United States District Court, D. Oregon, Medford Division
JOHN ERIC SMITH, Plaintiff.
UNITED STATES OF AMERICA, Defendant.
FINDINGS OF FACT & CONCLUSIONS OF LAW
D. CLARKE MAGISTRATE JUDGE.
John Eric Smith ("Plaintiff or '"Mr.
Smith") brings this Federal Tort Claims Act
C'FTCA'*) action, pursuant to 28 U.S.C. §§
1346(b) and 2674, against Defendant United States of America
("Defendant") to recover damages for medical
negligence resulting from alleged negligent treatment,
wrongful acts, and omissions by employees of La Clinica del
Valley Family Health, a federally funded health care facility
in Central Point, Oregon. The Court held a bench trial from
May 1 through May 4, 2018, and took this case under
advisement. Mr. Smith was represented by Kelly Andersen and
Faith Morse. Defendant was represented by Susanne Luse. The
court having heard the testimony of all witnesses, reviewed
exhibits and heard arguments of counsel, makes the following
findings of fact and conclusions of law, pursuant to
Smith was born on February 11, 1972. He was forty-one years
old at the time of the alleged medical negligence, which
occurred in November and December, 2013. He was forty-six at
the time of trial. He graduated from Scappoose High School in
1991 and attended, but did finish, a plumbing program at
Portland Community College. Mr. Smith had generally steady
employment in southern Oregon from 1992 to 2005, mostly in
the construction field. He did have some periods of layoff
and or lack of work, particularly when he worked in the
Plumbers Apprentice union from 1995 to 1999. His job history
is detailed in his resume, which was received as Plaintiffs
January, 2006. he went to work for Cook Crane as an Oiler. He
acquired his CVL as he was required to drive the cranes to
job sites. Mr. Smith was laid off for lack of work in May
2008, at which time the country, and particularly the
construction trade, was hit by what has been called the
"greatest recession since the depression." He
collected unemployment to some extent for about two years.
The state of Oregon had extended the period allowed for
unemployment. Mr. Smith was required by the state to submit
three job applications each week to continue receiving
unemployment compensation. There was testimony that
technically the recession ended sometime in 2009, but
continued to affect southern Oregon. Mr. Smith, other than
some minimal informal work for friends, did not work again
for wages for five and a half years leading up to the alleged
medical negligence that occurred in this case in late 2013.
The reasons for this are not entirely clear but involve the
significant recession, some lack of motivation to seek jobs
that paid less than his previous construction jobs,
discouragement/depression, and monthly support from his
mother and obligations at home.
Smith was described by family and friends as outgoing, fun
loving, helpful to others. and social. He was active
including fishing, hunting, camping and golfing. He
frequently had neighbors over for backyard barbeques. He was
helpful around the house and handy, having done such home
projects as replacing the lawn and sprinkler system, building
a fire pit, painting. tile work and repairing a sink.
Smith did have some relevant medical history that includes
obesity, diabetes mellitus, hypertension and depression. Mr.
Smith was 5 foot 6 inches tall and weighed 283 pounds just
prior to the events at issue in this case. Mr. Smith's
medical history is summarized in the Medford clinic notes
starting on May 6, 2013. Def s Ex. 102. He was a non-smoker
but did chew tobacco. Mr. Smith was diagnosed with diabetes
sometime in late 2012 or early 2013. He was placed on the
medication Metformin. He had some diabetes related health
issues including some mention of neuropathy in his feet and
skin infection and abscesses, which in part were treated with
Bactrim, which is an antibiotic used to treat to
Methicillin-Resistant Staphylococcus Aureus
("MRSA"). MRSA is not, however, specifically
mentioned in the Medford Clinic records. Mr. Smith testified
that he occasionally exercised, was losing weight and
generally controlling his diabetes with medication and diet
before starting treatment at La Clinica.
Smith was married to Tiffany Smith in November 2013. She has
two daughters, ages nineteen and nine at the time of the
Smith transferred his medical care to La Clinica starting on
November 12, 2013. with follow up visits on November 22. and
December 3, 16, 19, 23 and 26.
