Wright v. U.S.

• Decision Date: 28 August 2003
• Docket Number: No. 1:01CV00700.,1:01CV00700.
• Citation: 280 F.Supp.2d 472
• Parties: Willis WRIGHT and Elaine Helen Troxler Wright, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Middle District of North Carolina

280 F.Supp.2d 472

Willis WRIGHT and Elaine Helen Troxler Wright, Plaintiffs, v. UNITED STATES of America, Defendant.

No. 1:01CV00700.

United States District Court, M.D. North Carolina.

August 28, 2003.

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Lawrence Egerton, Jr., Egerton & Associates, Greensboro, NC, Lawrence H. Brenner, Chapel Hill, NC, for Plaintiffs.

Gill P. Beck, Lynne P. Klauer, Office of U.S. Attorney, Greensboro, NC, for Defendant.

MEMORANDUM OPINION

OSTEEN, District Judge.

Plaintiff Willis Wright alleges that Defendant's negligence caused pain and numbness in his back following prostate surgery at the Durham Veterans Administration Medical Center ("DVAMC") in Durham, North Carolina. Mr. Wright's wife, Elaine Helen Troxler Wright, claims loss of consortium. The matter comes before the court following a bench trial on April 7, 2003. Having considered the evidence, arguments, and submissions of the parties, the court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. Willis Wright was a United States Marine from 1966 to 1970 and saw combat in the Vietnam War. This experience rendered Mr. Wright 100% disabled due to post-traumatic stress disorder and exposure to Agent Orange. The prostate cancer that precipitated the surgery at issue was caused by Agent Orange exposure during Mr. Wright's military service in Vietnam.

2. Mr. Wright underwent a radical retropubic prostatectomy for the treatment of prostate cancer on June 24, 1998, at DVAMC. The attending physician was Dr. Cary N. Robertson, a urologic oncologist and surgeon at Duke University Medical Center. Dr. Stanley Hall, who was beginning his sixth and final year as a urology resident at Duke University Medical Center, also participated in the surgery. Under an agreement between DVAMC and Duke University, Duke University faculty have privileges at DVAMC and residents do multiple four-month rotations there.

3. Mr. Wright's surgery began at 9:53 a.m. and concluded at 2:05 p.m., a duration within the normal range for such a procedure. At the time of the surgery, Mr. Wright was 71 inches tall and weighed 290 pounds. He was anesthetized, rendering him unconscious throughout the procedure. Mr Wright was positioned on his back on a flexed operating table, which was capable of bearing 350 pounds and was equipped with a 2¼" thick surgical table pad. A small padded roll was placed beneath Mr. Wright's back to provide additional exposure of the surgical field. Except for the padded table and the small padded roll, no supplemental padding was provided under Mr. Wright's back or buttocks. Mr. Wright's extremities were adequately padded. The positioning and padding of Mr. Wright was typical for a radical retropubic prostatectomy procedure.

4. Surgical positioning is at the discretion and direction of the surgeon performing the operation. Nurses and other members of the surgical team who assisted in positioning and padding Mr. Wright did so under the direction of the surgeons.

5. The surgery successfully removed Mr. Wright's prostate cancer. Mr. Wright did experience, however, the common side effect of impotence. This result was not caused by negligence, and Plaintiffs do not allege as much.

6. Mr. Wright began experiencing severe pain in his lower back immediately after the anesthesia subsided, and he continues to experience pain and weakness in his left lower back and leg. Imaging and nerve conduction studies subsequently confirmed nerve damage in Mr. Wright's back and pelvic area. The nerve damage suffered by Mr. Wright is a known, but rare consequence of radical retropubic prostatectomy surgery and caused substantial, significant, and prolonged pain.

7. Mr. Wright was deemed 100% disabled in 1993 and has been incapable of working since then. Mr. Wright also received a 40% disability rating for the back injury he suffered as a result of surgery, but he received no additional compensation for his back injury from the United States because of his previous 100% disability rating. The Veterans Administration provides Mr. Wright with all of his medical care at no cost to him; therefore, he has no medical expenses. Because his previous disability renders him incapable of working, he claims no lost earnings.

