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Highhouse v. United States

United States District Court, W.D. Pennsylvania

March 30, 2017



          Mark R. Hornak United States District Judge

         This civil action involves a claim by Plaintiff, Thede Mohr Highhouse, for money damages under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 - 2680.[1] Presently pending before the Court is Plaintiffs Motion to Increase the Ad Damnum Damages Amount in his Complaint (ECF No. 51). For the reasons set forth below, the motion will be granted.


         A. Background Medical Facts

         Plaintiff is a 61-year old male who resides in Erie County, Pennsylvania. In January 2011, Plaintiff suffered a wrist injury while skiing, for which he sought treatment at the Veterans Administration Medical Center ("VAMC") in Erie, Pennsylvania. He presented to the VAMC emergency room on January 22, 2011, at which time he underwent a closed reduction to restore a fracture in his left wrist. Because Plaintiff had also hit his head at the time of his skiing accident, medical staff ordered a CT scan of his head. The scan showed an apparent focal enlargement of the top of the basilar artery that was worrisome for a basilar tip aneurysm. (PL's Ex. L at 4, ECF No. 51-12; PL's Ex. Q at 4, ECF No. 51-17.)

         Plaintiffs primary health care provider at the VAMC, Lydia J. Maring, CRNP, ordered a follow-up MRI and MRA for further characterization. These studies, performed on February 4, 2011, showed a rather large basilar tip aneurysm and possible communicating artery aneurysm. (PL's Ex. L at 4; PL's Ex. Q at 4.) Plaintiff alleges that he was never informed of these abnormal findings, even during follow-up office visits on March 24 and October 20, 2011. (Compl. ¶¶ 16-19, ECF No. 1.)

         On January 24, 2012, Plaintiff presented to the VAMC for epigastric pain, and the attending physician ordered a CT scan of the head based on his clinical history of headaches. The findings were again worrisome for an aneurysm at the tip of the basilar artery. A comparison of the CT imaging from January 22, 2011 and January 24, 2012 showed that, in fact, the basilar tip aneurysm had grown in size and shape over the prior year. (PL's Ex. L at 7.) Plaintiff maintains that, once again, VAMC medical staff failed to inform him of the abnormal test results and took no action to prevent hemorrhaging or further aneurysm growth. (Compl. ¶¶ 25, 36.)

         On January 30, 2012, Plaintiff presented to the VAMC emergency room after experiencing headaches, photosensitivity, nausea and vomiting. A CT of his head revealed an acute subarachnoid hemorrhage related to the basilar tip aneurysm. (PL's Ex. L at 7-8; PL's Ex. Q at 4.) Plaintiff was transported to Saint Vincent Health Center in Erie, where Charles Romero, M.D. performed a coil embolization of the ruptured aneurysm. (PL's Ex. L at 9; PL's Ex. Q at 4.) While hospitalized, Plaintiff experienced atrial flutter and fibrillation, cerebral salt wasting syndrome, and acute urinary retention. Following treatment, he was discharged on February 9, 2012. (CompL ¶27; PL's Ex. L at 10-13; PL's Ex. Q at 4.)

         Over the next two months, Plaintiff was seen at the VAMC by medical staff, along with social work, speech therapy, and behavioral health professionals, to address a variety of health-related issues. (PL's Ex. Q at 4-5.) On February 28, 2012 Plaintiff was seen at the VAMC Urology Clinic for difficulty voiding and was instructed on an intermittent catheterization program. (PL's Ex L at 16.) He was examined on March 2, 2012 at the Neurology Clinic regarding his headaches. (Id. at 17.) Five days later he saw an audiologist, who noted moderately severe sensorineural hearing loss bilaterally, consistent with a longstanding high frequency hearing loss. (Id.) Plaintiff was also examined by a speech pathologist for complaints of slurred speech, inability to form sentences, and memory impairment. (Id.) The pathologist administered the intermediate portion of the Ross Information Processing Assessment, which indicated that Plaintiff had a mild-to-moderate impairment. (Id. at 18.) On March 16, 2012, Plaintiff was seen in the Behavior Health Clinic and was diagnosed with Major Depressive Episode and Anxiety Disorder, to be managed medically and with individual and group therapy. (Id.) Plaintiff was then seen on March 22, 2012 by a psychiatrist, who assessed mood disorder, anxiety disorder, and cognitive disorder. (Id. at 19.) Plaintiffs mental status examination at that time revealed a mild cognitive impairment, including impaired short-term memory. His Global Assessment of Functioning ("GAF") was 65. (Id.)

