Swanson v. US By and Through Veterans Admin.

• Decision Date: 14 February 1983
• Docket Number: Civ. No. 82-1029.
• Citation: 557 F. Supp. 1041
• Parties: Kenneth N. SWANSON, Plaintiff, v. The UNITED STATES of America, acting By and Through the VETERANS ADMINISTRATION, Defendant.
• Court: U.S. District Court — District of Idaho

557 F. Supp. 1041

Kenneth N. SWANSON, Plaintiff, v. The UNITED STATES of America, acting By and Through the VETERANS ADMINISTRATION, Defendant.

Civ. No. 82-1029.

United States District Court, D. Idaho.

February 14, 1983.

Gary L. Montgomery of Marcus, Merrick & Montgomery, Boise, Idaho, for plaintiff.

Warren Derbidge, Asst. U.S. Atty., Boise, Idaho, for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

RYAN, District Judge.

This non-jury action is a suit brought under the Federal Tort Claims Act, 28 U.S. C.A. § 1346(b). The plaintiff seeks to recover damages for injuries suffered by the plaintiff resulting from the government's failure to properly diagnose and treat a brain tumor in a timely and proper manner. Trial commenced on January 24, 1983, and concluded on January 27, 1983. The parties introduced oral and documentary evidence. Prior to trial, counsel filed a stipulated joint pretrial statement and submitted to the court a proposed Pretrial Order, which was signed by the court on the first day of trial, stipulating liability. The parties agreed that the failure to perform a CAT scan by the Veterans Administration Hospital in the fall of 1976 fell beneath the medical standard of care. Counsel further filed with the court pretrial briefs, and at the close of the evidence the parties rested and the cause was submitted to the court. Counsel for both parties briefly made arguments to the court concerning certain inquiries of the court at the conclusion of the trial. The court enters the following Findings of Fact and Conclusions of Law pursuant to Rule 52(a), Federal Rules of Civil Procedure, on the issue of damages to be awarded to the plaintiff, Kenneth N. Swanson.

FINDINGS OF FACT

1. The plaintiff, Kenneth N. Swanson, is presently 28 years of age and currently resides in Seattle, Washington.

2. That the plaintiff spent most of his minor years in Idaho Falls, Idaho. He enjoyed a close relationship with his father and stepmother and with his brothers. He enjoyed a normal childhood, which included a love of skiing and hunting and other outdoor activities. The plaintiff was described as being outgoing, popular with his peers, and enjoyed a good sense of humor.

3. The plaintiff's academic accomplishments in primary and secondary schools were average.

4. The plaintiff dropped out of his senior year in high school, obtained a G.E.D. from Ricks College, and in 1971 enlisted in the United States Army. He did well in the Army for the first couple of years and attained the grade rank of E-5 in a shorter than normal period of time. Thereafter, the plaintiff demonstrated problems which were noticed by others, and was admitted to an Army hospital in Frankfurt, Germany, where he was diagnosed as having acute schizophrenia. This ultimately led to his discharge (honorable) on July 23, 1974.

5. After plaintiff's discharge from the Army, he periodically sought medical assistance from the Veterans Administration and was unable to obtain relief from his continuing afflictions.

During the time he was seeking this help, principally at the V.A. hospital in Salt Lake City, he was diagnosed as having multiple sclerosis and schizophrenia. In 1976 he was referred to the Portland V.A. hospital, wherein his records showed a diagnosis of multiple sclerosis and schizophrenia. On or about September 21, 1976, at the Portland V.A. hospital, a Dr. Janice Stevens filed a report with the V.A. in Portland, Oregon, in which she stated that, "the possibility of a brain stem lesion, quite capable of causing all of plaintiff's signs, should be excluded." This was followed up in a written report by Dr. Douglas A. Robb, advising the Portland V.A. hospital to proceed with a workup and the diagnostic tool of a CAT scan was ordered. On October 1, 1976, the plaintiff was scheduled by written order of Dr. Robb for an E.M.I. (CAT scan) at Portland, Oregon, with instructions to, "look for signs of M.S. or brain tumor." This was never done and the plaintiff was discharged from the Portland V.A. hospital about one month later, on November 2, 1976.

6. The plaintiff continued to have problems and continued to deteriorate. He had weakness in his right arm and right leg, which had developed into chronic ataxia. He further developed loss of hearing in his right ear; slurring in his speech; vision problems, including blurring and double vision; and as time went on it became very difficult for him to swallow. Further, in 1978 he began to experience severe and excruciating headaches on a daily, 24-hour basis, which at times would totally immobilize him. Each of these symptoms got progressively worse through the years 1978, 1979 and into the spring of 1980.

