ROBERT L. WILKINS, District Judge.
Upon consideration of the parties' undisputed and stipulated facts, as well as the testimony of the witnesses, the exhibits,
Plaintiff Rosa Alba Flores-Hernandez ("Plaintiff" or "Flores-Hernandez") brings this medical malpractice action against Defendant United States of America ("Defendant" or the "Government") pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) & 2671 et seq. Specifically, Flores-Hernandez asserts that Dr. Luis Padilla — an employee of Unity Health Care, Inc., in whose stead the United States now stands under the Federally Supported Health Centers Assistance Act, 42 U.S.C. § 233(g)-(n) — negligently delayed in referring her for diagnostic gynecological testing for cervical cancer. Flores-Hernandez contends that, had Dr. Padilla referred her for such testing earlier, specialists would have diagnosed and completely treated her condition as a pre-malignancy or an early stage cancer, rather than Stage IVA cervical cancer, as her doctors ultimately diagnosed in July 2010.
The Court finds that the following facts have been established by a preponderance of the evidence:
Plaintiff's claim against the Government is grounded in the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) & 2671 et seq. As explained by the Supreme Court, "[i]n the FTCA, Congress waived the United States' sovereign immunity for ... `claims against the United States, for money damages ... for injury or loss or property ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.'" Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217-18, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008) (quoting 28 U.S.C. § 1346(b)(1)) (alterations in original). The FTCA "authorizes private tort actions against the United States `under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.'" United States v. Olson, 546 U.S. 43, 44, 126 S.Ct. 510, 163 L.Ed.2d 306 (2005) (quoting 28 U.S.C. § 1346(b)(1)). Stated differently, the FTCA "does not create a cause of action against the United States; it allows the United States to be liable if a private party would be liable under similar circumstances in the relevant jurisdiction." Hornbeck Offshore Transp., LLC v. United States, 569 F.3d 506, 509 (D.C.Cir.2009). Consequently, the Court must look to District of Columbia law in resolving Plaintiff's claims under the FTCA.
Under District of Columbia law, "[i]n a negligence action predicated on medical malpractice, the plaintiff must carry a tripartite burden, and establish: (1) the applicable standard of care; (2) a deviation from that standard by the defendant; and (3) a causal relationship between that deviation and the plaintiff's injury." Washington v. Wash. Hosp. Ctr., 579 A.2d 177, 181 (D.C.1990) (citing Ornoff v. Kuhn & Kogan, Chartered, 549 A.2d 728, 731 (D.C.1988); Psychiatric Inst. of Wash. v. Allen, 509 A.2d 619, 623-24 (D.C.1986)). "Each of these elements must usually be proved by expert testimony." Woldeamanuel v. Georgetown Univ. Hosp., 703 A.2d 1243, 1245 (D.C.1997); see also Cleary v. Group Health Ass'n, 691 A.2d 148, 153 (D.C.1997).
"In the District of Columbia, the applicable standard of care in a medical malpractice action is `a national standard, not just a local custom.'" Nwaneri v. Sandidge, 931 A.2d 466, 470 (D.C.2007) (quoting Travers v. District of Columbia, 672 A.2d 566, 568 (D.C.1996)). To establish the national standard of care, a plaintiff must prove "the course of action that a reasonably prudent doctor with the defendant's specialty would have taken under the same or similar circumstances." Id. (quoting Strickland v. Pinder, 899 A.2d 770, 773 (D.C.2006)). In turn, "[t]he personal opinion of the testifying expert as to what he or she would do in a particular
In this case, Flores-Hernandez contends that Dr. Padilla was required to refer her to a gynecologist for diagnostic testing for cancer — i.e., a colposcopy and/or other biopsies — as soon as she presented to him with symptoms of irregular and excessive menstrual bleeding, classified as menometrorrhagia, in November 2007. Flores-Hernandez argues that, by failing to refer her to a specialist at that time and instead performing only a Pap smear — which the parties agree is a screening test and not a diagnostic test — Dr. Padilla breached the national standard of care. The Government paints a different picture. It argues that Flores-Hernandez's presentation to Dr. Padilla with menstrual bleeding in November 2007, without more, did not require a referral to a gynecologist. Instead, the Government contends that, notwithstanding Flores-Hernandez's symptoms of menstrual bleeding, the national standard of care did not require Dr. Padilla to refer her to a specialist unless and until a Pap smear revealed irregular results. Because Dr. Padilla made such a referral after receiving Flores-Hernandez's first irregular results — when the Pap smear administered in December 2008 indicated ASCUS and high-risk HPV — the Government argues that Dr. Padilla fully complied with the national standard of care.
