Basanti v. Metcalf et al

Filing 388

ORDER by Judge Philip A. Brimmer on 2/26/15. ORDERED: The government's Motion Pursuant to Fed. R. Civ. P. 52(C) for Judgment on Partial Findings Relating to the Claim Against Dr. Kelet Robinson [Docket No. 346] and plaintiff's Motion for Ju dgment as a Matter of Law Regarding Causation [Docket No. 368] and Motion for Judgment on Partial Findings [Docket No. 369] are DENIED as MOOT. ORDERED: judgment shall enter in favor of defendant The United States Of America and against plaintiff Dalip Basanti. ORDERED: This case is closed. kpreu, ) Modified on 2/26/2015 to correct text.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-02765-PAB-NYW
DALIP BASANTI,
Plaintiff,
v.
JEFFREY METCALF, M.D.,
JASON ROZESKI, M.D., and
THE UNITED STATES OF AMERICA,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
The Court presided over a 12-day trial in this medical negligence case, involving
the alleged failure to diagnose a spinal cord cyst that caused paralysis in plaintiff Dalip
Basanti. The defendants consisted of Dr. Jeffrey Metcalf, Dr. Jason Rozeski, and three
physicians employed by the Salud Family Health Center, Dr. Kelet Robinson, Dr.
Lorraine Rufner, and Dr. Melissa Beagle (collectively the “Salud physicians”). Plaintiff’s
claims against Dr. Metcalf and Dr. Rozeski were tried to a jury, which returned a verdict
in favor of Dr. Metcalf and Dr. Rozeski. By virtue of the Federally Supported Health
Centers Assistance Act (“FSHCAA”), 42 U.S.C. § 233(g) et seq., plaintiff’s claims
concerning the Salud physicians were brought against the United States and, pursuant
to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b) and §§ 2671-2680, were
simultaneously tried to the Court. The evidence and arguments of counsel raise three
principal issues: whether the Salud physicians violated the standard of care in failing to

diagnose the cyst or otherwise conduct further workup on Ms. Basanti’s thoracic spine; 1
if so, did any such violations of the standard of care cause Ms. Basanti’s paralysis; and,
if causation was proved, what damages is Ms. Basanti entitled to receive. Pursuant to
Federal Rule of Civil Procedure 52(a)(1), the Court makes the following findings of fact
and conclusions of law.
I. FINDINGS OF FACT
1. On October 28, 2009, 2 a cyst at the first and second thoracic segments of her
spine compressed Ms. Basanti’s spinal cord sufficiently to cause paralysis from the
chest down. As a result, she has lost use of her legs, control over her bowel and
bladder, and sexual function.
A. Ms. Basanti
2. Ms. Basanti was born in 1955 in Punjab, India. In 1996, Ms. Basanti m oved
to the United States and, in 2004, becam e a United States citizen. She is married to
Ranjit Basanti and the couple has two adult children, Sukvir Basanti and Bhupinder
“Brian” Basanti.
3. Ms. Basanti has a college degree. English is not her native language and she
testified at trial through an interpreter. However, Ms. Basanti took her United States

1

Under Colorado law, the jury must make special findings “determining the
percentage of negligence or fault attributable to each of the parties” and properly
noticed non-parties. Colo. Rev. Stat. § 13-21-111.5. The jury found that the United
States of America was negligent, but found that such negligence was not a cause of
Ms. Basanti’s injuries. Docket No. 372-1 at 2. However, the Court did not elect to seat
the jury as advisory on plaintiff’s claim against the government and therefore will not
consider the jury’s verdict as advisory. See Fed. R. Civ. P. 39(c).
2

All dates are references to the year 2009 unless otherwise indicated.
2

citizenship test in English. She spoke some English at work in the United States,
including communicating with customers at a liquor store she owned and operated with
Mr. Basanti. A family member was generally present to provide interpretation
assistance during Ms. Basanti’s visits with physicians. No witness testified that
communication between Ms. Basanti and her treating physicians was impaired when
family members functioned as interpreters during physician visits.
B. Medical Facilities
1. Salud Clinic
4. The Salud Family Health Center (“Salud” or “Salud Clinic”) is located in Fort
Lupton, Colorado. 3 When a patient visited the Salud Clinic in 2009, a nurse would
generally write the patient’s primary complaint on the chart. After seeing the patient,
the treating physician would typically dictate a full note. The Salud Clinic did not have
an MRI machine in 2009. Ms. Basanti’s medical records indicate that she first visited a
Salud facility in 1999.
2. Platte Valley Medical Center
5. Platte Valley Medical Center (“PVMC”) is hospital located in Brighton,
Colorado and, during the relevant time period, was a 70-bed facility. The hospital’s
emergency department had 17 beds. Walk-in patients were met by an emergency
room technician and moved to a triage room, where the patient’s history and vital signs
were obtained. Patients were then generally taken back to an exam room. At any
given time, the emergency department was generally staffed by a physician, a nurse
3

Although there are multiple Salud clinics, all references to “Salud” or the “Salud
Clinic” refer to the Fort Lupton facility unless otherwise indicated.
3

practitioner, a physician’s assistant, four nurses, a secretary, and two emergency room
technicians. When a Salud patient visited the PVMC ER, the on-call Salud physician
would be contacted to see the patient and, if appropriate, to admit the patient to PVMC.
In 2009, PVMC had an MRI machine that was generally staffed starting at 7:00 a.m. or
8:00 a.m.
C. The Salud Physicians
1. Dr. Robinson
6. Dr. Robinson is a board certified family physician who has been practicing
since 2002. Since that time she has worked as a physician for the Salud Family Health
Centers. In 2005, Dr. Robinson became the director of the Fort Lupton clinic. Dr.
Robinson estimated that, in 2009, she saw between 20 and 25 patients per day.
7. Dr. Robinson testified that she generally recalled treating Ms. Basanti at the
Salud Clinic. However, with limited exceptions, Dr. Robinson had no independent
recollection of her thought process while treating Ms. Basanti in September and
October 2009. Rather, Dr. Robinson’s testimony about what took place during those
visits appeared to be based upon her interpretation of Ms. Basanti’s Salud records and
Dr. Robinson’s habit and practice. However, neither party elicited substantial testimony
regarding Dr. Robinson’s habit and practice. Thus, the Court finds that, to the extent
Dr. Robinson’s testimony about what took place and what she was thinking during Ms.
Basanti’s Salud visits is unsupported by a reasonable interpretation of the Salud
records, such testimony is speculative and generally entitled to lesser weight.
8. Dr. Robinson did not consider herself to be Ms. Basanti’s primary care
physician (“PCP”) because Ms. Basanti did not always request appointments with Dr.
4

Robinson. However, Ms. Basanti testified that she considered Dr. Robinson to be her
primary doctor. Whether Dr. Robinson was Ms. Basanti’s primary care provider or not
has no effect on the standard of care that applies to Dr. Robinson.
2. Dr. Rufner
9. Plaintiff did not call Dr. Rufner as a witness and neither side presented any
evidence concerning her background. Dr. Rufner saw Ms. Basanti once during the
relevant time period.
3. Dr. Beagle
10. Dr. Beagle is a board certified family physician and worked for Salud Family
Health Centers from September 2008 to June 2011 as an attending physician in the
Frederick, Colorado facility. Ex. A-54. During that time she had hospital privileges at
PVMC. She treated Ms. Basanti at PVMC on October 27 and 28, 2009. She adm itted
to having no independent recollection of treating Ms. Basanti on October 27 and any
testimony regarding her thought process on that day is entitled to no weight.
D. Expert Witnesses
11. As relevant to the present claims, the following physicians were endorsed as
expert witnesses pursuant to Fed. R. Civ. P. 26(a)(2)(B) and testified at trial:
a. Dr. Michael Rauzzino removed Ms. Basanti’s spinal cord cyst on
October 29, 2009 and testified for plaintiff as an expert witness in the field of
neurosurgery.