         On April 17, 2012, Plaintiff was admitted to Saint Vincent Health Center for treatment of his anterior communicating artery aneurysm. (PL's Ex. L at 20.) Dr. Romero performed a stent-assisted coil embolization of the intracranial aneurysm and discharged Plaintiff two days later. (Id.)

         In August 2012, Plaintiff again saw Dr. Romero and reported worsening headaches preceded by nausea and occasional vomiting. (Id. at 22.) Plaintiff was also experiencing left lower quadrant visual obscuration and a kaleidoscope or prism pattern of visual disturbance with associated photophobia and phonophobia and occasional lightheadedness. Dr. Romero noted that Plaintiffs symptoms were consistent with migraines. He prescribed Fioricet and ordered a brain MR angiographic study, which was performed on September 9, 2012. (Id.) The MRA showed some irregularity of the basilar tip aneurysm, which could have been residual aneurysmal lumen. There was no abnormality noted with respect to the coiled anterior communicating artery aneurysm. (Id. at 22-23.)

         On March 11, 2013, Plaintiff was seen by Michael Orinick, III, M.D., for a physical medicine rehabilitation consultation. (Def.'s Ex. G, ECF No. 55-7 at 6.) At that time, Plaintiff continued to report headaches and a "kaleidoscope" effect with his vision. Approximately one week prior to the office visit, he had experienced his first syncopal episode. (Id., at 7.) Plaintiff reported a number of "severe" symptoms to Dr. Ornick, including severe dizziness, loss of balance, vision and hearing problems, sensitivity to noise, anxiousness and distractibility. (Id. at 7-8.) Plaintiff also reported "very severe" forgetfulness, indecision, sleep problems, depression, irritability, and frustration. (Id.) Dr. Ornick diagnosed status post aneurysm bleed/subarachnoid hemorrhage, with coiling procedure and residual neurological problems. He referred Plaintiff for auditory and visual testing and speech therapy to evaluate for post-concussive residuals of memory problems and various other cognitive issues. (Id., at 10.)

         Due to his worsening headaches, Plaintiff underwent additional testing on March 19, 2013. (Def.'s Ex. C, ECF No. 55-3 at 2.) MRI and MRA studies showed evidence of recanalization of the previously treated basilar tip aneurysm, but no recanalization of the anterior circulation aneurysm. (Id.) A cervical spine MRI showed degenerative cervical spondylosis with moderate foraminal changes at ¶ 3-C4, C5-C6, and C6-C7. (PL's Ex. L at 27-28.) The spinal cord appeared normal. (Id. at 28.)

         On April 2, 2013, Plaintiff met with Dr. Romero to discuss his most recent brain studies. (Def.'s Ex. C, ECF No. 55-3 at 2.) At the time of his visit, Plaintiff reported that he was experiencing anxiety, depression and headaches 2 to 3 times per week. (Id. at 3.) Treatment notes reflect that Plaintiffs recanalized aneurysm measured approximately 13 x 12 x 11 millimeters. (Id. at 4.) Dr. Romero observed that, according to a published report, "large aneurysms between 11 and 25 mm have a 44% recurrence if incompletely coiled" and a 30 percent recurrence when completely coiled, and basilar tip aneurysms "notoriously have the highest likel[ihood] of recurrence as do aneurysms with increasing size." (Id.) Although Dr. Romero did not feel Plaintiff was at immediate risk of a rupture, he nevertheless felt that treatment was warranted, given the changes in Plaintiffs aneurysm that were compatible with recanalization. (Id.) During his consultation, Dr. Romero spent more than 15 minutes with Plaintiff discussing the findings, their implications, Plaintiffs options, and coordination of Plaintiffs care. (Id.)