7. In March of 1980 the plaintiff was flown to Boise, Idaho, and was seen by a Dr. Wilson, a neurologist, who, as a part of the examination, ordered a CAT scan. Dr. Wilson diagnosed the plaintiff as not having multiple sclerosis, but that he in fact had a massive brain tumor which had grown to such a size that it created a hydrocephalus or stopped the normal draining of brain fluids, thus causing an acute pressure problem which required the immediate placement of a shunt to drain off the brain fluids. In due course, this was followed by surgery for removal of an epidermoid tumor which was located in the posterior fascia. This epidermoid tumor, according to all experts testifying, apparently originated in the cerebella pontine angle. This epidermoid tumor was described by the doctors as very difficult to remove in that in its process of growing it creeps into all crevices, and in the area of the cerebella pontine angle, critical nerves are involved so that it was impossible for the surgeon to completely remove the tumor without causing further debilitating damage to the plaintiff.

8. The parties have agreed, and the defendant has admitted, that the failure of the Veterans Administration at Portland, Oregon, to perform the CAT scan in 1976 fell beneath the medical standard of care of the community and area. It was further admitted by the defendant that if the scan had been done by the Veterans Administration in 1976, such a scan would have disclosed a brain stem lesion or the tumor that was later found in 1980. The admission and the evidence is clear and convincing that there was a critical misdiagnosis by the Veterans Administration Hospital.

9. Following the surgery or removal of the epidermoid tumor, the plaintiff showed marked symptomatic improvement. He was relieved from his excruciating headaches from which he suffered continuously for approximately two years. His problem in swallowing disappeared, and his speech became greatly improved. His personality apparently became markedly improved to the delight of his family and close friends.

10. Postoperatively the plaintiff, for a time, was much more compatible with his family and friends. However, it now appears that the plaintiff's prior symptoms and personality problems and the prognosis thereof are again deteriorating. He later had an episode wherein he had an infection of the shunt, which was treated. The plaintiff will be required to continue with the shunt, which presently drains brain fluids into his abdomen, for the remainder of his lifetime.

11. Plaintiff's expert, Dr. Robert Burton, a specialist in neurology, has done a recent clinical examination of the plaintiff and is of the opinion (which opinion was not otherwise disputed) that the plaintiff continues to have the problems of a slurred speech, ataxia in his right arm and right leg and right hand, together with a weakness in his right arm and right leg; he suffers from double vision and ossolopsia (jiggly eyes), marked reduced hearing in his right ear, and is of the opinion, and the court so finds, that each and all of these disabilities are permanent.

12. Plaintiff's expert, Dr. Thomas Green, a clinical neuropsychologist who specializes in problems of behavior status of brain function, gave the plaintiff a large battery of psychological tests wherein he found from comparison to prior tests that had been given to the plaintiff and from his high school records, there had been a diminishing in plaintiff's I.Q. and a decline in his psychometric intelligence, and was of the opinion that the plaintiff could expect a further decline of psychometric intelligence greater than that caused by aging alone. He found there was a diminishing of memory ability and that, in his opinion, the plaintiff would not be able to reenter the work force.

13. Dr. Green further testified: the psychosis suffered by the plaintiff during the period of time from the onset of the tumor until the surgery in 1980, developed in the plaintiff a "life of its own which became inured and a part of the plaintiff's personality" and that the plaintiff continues to have chronic symptoms of being antisocial, difficult to deal with, a lower status, a strong animosity to his father and others, generally suspicious in nature, all of which is described as an organic personality syndrome.

14. Kenneth Swanson has undergone a painful and dangerous surgical operation upon his brain to remove the tumor, which tumor had grown to a point that it could not be fully extracted. He has undergone two eye surgical operations and will likely require further surgery on the eye. He faces the further likelihood of another life-threatening brain surgery.

15. Kenneth Swanson is no longer able to interact socially with others in a normal manner. He faces the likelihood or prospect that he will never be able to marry or enjoy the benefits of family life. He is no longer able to engage in recreational, sporting and other outdoor activities which he greatly enjoyed in the past, and as a result, his capacity for enjoying life has been greatly diminished.

16. Kenneth Swanson's ability to work is greatly impaired. He has lost wages and will incur additional lost wages in the future in that it would appear that he will never be able to join the...