To support her theory, Flores-Hernandez relies on the expert testimony of Dr. Richard Boothby, a board-certified gynecologist and gynecologic oncologist. According to Dr. Boothby, when Flores-Hernandez presented to Dr. Padilla with a six-month history of irregular menstrual bleeding in November 2007, the national standard of care required that she be evaluated for a specific cause of those symptoms. Although Dr. Padilla performed a Pap smear at the time, Dr. Boothby testified that a Pap smear, without more, was insufficient because a Pap smear is a test used to screen for cancer in asymptomatic patients. Flores-Hernandez was not asymptomatic, Dr. Boothby explained. Rather, because she was presenting with symptoms that could have been indicative of cervical or endometrial cancer — potential causes that Dr. Padilla admittedly placed in his differential diagnosis at the time (along with other less serious alternatives, such as perimenopause and fibroids) — Dr. Boothby explained that she required more definitive diagnostic testing to rule in or rule out cancer as the cause of her symptoms. In turn, Dr. Boothby opined that the national standard of care required Dr. Padilla to refer Flores-Hernandez to a gynecologist in November 2007 for further diagnostic testing, such as a colposcopy and other biopsies, as appropriate.
In forming his opinions, Dr. Boothby relied, in part, on a practice bulletin issued by the American College of Obstetricians and Gynecologists (ACOG) entitled "Management of anovulatory bleeding." Generally speaking, ACOG's practice bulletins are international publications designed to "aid practitioners in making decisions about appropriate obstetric and gynecologic care." The particular bulletin cited by Dr. Boothby pertains to the care and treatment of patients who present with
In response, the Government presented expert testimony from Dr. Jeffrey Lin, who is also board-certified in both gynecology and gynecological oncology. For his part, Dr. Lin largely focused on the reasonableness of Dr. Padilla's treatment of Flores-Hernandez during the time period from December 2008 forward. He opined that Dr. Padilla fully complied with the national standard of care when he referred Flores-Hernandez to a gynecologist following the abnormal results from her December 2008 and May 2009 Pap smear examinations. But Dr. Lin's opinions were less helpful with respect to Dr. Padilla's care of Flores-Hernandez in November 2007. To be fair, Dr. Lin did testify that he believes Dr. Padilla's treatment at that time complied with the national standard of care — pointing out that Dr. Padilla took a "careful history" of her bleeding pattern, checked her blood count, ordered thyroid testing, performed a Pap smear, and more. But noticeably absent from his testimony was a clear statement one way or the other as to whether the standard of care required, as Dr. Boothby testified, that Flores-Hernandez be referred for additional testing with a gynecologist in November 2007 based on her irregular menstrual bleeding symptoms.
Ultimately, in response to direct questioning from the Court at the conclusion of his trial testimony, Dr. Lin testified as follows:
In short, Dr. Lin did not expressly disagree with or controvert Dr. Boothby's opinion that the national standard of care required Dr. Padilla to refer Flores-Hernandez to a gynecologist in November 2007. And when directly asked whether the standard of care required Dr. Padilla to make such a referral, Dr. Lin's answer was, "it depends." On balance, the Court does not find this sort of equivocation sufficient to overcome Dr. Boothby's clear and unequivocal opinion on this point, particularly given the corroboration of the ACOG practice bulletin.
The Government also urges the Court to find Dr. Boothby's testimony "not credible," arguing that several of his opinions at trial contradicted his prior deposition testimony and/or the record evidence in the case. Specifically, the Government asserts that Dr. Boothby was impeached as to the following points:
In reality, some of these "impeachments" were more impactful than others. But all of these apparent contradictions relate to Dr. Boothby's opinions concerning causation, and not the applicable standard of care.
Ultimately, after weighing the testimony from the parties' respective expert witnesses, the Court finds that Flores-Hernandez successfully established, by a preponderance of the evidence, that: (1) when Flores-Hernandez presented to Dr. Padilla in November 2007 complaining of a six-month history of irregular and excessive menstrual bleeding, the national standard of care required Dr. Padilla to refer her to a gynecologist for further diagnostic testing; and (2) Dr. Padilla breached that standard of care by failing to refer Flores-Hernandez to a gynecologist for testing at that time.