         On April 30, 2013, Plaintiff filed an application with the Social Security Administration for disability insurance benefits. In his application form, Plaintiff claimed that he had become disabled as of January 30, 2012 due to his brain aneurysm and a resulting loss of concentration and memory (both short term and long term), ambulatory problems, "balance [and] vision issues, " migraine headaches, and depression. (Def.'s Ex. E, ECF No. 55-5 at 2.)

         The following day, he filed his administrative claim under the FTCA, seeking damages for injuries sustained as a result of the ruptured basilar tip aneurysm. (PL's Ex. A, ECF No. 51-1.) Plaintiffs claim included a request for $2 million in damages.

         Thereafter, on May 9, 2013, Plaintiff underwent treatment to address the recanalized basilar tip aneurysm. The retreatment was more extensive than anticipated, requiring Dr. Romero to place 13 additional coils in Plaintiffs brain, in addition to a permanent endo vascular stenting device. (PL's Ex. C, ECF No. 51-3.) In the course of the treatment, one of the coils became displaced and was permanently lost in Plaintiffs brain. (Id.)

         After initially being discharged for this procedure, Plaintiff was readmitted to the hospital for complaints of abdominal pain and an elevated bilirubin level. (PL's Ex. D, ECF No. 51-4.) He was treated for a moderate-sized right retroperitoneal hemorrhage related to post-procedural bleeding and was discharged on May 18, 2013. (Id; PL's Ex. D, ECF No. 51-5.)

         On June 4, 2013, Plaintiff was seen again by Dr. Orinick at the VAMC's traumatic brain injury clinic. (Def.'s Ex. G, ECF No. 55-7.) At that time, Plaintiff reported that his memory had deteriorated since his recent surgery, and he was having more difficulty focusing his vision in the mornings. (Id. at 2.) Many of his formerly severe symptoms were now moderate; however, he reported severe changes in his sense of taste and smell, severe increase of appetite, severe distractibility, very severe difficulty making decisions and a poor tolerance for frustration. (Id. at 3.)

         In August 2013, Plaintiff underwent a disability examination by Glenn Bailey, Ph.D. (PL's Ex. G, ECF No. 51-7.) Dr. Bailey diagnosed adjustment disorder, cognitive disorder, balance issues, difficulties with memory and concentration, vision and hearing problems, and cluster headaches. He assigned a GAF of 55. (Id.) Plaintiff was ultimately awarded permanent disability benefits, retroactive to the onset date of January 30, 2012, as the result of "intracranial injury" and related "affective/mood disorders." (PL's Ex. F, ECF No. 51-6.)

         In the meantime, Plaintiff had made an attempt after his May 9, 2013 coil embolization treatment to return to his volunteer duties as a "Structural Firefighter, Vehicle Rescue Technician." On September 6, 2013, while firefighting, Plaintiff passed out and was treated at the emergency room. (PL's Ex. L, ECF No. 51-12; PL's Ex. U, ECF No. 51-21.) Following this episode, Plaintiffs firefighting duties were restricted based on the fire chiefs conclusion that Plaintiff would be unable to endure the physical stress that his former position had entailed. (PL's Ex. H, ECF No. 51-8.)

         On October 31, 2013, Plaintiff was again seen by Dr. Romero. (Def.'s Ex C, ECF No. 55-3 at 5-7.) At that time, Plaintiff was stable, with no new complaints. He was not experiencing headaches, unilateral numbness, weakness, coordination, or speech disturbance, but he continued to evidence baseline memory problems dating from the previous rupture of his basilar tip aneurysm. (Id. at 6.) Dr. Romero reviewed the results of Plaintiffs most recent MRA, which showed a small compartment suggestive of a second recanalization of the previously treated basilar tip aneurysm. (Id. at 5.) Dr. Romero spent more than 30 minutes counseling Plaintiff about the implications of the study as well as the risks and benefits of various treatment options. (Id., at 7.)

