WILLIAM M. HOEVELER, Senior District Judge.
THIS CAUSE was tried before the undersigned without a jury on June 27-30, and July 1, 7, 8, 11-13, 2011. This is a wrongful death case brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., and 28 U.S.C. § 1346(b)(1). Maria Jose Perez filed this action against the United States after the death of her father, Francisco Perez ("Perez"), while he was receiving psychiatric and medical care from the Veterans Administration ("VA"). Plaintiff alleges that the United States is directly and vicariously liable for the negligence of the VA health care providers, and claims damages of $1,505,701.20 ($1,500,000 for the loss of her father, plus funeral expenses). The United States asserts that the damages were not proximately caused by negligent acts of its employees.
The Court has reviewed the file in this case, including the more than 4,000 pages of documents and photographs submitted as evidence, and has heard and considered the testimony of the witnesses and the arguments of the parties during the ten days of trial, and hereby enters the following findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). As an initial matter, the Court briefly states the controlling legal principles.
The United States is liable for the negligent conduct of its employees in the same manner and to the same extent as a private individual under like circumstances.
28 U.S.C. § 2674. Florida law governs the question of liability, as the relevant events of this case occurred in Florida.
In Florida, a duty to act — failing which may trigger liability for negligence — is established "when the acts of a defendant in a particular case create a foreseeable zone of risk." Pate v. Threlkel, 661 So.2d 278, 280 (Fla. 1995). It has long been recognized that physicians owe patients a duty to "`use the ordinary skills, means and methods that are recognized as necessary and which are customarily followed in the particular type of case according to the standard of those who are qualified by training and experience to perform similar services in the community or in a similar community.'" Sweet v. Sheehan, 932 So.2d 365, 368 (Fla.Dist.Ct.App.2d 2006), quoting Brooks v. Serrano, 209 So.2d 279, 280 (Fla.Dist.Ct.App. 4th 1968). The testimony of witnesses qualified as medical experts assists the Court in discerning the relevant standard of care and whether it was breached, Pate, 661 So.2d at 281, guided by Fla. Stat. § 766.102(1): "the prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers." A breach of the standard of care must be proven by the greater weight of the evidence. Fla. Stat. § 766.102(1).
A plaintiff alleging medical negligence must not only produce evidence that the defendant breached the prevailing standard of care, but also must demonstrate that the damages were "proximately caused" by that breach. Fla. Stat. § 766.102(3)(b); see also, Turner ex rel. Turner v. United States, 514 F.3d 1194,
The Court now turns to the evidence in this case.
In early 2006, Perez, a fifty-three year old veteran, began experiencing paranoid delusions that a religious cult (assisted by local law enforcement and his neighbors) was monitoring him and attempting to kill him and his wife and daughter. On February 13, 2006, Perez went to the VA medical center in Miami, Florida, and informed his primary care physician that he was suffering from extreme anxiety and "paranoia,"
Three days after seeing Dr. Baracco, and still six days before the psychiatric appointment scheduled by the VA, Perez and his wife went to the Emergency Department of the VA Hospital in Miami. Perez arrived at the Emergency Department stating that he was "paranoid" and needed to see a "`cucu' doctor." Perez also complained of feeling depressed. MR 1172. Perez told the VA medical staff that he had discovered something about the Catholic church and, because of this discovery, he and his family were in danger. According to Perez, the church ordered his car and home to be bugged by the local police because he knew what was going on by the priests and schoolteachers. He also claimed that the Catholic school which his daughter attended was involved in the conspiracy. "They're trying to kill me and my family." Stip. ¶ ¶ 16-19, MR 1168.
The VA records reveal that, in addition to his psychiatric care needs, Perez also had several ongoing medical issues for which he had been receiving care from the VA for many years.
During this hospitalization, Perez was diagnosed by the VA with depression, psychosis, paranoid delusions, and suicidal thoughts. Stip. ¶ 13; MR 1126, 1166, 1168. The VA's records from this hospital admission also noted Perez's history of "paranoid schyzophrenia [sic]." MR 1154-57. Perez's delusions were noted as likely related to HIV/AIDS or alcohol abuse, with the symptoms likely related to an underlying organic cause. MR 1151-1152. It was noted that Perez had a history of alcohol abuse and had been drinking twelve beers daily but recently reduced the quantity he was consuming because he wanted to be alert when "they come for him." MR 1166. At the time of his discharge on February 19, 2006, hospital staff observed that Perez's delusions were "less paranoid." MR 1116.
When he was discharged, Perez was given a prescription for 100 mg of Seroquel (also known as Quetiapine), an antipsychotic medication,
On February 22, 2006, three days after Perez was discharged from inpatient care, Perez had his first appointment, as previously scheduled, with Dr. Manov, a staff psychiatrist working at the VA's Oakland Park Outpatient Clinic in Broward County, Florida. MR 1108-1110. The record of this appointment prepared by Dr. Manov, found in the "Progress Notes" in the VA medical records, indicates that he saw Perez for fifty minutes for medication
Sandra Perez attended this appointment with her husband, and testified at trial that they were "rushed in and rushed out" and Dr. Manov "didn't seem very interested in what [Perez] had to say." Tr. (S. Perez) June 27, pp. 111-112. The parties have stipulated that at this appointment Dr. Manov did not review Perez's entire medical record from his recent VA hospital admission for inpatient psychiatric care. Stip. ¶ 28. At trial, Dr. Manov acknowledged that he could have reviewed Perez's record on the VA computer system, as a patient's medical and medication history "pops up" at his computer automatically after Dr. Manov requests the information. Tr. (Manov) June 29, pp. 40-41.
At this appointment, Dr. Manov concluded that Perez suffered from an elaborate delusional system; his delusions included, in Dr. Manov's words: a "satanic sect in the roman catholic church, the teacher in his daughter's school is a girl he new [sic] 25 years ago, he is followed in unmarked cars by the police, etc." MR 1101. Dr. Manov noted that Perez "does not have any plans of hurting anybody, including himself, but very concerned they are after him." Id. At trial, Dr. Manov testified that he diagnosed Perez with a delusional disorder instead of a schizoaffective disorder because Perez did not meet all the criteria of schizophrenia, as he "didn't hear voices, [have] hallucinations [and] his affect was not blunted." Tr. (Manov) June 29, p. 67. Although Dr. Manov diagnosed Perez with a delusional disorder, there is no indication that Dr. Manov made any diagnosis related to the onset of Perez's delusions at the age of fifty-three without a prior history of mental illness.
After Perez had described his (delusional) concerns, Dr. Manov recommended that Perez view the film "Conspiracy Theory."
As noted above, during Perez's recent hospitalization he had been prescribed 100 mg of Seroquel, an antipsychotic medication.
In essence, Dr. Manov adopted the decision of the VA hospital-based physician whom had initially prescribed Seroquel to Perez, and then in addition to the existing prescription for 100 mg of Seroquel daily, Dr. Manov prescribed another dosage of 25 mg of Seroquel to be taken three times daily. Thus, when he left the VA on February 22 after this appointment with Dr. Manov, Perez had an active prescription for a total daily dosage of 175 mgs of Seroquel (25 mg three times daily plus 100 mg at bedtime), i.e., nearly double the amount of Seroquel which had been prescribed to him for the first time just the prior week.
Dr. Manov noted in the record that Perez was to return in one month; however, a follow-up appointment was scheduled for March 7, 2006, just two weeks later. The VA canceled that appointment, Stip. ¶ 33, and the record does not reveal that the VA rescheduled the appointment, nor made any attempt to do so, for at least several weeks. Plaintiff's Ex. 6. On March 7, 2006, instead of seeing Dr. Manov (since the VA had canceled that appointment), Perez attended a scheduled appointment with his VA primary care physician, who noted that Perez still had a very elaborated paranoid delusion. MR 1105. Perez then failed to attend his VA appointments on March 29 for a stress test and on April 5 with the radiology department. Plaintiff's Ex. 6.
On April 7, 2006, approximately six weeks after seeing Dr. Manov and less than two months after being discharged from inpatient psychiatric care, Perez was again hospitalized for psychiatric care. Perez had called his wife at work that day to tell her goodbye because, as he told her, that was the day that he would be killed.
Upon admission, Perez was diagnosed by David Flaherty, DO, as having a schizoaffective disorder and being alcohol dependent, Plaintiff's Ex. 1, MHW 20,
On April 13, 2006, Dr. Manov saw Perez for a second appointment, scheduled at the request of Memorial Hospital upon his discharge two days earlier. At this appointment, Dr. Manov did not review Perez's entire medical records from the two recent hospital admissions for psychiatric care. Stip. ¶ 36. According to Dr. Manov's brief notes of this appointment — which are strikingly similar to the notes he recorded in February, he spent 25 minutes with Perez. MR 1102.
As he had done at Perez's first appointment, Dr. Manov again adopted the medication choices of the hospital-based physicians whom had recently treated Perez. Dr. Manov issued new prescriptions for Ability and Wellbutrin XL, and, although Perez had only received his first prescriptions of these medications several days
Perez apparently elected to refill the previous — and still active — prescription for 100 mg of Seroquel, and also filled the new prescription for 25 mg of Seroquel; therefore, Perez left the VA Clinic that day with a total of 175 mg of Seroquel — nearly double the amount he had been prescribed just one month earlier. As of this appointment, Perez had active prescriptions for an antidepressant (Wellbutrin XL), and two different antipsychotic medications (Seroquel and Abilify).
Again, despite a note by Dr. Manov that Perez should return in one month, an appointment was scheduled for Perez to see Dr. Manov two weeks later, on April 28, 2006. Perez cancelled that appointment and scheduled an appointment for May 12, 2006, i.e., Perez scheduled an appointment for one month after the April 13 appointment.
