United States District Court, W.D. Kentucky, Louisville Division
JAMES B. JOHNSON, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER
J. HALE, JUDGE
March 2012, Plaintiff James Johnson underwent surgery at the
Veterans Affairs Medical Center in Louisville, Kentucky, to
remove a suspected cancerous mass in his gastrointestinal
area. (Docket No. 41-8, PageID # 614-15) After the surgery, a
pathology report indicated that the mass was not in fact
cancerous. (D.N. 38-1, PageID # 101) As a result, Johnson
brings this action under the Federal Tort Claims Act,
alleging that the Veterans Affairs Medical Center was
negligent in proceeding to surgery without first confirming
that the mass was cancerous. (See D.N. 1) The United
States now moves for summary judgment. (D.N. 38) For the
reasons set forth below, the Court will grant the motion in
part. Summary judgment is warranted as to all claims except
the allegation concerning Johnson's drainage tube.
following facts are undisputed, except where otherwise noted.
On November 23, 2011, Johnson was admitted to the emergency
room at the Veterans Affairs Medical Center (VAMC),
complaining of dark stools that he had experienced the
previous two weeks. (D.N. 38-2, PageID # 113-114) Upon his
admission, Johnson also reported that he had experienced
abdominal pain for the prior four months. (Id.)
Doctors conducted an esophagogastroduodenoscopy (EGD) on
Johnson, which revealed a small duodenal ulcer and a
“mass in [his] antrum” that was described as a
“possible pancreatic rest.” (Id., PageID
# 114) In light of the mass, doctors recommended a follow-up
biopsy and an endoscopic ultrasound (EUS). (D.N. 41-1,
PageID # 396)
the VAMC referred Johnson's case to Dr. Stephen McClave
at the University of Louisville. (D.N. 38-4, PageID # 163) In
January 2012, Dr. McClave performed an EUS on Johnson to
determine whether the mass was a cancerous gastrointestinal
stromal tumor (GIST). (Id., PageID # 165-66)
According to Dr. McClave's testimony, although an EUS is
a common procedure, it does not always provide a definitive
assessment of the mass in question. (Id., PageID #
167) When an EUS's results are inconclusive, doctors
often follow up with a fine-needle aspiration (FNA), which
amounts to placing a needle in the middle of the mass to
biopsy cells. (Id., PageID # 169) Dr. McClave
testified that while FNAs are an accurate diagnostic tool,
they are especially difficult to perform on GISTs.
(Id., PageID # 172-74)
Johnson's case, the EUS produced an image that was
consistent with a GIST. (Id., PageID # 179) Dr.
McClave therefore performed an FNA to rule out the mass as
cancerous. (Id., PageID # 181) After four attempts
to extract cells, however, McClave and his pathologist were
unable to confirm that the mass was not a GIST.
(Id., PageID # 181-83) Dr. McClave therefore
concluded that the mass had a “high clinical suspicion
for GIST” and recommended a surgical evaluation for
wedge resection in the event that the pathology results were
inconclusive). (D.N. 41-2, PageID # 398) A pathology
report indeed returned with a nondiagnostic finding.
(Id., PageID # 402)
January 17, 2012, Johnson met with Dr. Edwin Gaar, who at the
time served as chief of surgery at the VAMC. (D.N. 41-7,
PageID # 575) Prior to the meeting, Dr. Gaar reviewed
Johnson's medical records, including the pathology report
from Johnson's visit to the University of Louisville
Hospital. (Id.) Dr. Gaar then discussed
with Johnson the risks and benefits of removing the mass via
surgery, and Johnson agreed to proceed with the
operation. (Id.) Thereafter, Johnson met
with Dr. Gaar and resident physician Kristina Spate on a No.
of occasions. On February 21, 2012, Dr. Spate recommended
that Johnson receive an antrectomy, possible vagotomy, and a
reconstruction of his stomach. (D.N. 38-2, PageID # 135)
to the surgery, Johnson signed a medical-consent form, which
detailed the specific procedures he would undergo. (D.N.
38-6, PageID # 344-51) The form explained that doctors would
remove a section of Johnson's stomach, cut several nerves
to and alter drainage of his stomach, and surgically connect
the remaining portion of his stomach to his small intestine.
(Id., PageID # 345) The form also detailed potential
side effects, including chronic diarrhea, the need for
dietary supplements, the need to alter eating habits, and
“dumping syndrome.” (Id., PageID # 346) Dr.
Glen Franklin, program director at the VAMC, reviewed
Johnson's medical records and agreed with Dr. Gaar and
Dr. Spate's recommendations. (D.N. 38-2, PageID # 128)
Dr. Franklin met with Johnson and discussed the risks and
benefits of the planned procedures. (Id., PageID #
128-29) On March 2, 2012, Dr. Jerome Byam performed a wedge
resection, pyloroplasty, and vagotomy on Johnson, with Dr.