DISCUSSION

Plaintiffs bring this medical malpractice action against DVAMC under the Federal Tort Claims Act.¹ Claims filed under the Act are governed by the substantive law of the state in which the alleged tort occurred. 28 U.S.C. § 1346(b); Shumaker v. United States, 714 F.Supp. 154, 158 (M.D.N.C.1988). Thus, the court follows federal rules in deciding procedural questions but applies North Carolina's substantive law of negligence. Id. In applying state law, the court must rule as North Carolina courts would, treating decisions of the state supreme court as binding and departing from "an intermediate court's fully reasoned holding as to state law only if `convinced' that the state's highest court would not follow that holding." Iodice v. United States, 289 F.3d 270, 275 (4th Cir.2002) (quoting Assicurazioni Generali, S.p.A. v. Neil, 160 F.3d 997, 1003 (4th Cir.1998)).

To prevail, Plaintiffs bear the burden of proving each element of their claims by a preponderance of the evidence. Plaintiffs claim negligence by DVAMC, which is a health care provider under North Carolina law. Moore v. Pitt County Mem'l Hosp., 139 F.Supp.2d 712, 713 (E.D.N.C.2001); Estate of Waters v. Jarman, 144 N.C.App. 98, 101-02, 547 S.E.2d 142, 144-45 (2001). They allege that Defendant, through its agents, failed to properly position Mr. Wright during surgery, failed to recognize that his position on the table for four hours placed him at risk of injury, failed to properly monitor his position on the table and to take steps to avoid injury, and failed to properly detect and manage the injury. These claims rely on two theories: medical malpractice for breach of the applicable standard of care, and negligence under the common law doctrine of res ipsa loquitur.² The court addresses each issue in turn.

A. Medical Malpractice

North Carolina state law defines a medical malpractice action as "a civil action for damages for personal injury or death arising out of the furnishing or failure to furnish professional services in the performance of medical, dental, or other health care by a health care provider." N.C. Gen.Stat. § 90-21.11. Doctors, nurses, and hospitals all qualify as health care providers. Id.; Shumaker, 714 F.Supp. at 158-59 (applying the medical malpractice statute to a physician); Page v. Wilson Mem'l Hosp., 49 N.C.App. 533, 535-36, 272 S.E.2d 8, 10-11 (1980) (nurse); Moore, 139 F.Supp.2d at 713 (hospital). To prevail on a medical malpractice claim in North Carolina, a plaintiff must establish: (1) the applicable standard of care; (2) the defendant's breach of that standard; and (3) that the breach caused the plaintiff's injury. Warden v. United States, 861 F.Supp. 400, 402-03 (E.D.N.C.1993).

The standard of care for claims arising from medical treatment in North Carolina provides:

the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.

N.C. Gen.Stat. § 90-21.12. Because this statute does not abrogate common law duties, health care providers must also exercise reasonable care and diligence in providing services and use their best judgment in the treatment and care of patients. Wall v. Stout, 310 N.C. 184, 192-93, 311 S.E.2d 571, 576-77 (1984); Bailey v. Jones, 112 N.C.App. 380, 385-86, 435 S.E.2d 787, 791 (1993) (citing Hunt v. Bradshaw, 242 N.C. 517, 521-22, 88 S.E.2d 762, 765 (1955)).

Plaintiffs typically must employ expert testimony to establish the particular standard of care to be applied to their specific facts. Shumaker, 714 F.Supp. at 159. Dr. Arthur Kaufman is Plaintiffs' sole expert on the applicable standard of care. Defendant objects that Dr. Kaufman's training and experience do not qualify him to offer expert testimony on the crucial issue in Plaintiffs' medical malpractice claim: whether the standard of care for positioning and padding a patient for radical retropubic prostatectomy was satisfied in this case. Plaintiffs must establish the admissibility of Dr. Kaufman's testimony by a preponderance of the evidence, and the court has broad discretion to determine whether expert testimony is admissible. Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199-200 (4th Cir.2001).

Dr. Kaufman is the medical director of the External Peer Review Program for the Department of Veterans Affairs, a position he has occupied for 11 years. In this capacity, he conducts monthly meetings of a physician peer review panel to assess the quality of care in 171 Veterans Administration hospitals. This work has given Dr. Kaufman extensive experience with quality assurance and injury prevention in Veterans Administration facilities nationwide. In the 1980's, he served as the medical director of the Department of Defense's Civilian External Peer Review Program, convening panels of doctors to review the quality of care in 167 military health care facilities. Dr. Kaufman testified that he specializes in preventing patient injury. He does not specialize, however, in urology, neurology, or neurosurgery, and he has never received specialized training in those fields. Indeed, Dr. Kaufman has received no surgical training since graduating from medical school in 1963. He did not train as a resident. His last sustained clinical experience involved supervising influenza vaccinations in 1980, and none of the guidelines for patient care that he helped develop during his...