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Delgado v. United States

United States District Court, E.D. Pennsylvania

March 16, 2017



          KEARNEY, J.

         A United States Army veteran challenging the Veteran Affairs' surgery decisions resulting in removing his rectal and later liver cancer over a staged protocol and thus allowing him to live for over five years cancer free must show the surgeon's specific breach of a standard of care in this surgical protocol caused him injury. We find the veteran did not adduce evidence of his surgeons breaching a defined standard of care. After evaluating the credibility of testimony adduced from the veteran, his multiple treating physicians and competent experts, we find in favor of the Defendant and enter judgment in its favor in the accompanying Order.

         I. Findings of fact following trial.

         1. Raul Delgado entered the United States Army in or around August 1966, served as a supply sergeant in Vietnam, and the Army honorably discharged him in or around August 1968.

         2. Mr. Delgado used the Veterans Affairs Medical Center ("VA") in Philadelphia as his main health care provider.

         3. In November 2007, Mr. Delgado had a colonoscopy at the VA which showed a polyp in his rectum.

         4. The VA doctors scheduled Mr. Delgado for an appointment at the Hospital of the University of Pennsylvania ("HUP") for a lower endosopic ultrasound. The ultrasound would help doctors determine if the polyp had invasive malignancy.

         5. Mr. Delgado did not attend his scheduled HUP appointments and did not have a lower endosopic ultrasound.

         6. In March 2010, Mr. Delgado suffered a heart attack and doctors at Hahnemann University Hospital performed heart surgery.

         7. Mr. Delgado developed bowel problems during his stay at Hahnemann problems. Doctors performed a colonoscopy and saw a huge rectal mass and one small polyp. The doctors removed the polyp and contacted the VA to alert them Mr. Delgado required follow-up care.

         8. On December 9, 2010, Mr. Delgado underwent a colonoscopy at the VA.

         9. Dr. John Lieb, the VA's attending gastroenterologist, evaluated Mr. Delgado during the colonoscopy and testified credibly he believed Mr. Delgado's mass to be a large adenoma rather than cancer.

         10. On December 10, 2010, Dr. Lieb met with Mr. Delgado and described two courses of treatment for the large adenoma: remove the mass by surgery, where a colorectal surgeon would remove part of the colon and/or rectum; or remove a large portion of the mass through a non-surgery endoscopic mucosal resection ("EMR").

         11. Dr. Lieb credibly testified he had an "extensive discussion" to explain the risks and benefits of both options to Mr. Delgado.

         12. Mr. Delgado elected to pursue EMR with Dr. Lieb and declined Dr. Lieb's offer to consult with a surgeon before deciding.

         13. On December 20, 2010, Dr. Lieb performed an EMR on Mr. Delgado.

         14. Dr. Lieb credibly testified he did expect Mr. Delgado's rectal mass to be cancer but during the procedure discovered a differently shaped mass than he expected. Dr. Lieb then realized Mr. Delgado's rectal mass was likely cancerous.

         15. Dr. Lieb removed 80% of Mr. Delgado's rectal mass including all of the likely cancerous parts. He did not remove the entire mass because he feared he might perforate Mr. Delgado's rectum or cause a bleed in the process.

         16. On December 21, 2010, Mr. Delgado underwent a full body PET-CT scan at the VA.

         17. The VA biopsied Mr. Delgado's rectal mass and diagnosed it as an adenocarcinoma, a malignant rectal tumor.

         18. The VA's tumor board determined Mr. Delgado should undergo neoadjuvant chemotherapy and radiation therapy ("chemoradiation") before he would undergo surgical resection of the tumor.

         19. Dr. Keerthi Gogineni, a VA oncologist, treated Mr. Delgado during his neoadjuvant chemotherapy and radiation therapy.

         20. Mr. Delgado began chemoradiation with Dr. Gogineni on February 10, 2011.

         21. Dr. Gogineni testified Mr. Delgado attended all chemotherapy appointments with her through February, March, and April but she is aware he missed appointments and had to make up some radiation appointments.

