Del Valle Rivera v. United States

• Decision Date: 24 February 1986
• Docket Number: Civ. No. 85-0144 (JAF).
• Citation: 630 F. Supp. 750
• Parties: Maria Luisa DEL VALLE RIVERA; Irma Teresa Colon; Juan Isidro Colon; Juan Gerardo Colon; and Maria De Lourdes Colon, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Puerto Rico

630 F. Supp. 750

Maria Luisa DEL VALLE RIVERA; Irma Teresa Colon; Juan Isidro Colon; Juan Gerardo Colon; and Maria De Lourdes Colon, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. No. 85-0144 (JAF).

United States District Court, D. Puerto Rico.

February 24, 1986.

Wilfredo A. Geigel, Santurce, P.R., Thomas R. Lincoln, San Juan, P.R., for plaintiffs.

Fidel A. Sevillano, Asst. U.S. Atty., for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER OF JUDGMENT

FUSTE, District Judge.

This is a Federal Tort Claims Act case, 28 U.S.C. § 2674. Jurisdiction exists pursuant to 28 U.S.C. § 1346. The action is one for damages as a result of a claim of medical malpractice resulting in the death of a patient at the Veterans Administration Hospital, San Juan, Puerto Rico. The applicable law to define the standard of fault and recovery is the law of Puerto Rico. Richards v. United States, 369 U.S. 1, 15, 82 S.Ct. 585, 594, 7 L.Ed.2d 492 (1962), In re N-500 L Cases, 691 F.2d 15, 27 (1st Cir.1982).

Juan Isidro Colón, a resident of Barranquitas, Puerto Rico, died on July 9, 1982 while hospitalized at the Veterans Administration Hospital, San Juan, Puerto Rico. This 49-year old patient had a history of severe liver disease, cirrhosis secondary to alcoholism, diabetes mellitus, portal hypertension, obesity, a record as a smoker, and esophageal varices.

Prior to the July 1982 hospitalization, the evidence shows that in November 1981 Mr. Colón had a bleeding episode from esophageal varices. When Mr. Colón had the first esophageal bleeding, he went to the Menonite Hospital in Aibonito, Puerto Rico. Aibonito and Barranquitas are rural towns in central Puerto Rico. The Menonite Hospital is the closest private hospital in that area of the island other than the town health centers operated by the Department of Health.

From the Menonite Hospital, Mr. Colón came to the Veterans Administration Hospital in San Juan and was admitted as an emergency patient. During the November/December 1981 hospitalization, he had to be attended at the intensive care unit. Bleeding stopped and he was transferred to a ward. He was given a week-end pass, felt ill, came back to the Veterans Administration Hospital in San Juan, had to be blood transfused, and managed until he became stable. He was discharged. The record is silent as to whether he was given follow-up appointments other than a "return to clinic" for orthopedic reasons.

When Juan Isidro Colón was discharged from the Veterans Administration Hospital in San Juan in December 1981, it was obvious that aside from his severe chronic liver disease secondary to alcoholism, diabetes mellitus, portal hypertension, obesity, and history of smoking, his clinical picture was aggravated further by the mentioned episode of bleeding from esophageal varices. The state of health of this patient was not promising in any sense of the word.

There is no credible evidence as to what treatment, if any, what precautions, diet, etc., were followed by Juan Isidro Colón after discharge from the Veterans Administration Hospital until the second hospitalization of July 1982. There is mention of him seeing a known gastroenterologist in San Juan, Dr. Juan Colón-Pagán, on an informal basis. The witnesses presented by plaintiffs cannot attest as to whether the visit or visits by the patient to his physician relative had a medical purpose. Plaintiffs did not produce evidence of treatment or treatments at the Menonite Hospital for any period of time. They further failed to corroborate whether a Dr. Santiago, a physician with practice in Barranquitas, saw Mr. Colón for follow up. It remains a mystery what, if anything, Mr. Colón did in relation to his condition, although it is obvious from the medical expert testimony received that it is very unlikely that Mr. Colón went unattended from December 1981 to July 1982. A patient with the history of severe disease we have related, including diabetes, could not be self-managed on over-the-counter medication. On this aspect, our appreciation of the evidence is that the plaintiffs, for whatever reasons, did not consider important the developments occurring between December 1981 and July 1982. At one point in time during Mrs. Colón's testimony (the widow and coplaintiff Maria Luisa del Valle-Rivera), she seemed to indicate that it was possible that her husband did not keep her abreast of developments. In any event, this would be the least offensive of the possibilities for the failure to develop the facts fully and complete the documentation on the progress of the condition that led to this suit.

