Valencia v. US, Civ. 90-351-TUC-WDB(NF).

• Decision Date: 29 January 1993
• Docket Number: Civ. 90-351-TUC-WDB(NF).
• Citation: 819 F. Supp. 1446
• Parties: Petra VALENCIA, widow of Raymond A. Valencia, Sr., deceased; Santa Estella Mork, Guadalupe Valencia, and Rosa Maria Jacinta Valencia, natural and surviving children of Raymond Valencia, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Arizona

819 F. Supp. 1446

Petra VALENCIA, widow of Raymond A. Valencia, Sr., deceased; Santa Estella Mork, Guadalupe Valencia, and Rosa Maria Jacinta Valencia, natural and surviving children of Raymond Valencia, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. 90-351-TUC-WDB(NF).

United States District Court, D. Arizona.

January 29, 1993.

Alexander L. Sierra, Kerley & Sierra, Tucson, AZ, for plaintiffs.

Cindy K. Jorgenson, Asst. U.S. Atty., Tucson, AZ, for defendant.

AMENDED FINDINGS OF FACT; CONCLUSIONS OF LAW; OPINION AND ORDER

FIORA, United States Magistrate Judge.

This is a wrongful death action brought against the United States of America under the Federal Tort Claims Act, Title 28, United States Code, Section 2671, et seq., by plaintiffs, Petra Valencia (Mrs. Valencia), widow of Raymond A. Valencia, Sr., and their three adult daughters, Santa Estella Mork (Estella), Guadalupe Valencia (Guadalupe), and Rosa Maria Jacinta Valencia (Rosa). Raymond Valencia, Jr., who was also a plaintiff in this action, was voluntarily dismissed with prejudice on April 26, 1991. Plaintiffs claim that decedent died as a result of negligence by Patricia Mayer, M.D., in the diagnosis, care, and treatment of decedent at the Life Support Unit (LSU) of the Veterans Administration Medical Center (VAMC) on Saturday, March 11, 1989.

Plaintiffs claim that the United States of America, through its employee, Dr. Mayer, was negligent in failing to properly diagnose decedent's condition, in failing to provide appropriate treatment and in failing to admit decedent in response to a telephone call from the family made two hours subsequent to decedent's departure from the LSU.

This matter came on for trial to the court without a jury on November 5th, 6th and 7th, 1991, and January 16th and 17th, 1992.

Pursuant to Federal Rule of Civil Procedure 52, the court makes the following Findings of Fact and Conclusions of Law.

INTRODUCTION

The facts before us are complicated and tragic. The Valencia family has lost the husband and father they worked for so many years to nurture, sustain and keep at the heart of their family. It is difficult to accept that one who has been so well loved and carefully attended by his family has fallen, despite their diligence, alone and unseen, and has died days later, despite the family's most vigorous efforts to keep him with them. Mr. Valencia suffered for many years from multiple ailments, enduring both psychological and physical distress. He was blessed with a close and loving family, which did not hesitate to tend to his needs as they could, or to seek professional attention for him whenever the need arose.

On the weekend of March 11, 1989, family members were willing to help him care for himself; they assisted him eating, drinking and moving about as needed. Mr. Valencia did not want their assistance in the bathroom. In pain and very weak, Mr. Valencia went, unassisted, into the bathroom and alone there he collapsed. The care and treatment of Mr. Valencia at the VAMC on March 11, 1989, the day before his collapse, constitute the gravamen of this complaint.

Mr. Valencia's medical condition was such that the experts, after all the examinations of tests and reviews of his medical history, are unable to reach accord as to the cause of his death on March 15, 1989. So numerous were the assaults upon his body at the time of his collapse that it is impossible for the experts to agree even upon the cause of his collapse on March 12, 1989.

What is clear to the court, on the record before us, is that Mr. Valencia's death was not the result of medical malpractice.

FINDINGS OF FACT

Factual Background:

1. Raymond A. Valencia, Sr. (decedent) died on March 15, 1989, at Kino Community Hospital (Kino) in Tucson, Arizona, at the age of 51, having been released from the VAMC by Dr. Mayer on March 11, 1989.

2. On Saturday, March 11, 1989, during flu season, decedent awoke early, as was his custom, and soon thereafter complained of a sudden onset of chest pain and shortness of breath. Family members called for emergency ambulance service, which service they had used many times.

3. Tucson Fire Department paramedics responded. The paramedics placed decedent on 12 liters of oxygen, a normal amount of oxygen provided by those paramedics to a person with chest pain. Decedent's respiratory rate (RR), taken by the paramedics, was 20.

4. Paramedic time spent at the scene and in transporting decedent to the hospital totalled approximately 15 minutes. Throughout the course of contact between decedent and the paramedics, decedent's responses were normal; eye opening was spontaneous; RR, pulse and blood pressure were regular; eyes functioned normally; and decedent was oriented and able to obey commands. Decedent was warm and dry, his color was good, and he had no nausea. Decedent reported to the paramedics that his pain increased upon deep inspiration.