At this next 25 minute appointment with Dr. Manov (Perez's third appointment with Dr. Manov), Dr. Manov again recorded that Perez was "very concerned that they are after him" and that he didn't want to return to Miami. Stip. ¶ 41. The majority of Dr. Manov's recorded observations of this May 12 appointment are identical to his notes of the two prior appointments with Perez, e.g., he again reports that Perez is on Ability and Wellbutrin XL and "doing somewhat better." MR1099-1100. He records that Perez has a clear elaborate coherent delusional system and adds a new observation: Perez's "plan is to stay with the object of his erotomanic delusion after the divorce and selling the house."
Dr. Manov recorded that he renewed Perez's prescriptions
This was Perez's final appointment with Dr. Manov in 2006. Although Dr. Manov's notes indicate — again, as at the prior two appointments — that Perez should return in one month, neither the VA nor Perez scheduled a follow-up appointment. Stip. ¶ ¶ 42-43. Indeed, Perez was not seen by Dr. Manov or any other psychiatrist or mental health professional at the VA for more than seven months after his May 12, 2006, appointment with Dr. Manov.
On the night of December 30, 2006, Perez and his wife again went to the Emergency Department of the VA Hospital in Miami, where he was admitted for psychiatric care. Stip. ¶ 45, MR 1082-85. The VA assessed Perez's condition at the time of this admission as: psychosis, psychosis secondary to HIV, psychosis secondary to substance abuse,
Perez explained that he had not been taking his prescribed medications regularly because he doubted their efficacy. MR 1025.
Similar to his earlier psychiatric hospitalization at the VA, several staff members noted the specific extent of Perez's persecutory delusions during this hospitalization. Perez said that he was being followed by a cult
Approximately one week after being admitted to the hospital, Moraima Trujillo, MD, noted that Perez was still psychotic but he did not have a current suicidal or homicidal intent or plan; he reportedly "ruminates about how he could do those things, but has no plans to carry them out." MR 1024. Despite being given several psychotropic medications during the first week of this hospitalization, Perez continued to experience paranoid delusions, Stip. ¶ 58, MR 969-72, reporting that he felt safe at the hospital but vulnerable when he was at home, Stip. ¶ 53. He continued to worry about his family and what the cult could do to them. Stip. ¶ ¶ 56, 58. After two weeks in the hospital, Perez was still worried about the cult, noting that he did not trust his neighbor (purportedly a member of the cult), and also that he was being "spied upon" by government agents. Stip. ¶ ¶ 63, 65, MR 970, 983. Despite Perez's repeated denial of any suicidal or homicidal ideations, VA hospital-based psychiatrists continued to conclude, until January 16, that Perez required 24-hour nursing care in a secured, locked unit, and that he could not be safely treated in a less restrictive environment. MR 952-954.
According to the hospital records, on January 16, Perez had been prescribed two antipsychotic medications: 20 mg of Olanzapine (also known as Zyprexa) and two dosages of Risperidone (a 1 mg tablet, half of which to be taken twice daily, and a 25 mg long-acting injection to be taken every 2 weeks — the next injection was scheduled for January 30); an anti-anxiety medication: 1 mg of Clonazepam (also known as Klonopin), and an antidepressant: 150 mg of Wellbutrin XL (150 mg). MR 936-937. Each of these was issued with only a single month's dosage, which was distributed before Perez's discharge, so there were no refills available when he left the hospital. Shortly before Perez was to be discharged, Dr. Trujillo also issued to Perez a prescription for a 25 mg injection of a long-acting form of Risperidone, with three refills available, so that Perez "will not decompensate due to non-compliance with oral medications." MR
When he was discharged on January 18, his diagnosis was depression and psychosis. The Final Discharge Note, dated January 18, states that "outpatient treatment will be arranged to continue to manage" Perez's condition, and an appointment was scheduled for February 6 with Dr. Manov. MR 931-936.
While Perez was hospitalized, the VA accepted Perez into its Mental Health Intensive Case Management ("MHICM") program and assigned a social worker, William Scheer, to be Perez's MHICM case manager upon his discharge from the hospital. Stip. ¶ ¶ 66-67. Mr. Scheer began visiting with Perez in the hospital on January 16, 2007, and drove Perez home two days later. MR 926, 947-948.
At Perez's appointment on February 6, 2007 — his first appointment with Dr. Manov since May 12, 2006, and what would be his only appointment in 2007 — Dr. Manov noted that Perez was still delusional, had an inappropriate affect, little insight, and poor judgment. MR 914. Although Perez had just been released less than three weeks earlier from his third in-patient psychiatric admission in ten months, Dr. Manov saw Perez for only 25 minutes, then dismissed him with instructions to return for an appointment in six months.
At this final appointment, Dr. Manov noted the psychotropic medications currently prescribed to Perez: Risperidone, Olanzapine, Clonazepam, and Wellbutrin XL. MR 913. Dr. Manov again adopted the decisions of the hospital-based physicians regarding the medications to prescribed to Perez, and issued new prescriptions to Perez for Risperidone,
At the conclusion of this appointment, Perez had active prescriptions for an antidepressant, a newly prescribed anti-anxiety medication (Clonazepam), and three antipsychotic medications (including a newly prescribed 20 mg of Olanzapine twice daily). Dr. Manov told Perez that he did not need to return for six months, even though Dr. Manov's notes indicate that he considered the efficacy of the prescribed medications to be only "fair." MR 913-915.
As noted above, Perez was admitted to the MHICM Program during his January 2007 hospitalization, and William Mr. Scheer was assigned as Perez's case manager. Stip. ¶ 66-68. Prior to providing care to Perez, Mr. Scheer did not review Perez's entire medical record from his three prior mental health hospitalizations, nor did Mr. Scheer review those records at any time while Perez was in the MHICM program. Stip. ¶ 70. Mr. Scheer did not know about Perez's suicidal ideations, his delusions about the Catholic church, or his belief that neighbors were spying on him, and Mr. Scheer also never spoke to Dr. Manov about Perez during the time that Perez was in the MHICM program. Tr. (Scheer) June 28, pp. 39-42. (Although the MHICM program had an assigned psychiatrist, there is no evidence that Perez's care was switched from Dr. Manov to a MHICM psychiatrist. Tr. (Scheer) June 28, pp. 42-43, 86, 137.) Mr. Scheer admitted at trial that there were several warning signs that he would have seen in the recorded notes of Perez's history, if he had reviewed those notes, including a prior suicide plan as a clear sign of risk, and other possible signs of risk including alcohol abuse, a chronic illness (HIV), and mental illness. Tr. (Scheer) June 28, pp. 135-137.
The VA's records reveal that Mr. Scheer visited Perez at his home a total of approximately
Mr. Scheer testified that, on one occasion, Perez said that he did not need to see a psychiatrist and he no longer needed the MHICM program,
The decision to discharge Perez from the MHICM program was made despite Mr. Scheer's update to Perez's treatment plan, dated August 8, which indicated that Perez's problems had not been resolved and he needed to continue with weekly monitoring visits. Stip. ¶ 71, MR 911-913. Moreover, as noted above, Perez had received hospital-based psychiatric care for delusions and violent behavior as recently as one month prior to being discharged from the MHICM program.
Mr. Scheer did not do a discharge summary; in fact, no discharge papers were recorded when Perez was discharged from the MCHIM program, Stip. ¶ 73; Mr. Scheer testified that he sent a handwritten document to Connecticut (the document is not part of the record), and that he wanted to keep the door open for Perez to return to the program. Tr. (Scheer) June 28, pp. 14-15.
Perez was admitted to the VA Hospital in Miami on July 9, 2007, for surgery to remove a tumor on his lung, which resulted in the removal of the right lower lobe of his lung (a pulmonectomy). MR 207. During this hospitalization, Perez had hallucinations, delirium, and delusions — reportedly related to the pain medications. VA physicians noted Perez's delusional disorder, MR 420, and reported that an underlying psychiatric disease affected Perez's threshold for delirium, MR 651.
The record reveals that Perez was violently combative and had to be placed in restraints after he tore drapes and threw a cell phone at a nurse; for his safety, Perez was assigned a 1:1 sitter, whom he subsequently hit and threatened to kill (i.e., he had a homicidal intent). MR 626-628, 653-659. He remained in the hospital for another three weeks after these episodes of violence, receiving psychiatric care — the sitter remained assigned to him for several days until he was no longer agitated,
During this hospitalization, Perez was given Olanzapine and Risperidone, among other medications, and it was noted that the VA would "follow up with primary psychiatrist for evaluation of medication effect and possible dose adjustments," but there is no record that such action took place. MR 626-628. According to the Discharge Instructions, which the Court presumes were given to Perez at the time, Perez was told that appointments needed to be scheduled with the cardiothoracic surgery clinic and that he needed to continue taking his Coumadin and see his "primary care provider," Nurse Heitman for blood testing. MR 206-209, MR 419-420.
Defendant urged this Court to find that Perez was noncompliant with scheduled appointments for psychiatric care at the VA, but the record does not support such a finding. Indeed, the VA itself cancelled Perez's first follow-up appointment (for March 7, 2006) and made no effort to reschedule the appointment that Dr. Manov had indicated should have been set for one month after the initial appointment in February.
In 2007, Perez saw Dr. Manov on February 6, shortly after Perez was discharged from the VA hospital (where he had been receiving intensive psychiatric care for three weeks). Dr. Manov told Perez to return in six months, and the VA placed Perez into a "recall" status, according to which the VA would contact the patient by letter as the sixth month approached, and ask the patient to call the VA to schedule an appointment. Tr. (Haber) July 1, p. 129.
When Perez was discharged from the hospital on August 6, he was sent home with prescriptions for two psychotropic medications; however, the VA failed to schedule an appointment for Perez to see Dr. Manov for medication management or psychiatric care — despite a notation that the VA would do so. Perez continued to be seen by Mr. Scheer, in the MHICM program, for three more weeks after Perez left the hospital, until the end of August 2007, and upon his discharge from the MHICM program the VA did not schedule any appointments for Perez to receive psychiatric care with Dr. Manov — or anyone else. There also was no evidence that Perez was ever told by the staff of the MHICM program that he should schedule an appointment with Dr. Manov.
