Dismissal of Wrongful Death Medical Malpractice Case Against Veterans Administration for Lack of Causation U.S. Court of Appeals Affirms

In 2011, a radiologist with the U.S. Department of Veteran Affairs (VA) missed identifying a cancerous mass in the liver of James Avery Deweese. Before the mass was finally diagnosed as cancerous in 2013, it had nearly doubled in size. Deweese died shortly thereafter.

The family of Deweese — through an administrator of his estate — brought a survival and wrongful-death claim against the United States pursuant to the Federal Torts Claims Act (FTCA). 28 U.S.C. ¶1346(b)(1).

The 8th Circuit Court of Appeals in St. Louis affirmed the district court’s grant of summary judgment for the government holding that although the VA failed to deliver the standard of care in correctly diagnosing and treating Deweese’s cancer, the evidence presented by the Deweese family was insufficient to raise a triable issue of fact as to whether the VA’s negligence proximately caused the plaintiff’s damages and subsequent death.

The court of appeals held that because the malpractice claims failed on causation, so too did the wrongful-death claims.
In 2011, Deweese’s laboratory results revealed elevated liver function. An advanced practical registered nurse who was in charge of Deweese’s care recommended that Deweese undergo a computerized tomography (CT).

The VA radiologist who read the scan noted that Deweese’s cirrhosis was stable but did not notice or identify anything else that looked suspicious. Almost two years later, on July 7, 2013, Deweese came to an emergency room complaining of increased and painful urination, incontinence and abdominal pain. His wife reported disorientation, confusion and slurred speech.

Deweese was then admitted to the hospital for further testing, which by ultrasound on July 7, 2013 revealed a suspicious mass in his liver. The mass measured 11.8 x 9 x 12.6 centimeters. The CT scan was compared to the CT scan from 2011. When that was done, the radiologist in 2013 noted that the mass was present in the 2011 scan as well although the measure of the liver mass was smaller. Because Deweese was too weak to receive any treatment, he was placed in hospice. He died at the age of 77.

The United States’ motion for summary judgment made the argument that the plaintiffs presented insufficient evidence that the VA was negligent or that its negligence was the proximate cause of Deweese’s death. One of the problems with the Deweese case was that an oncology expert testified at deposition, “We don’t know” whether Deweese would have received a liver transplant. He may not have been eligible for that transplant because of his condition.

An opinion by a Deweese expert stated that there was a 30% chance that a liver resection would have cured Deweese’s cancer. However, during the deposition testimony regarding whether the tumor could have been surgically removed through a liver resection in 2011, the expert stated that like most patients with liver cancer, the patient may not have tolerated the physiological stress of the resection.

Another Deweese expert on extending Deweese’s life was that given his condition, the likelihood was that even with treatment, he may not have lived for more than months. In fact, he lived 21 months after the 2011 CT scan.

After the court considered the evidence presented, the district court granted summary judgment to the United States, which was affirmed by the court of appeals.

Day v. United States, No. 16-3118, U.S. Court of Appeals for the 8th Circuit, Aug. 1, 2017.

Kreisman Law Offices has been handling wrongful death lawsuits, medical negligence cases, misdiagnosis of cancer lawsuits and traumatic brain injury lawsuits for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Antioch, South Barrington, Chicago Ridge, South Holland, Blue Island, Palos Hills, Palos Heights, Hickory Hills, Countryside, Willowbrook, Yorkfield, Bellwood, Hillside, Villa Park, Northlake, Des Plaines, Chicago (North Park, Morgan Park, McKinley Park, Little Italy, Lincoln Square, Bucktown, Buena Park, Canaryville, DePaul University Area, Humboldt Park, Hyde Park, Irving Park), Western Springs and Park Ridge, Ill.

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