United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE.
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.
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.
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].
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].
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].
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].” [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].
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, ¶
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 #
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].
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].
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.
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].
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].
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].
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 ...