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Neupauer v. United States

United States District Court, M.D. Pennsylvania

December 11, 2017

GARY NEUPAUER, JR. and JEAN NEUPAUER, his wife, Plaintiffs
v.
UNITED STATES OF AMERICA, DEPARTMENT OF VETERAN AFFAIRS, et al., Defendants

          MEMORANDUM OPINION

          ROBERT D. MARIANI UNITED STATES DISTRICT JUDGE.

         I. Introduction

         The plaintiffs in this case, Gary Neupauer, Jr. and Jean Neupauer, are adult citizens of the Commonwealth of Pennsylvania who brought suit pursuant to the Federal Tort Claims Act (“FTCA”) 28 U.S.C. § 1346 and §§ 2671-2680.

         Plaintiff, Gary Neupauer, is a veteran of the United States Marine Corps from 1969 to 1971 when he was honorably discharged with a rank of lance corporal. He served in Vietnam and received the National Defense Ribbon, the Vietnam Service Medal, the Vietnam Campaign Medal, the Presidential Unit Citation, the Combat Action Medal, the Good Conduct Medal and two Sharp Shooter Badges. (Trial Tr., May 16, 2017, at 57).

         Plaintiff, Gary Neupauer, worked for 40 years for a company called Penn Refrigeration and his employment ended only when the company closed in 2012. He was employed there as a shearer operator (Id. at 58-59).

         Prior to initiating this suit, Plaintiffs' counsel submitted to the Department of Veterans Affairs a completed Standard Form 95 as prescribed by the Department of Justice pursuant to 28 C.F.R. § 14.2. Plaintiff Gary Neupauer received written responses from the U.S. Department of Veterans Affairs Office of Regional Counsel Region IV, Stephen M. Panides, Staff Counsel for the Department of Veterans Affairs (Complaint, Doc. 1, at ¶ 1; Answer, Doc. 18, at ¶ 1). The Plaintiff has a history of peripheral vascular disease (“PVD”). Dr. Ralph W. DeNatale, a Board certified vascular surgeon, who was accepted as an expert in the field of vascular surgery, (Trial Tr., May 16, 2017, at 8:22-23), defined peripheral vascular disease as “pertain[ing] to the adequacy or the inadequacy of circulation that supplies the leg. Could be to the thigh, to the knee, to the calf, to the foot.” (Id. at 10:1-5)

         Dr. DeNatale also defined the term “critical limb ischemia”, as “usually mean[ing] that the circulation to that extremity is at a dangerously low level, to the point where the limb is threatened to the point of actually losing the limb.” (Id. at 10:11-14).

         Gary Neupauer has peripheral vascular disease and that disease progressed to critical limb ischemia. It is the manner in which doctors employed by the United States, Department of Veterans Affairs at the VA Hospital in Wilkes-Barre, Pennsylvania treated Gary Neupauer's condition that led to this lawsuit. The United States has admitted in its Answer to Plaintiffs' Complaint that “for all times material to the Complaint, Marie J. Adajar, M.D., was considered to be a VA employee for purposes of the Federal Tort Claims Act 28 U.S.C. §§ 2675 and 2679.” (Doc. 18, at ¶ 3). Likewise, the United States has admitted that “for all times material to the Complaint Mohammad A. Shaikh, M.D., was considered to be a VA employee for purposes of the Federal Tort Claims Act . . .” (Id. at ¶ 4). These two physicians, Dr. Adajar and Dr. Shaikh, are the principal actors on behalf of the United States whose actions are at issue in this case. From the outset, the United States has acknowledged that it agrees with the plaintiffs' expert Dr. DeNatale, that Drs. Adajar and Shaikh and by extension, the United States, breached the standard of care that was owed to Gary Neupauer in the manner in which he was treated and that as a result of that breach in the standard of care he suffered tissue loss and amputation. Specifically, at the outset of trial, counsel for the United States made the following statement:

One, that we were, at that time, and continuing to try to prove that there's comparative negligence here, that the Plaintiff continued to smoke all these years against medical advice, and it's against that medical advice that he, himself, was also partially responsible for his peripheral vascular disease.
With that said, we hired an expert, that expert is going to be here to testify tomorrow, that expert agreed with their expert. And if you look back at the transcripts that were taken in October and November, what we admitted to, aside from the email, what we admitted to was that we agreed with Plaintiff's expert Dr. DeNatale.
Dr. DeNatale said that, on October 11, when Plaintiff presented to Dr. Adajar, who is on the stand now, he presented with rest pain. That rest pain required an MRA to be done on October 11. Failure to do the MRA on October 11 was breaching the standard of care, we agreed with that.
We also agreed with their expert, and, again, this is in the transcript from our conference, that the failure to do surgery within 24 hours was also a breach in the standard of care. As a result of the breach in the standard of care, he suffered tissue loss and amputation.
Now, we have never said that we were the sole cause, at any point in time, of his injuries. We have always maintained that he is also partially responsible for those injuries and his resulting pain.

(Trial Tr., May 15, 2017, at 5:2-25; 6:1-2).

         The above statement from counsel for the United States was followed by the admission into evidence of Plaintiffs' Exhibit 19, an email from counsel for the United States to Plaintiffs' counsel wherein Government counsel stated:

The Government is stipulating to liability - That is, its negligence caused the Plaintiff to have his 2 toes amputated. Plain and simple - what are his damages as a result. From our point of view a question remains as to whether he is disabled as a result of the underlying peripheral neuropathy or the loss of his toes, and, whether the pain and suffering he is presently enduring is from the underlying peripheral neuropathy or the loss of his toes. We did not cause the peripheral neuropathy, that goes back to 2004. We are responsible for damages that stem from our negligence only - which resulted in the loss of two toes.

(Pls. Ex. 19).

         With the issues in this case having been framed by the acknowledgment by the Government of a breach of medical care owed to Gary Neupauer by the physicians acting within the scope of their employment at the VA Hospital, this Court held a non-jury trial on May 15, 16, and 17, 2017. The Plaintiffs presented the testimony of Dr. Adajar, Dr. Shaikh, the Plaintiff, Gary Neupauer, Mr. Neupauer's spouse, Jean Neupauer, the testimony of the Plaintiffs' son, Gary Neupauer, the testimony of its vascular surgeon expert, Dr. Ralph W. DeNatale, the testimony of Richard Fischbein, M.D., Albert Janerich, M.D., and the testimony of vocational rehabilitation expert, Patricia Chilleri.

         The United States presented the testimony of expert witness, Alexander Uribe.

         Based upon the testimony of all of the witnesses and the exhibits entered into evidence, the Court finds that the Plaintiffs have proven all the elements of their claims for medical negligence and that such negligence was a factual cause of the amputation of two toes and tissue loss on Gary Neupauer's left foot and the causally related non-economic losses, past and future economic loss, pain and suffering, embarrassment and humiliation, loss of ability to enjoy pleasure of life, and disfigurement.

         The Court finds that the negligence of the United States is the only factual cause of Gary Neupauer's injuries and accordingly assesses 100% of the negligence found to have occurred in the treatment of Mr. Neupauer to the United States.

         The Court further finds that the Plaintiffs are entitled to damages in accordance with the findings set forth in this Opinion in the amount of $796, 644.00. Judgment will accordingly be entered in favor of Plaintiffs and against the United States in the amount of $796, 644.00.

         II. Findings of Fact

         1. Marie Juliet B. Adajar (hereinafter “Dr. Adajar”) is a physician who is Board certified in internal medicine (Trial Tr., May 15, 2017, at 11:1-6).

         2. Dr. Adajar described an internist as follows:

Well, the internist is the gateway to medicine. The patient presents to us with chief complaints, we sort of, like, track the complaints of the patient, and then refer them accordingly to reach every specialty where they would be served best.

(Id. at 11:11-15).

         3. Dr. Adajar described peripheral vascular disease as “a hardening of the arteries that can proceed to occlusion, if left unattended. Several factors can contribute to it. Age, because of the natural process of arthrosclerosis, [sic] which is hardening of the arteries, and of course, substances, lifestyle behavior that would accelerate the progression of this illness. Number one would be smoking.” (Id. at 11:21-25; 12:1-2).