5

b. Dr. Laurence Huffman testified for plaintiff on the standard of care in
both family medicine and emergency medicine. Dr. Huffman first became board
certified in family practice in 1977 and emergency medicine in 1982.
c. Dr. Mark Deutchman testified for the government on the standard of
care in family medicine. Dr. Deutchman has been practicing family medicine
since 1978 and currently teaches family medicine at the University of Colorado
School of Medicine.
12. Plaintiff also called Dr. Lane Bracy and Dr. Celina Tolge as expert witnesses
pursuant to Rule 26(a)(2)(C), who generally testified only to those opinions formed
during the course and scope of their treatment of Ms. Basanti.
E. Anatomy
1. The Spinal Cord
13. Dr. Rauzzino was the only expert witness to testify in any detail on the
anatomy of the spinal cord. Thus, his testimony is generally undisputed.
14. The spine is made up of three areas, called, in descending order, the
cervical spine, the thoracic spine, and the lumbar spine. Each area of the spine is
divided into multiple segments. For example, “T1” refers to a vertebra located in the
upper-most segment of the thoracic spine and is located in the upper back, just above
the armpits. “T2” refers to the segment directly below T1.
15. The spinal cord sits between the disks and the joints and extends from the
cervical spine through the thoracic spine and ends in the top part of the lumbar spine.
The spinal cord is housed in a bony canal or tube. This rigid housing protects the cord
from outside harm, but also prevents the cord from expanding beyond its housing. The
6

spinal cord contains the dura, a sac filled with spinal fluid. The dura is highly sensitive.
Most importantly, however, the spinal cord contains fibers, referred to as white and gray
matter, which transmit signals to and from the brain. White matter contains fibers that
send signals up and down the spinal cord. Gray matter contains fibers that control
signals at specific segments of the spine. Nerve roots, which are located at specific
segments between the disks, connect the spinal cord with nerves that run to specific
parts of the body. The bottom of the spinal cord comes to a point, called the cauda
equina, which contains several nerve roots connecting to nerves running throughout the
legs. Ex. B-13.
16. Each segment of the spine and corresponding nerve root has a particular
function. For example, nerves connecting to the spinal cord at C5-C8 control sensation,
Ex. B11, and function in the arms and hands. Nerve roots emanating from the base of
the spinal cord control bowel, bladder, sexual function, and most of the nerves to the
legs. To move a toe, a signal from the brain travels down the cervical spinal cord and
thoracic spinal cord to the cauda equina, where the signal travels through the nerve
root, through nerves in the leg, and triggers muscles in the toe. The reverse is also
true. If a toe is pricked with a needle, a signal starts at the toe and travels up through
nerves in the leg, through the spinal cord, and up to the brain where the signal is
processed.
17. A compressive spinal lesion4 typically grows slowly over time and can have a
variety of effects depending on its size and location. Cysts that place pressure on a

4

The term “lesion” can be used to describe tumors, cysts, or infections.
7

nerve root will cause motor or sensory dysfunction only to the specific area of the body
serviced by that particular nerve. For example, nerves in the thoracic spine run
underneath the ribs. Therefore, a tumor or mass pushing against the nerve root at T2
will often create a loss of sensation across the chest wall. Conversely, a cyst that
places pressure on the spinal cord itself can affect any part of the spinal cord, and
corresponding nerves, below the lesion or injury. As the tumor or mass expands, the
spinal cord is pushed back against the surrounding bone. The tissue that transmits
signals up and down the spinal cord then becomes compressed. A tumor or mass
pushing against the spinal cord at T2 can block or affect any part of the body serviced
by nerves that connect to the spinal cord at or below the lesion and can cause a loss of
motor function from T2 downward.5 Thus, a cyst at T2 can cause local numbness
across the chest wall and/or a loss of sensation and/or motor function from T2
downward depending upon whether the cyst places pressure on the nerve root, spinal
cord, or both. In either case, the dura is itself sensitive, such that a cyst placing
pressure on the dura could produce localized pain over the spinal cord or pain referred
throughout the area in which the cyst is located.
18. If a spinal cord cell has become bruised or injured, it is possible for the cell
to recover once the pressure on it is relieved. If a spinal cord cell dies, it will not grow
back or regenerate. Thus, if a patient enters surgery to remove a compressive lesion
and retains some function, the patient would be expected to at least retain that function
after surgery.
5

For instance, if the spine was transected at the T1 level, a person would retain
functionality above T1, but lose all functionality below.
8

19. As relevant to spinal cord injuries, Dr. Rauzzino testified that leg numbness
comes in two forms: radicular numbness and spinal cord numbness. Radicular
numbness occurs when pressure is placed upon a particular nerve, which causes
symptoms only in the particular muscle or area serviced by that nerve. In order for the
entire leg to become numb from radicular numbness, pressure would have to be placed
on all of the nerve roots controlling that leg. On the other hand, spinal cord numbness
occurs when pressure is placed on the spinal cord itself and, therefore, a single lesion
can cause numbness in the entire leg.
2. Back Pain
20. Back pain is a common occurrence in patients seeking treatment from family
physicians and generally has a benign cause, such as minor muscle problems. In
some instances, back pain is caused by something more serious. In order to
differentiate between benign back pain and more serious back pain, medical students
are trained to recognize the more concerning signs and symptoms of back pain, often
referred to as “red flags.” All family medicine physicians who testified in this case
indicated familiarity with the concept of red flags. Dr. Beagle and Dr. Robinson
indicated that this was a concept taught in medical school prior to specialization.
21. Dr. Rauzzino testified as to the following red flags for back pain:
- Back pain without an inciting event, such as an injury.
- Rapid onset back pain combined with a fever.
- Because injuries to the neck or lumbar spine are much more common,
back pain in the area of the thoracic spine can be a red flag.

