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NOLEN v. UNITED STATES

September 7, 1983

THEODORE NOLEN, JR., Plaintiff
v.
UNITED STATES OF AMERICA, Defendant



The opinion of the court was delivered by: ROSENBERG

 This matter is before me by virtue of the Federal Tort Claims Act, 28 U.S.C. § 1346(b), § 2671 et seq. The plaintiff, Theodore Nolen, Jr., brought this action for damages because of the alleged medical negligence of the doctors of the Veterans Administration (VA). The plaintiff claims that on numerous occasions, while being treated at the Veterans Administration medical facilities, the doctors failed to properly test, diagnose and treat his condition, resulting in great physical and psychological damages. Jurisdiction is conferred upon this court by 28 U.S.C. § 1357(3).

 The plaintiff is 54 years of age, married, with 6 children. He had worked at various manual labor jobs since he left school after the eighth grade. In May or June of 1970, he was working at his last job with a brick company when his physical problems began. He first complained of back pains, loss of weight, headaches and swelling of the feet and ankles. After he failed to improve under the care of his family physician, Dr. Charles Zimmerman, Nolen was referred, as a veteran, to the VA hospital in Pittsburgh, Pennsylvania. He first visited there for tests on July 9, 1970. He returned for further testing on July 29 and was admitted as a patient on August 30. He was released on September 4. During this time the plaintiff was examined by Dr. Robert Vincent and Dr. Charles Kalko of the VA Hospital. Both ordered myelograms performed. These tests are diagnostic. Contrast (pantopaque) material is infused into the spinal column, and as the dye within the spinal cavity is viewed by the examiner, evidence of possible obstructions or tumors become visible. Because some of the dye escaped the test area on August 25, a myelogram was repeated on September 1. This myelogram, performed with the plaintiff in a prone position, was found to be normal.

 The plaintiff contends that testing in a prone position was medical error, especially when the first (incomplete) test had indicated a suspicious mass. He asserts that he should have been placed in a supine or lateral decubitus *fn1" position for the September 1 myelogram in order to reveal possible lateral lesions in the thoracic region. The plaintiff also contends that the physicians at the VA hospital were negligent in not performing a Queckenstedt test or tests *fn2" on the cerebrospinal fluid to determine if he had a spinal cord tumor, or whether his problems were caused by multiple sclerosis as the doctors had suspected.

 Dr. Kalko, a resident physician at the VA hospital, had scheduled Nolen for exploratory surgery after the first myelogram, in order to determine whether a spinal cord tumor was present. However, the senior VA physicians cancelled this surgery, which was not subsequently rescheduled, because the second myelogram was "normal".

 Based upon the tests conducted, Dr. Vincent concluded that Nolen was a "suspected multiple sclerosis patient". The plaintiff was released and notified to return for a follow-up examination in six weeks, or sooner if new symptoms were to arise. Nolen was admitted again to the VA hospital on September 14 and discharged on September 27. During this time tests were ordered by Dr. Kalko. They included brain scans and a cerotid angiogram. The results of these tests were negative and the plaintiff was discharged, again with the diagnosis of most probable multiple sclerosis.

 The plaintiff was then admitted to the Presbyterian University Hospital for 13 days beginning on November 7. He was afterwards admitted three additional times in January, March and April, 1971. Dr. Joseph Delaney, a physician associated with the VA hospital stated that he formed the impression during the plaintiff's visits to this hospital that Nolen was suffering from "possible late onset Multiple Sclerosis". A ten-day course of the drug ATCH was prescribed. This apparently did not improve the plaintiff's condition. Again, the plaintiff criticizes the tests, or lack of tests, which failed to investigate the possibility of a spinal cord tumor as being responsible for his condition.

 From 1970 to 1972 the plaintiff's condition continued to deteriorate. Despite multiple hospital admissions and tests, Nolen progressively lost his ability to walk, and to control his bowel and bladder functions. The plaintiff became a functional paraplegic *fn3" sometime in December 1970, and was compelled to use a wheelchair to move about. During these hospital admissions, Nolen was treated for numerous urinary tract infections and for decubitus ulcers which were caused by his immobility. Upon each discharge, the diagnosis was almost uniformly that the plaintiff was suffering from "multiple sclerosis".

