VA in the Courts

By Kate Wiltrout
The Virginian-Pilot February 20, 2013

…Grese hopes publicity about the suit will draw more attention to the treatment of veterans suffering from post-traumatic stress disorder or depression, both of which her sister battled.

In a single year, Grese said in an interview, doctors at the Hampton facility prescribed 5,370 pills of Klonopin, used to treat anxiety disorders, for her sister.

That was in addition to thousands of doses of other medications, including antipsychotics, sedatives and antidepressants.

“The numbers are astounding,” Grese said. “After all the hours spent going through her records, I still shake my head at it.”…




  • Department of Veterans Affairs schedules veteran who is suing the VA for malpractice an “independent medical exam” with the VA doctor who allegedly committed the malpractice

This is amazing, you couldn’t make this sort of thing up.

I am currently in the middle of a Medical Malpractice lawsuit against the Department of Veterans Affairs. I am proceeding pro se, but my case is going very well. On the same day I filed my Plaintiff’s Expert Disclosures, I received a letter from the VA Medical Center that is named in my suit. Turns out the VA wants me to come in for a physical examination. Better yet, guess what doctor was scheduled to perform the examination? The same doctor specifically named as committing MedMal in my Independent Medical Evaluation! I was surprised by the letter, and the next day a cancellation letter arrived, but the VA merely assigned a new doctor to perform the examination.

To clarify, I have not stepped foot in the VA Primary Care Clinic in almost 2 years, and I most certainly did not request this appointment. I am a 100% disabled veteran, and thus I have earned full and complete health care, but due to the VA’s actions, I have been forced to pay for my own health care outside the VA now and doing much better. At the very least, I will be putting together a Motion for Clarification to the Defendant for failure to adhere to guidelines set forth in Rule 35 of Federal Rules of Civil Procedure, Physical and Mental Examination.

Since my situation is rather unusual, I doubt anyone will be able to provide any specific help. I will however ask if anyone knows how best to hold this clear and unmistakable error up to the Judge as a serious case of crazy-pants on the part of the Defendant. Or, should I just push the motion and let the Judge decide for himself how improperly the Defendant has acted.


More at Expert Law


New York VA Ordered to Pay $5,900,000 for Medical Malpractice that Killed a 54 Year Old Veteran! Judge Calls Veterans Administration Medical Malpractice Inexcusable & Agonizing!


Judge has ordered the feds to pay a $5.9 million whopper of a malpractice award to the family of a 500-pound cabbie who died from complications of botched bariatric surgery at the Manhattan VA hospital.

Brooklyn Federal Judge Leo Glasser ruled that it was “inexplicable and inexcusable” that doctors failed to detect a gastric leak in victim Warren Jupiter because they thought he was too fat to fit inside a CT scan chamber.

A note in the medical record indicated doctors considered sending Jupiter to the Bronx Zoo to be scanned where the table was equipped for “large animal capacity.”

By the time the leak was found months later, Jupiter was suffering from massive infections and he died an agonizing death at a VA nursing home in the Bronx in 2005 at age 54.

“My assessment of the degree of pain and suffering endured by Jupiter over a period of approximately 950 days is that it was gnawing and persistent,” wrote Glasser, who presided over a bench civil trial two years ago.

The judge gave Jupiter’s widow Barbara $5 million and $900,000 to their three children.

A spokesman for the Brooklyn U.S. attorney’s office declined to comment on the decision

Read more:

Jupiter v. United States, 2012 

United States District Court for the Eastern District of New York December 20, 2012, Decided; December 20, 2012, Filed 05 CV 4449 (ILG)(RML)


BARBARA JUPITER, as Executrix of the Estate of Warren Jupiter, and BARBARA JUPITER, Individually, Plaintiff, -against- UNITED STATES OF AMERICA, Defendant.



GLASSER, United States District Judge:

What follows are the Court’s findings of fact and conclusions of law following a bench trial over a period of seven days during which testimony was elicited from fourteen witnesses and a record transcript in excess of eleven hundred pages was created. Received in evidence as exhibits were medical records and reports of approximately 6,000 pages and multiple anatomical diagrams and images.

The action was commenced against the United States Department of Veterans Affairs (VA) by Barbara Jupiter as Executrix of the Estate of Warren Jupiter (Jupiter), who is alleged to have sustained personal injury and pain and suffering prior to his death caused by the claimed medical malpractice of the defendant’s agents and employees while a patient at the hospital of the VA. His wife, Barbara, asserted a claim for her loss of consortium and the wrongful death of her husband. She announced that she discontinued the loss of consortium claim at the outset of the trial. Remaining then, is Jupiter’s claim and the claim of his surviving children for the loss of his support, guidance and nurture they suffered by his wrongful death. The action is brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § § 1346(b), 2671-2678 conferring jurisdiction upon this Court to entertain this action.

The evidence adduced at trial fell primarily from the lips of a galaxy of medical experts called by both sides – surgeons with a specialty in bariatric surgery; doctors whose specialty was infectious diseases, gastroenterology, interventional radiology, internal medicine, nutrition and anatomical and clinical pathology. Testimony was also elicited from a radiologic technologist and a witness who had earned a PhD degree in clinical nutrition.

The unfolding of events began prior to April 28, 2003, when the decedent, Warren Jupiter, a man whose quality of life was diminished by his lifelong obesity, determined to address that condition head on by electing to undergo weight reduction or bariatric surgery at the Manhattan campus of the New York Veterans Administration Hospital (NYVA). He was admitted to that hospital on April 22nd, 2003 and after being found psychiatrically fit to endure the operation and the known post-operative recuperative protocol, Tr. 25, 480. Roux-en-Y gastric bariatric surgery was performed on April 28, 2003.

Dr. Sheldon Randall, a general surgeon with a specialty in bariatric surgery, was the plaintiff’s first witness who, with the aid of plaintiff’s exhibits 8A-8H and relevant references to the entire 6,000 page medical record received in evidence as plaintiff’s Exhibit 1, explained how the Roux-en-Y operation is performed. No attempt will be made to replicate that explanation replete as it necessarily was, with the technical medical terminology it required.

One step in that operation, it is claimed, was a stunning departure from the accepted practice of performing bariatric surgery — the removal of the distal stomach by the operating surgeon, Dr. Thomas Gouge, the government’s principal witness. Dr. Randall, who performed over 6,000 bariatric surgeries, testified to having “looked at different historical books” and could find no reference to the removal of the distal stomach as a standard component of bariatric surgery, Tr. at 27, and that it was his opinion, with reasonable certainty, that there was no surgical reason for removing it. Tr. 37-38. He explained that the basis for that opinion was the positive post-operative management opportunities of which Jupiter was deprived by the removal of that organ. Tr. 38-39.

Specifically, the removal of the distal stomach precluded the ability to provide needed nutrition to Jupiter by placing a feeding tube directly into the gastrointestinal system and thus avoid the danger that would accompany providing such nutrition intravenously, through the large blood vessels by what was described as PICC lines. That necessitated alternative with its significant risk of infection did, in the event, cause the infection of Jupiter’s brain and ultimately his death. That sequence of cause and effect was acknowledged by the defendant’s witnesses, namely, Dr. David Seres, Tr. 817; Dr. Hillel Bryk, Tr. 766; Dr. William Mandell, Tr. 665; Dr. Nick Gabriel, Tr. 888; and by the plaintiffs expert, Dr. Edward Telzak, Tr. 238.

It is important to note that Dr. Nick Gabriel, the defendant’s expert, was in full agreement with Dr. Randall although his agreement, elicited on his cross-examination, was not easily obtained as the record plainly reveals:

Q. . . . Do any of them (previously named authorities) advocate taking the distal stomach out of the patient?

A. In that procedure, no.

Q. And the reason for it, doctor, is . . . if you have a problem post-operatively and you have to feed the patient, . . . you go right to where the stomach would have been and you put [a feeding tube] in there . . . isn’t that true?

A. Yes, that is done.

Q. So by removing the stomach, you are depriving the subsequent surgeon of being able to feed a patient by direct enteral feeding, isn’t that true?

A. There is 22 to 25 feet of enteral possibilities.

Q. Isn’t it true, doctor, that the reason — one of the reasons the distal stomach is left in place operatively is to permit enteral feeding if nutrition is needed, isn’t that the reason?

A. It is, absolutely.

Q. Was there any explanation of (sic) the record as to why Dr. Gouge or the resident removed that stomach, was there any explanation that you saw?

A. If that’s what he was comfortable doing, then it’s appropriate.

Tr. 916-917.

His answer, aside from being unresponsive, reveals no knowledge of Dr. Gouge’s testimony who, when asked by defense counsel why he removed the distal stomach, testified:

Q. Why. Why do you remove the distal stomach?

A. So — there are a number of reasons why I elected in cases like this to remove the distal stomach.

In any Roux-en-Y gastric bypass, that portion of the stomach is taken out of the circulation and never put back into it. It has no role in contributing essential nutrients, digestive enzymes or anything else to these patients.

On the other hand, it can be the cause of complications, potentially very serious complications both early and late after this operation.

So in the super-obese group of patients, based on our experience, we had chosen to follow suggestions by other surgeons to eliminate that portion of the stomach to simplify the operation.

Tr. 490.

The names of those “other surgeons” or recognized treatises “suggesting” the removal of the distal stomach was not revealed. His observation that the removal of the distal stomach “can be the cause of complications . . . both early and late after this [7] operation” was prophetic.

The record thus clearly compels the conclusion that the removal of the distal stomach was a departure from the standard of care that should have been observed and was malpractice.

The malpractice that is the basis for this action is not only the botched bariatric surgery, but is also claimed to have persisted over a period of more than two years at various stages of Jupiter’s post-operative care, each of which will be separately addressed.



I. The Negligent Hospital Discharge

Jupiter was first discharged from the hospital on May 14, 2003. Two days before that his white blood cell count was 17.5, having risen from a count of 13.5 on May 4th. Tr. 185. The normal range for a white blood cell count at the NYVA was testified to be between 7 and 11. Tr. 518. The significance of a white blood cell count was explained by Dr. Edward Telzak, the plaintiffs expert witness whose specialty is infectious diseases, to be “the body’s primary method of fighting infection.” Tr. 184. He testified that the count of 17.5 was a marked or severely elevated white count, Tr. 185-86, and there being no other apparent cause at the time for that elevated count, should have alerted the doctors [8] to the real possibility of a gastric leak or intra-abdominal abscess which are known complications of gastric bypass surgery. Tr. 187.

In the context of the other factors to which he testified, it was his opinion, with a reasonable degree of medical certainty that the discharge of Jupiter from the NYVA with that severely elevated white blood cell count was a departure from accepted medical practice. Tr. 188. The basis of his opinion was the importance for the treating physicians to evaluate the possibility of any ongoing infection, in particular an ongoing intra-abdominal infection that could have arisen post-operatively. More succinctly, it was the “responsibility of the physician to formulate a differential diagnosis in order to assess what is going on, what is responsible for the infection.” Tr. 186. That responsibility was irresponsibly ignored.

Dr. [9] Randall was of the same opinion, namely, that the elevated white blood count was a significant indication that there was an ongoing infection at the time and discharging Jupiter without having even considered a differential diagnosis to exclude an intra-abdominal leak or infection was a departure from accepted medical practice. Tr. 70-71.

Drs. Randall and Telzak were men with extensive experience in their respective areas of expertise as was made manifest by their curricula vitae but more importantly, they impressed the Court as very knowledgeable regarding the specific issues at stake and very credible. Each was refreshingly responsive to questions whether on direct or cross examination, leaving not the slightest suggestion of evasion or dissembling.



II. Post Operative Care

Jupiter was readmitted to the NYVA on June 13, 2003, and an evaluation of his condition then revealed a urinary tract infection (UTI) which was treated and effectively eradicated. On June 23, 2003, Jupiter’s white blood count was 17.3, his UTI was cured and he was discharged from the NYVA and sent to St. Alban’s Hospital. That discharge, Dr. Telzak testified, was repeatedly a departure from accepted medical practice [10] for the same reasons that he testified it was such a departure when Jupiter was discharged from the NYVA on May 14, 2003, namely, no determination was attempted to be made as to why his white blood count remained elevated. Tr. 194. His testimony was fortified by the fact that several months later, in November, 2003, an abdominal CT scan evidenced a gastric leak and fluid in the ultra-abdominal cavity which, he testified, was the cause of the elevated white blood count on June 23rd.

It is important to note in this regard, that the defendant’s infectious disease expert, Dr. William Mandell, when asked whether on June 23, 2003, there was “any other reasonable suspicious causes of Jupiter’s infection during that June admission after the urinary tract infection was resolved other than possible ultra-abdominal leak and abscess, his answer was “Not to my knowledge.” Tr. 717. What is remarkable about that response, given this voluminous record and the virtually unanimous acknowledgment of every other medical witness, when asked whether he believed that “there was ever an intra-abdominal abscess present in Warren Jupiter’s abdomen?” his answer was “There was no evidence of that.” Tr. 660.

That [11] response aside given Jupiter’s admission to the St. Alban’s facility on June 23rd with an elevated white blood count, Dr. Mandell testified that he would expect Jupiter’s temperature to be taken there once or twice a day. The record of Jupiter’s stay there, however, reflected no evidence that his temperature was taken at all between June 23rd and June 29th; and during most of July. Tr. 724-26. When asked whether that failure to record his temperature was a departure from accepted medical practice, his response was “I would agree that they should have recorded his temperature.” Tr. 726.

Dr. Telzak’s opinion that it was negligent to discharge Jupiter on June 23rd and transfer him to St. Alban’s without having determined the cause of an elevated blood count referenced above, was soundly based on the facts at the time but was also echoed by Dr. Gouge, the operating surgeon who also believed a differential diagnosis to determine the source of the infection should have been made. In that regard, the Court is constrained to set out a segment of the cross examination of Dr. Gouge who has testified as an expert witness more than a hundred times, Tr. 556, as follows:

Q. Okay. If Mr. Jupiter had a white blood count of not 1,400 but 17,500, if his urinary tract infection had been cleared up, would you not be suspicious in June of 2003, a few months after his surgery, that there might be the persistence of a leak in an abscess?

A. No, sir, I would not.

Q. If I were to tell you, Doctor, that Mr. Jupiter had a continuous elevated white blood cell elevation from the time of the — postoperatively, during that admission, right through this period of time of June of 2003 when he was discharged to St. Albans Hospital, would that be of concern to you as a surgeon?

A. In terms of surgical issues, that would be a major index of, no, sir, that would not be of particular concern to me.

Q. Well, during that June admission, were you not consulted and indicated that other sources of infection should be considered for Mr. Jupiter other than the urinary tract infection?

A. Yes, sir.

Q. And did you do anything to evaluate that at that time?

A. Other than examining him, no, sir.

I made recommendations to the medical service where he was a patient.

Q. Okay.

Was he on your service anymore?

A. We were following him as consultants. He was not on my service at that time to the best of my recollection.

Q. So who then, Doctor, is charged with following up at that point to determine what those other sources of infection might be?

A. The physicians caring for Mr. Jupiter on the medical service, sir.

Tr. 557-558.

Q. So, is it your testimony that it was not your job or your department or your service to follow up on the other sources of infection that might be responsible for the white blood count, but it was the medical service’s responsibility to do that?

A. It was their direct responsibility to follow up on that. It was our responsibility to follow up Mr. Jupiter on any surgical issues.

Tr. 559.

His indifference to the precarious condition of Jupiter, upon whom he, as the surgeon in charge performed a major operation just two months previously, who was evidencing glaring indications of infection, indifferent to whether his recommendation was heeded, as to whether anything at all was being done to address the possibility of an internal gastric leak attributable to his surgery because it was the medical service’s responsibility and not his, is an indifference bordering on callous. His testimony is startling given the testimony of Dr. Elizabeth Weinshel, the Deputy Chief of Staff of the NYVA who, when [14] asked whether the department of surgery was responsible for the patient’s follow up care, answered “sure.” Tr. at 273.

Jupiter was transferred from St. Alban’s to the NYVA on October 15, 2003, with an intervening gap from August 5 to 11 when he was at the NYVA for treatment of a urinary infection and returned to St. Albans. During that entire intervening period from June through October, Jupiter was unable to tolerate food. The record is replete with reports of his loss of appetite, inability to eat, let alone enjoy, food that he formerly enjoyed and would specially request. Tr. 378-79; 413. Dr. Charles Mueller, an expert on clinical nutrition attributed his loss of appetite and very poor intake to an infectious process that became apparent early after his surgery. Tr. 446. Dr. Mueller’s opinion was a succinct statement of a more explanatory one given by Dr. Telzak who, as has already been said, impressed the Court by the clarity of his testimony and his credibility. During the four month period between June and October, the medical record reveals Jupiter’s progressive debilitation, anemia and what would be generally described as a failure to thrive. Dr. Telzak ascribed that steady [15] deterioration to “an untreated intra-abdominal abscess and a chronic infectious process.” Among the many indications that might alert a doctor to an intra-abdominal infection is “anorexia or a complete distaste for food.” Tr. 197, 201. Dr. Randall, who like Dr. Telzak, impressed the Court as an expert witness who understood his function to be to assist the Court in understanding the exquisite complexity of the functioning of the human body1 and discharged that function responsibly. The causal relationship between a failure to thrive and an infection is best described in his own words as recorded at trial. After a reading of a portion of an entry in the voluminous medical record recommending a consultation regarding the possibility of an abscess around the surgical site that explains Jupiter’s poor appetite, Dr. Randall was asked:

Q. Where in this note it says an abscess that explains patient’s poor appetite, what is the relationship between an abscess and poor appetite?

A. There are several. One, the body is sick, there is an infectious process inside so the ability to eat could be turned off. You could have desire but then the body doesn’t really want to eat. It’s almost like if you [16] get a pneumonia, you have the desire to eat but you start to eat, oh, I don’t feel like eating.

The added component here that is important to understand is any time there is leak or an abscess, it creates a surrounding inflammation. An inflammation can create scarring. Once you create scarring and especially in an area that is leaking, there is going to be narrowing and very difficult things to pass through the connection from the stomach to the small intestine. And that creates the ability that even though you try, you can’t.

Tr. 49-50.

Dr. Randall was then read a note from the medical record made by Dr. Neil Steigbigel, an infectious disease expert, which makes reference to an “entire clinical picture of anorexia” and he was asked to explain the meaning of “clinical picture of anorexia.” His response was as follows:

A. The clinical picture of anorexia, my interpretation in this instance is there is no desire to eat anymore. It’s not like he can’t — because he has tried so many times, he can’t. [17] So it’s an adverse reaction of the inability to eat.

And plus the infection process, as I mentioned earlier, many infectious processes take the ability to eat away. They could eat something, then enough, I can’t eat anymore. It doesn’t mean they are not able to, it just means they can’t.

Q. Again, where it says here the CT — that the entire clinical picture of anorexia, profound weight loss, high seg(sic) rate, anemia of chronic disease is all consistent with the gastric leak and closed space intra-peritoneal infection (abscess).

So when Dr. Steigbigel notes that, he refers to a closed space intra peritoneal infection for an abscess, what does that mean?

A. When you get an infectious disease consult, they are really experts in identifying and how to treat infections. And he is identifying the problem that has been here and he is making a synopsis in a few words to say this is really what has been going on all this time period.

He has been — the prolonged anorexia, the high sedimentation right(sic), which is a sign of inflammation, and the anorexia.

Tr. 51-52.

Dr. Weinshel, to whom reference was made above, was called as a witness by the plaintiff. Although properly characterized in law as [18] a hostile witness, she did not impress the Court as hostile. On the contrary, she impressed the Court as conscientiously answering questions candidly and responsively and credibly. She agreed with Dr. Steigbigel’s note in which he referred not only to anorexia being reflected in the entire clinical picture, but also to “profound weight loss, high sed rate, anemia of chronic disease, . . . all consistent with the gastric leak and the closed space peritoneal infection (abscess).” Tr. 283.

The significance of the failure to make or even attempt to make a differential diagnosis which the undiagnosed elevated white blood count, the fever (the inexplicable failure to take his temperature for weeks), his progressive debilitation, failure to thrive, anorexia, virtually cried out for is, that if that were done and the relationship between an intra-abdominal leak and the infection was revealed and corrective surgery performed at or about June 2003, the likelihood of a successful outcome was better than it was when that surgery was finally performed approximately 5 months later, in November. Tr. 76, 195-96.



III. The CT Scan That Wasn’t Done

A note in the medical record dated June 13, 2003 at p. [19] 348, reflects the desirability of having a CT scan. It reads: “Unable to CT abd. pt is over CT table’s wt limit. Team to follow abd exam and consider CT scan of ABD? at Bronx Zoo (large animal capacity).”

Dr. Weinshel agreed that a CT scan was the most desirable way for diagnosing an intra-abdominal abscess and one was wanted to have done. It wasn’t done, however, for the reason that it was presumed by most people that:

A. . . . The guy was too heavy for the carriage of the CAT scan. they wouldn’t do him, couldn’t be imaged any other way and we were looking for evidence of infection. CAT scan was the best test.

* * *

Q. So you agree now, doctor, that the CAT scan was the best test to look for evidence of infection?

A. Yes.

* * *

Q. And when you say “They wouldn’t do him,” who wouldn’t do him?

A. The radiology department had only one device, the one machine and they had a well known limit for weight of the carriage.

Q. Who wouldn’t do him?

A. The technicians, the chief of the service, . . . .

Tr. 291-93.

No attempt was ever made prior to November 24th, 2003 to do a CT scan of Jupiter’s abdomen. Tr. 294-95. The failure to even try to do a CT scan on Jupiter was attributed to an institutionally imposed [20] table weight limit of 350 pounds. NYVA at 997. No evidence was elicited as to why or how that weight limitation was arrived at given that the weight limitation specified by the manufacturer was 450 pounds. Tr. 63.

Called to testify for the plaintiff was Alfio Banegas, a radiologic technologist licensed by the New York Health Department with extensive experience as a registered CT scan technician among other imaging modalities. He has served in that capacity for 18 years in the Hospital for Special Surgery, Memorial Sloan-Kettering and New York Presbyterian Hospital and Lenox Hill Hospital. Tr. 346-48. He was familiar with the Siemens Somatom CT machine that was used at the NYVA, a picture of which was received in evidence. Tr. 353. His undisputed and unequivocal testimony, illustrated with references to photos of the CT scan machine explained how that machine could have accommodated Jupiter’s abdomen and obtained the required images of it. It is surely not inappropriate to recall in this regard the testimony of Dr. Randall to the same effect. Tr. 64-66. In light of the above, the testimony of Dr. Weinshel is virtually dispositive:

Q. Do you agree, doctor, that if Mr. Jupiter could have [21] fit in that CT scan by weight and otherwise on November 5th, it should have been done at that time?

A. Yes.

* * *

Q. Doctor, would it have been a departure from accepted medical practice not to have done it at that time if he could fit in the machine?

A. If we were aware that he could fit in the machine then, yes, it would be.

Tr. 295.

The NYVA was not “aware” that Jupiter could fit in the machine because no attempt was ever made to do it which is inexplicable and inexcusable given the undisputed testimony of Alfio Banegas that a CT scan image of his abdomen was clearly possible. The failure to obtain one long before November 24th, 2003 when it could have been was, the Court concludes, a failure to observe the standard of care the circumstances demanded.

A CT scan was eventually obtained on November 24, 2003 and revealed a gastric leak and a closed space peritoneal infection, an abscess which provides an explanation for “the entire clinical picture of anorexia, profound weight loss, high sed rate and anemia.” Tr. 23. The steady deterioration of Jupiter that began after his bariatric surgery was the result of an untreated intra-abdominal abscess and a chronic infectious process that was causing [22] his body to become progressively debilitated.” Tr. 197. Spread throughout this voluminous record is the medical understanding that there is a relationship between the lack of tolerance for food, the refusal to eat, anorexia and an ultra-abdominal infection. See, for example, Tr. 283 (Dr. Steigbigel); Tr. 197 (Dr. Telzak); and Tr. 582 (Dr. Gouge). The recognition of that relationship and the awareness of Jupiter’s progressive debilitation, significant weight loss (more than 200 pounds in the post op period), rejection of food, anorexia and anemia notwithstanding, it wasn’t until the long delayed CT scan on November 24, 2003 that a gastric leak, an abdominal abscess traceable to the bariatric surgery was definitively identified.

The significance of that identification is made manifest by a note at page 979 in the medical record, Ex. 1A, by Dr. Neal Steigbigel, an esteemed clinician, Tr. 205, who, after examining the CT scan opined that Jupiter “will need surgical drainage and gastric repair – a formidable procedure in this currently debilitated patient.” In that regard it is noteworthy that Jupiter’s weight on November 24th was essentially the same as it was on October 15th when he was [23] admitted to the hospital, Tr. 209, and a CT scan would not have been precluded by his weight at that time even given the inexplicable weight limitation imposed by the hospital. Indeed, Dr. Raicht, who was the division chief for the Department of Medicine at NYU which encompasses the VA, Tr. 309, agreed on October 22, 2003 that a CT scan of the abdomen should be ordered to “rule out occult smouldering intra-abdominal infection (CT scan if possible given patient’s size),” Ex. 1A at 687. Dr. Telzak testified that Jupiter would have been more amenable to successful surgery in October being less debilitated then than he was thought to be six weeks later in November. Tr. 210. Dr. Randall testified that the November 24th CT scan and Dr. Steigbigel’s evaluation of it that surgical intervention was mandated. The record reflects the following colloquy on his direct examination:

Q. Do you have an opinion, Doctor, to a reasonable degree of medical certainty, as to if the surgery were performed on Mr. Jupiter at that time on November 24 or November 25, whether that surgery could have been successful and avoided his subsequent impairment and death?

A. I could state that going back for complications [24] is very difficult, no question, but the principles are you need to drain an abscessed cavity and you need to control a leak.

If he goes in and operates, which I think should have been done with a reasonable degree of medical certainty, they don’t have to repair the leak but they need to drain the abscess ….

* * *

But absolutely intervention needs to be accomplished.

It was also Dr. Randall’s opinion that surgical intervention was indicated well before November 24th.

Tr. 54-55.

Surgery, however, was not undertaken, the CT scan notwithstanding, but was delayed until February 13, 2004. That operation was undertaken, Dr. Gouge testified, to provide a reliable way of continuing to feed Jupiter and to “see if there was anything that we needed to, or we wanted to take a look and see if there was anything we needed to do to drain an abscess; correct a defect in the intestinal tract or anything else.” Tr. 544.

Dr. Gouge’s testimony on direct examination as to what was seen when Jupiter’s abdomen was opened up is significant to relate:

Q. Could you see his spleen when you opened him up that day?

A. Yes, sir.

* * *

… The abdomen was open, the abdomen was retracted … which allows us to hold it up and [25] see inside ….We could very easily see all the way up and around the diaphragm, see the entire front and side of the spleen ….

* * *

Q. When you and your subordinate physicians looked into his abdomen … and saw his spleen, was there an abscess that can be visualized?

A. There was no abscess that could be either seen or felt.

* * *

Q. You can see the spleen, the front of the spleen, right?

A. You can see the bottom, medial side, top, and outside of the spleen.

Q. You can’t see behind it, can you?

A. You can’t see all the way behind it, no sir.

Q. Now, did you also feel around the back, where you couldn’t see?

A. Well, the spleen is ordinarily fixed posteriorily, that is, there is no open space there. We did not try to open that space up. We looked at all the free space around it and we felt down in the back and there was nothing by palpitation, that is, by feeling. Tr. 546-49.

The operative report, which Dr. Gouge didn’t write but reviewed and signed off on, stated that “Examination of the abdominal cavity revealed very minimal adhesions.” Tr. 545 and Dr. Gouge agreed that there was no abscess or telltale footprints from an abscess present on February 13, 2004. Tr. 549.

I characterized the [26] testimony of Dr. Gouge in this regard as “significant” but perhaps “questionable” would have been more appropriate. Dr. Randall to whom reference has been previously made, was shown the surgical report of that operation, Tr. 30, and testified as follows when asked about it:

Q. Is there any mention whatsoever of the spleen?

A. The word spleen is not in the dictation.

Q. Mr. Cleary in his opening statement … said they looked at the spleen on that February 13, that is what is in the chart. Is there anything in the chart there that there was any looking or feeling of the spleen?

A. It does not mention spleen at all.

* * *

Q. And if you did explain (sic) [examine] the spleen and you did look for an abscess and you did examine it, is there a certain standard of medical practice that requires there be some documentation of that being done?

A. That would be the standard of care especially if you are going back for an operation, you want to describe the important elements — if the spleen was palpated, I felt the spleen, I do not feel any abscess, I looked at the anastomosis if that was the plan. I did not see any leak, not to say everything looked okay up there. That doesn’t help because you don’t [27] know if they were really there. That doesn’t quantitate or identify if that’s what they were really looking at.

Tr. 34-35.

The testimony of Dr. Nick Gabriel, the government’s expert witness, on this aspect of the February 13th operation is revealing. On cross-examination he was asked:

Q. If you visualize the spleen, you would expect to report that in the operative report so that you would have the advantage of knowing what it shows, isn’t that true, sir?

A. That would be fair, correct.

Q. Doctor, do you agree that it would be a departure from accepted medical practices for a doctor to have conducted this operation, examine the spleen and not put any finding whatsoever in the report about the spleen?

A. It’s unfortunate that that fact may have been omitted from this operative report but I’m looking at the rest and according to this operative report, they did explore the peritoneal cavity. They did an examination of the abdominal cavity which revealed minimal adhesions and there was very little evidence of a previous intra-abdominal catastrophe.

THE COURT: I don’t think you responded to the question, doctor.

Q. There is no description of the spleen having been examined, isn’t that true, sir?

A. [28] I don’t see it here but I can tell you that it’s ….

Q. Does good medical practice dictate if it was examined, it should be in the report?

A. It should be, yes.

Q. And do you agree, sir, that it would be a departure from good and accepted practice to have examined the spleen and not reflected that in the report?

A. It was just an omitted fact, so I can’t tell you if it was a deviation from the standard of care.

Q. Kind of important, wouldn’t you say, that if the spleen were examined in a case like this or the area around the spleen were examined, wouldn’t you say that that would be kind of an important thing to put in the report if that were done?

A. I believe so.

Tr. 935-36.

Those opinions notwithstanding, the government ‘s main witness, the operating surgeon, Dr. Gouge, when asked:

Q. Didn’t you think it would be important to have in this report that an examination was made of the spleen. An examination was made to look at the abscess to feel behind it and around it as you describe?

A. No, sir.

Tr. 575.

The acute awareness of Dr. Gabriel, the government’s expert, that he was a witness for the defense, his stunning evasiveness so exquisitely portrayed, is magnified by just five lines of the [29] transcript of his direct examination:

Q. Doctor, at any time was an abscess ever diagnosed in this patient in the 6,000 pages of medical records that are sitting over there that you’ve reviewed?

A. I think the only abscess that was diagnosed was in his brain.

Tr. 887.

A similar remarkable response was elicited from another expert witness called by the government, Dr. William Mandell, who, on direct examination, testified as follows:

Q. Doctor, do you believe there was ever an intra-abdominal abscess present in Warren Jupiter’s abdomen?

A. There was no evidence of that.

Tr. 660.

Those responses, given a record that reeks with the foul odor I would imagine an infectious abscess emits and that almost makes one feel the ooze of an anastomic leak are disturbing.

Secure in the belief that the findings I have made thus far compel the conclusion that the defendant’s medical malpractice which had its genesis in the mindless removal of Jupiter’s distal stomach and progressed relentlessly and causally to his death, I will not burden those findings any further beyond a few oblique references to glimpses of testimony from other government witnesses which fortify those findings.

For example, the finding that [30] the removal of the distal stomach precluded providing needed nutrition to Jupiter directly through the gastrointestinal system and necessitated subjecting him to the danger of providing that nutrition intravenously through PICC lines was confirmed by Dr. Hillel Bryk. Dr. Bryk, an interventional radiologist called by the government, who had no recollection of any interaction with Jupiter, confirmed that providing Jupiter with needed nutrition intravenously by PICC lines necessitated by the removal of the distal stomach, was done at the risk of causing acute infection. Tr. at 266. Dr. David Seres, an expert in internal medicine and nutrition, agreed that intravenous artificial nourishment by the use of PICC lines is inherently risky and considered a last resort because the risk of a systemic infection is substantial. Tr. at 818. Those PIIC lines did cause an infection in Jupiter’s brain which was also a contributing cause of his death.

The government also called Dr. Fred Smith, a clinical pathologist from whom testimony was elicited based on his examination of an autopsy report prepared by the Chief Medical Examiner of the City of New York. The testimony of Dr. Smith spanned pages 827-868. [31] The determination of the reliability of his testimony regarding one significant fact, the existence of which is established beyond doubt in this voluminous record, is reflected in a few excerpts from the transcript. On direct examination, he was asked:

Q. Dr. Smith, do you have an opinion within a reasonable degree of medical certainty as to whether the autopsy performed on Warren Jupiter revealed the existence of an anastomotic leak at the time of death?

A. Yes, I do.

Q. What is your view, Doctor?

A. My opinion is that it did not reveal such a leak.

Q. Do you have an opinion within a reasonable degree of medical certainty as to whether the autopsy performed on Warren Jupiter revealed the existence of an intra-abdominal abscess at the time of death?

A. Yes, I do.

Q. Doctor, what is your opinion?

A. My opinion is that it did not.

Tr. 831.

On Cross-examination, after acknowledging that he has never participated in or witnessed bariatric surgery and has no familiarity with the variants to a bariatric Roux-En-Y gastric bypass procedure, Tr. 848-49, and after further questioning he also acknowledged that he did not consider the autopsy report a careful analysis of the intra-abdominal status of Jupiter’s [32] body. Tr. at 858.

More telling, however, in light of his testimony on direct examination set out above, was this exchange on re-cross examination:

Q. … based upon the autopsy report then, Doctor, is it your opinion … that there never was an anastomotic leak?

A. No, that’s not my opinion.

Q. Was there any evidence in the autopsy report that there ever was an anastomotic leak?

A. There’s no evidence one way or the other.

* * *

Q. Do you have any knowledge as to how much of a leak there was?

A. No, I don’t.

Tr. 867-68.

A continuous line by line re-reading of this transcript of more than 1,000 pages was riven by the stark contrast each reading more sharply brought into focus between the testimony of the expert witnesses for each side. Those who testified for the plaintiff I found to be responsive, credible and fulfilling the role an expert witness is called upon to play, namely, assisting the Court in understanding what bariatric surgery entails in all its anatomic complexity, and the collateral consequences foreseen and unforeseen of its post-operative care. Those who testified for the government, with one notable exception, Dr. Weinshel, brought to mind observations I made more than 25 years [33] ago in Rubinstein v. Marsh, 1987 U.S. Dist. LEXIS 16882, 1987 WL 30608 (E.D.N.Y.) at *7: “To the extent that these witnesses undertook to testify, they did so not as detached scholars … motivated by the sole purpose of assisting the fact-finder with an objective evaluation of the relevant data but as partisans. When expert witnesses become partisans, objectivity is sacrificed to the need to win. Testimony which is prompted by that need and that goal may deprive an injured plaintiff of the compensation that may be justly due him or wreak havoc upon the reputation and financial condition of the defendant.”

I turn now to the difficult question of just compensation to be awarded for the pain and suffering endured by Mr. Jupiter and for the loss suffered by his three children by the death of their father caused by the medical malpractice for which the Court finds the defendant is liable.



