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Vargas v. United States

United States District Court, N.D. Illinois, Eastern Division

December 30, 2019

LOUIS VARGAS, Plaintiff,



         In November 2015, Louis Vargas suddenly felt sick during a dinner banquet. So he went home and went to bed. The next morning, his wife, Minnie Vargas, found him unresponsive. R. 1, Compl.[1] It turns out that, unfortunately, Vargas had suffered a heart attack and experienced septic shock from a urinary infection. He was hospitalized for ten days. Id. Around a month later, he was diagnosed with carpal tunnel syndrome. Id. Eventually, Vargas filed this lawsuit under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), alleging medical malpractice arising from an October 2015 visit to the Urology Clinic of the Department of Veterans Affairs (known by the acronym VA) Edward Hines, Jr. Hospital. Specifically, Vargas alleges that Hines Hospital's health care providers breached the standard of care after failing to follow up with a urinalysis obtained in October 2015, and that that breach proximately caused his carpal tunnel syndrome.

         In February 2019, the case proceeded to a five-day bench trial, during which both fact and expert witnesses testified. The parties delivered closing arguments focused on liability (as distinct from damages), and then filed post-trial briefs. R. 105, Pl.'s Br.; R. 114, Gov.'s Resp. Br.; R. 116, Pl.'s Reply Br. This Opinion sets forth the Court's findings of fact and conclusions of law under Federal Rule of Civil Procedure 52(a). These findings are based on the records allowed into evidence and the testimony at trial. The findings are also premised on the Court's credibility determinations after observing each of the witnesses testify in-person at trial. As detailed below, the Court finds that Vargas has not met his burden of proof on liability and enters judgment in favor of the United States.

         I. Background

         The following evidence was offered at trial and is undisputed except where noted. To the extent that any factual findings are made in the Conclusions of Law section, that was done to better organize the Opinion for comprehensibility.

         A. Medical History

         Vargas is now a 73-year-old Vietnam veteran. 2/6/19 L. Vargas Trial Tr. at 24:22-23; 25:9-20. He suffers from several disabilities and chronic illnesses, including diabetes with peripheral neuropathy, hypertension, obesity, post-traumatic stress disorder, arthritis, chronic low back pain, and benign prostatic hypertrophy (often referred to as “BPH”). Id. at 101:9-104:7; Joint Exh. 1, VA Medical Records at 1515.[2]Many of these illnesses, specifically, diabetes, diabetic neuropathy, age, obesity, and arthritis are associated with carpal tunnel syndrome. See Fernandez Trial Tr. at 95:22-25; Hoepfner Trial Tr. at 22:20-23:25. Additionally, BPH and diabetes are risk factors that predispose individuals to contracting urinary infections. See Coogan Trial Tr. (afternoon) at 32:9-21; Fox Trial Tr. at 40:8-14.

         Vargas had been receiving medical care for his disabilities and illnesses from the Hines VA Hospital system since around 1985. 2/6/19 L. Vargas Trial Tr. at 101:6-8. Starting in around 2014, Mary Petrella, a nurse practitioner at the Hines Hospital Joliet Community-Based Outreach Clinic, became Vargas's primary care provider. Petrella Trial Tr. at 7:10-22. Vargas regularly met with Petrella-every three months or so-for routine follow-ups on his chronic medical issues. See id. at 8:1-4. In addition to receiving treatment from the VA, Vargas also saw outside providers, including a private urologist who treated Vargas for urinary tract infections in 2015. Id. at 17:15-19:7; 2/6/919 L. Vargas Trial Tr. at 112:25-113:6.

         B. Back Surgeries and Follow-up Visits

         In early March 2015, Petrella referred Vargas to a physiatrist for right-shoulder pain. Petrella Trial Tr. at 23:10-24:2. At the referral, Vargas saw Dr. Chandhuri and complained to her about ongoing right-shoulder pain, as well as numbness or tingling in his arm if he kept his arm flexed at the elbow. VA Medical Records at 1552. These symptoms are a sign of ulnar-nerve conditions. Hoepfner Trial Tr. at 10:22-12:14; Fernandez Trial Tr. at 89:23-90:7. He also complained that he felt weakness in his right hand, and that this condition had been worsening over the past two years. VA Medical Records at 1552.

