Opinion
CIV. 02-5010.
Opinion Filed March 7, 2005
Terry L. Pechota, Rapid City, SD, Attorney for Plaintiff.
Diana J. Ryan, U.S. Attorney's, Rapid City Office, Rapid City, SD, Attorney for Defendant.
MEMORANDUM OPINION AND ORDER
[¶ 1] Plaintiff Stanley Little White Man, Jr., as Administrator of the Estate of Stanley Little White Man, Sr., sued defendant United States of America for negligence pursuant to the Federal Tort Claims Act (FTCA), 28 USC § 1346(b). Plaintiff alleges that the failure of Indian Health Service's (IHS) dentists to refer his father, Stanley Little White Man, Sr., for a biopsy of his gum tissue caused his death from cancer. Defendant denies these allegations and alleges that it provided adequate medical care, and that even if the dentists were negligent, earlier detection of the decedent's tumor would not have saved his life.
FACTS
[¶ 2] The court finds the following facts by a preponderance of the evidence:
[¶ 3] On November 5, 1997, Stanley Little White Man, Sr., went to the IHS dental clinic in Kyle, South Dakota, for an urgent visit. He complained of pain in his teeth on the upper-left side of his mouth. ¶ 65-67. Maria-Paz Smith, D.D.S., examined Little White Man and found gross decay and periodontitis all over his mouth. He also had a painful, inflamed abscess between teeth 10 and 11. Dr. Smith recommended the removal of teeth 9, 10, 11, and 12, because they were grossly decayed and the whole area was inflamed. Little White Man did not want to have all four teeth taken out that day, and asked Dr. Smith to remove "the worst tooth." ¶ 69-71. Dr. Smith surgically removed tooth 11. She had to cut the tooth out of the jawbone, because the tooth had fused to the bone. ¶ 72-73.
Inflammation of the periodontium, which is the gums, membranes, andalveoloar bone that makes up the supporting structures of the teeth. Merriam-Webster Medical Dictionary, available at http://www.intelihealth.com (2002).
A localized collection of pus surrounded by inflamed tissue." Merriam-Webster Medical Dictionary, available at http://www.intelihealth.com (2002).
[¶ 4] Dr. Smith prescribed Tylenol for Little White Man's pain, and a seven-day supply of the antibiotic Amoxicillin for the infections in his mouth. Dr. Smith testified that she did not see anything that resembled oral cancer at the time, such as indurated (hard) or grainy tissue. Little White Man's surgical area was bloody and soft, which is normal for an abscess. ¶ 76-7.
[¶ 5] Little White Man returned to the Kyle IHS clinic on November 12, 1997, for another urgent visit. He complained of pain in teeth 9 and 10. Dr. Smith removed them and prescribed a seven-day supply of Amoxicillin and more Tylenol. ¶ 79-80. Dr. Smith testified that the tooth 11 extraction site was healing normally. ¶ 111. She recommended that Little White Man return for a full dental exam, but the clinic did not schedule an appointment. ¶ 105.
[¶ 6] Little White Man did not return for a dental exam. On December 8, 1997, he went in for an urgent visit because of pain in tooth 12. Dr. Smith extracted the tooth, but did not perform the full dental exam that she previously recommended. She prescribed another seven-day course of Amoxicillin and Tylenol. She testified that Little White Man did not have a dry socket. ¶ 107, 116.
[¶ 7] On December 12, 1997, Little White Man returned to the Kyle IHS clinic because he was still in pain. Dr. Smith could not see him because she had other appointments. Little White Man then went to the IHS dental clinic in Pine Ridge, South Dakota, where he saw Dr. Victor Igunbola. ¶ 202, 206.
