Madrid v. United States

1

ALEX MADRID, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

Civil Action No. 3:22-CV-0982-D

United States District Court, N.D. Texas, Dallas Division

April 30, 2024

MEMORANDUM OPINION

SIDNEY A. FITZWATER, SENIOR JUDGE

In this action against defendant United States of America (the “government”), pro se plaintiff Alex Madrid (“Madrid”) sues for medical malpractice under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), based on alleged substandard care that he received at the Dallas Veterans Affairs Medical Center and Fort Worth Outpatient Clinic (collectively “VAMC,” unless the context indicates otherwise). Following a bench trial, and for the reasons that follow,^[1] the court finds that Madrid has failed to prove each of the essential elements of his malpractice claims and that the government is therefore entitled to judgment dismissing this action with prejudice.^[2]

I

In October 2015, following a stroke, Madrid was diagnosed with atrial flutter. To treat this condition, Madrid underwent a radiofrequency ablation (“RFA”) procedure. Prior to Madrid's first cardiac ablation procedure, he had mild to moderate concentric left ventricular hypertrophy with at least grade 1 diastolic dysfunction. About one year later Madrid complained to the Dallas VA Medical Center about shortness of breath, and testing confirmed that he had atrial fibrillation (“A-Fib”). On February 28, 2017 Madrid underwent a second RFA procedure at VAMC to treat A-Fib.

On July 6, 2017, four months after his second ablation procedure Madrid presented to VAMC complaining of shortness of breath. Radiology imaging performed on July 7, 2017 showed pulmonary vein stenosis (“PVS”) and possible stasis/pulmonary vein thrombosis that was deemed “critical to patient care.” P. Ex. 11 (capitalization omitted). Madrid was admitted to the VAMC Emergency Room on July 10, 2017, and a procedure to stent three pulmonary veins was scheduled for July 12, 2017. On July 11, however, Madrid selfdischarged from VAMC against medical advice.^[3]

On August 10, 2017 VAMC physician Houman Khalili, M.D. (“Dr. Khalili”) performed a stent procedure in which he placed stents in Madrid's bilateral inferior pulmonary veins. On December 22, 2017 Dr. Khalili placed a stent in Madrid's left superior be sealed, but it will consider a request for sealing on timely motion for cause shown pulmonary vein (“LSPV”). In the months and years that followed, Madrid underwent numerous procedures, including a balloon angioplasty in April 2019 and an angiography and “stent in stent” replacement in June 2020, in an attempt to treat his PVS.

The interventions (including stenting and balloon angioplasty) have been successful in maintaining the patency of Madrid's left and right lower pulmonary veins. The left upper pulmonary vein stenosis has been functionally different and more complicated since its initial presentation. Multiple efforts to restore and maintain the patency of the left upper pulmonary vein were unsuccessful, leading to the loss of function of the left upper lobe.

Madrid was eventually referred to the University of Texas Southwestern Medical Center (“UTSW”) through the Community Care Program. In January 2021, after testing at UTSW verified that Madrid had pulmonary hypertension and fibrosis due to chronic total occlusion of the LSPV, his care team decided that he would be best served in the long term by having a left upper partial lobectomy, which was performed on April 7, 2021. The elective procedure to remove the left upper lobe was appropriate and medically necessary.

To date, Madrid has not completed a cardiopulmonary exercise test. The treatment of Madrid's atrial flutter and A-Fib was successful; Madrid has not experienced issues with A-Fib or atrial flutter since the ablation procedure in 2017.

Madrid filed this lawsuit on May 3, 2022. In his second amended complaint, which is the operative pleading, he alleges claims under the FTCA for: delay in care of A-Fib (count 1); substandard care of A-Fib (count 2); delay in care of PVS (count 3); substandard care of PVS (count 4); failure to diagnose, treat, and inform pulmonary hypertension (count 5); failure to diagnose, inform, and treat pulmonary fibrosis (count 6); and substandard medical records (count 7).

In Madrid v. United States of America, 2023 WL 8435244 (N.D. Tex. Dec. 5, 2023) (Fitzwater, J.), the court granted in part the government's cross-motion for summary judgment, dismissing Madrid's claims for delay in care of A-Fib (count 1), substandard care of A-Fib (count 2), and substandard medical records (count 7). Id. at *5, 12 n.21.^[4] The remainder of the case (counts 3, 4, 5, and 6) then proceeded to a bench trial on March 28 and 29, 2024.

