Short v. US

• Decision Date: 27 November 1995
• Docket Number: Civ. No. 1:93CV233.
• Citation: 908 F. Supp. 227
• Parties: Bernard L. SHORT and Marjorie Short v. UNITED STATES of America.
• Court: U.S. District Court — District of Vermont

908 F. Supp. 227

Bernard L. SHORT and Marjorie Short v. UNITED STATES of America.

Civ. No. 1:93CV233.

United States District Court, D. Vermont.

November 27, 1995.

COPYRIGHT MATERIAL OMITTED

Thomas W. Costello, Brattleboro, VT, for plaintiffs.

Helen M. Toor, U.S. Attorney's Office, Burlington, VT, for defendant.

MEMORANDUM OF DECISION

MURTHA, Chief Judge.

The plaintiffs, Bernard and Majorie Short, have brought this action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2674. They claim to have suffered damages as a result of the negligent failure of an internist at the Veterans Administration Hospital in White River Junction, Vermont (hereinafter the "VA Hospital") to diagnose Mr. Short's prostate cancer. On September 25, 26, 27 and 29, 1995, the Court conducted a bench trial in the instant matter. Upon consideration of the evidence presented at trial, after full review of the record before the Court, and for the reasons set forth infra pursuant to Fed. R.Civ.P. 52(a), judgment is entered in favor of the plaintiffs.

I. FINDINGS OF FACT

A.

The prostate is a partly muscular and partly glandular structure that surrounds the neck of the bladder and the urethra in the male. Resembling a chestnut, it consists of a median lobe and two lateral lobes. It is approximately 2 × 4 × 3 cm large and weighs about 20 grams.

The prostate secrets a substance that forms part of the seminal fluid. See Trial Transcript Vol. I at 148 (hereinafter referred to as "Vol. ___ at ___"). Upon digital examination, the "normal prostate" has the consistency of the tip of the nose. See Vol. III at 42.

After middle age, many men experience varying degrees of discomfort as a result of prostate enlargement. Among the conditions which may cause prostate problems are prostatitis, benign prostatic hyperplasia (hereinafter "BPH") and prostate cancer.

Prostatitis is an inflammation of the prostate gland. It is usually the result of a bacterial infection, although it may also be caused by a virus. See Vol. I at 150-51. Prostatitis or other urinary tract infections may be indicated by a sudden onset of symptoms such as in swelling, tenderness and pain in the prostate, dysuria, or ache or pain in the perineal area. See Vol. I at 152; Vol. IV at 18. Often a doctor can diagnose the condition by microscopically examining a urine sample for the presence of bacteria. See Vol. I. at 153. Treatment usually involves a course of antibiotics. Vol. I at 154.

BPH is another condition which commonly causes enlargement of the prostate gland in males over 50. It is a slowly-progressing condition and can cause obstruction of the urethra. BPH is a common reason for the onset of obstructive urinary flow symptoms such as hesitancy, incontinence, weakness in the urinary stream, or nocturia. See Vol. I. at 155-56; Vol. II at 126. An individual with BPH may also exhibit irritative symptoms such as frequency, urgency, dysuria. See Vol. III at 40. On a digital rectal examination (hereinafter "DRE"), some, but not all, men show enlargement and general firmness of the prostate. See Vol. III at 41.

In the late 1980's, most physicians, particularly family practice physicians, internists, and urologists, became more aware of the problem of prostate cancer. See Vol. I at 146. For example, the American Cancer Society began a Prostate Cancer Awareness Week. See Vol. II at 116. Much of the information disseminated involved the use of the prostate specific antigen test, or PSA test, in conjunction with a DRE to diagnose the presence of prostate cancer. See Vol. I at 147.

Prostate cancer causes death in thousands of men annually. See Vol. II at 122, 127. By some estimates, approximately 30 percent of men over 50 may have latent prostatic cancers, most of which cause neither morbidity nor mortality. See Vol. II at 84, 95 (testimony of Dr. Fisher).

As an initial diagnostic procedure, physicians who are examining men complaining of prostate or urinary system problems conduct a DRE. During a DRE, the physician inserts a finger into the patient's anal canal to feel a portion of the prostate gland through the rectal wall. See Vol. I at 149. A doctor may detect hardness, irregularity, nodularity or asymmetry in part of the prostate's lobes. Such findings may indicate the presence of cancer.

All experts who testified agreed that a DRE is an inherently unreliable tool for detecting or ruling out the presence of prostate cancer. Moreover, practitioners often use vague and varying terms such as "hard," "soft," and "firm" to describe the same prostate. See Vol. II at 117; Vol. III at 39; Vol. IV at 19. Therefore, a desirable way to detect change in the prostate is for the same physician to perform several DRE's over time.