         4. Dr. Adajar practiced at the Veterans Administration Hospital in Wilkes-Barre, Pennsylvania and was an employee of the United States Government at all times relevant to this case. (Joint Case Management Plan, Doc. 24, at § 1.20)

         5. At all times relevant to this case, Dr. Adajar was an employee, agent and servant of the defendant, United States of America and acting within the scope of her relationship with the defendant with respect to the treatment and care provided to plaintiff, Gary Neupauer. (See Notice of Substitution, Doc. 27).

         6. While employed as a physician at the Veterans Administration Hospital, Dr. Adajar began treating Gary Neupauer as an attending physician in 2004. (Trial Tr., May 15, 2017, at 18: 7-8).

         7. At that time, Dr. Adajar was fully aware that Gary Neupauer had had an angioplasty at Mercy Hospital, having reviewed the progress note made by Dr. Alexis, another VA physician. (Id. at 16:25; 17:1-6; 18:20-22).

         8. Dr. Adajar took over the treatment of Gary Neupauer from Dr. Alexis. (Id. at 17:9-14).

         9. After the angioplasty in 2004, Dr. Adajar's records reflected that Gary Neupauer no longer had any claudication when he walks, no cold feet, no color changes in his feet, and suffered no amputation. (Id. at 18:23-25; 19:1-7).

         10. As of 2004, Dr. Adajar knew that Gary Neupauer had “a problem with his cholesterol”, which was “complicated because or caused by his smoking” and that his family history gave him a risk of peripheral vascular disease in that his father “had a problem with his veins and had died of a heart attack” at an early age. (Id. at 19:23-25; 20:1-24).

         11. Gary Neupauer was “strongly advised” to quit smoking. (Id. at 19:13-14).

         12. Gary Neupauer was “strongly advised about quitting smoking” and, over the course of time, Dr. Adajar counseled Gary Neupauer about stopping smoking. (Trial Tr., May 15, 2017, at 19:13-14; 20:25; 21:1-3).

         13. Gary Neupauer made an effort to try to stop smoking. (Id. at 21:4-25; 22:1-15).

         14. From 2005 onward, all the way to 2013, Dr. Adajar saw Gary Neupauer as his primary care physician and did so continuously. (Id. at 23:13-16).

         15. Dr. Adajar testified:

Q: The point I was getting to is, you had been Gary's primary care physician, you were fully aware with all of his medical problems and you had seen him on an annual basis from 2005 all the way up to 2013; correct?
A: Correct, sir.

(Id. at 27:8-12).

         16. On October 1, 2013, Gary Neupauer called Dr. Adajar and they spoke. (Id. at 39:21-23).

         17. Dr. Adajar spoke with Gary Neupauer for 15 minutes. She testified with respect to that conversation:

Q: What did he tell you?
A: He told me that he was having a feeling of being cold on his left foot, and that he had progressive claudication over less than a block, and that he continues to smoke. He is getting anxious and would like to have some tests done.
Q: He actually told you that, for the past two weeks, he noticed the cold feel to his left foot; correct?
A. Yes, sir.
Q: And progressive claudication, so the Judge understands, what does that mean?
A: Claudication, sir, is a pain in your lower extremities that you experience when you walk or do anything strenuous.
Q: So based on the symptoms that Mr. Neupauer told you he was having during that phone call, his arteries were narrowing, is that correct? A: It would be fair to assume, sir.
Q: And it was progressive; correct?
A: That's what I put in my notes, sir.

(Id. at 40:19-25; 41:1-10).

         18. Because Gary Neupauer already had established peripheral vascular disease, and had procedures done to correct his peripheral vascular disease, but continued to smoke, and presented with claudication, Dr. Adajar noted as her “number one diagnosis” peripheral vascular disease. (Id. at 41:16-21).

         19. As a result of her telephone conversation with Gary Neupauer on October 1, 2013, wherein he related feeling a coldness of his left foot, progressive claudication on walking less than a block, and that he was having “rest pain”, Dr. Adajar knew something had to be done right away:

Q: But regardless of that, you knew something had to be done right away, would that be correct?
A: Yes, sir.

(Trial Tr., May 15, 2017, at 42:23-25).