Flores-Hernandez's burden does not end there. Not only must she establish that Dr. Padilla breached the applicable standard of care, but, perhaps more importantly, she must also establish that his breach was the cause of the injuries for which she seeks recovery.
Of course, "the fact of causation is incapable of mathematical proof, since no one can say with absolute certainty what would have occurred if the defendant had acted otherwise." Psychiatric Inst. of Wash. v. Allen, 509 A.2d 619, 624 (D.C. 1986) (quoting W. Prosser & W. Keeton, THE LAW OF TORTS § 41, at 269-70 (5th ed.1984)). At the same time, however, "[d]ue to the great variety of infections
Flores-Hernandez argues that, if Dr. Padilla had referred her to a gynecologist in or around November 2007, as the standard of care required, her cervical cancer would have been diagnosed long before July 2010, and long before the disease had already progressed to Stage IVA. Instead, Flores-Hernandez contends that she would have been diagnosed by no later than late 2008 or early 2009 with pre-malignant dysplasia or early Stage I cervical cancer — conditions that would have been fully treated with a cone biopsy procedure, without the need for radiation treatment or chemotherapy. She also asserts that her five-year survival rate would have been as high as 70-80% or better, rather than the 15-16% survival rate she faced as a result of her Stage IVA cancer diagnosis in July 2010. To reach this result, Flores-Hernandez essentially asks the Court to pick up the timeline of her treatment from June 2009 through July 2010, move that timeline up one-and-a-half years earlier, and assume that the same sequence of events would have happened in almost exactly the same way. Stated differently, because she ultimately underwent a cone biopsy in June 2010 — one year after she began treating with Dr. Hamilton in June 2009 — Flores-Hernandez contends that the Court can reasonably assume that, if she had been referred to Dr. Hamilton (or another gynecologist) in November or December 2007, the same course of treatment would have led to a cone biopsy being performed approximately one year later, by late 2008 or early 2009.
The Government attacks this theory as unsubstantiated and speculative. First, the Government contends that none of the medical experts could credibly claim that Flores-Hernandez had cervical cancer at the time she was referred to Dr. Hamilton in June 2009. Instead, the Government points out, when Dr. Hamilton performed a colposcopy in June 2009, the results of that procedure revealed a finding of CIN-1 or mild dysplasia — a non-cancerous, premalignant condition. As a result, the Government argues that because Flores-Hernandez failed to present evidence establishing that she already had cancer when she began treating with a gynecologist, she cannot carry her burden of proof that any of Dr. Padilla's actions delayed the diagnosis of her cervical cancer. In addition, the Government challenges Flores-Hernandez's assertion that an earlier
In attacking Flores-Hernandez's causation theory, the Government seems to suggest that Flores-Hernandez must prove that she already had invasive cancer by May 2009. While this issue would be relevant as to damages, the Government's argument misses the critical inquiry as to causation. The question is not solely whether Flores-Hernandez already had cancer when she was referred to a gynecologist. The question is whether, if Flores-Hernandez had been referred to a gynecologist sooner, the course of treatment she received would have led to the treatment and eradication of her condition sooner, before it advanced to Stage IVA. As noted above, however, Flores-Hernandez bears the burden to prove this theory to a "reasonable degree of medical certainty," Giordano, 968 A.2d at 498, and, on balance, the Court concludes that her proof of causation in this case is simply too speculative to carry the day.
To begin with, Flores-Hernandez relied almost exclusively on the testimony of Dr. Boothby to establish causation. He testified at trial that, if Flores-Hernandez had been referred to a gynecologist in November or December 2007, the "appropriate biopsies" likely would have found a small invasive cancer or a precancerous lesion. He also opined that if Flores-Hernandez "had the cone biopsy that proves she had a pre-invasive lesion," that would have been the only treatment she needed. He also offered an opinion about her condition in December 2008, testifying that her condition was basically unchanged from one year prior — in his opinion, she likely had an early cancer or precancerous dysplasia at that time, which would have been treated with a cone biopsy. By May 2009, however, Dr. Boothby opined that Flores-Hernandez's condition had likely progressed to a Stage I or Stage II invasive cancer, meaning that radiation and/or chemotherapy were likely necessary by that point. Based on these opinions, Flores-Hernandez argues that Dr. Padilla's failure to refer her to a gynecologist in November 2007 delayed the diagnosis and ultimate treatment of her cancer, when an earlier referral would have ultimately led to a cone biopsy that could have completely eradicated her cancer.
