Johnson v. United States

          MEMORANDUM OPINION AND ORDER

          DAVID J. HALE, JUDGE

         In 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.

         I. Background

         The 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).^[1] (D.N. 41-1, PageID # 396)

         Thereafter, 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)

         In 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 “nondiagnostic” (i.e., inconclusive).^[2] (D.N. 41-2, PageID # 398) A pathology report indeed returned with a nondiagnostic finding. (Id., PageID # 402)

         On 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.^[3] (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.^[4] (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.^[5] (D.N. 38-2, PageID # 135)

         Prior 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.”^[6] (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.^[7] (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.^[8] (Id., PageID # 111-12) A post-operation note also indicated that the doctors had trouble removing Johnson's drainage tube. (Id., PageID # 120)

         On 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)

         II. Standard

         Summary 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.

         If the 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 Cir. 2014).

         III. Discussion

         “The 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.

         In 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)).

         A. The United States' Expert

         In support of its position, the United States offers the report of Dr. Charles Woodall, a board certified surgeon from Ozark, Missouri.^[9] (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. ...