The opinion of the court was delivered by: James M. Moody United States District Court
Kim Roberts, as administratrix of the estate of Charles "Chuck" S. Traub, brings this action under the Federal Tort Claims Act for damages per the Arkansas wrongful death and survival statutes. The Court, sitting as the fact finder, heard testimony on January 25 and 26, 2007. Based on the evidence adduced at trial and the arguments of counsel, the Court makes the following findings of fact and conclusions of law.
1. In January 2004, Mr. Traub, a 66 year old Air Force veteran, underwent a colonoscopy. During the colonoscopy, a growth purported to be located 40 cm from the anus in the sigmoid colon, was located. The pathology examination determined the growth was a well differentiated adenocarcinoma.
2. Following appropriate pre-surgery tests, surgery was performed at Central Arkansas Veterans Health Care System, John L. McClellan Hospital, Little Rock, Arkansas on February 20, 2004. Chief of Surgery, Dr. Anne Mancino, and third year resident surgeon, Dr. Julio Arais, conducted the surgery.
3. According to the colonoscopy report, the adenocarcinoma, which had been tattooed at the time of the colonoscopy, was approximately 40 cm from the anus in the sigmoid colon. However, when Drs. Mancino and Arais began the surgery they were unable to locate the cancer there. Therefore, Drs. Mancino and Arais performed a colonoscopy which not only located the cancer, but also located an additional polyp in the ascending colon. The tattooed adenocarcinoma was not found in the sigmoid, but rather in the splenic flexure.
4. The surgeons ordered a biopsy of the polyp discovered during surgery to determine if it was cancerous or pre-cancerous.
5. The surgeons performed a left hemicolectomy removing a large portion of the colon at and around the splenic flexure. The surgeons also removed the appendix and the additional polyp.
6. Dr. Mancino determined that the sigmoid colon was sufficiently diseased so as to require its removal. This judgment was based on her conclusion that a satisfactory anastomosis could not be accomplished to the sigmoid in the condition in which she found it.
7. While attempting to perform the anastomosis between the sigmoid colon and the transverse colon, Drs. Mancino and Dr. Arais tore a hole in Mr. Traub's sigmoid colon. The surgeons elected to remove all of Mr. Traub's remaining colon rather than repairing the hole. According to the testimony, the decision was made based on the presence of diverticulae and the concern that a safe anastomosis could not be made to the sigmoid colon.
8. When the surgeons attempted to connect the right colon to the rectum, they were unable to do so.
9. The remaining right colon was removed and the small intestine was attached to the rectum.
10. Mr Traub was taken from the operating room to surgical intensive care, and remained there from February 20th through the morning of February 22nd. During the afternoon of February 22nd, Mr. Traub developed tachycardia. The doctors were treating the tachycardia.
11. At approximately 7:00 p.m. on February 22nd, Mr. Traub was speaking with a nurse when he suffered ...