From September 2007 through January 2008, on at least a monthly basis, Perez continued to keep appointments with other medical departments of the VA, including at a clinic he regularly visited regarding his HIV — related medications. The Court finds that Perez's willingness to attend to other medical needs and to keep appointments with other departments of the VA medical system indicates, at a minimum, that Perez might have been willing to attend
Brenda Heitman, an Advanced Registered Nurse Practitioner (ARNP), was employed by the VA at the Oakland Park Outpatient Clinic ("Clinic") during the time that Perez was receiving care at the Clinic. Her primary duty was to treat patients with HIV or AIDS; for example, she assisted patients, including Perez, with their HIV — related medications. Tr. (Heitman) July 7, pp. 4, 9-10, 13-15, 65. According to Nurse Heitman, Perez regularly appeared for his appointments at the Clinic to have his blood tested and also spoke with the pharmacist frequently, as the pharmacist was responsible for monitoring his blood clotting factors while he was taking a prescription blood thinner after his lung surgery in July 2007. Tr. (Heitman) July 7, pp. 16, 72, 87-88.
Nurse Heitman met with Perez at least monthly after his discharge from the MHICM program in August 2007 and continuing until January 2008. On two of those occasions when Perez saw Nurse Heitman during this period, on August 30 and October 4, 2007, Perez was given a screening test for depression, which revealed that he was depressed. MR 386, MR 364, Tr. (Heitman) July 7, pp. 32-33.
On August 30, Perez was not only depressed, but also appears to have demonstrated some insight or awareness of his mental illness — unlike other occasions when it was noted that he did not feel that he needed psychiatric care; for example, he requested a renewal of his psychotropic medications
When Perez was seen at the Clinic on October 4, 2007, he reported to Nurse Heitman that he felt "down, depressed or hopeless" and had little interest or pleasure in doing activities on more than half of the days. MR 364. Nurse Heitman did not refer Perez for a psychiatric consult on this date, and instead simply noted that Perez "is currently being followed in a Mental Health clinic for depression," MR 364, even though Perez had been discharged from the MHICM program six weeks earlier, and had not seen Dr. Manov in the past eight months — which was evident from the records.
The notes of this visit include the computer-generated list of "Active and Recently Expired Outpatient Medications," which reveals that there were two refills remaining of Wellbutrin XL, only one refill available for Risperidone tablets, and no refills remaining for Olanzapine 10 mg; the list also reveals that Perez had not received the long-acting injection of Risperidone since February 6, 2007 (eleven refills remained). MR 358-364, Tr. (Heitman) July 7, p. 43. The prescriptions for all other psychotropic medications which at one time had been prescribed to Perez (Abilify, Seroquel, Clonazepam, and Olanzapine in 20 mg dosage), had expired, been discontinued, or had no refills remaining. Plaintiff's Ex. 66. At this appointment in October, Nurse Heitman knew or should have known that the only psychotropic medications prescribed to Perez were Wellbutrin XL and Risperidone. This record demonstrates the VA's knowledge that Perez was not receiving his psychotropic medications through late 2007 and early 2008; at that time, the VA failed to either issue new prescriptions or renew existing prescriptions (Perez had no refills remaining for Olanzapine 10 mg).
Nurse Heitman admitted that she could have requested a psychiatric consult for Perez at any time if she had realized that Perez was not regularly refilling his prescriptions for psychotropic medications, but claimed that she did not see a need to do so because he had a prior psychiatric consult and they originally had prescribed the medications (and, presumably, were monitoring his care). She also testified (although nothing relevant is recorded in the Progress Notes she prepared on those dates) that she decided not to seek a psychology consult for Perez in either August or October 2007, nor did she decide to contact Dr. Manov, because she believed that Perez was only depressed because he was having trouble breathing and not getting his strength back quickly after his lung surgery. Tr. (Heitman) July 7, pp. 32-33, 43-44, 116. None of Nurse Heitman's notes of September 6, 2007 (MR 370-375),
Nurse Heitman asserted at trial that even if she had requested a consult it did not mean that Perez would have been willing to see the psychiatrist, Tr. (Heitman) July 7, pp. 111-113; however, throughout 2006 and 2007 Nurse Heitman never documented that Perez did not want to see a psychiatrist or take his psychotropic medications, Tr. (Heitman) July 7, p. 21 — indeed Perez himself had requested a refill of those medications from Nurse Heitman in August 2007, but the requested refill was never ordered, nor were any new prescriptions of psychotropic medications ever again issued for Perez. Plaintiff's Ex. 66.
Nurse Heitman saw Perez on January 17, 2008, and noted that Perez was in good spirits and had enjoyed his daughter's visit over the holidays. MR 337-338. Perez requested a renewal of Temazepam, MR 338, which was issued the following day.
Perez did not visit the VA at all — not even for general medical care — for approximately eight weeks, from January 29 to March 27, 2008. This deviation from his normal pattern of regular visits was also evident the prior year, when Perez absented himself from any care at the VA for twelve weeks immediately prior to his hospitalization for psychiatric care on December 30, 2006. No one from the VA appears to have noticed these absences or taken any steps to ensure that Perez was contacted during those times in an effort to monitor his mental health.
In summary, after Perez was discharged from the MHICM program at the end of August 2007, most of his prescriptions for psychotropic medications expired and were not renewed by the VA, even though Perez visited Nurse Heitman approximately twice per month and, on at least one occasion, requested renewals of his prescriptions. During the last eight months of his life Perez received no antipsychotic medications,
On April 3, 2008, Perez made an unscheduled visit to the Clinic. Tr. (Heitman) July 7, pp. 94-95. According to Nurse Heitman, Perez arrived on April 3 with concerns about bruising and bleeding on his arms and also to request medications for erectile dysfunction. Tr. (Heitman) July 7, pp. 38, 99, 103, 119.
At trial, Nurse Heitman said Perez's drop-in visit to the Clinic on April 3 was unique, as she had never previously experienced Perez's mental health as questionable during any of her visits or communication with him. Tr. (Heitman) July 7, p. 33. She noted that Perez had not followed up with psychiatry and was not taking his "medications ordered," MR 330-331, Tr. (Heitman), July 7, p. 36, but at trial she admitted that she did not check the notes that day and therefore did not know that Perez had not been seen by Dr. Manov for fourteen months, or that Perez had not been receiving any anti-anxiety or antipsychotic medications and only had received three monthly refills of his antidepressant medication in the past eight months; she also did not know about the delusional girlfriend or, importantly, that Perez had expressed suicidal or homicidal ideations during his four hospitalizations in the prior two years (including a hospitalization only eight months prior to the date of this Clinic visit). Tr. (Heitman) July 7, pp. 36-39.
Nurse Heitman called another nurse into the examining room with Perez. Carmina Fogarty, RN, was asked to see if Dr. Manov would come to the clinic to see Perez since he was unwilling to go to the mental health area. Although Perez appeared calm at the time, Nurse Fogarty was not sure what might happen, and called for a VA police security officer. Tr. (Fogarty) July 8, p. 16. Nurse Heitman testified that Dr. Manov was summoned to the clinic to see Perez because Heitman was concerned that Perez wasn't taking his HIV medications, Tr. (Heitman) July 7, p. 34; however, the records reflect that Nurse Heitman requested an urgent mental health evaluation of Perez because he was "not on psychotropic medications; stopped himself; with delusions of a cult
Dr. Manov's office was approximately 100 feet from Nurse Heitman's office. Dr. Manov came to the clinic, and then walked back to his office with Perez before escorting Perez down the hallway to the pharmacy. Tr. (Manov) June 29, pp. 104, 126. Dr. Manov later recorded, under the topic "Current Psych Meds" in the VA's progress note of that psychiatry consultation, that Perez had not been taking any medications "since he believes that the meds are switched by the gang, and the meds cause bleeding in his skin." Stip. ¶ 84, MR 327. According to his trial testimony, Dr. Manov's purpose when he was called by Nurse Heitman to see Perez was to help Perez "be compliant with the [HIV] medication." Tr. (Manov) June 29, pp. 103-104. The Court finds that neither Nurse Heitman nor Dr. Manov were credible when they testified that the primary reason for Dr. Manov to be summoned to the Clinic was because Perez was not taking his HIV medications. Nurse Heitman admitted that prior to that day, she had never seen Perez when he was delusional; she had witnessed him "down" but had attributed that to his difficulty breathing post-surgery on his lung. Tr. (Heitman) July 7, pp. 86-87. Clearly, his appearance and demeanor that day had caused Nurse Heitman to have concerns about his mental health such that she requested an urgent evaluation by the psychiatrist assigned by the VA to care for Perez.
Dr. Manov testified that he spoke with Perez for thirty minutes on April 3, Tr. (Manov) June 29, p. 121, and that Perez had an inappropriate affect, poor insight, poor judgment, and was still convinced of his delusions that a gang was pursuing him.
Dr. Manov noted in the medical record that Perez denied that he would take his own life or that of someone else, Stip. ¶ 87, Tr. (Manov) June 29, pp. 111-112; he asked Perez a set of questions, a "depression screening" required by the VA,
Despite Dr. Manov's assessment that everything was proceeding with Perez's treatment "the way it was supposed to go," the record reveals that Perez had no psychotropic medications available to him other than one month's supply of Risperidone tablets, and he also was reported to have been drinking heavily. Dr. Manov escorted Perez to the pharmacy in an effort to assure Perez that the medication was safe and had not been poisoned by a cult, but did not remain there long enough to discover whether Perez filled or refilled his prescription for Risperidone that day. Tr. (Manov) June 29, pp. 55, 126. Nurse Heitman's notes indicate that Perez would be on a "drug holiday" and would not take his
At the end of his consultation with Perez, Dr. Manov concluded that Perez was "[a]lready receiving needed treatment," MR 330, and Perez was not admitted for inpatient care on that day, Stip. ¶ 4. Instead, Dr. Manov told Perez to return for an appointment in six months.
