The opinion of the court was delivered by: Judge Munley
Plaintiffs Stanley and Marisol Laskowski initiated this action against the United States of America Department of Veterans Affairs for damages pursuant to the Federal Torts Claims Act, 28 U.S.C. § 2671, et seq. The plaintiffs allege medical malpractice against the medical professionals and administrative staff at the Wilkes-Barre Veterans Affairs Medical Center ("WBVAMC") located in Wilkes-Barre, Pennsylvania. Plaintiffs assert that the United States of America Department of Veteran Affairs committed professional negligence in treating Plaintiff Stanley Laskowski for post traumatic stress disorder (hereinafter "PTSD") at the WBVAMC. Plaintiff Marisol Laskowski, Stanley Laskowski's wife, has asserted a claim for loss of consortium.*fn1
The government and the Laskowskis agree that Mr. Laskowski's valorous service to the country is not at issue. Nor is this case about Mr. Laskowski's PTSD diagnosis, the hardship this disease has caused Mr. Laskowski and his family, or Mr. Laskowski's current status as 100% disabled and unable to work in the American economy. The parties also agree that WBVAMC had a duty to care for Mr. Laskowski and that the WBVAMC violated this duty by failing to provide psychotherapy.
Although the government and the Laskowskis agree on much in this case, they disagree on whether the defendant breached other duties it owed to the plaintiffs in addition to its failure to provide psychotherapy. They also dispute two issues pertaining to causation. First, the parties dispute the cause of the severe, and apparently irreversible, worsening of Mr. Laskowski's mental disease from April 2007 to August 2007. Second, the parties disagree as to whether the mental health professionals at the WBVAMC could have foreseen the decline in Mr. Laskowski's condition.
Plaintiffs contend that defendant's failure to provide proper PTSD treatment from April to August 2007 caused Mr. Laskowski's deterioration, and that any reasonably prudent mental health professional could have foreseen the mental decompensation that followed. In defense, the government would have the court shift all responsibility to Mr. Laskowski for his declining mental health. In so doing, the government asserts that Mr. Laskowski began inappropriate self-medication and that the shorthand comments of Veterans Affairs employees indicate that Mr. Laskowski underreported his symptoms.
This case demands that the medical records and live testimony be assessed in conjunction. The court finds, as will be explained below, that a preponderance of the evidence presented at trial establishes that the WBVAMC committed medical malpractice with respect to the care that it provided to Mr. Laskowski and that its medical malpractice caused his foreseeable injuries. Accordingly, the court will grant a verdict for the plaintiffs, and, in so doing, we note that this holding is unique to the facts presented before the court. We do not intend this decision to be a sweeping criticism of the defendant's treatment of veterans with PTSD. Rather, this case is very fact specific and we can make no comment on the defendant's treatment of any other patients.
As noted above, Plaintiffs Stanley P. Laskowski, III and Marisol Laskowski instituted this action pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. (hereinafter "FTCA"). The plaintiffs filed this case on March 17, 2010 and the court held a seven-day non-jury trial beginning on September 10, 2012. In accordance with the court's directive, the parties have filed their respective post-trial submissions. The following constitutes the court's findings of fact and conclusions of law, as required by Rule 52(a) of the Federal Rules of Civil Procedure.*fn2
Generally, the doctrine of sovereign immunity protects the United States from suit. The FTCA, however, waives this immunity for situations where negligent or wrongful acts or omissions of government employees, acting in the scope of their employment, cause injury to others. 28 U.S.C. § 1346(b)(1). The FTCA provides: "The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages." 28 U.S.C. § 2674. The United States District Courts have jurisdiction over FTCA claims. 28 U.S.C. § 1346(b)(1).
The liability in such a situation is based upon the "law of the place where the act or omission occurred." Id. Here the alleged medical negligence took place in Wilkes-Barre, Pennsylvania. Accordingly, we will apply the substantive law of Pennsylvania. Regardless of the law of the place where the act or omission occurred, however, the parties are not entitled to a jury. 28 U.S.C. §§ 2402.*fn3
Plaintiffs have the burden of proving their case by the preponderance of the evidence. Plaintiffs meet this burden when, in light of all the evidence, they establish that what they claim is more likely so than not so. Greenwich Collieries v. Dir., Office of Workers' Comp., 990 F.2d 730, 736 (3d Cir. 1993).