II

The claims in this case are based on allegations that Madrid's treating physicians at VAMC were negligent in several respects. Liability for medical negligence “claims brought under the FTCA is determined by state law.” Coleman v. United States, 912 F.3d 824, 829 (5th Cir. 2019) (citing Ayers v. United States, 750 F.2d 449, 452 n.1 (5th Cir. 1985)). Under Texas law,

[w]hen the negligence alleged is in the nature of medical malpractice, the plaintiff has the burden of proving (1) a duty by the physician or hospital to act according to an applicable standard of care; (2) a breach of that standard of care; (3) an injury; and (4) a causal connection between the breach of care and the injury.

Quijano v. United States, 325 F.3d 564, 567 (5th Cir. 2003) (citing Mills v. Angel, 995 S.W.2d 262, 267 (Tex. App. 1999, no pet.); Denton Reg'l. Med. Ctr. v. LaCroix, 947 S.W.2d 941, 950 (Tex. App. 1997, pet denied)). “The plaintiff must establish the standard of care as a threshold issue before the factfinder may consider whether the defendant breached that standard of care to the extent it constituted negligence.” Hannah v. United States, 523 F.3d 597, 601 (5th Cir. 2008). “Unless th[e] standard of care is common knowledge or within the experience of laymen, testimony from a medical expert is required to satisfy the plaintiff's threshold burden of proof.” Coleman, 912 F.3d at 829 (citing Hannah, 523 F.3d at 601). “That testimony must focus on the standard of care in the community in which the treatment took place or in similar communities.” Quijano, 325 F.3d at 568 (citations omitted). “In other words, subject to [a] narrow exception . . . a plaintiff must produce expert testimony to prove the applicable standard of care, a breach of that standard, and a causal connection between the breach and the harm suffered in medical malpractice cases.” Woods v. U.S. Gov't, 2010 WL 809601, at *3 (N.D. Tex. Feb. 4, 2010) (Ramirez, J.) (citing Hannah, 523 F.3d at 601-02; Guile v. United States, 422 F.3d 221, 225 (5th Cir. 2005)), rec. adopted, 2010 WL 809601, at *1 (N.D. Tex. Mar. 8, 2010) (Fitzwater, C.J.), aff'd, 2011 WL 857007 (5th Cir. Mar. 11, 2011).

III

At trial, Madrid and the government presented the testimony of competing expert witnesses.

Plaintiff's expert, Dianne L. Zwicke, M.D., F.A.C.C. (“Dr. Zwicke”), holds medical licenses in internal medicine and cardiology. She practiced for 42 years at Aurora Health Care, St. Luke's Medical Center, Milwaukee, Wisconsin before retiring during the COVID-19 pandemic. At St. Luke's Medical Center, Dr. Zwicke worked in clinical cardiology and served as Medical Director of the Pulmonary Arterial Hypertension Clinic. She also served as a Clinical Adjunct Professor of Medicine at the University of Wisconsin School of Medicine and Public Health. She currently spends half of her time practicing cardiology telemedicine and the other half doing legal consulting.^[5]

Defendant's expert, Harold Palevsky, M.D. (“Dr. Palevsky), currently serves as the Chief of Pulmonary Allergy and Critical Care and the Director of Pulmonary Vascular Disease Program at Penn Presbyterian Medical Center, which is one of the core teaching hospitals of the University of Pennsylvania health system. He has been a Professor of Medicine at the University of Pennsylvania School of Medicine since 1984. Dr. Palevsky also practices in Philadelphia as a pulmonary critical care physician. He is board certified in internal medicine, pulmonary medicine, and critical care medicine.

IV

The court turns first to Madrid's claim for substandard care of PVS (count 4), which is based primarily on the allegation that the 7 millimeter stent that Dr. Khalili placed in Madrid's LSPV on December 22, 2017 was too small.^[6]

A

At trial, Madrid's expert witness, Dr. Zwicke, testified that a 7 millimeter stent is “small,” given the size of the LSPV, and “actually promotes stenosis.” Tr. 1:51.^[7] She also testified, however, that using a smaller stent is “standard” procedure, id. at 53, and that stents ranging in size from 6 to 10 millimeters would be “reasonable,” depending on the physical anatomy of the patient's veins, id. at 113. Regarding stent placement, Dr. Zwicke explained that when a smaller stent is used, the physician must make sure that it “opposes the wall circumferentially[;] otherwise, it will start occluding immediately after it's been placed.” Id. at 54. Because Madrid experienced restenosis in his LSPV, Dr. Zwicke opined that “the stents weren't placed correctly.” Id. at 88; see also id. at 89 (Dr. Zwicke opining that “some of the stents that were placed in [Madrid's] lungs, plural, were not placed appropriately and did cause damage.”).

Dr Palevsky, the government's expert witness, also testified that the range in stent size for a pulmonary vein is from 6 millimeters to 10 millimeters. He explained that “what you put in is what you feel fits and you can get in to alleviate stenosis[, a]nd under that circumstance 7 would be pretty standard.” Id. at...