Romero v. US

• Decision Date: 05 October 1994
• Docket Number: No. 4:91 CV 608 DDN.,4:91 CV 608 DDN.
• Citation: 865 F. Supp. 585
• Parties: Placido L. ROMERO, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

865 F. Supp. 585

Placido L. ROMERO, Plaintiff, v. UNITED STATES of America, Defendant.

No. 4:91 CV 608 DDN.

United States District Court, E.D. Missouri, Eastern Division.

May 2, 1994.

Memorandum Amending Judgment October 5, 1994.

COPYRIGHT MATERIAL OMITTED

Robert C. Ozer, Christopher Felton, Anthony L. Sokolow, Ozer and Mullen, Denver, CO, for plaintiff.

Henry J. Fredericks, Asst. U.S. Atty., Office of U.S. Atty., St. Louis, MO, for defendant.

OPINION

NOCE, United States Magistrate Judge.

This action is before the Court following a non-jury trial. Plaintiff Placido L. Romero brought this suit against the United States under the Federal Tort Claims Act ("the Act"), 28 U.S.C. §§ 2671 et seq. The parties consented to the exercise of authority by the undersigned United States Magistrate Judge under 28 U.S.C. § 636(c)(3). This Court has subject matter jurisdiction over the action under 28 U.S.C. § 1346(b).

Plaintiff Romero alleged two instances of negligent medical malpractice against certain physicians employed by the Veterans Administration at the John Cochran Medical Center in St. Louis, Missouri. The parties agreed that plaintiff has complied with all of the jurisdictional requirements of the Act. Defendant has admitted all allegations of negligent malpractice. However, the government joined issue over the nature, extent, and amount of plaintiff's damages.

Following a non-jury trial, the Court makes the following findings of fact and conclusions of law:

FACTS

1. Plaintiff Placido L. Romero was born on March 2, 1921. He is a veteran of the Army Air Corps from which he was discharged as a corporal in 1945. He has resided in Illinois and Wisconsin since his military discharge.

2. When plaintiff was discharged from the military, he became an auto mechanic, receiving his technical training from General Motors while on the job. He worked as an automobile mechanic until 1962, first in Chicago, Illinois, then in St. Louis, Missouri. After 1962, he was employed part-time as a carpet installer.

3. Plaintiff is, and has been for a long time, a heavy cigarette smoker. Although he has tried to quit smoking, he was not successful. Before 1988, his throat was occasionally sore and painful and bled; on occasion, he could not speak normally.

4. During 1987, plaintiff earned $1,791.00 working part-time. During 1988, prior to his surgery, he earned $1,088.00.¹

5. In March 1988, plaintiff presented himself to the Veterans Administration Hospital in Waukegan, Illinois, complaining of a sore throat and difficulty in swallowing. He was examined and treated as an outpatient. At this time he was unemployed and living in Wisconsin with his daughter, Angela Lozano.

6. In May 1988, plaintiff sought treatment at the John Cochran Veterans Administration Medical Center in St. Louis because of painful and difficult swallowing and a mass lesion on the supraglottis. At John Cochran Medical Center he was seen by Drs. James D. Warren and Matthew Nagorski.

7. On June 7, 1988, plaintiff underwent a CT scan and a laryngoscopy (an examination of his larynx). The CT scan disclosed a second tumor in the nasal area which was inoperable. The radiology report recommended a biopsy for further evaluation. Also on June 7, a biopsy was performed on the mass on the supraglottis.

8. The biopsy specimen was examined by physicians, licensed to practice medicine in Missouri, who were employees of the defendant United States at the John Cochran Veterans Administration Medical Center. On June 9, 1988, a poorly differentiated squamous cell carcinoma with ulcer (the tumor present in the submucosal area) was diagnosed. This reading and diagnosis fell below the standard of care that is practiced by reasonably competent medical practitioners under the same or similar circumstances in the same or similar locality in the following respects:

a. the biopsy specimen contained lymphoma, not squamous cell carcinoma;

b. the biopsy report was unclear;

c. the examining physicians failed to perform or have performed additional studies which were readily available which would have produced a correct diagnosis of lymphoma.

9. Generally, squamous cell carcinoma can be treated surgically; lymphoma cannot be treated surgically. As a result of the diagnosis of squamous cell carcinoma, on June 24, 1988, surgery was performed by physicians, licensed to practice medicine in Missouri, who were employed by the defendant United States at the John Cochran Veterans Administration Medical Center. The surgeons believed this surgery was appropriate for the diagnosis of squamous cell carcinoma. They performed a direct laryngoscopy (an examination of the larynx), a nasal pharyngoscopy (an examination of the pharynx), a tracheotomy, bilateral functional neck dissections, removal of the lymph glands, a supraglottic sub-total laryngectomy (partial removal of the epiglottis), and a cricopharyngeal myotomy. The partial removal of plaintiff's epiglottis thereafter allowed food, water, saliva, mucus, and other substances to enter his trachea and his lungs. This caused plaintiff increased susceptibility to infection and pneumonia.

