United States District Court, S.D. Illinois
MICHAEL E. GUNTER, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM AND ORDER FOLLOWING BENCH TRIAL
M. YANDLE, UNITED STATES DISTRICT JUDGE.
Michael Gunter filed the instant medical malpractice action
pursuant to the Federal Tort Claims Act, 28 U.S.C. §
2671 et seq. (“FTCA”), alleging that
certain physicians and employees of the Marion VA Medical
Center (“Marion VA”) were negligent in failing to
timely diagnose and treat his prostate cancer. The Court
conducted a four-day bench trial (Docs. 49, 50, 51, and 52)
and now makes the following findings of fact and conclusions
of law as required by Federal Rule of Civil Procedure 52(a).
Gunter was born on February 11, 1949. He is a former Marine
who served in the Vietnam War (FPO, ¶ 1). After returning
from Vietnam, Gunter worked for the United States Postal
Service for 32 years, retiring in 2005 (See Trial
Transcript ("Tr."), Volume ("Vol.") IV,
p. 488, lines 14-15).
began prostate specific antigen (“PSA”) screening
around the age of 50 (See Deposition of Christian
Pavlovich, M.D., Doc. 38, p. 15, lines 4-6). PSA is a protein
made by the prostate that can be elevated secondary to
prostate cancer (Tr. Vol. II, p. 286, lines 2-8). A PSA above
4 is considered abnormal. Id. at 478, lines 11-13.
Gunter's PSA levels were in the normal range until 2009
(Doc. 38, p. 15, lines 9-11).
2009 and August 2009 Office Visits with Dr. Razia
generally received his medical care from providers at the
Marion VA. On April 29, 2009, he presented to Dr. Razia Sami,
a primary care physician, to establish primary care with her
(Tr. Vol. I, p. 37, line 25; p. 38, lines 1-5; FPO, ¶
3). Dr. Sami had been a primary care physician at the VA
since 2001, and was board certified in internal medicine
until 2009 (FPO ¶ 18). Gunter was 60 years old at the
time (Tr. Vol. I, p. 66, lines 16-18). Dr. Sami ordered a PSA
on her initial visit with Gunter (FPO ¶ 3). The result
was 4.534 and Dr. Sami ordered a repeat PSA on the same day.
Id. The repeat PSA was 4.317 with a free PSA% of
trial, Dr. Sami testified that Gunter's age-specific PSA
was borderline high, and that it could have been due to
benign prostatic hypertrophy (BPH), some other benign cause,
or cancer (Tr. Vol. I, p. 65, lines 20-24). She diagnosed
Gunter with an elevated PSA and recommended that they
actively monitor his PSA every six months. Id, p.
66, lines 6-9.
next office visit with Dr. Sami was on August 5, 2009 (FPO
¶ 4). The August visit was a post-ER follow-up (Gunter
had presented to the ER for a sinus problem and infection)
(Id, p. 66, lines 6-9). The medical records reflect
that Gunter had an “elevated psa” from the
previous visit (Plaintiff's Core Medical Records from the
VA, 890). Dr. Sami also charted that labs were
“[e]valuated and [d]iscussed with the patient.”
Id. However, she concedes that there are no labs in
the chart for August 5, 2009 (Tr. Vol. I, p. 78, lines
19-23). Due to Gunter's elevated PSA, Dr. Sami ordered a
urology consultation (VA 74; FPO ¶ 4). She also ordered
PSA testing for Gunter's next visit. Id.
9, 2009 Urology Consult with Dr. Johnson
saw urologist Dr. Kent Johnson at the Marion VA on October 9,
2009 (FPO ¶ 5). Dr. Johnson is a board-certified
urologist and was employed at the VA from 2006 until he
retired in May 2015 (FPO ¶ 17). During his visit with
Gunter, Dr. Johnson ordered another PSA (FPO ¶ 5). The
result was 5.578 with a free PSA of 12.28%. Id. Dr.
Johnson's impression was benign prostatic hyperplasia
(“BPH”) with rising PSA (VA 77-78). It was also
his impression that Gunter had a 42% chance of having
prostate cancer (Tr. Vol. I, p. 81, lines 22-25; VA 77-78).
He testified that Gunter's lack of urinary symptoms did
not make cancer less likely (Tr. Vol. I, p. 108, lines
20-23). Dr. Johnson wanted Gunter to return to the urology
clinic in four months with a PSA panel prior to his next
appointment (FPO, ¶ 5).
Johnson's notes regarding his interaction with Gunter are
minimal. There is no indication in the records that Dr.
Johnson explained the significance of an elevated PSA to
Gunter, explained that Gunter had a 42% chance of having
prostate cancer, discussed the pros and cons of performing a
biopsy or that Dr. Johnson instructed Gunter to return in
four months for a follow-up visit (Tr. Vol. I, pp. 82, lines
16-23; p. 84, lines 24-25; p. 85, lines 1-2). However, at
trial, Dr. Johnson testified that, based on his customary
practice, he believes he spoke to Gunter about the 42% chance
that he would have prostate cancer on a biopsy (Tr. Vol. I,
p. 99, lines 22-25).
contrast, Gunter testified that Dr. Johnson never instructed
him to return for a follow-up appointment, and that had Dr.
