Rhodes v. United States

• Decision Date: 09 September 2013
• Docket Number: Civil Action No. 12–0449(BAH).
• Citation: 967 F.Supp.2d 246
• Parties: Shilisa RHODES, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Columbia

967 F.Supp.2d 246

Shilisa RHODES, Plaintiff,
v.
UNITED STATES of America, Defendant.

Civil Action No. 12–0449(BAH).

United States District Court,
District of Columbia.

Sept. 9, 2013.

[967 F.Supp.2d 250]

Jack Harvey Olender, Melissa Rhea, Sandra H. Robinson, Jack H. Olender & Associates, P.C., Washington, DC, for Plaintiff.

Heather D. Graham–Oliver, Theresa Ekeoma Dike, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION SETTING FORTH FINDINGS OF FACT AND CONCLUSIONS OF LAW
BERYL A. HOWELL, District Judge.

The plaintiff Shilisa Rhodes brought this medical malpractice action against the United States, pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) and 2671, et seq., for damages allegedly sustained from negligent medical treatment provided by Unity Health Care, Inc. (“Unity”) and Jamie Hill–Daniel, M.D., from December 2009 to March 2011. Pending before the Court is the plaintiff's claim that Dr. Hill–Daniel and Unity acted negligently by failing to refer her in a timely manner for diagnostic testing of her breasts and for failing to take certain other steps to ensure the timely diagnosis of her breast cancer. During a week-long bench trial, the Court heard evidence on the plaintiff's claim against the defendant.¹ For the reasons explained below, the Court concludes that the plaintiff has sustained her burden of proof on the negligence claim, that judgment must be entered for the plaintiff, and that damages will be awarded in the amount of $4,458,582.17.

I. PROCEDURAL BACKGROUND

On March 23, 2012, the plaintiff initiated this medical malpractice lawsuit by filing a complaint against the United States alleging that the defendant was negligent in multiple respects, including:

1. Failing to timely diagnose and treat the plaintiff's breast cancer;

2. Failing to timely and appropriately order and obtain diagnostic studies

[967 F.Supp.2d 251]

in light of the plaintiff's medical history, complaints, signs, and symptoms;

3. Failing to appreciate the seriousness of the plaintiff's condition;

4. Failing to provide appropriate and timely follow-up care;

5. Failing to timely and appropriately examine the plaintiff;

6. Failing to timely and appropriately obtain, interpret, and act upon the plaintiff's medical history and physical findings;

7. Failing to timely and appropriately assess the plaintiff's condition;

8. Failing to timely and appropriately obtain consultations and/or interventions from other health care providers;

9. Failing to make timely and appropriate referrals for diagnostic testing, care, and treatment; and

10. Failing to take timely and appropriate steps to protect the health and well-being of the plaintiff.

Compl., ECF No. 1, ¶ 18.

At the plaintiff's request, the Court imposed an expedited discovery and motions schedule, see Scheduling Order, ECF No. 9, and an expedited trial date, see Pretrial Order, ECF No. 20.² Shortly before trial, the defendant moved to amend its answer to the complaint to add a defense of contributory negligence, and the plaintiff moved to preclude the defendant from newly asserting the affirmative defense of contributory negligence and any claim of negligence on the part of a third-party, Providence Hospital. See Pl.'s Mot. to Preclude New Assertions of Contributory Negligence Defense and Any Claims of Negligence By Providence Hosp., ECF No. 36; Def.'s Mem. Opp. to Pl.'s Mot. to Preclude Assertion of Contributory Negligence and Any Claims of Negligence by Providence Hospital and Mot. to Am. Answer, ECF No. 40. For the reasons stated at the hearing on these motions, on June 18, 2013, the Court granted the plaintiff's motion in part and denied the defendant's motion, precluding as untimely the defendant's assertion of a contributory negligence affirmative defense but permitting the defendant's admission of evidence regarding negligence on the part of Providence Hospital. See Minute Order (June 18, 2013).³,⁴

Over the course of the one-week bench trial, the plaintiff testified on her own behalf

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and presented the testimony of two of her treating physicians, four medical experts, and three damages witness. In response, the defendant called the plaintiff's primary care physician, two Unity employees, one employee of Providence Hospital, one of the plaintiff's treating physicians, and three medical expert witnesses. The defendant also played the videotaped de bene esse deposition of one damages expert witness. Following the conclusion of the bench trial, both parties submitted proposed conclusions of law. See Pl.'s Corrected Proposed Concls. of Law, ECF No. 63; ⁵ Def.'s Proposed Concls. of Law, ECF No. 65. In addition, the parties submitted three iterations of a Proposed Findings of Fact Table (“FOF Table”), in which they proposed individual findings of fact, and noted which facts were in dispute. See Order, ECF No. 45 (explaining FOF Table); see also Proposed Findings of Fact, ECF No. 54 (“1st FOF Table”); Proposed Findings of Fact, ECF No. 64 (“2d FOF Table”); Proposed Findings of Fact, ECF No. 68 (“3rd FOF Table”). The Court has considered these submissions along with the testimony and exhibits at trial.⁶

Based upon the testimony presented and exhibits admitted at the trial, the Court makes the findings of fact set forth below and further states its conclusions of law. SeeFed.R.Civ.P. 52(a)(1) (“In an action

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tried on the facts without a jury ... the court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court.”).