Franklin attending. (Id., PageID # 130-32) Following
the surgery, a pathology report demonstrated that the mass
was not in fact a cancerous GIST. However, the report
indicated the presence of H. pylori and signs of chronic
active gastritis in Johnson's system. (Id.,
PageID # 111-12) A post-operation note also indicated that
the doctors had trouble removing Johnson's drainage tube.
(Id., PageID # 120)
September 9, 2015, Johnson brought this action against the
United States pursuant to the Federal Tort Claims Act (FTCA).
(D.N. 1) In his complaint, Johnson alleges that the
VAMC's actions constituted negligent medical care and
resulted in serious bodily injury. (Id., PageID # 2)
Although not detailed in his complaint, Johnson also appears
to assert an informed-consent claim under Kentucky law.
(See D.N. 41-8, PageID # 623) The United States now
seeks summary judgment. (D.N. 38)
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). On a motion for summary judgment, the movant
“bears the initial responsibility of informing the
district court of the basis for its motion and identifying
those portions of [the record] which it believes demonstrate
the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
see generally Premo v. United States, 599
F.3d 540, 544 (6th Cir. 2010) (discussing the summary
judgment standard in the context of an FTCA action). The
movant may do so by merely showing that the nonmoving party
lacks evidence to support an essential element of its case
for which it has the burden of proof. See id.
moving party satisfies this burden, the nonmoving party must
point to specific facts in the record demonstrating a genuine
issue of fact for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). To survive a motion
for summary judgment, the nonmoving party must establish a
genuine issue of material fact with respect to each element
of each of his claims. Celotex Corp., 477 U.S. at 323 (noting
that “a complete failure of proof concerning an
essential element of the nonmoving party's case
necessarily renders all other facts immaterial”). The
mere existence of a scintilla of evidence in support of the
nonmoving party's position will be insufficient; instead,
the nonmoving party must present evidence upon which the jury
could reasonably find for him. Hartsel v. Keys, 87
F.3d 795, 799 (6th Cir. 1996) (citing Anderson, 477 U.S. at
252). This “requires the nonmoving party to go beyond
the pleadings and by [his] own affidavits, or by the
‘depositions, answers to interrogatories, and
admissions on file,' designate specific facts showing
that there is a genuine issue for trial.” Celotex, 477
U.S. at 324 (quoting Fed.R.Civ.P. 56(e)). For purposes of a
motion for summary judgment, the Court must view the evidence
in the light most favorable to the nonmoving party. Loyd
v. Saint Joseph Mercy Oakland, 766 F.3d 580, 588 (6th
liability of the United States in actions under the [FTCA] is
governed by the law of the place where the alleged tort
occurred.” Ward v. United States, 838 F.2d
182, 184 (6th Cir. 1988). Here, the alleged tort occurred in
Louisville, Kentucky. (See D.N. 1) The Court will
therefore apply Kentucky law.
Kentucky, “a plaintiff alleging medical malpractice is
generally required to put forth expert testimony to establish
the applicable medical standard of care and to show that the
defendant medical provider failed to conform to that standard
of care.” West v. Huxol, 135 F.Supp.3d 590,
599 (W.D. Ky. 2015) (citing Blankenship v. Collier,
302 S.W.3d 665, 670-71 (Ky. 2010)). “In cases involving
professions requiring special skill and expertise, the
standard of care is usually measured by the conduct customary
in the profession under the circumstances.” Slone
v. Lincoln Cty., Ky., 242 F.Supp.3d 579, 596 (E.D. Ky.
2017) (citing Hyman & Armstrong, P.S.C. v.
Gunderson, 279 S.W.3d 93, 113 (Ky. 2008)). To establish
the applicable standard of care, the expert should
“explain what a reasonable health-care provider would
have done during the interactions between” the patient
and the physicians. Moore v. United States, No.
6:14-CV-114-DLB-HAI, 2016 WL 5339361, at *4 (E.D. Ky. Aug.
11, 2016), report and recommendation adopted, 2017 WL 1003248
(E.D. Ky. Mar. 15, 2017). However, “no expert testimony
is needed in situations where the common knowledge or
experience of laymen is extensive enough to recognize or to
infer negligence from the facts.” Vance ex rel.
Hammons v. United States, 90 F.3d 1145, 1148 (6th
Cir. 1996) (internal quotations omitted) (quoting Perkins
v. Hausladen, 828 S.W.2d 652, 655-56 (Ky. 1992)).
The United States' Expert
support of its position, the United States offers the report
of Dr. Charles Woodall, a board certified surgeon from Ozark,
Missouri. (See D.N. 38-8) In his report,
Dr. Woodall explains:
Mr. Johnson was thought to have a malignant tumor and the
only way to definitively rule this out was to perform an
excisional biopsy. Once that biopsy had been performed, the
visceral defect created in the gastric wall required closure,
and in this location that necessitated a pyloroplasty.