Hayes v. United States

HOLLY HAYES, Administratrix of theEstate of Hollis Bealer, Deceased PLAINTIFF v. UNITED STATES OF AMERICA DEFENDANT

Case No. 4:18-cv-00816 KGB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

January 31, 2020

OPINION AND ORDER

Before the Court is a motion for summary judgment filed by defendant the United States of America ("the United States") (Dkt. No. 11). Plaintiff Holly Hayes, as the Administratrix for the Estate of Hollis Bealer ("Ms. Hayes"), has responded to the motion (Dkt. No. 15), and the United States has filed a reply (Dkt. No. 18). For the following reasons, the Court grants the United States' motion for summary judgment (Dkt. No. 11).

I. Factual Background

On November 11, 2018, Ms. Hayes initiated this federal tort action against the United States for medical negligence on behalf of the Estate of Hollis Bealer pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq., and the Arkansas Medical Malpractice Act ("AMMA"), Arkansas Code Annotated § 16-114-201, et seq. (Dkt. No. 1). Ms. Hayes also brings a wrongful death action on behalf of the statutory beneficiaries pursuant to the Arkansas Wrongful Death Act ("AWDA"), Arkansas Code Annotated § 16-62-102 (Id.). Ms. Hayes alleges that the nurses at the Central Arkansas Veterans Healthcare System ("CAVHS") deviated from the standard of care by allowing Mr. Bealer to fall on November 21, 2015, and that, as a result, Mr. Bealer sustained physical pain and suffering of a chin laceration, a right humerus fracture, and death (Id.).

Mr. Bealer was an 80-year-old gentleman with multiple comorbidities in November 2015, including: status post total thyroidectomy; status post laryngectomy for supraglottic squamous cell carcinoma; nicotine addiction; hyperlipidemia; benign prostatic hyperplasia; and hypothyroidism (Dkt. No. 13, ¶ 1). Mr. Bealer had an extensive medical history leading to and stemming from these various comorbidities (Id., ¶¶ 2-7). Mr. Bealer was admitted in July 2013 following acute kidney failure as a result of acute urinary retention (Id., ¶ 8). No mention of any neck pain was made during his inpatient stay (Id.). Mr. Bealer was hospitalized in May 2015 with bilateral pneumonia and a possible urinary tract infection, and a CT scan of his chest was performed at that time which revealed no malignancy (Id., ¶ 9). He recovered well and was discharged home (Id.). His post-hospital follow-up in the primary care provider clinic on June 6, 2015, was unremarkable, and he did not mention any active complaints (Id.).

On July 16, 2015, Mr. Bealer presented to the emergency room with neck pain with two days' history of sore throat, sinus drainage, and left ear pain (Id., ¶ 10). He was treated for rhinitis (Id.). On August 15, 2015, Mr. Bealer presented to the emergency room at the John L. McClellan Memorial Veterans Hospital ("VA Hospital") with right ear pain and swelling (Id., ¶ 11). A physical examination revealed a small furuncle with induration, and faint redness without any clinical indication for drainage was noted (Id.). Mr. Bealer was prescribed oral antibiotics (Id.). On August 21, 2015, Mr. Bealer presented to the emergency room with urinary retention (Id., ¶ 12). A Foley catheter was placed, and more than 700 milliliters of urine was drained immediately (Id.). There was no mention of any continued symptoms of sore throat or ear pain during that visit or on August 28, 2015, during his ophthalmology clinic visit according to the medical records (Id.). On September 18, 2015, Mr. Bealer presented to the emergency room asking for mouthwash for his sore throat (Id., ¶ 13). A physical exam revealed oral thrush, and medication for treatmentof thrush was prescribed (Id.). In the later part of October 2015, Mr. Bealer had a routine follow-up visit with his primary care provider and complained of right neck pain and a seven-pound weight loss within the previous four months (Id., ¶ 14). His physical examination did not reveal any neck mass (Id.). On November 4, 2015, Mr. Bealer presented to the emergency room with a right neck pain and right earache for three weeks (Id., ¶ 15). He reported worsening of the pain upon lying in right lateral position (Id.). The physical examination was unremarkable per the emergency room physician, though he did make a note that if the symptoms continued further imaging studies would be warranted to evaluate for possible new malignancy (Id.).

