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Gaitens v. United States

United States District Court, D. Delaware

August 26, 2019


          Francis J. Murphy, Kelly M. Huff, MURPHY & LANDON, Wilmington, DE. Attorneys for Plaintiffs.

          David C. Weiss, UNITED STATES ATTORNEY, Dylan J. Steinberg, Carly A. Hudson, ASSISTANT UNITED STATES ATTORNEYS, Wilmington, DE. Attorneys for Defendant.



         On July 9, 2018, Patrick and Yvonne Gaitens filed suit against the United States of America for damages under the Federal Tort Claims Act. 28 U.SG. § 1346(b)(1). Plaintiffs allege medical negligence in the treatment of Mr. Gaitens by Defendant's employees at the Wilmington Veterans Administration Medical Center ("WVA") in Wilmington, Delaware. (D.I. 1). I held a bench trial from June 10 to 12, 2019. (D.I. 81-83).

         Based on the following findings of fact and conclusions of law, Fed.R.Civ.P. 52(a)(1), I find that Plaintiffs have not proven medical negligence.

         I. BACKGROUND

         Mr. Gaitens is a pillar of his community. He is a Vietnam War veteran and a hero to his grandchildren. He and his wife Yvonne have been married for 48 years. Mr. Gaitens was first diagnosed with lung cancer in 2011. He had surgery to remove a portion of his lung and, aside from shortness of breath, made a full recovery. Mr. and Mrs. Gaitens were well on their way to a long and active retirement when they learned that Mr. Gaitens' cancer had returned. In late 2016, Mr. Gaitens was diagnosed with terminal stage four lung cancer. There is no question that Mr. Gaitens' illness is a tragedy. It has brought tremendous suffering on him and his family. It is not, however, a tragedy for which Defendant is liable.

         Mr. Gaitens first began treatment at the WVA in November 2014. He was scheduled to have regular CT scans after his surgery in 2011. The scans from 2011 to 2013 were done at Cooper University Hospital, where the surgery had been performed. (D.I. 81 at 4:13-17). He had his first CT scan at WVA in November 2014, which was read by Dr. Priya Prabhakar. JTX-2. He had a second CT scan in November 2015, which was read by Dr. Gerald Lee. JTX-10. Neither Dr. Prabhakar nor Dr. Lee found reoccurrence of Mr. Gaitens' cancer. It was not until Mr. Gaitens' third CT scan in November 2016 that the reviewing radiologist noted suspicious morphology and ordered a follow-up PET scan. JTX-8. The PET scan showed that Mr. Gaitens' cancer had not only returned but was stage four. JTX-12; (D.I. 81 at 174:4-21).


         The Federal Tort Claims Act makes the United States liable for the negligent or wrongful acts of its employees "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). To assess a claim under the Act, courts should apply "the whole law of the State where the act or omission occurred," including that state's choice-of-law rules. Richards v. United States, 369 U.S. 1, 11-14(1962).

         The parties agree that Delaware law controls for liability. (D.I. 79 at 3 & n.3; D.I. 80 at 5 (Plaintiffs wrongly asserting that Defendant seeks to apply California law to liability)).[1] Under Delaware law, "a party alleging medical malpractice must produce expert medical testimony that specifies (1) the applicable standard of care, (2) the alleged deviation from that standard, and (3) the causal link between the deviation and the alleged injury." Green v. Weiner, 766 A.2d 492, 494-95 (Del. 2001) (citing 18 Del. C. § 6853). Plaintiffs must show negligence by a preponderance of the evidence. Culver v. Bennett, 588 A.2d 1094, 1096-97 (Del. 1991).

         III. ANALYSIS

         Plaintiffs have two claims for negligence. First, Plaintiffs argue that Dr. Prabhakar breached the standard of care in reviewing Mr. Gaitens' 2014 CT scan. (D.I. 78 at 13-15). Second, Plaintiffs argue that Dr. Lee breached the standard of care in reviewing Mr. Gaitens' 2015 CT scan. (Id. at 16-17). Under both claims, Plaintiffs argue that the breach caused a delay in Mr. Gaitens' diagnosis, which has dramatically decreased his life expectancy. Plaintiffs' theory is that Mr. Gaitens' cancer remained stage one through the date of the 2015 CT scan, meaning that it could have been treated with surgical resection. Plaintiffs assert that, with surgery, Mr. Gaitens would have had a five-year survival rate of 90% in 2014 and 73% in 2015. (D.I. 78 at 8-11, 16, 17-20). Instead, he has a five-year survival rate of 10% from his date of diagnosis of stage four cancer in 2016. (Id. at 12).

         For the following reasons, I find that Dr. Lee alone breached the standard of care. However, I also find that Plaintiffs failed to show a causal link between Dr. Lee's breach and Mr. Gaitens' harm. Therefore, Plaintiffs cannot recover for negligence.

         A. The Standard of Care

         Neither party articulated an objective standard of care. Plaintiffs argue, based on the testimony from their experts Drs. Rigney and Kramer, that the standard of care requires a radiologist to review all the images on a CT scan[2] and "report all significant findings." (D.I. 78 at 13). Plaintiffs do not define "significant findings." Dr. Kramer stated that to "miss something that's clinically significant" is a breach of the standard of care. However, he went on to note that some findings are "too subtle to say that everyone would have seen it" and clarified that the standard is based on "a typical radiologist... with normal knowledge, skill, and ability." (D.I. 81 at 136:6-17). Dr. Rigney testified that radiology is a "subjective practice" (id. at 59:21-23), but that "20 out of 20" radiologists should correctly report "positive findings such as pneumonia[ and] cancer" (id. at 60:3-10).

         Defendant does not articulate a standard at all but relies on the testimony from its expert, Dr. Itri. Dr. Itri reviewed and reported on the 2014 and 2015 CT scans as if he were the treating radiologist. He then provided testimony on breach using his reports as a "barometer" for the standard of care. (D.I. 79 at 4).

         Based on the present record, I find that the standard of care requires acting with the skill and diligence of an ordinary radiologist. In view of the testimony from Drs. Kramer and Itri, I reject as unconvincing Dr. Rigney's opinion that a radiologist must correctly report all pneumonia and cancer irrespective of the particular details of a scan. Both parties provided expert testimony on how an ordinary radiologist would have read the ...

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