Any noticeable change in the prostate can provide a warning of a problem which needs attention. See Vol. II at 121. If a doctor finds a patient's DRE suspicious, he or she can take one of several courses. If certain that the patient's complaints suggest a benign condition with no urinary obstruction, he or she can recommend "watchful waiting," which involves monitoring a patient's condition over a period of time. See Vol. III at 45; Vol. IV at 24, 171. Watchful waiting is often the initial "treatment" elected by a person diagnosed with BPH. See Vol. III at 138. However, in the case where a primary-care physician is either unclear about the nature of the patient's condition or believes that prostate cancer is a potential diagnosis, he or she should either refer the patient to a urologist for diagnosis or order a PSA test to further assess the condition. See generally Vol. I at 155-62.

In 1991, the medical community was debating the appropriate use for the PSA test. The PSA test detects in the bloodstream traces of an antigen produced by the prostate under certain conditions, including when cancer may be present in the prostate. Most experts agree that a "normal" PSA level should be between 0 and 4 ng/ml. Recent research suggests that the chance of curing a cancer drops once the PSA level rises above 10 ng/ml. See Vol. IV at 67. However, each case is unique and a "low" PSA level does not guarantee a cure. See Vol. IV at 66.

The higher the PSA level, the more it suggests the presence of cancer. However, an elevated PSA level does not, in and of itself, indicate the presence of cancer. PBH or prostatitis may also cause elevated PSA levels. See Vol. II at 96; Vol. IV at 35. Accordingly, a definitive diagnosis can only be made after a biopsy and microscopic examination of prostate tissue samples. See Vol. II at 132.

Prostate cancer is often described in "stages." Stage "A" or "B" cancer is cancer which has not spread beyond the outer capsule of the prostate. Stage "C" cancer has spread beyond the outer capsule and stage "D" has metastasized to other organs. See Vol. III at 76.

Cancer cells also are graded using the "Gleason" scale. A tumor having a Gleason rating of 1 or 2 is described as well-differentiated or slow-growing. A Gleason rating of 8, 9 or 10 describes a cancer which is poorly-differentiated or very aggressive. See Vol. II at 126.

Some experts believe that stage A and B cancer can be cured by a radical prostatectomy, an operation in which the entire prostate gland is removed. See Vol. II at 82, 123; Vol. III at 119; Vol. IV at 142. Radical prostatectomy is most beneficial for individuals who are relatively young, i.e., who are expected to live at least 15 years. See Vol. II at 125; Vol. IV at 142. Such treatment carries a high risk of impotence, urinary incontinence, and in a small number of cases, death. See Vol. III at 74; see also Vol. IV at 77-78.

The growth rates of prostate cancer cells can vary. See Vol. II at 121. However, most agree that the earlier the stage a prostate cancer is detected, the more treatment options a patient has and the better the chance that his cancer can be suppressed or eliminated. See Vol. I. at 161 (Dr. Clarke); Vol. II at 155 (Dr. Daly); Vol. IV (Dr. Trotter). Experts disagree, however, on how to quantify the chance of survival attributable to early detection.

B.

Plaintiff Bernard Short is a veteran entitled to receive medical care from the VA Hospital. He was born March 16, 1934. He is presently 61 years old. On October 10, 1991, he was 57 years old. See generally Vol. I at 36 et seq.

His wife, Marjorie Short is presently 57 years old. See Joint Pre-Hearing Memorandum of Stipulation of Issues of Fact (paper 47) (hereinafter "Stip. of Facts") at paras. 1-2.

At all times relevant to this matter, Dr. Elliott Fisher was an internist practicing at the VA Hospital. Stip. of Facts at para. 7. On January 10, 1991, Dr. Fisher examined Mr. Short to determine the cause of his complaints, which included a skin rash and bowel problems. See Vol. I at 70; Vol. II at 49.

At that time, however, Mr. Short had no urological complaints. Vol. I at 71; Vol. II at 54. Nevertheless, as part of the examination, Dr. Fisher performed a DRE on Mr. Short. Dr. Fisher noted that his prostate was "large but soft." Stip. of Facts at paras. 10-11; see Vol. I at 72; Vol. II at 66. At this visit, Dr. Fisher did not review Mr. Short's medical records and therefore did not know that Mr. Short had been seen by the VA on previous occasions. See Vol. II at 60.

As a result of the January 10, 1991 examination, Dr. Fisher referred Mr. Short for a dermatology consult. Stip. of Facts at para. 13. In addition, Dr. Fisher referred Mr. Short to a gastroenterologist for a sigmoidoscopy. See Vol. I at 73. On January 24, 1991, VA gastroenterologist Dr. James A. Doull performed the sigmoidoscopy and noted that Mr. Short's prostate was "firm, and moderately enlarged." Stip. of Facts at para. 12.

Mr. Short experienced the onset of urological symptoms in August or September of 1991. See Vol. I at 72, 76. Dr. Fisher again examined Mr. Short on October 10, 1991. Mr. Short described his symptoms as involving the frequency and...