         20. Dr. Adajar testified that she knew something had to be done right away because she knew of the danger to Gary Neupauer if he had another blockage like that which he had in 2004, which could place him at risk for the loss of his toes, foot, leg, or his life. (Id. at 43:1-8).

         21. Dr. Adajar, after speaking with Gary Neupauer, ordered arterial and venous studies. (Id. at 43:9-14).

         22. Dr. Adajar explained that the arterial studies “which study the arteries as they supply blood to the extremities and the venous system would be to rule out if there are any clots happening.” (Id. at 43:16-18).

         23. The studies were performed on October 4, 2013. (Id. at 44:1-3).

         24. In addition, Dr. Adajar ordered a study on October 8, 2013 for “pre-op”. She testified that she ordered the chest x-ray pre-op, “just in case they need it, they will have it.” (Id. at 44: 23-25; 45:7-9).

         25. Gary Neupauer had blood drawn at the VA on October 1, 2013 (Trial Tr., May 15, 2017, at 47:23-25).

         26. An ultrasound was scheduled for October 4 for Gary Neupauer and a chest x-ray on October 8, 2013. (Id. at 48:22-25; 49:1-4).

         27. At the time these appointments were scheduled, Dr. Adajar knew that Gary Neupauer was still smoking, she had discontinued his cholesterol medication, and he was having progressive claudication. (Id. at 49:20-25; 50:1-3).

         28. The arterial studies performed on October 4, 2013 showed there was a decreased blood flow to Gary Neupauer's left leg. (Id. at 51: 2-6).

         29. Based on the result of the arterial study, Dr. Adajar testified:

Q: Based on the result of that arterial study, Gary needed to come in, as I think you defined it, ASAP; correct?
A: Yes, sir.
Q: And as you define ASAP, that is as soon as possible, is that correct?
A: Yes, sir.
Q: And by ASAP, you mean now; correct?
A: Or next available, sir.

(Id. at 51:4-14).

         30. Dr. Adajar was presented with her deposition testimony (Pls. Ex. 10, at 18:21-23) where her testimony was as follows:

Q: What does ASAP mean to you?
A: The way it is meant to the whole world. As soon as possible, that means now.

(Trial Tr., May 15, 2017, at 51:15-19).

         31. At trial, Dr. Adajar testified further as to how she acted “ASAP”:

Q: That was your sworn testimony back in December 2016, is that correct?
A: Yes, sir, but I would like to clarify. Now, here, means do something now, it doesn't necessary mean operate now, it means I have to act on the issue at hand now.
And the way I acted on the ASAP was to call the vascular surgeon now, which I did. On October 11, when Gary presented to me, I called Dr. Shaikh, and he came into the room right away.

(Id. at 51: 22-25; 52:1-4).

         32. From October 4, 2013, through October 11, 2013, Dr. Adajar did not telephone Gary Neupauer and tell him to come to the hospital right away. Instead, she testified that she “did tell Mr. Neupauer in my note, if signs and systems persist to call E.R.” (Id. at 53:6-11).

         33. Although the results of the October 4, 2013, test performed on Gary Neupauer showed a decreased blood flow to his left leg, Dr. Adajar did not change Mr. Neupauer's scheduled October 11 appointment date, which had been scheduled on October 1, to an earlier date. (Id. at 54:7-12).

         34. Dr. Adajar testified with respect to the absence of any change in the October 11 Dated:

There was no reason for me to change it, sir. Because an earlier instruction was already given to the patient to contact me or to report to the E.R., if his signs and symptoms progress. So unless he calls me or if he reported to the E.R., there was no way for me to know if there was a change or a progression of his original complaints on October 1.

(Id. at 54:12-18).

         35. Dr. Adajar, when asked why she waited a week to get Gary Neupauer in for an examination testified:

I put the order to see the patient as soon as all the tests that I ordered are completed, sir, with a specific order that if his signs and symptoms change, to report to Emergency Room or to contact me.

(Id. at 55:4-8).

         36. Dr. Adajar saw Gary Neupauer on October 11. This was the first time she had seen him in person since their phone conversation on October 1. (Trial Tr., May 15, 2017, at 55:12-18).

