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Gerald Morisch and Bette Morisch v. United States of America

July 29, 2011

GERALD MORISCH AND BETTE MORISCH, PLAINTIFFS-APPELLANTS,
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Southern District of Illinois. No. 3:07-cv-145-GPM-G. Patrick Murphy, Judge.

The opinion of the court was delivered by: Tinder, Circuit Judge.

ARGUED FEBRUARY 22, 2011

Before WILLIAMS and TINDER, Circuit Judges, and GOTTSCHALL, District Judge.*fn1

Gerald Morisch brought a medical malpractice claim against the United States under the Federal Torts Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80, after suffering a severe stroke in July 2003. He alleges that the medical personnel at the Veterans Administration (VA) hospital failed to take appropriate measures to determine that he was on the verge of a stroke and minimize the resulting damage. Bette Morisch, Gerald's wife, brought a loss of consortium claim against the VA that was later dismissed. Both plaintiffs also sued their former attorney, Robert D. Kreisman, P.C. (Kreisman), for legal malpractice. The district court held a four-day bench trial on the medical malpractice claim that was combined with a jury trial on the legal malpractice claim. The jury returned a verdict in Kreisman's favor and the district court later issued written findings of fact and conclusions of law on Gerald's FTCA claim, resulting in a judgment in the government's favor. The court concluded that Gerald failed to establish a violation of the standard of care and failed to prove that any act or omission of the VA proximately caused his injury.

The only substantive issue on appeal is Gerald's FTCA claim against the government. (The claim against Kreisman was apparently settled around the time of the verdict and the adverse jury verdict was not ultimately appealed). The plaintiffs testified that a few weeks before Gerald's stroke, Bette called VA hospital personnel on two occasions to notify them that Gerald was having stroke-related symptoms, but they did nothing. The district court discredited Bette's testimony in part because phone records failed to establish that those calls were made. Gerald argues that even assuming Bette's testimony was not credible, the district court should nevertheless have considered the VA's breach of its standard of care in not properly following up with Gerald after VA doctors performed a computerized axial tomography (CT) scan of his neck and concluded that he should undergo a follow-up ultrasound. Gerald wasn't contacted about the need for the ultrasound until afer his stroke. If VA personnel had called him earlier, Gerald contends, he could have informed them about his symptoms, which should have prompted treatment.

An overarching procedural problem with Gerald's appeal limits our ability to address his claim. The only transcript from the bench trial that Gerald ordered and included in the record on appeal was the testimony of government expert witness Dr. Terrence Riley. This incomplete appellate record hinders our ability to conduct a meaningful review of the district court's findings. As such, we find that Gerald forfeited his appeal. We could end our discussion there, but we mention for completeness that based on the record available, the district court didn't err in concluding that Gerald failed to show that the VA's conduct was the proximate cause of his injury.

I. Facts

On May 19, 2003, Gerald went to the emergency room of the VA Medical Center in Marion, Illinois. He complained of pain in his right jaw and neck. A physician prescribed pain medication and told him to see a dentist,*fn2 days later, Gerald returned to the Marion VA hospital for a follow-up examination by Dr. James Richards, Gerald's primary care physician. Dr. Richards examined his neck and carotid arteries and referred him to an ear, nose and throat (ENT) specialist at the VA Medical Center in St. Louis, Missouri. Dr. Richards counseled Gerald about weight, cholesterol, and blood pressure, which are risk factors for stroke. Dr. Riley, a neurologist who testified on behalf of the government, opined that there was no reason to believe that Gerald had carotid artery disease or was at risk for an imminent stroke and that referring Gerald to an ENT doctor was the appropriate next step. (Excerpt Trial Tr. (Dr. Riley's testimony), 11-12).

Gerald saw Dr. Dun Ha, an ENT specialist at the St. Louis VA hospital, on June 16, 2003. After examining Gerald, Dr. Ha noted a small mass in his right neck. She suspecting that Gerald had Eagle's syndrome. Two performed a needle biopsy of the mass and ordered a CT scan of Gerald's neck. Dr. Riley testified that the mass was not a warning sign that Gerald was at risk for an imminent stroke. (Riley Tr. 13). Dr. Gracy Thomas, a radiologist at the St. Louis VA hospital, performed the CT scan on June 30, and interpreted the scan. He indicated that atherosclerotic changes were noted in the visualized portions of the upper aorta and suggested (internally) a follow-up evaluation by ultrasound. The impression stated: "For palpable masses, a follow-up evaluation by ultrasound is suggested." No one informed Gerald of the result of the biopsy (which was negative) or the CT scan; no ultrasound was ever scheduled.

