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Arpin v. United States

November 15, 2006


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


I. Introduction

The day of a follow-up physical examination with Dr. Asra Khan was Jeannine and Ronald Arpin's 35th wedding anniversary. They did not know it would be the day that Dr. Khan, a second-year resident, and an Air Force Captain, Dr. James Haynes, who was charged with the duty to properly supervise her, sealed the fate of this husband, father, war hero and welder.

Ronald Arpin a U.S. Army veteran, spent sixteen years connected to the Army; eight years active and eight years in reserve. Jeannine, his wife, met him at Fort Leonard Wood. Her husband of thirty-five years saw a tour of duty in Korea and three tours of duty in Vietnam. He was a decorated war hero, having been awarded the Silver Star and a Purple Heart.

Was it friendly fire or blatant disregard for the life of this war hero that took him away from his family and country? Ronald Arpin, long out of the Army, was of late living only to protect his family, in a country for which he had already given so much. The Court decides it was a blatant, or at least reckless disregard, for the life of Ronald Arpin that cost him his life. Though time was not in short supply, the two doctors who are the subject of this legal examination treated it as though it was more important than this war hero's life. It wasn't. He suffered immeasurably. His family suffers and will continue to suffer and it didn't have to happen.

The damages the Court awards include medical bills: Medstar Ambulance: $372.80; St. Elizabeth's Hospital $55,885.25; Arch Air Medical Services $5,800.00; St. Elizabeth Belleville Family: $660.00; Belleville Radiologists $1,319.00; Neurological Service Belleville: $195.00; Dr. Zahid $1,570.00; SLUCARE-St. Louis University $5,845.00; and, St. Louis University Hospital $87,014.26. Also,Valhalla Funeral Home: $2,207.96. In addition, the Plaintiff will be compensated on the survival claim in the amount of $750,000.00 in non-economic damages. The Plaintiff will also be compensated for wage loss damages in the amount of $354,140.00, plus non-economic damages in the amount of $7,000,000.00 (apportioned as follows: Jeannine Arpin in the amount of $4,000,000.00; Ronnie Arpin in the amount of 750,000.00; Steven Arpin in the amount of $750,000.00; Pamela Jean Arpin-McDill in the amount of $750,000.00 and Cheryl Arpin Stallings in the amount of $750,000.00). The total damages awarded in favor of the Plaintiff and against both Defendants, jointly, is $8,265,009.27. The Court now FINDS and CONCLUDES as follows.

II. Findings of Fact

1. On September 19, 2001, Ronald Arpin fell from a chair while working for T. J. Gundlach Machine Co. Falling some three feet, Plaintiff's decedent landed on his right hip. He did not seek immediate medical attention.

2. Upon arriving at home from work, later that same day, Arpin, in considerable pain, discussed with his wife, Jeannine, the workplace injury. They had discussed it earlier by phone. Jeannine Arpin encouraged her husband to seek immediate medical care, but, consistent with his nature, Ronald Arpin opted to wait out the condition to see if it would improve after sleeping. This particular evening was unusual, in that, he had begun work much earlier in the day due to the requirement to take a test. This put him at home at 8:45 p.m., rather than the usual 1:00 a.m. in the early morning hours of the next day.

3. Unable to make it through the night sleeping, her husband awakened by intense pain, Jeannine Arpin called for an ambulance at 4:39 a.m. According to the Patient Report Form supplied by the emergency medical technician's who were the first medical providers for this ill-fated patient, they found him barely able to walk and recorded a 9/10 on the pain scale. An IV was established and per instructions from the ER he was medicated with morphine. It is noted by the Court that despite his suffering a 9/10 on the pain scale his skin moistness was noted to be normal, skin color was noted to be normal, and skin temperature was normal. It did not appear that pain alone caused him to sweat, go pale or skin temperature to rise or fall, at that point in time. (See, Plaintiff's Ex. 5.)

