Michelle Day v. United States

United States Court of Appeals
For the Eighth Circuit
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No. 16-3118
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Michelle Day, Administrator of the Estate and on Behalf of the Wrongful Death
Beneficiaries of James Avery Deweese Sr.; Ruth Deweese, Individually; Michelle
Day, Individually
lllllllllllllllllllll Plaintiffs - Appellants
v.
United States of America
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: June 6, 2017
Filed: August 1, 2017
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Before LOKEN, MURPHY, and MELLOY, Circuit Judges.
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MELLOY, Circuit Judge.
In 2011, a radiologist with the United States Department of Veterans Affairs
(“VA”) failed to identify a cancerous mass in the liver of James Avery Deweese Sr.
The mass nearly doubled in size before it was finally diagnosed in 2013, and Deweese
died shortly thereafter. Asserting survival and wrongful-death claims under Arkansas
law, Deweese’s family and the administrator of his estate (“Plaintiffs”) filed the
present action against the United States pursuant to the Federal Tort Claims Act, 28
U.S.C. § 1346(b)(1). The United States conceded that the VA radiologist provided
substandard care, but it moved for summary judgment on the issue of proximate
causation. The district court1 granted the motion. After carefully reviewing the
record in the light most favorable to Plaintiffs, we affirm.
I.
Deweese was approved for home-based primary care by the Central Arkansas
Veterans Healthcare System in 2009. Among other medical conditions, Deweese
suffered from cirrhosis, diabetes mellitus, diabetic peripheral neuropathy, chronic
kidney disease, degenerative joint disease, chronic back pain, anxiety, and depression.
In 2011, Deweese’s laboratory results revealed elevated liver function. Rose
Ann Hodges, an advanced practice registered nurse who led Deweese’s care team,
recommended that Deweese undergo a computerized tomography (“CT”) scan.
Deweese underwent the CT scan in October 2011 at a VA hospital in Little Rock,
Arkansas. The VA radiologist who read the scan noted that Deweese’s cirrhosis was
stable, but identified nothing further.
Nearly two years later, on July 7, 2013, Deweese presented to the emergency
room complaining of increased and painful urination, incontinence, and suprapubic
pain. His wife also reported disorientation, confusion, and slurred speech. On
suspicion of hyperammonemia, Deweese was admitted to the hospital for further
testing. An ultrasound on July 8 revealed a suspicious mass in Deweese’s liver, and
a CT scan on July 12 revealed that the mass measured 11.8 x 9 x 12.6 centimeters in
1
The Honorable Kristine G. Baker, United States District Judge for the Eastern
District of Arkansas.
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size. This CT scan was subsequently compared to the CT scan from 2011. Upon
comparison, the radiologist noted that the mass was present in the 2011 scan and that,
at that time, it had only measured 6.4 x 4.7 x 6.3 centimeters.
Deweese, too weak to receive treatment, was placed on palliative care. He died
on July 22, 2013, at the age of 77. An autopsy confirmed heptocellular carcinoma,
i.e., cancer in Deweese’s liver. The immediate cause of Deweese’s death, however,
was not determined because the autopsy was limited to a single organ.
Plaintiffs filed administrative claims with the VA, asserting that it negligently
failed to identify Deweese’s liver cancer in the 2011 CT scan. As a result of this
negligence, Plaintiffs alleged, Deweese “suffered a loss of enjoyment of life over the
two years between the [2011 and 2013] CT scans” and died from the liver cancer.
Deweese’s wife, Plaintiff Ruth Deweese, also claimed loss of consortium and
companionship. The VA denied Plaintiffs’ administrative claims.
Renewing their allegations, Plaintiffs filed the present action against the United
States. The United States conceded before the district court that the VA radiologist
was negligent in reading the 2011 scan. However, in moving for summary judgment,
the United States argued that Plaintiffs presented insufficient evidence that the VA’s
negligence was the proximate cause of Deweese’s death.
The summary-judgment record contains the following evidence. First,
Plaintiffs offered deposition testimony regarding the possibility Deweese might have
received a liver transplant had the cancer been detected in 2011. Plaintiffs’ expert Dr.
Frederick Bentley, a surgeon trained in liver transplants, testified that not all patients
are eligible for transplants because donor livers are limited. According to Dr.
Bentley, Deweese would not have been eligible to be placed on the national list for
a transplant because, on the 2011 CT scan, the mass in his liver exceeded 5
centimeters in dimension. Plaintiffs’ expert Dr. James Stark, a professor of internal
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medicine who teaches oncology, testified that “[w]e don’t know” whether Deweese
would have received a liver transplant.
Second, Plaintiffs offered deposition testimony regarding the possibility the
tumor could have been surgically removed through liver resection in 2011. Dr.