9

- Back pain with associated symptoms, such as the inability to move an
extremity or numbness in an entire extremity.
None of the expert witnesses in this case appeared to directly dispute Dr. Rauzzino’s
opinion that these conditions constitute red f lags. As a result, the Court finds Dr.
Rauzzino credible on this point. 6
22. Dr. Rauzzino testified that a physician is trained in medical school to look for
red flags when diagnosing the cause of back pain and, in all instances, to first rule out
the worst possible cause. However, Dr. Rauzzino also admitted that patients with back
pain do not, as a matter of course, undergo imaging, such as an MRI. Dr. Deutchman
also addressed the “worst first” concept, but testified that, under some circumstances,
ruling out the worst potential diagnosis is too expensive, invasive, or not reasonable
given the context. Although plaintiff’s counsel attempted to impeach Dr. Deutchman
with his deposition testimony on this issue, the Court finds Dr. Deutchman’s deposition
testimony largely consistent with his testimony at trial and credits his trial testimony on
this point. Dr. Robinson and Dr. Beagle similarly testified that, in most but not all cases,
it is important for a reasonable family physician to attempt to rule out those potential
diagnoses that are more life threatening.7 The Court finds that the opinion of Dr.
Rauzzino lacks context the other experts provided and, as such, gives greater weight to
the opinions of Dr. Deutchman, Dr. Robinson, and Dr. Beagle.

6

Additionally, the physicians in this case appeared to agree that, when
considering the possibility of a spinal cord injury, the inability to void urine is concerning.
7

For example, Dr. Robinson testified that leg numbness and pain in the thoracic
spine can be red flags indicating more serious underlying pathology, and that, if one or
more red flags were present, a neurologic evaluation should generally be done.
10

F. Ms. Basanti’s Compressive Cyst
23. Ms. Basanti had a benign endodermal cyst compressing her spinal cord at
T1-T2. The cyst was a focal compression that markedly displaced the spinal cord. Dr.
Rauzzino could not say precisely how long Ms. Basanti’s cyst had been present, but
testified that it likely had been present for years. Dr. Rauzzino described the cyst as
large, given its location. Because the cyst grew so large while Ms. Basanti nevertheless
retained motor function, Dr. Rauzzino believed that the cyst grew slowly.
24. Dr. Rauzzino testified this specific type of cyst is rare. Before Ms. Basanti,
Dr. Rauzzino has never had a patient diagnosed with a endodermal cyst at T1-T2. Dr.
Rauzzino testified that, although the type of cyst found in Ms. Basanti’s spine may have
been rare, a neurosurgeon commonly treats patients with tumors in the spinal column.
Moreover, pressure against the spinal cord is not an unusual occurrence.
25. The location of the cyst and corresponding spinal cord compression was
apparent, even to the untrained eye, from Ms. Basanti’s October 28, 2009 thoracic MRI
results. Dr. Rauzzino testified that the cyst would have been visible on an MRI of the
relevant area of the spine anytime between September 20 and October 28. Dr.
Rauzzino’s testimony on this point was credible and undisputed. Thus, the Court finds
that, between September 20 and October 28, 2009, Ms. Basanti’s cyst would have
been visible on an MRI of the thoracic spine. See Ex. 105; Ex. 107.
26. Dr. Rauzzino testified that, between September 20 and October 27, Ms.
Basanti had neurologic deficits associated with her thoracic cyst. The most definite sign
of this, in Dr. Rauzzino’s opinion, was Ms. Basanti’s pain reported near the shoulder
blades. Dr. Rauzzino testified that Ms. Basanti’s cyst had a thick wall and no signs of
11

leakage. Thus, it is more likely that the cyst would cause progressive, rather than
fluctuating, symptoms. The Court credits Dr. Rauzzino’s testimony to the extent he
offers a general opinion that neurologic deficits associated with the cyst were present
during the relevant time period. However, the exact location of Ms. Basanti’s
shoulder/upper back pain is, at best, unclear f rom the record, which undermines Dr.
Rauzzino’s conclusion that Ms. Basanti’s shoulder/upper back pain was attributable to
her cyst. The Court accordingly assigns lesser weight to Dr. Rauzzino’s opinion on this
point.
27. Dr. Rauzzino testified that a reasonable neurosurgeon who became aware
of the existence of a cyst similar to Ms. Basanti’s may not admit a neurologically intact
patient to the hospital immediately. The urgency of the condition would depend upon:
- The patient’s signs and symptoms.
- The severity of the patient’s neurological deficits, if any.
- Whether the patient had lost the use of a leg, in which case immediate
surgery would be advisable.
28. Dr. Rauzzino testified that if the cyst had been removed before full paralysis,
Ms. Basanti would have retained some function.
29. The Court credits Dr. Rauzzino’s undisputed testimony on the following
points:
- If Ms. Basanti’s cyst had been removed before August 26, she would
have retained the ability to walk.

12

- If Ms. Basanti’s cyst had been removed when she was complaining of
shoulder pain and leg numbness, she would have likely retained considerable
function.
G. Medical Visits 8
30. Ms. Basanti’s treating physicians, with some exceptions specifically noted
below, did not have an independent memory of Ms. Basanti’s physician visits. With
limited exceptions, Ms. Basanti did not testify concerning specific physician visits.
Thus, Ms. Basanti’s physician visits are reconstructed primarily based upon Salud and
PVMC medical records.
1. Medical Visits Prior to September 2009
31. Ms. Basanti sought treatment for diabetes at various Salud facilities prior to
September 2009.
32. Prior to September 2009, Ms. Basanti saw Dr. Robinson on two occasions:
a. On July 13, 2007, Ms. Basanti visited Salud for left neck, shoulder, and upper
back pain. Dr. Robinson and a physician’s assistant diagnosed Ms. Basanti with
muscular neck pain and prescribed Flexeril, a muscle relaxer. Ex. 1 at p. SF 000064.
b. On March 4, 2009, Ms. Basanti saw Dr. Robinson, complaining of dryness in
the tips of her thumbs and toes. Dr. Robinson diagnosed Ms. Basanti as having a

8

The Court discusses only those medical visits relevant to resolving Ms.
Basanti’s claims against the government.
13

fungal infection and uncontrolled diabetes. Dr. Robinson also noted the possibility that
neuropathy9 may have been causing Ms. Basanti’s itch sensation to present as pain.
33. The 2007 and 2009 visits appear to be the only times Ms. Basanti saw Dr.
Robinson before September 2009.
2. Medical Visits Between September 9, 2009 and October 22, 2009
a. September 9, 2009 Salud Visit
34. On September 9, 2009, Ms. Basanti visited Salud. A family medicine
resident took Ms. Basanti’s history. Ms. Basanti complained of right shoulder pain, at 9
out of 10 on the pain scale, that started three days prior to her visit. The resident
determined that Ms. Basanti’s pain was specifically located along the scapula, or
shoulder blade, and neck. Ms. Basanti did not report any injury to her shoulder and
denied any extremity numbness or tingling. Ms. Basanti reported that heat, ice, and
massage offered temporary relief. Ex. 1, p. SF000091. The resident diagnosed Ms.
Basanti with a muscle spasm, recommended a muscle relaxer and ibuprofen, as well as
continued heat, ice, and massage. Ms. Basanti was instructed to return to Salud in two
weeks if her condition did not improve. Dr. Robinson signed the resident’s assessment
and diagnosis indicating her agreement.
35. Dr. Robinson testified that, given Ms. Basanti’s age, the duration of the pain,
and her other conditions, Dr. Robinson would not, at that point, consider Ms. Basanti’s
pain to be particularly concerning. Dr. Robinson’s testimony on this point was credible