4. During his ER examination, staffed by a physician associated with the Family Practice Center of Belleville, Mr. Arpin, despite the presence of Morphine in his system, reported a pain level of 8/10. He was given 30 mg of Toradol by IV, 50 mg of Demerol intramuscularly, and 50 mg of Vistaril intramuscularly. He was diagnosed as having an acute lumbo-sacral strain and released with instructions to obtain prescriptions of Vicodin and Flexaril. He was to pursue bed rest for two days and remain off work for four days, seeking the further advice of his own physician or, if he had none, the Family Practice Center (Dr. Laffey or the on call physician) in seven to ten days if he had not improved. (See, Plaintiff's Ex. 5.)

5. Not only did Ronald Arpin fail to improve, he declined in health to the point that he died with multiple diagnoses including intraspinal abscess, staphlococcus aureus septicemia, shock, and acute renal failure. He started with a psoas edema on September 19, 2001 which resulted from his fall at work. That progressed to a psoas abscess, which is the focus of this litigation and for which the above provides the necessary background, but the Court gets ahead of himself.

6. For a bit more background, by way of corroboration, during the 20th through the 23rd of September, Ronald Arpin continued to suffer immensely and with increasing severity. His pain continued to increase in severity, despite his continued and regular use of the strong medication he was prescribed. He could not walk unaided. He did not leave his recliner except in the initial days to use the toilet. As he sat in the recliner, tilted back, he flexed his right hip and knee with the hip rotated inward (perhaps a medical anomaly or a medical necessity to remove weight from his injured hip) at all times.

7. During a family get together on the afternoon of the 23rd (meant to celebrate the 35th anniversary of the next day), attended by all his children, everyone noticed that he appeared really ill, pale or grayish in color, clammy, sweaty (wiping his brow regularly), with his shirt damp from the sweat, and short of breath. Suggestions by more than one family member that he go to the hospital were met with the response that his doctor appointment was the next day and he would wait for that.

8. The fact that Ronald Arpin was sweating, his skin was clammy, his skin color was pale or gray, short of breath, his best position of comfort was in a reclined position (as opposed to a prone position) with his right hip and knee flexed, even if it was rotated inward, demonstrates that by the 23rd of September, 2001, he was beginning to develop a psoas abscess and it was detectable by a medical professional reasonably performing according to the standard of care for diagnosing such conditions. The Court found the testimony of the Arpin family on the issues of pain, perspiration, skin moisture, shortness of breath, and skin color to be completely credible.

9. Ronald Arpin kept the earlier doctor's appointment that was made for him on September 24th, rather than wait the seven to ten days he was originally advised. With great difficulty, his wife and daughter, Pamela Arpin McDill, got him into the car and into the doctor's office. The Court finds that from the time Ronald Arpin got into the examining room until he struggled out with his wife and daughter, twenty minutes passed. However, only approximately four minutes of that time was actually spent with Dr. Asra Khan, the second year resident assigned the duty of Mr. Arpin's examination that day. Some time was spent with nurse Pamela Asbury asking the patient's chief complaint and telling him and his family how the clinic operates.

10. The Court specifically finds that nurse Asbury's testimony is not credible on issues related to her activities with and observations of the patient. She felt certain that if she had been told or observed that Mr. Arpin was sweaty, clammy, pallor, feverish, or short of breath, she would have recorded those things. She also testified that she had the patient on the examining table and it is clear that she did not, as that did not happen until the doctor came into the room. Clearly her recall of the events of that day are suspect and the Court finds her credibility as a historian to be lacking.