10. The June 24 surgery fell below the standard of medical care as practiced by reasonably competent medical practitioners, under the same or similar circumstances, in the same or similar locality, in the following respects:

a. The surgery was performed, notwithstanding the clear and unequivocal contraindication to such surgery presented by the tumor that was shown to exist and subsequently known to exist in plaintiff's nasopharynx. This tumor was known to be incurable by surgery because of its location, regardless of the type of cancer it was.

b. The surgery was performed on the plaintiff without obtaining a final determinative pathology opinion with respect to the tumor in plaintiff's nasopharynx; and

c. The June 9 biopsy report was unclear.

11. The surgery of June 24, 1988, lasted nine hours and was followed by sixteen days' hospitalization during which plaintiff was medicated for pain, kept in intensive care for three days, and rendered unable to eat or breathe except through a tube placed through his nose.

12. After the surgery, and while still at John Cochran Medical Center, plaintiff was given an appointment for post-operative radiation and chemotherapy. Technical difficulties with the therapy equipment caused a delay. Plaintiff remained in need of treatment for the lymphoma, from which he was still suffering. He did not receive treatment for the lymphoma during that hospitalization.

13. On July 5, 1988, the correct diagnosis of plaintiff's condition became known and was reported by telephone by the Armed Forces Institute of Pathology to plaintiff's then treating physician. Nevertheless, the previous diagnosis of squamous cell carcinoma was never changed.

14. On July 9, 1988, plaintiff was discharged from the hospital. A course of outpatient follow-up treatment was prescribed for squamous cell carcinoma, from which it was known he was not suffering.

15. Plaintiff returned to Wisconsin to live with his daughter, Angela. Left untreated, plaintiff's nasal tumor grew rapidly. The tumor displaced the feeding tube that had been placed in plaintiff's nose. Plaintiff went to a hospital, where the doctors who treated him were unaware that he had a tumor in his nose. These doctors attempted to force his feeding tube through the tumor tissue, causing laceration, bleeding, and pain. Only when plaintiff's daughter advised them about the nasopharyngeal tumor did they obtain a smaller feeding tube which they succeeded in inserting.

16. By mid-July, 1988, the untreated tumor had caused a backup of fluid into plaintiff's ear which necessitated a surgical perforation of plaintiff's eardrum. The perforation has caused permanent hearing impairment.

17. Thereafter, a feeding tube was surgically sewn directly into his stomach, through his belly. After this surgery, an infection occurred, caused by a fistula from plaintiff's stomach into his abdominal cavity. Plaintiff was returned to the hospital for emergency treatment in the form of a laparotomy. When the stomach tube was removed, black, foul smelling fluid was produced.

18. Thereafter, plaintiff was subjected to another surgery, with extended hospitalization, to treat the abdominal infection and to put a second feeding tube into his stomach.

19. Plaintiff then began an extended period of chemotherapy and radiation during which he was hospitalized for several bouts of pneumonia. One such hospitalization lasted from January 21 to February 20, 1989. In March, 1989, plaintiff's tracheostomy tube was removed and the stoma healed satisfactorily.

20. Upon release from the hospital, plaintiff was nursed by his daughters for several months until he was relocated back in the St. Louis area. Plaintiff did very poorly with continued weight loss. The nutrition provided through the feeding tube into his stomach was insufficient to nourish him adequately.

21. In October 1989 plaintiff was seen by Dr. Gershon Spector at Barnes Hospital in St. Louis. In January, 1990, plaintiff underwent a complete, total laryngectomy (secondary to the partial, supraglottic laryngectomy of June 24, 1988). Plaintiff's trachea was separated entirely from his digestive tract and brought through a hole in his neck. Plaintiff now breathes through this hole exclusively. As a result of Dr. Spector's surgery, for the first time since June 24, 1988, plaintiff was able to take food by mouth, subject to severe limitations and regurgitative problems.

22. This second throat surgery has resulted in the total permanent loss of his natural voice and a significant loss of the ability to smell and taste. This surgery has also caused chronic infections, chronic bronchitis, an inability to clear his own secretions, severe deficiencies in breathing, and severe limitations in obtaining nutrition.

23. But for the surgery of June 24, 1988, plaintiff would...