Bentley opined that Deweese, like most patients with liver cancer, would not have
tolerated the physiological stress of resection. To support this opinion, Dr. Bentley
cited evidence that Deweese had portal hypertension, which makes resection surgeries
“very risky” because of blood loss, as well as Deweese’s “functional status and
comorbidities.” Dr. Stark opined there was a 30% chance that liver resection would
have cured Deweese’s cancer.
Third, Plaintiffs offered deposition testimony from Dr. Bentley regarding non-
curative treatments that could have extended Deweese’s life. In some studies, Dr.
Bentley testified, the median patient receiving a particular treatment lived for 28
months; Deweese, by contrast, lived approximately 21 months after the 2011 CT scan.
Nevertheless, Dr. Bentley could not say whether Deweese would have fallen above
or below the median.
Finally, Plaintiffs offered deposition testimony regarding pain damages.
According to Nurse Hodges, Deweese consistently reported his pain to be a seven-
out-of-ten in the years the home-based care team visited him. A seven, she testified,
is “pretty high.” Nurse Hodges continued: “But he’s laughing and he’s joking and
carrying on every visit; not the typical seven you would think.” Nurse Hodges also
testified that Deweese complained of “generalized abdominal tenderness.” She
stated, however, that Deweese “didn’t complain of any pain without palpating,” i.e.,
compressing, his abdomen. She testified that “sometimes his pain would be up here
[indicating]. Sometimes—his little belly pain, when you palpate, would be down here
[indicating]. Sometimes it would be all over, just non-specific.” (alterations in
original). Nurse Hodges did not specify when Deweese first began complaining of
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abdominal tenderness, but she did testify that his pain reports did not change from
2011 to 2013.
The United States’s expert Dr. Lawrence Lessin, a former cancer institute
director, testified that the growth of a liver tumor “can” produce pain in patients. Dr.
Lessin also noted that Deweese was “never on strong anodyne or pain medications.”
If Deweese had in fact been experiencing pain from the liver cancer, Dr. Lessin
testified, Deweese could have been placed on a variety of pain management protocols
that “could have significantly reduced [his] pain.” Dr. Lessin, however, testified that
“[s]ome [liver cancer] patients . . . have no symptoms. It can be a silent tumor.”
Further, like Nurse Hodges, Dr. Lessin noted the inconsistency between Deweese’s
pain reports to the care team and his demeanor. Because of this inconsistency, Dr.
Lessin was not certain “whether [Deweese] was really experiencing pain at [a high]
level or not . . . . [T]hat would have to be evaluated by a pain expert.”
After considering the foregoing evidence, the district court granted summary
judgment to the United States. The district court concluded there was insufficient
evidence that Deweese would have survived past July 2013 had the VA properly read
his 2011 CT scan. The district court also concluded there was insufficient evidence
regarding any pain damages. Plaintiffs now appeal.
II.
“We review a district court’s grant of summary judgment de novo and may
affirm on any basis supported by the record.” Allen v. United States, 590 F.3d 541,
544 (8th Cir. 2009). In so doing, we “view[ ] all evidence and draw[ ] all reasonable
inferences in the light most favorable to the nonmoving party.” Helmig v. Fowler,
828 F.3d 755, 760 (8th Cir. 2016). “Summary judgment is appropriate ‘if the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)).
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In the present case, Arkansas substantive law controls. See Chapa v. United
States, 497 F.3d 883, 887 n.2 (8th Cir. 2007) (“When a plaintiff brings a claim against
the United States under the Federal Tort Claims Act, the controlling law is that of the
state in which the act or omission occurred.”). Specifically, Plaintiffs assert survival
claims for medical malpractice. Ark. Code Ann. §§ 16-62-101, 16-114-206(a). They
also assert wrongful-death claims. Id. § 16-62-102. We consider their claims in turn.
A.
Under Arkansas medical-malpractice law, a plaintiff must prove through expert
medical testimony that the defendant’s negligence was the proximate cause of the
injured person’s damages. Id. § 16-114-206(a)(3). A medical expert, in other words,
must testify that the damages “would not otherwise have occurred” without the
defendant’s negligence. Id. But “[i]t is not enough for an expert to opine that there
was negligence that was the proximate cause of the alleged damages. The opinion
must be stated within a reasonable degree of medical certainty or probability.” Young
v. Gastro-Intestinal Ctr., Inc., 205 S.W.3d 741, 745 (Ark. 2005) (citation omitted).
Plaintiffs argue that, but for the VA’s failure to detect Deweese’s cancer in
2011, Deweese could have received non-curative treatments to extend his life. Dr.
Bentley, however, did not opine to a reasonable degree of medical certainty or
probability that Deweese’s life would have been extended by such treatments.
Rather, Dr. Bentley testified that the median patient receiving a certain treatment
could expect to live longer (28 months) than Deweese lived (21 months). Dr. Bentley
explicitly refused to say whether Deweese would have fallen above or below this
median. Outside the median, he testified, patients may live as short as 18 months or
as long as 36 months. While Dr. Bentley’s testimony supports the possibility that
Deweese could have lived longer with non-curative treatment, “mere possibilities”
are insufficient to raise a triable issue of fact. See Flentje v. First Nat’l Bank of
Wynne, 11 S.W.3d 531, 538 (Ark. 2000).