Pain and Suffering

Efforts to devise a satisfactory solution to the challenges of putting a price on pain and suffering for tortious injuries have eluded all who have risen to meet it. Scholars who have enlisted in the challenge are, among others, Randall R. Bovbjerg, et al., Valuing Life and Limb in Tort: Scheduling “Pain and Suffering.” [34] 83 Nw. U. L.R. 908 (1989); Ronen Avraham, Putting a Price on Pain and Suffering Damages: A Critique of the Current Approaches and a Preliminary Proposal for Change, 100 Nw. U. L.R. 87 (2006); Robin L. Rabin, Pain and Suffering and Beyond: Some Thoughts on Recovery for Intangible Loss, 55 DePaul L.R. 359 (2006); Mark Geistfeld, Placing a Price on Pain and Suffering: A Method for Helping Juries Determine Tort Damages for Nonmonetary Injuries, 83 Calif. L.R 773 (1995); Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis (1970). The usual formulation of the problem is a frank recognition that a monetary award does not achieve the Court’s objective of making the injured plaintiff whole. Certainly, in a wrongful death case that is an oxymoron. The objective there is to compensate the estate of the deceased for the pain and suffering he endured during the relevant time that he lived. That compensation is accomplished symbolically in the recognition that pricing pain and suffering is inescapably subjective. The inevitable consequences of subjectivity is disparity – persons enduring what are divined to be a similar degree of pain and suffering, receive different awards. Although [35] the validity of the implied assertion that disparity is unacceptable is debatable, disparity is presumed to be unacceptable per se. The law aims to be fair, evenhanded and predictable. Persons who suffer and experience pain to the same degree should expect to be similarly compensated. Conversely, similarly situated defendants should be burdened by similar judgments. The question one is then led to ask is how are degrees of pain to be measured and compared? Yielding as one must to the unanswerability of that question, courts resort to other cases for guidance. See, i.e., Nairn v. National Railroad Passenger Corp., 837 F.2d 565, 568 (2d Cir. 1988); Consorti v. Armstrong World Industries, Inc., 72 F.3d 1003, 1009 (2d Cir. 1995).

It is worth noting at the outset that “pain” and “suffering,” are words not readily defined with precision beyond “we know it when we feel it,” that embrace other similarly amorphous human experiences such as “loss of enjoyment of life,” “emotional distress,” which the cases also uniformly describe as difficult to quantify, or not susceptible to price with mathematical certainty. They eschew definition by intoning that the measure of damages in that event is determined [36] by the trier of fact to be fair and reasonable compensation based upon all the evidence in the case. And when claims are made of excessiveness or inadequacy of the award then guidance is sought from the awards made in cases involving related tortious conduct and similar injuries or both. Cases of medical malpractice abound, but few or even one, however, is not easily found of botched bariatric surgery on an obese man whose negligent post-operative care aggravated almost daily the consequence of that ill-fated operation. The award must therefore be made based in the light of all the evidence in the case and on as objective and dispassionate an assessment of that evidence as can be made by this trier of the fact of an award that is fair and reasonable compensation for the harm proximately caused by that malpractice.

This opinion began with the observation that Jupiter elected bariatric surgery to address his obesity. It is reasonable to assume that he subjected himself to that major operation with the expectation that it will be successful, that his obesity will have been bested and that the remaining years of his life will be enjoyed without the disabling limitations obesity imposed [37] on the pleasurable activities of life. The realization of that expectant hope was to be denied him. Little did he know that “a hospital is a dangerous place,” as Dr. Weinshel put it albeit appropriately in an entirely different context. Tr. at 312. For the next two and a half years, until December 6, 2005, he was revolved in and out of VA facilities as has been related above.

Jupiter’s physical and mental deterioration as he was shuttled to and from one VA facility to another is meticulously documented in the 6,000 page medical record in evidence. The significant essence of that record compelled the conclusion of malpractice attested to with certainty by expert witnesses. What that record and that testimony portrays is a portrait of an obese man who hoped to restore his image to one of relative normalcy by bariatric surgery. That hope was sadly dashed by a misguided operation and virtually all of the two and a half years spent as a hospital patient that followed. Two and a half years of progressive debilitation caused by an inexplicably belated diagnosis of gastric leakage, clearly and repeatedly signaled by an inability to tolerate food, inability to eat the food he loved, anorexia, [38] profound weight loss and understandable depression. He was bedridden virtually throughout. He was incontinent and had a catheter inserted in his penis with the urine collected in a bag at bedside which would not be timely emptied, overflowed and left a urine soaked floor. Tr. 383, 415. He had what his wife undisputedly described as “stage IV bedsores” which were more “horrific” than anything she had seen in her life. They were ugly and black, covered his buttocks and legs, the size of a football field. Tr. 414. He gradually lost the use of his arms and legs, lost the ability to feed himself and eventually lost the ability to do such simple things as lift a telephone or a TV remote control.

The infection of his brain directly attributable to the PICC lines, the use of which were necessitated by the removal of Jupiter’s distal stomach caused puss to accumulate there and required holes to be drilled through his skull to remove it.

The Court’s attempt to convey in prose a feeling for the pain, the indignity that accompanies incontinence, the inability to feed oneself, to be bedridden, to be the involuntary subject of invasive medical procedures; to capture the emotional turmoil that comes [39] with the sudden awareness of never being able to walk again and worse, that death awaits, would be an attempt that the poverty of language or my poor command of it precludes, and is confidently left to the imagination of the reader. A surer sense of all that would perhaps be better conveyed from a reading of the faithful visits with her father as described by his daughter Sara, in pages 375-395 of the trial transcript and by his wife Barbara, who although separated from Jupiter, visited him and ministered to him almost daily throughout his hospitalization. See pages 403-417.

Resorting to other cases for guidance as the Court is advised to do in “pricing” pain and suffering, suggests that the relevant cases would be only those in which the period of the offending endurance was approximately the same. To equate the degree of pain suffered by a decedent with the pain of others discussed in the cases or to pretend to do so would be sophistry. A string citation of cases read in which the duration of the pain and suffering spanned a period of months to approximately three or slightly more years, revealed awards that ranged from roughly one to five million dollars.

Consorti v. Armstrong, supra, [40] was a case the Court found instructive. The opinion in that case written by Judge Leval, in which Judges Newman and Altimari concurred, was a comprehensive, reasoned discussion of the problem in all of its ramifications. The period in that case over which the pain and suffering was endured was roughly equivalent to the period at issue here. The cause of death was pleural mesothelioma, an incurable cancer of the lining of the lung. Mr. Conforti died at the age of 51. Mr. Jupiter died at the age of 54. Although recognizing that to equate with this case the degree of pain and suffering gleaned from the cause of death in that or any other case is hopelessly flawed, my assessment of the degree of pain and suffering endured by Jupiter over a period of approximately 950 days is that it was gnawing and persistent. “We take it as a given,” wrote Judge Leval, “that reasonable people of his age, in good mental and physical health would not have traded one-quarter of his suffering for a hundred million dollars.” 72 F.3d at 1009. I too, would take it as a given that even a person in Jupiter’s mental and physical health would not have made that trade.

Based upon all of the circumstances and the context [41] in which the facts were found, an award of 5 million dollars in hereby made to Barbara Jupiter, as Executrix of the Estate of Warren Jupiter, for his pain and suffering endured from June 23, 2003 to December 6, 2005, the day he died slowly and painfully.

Jupiter was survived by three children who were 16, 19 and 21 on the day he died. A defendant found liable for the death of a parent is liable, not only for the pain and suffering endured by him prior to his death, but liable also to his surviving children who, by virtue of his death, were deprived of the assistance, guidance and support from that parent that they would have enjoyed had he lived. In that regard, the number of years the deceased would be expected to have lived, that is, his life expectancy is generally relevant. An opinion was rendered by Dr. Milano that Jupiter’s life expectancy was 12.72 years, an opinion based on his evaluation of Jupiter’s risk profile prior to his bariatric surgery. The plaintiff asserts that opinion to be inaccurate in that it failed to account for Jupiter’s longer life expectancy had he survived successful bariatric surgery. In an extensive footnote numbered 49 on pages 56-57 of the Plaintiffs [42] Proposed Findings of Fact and Conclusions of Law, the plaintiff acknowledges that accepting Dr. Milano’s evaluation it is “fair to conclude that such reduced life expectancy would have negligible, if any, effect on the loss of parental guidance damages.”

It is plainly true that the impossibility of “pricing” pain and suffering is also true of putting a dollar value on the loss to a child of parental guidance. A resort to the cases provides a fragile read to lean on for guidance. The value that is placed on that loss is, in the final analysis, dependant upon factors such as the ages of the children and the nature, quality and depth of a relationship they had with that parent. That value is determined by a “sense,” a “feel” the fact finder has from a consideration of those factors in the light of his own life’s experience and judgment. I have listened carefully to the account each of Jupiter’s children gave of their relationship with his or her father. I have listened carefully to their respective testimonial accounts addressed as they were to the mind through the ear of the hearer. I read and re-read their words in print that reach the mind though the eyes of the reader. A critical, [43] unhurried reading frequently lends the words a nuance, an insight which eludes those words fleetingly spoken. A studied consideration of those factors precludes a finding that the loss of any one of the children was greater or less than the loss suffered by the other from the death of their father. The extent and nature of the relationship had by each child with him can only be valued symbolically in a sum of dollars a fair and reasonable amount of which I find to be $900,000, to be divided equally among the three.




In sum, the findings of fact and conclusions of law discussed at some length above drive me to conclude that the medical malpractice of the defendant which, in some respects can be aptly characterized as egregious, proximately caused the pain and suffering endured by Warren Jupiter from June 23, 2003 to December 6, 2005, and for which compensation in the sum of 5 million dollars is awarded to Barbara Jupiter, as Executrix of his estate. For the loss of the assistance, guidance and nurture they suffer by the death of their father proximately caused by the medical malpractice of the defendant, Sara, Hannah and Joshua Warren are awarded the sum of $900,000 to be divided [44] equally among them.


Dated: Brooklyn, New York

December 20, 2012

/s/ ILG

I. Leo Glasser

Footnote 1

A witness may testify as an expert if his “scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence . . . .” (emphasis


How Are Veterans Treated In Court by the “Department of Justice?”

Surely, once after a veteran has been the unfortunate subject of medical malpractice at the Veterans Administration, when he or she goes to court the veteran, or his or her survivors will be treated fairly by the United States government. Isn’t this the same government that you swore to defend with your life? When you go to the United States District Court the United States is represented by an attorney from an agency called the Department of Justice, surely this attorney will be fair, and will treat the veteran like an honest taxpayer who has served his or her government and is seeking lawful redress through the court system? One would think that, but that is not the way the system works.

While some US Attorneys are fair and treat veterans fairly others take advantage of the fact that they have tremendous discretion and little supervision and often treat anyone who has the audacity to file a claim against the government with complete disdain. The unfortunate facts are that in the world of medical malpractice litigation there are experts for hire who will say anything, while it makes good press when some poorly qualified expert concocts an opinion to try to allow a plaintiff to bring a claim, rarely does the press cover it when the defense concocts some craziness to explain why it can’t possibly be responsible for something. Let’s look at how the US Attorney’s Office spent the taxpayer’s money on an expert, where the Manhattan VA had allowed the veteran’s leaking gastric bypass surgery to go undiagnosed because they didn’t think that it was possible to do a CT scan of him. The VA’s negligence resulted in the veteran essentially starving to death over a tortious period of months, because the leak prevented his body from getting nutrition. The VA hired an expert to testify that the veteran died because he starved himself to death. Ultimately, the veteran’s family received a $5,900,000 verdict against the VA.

Jupiter v. United States,

United States District Court for the Eastern District of New York

December 13, 2010, Decided; December 14, 2010, Filed  05 CV 4449 (ILG)(RML)

BARBARA JUPITER, as Executrix of the Estate of Warren Jupiter, and BARBARA JUPITER, Individually, Plaintiff, -against- UNITED STATES OF AMERICA, Defendant.

Sbsequent History: Findings of fact/conclusions of law at Jupiter v. United States, 2012 U.S. Dist. LEXIS 180379 (E.D.N.Y., Dec. 20, 2012)

Core Termsdiagnosis, surgery, personality disorder, eating, food

For United States of America, Defendant: Keisha-Ann G. Gray, LEAD ATTORNEY, United States Attorneys Office, Brooklyn, NY; Kevan Cleary, LEAD ATTORNEY, Richard K. Hayes, United States Attorney’s Office, Eastern District of New York, Brooklyn, NY.

Judges: I. Leo Glasser, United States District Judge.Opinion by: I. Leo Glasser

  1. Opinion
  2. 2.                     MEMORANDUM AND ORDER
  3. GLASSER, United States District Judge:The plaintiff has moved this Court for an Order that would preclude the testimony of proposed expert witness Dr. Abraham L. Halpern. Dr. Halpern is a medical doctor licensed to practice in the State of New York, and certified in psychiatry by the American Board of Psychiatry and Neurology. His qualification as an expert is not disputed. What is disputed is the conclusion, and the basis for it, reflected in his proposed Report.It will be assumed that the reader is familiar with the malpractice claimed to have caused the injuries to, and eventual death of, Warren Jupiter, for which redemption is sought in this action. The defendant seeks to offer Dr. Halpern’s opinion that Mr. Jupiter’s narcissistic personality disorder [2] (NPD) impeded the defendant’s effort to treat him. The import of his opinion is not readily divined nor is the purpose for which it is sought to be offered. Is it intended to convey that Mr. Jupiter’s personality disorder was a contributing factor to his death?; that his personality disorder impelled him to starve himself to death?; that it interfered with, but did not otherwise have a significant impact on the events which propelled them to this courthouse? The essence of the plaintiff’s objection to the admissibility of his testimony is the very questionable foundation upon which his opinion has been formed. Dr. Halpern’s Report, dated February 24, 2010, begins with a listing of the materials he reviewed in arriving at his opinion. That listing, single spaced, covers more than half of the first page of his report and references reports going as far back as 1987; depositions of at least 15 persons; letters between plaintiffs’ counsel and the DVA Office of General Counsel; the complaint and amended complaint marking the commencement of this lawsuit and others itemizing which will add little to those already referenced. The purpose of that listing is to permit the observation that questions  may be asked whether many of those are “of a type reasonably relied upon by experts in [his] field informing opinions or inferences upon the subject” Rule 703, Fed. R. Ev. Other questions may be raised regarding relevance, e.g., “reports of similar pain and suffering award cases” and hearsay. See, e.g., Hutchinson v. Groskin, 927 F.2d 722 (2d Cir. 1991). Those questions, answers to which are not provided in, nor can they be gleaned from his Report may, in and of themselves, provide a sound basis for precluding his testimony, but are not being regarded in arriving at the determination of this motion. That determination is made upon an evaluation of the substantive context of the Report and the Opinion it offers as serving the purpose for which it may be received, namely, to “assist the tries of fact to understand the evidence or to determine a fact in issue” Fed. R. Ev. 702.The first full paragraph on page 2 of his Report is devoted to recounting the less than idyllic relationship Mr. Jupiter had with his wife and children taken almost entirely from the records of and letters to a Dr. Gorkin.His diagnosis of narcissistic personality disorder is based virtually in its entirety on the records of Dr. Gorkin, which are twenty years old. One example of the DSM criteria manifested by Mr. Jupiter – a sense of entitlement – cited by Dr. Halpern is “a letter dated 12/17/93 by the VA Medical Administration Services: ‘Mr. Jupiter has requested through Senator Daniel P. Moynihan’s office approval of his Fee Basis treatment to be one visit per week.'” The Court will not comment upon the absurdity of that reference as an indicator of a “sense of entitlement” beyond stating that it alone would serve to grant this motion (Halpern Report p.3). His references to conduct manifesting his need to “exhibit power over others” is of a piece with his letter to Senator Moynihan, viz.: “An example of his wish to demonstrate his power over authority figures was his tactic of ‘asking to go back to bed when placed in a wheelchair and asking to be put in a chair when in bed.'” (Halpern Report p.4). The significance of the very next paragraph in relation to this eludes me: “He showed quite the opposite behavior when it came to fulfilling his self-serving wishes. Prior to his hospitalization, he would go to Atlantic City where the casino operators gave him special privileges. Except for winning  $200 on one occasion, he invariably lost large amounts of money putting his family in financial peril.” The basis for this are references to Dr. Gorkin’s notes made in 1994, citations to which were omitted.The opinion that Mr. Jupiter had an NPD is, ostensibly, derived from the Diagnostic and Statistical Manual of Mental disorders (DSM – IV – TR 301.81), which list the criteria – at least five of which should be found to make that diagnosis. Dr. Halpern’s Report is vague as to which five he relied on. A reading of the criteria which are set out in a footnote on page 3, brings to mind an observation of Professor Jay Katz of the Yale Law School, who was also an eminent psychiatrist, quoted in United States v. Torniero. 570 F. Supp. 721, 733 (D.C. Ct. 1983):If you look at DSM-III in terms of its classification all of us under one rubric or another of mental disorder* * *I haven’t studied DSM-III as carefully, but under DSM-III called myself a psycho-thymic personality. That was the diagnosis I liked for myself because it says, among other things, that this is a person who … at times [is] a little bit happy, at other times … a little bit sadder, and that the happiness and sadness is [6] also affected by external circumstances.

Well, I’m a fit candidate for that diagnosis. You can find a diagnosis for anyone (in DMS-III). (Emphasis in the text.)

A parsing of DSM-IV may qualify a reader for a similar diagnosis. See also United States v. DiDomenico, 985 F.2d 1159.1161 (2d Cir. 1993).

Dr. Halpern acknowledged that Mr. Jupiter was cleared for surgery by a psychiatric evaluation. That clearance was required as a pre-condition of bariatric surgery. The reason for it, as explained by Dr. Weinshel, the defendant’s witness, was “There are a lot of patients who have eating disorders that make them challenging to operate on and so for some of the procedures, you have to make a decision whether or not to do a restrictive operation …. And that should depend on a good understanding of the patient and their pathology, their psychopathology and their psychiatric environment if you will.” Tr. 265. Dr. Thomas Gauge, the defendant’s expert, also testified to the importance of a psychiatric clearance prior to that surgery. Tr. 480. No indication of the significance of that clearance beyond acknowledging it in arriving at his conclusion is evident in his Report.

If, indeed, the purpose to [7] be served by offering his opinion (which is nowhere stated, to be held with a reasonable degree of medical certainty) is to establish that his rejection of food was to starve himself to death and was the product of a narcissistic personality disorder, is to ignore the record. A recitation of every record reference to the relationship between the surgery and its aftermath and his inability to eat would needlessly burden this opinion and a few would surely suffice.

At p. 86 of the medical record, plaintiff’s exhibit lA, the following entry is found: The patient “complains of decreased appetite ever since his surgery with further decrease in the past 5 weeks so that he was disgusted at seeing his favorite foods; that his hamburgers and french fries and had to spit out any food that is put in his mouth … Predominant complaint is lack of appetite.” Tr. at 77-78.

Dr. Mandell, the defendant’s expert, testified that after surgery, Mr. Jupiter had an inability to eat. He stated that just the thought of food made him nauseated and that an intra-abdominal infection may be one of the causes why he wasn’t eating. He agreed that anorexia – not eating or repulsion to food – is one of the universal [8] signs of intra-abdominal infection. Tr. 661, 692, 694.

Dr. Gabriel, the defendant’s expert, acknowledged that it was reasonable to look for an occult infection as the cause for the patient’s decreased appetite. Tr. 961 1

The foregoing assessment of the Report of Dr. Halpern and his opinion drives the Court to conclude that the motion to preclude his testimony must be granted. It will not in the slightest degree assist me, as the trier of the facts to understand the evidence or to determine a fact in issue.


Dated: Brooklyn, New York

December 13th, 2010

/s/ ILG

I. Leo Glasser

Footnote 1

See also the testimony of Dr. Randall, Tr. 49, 51, 75, 79, 81-82; Dr. Telzak, Tr. 197, 261; Dr. Weinshel, Tr. 278, 279, 280; Dr. Mueller, Tr. 434-35; Dr. Gabriel, Tr. 876-77.

Sex, lies and the courts: perjury charges are rare

Journal Staff Writer

…In the Battalino case, there were allegations that Dr. Battalino had tried to get the veteran she had had sex with to change his story — something that Independent Counsel Starr investigated regarding the President and Lewinsky.
And then there are the tapes. Starr’s investigation into what some in the media have referred to as “Monicagate” began after Linda Tripp surreptitiously tape-recorded phone conversations with her friend Lewinsky.
And that’s what Ed Arthur, the Vietnam vet who was under Battalino’s care, did to bolster his case against her. All together, Arthur taped about 25 hours of conversations with Battalino. And the prosecutor who handled the case says that without those tapes, Battalino probably never would have been prosecuted.
Jonathan F. Mitchell was the lawyer in the fraud section of the Justice Department’s criminal division who prosecuted the case against Battalino. Now an assistant attorney general in Massachusetts, he says that while “lying carries different levels of moral turpitude for people . . . perjury cases are very important to bring. The proper function of criminal justice rests, in large part, on the assurance that witnesses are telling the truth. One way to ensure that is to, from time to time, punish people who don’t tell the truth.
“You’d see more people lying on the witness stand if perjury cases weren’t brought,” says Mitchell. “The justice system has to be confident it is getting correct information before making decisions.”
Mitchell said he pushed for the indictment against Battalino because, to him, the case against the 52-year-old psychiatrist was “crystal clear.”
In May 1991, Battalino was put in charge of reviewing medications for Ed Arthur, a recipient of two Purple Hearts and a Bronze Star, who was suffering from posttraumatic stress disorder. Arthur had served two tours of duty in Vietnam spanning 4 1/2 years.
On June 27, 1991, Battalino asked Arthur to come to her office at the Veterans Administration hospital, announced she had “feelings” for him and performed oral sex on him — an act she denied for years.
She then began a four-month intimate relationship with Arthur. But after her boss found out about the relationship — which violates psychiatric ethics — she was allowed to quietly resign. According to the Boise Weekly — the only media outlet that followed the case closely — Battalino was given $16,000 upon her departure in remaining salary payments.
In 1992, Arthur sued Battalino and the VA in U.S. District Court in Idaho, alleging, among other things, that Battalino had committed medical malpractice and sexually abused him, when she engaged in oral sex with him in her hospital office.
Battalino requested, through the U.S. attorney for the District of Idaho, that the United States “certify” her under the Federal Tort Claims Act, which provides that the government will substitute itself as a defendant in a civil suit brought against a federal employee when the alleged conduct occurred within the scope of the defendant’s employment.
This would have let Battalino off the hook for any monetary damages that might be awarded in Arthur’s case.
In December 1992, lawyers for the U.S. attorney’s office interviewed Battalino about Arthur’s allegations. She denied to them that she had engaged in oral sex with Arthur in her office on June 27, 1991, saying her relationship with Arthur did not begin until after she had left the VA.
Based on that denial, the U.S. attorney decided to certify Battalino for her conduct through June 27, 1991.
In July 1995, a federal magistrate-judge conducted a hearing in the malpractice suit to determine the scope of Battalino’s employment at the VA.
Battalino was asked: “Did anything of a sexual nature take place in your office on June 27, 1991?”
“No, sir,” Battalino replied.
She had also lied in answering written questions about the incident, posed to her in the pretrial stage.
Battalino got caught because of the secret tape recordings Arthur had made of their conversations. According to Mitchell, Arthur’s lawyer turned the tapes over to prosecutors in late 1996.
In one conversation, the Boise Weekly reported, the psychiatrist told Arthur that he shouldn’t have told his therapist that the oral sex had occurred between them back in June 1991. (“Oh ED!” she says on the tape. “No, the thing was that we were supposed to not have had sex until after . . . I can’t believe you would divulge that.”)
On April 14, Battalino, who declared bankruptcy after the tapes came to light and moved to California, was charged by Reno’s Justice Department with obstruction of justice for lying under oath about having oral sex with Arthur. She pleaded guilty the same day.
On July 20, she was sentenced to six months of home detention and is now wearing an electronic monitoring device. She was also fined $3,500.
Her medical career is ruined by virtue of her new status as a convicted criminal. In recent years, she has obtained a law degree, Mitchell says. But with her conviction, she can’t — at least for now — pursue that line of work either….

Copyright © 1999 The Providence Journal Company




MARY THERESE DUMBLE         V.        USA    No. 3:04cv1789

This matter having been heard by the court as a non-jury trial on August 24, 2005, we hereby make the following findings of fact1 and conclusions of law:

  1. I.              Findings of fact

1) Plaintiff’s decedent Arthur E. Dumble (hereinafter “Dumble”) was born on October 15, 1932.

2) Dumble was sixty-eight years of age when he presented himself to Defendant Veterans Affairs Medical Center in Wilkes-Barre, Pennsylvania (“VAMC”) for treatment on February 3, 2001.

3) On February 3, 2001, Dumble presented himself to Defendant VAMC where he conveyed complaints of burning pain in his chest and epigastrum.

4) An EKG performed in the VAMC Emergency Department revealed evidence of an old inferior wall infarct and definite up sloping ST segment depression in leads I, VL, and V2 through V5.

1The findings of fact are derived from undisputed facts found in plaintiff’s pretrial memorandum (Doc. 18). Defendants have agreed to these facts. See (Doc. 21). We have only made slight stylistic changes to the findings of fact. Beginning with finding number 14, we provide citations for the record as these are the matters discussed at the trial.

5) Dumble’s CPK was noted to be elevated to 640 and his troponin I level was noted as being positive by K. Patel, M.D., the Emergency Department physician attending to him.

6) Therapy of sublingual nitroglycerin, subcutaneous Lovenox, aspirin and nitroglycerin ointment was started in the Emergency Department.

7) Medical resident A.K. Azad, M.D., examined Dumble on February 4, 2001. He acknowledged Dumble’s chest pain, abnormal EKG and elevated cardiac enzymes, and he concluded that an acute coronary syndrome had to be ruled out.

8) Azad’s notes indicate that he discussed his findings with Ashok Agarwal, M.D., by telephone and the Agarwal agreed with Azad’s plan of treatment and management.

9) Agarwal ordered repeated troponin levels to be drawn, but the order was subsequently canceled.

10) Dumble was discharged from the VAMC on February 5, 2001 at approximately 5:30 p.m.

11) Dumble went into cardiac arrest while being driven home by his son only minutes after being discharged from the VAMC on February 5, 2001.

12) Dumble was pronounced dead at Mercy Hospital in Wilkes-Barre at 6:16 p.m. on February 5, 2001.

13) Dumble suffered an acute non Q wave myocardial infarction on or about February 3, 2003.

14) Dumble had a life expectancy of 82.6 years (Trial Dep. of Brian P. Sullivan, Ph.D. (“Sullivan Dep.”) at 13).

15) The net retirement income loss resulting from Dumble’s death is $110,595.00. (Def. Ex. 7, Verzilli and Verzilli Report, page 2).

16) Decedent’s funeral related expenses are $8,967.78.(Pl. Ex. 9, p. 6).

17) Estate administration expenses in the instant case are $ 2,285.35 (Pl. Ex. 9, p. 6).

  1. II.            Conclusions of law

1) We have jurisdiction over this matter pursuant to 28 U.S.C. § 1346(b), the Federal Torts Claim Act for medical malpractice committed by the VAMC and its medical personnel and/or employees.

2) Defendant concedes that it breached the duty of care it owed to Dumble.

3) Under Pennsylvania’s Wrongful Death Statute plaintiff is entitled to recover damages for the death of an individual caused by the wrongful act or neglect of another. 42 PA.C.S.A. § 8301(a).

4) Under the Wrongful Death Statute a plaintiff can recover, “in addition to other damages, damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death.” 42 PA.C.S.A. § 8301(c).

5) The Survival Act allows the plaintiff to recover for decedent’s pain and suffering from the time of the injury to death. Frey v. Pennsylvania Elec. Co., 607 A.2d 796, 798 (Pa. Super. Ct. 1992). 42 PA.C.S.A. § 8302

6) We find that the plaintiff experienced pain and suffering. When his son picked him up at the hospital, Dumble was speaking very little. (N.T. Trial, Aug. 2, 2005 at 21). Evidently, Dumble was uncomfortably hot as the temperature outside was below freezing, and he nevertheless rolled down the window on the car. (Id.). When the car stopped, he started to slide himself out, his eyes rolled up in his head, he gasped twice and his head dropped. (Id.). His son then threw him into a pile of snow and began to perform CPR. (Id.).

Accordingly, we will award the following amounts to the plaintiff: 1) Funeral expenses: $8,967.78; 2) Administrative costs: $2,285.35; 3) Loss of net retirement income: $110,595.00; and 4) Pain and suffering: $80,000.00.

An appropriate verdict follows.






AND NOW, to wit, this 17th day of October 2005, the court’s verdict is as follows:

Defendant is liable to the plaintiff for the following amounts:

1) Funeral expenses: $8,967.78

2) Administrative costs: $2,285.35

3) Loss of net retirement income: $110,595.00

4) Pain and suffering: $80,000.00

Total amount of damages awarded to the plaintiff and against the defendant: $201,848.13.


s/ James M. Munley 

Judge Awards Mothers $7,400,000 In Malpractice Case Against Veterans Administration



DeJesus v United States of America  CIV. NO. 02-0253

September 6, 2005


Diamond, J.


In my earlier opinion in this case, I found that the Veterans Administration’s gross negligence had substantially caused the deaths of Felicia DeJesus, Alejandro DeJesus, Jr., Michael Faulk, and Aaron Faulk. I also found the VA liable for the emotional distress suffered by Mrs. DeJesus when she heard her children being murdered.  See DeJesus v. Dep’t of Veteran Affairs, No. 02-0253, 2005 U.S. Dist. LEXIS 15903 (E.D. Pa. July 26, 2005).

I subsequently conducted a four-day bench trial on damages.  Plaintiffs base their damages claim on: (1) the economic losses incurred as a result of their children’s deaths; (2) the children’s pain and suffering; (3) wrongful death damages, such as funeral expenses; and (4) the harm Mrs. DeJesus suffered as she heard her children being murdered.  The parties agreed to reduce their damages calculations to present value. (P-93; G-72; G-73).  Plaintiffs thus contend they are entitled to $11,692,519.43 in damages.  The VA counters that the damages should not exceed $1,752,741.67.

I           award damages to Camille DeJesus in the amount of $3,774,429 and Cheryl Faulk in the amount of $3,703,371.67.



Plaintiffs presented compelling, credible evidence of the horrific events of March 23, 1999, when Alejandro DeJesus, Sr. murdered his children and the Faulk children.  My “pain and suffering” determinations reflect both the pain and the dread the children experienced as they were shot, one after another, inside the living room of the small apartment in which the DeJesus family resided.

In determining “economic damages,” I have generally credited the testimony offered by Plaintiffs’ experts, Drs. Herman Axelrod and Michael Wachter. I have generally discredited the testimony offered by the VA’s experts, Drs. Jasen Walker and Brian Sullivan.  For instance, Dr. Walker, a vocational expert, opined that the “law of familial regression” makes it very likely that children will not significantly surpass their parents’ educational and vocational achievements (7.30–7.32, N.T. of July 10, 2005). If the “law” of familial regression were correct — and the trial evidence underscores that this social science theory is by no means established — it is difficult to understand how human progress could ever occur.  The applicability of this “law” is especially dubious here, given the obvious determination of Mrs. DeJesus and Ms. Faulk that their children achieve and excel. (8.35–8.36, N.T. of July 27, 2005; 8.42; 8.89; 8.91).  In any event, I credit Plaintiffs’ vocational expert, Dr. Axelrod, who testified that the DeJesus and Faulk children — all from impoverished backgrounds — would likely have exceeded their parents’ attainments. (9.172, N.T. of July 28, 2005). I also largely credit the testimony of Dr. Wachter, who set out the work life, potential earnings, and non-wage benefit calculations that I find applicable to the DeJesus and Faulk children. (P-93). Further, in determining economic damages, I have examined their “station in life”:  the circumstances in which the decedents lived, and evidence respecting how the decedents likely would have lived had they not been murdered. (9.155–9.156; 9.160–9.164; 9.169–9.170). See McClinton v. White, 444 A.2d 85, 88 e(Pa. 1982). Accordingly, I have increased the maintenance percentages employed by Dr. Wachter respecting all four decedents.

Finally, in determining the harm Mrs. DeJesus suffered, I have fully credited the harrowing version of events offered by her and her neighbor describing how Mrs. DeJesus saw the murder of Michael Faulk and heard the murders of her own children.  I have also credited the evidence showing the resulting harm Mrs. DeJesus continues to suffer.


A. The Events of March 23, 1999

When Mr. DeJesus burst into his wife’s Media apartment, she and the four children were in the living room. (8.92–8.97). Mrs. DeJesus was seated closest to the doorway on a couch, with Felicia sitting next to her and Aaron Faulk sitting at the opposite end. (8.95–8.96). Alejandro, Jr. was sitting on a red futon on the other side of the doorway.  (8.97).  Michael Faulk had been seated at the computer in the corner on a diagonal from the doorway and was starting to move when Mr. DeJesus entered. (8.97). Upon seeing her husband with a gun, Mrs. DeJesus said, “Oh my God.” (8.98).  Mr. DeJesus passed within inches of Mrs. DeJesus; she saw him immediately shoot Michael. (8.98). Mrs. DeJesus then ran to the adjoining apartment of her neighbor, Doris Rovetti, to get help. (9.108).

When she entered Ms. Rovetti’s apartment, Mrs. DeJesus was frantic. (9.108). Both she and Ms. Rovetti heard gunshots in the hallway and through the common wall she shared with Ms. Rovetti. (1.173, N.T. of March 15, 2005; 9.108).  When Ms. Rovetti asked Mrs. DeJesus to take a seat, Mrs. DeJesus sat down directly on the floor, exclaiming, “He shot the children.” (9.109). Ms. Rovetti phoned the police. (1.173).

As Mrs. DeJesus fled for help, Mr. DeJesus continued shooting and killing the other children before shooting himself in the head. (8.132).  The entire incident took between twenty and sixty seconds. (8.135–8.137). The children sustained thirteen gunshot wounds.  The parties agree that Mr. DeJesus shot Michael Faulk first. (8.98).  They do not agree, however, as to the order of death among the other children, and there is insufficient evidence to make findings on this point. The evidence shows quite plainly, however, that after Michael was shot, each of the other children anticipated his or her death and witnessed the murder of the prior victims.  (8.116­8.138; 8.149). Thus, the DeJesus children anticipated their deaths at the hands of their own father.  I also credit the expert testimony of Dr. Dimitri Contostavlos, a forensic psychologist, who testified that the children were aware of their predicament and experienced various levels of consciousness before their deaths. (8.116–8.138).


I make specific findings regarding each decedent below.


B. Felicia DeJesus’s Damages


I award Camille DeJesus $1,984,950 in survival and wrongful death damages for the loss of Felicia DeJesus.


