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LIEBIG-GRIGSBY v. U.S.

March 11, 2003

SUSAN LIEBIG-GRIGSBY, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Rebecca R. Pallmeyer, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Susan Liebig-Grigsby, suffers from cervical myelopathy. She had good results from surgery on her spinal cord at the Hines Veterans Administration Hospital in 1995. Two years later, when she presented with symptoms indicating the need for further surgery, VA doctors failed to refer her to a neurosurgeon, and her condition deteriorated severely. Her mobility and sensation now substantially impaired, Plaintiff brought this two-count complaint for medical negligence against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346 and §§ 2671-2680. The first count alleges that Veteran's Administration staff failed to properly treat the Plaintiff's progressive neurological dysfunction, resulting in loss of feeling and muscle ability in Plaintiff's legs and right arm. The second count alleges spoliation of evidence, specifically, two volumes of Plaintiff's medical records. The court conducted a bench trial in December 2001 and now finds in Plaintiff's favor, but reserves a final award of damages pending further information from the parties regarding Plaintiff's projected future healthcare costs.

FINDINGS OF FACT

The Plaintiff was born on March 22, 1945. (Plaintiff's Modified Final Pretrial Order/Trial Brief at 2.) She served in the United States Army from 1962 to 1963, when she was honorably discharged. Since at least 1995 the Plaintiff was a patient at VA facilities in the Chicago area: Westside Medical Center (occasionally in its Women's Health Clinic) and Edward J. Hines Hospital.

A. Diagnosis and Treatment of Plaintiff's Cervical Myelopathy in 1995

In 1995, Plaintiff sought treatment for neck pain at Westside. After a few visits with Dr. Karen Davis, in October 1995 Plaintiff was referred to Dr. Gwenn Garmon, an internal medicine physician at Westside.*fn1 (Testimony of Dr. Gwenn Garmon.) Dr. Garmon performed a physical examination and observed muscle weakness in the Plaintiff's lower extremities, which she thought might be a result of myelopathy an abnormality in the connection between nerves and muscle groups. (Id.) Dr. Garmon noted that Plaintiff had a difficult gait, walked unsteadily, and was unable to feel temperature change. Because these neurological symptoms represented a marked change from observations Dr. Davis had made only two days earlier, Dr. Garmon referred Plaintiff to a neurologist on an emergency basis and directed Plaintiff to use a wheelchair. (Id.)

Plaintiff saw a neurologist at Westside, Dr. Christina Orfei, on October 18, 1995. In her examination, Plaintiff complained to Dr. Orfei of weakness, numbness and coldness in her arms and hands, and severe pain in her neck and back. She also exhibited unsteady gait and reported having fallen several times in the recent past. (Testimony of Dr. Orfei.) Dr. Orfeis examination revealed severe hyperreflexia in the lower extremities with associated clonus in both lower extremities. Her hands were weak as well, with their strength measuring at 3/5 on the right and 4/5 on the left.*fn2 (Expert Report of Jack Wilberger, Pl.'s Ex. 8.) Dr. Orfei diagnosed Plaintiff as suffering from cervical myelopathy.

Cervical myelopathy is a dysfunction or malfunction of the spinal cord which results from cervical spondylosis, an arthritic condition that many people develop as they age, in which bone spurs form in the direction of the spinal cord, causing pressure against nerve roots or the spinal cord. (Testimony of Dr. Christina Orfei and Dr. James Wilberger.) Symptoms of this disease are spasticity (muscle contractions while the body is at rest), hyperreflexia (a condition in which the deep tendon reflexes are exaggerated), and clonus (a form of movement characterized by contractions and relaxations of muscle occurring in rapid succession). (Id.)

Having detected these symptoms in Plaintiff, Dr. Orfei ordered an urgent magnetic resonance imaging ("MRI'). (Testimony of Dr. Orfei.) Dr. Jack Wilberger,*fn3 an expert witness for the Plaintiff, examined the results of that cervical MRI scan (done on October 25, 1995) and found it to show significant and severe cervical stenosis (stricture in the neck vertebrae) at both the C4-5 and C5-6 levels of the vertebrae. (Testimony of Dr. Wilberger.) In addition, he noted a hyperintense signal*fn4 within the spinal canal behind the C4-5 disc space consistent with what is typically seen with prolonged severe compression of the spinal cord. (Id.)

