Young v. United States, Civ. A. No. 86-0064-R.

• Decision Date: 30 September 1986
• Docket Number: Civ. A. No. 86-0064-R.
• Citation: 648 F. Supp. 146
• Parties: Larry S. YOUNG, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

648 F. Supp. 146

Larry S. YOUNG, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 86-0064-R.

United States District Court, E.D. Virginia, Richmond Division.

September 30, 1986.

Robert E. Pembleton, Thomas T. Hassell, Jr., Richmond, Va., for plaintiff.

Debra J. Prillaman, Asst. U.S. Atty., Richmond, Va., for defendant.

MEMORANDUM

MERHIGE, District Judge.

Procedural History

This suit was brought by Larry S. Young against the United States on January 28, 1986, under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80, claiming that the medical personnel at McGuire Veterans Administration Medical Center (VAMC) negligently performed an operation on Mr. Young's ankle and thereby caused him permanent nerve damage. The defendant, in its answer, alleged that plaintiff's injuries were not proximately caused by any negligence on the part of defendant's agents or employees and further alleged that plaintiff had assumed the risks of treatment out of which his injuries arose. Depositions were taken of Dr. William K. Fleming, Dr. Kenneth I. Kiluk, Jr., Dr. Ben R. Allen, Jr., and Larry S. and Beverly H. Young. A trial of this action was held on September 8, 1986, at which time these depositions were admitted into evidence. Both plaintiff and defendant presented argument and evidence, and the case is now ripe for disposition.

Jurisdiction

Jurisdiction is premised on 28 U.S.C. § 1346(b), which confers exclusive jurisdiction on the federal district courts over civil suits for money damages against the United States based on personal injuries caused by the negligence of government employees.

Facts

Mr. Young is a thirty-eight year old male who injured his left ankle in a mine explosion in Vietnam in 1969. Mr. Young first came to the VAMC on August 22, 1984, complaining of swelling and drainage from his left lower leg which he had suffered for the preceding year. After his initial visit, he received outpatient antibiotic treatment at the VAMC without success. Based on X-rays and a culture of pus in Young's ankle, VAMC personnel recommended his admission for surgery to incise and debride the infected ankle.

Upon Mr. Young's hospital admission on September 24, 1984, L.P. Levin, M.D., an orthopedic resident, examined him and recommended incision and debridement in the treatment plan given to William F. Fleming, M.D., a staff orthopedic surgeon. Dr. Fleming approved the plan and discussed the surgery either with Dr. Levin or with Dr. Mark Jobe, another resident. Dr. Walls, also a hospital resident, obtained Mr. Young's consent on a form authorizing the surgical procedure to be performed by or under the direction of Dr. Fleming.

Since Dr. Fleming knew Mr. Young's surgery was a relatively uncomplicated procedure and was aware of the surgical experience of Drs. Jobe and Levin, Dr. Fleming did not perform the surgery, although he was available in the hospital if assistance was needed. Dr. Jobe was an orthopedic surgical resident who had been licensed to practice medicine in Massachusetts for two years and had just been licensed to practice in Virginia. He had performed numerous surgical procedures on the lower extremities, many of which involved use of a tourniquet. Dr. Jobe performed the surgery on Mr. Young, with Dr. Levin assisting.

Prior to the surgery, Mr. Young's left thigh was padded, a tourniquet was applied somewhere between his left knee and hip, and his leg was elevated to prevent blood flow to the ankle area during surgery. Either Dr. Jobe or Dr. Levin ordered the pneumatic tourniquet to be inflated to 350 millimeters, as was done by Mary Jackson, the VAMC nurse anesthetist for Mr. Young's operation. Ms. Jackson also administered spinal anesthesia to Mr. Young. According to reports made by Ms. Jackson and by Cheryl Rice, circulating nurse, Mr. Young's leg was elevated for the relatively short period of twenty-four minutes. Dr. Jobe made an incision over the left ankle, excised the sinus tract, cleaned out the infected tissue and bone, irrigated the cavity, removed a BB-sized piece of shrapnel from the bone, and packed it with gauze. Ms. Rice recorded that the procedure went well, and neither Dr. Jobe nor Ms. Jackson recalled any difficulties with the operation.

The day after surgery, Mr. Young complained of decreased sensation in the dorsomedial aspect of the left foot and lower leg. Mr. Young was placed on antibiotics, received wound care and remained in the hospital until October 10, 1984. When he was discharged, he was told to return to the orthopedic clinic for follow-up care.