Felicia’s Background


Felicia was six years old and in the first grade at the time of her death.  On standardized tests taken in kindergarten, she scored at average levels, with above average marks in language skills. (9.156–9.157; G-66). She had close relationships with a variety of accomplished women. Despite the extraordinary burdens imposed on her by raising three children with a drug-addicted, absent father, Mrs. DeJesus obtained a PJA Paralegal School certificate. (8.177).  Felicia’s older sister Candida attends Delaware County Community College. (G-69).  Her aunt, Lynn Viti, is a college graduate and was a certified Federal Agent until she retired. (2.5, N.T. of March 16, 2005; 9.20). Finally, the DeJesus’s neighbor and close friend, Doris Rovetti, received a Bachelor of Arts degree from Mt. Holyoke College. (9.96).  Experts for both sides agreed that these women would have influenced Felicia for the good. (7.75–7.76; 9.231).  Further, Mrs. DeJesus was committed to the education of her children and aspired to have Felicia attend college. (8.91; 8.205). Candida DeJesus and Ms. Viti were similarly committed to Felicia’s education. (2.11; 9.231)



Felicia’s Economic Damages


Given her background and salutary influences, it is likely that Felicia would have attended and graduated from a four-year college.  Both sides’ experts agreed that Felicia had the potential and ability to succeed at college.  (7.151; 8.160). In opining that Felicia would not have gone beyond an associate’s degree, the VA’s expert employed the “law” of familial regression. (7.31–7.34). Once again, I do not accept this theory’s application here, and I do not credit the expert’s testimony. Rather, Plaintiff’s expert, Dr. Axelrod, credibly testified that the beneficial influences provided by Felicia’s mother, sister, aunt, and neighbor, combined with Felicia’s ability and the general brightening of the DeJesus family’s fortunes once Mr. DeJesus left the household, made it likely that Felicia would have graduated from a four year college.  (9.210).


The parties agreed in their calculations of lost earning power for a high school graduate, college graduate, and holder of an associate’s degree or certificate.  (P-93; G-72; G-73). They disagreed, however, as to whether to include certain fringe benefits, such as health insurance, in the calculations, and how to calculate maintenance. The VA estimated economic damages for Felicia at $361,699 — assuming a high school degree, 74% maintenance expenditures, and nonwage benefits at 3% of salary.  (G-72). Dr. Wachter (Plaintiffs’ expert) estimated the damages at $2,096,886 — assuming a bachelor’s degree, 35% maintenance expenditures, and nonwage benefits at 20% of salary.  (P-93).

I generally credit Dr. Wachter’s testimony, and find that Felicia’s economic damages should be in the higher range indicated by Dr. Wachter.  I employ a maintenance percentage of 45%, however.  I therefore award $1,774,288 to Camille DeJesus for Felicia’s economic damages.
Felicia’s Pain and Suffering


In making my determinations on the decedents’ pain and suffering, I considered not only Dr. Contostavlos’s testimony, but the uncontradicted physical evidence.  Felicia suffered three close contact wounds to her chest. (8.123–8.124). She was found on the floor a short distance away from her father.  (8.126). Because she suffered no head wound, it is likely that she remained conscious and experienced severe pain for some period after being shot.  (8.124; G-57). She also witnessed her father shooting Michael Faulk and anticipated her own injuries.  I therefore award her estate $150,000 compensation for the pain and suffering associated with her death, and $50,000 for her anticipation of death.
Felicia’s Wrongful Death Damages


The parties have stipulated to Plaintiffs’ wrongful death damages in the amount of $10,662 for Felicia’s funeral and burial expenses.  I therefore award that amount to Camille DeJesus.


C. Alejandro DeJesus, Jr.’s Damages

I award Camille DeJesus $1,289,479 in survival and wrongful death damages for the loss of Alejandro DeJesus, Jr.
Alejandro, Jr.’s Background


Alejandro, Jr. was twenty-two years old at the time of his death (not eighteen, as I mistakenly noted in my earlier opinion).  (8.66). He was diagnosed with cerebral palsy when he was one year old, and was limited in his ability to participate in certain activities throughout his childhood. (8.68-8.72). He attended primarily special education classes throughout his school career. (7.51–7.53; 8.188). He also was a Social Security disability recipient for most of his life, and held only part-time and seasonal employment.  (8.199; 8.85–8.86).  Nonetheless, Alejandro was determined to overcome his disability, discarding his leg braces in the ninth grade against the advice of doctors, (8.71), and wrestling on his high school team against disabled and non-disabled individuals, often without accommodation. (9.219–9.221).

Alejandro, Sr. created obstacles and difficulties that in no small measure impaired Alejandro, Jr.’s ability to achieve.  Shortly after his graduation from high school, his parents separated, and Alejandro, Jr. resided with his father for a number of months.  (8.84–8.85). This was certainly a troubled period for him.  He had witnessed his father’s assault of his mother and was himself a victim of his father’s physical and emotional abuse. (1.136–1.137; 8.85).  In the months following his decision to reside with his mother, however, Alejandro, Jr.’s attitude changed. (7.137–7.138; 9.19). Mrs. DeJesus and Alejandro, Jr. had begun to explore the possibility of continuing his education. (8.86).  Shortly before   Alejandro, Jr.’s death, Doris Rovetti took him to visit the Delaware County Community College.  (9.106).  He spoke with academic counselors and received an application and financial aid forms.  (9.106–9.107). Alejandro, Jr. told Ms. Rovetti that he would be applying to the College in the Fall.  (9.107). He was excited at the prospect of continuing his education. (9.105). The College had an office specializing in services to disabled individuals, including those with cerebral palsy. (9.150–9.151). I credit the testimony of Dr. Axelrod — whose expertise includes teaching the disabled and handicapped — that the College could have accommodated Alejandro, Jr.’s needs. (9.150–9.152). He was murdered before he could apply for admission to the College.  (8.198).
Alejandro, Jr.’s Economic Damages

I find it likely that Alejandro, Jr. would have achieved an associate’s degree had he survived.  (9.33).  Alejandro, Jr. had a slight limp, but was physically fit and able to walk quickly. He had obtained employment in the past.  (9.99–9.100). Freed from his father’s influence, Alejandro, Jr. was beginning to accept adult responsibilities and was actively pursuing opportunities for higher education.  Like Felicia, he benefitted from the influences of Mrs. DeJesus, Candida DeJesus, and Ms. Rovetti, all of whom clearly intended to encourage Alejandro, Jr.’s ambitions. (8.89; 9.96–9.97).

The VA estimated Alejandro, Jr.’s economic damages at $0 — assuming he would never be regularly employed or obtain an associate’s degree.  (G-72).  Plaintiffs estimated his economic damages at $1,557,483 — assuming an associate’s degree, 35% maintenance expenditures, and nonwage benefits at 20% of salary.  (P-93). Once again, I look to an award in the higher range, both because of Alejandro’s aspirations and his family influences.  Because of Alejandro, Jr.’s disability, however, I believe his maintenance expenditures would have been somewhat higher than those of the other decedents. Accordingly, I employ a maintenance percentage of 55%.  I thus award $1,078,257 to plaintiff Camille DeJesus for Alejandro, Jr.’s economic damages.


Alejandro, Jr.’s Pain and Suffering

Alejandro, Jr. suffered seven gunshot wounds: one to the head, five to the back at close range, and one to the right thigh.  (8.117). He was found between the living room and the entry to the kitchen, likely attempting to flee.  (8.118–8.120). The way the wounds were inflicted indicates that he experienced some period of physical pain before death.  (8.117–8.120).  He also witnessed his father shooting Michael Faulk and anticipated his own injuries. (8.98).  I therefore award his estate $150,000 for pain and suffering associated with his death, and $50,000 for his anticipation of death.


Wrongful Death Damages

The parties have stipulated to wrongful death damages in the amount of $11,222 for Alejandro, Jr.’s funeral and burial expenses.  I therefore award that amount to Camille DeJesus.


D. Michael Faulk’s Damages

I award Cheryl Faulk $2,260,124.67 in survival and wrongful death damages for the loss of Michael Faulk.


Michael’s Background


Michael Faulk was sixteen years old and in the tenth grade at the time of his death.  A gifted student who scored high on standardized tests, Michael was extremely well-rounded — as comfortable on the chess team or doing sketches as he was playing junior varsity football. (8.30–8.33).  He attended a magnet school for gifted children during most of his life, and aspired to attend college and become a professional.  (8.35; 9.164–9.165). Shortly before his death, he obtained a part time job at a local pizza parlor, but was murdered before he was able to begin work.  (8.35).  Although Michael’s grades had declined in high school, his tenth grade college aptitude test confirmed that he was a strong candidate for college admission.  (8.163; P-75).

The Faulks were a close-knit family.  Like Mrs. DeJesus, Ms. Faulk was a devoted mother, enormously invested in her children’s well-being.  Concerned about their Manhattan neighborhood, Ms. Faulk moved the family to Media, Pennsylvania.  (8.12–8.15).  A single mother with three sons, she eventually earned a diploma from a technical school and found a higher paying job at a cancer treatment center.  (8.12–8.15; 8.20–8.22). I credit the testimony of Dr. Axelrod that Ms. Faulk strongly influenced her children for the good.  (8.166).


Michael’s Economic Damages

I find it likely that Michael would have achieved a bachelor’s degree had he lived. Michael was a highly motivated, gifted child.  His brother, Mark, was admitted to a four-year college.  (7.159; 8.25–8.26; 9.165–9.166).  Unfortunately, emotional problems brought on by his brothers’ murders caused Mark to drop out of college.  (7.159). Nonetheless, had Michael survived, it is likely that Mark would have encouraged Michael to attend college.

The VA estimated Michael’s economic damages at $1,030,514 — assuming an associate’s degree, 57% maintenance expenditures, and nonwage benefits at 3% of salary. (G­72). Plaintiffs’ estimate was $2,478,937 — assuming a bachelor’s degree, 35% maintenance expenditures, and nonwage benefits at 20% of salary.  (P-93).  Because I find that Michael would have received at least a bachelor’s degree, I again look to the higher range.  I employ a maintenance percentage of 45%.  I thus award $2,097,563 to plaintiff Cheryl Faulk for Michael’s economic damages.


Michael’s Pain and Suffering

As soon as Mr. DeJesus entered his wife’s living room, he shot Michael in the head and forearm. (8.13; 8.131–8.132). Police took Michael to the hospital, where he died of his wounds. Unlike the other decedents, it is likely that Michael did not have the opportunity to anticipate his death. (9.12–9.13). Accordingly, I award his estate $150,000 for the pain and suffering associated with his death.


Wrongful Death Damages

The parties have stipulated to wrongful death damages in the amount of $5335.24 in funeral and burial expenses and $7226.43 in medical expenses for Michael Faulk.  I therefore award $12,561.67 to Cheryl Faulk.


E. Aaron Faulk’s Damages

I award Cheryl Faulk $1,443,247 in survival and wrongful death damages for the loss of Aaron Faulk.


Aaron’s Background

Aaron Faulk was fourteen years old and in the ninth grade at the time of his death.  Less motivated than either of his brothers, he had difficulties in school and did not test well on standardized reading and math assessments.  (G-56; 9.168).  Ms. Faulk and both sides’ experts agreed that Aaron found it very difficult to adjust from the mostly minority school he had attended in Manhattan to the primarily non-minority school he first attended in Media. (7.162–7.163; 8.38–8.40; 9.167–9.168). These problems diminished, however, with the help of Aaron’s brothers once he started high school. (8.39).
Aaron’s Economic Damages

I find it likely that Aaron would have achieved an associate’s degree had he survived. Though not as motivated or, perhaps, as talented as either of his brothers, Aaron was beginning to adjust to high school in Media and expressed interest in becoming a chef, thus emulating his great uncle, with whom he was very close.  Had it not been for the VA’s gross negligence, both of Aaron’s brothers would have attended college and, along with his mother, would have encouraged him to pursue a degree beyond his high school diploma.  (8.42).  With these beneficial influences, I find it likely that Aaron would have obtained an associate’s degree.

The VA estimated Aaron’s economic damages at $310,654 — assuming one to three years of high school, 75% maintenance expenditures, and nonwage benefits at 3% of salary. Plaintiffs’ estimate was $2,520,904 — assuming a bachelor’s degree, 35% maintenance expenditures, and nonwage benefits at 20% of salary.  Because I find that Aaron would have received at least an associate’s degree, I look to the middle of this range.  I employ a maintenance percentage of 45%. In addition, I note that because Aaron was eight years younger than Alejandro, Jr., his working life would have been longer than Alejandro, Jr.’s.  I therefore award $1,259,895 to plaintiff Cheryl Faulk for Aaron’s economic damages.


Aaron’s Pain and Suffering

Aaron suffered two wounds, one to the right abdomen and the other to his head — entering his right cheek and exiting behind his left ear. (8.127–8.129).  He was found in the same spot he had been in before the shooting began.  (8.130). Accordingly, I find that he was shot quickly after Mr. DeJesus entered the room.

Aaron witnessed his brother’s death, and briefly anticipated his own injuries. He also experienced the physical pain of being shot.  I therefore award his estate $150,000 compensation for the physical pain and suffering associated with his death and $25,000 for his anticipation of death.


Wrongful Death Damages

The parties have stipulated to wrongful death damages in the amount of $8352 for Aaron’s funeral and burial expenses.  I therefore award that amount to Cheryl Faulk.


F. Damages for Camille DeJesus’s Emotional Distress

I have found that Camille DeJesus heard her husband shoot and kill her children. DeJesus, 2005 U.S. Dist. LEXIS 15903, at *60.  As I noted, “[t]he grief and horror she has suffered were painfully obvious.  Hearing the murder of her children has caused Mrs. DeJesus to suffer stress, anxiety, depression, and post-traumatic stress disorder.”  See id.  In making my determination respecting the harm she suffered, I have credited her testimony, that of Candida DeJesus, and that of Ms. Rovetti, as well as the records of her therapist, John Kessler. I award Mrs. DeJesus $500,000 on this claim.

Mrs. DeJesus was medicated at the emergency room on the night of the murders, and saw a therapist, Mr. Kessler, for approximately one year after the killings.  (8.99). Mr. Kessler diagnosed Mrs. DeJesus with depression, “adjustment disorder,” and post-traumatic stress disorder, and noted that she had trouble concentrating, eating, and sleeping for a period after the murder of her children.  (G-68; P-88; P-89).  The trauma she experienced has also caused Mrs. DeJesus to have memory problems. (G-68).  She continues to relive the events of March 23rd, particularly in her sleep.  (8.100; 9.110).  Mrs. DeJesus cannot sleep without a light on; in public places she will sit near walls because she is afraid to have an open door at her back. (8.100–8.102).

In sum, hearing the murders of her children has caused Mrs. DeJesus to suffer severe emotional distress.  I award her $500,000 for this distress.



A. Economic and Wrongful Death Damages Generally

Under Pennsylvania’s Survival Act, economic damages are properly measured by the loss of earning power less personal maintenance expenses from the time of death through a decedent’s estimated working life span. Incollingo v. Ewing, 282 A.2d 206, 229 (1971). The law does not require mathematical exactness; a plaintiff need only provide evidence of a reasonably fair basis for calculating losses.  Smail v. Flock, 180 A.2d 59, 61 (Pa. 1962).  In calculating the loss of earning power, it is proper for a fact finder to make use of average earnings based upon government statistics.  Weaver v. Ford Motor Co., 382 F. Supp. 1068, 1074–75 (E.D.Pa. 1974), aff’d 515 F.2d 506 (3d Cir. 1975). Personal maintenance is defined as the “necessary and economical sum which a decedent would be expected to spend, based upon his station in life, for food, clothing, shelter, medical attention, and some recreation.” McClinton, 444 A.2d at 88. Maintenance is an amount smaller than the total personal expenditures of a given individual but larger than that necessary for basic subsistence.  Id. at 87,


Under Pennsylvania’s Wrongful Death Act, survivor beneficiaries are entitled to funeral and medical expenses plus any pecuniary loss suffered by reason of a decedent’s death.  42 Pa. Const. Stat. § 830; Kiser v. Schulte, 648 A.2d 1, 4 (Pa. 1994).


B. Judicial Estoppel as to Alejandro, Jr.’s Economic Damages

Alejandro, Jr. was receiving Social Security disability benefits at the time of his death, as he had been for much of his life. (8.199, N.T. of July 27, 2005).  The VA argues that because he qualified for these benefits – that his disability made him “unable to engage in any substantial gainful activity”– his estate is estopped from now claiming that he would have become gainfully employed had he survived.  See 42 U.S.C. § 1382c(a)(3)(A) (2004).  I disagree.

The Supreme Court has held that receiving social security disability payments does not automatically bar the recipient from later claiming ability to work.  See Cleveland v. Pol’y Mgmt. Sys. Corp., 526 U.S. 795, 798 (1999). A contention made by someone seeking Social Security Disability Insurance that he is disabled is not a “purely factual statement, but is instead a “context-related legal conclusion,” to which the usual judicial estoppel analysis does not apply. Id. at 802; see also Detz v. Greiner Indus., 346 F.3d 109, 116 (3d Cir. 2003) (explaining that the Cleveland Court distinguished “conflicting legal positions” from “contradictory factual assertions” for estoppel purposes).  Instead, when a defendant claims judicial estoppel in this context, a plaintiff “cannot simply ignore” previous statements made to the Social Security Administration, but must explain why that SSDI contention is consistent with any subsequent assertion made for other purposes. Cleveland, 526 U.S. at 798.

Mrs. DeJesus does not contend that Alejandro, Jr. was able to work during the time he was receiving Social Security benefits.  Instead, she submits, and I have found, that he would have become able to work in the future.  This is consistent with the Social Security Administration’s program that encourages claimants to develop a vocational plan and to obtain work and so reduce their reliance on disability benefits.  See 42 U.S.C. § 1382b(a)(4) (2004) (excluding from the SSDI determination “such resources [necessary for the fulfillment of] a plan for achieving self-support approved by the Commissioner of Social Security”); 20 C.F.R. § 416.1181 (2001) (defining “plan to achieve self-support”).  I have also credited the testimony of Dr. Axelrod, an expert in the education of children with disabilities, that Alejandro, Jr. could have been trained to perform a variety of jobs in the workplace, especially if his potential employers made “reasonable accommodations” for him, as required by the Americans with Disabilities Act. (8.136; 8.153–154). See 42 U.S.C. § 12111(8).

Thus, Alejandro, Jr.’s estate has not taken a position before me that is inconsistent with that which Alejandro, Jr. took before the Social Security Administration.  On the contrary, the facts as I have found them underscore that the positions are reconcilable.  Accordingly, I reject the VA’s estoppel argument. Cleveland, 526 U.S. at 798.


C. Recovery for Decedents’ Pain and Suffering

Under Pennsylvania’s Survival Act, all causes of action survive the death of the plaintiff. See 42 Pa. Cons. Stat. § 8302.  The estate of each decedent is entitled to compensation for their physical pain and suffering before death.  Mecca v. Lukasik, 530 A.2d 1334, 1345 (Pa. 1987). The VA acknowledges that the law allows recovery for the pain and suffering associated with the decedents’ deaths. See Def. United States’ Proposed Findings of Fact and Conclusions of Law Concerning Damages at 34–37 (Aug. 8, 2005).  The VA contends, however, that the mental anguish the decedents suffered immediately before their deaths is not compensable.  I disagree.

Under the Survival Act, a plaintiff representative is entitled to all damages to which a decedent would have been entitled under Pennsylvania law had he or she lived.  Harsh v. Petroll, 840 A.2d 404, 437 (Pa. Commw. Ct. 2003). I am obligated to apply Pennsylvania law as announced by that state’s Supreme Court, and to anticipate how that Court would decide an open legal question. See Packard v. Provident Nat’l Bank , 994 F.2d 1039, 1046 (3d Cir. 1993).   Pennsylvania Commonwealth and Superior Court decisions, although not dispositive, are persuasive authority in this regard.  Id. at 1047.

Pennsylvania law is unsettled as to whether damages for pre-impact fright are recoverable. See Nye v. Commonwealth, Dep’t of Transp., 480 A.2d 318, 322 (Pa. Super. 1984) (“[W]e need not decide whether such a recovery [for pre-impact fright] is permitted in Pennsylvania”). The weight of authority is in favor of allowing such a recovery, however.  See Potere v. City of Philadelphia, 112 A.2d 100, 104 (Pa. 1955) (where physical injury is “accompanied by fright or mental suffering directly traceable to the peril in which the defendant’s negligence placed the plaintiff, then mental suffering is a legitimate element of damages”); cf. Niederman v. Brodsky, 261 A.2d 84, 85 (Pa. 1970) (extending Potere to cases where there is no physical impact).  Other states with statutes similar to Pennsylvania’s Survival Act allow recovery for pre-impact fright.  See, e.g.,Platt v. McDonnell Douglass Corp., 554 F. Supp. 360, 363 (D. Mich. 1983) (interpreting the Michigan Wrongful Death Act); D’Angelo v. United States, 456 F. Supp. 127, 142 (D. Del. 1978) (interpreting Maryland law).

The VA offers authority addressing the requirement under Pennsylvania law that a living plaintiff claiming infliction of emotional distress demonstrate a physical manifestation of that distress. See, e.g., Sinn v. Burd, 404 A.2d 672, 686 (Pa. 1979);Robinson v. May Dep’t Stores Co., 246 F. Supp. 2d 440, 445 (E.D. Pa. 2003) (“Manifestation of physical injury is necessary to sustain a claim for negligent infliction of emotional distress.”).  Indeed, Pennsylvania courts require proof of physical manifestation in emotional distress cases as a substitute for proof of injury caused by a physical impact.  See Neiderman, 261 A.2d at 85 (rejecting the “impact rule,” which had required proof of “contemporaneous impact,” because the plaintiff could show physical manifestations of his emotional distress); Nelson v. Monroe Regional Medical Center, 925 F.2d 1555, 1561 (7th Cir. 1991).  The law thus draws a clear distinction between the anguish the decedents experienced immediately before their murders, and the emotional distress suffered by someone who experiences no physical impact.

In these circumstances, I anticipate that the Pennsylvania Supreme Court would allow recovery for the dread and fright the decedents experienced immediately before they were murdered.


Paul S. Diamond, J.

7 F.Supp.2d 709
United States District Court,

D. South Carolina,

Columbia Division.



Vera C. GADDIS, individually and as Personal Representative of the Estate of

Charles E. Cauthen, Deceased, Plaintiff,


UNITED STATES of America, Defendant.

Dec. 3, 1997.
Daughter of patient who died from laryngeal cancer in Veterans Administration (VA) hospital brought medical malpractice action against United States. The District Court, Shedd, J., held that: (1) contract physician at VA breached standard of care by failing to refer patient back to treating radiologist for follow-up examination after radiation therapy, and by failing to diagnose and treat cancer when patient experienced pain, hoarseness, and swelling in throat; (2) VA hospital breached standard of care by allowing condition to deteriorate to a point at which removal surgery was inadvisable or impossible, by failing to discuss with patient and daughter the options available to them, and by failing to properly monitor, treat, and care for patient following his admission to hospital; (3) negligence of hospital in failing to provide proper diagnosis of treatment for patient’s cancer caused his death; (4) daughter was entitled to $800,000 in damages for loss of society and companionship, $75,000 for mental shock and suffering, and $75,000 for grief, sorrow, and wounded feelings; and (5) $125,000 would be awarded for the pain and suffering of patient.
Judgment accordingly.


SHEDD, District Judge.
This medical malpractice case involves the 1991 death of Charles E. Cauthen at the Dorn Veterans Administration Hospital in Columbia, South Carolina. Jurisdiction in this Court is proper pursuant to , and the Federal Torts Claims Act, . Plaintiff in this case, Vera Gaddis (hereinafter “Gaddis”), filed a claim with the Veterans Administration alleging that the Veterans Administration’s negligent care for her father, Charles E. Cauthen (hereinafter “Cauthen”), resulted in his death. This claim was denied by the Veterans Administration. [FN1] Subsequently, this case came before this Court for a bench trial beginning on September 22, 1997. Based upon the testimony and evidence presented over eight days of trial, the Court hereby makes the following findings of fact and conclusions of law:

FN1. In light of the facts presented at this trial, the Court has serious reservations about the credibility of the administrative process which rejected this claim.


Cauthen was a World War II veteran, having served in the Pacific Theater. He was proud of his service to his country, and spoke proudly of his military service. Born in June, 1922, Cauthen lived most of his life in rural Lancaster County, South Carolina. Cauthen lived a simple life, by choice, and was well-known, and respected in his community. An independent man, Cauthen was happy and satisfied with his lifestyle. He was one of seven children, and all others survive him.
He married Ogla Vian Cauthen, and one child, Gaddis, was born of this marriage. During Gaddis’ childhood, her mother became ill. Because of Mrs. Cauthen’s illness, Cauthen served the role of both mother and father. Although Gaddis moved in with her maternal grandmother because of her mother’s illness, Cauthen and Gaddis remained extremely close throughout her life, visiting several times a month and maintaining regular telephone contact.
Through the years, Gaddis remained the most important person in Cauthen’s life. This special closeness between father and daughter was due, at least in part, to Gaddis’ mother’s periods of absence and her mother’s ongoing medical problems. This special  closeness between Cauthen and Gaddis continued throughout his entire life.
Gaddis and her family have lived in the Charlotte, North Carolina area for many years. Gaddis lives approximately one hour’s travel time from Cauthen’s home in Lancaster County, South Carolina. Over the years, Cauthen would visit Gaddis and her family on a frequent and regular basis, often at least two times per month. In addition, Gaddis and her family would often visit Cauthen at his home in South Carolina. In addition to these frequent visits, they continued to maintain frequent and regular telephone contact. Cauthen was always present with Gaddis and her family for holidays and special occasions.
Diagnosis and Treatment:
In late February, or early March of 1991, Cauthen developed hoarseness in his voice. At that time, Cauthen was a regular smoker, having smoked for many years. Cauthen’s sister and Gaddis convinced Cauthen to see a doctor. Cauthen called the Lancaster County Veterans Affairs Office and obtained an appointment at the Dorn Veterans Administration Hospital (hereinafter “VA”) in Columbia, South Carolina, for March 14, 1991. Cauthen had great faith in the VA Hospital and felt that, as a veteran, he was privileged to be able to go there. He relied upon their evaluation and judgment, and believed he would be taken care of at the VA.
On March 14th, Cauthen visited the VA Hospital, but received no evaluation of his throat. Although, in addition to his hoarseness, he related to them a history of smoking, there was no examination or evaluation at that time of Cauthen’s throat. Only a chest X-ray was done. Cauthen was sent home without any evaluation of the cause of his hoarseness.
Cauthen’s hoarseness continued. Although his family continued to be concerned about his hoarseness, Cauthen was hesitant to see another doctor. When Cauthen’s hoarseness continued to worsen, Gaddis finally convinced him to have it checked by a private physician.
On May 3, 1991, Gaddis and Cauthen’s sister took Cauthen to see his family physician, Dr. Furse. Upon learning of Cauthen’s hoarseness, Dr. Furse immediately referred him to Dr. Brian Wilson, an ear, nose and throat specialist in Rock Hill, South Carolina.
Also on May 3, 1991, Dr. Wilson performed an indirect laryngoscopy with a flexible laryngoscope on Cauthen’s throat. At that time, Dr. Wilson found a lesion on Cauthen’s left vocal cord. Dr. Wilson then ordered that further tests be done, including a direct laryngoscopy and a CT scan, to determine the “stage” of the tumor in Cauthen’s throat. Dr. Wilson’s orders were to “rule out” a “T2N0M0″ carcinoma in his throat. [FN2]

FN2. With regard to throat cancer, the following classifications, or

“stages,” are used: A T1 tumor is confined to the vocal cord with no extension off the vocal cord, and no impairment of motion of the cord. A T2 tumor extends off the visible vocal cord into other areas and may produce some impairment of motion. T3 and T4 tumors extend even further into the tissue surrounding the visible vocal cord. The difference between a T1, T2, T3, and a T4 tumor is of critical importance when choosing the method and extent of treatment. If the tumor is still confined to the vocal cords, then very localized radiation treatment or surgical removal will usually cure the cancer completely. If the cancer has spread off of the vocal cords, then localized radiation will not properly attack all of the cancer, leaving it free to continue spreading.
For example, the N0M0 classification of a tumor represents that the cancer has not metastasized and that there is no involvement of the nodes.

Dr. Wilson’s diagnosis and instructions to rule out a T2 tumor were given because a physical examination of the throat may not be enough to determine the true extent of the tumor. An indirect laryngoscopy limits what can actually be seen of the vocal cords and larynx. A direct laryngoscopy gives a more complete view of the vocal cords and larynx. Moreover, even with a direct laryngoscopy, possible sub-mucosal (under the surface) tumor invasion into the surrounding tissue cannot be seen. Dr. Wilson’s orders were to perform a CT scan of the area to properly stage the tumor. With a CT scan, or an MRI, any spread into the surrounding tissue might be seen. A physical exam, employing a direct or indirect laryngoscopy cannot fully show extensions beneath the surface of the vocal cords and into surrounding areas. *712 The misdiagnosis, mis-staging, and under-treatment of a tumor can allow the cancer to spread, while appropriate treatment after a proper diagnosis almost always cures the cancer completely. [FN3]

FN3. All of the medical witnesses agreed that laryngeal cancer is one of the most curable of all cancers.

On May 6, 1991, Cauthen went to Columbia in an attempt to be seen at the VA Hospital. After a great deal of difficulty, [FN4] Cauthen was admitted to the VA Hospital on May 8, by Dr. David McKee (hereinafter “Dr. McKee”), a contract physician at VA.

FN4. The VA’s action toward Gaddis and Cauthen on this occasion were indifferent at best, and callous at worst.

On May 9, a direct laryngoscopy and biopsy of Cauthen’s left vocal cord was performed. [FN5] The results of the direct laryngoscopy and biopsy showed a cancerous tumor along the entire length of Cauthen’s left vocal cord. Cauthen’s tumor was staged as a T1 lesion.

FN5. A resident doctor ordered a CT scan of Cauthen’s throat, but, in another example of what seems to be the level of medical care provided at the VA, this order resulted in a CT scan of Cauthen’s head instead.

Based upon the VA’s diagnosis and staging of Cauthen’s tumor, the VA’s Tumor Board recommended a course of radiation therapy for Cauthen. [FN6] The course of radiation was performed for the VA at Richland Memorial Hospital, while Cauthen was still admitted at the VA. A small and localized radiation field was used. Cauthen’s radiation treatment was completed on July 16, 1991. Cauthen was released from the VA on July 17, 1991.

FN6. Dr. McKee did not attend the meeting of the Tumor Board.

Dr. McKee did not see Cauthen again during his entire course of radiation treatment, and did not once consult with the physicians at Richland Memorial Hospital who were performing the radiation treatment and monitoring.
On July 30, 1991, Cauthen returned to the VA Hospital with Gaddis for his first follow-up visit with Dr. McKee. At that visit, Cauthen’s voice was hoarse. Dr. McKee simply looked down Cauthen’s throat with a mirror and told Cauthen and Gaddis that there was no sign of cancer. Dr. McKee’s medical notes indicate that the vocal cord looked clear. Cauthen and Gaddis left this visit with high spirits, believing the cancer was cured.
Cauthen’s hoarseness worsened. He returned to the VA Hospital on September 3, 1991, for his second follow-up visit with Dr. McKee. Again, Dr. McKee simply looked down Cauthen’s throat with a mirror and told him that there was no sign of cancer. Dr. McKee’s medical notes for this visit again indicate that the vocal cord looked clear.
After this, Cauthen’s hoarseness continued to worsen. In addition, he began having soreness in his throat and pain in his ear. However, he was still eating and drinking well. On October 15, 1991, Cauthen returned to the VA Hospital for his third follow-up visit with Dr. McKee. Once again, Dr. McKee simply looked down Cauthen’s throat with a mirror and told him that there was no sign of cancer. Dr. McKee’s medical notes again indicate at this visit that the vocal cord looked clear, but noted for the first time since radiation therapy that there was some swelling, or edema, in the area. At no time during any of these follow-up visits did Dr. McKee perform a direct laryngoscopy, order further diagnostic tests, or examine Cauthen’s outer neck for lumps or other signs of tumors. The Court finds incredible Dr. McKee’s testimony that the now-noted edema was always present, but was noted by him here to change his notes, thereby avoiding the appearance of “rubber-stamping” his notes. This explanation is particularly unbelievable because edema noted for the first time here almost certainly indicated a recurrence, or persistence of cancer. At this stage in Cauthen’s treatment, a doctor’s failure to respond accordingly in light of a “new” edema would be, in essence, an admission of malpractice. The Court believes that faced with this alternative, Dr. McKee gave this story about not wanting to “rubber stamp” his notes. The Court finds Dr. McKee’s testimony on this point wholly without merit. *713 Dr. McKee told Cauthen that there was no cancer and scheduled the next follow-up visit for January of 1992. Dr. McKee prescribed Tylenol for Cauthen’s pain.
Shortly thereafter, Cauthen’s condition grew considerably worse. His hoarseness worsened, his throat was very sore, he had a severe earache, he was coughing up phlegm, and could not eat or drink well. In addition, he developed dysphasia (difficulty in swallowing) and a large lump appeared on the side of his neck.
On November 5, 1991, Gaddis took Cauthen back to the VA Hospital to see Dr. McKee. Dr. McKee simply looked once again down Cauthen’s throat and said that there was no sign of the cancer. Once again, Dr. McKee did not perform a direct laryngoscopy, did not order or perform a CT scan, and did not discuss with Cauthen the possibility that the hoarseness, pain, swelling, dysphasia, and lump could be a sign of the persistence of the tumor. Once again, Dr. McKee did not even examine the outside of Cauthen’s throat for lumps or other signs of a tumor.
Gaddis then expressed concern about Cauthen’s condition, the fact that he could not eat or drink, and about the large lump on the side of his throat. Dr. McKee explained it as simply a swollen lymph gland. At Gaddis’s insistence, Dr. McKee finally agreed to admit Cauthen to the VA Hospital on that day, November 5th.
Dr. McKee’s admission notes do not reflect any indication that Dr. McKee was concerned that Cauthen’s cancer was persisting or recurring. [FN7] No tests or studies to detect the cancer, such as a direct laryngoscopy and biopsy or a CT scan, were ordered or performed. Only marginal steps were taken to rehydrate Cauthen. Even with clear orders for the administration of liquids and nutrition through intravenous lines, nurses failed to carry out the physicians’ directives. On at least one occasion, when Cauthen pulled out his IV lines, the nurses simply left them out without taking any steps to keep them in. Cauthen was an adequate candidate for surgery during the period from approximately November 6th through November 8th, as confirmed by the VA’s own witness, Dr. Barwick, a surgical resident who attended Cauthen.

FN7. While the Government has tried to convince the Court that the doctors knew cancer recurrence was a possible diagnosis, that testimony is

completely unpersuasive.

