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Vargas v. United States

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

December 30, 2019

Louis VARGAS, Plaintiff,
v.
UNITED STATES of America, Defendant.

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[Copyrighted Material Omitted]

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          Edward M. Fox, Robin Ann Grinnalds, Ed Fox & Associates, Ltd., Chicago, IL, for Plaintiff.

          Jimmy Lorenzo Arce, Kathleen Marie Flannery, United States Attorneys Office, Chicago, IL, for Defendant.

         MEMORANDUM OPINION AND ORDER

         Honorable Edmond E. Chang, United States District Judge.

         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,

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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

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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

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post-void dribbling, and difficulty voiding from a seated ...


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