Dr. Orfei concluded that Plaintiff needed immediate surgery to correct the severe pressure on her spinal cord. Because Westside does not have a neurosurgery department, Dr. Orfei transferred Plaintiff to Hines, where, on November 3, 1995, Plaintiff underwent extensive anterior cervical surgery. (Id.) Plaintiff's operation report reflected that there were no complications during surgery. (Pl's Ex. 1, p. 4-7.) Her discharge summary, dictated on November 11, 1995, typed on November 21, 1995, and signed by a Dr. D. Anderson, included the following statement: "clonus and myelopathic signs were all but completely resolved by postoperative day #2." (Pl's Ex. 1, p. 16.) The summary also noted that the Plaintiff was able to walk without any difficulty. (Id.)

B. Follow-up to 1995 Surgery

The Plaintiff received follow-up treatment approximately six times at Hines from the point of her discharge through some time in September 1996. (Expert Report of Dr. Wilberger.) With few exceptions, the records of these visits showed that Plaintiff's condition had improved. (Id.) In July 1996, a physician from the neurosurgical clinic noted that there had been "postoperative deterioration"*fn5 and did recommend a new MRI scan of the cervical scan, as well as an evaluation by a neurologist to "rule out neuropathy or myopathy [skeletal muscle disease]." (Expert Report of Dr. Wilberger.)

Plaintiff did see a neurologist, Dr. John Wilson, on August 28 1996.*fn6 Although Dr. Wilson noted at that time that Plaintiff "has not improved with decompression," Dr. Wilberger noted that the conclusion was inconsistent with other records, except the one from July 1996. (Id.) Dr. Wilson conducted a detailed neurological examination and found that the Plaintiff's upper extremity strength was 5/5, which, Dr. Wilberger observed, was a significant improvement to Plaintiff's preoperative condition. (Id.) Dr. Wilson also noted that Plaintiff had greater strength in her lower extremity as well. Her reflexes were recorded as 3/4, no clonus was detected, and no pathological reflexes were found. (Id.) Dr. Wilberger determined these signs all indicated the 1995 surgery had been beneficial. (Id.)

An MRI scan was also performed on July 22, 1996, and the results showed no residual significant compression at the operative site, nor any significant ongoing spondylitic disease (inflammation of the vertebrae) at any other site. (Id.) According to Dr. Wilberger, the July 1996 MRI results demonstrated that Plaintiff's surgeons had successfully removed several pieces of bone and replaced them with a metal plate to fuse her vertebrae. (Testimony of Dr. Wilberger.) The scan showed that the pressure on Plaintiff's spinal cord had been significantly relieved and the hyperintense signal had disappeared. (Id.) Again, according to Dr. Wilberger, the lack of compression reflected in the 1996 MRI was evidence that the initial surgery was successful. (Id.)

Dr. Wilson again examined the Plaintiff in October 1996. (Testimony of Dr. Wilson). He noted that her signs of myelopathy had improved and she was able to walk, sit, stand, and easily move from sitting to standing position. There was no evidence of hyperreflexia or clonus, and her reflexes were uniformly 3/4 (a good sign, in Dr. Wilson's view). (Id.) Because she continued to complain of pain, however, and because he wanted to be sure there were no signs of radiculopathy (disorder of the spinal nerve roots) that were not clinically apparent, Dr. Wilson recommended that Plaintiff undergo an EMG (electrical test of Plaintiff's muscles). (Id.) The evidence does not reveal whether she did so. (Id.)

C. Plaintiff's Deterioration in 1997

On April 7, 1997, a psychiatrist named Dr. Yan examined Plaintiff at Westside and noted that Plaintiff was having trouble ambulating. According to Dr. Yan's report, Plaintiff exhibited hyperreflexia, clonus, and deterioration of gait. (Testimony of Dr. Orfei.) The clonus in Plaintiff's lower extremities represented a significant worsening from the time she was operated upon and the time that she was seen by Dr. Wilson a few months previously. (Expert Report of Dr. Wilberger, Pl.'s Ex. 8.) Dr. Orfei testified that in this precarious condition, a patient could seriously injure herself if she fell. (Testimony of Dr. Orfei.) Dr. Yan's only recommendation was that Plaintiff consider using a wheelchair. (Id.) The record does not indicate whether Plaintiff took Dr. Yan's advice; Plaintiff testified she has been using a wheelchair since October 1997. (Testimony of Liebig-Grigsby.)