11. In observing the testimony of Dr. Khan, Dr. Haynes, Jeannine Arpin, Pamela Arpin McDill, and reading the dictated and typewritten note of the examination by Dr. Khan, the Court finds the following to be the credible recitation of the examination by Dr. Khan of Ronald Arpin on September 24, 2001. When Dr. Khan came into the examining room, Mr. Arpin was still in a chair leaning back and favoring his right hip. He was asked by the doctor if he could get on the examining table and he responded negatively by shaking his head. Undaunted, the doctor advised he must get on the table, whereupon, with great difficulty, Mr. Arpin, with the help of his wife, daughter and the doctor, struggled and inched his way up onto the table. Once on the table, the patient did not lay back but leaned back on his elbows, still favoring his right side by leaning to his left with his right hip and knee flexed. What was noticeable was that whether in the recliner, office chair or on the examining table, Mr. Arpin always attempted to assume a similar position; bent at the waist, hip flexed, weight off his right hip, right hip flexed more than the left and the right knee flexed and in a position to aid in taking weight off of the right hip. Dr. Khan did not ask about the obvious positioning and if one position gave him more comfort than another even though he clearly was attempting to replicate on the examining table what he was doing in the office chair (and what he had done at home). Mrs. Arpin advised the doctor that she was worried about her husband's lack of appetite, that he was sweaty, cold, clammy, color poor, and that his pain was worse. Mrs. McDill told the doctor that her dad was short of breath. The doctor asked where he hurt and he indicated in his right hip. The doctor felt and squeezed his hip and the surrounding area. She pushed his right leg down to straighten it, which was met with a loud scream of pain by the patient. (The word "loud" is emboldened to emphasize it as did Mrs. McDill.) That was enough for the doctor. Immediately after that, the doctor said he had a muscle sprain and needed a few more days to recover. Mrs. McDill asked if she did not think that an MRI was in order. Whereupon, displaying some degree of insult if not anger, the doctor said the examination was complete and the mother and daughter should take Mr. Arpin home at that time. Mrs. Arpin had to stop the doctor, who was quickly leaving, to ask for the work release that Mr. Arpin would need to stay off work. Mrs. McDill, expressing her own insult if not anger, took note that the doctor didn't stay to help them get her father off the examining table which, of course, turned out to be just as much of a struggle as getting him up there had been.

12. Dr. Khan, at the time of the examination of Ronald Arpin on September 24, 2001, was a second year resident. In other words, she was in her year of residency that followed her year of internship. It could also be called her first year of residency if one did not refer to her internship as a year of residency. However, the parties stipulated to the terminology that she was a second year resident and that seems to be recognized in this medical community as something understood to mean the year after she was an intern. At the time, she was practicing medicine in the State of Illinois on a temporary license. Dr. Khan graduated from Deccan College of Medical Sciences, Hyderabad, India in 1996. (SLU Def. Ex. 8.)

13. The Family Practice Center is the clinic structure operated pursuant to a contractual understanding between the 375th Medical Group of Scott Air Force Base, St. Elizabeth's Hospital, and St. Louis University. (See the second part of Plaintiff's Ex. 11.) It was explained during trial that there is a civilian half of the clinic and a military half. There are military residents and civilian residents. Moreover, preceptors, attending physicians, who are on duty for the purpose of supervising the residents may be either military or civilian and their supervision is not segregated to one type of resident or another. On the 24th of September, the preceptor on duty was Dr. James W. Haynes, now a Lt. Colonel of the United States Air Force. At the time, however, he was a Captain.

14. Dr. Haynes was new to the Belleville Clinic and faculty in August of 2001. (See 8 USA Def Ex. 24.) He did not recall, in fact, working with Dr. Khan prior to this particular day. In 2001, Dr. Haynes testified that he did not know what Dr. Khan's education was. He did not know where she went to medical school. Dr. Haynes further testified that he did not know how well Dr. Khan did in medical school. He did not know when she graduated from medical school or whether she was at the top or bottom of her class. Dr. Haynes testified that he has not seen her curriculum vitae. He also testified that he had not seen any documents attesting to her performance during her first year of internship, but does know she progressed from the first year to the second year. Dr. Haynes testified that, other than progressing from the first year to the second, he did not have any knowledge as to whether Dr. Khan was a good intern, a great intern, an average intern, or a lousy intern.