In determining whether any fact has been proven by a preponderance of evidence in the case, we have considered the testimony of all witnesses, both plaintiff witnesses and defense witnesses. We have also examined all exhibits received in evidence, whether presented by the plaintiff or defendant.
Plaintiff Stanley Laskowski was born on January 26, 1978 and graduated from Bishop O'Hara High School in May 1996. (Doc. 62, Undisputed Facts at ¶ 6).*fn4 He served most honorably in the United States Marine Corps between February 1999 and February 2007. In October 2002, he married Plaintiff Marisol Laskowski. They have four children and live in Carbondale, Pennsylvania. (Id.)
Plaintiff enlisted in the United States Marine Corps on February 23, 1999. (Id. ¶ 14). He rose to the rank of Sergeant. (Id.) In early 2003, plaintiff served as an infantry squad leader. He was deployed to Kuwait as a fire squad leader. (Id. ¶ 15). He took part in "Operation Iraqi Freedom," leading his squad "through fierce combat operations with valor and distinction." (Id. ¶ 17). Plaintiff received very favorable Fitness Reviews from his superior officers during this time. (Id. ¶¶ 17-19). The Marines awarded him the following medals and ribbons for his service: the Navy and Marine Corps Achievement Medal with 1 star, the Marine Corps Good Conduct Medal with 1 star, the Combat Action Ribbon, the Iraq Campaign Medal, the Global War on Terrorism Service Medal, the Sea Service Deployment Ribbon with 1 star, and the National Defense Service Medal. (Id. ¶ 21).
During his service in Operation Iraqi Freedom, plaintiff proved himself valorous and courageous. He also experienced the horror of combat. (Id. ¶ 20). Upon returning to the United States - and for four years thereafter -plaintiff remained in the Marine Corps and served as a Marksmanship Coach and Instructor at Parris Island, South Carolina. (Id. ¶ 23). He performed this job with distinction and continued to receive very favorable Fitness Reviews. (Id. ¶¶ 22-26).
Plaintiff served in the Marine Corps for a total of eight years, and was honorably discharged in February 2007, at which time he and his wife moved to Northeastern Pennsylvania. (Id. ¶ 26). Plaintiff obtained a job as a financial advisor and sales associate for a company called Keystone Financial. (Id. ¶ 27).
Upon leaving the Marine Corps, plaintiff was informed that he should contact his local Veterans Affairs Outreach Center to arrange for compensation and pension screenings regarding injuries he suffered while in the service. (Id. ¶ 26). To this end, he arranged for such screenings at the Wilkes-Barre Outreach Center. (Id. ¶¶ 28-29). On April 11, 2007, plaintiff arrived at the WBVAMC for his first compensation and pension screening appointment. During the appointment, plaintiff reported that he had suffered from insomnia for two days, and he also reported other symptoms consistent with PTSD. He was told that he could go to the Veterans Hospital emergency room for treatment. (Id. ¶ 32). On that same day, he went to the emergency room, thus commencing the treatment that would eventually lead to the instant lawsuit. (Id. ¶ 33).
As this case involves allegations of medical malpractice, it is important to review the medical treatment that plaintiff received in some detail. The relevant time period is between April and August 2007. During this time plaintiff visited the WBVAMC in person four (4) times. Additionally, he telephoned the WBVAMC five (5) times and his wife telephoned one (1) time.*fn5 During all these months he was never treated by a physician at the WBVAMC, but dealt mainly with "physician extenders" --medical professionals such as nurses and physician assistants who are supervised by physicians and serve as caregivers to patients.*fn6 We will review the medical treatment plaintiff received chronologically. April 11, 2007 Plaintiff, at his wife's urging, sought treatment at the WBVAMC because he was having nightmares and difficulty sleeping. (Doc. 68, Notes of Testimony (hereinafter "N.T.") 9/13/12 at 12). Plaintiff presented himself at the WBVAMC Emergency Room on April 11, 2007. A Triage Nurse, Mary J. Filipkowski, evaluated him. Plaintiff reported his insomnia, and he screened positive for PTSD, depression and alcohol use. Filipkowski referred plaintiff to Physician Assistant (hereinafter "PA") Bernard Borowski who saw him on that same day. (Doc. 62, Unidsputed Fact ¶ 33).
