The opinion of the court was delivered by: J. Leon Holmes United States District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case arises under the Federal Tort Claims Act. The case was tried to the Court from November 14, 2005, through November 16, 2005. Because the events in question occurred in Tennessee, the parties stipulated that Tennessee law applies. The parties also stipulated that the plaintiffs had complied with the procedural prerequisites of 28 U.S.C. § 2675 so as to allow this action to be initiated.
Jerry Baker is a veteran. He lives in Paragould, Arkansas. On February 18, 2001, he was admitted to the Veterans Administration Hospital in Memphis, Tennessee. On February 21, 2001, an MRI revealed a spinal epidural abscess at C-6-7. Later that same day, a neurosurgeon performed a total C-7 with partial C-6 laminectomy and removed the epidural abscess. The spinal epidural abscess caused Jerry Baker to be quadriparetic. He has no movement of or feeling in his legs and feet. Over time, he has developed some movement in his arms. He can grip with his left hand but not with his right hand. He alleges, first, that had the VA physicians exercised reasonable care the spinal epidural abscess would have been discovered earlier, and, secondly, that had the spinal epidural abscess been discovered earlier he would not have suffered the permanent quadriparesis from which he now suffers.
On these two issues -- negligence and causation -- Baker presented the testimony of four expert witnesses: Robert J. Adams, M.D., Co-Director of the Cerebrovascular Section of the Department of Neurology at the Medical College of Georgia; Donald H. Marks, M.D., Ph.D., a medical consultant and physician who is board certified in internal medicine; Richard Terry Jackson, M.D., Vice-Chair for Clinical Programs at the University of Mississippi Medical Center; and Gerald Edward Rodts, Jr., M.D., Chief of Neurosurgery Service at the Emory Clinic and Professor of Neurology at the Emory University School of Medicine. The United States presented the testimony of two expert witnesses: Stephen Winbery, M.D., who is board certified in internal medicine and has several years' experience in emergency medicine in Memphis; and Stephen T. Miller, M.D., Vice President for Medical Education at Methodist Healthcare in affiliation with the University of Tennessee Medical School. In addition to the expert testimony, the defendant introduced by stipulation the following articles from medical journals: A.R. Mackenzie, et al., Spinal Epidural Abscess: The Importance of Early Diagnosis and Treatment, 65 J. NEUROL. NEUROSURG. PSYCHIATRY 209-212 (1998); Daniele Rigamonti, et al., Spinal Epidural Abscess: Contemporary Trends in Etiology, Evaluation, and Management, 52 SURG. NEUROL. 189-97 (1999); Martin Soehle and Thomas Wallenfang, Spinal Epidural Abscesses: Clinical Manifestations, Prognostic Factors, and Outcomes, 51 NEUROSURGERY 79-87 (2002); Daniel P. Davis, et al., The Clinical Presentation and Impact of Diagnostic Delays on Emergency Department Patients with Spinal Epidural Abscess, 26 J. EMERGENCY MED. 285-91 (2004); Celestino Esteves Pereira and Jose! Carlos Lynch, Spinal Epidural Abscess: An Analysis of 24 Cases, 63 SURGICAL NEUROLOGY S1:26-S1:29 (2004); Rohit K. Khanna, et al., Spinal Epidural Abscess: Evaluation of Factors Influencing Outcome, 39 NEUROSURGERY 958-964 (1996); and K.M. Venkat Narayan, et al., Lifetime Risk for Diabetes Mellitus in the United States, 290 JAMA 1884-1890 (2003).*fn1
A. Spinal Epidural Abscess
The spinal cord is the main neurological information pathway from the brain to the extremities. Commands from the brain to the extremities travel through the spinal cord, as do signals from the extremities to the brain. The spinal cord is located between the vertebra and the dura mater, which is the outermost and most fibrous of the three membranes that cover the brain and the spinal cord. An abscess that forms on the dura mater may compress the spinal cord, which can result in neurological deficits below the point of compression. All of the experts and all of the literature agree that a spinal epidural abscess is a medical emergency; it must be diagnosed as soon as possible and treated, almost always by surgery, as soon as possible. Magnetic resonance imaging (MRI) is the gold standard for diagnosing spinal epidural abscess.
