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Jackson v. United States

United States District Court, E.D. Missouri, Southeastern Division

December 30, 2019

COYVELL JACKSON and BRENDA JACKSON, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          ABBIE CRITES-LEONI UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court following a one-day bench trial, upon consent of the parties pursuant to 28 U.S.C. § 636(c). The action was filed pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671 et seq. Plaintiff Coyvell Jackson claims that the Defendant, through its agency the Department of Veterans Affairs, was negligent in failing to timely diagnose prostate cancer. Plaintiff Brenda Jackson, Mr. Jackson's wife, [1] brings a derivative claim for loss of consortium. Together, the couple requests a total of $12 million in damages. The Defendant argues that application of the Missouri damage caps for noneconomic damages in medical malpractice actions limits the Jackson's to a combined Judgment of not more than $1, 511, 480; that being a total of $762, 652 for Coyvell Jackson's economic losses and $748, 828 for the couple's noneconomic damages. If applicable, in addition to restricting Jackson's noneconomic losses to $748, 828, the Missouri damage cap prevents an award of additional damages to Mrs. Jackson for loss of consortium. The $1, 511, 480 figure is in fact the maximum damage award permitted by the Missouri statutes in effect beginning August 28, 2015.

         Having considered the pleadings, trial and deposition testimony, and exhibits, the Court finds in favor of the Plaintiffs in the amount of $5, 712, 402. The following findings of fact and conclusions of law are entered in support of the Judgment, in accordance with Rule 52 of the Federal Rules of Civil Procedure.

         I. Findings of Fact

         The parties submitted a detailed Joint Statement of Uncontroverted Facts prior to trial. (Doc. 34.) At trial, Plaintiffs Coyvell Jackson and Brenda Jackson testified. Plaintiffs also presented the deposition testimony of VA treating physician Dr. Richard Tipton; private treating urologist and expert Dr. Arnold Bullock; and economist Rebecca M. Summary, Ph.D. Defendant retained no experts and presented no witnesses at trial.

         A. Liability and Causation Evidence

         Background

         Coyvell Jackson was born in Illinois on May 5, 1963. He lived mostly in California and Missouri as he grew up. Jackson joined the Navy in 1981 and received an honorable discharge in 1985 after having served in Beirut, the Philippines, and Korea. Jackson has an undergraduate degree in Psychology. He lived and worked in California for many years. He has five adult children-three whom he adopted and two biological children.

         In 2008, Jackson's mother developed health problems and he returned to Cape Girardeau, Missouri to help her. Shortly thereafter, Jackson reconnected with his high school sweetheart, Brenda, who had returned to the area to visit family and friends. By 2010, the couple married. Their love, mutual respect, and general affection for one another was apparent in the courtroom.

         Jackson worked as the Treatment Family Home Coordinator for the Community Counseling Center. In that role, he helped transition children from the residential setting to a traditional family setting. He also educated the families on how to deal with anticipated behavioral issues. Jackson loved his job and expected he would have worked there into his seventies. Mrs. Jackson was the head baker at the casino in town. She was passionate about baking and enjoyed her work.

         Together, the Jacksons enjoyed attending church and volunteering for various programs in their church. For instance, they provided marriage counseling to others. They were also involved with “Man Camp, ” a program for young boys with absent fathers that offered the boys an opportunity to interact with positive male figures. The couple were also physically active together. They often enjoyed going on walks and travelled. Another important part of their lives was entertaining and socializing with others. In addition, the couple enjoyed frequent marital intimacy, including sexual intercourse and affectionate behavior.

         When Jackson returned to Missouri in 2008, he began to receive his routine medical care at the VA Medical Center in Poplar Bluff, Missouri, and the VA Community Based Outpatient Clinic in Cape Girardeau (hereinafter “VA”).

         In 2009, Jackson began having PSA testing done with his regular physical exams at the VA. PSA blood testing is a blood test used primarily to screen for prostate cancer and it measures the amount of prostate-specific antigen (PSA) in a person's blood. PSA is a protein produced by both cancerous and noncancerous tissue in the prostate, a small gland that sits below a man's bladder. The reference range used by the VA for PSA levels in the blood is 0 to 4; a score above 4 is considered high.

         Treatment by the VA

         Jackson's medical records from the VA show that his PSA was screened on seven separate occasions between May of 2009 and December 4, 2015, except that no PSA testing was done between 2011 and 2013. During a Compensation and Pension Examination (CPE) with a VA claim's adjuster, on February 23, 2016, Jackson was advised that he may have prostate cancer since his most recent PSA level was over 10. Prior to this news, Jackson was unaware what a PSA level meant. Jackson was then diagnosed with prostate cancer on April 28, 2016. The following paragraphs summarize the VA's treatment of Jackson prior to his cancer diagnosis.