         22. On April 7, 2011, Mr. Delgado completed his last radiation appointment and his prescribed neo-adjuvant chemoradiation.

         23. On May 11, 2011, Mr. Delgado had a PET-CT scan to determine if he was ready for post-chemoradiation surgery.

         24. On May 24, 2011, Mr. Delgado went to the VA's surgical oncology department for a surgical consult.

         25. Dr. Schnelldorfer, a surgical oncologist, and Sandra L. Hayes, a nurse practioner, evaluated Mr. Delgado and informed him the PET-CT scan showed a possible lesion on Mr. Delgado's liver. Dr. Schnelldorfer and Ms. Hayes told him them would do more tests.

         26. The VA did not have a colorectal surgeon on staff at the time. Ms. Hayes completed and submitted for approval the necessary paperwork for Mr. Delgado to see a non-VA colorectal surgeon.

         27. In early June, Mr. Delgado underwent a CAT scan and ultrasound of his possible liver lesion. Ms. Hayes credibly testified they were unable to see any liver lesion on the CAT scan or ultrasound.

         28. Ms. Hayes credibly testified the VA adopted a wait and see approach with Mr. Delgado's possible liver lesion.

         29. On June 9, 2011, Dr. Lieb performed an endoscopic ultrasound (EUS) and a flexible sigmoidoscopy procedure to evaluate Mr. Delgado's colorectal cancer treatment. Dr. Lieb did not see any evidence of cancer remaining in the rectum.

         30. On June 16, 2011, Mr. Delgado saw Dr. Gogineni. Dr. Gogineni noted 9 weeks had passed since Mr. Delgado completed neo-adjuvant chemoradiation and he needed to see a colorectal surgeon.

         31. On July 7, 2011, Mr. Delgado reported to the VA Emergency Department and the VA admitted him for treatment.

         32. On July 11, 2011, medical student Sunny J. Haft noted in Mr. Delgado's records that the surgical oncology unit was still waiting for approval to schedule Mr. Delgado's non-VA surgical consult at HUP.

         33. Later that day, Rodina Bryant, a VA scheduler, received approval for Mr. Delgado to see a HUP colorectal surgeon.

         34. Ms. Bryant scheduled Mr. Delgado for an appointment with a HUP colorectal surgeon, Dr. Mahmoud, on July 14, 2011 at 10 A.M.

         35. Mr. Delgado did not appear on July 14, 2011 at 10 A.M.

         36. The parties dispute whether Mr. Delgado purposely cancelled the appointment.

         37. We find Mr. Delgado called HUP the morning of July 14, 2011 and canceled his appointment with Dr. Mahmoud.

         38. Later on July 14, 2011, Ms. Bryant credibly testified Mr. Delgado came to see her at the VA and she rescheduled his appointment with Dr. Mahmoud for August 15, 2011. Ms. Bryant also credibly testified she explained to Mr. Delgado he needed to stop by at the Department of Records and sign a release to have his records sent to Dr. Mahmoud.

         39. On July 21, 2011, Mr. Delgado again saw Dr. Gogineni.

         40. On August 15, 2011, Mr. Delgado went to his appointment with Dr. Mahmoud at HUP. Dr. Mahmoud did not then have Mr. Delgado's medical records from the VA and she could not examine Mr. Delgado or schedule him for surgery.

         41. Unrelated to Mr. Delgado's case but to his benefit, the VA hired a colorectal surgeon, Dr. Emily Paulson, MD, to serve VA patients. She began work on August 15, 2011.

         42. On August 25, 2011, Dr. Gogineni reported another visit with Mr. Delgado and stated Mr. Delgado had attended an appointment at the HUP, but the VA failed to provide HUP with the Mr. Delgado's medical records.

         43. On August 30, 2011, Ms. Hayes saw Mr. Delgado for a follow up visit to prepare Mr. Delgado for colorectal surgery.

         44. Dr. Paulson scheduled Mr. Delgado for colorectal surgery on ...

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