As stated before, in July 1982 the patient was brought back to the Veterans Administration Hospital in San Juan. Once again, he was bleeding from esophageal varices, all other complications present. The patient died on July 9, 1982. Plaintiffs claim that the two hospitalizations, that is, November/December 1981 and July 1982, were tainted with medical/professional decisions on the part of the Veterans Administration Hospital and attending physicians, tantamount to medical malpractice. Plaintiffs do not dispute the seriousness of Mr. Colón's compound of maladies. They claim that negligence is present because:

I. During the 1981 and 1982 hospitalizations, even though suggested, no surgical evaluations were made. Surgery, that is, a portacaval shunt, should have been considered and possibly performed to bypass blood from the damaged esophagus to the liver as a relief measure. This was a viable alternative at the time of the first hospitalization when he was still a better surgery risk.

II. Upon discharge from the 1981 hospitalization, no return to clinic for further follow up, other than return to clinic for orthopedics, was given, thus the patient was sent home without medication, instructions, etc., as if sent to die.

III. During the 1981-1982 hospitalizations, at one point or another, the patient was treated, among other physicians, by interns.

IV. The patient was not offered sclerosis therapy as an alternative to surgery.

We have carefully considered the evidence originally presented. In addition, we received the testimony of other V.A. Hospital physicians who had dealt with the patient. These were not announced as witnesses; they were ordered to appear and testify. We further ordered a court-appointed expert to assist the court. We conclude that there is no negligence and/or medical malpractice and, thus, no actionable wrong. We find that on the evidence in this record, there is no preponderance to favor plaintiffs. On the contrary, the record shows that no matter what was done or not done, the survival and quality of life of this patient was questionable from day one in this process or factual scenario depicted by the evidence. In reaching this conclusion, we have given due consideration to the demeanor and credibility of witnesses, Fed.R.Civ.P. 52. We are left with the distinct impression that plaintiffs' case was limited to pointing out acts and omissions in the treatment and in the keeping of the medical record without due regard to the facts seen as a whole.¹

I.

It is claimed that during the 1981 hospitalization, attending gastroenterology fellow, Dr. Manuel A. Santini, recommended a surgical evaluation of the patient for the possibility of a portacaval shunt (bypass) operation. The claim goes further. It is claimed that this surgery should have been not only considered, but possibly performed to bypass blood from the damaged esophagus to the liver as a relief measure in order to prevent deadly bleedings. Plaintiffs claim that this was a viable alternative at the time of the 1981 hospitalization when Mr. Colón was a better surgical risk.

In this respect, the evidence shows that on the two periods of hospitalization, a surgical consultation was in order. It was standard procedure to request such consultation in case the patient became an imminent surgical candidate. Dr. Santini's recommendation was not followed in 1981 by Dr. José M. Martinó Trilla, staff physician and medical director of the Veterans Administration Hospital Intensive Care Unit. All of Dr. Santini's recommendations were followed, except that of surgical consultation. It was the attending physician's opinion that the surgical consultation was not needed. Mr. Colón had stopped bleeding. In this respect, all physicians seemed to agree that it was good practice to consult, but everybody, except Dr. Suau, also seemed to agree as to the fact that in the serious/compounded clinical picture presented in this case, a portacaval shunt (bypass) was not the answer to longer survival and better life. The controlled studies performed by academics on the subject are clear as to the fact that no significant advantage is gained in patients with surgery as to survival or quality of life. A patient that has bled from esophageal varices is not helped by the shunt, especially if the liver is impaired. His complicated condition made him a surgical risk if faced with an operation with very high mortality statistics, and no guaranteed results. Surgery was not advisable. It would have resulted in hepatic failure, bleeding, coma, and possibly death in any event. The evidence seems to indicate that it is very difficult to select a good risk patient (in this case Colón) for shunting in conditions of serious decompensation of the liver and diabetes. As to the possibility of surgery after the July 1982 bleeding episode, it is clear from the record that second bleedings are usually fatal. There is no preponderance of evidence favoring surgery during the 1982 hospitalization. In conclusion, good medical practice calls for the surgical consultation. No surgical consultation was ever conducted. However, the evidence strongly suggests that in the context of Juan Isidro Colón's medical picture, such a consultation would have been a mere formality. The patient could not be helped by surgery.

II.

It is claimed that when Mr....