[¶ 8] Little White Man presented to Dr. Igunbola complaining of throbbing pain in the entire extraction site, from which teeth 8-12 had been removed. Plf. Ex. 25. Dr. Igunbola did not have Little White Man's records and had not spoken to Dr. Smith about his case. Id. at 37. He knew that Little White Man was taking Amoxicillin and that Dr. Smith had removed four of Little White Man's teeth, but he thought that Dr. Smith had removed all of them on December 8. Id. at 42, 51. Dr. Igunbola assessed a dry socket at the extraction site of tooth 11. Id. at 15-16. He noticed nothing unusual about the dry socket which would indicate the need for a referral to a specialist, such as indurated or grainy tissue. Id. at 33. Dr. Igunbola took a panoramic x-ray to rule out any pathological cause of the pain, such as bone loss, an abscess, or a piece of an extracted tooth remaining in Little White Man's gums. Id. at 25. The x-ray revealed nothing unusual. Id. at 26. Dr. Igunbola rinsed the extraction site and placed a dressing on the dry socket. Id. at 16. He told Little White Man to return in three days to see whichever dentist was on duty. Id. at 30.
A dry socket is a condition that occurs when the blood clot that forms over anextraction site falls out. This can expose nerve endings, which causes throbbingpain. Plf. Ex. 27-28.
[¶ 9] Little White Man returned to the Pine Ridge clinic for emergency care on December 29, 1997. ¶ 144. Dr. Michael Cangemi examined him and assessed a dry socket, with no blood clot. Dr. Cangemi had the record from his previous visit to the Pine Ridge clinic. He was aware that Little White Man had been treated at the Kyle clinic, but did not know that the extractions were done over a period of four weeks, rather than all at once. ¶ 144-45. Little White Man reported that the dressing that Dr. Igunbola had placed in the dry socket had fallen out the night of December 12. ¶ 146-47. Dr. Cangemi asked Little White Man to return in two days to check on the dry socket. ¶ 151. He did not observe any indurated or grainy tissue, or anything else that suggested Little White Man needed to see a specialist. ¶ 150.
[¶ 10] On January 14, 1998, Little White Man saw Lawrence Gunnar, D.D.S., who had a private practice in Martin, South Dakota. Pl. Ex. 20 at 6-7. He complained of pain in his jaw and around his ear, swollen gums, bad breath, and an unpleasant taste. Id. at 9-10. Dr. Gunnar examined Little White Man and was certain that he did not have a dry socket and instead believed "it could be a cancer." Id. at 11. Dr. Gunnar observed a large, unhealed area of red gum tissue. Little White Man's gum tissue was indurated and grainy, and a portion of his inner nostril was red and swollen. Id. at 11-12. Dr. Gunnar also took a panoramic x-ray, which revealed that "something could be going on in the maxillary sinus area." Id. at 12-13. He referred him to Dr. Dale Gunderson, an ear, nose and throat specialist in Rapid City, South Dakota. Dr. Gunnar noted these symptoms in a letter that he faxed to Dr. Gunderson the same day that he examined Little White Man. Id. at 11.
[¶ 11] Dr. Gunderson examined Little White Man on January 15, 1998. Pl. Ex. 17 at 16. He observed a swollen and non-healing lesion, and immediately suspected that it was cancer. Id. at 8. Dr. Gunderson performed a biopsy and ordered x-rays and a CAT scan of Little White Man's sinuses and face. Id. at 9. On January 19, 1998, Dr. Gunderson notified Little White Man that his biopsy was positive for squamous cell carcinoma. Id. at 9, 16. The x-rays revealed a cancerous mass in the area where his teeth had been, and in the maxillary sinus. Id. at 9. Although Dr. Gunderson had seen similar conditions before, he testified that it was an unusual tumor because 80 percent of these cancers occur in the lower jaw. Id. The mass in Little White Man's sinus was later diagnosed as benign, but the lesion in his mouth was a moderately differentiated squamous cell carcinoma, "an aggressive tumor." Id. at 11. Dr. Gunderson referred him to Dr. Drummond for a radiation treatment consultation. Id. at 10-11.