Incredibly, in light of Cauthen’s condition and the clear indications of the persistence of his laryngeal cancer, on November 7, 1991, the VA informed him that they were getting ready to send him home. Cauthen called Gaddis and informed her of this development. Gaddis called Cauthen’s attending resident, Dr. Lynn Flowers, and asked him about such an apparent mistake. Dr. Flowers indicated that Cauthen was being sent home with orders to re-hydrate him and to receive guidance from a dietician regarding his eating habits. Dr. McKee had not seen Cauthen since he was first admitted.
On November 9, 1991, Dr. Flowers called Gaddis to ensure that she was coming to the VA to pick up Cauthen on that day, as the VA was preparing to release him. When Gaddis arrived, she found Cauthen curled up, lying in a urine-soaked bed. The urine stain on the bed sheet was brownish and drying around the edges, suggesting that Cauthen had been lying in the urine-soaked bed for some time. He had no IV tubes in his arm and was greatly disoriented. Gaddis’ efforts to obtain nurse assistance were futile, and Gaddis had to clean up Cauthen herself. [FN8]

FN8. Gaddis, then 37 years old, had never seen her father naked and had never before had to assist her father in such a manner.
Finally, Dr. Flowers arrived and Gaddis explained the situation. The doctor tried to find a lighted instrument to look down Cauthen’s throat but could not find one. Dr. Flowers was joined by another doctor, and the doctors finally looked down Cauthen’s throat with a mirror. The doctors determined that there was a blockage in the throat. They then put Cauthen in the surgical intensive care unit because of bronchial spasms. Dr. McKee still had not seen Cauthen since he was admitted on November 5. In addition, there had still been no tests or studies done, such as a direct laryngoscopy *714 and biopsy or CT scan, to test for the persistence or recurrence of Cauthen’s throat cancer.
In response to Cauthen’s breathing difficulties, Dr. Flowers finally placed an endotracheal tube down Cauthen’s throat on November 12. Cauthen was admitted by Dr. McKee for dehydration. However, Dr. McKee took no steps to address Cauthen’s throat pain, his difficulty in swallowing, and the general critical and serious problems with his throat.
Cauthen remained in the surgical intensive care unit from November 9 until December 2, 1991. It was not until November 14, that Dr. McKee even saw Cauthen. On that day, a direct laryngoscopy was performed and it was determined that Cauthen’s cancer had persisted and that he now had a tumor the size of a “golf ball” in his throat. [FN9] Dr. Flowers went with Gaddis to tell Cauthen that his cancer was still there. When told of the cancer, Cauthen cried.

FN9. A CT scan was still not performed until the next day, November 15, 1991. Even then it seems that a CT scan of the throat was a mistake. The doctor’s orders are for a CT scan of the chest, abdomen, and hips. Ironically in May a neck CT scan had been ordered but one of the head was done. See, note 4.

During the next two weeks, more tests and scans were performed, many in an untimely manner. There was no urgency in the care of Cauthen. On November 29, 1991, a tracheostomy was performed on Cauthen to ensure his ability to breathe. Even though there was a slight rebound after November 29, Cauthen never recovered from the effects of sustained hypoxia. [FN10]

FN10. Dr. Spencer, a government pathologist, now disagrees with the VA autopsy and claims that Cauthen’s death was caused by an independent and unrelated heart attack. However, all of the Plaintiff’s expert physicians concur with the VA’s autopsy that Cauthen’s untreated cancer led to sepsis, hypoxia, multiple organ failure, and his death. Although unwilling to go so far as to officially change his opinion, Dr. Spencer admitted that the full and complete facts of the case, when finally brought to his attention

during cross examination, were surprising and that he would have liked to have known about them when forming his opinion.
On December 2, 1991, despite Cauthen’s obviously critical condition, he was removed from the intensive care unit to a room with no continual monitoring. Despite Cauthen’s critical and dangerous condition, the hospital records reflect very long periods of time in which no VA medical personnel, either doctors or nurses, properly checked on Cauthen.
On December 10, 1991, the medical records reflect that the mucous which was coming from Cauthen’s trach tube was increasing in flow and changing in color and character. On that morning, Cauthen’s brother and sister-in-law came to visit him. The VA had Cauthen sitting up, tied to a chair with wrist straps and posey belts. Cauthen was disoriented, unresponsive, and coughing up large amounts of phlegm.
Between approximately 11:00 a.m. and 4:30 p.m., Cauthen’s brother and sister-in-law tried in vain to get the VA nurses to help Cauthen. During that entire time, no one came into Cauthen’s room. Hours later, Cauthen was found dead, still tied to the chair. He was sixty-nine years old.
The testimony and evidence in this case, especially the medical records, paint a dismal picture of neglect by the VA Hospital; especially during the last days leading up to Cauthen’s death. There are only sparse records about the care, cleaning, and suctioning of Cauthen’s trach tube. The sparse medical notes which are present during this time are often illegible. There are several shifts during those days for which no nursing notes are entered. Vital signs were often not checked or charted for long periods of times; often several shifts. There is often a failure to chart a record of Cauthen’s breathing as ordered by the physicians. Cauthen’s nurse-call button was often not within his reach when he was restrained. Many doctors’ orders were never followed and many were followed only after several days had passed.
Dr. Hirst-Allen, a VA physician, performed an autopsy and determined that Cauthen’s death was caused by his untreated and spreading laryngeal cancer, which led to infection and multiple organ failure, which led to the stoppage of his heart. The autopsy also revealed that the cancer was found to be *715 large and localized, on both sides of the vocal cords without metastasis.

There are literally dozens of breaches of the medical standard of care in this case. Many of these breaches are admitted by the VA’s own witnesses. Many others are clearly proven from the evidence and testimony presented. Cauthen’s death was directly caused by such neglect and error.
Breach of the Standard of Care:
Cauthen’s diagnosis and treatment can be separated into three time periods. First is the period from March, 1991 through his radiation treatment, ending on July 17, 1991. Second is the follow-up period which begins on July 17, 1991, and runs through November 5, 1991. Third is Cauthen’s final period of hospitalization beginning on November 5, 1991 and ending with his death on December 10, 1991.
Initial diagnosis and treatment:
Although the Court does not find it necessary to causally connect the treatment received during this period with Cauthen’s death, it appears the VA breached the appropriate standard of care in several ways:
Dr. McKee never even saw Cauthen after the direct laryngoscopy on May 9th until the first post-radiation follow up visit on July 30, 1991. This includes the entire six week radiation treatment period. [FN11] Dr. McKee himself admitted that his own record keeping was not very good and that he failed to read all of the orders and progress notes of the residents, interns, medical students, and nurses who were attending Cauthen. Dr. McKee never consulted with the physician administering Cauthen’s radiation treatment. Dr. Wells, the VA’s own expert witness, testified that this fact was surprising to him.

FN11. Although Cauthen was diagnosed with laryngeal cancer on May 9,

1991, the VA delayed his treatment until May 30, 1991, twenty-one days later.
The follow-up period:
The second period of Cauthen’s care, the follow up period from July 17 until November 5, 1991, is when the most crucial breaches of the standard of care occurred. It is during this period that the signs of persistence of Cauthen’s cancer were surfacing more and more clearly with each follow-up visit. Dr. McKee ignored these obvious signs, and missed several opportunities to diagnose and treat Cauthen’s tumor with salvage surgery (surgical resection of the tumor); a step which, by everyone’s account, would have saved Cauthen’s life.
Initially, Dr. McKee erred during the follow-up period by failing to refer Cauthen back to the treating radiologist for a follow-up examination during the first six weeks following radiation therapy. The VA’s own witness, Dr. Wells, testified that the standard of care required such a referral.
As discussed above in the findings of fact, Cauthen’s symptoms worsened from one follow-up visit to the next. If the radiation therapy was successful, and reduced or eliminated the tumor located on the cord, then the hoarseness, pain, and swelling were indications that there was another reason for the symptoms, likely a recurrence or persistence of the tumor in the surrounding tissue. This was made clear by the testimony of the Plaintiff’s physician witnesses as well as the VA’s expert, Dr. Wells. This should have been a red flag to Dr. McKee.
It was a breach of the standard of care for Dr. McKee to have failed to at least inform Cauthen that there was a possibility that the tumor was persisting or recurring, and to have failed to give him further diagnostic and treatment options. There is absolutely no question that on October 15, 1991, when Cauthen’s hoarseness continued to worsen, when Cauthen experienced pain, and when swelling was noted for the first time, Dr. McKee breached the medical standard of care when he failed to take further steps to properly evaluate and treat Cauthen. The testimony was uncontroverted that, had Dr. McKee discovered the persistence of the tumor at that time, Cauthen would have been able to undergo removal surgery and that it almost certainly would have been curative and saved his life.
Dr. McKee testified that his notes on October 15, indicating the appearance of swelling for the first time, may not really have meant that. He testified that there may have been swelling during the past visits but that he did not like to “just rubber-stamp” his progress notes. He indicated that he might have added the note about swelling so that there was some variety in his notes. First, if Dr. McKee’s practice really was as he stated, this was a breach of the standard of care according to VA witness Wells. In medical treatment, trends are of critical importance. As in Cauthen’s case, if swelling appeared for the first time in October, this was a critical factor for monitoring Cauthen’s condition.
Cauthen’s November 5 visit to Dr. McKee almost had the same result as his previous follow-up visits. If Gaddis had not insisted, it is doubtful that McKee would have admitted Cauthen to the hospital. Once again, Dr. McKee did not even order or perform further diagnostic tests to investigate the cause of his problems (i.e., recurrence or persistence of the tumor), such as a direct laryngoscopy and biopsy or a CT scan. He simply stated that there was no sign of cancer and that the lump on Cauthen’s neck was only a swollen lymph gland.
The final hospitalization:

Cauthen’s final hospitalization was one of continuing neglect and error containing many individual breaches of the standard of care. Among these areas were: The VA’s failure to quickly diagnose, treat, and remove the growing tumor in Cauthen’s throat; VA’s failure to address Cauthen’s immediate medical needs which caused his condition to deteriorate to a state in which removal surgery was inadvisable or impossible; VA’s failure to discuss with Cauthen or Gaddis the options available to them, including the weighing of risks for waiting or performing the removal surgery in light of Cauthen’s condition; and VA’s failure to properly monitor, treat and care for Cauthen caused continued decline, distress, pain, suffering, and eventually death.
The many breaches of the standard of medical care during this final hospitalization, as listed in detail in the findings of fact, fall under one of the four general areas of breach listed above. It is noteworthy that many of the breaches were freely admitted by VA personnel or other VA witnesses.
VA nurse Ellastine Horne, herself, admitted at least fourteen breaches involved in Cauthen’s care. In addition, many of the VA’s physician witnesses, whether fact witnesses or expert witnesses, admitted several breaches and further admitted “surprise” when specifically questioned about details in the medical records which were evidence of negligent care. [FN12]

FN12. On several occasions, the VA’s expert witnesses began by giving opinions which defended Dr. McKee and the VA’s actions, or in some other way defended the VA’s case. However, upon cross examination, when all of the details of Cauthen’s care were made clear to them, they expressed some surprise. Dr. Wells, the VA’s ENT expert, even admitted that if some of the facts in the record were true, then that might affect his opinions; in his words: “all bets are off.” Dr. Spencer, the VA’s pathologist, who first testified that Cauthen’s death was not the result of cancer but was the result of an independent heart attack, clearly indicated that he would have liked to have had more of the facts of the case in the formation of his opinions. These assertions by the VA’s own witnesses lead this Court

to seriously question some of the VA’s expert’s opinions based upon the strong suspicion that they had not been fully and fairly informed of all of the facts of the case before they were asked to give their opinions.

Dr. Flowers, the VA resident attending to the care of Cauthen, was, in many ways, typical of the VA’s witnesses in this case. He attempted to respond with an unseemly willingness to defend the VA in this case. In so doing, he was often caught in an inconsistency. For instance, Dr. Flowers attempted to defend the VA’s delay in action by testifying that it would have been nearly impossible for Cauthen to have been moved from surgical intensive care to have the CT scan of the neck performed. Yet, when confronted with the clear records in this case, he had to admit that he himself ordered several CT scans for other areas on several days while Cauthen was actually in surgical intensive care.
It is further evident from the testimony and evidence, that Cauthen’s final weeks in the VA Hospital were filled with pain and suffering, both physical and emotional. He was, for the most part, placed and kept in a helpless state, tied to a chair, often without *717 the ability to eat, drink, breathe properly, or use the bathroom. In addition, he suffered with the knowledge that his cancer was not cured as he had been earlier assured by Dr. McKee, and that he was probably going to die under the most painful and helpless conditions. [FN13] While his pain and suffering really began during the period from July through November, his physical and emotional pain and suffering was many times worse during his final hospitalization. During this final period, for example, pain medicine was ordered for him but never given.

FN13. The Court notes that Cauthen’s desire, as recounted through testimony, to defeat his cancer, and the happiness expressed by him when he was told the cancer was defeated, were rivaled in intensity only by the dread which he was forced to endure due to the VA’s negligence over the course of his illness.

The VA’s own autopsy concluded that Cauthen’s death was caused by his untreated and spreading laryngeal cancer, which led to infection and multiple organ failure, which led to the stoppage of his heart. [FN14]

FN14. It is interesting to note that the VA defends everything it did except the autopsy.

It is clear that Cauthen died as a result of his untreated cancer and the negligence of the VA Hospital. [FN15]

FN15. On the day of Cauthen’s funeral, an individual from the VA called Gaddis’s office to tell her that everything was all right with her father. The caller did not even know that Cauthen was dead.

There is no question that, at the very latest, on October 15, 1991, Dr. McKee missed an opportunity to save Cauthen’s life. [FN16] On November 5, 1991, Dr. McKee also missed an opportunity to save Cauthen’s life. Dr. McKee’s failures on these two dates, as well as later failures, directly caused a death which would not have occurred otherwise. Testimony in this case put Cauthen’s survival percentage at over 90% had salvage surgery been performed, as it should have, on or about October 15, 1991.

FN16. It is probable that even as early as July 30, 1991, or September 3, 1991, Dr. McKee could and should have taken another course of action which would have saved Cauthen’s life.

Wrongful Death:
According to the statutory life expectancy tables, Cauthen would have had a life expectancy of 11.54 years. In addition is the fact that all of Cauthen’s brothers and sisters are still alive, indicating a familial propensity towards longevity. Further, it is clear from the testimony and evidence in this trial that Cauthen could have expected love, care, and support from his family. Accordingly, this Court finds that Cauthen would have had a life expectancy of ten (10) years.
As discussed above, this Court is convinced that Gaddis and Cauthen enjoyed a close, loving relationship. Accordingly, this Court values the loss of society and companionship at $80,000.00 per year, for a total of $800,000.00. For mental shock and suffering, this Court awards $75,000.00. For grief, sorrow, and wounded feelings, this Court awards $75,000.00. For funeral expenses, based upon evidence presented, this Court awards $3,526.65.

Pain and Suffering of Cauthen:

 Cauthen died a horrible death. He endured terrible pain and suffering while slowly suffocating to death. Although pain medication was ordered, none was given to help offset the terrible pain caused as Cauthen’s cancer slowly ate away the cartilage and muscle of his throat and neck. In addition, Cauthen suffered a severe loss of dignity and pride. He was reduced to a helpless state, in diapers, unable to help himself or even communicate with his family.
Calculating from October 15, 1991, through his final, horrible hospitalization until his death on December 10, 1991, this Court awards $125,000.00 for the pain and suffering of Cauthen.
This Court, therefore enters a judgment against the Defendant and in favor of the Plaintiff in the total amount of $1,078,526.65. This Court has carefully awarded damages in accordance with the actual damages suffered by Cauthen and Gaddis, without adding any punitive component to this award.
Gaddis v. U.S.,7 F.Supp.2d 709 (D. S.C. 1997)

241 F.Supp.2d 1183

United States District Court,

D. Kansas.

ESTATE of Lawrence A. KOUT, Eva L. Kout, Lance A. Kout, Deanna M. Lyon,



UNITED STATES of America, Seyed A. Sajadi, and Managed Health Care, Ltd.,


Case No. 01-4175-SAC.

Nov. 22, 2002.


CROW, Senior District Judge.
This medical malpractice case comes before the court on the following motions: plaintiff’s motion to estop the government (Dk. 39); the government’s motion to dismiss a claim (Dk. 41); and defendants Sajadi and Managed Health Care, Ltd.’s motion for judgment on the pleadings (Dk. 68). Discovery has been stayed pending decision of these motions.
The facts underlying these motions are few and undisputed. On March 23 and 24, 2000, Lawrence A. Kout visited the Colmery-O’Neil Veterans Administration Hospital in Topeka, Kansas twice: once from approximately 4:15 a.m. to 5:35 a.m., and once from 6:45 p.m. until his death the following morning. Each time he was treated by Dr. Seyed A. Sajadi. The second time, Dr. Dasaraju was asked to consult on Mr. Kout’s case, and was in charge of his care and treatment from approximately 12:20 a.m. on March 24 until approximately 3:35 a.m., when he was pronounced dead.
The estate and family of the deceased initially brought suit pursuant to the Federal Tort Claims Act (“FTCA”) solely against the government, asserting that Dr. Sajadi and others were negligent in their care and treatment of Mr. Kout. Plaintiffs later amended their complaint to add Dr. Sajadi and Managed Health Care. Ltd. as defendants.
The government responds that Dr. Sajadi was not its employee on the relevant dates, but was working for Managed Health Care, an independent contractor of the government, precluding any liability under the FTCA. Plaintiffs reply that the government should be equitably estopped from asserting the independent contractor status of Dr. Sajadi because of factors including the government’s delay in so notifying plaintiffs until after the statute of limitations had run. Additionally, defendants Sajadi and Managed Health Care assert that the statute of limitations expired before plaintiffs filed suit against them. Plaintiffs contend that their suit against these defendants is permitted because of the relation back doctrine. These controlling procedural issues are ripe for determination.
Government’s motion to dismiss
The court first examines the government’s motion to dismiss the FTCA claims against it based upon any acts or inaction of Dr. Sajadi, pursuant to Fed.R.Civ.P. 12(b)(1). [FN1] This motion is founded upon the assertion that at all relevant times, Dr. Sajadi was not an employee of the government, but was an employee of an independent contractor, barring all FTCA claims against the government based upon his acts or inactions.

FN1. No motion to dismiss has been filed relating to the acts of Dr. Dasaraju, whom the government admits is a VA employee physician in ICU.

The parties do not dispute that the FTCA waives the government’s sovereign immunity for tortious acts caused by its employees, but preserves sovereign immunity for identical acts or omissions of independent contractors. See 28 U.S.C.A. § 1346(b); Williams v. United States, 50 F.3d 299, 305 (4th Cir.1995)(district court lacks subject matter jurisdiction to hear FTCA claim arising out of the actions of an independent contractor); 28 U.S.C. § 2671 (defining “federal agency” to exclude “any contractor of the United States.”); Kirchmann v. United States, 8 F.3d 1273, 1275 (8th Cir.1993) (affirming dismissal for want of subject matter jurisdiction under Rule 12(b)(1) because the entity’s status as an independent contractor *1187 precluded imputed liability on behalf of the United States); Broussard v. United States, 989 F.2d 171, 177 (5th Cir.1993) (per curiam) (noting that the proper practice is to dismiss for want of jurisdiction for purposes of the FTCA under Rule 12(b)(1), not to grant summary judgment under Rule 56(c)). Given the controlling law, no FTCA claim will lie against the government in this case unless Dr. Sajadi was an employee of the government on March 23-24, 2000.
The parties dispute the test which should be used to determine this issue. Plaintiffs assert that the proper focus of the inquiry should be “what control the government actually exercised over Dr. Sajadi’s practice,” regardless of the intent of the parties. Dk. 50, p. 5. [FN2] The government states that its intent is determinative. Both parties rely largely on the case of Lilly, supra.

FN2. Plaintiffs have additionally filed without leave of court, and in violation of the local rules, a surreply (Dk. 58) which the court shall not consider.

The court agrees that Lilly establishes the governing law, and that its language leaves room for dispute. There, the Tenth Circuit addressed the issue by stating:
The critical determination in distinguishing a federal employee from an independent contractor is the power of the federal government “to control the detailed physical performance of the contractor.” Logue v. United States, 412 U.S. 521, 528, 93 S.Ct. 2215, 2219, 37 L.Ed.2d 121 (1973). In our circuit “the key inquiry under this control test is whether the Government supervises the day-to-day operations of the individual.” Lurch v. United States, 719 F.2d 333, 337 (10th Cir.1983).
In Lurch, a case similar to the one before us, the plaintiff sued the Veterans Administration hospital under the Federal Tort Claims Act alleging that a surgeon’s negligence caused his hearing loss. In dicta, we noted that
Because a physician must exercise his own professional judgment, no one controls the detailed physical performance of his duties. Given this, by strictly following the traditional control test it is doubtful whether a physician could ever be found to be a federal employee under the FTCA.
.           Although the application of a “modified control” test “seems logical” in this situation, we did not adopt such a test in Lurch because the issue was not before us. Id. at 337-38. But see Quilico v. Kaplan,*1188 by express, unambiguous agreement. Lilly v. Fieldstone, 876 F.2d 857, 858-59 (10th Cir.1989).A more recent case in which the Tenth Circuit interpreted Lilly sheds additional light on the proper test, in stating: In determining whether an individual is a federal employee or an independent contractor, the critical question is whether the federal government has the power to control the detailed physical performance of the individual. [See 876 F.2d at 858.] We have held that the key inquiry under this control test is “whether the Government supervises the day-to-day operations of the individual.” Id. (quotation marks omitted). This inquiry involves consideration of a number of factors, including the intent of parties, the allocation of insurance obligations, and whether the government in fact controlled only the end result of [the physician’s] efforts or also controlled the manner and method in which [the physician] conducted his activities. See id. at 859.
188 F.3d 1195, 1200 (10th Cir.1999).
Application of the factors noted above to the facts shown by the record [FN3] reveals that Dr. Sajadi was not an employee of the government at the relevant time. Plaintiffs do not dispute the fact that a written contract existed between the Colmery-O’Neil Veterans Administration Hospital in Topeka, Kansas, (“VA”) and Managed Health Care, Ltd., requiring the latter to provide the Officer of the Day (OD) for the Urgent Care division of that hospital during the relevant time. Plaintiffs do not challenge defendant’s assertion that the contract covered Dr. Sajadi, and that Dr. Sajadi was assigned by Managed Health Care, Ltd. as the OD on March 23-24, 2000. Nor do plaintiffs dispute any of the governing language of the contract.


FN3. In ruling on a Rule 12(b)(1) motion, the court may consider exhibits outside the pleadings, without converting the motion into one for summary judgment under Rule 56. Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (10th Cir.), cert. denied, 484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d 501 (1987); Rothenberger v. U.S. By and Through U.S. Air Force,

931 F.2d 900, 1991 WL 70719, *2 (10th Cir.1991).

The contract states, in pertinent part, as follows:
6. Personnel Policy
The contractor shall be responsible for protecting the personnel furnishing services under this contract. To carry out this responsibility, the contractor shall provide the following for these personnel: Worker’s compensation, income tax withholding, and social security payments. The parties agree that such personnel shall not be considered VA employees for any purpose and shall be considered employees of the contractor.
Dk. 41, Exh. A 4, p. 16.
1.8 Indemnification and Medical Liability Insurance
It is expressly agreed and understood that this is a nonpersonal services contract … under which the professional services rendered by the Contractor or its health care providers are rendered in its capacity as an independent contractor. The Government may evaluate the quality of professional and administrative services provided but retains no control over professional aspects of the services rendered, including by example, the Contractor’s or its health-care providers’ professional medical judgment, diagnosis, or specific medial (sic) treatments. The contractor and its health care providers shall be liable for their liability-producing acts or omissions. *1189 The Contractors shall maintain or require all health-care providers performing under this contract to maintain, during the term of this contract, professional liability insurance issued by a responsible insurance carrier of not less than [stated amount] per specialty per occurrence.
Dk. 41, Exh. A 4, p. 16. The court has found no language in the contract or other documents which contradicts the plain language set forth above, or which otherwise supports plaintiff’s assertion that Dr. Sajadi was a government employee, nor do plaintiffs point to any.
Instead, plaintiffs assert that “the contract is largely immaterial as the issue is whether Dr. Sajadi was an employee.” (Dk. 50, p. 6.) Although the court is confounded by this statement, plaintiffs apparently mean that it is not the contract, but the control test which should govern the determination of the issue. Plaintiffs ignore the fact that the contract speaks volumes about the government’s control, in stating that the Government “retains no control over professional aspects of the services rendered, including by example, the Contractor’s or its health-care providers’ professional medical judgment, diagnosis, or specific medi[c]al (sic) treatments.” Id. This language, which reveals the clear intent of the parties, has not been shown to be inapplicable to the present case. Therefore, by virtue of this agreement, the government retained no control over Dr. Sajadi’s professional medical judgment, diagnosis, or specific medical treatments, the very aspects of his practice which give rise to plaintiffs’ suit.
Nor have plaintiffs shown that the “actual control” exercised by the government over Dr. Sajadi was in any way inconsistent with the language of the controlling contract, set forth above. No pattern or practice of the parties has been shown evidencing any degree of control by the government over the aspects of Dr. Sajadi’s practice which give rise to plaintiffs’ complaints.
Plaintiffs urge the court to consider items such as the following in making the “control” determination: separate billing at standard rates, exclusive control by the physician over his patients and records, lack of permanent office space at the hospital, no secretarial help at the hospital, not being regularly scheduled on the hospital duty roster, no requirement that he see patients only at the hospital, and some ability to refuse to see a military patient. (Dk. 50, p. 5). Plaintiff offers no evidence to show that any of these facts is present in this case, however. Compare Lilly, supra.
  In tacit recognition of this factual failing, plaintiffs assert that the “relevant facts to resolve the question presented were not developed” because “the Defendant waited so long to raise this issue.” (Dk. 50, p. 6). Plaintiffs request additional discovery on this issue, at defendant’s expense, including attorneys’ fees. This request shall be denied as futile, given the clear and unequivocal language of the governing written agreement between the VA and Managed Health Care, Ltd., relating to control of Dr. Sajadi’s practice. Because Dr. Sajadi was not an employee of the government during the relevant time, no FTCA claims based upon his actions or inactions may be brought against the government.
Plaintiff’s motion to estop the government
The court next addresses plaintiff’s motion to estop the government from asserting that Dr. Sajadi was employed by an independent contractor, rather than by the government. Although plaintiffs have requested oral argument on this motion, *1190the court finds tha t oral argument would not materially assist the court, so denies that request.
Plaintiff asserts that estoppel is warranted because “defendant knew that the plaintiffs believed that Dr. Sajadi was the defendant’s employee, that the plaintiffs believed Dr. Sajadi’s negligence caused their father’s death, and that the plaintiffs intended to hold the defendant legally responsible, under the FTCA, for the damages caused by Dr. Sajadi’s negligence.” Dk. 40, p. 9. The government proposes that this is not the proper test to use in determining whether to estop the government. [FN4] The court agrees.

FN4. Both briefs are unusually acrimonious.

719 F.2d 333, 341 n. 12 (10th Cir.1983), citing generally, Note, Equitable Estoppel of the Government, 79 Colum. L.Rev. 551, 552-54, 565-68 (1979). A showing of “affirmative misconduct” is necessary to estop the Government. See 459 U.S. 14, 103 S.Ct. 281, 74 L.Ed.2d 12(1982) (per curiam); Schweiker v. Hansen, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981) (per curiam); INS v. Hibi, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973) (per curiam).
The Tenth Circuit’s requirements for a claim of estoppel against the Government are:
(1) the party to be estopped must know the facts; (2) he must intend that his conduct will be acted upon or must so act that the party asserting the estoppel has the right to believe that it was so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former’s conduct to his injury. (citation omitted ).
Lurch, 719 F.2d at 341.
The court finds that plaintiffs fail to show the basic first element of estoppel. No showing is made that government’s counsel knew of any fact which might lead it to claim that Dr. Sadaji worked for an independent contractor before the statute of limitations expired. Instead, it is undisputed that the government’s counsel learned of this fact only approximately two weeks before it disclosed that fact to plaintiffs’ counsel, long after the statute had expired.
Plaintiff contends that because the independent contractor agreement was in existence, the government itself knew of the agreement and thus of Dr. Sajadi’s status as a contract employee from the beginning of administrative proceedings which predated initiation of suit, if not before. Plaintiff seeks to impute this knowledge to government’s counsel, and to impose upon him a duty to discover and disclose. The court finds no basis in law for such an approach, and plaintiffs offer none.
Here, the government has not been shown to have taken any affirmative acts or made any misrepresentations to plaintiffs relating to Dr. Sajadi’s employment status during the course of the administrative proceedings which predated the filing of this case, during discovery proceedings in this case, or at any other time. Neither the government’s answer nor any discovery documents included in the record before this court assert that Dr. Sajadi was or was not its employee. Plaintiffs have not alleged that at any time, the government made any verbal or written representations to them that Dr. Sajadi was or was not its employee. Plaintiffs complain *1191 of the government’s silence during administrative proceedings prior to their initiation of this suit, but have not shown the court that this particular issue ever arose, or the manner in which it was addressed, if at all, by the government.
The court therefore finds that at no time prior to the government’s assertion to plaintiffs that Dr. Sajadi was not a governmental employee, did the government made any representation intended to lead or which would have led plaintiffs or any reasonable persons to believe that Dr. Sajadi was an employee of the government. Rather, the government took no action and made no representations whatsoever on this topic. Its delay in learning the true status of Dr. Sajadi may or may not evidence a lack of diligence, but fails to shows any intent or attempt to mislead plaintiffs.
The court finds that plaintiffs fail on at least the first two elements of estoppel, and additionally have not shown that the government engaged in any affirmative misconduct. Plaintiffs’ motion to estop shall therefore be denied.


Motion for judgment on the pleadings
Defendants Sajadi and Managed Health Care, Ltd., have moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), contending that suit against them was filed after the relevant statute of limitations had run. As originally styled, plaintiffs brought suit on November 20, 2001, against the United States of America alone. By an amended complaint filed on August 16, 2002, plaintiffs first named Dr. Sajadi and Managed Health Care, Ltd. as parties defendant.
The parties agree that plaintiffs’ claims are subject to a two year statute of limitations, and that the date plaintiffs first named these defendants as parties was more than two years after the cause of action accrued. Defendants thus contend that the action is barred by virtue of the statute of limitations.
Plaintiffs counter that under Kansas law, the action relates back to the date of the original pleading. See K.S.A. § 60-215(c). When a complaint is filed in federal court, however, the matter of relation back of amendments to pleadings is governed by the Federal Rules of Civil Procedure. Lemmons v. Board of County Com’rs of County of Brown, 2002 WL 370227, *2 (D.Kan.2002) (citing cases). This distinction is largely academic, however, as the language of the two is substantially similar.
Under Fed. R. 15(c)(3), an amendment adding a new party will relate back to the date of the original complaint only if three conditions are met:
(1) the amended complaint involves the same transaction or occurrence as the original complaint; (2) the new party had notice of the action such that the party will not be prejudiced in maintaining a defense on the merits; and (3) the new party knew or should have known that but for a mistake in identity, the action would have been brought against him.
            Alexander v. Beech Aircraft Corp., 952 F.2d 1215, 1226-27 (10th Cir.1991).
Defendants challenge solely the mistaken identity requirement, contending that neither Dr. Sajadi nor Managed Health Care Ltd. knew or should have known that but for a mistake in identity, the action would have been brought against them. Defendant asserts that plaintiff’s error in naming only the government in its original complaint was the result of plaintiff’s strategic choice to assume that Dr. Sajadi was an employee of the government, rather than the result of any mistaken identity. Defendant further contends that neither Dr. Sajadi nor Managed Health Care Ltd. *1192is a party whose identity was or could reasonably have been mistaken with that of the government.
Where a plaintiff’s failure to name a defendant stems from lack of knowledge rather than a mistake in identification, the plain language of Rule 15(c)(3) does not permit relation back. Henry v. Fed. Deposit Ins. Corp., 168 F.R.D. 55, 59 (D.Kan.1996); see Mitchell v. Unified Goverment, 2000 WL 1920036 (D.Kan. Dec. 21, 2000). Similarly, errors due to tactical mistakes, rather than to true mistakes in identity, do not meet the requirements of the relation back rule. Bloesser v. Office Depot, Inc., 158 F.R.D. 168, 171 (D.Kan.1994).
Here, plaintiffs failed to name Dr. Sajadi and/or Managed Health Care, Ltd. because they assumed that Dr. Sajadi was an employee of the government. This error was either due to a lack of knowledge or an error in strategy, but was not the result of plaintiffs’ mistake about the identity of the government or either of these defendants. Rather, this case reflects a mistaken status of a known party, rather than a mistaken identification of a known party.
Unable to satisfy the mistaken identity requirement, the plaintiffs’ amended complaint does not relate back and their claims against Dr. Sajadi and Managed Health Care are barred under the two-year statute of limitations. The motion of these defendants for judgment on the pleadings shall thus be granted.
IT IS THEREFORE ORDERED that plaintiffs’ motion to estop the government (Dk. 39) is denied; that the government’s motion to dismiss claims (Dk. 41) is granted; that Dr. Sajadi and Managed Health Care, Ltd.’s motion for judgment on the pleadings (Dk. 68) is granted; and that plaintiff’s motion for oral argument (Dk. 57) is denied.

In re Estate of Kout v. U.S., 241 F.Supp.2d 1183 (D. Kan 2002)

99 F.3d 354

United States Court of Appeals,

Tenth Circuit.

John F. DEASY, Jr., Plaintiff-Appellee,


UNITED STATES of America, Denver Veterans Administration Medical Center (the

“Denver VAMC”) Baltimore Veterans Administration Medical Center (the Baltimore

VAMC) and Perry Point Veterans Administration Medical Center (Perry Point

VAMC), Defendant-Appellant.

No. 95-1276.

Oct. 28, 1996.

LOGAN, Circuit Judge.
The United States appeals from the district court’s judgment in favor of plaintiff John F. Deasy, Jr. in his Federal Tort Claims Act (FTCA) suit for medical malpractice. Plaintiff asserted that psychiatrists at Veterans Administration (VA) hospitals committed malpractice when they provided him only psychiatric treatment and failed to refer him for medical treatment of severe edema. He further claimed that as a result of the malpractice he suffers from post-traumatic stress disorder (PTSD), which prevents him from being able to receive the care at VA facilities to which he is entitled. The district court heard the case without a jury and found that the VA committed malpractice in Maryland and Colorado. The district court awarded plaintiff $3,993,971, to be placed in a reversionary trust to provide for his future *356 medical needs outside the VA hospital system, with any balance at plaintiff’s death reverting to the United States. The court also awarded plaintiff $600,000 damages for pain and suffering–$350,000 for the Maryland occurrence and $250,000 for the Colorado occurrence, the maximum permitted under those states’ tort laws.
On appeal, the United States argues that (1) the district court judge erroneously found that the psychiatrists committed malpractice; (2) the $4 million trust for plaintiff’s medical treatment outside the VA system was not compensatory for his injuries suffered and therefore was improper; and (3) the district court’s award of $600,000 for noneconomic damages was excessive.


            The district court made detailed findings of fact and conclusions of law that we summarize here. Plaintiff is a service-connected, totally and permanently disabled veteran entitled to lifetime hospital and medical services from the VA. He has suffered for almost forty years from idiopathic retroperitoneal fibrosis, or Ormond’s disease. [FN1]Over the years he has required repeated hospitalization for treatment related to his Ormond’s disease, and also for psychiatric care.

FN1. Ormond’s disease causes scar tissue in the peritoneal cavity which can encase tubular organs or structures between organs, including veins and arteries. It is a cyclical disease which tends to have alternating periods of activity and remission. It is apparently difficult

to diagnose; in fact, plaintiff was originally diagnosed with Ormond’s disease and Hodgkins disease and was treated for both for some period of time.

