The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
This medical malpractice action was brought by Karen L. Taylor ("plaintiff" or "Mrs. Taylor"), the surviving spouse of Richard C. Taylor ("Taylor"), alleging that a physician employed by Rural Health Services Consortium, Inc., ("RHSC") which is operated through the Public Health Service, was negligent in failing to timely diagnose and treat the cancer of Taylor, which ultimately resulted in his death. Jurisdiction over this action is pursuant to the Federal Torts Claim Act, 28 U.S.C. §§ 1346(b) and 2675.
This Court previously granted the defendant's motion for summary judgment on plaintiff's wrongful death claim, and the case proceeded to trial on the remaining issue of whether a breach of the standard of care by delay in diagnosis proximately caused pain and suffering of a greater nature than that which the decedent would have otherwise endured. Because plaintiff failed to prove an essential element of her cause of action by a preponderance of the evidence, plaintiff's complaint will be DISMISSED and judgment will be entered in favor of the government.
Plaintiff is the surviving spouse of Taylor. Plaintiff and Taylor were married in December, 1967, and Taylor died on April 26, 2002. In addition to his spouse, Taylor was survived by two adult children.*fn2 Taylor was 53 years of age at the time of his death.
In the fall of 2000, Taylor began experiencing pain in his right arm and shoulder and lower back while playing ball with his grandchildren. His wife, the plaintiff, made an appointment for Taylor at the Limestone Medical Clinic ("LMC"), a clinic operated by RHSC. Taylor saw Dr. Paul Niner, a staff physician at LMC, on September 5, 2000. Mrs. Taylor testified that she had observed a knot on her husband's right shoulder about the size of a quarter raised approximately one eighth of an inch at the time. No mention of any knot or lump appears in Dr. Niner's record of the September 5, 2000 visit. Mrs. Taylor also testified that Dr. Niner's examination of her husband on September 5 was cursory.*fn3 Dr. Niner felt of Taylor's shoulder in the area of the described knot through Taylor's clothing. Dr. Niner diagnosed Taylor with arthralgias, bronchitis, anxiety, and prescribed several medications for the pain and bronchitis and some "nerve pills." He also ordered "house labs," which required that blood be collected before Taylor left the clinic. It is undisputed that the lab work was not done. However, some months later the lab work was finally performed and came back normal except for some elevated triglycerides. At the time of his first presentation at LMC, it is undisputed that Taylor was already suffering from incurable, undiagnosed metastatic renal cell carcinoma.
Taylor did not seek additional medical treatment until February 14, 2001, when he returned to LMC to see Dr. Niner. Mrs. Taylor testified that between the September appointment and February 14, 2001, Taylor continued taking the medication provided by Dr. Niner, believing his problem would go away, but instead the knot doubled in size, and she contends that by February it had grown to the size of a golf ball. Plaintiff described her husband's pain between September and February as excruciating. Pharmacy records reflect that Taylor did not have the prescriptions written in September refilled prior to his visit in February, 2001.*fn4 As more fully discussed below the Court finds Mrs. Taylor's testimony in this regard not fully credible.
At the time Taylor was seen again by Dr. Niner on February 14, 2001, Dr. Niner assessed Taylor as suffering from shoulder pain, supraspinatus tendonitis, left leg pain, and anxiety/depression, and prescribed medications to treat his pain.*fn5 Taylor again presented himself to Dr. Niner on March 2, 2001, at which time Dr. Niner ordered an x-ray of Tayor's right shoulder. The x-ray report revealed only degenerative changes, consistent with the prior diagnosis of tendonitis/arthritis. Dr. Niner prescribed various pain medications and muscle relaxants, including Diazepam, carisoprodol, hydrocodone and aspirin.
On April 24, 2001, Taylor called LMC, reporting that he was very ill. He informed an after-hours call center that he had missed an appointment on April 13th and had rescheduled for April 30, but wanted an earlier appointment because he was experiencing pain in his back and legs and could not sit. Taylor was instructed to call LMC during business hours; however, Taylor was not seen again by Dr. Niner until April 30, 2001. In addition to other testing and treatment, Dr. Niner prescribed an additional narcotic pain medication, Vicoprofin.
During a follow-up visit on May 14, 2001, Taylor reported back pain of nine on a scale of one to ten, tailbone pain, sacral pain and severe sciatica. Dr. Niner ordered an MRI at Laughlin Memorial Hospital ("LMH") and instructed Taylor to follow-up at LMC after the MRI study. Plaintiff described the knot on Taylor's shoulder during this visit as being abhorrent looking, grotesque and horribly red and swollen down his arm. The MRI was performed on May 15, 2001. The radiology report stated as conclusions:
1. MR IMAGING OF THE LUMBAR SPINE DEMONSTRATES NO EVIDENCE OF HERNIATED NUCLEUS PULPOSUS OR SPINAL STENOSIS.
2. DESTRUCTIVE EXPANSILE MASS-LIKE LESION INVOLVING THE MID SACRUM. NEOPLASM IS STRONGLY SUSPECTED. BONE SCINTIGRAPHY AS WELL AS MR IMAGING OF THE SACRUM AND PELVIS WOULD BE USEFUL IN FURTHER EVALUATION IF CLINICALLY INDICATED.
On June 2, 2001, before the next scheduled appointment with Dr. Niner, the plaintiff and her husband went to the LMH emergency department. Taylor reported having had back pain for two weeks, sacrum pain for two months and severe pain that day that had "gotten a lot worse" that night. The emergency department physician reviewed the MRI report and advised Taylor of his cancer.
Taylor was seen by Dr. Richard Aasheim on June 3, 2001. Dr. Aasheim scheduled follow up testing of Taylor, including a CT of the abdomen and pelvis, for June 8 at Takoma Adventist Hospital, and referred Taylor to a general surgeon, Dr. Robert Weingart. Taylor's scheduled appointment with Dr. Weingart was on June 14, 2001; nevertheless, Taylor once again presented himself at LMC on June 6, 2001, but this time to Mr. Naseri ("Naseri"), the nurse practitioner at LMC. During this visit, Naseri reviewed the MRI study and made note of the cancer diagnosis. Naseri confronted Dr. Niner with the MRI study, and Dr. Niner admitted that he had only made a cursory review of the MRI ...