because of protruding bone formations or bone spurs that had developed which were causing pressure on his spinal cord. This bone formation around the bony ring encompassing the cervical spinal cord at the C3-C6 level was caused by a prior injury and was detected by a procedure known as a cervical myelogram, which had been performed before the laminectomy operation. (Testimony of Dr. Hillemeir, Transcript of Court trial, 2/24/82 at 26-34). (Hereinafter, all references to the transcript of the Court trial in this case shall be abbreviated to include the name of the witness, the date and the page). The growth of the bone spurs is a condition known as cervical spondylosis and the laminectomy operation was performed to allow the cord to move away from these bone spurs and thus eliminate the painful pressure. (Sweet, Tr. 7/21/82 at 210-11; Southwick, Tr. 7/22/82 at 433). A cervical myelogram taken before the laminectomy revealed a large bone ridge at the C3-4 level and a smaller bone spur at the C5-6 level. (Robinson, Tr. 6/17/82 at 18-20; Tr. 7/22/82 at 494-95).

The initial results of the 1972 laminectomy were successful and the numbness in the limbs which Powers was experiencing disappeared. Within a short period of time, however, Powers began to experience pain in his neck again and he was unable to return to work. He applied for and received total Social Security disability benefits beginning in June of 1973. Powers continued to experience the pain in his neck, but he did not exhibit any loss of motor functions or any abnormal neurological symptoms.

All physicians agreed that the laminectomy had been performed properly, but the continued symptoms of pain from the shoulder to the back of the neck caused concern among the treating physicians. Dr. Asinas, who had performed the laminectomy, performed additional tests in November of 1973, assisted by a radiologist, to determine whether any subluxation or dislocation of the vertabral segments were causing the pain. Although no definite subluxation was noted at that time, a slight malignment or swan-neck curve of the neck was noted. (Robinson, Tr. 6/17/82 at 32-33).

Powers had additional x-rays taken at the Lahey Clinic in Boston, Massachusetts in March of 1974, which indicated that there was a small bone spur located at the C5-6 level. (Lakin, Tr. 7/29/82 at 8). There was some indication from an examination of these x-rays that the bony ridges on the vertabrae were becoming more obvious in 1974 than they had been in 1972. (Robinson, Tr. 6/17/82 at 35).

Additional consultation and x-rays were taken at the Veterans' Administration Hospital in Newington, Connecticut (hereinafter "Newington VA Hospital") in the spring of 1974. They disclosed an unstable level at C3-4. (Robinson, Tr. 6/17/82 at 36). Powers' neck had developed a progressive deformity referred to as "kyphosis," which involves excessive angulation of the spine where the head essentially falls forward. (Raycroft, Tr. 5/28/82 at 7). This condition is usually accompanied by subjective pain. There was also some indication of subluxation of C3 on C4, where the vertebrae had partially slipped over one another. (Hillemeir, Tr. 2/23/82 at 34). As Powers' vertebrae began to slip anteriorally, that is, toward the front, his neck began to develop a curvature. An imbalance was produced in which the head fell forward and the remaining joints did not have adequate support. (Southwick, Tr. 6/4/82 at 12).

At this point, the orthopedic surgeons at the Newington VA Hospital strongly recommended a posterior cervical facet fusion of C2 through C7 with a fibula bone graft. The object of this operation was to fuse the bones of the cervical column together, thereby eliminating the excessive motion and dislocation. (Hillemeir, Tr. 2/23/82 at 36). It was not, however, the object of this operation to correct the condition of cervical spondylosis or bone spurring that had been noted in the pre-laminectomy cervical myelogram and the x-rays taken at the Lahey Clinic. (Cf., Sweet, Tr. 7/21/82 at 172; Robinson, Tr. 6/17/82 at 125; discussion of operative procedures for removing bone spurs).¹

To perform the cervical fusion, a piece of bone, in this instance a portion of the fibula bone from the patient's leg was removed, split in two lengthwise and grafted onto each side of the posterior cervical spine. The bone-graft is held in place with wires run through holes drilled into the facets of the vertebrae and it eventually becomes permanently fused to the spine as the bone material grows together. (Raycroft, Tr. 5/28/82 at 14; Biondio, Tr. 5/27/82 at 51). Because Powers had previously undergone an extensive laminectomy in 1972, he lacked post-vertebral elements of his cervical spine at this level and it was decided that the fusion should be done posteriorly, that is, from the back, rather than from the front, anteriorly. (Biondino, Tr. 5/27/82 at 15-18; Raycroft, Tr. 5/28/82 at 17). A cervical fusion of this type was characterized by the attending orthopedic surgeon as a "significantly difficult operation." (Raycroft, Tr. 5/28/82 at 16). The cervical fusion was more difficult to perform in this situation because Powers had previously had the cervical laminectomy. (Owens, Tr. 7/29/82 at 130-31; see also Hillemeir, Tr. 6/30/82 at 14 "very complicated, intricate problem...").

In March of 1974, Powers had been examined by doctors at the Lahey Clinic who performed, inter alia, a general physical examination, which indicated that Powers had full range of motion in his shoulders and no weakness in the extremities. The treating physicians at the Newington VA Hospital also performed standard physical examinations before the 1974 operation to evaluate motor coordination and motor function. No untoward neurological findings were noticed in any of the pre-operative examinations. (Biondino, Tr. 5/27/82 at 21). It should be noted, however, that the treating physicians did not include a neurosurgeon or a neurologist, and a neurological consultation was not sought during any of the pre-operative, operative or immediate post-operative stages of this patient's treatment.

The cervical fusion operation was performed on May 23, 1974, by four doctors: Dr. John F. Raycroft was the senior attending consultant and supervisory surgeon for this operation; he was assisted by Dr. Robert Biondino, Dr. James Cole, and Dr. Pedro Romero. Doctor Biondino was a first-year orthopedic resident at Newington; Dr. Cole was a third-year orthopedic resident; and Dr. Romero was a first-year surgical resident. Dr. Biondino testified that this was the very first cervical fusion he had ever performed for this specific type of problem. (Biondio, Deposition, 5/10/82 at 46). Doctor Raycroft, on the other hand, had engaged in the practice of orthopedic surgery for seven years prior to this operation, and he had previously participated in approximately twenty to twenty-five cervical fusions of this type. (Raycroft, Tr. 5/28/82 at 5). Doctor Raycroft testified that at the time of the operation he mistakenly believed that Dr. Biondino was a third-year orthopedic resident. He was not aware that Dr. Biondino was only a first-year orthopedic resident until the time of trial. (Raycroft, Tr. 5/28/82 at 41, 118).

During the actual surgical...