United States District Court, D. Delaware
Francis J. Murphy, Kelly M. Huff, MURPHY & LANDON,
Wilmington, DE. Attorneys for Plaintiffs.
C. Weiss, UNITED STATES ATTORNEY, Dylan J. Steinberg, Carly
A. Hudson, ASSISTANT UNITED STATES ATTORNEYS, Wilmington, DE.
Attorneys for Defendant.
ANDREWS, U.S. DISTRICT JUDGE.
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).
on the following findings of fact and conclusions of law,
Fed.R.Civ.P. 52(a)(1), I find that Plaintiffs have not proven
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
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).
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).
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)). 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).
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).
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
The Standard of Care
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 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
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).
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 ...