Rosario v. US, Civ. A. No. 86-2017-N.

Decision Date10 May 1993
Docket NumberCiv. A. No. 86-2017-N.
Citation824 F. Supp. 268
PartiesVincente ROSARIO, Richard Rosario, and Epifania Nieves, Plaintiffs, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — District of Massachusetts

M. Robert Dushman, Brown, Rudnick, Freed & Gesmer, Boston, MA, for plaintiffs.

Suzanne E. Durrell, Countess C. Williams, U.S. Attorney's Office, Boston, MA, for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER OF JUDGMENT

DAVID S. NELSON, Senior District Judge.

I. INTRODUCTION

This is a medical malpractice action brought by Vincente Rosario, Richard Rosario, and Epifania Nieves against the United States of America pursuant to the Federal Tort Claims Act. Vincente Rosario alleges that he sustained permanent injuries as a result of the negligent care provided to him by the Jamaica Plain Veterans' Administration Medical Center ("VA" or "Hospital") in connection with an arteriogram he received on January 28, 1985. Epifania Nieves, Vincente Rosario's mother, seeks damages for the loss of filial consortium as a result of Mr. Rosario's injuries.1

This case was tried before the Court, sitting without a jury, for seven days in August, 1991. Pursuant to the Court's instructions, the parties filed post-trial briefs and proposed findings of fact and conclusions of law.2 Having now fully considered the stipulations of law and fact, the testimony of all witnesses, and the evidence admitted at trial, this Court finds that Plaintiffs have failed to prove by a preponderance of the credible evidence that the treatment Mr. Rosario received at the VA was below the applicable standard of care imposed by law. In addition, since Plaintiffs have not proven by a preponderance of the credible evidence that Mr. Rosario was dependent on Mrs. Nieves for financial support, her claim for loss of filial consortium must likewise fail. Therefore, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, and for the reasons set forth in the following Findings of Fact and Conclusions of Law, this Court enters final judgment in favor of Defendant, the United States of America.

II. FINDINGS OF FACT

After experiencing stroke-like symptoms on January 18, 1985, Vincente Rosario, a resident of Boston, Massachusetts, was admitted to the Veterans' Administration Medical Center in Jamaica Plain, Massachusetts. He was 51 years old at the time. When admitted to the Hospital, Mr. Rosario indicated that, beginning the previous afternoon, he was experiencing pain in his neck and right arm, weakness in his right arm and leg, and difficulty in speaking. Mr. Rosario's medical history revealed that, in addition to having had a heart attack in June 1983, he suffered from chronic obstructive pulmonary disease, high blood pressure, alcoholism, and cervical degenerative joint disease of the spine with a narrowing at the C5-C6 and C6-C7 levels.3 Moreover, Mr. Rosario had smoked two packages of cigarettes a day for thirty years.

After taking the medical history, physicians at the Hospital, headed by Dr. Alan del Castillo, a senior resident of neurology,4 conducted several tests intended to assist in the making of a preliminary diagnosis. Those tests included a full neurological exam, conducted by Dr. del Castillo,5 and an unenhanced CAT-scan. The doctor's neurological exam of Mr. Rosario focused on the patient's mental status with respect to his intellect, memory and language skills. The doctor also examined Mr. Rosario's cranial nerves, muscular system, tendon reflexes, sensory system, and cerebellar system. While the motor examination indicated weakness in the patient's right arm, the neurological exam revealed that Mr. Rosario was experiencing involuntary muscle twitchings in his left deltoid (shoulder) muscle. And while the tendon reflexes were slightly more brisk on the right than on the left, the doctor was unable to elicit any tendon jerks from the heels of Mr. Rosario's feet.

Based on these results, a preliminary diagnosis of probable left middle cerebral artery stroke was made. Mr. Rosario was admitted to the neurovascular intensive care unit ("ICU") for further observation and testing. Because the preliminary diagnosis was that of a stroke, Mr. Rosario was placed on Heparin, an intravenous anticoagulant medication.

From January 19 to January 25, 1985, additional tests were conducted in an effort to further diagnose Mr. Rosario's condition and to determine the cause of the suspected stroke. One such test took place on January 21, 1985, and involved "non-invasive studies" of Mr. Rosario's carotid arteries.6 By examining the carotid arteries, the doctors were attempting not only to determine a possible cause of the suspected stroke, but also to locate any "stenosis," a narrowing or blockage of the carotid arteries, or any ulceration in the arteries leading to Mr. Rosario's brain. The results of these tests revealed no apparent carotid artery stenosis or ulceration.