One week later, on April 10, 2008, Perez arrived at the Clinic and again was seen by Nurse Heitman. Stip. ¶ 5. This would be Perez's final visit to any VA health care provider. Nurse Heitman recorded that Perez still believed, on April 10, that "a cult is after him and that the VA has been infiltrated and [Perez] does not trust the mail or the lab." Stip. ¶ 85. However, she also recorded that before he left the Clinic that day, Perez was willing to have the medications (including the Viagra he continued to request) mailed to his home as he no longer was worried about the cult infiltrating the postal system and he did not want to wait at the Clinic for the pharmacy to fill his prescriptions. MR 321. According to Nurse Heitman's notes, Perez "plans to go to Latin America end of May for a visit ... [and he requested] Viagra for erectile dysfunction." MR 320-321. Nurse Heitman told Perez to "contact clinic next week for results of labs." MR 323.
Nurse Heitman noted that Perez admitted to her, apparently for the first time in their history of care over the past two years, that he had been drinking the night before and had consumed a bottle of wine and some gin. MR 321, Tr. (Heitman) July 7, p. 104.
Neither Plaintiff nor her mother were afraid of Perez,
On April 6, just four days before his final visit to the VA, Perez had lunch with his former wife to celebrate his birthday. Tr. (S. Perez) June 27, p. 128.
Perez, but didn't take any further steps after he tried unsuccessfully to reach Perez by phone. Tr. (Scheer) June 28, pp. 55-56. Mr. Scheer decided against calling Nurse Heitman (or anyone else at the VA) because he believed that Perez's delusions were not such that he was going to hurt himself or someone else, and that it was Perez's choice "of not having contact with us." Tr. (Scheer) June 28, pp. 48, 139. Although Mr. Scheer had documented Sandra Perez's comments, her concerns apparently were not brought to the attention of Dr. Manov, nor did anyone who saw Perez at the VA Clinic on April 10 know about the information provided by his ex-wife just two days earlier.
Plaintiff regularly spoke with her father by phone. Tr. (Maria Jose Perez) June 27, p. 63. On Saturday, April 12, 2008, Plaintiff spoke with her father by telephone several times; during one of their telephone conversations that day,
Plaintiff and her mother both knew that there was an old and rusty pistol in the home. Plaintiff testified that she didn't consider the gun as a weapon as she had been told that the gun was inoperable — one of her mother's co-workers had looked at the gun some time earlier (due to an interest in pre-World War II memorabilia) and reported that it would not fire. Tr. (Maria Jose Perez) June 27, pp. 66, 95-97; Tr. (S. Perez) June 27, pp. 120-123. Neither Plaintiff nor her mother knew that Perez kept the pistol loaded. Tr. (Maria Jose Perez) June 26, p. 95; Tr. (S. Perez) June 27, p. 122.
On April 19, 2008, after not being able to reach Perez by phone, Sandra Perez called in a welfare check to local police. Upon arrival, the police discovered the body of Perez, whom had committed suicide by a self-inflicted gunshot wound to his head. Stip. ¶ 7.
On July 2, 2008, Mrs. Perez met with the head of the VA psychiatry department and other VA staff (including Dr. Manov and Nurse Heitman), and was told that Perez had "slipped through the cracks," Tr. (S. Perez) June 27, p. 135. Nurse Heitman recalled that someone also said that the VA had "dropped the ball." Tr. (Heitman) July 7, p. 61. Dr. Vara testified that this meeting specifically did not address liability for the suicide, and when he said that things could have been done better, he meant those words as a general statement because "in terms of outpatient suicides, there are usually many things that fall through the cracks." Tr. (Vara) July 1, pp. 22-26, 33.
In a medical negligence action, a court initially must determine what duty was
The requirement of "reasonable, general foresight is the core of the duty element." McCain v. Fla. Power Corp., 593 So.2d 500, 503 (Fla.1992).
There are few reported decisions in Florida addressing what duty is owed by health care providers when treating patients with severe mental illness. As a general matter, Florida's medical negligence law imposes liability for negligence in the provision of any medical diagnosis, treatment or care.
Courts rely primarily on expert testimony when determining the applicable standard of care. Pate, 661 So.2d at 281.
Both expert witnesses agreed that the prevailing standard of care for reasonably prudent psychiatrists requires that a psychiatrist complete a thorough evaluation of a patient's current status and history in order to render a proper diagnosis. Tr. (Ratner) June 29, p. 22, Tr. (Hughes) July 8, pp. 104-105. Plaintiff's expert testified that, in order to formulate a proper diagnosis and treatment plan, psychiatrists are trained to take the best possible history at a patient's first consultation. An understanding of the psychiatric patient's history is required to determine if there is a pattern of behavior, and a psychiatrist must look for symptoms and what happened to the patient in the past, in order to have an idea of what might happen to the patient in the future, as "people tend to repeat similar patterns." Tr. (Ratner) June 29, pp. 22, 146.
According to Dr. Ratner, in addition to taking a thorough history at the outset of care, a psychiatrist should conduct a mental status exam each time he sees a patient and Dr. Manov and other VA staff members had a duty to document whether Perez was competent to give answers to questions as to whether he was taking his medications or had any suicidal intent, etc. Tr. (Ratner) June 29, p. 10, Tr. (Ratner) June 30, pp. 117-119, 126. Dr. Hughes did not seem to disagree that a psychiatrist should conduct a mental status exam and document a patient's competency, and argued that Dr. Manov had done so when he saw Perez on April 3, 2008, Tr. (Hughes) July 11, pp. 151-155, despite Dr. Manov's own admission that he had not, Tr. (Manov) June 29, pp. 58-59. Dr. Hughes also testified that "a primary care physician [referring to Nurse Heitman incorrectly as a physician] shouldn't waste her time documenting [mental status] each time unless there's some kind of a reason for it." Tr. (Hughes) July 11, p. 127.
To the extent that the patient continues to receive care from a provider, the duty to render a proper diagnosis is ongoing; however, a provider is not necessarily liable for harm to a patient as a result of an earlier diagnosis when it is clear that psychiatric care has been terminated. For example, a mental health care provider does not owe a duty to a patient who commits suicide several months after treatment has been completed, where an examination of the patient during care revealed no sign of suicidal tendencies, there was no evidence of prior suicide attempts or threats, and a suicide screening showed no risk of suicide. Lawlor v. Orlando, 795 So.2d 147 (Fla.Dist.Ct.App. 1st 2001) (affirming grant of summary judgment for psychologist, noting that there was no evidence of suicidal tendencies by decedent during treatment, declining to impose duty on psychologist treating client in an outpatient setting).
Plaintiff argues that the VA's duty to render a proper diagnosis and to regularly assess Perez's mental competency also required the VA to determine whether Perez needed involuntary hospitalization when he was seen at the Clinic on both occasions in April 2008.
In summary, the Court concludes that the VA owed Perez a duty to make a proper diagnosis of his condition, based on a thorough assessment of his history and a thorough examination of his condition at the outset of care, with modifications as needed as he continued to be seen by the VA. The VA also had a duty to evaluate and document whether Perez was competent to provide answers to important questions such as whether he had thoughts of suicide or whether he was taking any psychotropic medications, both at the initial
The experts disagreed as to whether the VA had breached its duty to provide a proper diagnosis of Perez's mental illness.
Dr. Ratner gave a detailed explanation of his expert opinion that Dr. Manov failed to review Perez's psychiatric and medical records and therefore was operating with an inadequate history of Perez and, as such, fell below the standard of care. Tr. (Ratner) June 29, pp. 21, 152. Specifically, Dr. Manov did not document any history of Perez that would contribute to what he was seeing each time in terms of patterns of behavior, Tr. (Ratner) June 29, pp. 22-23, and failed to appreciate from the outset (and continuously) that Perez had certain characteristics indicating a significant risk of self-harm.
Dr. Manov testified that he had adequately reviewed Perez's medical records, such that when he saw Perez on April 3, 2008, Dr. Manov was aware of Perez's admission to the VA Hospital with an acute onset of psychosis in February 2006. Tr. (Manov) June 28, p. 169. The Court finds that testimony less than credible, however, as Dr. Manov also testified that he did not know that Perez had been suicidal in February 2006. Dr. Manov testified that he did not know about Perez's elaborate suicide plan, Tr. (Manov) June 28, pp. 182-183, even though it is noted in the VA medical records of his hospitalization in December 2006 — January 2007,
The Court finds that Dr. Manov improperly was of the view that "[w]hatever the patient tells me I know." Tr. (Manov) June 28, p. 182. Dr. Manov asserted that he knew what kind of patient he was treating, and had no duty to look at Perez's history "[i]f he doesn't tell anybody that he was admitted to Memorial [Regional Hospital]." Tr. (Manov) June 28, p. 182. Indeed, Dr. Manov professed that he had been taught that "if you cannot trust what a patient says, it is hard to treat him." Tr. (Manov) June 29, p. 94. Dr. Ratner testified that, while patients do not usually lie, the psychotic condition may cause them to not be truthful about what is really happening. Tr. (Ratner) June 29, p. 148. When the patient is less than candid, reviewing medical records is the "least abrasive" way to get information, and talking with family members is another acceptable approach to gain necessary information.
Dr. Ratner opined that the VA's failure to conduct an adequate assessment of Perez's history and failure to appreciate Perez's present condition resulted in an improper diagnosis at the outset and throughout the period of care. Dr. Ratner disagreed with Dr. Manov's assessment that Perez had a paranoid delusional disorder, as the accepted definition of that disorder (citing to the DSM-IV, a widely accepted diagnostic manual)
Dr. Ratner testified that it appeared that Perez had a schizoaffective disorder, instead of a delusional disorder.
