Wheat v. United States

• Decision Date: 21 February 1986
• Docket Number: Civ. No. A-83-CA-423.
• Citation: 630 F. Supp. 699
• Parties: William O. WHEAT and Freda Barlow, Individually and as Heirs to the Estate of Shilla Wheat; Shilla Malette Aaron, Individually and as an Heir to the Estate of Shilla Wheat, By and Through Her Next Friend, Sam M. Aaron; and Albert and Catherine Harper v. The UNITED STATES of America et al.
• Court: U.S. District Court — Western District of Texas

630 F. Supp. 699

William O. WHEAT and Freda Barlow, Individually and as Heirs to the Estate of Shilla Wheat; Shilla Malette Aaron, Individually and as an Heir to the Estate of Shilla Wheat, By and Through Her Next Friend, Sam M. Aaron; and Albert and Catherine Harper v. The UNITED STATES of America et al.

Civ. No. A-83-CA-423.

United States District Court, W.D. Texas, Austin Division.

February 21, 1986.

William O. Whitehurst, Jr., Kidd, Whitehurst, Harkness, Austin, Tex., for plaintiffs.

Gordon D. Laws, Asst. U.S. Atty., San Antonio, Tex., for the U.S.

Bob Burleson, Bowmer, Courtney, Burleson, Pemberton & Normand, Temple, Tex., for Dr. Harold L. Wood.

ORDER

NOWLIN, District Judge.

The Plaintiffs in this case are Mr. William O. Wheat, individually and as community survivor, surviving spouse, and the heir-at-law of Ms. Shilla Wheat; Freda Joyce (Barlow) Watson, individually and as an heir-at-law of Shilla Wheat, Deceased; Shilla Malette Aaron, a minor, and the younger daughter of Shilla Wheat, Deceased; by and through her natural father and legal custodian, Sam M. Aaron, as her next friend, and Shilla Wheat's parents, Albert and Catherine Harper. The case was tried in November, 1985, against two Defendants, the United States of America and Dr. Harold L. Wood. The United States is sued under the Federal Torts Claim Act, 28 U.S.C. § 2671 et seq. This Court has jurisdiction under the provisions of 28 U.S.C. § 1346(b). The Plaintiffs are citizens of California and Arkansas, and Dr. Wood is a citizen of Texas. Therefore, this Court had jurisdiction over the parties under diversity of citizenship, 28 U.S.C. § 1332. The Court's Findings of Fact and Conclusions of Law are incorporated into the opinion.

The trial ended before the jury was charged or deliberated. Plaintiffs settled with Dr. Wood as to all of their claims against him. The claims of the Plaintiffs against the United States now are before this Court. The suit involves claims by the Plaintiffs that the medical and surgical care that was furnished by Dr. Wood and the U.S. Army to Shilla Wheat was so inadequate as to be negligent. This case was painful for the Court to hear since the testimony and evidence introduced reveals that a human life was squandered because of the blatant negligence of several Army physicians, and the intentional actions of Dr. Wood.

Briefly, the deceased, Shilla Wheat, was treated in June, 1978, at Darnall Army Hospital, Fort Hood, Texas, for severe menstrual cramps and other related problems. The Army physicians, after a cursory medical examination, diagnosed early menopause. Later, she visited the offices of Dr. Wood, and in September, 1979, Dr. Wood performed a hysterectomy on the Plaintiff at Metroplex Hospital, Killeen, Texas. Shilla Wheat's symptoms did not cease after the operation. Within one week of the operation, Dr. Wood knew, or should have known from pathology reports from the surgery that Shilla Wheat was suffering from cancer of the cervix. Dr. Wood continued to attend to Shilla Wheat, but he never informed her or any member of her family that she was suffering from cancer. He did note the cancer in his medical notes, but that would accomplish nothing in terms of his patient, Shilla Wheat. Throughout 1979 and 1980, Shilla Wheat returned to see Army physicians on more than two dozen separate occasions. She sought medical care at Brooke Army Medical Center in San Antonio, Texas, and at Darnall Army Hospital. She complained of vaginal and rectal bleeding and rectal pain that was radiating into her lower back and her legs. The treatment given her by the Army physicians was mostly in the form of prescription narcotics and suggestions that she visit a psychiatrist. In March, 1981, Shilla Wheat collapsed as a result of severe renal failure and cardiac arrest. For the first time, Plaintiffs were informed by physicians at the Metroplex Hospital that Shilla Wheat was suffering from cancer. Shilla Wheat was to linger on for one more year, withering away with each passing month. She died on March 10, 1982.