The plaintiffs testified that on June 16 and June 30, 2003, Bette called the St. Louis VA hospital informing them of transient ischemic attack (TIA, also referred to as mini-stroke) symptoms that her husband was experiencing. They testified that while they were driving back home from Gerald's examination by Dr. Ha, Gerald experienced tingling and numbness in his left arm. At her deposition, Bette testified that she contacted the St. Louis VA hospital via cell phone to alert VA personnel that Gerald was undergoing TIAs. The plaintiffs also testified that while driving back home after the CT scan by Dr. Thomas, Gerald experienced numbness in his left arm and temporary blindness. Bette testified again at her deposition that she contacted the St. Louis VA hospital via cell phone to alert VA personnel to Gerald's condition.

On July 13, 2003, after having more signs and symptoms of an impending stroke, Gerald went to Massac Memorial Hospital in Metropolis, Illinois, and from there was transferred to Lourdes Hospital in Paducah, Kentucky. Dr. John Grubbs accepted Gerald's transfer to Lourdes. Gerald complained of weakness and numbness in his left arm and left facial drooping. He was diagnosed with right internal carotid artery stenosis with an acute stroke. Lourdes performed emergency carotid endarterectomy (surgery to remove plaque buildup in the carotid arteries, see Healthwise Staff, Carotid Endarterectomy for TIA and Stroke, WEBMD (Jan. 7, 2011), http://www. webmd.com/stroke/carotid-endarterectomy-for-tia-and-stroke; however, Gerald had already suffered damage from the stroke. On July 15, 2003, Bette received a phone call from the St. Louis VA hospital informing her that Gerald needed an ultrasound.

Dr. Riley testified that the results of the CT scan and biopsy should have been relayed to Gerald and not relaying those results is a violation of the standard of care. (Riley Tr. 45, 48-49). He also testified, however, that it was not urgent to relay the results and opined that "there [was] nothing in this CAT scan that [was] more urgent than two or three months." (Id. at 49). Dr. Riley further testified that the finding of atherosclerotic changes in Gerald's CT scan was not a cause for alarm and is universal to some degree in Americans over the age of 50. (Id. at 14-15) According to Dr. Riley, a finding of atherosclerosis does not suggest the need for an emergency carotid ultrasound and in fact, without other symptoms, does not suggest the need for one at all. (Id.). He explained that the VA doctors were looking for a mass, and because they did not find it on the CT scan, they were going to follow up with an ultrasound. (Id. at 15). Based on the results of the CT scan, Dr. Riley opined that Dr. Thomas would recommend a static ultrasound, which would not have detected a blockage of Gerald's carotid artery. (Id. at 16). Instead, the VA would have needed to do a doppler ultrasound to find blockage and the results of the CT scan did not suggest a need for this type of ultrasound. (Id. at 17).

Dr. Riley also testified that even if VA doctors had examined Gerald, found an occlusion, and performed the carotid endarterectomy, these actions wouldn't have prevented the type of stroke Gerald suffered. (Id. at 28-29). Gerald had a "lacunar infarction," which causes a very small, discrete, dense lesion in a small, discrete place in the brain. (Id. at 19). As such, Dr. Riley testified that Gerald's stroke was not caused by atherosclerosis and was unrelated to his carotid artery. (Id. at 39, 55). Gerald's stroke, according to Dr. Riley, was not detectable before July 13. (Id. at 56). Dr. David Schreiber, a neurologist who testified on behalf of Gerald, opined that a carotid endarterectomy would have made the damage resulting from the stroke minimal; Dr. Riley disagreed with this assessment. (Id. at 23-24). Dr. Schreiber, however, testified that he doesn't criticize the VA doctors for what they did before receiving the phone call from Bette. (Schreiber's Dep. at 93:9-93:24) . He*fn3 stated: "The phone call . . . is the thing. It says he's having a stroke." (Id.).

At trial, Dr. Thomas, Dr. Riley, and Dr. Schreiber testified that nothing in the CT scan of Gerald's neck suggested a need for emergency treatment. "Dr. Schreiber testified at trial . . . that, assuming that the cell phone calls in fact were made, the failure of the VA promptly to act on Mrs. Morisch's information was a breach of the standard of care. As Dr. Schreiber testified also, however, if the calls were not in fact made, there was no breach of the standard of care because, as noted, nothing in the CT scan of Mr. Morisch's neck suggested that Mr. Morisch required emergency treatment." Morisch v. United States, No. 07-145-GPM, 2009 WL 3349541, at *1 (S.D. Ill. Oct. 15, 2009). Based on the testimony ...


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