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Plaintiffs also note that, according to Dr. Stark, Deweese would have had a
30% chance of curing his cancer through liver resection in 2011. Plaintiffs argue the
United States should be liable for this lost chance of survival. While the Arkansas
Supreme Court has not explicitly adopted the lost-chance-of-survival doctrine, it has
suggested it would adopt the “traditional” version of that doctrine. See Holt ex rel.
Estate of Holt v. Wagner, 43 S.W.3d 128, 132 (Ark. 2001). Under the traditional
rule, a defendant is liable only if there was a “greater than 50% [chance], that but for
defendant’s negligence, plaintiff would have survived.” Id. (citation omitted). The
best authority from Arkansas therefore suggests that the loss of a 30% chance is
insufficient to trigger liability. This is dispositive of Plaintiffs’ lost-chance
arguments. See Adams v. Toyota Motor Corp., 859 F.3d 499, 515 (8th Cir. 2017)
(“[W]e must try to predict ‘how the state’s highest court would rule if faced with the
same question.’” (quoting Marvin Lumber & Cedar Co. v. PPG Indus., Inc., 401 F.3d
901, 917–18 (8th Cir. 2005))).
Finally, Plaintiffs argue that a genuine dispute of material fact precludes
summary judgment as to pain damages. We disagree. Dr. Lessin testified that tumor
growth in a liver “can” cause pain, but he also testified that liver tumor growth can
be “silent” and asymptomatic in some patients. Dr. Lessin further testified that a pain
expert would need to evaluate Deweese’s case. And, to the extent he stated that
Deweese could have received pain treatments, Dr. Lessin qualified this assertion by
stating that such treatments would have “depend[ed] on the etiology,” or cause, of his
pain. Dr. Lessin did not testify to a reasonable degree of medical certainty that
Deweese’s liver cancer, as opposed to one of his many other ailments, caused any
pain. See Young, 205 S.W.3d at 745. Additionally, Nurse Hodges testified that
Deweese’s abdominal pain would sometimes be “up here,” would sometimes be
“down here,” and would sometimes be “all over, just non-specific.” She also testified
that Deweese made “no new complaints of pain” between 2011 and 2013. Thus,
while it is certainly possible Deweese experienced pain as a result of the liver cancer,
the evidence in the record is insufficient to raise a triable issue of fact as to whether
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any liver cancer treatment would have alleviated any of Deweese’s pain. See Ark.
Code Ann. § 16-114-206(a)(3) (expert medical testimony must establish that injuries
“would not otherwise have occurred” without defendant’s negligence).2
B.
Plaintiffs argue that, even if the district court properly granted summary
judgment on their medical-malpractice claims, the district court erred in granting
summary judgment on their wrongful-death claims. According to Plaintiffs, Arkansas
wrongful-death actions are subject to a less demanding standard of proximate
causation. Under Arkansas law, however, wrongful-death liability only attaches
when the defendant’s negligence “would have entitled the party injured to maintain
an action and recover damages in respect thereof if death had not ensued.” Ark. Code
Ann. § 16-62-102(a)(1). Wrongful-death actions, in other words, are derivative of the
underlying tort committed against the decedent. Estate of Hull v. Union Pac. R.R.
Co., 141 S.W.3d 356, 359 & n.3 (Ark. 2004). The baseline standard for liability thus
remains the same in survival and wrongful-death actions. Because the medical-
malpractice claims fail in the present case, so too must the wrongful-death claims.
See Brown v. Pine Bluff Nursing Home, 199 S.W.3d 45, 48 (Ark. 2004) (“[W]here
the underlying tort action is no longer preserved, the wrongful death action is barred
as well.”); Hull, 141 S.W.3d at 359–60 (upholding dismissal of wrongful-death action
where the decedent settled with the defendant as to the underlying negligence before
death).
2
Plaintiffs contend the district court improperly reached the issue of pain
damages. Plaintiffs, nonetheless, raised the issue in their opposition to summary
judgment, and they do not suggest they were precluded from introducing any
additional evidence or argument before the district court. We thus conclude the
district court did not err in reaching the issue.
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III.
The VA failed to deliver the standard of care that Deweese deserved.
However, because the evidence presented is insufficient to raise a triable issue of fact
as to whether the VA’s negligence proximately caused Plaintiffs’ damages, we must
affirm the judgment of the district court.3
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3
Plaintiffs also allege the VA failed to properly treat Deweese’s Hepatitis C.
Like the district court, we conclude this allegation was not properly presented in an
administrative claim. See 28 U.S.C. § 2675(a). Accordingly, we lack jurisdiction
under the Federal Tort Claims Act to consider it. See Mader v. United States, 654
F.3d 794, 807–08 (8th Cir. 2011) (en banc).
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