Plaintiff reported to PA Borowski that he had not slept for two days and that he had suffered from nightmares since 2003. He told Borowski of a recurring nightmare and reported daytime irritability and isolation. He also indicated that he had a history of substance abuse with alcohol and drugs when he was eighteen to nineteen years old. Borowski concluded that plaintiff had Adjustment Disorder with PTSD features. (Id. ¶ 34). He prescribed 25-50 mg of Trazadone for sleep. (Id.) Plaintiff specifically requested "talk therapy" on April 11, 2007; regardless, in the subsequent four months, the defendant did not provide "talk therapy" or psychotherapy. (Doc. 70, N.T. 9/17/12 at 56).
Kathleen Collelo-Minora, a Licensed Clinical Social Worker ("LCSW"), served as a Social Worker-Case Manager under the Department of Veterans Affairs VHA Handbook for the Transition Assistance and Case Management of Operation Iraqi Freedom ("OIF") and Operation Enduring Freedom ("OEF") Veterans and the Department of Veterans Affairs VHA Directive for the Role of VHA Points of Contact and Case Managers to Coordinate Care for Returning Combat Servicemembers and Veterans. (Doc. 62, Undisputed Facts ¶ 35).
Collelo-Minora was responsible for coordinating the care and services provided to plaintiff. To this end, she was required to review and coordinate his care, his needs and his access to services every thirty (30) days beginning on April 17. (Doc. 68, N.T. 9/13/12 at 151). Her job required that she establish and maintain an effective therapeutic relationship with OIF/OEF veterans so as to provide appropriate services to the veterans and their families. (Doc. 54, N.T. 9/11/12 at 179). The defendant provided drug and alcohol counseling programs and a mental health clinic to veterans such as plaintiff. Additionally, it had counseling services available for spouses of veterans such as Marisol Laskowski. (Doc. 54, N.T. 9/11/12 at 180).
Collelo-Minora's job included creating "a patient record flag which would identify each veteran when you went into their record as an OIF/OEF veteran." (Id. at 181). In the instant case, the only action Collelo-Minora took was to make this patient record flag. She did not conduct the requisite monthly follow ups or coordinate plaintiff's care as is provided for in the Department of Veterans Affairs VHA Handbook for Transition Assistance and Case Management of Operation Iraqi Freedom and Operation Enduring Freedom Veterans, the Department of Veterans Affairs VHA Directive for the Role of VHA Points of Contact and Case Managers to Coordinate Care for Returning Combat Servicemember and Veterans. (Doc. 62, Undisputed Facts ¶ 36).
On April 20, 2007, plaintiff met with Francisco F. Santos, M.D., Staff Psychiatrist Behavioral Services, for a Compensation and Pension examination. Dr. Santos recorded that plaintiff "has sleep disturbance, avoids crowds, is hypervigilant, feels edgy every day, has moodiness and outbursts of temper, feels depressed, low energy, has nightmares, intrusive recollections and anxiety." (Id. ¶ 37). Dr. Santos further noted that plaintiff "is showing persisting symptoms of avoidance, including suppression of the traumatic events and memories for years up until his discharge from the military." (Id.) He diagnosed plaintiff with Chronic PTSD and noted plaintiff's history of substance abuse." (Id. ¶ 37). Although Dr. Santos was authorized to treat Sgt. Laskowski's PTSD, he provided no medical treatment to him. He merely evaluated plaintiff for compensation and pension purposes. (Doc. 54, N.T. 9/11/12 at 8).
Plaintiff had a psychotherapy appointment scheduled for May 1, 2007 with Dr. Matthew Dooley, a clinical psychologist. (Doc. 70, N.T. 9/17/12 at 77). For reasons that are unclear, Plaintiff did not appear for the appointment. The WBVAMC staff should have notified Dr. Dooley of the missed appointment so he could contact plaintiff and reschedule it, but they did not. (Id.)
