Collins v. United States

1

JUDITH COLLINS, Individually and as Executor of the Estate of Michael N. Collins, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

Civil Action No. 5: 22-008-DCR

United States District Court, E.D. Kentucky, Central Division, Lexington

March 7, 2023

MEMORANDUM OPINION AND ORDER

Danny C. Reeves, Chief Judge United States District Court

Plaintiff Judith Collins filed this medical negligence action on behalf of herself and her late husband's estate under the Federal Tort Claims Act. Michael Collins was a veteran of the United States Army who received medical care at the Lexington, Kentucky VA Medical Center (“VAMC”) and an affiliated outpatient care center in Hazard, Kentucky. The plaintiff contends that the VAMC was negligent by failing to provide Collins with low dose computed tomography (“LDCT”) screenings for lung cancer, which he succumbed to in January 2020. However, the undersigned concludes that the defendant is entitled to summary judgment because the plaintiff has not raised a genuine issue of material fact indicating that the VA breached the applicable standard of care.

I.

Michael Collins was 67 years old when he passed away on January 19 2020. He had a history of smoking a pack of cigarettes per day for 47 years. His other chronic health conditions included low back pain, mixed hyperlipidemia, hypertension and chronic obstructive pulmonary disease. [See Record No. 38-5.] As a resident of Whitesburg, Kentucky, Collins received primary care services at a VA outpatient clinic in Hazard, Kentucky. Additionally, he visited the VAMC in Lexington on occasion. Primary care physician Renuka Reddy, M.D., ordered a chest x-ray in September 2014 due to Collins' history of smoking. The x-ray report noted “clear chest” and “no acute cardiopulmonary pathology.” [See Record No. 38-12, p. 10.]

Collins saw primary care provider John Furcolow, M.D., in May 2015. He had no new complaints at that time. Furcolow made note of Collins' smoking history, the clear chest x-ray in 2014, and encouraged Collins to stop smoking. Collins saw Furcolow again in February 2016 for a follow-up visit regarding his chronic medical problems. Furcolow noted that Collins wanted a “repeat” chest x-ray. Furcolow educated Collins regarding smoking cessation; however, Collins declined assistance. Collins received a chest x-ray on March 18, 2016, which was again noted as “clear chest.” [See Record No. 38-6, pp. 4-5.]

Collins began treatment with primary care provider Billy Banks, D.O., at the Hazard VA, on July 31, 2017. [See Record No. 38-9.] Banks noted that Collins was still smoking one pack of cigarettes per day. Collins wanted to quit smoking and Banks dispensed gum for Collins' nicotine dependence. Collins denied shortness of breath, coughing, or wheezing. Collins followed up with Banks in April 2018 and reported that he had cut down to one-half pack of cigarettes per day. Id. p. 4. He had no acute complaints and again denied shortness of breath, coughing, or wheezing. Banks continued to encourage smoking cessation. There is some dispute regarding whether Banks encouraged Collins to have additional lung screenings during this time.^[1]

Collins followed up with Banks again in January 2019. He reported that he was still smoking one-half pack of cigarettes each day and was not ready to quit smoking completely at that time. Id. at 6. And Banks continued to encourage Collins to stop smoking. Collins saw Kim Gayheart, APRN, in June and July 2019, complaining of coughing and congestion. During these appointments, Collins denied chest pain, shortness of breath on exertion, or wheezing.

Collins returned to see Banks on August 16, 2019. During this examination, he complained of coughing and wheezing, which had improved, but denied having any shortness of breath. Banks prescribed medication for Collins' cough. Collins returned for a follow up visit with Banks on September 30, 2019, at which time Collins reported that his breathing had returned to a baseline level. He also denied chest pain, shortness of breath, coughing, or wheezing. Banks again urged Collins to stop smoking and offered assistance regarding his nicotine dependence. But Collins advised Banks he did not want to quit completely at that time. Collins returned for an appointment with Banks in October 2019 to discuss his blood pressure. He again denied shortness of breath, coughing, and wheezing.