         Later that month, Vargas underwent two back surgeries in late March and early April 2015 with an outside provider-Silver Cross Hospital-to treat his chronic lower back pain. 2/6/19 L. Vargas Trial Tr. at 32:6-16, 104: 8-11. Vargas initially went in for a lumbar fusion, and while the doctors were performing that procedure, they found a fracture in a different part of his spine. Id. at 104:14-19. So the doctors performed two surgeries. Id. Vargas was then hospitalized for an additional 30 days due to complications related to colitis. Id. at 32:20-33:8, 104:20-22.

         Following the two surgeries, Vargas saw Petrella for one of his routine follow-ups on June 9, 2015. VA Medical Records at 1531. In advance preparation for the June visit, Petrella ordered Vargas to have a urinalysis conducted on May 20, 2015. Petrella Trial Tr. at 29:24-30:5. A urinalysis allows medical-care providers to analyze the contents of the urine and make a preliminary diagnosis. See Buesser Trial Tr. at 42:3-7; see also Turner Trial Tr. at 14:10-17. The lab results from the May urinalysis tested positive for nitrites and had high white-blood cell and leukocyte-esterase counts. See VA Medical Records at 1606; see also Petrella Trial Tr. at 36:24-38:5; Fox Trial Tr. at 29:12-31:2; Coogan Trial Tr. (afternoon) at 15:3-16:12. These results could indicate the possibility of a urinary tract infection (which the parties and witnesses referred to with the shorthand “UTI”). Coogan Trial Tr. (afternoon) at 15:22-16:4; Fox Trial Tr. at 47:14-49:1; Petrella Trial Tr. at 37:1-3 (“[P]ositive nitrites … is an indication that there could be an issue with a … urinary infection … or contaminant.”) (emphases added). Also, Vargas's recent back-surgery hospitalization likely involved the use of a Foley catheter, which could also make a patient predisposed to a UTI. Petrella Trial Tr. at 33:14-25.

         A UTI is a “symptomatic infection of the urinary tract.” Buesser Trial Tr. at 41:3-4. Common symptoms of a urinary tract infection include dysuria (painful or difficult urination), frequent urination, incontinence, and abdominal or lower pelvic pain. Id. at 41:9-25. But at the June 9 visit, Petrella noted that Vargas had no “signs or symptoms” of a UTI. Petrella Trial Tr. at 34:9-15; VA Medical Records at 1537. She also noted that Vargas had already been treated with antibiotics during his hospitalization. VA Medical Records at 1537. Either way, to be safe, on June 9, Petrella ordered a follow-up urinalysis and a urine culture based on the results of the May urinalysis and Vargas's predisposition to UTIs based on the recent hospitalization. Petrella Trial Tr. at 36:10-13; see also VA Medical Records at 1537-38. Medical-care providers use urine cultures to confirm whether there is the presence of an infection in the urine. See Buesser Trial Tr. at 42:8-9.

         The results of the June urinalysis were similar to the results of the one done in May. Compare VA Medical Records at 1606 (May urinalysis results) with 1604 (June urinalysis results). Vargas's urine again tested positive for nitrites and had high white-blood cell and leukocyte-esterase counts. See VA Medical Records at 1604; see also Petrella 38:9-15; Fox Trial Tr. at 31:7-16. Also, the culture showed the presence of 100, 000 colony-forming units per milliliter of E. coli. See VA Medical Records at 1605. So even though Vargas did not have signs or symptoms of a UTI, based on the lab results of the urinalysis and the culture, and Vargas's medical history, Petrella diagnosed Vargas with a UTI and prescribed him antibiotics. Petrella Trial Tr. at 40:1-7.

         C. The Urology Clinic Visit

         Fast forward to September 2015: Vargas again visited Petrella, this time with complaints about his erectile dysfunction medication. VA Medical Records at 1514-15. During this visit, Petrella noted that Vargas was not experiencing a change in urinary symptoms and that he was taking Oxybutynin and Terazosin to treat his lower urinary tract symptoms associated with BPH. VA Medical Records at 1515. She also listed BPH under Vargas's “problem list.” Id. After this visit, Petrella referred Vargas to the Hines VA urology clinic. Id. at 1453.