II. FINDINGS OF FACTA. OVERVIEW OF WITNESSES
1. Plaintiff's Witnesses

The plaintiff presented the testimony of the following ten witnesses, whose testimony is briefly summarized below: Shilisa Rhodes; her treating oncologist, Dal Yoo, M.D.; the radiologist who interpreted two of her diagnostic images, Joel Bowers, M.D.; two expert witnesses in the national standard of care, John Sutherland, M.D., and Katherine Margo, M.D.; one expert witness in pathology, F. Lee Tucker, M.D.; one expert witness in oncology, Peter Pushkas, M.D.; one expert witness in the psychology of loss and grief, Mila R. Tecala, MSW, ACSW, LICSW, DCSW; one expert witness in end of life costs, Terri Sue Patterson, RN, MSN, CRRN; and one expert witness in economics, Richard J. Lurito, Ph.D. Plaintiff also played an audio recording of excerpts from the deposition testimony of her primary care physician, Dr. Hill–Daniel.

a) John Sutherland, M.D.

Dr. Sutherland is a board-certified family physician, who maintained private practices in Minneapolis and St. Paul, Minnesota, for eleven years, and has practiced in academic institutions in Minneapolis, Illinois, and Iowa for the past thirty-three years. Pl.'s Ex. 35 (Dr. Sutherland's CV); Trial Tr. ECF No. 69 at 31:2–:5, 34:3–:5. Dr. Sutherland testified as one of two medical experts for the plaintiff on the national standard of care applicable to a family practice physician regarding a primary care physician's appropriate response to a patient's breast complaints, including the steps necessary to ensure that diagnostic testing and specialty consultations are performed on a timely basis. Id. at 32:22–33:5. Specifically, Dr. Sutherland opined that Dr. Hill–Daniel breached the national standard of care by: (1) failing to fully investigate the plaintiff's breast complaints on December 3, 2009; (2) failing either to schedule a return visit for the plaintiff thirty to sixty days after the December 3, 2009 visit to reassess her complaints, or to refer the plaintiff immediately for diagnostic imaging studies on that date; (3) delaying the plaintiff's diagnosis by cancelling and rescheduling appointments multiple times; and (4) failing to take measures to expedite diagnostic testing after Dr. Hill–Daniel palpated a mass in the plaintiff's left breast and lymph nodes under her left armpit on October 18, 2010. Id. at 37:9–:24, 50:18–55:5.

b) Shilisa Rhodes

The plaintiff testified about her visits with Dr. Hill–Daniel regarding her breast complaints, when Dr. Hill–Daniel allegedly failed to take the steps that would have led to an earlier diagnosis of her breast cancer. Trial Tr. ECF No. 55 at 78:11–83:25, 92:10–98:12. She also testified about her experiences with Unity, her medical history, the referral process that she went through to receive diagnostic imaging, and the harm that her diagnosis of Stage IV breast cancer has caused. Id. at 76:16–77:4, 84:1–91:25, 96:22–108:12.

c) F. Lee Tucker, M.D.

Dr. Tucker is board-certified in anatomical and clinical pathology, and is currently the president and chief medical officer of Virginia Biomedical Laboratories, LLC. Pl.'s Ex. 36, at 2 (Dr. Tucker's CV). Dr. Tucker testified as the plaintiff's expert about the behavior and pathology of breast cancer

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, and its prognosis, diagnosis, staging, and curability. He opined that the plaintiff's breast cancer was Stage I in December 2009, and that if it had been diagnosed and treated at that point, it would most likely have been cured. Trial Tr. ECF No. 55 at 11:14–:19. He also opined that sometime between July and November 2010, her cancer became Stage II by metastasizing to the lymph nodes, and that it became Stage IV incurable cancer by metastasizing to her bone sometime between December 2010 and February 2011. Id. at 47:14–48:11, 49:17–:25.

d) Katherine Margo, M.D.

Dr. Margo is a board-certified family doctor who has practiced family medicine for thirty-one years and is currently a faculty member at the University of Pennsylvania with a family medicine practice. Pl.'s Ex. 34, at 1–2. She has been a member of the American Academy of Family Physicians since 1982. Id. at 3. Dr. Margo testified as the second of plaintiff's two expert family medicine witnesses about the national standard of care that applied to Dr....