15. Dr. Haynes agreed that it was his responsibility to supervise Dr. Khan on September 24, 2001.

16. Dr. Haynes has no idea whether, on September 24, 2001, it was the first time he had worked with Dr. Khan or whether he had worked with her before that day. He would agree, however, that this literally could have been the first time he worked with her. Dr. Haynes could not testify that he had, prior to September 24th, ever gone in with Dr. Khan and observed her take a history from a patient, evaluate a patient, conduct a physical examination and then listen to her presentation based on those examinations. Despite that, he believed that he individualized his supervision of her in listening to her three minute presentation of her history and exam of Mr. Arpin.

17. The purpose of the interaction between the resident and the preceptor is to allow the interactions to involve the educational process so that a house officer (resident) or medical student will have the opportunity to conduct a medical history and perform a physical examination, while corroborating those findings from a somewhat more experienced perspective. (Pollock 9/15/2006 deposition, page 9, lines 11 - 18.)

18. Dr. Khan who, this Court believes, chose to ignore some of the symptoms conveyed to her by Mr. Arpin's wife and daughter, did not ignore one of the more important ones. The Court's inference is as follows. Dr. Khan had an opportunity to examine the ER record and could glean a good deal of information from one of her colleagues there; not wanting to vary from the diagnosis but hearing a very large man scream out in pain as she tried to push his leg straight on an examining table, having just approved an entire month off work for Mr. Arpin and needing to justify it despite recording a conservative exam, Dr. Khan needed something to back up her time-off work note, so she remembered to tell Dr. Haynes about the patient's claim of an increase of pain, which was significant to begin with. On the other hand, Dr. Haynes on this issue has stated all of the following: that such a discussion was not part of his conversation with Dr. Khan; that he did not discuss it with Dr. Khan; that he does not recall discussing it with Dr. Khan; and that he is not denying she told him, he just doesn't recall her telling him. Suffice it to say, that Dr. Haynes' credibility on this particular issue is nonexistent in the Court's judgment.

19. In fact, it is the Court's inference that Dr. Haynes denies being told of that symptom because he knows of its significance and that he cannot justify not seeing the patient if one concludes that he knew of that symptom. He even said if he knew of that symptom it would have raised his suspicions and he would have gone in to see the patient. The Court finds that the preceptor lacks credibility on this issue. Based on the credibility of the testimony received, Dr. Khan saying she told Dr. Haynes and he denying it, the Court finds, on this issue, Dr. Khan more credible and finds that Dr. Haynes knew that Mr. Arpin was suffering from an increase in pain from when he was previously seen in the ER. That means, even on a regimen of Vicodin and Flexaril, Mr. Arpin's pain had increased from a 8/10 to something even greater.

20. Dr. Haynes testified that if he had known that there was an increase of pain, he would have gone in to see the patient because it would have made him suspicious. This is significant because Dr. Haynes testified that had he gone in he would have gone over the history himself and, in looking at the written exam notes there is already some psoas pathology noted, so his questions to the patient undoubtedly would have led him to a conclusion of psoas pathology.

21. The Court does, however, believe Dr. Haynes when he says that Dr. Khan did not tell him that Mr. Arpin could not lay down. It is clear from the evidence that Dr. Khan did not know, at the time of her examination of Mr. Arpin, about psoas pathology and the importance of the combination of symptoms that point to that pathology. Even at the time of trial, she disagreed with Dr. Haynes that the standard of care required for a proper diagnosis that she learn about the duration of a patient's pain, to learn if the patient's symptoms had progressed, to learn if the patient's symptoms had gotten worse or better, to learn what factor's make a patient's symptoms worse or better or if there are any associated symptoms and she did not necessarily agree with Dr. Haynes that learning what factors relieve or exacerbate symptoms is essential in a differential diagnosis.

22. A CT Scan or MRI would have shown the collection of blood or fluid pooling in and around the psoas muscle, which together with the other symptoms, would have indicated a need to drain the liquid for testing. Tests likely would have confirmed the presence of bacteria, which could have been treated with antibiotics. Had Mr. Arpin been treated for an infection on September 24th, ...

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