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Scally v. Veterans Administration

February 7, 2006

BETTY SCALLY, INDEPENDENT EXECUTOR OF THE ESTATE OF JOHN SCALLY, DECEASED, PLAINTIFF,
v.
VETERANS ADMINISTRATION AND UNITED STATES OF AMERICA, DEFENDANTS.



The opinion of the court was delivered by: Gilbert, District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case was tried to the Court on December 5-6, 2005. At the conclusion of the evidence and arguments, the Court ruled against the plaintiff, Betty Scally, independent executor of the estate of John Scally, deceased, and in favor of the defendants, Veterans Administration and United States of America.

I. FINDINGS OF FACT

1. The Veterans Administration Medical Center ("VAMC") in Marion, Illinois, an agency of the United States of America, employed Dr. Vandu Nagpal, Dr. Varadendra Panchuamuhki and Roxanne White, R.N., and in the instant case, they are agents of the United States.

2. Dr. B. Theo Mellion, at all times relevant to this action, was a neurosurgeon in private practice, and performed surgery predominately at Memorial Hospital of Carbondale.

3. Dr. Mellion treated VAMC patients on a contract for services fee arrangement, but neither Dr. Mellion nor the Memorial Hospital of Carbondale was otherwise affiliated with VAMC or the United States.

4. John Scally, age 62 and now deceased, was a patient at the VAMC and had a medical history of coronary artery disease, hypertension, diabetes, hypercholesterolemia, degenerative osteoarthritis, chronic renal insufficiency, gynecomastia and obesity.

5. Mr. Scally injured his back in the mid-1950s while serving his country in the United States Marine Corps.

6. Mr. Scally underwent lower back surgery in the late 1960s or early 1970's for a herniated disk, but due to progressive osteoarthritis, suffered from lower back pain for 20 to 30 years prior to his death .

7. From the mid 1990's on, Mr. Scally's back pain had gotten progressively worse, becoming so severe that Mr. Scally was able to walk only 20 to 30 feet prior to resting, could not retrieve mail from his mail box, and could not hunt and fish with his grandchildren anymore.

8. As early as 1998, Mr. Scally's back problems were so severe that Gary Miller, M.D., a VAMC employee, presented Mr. Scally's case to the Spine Conference at the John Cochran Veterans Administration Medical Center, St. Louis, Missouri, a routinely held conference involving numerous orthopedic surgeons. Following the presentation, a determination was made that Mr. Scally would benefit from surgical intervention.

9. Mr. Scally sought help from Dr. Mellion and wanted back surgery if it would alleviate his pain and give him some ability to better enjoy life. On January 19, 2001, Dr. Mellion saw Mr. Scally at the pain clinic at VAMC and advised Mr. Scally that he was a likely candidate for surgery.

10. Dr. Mellion testified that, notwithstanding the attendant risks, in situations where patients suffer from severe back pain and conservative intervention has not helped, a usual response is for them is to say "I can't live with this, I've got to take the chance, I've got to do something."

11. Dr. Mellion's examination of Mr. Scally showed that Mr. Scally suffered from degenerative disk disease and foraminal stenosis with severe mechanical lower back pain as well as intermittent left-sided radicular pain.

12. Dr. Mellion told Mr. Scally that his symptoms might be either helped or worsened by surgery.

13. Dr. Mellion testified, and the Court finds, that Mr. Scally was "a guy that was really quite miserable and wanted to consider having something done."

14. Dr. Mellion testified, and the Court finds, that he met with both Mr. and Mrs. Scally and informed them at length about the risks which surgery carried. See paragraph 49 of this order regarding the credibility determinations with respect to this meeting with Dr. Mellion.

15. Dr. Mellion provided Mr. and Mrs. Scally with the first of two consent forms ...


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