Dr. Ratner described Perez as having a progressively degenerative cerebral disease; Perez's delusions had appeared relatively suddenly and late in his life,
According to Dr. Manov, he had not realized the extent of Perez's alcoholism when he first began seeing Perez; he acknowledged that alcohol can induce delusions, and he stated that each time Perez was Baker-Acted he was in an acute psychotic state due to his alcohol intake. Tr. (Manov) June 29, p. 78. The Court finds that if Dr. Manov had conducted a more thorough — or any — review of Perez's medical history, he would have been aware of Perez's alcohol abuse, which was documented throughout his record of recent hospitalizations,
Dr. Ratner testified that although the standard of care requires that a competency exam be administered regularly, his assessment of the VA records indicated that there was no documentation that a competency exam was ever administered to Perez. Tr. (Ratner) June 30, pp. 117-119. Dr. Manov admitted that he did not do a competency exam on April 3, 2008, Tr. (Manov) June 29, pp. 58-59, but claimed that it was unnecessary.
Dr. Ratner offered his opinion that the brief observations noted by Dr. Manov on April 3 may have addressed whether Perez was depressed, but the record did not reveal that an adequate evaluation of the risk of suicide was performed. Tr. (Ratner) June 30, p. 131. Dr. Ratner also testified that it was a breach of the standard of care for the VA staff to have failed to conduct a suicide screening on April 10, 2008, Tr. (Ratner) June 30, p. 79. This breach is particularly notable because the evidence clearly demonstrates that the VA staff knew that Perez was receiving no psychotropic medications at that time. The Court agrees with Dr. Ratner and finds that it was a deviation from the standard of care for the VA to have not conducted a more thorough evaluation of Perez's risk of suicide when he was seen at the Clinic on April 3, and it was also a deviation for the VA staff to have not conducted a suicide screening and adequate evaluation when Perez was at the Clinic on April 10.
According to Dr. Ratner, Perez continued to have several risk factors for suicide when he was last seen by Dr. Manov on April 3, 2008; at that time Perez was: male, Hispanic,
Dr. Ratner testified that Perez was in such a severely compromised mental state on both April 3 and again on April 10 that he would have been subject to involuntary confinement pursuant to the Baker Act. Tr. (Ratner) June 30, pp. 80-81. Dr. Hughes disagreed, noting that, while Perez's past history "should make someone somewhat cautious because he had suicidal ideations and homicidal ideations," Perez had not made any suicide attempts and did not have a clear intent to do so, and at the
Dr. Ratner also opined that it would have been reasonable, and legally permissible, for the VA to contact Perez's family in April 2008 to seek additional information or to provide support for Perez. Tr. (Ratner) June 30, p. 81. The Court agrees with this opinion. Although Perez and his wife had divorced several months earlier, it was undisputed that the divorce was precipitated by the delusions and that the wife remained active in Perez's life; the VA also should have been able to locate Perez's daughter, if necessary.
In summary, the Court finds that Dr. Manov and the VA breached their duty of care by not taking a complete and accurate history of Perez during his initial consultation or at any time thereafter while he was receiving care on an outpatient basis. Nor did the VA meet the standard of care as to rendering a diagnosis based on examination and testing; indeed, there is no indication that Dr. Manov ever made a diagnosis as to the sudden onset of Perez's delusions and psychosis at the age of fifty-three without a prior history of mental illness. The VA had specific evidence of Perez's suicidal and homicidal ideation during four prior hospital admissions
Moreover, it was a breach of the standard of care to not conduct a competency exam or to assess Perez's mental status in greater detail during his visits to the Clinic in April 2008, particularly in light of his noted poor insight, as well as the fact that he was not currently on any psychotropic medications, and had not been seen by any mental health care provider for an extended period of time. In brief, Dr. Manov, as the VA's assigned treating psychiatrist, and the VA, as the exclusive provider of mental health care during the last two
Dr. Manov conducted apparently little — if any — review of Perez's record of recent and ongoing psychiatric hospitalizations while Perez was his patient. The VA's failure to adequately evaluate Perez's history resulted in an improper diagnosis (and consequent treatment approach) — which is of particularly grave concern when a patient is being treated as an outpatient. A psychiatrist has less ability to monitor the progress of a patient being treated outside of an institutional setting and errors of judgment in the diagnosis are left to be discovered while the patient is struggling on their own without the attendant protections of hospital staff. In this case, the VA's failure to render a proper diagnosis may have resulted in the deterioration of Perez's mental health to a point where he could not control his suicidal impulses.
The expert witnesses agreed that psychiatrists often cannot predict suicide any more accurately than the average person. Tr. (Hughes) July 11, p. 30, Tr. (Ratner) June 30, p. 120. Dr. Ratner testified, however, that there are specific issues related to suicidal tendencies that psychiatrists are trained to evaluate, and a series of factors that would make a person more vulnerable to suicide. Dr. Ratner referenced a study, published in Psychiatric News, which found that one-third of people who have previous suicidal ideation will kill themselves within one year. Tr. (Ratner) June 30, pp. 111. Thus, reasonably prudent psychiatrists recognize that patients whom have had suicidal ideation within the past year must be considered as having a great risk of suicide. A prior suicidal ideation
Dr. Hughes testified that while suicidal ideation is somewhat common in the United States, the number of actual suicides is very low. Tr. (Hughes) July 11, p. 11. According to Dr. Hughes, a psychiatrist must ask a series of questions to determine the patient's level of suicidal ideations, as well as assess the patient's feelings through empathy and physical presence.
While the greater weight of the evidence demonstrated that the VA rendered psychiatric care that fell below the prevailing standard as to the rendering of a proper diagnosis, the Court does not find that the misdiagnosis of Perez as having a delusional disorder instead of a schizoaffective disorder was the proximate cause of Perez's suicide. Indeed, Plaintiff's expert did not offer a conclusive opinion that the VA's hastily prepared and improperly supported diagnosis was the proximate cause of Perez's suicide.
The question is much closer, however, as to the VA's failure to conduct a regular evaluation of Perez's mental status and, specifically, to conduct a competency exam or to assess his mental status in greater detail during his visits to the Clinic in April 2008. The evidence established that VA staff knew in April 2008 that Perez was not currently on any psychotropic medications, and that the VA had not renewed Perez's prescriptions for such medications at any time in the past eight months, and that he had not been seen by any mental health care provider for an extended period of time prior to arriving at the Clinic on April 3; despite this knowledge, Perez was sent home with instructions to return for psychiatric care in six months.
If the VA had more carefully assessed Perez's competency on April 3, it would have been evident that Perez's statements that he was not suicidal and had no intent to harm himself were inconsistent with his condition. Similarly, if the VA staff had more carefully evaluated Perez on April
In general, a health care provider fulfills the duty to their patient by "prescribing and administering a course of action to effect a cure, and meeting the patient's daily needs during the illness." Silva, 601 So.2d at 1187. The specific aspects of a psychiatric care provider's duty depend, in part, upon the duration or extent of the provider's relationship to the patient receiving treatment and care.
A longer period of care or a more extensive relationship implies that the provider has (or should have) greater knowledge of a patient's specific psychiatric status and suicidal intentions and can better prescribe and administer a course of action, as well as meet the patient's needs; a failure to render proper treatment and care in such circumstances may result in liability for the provider. For example, liability exists for negligent care rendered to patients being treated in a psychiatric facility due to the provider's relatively extensive ability to supervise and control the patient. See, e.g., Brown v. Kaufman, 792 So.2d 502, 503 (Fla.Dist.Ct.App. 4th 2001) (reversing directed verdict in favor of psychiatrist who was also supervisor of hospital unit in which patient was left unattended in violation of fifteen-minute suicide check policy); Reid v. Altieri, 950 So.2d 518 (Fla. Dist.Ct.App. 4th 2007) (noting that jury found hospital and psychiatrist responsible for suicide of person treated briefly as inpatient). Liability also may exist in the outpatient setting when a psychiatrist treats a patient for several years during which that patient repeatedly expressed a suicidal intent. See, e.g., Sweet, 932 So.2d 365 (duty may exist where psychiatric treatment had continued for nine years); see also, Lawlor, 795 So.2d at 149 dissenting opinion (noting that Lawlor's expert's opinion — ignored by majority in finding no liability as to outpatient care — stated that the psychologist who treated a patient for seven years and without an appropriate treatment plan caused a deteriorating mental condition, untreated depression, and corresponding sense of hopelessness that may have rendered psychologist liable for patient's suicide). A psychiatrist also might find that after treating a patient for a long period of time the patient becomes dependent on that care and, as a result, the psychiatrist's duty to meet that patient's needs may be greater.
