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Irvine v. United States Department of Veterans Affairs

United States District Court, D. Oregon

June 29, 2015


William J. Macke, Law Offices of William Macke, Portland, OR., Attorney for Plaintiff.

James E. Cox, Jr. United States Attorney's Office District of Oregon, Portland, OR., Attorney for Defendant.


MARCO A. HERNNDEZ, District Judge.

Plaintiff Don Scott Irvine filed this action against Defendant, the United States Department of Veterans Affairs ("VA"), alleging medical malpractice in connection with treatment Irvine received for neck, shoulder, and arm pain. Currently before the Court is the VA's motion for summary judgment [33]. Irvine conceded that the Court does not have jurisdiction over his claims challenging the VA's handling of his request for veteran's benefits. He also failed to produce expert evidence about the treatment he received from the VA prior to 2011. Irvine has, however, produced sufficient evidence regarding the course of treatment the VA should have provided him to comply with the standard of care when treating his neck pain in 2011. Accordingly, the VA's motion for summary judgment is granted in part and denied in part.


Irvine began experiencing neck, shoulder, and arm pain in 2003 after he was in a motor vehicle accident while serving on active duty in the United States ("U.S.") Army. Cox Declaration ("Decl.") Exhibit ("Ex.") 1, ECF No. 34-1, at 2. On November 19, 2003, an Army neurosurgeon performed a C5-C6 anterior discectomy and fusion ("ACDF") surgery without hardware, meaning the surgeon used a bone graft to foster fusion of the vertebrae instead of a synthetic device. Defendant's Motion ("Def. Mot.") at 3. After the surgery, Irvine continued to suffer from arm and shoulder pain and was eventually discharged from the military for medical reasons. Id .; First Amended Complaint ("First Amd. Compl.") Ex. 2, ECF No. 9-4, at 1.

Irvine lived in Hawaii from 2004 and 2007. Cox Decl. Ex. 1, at 3-4. He then returned home to Vancouver, Washington and in 2008 began receiving medical care at a U.S. Department of Veterans Affairs facility there. Cox Decl. Ex. 3, ECF No. 34-3, at 1. He complained of "sudden shooting pains" from his lower neck during a February 2008 visit with Dr. Paul Halgason, his VA primary care provider. Id . X-rays indicated that his C5 and C6 vertebrae were successfully fused. Cox Decl. Ex. 4, ECF No. 34-4, at 2. Dr. Halgason followed up with Irvine about a month later, but Irvine reported the episodic shooting pain had not recurred. Cox Decl. Ex. 5, ECF No. 34-5 at 2.

Irvine began experiencing "throbbing, " sometimes "sharp and painful spasms" in his neck again in September of 2010, and "constant" shoulder pain with flare-ups that affected his sleep. Cox Decl. Ex. 7, ECF No. 34-7 at 1-2. In December of 2010, Irvine visited an orthopedic specialist for the shoulder pain, but the VA orthopedist referred him to a VA neurosurgeon because his symptoms did not "seem consistent with localized shoulder pathology." Cox. Decl. Ex. 8, ECF No. 34-8, at 5.

Irvine visited the VA neurosurgery clinic in Portland, Oregon, on March 1, 2011. Cox Decl. Ex. 9, ECF No. 34-9, at 1, 3. The examining resident, Dr. Brian Farrell, diagnosed herniated discs at the C4-C5 and the C6-C7 levels, along with a nerve root impingement at the C6-C7 level. Id. at 5. Doctor Justin Cetas agreed with Farrell's recommendation that Irvine undergo another neck surgery, this time to fuse the C6 and C7 vertebrates to "decompress the spinal cord and the R C7 nerve root." Id . Dr. Cetas performed the C6-C7 ACDF procedure on June 13, 2011; he used a plastic cylinder device to foster bone fusion. First Amd. Compl. Ex. 4, ECF No. 9-6, at 1-2.

Unfortunately, Irvine's symptoms did not improve after surgery. Although the VA neurosurgery clinic was providing his post-operative treatment in 2012, Irvine visited with Dr. Jung Yoo, a spinal surgeon at Oregon Health & Science University ("OHSU") to explore other options. Def. Mot. at 4. Dr. Yoo diagnosed a "nonunion or failure to heal from previous surgery" at the C5-C6 and C6-C7 vertebrae-the levels that were fused in the 2003 and 2011 surgeries. Dr. Yoo eventually recommended surgery to fuse the vertebrae from C4 to C7, and he performed the three-level fusion surgery at OHSU on April 3, 2012. First Amd. Compl. Ex. 3, ECF No. 9-5, at 5-6, 12-13. Irvine testified that he still experiences pain in his shoulder and arm, but that Dr. Yoo's surgery "changed the quality of life a little bit also." Cox Decl. Ex. 1, ECF No. 34-1, at 6.

Irvine filed a pro se complaint against the VA in February of 2014, and his First Amended Complaint, now the operative pleading, in March of 2014. Irvine alleges that the "Department of Veterans Affairs failed to provid[e] medical care in a timely [manner] that cause[d] permanent damage" to his spinal cord and extremities. First Amd. Compl. at 3. He contends that VA doctors were slow to diagnose symptoms and failed to recognize the nonunion of his C5-C6 vertebrae at the time of his 2011 surgery. Id. at 3-4. In October of 2014, Mr. William J. Macke made his first appearance on behalf of Irvine, and he is now the attorney of record.

The VA moves for summary judgment and offers three different arguments for why Irvine's claims fail as a matter of law. First, the VA contends that Irvine has failed to produce sufficient expert testimony to show either that the VA doctors failed to meet the standard of care, or that the alleged breach of the standard of care caused Irvine's injuries. Def. Mot. at 7-10. Second, the VA argues that Oregon's statute of repose substantively bars Irvine's claims arising from any act or omission that occurred before February 6, 2009. Id. at 11-14. Finally, the VA asserts that Irvine's fourth claim for relief challenges a VA benefits decision that this Court does not have jurisdiction to review. Id . 14-16.

Irvine's response in opposition to the motion for summary judgment appeared to concede that the VA benefits issue falls outside the Court's jurisdiction, and Irvine's counsel confirmed that concession at oral argument. See Plaintiff's Response ("Pl. Resp.") at 1. Moreover, Irvine did not offer an expert opinion that a VA physician breached the standard of care prior to 2011, therefore the Court does not reach the question of whether Oregon's statute of repose forecloses any of Irvine's claims. Given Irvine's concession and the lack of evidence about the standard of care regarding the treatment he received at the VA before 2011, the VA's motion for summary judgment is granted as to Irvine's second and fourth claims for relief.

The sole remaining issue to resolve is whether Irvine's proffered expert testimony, after being construed in his favor, is sufficient to create a genuine issue of material fact about whether a VA doctor violated the standard of care in diagnosing, treating, and ultimately performing surgery for ...

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