[¶ 12] Dr. Drummond and Dr. Gunderson determined that surgical removal of Little White Man's tumor was the best option, and that they would evaluate the necessity of radiation treatment after the operation. Id. at 14-16. Dr. Gunderson removed the tumors on February 5, 1998. Id. at 16. Following the surgery, Dr. Gunderson classified the tumor as a "stage 2" (T2) carcinoma. Id. at 11. With a T2 carcinoma, Dr. Gunderson estimated that Little White Man had a 75-80 percent chance of survival with a combination of surgery and radiation. Id. at 11-12. If it had been a less harmful T1 cancer, Little White Man would have had a 90 percent chance of survival with either surgery or radiation treatment. Id. Dr. Gunderson stated that the margins of the tissue that he removed were free of cancer. Id. at 13. He testified that "if you get good margins and it's a T2, your cure rate is probably similar with radiation or therapy." Id. at 14-15. In light of the serious side effects of radiation treatment to the head and neck, Dr. Drummond and Dr. Gunderson agreed that radiation therapy was not necessary in Little White Man's case. Id.
Cancers grow from stage one through four (T1, T2, T3, T4) with T1 beingthe earliest and most treatable stage.
Dr. Drummond concurred with the estimate that Little White Man had an 80 percent chance of surviving at this point. Pl. Ex. 15 at 19. He believed that thetumor was midway between a T1 and T2 cancer. Id. at 12.
[¶ 13] In April of 1998, Little White Man found a lump on the side of his neck. Id. at 16. A needle biopsy revealed that it was not cancerous. Id. at 17. Little White Man was prescribed antibiotics for the lump, but it continued to grow. Dr. Gunderson ordered another needle biopsy on May 26, 1998, which also showed no evidence of cancer. Id. at 19. On June 9, 1998, a CAT scan revealed an abscess and a suspicious-looking cervical lymph node beneath the abscess. Id. at 20-21. The lymph node could not be reached with a needle. Dr. Gunderson surgically removed the lymph node on June 11, 1998, so that it could be tested for cancer. Id. The biopsy was positive for recurrent cancer. Id. at 22.
[¶ 14] The prognosis for survival plunged with the diagnosis of recurrent cancer. Id. at 23. Dr. Gunderson and Dr. Drummond realized that Little White Man had a very rapidly growing cancer that required aggressive treatment, despite the side effects. Pl. Ex. 15 at 22. On June 22, 1998, Little White Man had a right radical neck dissection, which is the surgical removal of lymph nodes from the right side of his neck. Pl. Ex. 17 at 23. Little White Man underwent daily radiation treatments to his shoulders and neck until September of 1998. Pl. Ex. 15 at 23-26. The cancer had spread to the base of his skull, which could only be treated with radiation because surgical removal was impossible. Id. at 22. The radiation therapy impacted his sense of taste and caused dry mouth, which made it very difficult for Little White Man to eat. Id. at 25.
[¶ 15] On October 6, 1998, Little White Man saw Dr. Gunderson for a followup examination. Little White Man had "no evidence of disease" at this time. Id. at 25.
[¶ 16] In January of 1999, however, the cancer on the right side of his neck returned. Pl. Ex. 15 at 26. Little White Man was referred to Mayo Clinic in Rochester, Minnesota. Id. at 27. He started chemotherapy, because his body could not tolerate more radiation treatment and the lesion was inoperable. Id. At this point, Little White Man's doctors were just trying to relieve pain with chemotherapy because the cancer was incurable. Id. at 29. Little White Man died of cancer on May 5, 1999.
DISCUSSION
[¶ 17] Under the FTCA, the United States may by held liable for personal injury caused by the negligence of a federal employee "if a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 USC § 1346(b)(1). Thus, this court will apply the law of South Dakota.
[¶ 18] Plaintiff contends that IHS dentists were negligent in failing to properly treat Little White Man and for failing to timely refer him for treatment by a specialist. Plaintiff contends that the IHS's substandard medical care allowed the cancer to spread to other areas, which ultimately resulted in the death of Little White Man.