         Jackson's PSA level in May 2009 was 3.87, and in November 2010 was 3.68. These levels would be considered elevated or high normal, but still within normal limits. Typically, in a patient his age, Jackson should have been retested on a yearly basis. This monitoring did not take place in that Jackson's PSA levels were not monitored or tested from 2010 until 2014.

         After November 2010, Jackson's PSA was not tested again until July 9, 2014, at which time it had risen to 7.73. This level is considered high and was flagged by the VA system as abnormal and high. Jackson's PSA was retested on July 16, 2014, showing a level of 8.75. Again, this was flagged by the VA system as high. A course of antibiotics was ordered to rule out infection as the cause of the elevated PSA. Despite two elevated PSA test results, Jackson was not referred to a urology specialist to evaluate whether he had prostate cancer. Jackson was again tested on August 18, 2014, with a PSA level of 8.02, and a urology consult was requested on that date.

         Jackson was seen by VA urologist Dr. Madduri in October of 2014. Based on the amount of time since his last PSA check, the VA system required another round of antibiotics and a recheck of the PSA level rather than immediate biopsy and ruling in or out of prostate cancer. The October 20, 2014 PSA was again high at 8.35. Even though Jackson's PSA level remained high after antibiotics had been given, a biopsy was not performed and Jackson's referral for additional testing for cancer was not completed by the VA providers. More than one year passed before Jackson's next PSA test on December 4, 2015, at which time his PSA level had risen to more than 10.

         Earlier in 2015, on March 3, Jackson presented to the VA with complaints of right hip pain. On June 2, 2015, Jackson presented to the VA with complaints of low back pain. Following the reports of right hip and low back pain, an additional PSA check was not ordered and there was no further workup to rule out prostate cancer.

         On June 15, 2015, Jackson presented to the VA with complaints of decreased libido. His treating physician, Dr. Richard Tipton, noted “he does have an elevated PSA, it has been up around 8.” Dr. Tipton also noted Jackson's high PSA “has never been evaluated.” Although this observation was made, no further PSA testing was ordered, and no further workup was done to rule out prostate cancer.

         On December 4, 2015, Jackson was seen at the VA by Dr. Tipton for a groin rash. Dr. Tipton's progress notes include a comment that Jackson “has also had an elevated PSA in the past year and did a month of Cipro but has never been evaluated past this to include a possible biopsy.” There is also an addendum to this note on December 9, 2015, which indicates a need for a referral to a urological specialist. A referral to Dr. Sam Stokes, a civilian urologist, was approved on January 26, 2016. Jackson's PSA level was checked again on February 15, 2016, with a result of 10.52.

         Jackson saw Dr. Stokes on March 2, 2016, who immediately ordered a biopsy of the prostate. The results, returned on April 28, 2016, indicated Jackson had prostatic adenocarcinoma with a Gleason's Score of 6 (3). As a result of this cancer diagnosis, Jackson's care was referred to Dr. Arnold Bullock, a urological surgeon at Washington University in St. Louis, Missouri, for further work-up and treatment. Dr. Bullock ordered the biopsy sample retested by Washington University pathologists in June 2016, and determined that it in fact showed a prostatic adenocarcinoma with a Gleason's Score of 7 (3), necessitating surgery. On August 25, 2016, Dr. Bullock performed a radical prostatectomy on Jackson.

         Following his prostatectomy, Jackson experienced stress urinary incontinence requiring daily use of four to five pads. Additionally, Jackson had post-operative erectile dysfunction, which did not respond well to Viagra. Jackson continued to be followed by Dr. Bullock and his PSA was elevated on recheck in March of 2017. In light of the findings, a referral to radiation oncology for salvage radiotherapy was made. As a result of the increased PSA and concern of a reoccurrence of cancer, Jackson then had external beam radiation treatment to the prostatic fossa and pelvis. He was additionally treated with androgen deprivation therapy to improve progression-free survival as well as overall survival. He was scheduled for six to seven weeks of radiation treatment and hormone therapy. In approximately October 2018, Jackson began experiencing bleeding from his bladder. This was tested and found to be damage from the radiation therapy he received. Jackson then began hyperbaric treatment for his bladder.