On May 11, 2007, Eugene Lucas Jr., a Certified Registered Nurse saw plaintiff. Nurse Lucas became plaintiff's primary care provider at the WBVAMC. On this initial visit, he noted that plaintiff had a history of alcohol and substance use with an occasional binge. Also he had a family history of such use. Plaintiff reported suffering disrupted sleep, hypnopomic and hypnogogic experiences relating to combat experience, impulstivity, nightmares, flashbacks, intrusive thoughts, irritability, anger, and anxiety. Nurse Lucas confirmed Dr. Santos' diagnosis of Chronic PTSD and also diagnosed plaintiff with Depression. (Doc. 62, Undisputed Facts at ¶ 38).
Lucas prescribed Clonazepam, a benzodiazepine, at .5 mg for sleep and Bruproprian at 100 mg in the morning for irritability and anger.*fn7 Lucas further prescribed a follow-up visit in two months' time and had a note to refer Sgt. Laskowski to psychology for PTSD follow up. Aruna Bhatia, M.D., co-signed the note regarding plaintiff's visit on the same day. (Id. ¶ 39). Dr. Bhatia served as a supervising physician or "collaborating physician" of Nurse Lucas. She never met or treated plaintiff and evidently never discussed him with Nurse Lucas. (Doc. 54, N.T. 9/11/12 at 121, 126).
The Clonazepam first prescribed to plaintiff on this visit would be the primary drug used by the WBVAMC to treat him. Clonazepam is a habituating drug as well as a disinhibiting drug. A "disinhibiting drug" is one which "makes a person do things that they would not normally do." (Id. at 24). Nurse Lucas believed, incorrectly, that the WBVAMC supported the use of Clonazepam in PTSD patients. (Id. at 24) When he prescribed it, Nurse Lucas was aware that Food & Drug Administration ("FDA") directed that addiction-prone individuals should be under careful surveillance when taking Clonazepam. (Id. at 16).
The next contact plaintiff had with the WBVAMC was via the telephone. He telephoned the Mental Health Hygiene Clinic on May 17, 2007 and spoke with Jennifer E. Pierce, a Physician Assistant. Pierce had never seen or treated plaintiff prior to the call or afterwards. (Doc. 62, Undisputed Facts ¶ 41). Plaintiff reported that the Burproprion, which Lucas had prescribed for irritability and anger, made him feel very anxious like he wanted to put his head through a window. (Doc. 67, N.T. 9/12/12 at 19). During the call Pierce discontinued the Burproprion and prescribed Paxil (Paroxetene) instead. Pierce scheduled no follow up at that time. No supervising physician co-signed Pierce's note regarding the treatment of plaintiff. Nurse Lucas, however, did sign the note to acknowledge its receipt. (Doc. 62, Undisputed Facts ¶ 41).
Plaintiff's next contact with the WBVAMC was another telephone call. Plaintiff placed this call on May 31, 2007. (Doc. 77, Pl. Trial Ex. 1(a) at 33). He reported that the Paxil made him feel like he was "crawling out of his skin." He further complained about daytime anxiety. (Id.) Lucas discontinued the Paxil and doubled the dose of Clonazepam. (Doc. 54, N.T. 9/11/12 at 12). Nurse Lucas's supervising physician did not countersign his note regarding this interaction with plaintiff. (Doc. 77, Pl. Tr. Ex. 1(a) at 33). June 4, 2007
Plaintiff again telephoned the Mental Hygiene Clinic on June 4, 2007 at which time he spoke with Nurse Lucas. Lucas prescribed 0.5 mg Clonazepam twice a day until plaintiff's scheduled appointment on July 3, 2007. Nurse Lucas's supervising physician did not countersign his note regarding this interaction with plaintiff. (Doc. 62, Undisputed Facts ¶ 44).
Plaintiff called the Mental Hygiene Clinic on June 22, 2007 and spoke with Nurse Lucas. Lucas discontinued the daytime dose of Clonazepam. (Id. ¶ 47). Because Clonazepam is habituating, decreasing the drug dosage can cause withdrawal symptoms. (Doc. 57, N.T. 9/10/12 at 15). Plaintiff, however, did not receive any education or drug and alcohol counseling when this dosage of Clonazepam was halved on June 22, 2007. (Doc. 54, N.T. 9/11/12 at 149; Doc. 68, N.T. 9/13/12 at 94).
