Price v. United States, Case No. 3:09-cv-1165-J-MCR
| Decision Date | 10 September 2012 |
| Docket Number | Case No. 3:09-cv-1165-J-MCR |
| Parties | HARRY S. PRICE, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
This action for damages under the Federal Torts Claim Act came before the Court for a bench trial on June 21, 22, and 25, 2012. After reviewing the parties' proposed findings of fact and conclusions of law, the Court is now prepared to decide the case.
Plaintiff, Harry Price, brought this action pursuant to the Federal Torts Claim Act alleging he received inadequate treatment for a fungal lung infection at the VA Hospital in Gainesville, Florida. Plaintiff argues the medical personnel at the VA Hospital failed to timely diagnose and treat a fungal lung infection and that the delay in treatment contributed to permanent damage to his lungs. Defendant, the United States of America, claims the team of professionals treating Plaintiff at the VA Hospital did not breach the standard of care. Alternatively, Defendant argues that even if the standard of care was breached, Plaintiff failed to show the delay in receiving the anti-fungal medication was the cause of the damage to his lungs.
On June 9, 2011, the parties consented to have the undersigned conduct the trial of the case. (Doc. 18). The case was set for a bench trial on January 24, 2012 (Doc. 36), however, on January 10, 2012, the parties filed a joint motion to continue the trial in order to permit Plaintiff to pursue a claim for benefits with the Department of Veterans Affairs.1 (Docs. 47 and 48). After the Department of Veteran's Affairs denied Plaintiff's claim, the case proceeded to trial on June 21, 22, and 25, 2012. (Docs. 51 and 54).
Plaintiff, a veteran of the United States Coast Guard, received medical care through the Department of Veteran's Affairs. He was diagnosed with rheumatoid arthritis in 2006. On March 7, 2007, Plaintiff, who was sixty-four at the time, presented for a routine appointment with his rheumatologist, Dr. Nicole Robinson, at the VA Outpatient Clinic in Daytona Beach, Florida. (Tr. 1, 156:11-14).2 Plaintiff complained of shortness of breath, weakness, and a non-productive cough for the past seven to ten days. (Tr. 1, 157:3-6). Additionally, Plaintiff indicated he had a fever the previous evening. (Tr. 1, 157:8-9). Dr. Robinson listened to Plaintiff's chest and noticed "crackles" in the base of his lungs, more pronounced on the left than the right. (Tr. 1, 158:3-11). Dr. Robinson then ordered a chest x-ray, which indicated bilateral infiltrates and was consistent with pneumonia. (Tr. 1, 159:4-7). As Plaintiff was takingmedications for his rheumatoid arthritis, which suppressed his immunity, Dr. Robinson was concerned about Plaintiff having an upper respiratory tract infection/pneumonia or methotrexate lung. (Tr. 1, 159:21-25, 160:1-9). Dr. Robinson directed Plaintiff to stop taking the immunosuppressive medications and to go to the emergency department at the VA hospital in Gainesville. (VA_1291-92).3
Plaintiff presented to the emergency department at the VA hospital and was first evaluated by Dale Syfert, M.D. Dr. Syfert took Plaintiff's vital signs: his blood pressure was 123/72, his pulse was 107, his respiratory rate was 20, his temperature was 99.3, and his oxygen saturation rate was 96% on room air. (VA_1274, 1277). Dr. Syfert ordered blood cultures, sputum cultures, and antibiotics, and requested that the inpatient team evaluate Plaintiff for admission. (VA_1276). According to the records, cultures were taken at 20:20 and 20:40 and antibiotics (Rocephin 1000mg IV) were administered at 20:40. (VA_1279).
Plaintiff was next seen by Linh Du, M.D., who evaluated Plaintiff for admission. Dr. Du noted Plaintiff was an "obese male, not in respiratory distress," with "decreased breath sounds" and "fine crackles." (VA_1269-1270). Dr. Du diagnosed Plaintiff with community acquired pneumonia and ordered a plan, which included giving Plaintiff rocephin and azithromycin, as well as oxygen and nebulizers. (VA_1271). Dr. Du also noted that because Price was immunosuppressed due to his rheumatoid arthritis treatment, the inpatient team should "consider fungal infection and even [tuberculosis] if[Plaintiff's pneumonia] did not improve with rocephin and azithromycin." Id. The attending physician in charge of the inpatient team, Andrew S. Raxenberg, D.O.,acknowledged receipt of this note. (VA_1272).
The medical records from the evening of March 7, 2007 and early hours of March 8, 2007 indicate that Plaintiff was ambulating without difficulty or shortness of breath, that he denied pain, and that he had an oxygen saturation rate of 94% on room air (with a rate of 95% overnight). (VA_1264, 1265).