Collins presented to the Lexington VAMC emergency department with transient neurological deficits in December 2019. He subsequently was admitted to the Lexington VAMC and diagnosed with atrial fibrillation, treated with blood thinner, and discharged. Soon thereafter, Collins began coughing up small amounts of blood and returned to the emergency department where a CT scan revealed a lung mass. Collins underwent a bronchoscopy with endobronchial ultrasound and endobronchial biopsy for the right lower lobe mass at the Lexington VAMC on January 16, 2020. After returning home from the procedure that evening, he went to the Whitesburg Appalachian Regional Hospital (“ARH”) because he began coughing up blood.

Whitesburg ARH transferred Collins to the Lexington VAMC via ambulance on the morning of January 17, 2020. Shortly after his arrival, he began having massive hemoptysis with significant respiratory distress and was emergently intubated. Providers found that Collins had a clot sitting on the lung mass. The results from his bronchoscopy/biopsy came back as stage IIIc or IVa squamous cell carcinoma. On January 19, 2020, Collins was transferred to the University of Kentucky Medical Center. He died that day due to a large volume pulmonary hemorrhage.

In 2013, the U.S. Preventive Services Task Force (“Task Force”) recommended annual screenings for lung cancer with LDCTs in 55 to 80-year-olds with a thirty-pack-year smoking history who currently smoke or had quit within the past 15 years. [Record Nos. 38-10, p. 5; 38-12] The American Cancer Society issued similar recommendations for the first time that year. [Record No. 38-10, p. 6] The VA created a “shared decision making document” entitled “Screening for Lung Cancer” in April 2014. The document outlines the Task Force's recommendations for annual screenings. [Id. at 8; 38-3] However, it is unclear if, how, and to whom it was distributed. In February 2015, the Centers for Medicare and Medicaid Services issued a decision memorandum adopting similar recommendations regarding lung cancer screening with LDCTs. Id. In August 2016, the VA's National Leadership Council “approved recommendations for lung cancer screening with [LDCTs].”

The Lexington VAMC began the process of purchasing a machine capable of performing LDCTs in 2016. Id. p. 12. It was installed in 2017 and “became operational” in February 2018. Id. In September 2018, the VA held a preplanning meeting for implementation of LDCT lung cancer screening. The following month, a VA summit was held to further discuss how to implement the LDCT screenings. The Lexington VA then considered a software purchase to “accomplish the tracking that is necessary when you [are] doing lung cancer screening.” Id. LDCT lung cancer screenings first became available at the Lexington VAMC in January 2019.^[2]Id. at 13.

The plaintiff contends that, had Collins' primary care physicians provided LDCT lung cancer screenings, his cancer would have been detected earlier, he could have received more conservative interventions and treatment options, extending his life, and preventing subsequent complications that led to his death. Accordingly, she asserts a medical malpractice claim against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. The United States has moved to exclude the testimony and opinions of the plaintiff's expert witnesses or, in the alternative, for summary judgment.

II.

Rule 702 of the Federal Rules of Evidence governs the admission of expert testimony. Under Rule 702, a court should only admit relevant expert testimony if “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” District courts act as gatekeepers to exclude any testimony that is not relevant or reliable. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 145 (1999) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)). Rule 702 applies regardless of whether the trier of fact is a judge or a jury. UGI Sunbury LLC v. A Permanent Easement for 1.7575 Acres, 949 F.3d 825, 832 (3d Cir. 2020) (observing that Rule 702 employs broader “trier of fact” language compared to Rule 403, which refers to “misleading the jury”); Ky. Waterways All. v. Ky. Utils. Co., 539 F.Supp.3d 696, 710 (E.D. Ky. 2021).

Summary judgment is appropriate if there is no genuine dispute with respect to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In other words, the moving party must show the absence of a genuine issue of material fact concerning an essential element of the opposing party's action. See Celotex Corp. v Catrett, 477 U.S. 317, 323 (1986). In reviewing a motion for summary judgment, the Court must view all facts and draw all reasonable inferences in a light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 58788 (1986). The moving party has the initial burden to show that there is no genuine issue of material fact, but once the moving party has met its burden, the nonmoving party must demonstrate that there is sufficient evidence from which the finder of fact could render a verdict in its favor. See Celotex Corp., 477...