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Smith v. United States

United States District Court, D. Oregon, Medford Division

May 31, 2018




         Plaintiff 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 Fed.R.Civ.P. 52(a)(1).[1]


         Mr. 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 Exhibit 30.

         In 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.

         Mr. 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.

         Mr. 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.

         Mr. Smith was married to Tiffany Smith in November 2013. She has two daughters, ages nineteen and nine at the time of the marriage.

         Mr. 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.

         On 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), diseases-conditions/mrsa/symptoms-causes/syc-20375336.

         On 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 sugars.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         Mr. 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.

         Dr. 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.

         Mr. 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:

Discharge Diagnoses:
MRN an epidural abscess with results being essential quadriplegia
Aspiration pneumonia with Escherichia coli
Escherichia coli lung abscess
Escherichia coli bacteremia
C. difficile colitis hospital acquired
Diabetes mellitus type 2 well controlled
Topical candidiasis
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, 2013
Status post bronchoscopy-her extensive mucus plugging
Resolved Problems:
Collapse of" left lung
Collapse of right lung
Low blood pressure
Septic shock
Disorder of brain caused by toxin or poison

         Pl.'s Ex. 9 (formatting in original).

         Mr. Smith was in a rehabilitation unit from February 28 to March 19, 2014.

         Mr. 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.

         Mr. 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.

         Although 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.

         Mr. 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.

         Mr. Smith was divorced in March 2017 and moved to an apartment that had some disability modifications.

         He was examined by Dr. Robert Arnsdorf on November 16, 2017. Dr. Arnsdorf is a Physiatrist. He provided the following summary of Mr. Smith's ...

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