Shilla Wheat's family brought this suit to recover for the pain, suffering, and mental anguish that Shilla Wheat suffered prior to her wrongful death. The members of her family also claim that they have damages from their pain and suffering and mental anguish throughout the sad course of events as Shilla Wheat slowly died. There is no question that the negligence of the physicians involved caused Shilla Wheat's untimely death; and a great deal of unnecessary pain and suffering. Plaintiffs claim damages pursuant to TEX.REV.CIV.STAT. ANN. art. 4671, et seq. now TEX.CIV. PRAC. & REMEDIES CODE §§ 71.001-71.011 (Vernon 1985) for the interruption of the family relationship and loss of companionship, society, affection, consortium, financial contributions and wrongful death. Plaintiffs also seek damages pursuant to TEX.REV.CIV.STAT.ANN. art. 5525 (Vernon 1958), the Texas Survival Death Statute now TEX.CIV.PRAC. & REMEDIES CODE § 71.021 (Vernon 1985) . Plaintiffs also claim that they will suffer damages in the future. Dr. Wood's actions were reprehensible, they caused tremendous pain and suffering, and were a proximate cause of Shilla Wheat's death. The question that remains is whether the United States is also liable for damages to Plaintiffs.

The United States responds that their physicians and medical staff exercised reasonable care in treating Shilla Wheat and in conducting medical diagnostic examinations. They focus the blame solely on Dr. Wood. The United States' claim, reduced to its most basic elements, is that by the time Shilla Wheat was treated by the United States physicians, it was too late to save her. Even if they misdiagnosed the cancer they argue, the cancer had already progressed too far to be treated. The Court believes that Shilla Wheat and her family's extensive pain, suffering and anguish, and her death, were directly and proximately caused by the negligence and malpractice of United States Army personnel and physicians. Those physicians and personnel failed to even diagnose, much less properly treat the deadly carcinoma. The sins of Dr. Wood are now beyond this Court's powers of retribution, but the Court believes and herein finds that Dr. Wood also was negligent in his grossly inadequate medical treatment of Shilla Wheat's carcinoma; this was amplified by his failure to relay information necessary to Shilla Wheat or her family so that she could have acquired medical treatment to save herself from the ravaging cancer in her body. As a direct consequence of the negligence on the part of all of the Defendants, this Court will award damages against the United States under the Federal Torts Claim Act. The Court is of the opinion that the responsibility for the injuries to Plaintiffs and Shilla Wheat must be shared equally between the United States and Dr. Wood. In other words, 50% of the damages must be assessed against each of the Defendants. Plaintiff has settled with Dr. Wood. Under Texas law, if this were entirely a jury trial, either the Plaintiff or the non-settling Defendants could elect that the negligence of the settling Defendant be submitted to the jury. In this case, Plaintiffs desire the Court to determine the negligence of both parties. The Court now enters its opinion as follows:

Medical Treatment By the Army

In 1978, Shilla Wheat was thirty-seven. On May 1, 1978, she went into the Darnall medical facilities at U.S. Darnall Hospital, Fort Hood, Texas. She informed the physician on duty that she had been taking birth control pills for six years to control an irregular menstrual cycle. A pap smear was taken. The cytology examination revealed minimal dysplasia which is a possible pre-malignant change in which the cells examined were abnormal. A reasonably prudent gynecologist would have been alerted to the possibility of cancer. Tests should have been ordered to determine if cancer was present. The Court believes that the proper standard of medical care in Central Texas in 1978 required that a repeat pap smear be taken within three months. The Army physician recommended that Shilla Wheat receive a repeat pap smear in six months. On June 26, 1978, Shilla Wheat sought treatment at Darnall Army Hospital complaining of heavy menstrual bleeding, a painful pelvis, painful intercourse and an unusual, white, jelly-like discharge. Shilla Wheat was referred to the OB/GYN clinic on the Post. She informed the physician of her symptoms. Plaintiffs introduced through their medical expert, Dr. Tad Davis, a note taken from the gynecology clinic from June 20, 1978. The note indicates Shilla Wheat had given her symptoms as unusually prolonged bleeding for one month, with blood clots. She told the physicians that she had been on birth control pills to control this abnormal bleeding until May 1, 1978. This should have put the physicians on alert for potential cervical cancer. On June 28, 1978, at the OB/GYN clinic, Shilla Wheat had an endometrial biopsy of the upper part of the uterus. This test proved negative. No fractional dilation and curretage (D & C) or laproscopy was performed, even though they were ordered, and even though the standard of medical care required that they be performed. No tests were ordered to be done in the future. Had a fractional D & C been performed, there is a high probability the cancer would have been detected. On July 17, 1978, she returned to the clinic for an examination. She returned on July 20, 1978 suffering from abnormal uterine bleeding; abdominal pain; and a white, jelly-like vaginal discharge. Shilla Wheat was referred to the OB/GYN Clinic. A fractional D & C was ordered, as well as a laproscopy scheduled for August 9, 1978. The Court believes that the proper standard of medical care required the doctors to perform a pap smear, a fractional D & C and even a biopsy of the cervix. This was not done. The failure to do these tests, however, was at least in part due to the...