The physicians then recommended that an additional non-invasive test, known as a "carotid B-Mode study," be conducted.7 By this time, Mr. Rosario had been transferred from the ICU to the neurological ward, Ward 6-B. The results of the carotid B-Mode study were inconclusive as to the cause of the suspected stroke.

After receiving and studying the results of all tests performed to that point, the doctor's ordered an enhanced CAT-scan which was performed on January 25, 1985.8 Dr. Melukote Srinivasan, a neuroradiologist and employee of Tufts New England Medical Center,9 performed the enhanced CAT-scan. This procedure revealed a vague low density in the left parietal region of the brain. While this result was consistent with the preliminary diagnosis of a stroke, it shed little light on the potential cause.

On January 25, 1985, Dr. William Stone, an attending staff neurologist and director of the Neurovascular Unit at the VA, concluded along with Dr. del Castillo and Dr. Srinivasan that a cerebral arteriogram should be performed on Mr. Rosario. Like the enhanced CAT-scan, an arteriogram involves the use of a contrast material to assist in visualizing certain arteries. However, with an arteriogram, the dye is injected directly into the arteries, and not the patient's arm. Once the dye is introduced, x-rays are then taken of the specific arteries or blood vessels containing the contrast material. In so doing, the treating physician attempts to locate narrowings or blockages of the arteries or blood vessels.

Mr. Rosario's arteriogram was scheduled for January 28, 1985. As was standard practice at the VA, nurses discontinued the anti-coagulant medication before such a procedure. In addition, Dr. del Castillo visited Mr. Rosario during the morning of January 28th in order to obtain his informed consent for the procedure. Since Dr. del Castillo was fluent in Spanish, Dr. Stone requested that he be the one to obtain the necessary consent.10

During the time when Dr. del Castillo discussed the planned arteriogram, Mr. Rosario was alert and coherent. He had not yet received any pre-arteriogram sedatives. Dr. del Castillo explained to Mr. Rosario, in Spanish, the risks of the arteriogram and the risk of paralysis. During the course of their conversation, Mr. Rosario commented that his mother, Mrs. Nieves, had warned him that the planned procedure would result in his paralysis.

In addition to the risks associated with having the procedure, Dr. del Castillo also explained the risks of not having the arteriogram. The doctor stated that, since there was a possibility of Mr. Rosario having a larger stroke in the future, the purpose of this arteriogram would be to determine if a course of treatment could be prescribed to reduce that possibility.

It was apparent to Dr. del Castillo that Mr. Rosario understood and was fully aware of the discussion the two were having about the planned arteriogram. At the conclusion of their conversation, Mr. Rosario signed the standard VA "informed consent" form and "Request for Administration of Anesthesia and for Performance of Operations and Other Procedures" form in the presence of Dr. del Castillo.

At approximately 10:35 a.m. on January 28, 1985, Dr. Srinivasan, the neuroradiologist who was to perform the arteriogram, met Mr. Rosario in the angiography suite located in the radiology department. Dr. Srinivasan described to Mr. Rosario what would happen during the arteriogram.

Just prior to the start of the procedure, a radiology nurse, Dorothy Stewart, established Mr. Rosario's "baseline" by measuring and recording his pulse, blood pressure, heart rate, alertness, speech, and known allergies. In addition, doctors took a set of x-rays of Mr. Rosario's head in order to have an initial picture of the area that was to be studied.

Since the doctors wanted to examine at least one vertebral artery and both carotid arteries, a "3-vessel" arteriogram was used. Dr. Srinivasan utilized a "right femoral" approach, which involved inserting the needle, guide wire, and catheter into the circulatory system through the right femoral artery. This artery is accessible in the patient's groin area. Before the procedure commenced, the injection site was treated with a local anesthetic.

At approximately 11:05 a.m., Dr. Srinivasan inserted the needle and guide wire into the artery and directed the wire up to the aortic arch in the direction of the carotid arteries. A 5f H1H catheter was then inserted along the guide wire to the point where the injection of the dye would take place. The contrast material being used in Mr. Rosario's arteriogram was Renografin-60.

Dr. Srinivasan decided to first study the left common carotid artery, the primary artery that supplies blood to the area of the brain where the suspected stroke-induced infarction was thought to be.11 However, when the doctor attempted to guide the catheter into the correct position, he discovered that the catheter he was using was the inappropriate for studying the left common carotid artery. The...

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