         On Dr. Romero's recommendation, Plaintiff underwent a catheterization procedure on December 16, 2013 to obtain a more current angiographic view of his aneurysm and compare it to Plaintiffs postoperative images from May 2013. (Id; PL's Ex. I, ECF No. 51-9 at 5-6.) The imaging confirmed evidence of recanalization relative to the basilar tip aneurysm, but there was no evidence of growth or recanalization of the aneurysm at the anterior communicating artery complex. (PL's Ex. I, ECF No. 51-9 at 5-6.)

         Consequently, Plaintiff underwent a third procedure on January 21, 2014 to address the recanalization of his basilar artery tip aneurysm. (PL's Ex. J, ECF No. 51-10.) This time, the procedure was performed without incident, and Plaintiff was discharged two days later. (Id.)

         Plaintiff continued to follow-up with Dr. Romero periodically throughout the rest of 2014. On April 2, 2014, Dr. Romero ordered an occipital nerve block at the VAMC for treatment of Plaintiff s headaches. (PL's Ex. L at 39.) In a September 4, 2014 visit, Dr. Romero diagnosed attention and concentration deficits and noted Plaintiffs complaints of worsening concentration. (Id.) Dr. Romero also documented Plaintiffs continued reports of headaches, dizziness, lightheadedness, disturbances in coordination, confusion, loss of balance, disorientation, and memory loss. (Id.) In October 2014, additional brain studies were performed. An October 21, 2014 MRI showed no acute infarct or hemorrhage, but some cerebral atrophy was present. (Id.) An October 29 MRA showed no evidence of aneurysm recanalization. (Id. at 40.)

         On January 26, 2015, Plaintiff underwent an interval surveillance catheter cerebral angiographic study, which again showed no evidence of regrowth or recanalization of the basilar tip aneurysm. (PL's Ex. K, ECF No. 51-11.) Plaintiffs plan at that point was to continue visits with his primary care physician at the VA Hospital every three to four months. In addition, Dr. Romero agreed to see Plaintiff every 3 to 6 months and as needed, with yearly angiographic assessments being performed to monitor Plaintiffs cerebral circulation. (PL's Ex. K; PL's Ex. L at 58.)[2]

         B. Procedural Background and Additional Medical Evidence

         1. Plaintiffs Administrative Claim

         As noted, Plaintiff filed an administrative claim on May 1, 2013, asserting numerous injuries as a result of his ruptured basilar tip aneurysm. (PL's Ex. A, ECF No. 51-1.) In "Block 10" of his claim form, Plaintiff alleged that:

Injuries include, but are not limited to, growth in size of basilar tip aneurysm, ruptured basilar tip aneurysm, extensive subarachnoid hemorrhage as a result of the ruptured basilar tip aneurysm, nausea, vomiting, GI upset, weakness, fever, cerebral salt-wasting syndrome, hyponatremia requiring salt supplementation, atrial fibrillation, atrial flutter, heart injury and problems, massive thunderclap quality headaches, numbness in both legs, burning eyes, dizziness, vertigo, short term memory loss, hearing loss, ringing and noise in ears., vision loss, double vision, lower quadrant visual obscuration, blurriness with kaleidoscope or prism patterns of disturbance, ocular migraines with temporal swelling, loss of coordination, weakness in hands, knees and legs, loss of bladder control, acute urinary retention, back pain, back spasms, neck pain, anxiety, depression, trouble walking, necessity to use a cane as an assistive device, inability to work due to memory loss and dizziness after the rupture of his aneurysm, untreated aneurysm at the anterior communicating artery complex level, which required separate treatment with separate surgery and convalescence in the face of a previous coil embolization, residual aneurysm lumen, recurrence and recanalization of basilar tip aneurysm, increased risk for recanalization of the basilar tip aneurysm due to its rupture, increased risk for recanalization of the anterior communicating artery, arm numbness and discomfort, severe insomnia, severe emotional distress, and all ...

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