November 12, 2013, Mr. Smith established care with a Family
Nurse Practitioner (FNP) for his diabetes. He had been out of
Metformin for two weeks and his "sugars ha[d] been
running 200, " but had been ''120 when taking
his medication." He said he was regularly checking his
sugar levels. He reported that he exercised some, and watched
his diet. Significantly, Mr. Smith reported a "[history]
of multiple MRSA rash outbreaks on torso and [left] upper
thigh. None currently." MRSA is an infection caused by a
type of staph bacteria that has become resistant to many of
the antibiotics used to treat ordinary staph infections. It
often begins as a painful skin boil and can resemble pimples
or spider bites. See Def.'s Trial Br. 2 n.1: Mayo Clinic
Staff, MRSA infection. Mayo Clinic (Sept. 9, 2015),
November 22, Mr. Smith returned to La Clinica and saw another
FNP. He presented with "complaint of infection on
head." There is also a history of his wife having MRSA.
This FNP reported that Mr. Smith had a "2.5 cm round
slightly indurated erythematous area on mid forehead with
similar smaller appearing lesion on [left] temporal skin. No.
fluctuance." The nurse practitioner treated Mr. Smith
with Bactrim two times a day, for seven days. Bactrim is used
to treat MRSA. Mr. Smith had not been checking his blood
sugar three times per day as instructed. He was given a new
Glucometer because his was broken. He was reminded about the
connection between recurring skin infections and blood
December 3. Mr. Smith returned to the clinic and saw a FNP.
The chart said. "continued staph/MRSA infections was
treated with Bactrim by ES." He complained of a lesion
on the back of his neck that started as an ingrown hair. He
reported that "he has never had a culture, but wife had
a MRSA diagnosis." He was treating with hot compresses.
He reported a "long h[istory] of abscesses & skin
lesions." His blood sugar was high. His Medford Clinic
records were reviewed. He was given Metformin and Insulin.
December 16, Mr. Smith returned to La Clinica and the nursing
intake note says "'P[atient] here C/P MRSA on the
back of her [sic] neck and painful x3 days." Mr. Smith
reported he was treating his neck lesion with "very hot
compresses." He was "in enough pain that had
difficulty sleeping last night." On exam, his
"entire posterior neck swollen with very large
induration. Overlying skin is very excoriated & weeping
moderate serosanguinous fluid." The FNP treating him had
a doctor look at Mr. Smith's neck, and he agreed with a
diagnosis of "cellulitis." It is not clear whether
the doctor was given the complete history of MRSA set forth
above. The FNP prescribed an injection of an antibiotic,
Ceftriaxone. No. oral antibiotics were prescribed. Mr. Smith
was told to return in three days.
December 19. Mr. Smith returned to La Clinica, at which time
his neck wound was fifteen centimeters by ten centimeters
(six inches by four inches). Plaintiffs Exhibit 25 is a
picture of the wound taken sometime in December, 2013. He was
having night sweats. The wound was draining. A culture was
taken. A Q-tip was used to open the wound. He was given a
four day follow up.
December 23, Mr. Smith returned. The wound was described as
"[a]bscess on posterior neck - small white opening (2mm)
with surrounding erythematous mildly tender & mildly
fluctuant area." The FNP used a "blunt
instrument" to release fluid from the large neck wound.
Mr. Smith was told to continue with warm compresses.
December 26, Mr. Smith returned in the morning, at which time
he reported three days of "severe back pain upper back
worse in mornings. Onset after no injury, musculoskeletal in
nature." Mr. Smith had to be assisted into the clinic by
a friend. The wound was drained. There is a notation
"[i]s getting better." The assessment was
"[a]bscess and cellulitis." He was given trigger
point injections of lidocaine in his periscapular region. An
intake nurse note indicated he was there for "f[ollow
up] for MRSA." His skin was described as "fluctuant
warm erythematous area entire posterior neck. Small opening
draining serous fluid." The abscess was drained and the
wound packed. This was a Thursday. Mr. Smith was to follow up
in the next two days. Mr. Smith indicated he would return on
Monday, which would have been December 30. The culture came
back in the afternoon confirming MRSA.
Smith developed significant lower progressive extremity
weakness. He was taken by ambulance to Providence Hospital
emergency department on Saturday, December 28. The history
given was that Mr. Smith over the last three days had not
really gotten out of bed, except to urinate. He had fallen
four times in the last twenty-four hours. He was found to
have weakness in his arms and lower extremities. An MRI was
performed that, according to the radiologist, showed an
epidural abscess from C2-T10. Mr. Smith was immediately
transferred for a neurosurgery consult with Dr. David Walker
at Rogue Valley Medical Center.