As the Government rightly points out, Dr. Boothby's opinions at trial were patently inconsistent with his prior deposition testimony. During his deposition, Dr. Boothby testified that he believed Flores-Hernandez's condition had not progressed to invasive cancer as of June 2009, but was more than likely dysplasia — a pre-malignant condition. Specifically, the Government impeached Dr. Boothby with the following passage from his deposition:
Thus, Dr. Boothby's testimony at trial flies directly in the face of his prior opinions on these issues. Not only did he testify at trial that it was likely that Flores-Hernandez had Stage I or Stage II cancer as of May 2009 — which directly contradicted the above admission — but he also opined that she may have had a small Stage I cancer as early as November or December 2007 — more than 18 months earlier. Given his contradictory testimony on these issues, the Court does not find Dr. Boothby's opinions concerning the progression of Flores-Hernandez's condition or the likelihood of particular treatments at particular times to be credible.
In addition, Dr. Boothby's opinions are undermined by the medical evidence presented at trial. First, his testimony that Flores-Hernandez may have already had a small invasive cancer in November or December 2007 is inconsistent with the results of her June 2009 colposcopy and biopsy. As the Government points out, the results of those tests indicated a finding of CIN-1 — the lowest grade dysplasia that a patient could have. If the same tests had been performed approximately eighteen (18) months earlier, the Court finds it rather unlikely that they would have indicated that Flores-Hernandez's condition was more advanced, such as in the form of "a small invasive cancer," as Dr. Boothby posited. The Court finds it more likely that, at worst, the tests would have indicated the same results — a finding of CIN-1 — but it is equally likely that the results in November or December 2007 would not have revealed any atypical cells at all, given that Flores-Hernandez's preceding Pap smear approximately one year prior in August 2006 was returned "negative for intraepithelial lesion and malignancy."
Second, even assuming without deciding that the results of a Pap smear or colposcopy in late 2007 would have shown CIN-1, Flores-Hernandez's argument that such a result would have led to a cone biopsy within one year is not supported by the record. Flores-Hernandez did not present any testimony, from Dr. Boothby or otherwise, establishing that a cone biopsy would have been the appropriate course of treatment upon a finding of CIN-1. Instead, the evidence showed precisely the opposite — that the appropriate treatment for CIN-1 is observation and monitoring of the patient, with additional follow-up testing in approximately six months. The Government presented an ACOG bulletin to this effect, and even Dr. Boothby expressly agreed with those recommendations. In fact, this was the very course of
In view of Dr. Boothby's patent contradiction, the Court finds his prior deposition testimony to be more credible than his trial testimony on this point.
Relatedly, Flores-Hernandez asks the Court assume that, if a proper endometrial biopsy had been performed during 2008, the results would have revealed sufficiently advanced dysplasia to trigger a subsequent cone biopsy procedure. But Flores-Hernandez fails to proffer sufficiently credible evidence on this point, and the Court cannot and will not make this leap of logic on her behalf. First, to the extent Flores-Hernandez relies on Dr. Boothby's opinions to support this argument, the Court does not find his testimony on these issues to be credible for the reasons already stated. Second, the record suggests that the reason that Dr. Hamilton and Ms. Yoxthimer attempted to perform an endometrial biopsy in the first place was because of Flores-Hernandez's complaints of menstrual bleeding a couple of months into treatment — and not because of the abnormal Pap smear results or the CIN-1 finding from the colposcopy. Therefore, to assume that an endometrial biopsy would have taken place in 2008, the Court would need to find that it is more likely than not that Flores-Hernandez would have complained to Dr. Hamilton about menstrual bleeding at some point during that timeframe, and the evidence does not tilt in Flores-Hernandez's favor on this point. To begin with, the record shows that Flores-Hernandez did not complain about any irregular menstrual bleeding during her initial visit with Dr. Hamilton in June 2009, despite being asked about any unusual symptoms or concerns. In addition, although Flores-Hernandez testified at trial that she "always" complained about her bleeding symptoms, which "increased day by day," the Court does not find her testimony to be credible on this point. When Flores-Hernandez saw Dr. Padilla in December 2008 and May 2009, there is no indication in her medical charts that she raised any concerns about irregular bleeding during those visits.