In a prior FTCA case, plaintiff asserted malpractice for treatment at the VA from December 1976 through July 1980. The district court in that case found that the VA system failed to provide adequate medical care to plaintiff and awarded him $474,000 in damages. See Deasy v. United States, No. 83-M-899 (D.Colo. Dec. 27, 1985); II Supp.App. 383-405. Plaintiff then investigated obtaining private insurance coverage as an alternative to VA services but found he could not obtain coverage for his preexisting condition.
Plaintiff then met with Larry Seidl, M.D., an internist who was chief of staff at the Denver VA hospital, who agreed to become his primary treating physician. When plaintiff was hospitalized in 1987 for a kidney and urinary tract infection, he again became concerned with the quality of his treatment at the Denver VA hospital. Dr. Seidl ultimately drafted a document titled “Important Notice to All Physicians Treating John Deasy” (Dr. Seidl’s notice). II Supp.App. 367. The notice contained information about plaintiff’s medical history, including his primary diagnosis of idiopathic retroperitoneal fibrosis, and briefly outlining the physical and psychiatric treatments he had received. The notice stated that “[w]hat Mr Deasy justifiably seeks is to obtain the optimum treatment available for his unusual medical condition and to avoid improper and ineffective or harmful treatment–which he has experienced in the past–based on review of his medical records, which include diagnoses, both medical and psychiatric, that are highly suspect, in my opinion.” Id. The notice explained that the psychiatric diagnoses in plaintiff’s history are highly suspect because they have occurred either during a period when his Ormond’s disease has been active with secondary renal function impairment and its resulting toxicity; or they have occurred during periods when he was receiving multiple medications including corticosteroids to control the Ormond’s disease which became active undiagnosed–to be detected only later when it interfered with other organ functions. From December 1976 through August 1980, his psychiatric diagnoses included chronic schizophrenia, manic-depressive psychosis and organic brain syndrome. It is more than highly probable in my opinion that his mental symptoms resulted from the adverse effects of multiple medications including corticosteroids. During this period, he experienced an active phase of the Ormond’s disease initially undetected, which caused common bile duct obstruction and the removal of an acalculus gall bladder. Subsequently the inferior vena cava syndrome developed secondary to the fibrosis. It should be noted here that during *357periods when the Ormond’s disease is active, Mr. Deasy may be highly sensitive to drugs and drug therapy of any kind should be conservative and closely monitored. … The toxic side-effects of his underlying disease and its treatment should always receive primary consideration in evaluating Mr. Deasy’s mental and emotional symptoms during treatment in the Veterans Administration Department of Medicine and Surgery.
Id. The notice included instructions that it be displayed as the top sheet in each volume of plaintiff’s medical records. The notice was signed by Dr. Seidl; however, it did not reflect the signature or concurrence of a psychiatrist.
In December 1989, plaintiff was staying at the Fort George Meade military base near Baltimore, Maryland, when he developed peripheral edema related to Ormond’s disease and the inferior vena cava syndrome. Despite plaintiff’s use of a diuretic the edema continued to worsen. On December 19, plaintiff decided to leave Fort Meade. Because of the edema, his feet were too swollen to wear his shoes. He decided to load his belongings into his van by taking them out a window so that he could avoid walking in the snow in his bare feet. Military police officers came upon plaintiff as he was using a hunting knife to pry the screen off a window. The military police decided that plaintiff needed medical or psychiatric care and took him to the Fort Meade infirmary. Plaintiff became agitated and uncooperative and was transferred to the Baltimore VA medical center.
Upon arrival at the Baltimore VA, plaintiff was evaluated by psychiatrists and became enraged when despite his requests he was not treated for his edema. During his brief stay at the Baltimore VA, psychiatrist David Barrett, M.D., diagnosed him with bipolar disorder manic psychosis, and prescribed thorazine. Although plaintiff’s friend and former treating psychologist, Dr. Thomas Holman, gave Dr. Barrett the notice signed by Dr. Seidl, Dr. Barrett analyzed an electrolyte test and decided that plaintiff’s physical condition was not causing the psychiatric disturbance. Dr. Barrett did not prescribe any medication or other treatment for the edema, although he noted that plaintiff’s legs were edematous. After a few hours Dr. Barrett decided to transfer plaintiff to the Perry Point VA medical facility, which is primarily a psychiatric facility. As part of the transfer procedure, another psychiatrist, Robert Fiscella, M.D., also examined plaintiff and diagnosed him as acutely manic.
When plaintiff was admitted at Perry Point, yet another psychiatrist, Eapen Abraham, M.D., noted that both of plaintiff’s legs and feet were edematous. As with Dr. Barrett, Dr. Abraham read Dr. Seidl’s notice but found normal electrolyte levels and concluded plaintiff’s physical condition was not causing his psychiatric problems. Plaintiff did not receive a medical consultation until December 22, but even though that examining physician noted plaintiff’s edema required attention, he prescribed no medication. Finally on December 28 plaintiff received a one-time dose of Lasix, a diuretic. The next day plaintiff fled Perry Point because he was afraid he would have life-threatening renal failure if he did not receive proper medical care.
Plaintiff returned to Denver, and was admitted in two private psychiatric hospitals. On January 29 he transferred to the Denver VA. Jay Griffith, M.D., a psychiatry resident, examined him. Dr. Griffith read but disagreed with the contents of Dr. Seidl’s notice; he diagnosed plaintiff as suffering from “bipolar disorder manic phase.” App. 188. Dr. Griffith continued plaintiff on Lasix, and set up a medical consultation for him. Plaintiff, however, left the Denver VA the next day because he wanted to get treatment for the edema, which had caused marked abdominal distension.
On January 30, plaintiff’s friends arranged an appointment with Russell Simpson, M.D., a private internist, who testified that plaintiff had “one of the worse cases of edema that [he’d] seen.” II Supp.App. 308. Dr. Simpson treated the edema with intravenous diuresis in the hospital; after three days plaintiff was discharged in stable physical and psychiatric condition.
In May 1990, plaintiff sought psychiatric treatment from Richard Rewey, M.D., a psychiatrist who had evaluated him in 1984. Dr. *358 Rewey testified at trial that plaintiff suffered PTSD as a result of VA treatment that was the subject of plaintiff’s first FTCA suit. Dr. Rewey testified that the VA’s treatment of plaintiff in December 1989 and January 1990 caused a flare-up of his PTSD in December 1990, requiring psychiatric treatment.
The district court noted that doctors who had treated plaintiff for more than a few days agreed that his psychiatric problems were at least partly caused by organic abnormalities, while doctors who had only briefly examined him or his records diagnosed him with bipolar disorder. It noted that even with this diagnosis, medications for bipolar patients were not prescribed for plaintiff. The district court then found that plaintiff suffered PTSD in reaction to improper treatment in the VA hospitals. The court determined that because plaintiff’s “well-founded fear of maltreatment in the V.A. system actually causes or precipitates serious psychiatric problems … provision must be made for [plaintiff] to receive medical and psychiatric treatment outside the V.A. system.” App. 63.
The United States contends the district court’s finding that the VA doctors committed malpractice was clearly erroneous. Because this is an FTCA case we apply the law of both Maryland and Colorado where the alleged malpractice occurred. Under Maryland law a prima facie case of medical malpractice consists of “(1) determining the applicable standard of care, (2) demonstrating that this standard has been breached, [and] (3) developing a causal relationship between the violation and injury.”Muenstermann v. United States, 787 F.Supp. 499, 520 (D.Md.1992). In Colorado, “[t]o establish a prima facie case, the plaintiff must establish that the defendant failed to conform to the standard of care ordinarily possessed and exercised by members of the same school of medicine practiced by the defendant.” Melville v. Southward, 791 P.2d 383, 387 (Colo.1990).

 The United States asserts that the district court finding of malpractice rested on a determination that the VA hospitals failed to properly treat plaintiff’s edema, which contributed to his psychosis and PTSD and ultimately rendered him incapable of utilizing the VA hospitals. The United States asserts that “this theory, which is itself suspect, can support a damages award only if the VA’s treatment of Mr. Deasy’s edema, the sole malpractice alleged, fell below the level of care required of physicians who treat edemas.” Brief for Appellant at 13 (citing Armbruster v. Edgar, 731 P.2d 757, 759-60 (Colo.App.1986), and Muenstermann, 787 F.Supp. at 520-21).
The United States then argues that its witness, Stuart Linas, M.D., a board certified internist and nephrologist who testified that the VA hospitals treated plaintiff properly for edema, was the only expert qualified to testify on the standard of care for treating edema. The United States asserts that plaintiff’s psychiatrists were not qualified to offer an expert opinion on the standard of care for edema because that condition lies outside their specialty, see Greene v. Thomas, 662 P.2d 491, 493-94 (Colo.App.1982) (“expert witness must have acquired, through experience or study, more than just a casual familiarity with the standards of care of the defendant’s specialty”); Smith v. Pearre, 96 Md.App. 376, 625 A.2d 349, 359 (physicians testifying outside of own specialties must “have sufficient knowledge, skill, and experience to make a well-informed opinion”), cert. denied, 332 Md. 454, 632 A.2d 151 (1993), and that the record does not support a finding that the VA hospitals’ treatment of plaintiff’s edema constituted malpractice. We disagree.
Psychiatric experts asserted that the VA psychiatrists’ failure to provide medical treatment for plaintiff’s edema, or to refer him to specialists for such treatment, fell below the standard of care for psychiatrists. See I Supp.App. 188-89, 192 (Dr. Rewey); see also II Supp.App. 278-85 (William McCaw, M.D.) (giving opinion that if edema was treated plaintiff’s psychotic episode would perhaps be reduced); id. at 347-56 (John L. Wiberg, M.D.) (stating that plaintiff’s edema would affect his brain, resulting in psychotic behavior; and that “immediate medical consultation” should be sought by *359 treating psychiatrist). Of course, under both Maryland and Colorado law a psychiatrist can testify to the standard of care for psychiatry. Plaintiff relied upon psychiatric experts’ testimony that it was a breach of the psychiatric standard of care to fail to refer plaintiff to an internist or nephrologist for further evaluation of his edema, and that the failure to do so increased his psychiatric symptoms. This evidence supports the district court’s malpractice finding. The failure to treat or refer plaintiff while he was in the Maryland VA continued for over a week. The failure to treat plaintiff’s edema upon his admission to the Colorado VA appears less egregious because he was scheduled to be seen the next day by a specialist. Nonetheless, plaintiff’s experts testified that the Denver VA psychiatrists should have evaluated and treated plaintiff’s edema immediately. This conclusion is supported by testimony by Dr. Simpson, an internist, that immediately after leaving the Denver VA, plaintiff had one of the worst cases of edema that he had seen, requiring hospitalization. Although the United States presented evidence that the VA did not breach its duty of care, the district court’s finding to the contrary is supported by the record. [FN2]

FN2. The district court also noted that although some of defense experts asserted that plaintiff should have received medication for his bipolar disorder, he did not. App. 55-56.


     The United States asserts that the district court erred in awarding plaintiff damages in the form of lifetime free medical and psychiatric care. Furr v. AT & T Technologies, Inc., 824 F.2d 1537, 1548 (10th Cir.1987). The amount of damages is a finding of fact that we uphold unless clearly erroneous. See Fed.R.Civ.P. 52(a). The United States points out that although the plaintiff “is entitled to be compensated for losses attributable to the injury inflicted … it is only the damage flowing legally from the defendant’s misdeeds which counts.” Brief for Appellant at 22 (quoting Westric Battery Co. v. Standard Elec. Co., 482 F.2d 1307, 1318 (10th Cir.1973)). It argues that lifetime medical care is not compensation for injuries caused by failure to coordinate plaintiff’s care or any delay in treating plaintiff’s edema; also that if the district court based its award on a finding that plaintiff would continue to receive improper care from the VA in the future, the ruling is too speculative to support a damage award.
The district court, however, specifically found that the VA’s malpractice caused plaintiff to suffer from a recurrence of PTSD. This finding is supported by the record.See, e.g., I Supp.App. 170-94 (psychiatrist testified that the VA’s treatment of plaintiff in December 1989 to January 1990 caused flare-up of PTSD). The district court found that the PTSD itself arose out of his years of improper treatment.
[It] has evolved to the point where his reaction to medical maltreatment has become a separate and distinct psychiatric problem–namely post-traumatic stress disorder. Once triggered, this disorder exacerbates whatever psychosis may be presenting at the same time. If not treated for his Ormond’s disease and its resulting problems, Mr. Deasy becomes so distrustful, anxious, and enraged that he literally is unable to cooperate with treatment being offered. App. 51. The basis of the district court’s decision to award a sum of money to permit plaintiff to receive the future care he would need outside the VA system was that “the medical testimony establishes that after decades of substantial treatment, [plaintiff’s] well-founded fear of maltreatment in the V.A. system actually causes or precipitates serious psychiatric problems.” Id. at 63. We cannot find this conclusion clearly erroneous.
The award here is very substantial. But plaintiff was entitled to lifetime free care in government hospitals; he has extremely serious physical and mental illnesses. Both Maryland and Colorado recognize the “thin skull” rule: “a tortfeasor must accept his or her victim as the victim is found.” Schafer v. Hoffman, 831 P.2d 897, 900 (Colo.1992). Compensation for loss of medical services would not, of course, be appropriate merely because a plaintiff disliked the care provided by the VA; however, this is a rare case in which plaintiff produced expert testimony *360supporting a finding that, due to the VA’s own negligence, further treatment in a VA hospital would result in recurrence of his PTSD. The district court’s award of damages thus serves to make plaintiff whole. See Ballow v. PHICO Ins. Co., 878 P.2d 672, 677 (Colo.1994) (“[c]ompensatory damages are awarded in order to make the injured party whole”).
The United States did not object in the district court to awarding damages in the form of a trust, with any sums remaining at plaintiff’s death reverting to the government. This ensures that plaintiff does not receive a windfall. We have approved reversionary trusts in FTCA cases involving large awards for future medical needs. See Hill v. United States, 81 F.3d 118 (10th Cir.), cert. denied, 519 U.S. 810, 117 S.Ct. 56, 136 L.Ed.2d 19 (1996); Hull v. United States, 971 F.2d 1499 (10th Cir.1992), cert. denied,507 U.S. 1030, 113 S.Ct. 1844, 123 L.Ed.2d 469 (1993). We perceive no error in this aspect of the district court’s award.


     Finally, the United States argues that the $600,000 noneconomic damages awarded by the district court were excessive. We review the award of noneconomic damages for clear error, to determine whether “the award shocks the judicial conscience.” Miller v. United States ex rel. Dep’t of the Army, 901 F.2d 894, 897 (10th Cir.1990). Based on the extent of plaintiff’s physical and emotional injuries he sustained as a result of the VA’s malpractice, we cannot conclude that these noneconomic damage awards were excessive.
C.A.10 (Colo.),1996.
Deasy v. U.S.
99 F.3d 354

United States District Court,

D. Connecticut.

Robert CASEYPlaintiff

FN1. Plaintiff died on November 20, 1999. Plaintiff’s motion to substitute party was granted on March 27, 2000, adding plaintiff Nancy C. Elliott. [Doc. # 80.]



UNITED STATES of America, Defendant

No. CIV. 3:95CV1949(HBF).

April 9, 2001.


FITZSIMMONS, United States Magistrate Judge.
On September 13, 1995, plaintiff filed this action under the Federal Torts Claim Act (“FTCA”), alleging medical malpractice and negligence on the part of Veterans Administration (“VA”) employees. On September 30, 1999, this court granted defendant’s oral motion for judgment as a matter of law with respect to plaintiff’s allegations that staff at the Newington Veterans Affairs facility was negligent in failing to provide him with Standard Form 95 (“SF 95″) which was a prerequisite to bringing a medical malpractice suit against the United States. [Doc. # 66.] However, *88 the parties were directed to brief the question of whether, in light of the factual record presented at trial, the statute of limitations for filing a medical malpractice action was equitably tolled by the failure of a VA benefits counselor to properly advise plaintiff about the filing requirements for a medical malpractice action. [FN2] [See id. at 10.] Plaintiff’s Memorandum of Law on Whether Statute of Limitations for Filing Medical Malpractice Claim Should be Equitably Tolled [Doc. # 72] is hereby construed as a Motion for Reconsideration of the Recommended Ruling on Defendant’s Motion to Dismiss or for Summary Judgment [Doc. # 28]. For the following reasons, plaintiff’sMotion for Reconsideration [Doc. # 72] is GRANTED, and the Clerk is directed to reopen the case for further proceedings in accordance with this ruling.

FN2. Judge Margolis dismissed plaintiff’s medical malpractice claim against the United States because plaintiff failed to present his claim in writing to the VA within two years of the accrual of the claim. [See Recommended Ruling on Defendant’s Motion to Dismiss or for Summary Judgment, Doc. # 28, approved and adopted by Judge Nevas on August 29, 1996.] In that ruling, Judge Margolis rejected plaintiff’s argument that the statute of limitations should be equitably tolled due to misconduct on the part of VA benefits counselors. [See id. at 6-7.] For the reasons discussed in this opinion, this court believes that the issue of equitable tolling should be revisited.

Robert Casey brought this action against the United States for injuries he allegedly received as a result of medical malpractice committed during and after surgery on his stomach at the West Haven Veterans Affairs Medical Center (“VAMC”). Plaintiff’s first stomach surgery occurred at the VAMC on January 6, 1992, to treat his ulcer condition. [Doc. # 71, at 27.] After the surgery, plaintiff filed a claim for service connected disability benefits related to his condition, which was denied in April, 1992. [Doc. # 71, at 28.]
During this time, VAMC doctors told plaintiff that they discovered he had stomach cancer when they took a biopsy during the surgery to repair plaintiff’s perforated ulcer. [See id., at 27.] The VAMC released plaintiff on January 16, 1992, on the condition that plaintiff return to the hospital on January 26, 1992, to have a second surgery to remove cancerous portions of his stomach. [See id.] After the second surgery, plaintiff was discharged from VAMC on February 8, 1992. [See id. at 33-34.] On February 9, 1992, plaintiff was rushed to Backus Hospital in Norwich, Connecticut by his mother and sister-in-law for acute peritonitis allegedly resulting from the second VAMC surgery. [FN3] [See id. at 34.] Plaintiff was discharged from Backus Hospital on February 21, 1992. [See id. at 35.] Post-operative care relating to plaintiff’s stomach surgeries continued for approximately one year following his release from Backus Hospital. [See id.]

FN3. A VAMC report dated October 23, 1995, indicated that plaintiff “underwent surgery for peritonitis and dehiscence of the abdominal wound” on February 9, 1992, at Backus Hospital. [Plaintiff’s Exhibit 11, Doc. # 73, at tab 2.] “Peritonitis” is defined as the inflammation of the

membrane that lines the abdominal cavity and the organs contained therein. STEDMAN’S MEDICAL DICTIONARY, (25th ed., 1990). “Dehiscence” is defined as “a bursting open, splitting, or gaping along natural or sutured lines.” Id.

In the spring of 1992, plaintiff learned that he did not have stomach cancer even though one-half of his stomach had been removed during the surgery. [See id. at 37-38; Pl. Exh. 6, Doc. # 73, Tab 10]. Plaintiff also learned that he was released from VAMC on February 8, 1992, even *89 though his sutures had not healed properly and he had an infection in the membrane surrounding his stomach. [Doc. # 73, at tab 2.]
Following his discharge from Backus Hospital, and during his year long post-operative treatment at the VAMC, plaintiff claimed to have had numerous conversations with VA benefits counselors concerning his care at the West Haven facility. [Doc. # 71, at 37, 41, 42.] Plaintiff stated that Mr. Lou Turcio and Mr. Donald Dubrock [FN4] both told him that he should sue the government because of the care he received at the VAMC during and after his stomach surgeries. Turcio testified that he had no personal recollection of discussing the possibility of plaintiff filing a torts claim against the government. [See id. at 124.] Turcio did recall overhearing Robert Begin [FN5] start a conversation with plaintiff regarding filing the torts claim, but could not remember any specifics of the conversation. [See id. at 119.] Dubrock testified that he recalled conversations with plaintiff regarding plaintiff’s dissatisfaction with the treatment he received from West Haven VAMC for his stomach surgeries and discussions about the possibility of plaintiff suing the government regarding his care. [See id. at 181.] However, although Dubrock remembered plaintiff asking his opinion as to whether he should sue the government, he said that he never advised plaintiff to do so. [See id. at 197.]

FN4. Turcio is a VA benefits counselor, while Dobruck is a vocational rehabilitation specialist.

FN5. Begin, also a VA benefits counselor, testified during his deposition that he recommended that plaintiff file a torts claim against the government, but that at the time plaintiff did not want to do so. [Plf. Exh. # 5, at 13.]

Plaintiff testified that initially he didn’t want to sue the government because he didn’t want to believe that his country committed any wrongdoing with respect to his treatment and because he was hoping to gain employment with a government contractor. [FN6] At no point during these discussions with the plaintiff did any VA employee tell him how to file a claim against the government, provide the proper forms to him, or direct him to available resources to help him file suit against the United States. [See id . at 40, 41.] Plaintiff admitted that he did not ask for this information during those conversations. [See id. at 41.]

FN6. Plaintiff served in the Air Force for 20 years, and after retiring he received training in computer science as a disabled veteran through the Department of Veterans Affairs. [Doc. # 71 at 11, 176.]

During the summer of 1992, plaintiff requested a mental health evaluation at the West Haven VAMC. [See id. at 43.] Plaintiff requested this evaluation because he was “full of rage and anger because [he] had found out [for himself]” about the quality of care he received from the VAMC. [Id.] Plaintiff’s request that his mental health treatment be transferred to the Newington VAMC was granted and he received counseling services there through June, 1998. [See id. at 45.] Part of plaintiff’s mental health treatment plan included alcohol abuse treatment. [See id. at 44.]
In spring of 1993, plaintiff was admitted to the West Haven VAMC for carpel tunnel surgery on his left hand. [See id. at 48.] As a result of this surgery, plaintiff filed a disability benefits claim in May 1993 for a two month, hundred percent temporary disability. [See id.] Plaintiff testified that benefits counselor Begin filled in all of the information on the form relating *90 to the claim and he just signed it and filled in his address. [See id. at 49.]
Plaintiff had previously received care for his left wrist at the West Haven VAMC as a service related disability. After retiring from the Air Force, plaintiff received a ten percent disability rating for his left wrist. [See id. at 14.] In November 1989, plaintiff underwent surgery on his left wrist at the West Haven VAMC, which left him with a twenty percent disability rating in that wrist. [See id. at 17.] On each occasion when plaintiff filed for service connected disability benefits as a result of his wrist injury, the paperwork was filled out and he was guided through the process by Turcio. [See id. at 18.]
On June 23, 1993, plaintiff was admitted into the detoxification treatment program at the Newington VAMC after he resumed drinking alcohol. [FN7] [See id. at 52-3.] After plaintiff completed the five day detoxification period, on June 29, 1993, he was evaluated by C. Jackson-White, a physician’s assistant at the Newington VAMC. [See id. at 127.] Plaintiff testified that during this evaluation he told Jackson-White that he was “angry” about the care he received in connection with his stomach surgery at the West Haven VAMC and that Jackson-White suggested a couple of options to resolve plaintiff’s anger, one of which was to go file a claim. [FN8] [See id. at 54.] Plaintiff stated that after this conversation with Jackson-White he immediately went to see Robert Machia, the veterans benefits counselor at the Newington VAMC. [See id. at 59.]

FN7. Plaintiff received treatment for his alcoholism on two prior occasions, in 1980 and 1987. [See id. at 49-50.]

FN8. Jackson-White denied ever having a conversation with plaintiff regarding his stomach surgery or ever suggesting that plaintiff sue the government because of his treatment. [See id. at 139-40.]

Plaintiff testified that he went to Machia’s office because he wanted to sue the government and believed that “it would be the only thing that would probably straighten [him] out a little bit, [by] tak[ing] away some of the rage and anger that [he] had.” [Id. at 60.] Plaintiff stated that he told Machia that he wanted to sue the government for releasing him from the West Haven VAMC when the doctors there knew he had peritonitis. [See id.] Machia filled out a form for a service-connected disability claim, which plaintiff signed and dated. [See id. at 61-2.] Plaintiff testified that he questioned Machia as to why he was applying for service-connected disability when plaintiff knew that wasn’t what he was asking for. [See id. at 64.] Plaintiff stated that Machia responded that the claim would be denied quickly and that it would help plaintiff out when he brought suit against the government. [See id.] Once the claim came back denied, plaintiff testified that Machia told him he would then see someone else to help him sue. [See id. at 65.] Plaintiff stated that at no point did any VA benefits counselors or other personnel tell him how to file a tort claim against the government, provide him with the necessary forms to bring a tort claim, or refer him to anyone who would be able to advise him on bringing suit against the government. [See id. at 72-74.]
Machia did not recall the details of his meeting with plaintiff, and based on the form he filled out he was unable to remember discussing plaintiff’s right to file a tort claim with him. [See id. at 160.] Machia testified that he had never advised a veteran that he needed to file a disability claim prior to filing a tort claim, or that it would be advantageous to do so. [See id.] Machia also testified that he never provided *91 tort claim forms to veterans and would refer those who wanted to pursue a torts claim against the government to the patients’ advocate. [See id. at 155.]
Plaintiff’s claim form was returned denied in November 1995. [See id. at 65.] Plaintiff testified that he would call or stop by Machia’s office regularly to check up on the status of his claim, and eventually resorted to calling the regional office to find out about his claim. [See id. at 69.] Machia testified that he was unable to recall whether plaintiff came in after June 29, 1993, to check on the status of his claim. [See id. at 161.]
In the summer of 1994, plaintiff consulted with counsel regarding an unrelated employment matter. [See id. at 67.] During this discussion, plaintiff told counsel about his treatment at the West Haven VAMC during and after his stomach surgeries. [See id.] Plaintiff testified that this discussion was the first time he learned what a tort claim was. [See id.] Shortly thereafter, on September 22, 1994, plaintiff filed Standard Form 95 (“SF-95″) initiating a tort claim against the government. [Pl. Exhs. 12, 13.] The Department of Veterans Affairs denied plaintiff’s claim as time barred on March 17, 1995.
On September 13, 1995, plaintiff commenced this action.
I. Law of the Case Doctrine
The government argues that, because Judge Margolis previously ruled on whether equitable tolling would be appropriate in this case, this court is barred from reopening the issue under the law of the case doctrine. [Doc. # 28.]
The law of the case doctrine provides that “a legal decision made at one stage of litigation, unchallenged in a subsequent appeal when the opportunity to do so existed, becomes the law of the case for future stages of the same litigation, and the parties are deemed to have waived the right to challenge that decision at a later time.” North River Ins. Co. v. Philadelphia Reinsurance Corp., 63 F.3d 160, 164 (2d Cir.1995), cert. denied 516 U.S. 1184 (1996) (citing, Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 250 (D.C.Cir.1987)). The doctrine does not limit or prohibit the court’s power to revisit those issues; it “merely expresses the practice of courts generally to refuse to reopen what has been decided.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817, 108 S.Ct. 2166, 2178, 100 L.Ed.2d 811 (1988) (quoting Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912)); see also LNC Investments, Inc. v. First Fidelity Bank, N.A., 173 F.3d 454, 467 n. 12 (2d Cir.1999). However, “a court should be loath to revisit an earlier decision in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would work a manifest injustice.” North River, 63 F.3d at 165 (quoting Christianson, 486 U.S. at 817, 108 S.Ct. 2166, internal quotation marks omitted).

The doctrine “seeks to ensure fair treatment of the parties and to promote judicial efficiency and finality of the proceedings by avoiding duplicative decisionmaking.” Natural Resources Defense Council, Inc. v. Fox, 30 F.Supp.2d 369, 374 (S.D.N.Y.1998).See also Remington Products, Inc. v. North American Philips Corp., 755 F.Supp. 52, 54 (D.Conn.1991). A court may reconsider a prior ruling under three situations: 1) an intervening change in the controlling law; 2) the availability of new evidence; and 3) the need to correct a clear error of law or to prevent manifest injustice. See DiLaura v. Power Auth. of State of New York, 982 F.2d 73, 76 (2d Cir.1992); *92Washington Nat’l Life Ins. Co. of New York v. Morgan Stanley & Co., Inc., 974 F.Supp. 214, 218-9 (S.D.N.Y.1997).
A. Development of a More Complete Record
In this case, the court believes that two separate grounds make the law of the case doctrine inapplicable. First, as the court observed in Washington Nat’l Life Ins., “a court may revisit the law of the case where new evidence has surfaced or a more complete record has developed.” 974 F.Supp. at 219. See also, Tischmann v. ITT/Sheraton Corp., 1997 WL 195477, *5 (S.D.N.Y.), aff’d 145 F.3d 561 (2d Cir.1998), cert. denied 525 U.S. 963, 119 S.Ct. 406, 142 L.Ed.2d 329 (1998) (Finding that the law of the case doctrine inapplicable where a “bit of new evidence regarding the administrative scheme … was adduced at trial in the form of testimony ….”); Pineiro v. Pension Benefit Guar. Corp., 1999 WL 195131, * 2 (S.D.N.Y.) (court took a “fresh look” at prior decision after further information was presented in the amended complaint). Here, a more complete record was developed through the trial process. [FN9] It only became apparent then that the evidence on which Judge Margolis made her decision on the issue of equitable tolling was incomplete. For example, she did not have the benefit of knowing plaintiff’s prior history of working with the VA benefits counselors, all the details surrounding plaintiff’s alleged attempt to initiate legal proceedings against the government, [FN10] and information regarding whether plaintiff knew how to file a tort claim against the government. All of this information is relevant to evaluating plaintiff’s diligence in pursuing his rights and deciding if plaintiff received adequate notice regarding the proper procedure to perfect his tort claim against the government.

FN9. Although more detailed summary judgment responses by plaintiff could have provided the court with information which could have resulted in Judge Margolis leaving the equitable tolling issue open, this court recognizes that the form of a summary judgment response often is not conducive to laying out a detailed history of the case or evaluating the credibility of various witnesses.

FN10. For example, although Machia testified that he normally told veterans that they had the option to file both a tort claim and a service connected disability claim, he did not recall what information he provided

to plaintiff. Machia also admitted that based on what he wrote on plaintiff’s disability form, “they removed half of my stomach because they thought I had cancer, but it was not so,” would have a “logical interpretation that somebody screwed up at the hospital.” [Doc. # 71 at 170.] This court believes that this provides substantial evidence that the government was aware that plaintiff had a potential tort claim against the government and a strong argument that plaintiff was attempting to initiate a tort claim against the government during his June 29, 1993, meeting with Machia.

Along with the fact that many of the surrounding circumstances were not before Judge Margolis, she was faced with the difficult task of deciding the issue without assessing credibility. [FN11] It was only *93after this court was able to hear testimony from all of the witnesses that it was able to make a credibility determination on issues crucial to deciding whether plaintiff acted reasonably and diligently, and whether the VAMC fulfilled its duty to plaintiff in providing him with the information necessary to pursueIndependent Order of Foresters v. Donald, Lufkin & Jenrette, Inc.,a tort claim against the government. This court now believes that these are material questions of fact which should not have been decided at the summary judgment stage. See  157 F.3d 933, 942 (2d Cir.1998) (genuine issues of material fact regarding the equitable tolling issue precluded district court’s grant of summary judgment on limitations grounds); Eidshahen v. Pizza Hut of America, Inc., 973 F.Supp. 113, 116 (D.Conn.1997)(denying summary judgment because question of fact whether the statute of limitations was equitably tolled).

FN11. The Second Circuit has repeatedly cautioned trial courts not to make credibility determinations at the summary judgment stage, and to limit themselves to deciding whether there are issues of material fact. See Vital v. Interfaith Med. Ctr., 168 F.3d 615, 621-22 (2d Cir.1999); Rodriguez v. City of New York, 72 F.3d 1051, 1061 (2d Cir.1995) (listing cases). It is the finder of fact who must assess the credibility of witnesses during trial. See Vital, 168 F.3d at 622; Rodriguez, 72 F.3d at 1061See also Danzer v. Norden Sys., Inc., 151 F.3d 50, 57 (2d Cir.1998) (In the context of a motion for summary judgment on discrimination claim, the “issue frequently becomes one of assessing the credibility of the parties … [which] is necessarily resolved in favor of the nonmovant;” to hold otherwise would turn a summary judgment motion into an “adjudication of the merits.”).

The additional information available to the trial court expanded the record reviewed by Judge Margolis and allowed a more complete and thorough analysis of the equitable tolling issue than would have been possible in the summary judgment context.
B. The Need to Prevent Manifest Injustice
The court is also persuaded that it must revisit the issue of equitable tolling in order to prevent manifest injustice. One of the exceptions to the law of the case doctrine is the “need to correct a clear error of law or to prevent manifest injustice.” DiLaura v.. Power Auth., 982 F.2d 73, 76 (2d Cir.1992). See also Agostini v. Felton, 521 U.S. 203, 236, 117 S.Ct. 1997, 2017, 138 L.Ed.2d 391 (1997); Doctor’s Assocs., Inc. v. Distajo, 107 F.3d 126, 131 (2d Cir.1997), cert. denied 522 U.S. 948, 118 S.Ct. 365 (1997); Virgin Atlantic Airways, Ltd. v. Nat. Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.1992), cert. denied 506 U.S. 820, 113 S.Ct. 67, 121 L.Ed.2d 34 (1992).
The court reaches this conclusion upon consideration of the record as a whole and after weighing the credibility of the witnesses at trial. As discussed above, critical facts regarding plaintiff’s knowledge and understanding of his rights to file a tort claim against the government, the VAMC benefits counselors’ failure to fulfill their duty to plaintiff in providing him the proper paperwork to perfect his claim, the VAMC staff’s knowledge of the potential tort claim, and the on-going history between plaintiff and the VAMC staff regarding the filing of benefit claims were all developed more fully during trial. It became apparent that the previous ruling declining to equitably toll the statute of limitations was premature, as the court could not have considered all of the circumstances and the actions of the parties in dismissing the claim on statute of limitations grounds. See DiLaura v. Power Auth., 982 F.2d 73, 77 (2d Cir.1992) (“[T]he doctrine of law of the case permits a change of position if it appears that the court’s original ruling was erroneous.” (citations omitted)). See also Independent Order of Foresters, 157 F.3d at 942; Eidshahen, 973 F.Supp. at 116. After hearing evidence not available to Judge Margolis, this Court finds it would work a manifest injustice to adhere to the prior ruling, the effect of which would be to deny plaintiff a full opportunity to present his claims. Thus, the question of whether the statute of limitations was equitably tolled must be reconsidered.
II. Equitable Tolling[

Under the FTCA, a claim against the government is “forever barred unless it is presented in writing to the appropriate federal agency within two years after such claim accrues or unless action is begun *94 within six months after the date of mailing … of notice of the final denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b). In order to be presented in writing, a claim for personal injury must use the government’s SF 95, unless the “agency is given sufficient written notice of the circumstances of the underlying incident to enable it to investigate the claim and respond by settlement or defense.” Blue v. United States, 567 F.Supp. 394, 397 (D.Conn.1983) (adopting the Fifth Circuit’s reasoning in Adams v. United States, 615 F.2d 284, 289 (5th Cir.1980), clarified, 622 F.2d 197, 197 (5th Cir.1980)). “In most circumstances, adequate notice must include both a statement of the factual details of the underlying incident and a demand for a sum certain in damages.” See id.
In the case at bar, there is no dispute that plaintiff failed either to submit the SF 95 or provide a “demand for a sum certain” to the appropriate agency within the two years after his claim accrued. However, based on the West Haven VAMC reports, [FN12] plaintiff’s June 29, 1993, claim for service-connected disability benefits and a letter from the Chief of Staff at the West Haven VAMC to plaintiff discussing the hospital’s own investigation, [FN13] the government had complete notice of the facts and circumstances surrounding plaintiff’s surgeries and subsequent discharge from the hospital well within two years of that discharge. Plaintiff submitted a SF 95 and an amended SF 95 on September 22, 1994, more than two years after his discharge from the hospital and his discovery that he did not have cancer. [Pl. Exs. 12, 13.] Since plaintiff did not provide statutorily adequate notice to the agency within two years, the question that must be answered is whether the statute of limitations was extended by the doctrine of equitable tolling.