 The first divergence from this view (other than the initial opinion of the VA resident, Dr. Kalko), came from a preliminary opinion of Dr. Robert Baker after the plaintiff was admitted to Shadyside Hospital in December, 1972. Dr. Baker ordered further myelography when he suspected that the plaintiff might have a primary cord lesion, which could have been responsible for his symptoms. The plaintiff then underwent his third myelogram examination in December, 1972, two years and three months after his second myelogram at the VA hospital. This time views were obtained from other than in the prone position, and what were described as arachnoid cysts were found in the thoracic and cervical areas. However, after these tests were completed both Dr. Baker and Nolen's family physician, Dr. Zimmerman, stated the opinion: "That there was no operative lesion here and the arachnoid cyst did not explain his complaint". (Def. Ex. J). Nolen was then discharged with the diagnosis of "multiple sclerosis".

 Almost one year later, Nolen was again admitted to the VA hospital for the purpose of treating his decubitus ulcers and a urinary tract infection. Approximately four weeks later, he was discharged, again with a primary diagnosis of "multiple sclerosis".

 During the surgery by Dr. Holm, four masses were noted in the dura, which is the tissue surrounding the spinal cord. Three small masses were present, along with the largest mass which was described as a "granuloma", *fn4" anterior to the T-2 nerve root. It measured 1cm. X 5.5cm. X 3cm. (Tr. 355). Significantly Dr. Holm testified that this granuloma was not compressing the spinal cord, and that the spinal cord was not deviated. *fn5" (Tr.350-351). This testimony was not contradicted by any evidence. I, therefore, find as a fact that the masses found by the surgeon did not compress or deviate the spinal cord, as I shall discuss presently.

 The plaintiff contends that his condition improved following the operation, and that there would have been greater improvement had the surgery been performed at an earlier time. The evidence indicates that any improvement was transitory and marginal at best. (See Def. Ex.L). Dr. Holm attributed any improvement in Nolen's abilities, to a course of steroids which he was given. Steroids are medications used to reduce swelling in nerve tissue or to prevent swelling following trauma (such as surgery). They are also used in the treatment of multiple sclerosis. (Tr. 358-359).

 Dr. Holm discharged the plaintiff on July 12 with the diagnosis that a granuloma had been present, and that multiple sclerosis was probable. In December of the same year, Nolen received rehabilitation treatment at the VA hospital, and was also treated for decubitus ulcers and for bladder infection.

 The plaintiff places heavy reliance on a letter from Dr. Carroll Osgood of the VA hospital to Dr. Rex Newton of the Harmarville Rehabilitation Center, requesting follow-up rehabilitation efforts for Nolen. The letter emphasizes the significance of the granuloma and its removal, noting that after the operation, the plaintiff was able to flex his ankles, whereas before surgery he was only able to move his toes. In addition, Dr. Osgood noted improvement in sensation and a decrease in spasticity. *fn6"

 Following his discharge from the VA hospital in December, Nolen was admitted to Harmarville for treatment on August 8 and remained there until September 17, 1975. Dr. Louis Katz, a VA physiatrist practicing at Harmarville, testified that after only a few days of rehabilitation therapy, Nolen insisted upon leaving, because the rehabilitation process would be tedious (with little expectation of significant improvement).

 Subsequent to his discharge from Harmarville, Nolen was treated in Braddock Hospital in 1976, Shadyside Hospital in 1978, Mercy Hospital in 1979, and the VA hospital in 1982. All these hospitalizations were undertaken for the purpose of treating the ulcers and bladder infections which the plaintiff incurred periodically.

 At the present time, the plaintiff has paraplegia which renders his lower extremities immobile, and in constant pain, along with the presence of frequent spasms. He is unable to move about except with the aid of others and of a wheelchair and he must spend approximately 75 percent of his time in bed. The plaintiff has no capable ...


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