Plaintiff did suffer a fall soon after the visit, and on April 10, 1997, Plaintiff went to the surgical clinic at the Westside VA where Dr. Garmon treated her for her injuries. (Testimony of Dr. Garmon.) At this visit, Plaintiff presented the same symptoms she had in October 1995, before her surgery. Her knees were unstable; she had experienced falls in addition to the most recent one; and she suffered from fatigue, insomnia, and incontinence. (Id.) Although Plaintiff remained able to walk, she was noted to have weak grips bilaterally and bilateral weakness of her lower extremities. (expert Report of Dr. Wilberger, P1's Ex. 8.) Cervical spine x-rays showed significant bone loss at the C4-5 level with complete loosening of the second and third screws of the Orion plate system and early partial loosening of the first and fourth screws).*fn7 (Id.)

Dr. Garmon testified that the symptoms exhibited by the Plaintiff on April 10, 1997 were of the type that should be referred to a neurologist. Nevertheless, Dr. Garmon did not make such a referral. She testified that she did not do so because Plaintiff told Dr. Garmon that she was already scheduled to see a neurologist the following week. (Id.) Dr. Garmon asked the Plaintiff to come back to see her two weeks later for a follow-up. (Id.) She also made a note of her intention to recommend to the neurosurgery team at Hines that the Plaintiff be put back on Baclofen, a muscle relaxer and anti-spastic drug, as the Plaintiff had stopped taking the medication when she had surgery in 1995. (Pl's Ex. 1, p. 40.) Dr. Garmon also reported that she "would like to consolidate care here — unfortunately can't transfer over entirely at this time as neuro surg and heart surg only at Hines will however obtain their plan of action through letters, hopefully." (Id. at 41.) VA records show Plaintiff did not see Dr. Garmon for a follow-up visit. She cancelled an April 22, 1997 appointment at Hines (the record does not identify the doctor she was scheduled to see) and an April 24, 1997 appointment with Dr. Garmon. (Pl's Ex. 3.) Plaintiff apparently did see doctors at both Westside and Hines on April 28, 1997, however. (Id.)

There was little evidence submitted regarding the Plaintiff's physical condition between April and October 1997. Notes made by Marianne Olenych, a registered nurse at Westside, reflect that the Plaintiff was experiencing psychological ups and downs during this period, and the records indicate she was examined at either Westside or Hines approximately eight times. (P1's Ex. 3.)

D. Further Treatment in Late 1997

In October 1997 Plaintiff fell backward down a flight of stairs at her son's home and went to Westside for treatment, where she saw Dr. Orfei for the first time since before her surgery in 1995. (Testimony of Liebig-Grigsby.) Dr. Orfei observed that the Plaintiff again exhibited hyperreflexia, unsteady gait, and loss of balance. Because Plaintiff had experienced a fall, Dr. Orfei ordered an x-ray. (Testimony of Liebig-Grigsby.) The x-ray revealed no fractures, but because it showed loosening bones and screws in Plaintiff's neck, Dr. Orfei determined to refer Plaintiff to Hines. She called Hines neurosurgery and spoke to someone who described himself as the "attending physician," and advised Dr. Orfei that "the solidity of the spine depends mainly on bone fusion and they all get loose due to bone reabsorption."*fn8 (Testimony of Dr. Orfei.) After this conversation, Dr. Orfei advised the Plaintiff to see a neurosurgeon and provided her with a wheelchair. Plaintiff testified that she has been using a wheelchair ever since.*fn9 (Testimony of Liebig-Grigsby.)