         About a month later, on October 2, 2015, Vargas went to the Hines VA urology clinic and was examined by nurse practitioner Julia Buesser. See VA Medical Records at 1454. During the visit, Buesser took notes on the reason for Vargas's visit; his medical history, including his two recent back surgeries; and his current symptoms. Id. Buesser specifically noted that Vargas had the following symptoms: significant hesitancy and intermittent voiding pattern, nocturia (excessive urination at night), urgency without incontinence, significant post-void dribbling, and difficulty voiding from a seated position. See id.

         In addition to the information that she gathered from Vargas directly, Buesser also looked up and noted Vargas's past visits to the VA urology department. VA Medical Records at 1456. She also noted that Vargas underwent a cystoscopy (a procedure that uses a camera to look inside a patient's urethra) and a microwave prostate procedure (a minimally invasive procedure that uses thermal energy to shrink the prostate gland) at an outside private facility in 2007 to treat his lower urinary tract symptoms. Id. at 1456; Bresler Trial Tr. at 12:16-24. One potential risk of a microwave procedure is the formation of scar tissue in the urethra-also called a “stricture”-that can contribute to urinary symptoms. Buesser Trial Tr. at 22:13-18.

         The symptoms noted by Buesser can be associated with both a UTI and BPH. Buesser Trial Tr. at 78:12-19. One way to distinguish between the two conditions is by assessing when the symptoms started and how long they last. If the symptoms are new, then they are a sign of a UTI. Id. If the symptoms are ongoing, meaning the patient has been experiencing them for some time, then they are a sign of BPH with LUTS (lower urinary tract symptoms). Id. Based on Vargas's medical records and her conversations with him, Buesser determined that Vargas's symptoms were ongoing and a sign of his “longstanding, lower urinary tract symptoms.” See Buesser Trial Tr. at 24:18-19; 24:11-25:25 (“If I had seen that his urinary symptoms were different than before, I would have taken note of that. … I looked at [Vargas] as someone who had been dealing with lower urinary tract symptoms since 2007.”). Also, Vargas denied having certain symptoms that are commonly associated with a UTI, specifically, dysuria, gross hematuria (blood in the urine), flank pain, and fever and chills. VA Medical Records at 1454; Buesser Trial Tr. at 78:20-22.

         As part of Vargas's treatment plan, Buesser ordered Vargas to undergo another cystoscopy to rule out the possibility of a stricture. VA Medical Records at 1459-60. Buesser also switched Vargas from Terazosin to Tamsulosin, and decreased his Oxybutynin dosage to treat his BPH with LUTS. See id. at 1459-60.[3] Buesser replaced Vargas's Terazosin prescription with Tamsulosin because Tamsulosin is a newer version of the same drug and she was hopeful that it might be more effective. Buesser Trial Tr. at 77:20-78:6. And she decreased Vargas's Oxybutynin dosage to address his hesitancy issues. VA Medical Records at 1506. Finally, Buesser ordered a urinalysis because Vargas had a history of microhematuria (microscopic levels of blood in his urine), id.; Vargas had not visited the VA urology department in around four years, and microhematuria is potentially indicative of genitourinary malignancy, Buesser Trial Tr. 10:9-13. Buesser consulted with Dr. Larissa Bresler, the attending urologist on duty at that time, about Buesser's proposed assessment and plan. Buesser 45:25-46:20; VA Medical Records at 1460. Bresler agreed with Buesser's assessment that the symptoms described by Vargas were symptoms of his preexisting BPH with LUTS, and signed off on the treatment plan. Bresler Trial Tr. at 8-9.

         As it turns out, Vargas's October 2015 urinalysis results were similar to his June 2015 urinalysis results (which, as a reminder, were similar to his May urinalysis results) in that they again tested positive for nitrites and had high white-blood cell and leukocyte-esterase counts. Compare VA Medical Records at 1430 (October results) with 1604 (June results). April Turner, a nurse practitioner at the VA urology clinic, was responsible for reviewing routine lab work and ordering follow up if necessary. See Buesser Trial Tr. at 17:17-24; Turner Trial Tr. at 10-11. But the week that Vargas's lab results came in, Turner was on vacation, and she could not remember whether Vargas's lab results were flagged for her to review or whether she actually reviewed them. Turner Trial Tr. at 9:9-10:25.

         D. History of Benign ...

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