9

Neuropathy is a condition affecting nerves. Symptoms vary from patient to
patient and can include burning or tingling sensations or the total loss of sensation in a
person’s extremities. Neuropathy can be caused by a vitamin deficiency or an injury.
14

and not specifically contradicted by any other expert witness testifying as to the
standard of care for family physicians.
b. September 11, 2009 Visit at Dr. Walter’s Office
36. Dr. Harry Walter is a family practice physician in private practice. He is not
affiliated with the Salud Clinic.
37. On September 11, 2009, Ms. Basanti visited Dr. Walter’s office, complaining
of upper back pain, interfering with sleep. Dr. Walter’s nurse practitioner assessed
upper back pain due to sprain, recommended a muscle relaxant, and prescribed
Vicodin, a pain medication. Ex. A-36, p. WAL 00001.
c. September 17, 2009 Visit at Dr. Walter’s Office
38. On September 17, 2009, Ms. Basanti returned to Dr. W alter’s office. Ms.
Basanti’s complaints were the same as on her prior visit to Dr. Walter’s office, but with
the additional complaint of left leg pain and right arm pain. Ms. Basanti refused a pain
injection. Dr. Walter prescribed a cold pack and Percocet and directed Ms. Basanti to
return to the clinic as necessary.
39. Dr. Walter testified that, based upon his note, he f elt that Ms. Basanti had no
abnormal neurologic findings on September 17.
d. September 20, 2009 PVMC ER Visit
40. On September 20, 2009, Ms. Basanti visited the PVMC ER. She arrived at
approximately 2:00 p.m., complaining of left leg numbness present since that morning
and moving upwards. Dr. Metcalf10 examined Ms. Basanti at approximately 3:00 p.m.
10

Dr. Metcalf is board certified in internal medicine and began working full time in
the PVMC emergency department in 1998.
15

Ms. Basanti indicated that she had been having left leg numbness for five days, pain in
her left shoulder for the past week, and left side numbness, all of which became worse
that morning. Dr. Metcalf’s patient history also indicated, as relevant here:
- Based upon Ms. Basanti’s representation, Dr. Robinson was Ms.
Basanti’s PCP.
- Ms. Basanti’s shoulder pain was located on her right side, between the
shoulder blade and spine.
- Vicodin did not improve her condition.
- Ms. Basanti was diagnosed with diabetes approximately five years
earlier.
- Ms. Basanti had no trouble walking and no history of any injury or other
neck pain. Ex. 2, p. PVMC000008.
41. Dr. Metcalf’s physical examination revealed that Ms. Basanti did not appear
to be in distress, moved all extremities without limitation, and was alert. Her neck
movements were not limited. She walked normally.
42. Dr. Metcalf’s neurological examination indicated no abnormalities in the
cranial nerves.11 He did find slightly decreased sensation in the left leg and slight
weakness in the left leg, but nothing else abnormal.
43. The following test results were obtained during her visit:
- A normal EKG.

11

Cranial nerves are the nerves of the head and face.
16

- A chest x-ray,12 revealing clear lungs along with bone spurs along her
mid and lower thoracic spine, which can cause back pain, which
suggested to Dr. Metcalf that Ms. Basanti’s pain was musculoskeletal.
- Blood work, indicating to Dr. Metcalf that a heart attack was less likely.
- Urinalysis, which likely ruled out kidney stones.
44. Dr. Metcalf prescribed Toradol, an anti-inflammatory medicine, and Robaxin,
a muscle relaxer. Roughly 30 minutes after taking this medication, Ms. Basanti
reported that her pain had not improved. Dr. Metcalf then prescribed Fentanyl, a
narcotic medication for pain. At 5:47 p.m. Dr. Metcalf noted that Ms. Basanti’s pain and
numbness was much improved.
45. Dr. Metcalf checked the following boxes on his differential diagnosis13:
“Ischemic CVA,” “Cerebral-Cervical Trauma,” “Hypoglycemia,” “CNS Mass/Tumor,” and
“PE” (pulmonary embolism).14 Ex. 2, p. PVMC000009. He testified that he also
considered the possibility of heart attack, lung infection, kidney stones, musculoskeletal
pain, nerve impingement, or nerve problems, such as diabetic neuropathy. Dr.
Metcalf’s final diagnosis was back pain and paresthesia. He testified that a CNS
Mass/Tumor was less likely because Ms. Basanti had normal muscle tone, normal gait,

12

The expert witnesses in this case generally agreed that an x-ray will not show a
soft tissue tumor or mass.
13

A differential diagnosis is a list of potential explanations for a patient’s signs
and symptoms based upon a physician’s patient history and physical examination.
14

A pulmonary embolism describes the occurrence of blood clots in the lungs.
17

no bowel or bladder problems, numbness on one side, and because Ms. Basanti’s
symptoms improved with a small amount of pain medication.
46. Although Dr. Metcalf admitted he failed to definitively explain her symptoms,
at that point Dr. Metcalf believed that Ms. Basanti could safely be discharged. Dr.
Metcalf verbally instructed Ms. Basanti to follow up with Dr. Robinson in two days and
the PVMC nursing staff gave Ms. Basanti written instructions to the same effect. See
Ex. 2, p. PVMC000016. However, Dr. Metcalf did not explain to Ms. Basanti that a
spinal cord mass or tumor was a possible explanation for her symptoms. Dr. Metcalf
did not contact Dr. Robinson to follow up on Ms. Basanti’s visit or send a copy of his
notes to the Salud Clinic.
e. September 26, 2009 Salud Visit
47. Ms. Basanti visited Salud on September 26, 2009, complaining of left leg
numbness that began 30 minutes prior to her visit. Family Nurse Practitioner Eileen
Flaherty15 noted that Ms. Basanti visited the clinic for numbness in her left leg “that
occurred spontaneously.” Ex. 1, p. SF000092. During this visit, Ms. Basanti reported to
Nurse Flaherty that she had visited the emergency room within the last week, where a
stroke was ruled out. She said that she injured her back three weeks prior to this visit,
but had not had prior back pain or numbness. Ms. Basanti reported that she was
having no loss of muscle strength, but some tingling at night before falling asleep. The

15

Nurse Flaherty was employed by the Salud system and, in 2009, typically
worked at the Fort Lupton Salud facility on Saturdays.
18