FN12. Department of Veterans Affairs Rating Decision Report, dated

October 23, 1995. [Plaintiff’s Exhibit 11].

FN13. Letter from Colin Atterbury, dated October 8, 1992. [Plaintiff’s Exhibit 14.] (Indicating that hospital undertook independent investigation into plaintiff’s case. Hospital reviewer “concluded that the problem that occurred could have been identified prior to discharge” and suggesting “most physicians would have handled the case differently.” ).

Equitable tolling allows a plaintiff to sue after the “statutory time period has expired if they have been prevented from doing so due to inequitable circumstances.”Stanfill v. United States, 43 F.Supp.2d 1304, 1307 (M.D.Ala.1999). See also Iavorski v. United States Immigration and Naturalization Serv., 232 F.3d 124, 129 (2d Cir.2000) (“A statute of limitations may be tolled as necessary to avoid inequitable circumstances.”). The doctrine of equitable tolling is “applied as a matter of fairness where a plaintiff has been prevented in some extraordinary way from exercising his rights.” James v. United States of America, 2000 WL 1132035, *2 (S.D.N.Y.), citing Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir.1996).
The Supreme Court in Irwin v. Dep’t of Veterans Affairs, found that the principle of equitable tolling should apply to cases against the government brought under statutes that waive sovereign immunity. 498 U.S. 89,95-96, 111 S.Ct. 453, 457-58, 112 L.Ed.2d 435 (1990). Although the Second Circuit has not directly addressed the issue, many federal courts have found that the statute of limitations found in the FTCA may be equitably tolled. See, e.g., Perez v. United States, 167 F.3d 913 (5th Cir.1999); Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir.1996); *95 Glarner v. United States Dep’t of Veterans Admin., 30 F.3d 697, 701 (6th Cir.1994); Krueger v. Saiki, 19 F.3d 1285, 1286 (8th Cir.1994), cert. denied, 513 U.S. 905, 115 S.Ct. 269, 130 L.Ed.2d 187 (1994)de Casenave v. United States, 991 F.2d 11, 13 (1st Cir.1993); Hyatt v. United States, 968 F.Supp. 96, 101 (E.D.N.Y.1997).
When assessing whether equitable tolling is appropriate in an action against the government, the Irwin Court stated:
federal courts have typically extended equitable relief only sparingly. We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass. We have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights…. [T]he principles of equitable tolling described above do not extend to what is at best a garden variety claim of excusable neglect.
498 U.S. at 96, 111 S.Ct. at 457-58. Although the Supreme Court in Irwin offered specific examples of when equitable tolling should be applied, the lower courts have not restricted the doctrine to those situations.

Equitable tolling does not require any misconduct on the part of the defendant. See Canales v. Sullivan, 936 F.2d 755, 758 (2d Cir.1991) (rejecting the position that equitable tolling is permitted only in situations involving misconduct). See also Stanfill v. United States, 43 F.Supp.2d 1304, 1309 (M.D.Ala.1999), citing, Browning v. AT & T Paradyne, 120 F.3d 222, 226 (11th Cir.1997). “A claimant need not necessarily show affirmative misconduct to avail himself of equitable tolling; rather, he must show that a failure to meet a filing deadline was, in a phrase, out of his hands.” Bartus v. United States, 930 F.Supp. 679, 682 (D.Mass.1996).

Courts have found that the failure of VA staff to provide a claimant with SF 95 violates a legal duty owed to the claimant by the government. See Glarner, 30 F.3d at 701; James v. United States, 2000 WL 1132035, *3 (S.D.N.Y.). The failure to provide claimants with a SF 95 when VA officials learned of the potential tort claim tolls the statute of limitations until the claimant was actually informed of the proper filing requirements. See id. at *4. In so holding, these courts relied upon 38 C.F.R. § 14.604(a), promulgated by the Department of Veterans Affairs, which provides:
Each person who inquires as to the procedure for filing a claim against the United States, predicated on a negligent or wrongful act or omission of an employee of the [VA] acting within the scope of his or her employment, will be furnished a copy of SF 95, Claim for Damage, Injury, or Death. The claimant will be advised to submit the executed claim directly to the Regional Counsel having jurisdiction of the area wherein the occurrence complained of took place. Id.
This court agrees with the reasoning of the Glarner and James courts that when VA officials knew that a claimant wanted to file a tort claim against the government, the failure to provide SF 95 to him violated a duty owed to the claimant. Here, there is no disagreement that VA employees failed to provide plaintiff with the SF 95 or inform him of the requirements for filing a tort claim against the government. Although VA officials may argue that they did not know plaintiff wanted to bring suit against the government (and there was evidence that plaintiff was ambivalent *96 about suing the government), the Court finds that, when plaintiff tried to file a claim on June 29, 1993, VA employees had the requisite knowledge that plaintiff was attempting to initiate legal proceedings against the hospital. On this date, the VAMC had a duty to provide plaintiff with the proper paperwork to file a tort claim. Their failure to do so tolled the statute of limitations until plaintiff reasonably became aware of the filing requirements.
This court was also persuaded by the evidence presented at trial that, until he consulted counsel, plaintiff did not have adequate notice of the proper filing requirements to begin a tort claim against the government. As Judge Margolis noted in her ruling, one of the bases for allowing equitable tolling is that “the claimant has received inadequate notice.” The Court finds that the lack of adequate notice provides an additional ground to toll the statute of limitations until the date plaintiff reasonably became aware of the filing requirement. As discussed above, it became clear during the course of trial that no VA employee apprised plaintiff of the procedures he would have to follow to file a tort claim against the government, even though plaintiff discussed the possibility of filing a tort action with his counselors. Although it is undisputed that plaintiff did not ask VA benefits counselors how to file a tort claim, or attempt to initiate a malpractice action until June 29, 1993, there is no evidence that he had actual or constructive knowledge of the filing requirements until he met with a lawyer in the summer of 1994. Plaintiff testified that he thought that he had completed the necessary paperwork on June 29, 1993, and had to wait for it to be denied and returned before he could pursue the claim in court. Given plaintiff’s history of working with VA benefits counselors in preparing claim forms, the Court finds that it was reasonable for plaintiff to believe that he was following a proper course of action in filing his malpractice claim.
The court does not believe that this plaintiff’s actions constituted a “garden variety claim of excusable neglect.” Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 458, 112 L.Ed.2d 435 (1990). Here, the VA benefits counselors violated a legal duty owed to plaintiff when they failed to provide him with an SF 95 after it became apparent that plaintiff wanted to pursue a malpractice claim against the government. Plaintiff also had inadequate notice as to the proper requirements for filing a tort claim.
After consideration of the record as a whole and the testimony of all of the witnesses at trial, the Court finds that the statute of limitations was equitably tolled from June 29, 1993, until the summer of 1994 when plaintiff became aware of the filing requirements, or for approximately one year. Since plaintiff filed his SF 95 on September 22, 1994, for a claim accruing in February 1992, plaintiff’s malpractice action against the government is not barred by the statute of limitations and may proceed.
For the reasons set forth in this ruling, plaintiffs’ Motion for Reconsideration [Doc. # 72] is GRANTED. The Clerk is directed to reopen the case for further proceedings in accordance with this ruling on plaintiff’s malpractice claim.

Casey v. U.S., 161 F.Supp.2d 86, (D.Conn. 2001)




United States Court of Appeals


Argued November 12, 2004 Decided January 14, 2005
No. 03-5182





Appeal from the United States District Court for the District of Columbia

(No. 02cv01743)

Oscar L. Thomas, pro se, filed briefs for appellant.

Pamela D. Huff, Assistant U.S. Attorney, argued the cause for appellees. With her on the brief were Kenneth L. Wainstein,

U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney.

Before: GINSBURG, Chief Judge, and TATEL and ROBERTS,Circuit Judges.

TATEL, Circuit Judge: The Veterans’ Judicial Review Act not only provides that the Secretary of Veterans Affairs “shall decide all questions of law and fact necessary to a decision . . . under a law that affects the provision of benefits,” but also bars district courts from reviewing such decisions. In this case, we must decide whether this provision deprives the district court of jurisdiction over an action brought pursuant to the Federal Tort Claims Act by a veteran asserting (among other things) that the VA failed to inform him that a VA doctor had diagnosed him with schizophrenia. Because adjudicating this claim would not require the district court to review a question “necessary to a decision . . . under a law that affects the provision of benefits,” we reverse the district court’s dismissal of the complaint and remand for further proceedings consistent with this opinion.


Reviewing the district court’s dismissal of the complaint for lack of subject matter jurisdiction and failure to state a claim, see Fed. R. Civ. P. 12(b)(1), (6), “we construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged.”  Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004) (internal quotation marks omitted). Viewed through that lens, the record reveals the following.

Appellant Oscar L. Thomas, following his honorable discharge from the United States Army, filed for mental and physical disability benefits with the Department of Veterans Affairs in 1989. Two years later, a VA doctor concluded that Thomas had “persistent auditory hallucinosis which is troubling, so a diagnosis of schizophrenia is the most likely correct diagnosis. Some of the other adjunct symptoms are not present, however, but this will be the working diagnosis for him.  He has slight social and industrial disability resulting from this.” The VA nevertheless denied Thomas’s claim, stating in a letter to him that a “final diagnosis was not made.”  Neither the rating decision nor the doctor’s report was mentioned in the letter or attached to it. See Thomas v. Principi, 265 F. Supp. 2d 35, 37

(D.D.C. 2003); see alsoAppellee’s Br. at 4.

Thomas pursued a variety of appeals and claims for benefits. Not until 1999, however, some eight years after the VA doctor saw him, did the VA reveal to Thomas that the doctor had diagnosed him with schizophrenia.  Alleging that the VA had wrongfully withheld notice of his diagnosis, thereby severely limiting his ability to pursue his livelihood, Thomas appealed to the Board of Veterans’ Appeals. That appeal remains pending.

In 2001, Thomas filed an administrative tort claim—a prerequisite to bringing suit under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2675(a). Like Thomas’s appeal to the Board, this claim asserted that the VA’s failure to disclose the schizophrenia diagnosis and to treat him resulted in greater medical problems, denial of state and federal benefits, and loss of income, including earning capacity. Although the administrative tort claim also remains pending, the VA is deemed to have finally denied the claim because it failed to “make a final disposition of [the] claim within six months after it [was] filed.” See id.see also Thomas, 265 F. Supp. 2d at 38.

Acting pro se, Thomas filed suit in the United States District Court for the District of Columbia, alleging that the VA had committed medical malpractice and caused him intentional emotional distress by failing to inform him of the working diagnosis of schizophrenia.  In addition to these FTCA claims, the forty-four-page complaint alleges Privacy Act violations, constitutional violations by the VA and several VA employees, defamation, fraud, loss of consortium, and estoppel.  In his prayer for relief, Thomas requested compensatory and punitive damages of over one billion dollars from both the government and individual VA employees.

The VA moved to dismiss, or alternatively for summary judgment. Among other things, the VA argued that Thomas’s FTCA claim was jurisdictionally barred by 38 U.S.C. § 511, which prohibits district courts from reviewing “all questions of law and fact necessary to a decision by the Secretary [for Veterans Affairs] under a law that affects the provision of benefits by the Secretary to veterans.”

The district court agreed with the VA, granting its motion to dismiss the FTCA claims for lack of subject matter jurisdiction. 265 F. Supp. 2d at 41.  Reasoning that “the gravamen of plaintiff’s claim is that [the VA] . . . failed to treat [him] . . . for schizophrenia . . . and other medical conditions,” the district court found that judicial review “would require the Court to second-guess medical judgments made by DVA.” Id. at 39. Thus, “[a] favorable decision as to plaintiff’s claims would entail a finding that defendants should have provided a particular quantum of medical treatment to plaintiff that they did not in fact provide . . . . [S]uch a finding is flatly forbidden by § 511.” Id. at 39.

Via the same analysis, the district court dismissed Thomas’s Privacy Act and constitutional claims for lack of subject matter jurisdiction. Id. at 39-40. Finding that Thomas’s defamation and fraud claims, though perhaps permissible under section 511, were excluded from the FTCA’s sovereign immunity waiver, the district court dismissed these claims as well. Id. at 40. Finally, the court denied Thomas’s request for leave to amend his complaint to add (1) a Privacy Act claim against the Assistant United States Attorney for discussing Thomas’s medical records in the VA’s motion to dismiss, (2) another tort claim against the VA for failure to “diagnose, inform, warn, or treat,” and (3) a legal malpractice claim against Thomas’s former legal representatives for failing to give him documents sent to them by the VA. Id. at 40 n.5.

Following Thomas’s timely appeal, we appointed amicus curiae, who has ably briefed and argued Thomas’s FTCA claims. We consider those claims in Part II and Thomas’s other claims in Part III.


The VA argues that the “District court properly granted summary judgment in favor of the government [because] Thomas did not provide any evidence that the VA’s action were [sic] wrongful.” Appellee’s Br. at 9. This argument suffers from two defects. First, it rests on an incorrect premise. The district court did not grant summary judgment for the government. Instead, it dismissed Thomas’s complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).  The government did file a motion for summary judgment as an alternative to its motion to dismiss, but the district court granted only the latter. Second, Thomas’s failure to “provide any evidence” is hardly surprising given that the district court’s ruling preceded discovery, mooting Thomas’s motion to commence discovery.

Both in its brief and at oral argument, the VA also suggested that Thomas may not in fact suffer from schizophrenia. The VA, however, does not deny that for eight years it failed to advise Thomas of the working diagnosis of schizophrenia, and whether or not Thomas actually suffers from schizophrenia is a question the district court will have to resolve if it has jurisdiction over Thomas’s FTCA claim. We now turn to that jurisdictional issue.

Section 511 provides:

The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. . . . [T]he decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.

38 U.S.C. § 511. Other provisions of the Act demarcate the path to appellate review of secretarial benefits decisions: claimants may first appeal to the Board of Veterans’ Appeals, id. § 7104(a), then to the Court of Appeals for Veterans’ Claims, id. § 7252(a), to the Federal Circuit, id. § 7292(c), and ultimately to the Supreme Court, id.

According to the VA, “[f]ederal courts construing the predecessors to section 511 have consistently recognized that the statute barred district court consideration of individual claims for veterans’ benefits.” Appellee’s Br. at 11. True enough, but our task here is to determine whether Thomas has presented any such claims.

We have addressed section 511’s scope only once.  In Price

v. United States, we held that “the district court lacked jurisdiction to consider [appellant’s] federal claim because underlying the claim is an allegation that the VA unjustifiably denied him a veterans’ benefit.”  228 F.3d 420, 421 (D.C. Cir. 2001) (per curiam).  Assuming appellant’s damages claim was cognizable under a Florida tort statute, we found that the Florida cause of action depended on whether the insurer—in that case the VA—had acted in bad faith. Id. at 422. Reasoning that a “determination whether the VA acted in bad faith or with negligence would require the district court to determine first whether the VA acted properly in handling Price’s request for reimbursement,” we concluded that section 511 foreclosed judicial review. Id.

Applying Price to the facts of this case, we must determine whether adjudicating Thomas’s claims would require the district court “to determine first whether the VA acted properly in handling” Thomas’s benefits request. Id. Given that we hold pro se complaints “to less stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), and giving Thomas the benefit of all inferences, as we must at this stage of the litigation, we think he has alleged at least some VA actions that the district court can adjudicate without “determin[ing] first” whether Thomas was entitled to a certain level of benefits.

For example, Count III, alleging intentional infliction of emotional distress, states that “Defendants [sic] outrageous conduct in covering up the presence of a diagnosis of Schizophrenia with slight social and industrial disability because of this, for more than 10 years, was intentionally and recklessly directed at Plaintiff.” Compl. ¶ 31. Count V, labeled “Gross Negligence, Medical Negligence, and Legal Misconduct,” alleges that defendants negligently “failed to inform Plaintiff of the diagnosis, and about the risk of an untoward outcome.” Compl. ¶ 62. Similarly, Count X, entitled “Medical Malpractice,” alleges that

[e]ach of these defendants failed to take responsibility by not ensuring and taking time to communicate the risks and choices that were available to Plaintiff, e.g., the right to know, (1) you have been diagnosed with Schizophrenia with slight social and industrial impairment because of this,

(2) you have the choices of receiving medical treatment care from DVA, or to not receive treatment from DVA, and we let you make these choices; or inform Plaintiff that . . . ‘your claims for Schizophrenia is [sic] denied.’

Compl. ¶ 95. Because none of these claims alleges that the VA failed to pay for treatment (or even to provide for treatment), they raise no “questions of law [or] fact necessary to a decision by the Secretary under a law that affects the provision of benefits.” 38 U.S.C. § 511. The raised “questions of law and fact” relate to whether the alleged withholding of the diagnosis states a tort claim, and resolution of those questions is not “necessary” to the benefits determination. See id. Putting the issue inPrice’s terms, no denial of benefits “underl[ies]” Thomas’s failure-to-inform allegations.  See 228 F.3d at 421.

In reaching a different conclusion, the district court cited the regulatory definition of “benefit,” which includes “any . . . service, . . . entitlement to which is determined under laws administered by the Department of Veterans Affairs pertaining to veterans.” 38 C.F.R. § 20.3(e). But neither the district court nor the VA maintains that “service” spans so broadly as to encompass an alleged duty to inform.  Indeed, when pressed at oral argument, counsel for the VA agreed that if a VA doctor left a sponge inside a patient during surgery, section 511 would permit an FTCA malpractice suit in district court.  Reiterating our reliance onPrice, we reject any implication that all action or inaction by the VA represents a type of “service,” and therefore automatically constitutes a “benefit.”

To be sure, as amicus acknowledges, not all of Thomas’s tort allegations survive the standard articulated in Price. For example, Count X alleges that the VA “failed to render the appropriate medical care services that are delivered to alleviate a harmful medical condition, which is calculated to prevent, diagnose, correct, cure, alleviate, or prevent the worsening in the Plaintiff.”  Compl. ¶ 109. Likewise, Count III claims (among other things) that the VA’s “continuous and persistent deprivation and denial of known needed and necessary medical care treatment . . . caused Plaintiff severe emotional distress.” Compl. ¶ 29. Because adjudicating these allegations—failure to “render appropriate medical services” and “denial of . . . necessary medical care treatment”—would require the district court “to determine first whether the VA acted properly” in providing Thomas benefits, these claims are barred by section

511. See Price, 228 F.3d at 422. The district court’s lack of jurisdiction over these claims, however, has no effect on its ability to consider the non-benefits claims also raised in Counts III, V, and X.


Without benefit of amicus curiae, Thomas also challenges the district court’s dismissal of his Privacy Act and Bivens claims, as well as its denial of his motion for leave to amend. These arguments require little discussion.

As to Thomas’s Privacy Act claims, the district court correctly found them barred by section 511.  Unlike the FTCA claims, counts XI and XII allege only that the VA’s failure to maintain accurate and complete records adversely affected Thomas’s benefits determinations.

Thomas’s constitutional claims for money damages against VA employees are also barred.  Under Bivens, “special factors” may counsel “hesitation in the absence of affirmative action by Congress” establishing liability for the acts of individual government employees.  See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 396 (1971). “Special factors” include “an elaborate remedial system” constructed by Congress “with careful attention to conflicting policy considerations.” Bush v. Lucas, 462 U.S. 367, 388 (1983). Here, “the administrative process created by Congress provides for a comprehensive review of veterans’ benefits disputes. Further, Congress has explicitly precluded judicial review of veterans’ benefits disputes, which suggests that Congress’ failure to create a remedy against individual VA employees was not an oversight.” Zuspann v. Brown, 60 F.3d 1156, 1161 (5th Cir. 1995) (internal quotation marks omitted); accord Sugrue v. Derwinski, 26 F.3d 8, 12-13 (2d Cir. 1994). Because we agree with the Fifth Circuit that this combination forecloses a Bivens action against VA employees for constitutional torts in the context of a dispute over veterans’ benefits, we will affirm the district court’s dismissal of these claims.

Finally, reviewing for abuse of discretion, see Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam), we will also affirm the district court’s denial of leave to amend the complaint to add a legal malpractice claim against Thomas’s former legal representatives and another Privacy Act claim. See 265 F. Supp. 2d at 40 n.5.  As the district court noted, Thomas “remains free to assert [these] claims in a new action against the appropriate defendants.” Id. In light of our determination that the district court has jurisdiction over Thomas’s FTCA claims, however, we will remand his request to add a claim against the VA for “failure to diagnose, inform, warn, or treat,” 265 F. Supp. 2d at 40 n.5.  Once Thomas amends his complaint, the district court, applying Priceand this decision, will need to decide whether section 511 bars the additional allegation.


We reverse the dismissal of counts III, V, and X, as well as the denial of Thomas’s request to amend his complaint to add another tort claim, and remand for further proceedings consistent with this opinion. In all other respects, we affirm.

So ordered.



VA Found Responsible for Deaths of  4 Children After It Improperly Discharges Veteran Who Kills Family

CAMILLE DEJESUS, Individually and as : Administratrix of the Estate of Alejandro : CIVIL ACTION DeJesus, Jr., Deceased, and the Estate of : Felicia Lynne DeJesus, Deceased, et al. ::
v. ::

Diamond, J. July 26, 2005
On March 23, 1999, Alejandro DeJesus, Sr. shot and killed his children, Alejandro, Jr. and Felicia (ages eighteen and seven), and their friends, Michael and Aaron Faulk (ages sixteen and fourteen), and then committed suicide. The Veterans Administration Medical Center in Coatesville, Pennsylvania had been treating Mr. DeJesus since 1997 for severe mental problems – – including Intermittent Explosive Disorder – – drug addiction, and domestic abuse. The VA’s medical records underscored that Mr. DeJesus was a severely disturbed, unstable individual who was likely to commit acts of domestic violence when frustrated or unemployed. Nonetheless, the day before the murders, the VA agreed to expel Mr. DeJesus from its transitional residence and fire him from his employment there because, for no rational reason, he had attacked another resident with a knife. Remarkably, the VA agreed to the expulsion even though DeJesus’s Primary Therapist wanted him first to be evaluated by a Psychiatrist because she feared his expulsion might provoke him to an act of domestic violence.
In the instant case, the mothers of the murdered children have sued the VA, alleging that    in light of Mr. DeJesus’s severe mental illness and his violent, abusive history, the VA was    grossly negligent in discharging Mr. DeJesus or in failing to treat, detain, or commit him after the    knife fight.    Following a six day non-jury trial, I returned a verdict in favor of Plaintiffs. In    accordance with Federal Rule of Civil Procedure 52, I now offer my supporting factual findings    and legal conclusions.
On January 16, 2002, Plaintiffs Camille DeJesus and Cheryl Faulk, acting on behalf of themselves and the estates of their deceased children, filed suit under the Federal Torts Claims Act against the VA. See 28 U.S.C. § 1346(b)(1). Their Complaint included the following causes
of action:
Count I — the DeJesuses’ claims for the VA’s gross negligence in discharging or in failing to treat, detain, or commit Mr. DeJesus, and for failing to warn the DeJesuses that Mr. DeJesus was an imminent threat;
Count II — the Faulks’ claims for the VA’s gross negligence in discharging or in failing to treat, detain, or commit Mr. DeJesus, and for failing to warn the Faulks that Mr. DeJesus was an imminent threat;

Count III — a wrongful death claim on behalf of Alejandro DeJesus, Jr.;
Count IV — a wrongful death claim on behalf of Felicia Lynne DeJesus;
Count V — a wrongful death claim on behalf of Michael Brandon Faulk;
Count VI — a wrongful death claim on behalf of Aaron Ashanti Faulk;
Count VII — a survival claim on behalf of the estate of Alejandro DeJesus, Jr.;
Count VIII — a survival claim on behalf of estate of Felicia LynneDeJesus;
Count IX — a survival claim on behalf of the estate of Michael Brandon Faulk;
Count X — a survival claim on behalf of the estate of Aaron Ashanti Faulk;
Count XI — Mrs. DeJesus’s claim for negligent infliction of emotional distress; and
Count XII — Ms. Faulk’s claim for negligent infliction of emotional distress.
As required by statute, their lawsuit would be heard by me sitting without a jury. See 28 U.S.C.§§ 1346(b)(1), 2402.
The VA filed a Third Party Complaint against Landing Zone II Transitional Residence. LZ-II elected to have this third-party action heard by a jury. Upon the agreement of the parties, the non-jury trial against the VA would proceed first on liability, and then, if necessary, on damages. If necessary, the jury trial on the third-party Complaint against LZ-II would then proceed.
At Summary Judgment, I dismissed the Faulk and DeJesus failure to warn claims in Counts I through X, and Ms. Faulk’s claim for negligent infliction of emotional distress (Count XII).

I conclude that the VA was grossly negligent in agreeing to discharge or in failing to treat, detain, or commit Mr. DeJesus, and that it is liable to Mrs. DeJesus for negligent infliction of emotional distress.
During their depositions, all the VA professionals who treated Mr. DeJesus admitted to facts that underscored the VA’s appalling negligence in this matter. At trial, these same witnesses strove to undo, ignore, qualify, or evade their earlier testimony. In virtually all instances, I did not believe the witnesses’ revised versions, and instead credited their deposition admissions. See Davis v. United States Steel Supply, Civ. No. 80-2571, 1981 U.S. App. LEXIS 17407, at *20-*22 (3d Cir. Sep. 24, 1981) (allowing the crediting of deposition designations and documentary evidence over live testimony); see also FED. R. CIV. P. 52(a). My factual findings are based in no small part on these and other credibility determinations. Perhaps the most striking deficiency in the VA’s treatment of Mr. DeJesus was the failure of any VA professional to familiarize him or herself fully with the VA’s own medical history of Mr. DeJesus. For instance, Mr. DeJesus’s Primary Therapist did not know that a VA Psychologist had diagnosed Mr. DeJesus with Intermittent Explosive Disorder. A VA Psychiatrist confirmed this diagnosis, and prescribed a psychotropic drug to moderate Mr.DeJesus’s explosive episodes. A second VA Psychiatrist who treated Mr. DeJesus for depression, however, did not know of the Intermittent Explosive Disorder diagnosis or the psychotropic medication. Mr. DeJesus’s Treating Psychologist did not know that a VA Therapist had reported his concern at Mr. DeJesus’s too-sanguine description of an earlier incident, when he shot and killed an individual. As a result of this universal ignorance of Mr. DeJesus’s mental condition, no one at the VA knew just how disturbed and dangerous Mr. DeJesus was. Significantly, trial evidence underscored that the critical decisions respecting Mr. DeJesus’s expulsion from the LZ-II facility were made by the VA itself. Although LZ-II is a privately run transitional residence, the evidence showed quite clearly that it is a VA creation, receives its funding exclusively from the VA, operates exclusively on VA property, and exists solely to serve VA patients. No one at the VA ever informed LZ-II’s staff of Mr. DeJesus’s mental condition. On the contrary, Mr. DeJesus’s primary VA Therapist had unintentionally misled LZ-II staff, informing them that he was suffering from no mental illness when exactly the opposite was true. The VA had structured LZ-II so it would rely entirely upon the VA for all medical and psychological diagnoses and treatment. Accordingly, no one on LZ-II’s staff had medical or psychological training. My view of the evidence — especially the testimony of the LZ-II witnesses — leads me to find that although LZ-II staff thought to expel Mr. DeJesus after the March 22nd knife incident, LZ-II looked to the VA to determine the advisability of such action. In these circumstances, the VA effectively made the decision to expel Mr. DeJesus, as well as the decision not to treat, detain, or commit him — decisions that had tragic consequences.

Finally, Plaintiffs presented the expert testimony of Dr. Robert Lloyd Goldstein. With a
medical degree from the University of Chicago, a law degree from Columbia University, and a wealth of professional and academic experience, Dr. Goldstein is exceptionally well qualified to offer expert opinions respecting the evaluation, treatment, and detention of dangerous patients. Dr. Goldstein set out numerous instances in which the VA grossly breached the required standards of care respecting Mr. DeJesus. I found his testimony and report to be credible and compelling. The expert relied upon by the VA is an osteopath who is the Medical Director of a local Crisis Response Center. I found her testimony and report to be equivocal and far less persuasive. Yet, even the VA’s expert agreed with a number of Dr. Goldstein’s conclusions respecting the VA’s mistakes.

A. The Relationship Between Mr. And Mrs. DeJesus and Mr. DeJesus’s Early History of
Domestic Violence and Mental Illness
Camille and Alejandro DeJesus, Sr., were married in Brooklyn, New York in 1975 and
had three children: Alejandro, Jr., Candida, and Felicia. (1.129-1.130). From the beginning of their marriage, Mr. DeJesus, a veteran of the United States Navy, used cocaine and heroin.
(1.130-1.131, 1.134; Stipulated Facts ¶ 1). In 1986, after Mrs. DeJesus tried unsuccessfully to persuade Mr. DeJesus to stop using drugs, she left him and took her children with her to stay with relatives in upstate New York . (1.132). She told Mr. DeJesus that if he did not stop using drugs, he could not rejoin the family. (1.133). Mr. DeJesus gave up drugs and rejoined his family. (1.133).
In 1992, hoping for a new start, the entire family moved to Media, Pennsylvania.
Unfortunately, Mr. DeJesus began to abuse his wife and children, striking them with his hands, brooms, or belts, leaving them with bruises, welts, and swelling. (1.137, 1.149; 1.185-1.187;
2.184-2.185). In January 1996, the abuse escalated when Mr. DeJesus choked Mrs. DeJesus and pushed her to the floor. (Stip. Facts, ¶ 2; 1.138-139). Mrs. DeJesus left her husband, and took her children to live with her brother and sister-in-law. (1.138-140).
In May 1996, Mrs. DeJesus moved out of her brother’s home and rented an apartment in
Media for herself and her two daughters. (1.141). There, the DeJesuses became close friends with their neighbors, the Faulks. (1.141). Alejandro, Jr. initially remained with Mr. DeJesus (2.188). During the course of the next year, Mrs. DeJesus and her daughters saw Mr. DeJesus infrequently. (1.143). Frustrated after the separation, Mr. DeJesus resumed his heroin use, and continued hisviolent behavior. (1.134-1.35). In April 1997, Mrs.DeJesus phoned the police after Mr. DeJesus struck her (1.143). In May 1997, Mr. DeJesus again went to his wife’s apartment and attacked
her. (1.144). Although Mr. DeJesus was carrying a knife and a gun (which he was licensed to carry), he never used the weapons. (1.145; Stip. Facts ¶ 5). When Alejandro Jr. sought to protect Mrs. DeJesus, Mr. DeJesus struck and pushed his son into a table and onto the floor. (1.144). Mrs. DeJesus notified the police, who arrested Mr. DeJesus. (1.144, 1.145, 1.147; G-1;
Stip. Facts ¶¶ 7, 8). Mrs. DeJesus also obtained a Protection from Abuse Order that prohibitedMr. DeJesus from coming near her apartment or Felicia’s school. (1.147-1.148). While incustody, Mr. DeJesus tried to commit suicide. (P-50; 5.65).
The Protection Order notwithstanding, Mr. DeJesus again appeared at Mrs. DeJesus’s
apartment after he was released from custody. (1.149). She told him to leave and called the
police. (1.149). Mrs. DeJesus and the children then ceased routine communications with Mr.DeJesus. (1.149.) Isolated from his family, Mr. DeJesus’s mental condition and drug addiction
worsened, and he became homeless, living in a shelter in Chester, Pennsylvania. (1.150).
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B. Mr. DeJesus Seeks Help From the Veterans Adminsitration
Hoping to reconcile with his family, in September 1997 Mr. DeJesus entered the Veterans
Administration Medical Center in Coatesville, Pennsylvania. (3.128; Stip. Facts ¶ 9). The
VAMC is a specialty referral facility that treats veterans from Pennsylvania, Delaware, and New
Jersey. (Stip. Fact. ¶¶ 10, 11).
The VA initially assigned Mr. DeJesus to its Homeless Domiciliary Program, which
provides homeless veterans with medical and psychiatric care, substance abuse treatment,
vocational evaluation and conditioning, and job placement. (Stip. Fact. ¶¶ 12, 13, 14). Since
1989, Stephen Chambers – – a licensed psychologist with a doctorate in psychology — has headed
the Domiciliary. (4.12; G- 49). The staff at the Domiciliary includes physicians, physician’s
assistants, registered nurses, psychologists, dieticians, social workers, physical therapists,
vocational rehabilitation specialists, and addiction counselors. (Id.). The staff seeks to develop
treatment plans that address each patient’s problems. (Stip. Fact. ¶ 15).
Mrs. DeJesus approved of her husband’s decision to seek help, and remained willing to
reconcile with him if his conduct improved. (1.151). She remained cautious, however, and did
not visit Mr. DeJesus during his entire stay at the VAMC facilities. (1.151). Rather, she had
periodic telephone conversations with her husband, who occasionally wrote to their daughter
Candida. (1.190). The calls and the letters were affectionate, and included nothing threatening.
C. VA’s Initial Diagnoses of Mr. DeJesus’s Mental Condition
At the Domiciliary, Dr. Edward Moon, a licensed psychologist, was Mr. DeJesus’s initial
Case 2:02-cv-00253-PD Document 99 Filed 07/26/2005 Page 8 of 40

