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Day v. United States

United States Court of Appeals, Eighth Circuit

August 1, 2017

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

         Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

          Before LOKEN, MURPHY, and MELLOY, Circuit Judges.

          MELLOY, Circuit Judge.

         In 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[1] granted the motion. After carefully reviewing the record in the light most favorable to Plaintiffs, we affirm.


         Deweese 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.

         In 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.

         Nearly 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 centimeters.

         Deweese, 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.

         Plaintiffs 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 claims.

         Renewing 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.

         The 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.

         Second, 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 ...

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