Court finds that Ms. Basanti was experiencing some degree of numbness in her left leg,
the precise degree of which is unknown.16
48. Nurse Flaherty’s physical examination revealed the following:
- Normal deep tendon reflexes, normal left leg strength, decreased
sensation, normal range of motion of left leg and good, stable gait, some
difficulty walking on her toes.
- Increased upper back pain on the right side, between the scapulae and
spasming of the paraspinous 17 in the midthoracic area.
49. It is undisputed that Nurse Flaherty was examining the thoracic area of Ms.
Basanti’s back; however, the precise location of Ms. Basanti’s pain was disputed at trial.
Because Nurse Flaherty’s liability is not at issue, the question becomes how a
reasonable family physician would interpret Nurse Flaherty’s description of Ms.
Basanti’s pain. The expert witnesses generally agreed that pain is often referred from
one location to another. Dr. Deutchman was the only family practice physician other
than Dr. Robinson who offered a specific interpretation of Nurse Flaherty’s note, but his
testimony was somewhat inconsistent on this issue.
a. Plaintiff argued that Ms. Basanti’s pain was either directly over the
thoracic spine and was incorrectly documented or was referred from the thoracic
spine to the shoulder. When questioned by plaintiff’s counsel, Dr. Deutchman

16

Although plaintiff’s counsel interpreted the note as indicating the presence of
numbness throughout the entire left leg, the note, by itself, does not compel that
conclusion.
17

The paraspinous describes an area in the upper back, to the side of the spine,
but not directly over the spinal cord.
19

testified that Nurse Flaherty was likely looking at Ms. Basanti’s thoracic spine.
Dr. Deutchman admitted that, if a family physician were considering spinal cord
compression, the thoracic spine would be the most likely location. However, Dr.
Deutchman’s testimony on this point was brief and plaintiff’s counsel did not ask
him to elaborate. Thus, the Court does not assign such testimony great weight.
b. Dr. Deutchman also interpreted Nurse Flaherty’s note as describing
pain located in the shoulder and upper back, not necessarily localized over the
spine. As a result, Dr. Deutchman concluded that Nurse Flaherty was not
required to order an MRI of the thoracic spine because Ms. Basanti’s upper back
pain seemed to present in the shoulder area and Nurse Flaherty’s examination
of Ms. Basanti’s lower back revealed nothing abnormal.
c. The Court finds that a reasonable family physician could credibly
interpret Nurse Flaherty’s note as documenting pain traceable to the thoracic
spine. However, given the inconsistencies in Dr. Deutchman’s testimony on the
subject, the Court is unconvinced that such an interpretation is the only
reasonable one. Rather, a reasonable family physician could also interpret the
note as describing pain traceable to the shoulder or upper back, rather than
occurring specifically over the thoracic spine.
50. Nurse Flaherty diagnosed Ms. Basanti with back pain and neuropathy in the
left leg that was intermittent. Nurse Flaherty suggested that Ms. Basanti should be
considered for a referral to physical therapy and that further radiological evaluation of
the back could be necessary if the pain persisted. Nurse Flaherty noted that Ms.
Basanti had a follow-up appointment scheduled for the following Monday. No expert
20

testified that Nurse Flaherty was required to order an MRI of the thoracic spine at this
time.
f. September 28, 2009 Salud Visit
51. On September 28, 2009, Ms. Basanti visited Salud complaining of upper
back pain and numbness in her left leg. Dr. Robinson’s note suggests that she
perceived18 Ms. Basanti’s complaints to be “pain in her right shoulder as well as back
pain in her lumbar spine, which radiates as numbness into her left leg. She feels that
her right arm has become weaker . . . .” Dr. Robinson noted that Ms. Basanti had
visited Salud on multiple occasions. Ms. Basanti reported that she had been to the
PVMC ER for evaluation and that “no studies ha[d] been done.” Ms. Basanti also
indicated that the prescribed medications were not helping. Ex. 1, p. SF000101. Dr.
Robinson did not document any additional patient history during this visit.
a. During her trial testimony, Dr. Robinson characterized Ms. Basanti’s
complaints as shoulder pain or pain over the scapula, which Dr. Robinson
considered to correspond to the low cervical area. Dr. Robinson did not indicate
that she appreciated Ms. Basanti’s pain as attributable to Ms. Basanti’s thoracic
spine. The Court gives some weight to Dr. Robinson’s testimony on this point
inasmuch as it was based on her own habit and practice of charting patient
complaints. However, such testimony was based upon Dr. Robinson’s in-court

18

Dr. Robinson admitted that she had no independent recollection of her thought
process during this visit. As noted above, to the extent Dr. Robinson speculated as to
what her thought process was during her treatment of Ms. Basanti on this date, the
Court declines to credit such testimony.
21

interpretation of her note from this visit, not on any specific recollection of what
she was thinking at the time.
b. Dr. Deutchman characterized Ms. Basanti’s pain as located in the
lower back and shoulder, with no indication that her pain was over the thoracic
spinal cord. The Court finds that Ms. Basanti reported pain near her shoulder,
but not directly over the thoracic spinal cord.
52. Nurse Flaherty’s note concerning Ms. Basanti’s September 26 visit was
dictated on September 28 and transcribed the next day. It was therefore not available
to Dr. Robinson during this visit.19 Ex. 1, p. SF000093. Despite having the ability to do
so, Dr. Robinson did not contact PVMC or Dr. Metcalf for records or information
concerning Ms. Basanti’s September 20 ER visit.
a. In Dr. Huffman’s opinion, Dr. Robinson was required to acquire the
emergency room records and, if she had done so, would have realized that Dr.
Metcalf had not ruled out a spinal cord tumor, which perhaps would have led to
more aggressive workup. Dr. Huffman did not explain the basis for his opinion
and, accordingly, the Court assigns it lesser weight.20

19

In 2009, Salud physicians would dictate notes and have them transcribed at a
later date, typically the day after a visit.
20

Dr. Huffman testified that Dr. Robinson acted unreasonably by failing to
consider another note from Ms. Basanti’s Salud medical records, namely, a note from a
May 18, 2006 physical therapy session at PVMC. The therapist noted that Ms. Basanti
complained of pain in the neck and across both shoulders. T he therapist found
strength deficits in the cervical and scapular stabilizers and recommended continued
physical therapy. Id. p. SF000046.
Dr. Huffman testified that the May 18, 2006 note would have prompted a
reasonable physician to image the back and possibly perform electro physiologic
studies and further diagnosis. The Court assigns Dr. Huffman’s opinion no weight.
22

b. When questioned by the government’s counsel, Dr. Deutchman
testified that Ms. Basanti’s statement that “no studies have been done” was
sufficient to indicate to Dr. Robinson that Dr. Robinson would not be duplicating
any tests done at PVMC and, as a result, that there was no reason to acquire the
ER records. See Ex. 1, p. SF000101. However, this opinion is squarely
contradicted by Dr. Deutchman’s own testimony when questioned by plaintiff’s
counsel, where Dr. Deutchman testified that Dr. Robinson had an obligation to
get the records from the September 20 ER visit. Thus, the former opinion lacks
credibility.
53. Dr. Robinson conducted a physical examination of Ms. Basanti on
September 28 and found:
- Tenderness over the right shoulder.
- Normal strength and movement of the shoulder joint. Dr. Robinson did
not document Ms. Basanti’s strength in any other extremities.
- Palpable tightness of the subscapularis muscles.21
- Normal straight leg raises, normal reflexes, and good flexibility.