         37. Dr. Adajar, in her notes of her meeting with Gary Neupauer on October 11, noted “progressive worsening of pain” and “the pain is present at rest with notable discoloration of his left foot.” She also noted that the result of the arterial study “showed moderate stenosis in the left lower extremity.” (Id. at 56:1-9).

         38. Dr. Adajar did not look at the arterial studies done on October 4 until the date of her appointment with Gary Neupauer on October 11. (Id. at 57:7-10).

         39. On October 11, 2013, Gary Neupauer presented to Dr. Adajar with progressive worsening of pain, rest pain, noticeable discoloration over the left foot, and cyanosis. (Id. at 58:2-13).

         40. Dr. Adajar described cyanosis as a “darkish, almost bluish discoloration” and testified that it is a sign “that there is decreased blood flow.” (Id. at 58: 14-18).

         41. Dr. Adajar noticed “some degree of ischemia” and thus testified:

Q: Did Gary have critical ischemia in his left leg on October 11?
A: I know he had ischemia, the severity is not my expertise, which is why, on October 11, as soon as I saw and examined Mr. Neupauer, I called Dr. Shaikh right away, and he came in and saw the patient that same visit.

(Id. at 59:13-16).

         42. Dr. Adajar testified that the reason she called Dr. Shaikh was because she was concerned that Gary Neupauer had limb threatening peripheral artery disease. (Trial Tr., May 15, 2017, at 60:7-10).

         43. Dr. Adajar and Dr. Shaikh both agreed that a MRA, Magnetic Resonance Angiography, needed to be ordered right away. (Id. at 60:11-13).

         44. Dr. Adajar testified that she and Dr. Shaikh both agreed that the Magnetic Resonance Angiography should be done ASAP. (Id. at 60: 14-16).

         45. Dr. Adajar alternatively testified that “ASAP” means “next available”, “late as tomorrow”, and “within a 24 hour period”. (Id. at 60:17-18; 61:2-10).

         46. Dr. Adajar then testified:

Q: And would it be fair to state that you wanted it ASAP because you knew of the danger that Gary was at risk for, based upon the fact that he had the blockage in 2004 and based upon the other factors that we have talked about?
A: Yes, sir.
Q: You knew that, based upon all the risk factors that he had and based upon his symptoms, that he was at risk of potential amputation, loss of limb; correct?
A: All the risks related to peripheral vascular disease, yes, sir.
Q: Including amputation of the toes: correct?
A: Yes, sir.
Q: Possible loss of a foot; correct?
A: Yes, sir.
Q: Even possible loss of life; correct?
A: Yes, sir.
Q: Those were all things that you were aware of on October 11?
A: Yes, sir, because those are all the things related to peripheral vascular disease, sir.

(Id. at 62:1-18).

         47. Dr. Adajar, when asked whether she did not review the results of the MRA until October 17, 2013, testified that “[i]t is possible, sir, that I looked at them and then made a note on October 17 at 12:51.” (Id. at 64: 24-25; 65:1-2).

         48. Dr. Adajar agreed that there is no other record other than that for October 17, 2013, indicating that she reviewed the MRA results for Gary Neupauer. (Trial Tr., May 15, 2017, at 65:16-18).

         49. Dr. Adajar testified that the plan was for Gary Neupauer to be seen by Dr. Shaikh on the following Tuesday, or four days later, October 15, 2013. (Id. at 65:19-22).

         50. Dr. Adajar, on October 11, 2013, prescribed narcotics for Gary Neupauer for pain and Pletal for reduction of symptoms of intermittent claudication. (Id. at 65:25; 66:1-17).

         51. Dr. Adajar acknowledged that a patient will not experience any benefit for two to four weeks after the initiation of Pletal so that it did not help the critical limb ischemia from which Gary Neupauer was immediately suffering. (Id. at 66:21-25; 67:1-2).

         52. Dr. Adajar when asked whether on October 11, 2013, anything was done to increase the blood flow to Gary Neupauer's foot to prevent tissue damage, amputation or loss of limb, answered:

Well, the Pletal, sir, mechanism action is to decrease platelet clotting and decrease the incidence of further clotting, sir, so that was my own initiative. As far as any active intervention that I am looking for from the vascular surgeon, then, no, sir, nothing was done at that point.

