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Gunter v. United States

United States District Court, S.D. Illinois

January 19, 2018





         Plaintiff 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).


         Michael Gunter was born on February 11, 1949. He is a former Marine who served in the Vietnam War (FPO, ¶ 1)[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).

         Gunter 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).

         April 2009 and August 2009 Office Visits with Dr. Razia Sami

         Gunter 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 12.05%. Id.

         At 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.

         Gunter's 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)[2]. 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.

         October 9, 2009 Urology Consult with Dr. Johnson

         Gunter 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).

         Dr. 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).

         In 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.[3]

         The 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 patient."

(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 ¶ 5).[4]

         February 2010 and June 2010 Office Visits with Dr. Sami

         Gunter 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.

         On June 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).

         September 2010 Office Visit with Nurse Practitioner Mabry

         On 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.

         August 2011 - May 2012 Office Visits with P.A. Steve Martinez

         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, ¶¶ 8-10).

         On 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.

         On 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, lines 2-6).

         Gunter 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).[5] 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).

         Urology Consult and Prostrate Biopsy with Dr. Palagiri

         On July 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).[6] 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).[7] 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 16-17).

         Medical Treatment Following Positive Biopsy

         On 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.

         On 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.

         Due to 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. Id.


         Gunter 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).

         Gunter 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).

         Prior 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.

         Plaintiff's Expert Witnesses

         Dr. Gerald Andriole

         Dr. 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.

         Dr. 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 ...

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