First, Dr. Huffman did not explain what about this particular record would have
prompted a reasonable physician to image the back. Second, Ms. Basanti did not
attend physical therapy follow-up appointments and the records do not indicate that she
again visited a physician for those same pain and weakness issues, which suggests
that the pain and weakness complained of in 2006 resolved itself. Dr. Huffman did not
explain why this note should have been concerning to Dr. Robinson. Third, there is no
evidence that the pain and weakness Ms. Basanti complained of in 2006 was related to
spinal cord compression. Although Ms. Basanti’s cyst may have been present since
birth, there was no testimony that neurological symptoms related to Ms. Basanti’s cyst
would have been present in 2006.
21

Subscapular muscles are located in the upper shoulder.
23

- No discomfort with palpation of the lower spine.
Ex. 1, p. SF000101. Dr. Robinson testified at trial that she did not consider these
findings to be neurologically concerning and, although consistent with Ms. Basanti’s
symptoms, a compressive lesion on the thoracic spine would not have been high on her
differential diagnosis at that time. Dr. Robinson was also unconcerned by Ms. Basanti’s
complaint of right arm weakness because, when tested, strength in that arm was
normal. It was not clear that Dr. Robinson had an independent recollection of her
clinical impressions during this visit. The Court accordingly assigns this testimony little
weight.
54. Dr. Robinson ordered an x-ray of Ms. Basanti’s lumbar spine and shoulder.
Dr. Robinson diagnosed Ms. Basanti with back pain, recommended that Ms. Basanti
continue with pain medications, and told her that the back pain will usually resolve on its
own within six weeks. Id.
a. Dr. Robinson testified that the multi-level degenerative, or
osteoarthritic, changes revealed by the x-ray could have been an explanation for
Ms. Basanti’s back pain. Dr. Deutchman agreed that the x-ray findings could
explain Ms. Basanti’s lower back pain. Dr. Robinson testified that, in her
practice, pain in the lumbar spine commonly causes a sensation of numbness or
shooting pain down one of the legs. However, on examination by plaintiff’s
counsel, Dr. Robinson admitted that the x-rays appeared normal in that they did
not provide an explanation for the pain and leg numbness that Ms. Basanti
complained of. Dr. Robinson also testified that normal straight leg raises and a
lack of discomfort in the lower spine lead a physician away from diagnosing leg
24

numbness as caused by a lower back problem. Dr. Robinson’s testimony is
therefore somewhat inconsistent.
55. Dr. Robinson’s note stated: “If there is worsening of symptoms, especially
with more objective findings of weakness, I will likely send her for MRI.” Ex. 1, p.
SF000101.
a. Dr. Robinson testified that she was considering an MRI, as opposed to
a CT scan, because an MRI would better reveal soft masses. Based upon Ms.
Basanti’s condition, if Dr. Robinson would have ordered an MRI, she would have
first ordered an MRI of the lower back and shoulder. Because Dr. Robinson
admitted to having no independent recollection of her thought process during this
visit, the basis of this testimony is unclear. As a result, the Court gives this
testimony little weight.
b. Dr. Deutchman testified that, based upon Dr. Robinson’s note, it
appeared that she was considering a lumbosacral MRI. In Dr. Deutchman’s
opinion, even when considering the progression of Ms. Basanti’s symptoms, Dr.
Robinson was not required to order an MRI of Ms. Basanti’s thoracic spine
during this visit. In light of the lack of expert testimony to the contrary, the Court
finds Dr. Deutchman’s opinion credible and assigns it significant weight.
g. October 5, 2009 Salud Visit
56. Ms. Basanti’s October 5, 2009 Salud visit was initiated by Salud staff for the
purpose of following up on lab results and other tests ordered during Ms. Basanti’s
September 28th Salud visit. Ex. A2, p. 103. A medical student wrote that Ms. Basanti
had no specific complaint and that her shoulder and back pain had improved from ten
25

out of ten on the pain scale to six out of ten without the use of Vicodin. The medical
student who saw Ms. Basanti wrote: “Diabetic neuropathy: numbness on legs. Start
gabapentin . . . .” Ex. 1, p. SF000108. No other history or physical examination was
documented. Dr. Robinson signed the medical student’s note and wrote “Also seen by
me. Agree w/ note.” Id. Neither the medical records nor Ms. Basanti’s own testimony
generally suggest that she made a specific complaint during this visit.
a. The evidence at trial did not definitively establish what the medical
student meant when writing “numbness on legs.” Dr. Robinson’s testimony was
inconsistent on this point, first admitting that the note indicates numbness
present in or on (“on” suggesting skin sensation or perhaps prickliness) both
legs22 and later denying that the note indicates any progression of symptoms.
Dr. Robinson’s testimony is therefore not credible. At trial, plaintiff suggested
that this sentence should be interpreted to m ean that both of Ms. Basanti’s legs
were entirely numb, such that Ms. Basanti was experiencing complete numbness
consistent with pressure on the spinal cord. The Court rejects this interpretation
of the medical record. First, such a significant finding would likely be the product
of a physical examination, and the note contains no indication that a phy sical
examination was performed. Second, when questioned by plaintiff’s counsel, Dr.
Robinson admitted that the note did not list any objective evidence upon which to

22

During a portion of her deposition testimony read at trial, Dr. Robinson testified
that numbness in the right leg and left leg on October 5th would represent a significant
change from Ms. Basanti’s condition at her last Salud visit. However, as discussed
herein, plaintiff failed to present evidence, beyond the medical record itself, upon which
to determine the true progression, if any, of Ms. Basanti’s leg numbness.
26

base a diagnosis of diabetic neuropathy. Thus, plaintiff appears to argue for an
interpretation that discredits the first two words of the sentence “Diabetic
neuropathy: numbness on legs,” yet gives increased meaning and importance to
the last three words “numbness on legs.” The Court does not find this
interpretation reasonable. The Court infers from the sentence in question that
Ms. Basanti’s left leg numbness persisted and that, on October 5, Ms. Basanti
was experiencing numbness on her right leg in a manner consistent with diabetic
neuropathy – such as a loss of sensation. The Court will not, however, infer that
Ms. Basanti was experiencing complete numbness on both legs.23
57. Dr. Deutchman testified that the improvement in Ms. Basanti’s pain,
seemingly without the use of pain medications, indicated that Ms. Basanti’s problem
was improving and that such improvement was not simply due to taking pain
medication. He further stated that this decreased the urgency of doing further
evaluation.
58. Dr. Robinson testified that she did not do a neurologic exam during this visit
because Ms. Basanti did not initiate the visit and did not make a specific complaint. Dr.
Robinson’s testimony does not appear to have been based upon any independent
recollection of the October 5 visit and, as a result, the Court does not credit it as such.
Rather, Dr. Robinson appears to have been testifying based upon her interpretation of
the note and her habit and practice, which, in this instance, provides some foundation
for her testimony.
23