(Id. at 67:10-14).

         53. During the testimony of Dr. Adajar on May 15, 2017, counsel for the Government stated:

By the way, your Honor, we have admitted that on October 11, we breached the standard of care, so if this will move it along a little bit.

(Id. at 67:22-24).

         54. Gary Neupauer was to have seen Dr. Shaikh on October 15, 2013 and to see him after the completion of the MRA which was also scheduled for October 15, 2013. (Trial Tr., May 15, 2017, at 68:18-25).

         55. The MRA was done a couple hours before the appointment with Dr. Shaikh (Id. at 69:1-3).

         56. Dr. Adajar testified that it is “unfair to say that Gary lost his toes, due to his smoking.” (Id. at 73:25; 74:1-2).

         57. Dr. Adajar ordered the MRA. (Id. at 76:16-25).

         58. Dr. Adajar wanted the MRA scheduled within 24 hours. (Id.).

         59. Dr. Adajar testified that she had to “beg” for the MRA. She explained what she meant by “beg” as follows:

Like I said, sir, I already qualified that. To beg means to literally be the one to do it, instead of having my secretary do it. Now, in deference to Dr. Shaikh, sir, I had to ask permission, it's professional courtesy, but he did agree, he came in right away, he agreed to see the patient as soon as the MRA is done.

(Id. at 79:22-25; 80:1-2).

         60. Dr. Adajar was presented with her deposition testimony where, when asked why there was a waiting period to schedule Gary Neupauer for an evaluation until October 15, 2013, answered:

I would not put that date there if that is not what Dr. Shaikh told me, because remember, at the beginning of this conversation, I did not have access to his schedule, to anybody's schedule, not even my own schedule. I had to ask them and beg permission, before I put anything in their slot.

(Trial Tr., May 15, 2017, at 80:5-13).

         61. Dr. Adajar testified that the reason that she did not send Gary Neupauer to the emergency room on October 11 was not because she was afraid to do so for fear of getting into “trouble” at the VA, but rather because “the reason that was not done on October 11 was because Dr. Shaikh who is the expert is already beside me.” (Id. at 82:8-15).

         62. Dr. Adajar testified that from the period of 2005 until 2013, prior to Gary Neupauer having to undergo amputations, he did not have a diagnosis of depression, was never treated for depression, and that she never prescribed him any medications for depression. (Id. at 92:21-25; 93:1-8).

         63. Dr. Adajar testified that prior to October, 2013, Gary Neupauer did not have any chronic pain syndrome. (Id. at 93:24-25; 94:1).

         64. When Dr. Adajar ordered the arterial duplex studies and the venous duplex studies after speaking with Gary Neupauer on October 1, 2013, she had no problems getting those tests at the VA, and she did so on October 1 to save time so that when she got a specialist involved, the test results would be available. (Id. at 97:21-25; 98:1-9).

         65. Dr. Adajar, on October 1, 2013, in her telephone conference with Gary Neupauer, told him to continue the treatment with aspirin for peripheral vascular disease, to stop smoking, and to call 911 if he experienced sudden pain and numbness. (Id. at 99:14-22).

         66. Wilkes-Barre VA Medical Center has an emergency room that takes “walk-ins” and it is open 24 hours a day. (Trial Tr., May 15, 2017, at 100:1-5).

         67. The vascular studies ordered by Dr. Adajar were completed on October 4, 2013, and were read by Dr. Shaikh. (Id. at 100:14-16).

         68. The studies showed “moderate stenosis in the left extremity.” (Id. at 100:22-24).

         69. Gary Neupauer's scheduled October 11, 2013, visit with Dr. Adajar “was to evaluate the results of the labs and ancillaries, which is the ultrasound and venous studies done on the patient, as well as his complaints of progressive worsening of pain in the left lower extremity.” (Id. at 101:18-25).

         70. On October 11, 2013, when Gary Neupauer presented for examination, Dr. Adajar realized that his condition was worsening, specifically, that Gary Neupauer now had rest pain, which is a worsening of his condition. (Id. at 102:1-9).