         Jackson continues to receive treatment at Washington University with Dr. Bullock and others for his advanced prostate cancer. He is expected to undergo surgery for his incontinence which requires replacing his damaged urinary sphincter with an artificial urinary sphincter. Three penile implant surgeries will also be necessary to enable Jackson to engage in sexual intercourse. He will also require ongoing cancer prevention maintenance, plus ongoing treatment for his radiation damaged bladder and his general associated care and treatment.

         Malpractice

         Dr. Tipton, a VA physician, was deposed on February 20, 2019. Dr. Tipton testified that in patients with a PSA over 4, there is a higher suspicion of prostate cancer and prostate cancer should be ruled in or out through further testing, including biopsy. Prostate cancer left untreated can advance or grow. The standard of care requires a yearly check of the PSA.

         Dr. Tipton testified that due to Jackson's presenting condition, normal urinalysis, a course of antibiotics, and persistent climbing PSA levels, the standard of care required a biopsy of the prostate when he was seen by VA urologist Dr. Madduri in October of 2014. Dr. Madduri's failure to complete a work-up or biopsy in October of 2014 violated the standard of care. There is no indication in the record that Jackson failed to follow-up or attend any scheduled appointments.

         Dr. Tipton was Jackson's primary physician at the VA beginning on November 18, 2014. Dr. Tipton stated that he did not review Jackson's past medical records, which was required under the standard of care. He testified that, had he reviewed the records and discovered the elevated PSA, he would have referred Jackson to urology. Dr. Tipton saw Jackson again in March of 2015 and again did not review the past medical records or refer Jackson for further testing of his prostate.

         On June 15, 2015, Dr. Tipton saw Jackson and noted the history of the elevated PSA with no prostate cancer work-up. Dr. Tipton made a referral request as required by the standard of care, but the referral was discontinued because another urinalysis and trial of antibiotics had to be repeated prior to the urology consultation. According to VA policy, a urinalysis and trial of antibiotics before a urology consult was necessary based on Jackson's history. Dr. Tipton testified that the standard of care required that Jackson be seen by a urologist, and that did not occur in the June 2015 timeframe.

         The records do not include any letter to Jackson or contact with Jackson informing him of a need to be seen by urology despite that being the standard practice and requirement under the standard of care. Dr. Tipton received alerts from the VA system if a consultation had gone through or had been canceled, and it was his responsibility under the standard of care to re-request a consultation if it was canceled. In December of 2015, Jackson's PSA had risen to 10.52. Dr. Tipton testified that a biopsy had not been completed at this time, despite the standard of care requiring that Jackson be worked up to rule in or out prostate cancer since July of 2014.

         Dr. Tipton testified that the delay of twenty months-from July 2014 to March 2016- until Jackson was seen by a non-VA urologist for work-up of his prostate, represents a breach of the standard of care. The delay in diagnosing the prostate cancer also caused a delay in any treatment that Jackson should have received. Dr. Tipton testified that he would defer to Jackson's treating urologists regarding Jackson's prostate cancer care, life expectancy, and whether the delay in diagnosis and treatment allowed Jackson's cancer to progress.

         Dr. Bullock is a urologist and urological surgeon who is board certified and in practice at Washington University in St. Louis, Missouri. Dr. Bullock is Jackson's treating physician and served as his expert witness regarding liability, causation, and damages. Dr. Bullock's deposition was taken on April 22, 2019.

         Dr. Bullock echoed much of Dr. Tipton's testimony as to the standard of care required for responding to PSA test results. Dr. Bullock's opinions were offered to a reasonable degree of medical certainty. He testified that had Jackson's PSA been checked in 2012, it would have been above 4. When Jackson's PSA was rechecked on July 17, 2014 after he had undergone a round of antibiotics, it was 8.75, ruling out infection. Dr. Bullock testified that the standard of care required that prostate cancer be ruled in or out at that time, and that more likely than not, Jackson was positive for cancer as of July 2014. He testified that the VA physician was negligent when no biopsy was done after the recheck PSA on July 17, 2014, and no other further work-up for prostate cancer was completed. He found that the standard of care was again breached in August of 2014, when Jackson's PSA was 8.02 and no further work-up was done.

         Dr. Bullock testified that the standard of care was not met on Jackson's October 2014 visit with Dr. Madduri, because no biopsy was performed and a referral to another urologist was not carried out. He testified that, more likely than not, Jackson's cancer would have been encapsulated in the prostate in October 2014 and likely before that time.