Johnson done so, he would have returned (Tr. Vol. IV, p. 535,
line 6). Gunter also testified that Dr. Johnson never told
him that he had a 42% chance of having cancer. Id.,
at p. 497, lines 12-15.
following policy regarding follow-up appointments was in
effect in the urology clinic in 2009:
"Follow-up appointments ordered by the specialist will
be scheduled by the specialty clinic. If the patient is
present at the time the follow-up appointment is scheduled,
the patient will be told of the appointment and notification
of this will be made on the patient's appointment card.
If the patient is not present, a letter will be mailed to the
(Tr. Vol. I, p. 86, lines 2-14). The procedure the clinic
followed was that Dr. Johnson would write down on a slip of
paper when he wanted the patient to return (Tr. Vol. I, p.
166, lines 10-25). The slip would be given to his nurse and
the nurse would give the slip to the medical support
assistant (MSA), who was responsible for scheduling the
follow-up appointment. Id. No follow-up appointment
with Dr. Johnson was actually scheduled for Gunter (FPO
2010 and June 2010 Office Visits with Dr. Sami
returned to see Dr. Sami on February 23, 2010 (FPO ¶ 5).
She ordered another PSA test and the result was 4.968 (FPO,
¶ 5). Although she was aware that four months had passed
and Gunter had not followed up with Dr. Johnson, Dr. Sami did
not talk to Gunter about the importance of returning to see
Dr. Johnson (Tr. Vol. I, p. 51, lines 8-14). She did not
believe it was her responsibility to do so. Id.
14, 2010, Gunter presented to Dr. Sami for evaluation of
headaches (FPO, ¶ 6). Dr. Sami was aware Gunter had not
returned to see Dr. Johnson and that it had been more than
eight months since his visit with Dr. Johnson (Tr. Vol. I, p.
54, lines 20-23). She did not have a conversation with Gunter
about returning to see Dr. Johnson nor did she take any
actions to facilitate his return to urology. Id. at
p. 54, lines 24-25; p. 55, lines 1-7. She testified that it
was not her job to facilitate his return to urology - rather,
in her opinion, it was the responsibility of the patient and
specialist. Id. This was Gunter's last office
visit with Dr. Sami (FPO ¶ 6).
2010 Office Visit with Nurse Practitioner Mabry
September 14, 2010, Gunter presented to nurse practitioner
Jamie Mabry for routine follow-up of chronic medical
conditions (FPO, ¶ 7). Mabry was a primary care provider
at the Marion VA. Id. She ordered a PSA and the
result was 4.567. Id.
2011 - May 2012 Office Visits with P.A. Steve
Martinez has been a certified physician's assistant at
the Marion VA since January 15, 2011 (FPO, ¶ 21).
Martinez saw Gunter three times over nine months (Tr. Vol. I,
pp. 127, lines 9-11). Those visits took place on August 3,
2011, November 2, 2011, and May 24, 2012 (FPO, ¶¶
August 3, 2011, Martinez ordered a PSA (FPO, ¶ 8). The
result of the test was 7.258, which was 20% greater than
Gunter's PSA had been the prior year (Tr. Vol. I, p. 131,
lines 23-25). Martinez's plan of care included ordering a
free-PSA panel, having Gunter return in three months, and
referring Gunter to urology if his PSA continued to elevate.
Id. at p. 132, lines 1-7.
October 27, 2011, Gunter's PSA level was 7.236 and his
free PSA% was 11.46% (FPO, ¶ 9). Gunter returned to see
Martinez on November 2, 2011. Id. Martinez did not
make a urology referral, despite Gunter's elevated PSA
levels and his concern that Gunter might have prostate cancer
(Tr. Vol. I, p. 133, lines 21-23; p.136, lines 16-18). He did
not review Gunter's medical records to determine whether
he had been seen by a urologist. Id. at p. 137,
lines 2-5. According to Martinez, he did not refer Gunter to
urology because he was trying not to over- diagnose something
that may have just been inflammation (Tr. Vol. I, p. 151,
next saw Martinez on May 24, 2012 (FPO, ¶ 10). At that
time, his PSA level was 8.057. Id. Gunter also had a
free PSA % of 13.58, which showed an increase in his PSA
percentage. Id. Martinez offered Gunter several DREs
(digital rectal examinations), but Gunter declined (Tr. Vol.
I, p. 145, lines 17-20). Gunter never had a positive DRE even
after he was diagnosed with prostate cancer (Tr. Vol. I, p.
109, lines 11-13). Martinez ordered a urology consult for
Gunter during this visit (FPO, ¶ 10).