The evidence in this case clearly established that the VA was the sole
Plaintiff's expert, Dr. Ratner, agreed with the defense expert's opinions, and added that Dr. Manov had the duty to closely monitor Perez's medications, particularly starting in May 2006 when Dr. Manov had substantially increased Perez's prescribed dosage of the antipsychotic
Dr. Manov acknowledged that he had a duty whenever he saw a patient to adjust
Both experts discussed the importance of adequately evaluating a psychiatric patient, through regular monitoring, and testified as to the importance of a mental health care provider developing a relationship of trust with a patient, i.e., such that the patient trusts the provider;
According to VA policies which were effective as of October 11, 2006, the responsible health care provider has a duty, when a patient misses an appointment, to review the patient's record and "determine and initiate appropriate follow-up action." Plaintiff's Ex. 11 (VHA Directive 2006-055). When the VA cancelled an appointment, the provider was required to review the record of the patient, "ensure that urgent medical problems are addressed in a timely fashion, ensure that provisions are
In summary, although psychiatric care providers are not burdened with an absolute duty to prevent suicide by their patients, the Court concludes that such providers have a duty to not act with such negligence in their treatment that their acts or omissions would proximately cause harm to a patient. The record before the Court in this case compels a conclusion that the VA owed Perez a duty to prescribe and administer a course of action designed to treat his severe mental illness such that Perez reasonably might survive that illness. That treatment should have included regular monitoring of Perez's mental health, and close monitoring and necessary adjustments of the medications being prescribed to treat his illness and manage his persecutory delusions. The fact that Perez was seen on an outpatient basis by the VA at the time of his suicide does not negate the duty owed to Perez to regularly monitor his mental health. Specifically, the VA knew, or should have known, of Perez's history of suicidal ideation and depression and, in light of that knowledge, had a duty to take reasonable steps to try to prevent Perez's suicide, e.g., schedule appointments regularly (with follow-up after any cancellations), confirm that prescribed medications were being obtained or — at a minimum — that renewals/refills were available, properly monitor and adjust the medications being prescribed to treat Perez's severe mental illness — including reviewing for any side effects or interactions with other medications, and ensure that appointments were scheduled regularly to assess whether Perez needed additional care. Having determined, as a matter of law, that the VA owed Perez this duty, the Court now must make factual findings as to whether the VA breached that duty to provide proper treatment and care to Perez.
The Court begins its analysis by rejecting Defendant's implied argument that Perez was noncompliant with his appointments and that his noncompliance absolved the VA of its duty to provide appropriate treatment and care. Dr. Hughes claimed that the VA was unable to get Perez to "come in when they wanted" and that Perez was "that kind of a guy" who would only come to the VA when he wanted. The Court finds to the contrary, i.e., the Court finds that Perez attended the overwhelming majority of appointments scheduled for him with other VA medical staff, made the initial request for an appointment with a VA psychiatrist, met with Dr. Manov shortly after each of Perez's three psychiatric hospitalizations, and attended each appointment scheduled with Dr. Manov other than one which was canceled and not rescheduled by the VA.
It was undisputed that the VA failed to reschedule an appointment for Perez when the VA cancelled his appointment for March 2006, and failed to schedule any appointment after February 2007.
Dr. Manov testified at trial that he had nothing to do with scheduling patients' appointments, and simply saw those patients each day whom appeared at his office. (Dr. Manov testified that he had no advance notice of when patients were scheduled for appointments with him, and that staff would simply tell him when a patient arrived.) Tr. (Manov) June 28, pp. 160-161, 174. According to Dr. Manov, when he asked VA staff to schedule patients for appointments, he was told that there were no openings. Tr. (Manov) June 29, pp. 35-36. As discussed above, the VA failed to ensure that Perez was seen regularly; indeed, Perez was left without psychiatric care appointments for months at a time. The Court finds that the VA breached its duty to Perez to see him regularly for treatment and care.
At trial, Dr. Manov testified that he was ready and available to help Perez and that any patient who appeared at his office without an appointment would be seen and treated; as evidence of this practice the Court notes that Nurse Heitman was able to schedule a prompt consult for Perez with Dr. Manov on April 3, 2008, without a prior appointment. The Court does not doubt Dr. Manov's intentions to provide care to his patients, but Dr. Manov admitted that in July 2007 he was seeing sixteen patients daily and was responsible for a total of eight hundred patients. Based on that schedule, the VA had made it impossible for Dr. Manov to see even one-half of those patients on a monthly basis.
Even if there had been available time in Dr. Manov's busy calendar to schedule a monthly appointment for Perez, Dr. Manov claimed to "know" Perez and his needs after just his first two appointments, and therefore believed that he did not need to see Perez every month thereafter to provide treatment. Tr. (Manov) June 29, p. 31. Dr. Manov testified that six months between appointments was routine, and "what would be the point in seeing [Perez] every month." Tr. (Manov) June 29, p. 7, June 28, p. 42. Earlier in his testimony, Dr. Manov claimed that one month for follow up appointments was standard at the VA, Tr. (Manov) June 28, pp. 30, 35, but he later changed his position and said that he only recommended follow up appointments in one month for new patients. Tr. (Manov) June 28, p. 185. The record contradicts his testimony, as he recommend a follow up in one month after each of Perez's first three appointments. Dr. Manov said that he did not make any attempt to reschedule any cancelled appointments with Perez, and said that it would be "crazy for me to do, to call a patient at home," Tr. (Manov) June 29, p. 52; this appears to be a breach of the VA's own policy that a provider must "initiate appropriate follow-up action" when a patient misses an appointment, and "ensure that provisions are made for necessary medication renewals" when the VA cancelled an appointment.
Dr. Ratner specifically opined that it was a clear deviation from the standard of care as to medication monitoring to wait seven months to see a patient after prescribing the medications Dr. Manov had prescribed to Perez in May 2006. Tr. (Ratner) June 30, p. 53. Dr. Ratner testified that Wellbutrin XL, first prescribed for Perez in April 2006 by Memorial Regional Hospital and then prescribed by Dr. Manov again the following month, can make a patient anxious or lead to suicidal ideation, and that more frequent appointments should have been scheduled with Perez to monitor his reactions to the medications, evaluate whether Perez was having side effects, and determine the effectiveness of the Wellbutrin XL prescribed to Perez. Tr. (Ratner) June 29, p. 153.
Dr. Ratner also testified that it was a breach of the standard of care to wait six months for a follow up appointment after Dr. Manov had renewed multiple medications at an appointment with Perez on February 6, 2007, Tr. (Ratner) June 30, pp. 56-57.
Importantly, after August 30, 2007 (when he was discharged from MHICM), Perez only had remaining prescriptions for an antidepressant and one antipsychotic (Risperidone); the other prescriptions all had expired or had no refills remaining.
Although Perez had a history of non-compliance with his HIV-related prescribed medications, the greater weight of the evidence establishes that Perez was compliant with other medications, e.g., the Clonazepam and Temazepam, and the VA is not excused from its duty by suggesting that Perez was generally non-compliant with prescribed medications. It was a breach of the standard of care for the VA to not have at least verified whether Perez was obtaining his prescribed medications throughout 2006 and 2007 — if the VA had done so, it would have been evident that Perez was not truthful when he reportedly stated, at his appointments with Dr. Manov, that he was taking all of his medications. It also was a breach of the standard of care to have failed to confirm the accuracy of this information when Perez was seen at the Clinic in April 2008.
Dr. Manov testified that he took Perez's statements about his medications at "face value," Tr. (Manov) June 29, p. 45, which is an unacceptable deviation from the standard of care for a psychiatrist with easy access to computerized records — from which at least a quick review could be conducted as to whether the patient had received the prescribed medications. According to Dr. Ratner, patients usually do not lie but they may distort; if a patient is forgetful or has impaired judgment, then a medical professional might ask a family member who lives with them, or might perform a blood test. As an initial matter, it should be checked to see if the patient is refilling their prescriptions; a quick review would have revealed that Perez was not. In the final analysis, according to Dr. Ratner, blood tests are the only way to determine accurately whether a patient is taking medications; Dr. Ratner opined that while Nurse Heitman was drawing blood samples for other medical tests, she could have asked Perez's permission to do a serum test (which would have revealed the presence of medications). Tr. (Ratner) June 30, pp. 144-145.
In summary, on three occasions the VA sent Perez home with new prescriptions for psychotropic medications (often at increased dosages from his recent prescription) and no appointment for monitoring the effects of these medications for the next six months or longer. The Court rejects Dr. Hughes's opinion that these long periods of time between appointments met the standard of care for monitoring of Perez's condition,
At each appointment with Perez, including the first appointment, Dr. Manov appears to have simply adopted the prescriptions entered by whichever hospital physicians had most recently seen Perez,
Of even greater concern is the fact that at three of the four appointments with Perez, Dr. Manov increased the prescribed dosage of a medication recently provided to Perez, and did so without any documentation as to the reason for the increase. For example, Dr. Ratner testified that it was a breach of the standard of care for Dr. Manov to have prescribed such a large increase in the dosage of Abilify (to 60 mg daily, i.e., double the standard dosage of 30 mg) because of potentially very serious side effects of that medication, including toxicity, and that it also was a breach of the standard of care for Dr. Manov to not see Perez within a short time in order to determine whether he was experiencing any interactions or side effects. Tr. (Ratner) June 30, pp. 51-52.
Dr. Manov's decisions as to the quantity of medication to be prescribed appeared to have been made with little analysis; nor did Dr. Manov appear to have been paying attention, generally, to the prescriptions
While the Court does not impose a duty on a mental health care provider to personally guarantee that a patient is taking each prescribed medication, the Court does find it to be reasonable to require a prescribing physician to — at a minimum — engage in a meaningful review of the patient's medication history and current status, and to renew expiring medications as appropriate. At the VA, and probably at many large health care provider systems, this meaningful review is particularly easily accomplished by a review of the patient's computerized medical records.
As the VA's psychiatrist assigned to treat Perez, Dr. Manov was the only person with the authority to change or adjust Perez's psychotropic medications while he was receiving outpatient care, Dr. Manov fell below the standard of care by failing to keep track of what medications were prescribed to Perez and the status of his refills — a task which witnesses in this case testified is easy to perform by using the VA's computer system. This easily performed task would have revealed that the medications prescribed to Perez were not uniformly refilled throughout 2006 and 2007 and, in April 2008, the majority of those medications had expired; in short, there was not any prescription that would have lasted the six months that Dr. Manov
Not only was Dr. Manov mistaken in his assumption as to what medications were available to Perez in April 2008 (a mistake which easily would have been corrected if Dr. Manov had looked at the VA's records, Tr. (Manov) June 28, pp. 178-179), but he also was unaware of relevant information about Perez that was available in the VA's record. For example, Perez had been determined to be depressed in late August and in October 2007, and had not been receiving regular dosages of an antidepressant for the several months prior to his visit to the Clinic in April. This information might have caused Dr. Manov to doubt whether Perez could reliably answer important questions as to whether he had a suicidal intent; in any event, Dr. Manov should not have relied solely on Perez's denial of a suicidal intent.