         71. Dr. Adajar noted in her record that Gary Neupauer's “symptoms were progressively worsening.” (Id. at 102:14-17).

         72. As a result of Gary Neupauer's appointment of October 11, 2013, and Dr. Adajar's having noticed that his symptoms were progressively worsening, she called in a specialist, Dr. Shaikh, immediately. (Trial Tr., May 15, 2017, at 103:12-15).

         73. When asked why she called in Dr. Shaikh, Dr. Adajar testified: “because I wanted immediate attention. I needed to take action.” (Id. at 103:16-18).

         74. Dr. Shaikh, a vascular specialist, then came to Dr. Adajar's office to see Gary Neupauer in the examining room. (Id. at 103:19-22).

         75. When Dr. Shaikh came to Dr. Adajar's office to examine Gary Neupauer, she discussed Gary Neupauer's history and her examination findings with Dr. Shaikh. (Id. at 106:2-6).

         76. Dr. Adajar fully endorsed the patient to Dr. Shaikh. (Id. at 106:7-8).

         77. Dr. Adajar was comfortable, after she spoke with Dr. Shaikh on October 11, 2013, that he knew everything that she knew as a result of her examination on October 11, 2013, about Gary Neupauer. (Id. at 106:9-13).

         78. Dr. Adajar testified that she was looking for Dr. Shaikh to provide her with a treatment plan for Mr. Neupauer and that Dr. Shaikh asked that an MRA be done. (Trial Tr., May 15, 2017, at 106: 14-20).

         79. See also Statement of Undisputed Facts:

On October 11, 2013, Dr. Shaikh and Dr. Adajar agreed to do an MRA as soon as possible, and they scheduled him [Gary Neupauer] to be seen Dr. Shaikh [sic] again on Tuesday October 15, 2013.

(Pls.' Pretrial Memorandum, Doc. 46, at 15, ¶ 1).

         80. Dr. Adajar testified that both she and Dr. Shaikh were, on October 11, 2013, aware that the MRA had been scheduled for Gary Neupauer for four days later on October 15, 2013 and that Gary Neupauer had an appointment with Dr. Shaikh that same day, October 15, 2013. (Trial Tr., May 15, 2017, at 107:17-25; 108:1).

         81. Dr. Adajar left the date for the MRA to the determination of Dr. Shaikh because he was a specialist. (Id. at 114:7-9).

         82. For the 8-10 years during which Dr. Adajar served as Gary Neupauer's primary care physician, he had a medical history of peripheral vascular disease of which she was aware and during those years she discussed the dangers of smoking with Gary Neupauer, how smoking affected his particular medical conditions, including his peripheral vascular disease, and suggested that he quit smoking. (Id. at 114:10-25; 115:1-2).

         83. Gary Neupauer had a history of tobacco use of 25 years consisting of one and one-half packs of cigarettes per day. The VA offered him smoking cessation classes but he refused. (Id. at 116:11-16).

         84. Dr. Adajar's February 29, 2012 note indicates that Gary Neupauer was advised to quit smoking and advised of the benefits of smoking cessation; that he was offered referral to the Stop Smoking Clinic; and medications for smoking cessation were offered to him. (Id. at 119:10-25; 120:1-8).

         85. Dr. Adajar's note of February 12, 2012 also indicates that Gary Neupauer was “trying to quit on his own.” (Id. at 120:10).

         86. Dr. Adajar testified that she did not believe she had the right to question Dr. Shaikh about when he scheduled his patients. (Trial Tr., May 15, 2017, at 121:11-15).

         87. She testified:

Q: Isn't that the way it is with all specialists, it's up to them to schedule them how they see fit?
A: That is correct, sir, it is called professional courtesy. And they triage their cases, I cannot have control over that.
Q: Right, and so you cannot then go into Dr. Shaikh's appointment book and say, no, you are not going to see him in four days, you are going to see him in two days; correct?
A: I cannot do that, sir.

(Id. at 121:16-23).