Moreover, Dr. Rufner’s note dated October 9, 2009 indicates that Ms. Basanti
complained of only left leg numbness. See Ex. 1 at p. SF 000110.
27

a. Dr. Deutchman testified that the purpose of this visit was to discuss
Ms. Basanti’s lab results and was not critical of Dr. Robinson’s decision not to do
a neurologic exam. No other family medicine physician testified that the
standard of care required Dr. Robinson to perform a neurologic exam during this
visit.
59. Dr. Deutchman testified that, at this point, Dr. Robinson had no reason to
order an MRI of the lumbar or thoracic spine. No other family medicine physician
offered an opinion regarding Dr. Robinson’s conduct during this visit.
h. October 8, 2009 Salud Visit
60. On October 8, 2009, Ms. Basanti met with a diabetic educator at Salud to
discuss her diabetes. Based upon the legible portions of the note from this visit, it does
not appear that Ms. Basanti’s neurological symptoms were discussed.
i. October 9, 2009 Salud Visit
61. On October 9, 2009, Ms. Basanti saw Dr. Rufner to request a change in her
diabetic medication. Dr. Rufner’s note states: “The patient is still experiencing her left
leg numbness, but she has had it worked up at the hospital.” Ex. 1, p. SF000110.
62. Dr. Rufner’s examination revealed no edema in the lower extremities and
indicated sensation throughout the lower extremities. Dr. Rufner concluded that Ms.
Basanti’s left leg numbness had been worked up extensively and expressed hope that
her condition would improve with Neurontin and better glycemic control.
a. Dr. Deutchman testified that Dr. Rufner was not herself required to
work up Ms. Basanti’s leg numbness because the visit was for a different issue,

28

namely, a change in diabetic medication, and because Dr. Rufner was working
under the assumption that the leg numbness had already been worked up, even
though Dr. Deutchman admitted that, in reality, leg numbness had not been
worked up.24
b. Neither side called Dr. Rufner as a witness. There is no evidence
indicating what, if any, basis Dr. Rufner had for believing that Ms. Basanti’s leg
numbness had been worked up or even what Dr. Rufner meant by “worked up.”
However, given that this information first appears in the subjective section of Dr.
Rufner’s note, the Court finds, based on reasonable inferences from the
evidence, that Ms. Basanti communicated this information to Dr. Rufner. There
was no expert testimony indicating that Dr. Rufner was not permitted to rely in
part on Ms. Basanti’s representations. Although, in hindsight, it is apparent that
Ms. Basanti’s leg numbness had not in fact been “worked up,” plaintiff failed to
show by a preponderance of the evidence that Dr. Rufner’s belief was
unreasonable at the time.
63. Dr. Robinson’s September 28 note was likely in Ms. Basanti’s file during her
visit with Dr. Rufner; thus, Dr. Rufner had access to it.
a. Plaintiff’s counsel impeached Dr. Deutchman with his deposition
testimony that indicated, if Dr. Robinson was not available, Dr. Rufner should
have ordered an MRI based upon Dr. Robinson’s Septem ber 28 note only if Dr.
24

In a portion of his deposition read at trial during plaintiff’s case, Dr. Deutchman
testified that Dr. Rufner should have gotten records from Ms. Basanti’s PVMC ER visit.
The Court finds that Dr. Deutchman’s deposition testimony on this point impeaches his
credibility, but will not receive such testimony as substantive evidence.
29

Rufner considered the note to be a plan of care. However, Dr. Deutchman
qualified his answer to indicate that would only be true if Dr. Rufner considered
the note to be a plan of care.
64. Dr. Deutchman testified to two hypotheticals concerning Dr. Rufner’s care:
First, if, on October 9th, Dr. Rufner (1) received Ms. Basanti’s PVMC ER record and
saw that CNS/tumor is listed on the differential diagnosis (2) ordered a lumbar MRI (3)
the lumbar MRI is negative and (4) thought a lesion higher up was causing Ms.
Basanti’s symptoms, then Dr. Rufner had a responsibility to look at the remainder of the
spine. Second, if a lumbar MRI on Ms. Basanti was negative, it would have made
sense for Dr. Rufner to proceed with a thoracic MRI.
a. Dr. Deutchman testified that Dr. Rufner was not obligated, as a
reasonable family physician, to order an MRI of Ms. Basanti’s thoracic spine and
his opinion was unchallenged by any other family medicine expert witness.
Accordingly, the Court finds that both hypotheticals lack a sufficient factual
connection to this case and assigns them little weight.
65. With the exception of Dr. Deutchman, no other expert in family medicine
testified specifically regarding Dr. Rufner’s care. None of the Salud physicians testified
as to whether it would have been typical for them to order an MRI based upon a
suggestion contained in another physician’s note. Dr. Robinson’s note does not
specify what area of the body Dr. Robinson contemplated imaging.
j. October 12, 2009 Salud Visit
66. On October 12, 2009, Ms. Basanti saw Dr. Robinson for a follow-up on back
pain and left-sided numbness. Dr. Robinson’s note states: “At last visit, she was
30

complaining of left-sided shoulder weakness and numbness going down her left arm.
She also continues to have low back pain. We did x-rays after the last visit and she is
here to get those results. She says that her pain has improved some since the last
visit.” Ex. 1, p. SF000112.
a. Dr. Deutchman testified that Ms. Basanti’s report of improved pain
would be viewed as reassuring. His testimony on this point was undisputed.
67. Dr. Robinson admitted that she did not perform a neurologic examination
and did not document any other history related to Ms. Basanti’s shoulder and neck
problems. Dr. Robinson testified that there was no objective evidence of progressive
weakness or other convincing findings that more aggressive testing should be done.
She based this opinion upon the review of notes and information from other providers,
upon prior examinations, and, supposedly, upon Ms. Basanti’s interactions in the exam
room. However, given her lack of memory as to this visit, Dr. Robinson’s testimony is
given limited weight.
68. Dr. Robinson’s note indicates that she diagnosed most of Ms. Basanti’s
symptoms as caused by osteoarthritis.25 Dr. Robinson recommended NSAIDS, a nonsteroidal anti-inflammatory, and physical therapy. Ex. 1, p. SF000112. Dr. Robinson
testified that her practice was to remind patients to return to the clinic if symptoms
worsened.