The record suggests that there was, at best, poor communication between Perez and Dr. Manov, such that Dr. Manov failed to properly assess Perez's psychiatric needs or provide appropriate treatment and care. For example, Dr. Manov testified that he was not aware, in April 2008, that Perez had been discharged from the MHICM program seven months earlier. Tr. (Manov) June 28, p. 162, Tr. (Manov) June 29, p. 52. At trial, Dr. Manov appeared to be proud of his perceived insight and understanding of Perez in spite of their infrequent contact. Dr. Manov testified that he was Perez's "friend, his psychiatrist" and that he "knew" this patient, Tr. (Manov) June 28, p. 182, Tr. (Manov) June 29, p. 86, but he also admitted that "I don't know.... I don't follow him. I don't know what he is doing." Tr. (Manov) June 28, p. 175.
When Dr. Manov first met Perez in February 2006, Dr. Manov apparently determined that he would rely, in part, on the fact that Sandra Perez (who was still living with Perez at the time) would bring Perez to the VA if his condition deteriorated. Tr. (Manov) June 29, p. 72. In light of this fact, Dr. Manov's recorded observation that Perez was living in an apartment by himself in April 2008 should have been of some concern. MR 327. Perez may not have been inclined, on his own, to disclose that he needed psychiatric help; Dr. Manov — who professed to "know" his patient — should have taken this into account and developed a method of inquiry which would not trigger Perez's delusions.
Dr. Manov testified that throughout his treatment of Perez, Dr. Manov did not want Perez to feel that his actions were being monitored, Tr. (Manov) June 29, p. 59, but Dr. Manov was the person at the VA most responsible for monitoring Perez's compliance with his medications and his psychiatric care; if Dr. Manov was not conducting meaningful monitoring, it is clear that no one else at the VA was doing so. Nurse Heitman and Mr. Scheer both were relying on Dr. Manov to serve as the
At trial, Dr. Manov attempted to justify the infrequency and brevity of his interactions with, and monitoring of, Perez as appropriate care for a patient with paranoid delusions. For example, Dr. Manov claimed that he had no idea whether Perez received his medications on April 3, as that "was my way of avoiding interference with his paranoid system." Tr. (Manov) June 29, p. 56. Dr. Manov professed that his biggest concern in treating Perez was to avoid being included in Perez's perception of the gang that was pursuing him. Tr. (Manov) June 29, p. 59.
While Dr. Hughes agreed with Dr. Manov's approach to Perez, and testified that a therapeutic relationship had been established between the two men, Dr. Hughes offered no evidence as to how such infrequent appointments and nearly non-existent monitoring of Perez's medications would have been beneficial to Perez. Expert testimony is properly excluded "when the only connection between the conclusion and the existing data is the expert's own assertions." McDowell v. Brown, 392 F.3d 1283, 1301-02 (11th Cir.2004). While it may be true that a therapeutic relationship can be formed with the minimal contact Dr. Manov had with Perez, unfortunately the record does not reveal that Dr. Manov's approach achieved a therapeutic benefit for Perez.
Indeed, Dr. Manov's conduct may have communicated to Perez that it was not important for Perez to be seen for psychiatric care regularly. Perez suffered from a severe mental illness, and lacked good judgment and proper insight. He was told that he needed to take his medications, but then none were prescribed to him in late 2007 through his death in 2008, even after he requested renewals. It is within reason to conclude that Perez was confused by the VA's conduct and, because the VA failed to take several reasonable steps to provide care to Perez, e.g., scheduling appointments regularly, more closely monitoring Perez's prescription status, contacting the family to gather additional information, etc., he ultimately was left without treatment for his documented severe mental illness. Although Dr. Manov had prescribed multiple psychotropic medications to Perez at his last appointment, in February 2007, Dr. Manov failed to prescribe a course of treatment for Perez in April 2008 that included any medications — despite the evidence that when Perez was, at least, mildly compliant with his prescribed medications, Perez's mood stabilized.
A psychiatric care provider cannot absolve themselves of their duty to render proper treatment and care to a patient by pointing to the patient's paranoia as justification for a "hands off approach to treatment. Appropriate psychiatric care requires the psychiatrist to apply his or her specialized knowledge to the benefit of an individual.
The Court observes that Perez was at least partially compliant with his prescribed medications while he was in the MHICM program, perhaps due, in part, to the MHICM program's comprehensive approach to outpatient care, including home visits, assistance with transportation to appointments, etc., and it appeared that the medications were having a positive effect. Mr. Scheer noted that Perez was better at the time of discharge from the program, Tr. (Scheer), June 28, pp. 66-67, and had successfully met the objective of having six months without a psychiatric hospitalization after starting in the MHICM program in January.
The Court finds that the MHICM program overall was a positive influence on Perez's mental health. As the MHICM program is unique to the VA, there is little guidance as to what would be the appropriate standard of care against which to evaluate the program. The Court has determined that there is not sufficient evidence that any activities related to the MHICM program constituted a breach of the VA's duty. While there is a question as to what should have happened at the time of Perez's discharge from the MHICM program, the Court has considered that question in the context of the overall breach of the VA with respect to regular monitoring of Perez's mental health.
When Perez visited the Clinic on April 3, 2008, VA staff recorded that Perez needed an immediate mental health consultation, and that he had stopped taking his psychotropic medications.
Dr. Ratner also testified that despite Nurse Heitman's documentation of Perez's recent alcohol abuse when he arrived at the Clinic on April 10, she did not administer a competency exam or conduct a suicide screening. Tr. (Ratner) June 30, pp. 76-77. Dr. Ratner testified that it was a
Dr. Ratner testified that involuntary admission was warranted on both April 3, and April 10. Tr. (Ratner) June 30, pp. 80-81. Dr. Hughes disagreed but offered little relevant analysis to support his view that it was appropriate to permit Plaintiff to leave the VA without being further evaluated. Tr. (Hughes) July 8, pp. 139-141. When Dr. Manov saw Perez on April 3, Dr. Manov failed to take into consideration — nor was he even aware — that Perez had twice failed a screening for depression in the past eight months and was not receiving an antidepressant medication at the time. It was a deviation from the standard of care for Dr. Manov to have not noted the several risks for suicide presented by Perez on April 3, 2008. The Court finds that the VA, at minimum, should have conducted a thorough competency examination on April 3, including an evaluation of Perez's history, and also should have referred Perez for further evaluation on April 10, and scheduled appointments for psychiatric care in the near future, and that the failure to do so was a breach of the standard of care.
In summary, the Court finds that it was a breach of the VA's duty of care to Perez that for months at a time, no psychiatrist from the VA was monitoring, evaluating, or adjusting Perez's medications, and that even on the few occasions when Perez was seen by Dr. Manov, the quality of the care was poor, as evidenced by the failure to document a need for increasing dosages of newly prescribed medications; the failure to achieve the switch Dr. Manov described, from Seroquel to Abilify (or to Risperidone), in a timely manner; and the failure to prescribe any medications to address Perez's mental illness in April 2008.
Perez's status as an outpatient at the time of his suicide does not negate the duty imposed on the VA to provide appropriate psychiatric treatment and care. Specifically, the prevailing standard of care required the VA to take reasonable steps to provide treatment and care to Perez, such as scheduling appointments regularly, coordinating care (e.g., recognizing that Perez was no longer in the MHICM program), confirming that prescribed medications were being obtained, promptly issuing refills and renewals as necessary, offering longer-lasting medications when appropriate, and not waiting for extended periods of time before scheduling a follow-up appointment after prescribing significantly different medications. Finally, the VA had a duty — at a minimum — to schedule Perez for additional care soon after Perez's disturbing visit to the Clinic on April 3, 2008, and the VA's decision that Perez did not need to be seen for six months after that date was a breach
The Court must determine whether the VA's conduct foreseeably caused Perez's suicide. As exhaustively detailed above, the VA, the sole provider of psychiatric care for Perez's final two years, had specific knowledge of his psychiatric record, including his prior explicit suicidal ideation expressed during inpatient treatment fifteen months before his death and his lack of compliance with prescribed psychotropic medications as recently as the week prior to his death; despite this knowledge, the VA failed to take reasonable steps to try to prevent Perez's suicide. According to Dr. Ratner, there was a correlation between when Perez was filling his prescriptions (and, it seems, taking the medications) more regularly, either while in the hospital or while being seen by in the MHICM program, and Perez's better state of mental health. Tr. (Ratner), June 30, p. 68. Unfortunately, the VA did not continue Perez in the MHICM program after the end of August 2007, nor did the VA take reasonable steps to attempt to prevent Perez's suicide by, for example, providing ongoing psychiatric care or treatment.
The greater weight of the evidence established that the VA deviated from accepted psychiatric standards in its failure to monitor Perez more regularly, to schedule timely appointments and follow up on any missed appointments, and to manage his medications more closely. The lack of adequate monitoring rendered the therapeutic relationship non-existent such that Perez was left to deteriorate on his own.
Dr. Ratner testified that, "if one looks at a pattern over time, and they see that somebody is not getting certain kinds of treatment on a regular basis, and we know that they have a progressively degenerative cerebral disease, and it is not being addressed on a regular basis, then we can say that that deviation of standard of care, not that one episode, but the combination of those things contributed to the final result." Tr. (Ratner) June 30, p. 113. Dr. Ratner testified that, within a reasonable degree of medical certainty, "had [Perez] been treated [more adequately] ... he
The United States asserted, in its Affirmative Defenses, that any judgment of liability must take into account the negligence of Perez himself. The Court finds that the Defendant did not establish that Perez had a duty to protect himself from the negligent treatment described above. There is no evidence that Perez was warned by Dr. Manov, or any other VA employee, that the failure to take his psychotropic medications as prescribed or the failure to participate in a therapeutic treatment plan would result in a situation where Perez would be a danger to himself. The record in this case reveals that the VA communicated to Perez that it was acceptable to wait six months to be seen for psychiatric care, and also that the medications apparently were not that helpful or necessary.