Consult and Prostrate Biopsy with Dr. Palagiri
18, 2012, Gunter presented to Dr. Adiraju Palagiri at the
Marion VA (FPO, ¶ 11). Dr. Palagiri is a board-certified
urologist who was employed at the Marion VA from September
2010 to December 2015 (FPO, ¶ 19). Dr. Palagiri
ordered serial PSA testing on August 27, 2012, October 18,
2012, and October 25, 2012, with results of 7.028, 9.976, and
10.817, respectively (FPO, ¶ 11). He performed a
biopsy of Gunter's prostate on November 30, 2012 which
was positive for prostate cancer. Id. Dr. Palagiri
then gave Gunter the name of Dr. Gerald L. Andriole, the
Chief of Urologic Surgery at Washington University School of
Medicine/Barnes-Jewish Hospital (Tr. Vol. IV, p. 502, lines
Treatment Following Positive Biopsy
January 31, 2013, Gunter presented to Dr. Andriole regarding
his recent diagnosis of prostate cancer and to discuss
treatment options (FPO, ¶ 12). He was “leaning
toward” a laparoscopic radical prostatectomy after
discussing his options with Dr. Andriole. Id. Dr.
Andriole ordered an MRI which was performed on February 6,
2013 and which indicated extraprostatic extension with a
suspicious obturator lymph node (FPO, ¶ 13). The
pathologist at Barnes Jewish Hospital reviewed the pathology
and determined that Gunter had a Gleason score of 7.
February 8, 2013, Dr. Andriole performed a laparoscopic
bilateral pelvic lymphadenectomy in which 12 lymph nodes were
removed - 4 were positive for metastatic prostate cancer
(FPO, ¶ 14). Gunter also had fiducial marker placement
in order to receive guided radiation therapy. Id.
the metastatic prostate cancer and extraprostatic extension
of the tumor, Dr. Andriole did not recommend radical
prostatectomy. Instead, the recommended treatment was
external beam radiation therapy and hormone therapy (FPO,
¶ 15). Gunter underwent radiation therapy to both the
prostate and the pelvic lymph nodes (FPO, ¶ 16): He
received Casodex (hormone therapy) on February 22, 2013;
androgen deprivation therapy from February 2013 until June
2015; received radiation therapy to the lymph nodes from
April 22, 2013 until May 24, 2013; and radiation therapy to
the prostate from May 28, 2013, until June 20, 2013.
married his high school sweetheart, Sherida Spurlin-Gunter,
on May 20, 2011 (Tr. Vol. II, pp. 236, lines 19-20). He had a
strong relationship with his wife prior to his cancer
diagnosis and treatment (Tr. Vol. IV, p. 508, lines 23-25, p.
509, lines 1-8). Although he experienced erectile dysfunction
prior to his cancer diagnosis, it did not impede his sexual
relations with his wife (Tr. Vol. IV, p. 508, lines 5-11).
After beginning radiation in 2013, Gunter was unable to
engage in any sexual activity with his wife, which has been
devastating for him. Id. at p. 508, lines 23-25, p.
509, lines 1-8; see also Tr. Vol. II, p. 240, lines
6-24). He worries that his emotional bond with his
wife has also suffered. Id. at p. 509, lines 1-8;
see also Tr. Vol. II, p. 239, lines 15-23. Gunter
testified that the size of his penis has decreased.
Id. at p. 240, lines 6-24. He feels humiliated and
he no longer feels like a man (Tr. Vol. IV, p. 507, lines
24-25, p. 511, lines 4-10).
suffers from PTSD as a result of his military service.
Id. at 492, lines 5-6. He testified that his cancer
diagnosis has exacerbated his PTSD symptoms - including vivid
nightmares. Id. at 515, lines 14-21. In addition, he
has experienced the following side effects from radiation and
hormone therapy: fatigue, urinary symptoms, loose bowel
movements, fecal incontinence, impotence, hot flashes, weight
gain, decreased muscle mass, decreased bone density, and
breast tenderness (Tr. Vol. IV, p. 507, lines 1-10, lines
19-25, p. 514, lines 7-10; see also Tr. Vol. II, p.
239, lines 24-25; p. 240, lines 1-5).
to his cancer diagnosis, Gunter was an enthusiastic supporter
and advocate for the VA medical system in Marion (Tr. Vol.
II, p. 197, lines 22-25, p. 198, lines 1-2). He believed it
was the “greatest institution in the world” (Tr.
Vol. IV, p. 516, lines 8-9). He now feels an immense sense of
betrayal about his delayed diagnosis and has become bitter
and cynical about the VA medical system. Id. at p.
519, lines 6-20.
Andriole, Gunter's treating urologist testified by
deposition. He could not say that an earlier biopsy would
have absolutely disclosed Gunter's prostate cancer
between 2009 and 2011 because biopsies can sometimes miss
smaller cancers (Doc. 41, p.14, lines 7-14). However, in his
opinion, given the extent of the cancer detected on the 2012
biopsy, it is likely that a biopsy performed sometime between
2009 and 2012 would have likely shown cancer and it may have
been smaller. Id. at p. 14, lines 15-20.
Andriole utilized a nomogram prediction tool to calculate
probabilities for organ-confined or lymph node metastic
prostate cancer based on Gunter's PSA levels between
April 2009 and October 2012:
% confined to prostate
% with positive lymph nodes
(Doc. 44, p. 92). Based on the nomogram, Dr Andriole
testified that the odds that Gunter's cancer was confined
to the prostate fell from 67% to 48% from 2009 to 2012 and
that the chances of lymph node involvement rose from 4% to ...