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Skoien v. United States

United States District Court, E.D. Kentucky, Central Division, Lexington

February 9, 2017

TONYA SKOIEN, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION AND ORDER

          KAREN K. CALDWELL, CHIEF JUDGE.

         Plaintiff Tonya Skoien filed this medical negligence action under the Federal Tort Claims Act, (“FTCA”) 28 U.S.C. § 1346(b), 2671 et seq. alleging that she received inadequate medical care at the Veterans Affairs Medical Center (“VAMC”) in Lexington, Kentucky.

         This matter is now before the Court on the United States' motion for summary judgment. Because Skoien fails to sufficiently prove the elements of a Kentucky medical negligence claim, her FTCA claim must fail. Therefore, the United States is entitled to summary judgment.

         I. BACKGROUND

         On June 9, 2013, while helping her fiancé and his family herd cattle, Skoien stepped into a tractor rut, fell, and injured her left wrist. [DE 19, Page ID # 101, ¶ 4-17]. Skoien thought she broke her wrist, so she went to the emergency room at the VAMC, where she was employed. [DE 19, Page ID # 102, ¶ 3-23]. Emergency room doctors determined that her wrist was broken. Specifically, she was diagnosed with a left distal radius fracture, or Colles' fracture, [DE 23, Page ID # 668, 692, 907]. She was referred to an orthopedic physician for consultation and treatment. [DE 24, Page ID # 875]. Several orthopedic surgeons reviewed the X-rays and confirmed that Skoien had sustained a left distal radius fracture, and placed her in a “sugar tong splint.” [DE 24, Page ID # 876]. The splint “opened up on the side for swelling” but, in her deposition, Skoien testified that “it was really tight.” [DE 19, Page ID #106, ¶ 5-6, ¶ 16-17]. After the splint was applied and placed in a sling for comfort, an appointment was then scheduled for the next week. [DE 24, Page ID # 877; DE 23, Page ID # 682]. Skoien was instructed to return to the emergency room if needed. [DE 24, Page ID # 922].

         On June 14, 2013, Skoien returned to the VAMC for her follow-up complaining of pain and tingling in her left forearm. [DE 24, Page ID 895]. Her left wrist also showed signs of swelling and her fingers were discolored. [DE 24, Page ID # 896]. VAMC physicians took additional X-rays and determined that her “cap refill [was] good, ”-i.e., Skoien had adequate blood circulation to her hand and fingers. [DE 23, Page ID # 901]. When Skoien complained of tightness in her splint, her treating physicians scheduled an additional orthopedic consultation, at which doctors were to evaluate whether or not Skoien's current “sugar tong splint” needed re-splinting. [DE 24, Page ID # 902].

         Four days later, at her orthopedic consultation, X-rays revealed a “slight interval loss of reduction” from the setting of the fracture. [DE 24, Page ID # 891]. Treating physician Dr. Robert Thompson noted that the X-ray findings “[met the] criteria for nonoperative treatment.” [DE 24, Page ID # 891]. He further explained to Skoien that, if she experienced any more significant reduction, she could benefit from a surgery to realign the bone fracture. [DE 24, Page ID # 891]. To address her complaints about the tightness of the splint, Skoien's splint was loosened around the thumb. The progress note from that day indicated that the adjustment resulted in a “significant improvement in [her] pain.” [DE 24, Page ID # 891].

         This improvement did not last long. [DE 19, Page ID # 115, at ¶ 5]. Skoien testified in her deposition that she would “complain to pretty much everyone about the pain and tightness of the [splint].”[1] [DE 24, Page ID # 717]. On two separate occasions, Skoien sought out Mr. Standifer, who worked in the orthopedic clinic, to have him make adjustments to the splint. [DE 24, Page ID # 717]. Mr. Standifer agreed to loosen the splint “to a degree” but made sure the splint “still [kept] its integrity.” [DE 24-5, Page ID # 940, p. 16, ¶ 9-10]. Though Mr. Standifer made two slight adjustments to the splint, he refused to remove the splint because he did not the authority to do so. [DE 24-5, Page ID # 940].

         On June 25, 2013, VAMC physicians again “re-loosened” the splint around the thumb and adjusted the splint to allow for more flexion. [DE 23-2, Page ID # 647]. At her next appointment, doctors removed the splint and replaced it with a cast. [DE 24-2, Page ID # 883; DE 19, Page ID # 125, ¶ 12-21].

         The cast proved too painful for Skoien. A week later, she returned to the VAMC complaining of pain and tightness from the cast, which was removed and replaced with a wristlet splint. [DE 23-2, Page ID # 639]. But even the new splint did not alleviate her pain. Skoien testified that the next day, thinking that she was “going to lose [her] hand, ” she removed the splint herself and decided to discontinue treatment at the VAMC. [DE 19, Page ID # 131-132].