         88. Dr. Mohammed Shaikh testified by video deposition. (See Trial Dep. of Dr. Mohammed Shaikh, Pls. Ex. 11).

         89. Dr. Shaikh is Board Certified by the American College of Surgeons. (Id. at 10).

         90. Dr. Shaikh testified that he had been re-certified “many times”, but “lately, because of the age, they told me you don't need to come for recertification.” (Id. at 11:17-21).

         91. Dr. Shaikh testified that he does not perform angioplasties because he does not know how to perform that procedure because he had no training in it. (Id. at 25:14-16).

         92. Dr. Shaikh never performed an angioplasty, never performed stent placements, and stopped performing bypass procedures in 2012. (Id. at 25:14-24).

         93. When asked why he stopped performing bypass procedures, Dr. Shaikh testified:

The reason I stopped is because, as you know, the vascular surgery has become a branch by itself and has board certification. And you must have a certain number of vascular surgeries in a month and in a year to be accepted.
So I didn't have that many, so - and also I didn't have the training for the angioplasty and stenting. Because these days, 90 percent of the cases are going for the stent and angioplasty. So I didn't have any training. Just I stopped doing that.
And another thing is that the other vascular surgeon who was certified who came on board, he was doing this stuff, so we gave it to him to do it.

(Id. at 26:2-14).

         94. Dr. Shaikh began working at the Wilkes Barre Veterans Administration Hospital in 1998 and continues to be employed there. (Trial Dep. of Dr. Mohammed Shaikh, Pls. Ex. 11, at 28:4-8).

         95. Dr. Shaikh testified he commonly evaluates patients with peripheral artery disease. (Id. at 29:6-8).

         96. Dr. Shaikh testified that as a vascular surgeon, he was trained to recognize when a patient has a “limb-threatening condition.” (Id. at 34:5-8).

         97. When asked to list the criteria that would indicate to him that a patient needs revascularization or restoration of blood flow to a limb within a 24 or 48 hour period, Dr. Shaikh testified:

First of all, if the patient has pain. Pain is a very important thing. Sometimes pain is in the walk, in the exercise. Sometimes pain is in the rest. I mean exercise and rest, both of them.
Number two, as I mentioned, Doppler examination show the critical point.
Number three is the angiography. That if we see the blood supply is very bad, then we'll do surgery if we need it.

(Id. at 34:10-22).

         98. Dr. Shaikh testified he sent Gary Neupauer for an MRA after Dr. Adajar asked him what she should do. (Id. at 74:9-13).

         99. Dr. Shaikh further testified that Gary Neupauer “came to my clinic the day that he had the MRA” and that this was the only time Gary Neupauer came to his clinic. (Id. at 74:12-16).

         100. Dr. Shaikh testified that he sent Gary Neupauer for an MRA “because Dr. Adajar told me this patient has had the pain and had this Doppler examination.” He testified the “next step” was to send Gary Neupauer for an MRA. (Trial Dep. of Dr. Mohammed Shaikh, Pls. Ex. 11, at 74:23-25; 75:1-5).

         101. Dr. Shaikh, when asked whether he had a concern that Gary Neupauer had a “compromised blood flow to his foot”, testified:

A: With that, I didn't examine. Just the way that I look at that, they said that was the best way to go to. I said okay. Send him for the MRA to see where is the blockage.
A: And that he didn't have that much pain or anything at that time. She said this is a patient with intermittent claudication, has an ABI, such and such, and has pain in the foot.
I said okay. Send him for an examination.

(Id. at 75:16-25).

         102. Dr. Shaikh testified that he sent Gary Neupauer for the MRA. (Id. at 76:1-2).

         103. When asked whether he sent Gary Neupauer for an MRA on an ASAP basis, Dr. Shaikh responded:

A: I didn't send it. I told her to do it.
Q: On an ASAP basis?
A: That's right.
Q: So you gave instructions to Dr. Adajar to do it on an ASAP basis?
A: That's right.

(Id. at 76:5-10).

         104. Dr. Shaikh testified that he made the decision to send Gary Neupauer for the MRA on an ASAP basis rather than an emergency basis. He testified:

A: The way that she told me that this patient has pain in the foot and he has gone home and come back and this is it.
I said - also that reason was that I said okay. Do it and I will - let me ...

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