         Dr. Bullock opined that Dr. Tipton was negligent in failing to review Jackson's past medical history and allowing his elevated PSA to go unchecked, untreated, and undiagnosed when he started treating him in November of 2014. The breach of the standard of care by VA physicians continued when Dr. Tipton saw Jackson in March of 2015 and did not recommend or order any treatment related to the high PSA. Dr. Bullock testified that had Jackson's prostate been biopsied and the cancer diagnosed by May of 2015, it would have been encapsulated in the prostate and would have changed the treatment needed for the cancer. Dr. Bullock added that Dr. Tipton further violated the standard of care in June of 2015, when he noted the elevated PSA but did not complete the referral for a urology consult. A biopsy was finally completed in March 2016 and reflected that Jackson had advanced prostate cancer. Jackson was diagnosed with prostate cancer on April 28, 2016.

         Dr. Bullock opined that the VA's 20-month delay from July of 2014 until the biopsy on March 7, 2016 that resulted in Jackson being diagnosed with prostate cancer, represents a breach in the standard of care. Furthermore, Dr. Bullock testified that Jackson may have a shortened life expectancy as a result of the negligence of the VA in diagnosing and treating him, because there is a 36% chance the cancer will recur. If Jackson had been treated in a timely manner before approximately May of 2015, he more likely than not would be cancer free with a full life expectancy.

         Dr. Bullock was not able to remove all of the cancerous tissue during the radical prostatectomy he performed on Jackson in August of 2016, which left positive cancer findings in the apical margins of Jackson's prostate. Following his prostate removal surgery, Jackson had a rise in his PSA requiring salvage radiation therapy. Dr. Bullock testified that, had the prostate cancer been diagnosed earlier and contained in the prostate capsule, Jackson would not have required salvage radiation to his prostatic fossa and pelvis, which is the cause of a myriad of his problems.

         As a result of the radiation therapy, Jackson has urge incontinence and large volume leakage requiring three to four diapers a day. Jackson also suffers from erectile dysfunction, with unusable erections. Dr. Bullock testified that, had the cancer been timely diagnosed and treated without the need for radiation therapy, Jackson would have responded to medication and would have usable erections. Jackson has received penile injections and medications for his erectile dysfunction (ED), with limited success. Dr. Bullock explained that ED is not just a problem for men, it is a “couple's problem.” He noted that Jackson is in a “great marriage, ” Mrs. Jackson is “very supportive, ” and Jackson is “young, ” which led Dr. Bullock to believe Jackson will eventually get an implant. If Jackson lives to a normal life expectancy, he will likely require as many as three penile implant surgeries.

         Dr. Bullock further explained that Jackson has blood in his urine due to radiation cystitis that is being treated with hyperbaric chamber therapy. This is a chronic and permanent condition resulting from the radiation therapy. Jackson may have reoccurrences of bleeding at any time throughout his life that will require future treatment and procedures. Jackson also suffers from small-capacity bladder as a result of the radiation therapy, making him urinate and have a constant sense of urgency. Jackson is treating with Dr. Henry Lai for this condition and there are several surgeries and procedures available that Jackson may require.

         As a result of the delay and the necessity of radiation therapy, Jackson also required hormone therapy. Hormone therapy has been shown to improve the results of the radiation therapy, however, results in a temporary medical castration of the patient by bringing the testosterone level down during the time period it is given. If Jackson's PSA should rise in the future, he will have to undergo radiation therapy and hormone therapy again. The reduction of testosterone resulting from hormone therapy has caused Jackson to experience fatigue. There is a 36% chance his PSA will rise again, necessitating work-up and treatment for a future cancer.

         Due to the delay in diagnosis and the growth into the margins, Dr. Bullock had to cut lower down on the prostate near the apex during the radical prostatectomy, resulting in damage to the urinary sphincter and its surrounding nerves. This damaged the urinary sphincter, causing incontinence. Jackson currently has a high-pressure bladder, which does not allow for an artificial urinary sphincter. When management of his overactive bladder is achieved, Jackson will be a candidate for a surgical placement of an artificial urinary sphincter.

         Dr. Bullock opined that the VA failed to properly monitor, diagnose, and treat Jackson. These breaches of the standard of care and the delay they caused led to the growth and progression of Jackson's current prostate cancer diagnosis. A biopsy in July 2014 would have been positive for cancer and had the prostate cancer been biopsied at any point through May 2015, the cancer would have been encapsulated in the prostate and Jackson's prostate margins would have been negative. If a timely diagnosis and treatment had occurred, Jackson would not have needed radiation therapy or hormone therapy. Jackson would have been sexually active with the use of oral medication. He would not have a need for multiple penile ...


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