         On July 11, 2013, Skoien met with Dr. Donald Arms of Central Kentucky Orthopedics to explore alternative treatment options. At the consultation, Dr. Arms noted that Skoien had “positive Phalen's, Tinel's, median nerve compression testing at the wrist, and she ha[d] vasomotor and pseudomotor changes that would be characteristic of early complex regional pain syndrome . . . .” [DE 23-3, Page ID # 695]. According to Dr. Arms, the CRPS was a “second diagnosis that [was] based on problems with the sympathetic nervous system that controls pain and sensation and blood supply to the extremity.” [DE 20, Page ID # 225, ¶ 20-25]. Skoien and Dr. Arms then discussed the benefits and risks of operative and nonoperative options for treatment, which were both “viable options at that point.” [DE 20, Page ID # 255, ¶ 14]. “[A]fter a long discussion, ” Skoien elected to have surgery on her wrist. [DE 23-3, Page ID # 696].

         On July 15, 2013, Dr. Arms successfully performed an open carpel tunnel release and open reduction internal fixation procedure on Skoien. [DE 23-3, Page ID # 697]. Dr. Arms' surgery notes indicated that “she had developed an early complex regional pain syndrome, probably due to subacute progressive median nerve compression at the wrist.” [DE 23-3, Page ID # 697]. However, Dr. Arms did not know whether Skoien exhibited any median nerve compression and the signs and symptoms of early CRPS before she broke her wrist and had surgery. [DE 20, Page ID # 228, ¶ 19-23]. After surgery, Dr. Arms diagnosed Skoien with carpel tunnel syndrome and early malunion of the left distal radius fracture. [Id.]. Skoien was discharged that day and scheduled for a follow-up appointment for later in the week. [DE 23-3, Page ID # 699].

         In the weeks following the surgery, Skoien's arm pain continued to plague her, and she showed little improvement. Skoien met with Dr. Arms again on September 3, 2013, where he noted that “she's not responding well.” [DE 23-3, Page ID # 694]. According to Dr. Arms' progress notes, Skoien still exhibited “significant stiffness, motion loss and hypersensitivity” related to her diagnosis of “complex regional pain syndrome after fracture.” [Id.]. As part of his treatment plan, Dr. Arms referred Skoien to Dr. Karim Rasheed, a pain specialist who worked at Elite Pain Center and St. Joseph Hospital.

         Dr. Rasheed first saw Skoien on September 9, 2013, for a consultation. In his evaluation, Dr. Rasheed noted “clearly the patient has left complex regional pain syndrome1 with left upper extremity, related to her Colles fracture. . . .” [DE 23-5, Page ID # 702]. Skoien then returned to Central Kentucky Orthopedics for her four- week follow-up, where she met with Dr. Travis Hunt. Although X-rays revealed Skoien's wrist fracture to be healed, Dr. Hunt referred Skoien to Dr. Ronald Burgess, a hand surgeon, for additional treatment because she still suffered from recurring stiffness and tightness in the wrist. [DE 23-3, Page ID # 693].

         Dr. Ronald Burgess of Commonwealth Orthopedic Surgeons, PSC, met with Skoien on October 21, 2013. Dr. Burgess noted that Skoien had “significant stiffness of her left wrist and hand which appear[ed] to have been related to the initial immobilization in full extension and a painful splint.” [DE 23-6, Page ID # 703]. Skoien and Dr. Burgess discussed Skoien's treatment options, including a procedure involving “manipulation of the wrist and all digits under anesthesia with instill of cortisone into the individual joints after manipulation.” [DE 23-6, Page ID # 704]. Skoien elected to have the procedure, and Dr. Burgess successfully performed the outpatient procedure on November 5, 2013. [DE 23-6, Page ID # 705]. Skoien's last visit with Dr. Burgess was on November 20, 2013, where the two discussed surgical additional procedures that might increase Skoien's range of motion in her wrist. Reluctant to pursue any additional surgical interventions, Skoien refused. Skoien left Dr. Burgess with plans to continue working with Dr. Rasheed. [DE 23-6, Page ID # 707].

         To date, Skoien continues various treatments and therapies with Dr. Rasheed. While still experiencing chronic upper left extremity pain secondary to CRPS, Skoien has improved, but, according to Dr. Rasheed, “she's still not a hundred percent.” [DE 22, p. 29, ¶ 14-15].

         On June 4, 2015, Skoien filed a complaint against the United States under the FTCA alleging “negligence and professional malpractice and misconduct in connection with the medical care provided to Plaintiff Skoien by the Department of Veterans Affairs at the Lexington, Kentucky Veterans Affairs Medical Center.” [DE 1]. After the close of discovery on April ...


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