United States District Court, E.D. Missouri, Southeastern Division
FINDINGS OF FACT AND CONCLUSIONS OF LAW
CRITES-LEONI UNITED STATES MAGISTRATE JUDGE
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,
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.
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
Findings of Fact
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.
Liability and Causation Evidence
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.
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.
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.
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
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”).
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.
by the VA
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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 ...