Michelle Day, Administrator of the Estate and on Behalf of the Wrongful Death Beneficiaries of James Avery Deweese Sr.; Ruth Deweese, Individually; Michelle Day, Individually Plaintiffs - Appellants
United States of America Defendant-Appellee
Submitted: June 6, 2017
from United States District Court for the Eastern District of
Arkansas - Little Rock
LOKEN, MURPHY, and MELLOY, Circuit Judges.
MELLOY, Circuit Judge.
2011, a radiologist with the United States Department of
Veterans Affairs ("VA") failed to identify a
cancerous mass in the liver of James Avery Deweese Sr. The
mass nearly doubled in size before it was finally diagnosed
in 2013, and Deweese died shortly thereafter. Asserting
survival and wrongful-death claims under Arkansas law,
Deweese's family and the administrator of his estate
("Plaintiffs") filed the present action against the
United States pursuant to the Federal Tort Claims Act, 28
U.S.C. § 1346(b)(1). The United States conceded that the
VA radiologist provided substandard care, but it moved for
summary judgment on the issue of proximate causation. The
district court granted the motion. After carefully
reviewing the record in the light most favorable to
Plaintiffs, we affirm.
was approved for home-based primary care by the Central
Arkansas Veterans Healthcare System in 2009. Among other
medical conditions, Deweese suffered from cirrhosis, diabetes
mellitus, diabetic peripheral neuropathy, chronic kidney
disease, degenerative joint disease, chronic back pain,
anxiety, and depression.
2011, Deweese's laboratory results revealed elevated
liver function. Rose Ann Hodges, an advanced practice
registered nurse who led Deweese's care team, recommended
that Deweese undergo a computerized tomography
("CT") scan. Deweese underwent the CT scan in
October 2011 at a VA hospital in Little Rock, Arkansas. The
VA radiologist who read the scan noted that Deweese's
cirrhosis was stable, but identified nothing further.
two years later, on July 7, 2013, Deweese presented to the
emergency room complaining of increased and painful
urination, incontinence, and suprapubic pain. His wife also
reported disorientation, confusion, and slurred speech. On
suspicion of hyperammonemia, Deweese was admitted to the
hospital for further testing. An ultrasound on July 8
revealed a suspicious mass in Deweese's liver, and a CT
scan on July 12 revealed that the mass measured 11.8 x 9 x
12.6 centimeters in size. This CT scan was subsequently
compared to the CT scan from 2011. Upon comparison, the
radiologist noted that the mass was present in the 2011 scan
and that, at that time, it had only measured 6.4 x 4.7 x 6.3
too weak to receive treatment, was placed on palliative care.
He died on July 22, 2013, at the age of 77. An autopsy
confirmed heptocellular carcinoma, i.e., cancer in
Deweese's liver. The immediate cause of Deweese's
death, however, was not determined because the autopsy was
limited to a single organ.
filed administrative claims with the VA, asserting that it
negligently failed to identify Deweese's liver cancer in
the 2011 CT scan. As a result of this negligence, Plaintiffs
alleged, Deweese "suffered a loss of enjoyment of life
over the two years between the [2011 and 2013] CT scans"
and died from the liver cancer. Deweese's wife, Plaintiff
Ruth Deweese, also claimed loss of consortium and
companionship. The VA denied Plaintiffs' administrative
their allegations, Plaintiffs filed the present action
against the United States. The United States conceded before
the district court that the VA radiologist was negligent in
reading the 2011 scan. However, in moving for summary
judgment, the United States argued that Plaintiffs presented
insufficient evidence that the VA's negligence was the
proximate cause of Deweese's death.
summary-judgment record contains the following evidence.
First, Plaintiffs offered deposition testimony regarding the
possibility Deweese might have received a liver transplant
had the cancer been detected in 2011. Plaintiffs' expert
Dr. Frederick Bentley, a surgeon trained in liver
transplants, testified that not all patients are eligible for
transplants because donor livers are limited. According to
Dr. Bentley, Deweese would not have been eligible to be
placed on the national list for a transplant because, on the
2011 CT scan, the mass in his liver exceeded 5 centimeters in
dimension. Plaintiffs' expert Dr. James Stark, a
professor of internal medicine who teaches oncology,
testified that "[w]e don't know" whether
Deweese would have received a liver transplant.
Plaintiffs offered deposition testimony regarding the
possibility the tumor could have been surgically removed
through liver resection in 2011. Dr. Bentley opined that
Deweese, like most patients with liver cancer, would not have
tolerated the physiological stress of resection. To support
this opinion, Dr. Bentley cited evidence that Deweese had
portal hypertension, which makes resection surgeries
"very risky" because of blood loss, as well as
Deweese's "functional status ...