Walker evaluated Mr. Smith in the evening of December 28. The
evaluation was for "[e]pidural abscess with
quadriplegia." The history included that in the last few
days, Mr. Smith had developed "severe neck and thoracic
pain and leg weakness." He awoke that morning and could
nol support himself. He was also having numbness in his arms
and hands. Dr. Walker performed an examination and reviewed
MRI films of the spine. He confirmed an epidural abscess from
C2 down to T10, with the worst cord compression at ¶
4-5. He told Mr. Smith that an emergency laminectomy from C2
to T10 was needed to evacuate the abscess and save his life.
Surgical pathology confirmed MRSA.
Smith spent the next two months in the hospital with numerous
serious complications. He underwent physical, occupational
and speech therapy. The discharge summary of February 28,
2014, provided the following:
MRN an epidural abscess with results being essential
Aspiration pneumonia with Escherichia coli
Escherichia coli lung abscess
Escherichia coli bacteremia
C. difficile colitis hospital acquired
Diabetes mellitus type 2 well controlled
Status post tracheostomy
Acute respiratory failure status post intubation
Status post PEG
Status post C2-T10 laminectomy and evacuation of epidural
abscess and decompression of epidural phlegmon December 28,
Status post bronchoscopy-her extensive mucus plugging
Collapse of" left lung
Collapse of right lung
Low blood pressure
Disorder of brain caused by toxin or poison
Ex. 9 (formatting in original).
Smith was in a rehabilitation unit from February 28 to March
Smith's medical problems and treatments over the last
four years are extensive. Mr. Smith has incurred medical
bills of $1, 847, 009.06. Pl.'s Ex. 24. He continues to
be on numerous medications. He has had two additional
hospitalizations. The first was in October 2014, for
"osteomyelitis left lateral malleolus" (ulceration
to the left lateral ankle), and the second was in August
2017, for a UTI, sepsis and gross hematuria.
Smith went home to his house, which required some
modifications. Staying in his own home is extremely important
to Mr. Smith. He is an incomplete quadriplegic. He has no use
or feeling in his legs. It is not expected that he will have
any further neurologic recovery in his lower extremities. He
has reasonable strength and use of his dominant right arm and
hand. and some use of his left arm, but impaired strength and
gripping ability of the left hand. He has good cognition.
he has a bowel program, he at times has bowel and bladder
accidents and requires catheterization. There was testimony
that this should be able to be improved. Mr. Smith has
suffered from significant and ongoing pressure sores/ulcers
on his back, feet and ankles that require constant monitoring
and podiatric treatment. Pl.'s Ex. 27, 1-23. He is at
risk for lower extremity amputations in the future if an
infection cannot be controlled. There was testimony that a
new power wheel chair he had ordered in late 2017 may help
with the pressure sores. Mr. Smith however, still had
treatment from Dr. Jeffrey Zimmer, his podiatrist, in April
and March 2018, for an "ulceration medial aspect of left
heel and medial aspect of right heel'* that healed with
treatment. He wears neoprene boots, which he described in his
testimony as "moon boots, " day and night to help
prevent skin problems on his feet. He has spasticity, which
is muscle contraction and twitching, and neuropathic pain. He
is at increased risk for urinary tract infections,
depression, and cardiovascular, pulmonary and musculoskeletal
problems. including fractures.
Smith has had in-home care from family and care providers for
about six to eight hours a day. This includes his ex-wife,
step daughter and aunt and home caregivers from Allcare. A
Hoyer lift is used to get him in and out of bed, which he
cannot do by himself. His privacy is significantly impaired
because he needs assistance in the shower and with bowel and
bladder issues. Videos of his daily routine were played at
trial. Pl.'s Ex. 29. He has lost sexual function. His
family testified he has feelings of diminished self-worth,
loneliness, isolation and being a burden on others. At times,
he has been angry, frustrated and will cry. Mr. Smith has had
periodic urology visits, the last time being on July 25,
2016. He has been seen by Physiatrist Dr. Jeffrey Solomon,
the last time being on January 12, 2016. He continues to see
his primary care physician occasionally.
Smith was divorced in March 2017 and moved to an apartment
that had some disability modifications.
examined by Dr. Robert Arnsdorf on November 16, 2017. Dr.
Arnsdorf is a Physiatrist. He provided the following summary
of Mr. Smith's ...