Mr. Sunde took the patient's vital signs, started him on oxygen and an IV, and obtained an EKG reading. Mr. Marricone stated that he had been feeling weak for eight days, experienced chest pains whenever he coughed, had not taken his diabetes medication for several days, and thought that he had the flu. At approximately 5:20 a.m., Dr. Timothy Barth, the prison physician, arrived at F-4. During Dr. Barth's examination of Mr. Marricone, Mr. Marricone denied chest pain at that time but commented that he had had chest pain with coughing during the past few days. Dr. Barth immediately contacted an ambulance to transport Mr. Marricone to St. Joseph's Hospital in Lexington, Kentucky.
At approximately 6:05 a.m., Mr. Marricone departed FCI by ambulance for St. Joseph's Hospital. Mr. Marricone arrived at the hospital at 6:18 a.m. where, after going into cardiac arrest, was pronounced dead at 6:48 a.m.
A post mortem examination of Mr. Marricone was performed by the Office of the Chief Medical Examiner in Louisville, Kentucky. The examination revealed a massive acute myocardial infarction which, in certain areas, was two to three days old, with additional more recent changes. The examination further revealed that Mr. Marricone suffered from coronary arteriosclerosis, severe, with thrombis of left anterior descending; a frequent complication of diabetes. The myocardial infarction occurred when a blood clot formed over a large placque which had already substantially blocked the left anterior descending artery of the heart, thereby completely obstructing the blood flow out of that artery.
Both parties' medical experts agreed that Mr. Marricone had suffered a myocardial infarction at least one to two days prior to his arrival at FCI. However, we find, based upon the testimony and supporting documentation, that plaintiff has failed to prove by a preponderance of the evidence that: (1) Ms. Marlar should have diagnosed Mr. Marricone's medical condition at the time of the intake screening; and (2) had Mr. Marricone's medical condition been diagnosed at the time of the intake screening, medical treatment available in March, 1985 could have prevented his death. We find that because Mr. Marricone, at no point prior to his reporting to Physician's Assistant John Sunde at 5:05 a.m. on March 2, 1985, either complained of or physically manifested any symptoms of his cardiac condition, Ms. Marlar could not reasonably have been expected to diagnose Mr. Marricone's condition. We further find that the preponderance of evidence does not support the conclusion of plaintiff's medical expert, to wit, that medical treatment available in March, 1985 could have prevented Mr. Marricone's death had he been referred to a hospital at the time of the intake screening.
CONCLUSIONS OF LAW
The liability of the United States under the Federal Tort Claims Act is determined in accordance with the substantive law of the state where the acts or omissions complained of occurred. 28 U.S.C. § 1346(b); Richards v. United States, 369 U.S. 1, 82 S. Ct. 585, 7 L. Ed. 2d 492 (1962). Inasmuch as both Mr. Marricone's death as well as the majority of conduct that is the subject of this case occurred in Kentucky, this Court previously ruled that the law of Kentucky governs the determination of liability. Marricone v. United States, 1987 U.S. Dist. LEXIS 1877, No. 86-4218 (E.D. Pa. March 12, 1987) slip op. at 8.
Kentucky has adopted a doctrine of pure comparative negligence whereby "the trier of fact must consider both negligence and causation in arriving at the proportion that negligence and causation attributable to the claimant bears to the total negligence that was a substantial factor in causing the damages." Hilen v. Hays, 673 S.W.2d 713, 720 (Ky. 1984); see also Wemyss v. Coleman, 729 S.W.2d 174, 177 (Ky. 1987). In Deutsch v. Shein, 597 S.W.2d 141, 144-45 (Ky. 1980), the Kentucky Supreme Court stated that negligent conduct is not a substantial factor if the harm would have been sustained even had the defendant not acted negligently. See also Carlotta v. Warner, 601 F. Supp. 749, 752 (E.D. Ky. 1985).
Under Kentucky law, expert medical testimony is required in a malpractice case to establish both that the treatment given or withheld was below the degree of care and skill expected of a reasonably competent practitioner and that the negligence was a substantial factor in causing the death or injury, unless both negligence and causation is so apparent that even a layman could recognize it. Blair v. Eblen, 461 S.W.2d 370, 372-73 (Ky. 1970); Reams v. Stutler, 642 S.W.2d 586, 588 (Ky. 1982); see also Jarboe v. Harting, 397 S.W.2d 775, 778 (Ky. App. 1965).
Based upon the trial record, we conclude first that plaintiff failed to meet her burden of proving by a preponderance of the evidence that any agent, servant or employee of defendant United States acted negligently in the diagnosis and/or treatment of Mr. Marricone. Specifically, plaintiff failed to prove by a preponderance of the evidence that Ms. Marlar was negligent in failing to detect and diagnose Mr. Marricone's cardiac condition during the medical intake screening. Given the lack of any physical manifestation of or complaint of current cardiac symptomology on the part of Mr. Marricone, during the intake procedure, we conclude that plaintiff has not proven by a preponderance of evidence that Ms. Marlar's performance fell below the degree of care and skill required of a reasonably competent medical practitioner.
We further conclude that plaintiff failed to establish by a preponderance of evidence that Lt. William Coen was negligent in assigning Mr. Marricone to an upper bunk on the third floor of the Antaeus Unit. The only reason for the recommended assignment of Mr. Marricone to a first floor lower bunk was his compromised ability to ambulate. Given the lack of availability of such bunks, Mr. Marricone's assurance that he could walk to the third floor, and the lack of any physical manifestation or complaint of cardiac illness, we cannot, conclude that Lt. Coen's action was negligent. Moreover, we conclude that the plaintiff failed to prove by a preponderance of evidence that any of the guards on the Antaeus Unit were negligent in failing to diagnose Mr. Marricone's physical condition prior to 4:50 a.m. given the fact that neither Mr. Marricone nor any other cellmates on the Antaeus Unit requested help nor, in any way, complained of Mr. Marricone's illness prior to 4:50 a.m. Finally, we conclude that plaintiff has failed to prove by a preponderance of the evidence that Lt. Richard Cole was negligent in transporting Mr. Marricone from his cell to the prison hospital. The record indicates that Mr. Marricone was offered and refused a wheelchair; stating that he was capable of walking to the hospital facility.
Even assuming that plaintiff had proven negligence on the part of one or more agents, servants or employees of defendant United States, we conclude that plaintiff failed to prove by a preponderance of the evidence that such negligence was a substantial factor in causing Mr. Marricone's death. While recognizing the conflicting nature of the expert medical testimony, we conclude that plaintiff failed to prove by a preponderance of the evidence that medical intervention at the time of Mr. Marricone's arrival at FCI could have prevented his death. As Dr. Irving Herling testified, we conclude that even had Mr. Marricone been, at the time of his arrival at FCI, immediately transferred to a hospital, medical treatment available in March 1985, could not have prevented his death.
Thus, for the reasons stated, judgment will be entered in favor of defendant United States and against plaintiff Josephine Marricone.
AND NOW, this 12th day of January, 1989, for the reasons set forth in this Court's Memorandum of January 12, 1989,
IT IS ORDERED that judgment is entered in favor of the defendant United States and against plaintiff Josephine Marricone.
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