[¶ 19] The South Dakota Supreme Court defines negligence as "the breach of a duty owed to another, the proximate cause of which results in an injury." Zarecky v. Thompson, 2001 SD 121, ¶ 17, 634 NW2d 311, 316 (internal quotations omitted). The plaintiff has the burden to prove that IHS was negligent and that its negligence was the proximate cause (or a substantial factor) of Little White Man's injury or death. See Zarecky, 2001 SD 121, ¶ 17, 634 NW2d at 316. Plaintiff must establish sufficient evidence for the court "to reasonably conclude, without resort to speculation, that the preponderance favors liability." Id. (quoting Jorgenson v. Vener, 2000 SD 87, ¶ 14, 616 NW2d 366, 369). In medical malpractice cases, negligence is generally established by expert testimony. Schrader v. Tjarks, 522 NW2d 205, 210 (SD 1994).
[¶ 20] Dr. Lawrence Gunnar, Little White Man's expert, testified that the IHS dentists should have noticed the swelling and redness in Little White Man's gums, sinuses, and nostril. Dr. Gunnar believed that the IHS should have referred Little White Man for a biopsy. He testified that early detection is the best way to successfully treat cancer. Dr. Drummond also testified that early detection and treatment improves the odds of surviving cancer, because early treatment can prevent it from spreading throughout the body.
[¶ 21] Even if Dr. Gunnar's testimony is sufficient to prove negligence, plaintiff has not met his burden of proving that the negligence was the proximate cause of Little White Man's death.
[¶ 22] None of the medical experts testified that an earlier diagnosis would have prevented Little White Man's untimely death. The testimony of Dr. Gunderson and Dr. Drummond supports the opposite conclusion, that an earlier diagnosis would not have saved Little White Man. His tumor spread at an unusually fast rate and was especially malignant. Dr. Drummond stated that it is always desirable to diagnose and treat cancer as early as possible, but that it probably would not have made any difference in Little White Man's case. Dr. Drummond further testified that Little White Man's tumor was discovered in the early stages, between T1 and T2, and that it still spread rapidly. In addition to the expert testimony, the record shows that the cancer spread quickly throughout Little White Man's neck and head, and recurred very quickly after surgery and radiation treatment. This lends credence to the testimony that this was probably an incurable case, "just a tough cancer" in Dr. Drummond's words.
[¶ 23] If a failure to diagnose necessitates a painful treatment, or lowers the plaintiff's quality of life, a negligent doctor may be held liable even if the plaintiff cannot prove that the negligence caused death or the underlying injury. See O'Brien v. Stover, 443 F2d 1013, 1016 (8th Cir. 1971) (upholding verdict for plaintiff under Iowa law where negligent failure to perform biopsy led to increased pain), Augustine v. United States, 704 F2d 1074, 1078 (9th Cir. 1983) (holding that the progression of oral cancer which required more extensive treatment gave plaintiff a cause of action against Air Force dentist). Here, there is no evidence that an earlier diagnosis would have spared him any of the painful side effects of his lengthy and aggressive cancer treatment. Dr. Drummond and Dr. Gunderson testified that his treatment would have been the same even if he had been diagnosed with cancer on November 5, 1998, the first time Little White Man visited an IHS dentist. Therefore, the court finds that IHS's failure to order a biopsy did not injure Little White Man, or subject him to a more painful treatment regimen than he would have had if the cancer had been discovered earlier.
[¶ 24] Plaintiff points out that at some time, the T2 cancer was a T1 cancer with a 90 percent survival rate versus a 75-80 percent survival range. Plaintiff argues that under the loss of chance doctrine, he is entitled to recover. The loss of chance doctrine, however, still requires the plaintiff to prove by a preponderance of evidence that defendant's actions reduced his chance of a better outcome. Jorgenson v. Vener, 2000 SD 87, ¶ 16, 616 NW2d 366, 371. Both Dr. Gunderson and Dr. Drummond testified that a diagnosis two months earlier would not have made a difference in Little White Man's treatment or changed the outcome. The court finds that this testimony is credible and finds that plaintiff has not met his burden of proving that Little White Man's chance of a better outcome was reduced by defendant's actions.
[¶ 25] Because plaintiff has failed to show causation by a preponderance of the evidence, the court finds that defendant is not liable for the death of Little White Man or for any injuries that he suffered. Accordingly, it is hereby
[¶ 26] ORDERED that judgment be entered in favor of the defendant.