The Court also wholly rejects the United States' attempt to blame Plaintiff for her father's suicide.
Having determined that the United States is liable for the death of Perez, the Court also makes the following findings as to damages. The damages provisions of Florida's Wrongful Death Act, Fla. Stat. § 768.16 et seq., govern this determination. According to that statute, recoverable damages include lost parental companionship, instruction, and guidance, as well as mental pain and suffering due to the loss of a parent. Fla. Stat. § 768.21(3). Funeral expenses also may be awarded. Fla. Stat. § 768.21(5).
Plaintiff offered evidence — uncontroverted — that the funeral expenses related to her father's death totaled $3,380.00. Plaintiff's Ex. 49. Plaintiff also seeks reimbursement of $1,369.50 — the cost of the cleaning services required at her father's apartment after the discovery of his deceased body. Plaintiff's Ex. 50. In addition, Plaintiff requests reimbursement of $951.70 for the cost of her family's trip to Ecuador to honor her father's wish that his ashes be spread at Quito. Plaintiff's Ex. 54, Tr. (Maria Jose Perez) June 27, p. 66-67. As this evidence was unchallenged by the Defendant, and appears to fall within the statutory guidelines as "funeral expenses," the Court has determined that Plaintiff's total award for economic damages resulting from her father's wrongful death is
Plaintiff seeks $1,500,000 in noneconomic damages under Fla. Stat. § 768.21(3).
Perez was fifty-six years old at the time of his death. Perez had been diagnosed in 2005 with Non Small Cell Lung Carcinoma (NSCLC) in Stage la, No, MO. Both experts agreed that Perez's tumor was small, and that the cancer diagnosis was made in the earliest stage possible for NSCLC — in essence, this diagnosis has the highest survivability and cure rate of all lung cancer diagnoses. Tr. (Lessin) July 1, pp. 80, 91-92. Plaintiff's expert witness, Dr. Luis Villa, noted that no chemotherapy had been recommended for Perez after his lung surgery in July 2007 (which removed the tumor and the lower right lobe of the lung) and subsequent studies revealed no evidence of recurrent disease. Tr. (Villa) June 30, pp. 17-21. According to Dr. Villa, Perez did not have anything that would impact on the curability of his lung cancer. Tr. (Villa) June 30, p. 25.
In his testimony, Dr. Villa referred to a graph, described as a relative survival curve representing more than 4,000 patients with lung cancer. Tr. (Villa) June 30, p. 33. Based on his interpretation of that data, Dr. Villa testified that he believed that Perez had a five year survivability rate of close to 100%, and a 60% chance of surviving ten years. Tr. (Villa) June 30, pp. 26, 36. Defendant's expert witness, Dr. Lessin, disagreed with the testimony of Dr. Villa, noting that Perez would have a lower life expectancy than indicated in the graph because Perez's other medical issues would continue to damage his organs and reduce his chances of surviving five years, but Dr. Lessin was unable to confirm whether the data represented in the graph already had accounted for persons who continued to smoke, had COPD, etc. (as Perez did). Tr. (Lessin) July 1, pp. 66-68, 70. (Dr. Villa noted that the data already accounted for smokers, so there was no need to reduce the survivability rates beyond what the report indicated.) Dr. Lessin offered his opinion that Perez had only a 50% chance of surviving to five years, and that Perez had a zero percent chance of surviving to ten years, relying on the Charlson Comorbidity Index. Tr. (Lessin) July 1, pp. 57, 65, 67, 72, 116.
Dr. Villa, a pathologist, testified that he did not believe that Perez had AIDS, because Perez was not immunosuppressed enough to make that diagnosis, but rather that Perez was only HIV infected. Tr. (Villa) June 30, p. 28. Dr. Villa observed that patients like Perez, who never suffered an opportunistic infection in almost 20 years after diagnosis with HIV, survive longer and, as such, the HIV would have only a modest impact on his survival. Tr. (Villa) June 30, pp. 22-23, 25. Dr. Villa testified that Perez's CD-4 count,
Both experts remarked that Perez had COPD, although Dr. Villa testified that Perez had mild COPD, and that it was highly unlikely Perez was going to die within five years from it. Tr. (Villa) June 30, p. 37; Tr. (Lessin) July 1, p. 55. Dr. Lessin remarked that Perez had emphysema, but Dr. Villa opined that Perez had been found to have adequate cardiac and pulmonary clearance for lung surgery the year before his death and, indeed, had survived a large loss of blood resulting from that surgery. Tr. (Villa) June 30, pp. 20-21.
Dr. Villa noted that the autopsy was silent as to a myocardial infarction and that indicated that Perez did not have coronary artery disease. Tr. (Villa) June 30, p. 19. Dr. Lessin testified that there was evidence in the VA records of a myocardial infarction, atherosclerosis, and coronary artery disease. Tr. (Lessin) July 1, p. 47. Dr. Lessin also testified that Perez had some brain abnormalities. Tr. (Lessin) July 1, pp. 47-48. Finally, Dr. Villa noted that despite Perez's reported alcohol consumption, there was no evidence, either clinically or in the autopsy report, of cirrhosis. Tr. (Villa) June 30, p. 41.
The Court has weighed the evidence and considered the opinions of both experts, and finds that Dr. Villa's opinions as to the life expectancy of Perez are entitled to greater weight as they are based on a more reliable assessment of the data in this case. Based on the record before the Court, particularly Perez's prior diagnosis of lung cancer and his HIV-positive status, along with his other medical conditions, I find that it is highly likely that Perez would have survived at least five years beyond the date of his death, but unlikely that he would have survived ten years.
Plaintiff, an only child, was raised by her father, who did not work outside the home. Tr. (Maria Jose Perez) June 27, p. 42. Plaintiff testified as to the many experiences and activities she and her father shared throughout her childhood. Tr. (Maria Jose Perez) June 27, pp. 42-46. Plaintiff was nineteen years old at the time of her father's death, and was attending her freshman year of college. In the months prior to his death, Plaintiff received counseling related to her father's deteriorating mental health. For example, the record of a counseling session in November 2007, reveals that she was concerned about the demands from her father and noted that her feelings alternated between pity and frustration that he would not make an effort to help himself. Defendant's Ex. 1, GEO 123. Plaintiff testified at trial that she did not attend her graduation
Plaintiff was a minor
The evidence in this case suggests that Perez would not have survived beyond another ten years. Plaintiff's recovery must, therefore, be limited by the fact that her joint life experiences with her father were likely to continue only approximately another five years, until he reached 61 years of age, and were unlikely to continue until he would have reached the age of 66. In light of the evidence presented by Plaintiff as to her damages, the Court awards $250,000 as compensation for the loss of parental companionship and for her mental pain and suffering.
In summary, the Court finds that an award of $250,000 plus an additional $5,701.20 for economic damages is appropriate.
Perez had a history of suicidal and homicidal ideation, including a previously expressed elaborately detailed suicide plan, and had been prescribed multiple medications — including for depression and psychosis; he also had been hospitalized for inpatient psychiatric care three times in the twenty-six months prior to his death by suicide. The VA had provided medical care to Perez for the past two decades, and was the exclusive source of psychiatric care during his final two years of his life, and should, therefore, have been aware of Perez's specific risk factors. Simply stated, Perez presented sufficient circumstances to have justified a more thorough review of his psychiatric history by his treating psychiatrist, Dr. Manov, and a more careful evaluation of his status by VA staff when he presented himself to the Clinic in April 2008. Throughout the treating relationship, the VA failed to develop and implement an appropriate treatment plan such that Perez's suicide might be avoided. A mountain's worth of mismanagement was present at the VA from the beginning of Perez's descent into his delusional system and continuing until the inevitable sad ending. Appointments were not scheduled regularly, nor sufficiently frequently, which left Perez alone and without the benefit of a therapeutic relationship with anyone regarding his psychiatric care — all while his psychological status foreseeably deteriorated.
For the Court to find for the Defendant in this case would be to excuse the conduct of the VA and its staff as simply being
In conclusion, the Court finds that the VA's conduct was below the standard of care that governs the provision of psychiatric care to patients similar to Perez, and that this breach of duty more likely than not caused Perez's suicide. In essence, Perez (and his family members) relied on the medical and psychiatric care being provided by Dr. Manov and the VA, including what should have been appropriate medication, to manage a clearly established serious mental illness; when that care fell below the prevailing standard in the community, Perez was unable to resist the impulses caused by his untreated disorder. In other words, the VA's negligence proximately caused the mental deterioration of Perez to the point that he became unable to control his suicidal impulse or to realize the nature of his act and the risk of self-harm.
As discussed above, the Court has concluded that Plaintiff is entitled to recover $255,701.20 in damages from Defendant as a result of the negligence of the VA and its employees.
A: Take it up with the VA. Don't ask me."
Tr. (Manov) June 28, p. 181.
Tr. (Manov) June 29, pp. 58-59. In response to questions from defense counsel as to whether Perez was competent to make his own decisions, Dr. Manov persisted in his assertion that competency was not relevant to his assessment of Perez.
Tr. (Manov) June 29, p. 130.
February 16-19, 2006(VA), April 7-11, 2006 (Memorial Regional), December 30, 2006 — January 18, 2007(VA), and July 9 — August 6, 2007(VA).
Dr. Hughes testified that Heitman provided comprehensive care, and that her overall level of general medical care provided to Perez was "darn good." Tr. (Hughes) July 8, p. 63. He suggested that she also provided a type of supportive psychotherapy by providing active support to help Perez through crises, Tr. (Hughes) July 8, pp. 63-65; however, this is insufficient to satisfy the VA's duty to provide adequate psychiatric care.