Dr. Orfei testified, based on her own recollection and notes of Plaintiff's psychiatric nurse, that the Plaintiff did in fact see a neurosurgeon at Hines in October 1997 and discussed the surgical spine x-ray results with a neurosurgeon. (Id.) There is nothing in the record documenting such a conversation, but there is evidence that Plaintiff saw a neurosurgeon, Dr. McGregor, at Hines on October 27, 1997. (Def's Ex. 1(A), p. 114-15, Def.'s Ex. 1(C), p. 384.) In a session with Ms. Olenych, Plaintiff described her visit with Dr. McGregor as horrible. The Plaintiff stated she felt abandoned and unattended to by the Hines staff, and was very upset by Dr. McGregor's assessment of her condition: Plaintiff reported that Dr. McGregor said that she had deteriorated, that her condition would worsen and could not be treated further, and that she would require a motorized wheelchair to help her get around. (Def,'s Ex. 1(A), p. 114.) She also expressed to Ms. Olenych that she did not want to go to Hines because when she was hospitalized there in 1995 her roommate had committed suicide.*fn10 (Def.'s Ex. 1(A), p. 116.)

In November 1997, Dr. Orfei examined the Plaintiff again, and observed that she was at that point "able to stand, but not safely ambulate," and that she exhibited spasticity and weakness. (Expert Report of Dr. Wilberger, Pl's Ex. 8.) Plaintiff's lower extremity strength was graded at 3/5, and her left arm strength was the same, but Plaintiff was not using her right arm (it was apparently in a sling). No clonus was documented, but her deep tendon reflexes were found to be significantly hyperactive. Dr. Orfei ordered an MRI and an EMG. (Testimony of Dr. Orfei.)

A cervical MRI scan, performed on December 2, 1997, showed Plaintiff's condition had worsened since her July 1996 MRI, which had revealed no abnormalities. (Testimony of Dr. Orfei.) Nevertheless, Dr. Orfei did not feel that surgery was in order at that time. (Id.) Dr. Wilberger's assessment was quite different. He noted that the MRI showed "significant artifact"*fn11 from C4 to C6 subsequent to Plaintiff's 1995 surgery. (Expert Report of Dr. Wilberger, P1's Ex. 8.) Dr. Wilberger observed severe stenosis at C3-4 and C6-7 above and below the site of the previous surgery. In addition, he noticed a hyperintense signal within the spinal cord at approximately the 05 level, evidence of ongoing severe compression of the spinal cord. (Id.) Dr. Wilberger explained that the stresses and strains above and below the site of surgery over time can lead to development of additional bone spurs causing a second series of compressions, resulting in new conditions and requiring attention. (Testimony of Dr. Wilberger.) Dr. Orfei herself observed that the two signals of compression above and below the surgery site, reflected in the 1997 MRI, was an even worse sign than the results of the 1995 MRI. (Testimony of Dr. Orfei.) Dr. Orfei nevertheless did not send the MRI scan to a neurosurgeon, nor did she refer the Plaintiff to a neurosurgeon for examination. (Testimony of Dr. Orfei.) Dr. Orfei determined that surgery would probably not help the Plaintiff, and did not advise the Plaintiff one way or the other. (Id.) Instead, Dr. Orfei determined the best course was one of conservative treatment and maintenance of Plaintiff's muscle strength through physical therapy and exercise. (Id.)

Dr. Orfei acknowledged in her testimony that one of the reasons she did not take the Plaintiff's condition more seriously was her failure to go back and review the Plaintiffs records from postoperative 1995 through 1997 when she saw the Plaintiff again. Dr. Orfei explained it was difficult for doctors at Westside to access records from Hines. (Id.) If she had, Dr. Orfei stated, she would have seen the significant deterioration that had occurred in the Plaintiff after her apparently successful surgery. lnstead, Dr. Orfei diagnosed the same conditions she had seen in the Plaintiff's myelopathic state as of 1995. (Id.) Dr. Orfei also asserted candidly that in 1997, the Plaintiff's stenosis was decompressable, and surgery could have taken pressure off the spinal cord which might have improved the Plaintiff's worsening myelopathy. (Id.)

The Plaintiff testified that at no point during 1997 did any doctor speak with her about the possibility of a second surgery to treat her condition. She asserted that if she had been advised that surgery was a viable option, she would ...


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