Spinal epidural abscess may be caused either by an infection from a direct intrusion into the spinal area, such as a spine surgery or spinal anesthesia; or it may be caused by an infection localized elsewhere in the body that spreads through the blood system before becoming situated on the dura mater. Staphylococcus aureus is the predominant infectious agent. Diabetes mellitus is one of the leading factors that predispose a person to the development of spinal epidural abscess. In some studies, intravenous drug use is the leading predisposing factor, and diabetes mellitus is second. In other studies, diabetes mellitus is the leading predisposing factor.
The classic signs and symptoms of spinal epidural abscess are fever or infection, spine pain, and neurological deficits.
Spinal epidural abscess is not common. The overall frequency is reported to be between 0.2 and 1.2 cases per 10,000 hospital admissions. According to the Rigamonti study, from January 1, 1983, to December 31, 1992, 75 cases of spinal epidural abscess were identified at the University of Maryland Medical Systems. During that same time, a total of 74,477 patients were admitted. Although spinal epidural abscess is uncommon, it is being diagnosed with greater frequency.
Jerry was born on July 17, 1941. As noted above, he is a veteran. He served in Korea and in Vietnam. In Vietnam, he worked in the Army Engineers building airstrips and the like. He went to school through the seventh grade. He obtained his GED while in the military. After serving in the military, he became a bounty hunter for bail bondsmen. In his testimony, he did not mention any work he has done other than his military service and his work in the bail bond business.
Jerry and Linda Baker have been married to each other twice. They were married in 1983, divorced in 1992, and remarried in 1997. Jerry Baker never had children. Linda Baker had one son by a previous marriage. That son died in 2001 from cancer.
Jerry Baker was diagnosed with diabetes in 1983. He attributes his diabetes to exposure to Agent Orange in Vietnam in the mid-1960s. Since 1983, he filed for disability with the Veterans Administration on several occasions due to his exposure to Agent Orange. He was finally granted disability status, based on exposure to Agent Orange, after the events in question here. As a result of the diabetes, he had amputation of the right second toe in 1987, a left transmetatarsal amputation in April 1999 with previous left great toe and left second toe amputations. His last amputation was in 2000. He also has had several skin cancers surgically removed. When he was admitted to the VA Hospital on February 18, 2001, he reported that he had smoked approximately one and a half packs of cigarettes per day for 46 years.
The law that governs liability in this case is stated in Tenn. Code Ann. §§ 29-26-115 et seq. In deciding the liability issues, I have consulted and intend to follow the relevant portions of the Tennessee Pattern Jury Instructions - Civil 6.10 et seq., which are the Tennessee Pattern Jury Instructions applicable to medical negligence cases.
Who prevails in this case depends on two issues: first, whether negligence by the VA physicians caused a delay in the diagnosis of spinal epidural abscess from February 18, 2001, until February 22, 2001; and, secondly, whether Jerry Baker's condition would be significantly better had the spinal epidural abscess been diagnosed earlier. The resolution of both issues depends on expert testimony. All of the expert witnesses who testified in this case are well qualified, highly educated, articulate, competent, credible physicians with sufficient experience and expertise to opine as to the standard of care under Tenn. Code Ann. § 29-26-115 and TPI-Civil 6.11; and they all have the requisite expertise to opine on the causation issue. All of them offered testimony that qualified as expert testimony under Fed. R. Evid. 702.
The testimony of the experts called by the plaintiffs and by the defendants is in direct contradiction on both of the ultimate dispositive issues.
Without disparaging any of the six physicians who testified as expert witnesses, I have concluded that on the issue of negligence the most credible of the expert witnesses was Dr. Adams, and on the issue of causation the most credible of the expert witnesses was Dr. Rodts.
Dr. Adams summarized the opinions that I am finding to be more likely than not true as follows:
Q: [H]ave you formed an opinion regarding whether the treatment that Mr. Baker received at the VA Hospital in Memphis met the standard of care?
Q: And what is that opinion?
A: I don't think it met the standard of care.
Q: Have you formed an opinion regarding whether Mr. Baker's injuries were caused by that failure to ...