On March 8, 2007, Plaintiff was placed in respiratory isolation until tuberculosis could be ruled out and two tests for TB were ordered: an acid-fast bacillus smear ("AFB") and a tuberculin skin test ("PPD"). (VA_1241-1243). Plaintiff reported feeling better and said he was still coughing, but less than the day before. (VA_1241). On examination, his breath sounds were distant, but no wheezes or crackles were present. Id. He used the supplemental oxygen as needed, with an oxygen saturation rate of 93%. Id.; (Tr. 2, 98:4-99:12).
On March 9, 2007, Plaintiff generally had no complaints. (VA_1227). Plaintiff reported his cough had improved since the prior day, he was no longer short of breath, and that he wanted to be off supplemental oxygen. Id. On exam, his lungs were clear to auscultation bilaterally, with no wheezes, rales, or crackles. Id.
In the early morning of March 10, 2007, Plaintiff had an oxygen saturation rate in the low 90's on room air, and was using the oxygen as needed. (VA_1224.) At that time, Plaintiff had no complaints of any discomfort. Id. Later that same day, Plaintiff's breath sounds were clear and his respirations were regular on room air. (VA_1222).Again, he reported no complaints. VA_1223). At another examination the same day, Plaintiff's lungs were clear to auscultation bilaterally, with no wheezes, rales, or crackles and he had no complaints. (VA_1218). Plaintiff's oxygen saturation rate was 95%. Id. He remained in isolation pending the results of the TB testing. (VA_1220). Later, in the evening on March 10, 2007, it was reported that Plaintiff was "very pleasant and cooperative" and that he had no complaints of pain or discomfort. (VA_1216).
The next day, on March 11, 2007, Plaintiff reported that he was feeling much better as compared to when he first came to the hospital. (VA_1215). His lungs were clear, he was pain free, and was in good sprits. Id. Later that evening, Plaintiff reported that he did not feel 100% back to normal, but was much improved. (VA_1212). Upon examination, Plaintiff's breathing was noted to be better and his lungs were clear to auscultation bilaterally, with no crackles or wheezes. Id. Plaintiff had an oxygen saturation rate of 95% on room air. Id. The plan was for him to complete a 10 day course of antibiotics and to remain in isolation until the AFB culture came back negative. (VA_1213). Further, it was noted Plaintiff would likely be discharged the following day if the AFB did come back negative. Id.
The following morning, March 12, 2007, Plaintiff was up and about in his room, denied being in any pain, and had no complaints. (VA_1202). His breath sounds were clear and his respiration was regular and unlabored on room air. (VA_1203). The blood cultures came back negative and the three sputum samples tested for AFB were negative. (VA_1874-1876). Accordingly, the doctors determined it was time for Plaintiff to be discharged. (VA_0449). Plaintiff was discharged with instructions to continuetaking the antibiotic, Levaquin, once daily and to "report to the ER/a physician, if your cough returns, if you become feverish or have trouble breathing." Id. Plaintiff was also informed that he would need a follow up chest x-ray in six weeks to "make sure that [his] lung infection is resolving." (VA_0449).
Two days after his discharge, on March 14, 2007, Dr. Robinson called Plaintiff's home to see how he was feeling. (Tr. 1, 162:15-24). Plaintiff's wife spoke with the doctor and stated Plaintiff was feeling 75% better and that he was still weak, but much better than prior to being in the hospital. (VA_1188). Dr. Robinson asked Mrs. Price to have Plaintiff call the next week regarding his progress. (VA_1188; Tr. 1, 162:19-25, 163:1-25). On March 21, 2007, Dr. Robinson's nurse contacted Plaintiff regarding renewal of his methotrexate (which had been on hold) and Plaintiff indicated he was short of breath, felt bad, and was very weak. (Tr. 1, 164:10-17; VA_1189). He also said that he was experiencing a productive cough for the first time. Id. At Dr. Robinson's direction, the nurse directed Plaintiff to follow up with his primary care provider and instructed him to obtain a follow up chest x-ray, which was scheduled for the following day at Dr. Robinson's office. (Tr. 1, 165:1-21; VA_1189-90).
On March 22, 2007, Plaintiff saw Dr. Robinson and reported that he felt worse than when he was admitted to the hospital on March 7, 2007. (VA_1182). He complained of a non-productive cough, shortness of breath at rest, headache, and decreased appetite. Id. He also complained of being more short of breath than prior to his first admission, especially at night when trying to sleep. Id. Plaintiff also reportedthat during the hospitalization, he was supposed to have an evaluation by a pulmonary specialist, but he was told they were shorthanded.4 Id.
On physical exam, Dr. Robinson documented that Plaintiff's lungs were clear to auscultation bilaterally with crackles and decreased breath sounds bilaterally. (VA_1184). A repeat chest x-ray revealed increased infiltrate bilaterally, as compared to the March 7, 2007 film. (VA_1185). Dr. Robinson was concerned about an...
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