Treating Psychologist. (3.29-3.43). In 1999, Dr. Christopher Ray succeeded Dr. Moon as
Treating Psychologist. (4.95-4.97). Dr. Moon diagnosed Mr. DeJesus with Intermittent
Explosive Disorder, cocaine dependence and remission, and mood disorder. (P-2; 3.29-3.43).
Dr. Moon based his diagnosis on the DSM-IV — the standard guide used to diagnose psychiatric
disorders — which describes Intermittent Explosive Disorder as follows:
The essential feature of Intermittent Explosive Disorder is the
occurrence of discrete episodes of failure to resist aggressive
impulses that result in serious assaultive acts or destruction of
property. The degree of aggressiveness expressed during an
episode is grossly out of proportion to any provocation or
precipitating psychosocial stressor. A diagnosis of Intermittent
Explosive Disorder is made only after other mental disorders that
might account for episodes of aggressive behavior have been
ruled out (e.g., Antisocial Personality Disorder, Borderline
Personality Disorder, a Psychotic Disorder, a Manic Episode,
Conduct Disorder, or Attention Deficit/Hyperactivity Disorder).
The aggressive episodes are not due to the direct physiological
effects of a substance . . . or a general medical condition. . . . The
individual may describe the aggressive episodes as “spells” or
“attacks” in which the explosive behavior is preceded by a sense
of tension or arousal and is followed immediately by a sense of relief.
Later the individual may feel upset, remorseful, regretful, or
embarrassed about the aggressive behavior.
. . . Signs of generalized impulsivity or agressiveness may be present
between explosive episodes. Individuals with narcissistic, obsessive,
paranoid, or schizoid traits may be especially prone to having explosive
outbursts of anger when under stress. The disorder may result in job
loss, school suspension, divorce, difficulties with interpersonal
relationships, accidents . . ., hospitalization . . ., or incarcerations.
(P-13 (DSM-IV § 312-24). Although it is difficult to determine when Intermittent Explosive
Disorder will manifest, it is usually in response to a specific “triggering” event. (1.16; P-13
(DSM-IV § 312-24). The afflicted individual may be calm between episodes, or may “exhibit
some violence or impulsivity at a lower level,” but when “triggered,” he will undergo “outbursts”

and periods of “extreme aggressiveness.” (1.16).
In his discussions with Dr. Moon, Mr. DeJesus described his violent, abusive,
relationship with his family. (3.30). Mr. DeJesus was tearful and emotional when he spoke
about his family. (3.32-3.33). Dr. Moon identified Mr. DeJesus’s aggression and abuse of his
family as symptoms of Intermittent Explosive Disorder, and noted that stressful interactions with
his family often “triggered” his rage. (P-2(b); 3.35-3.39). Dr. Moon also observed that and Mr.
DeJesus “connected domestic violence with unemployment and frustration.” (3.78). Dr. Moon
further recognized that for persons with Intermittent Explosive Disorder, “the best predictor of
future behavior is past behavior,” because “there is a pattern” of repeated conduct. Accordingly,
he cautioned that it was extremely important to monitor Mr. DeJesus’s relations with his family.
(3.35, 3.40-3.41).
Seeking a second opinion and a prescription for medication, Dr. Moon referred Mr.
DeJesus to VA Psychiatrist Glasner, who confirmed that Mr. DeJesus had Intermittent Explosive
Disorder, and prescribed 200 mg. of Tegretol, twice a day, to control his anger. (3.71; Stip. Facts
¶ ¶ 26, 27). Tegretol is an psychotropic, anti-convulsant medication commonly used as a mood
stabilizer to control Intermittent Explosive Disorder. (Stip. Facts ¶ 28). Through the use of
Tegretol and targeted therapy, Drs. Moon and Glasner hoped that Mr. DeJesus could learn to
control his aggression and abusive, violent behavior. (3.35-3.40).
Mr. DeJesus told Dr. Moon that he had fleeting thoughts of suicide and homicide and had
previously attempted suicide when he was arrested for attacking his wife. (3. 32-3.33, 3.80-
3.81). Concerned that Mr. DeJesus was depressed, Dr. Moon referred him to a second VA
Psychiatrist, Dr. Tirso Vinueza. (3.68-3.71). Remarkably, Dr. Moon never told Dr. Vinueza that
Mr. DeJesus was taking Tegretol to control his Intermittent Explosive Disorder, and Dr. Vinueza
never reviewed Mr. DeJesus’s treatment records or asked Dr. Moon, Dr. Glasner, or Mr. DeJesus
himself if he was taking any medication. (G-7; 3.70-3.71). Thus, Dr. Vinueza concluded that
Mr. DeJesus suffered from only “mild depression,” which could be helped by psychotropic
medication. (G-7). Dr. Vinueza did not realize, however, that Mr. DeJesus was already taking a
psychotropic medication — Tegretol. (G-7). Because neither Dr. Vinueza nor anyone else
treating Mr. DeJesus had reviewed Mr. DeJesus’s entire medical record, they did not properly
diagnose or treat Mr. DeJesus’s depression, nor did anyone at the VA know the full extent of Mr.
DeJesus’s mental illness. Thus, Mr. DeJesus never received competent and complete psychiatric
and psychological treatment and therapy at the VA. (1.42-1.43, 1.44-1.45).
The VA also diagnosed Mr. DeJesus as a diabetic and prescribed daily does of insulin.
D. The Failure of Mr. DeJesus’s Primary Therapist to Learn of His Condition or
After these initial clinical and medical diagnoses, Mr. DeJesus was first referred to a
social work intern, Vicky Lynn Zaszo, and then, to Denise Outzs-Cleveland, a health science
specialist. (3.125; Dep. Des., p. 34). Ms. Outzs-Cleveland served as Mr. DeJesus’s case
manager and Primary Therapist, as well as a liaison between Mr. DeJesus and the rest of his
treatment team. (3.107, 3.109). She provided Mr. DeJesus with individual and group counseling
and substance abuse education, and headed his treatment team. (3.91-3.92, 3.107; Dep. Des. p.
34). Although Ms. Outzs-Cleveland has an RN degree, she does not have a license to practice as

a nurse, which she has failed to obtain on two occasions. (Dep. Des. pp. 36, 67). Although the
VA designated her as Mr. DeJesus’s Primary Therapist, she does not have a license to practice as
a Therapist because the VA does not require it. (Dep. Des. pp. 36, 37).
The VA has computerized each patient’s entire clinical and medical history so that any
member of the treatment staff can refer to all records when evaluating a patient. (Dep. Des. pp.
40-41). As Mr. DeJesus’s Primary Therapist, it was Outzs-Cleveland’s responsibility to review
his medical records. (Dep. Des. 45). Ms. Outzs-Cleveland acknowledged that it was essential to
know a patient’s medications and diagnosis. (3.198). Although Ms. Outzs-Cleveland had
ample opportunity to check Mr. DeJesus’s computerized treatment records, she never did so.
(3.198). Accordingly, she was ignorant of vital facts: that VA doctors had repeatedly diagnosed
Mr. DeJesus with Intermittent Explosive Disorder; that Mr. DeJesus was taking Tegretol to
control his aggression; that he was suffering from depression (which was going untreated); that
problems with his family triggered his rage; that frustration and unemployment would likely
trigger him to domestic violence; or that he had past ideations of homicide and suicide, and had
once attempted suicide. (3.139-3.140, 3.198).
Ms. Outzs-Cleveland’s failure to familiarize herself with Mr. DeJesus’s medical records
is all the more disquieting because she understood from her therapy sessions with him that he
suffered from severe anger and anxiety problems, especially when he was separated from his
family — as he was during his entire stay at the VA facilities. (3.136, 3.212). During those
therapy sessions, Mr. DeJesus repeatedly told Ms. Outzs-Cleveland that he was distraught over
his finally problems, and was especially troubled because he could not see Felicia. (3.136,
3.212). Yet, like every other treating professional at the VA, Ms. Outzs-Cleveland inexplicably
failed to review Mr. DeJesus’s entire VA medical history.
E. Mr. DeJesus’s Prior Use of Deadly Force
During his stay at the VAMC, Mr. DeJesus displayed his violent inclinations. He told
Ms. Outzs-Cleveland and VA Therapist Bruce Newell that he was a gun enthusiast and enjoyed
target shooting. (4.77, 4.81; Stip. Facts ¶ 6). He also told Newell that he had once worked as a
security guard and had shot and killed another man. (4.73). Although Mr. Newell had treated
many veterans who had killed others in combat, the casualness with which Mr. DeJesus
described the shooting and “taking life” so shocked Newell that he immediately informed
Domiciliary Chief Stephen Chambers – – who told no one treating Mr. DeJesus of this
information, and failed to record it in Mr. DeJesus’s medical records. (4.76).
Additionally, sometime before March 22, 1999, Mr. DeJesus was involved in a violent
interaction with his then roommate, William Melvin. (2.102-2.103). One morning, Mr. Melvin
awoke to find Mr. DeJesus standing over him with a knife. (2.27). Although it is unclear
whether Mr. Melvin mentioned this event to the LZ-II staff, he did inform his VA treatment
group, although it is not clear when he did so. (2.42; 4.126-4.127). The Melvin incident showed that still Mr. DeJesus lacked the ability to control his aggression, and that the treatment he was receiving to control his Intermittent Explosive Disorder was not working.
F. Mr. DeJesus’s Transfer to LZ-II.
In February 1998, Mr. DeJesus was discharged from the Domiciliary facility, but was still
eligible to stay at the VA’s onsite facility, Landing Zone II TransitionalResidence. (G-9; 3.154-

3.155; Stip. Facts ¶ 38). LZ-II is a privately run program exclusively for homeless veterans
operated by the Philadelphia Veterans Multi-Service and Education Center, Inc. It is funded entirely by the VA, and situated on the Coatesville VAMC property. LZ-II provides housing for veterans for up to two years as they make the transition back into society. (Stip. Fact. ¶¶ 35, 42;
2.46). Marsha Fore is the Program Director for Homeless Veterans Services; Sandra Miller is responsible for LZ-II’s day-to-day operations. (2.46, 2.101).
Pursuant to its grant under the VA Homeless Grant and Per Diem Program, LZ-II works
in tandem with the VA to help veterans. (Stip. Facts ¶ 38). The VA is responsible for providing
policing and safety services, as well as all mental health, psychiatric, and medical, and
rehabilitative services for LZ-II’s residents. (Stip. Fact. ¶¶ 37, 38, 43). The VA Police also have
full authority to make arrests at LZ-II and all VAMC property. (Stip. Facts ¶ 43). Accordingly,
as of March 1999, LZ-II had no one on staff to provide psychological, medical, psychiatric, or counseling services. Rather, as the VA intended when it created LZ-II in 1996, LZ-II relied entirely on the VA to provide these services to its residents. Moreover, LZ-II had no access to the psychiatric and psychological records of its residents. (Stip. Facts ¶ 36; Stip. Fact ¶ 38;
3.205; P-8; Dep. Des. p. 52). Finally, as a creation of the VA, LZ-II would try to comply with any requests regarding the treatment or placement of its residents. (2.61-62, 2.67).
During a resident’s stay at LZ-II, his VA Primary Therapist continues in that role. This
system of continuing aftercare is necessary because veterans often relapse to past behavior.
(3.82). In some instances, aftercare is needed for several years. (3.76). Thus, Ms. Outzs-
Cleveland continued to treat Mr. DeJesus and to serve as his case manager and sole outpatient therapist during his residence at LZ-II. (P-8; 2.103-2.104; 3.205 Dep. Des. p. 53).

Additionally, while residents are living at LZ-II, they are assigned to perform certain tasks
for which they are paid. (2.102). Thus, a transferee to LZ-II is both a resident and an employee.
(2.69). During his stay at LZ-II, Mr. DeJesus was employed as a cook in the LZ-II kitchen.
Just before Mr. DeJesus moved to LZ-II, Ms. Outzs-Cleveland prepared his outgoing
Clinical Referral Report, intended to inform LZ-II staff of Mr. DeJesus’s condition, problems,
and psychological state. (G-9; 3.153-3.155; Stip. Fact 31). Ms. Outzs-Cleveland prepared a
Report that was grossly incorrect, incomplete, and outright misleading. She did not mention that Mr. DeJesus suffered from Intermittent Explosive Disorder or needed Tegretol to control his rage. (3.154.) Moreover, under “mental health diagnosis” she wrote “N/A” — meaning that the category was “not applicable” — because she erroneously believed that Mr. DeJesus did not have any mental health diagnoses. (Dep. Des. p. 48). Had she reviewed Mr. DeJesus’s medical records before completing the Report, she would have known that in fact Mr. DeJesus had severe mental health problems. Thus, she unintentionally misled LZ-II staff, who believed that Mr. DeJesus was not suffering from mental illness. (Dep. Des. p. 49; 2.49).
With LZ-II’s ignorance of Mr. DeJesus’s disturbed state, it was not possible for LZ-II
properly to evaluate Mr. DeJesus’s behavior. For instance, in March 1998, Mr. DeJesus got into a heated argument with other LZ-II residents over a shared car ride. (1.120-1.103). Because the VA had misled LZ-II respecting Mr. DeJesus’s mental condition, LZ-II staff had no way of knowing whether this was an isolated instance of anger, or part of a violent history, suggesting a deterioration in Mr. DeJesus’s mental stability. (1.120-1.103).

G. Mr. DeJesus’s Further Deterioration
By late 1998, Mr. DeJesus’s contact with his family had diminished significantly.
(1.152). In November of that year, troubled and desperate to hold onto his family, Mr. DeJesus
sought custody and visitation rights with respect to his daughter Felicia. (1.152-153). Later that
month, the Delaware County Court held a custody hearing at which Mr. DeJesus submitted a
letter from the VA, dated November 18, 1998. (P-8). Authored and signed by Ms. Outzs-
Cleveland, the letter stated that Mr. DeJesus was sober and had learned to manage his anger, and
that he was exceptional at interacting with others. (P-8, 1.155). This evaluation was incomplete
and incorrect, as Ms. Outzs-Cleveland would have known had she consulted Mr. DeJesus’s
medical records. (P-8).Moreover, like her Clinical Referral Report, Ms. Outzs-Cleveland’s letter was misleading. Relying upon the letter, Mrs. DeJesus concluded that Mr. DeJesus had improved as a result of his stay at the Domiciliary and LZ-II. (1.155-156). She then agreed that Mr. DeJesus could have supervised visits with Felicia if he was first evaluated by a counselor and submitted his treatment records to a referee. (1.156-157). Mrs. DeJesus also decided that the time had come to end her marriage.
On February 1, 1999, Mrs. DeJesus filed for divorce. (Stip. Facts ¶¶ 57-58). Mr.
DeJesus received the divorce papers on February 4, 1999. (P-6). Distraught and frustrated, he
immediately called Ms. Outzs-Cleveland. Although Mr. DeJesus said that his call to Ms. Outzs-
Cleveland had been a mistake — that he had intended to call his wife — it was clear that Mr.
DeJesus was turning to his Primary Therapist for help in a time of disturbance. (1.21-1.23; Dep.
Des. pp. 55, 59). Mr. DeJesus told Ms. Outzs-Cleveland that his wife had served him with
divorce papers, and that he was terrified at the prospect of his family’s imminent dissolution.
(Dep. Des. pp. 55, 59).
It was apparent that Mr. DeJesus’s condition had worsened. (1.22-1.23). Ms. Outzs-
Cleveland was concerned about Mr. DeJesus’s confusion and anger. (P-6). She believed that he
was psychologically unstable, and because she could not calm him down, she wanted to see Mr.
DeJesus to conduct additional therapy “ASAP” — as soon as possible. (Dep. Des. p. 55; 3.167,
3.214). Nonetheless, neither Ms. Outzs-Cleveland nor anyone else at the VA made any effort to
see him and had no contact with him between the February 4, 1999 telephone call and the March
22, 1999 knife incident. (Dep. Des. pp. 55-56; 3.165, 3.217). More disturbingly, Ms. Outzs-
Cleveland told no one the VA or LZ-II of her concern about Mr. DeJesus’s mental instability.
(3.194). Additionally, although she was extremely concerned about Mr. DeJesus’s reactions to
the divorce, she never checked his medical records or asked others if there was some explanation
for his condition. (3.194). Had she checked the records, she would have realized that Dr. Moon
had determined that Mr. DeJesus’s family problems would likely “trigger” his Intermittent
Explosive Disorder.
Sometime in mid-March, Mr. DeJesus called his wife, again asking to see Felicia and
discuss the divorce. Mrs. DeJesus did not want to talk to him, and said that he could not see
Felicia unless he complied with the court ordered conditions. She also told him not to come to
her apartment. (1.160-161). Distraught over these events, and facing the failure to attain his
long-standing goal of reuniting with his family, Mr. DeJesus’s mental condition worsened. (Dep.
Des. pp. 51-52). Already distraught, on March 20, 1999, Mr. DeJesus bought a gun. (G-22).

H. The Knife Incident
Mr. DeJesus’s Intermittent Explosive Disorder, the triggering events in his life, and the
VA’s incompetence converged on March 22, 1999. Early that morning, Mr. DeJesus was
involved in a violent altercation with another LZ-II resident, Bill Queen. (1.25-1.26; P-22). The
two were cleaning the kitchen when Mr. DeJesus became violently angry at Mr. Queen for failing
to remove a bucket of water. (P-22). Mr. DeJesus brandished a knife, and threatened Mr.
Queen’s life with it. (2.106; P-22). Another resident, Joe Lanzara, intervened and forced Mr.
DeJesus to put down the knife — something Mr. DeJesus did with great reluctance. (2.113; P-22,
When Ms. Miller and Ms. Fore arrived around 7:00 a.m., they learned of the altercation.
To determine what occurred, they immediately separated Mr. DeJesus and Mr. Queen — who
were both angry– and interviewed them and the other witnesses to the incident. (2.55-2.56).
They then asked Mr. DeJesus to leave the residence while they investigated further. (2.55-2.57).
The staff noted that Mr. DeJesus was still very upset when he left LZ-II at 9:00 a.m., ostensibly
to go to the library. Once he left, the staff lost track of him until the afternoon. (Ct-2).
I. The VA Insists on Mr. DeJesus’s Immediate Discharge from LZ-II
Since the VA created LZ-II’s in June 1997, the DeJesus-Queen altercation was the only
instance in which one resident threatened another resident with a weapon. (2.76). Thus, neither
Ms. Fore nor Ms. Miller knew how to respond to what they deemed a major incident. (2.59,
2.76-2.76; P-23). They recognized that the altercation was out of character for Mr. DeJesus, and turned to the VA for help. (2. 140, 2.52-2.53; P-17). They first asked Domiciliary Chief
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Chambers what they should do. (2.57; 2.107). They also made phone calls to Bruce Newell —
Mr. Queen’s Primary Therapist — and Ms. Outzs-Cleveland — Mr. DeJesus’s Primary Therapist –
– pleading for their immediate and urgent assistance. (2.57, 2.108, 4.131-132).
From their testimony, it was apparent that LZ-II staff were prepared to do everything that
they could to accommodate the entity that created and funded LZ-II, that provided LZ-II with
residents, and on whose property LZ-II existed: the VA. Had the VA treatment professionals
indicated that LZ-II should not expel Mr. DeJesus, LZ-II would not have done so. Thus, the VA
effectively made the decision to expel Mr. DeJesus. (2.61-2.62, 2.86-2.87).
All the VA professionals involved in evaluating the knife incident came to the same
conclusion: by threatening another resident with a knife, Mr. DeJesus had demonstrated that he
was too dangerous to continue to reside in LZ-II, and so should be expelled. (2.113-2.114; 3.170
4.134; 4.81-4.82). Apparently it did not occur to any of them that Mr. DeJesus would be at least
as dangerous (and certainly more so) once he was expelled and thus rendered homeless and
unemployed. (5.22).
Dr. Chambers was the only VA staff member to respond immediately to LZ-II’s call for
help. (2.107). (2.113-2.114; 3.170; 4.81-4.82). At approximately 9:00 a.m., Dr. Chambers
arrived at LZ-II and told Ms. Fore and Ms. Miller that Mr. DeJesus’s conduct was dangerous, and
that LZ-II had to discharge him for the safety of “the house, as a whole, rather than individuals.”
(2.78, 2.107, 2.108). Although Dr. Chambers had some previous contact with Mr. DeJesus and
had found him to be “a model resident,” he now concluded that Mr. DeJesus was a “different”
person. (4.133). Despite this significant change, Dr. Chambers never saw or spoke to Mr.
DeJesus. (4.132). It is disturbing that Dr. Chambers did not meet with Mr. DeJesus, given that
he knew that Mr. DeJesus was “terrified” of leaving the VA. (4.132, 4.143; P-99). It is even
more disturbing that Dr. Chambers would make such a decision without first reviewing Mr.
DeJesus’s medical history. (4.143). An immediate expulsion meant that Mr. DeJesus would
leave LZ-II without a psychiatric consultation, a room check, or any medical professional first
determining if Mr. DeJesus was taking his Tegretol and insulin. (2.108; 4.134; 4.144).
The other VA staff consulted by LZ-II followed Dr. Chambers’s lead and told LZ-II to
expel Mr. DeJesus. Around noon – – and after Dr. Chambers left – – Bruce Newell (Mr. Queen’s
Primary Therapist) arrived at LZ-II. Mr. Newell had received professional training in
horticulture therapy and divinity. (4.51). Like Dr. Chambers, without speaking to Mr. DeJesus or
his Doctors, and without reviewing Mr. DeJesus’s medical records, Mr. Newell decided that LZII
should expel Mr. DeJesus. (4.81). Yet, Mr. DeJesus’s act troubled Mr. Newell not just
because it was extremely violent, but also because (as described above) Mr. Newell knew that
Mr. DeJesus was a gun enthusiast, and that Mr. DeJesus had callously described to Mr. Newell
how he had once killed another man. (4.58, 4.73, 4.77, 4.81; Stip. Facts ¶ 6). Mr. Newell’s
concern notwithstanding, he decided that Mr. DeJesus should be expelled immediately to protect
the safety of LZ-II’s other residents and staff. (4.58, 4.77, 4.81).
Sometime around 1:00 p.m., Ms. Outzs-Cleveland made her way to LZ-II, and attended a
meeting with Mr. Newell, Ms. Fore, and Ms. Miller. (2.58, 2.109). After speaking with Mr.
DeJesus, she told Mr. Newell that in her opinion Mr. DeJesus needed inpatient treatment and an
immediate or “STAT” psychiatric consultation; she wanted Mr. DeJesus taken for the
consultation “right then and there.” (4.83-4.87). She was “terrified” that once Mr. DeJesus was
expelled, he would “want to harm others, particularly his estranged wife.” (2.226; 3.40; Dep.

Des. 42, 65). She was also troubled because Mr. DeJesus did not appreciate the seriousness of
brandishing a knife at Mr. Queen. (3.128; Dep. Dep p. 57).
Despite her grave concern respecting Mr. DeJesus’s mental stability, Ms. Outzs-
Cleveland — like everyone else from the VA — did not consult Mr. DeJesus’s medical records.
After the knife incident, had she — or anyone else involved in the decision to discharge Mr.
DeJesus — done so, she would have known that the mood stabilization medication Mr. DeJesus was taking was not controlling his Intermittent Explosive Disorder, and that this disorder, combined with his still untreated depression, terror of being expelled from LZ-II, great frustration at his impending divorce, and related problems would almost certainly provoke him to act of great violence. (1.46). Had Dr. Chambers, Ms. Outzs-Cleveland, or Mr. Newell referred to therecords, they would have realized that they were discharging a loudly ticking time bomb that,
inevitably, would harm his family or himself. (1.46; 3.226).
J. LZ-II Agrees with the VA and Expels Mr. DeJesus
With the VA’s insistence on Mr. DeJesus’s expulsion, and relying on Ms. Outzs-
Cleveland’s misleading Clinical Referral Report, Ms. Fore and Ms. Miller reluctantly agreed to
Mr. DeJesus’s immediate expulsion. (2.59). LZ-II staff recognized that it was unusual to expel a patient. (2.86-2.87). Had the VA told LZ-II not to discharge Mr. DeJesus because they had
concerns about his mental stability, LZ-II would have agreed to let him remain. (2.61-2.62).
Significantly, before expelling Mr. DeJesus, no one sought to determine if he had any
money in his resident savings account. (4.32; P-18). In fact, Mr. DeJesus had no savings.
(4.32). In addition, once expelled, Mr. DeJesus automatically lost his job in LZ-II’s kitchen.

(4.32-4.33). Thus, Mr. DeJesus’s expulsion from LZ-II necessarily meant he would be homeless.
(4.32-4.33). Had any treatment professionals checked the medical records, they would have
learned that Dr. Moon had determined that homelessness was likely to provoke Mr. DeJesus to commit acts of domestic violence. (3.78, 3.139-3.140, 3.198).
After meeting with Newell, Fore, and Miller, Ms. Outzs-Cleveland again spoke to Mr.
DeJesus, who said that he intended to walk to Maine or New Hampshire, and that he was giving away many of his possessions. (3.180-3.181; 4.37, 4.139; Dep. Des. p. 61). These remarks
suggested to Ms. Outzs-Cleveland that Mr. DeJesus might be having suicidal thoughts. Twice
she offered to escort Mr. DeJesus to a VA Psychiatrist for evaluation. (3.172-3.173). He
refused. (3.172-3.173). Looking for some direction, she first called Dr. Chambers to ask him
how she could get an outpatient to be seen by a Psychiatrist. (3.177). Dr. Chambers told her she could offer to escort him to a Psychiatrist — something she had already done. (3.177).
Ms. Outzs-Cleveland then called Dr. Ray, her immediate supervisor and Mr. DeJesus’s
Treating Psychologist, to see if he knew of any other way to have Mr. DeJesus evaluated by a
Psychiatrist before he left LZ-II. (3.178). During the conversation Dr. Ray was some 100 feet
from LZ-II, attending a meeting with his treatment team. Ms. Outzs-Cleveland overheard the
discussion among the team members indicating that they were confused over the applicable
procedures, ultimately concluding that “we don’t get involved with [outpatients].” (3.179; 4.42-
4.43; Dep. Des. p. 60). Dr. Ray ultimately provided the same advice as Dr. Chambers: offer to
escort Mr. DeJesus to a Psychiatrist. (3.179).
During her conversations with Dr. Chambers and Dr. Ray, Ms. Outzs-Cleveland never
told either of them that she was “terrified” if Mr. DeJesus were expelled from LZ-II, he might
harm his wife. (3.181). She did not tell them that her concern was so great that she wanted him
evaluated “STAT,” “right then and there.” (3.181; 4.135-4.139; Dep. Des. P. 62). Nor did Ms.
Outzs-Cleveland tell either the basis of her concerns: Mr. DeJesus’s history of domestic violence; his involvement in custody and divorce proceedings; his frustration with the court system’s slow handling of these proceedings; that he was giving away his possessions; that he said he was going to walk to Maine or New Hampshire. (3.181; 4.135-4.139; Dep. Des. p. 62).
At trial, both Dr. Ray and Dr. Chambers stated that additional information may have
changed their decision respecting Mr. DeJesus’s expulsion. (4.139). Yet, even though Dr. Ray
was Mr. DeJesus’s Treating Psychologist, he did not the 100 feet to LZ-II, where Mr. DeJesus –his patient — was being questioned. Dr. Ray explained that even though he was Mr. DeJesus’s
Treating Psychologist, he had never actually met his patient, and therefore “thought that it
wouldn’t be quite appropriate [to examine Mr. DeJesus] because [he] had never met him.”
(4.97-4.98). Dr. Ray also did not want to leave a scheduled staff meeting, although he knew that his was not an acceptable reason to fail to answer a call for assistance. (3.85).
Neither Dr. Chambers nor Dr. Ray was familiar with the involuntary commitment
procedures under Section 302 of Pennsylvania’s Mental Health Procedures Act, or any other
procedures by which the VA or LZ-II could obtain a psychiatric consultation for an outpatient.
(4.101-102). Dr. Chambers and Dr. Ray were also unsure as to what behavior constituted an
emergency, an immediate threat, or an overt act – – any of which would justify an involuntary
commitment under Pennsylvania law. In light their ignorance respecting Section 302 procedures,
they preferred to employ the VA’s internal Psychiatric Emergency Assistance Team (“PEAT”) or
Code Green procedures. (4.107).
Under a PEAT or Code Green procedure — which the VA or LZ-II staffs may call from
anywhere on the VAMC grounds — armed officers and psychiatric and medical personnel are
called to respond to psychiatric emergencies, and provide the troubled person with emergency
consultations and treatment. (4.100-4.107; Stip. Fact ¶ 87). Uniformed and armed VA Police are always available and have the authority to arrest both psychiatric and “traditional” offenders.
(Stip. Fact ¶ 88).
Significantly, it was apparent from their trial testimony that Dr. Ray and Dr. Chambers
did not fully understand when they could call a “Code Green” and involuntarily detain a patient.
(4.103-4.107). Rather, all the VA treating professionals shared the tragically mistaken
understanding that unless a patient was raving or manifestly irrational, they had no legal authority to detain him and have him evaluated. (Dep. Des. p. 59; 3.85; 3.117, 3.179; 3.221; 4.42-4.43;
4.97, 4.103-4.107). Remarkably, it never occurred to the Doctors that they could simply call the
police to arrest Mr. DeJesus for attacking Mr. Queen with a knife. (4.107). Ultimately, the
Doctors’ ignorance of proper procedures, combined with Ms. Outzs-Cleveland’s failure to
communicate her grave concerns to the Doctors, ensured that no one could offer proper or
effective advice to Ms. Outzs-Cleveland.
Finally, because the VA had misled LZ-II respecting Mr. DeJesus’s disturbed state, LZ-II
staff did not take measures that might have revealed Mr. DeJesus’s emotional instability and
dangerousness. For instance, LZ-II had the authority to search every resident’s room at any time.
(2.63-2.64, 2.66, 2.67). Had LZ-II searched Mr. DeJesus’s room, it would have discovered that
upon being told of his expulsion, Mr. DeJesus shredded his clothing, thus evincing great
emotional instability and upset. (2.63-2.64, 2.66, 2.67; 4.144). Even more important, a search of
Mr. DeJesus’s room on March 22nd would have revealed that he had purchased a gun on March
20th. (G-22). Because the VA had misled LZ-II into accepting that knife incident was an
isolated act of violence — and not compelling evidence of Mr. DeJesus’s mental deterioration —
LZ-II did not conduct the search. (2.67).
K. The DeJesus Family’s Understanding of Mr. DeJesus’s Condition
The VA never shared with Mrs. DeJesus any of its diagnoses respecting Mr. DeJesus’s
violent, disturbed nature, or the VA’s concerns respecting the likelihood that Mr. DeJesus would commit an act of domestic violence. (3.198). On the contrary, the only communication
concerning Mr. DeJesus’s condition that Mrs. DeJesus received from the VA was Ms. Outzs-
Cleveland’s November 18, 1998 letter to the Delaware County Court, stating incorrectly that Mr. DeJesus had learned to manage his anger. (P-8).
Although Mrs. DeJesus and her children well understood that Mr. DeJesus could be
physically abusive, they never thought he would seriously harm them. (2.10). Mrs. DeJesus and her children were very close to her brother Al Viti – – then employed as a United States Marshal
– – and Lynn Viti – – then employed a United States Treasury Agent. Pursuant to their official
duties, the Vitis carried firearms at all times. (1.138-1.140). The Vitis lived nearby and saw
Mrs. DeJesus and her children constantly. (1.38-1.40). Indeed, the Vitis had dinner at Mrs.
DeJesus’s home on the night of March 23, 1999. (1.169). They were aware that Mr. DeJesus
had visited Mrs. DeJesus on the evening of March 22nd. (1.170-1.171). They did not remain at
the DeJesus home on March 23rd because they did not believe that Mr. DeJesus would seriously harm his family. (2.10). If Mrs. DeJesus had such a fear, she would have asked the Vitis to helpher and her children. (1.67-1.68). The Vitis were quite prepared to offer such protection.
(2.12). Mrs. DeJesus never asked for their help because neither she nor theVitis believed that
Mr. DeJesus would seriously harm his family. (2.12).
L. Mr. DeJesus’s Explosive Reaction to the VA’s Actions
At the time of his expulsion, Mr. DeJesus told Ms. Miller that he knew that he had broken
rules, and expressed embarrassment, remorse, and regret. (2.138). According to the DSM-IV,
such apologetic behavior after an outburst is a customary symptom of Intermittent Explosive
Disorder. (P-13).
After learning of his expulsion, Mr. DeJesus gave away several of his most cherished
possessions. (2.66). He packed some of his clothes and the gun he just purchased in a bag and
shredded his remaining clothes. (2.66). He also stated that he was going to walk to Maine or
New Hampshire. (2.66).
Mr. DeJesus then immediately went to Mrs. DeJesus’s home. When he arrived, Mrs.
DeJesus would speak to him only through the door. Mr. DeJesus told her that he would agree to
the divorce, and that he had left LZ-II to go live with his brother in New York. He asked Mrs.
DeJesus to give him his brother’s phone number and some money. (1.162-163). Mrs. DeJesus
gave him the phone number, but refused to give him money. (1.165-166). During the
conversation, Mr. DeJesus was calm and did not do or say anything that was hostile or
threatening. Following their conversation, Mrs. DeJesus told Mr. DeJesus that he had to leave,
and that if he did not, she was going to call the police because she did not want him lingering
outside her home. (1.166). Mr. DeJesus was reluctant to leave, and Mrs. DeJesus called the
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police. (1.166). Mr. DeJesus left before they arrived. (1.166).
When the police arrived, Mrs. DeJesus told them about the expired Protection Order and
reiterated that she did not want Mr. DeJesus loitering outside her home. She also told the police
that her son was going to be home alone the next day, and that she was concerned that if her
husband visited, the two would get into a fight. (1.167-168).
The next evening — March 23rd — Mrs. DeJesus, her children, Aaron and Michael Faulk,
and the Vitis had dinner together in Mrs. DeJesus’s apartment. (1.169). After dinner, Al and
Lynn Viti left. (1.169). A short time later, the police came to Mrs. DeJesus’s door and told her
that they had found Mr. DeJesus’s bag with his insulin, needles, and clothes at a nearby train
stop. (1.70). Mrs. DeJesus told them that she had not heard from him that day, and that he had
told her that he was going to his brother’s home. (1.170). Mrs. DeJesus then spoke with Lynn
Viti on the telephone and told her that the police had found Mr. DeJesus’s bag. Because she saw
no need for protection, she did not ask Mrs.Viti to come over, nor did she ask if she could go to
the Vitis’ home. (1.171).
Shortly after the police left, Mr. DeJesus entered the apartment through the kitchen door.
(1.171). Carrying a gun, he ran past Mrs. DeJesus and immediately shot and killed Michael
Faulk. (1.171-172). Mrs. DeJesus ran from the apartment to get help. She went to her
neighbor’s abutting apartment which was few feet away. (1.172). As she ran from her
apartment, she heard additional gunshots and knew that Mr. DeJesus was shooting her children.
(1.173, 1.218; P-50 at p.81). Mrs. DeJesus entered the abutting apartment and told her neighbor
“that the kids were shot, [and that she] needed the cops.” (1.173). Her neighbor immediately
called the police. (1.173).
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As Mrs. DeJesus ran for help, Mr. DeJesus shot and killed his children and the Faulk
children. (1.174). He then turned the gun on himself and committed suicide. (1.174). When the
police arrived, Mrs. DeJesus tried to enter her apartment, but the police pulled her away and
would not tell her if the children were alive. (1.174). Mrs. Faulk walked down the stairs from
her apartment after Mrs. DeJesus called to tell her that “Michael had been shot.” (3.7). Both
Mrs. DeJesus and Ms. Faulk waited together, and soon learned that Mr. DeJesus had killed their
children and then committed suicide. (1.174).
The next day, upon hearing of a murder-suicide in Media, and even before learning who
was involved, the VA and LZ-II staffs immediately feared that Mr. DeJesus may have committed
the crimes. (P-38(7)). Only then did they consult — for the first time — Mr. DeJesus’s
psychological and medical treatment records. (P-38 (7)).
At trial, Mrs. DeJesus described in detail how she heard her husband shoot and kill her
children. (1.170-1.174). The grief and horror she has suffered were painfully obvious. Hearing
the murder of her children has caused Mrs. DeJesus to suffer stress, anxiety, depression, and
post-traumatic stress disorder. (P-88; P-89).
M. Mr. DeJesus’s Condition at the Time of His Expulsion from LZ-II
On March 22, 1999, Alejandro DeJesus, Sr. was severely depressed and suffering from
Intermittent Explosive Disorder. (P-92; 122-1.23, 1.25-1.26 1.34, 1.46-1.47). The combination
of the divorce and custody proceedings had caused his condition to deteriorate so that he was not
capable of controlling his violent urges, as he demonstrated when he attacked Mr. Queen. (1.25-
1.26, 1.46). His expulsion from LZ-II caused a further deterioration of his profoundly disturbed
Case 2:02-cv-00253-PD Document 99 Filed 07/26/2005 Page 28 of 40

emotional state, making him far more likely to commit a violent act. (P-92; 1.25-1.26; 1.120-
1.103). The VA’s own medical records, combined with Mr. DeJesus’s behavior as known by the
VA on March 22nd, clearly showed that it Mr. DeJesus’s expulsion would very likely cause him
to commit a violent act against his family, himself, or both. (P-2; P-6; P-8; P-22; P-99; G-7; G-9;
Dep. Des. pp. 48, 55-56, 59, 61, 62; Stip. Fact ¶ 8; Stip. Facts ¶ 31; 2.226, 2.102-2.103, 2.42,
2.49; 3.29-3.43, 3.139-3.140, 3.68-3. 71, 3.78, 3. 80-3.81, 3.128, 3.136, 3.153-3.155, 3.167,
3.172-3.173, 3.180-3.181, 3.198, 3.212-3.214, 3.226; 4.32-4.33,4.37, 4.58, 4.73, 4.76, 4.77, 4.81,
4.83-4.87, 4.132-4.139, 4.139, 4.144).
This is not a case where the VA failed properly to diagnose its patient. Collectively, the
VA knew exactly how disturbed and violent Mr. DeJesus was. Had anyone treating Mr. DeJesus
reviewed his records, or had the treating professionals discussed among themselves their
treatment of Mr. DeJesus, the March 23, 1999 killings would not have occurred.
Based on my review of all the evidence, I find that at the time of his expulsion, the VA
should have known – – based on its own records and its own observations of Mr. DeJesus – – that
Mr. DeJesus was a seriously mentally disturbed person who presented an imminent, clear, and
present danger to himself and others. A competent and complete psychiatric evaluation before
Mr. DeJesus actually left the VAMC grounds would have confirmed this. (1.39, 1.46-1.47).
Accordingly, had the VA compelled Mr. DeJesus’s psychiatric examination, he would have been
committed. (1.46-1.47).
N. The VA’s Failure to Understand Mr. DeJesus’s Condition
It is shocking just how much information was not shared by Mr. DeJesus’s Therapists and

Doctors,  and how extensive their failure to examine or investigate Mr. DeJesus’s clinical and medical history was. Among these failures were: (1) Dr. Moon’s failure to inform Dr. Vinueza that Mr. DeJesus was taking Tegretol to control his Intermittent Explosive Disorder; (2) Dr.Vinueza’s failure to review Mr. DeJesus’s treatment records or to ask Dr. Moon, Dr. Glasner, or even Mr. DeJesus whether Mr. DeJesus was on any psychotropic medication before evaluating him for depression; (3) Ms. Outzs-Cleveland’s failure to review Mr. DeJesus’s entire clinical and medical histories while she served as Mr. DeJesus’s Primary Therapist; (4) Ms. Outzs- Cleveland’s failure to consult with Mr. DeJesus’s Doctors or to review his medical records before representing to the Delaware County Court that Mr. DeJesus had learned to manage his anger and was exceptional at interacting with others; (5) Ms. Outzs-Cleveland’s failure to review Mr. DeJesus’s medical records before preparing his Clinical Referral Report, which she sent to LZ-II; (6) the failure of Dr. Chambers to record or inform anyone of Mr. Newell’s concern respecting Mr. DeJesus’s casual description of the killing he committed when he was a security guard; (7) Ms. Outzs-Cleveland’s preparation of a tragically incorrect and misleading Clinical Referral Report on which LZ-II relied; (8) the failure of Drs. Moon and Ray — Mr. DeJesus’s

Treating Psychologists — to review his medical history at any time; (9) Ms. Outzs-Cleveland’s
failure after her February 4, 1999 discussion with Mr. DeJesus to determine if he was receiving
treatment to address the emotional instability his divorce was causing; (10) Ms. Outzs-
Cleveland’s failure to inform the VA or LZ-II staffs that she was worried about Mr. DeJesus’s
condition and reaction to the pending divorce and custody proceedings, and that she wanted to
see him “ASAP” for a consultation; (11) Ms. Outzs-Cleveland’s failure on March 22, 1999, to discuss with the VA and LZ-II staffs her concerns about Mr. DeJesus’s mental state and potential for domestic violence; (12) the failures of Dr. Chambers, Dr. Ray, and Mr. Newell, to review Mr. DeJesus’s records before deciding to expel him from LZ-II; and (13) the VA’s failure to check Mr. DeJesus’s bank account before expelling him from LZ-II. (1.40-1.45; 3.70-3.711; Stip. Facts
¶ ¶ 26, 27; G-7). Collectively these failures show a system wide breakdown in communication and demonstrate that no one at the VA understood just how dangerous and disturbed Mr. DeJesus was.
A. The VA’s Multiple Breaches of the Standard of Care
The VAMC had an obligation to care for its patient, Alejandro, DeJesus, Sr., in a
competent manner, consistent with medically accepted standards of care. See Graham v. Barolat,
No. 03-2029, 2004 U.S. Dist. LEXIS 23567, at *5-*6 (E.D. Pa. Nov. 17, 2004) (citing Welsh v.
Bulger, 698 A.2d 581, 585 (Pa. 1997)).
Failure to Treat and Communicate Information
The VAMC’s multiple, egregious errors represented major breakdowns in
communication and reporting and a systemwide failure of the VA treating professionals to know
what their colleagues were doing or reporting. (1.42-1.47). As I have found, no one at the VA
knew Mr. DeJesus’s full medical and psychological condition. (1.47). This constituted a gross
deviation from the required standard of care in treating a patient. (1.38-1.45, 1.47).