Two additional points merit discussion. First, along with Dr. Boothby, Flores-Hernandez presented the expert testimony of Dr. William Weisburger, a board-certified pathologist. Among other issues, Dr. Weisburger provided testimony explaining what the results of Flores-Hernandez's pathology reports (i.e., her Pap smear and biopsy results) showed as time progressed. But Flores-Hernandez focuses more on Dr. Weisburger's testimony concerning what those results did not show. He testified that, even when a Pap smear or a biopsy indicates a finding of CIN-1, that finding does not exclude the possibility that more advanced dysplasia, or even invasive cancer, could exist elsewhere in the cervix. As he put it, the CIN-1 finding could simply be the "tip of the iceberg." Based on this testimony, Flores-Hernandez asks the Court to discount the import of the diagnostic test results on which the Government relies, arguing that even if the biopsy results showed CIN-1, it is
Second, Flores-Hernandez places great emphasis on the parties' stipulation that "cervical cancers are typically slow-growing cancers." Given the typical development of cervical cancer, she argues that it is more likely than not that some degree of cancer must have been present at some point during 2008 or early 2009. The Court does not find this argument particularly compelling on the issue of causation. To begin with, Flores-Hernandez appears to overstate the nature of the parties' stipulation by arguing that the Government stipulated that Flores-Hernandez had a slow-growing cancer; the Government stipulated that cervical cancer is typically slow-growing, not that Flores-Hernandez's specific case of cervical cancer was slow-growing. Even more importantly, Flores-Hernandez's argument on this point conflates the salient issue underlying her causation theory. To meet her burden of proof, she cannot prove causation simply by proving the presence of cancer. Even if her cancer were present in 2008, the real issue is whether she can prove that it would have been detected by a gynecologist — and therefore treated — in 2008 or 2009. As already explained, however, Flores-Hernandez did not present credible evidence to prove that the course of her treatment would have been accelerated by an earlier referral to a gynecologist, let alone that she would have undergone an earlier cone biopsy, as she suggests.
Overall, Flores-Hernandez simply failed to adduce sufficient evidence to prove that it is more likely than not that her cancer (or precancerous condition) would have
Because Flores-Hernandez did not establish by a preponderance of the evidence that Dr. Padilla's breach of the standard of care delayed the ultimate diagnosis and treatment of her cervical cancer, she is not entitled to recover damages, whether in the form of past medical expenses, compensation for pain and suffering, any potential decrease in her life expectancy, or any other damages associated with the possible recurrence of her cancer in the future.
In reaching this difficult decision, the Court emphasizes that it takes nothing away from the physical and emotional pain that Flores-Hernandez has endured, and will likely continue to endure, in battling against her horrible disease. But even with all the scientific advances of our time, medicine remains an imperfect science, and diagnostic tests are fallible and far from comprehensive. At the end of the day, while Flores-Hernandez established that Dr. Padilla violated the standard of care by failing to refer her to a gynecologist in November or December 2007, she simply failed to establish, by a preponderance of the evidence, that his failure to do so proximately caused a delay in the ultimate diagnosis and treatment of her cervical cancer. As a result, the Court finds that Flores-Hernandez failed to prove that the United States is liable for her claim of medical malpractice, and the Court therefore finds in favor of the Government.
A judgment consistent with these findings shall issue this date.
SO ORDERED.
Nevertheless, inasmuch as the Court accepts Dr. Boothby's definition of the applicable standard of care and concludes that Dr. Padilla breached that standard, the Court need not and does not decide whether Flores-Hernandez would prevail under this alternative theory.
The Court also observes that, based on the testimony presented at trial, it appears that Flores-Hernandez's cone biopsy was only rescheduled because Dr. Padilla intervened and contacted her doctors at Howard in April or May of 2010. Thus, while the Court finds that Dr. Padilla violated the standard of care by failing to refer Flores-Hernandez to a gynecologist in November or December 2007, he ironically turned out to be the catalyst for the June 2010 cone biopsy that ultimately diagnosed her cancer.