Around this time, plaintiff began to self-medicate with improperly obtained Vicoden, a painkiller. (Doc. 62, Undisputed Facts ¶ 48). He started by taking two Vicoden a day and by August was taking up to eight daily. (Id. ¶ 50). He did not report taking Vicoden to his healthcare providers at the VA, although he insists that they never asked him. (Id. at 51). Additionally, plaintiff's alcohol consumption had steadily increased from April to July. (Id. ¶ 30).
Plaintiff had an appointment with Nurse Lucas on July 3, 2007 for medication and symptom management. Lucas continued the Clonazepam and prescribed another medicine, Buspirone. Lucas's supervising physician signed Lucas's note of this visit. (Doc. 62, Undisputed Facts ¶ 54). Plaintiff reported to Lucas that "I really would like to work on the anger and irritability during the day, but I am unsure what approach to take." (Doc. 77, Pl. Ex. 1(a) at 36). Lucas's note of the appointment indicated that plaintiff "continues with some irritability and anger. The patient also has some intrusive thinking during the day." (Id.) Lucas did not, however, ensure that plaintiff had been to psychotherapy to which he had been referred.
Plaintiff telephoned the WBVAMC clinic again on July 16, 2007, and he spoke with Nurse Lucas. Plaintiff reported that he felt more irritable on the Buspirone medication. As a result, Nurse Lucas changed the medicines. He increased the dose of Clonazepam to 1.0 mg at the hour of sleep and 0.5 mg during the day. (Doc. 62, Undisputed Facts ¶ 55). Clonazapem does not treat the core symptoms of PTSD, however, it is the only medicine prescribed to plaintiff from July 16 through August 13, 2007. (Pl. Tr. Ex. 1(a), 33-35, 39-41; Doc. 57, N.T. 9/10/12 at 11, 15).
This telephone call was plaintiff's last contact with the WBVAMC during the relevant time frame. As of the date of the call, there was no treatment plan for plaintiff's PTSD. (Doc. 54, N.T. 9/11/12 at 113).
On July 18, 2007, Plaintiff Marisol Laskowski, telephoned Nurse Lucas at the WBVAMC. (Doc. 77, Pl. Ex. 1(a) at 41). Nurse Lucas noted that Marisol had concerns because plaintiff's irritability and anger had been escalating over the prior few weeks. (Doc. 62, Undisputed Facts ¶ 56) Marisol also reported that plaintiff was mixing alcohol with his medications. (Id.) Lucas suggested that Marisol encourage the plaintiff to come to the clinic as a "walk-in." (Id.) He also made a call to plaintiff's cellular telephone, but did not reach him. (Id.) This telephone call is the last "treatment" received by plaintiff at the WBVAMC that is relevant to this action.
Thus, plaintiff's contact with the WBVAMC during the relevant time frame can be summarized as follows:
On April 11, 2007, plaintiff screened positive for PTSD and was seen by PA Boroski who prescribed Trazadone for sleep. On April 20, 2007, plaintiff saw Dr. Santos for a compensation and pension evaluation. Dr. Santos diagnosed plaintiff with PTSD but did not treat him. Plaintiff visited Nurse Lucas on May 11, 2007 who confirmed the PTSD diagnosis and prescribed Clonazepam, a benzodiazepine, at .5 mg for sleep and Bruproprian at 100 mg in the morning for irritability and anger. Lucas also referred plaintiff to psychology for PTSD treatment. This referral was never acted on by the WBVAMC.
After a phone call from plaintiff, on May 17, 2007, PA Pierce discontinued the Bruproprian and prescribed Paxil. On May 31, 2007, during a phone call with the plaintiff, Lucas discontinued the Paxil and increased the dosage of Clonazepam. On June 4, 2007, plaintiff again telephoned Lucas. Lucas changed the dosage of Clonazepam. On June 22, 2007, after speaking with the plaintiff on the phone, Lucas again altered the Clonazepam prescription. Prior to this date, plaintiff had been taking a daytime and nighttime dose of the medicine. Lucas discontinued the daytime dose of Clonazepam on June 22.