On December 19, 1984, Mr. Young reported decreased sensation on the dorsum of his foot, laterally. Based upon an electromyelogram and nerve conduction study performed at the VAMC clinic in December 1984, Mr. Young was diagnosed to have left common peroneal nerve palsy at the knee level.

Mr. Young subsequently discontinued treatment at the VAMC. Since April 1985, Kenneth I. Kiluk, M.D., a neurosurgeon, has been Mr. Young's primary physician. Dr. Kiluk has diagnosed Mr. Young to have reflex sympathetic dystrophy, which he initially treated with physical therapy and psychological counselling at the Pain Clinic. In January-February 1986, a dorsal column stimulator was implanted in Mr. Young's side to attempt to block the pain impulses, and Mr. Young reports that it has reduced his pain level.

Before his hospitalization at the VAMC, Mr. Young was employed at the Defense General Supply Center, but he has not worked since his hospitalization in September 1984.

The Merits

Plaintiff alleges that the United States is liable under the Federal Tort Claims Act because it negligently performed ankle surgery on Mr. Young. Under the Tort Claims Act, the government's liability is determined under the law of the place where the alleged act or omission occurred, in the instant case, Virginia. See Corrigan v. United States, 609 F.Supp. 720 (E.D.Va. 1985). In order to prevail, plaintiff bears the burden of proving by a preponderance of the evidence that defendant breached the standard of care in Virginia and that such breach was the proximate cause of Mr. Young's nerve damage. See, e.g., Fitzgerald v. Manning, 679 F.2d 341, 346 (4th Cir.1982). Plaintiff offers several possible theories of negligence, but he has not met his burden of proof under any of these theories.

1. Application of Res Ipsa Loquitur

Plaintiff's first and primary contention is that this case is closely analogous to Danville Community Hospital, Inc. v. Thompson, 186 Va. 746, 43 S.E.2d 882 (1947), in which the Virginia Supreme Court applied the doctrine of res ipsa loquitur to a medical malpractice case. Based on Danville, plaintiff argues that the res ipsa doctrine should be applied to provide an inference of negligence, shifting the burden to the defendant to explain the cause of Mr. Young's injury.

The instant case, however, is not appropriate for the application of res ipsa under the criteria outlined in Danville. In Danville, the court upheld a jury verdict finding a hospital liable for negligent treatment of a newborn infant. Medical personnel testified that the newborn was delivered and placed in a warming bassinet without injury, but that the next day, after a hot water bottle had been applied, the newborn was blistered from a burn. While no one could testify to the exact cause of the injury, the newborn's physician testified that such a burn would not have occurred with proper use of the hot water bottle and that use of the bassinet was unlikely to have caused the burn.

The court held that where the defendant had "presented no evidence to show that it exercised any care at all ... and offered no explanation of how the burn occurred," the jury was properly instructed that it might infer the newborn's injury was due to defendant's negligence. Danville, supra, 186 Va. at 757, 43 S.E.2d at 886. The court provided three criteria as prerequisites to the application of the res ipsa doctrine: (1) the instrumentality causing the injury was in the exclusive possession and control of the defendants; (2) the defendants have exclusive knowledge of the way in which the instrumentality was used; and (3) injury would not ordinarily have occurred if it had been properly used. Danville, supra, 186 Va. at 745-46, 43 S.E.2d at 887.

Thus, proof by the plaintiff that the accident or injury probably would not have occurred but for the defendant's negligence is an essential element for the application of res ipsa. In Danville, the court explicitly recognized its prior holdings that the doctrine often is inapplicable to medical malpractice cases, where a bad result frequently occurs without any negligence. Danville, supra, 186 Va. at 746, 43 S.E.2d at 887.

Mr. Young's case does not meet the required criteria for application of res ipsa because plaintiff has failed to show that his reflex sympathetic dystrophy would not ordinarily have occurred but for the defendant's negligence. Both Drs. Kiluk and Allen, whose depositions were offered by plaintiff in support of his claim, stated that they could not ascertain the cause of plaintiff's injury, nor could they opine that his injury was caused by any negligence. See, e.g., Kiluk Dep. at 16 ("I am dealing with a problem here that could have come from anything, proper, improper, whatever and I have no way to tell what was done there, nor cannot say anything was proper or improper at the time."); Allen Dep. at 26 ("I have no information that would indicate there was any probability of neglect or malpractice ... from agents of the Veteran's Administration Hospital or the United States government...."). William D. Henceroth, M.D., an orthopedic surgeon who testified as defendant's expert, testified at trial that, in his medical opinion, Mr. Young's injury was caused by tourniquet palsy, a rare injury caused by use of a tourniquet, despite the tourniquet's proper application, pressurization and length of use. Dr. Henceroth further...