On November 20, 2015, Mr. Bealer was brought to the VA Hospital emergency room by his daughter with a four-day history of productive cough, right neck pain, nausea, vomiting, and headache (Id., ¶¶ 16, 61). The family notified the health care providers that Mr. Bealer had been recently declining in cognitive function (Id., ¶ 16). A CT of the soft tissue of the neck with intravenous contrast was ordered to rule out a new head and neck malignancy (Id., ¶ 17). The CT was performed on November 20, 2015, at 6:30 p.m. and revealed a seven-centimeter mass at the C1 level of the head and neck (Id., ¶ 18). It was suspicious for recurrent malignant disease (Id.). A CT of the chest was performed on November 20, 2015, at 6:58 p.m. and showed patchy right lower lobe pneumonia, and a three-millimeter non-calcified pulmonary nodule in the left upper lobe was also seen (Id., ¶ 19). On November 21, 2015, at 3:30 a.m., the hospitalist physician was notified that Mr. Bealer had fallen from the bed while trying to go to the restroom to void (Id., ¶ 20). According to the physician's note, it was reported that Mr. Bealer hit his head and lower end of his jaw (Id., ¶ 21). A superficial laceration of the chin area was noted and bandaged (Id.). No other obvious injuries were noted (Id.). A CT of the head and maxillofacial region was requested and performed on November 21, 2015, at 3:38 a.m. (Id., ¶ 22). The CT of the head did not showany fractures or intracranial hemorrhage (Id.). The CT of the maxillofacial region did not show any traumatic injury (Id.). An x-ray of the right tibia and fibula was performed on November 21, 2015, at 7:09 p.m. and was negative for injury (Id., ¶ 23). The United States asserts that there was no mention of right shoulder pain immediately after the fall or in the several hours following the initial injury by any of the healthcare providers in the medical record (Id., ¶ 24). Ms. Hayes contends that this claim is misleading as Mr. Bealer was only minimally able to communicate at the time (Dkt. No. 16, ¶ 2).

On November 22, 2015, a right shoulder x-ray was performed because Mr. Bealer began to complain of right shoulder pain (Dkt. No. 13, ¶ 25). The x-ray showed an abnormal sclerotic density in the surgical neck of the humerus and slight inferior location of the humeral head was identified (Id.). An orthopedic consult was obtained on November 23, 2015 (Id., ¶ 26). The orthopedic consult note mentions that Mr. Bealer was not using his right upper extremity as much as a left upper extremity (Id.). However, when providers asked whether Mr. Bealer had any right shoulder pain, he did not answer (Id.). A physical exam of the shoulder showed no pain on palpation, and, as stated by the physician, "the patient [did] not grimace to palpation or with range of motion of the right shoulder" (Id., ¶ 27). A right upper extremity sling was recommended along with a two-week follow-up in the orthopedic clinic (Id.). No surgical intervention was indicated based on the nature of the possible injury and likelihood of complete healing (Id.). Mr. Bealer's medical history includes an April 27, 2009, shoulder x-ray that showed an irregularity of the surgical neck of the humerus with callus formation consistent with healed fracture (Id., ¶ 28). This x-ray was taken a few months following a reported motor vehicle accident in February 2009 (Id.). In addition, Mr. Bealer's medical history includes a November 12, 2010, right shoulder x-ray,which showed some impaction and some callus formation at the previous femoral neck fracture (Id., ¶ 29).

An oncology consult was obtained on November 23, 2015, and Mr. Bealer's daughter reported 20-pound weight loss in the previous three months (Id., ¶ 30). An oncology consult was obtained, and the oncologist's impression was that the tumor was a second primary malignancy, because it was identified 12 years after the initial diagnosis of squamous cell carcinoma of the larynx (Id., ¶ 31). Mr. Bealer was deemed not to be a suitable candidate for treatment due to the extent of tumor involvement, advanced age, poor nutritional status, and poor performance status (Id., ¶ 32). Palliative care and inpatient hospice care were recommended (Id., ¶ 33). He was subsequently transferred to inpatient hospice care team for symptom management (Id.). Mr. Bealer was found to have a new right-sided head and neck malignancy 12 years after his diagnosis of squamous cell carcinoma of the larynx which was appropriately treated and was deemed cured after five years of no disease recurrence (Id., ¶ 34).

The differential diagnosis of malignancy in this region following the treatment of head and neck carcinoma in the past includes a new head and neck carcinoma due to field cancerization effect induced by smoking (Id., ¶ 35). Smoke-induced field cancerization is a known etiological factor to induce new malignancy in the head and neck region, esophagus, and lung (Id., ¶ 36). Other differential diagnoses include aggressive lymphomas and radiation-induced pleomorphic sarcoma (Id., ¶ 37). Radiation-induced pleomorphic sarcomas are aggressive soft tissue malignancies arising in the soft tissue structures of the previously radiated regions (Id., ¶ 38). Radiation induced pleomorphic sarcoma is a very likely diagnosis based on the short duration of the development of true symptoms related to the malignancy, a few weeks as mentioned in the medical record (Id., ¶ 38). The tumor extended from the region of prior radiation and surgicalintervention extending superiorly to...