Plaintiff had an in-person appointment with Nurse Lucas on July 3, 2007 where Lucas continued the prescription for Clonazepam and prescribed Buspirone. On July 16, 2007, plaintiff telephoned Lucas and indicated that the Buspirone made him more irritable. Lucas discontinued the Buspirone and again adjusted the dosage of the Clonazepam upward. That is all the contact plaintiff had with the healthcare providers during the relevant time frame.
In the early morning hours of August 13, 2007, plaintiff parked his car about six blocks away from the Family Pharmacy in Olyphant, Pennsylvania. (Doc. 62, Undisputed Facts, ¶ 63). Plaintiff was dressed in black and also had a black mask with him that he had made earlier. (Id. ¶ 64). He proceeded to the pharmacy, and threw a rock through its window. (Id. ¶ 63). He entered the pharmacy, grabbed some drugs, placed them in a backpack and exited the building. He made his way back to his car. (Id.) Later, the Olyphant Police Department arrested the plaintiff for burglary of the pharmacy and related crimes.*fn8 (Id. ¶ 65). Keystone Financial terminated plaintiff's employment after he was arrested. (Id. ¶ 71).
On the night of his arrest, the police learned that plaintiff was a combat veteran who was under treatment for PTSD. (Doc. 91-21, Tierney Aff. ¶ 6). The Olyphant Police Department contacted the Veterans Administration Mental Hygiene Clinic and spoke with Nurse Lucas. (Doc. 62, Undisputed Facts ¶ 66). The police requested inpatient treatment for plaintiff at the defendant's facility. The WBVAMC denied inpatient treatment. (Id. ¶ 66). Thus, the authorities incarcerated plaintiff in the Lackawanna County Prison. (Id. ¶ 70).
In August, plaintiff's stepmother spoke with Collelo-Minora, the social worker assigned to plaintiff's case who had previously done nothing but flag plaintiff as an OIF veteran. Plaintiff's stepmother asked if plaintiff could be transferred to the WBVAMC for inpatient care. Again the request was denied. (Id. ¶ 69). Collelo-Minora indicated that the prison system could provide appropriate mental healthcare. (Id.) The district attorney's office, however, agreed to a release plan that called for plaintiff's release from the prison and direct commitment to the PTSD clinic operated by the Veteran's Administration in Coatesville, Pennsylvania. (Doc. 91-21, Tierney Aff. ¶ 7). Finally, after spending forty-two days in jail, plaintiff was admitted into the Coatesville, Pennsylvania, Veterans Administration Medical Center, PTSD inpatient treatment program. (Doc. 62, Undisputed Facts ¶ 71).
Ultimately, the district attorney exercised its prosecutorial discretion to provide accelerated rehabilitative disposition ("ARD") to the plaintiff. (Doc. 91-21, Tierney Aff. ¶ 11). He completed the ARD on May 8, 2010, and the court dismissed all charges against him on October 7, 2011. (Id. ¶ 13). The arrest and charges were then expunged from the plaintiff's record. (Id. ¶ 14).
Currently, the Department of Veterans Affairs rates plaintiff as unemployable due to his PTSD. They intend to review this classification in 2014. (Doc. 62, Undisputed Facts ¶ 72). Likewise, the Social Security Administration treats plaintiff as 100% disabled and unable to perform any job in the American economy. (Id. ¶ 73).
Plaintiff subsequently instituted the instant medical malpractice action. The court held a seven-day non-jury trial beginning on September 10, 2012. The parties have filed their post-trial briefs and the matter is ripe for disposition.
As noted above, the main cause of action in this case is medical malpractice, and under the FTCA, we must apply Pennsylvania state law. Pennsylvania courts have defined medical malpractice "as the 'unwarranted departure from generally accepted standards of medical practice resulting in injury to a patient, including all liability-producing conduct arising from the rendition of professional medical services.'" Grossman v. Barke, 868 A.2d 561, 566 (Pa. Super. Ct. 2005) (citing Toogood v. Owen J. Rogal D.D.S., P.C., ...