The Decision to Discharge Mr. DeJesus
As I have found, on March 22, 1999, Mr. DeJesus was distressed and irrational,
displaying poor control of his violent urges by brandishing a knife in his place of employment.
(1.34). His Primary Therapist was “terrified” that Mr. DeJesus expulsion would trigger an act of
domestic violence. (Dep. Des. p. 64). Further, Mr. DeJesus made comments that his Primary
Therapist believed were potentially suicidal. (1.34). Rather than expel Mr. DeJesus, under the
required standards of care, the VA should have initiated a therapeutic intervention, starting with a psychiatric evaluation, and then taken whatever other therapeutic measures were necessary.
(1.34). If the VA determined that he was too dangerous to be treated while still a resident at LZII, then the VA should have taken steps to have Mr. DeJesus committed. (1.34-1.35).
Had the VA professionals shared their information, performed their duties competently,
and read Mr. DeJesus’s treatment file, it would have been manifest that once discharged, Mr.
DeJesus presented a clear and present danger to himself and his family. (1.34-1.35). In expellingMr. DeJesus in these circumstances, the VA grossly breached the required standard of care.
Failure to Commit or Detain Mr. DeJesus
Once the VA decided to expel Mr. DeJesus, it again breached the required standard of
care by failing to detain or commit him. (1.34-1.35). First, the VA could have called for
involuntary commitment under Pennsylvania law. See Mental Health Procedures Act, 50 Pa.
Stat. Ann. § 7114. Given Mr. DeJesus’s irrational and dangerous behavior on March 22, 1999,
the VA should have compelled Mr. DeJesus to submit to a a psychiatric evaluation. (1.37).

Under Pennsylvania law, such an evaluation can be compelled if a person is seriously mentally
disabled, presenting a clear and present danger to himself or others based on an overt act. (1.38).
See Mental Health Procedures Act, 50 Pa. Stat. Ann. §§ 7114, 7301; see also Bodor v. Horsham Clinic, No. 94-7210, 1995 U.S. Dist. LEXIS 10006, at *4 (E.D. Pa. July 17, 1995) (“[W]henever a person is severely mentally disabled and in need of immediate treatment, he may be made subject to involuntary emergency examination and treatment. A person is severely mentally disabled when, as a result of mental illness . . . he poses a clear and present danger of harm to others or to himself.”). Here, such compulsion was proper because: (1) Mr. DeJesus suffered from a mental illness, Intermittent Explosive Disorder; (2) Mr. DeJesus had committed the overt act threatening Mr. Queen with a knife; (3) Mr. DeJesus’s Primary Therapist was terrified that Mr. DeJesus would commit an act of violence against his family, as he had in the past; (4) Mr. DeJesus’s medical records underscored that he was disturbed and dangerous; and (5) as I have found, the facts the VA knew or should have known made manifest that Mr. DeJesus was an imminent, clear, and present danger to himself , his family, and others. (1.39). Had the VA treatment professionals known the law and their patent’s condition, they could have compelled an evaluation and committed Mr. DeJesus under Section 302. Second, the VA could have used its own PEAT or Code Green procedures to evaluate and detain Mr. DeJesus. (4.100;1.38). Under the PEAT or Code Green procedures, a team of  armed officers and psychiatric and medical personnel can be called to respond to psychiatric
emergencies anywhere on the VAMC property if “there is a likelihood of some imminent
dangerous behavior taking place or about to take place.” (4.100). Persons may be committed
and detained if they “present[] a clear and present danger to themselves or others.” (G-37).
Here, the VA could have compelled Mr. DeJesus’s evaluation on the same grounds that would
have justified compulsion under § 302. In addition, the VA could have compelled his evaluation
simply because he had brandished a knife and threatened Mr. Queen. The VA staff’s failure to
recognize this simple fact as basis for detaining Mr. DeJesus and compelling him to see a
psychiatrist is as inexplicable as it is inexcusable. It is remarkable that neither Dr. Chambers or
Dr. Ray explained this to Ms. Outzs-Cleveland when she was asking for a basis to detain Mr.
DeJesus. That failure is explained by Dr. Chambers’s and Dr. Ray’s ignorance of the VA’s own
detention and evaluation procedures. (3.177; 4.101-4.102). It is also remarkable that Ms Outzs-Cleveland, the Primary Therapist, did not know these procedures. (1.38). Had the VA known and followed its own procedures on March 22, 1999, Mr. DeJesus would have been detained.

Third, had the VA professionals performed competently, they would have conducted a
suicide or psychiatric assessment so that they could commit Mr. DeJesus. Once again. I have
found that Mr. DeJesus was an imminent, clear, and present danger to himself or others, and so presented a “psychiatric emergency,” justifying his commitment. The VA’s expert, Dr. Brooke Ziteck, pointed to several factors that to “varying degrees . . . may constitute a psychiatric emergency.” (5.47- 5.50). These factors included: (1) evidence of poor “coping strategies”; (2) change in family status, e.g. getting divorced; (3) change in a “support group”; (4) a move; (5) job loss; and (6) changes at work or treatment group. (5.47–5.50). Here, Mr. DeJesus demonstrated all these factors: (1) for no rational reason, Mr. DeJesus had threatened Mr. Queen with a knife; (2) Mrs. DeJesus had filed for divorce; (3) once discharged, Mr. DeJesus would lose his friends and “support group” at LZ-II; (4) he was leaving LZ-II; (5) he was losing his jobat LZ-II; and so (6) would have no work. (5.47-5.50). Additionally, Mr. DeJesus had pastideations of suicide and had once actually tried to kill himself. (5.45-5.51). Had the VA competently performed its duties, it would have recognized that Mr. DeJesus was possibly suicidal and having an imminent psychiatric emergency. (1.47). Accordingly, under its ownprocedures, the VA could have detained or committed Mr. DeJesus as a threat to himself orothers. (G-37).

Fourth, the VA could have detained Mr. DeJesus by simply calling the police to arrest
him for attacking Mr. Queen with a knife. See Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir.
1997) (an attack gives rise to probable cause to arrest). It is extraordinary that this possibility
never occurred to any of the VA professionals.
The VA’s failure to appreciate any of the these four possible avenues to detain or commit
Mr. DeJesus constituted gross breaches of the required standards of care. (1.38).

B. Gross Negligence
To recover for the VA’s decision to discharge Mr. DeJesus or for its failure to detain or
involuntarily commit him before he was discharged, Plaintiffs must establish that the VA was
grossly negligent in its decisions regarding Mr. DeJesus. See Mental Health Procedures Act, 50
Pa. Stat. Ann. § 7114; see also Bloom v. Dubois Regional Medical Ctr., 597 A.2d 671, 677 n. 6,
679 (Pa. Super. Ct. 1991); Doby v. Decrescenzo, Civ. No. 94-3991, 1996 U.S. Dist. LEXIS
13175, *70-*71 (E.D. Pa. 1996). See generally 28 U.S.C. § 1346(b)(1).
Under Pennsylvania law, gross negligence is “a form of negligence where the facts
support substantially more than ordinary carelessness, inadvertence, laxity, or indifference. The behavior of the defendant must be flagrant, grossly deviating from the ordinary standard of care.” Bloom, 597 A.2d at 679; see also Albright v. Abington Memorial Hospital, 696 A.2d 1159
(1997); Doby, 1996 U.S. Dist. LEXIS 13175 at *70-*71. In determining whether a treatment
facility has committed an act of gross negligence, an important factor is whether the patient under its supervision showed a tendency to be violent or dangerous to himself or others. See Albright,696 A.2d at 1166. Pennsylvania law clearly provides that if a treatment facility commits gross negligence in its decision to discharge or not to evaluate, treat, or commit a patient, then the facility is liable for any harm it substantially caused to any foreseeable victims. See 50 P.S. §7114(a); see also Sherk v. County of Dauphin, 614 A.2d 226, 232 (Pa. 1992); see also Goryeb v. Commonwealth, Dep’t of Public Welfare, 525 Pa. 70, 78 (Pa. 1990).
Here, the VA grossly breached the required standard of care by: (1) failing to treat Mr.
DeJesus properly and communicate information; (2) discharging Mr. DeJesus without first
evaluating him; and (3) failing to detain or commit Mr. DeJesus. These failures and breaches went substantially beyond ordinary laxity or indifference. Rather, they were flagrant, and grossly deviated from the ordinary standard of care. See Bloom, 597 A.2d at 679; see also Albright v.Abington Memorial Hospital, 696 A.2d 1159 (1997).The VA’s tragic decision to expel Mr. DeJesus “[w]ithout a doubt . . .[took] someone who [was] already in crisis and . . .compound[ed] that crisis many fold because . . . now that [the VA was] throwing him out of the sanctuary where he [had] been for over a year.” (1.140). Thus, the VAMC’s multiple breaches and its insistence that Mr. DeJesus be discharged without an evaluation, detainment, or involuntary commitment substantially caused the death of Alejandro DeJesus, Jr., Felicia DeJesus, Mark Faulk, and Aaron Faulk. See Sherk v. County of Dauphin, 614 A.2d 226, 232 (Pa. 1992) (causation established when hospital “prematurely” discharged mental patient who shot another some six weeks after discharge); see also Goryeb v.Commonwealth, Dep’t of Public Welfare, 525 Pa. 70, 78 (Pa. 1990) (causation established when hospital improperly discharged a mutual patient who shot three people a week after his discharge); Ford v. Jeffries, 379 A.2d 111, 115 (1977). Had the VA competently performed its duties to review and share information and to understand the law, it would have discovered that Mr. DeJesus: (1) was a severely troubled individual with Intermittent Explosive Disorder, who needed psychotropic medication (Tegretol) to control even his day-to-day aggression; (2) had a history of domestic violence, which he connected to homelessness and frustration; (3) was losing his family — the most important thing in his life; (4) had recently purchased a gun; (5) had experience using guns; (6) was showing clear signs of “regression” and suicidal ideation; (7) had tried to kill himself once before; and (8) presented a plain threat that he would violently harm his family or himself. (Dep. Des. p. 64). Given Dr. Moon’s observation that past behavior is that the best predictor of violence committed by patients with Intermittent Explosive Disorder, the VA should have realized that by discharging Mr. DeJesus, it was “triggering” his rage disorder, and that he would again attack his family or himself. The VA’s decision to expel Mr. DeJesus from LZ-II “triggered” this episode of Mr. DeJesus’s rage disorder, and therefore directly and substantially caused the children’s murders. See Sherk, 614 A.2d at 232.It apparent from reviewing Mr. DeJesus’s treatment records and history (something no one at the VA ever did) that once the VA expelled him, Mrs. DeJesus and anyone in her home were in foreseeable danger. This is exactly what Ms. Outzs-Cleveland foresaw on 1999, and what the VA staff feared on March 24th — before actually learning that Mr. DeJesus had committed the murders. (3.40; Dep. Des. p. 65; P-38(7)). See Sherk v. County of Dauphin,,614 A.2d 226 (1992); see also Goryeb v. Commonwealth Department of Public Welfare, 575 A.2d 545 (1990); Ford v. Jeffries, 379 A.2d 1111 (1977).  The VA argues that Mrs. DeJesus’s own actions — not locking the door and not leaving her apartment altogether — were superseding causes, relieving them of liability. See Vattimo v. Lower Bucks Hospital, Inc., 465 A.2d 1231, 1237 n.4 (1983). A third-party’s actions do not constitute a superseding cause, however, unless “the actor at the time of [her] negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.” See Ford, 379 A.2d at 115; see also M.B. v. Women’s Christian Alliance, Civ. No. 00-5223, 2003 U.S. Dist. LEXIS 10105, *16-*17 (ED. Pa. June 16, 2003). As I have found, before the shooting, Mrs. DeJesus did not realize, nor should she have reasonably realized, that Mr. DeJesus was capable of homicidal acts against her or her children. In fact, relying on Ms. Outzs-Cleveland’s November 18, 1998 letter to the Delaware County Court, Mrs. DeJesus believed thather husband was less likely to abuse her and her family. Nothing Mrs. DeJesus did was a substantial factor in bringing about the deaths of the four children. See Ford v. Jeffries, 379 A.2d 111 (1977).
Accordingly, I conclude that the VA was grossly negligent in discharging Mr. DeJesus
and in not evaluating, detaining, or committing Mr. DeJesus, and that each of these acts of gross
negligence substantially caused the deaths of Alejandro DeJesus, Jr., Felicia DeJesus, Michael
Faulk, and Aaron Faulk. See Bloom, 597 A.2d at 677 n. 6, 679.

C. Negligent Infliction of Emotional Distress
To recover for negligent infliction of emotional distress, a third-party bystander must
demonstrate that she: (1) was located near the scene of the accident; (2) suffered “a direct
emotional impact . . . from the sensory and contemporaneous observance of the accident, as
contrasted with learning of the accident from others after its occurrence”; and (3) was closely
related to the injured party. See Edmonson v. Bug Stop, Inc., Civ. No. 00-2379, 2001 U.S. Dist.
LEXIS 15865, at * 3-* 4 (E.D. Pa. 2001) (emphasis added), citing Love v. Cramer, 606 A.2d
1175 (Pa. Super. 1992); see also Sinn v. Burd, 404 A.2d 672 (Pa. 1979); Krysmalski v.
Tarasovich, 622 A.2d 298 (Pa. Super. 1993).
Mrs. DeJesus has made out these elements. She was either in her apartment or fleeing to
the apartment a few feet away when she saw her husband shoot Michael Faulk and heard her
husband shoot her children and Aaron Faulk. (1.170-1.174). Thus, she was “near” the
“accident.” Her children – – Alejandro, Jr. and Felicia — were obviously “closely related” to her.
Hearing her husband shoot her children and Aaron Faulk has caused her to suffer stress, anxiety,
depression, and post-traumatic stress disorder. (P-88; P-89). Under Pennsylvania law, these
conditions constitute the requisite physical manifestations of “direct emotional impact.” See
Edmonson, 2001 U.S. Dist. LEXIS 15865, at *6 (anxiety, depression;, and post-traumatic stress
disorder constitute physical manifestations). Finally, under Pennsylvania law,
aural perception (hearing the impact) when considered togetherwith prior and subsequent visual observance . . .may produce a full,direct, and immediate awareness of the nature and import of thenegligent conduct which may foresseably result in emotional injury.
Neff v. Lasso, 555 A.2d 1304, 1313-14 (Pa. Super. 1989). Mrs. DeJesus saw her husband shoot
Michael Faulk and heard her husband shoot her children. Under Pennsylvania law, she has
proven the “sensory and contemporaneous observance” element of negligent infliction of
emotional distress. In these circumstances, Mrs. DeJesus has made out that the VA, in discharging Mr. DeJesus or in failing to treat, detain, or commit him, committed gross negligence, and that this gross negligence substantially caused her to suffer profound emotional distress. See Sinn v.Burd, 404 A.2d 672 (Pa. 1979); see also Krysmalski v. Tarasovich, 622 A.2d 298 (Pa. Super.1993).
Paul S. Diamond, J.
Case 2:02-cv-00253-PD Document 99 Filed 07/26/2005

ndard Form 95 for claim against Veterans Administration for Medical Malpractice


Veterans Service Officers v. Attorneys, Claims Help for Veterans

I’m worried to death. My attorney just read about the VSO hierarchy’ extravagant wages. He informed me he is angry that he did NOT make $400,000.00 last year nor was he so blessed in 2011. Actually, Bob’s rather in the hole somewhat due to the intransigence of fighting City Hall for his EAJA fees and Vets who sometimes think they are free to skate on his bill.

What terrifies me is that he may wait until the eleventh hour or later and up the ante. Roger that. I know. He is limited to 20% of the Wishwampum. Apparently many of you are unacquainted with the nefarious ways of these evil money grubbers. They have been known to write subcontracts indenturing you and your loved ones to manual labor. Last year, in order to induce him into taking my claim, I was forced to toil in the fields and give him 20% of my strawberry and raspberry production. I was even dunned for the dry ice and overnight shipping back to Michigan. With my firstborn male child poised to graduate from Gonzaga Law School next summer, I can see the writing on the wall. But let us put the jokes aside and discuss something far more pressing.

In regards to VSOs’ recent collective disdain for law dogs on Capitol Hill, consider this. I listened to a former VA employee, now a VSO, discuss just how horrific rainmakers are. All the usual diatribes about how they try to make it a life project so they can live off the EAJA funds were mentioned. Were you to swallow this, you would rationalize a law dog could live high on the hog and drive a Lexus This advice was tempered by how benign and “free” VSOs were. The implication was a VSO would guard your six whereas a slippery attorney looked at you like a cash cow. The disdain he felt for attorneys was palpable.

What Veterans seem to overlook is that they are dealing with rank amateurs who, as often as not, trade away your claims like baseball cards with the RVSRs or DROs. Veterans lawyers would not even dream of overstepping that client/ attorney relationship. Yet it is not unique to discover a service rep. who will do it in a heartbeat and convince you of the necessity to be “flexible”. This is perhaps the make-or-break legal aspect of the relationship that separates the VSO ribbon clerks from the poker players.

VSOs, and even VA , are fond of pointing out the statistical rate of wins at the BVA among VSOs versus lawyers. Viewing it myopically, one might think attorneys do not fare well there. The truth is that few are involved at this level coming fresh from the VARO. Most Veterans are loathe to cough up 20% until they have lost at both VA venues. What VSOs are not eager to discuss is their win/loss rate at the CAVC because-guess what- virtually none have law dogs in the fight there. That’s the ugly sister they keep upstairs out of sight. They have no record there. What’s more, most Veterans now have to step from one canoe into another right here in midstream. VSO’s aren’t fond of bringing up the subject of an appeal. As most know, they have the compensation tables right there at their desks and can easily compute your almost-guaranteed winnings just waiting to be claimed.

Imagine a court setup that only allowed you marginal, unskilled representation until your appeal reaches a Title I Appeals court. No more evidence may be admitted. No more lay statements to explain why you haven’t been accorded a voice. No one with a law degree within 10 miles permitted. Until you lose. A mad scramble then ensues to find a lawdog and get him briefed on the case in record time. Records Before the Agency have to be collected, dissected and forms filed. Motions for this and motions for that with deadlines. Pontius Pilate, your recent VSO, has now washed his hands of you. Most Vets are forced to scramble to NOVA or NVLSP like rats from a sinking ship. By now, your former friends have also inveigled you into joining their VSO and making generous contributions to the indigent CEO’s 401K.

The most interesting statistic now blooms. Fully 60% of all those claims by newly represented Vets with real lawyers see another day in Court-be it a remand to the BVA or the ” Go to Boardwalk”- back to the Agency of Original Jurisdiction. How do you think they do that? Fortunately for Veterans, the legal acumen of those folks fashioning the Texas Neckties for your denial is a little skinny. These new Best Faraway Friends (BFFs) you have just made at the CAVC can see through the VA’s subterfuge. A quick tug and the denial comes apart like a cheap Walmarket® sweater.

What is truly interesting is that VA knows  this and programs it in. “Wild hare” claims by pro se Vets often founder here but some of the egregious ones get traction. The majority who are represented, however, live to either win, get their claim vacated and a new adjudication, or even reversal. You don’t get to read about these. What is also patently obvious is that this statistic (60% ) is static. It never changes. Extrapolating backwards on a grand scale, one would not be far off prognosticating that perhaps 60% of all decisions emanating from Veterans Service Center “fast claims outlets” are equally in error. Were you to set aside all the futile Extraordinary Writs that pro se Vets file, the statistic jumps even higher. Add in the fact that the Office of General Counsel often relents at the eleventh hour and advocates removing it before adjudication and the percentage takes another jump.

Sadly, we will never know that 60% statistic is truly valid unless and until the 80 % of claimants who walk away emptyhanded decide to stand and fight. Should they chose to appeal, the VA backlog is going to metastasize like a runaway cancer. 2015 will become a pipedream. The BVA would have to hire another 60 Veterans Law Judges-strike that- 1600 to even stay abreast. As for the CAVC, they might have to fill that one last slot they’ve been holding for a political payback to some Senator’s son. That and recall all the old retired ones-Alzheimer’s or not.

Were I Chinese and someone of renown, I would declare 2013 the Year of the Veteran. More has been said, focused on, and discussed regarding us in the period of a few short months in 2013 that shines a glaring spotlight on the disparity of what is being done for us and indeed , what VA insists is being done. The whole concept of VA ex parte justice is nothing more than Kangaroo Kourt justice. When Vets recognize this, there may be a riot that will make the Bonus Army’s shenanigans look like child’s play.

VA rejects claim over HIV diagnosis
Hayward man’s lawyer suggests denial based on statute of limitations
By Michelle Meyers, STAFF WRITER
Inside Bay Area
HAYWARD — In the months since Jim Malone learned he had been wrongly diagnosed for eight years as HIV-positive, members of the international media — Oprah Winfrey included — have been knocking on his proverbial door.
..Malone was first told he tested positive for HIV — the virus that leads to AIDS — when he was hospitalized for chest pains in a non-VA Southern California facility in 1996. It wasn’t until this past August, however, that his Oakland VA doctor, Richard Karp, told him he was actually HIV-negative and took “full responsibility for his error,” according to an Aug. 4, 2004 letter.

Malone’s true HIV status was learned from a July 2004 test prompted by the VA’s updated software program. The software red-flagged Malone’s case because of his low viral load.

…”There was so much malpractice going on,” Harrington said, adding that for years the doctor didn’t administer his own HIV test even though there was conflicting information on his status.

Harrington also declined to release the VA’s denial letter. But she said it alluded to an expired statute of limitations. The VA claimed, according to Harrington, that an outside provider in 1998 administered an HIV test to Malone that came out negative, triggering the start of a two-year statute of limitations.


….Malone said he felt ashamed of receiving HIV support services all these years undeservedly. Now, without those support services, he is unable to make ends meet, which is what precipitated his planned move on April 1 to live with friends in Southern California.

An Army veteran and a former ambulance driver and mortuary employee, Malone went on disability in 1984 after rupturing two discs in his back while carrying a casket, he said. He has been collecting public assistance since, he said.

But Malone also has been working hard, at least in recent months, sharing his story with countless media outlets in an attempt to encourage those with HIV to ask a lot of questions.

Among his claims to fame with the media, Malone authored a piece in the New York Times Sunday magazine, was filmed for eight straight days for a BBC documentary, and has been featured on “Good Morning America” and other network morning shows. He was also interviewed from Geneva by the World Health Organization. One of his latest media requests came from the Oprah Winfrey Show, Harrington said.


Navy veteran’s widow sues U.S. for wrongful death

Tuesday, January 23, 2001

By Torsten Ove, Post-Gazette Staff Writer

Navy veteran Ken Rigby of Jeannette suffered from multiple sclerosis and died at 43 “after a painful and agonizing course,” in the words of his wife’s attorney. …


Rigby’s widow, Cynthia Rigby, says doctors at the Veterans Affairs hospital in Oakland mistakenly treated her husband’s illness with a volatile drug that ended up killing him in 1997. …

…At issue is a drug called ticlopidine hydrochloride — the brand name is Ticlid — that is used to keep blood from clotting too much and causing strokes.

In addition to being diagnosed with MS, Rigby had other health problems, including thrombocytosis, a condition in which the body produces too many platelets that make blood clot. Doctors at the VA hospital gave him Ticlid for it after a leg operation in September 1997. In December of that year he died of multiple organ failure. …

In September 1997, he had an angioplasty at the VA to treat pain in his leg and was discharged two days after the operation. Because of his blood disorder, he was put on aspirin. At some point, however, the drug was switched to Ticlid.

“I have no idea why that was done,” said Sacks.

Cynthia Rigby said she was told nothing about the new drug or its risks.

In October 1997, Ken Rigby collapsed at home and was rushed to the VA hospital. His kidneys and liver had failed. He was diagnosed with a condition in which the blood was so thin that it couldn’t clot normally, and both sides acknowledge that Ticlid induced it.

“I don’t think there’s any question that the drug caused his death,” said Harvison. “The question is why was he given the drug?”

Cynthia Rigby said a nurse at the hospital told her it should never have been prescribed.

“At that point I was just numb,” she said. “I had never thought it was negligence.”

On Dec. 13, 1997, Ken Rigby died. …


Woman accuses VA hospital of negligence

Thursday, August 15, 2002

By Torsten Ove, Post-Gazette Staff Writer


A South Side woman has filed a federal wrongful death suit against the U.S. Department of Veterans Affairs, charging that medical personnel at the Highland Drive VA Medical Center were negligent in not preventing her suicidal husband’s death in 2000.

Nancy L. McCluskey said that a doctor improperly concluded that her husband, Harry R. McCluskey, was drunk when he had actually taken an overdose of prescription medication.

Harry McCluskey, 44, was driven to the hospital on Feb. 10, 2000, by a friend, John Marshall, who told personnel that McCluskey had taken prescription pills to kill himself and had not drunk any alcohol. According to the lawsuit, Harry McCluskey also told Dr. Nosrotollah Danaee that he had taken the pills and “would do whatever it took to kill himself.”

Nancy McCluskey said the doctor concluded that her husband was drunk but didn’t order any lab tests to determine if he’d taken too much of the medication that had been prescribed for him. McCluskey had a history of treatment for post-traumatic stress disorder, alcohol abuse and pancreatitis.

He was admitted to the hospital at 1 a.m. and placed in a room by himself without monitoring. At 7:15 a.m., he was found unconscious and in cardiac arrest. Efforts to revive him failed and he was pronounced dead at 7:45 a.m.

A coroner’s report indicated that McCluskey died of Fluoxetine and Oxycodone toxicity. Both drugs were prescribed for him.

The suit is asking for $977,244, an amount based on McCluskey’s disability payments and other benefits had he lived.


Probe into 2 Deaths Ends at VA Hospital in Bultler, PA

Findings sealed; patients contracted staph infections

Friday, August 13, 2004

By Karen Kane, Pittsburgh Post-Gazette
A federal investigation of the circumstances surrounding the deaths of two patients at the Veterans Affairs Medical Center in Butler has been concluded, but officials won’t comment on what their inquiry found. ..

Local officials of the medical center have declined to answer specific questions regarding their internal inquiry except to say that it had been concluded, that their patient protocols are in compliance with national health standards set by the U.S. Centers for Disease Control and Prevention and that the facility has stepped up screening procedures.

Butler County Veterans Services Director John Cyprian had requested the federal probe after complaints from two county families who said their loved ones died from complications of an antibiotic-resistant staph infection they believe was contracted at the Butler facility.

Albert Richard McKnight, 76, of Forward, died May 20, at the VA hospital after he contracted methicillin resistant staphylococcus aureus (MRSA.)

McKnight had been brought to the hospital in February after being treated at Butler Memorial for congestive heart failure. He was assigned to a room with a diabetic amputee who had MRSA. McKnight’s family had asked that he be moved, but said the nurses advised them such a precaution was unnecessary.

According to the Centers for Disease Control and Prevention, staph bacteria are common causes of skin infections, most minor. But some infections can become life-threatening and difficult to treat due to the bacteria evolving into antibiotic-resistant.

After McKnight’s death was publicized, Cyprian received a call from the family of 63-year-old John Stevenson of Butler who had died May 4 at Mercy Hospital. He had been a patient on the fourth floor at the Butler VA hospital, where McKnight had been a patient. His wife, Gertrude, believes he contracted MRSA at the VA hospital, though he had been a patient at other facilities, and that he died from MRSA complications.

After that second call, Cyprian asked for a federal investigation. …


…Gertrude Stevenson said on Wednesday that she hasn’t heard anything from any veterans officials but is expecting to meet at some point. She said a meeting had been set up at the Butler facility in June but when she appeared with her attorney, officials said the meeting would be rescheduled. “We’re still waiting,” she said. …


…Meanwhile, Stevenson said she has heard of the Butler VA’s improvements in screening procedures. “Who knows, maybe lives are being saved because of all this,” she said. Post Gazette



The Hour-Long “Primetime” Report Airs April 8 at 10pm E.T.

In an hour-long “Primetime Thursday” investigation, Diane Sawyer uncovers disturbing new information about quality of care and questionable management practices at some of America’s veterans’ hospitals. These hospitals are the primary source of medical care for thousands of veterans — including some of those returning from the current war in Iraq. “Primetime” hidden cameras capture images of appalling sanitary conditions, as well as candid assessments from hospital employees and patients about the problems inside several troubled facilities. Sawyer also interviews veterans’ family members who tell chilling stories of misdiagnosis and neglect.

“PRIMETIME THURSDAY” airs APRIL 8 (10:00-11:00PM E.T.) on the ABC Television Network.

Fourteen years ago, Sawyer’s first report on problems at Veterans’ Administration hospitals raised eyebrows and prompted official investigations. Once again, “Primetime” hidden cameras secretly journey inside some of these hospitals, documenting alarming examples of potentially dangerous hygiene practices, outdated medical equipment, understaffed wards and overworked nursing staffers. “Primetime” also finds instances of doctors not showing up for surgeries and out-patient clinics.

Sawyer chronicles the stories of several vets whose misdiagnoses at V.A. hospitals had tragic consequences. Perhaps none is more powerful than that of Terry Soles, who served in the Navy during the war in Vietnam. Soles went to a V.A. hospital for two years complaining of intense abdominal pain and diarrhea. During that time, his lab tests were often lost and had to be repeated. He was seen by a series of residents who often didn’t know the course of treatment doctors before them had recommended. At one point, doctors thought Soles’ problem was psychosomatic. When his weight dropped to eighty pounds and he could no longer recognize his own son, Soles’ wife took him to private doctor, who found that cancer had pervaded his body. Soles died three days after the diagnosis.

Some critics say many of the V.A.’s biggest problems may be attributed to a lack of funding for staffing and treatment. Veterans typically wait months for an initial appointment in the mammoth hospital system.

V.A. Secretary Anthony Principi was scheduled to discuss these and other findings with Sawyer, but then cancelled their interview when he learned of the hidden camera footage. Deputy Undersecretary for Health Dr. Jonathan Perlin tells Sawyer that the code violations and mismanagement documented by “Primetime” are unacceptable and will be investigated. But, he says, they are anomalies in what is an otherwise improved and reformed veterans’ health care system. “This is a big system,” says Dr. Perlin. “We…take care of 7 million veterans…While the majority of care is good, in a big system, bad things happen.” will provide companion programming and carry reports from “Primetime Thursday” on ABC News Live, the 24/7 streaming video news network available on the Internet to subscribers. Go to for more information.

Diane Sawyer and Charles Gibson are the co-anchors of “Primetime Thursday.” Robert Lange is the executive producer. (CLOSE CAPTIONED)

— ABC —
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The information on this web site is designed to encourage a discussion about Veterans Administration medical malpractice, malpractice claims and procedures. It is not intended to be legal advice. Legal advice can only be obtained from an attorney. If you have a medical malpractice claim against the Veterans Administration, you should consult with an attorney who is familiar with handling medical malpractice claims against the Veterans Administration and the Federal Tort Claims Act.

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