5. At approximately 7:50 a.m. on March 11, 1989, the ambulance brought decedent to the VAMC LSU. Decedent was a veteran of the United States Armed Forces and therefore entitled to medical treatment at the VAMC.

6. When the ambulance arrived at the LSU, Dr. Mayer, a resident, was the one physician on duty, along with one nurse practitioner, Paula Goldthorpe, R.N.P., and one clerk. Dr. Mayer is a Board Certified Internist and is Board-eligible in Rheumatology, which is her current practice. Her duties on March 11, 1989, included diagnosis and treatment of patients needing care at the LSU.

7. Dr. Mayer took decedent off oxygen when he first got to the VAMC. She believed oxygen was inappropriate for him because he suffered from chronic obstructive pulmonary disease (COPD). Thereafter he breathed room air (RA). Estimated time decedent was on oxygen administered by the paramedics is approximately 15 minutes.

8. Upon arrival at the LSU, decedent's chief complaint was chest pain. He had pain upon deep inspiration and no shortness of breath. At the LSU, Dr. Mayer examined decedent and reviewed his medical history. She took his vital signs, drew venous blood for Complete Blood Count and Differential (CBC and Differential) and arterial blood for Arterial Blood Gases (ABGs). She recorded her findings and decedent's past medical history on the LSU report (Defendant's Exhibit 26, pp. 20, 22).

9. The LSU report is the LSU record of decedent's presentment, condition, examination, findings and treatment on March 11, 1989. It reflects decedent's subjective presentation: a 51-year old male with onset that morning of right pleuritic chest pain, chills and fever. Decedent claimed no cough, mild shortness of breath with onset of fever, but no shortness of breath at the LSU. Pain was experienced only on deep inspiration and not associated with exertion.

10. There is a discrepancy in the record between the LSU Report and the Diagnostic Radiology Report (Defendant's Exhibit, 26, p. 7) regarding the existence of a cough. The x-ray report shows decedent had a cough; the LSU report is contra.

11. The LSU report also bears the results of Dr. Mayer's physical examination of decedent as shown in her objective findings: An Hispanic male wheezing upon inspiration/expiration; his cardiovascular condition presented with regular rate and rhythm and there was no tenderness to palpitation of his chest. His abdomen was not tender and he had no skin infection. He presented with a fever of 102.5° and blood pressure 200/116. Dr. Mayer's final objective finding was chest pain resolved prior to discharge. The objective findings also show decedent was "shivering."

12. Dr. Mayer wrote "shivering" after she whited-out the words "having rigors." Physicians are trained never to erase or white-out a notation. Corrections are properly made by drawing a line through any portion to be deleted and adding the correction alongside the delineated portion.

13. Dr. Mayer determined, from decedent's medical history, that he was being treated for seizures with Tegrital, Phenobarbital and Dilantin. She also determined decedent had been treated in the past for a stroke, hypertension, peptic ulcer disease, pneumonia, COPD, sometimes referred to as emphysema, and Barrett's esophagus, a pre-malignant lesion in the esophagus. Decedent was a chronic smoker and had been treated for alcoholism.

14. In addition to drawing blood for three blood tests, ABGs, CBC and Differential, and blood culture, Dr. Mayer did a urinalysis and an electrocardiogram (EKG), and ordered a portable chest x-ray.

15. The VAMC record shows that the test for ABG results was run at 8:43 a.m.

16. Dr. Mayer compared the ABG results of March 11, 1989, to those of a prior May 13, 1988 ABG test, run when decedent was discharged from the VAMC after treatment for pneumonia. Decedent's PO2 (partial pressure of oxygen) on both dates was 65.

17. On Saturday, March 11, 1989, the day at issue, no radiologist was on duty, nor was the x-ray department staffed, except for one x-ray technician. The x-ray technician was summoned to take a portable x-ray. The x-ray showed no infiltrate on the lungs.

18. The record is unclear as to when the VAMC Radiologist read that x-ray. It was most likely read on March 13, 1989, 2 days after it was taken at Dr. Mayer's request and read by her. The VAMC Radiologist's reading of the same x-ray confirmed the absence of any infiltrates.

19. Dr. Mayer compared the March 11, 1989 x-ray with decedent's most recent prior x-ray, taken on May 12, 1988, when decedent was treated for pneumonia.

20. Dr. Mayer had the x-ray taken because she was looking for pneumonia. She opted for a portable x-ray, as opposed to sending decedent to radiology for a two-view x-ray, because no hospital staff was available to accompany decedent to radiology, which is about a city block's distance from the LSU. A patient sent there at that time would have been without medical supervision, and most probably would have had to wait quite some time for service.

21. Dr....