25

Dr. Robinson’s note from this visit goes on to mention “rheumatoid arthritis.”
Ex. 1, p. SF000112. However, there was no testimony explaining the relationship, if
any, between rheumatoid arthritis and osteoarthritis.
31

a. When questioned by the government’s counsel, Dr. Robinson said
that, based on the labs and x-rays, Ms. Basanti presented a classic picture of a
middle aged woman with osteoarthritic changes of her back experiencing back
pain. The Court credits this testimony only to a limited extent since it fails to
account for Ms. Basanti’s shoulder pain, which Dr. Robinson did not indicate
could be explained by osteoarthritic changes.
b. In regard to this office visit, Dr. Huffman noted that Dr. Robinson did
not order an MRI and failed to review the September 28 note suggesting that an
MRI might be necessary. Dr. Huffman appeared to be of the opinion that Dr.
Robinson breached the standard of care in failing to order an MRI. However, Dr.
Huffman did not explain what the standard of care required. For example, it is
unclear whether, in Dr. Huffman’s opinion, reasonable family physicians must
always follow treatment plans contained in their notes; whether, under the
circumstances, an MRI should have been ordered if Ms. Basanti’s symptoms did
not improve; or whether the standard of care required something else entirely.
Nor did Dr. Huffman indicate what part of Ms. Basanti’s body Dr. Robinson
should have imaged. The Court therefore assigns Dr. Huffman’s opinion little
weight.
c. Dr. Deutchman testified that a physician must reevaluate a patient on
subsequent visits and is not bound to follow a plan formed in an earlier visit.26
26

Although plaintiff attempted to impeach Dr. Deutchman with his prior deposition
testimony, the hypothetical question posed to Dr. Deutchman during his deposition was
incomplete and phrased generally. At trial, Dr. Deutchman was asked a more specific
question and gave a slightly different answer.
32

When questioned by the government’s counsel, Dr. Deutchman testified that Dr.
Robinson was not required to order an MRI of Ms. Basanti’s lumbar or thoracic
spine because Ms. Basanti’s symptoms were not referable to the thoracic area
and appeared to be improving.
d. No other family medicine physician offered an opinion as to whether
Dr. Robinson was required to order an MRI of Ms. Basanti’s lumbar or thoracic
spine at this time. The Court assigns considerable weight to Dr. Deutchman’s
undisputed opinion that a physician is not bound by plans formed during earlier
visits. Dr. Deutchman’s opinion that Ms. Basanti’s symptoms were not referable
to the thoracic area, however, is unsupported by the evidence in this case. In
fact, the undisputed testimony was that pressure on the dura can result in the
referral of pain to other areas.
k. October 15 and 22, 2009 Salud Visits
69. Ms. Basanti visited a diabetic educator at the Salud Clinic on October 15
and October 22, 2009. The diabetic educator’s note from October 22, although mostly
illegible, appears to state that “[p]ain in legs prevents from exercising or walking.” Ex. 1,
p. SF000116.
a. There was no evidence that Dr. Robinson or Dr. Beagle were aware of
either visit or at any point viewed the notes from these visits. Similarly, there was
no testimony indicating that Dr. Robinson or Dr. Beagle would have had access
to the notes from these visits. It is, however, reasonable to infer that the notes
from these visits would have, at some point, been placed in Ms. Basanti’s Salud
records, but it is not clear whether that took place before October 27.
33

b. Dr. Huffman testified that, when contacted by Dr. Beagle on October
27 regarding Ms. Basanti, Dr. Robinson was required to review her notes and
Ms. Basanti’s chart and communicate with Dr. Beagle based upon the
information contained within. Dr. Huffman did not indicate whether information
from these visits was among the information Dr. Robinson was required to relay
to Dr. Beagle. No other expert witness was critical of Dr. Robinson or Dr. Beagle
for failing to make themselves aware of these visits.
3. October 27, 2009
a. Dr. Rozeski and Dr. Bracy
70. At approximately 3:30 a.m. on October 27, 2009, Ms. Basanti went to the
PVMC emergency department. Her first contact was with PVMC nurses, who recorded
that she was unable to ambulate or stand. Ex. 3 p. PVMC000028.
a. Ms. Basanti’s blood was drawn at approximately 3:50 a.m. Ms.
Basanti’s blood work showed sodium levels outside the normal range, indicating
that she was hyponatremic.27 Low chloride and potassium levels were also
present, indicating a change in Ms. Basanti’s electrolytes. Ms. Basanti’s glucose
levels of 225 mg/dl were high and well outside the normal range of 70-110 mg/dl.
Ex. 3, p. PVMC000042. 28

27

Dr. Beagle testified, and the expert witnesses generally agreed, that
hyponatremia indicates that a patient has low sodium levels in the blood. It can cause
nausea, vomiting, and general feelings of weakness.
28

Glucose levels in the body are controlled by insulin, which is produced in the
pancreas. Too much glucose in the body can be harmful and, as relevant here, affect
peripheral nerve function.
34

b. At 5:30 a.m., nurses placed a Foley catheter.29 Once a Foley catheter
is placed it is difficult to evaluate whether the patient can urinate without
assistance.
71. Ms. Basanti saw Dr. Rozeski,30 who first examined Ms. Basanti at
approximately 4:00 a.m. Dr. Rozeski noted that Ms. Basanti was complaining of
shoulder pain, constipation, weakness, leg tingling, and vomiting. Ex. 3, p.
PVMC000031. Dr. Rozeski performed a physical examination of Ms. Basanti. He
noted, as relevant here, that she had:
- Good rectal tone.
- Sensation in both legs to pinprick and cold.
- No focal motor or sensory deficits.
- No abnormal reflexes.
Ex. 3, p. PVMC000032. Dr. Rozeski ordered a CT scan of the lumbar spine. A
preliminary interpretation of the scan found nothing abnormal. Ex. 3, p. PVMC000061.
72. Dr. Rozeski diagnosed Ms. Basanti with hyponatremia, diabetes, and
numbness. Ex. 3, p. PVMC000032.
73. Dr. Bracy31 was the on-call Salud physician during the early morning hours
of October 27. At approximately 5:30 a.m., Dr. Bracy received a call from Dr. Rozeski

29

A Foley catheter is a tube inserted through the urethra and into the bladder.

30

Dr. Rozeski is a board certified emergency medicine physician who worked full
time in the PVMC emergency department between 2008 and 2010.
31

Dr. Bracy specializes in family medicine. In 2009, Dr. Bracy was a Salud
physician who worked primarily at the Salud facility in Commerce City, Colorado.
35

that a Salud patient had arrived at the ER. Dr. Bracy indicated that he would come to
the emergency department to examine her. At approximately 6:30 a.m., Dr. Bracy
arrived in the emergency department and conducted a history and physical
examination. Dr. Bracy found that plaintiff was unable to move her right leg and that
this condition had developed within the last one to several days.32
74. There was no evidence that Dr. Bracy had access to Ms. Basanti’s Salud
records during this examination. Dr. Bracy testified that, in 2009, a Salud physician at
PVMC could call the Salud clinic and ask a staff member to look through the chart for
specific information. There was no indication, however, that the Salud records were
available at PVMC electronically in 2009. Dr. Beagle testified that, during business
hours, the Salud clinic could have sent the records over upon request, but there was no
testimony regarding how long it would have taken for the records to arrive at PVMC.33
75. Both Dr. Bracy and Dr. Rozeski agreed that the standard practice is for an
on-call physician to admit a patient when contacted by the ER physician. Dr. Bracy and
Dr. Rozeski have differing recollections of whether Dr. Bracy admitted the patient.
a. Dr. Bracy recalled telling Dr. Rozeski that he would examine the patient
before agreeing to admit her. Dr. Bracy felt that Ms. Basanti needed more
workup before being admitted to the hospital. He testified that he did not, at any

32

In 2009, Ms. Basanti’s Salud medical records would not have been available to
Dr. Bracy or Dr. Rozeski until the Salud Clinic opened at 8:00 a.m. There is no
indication that, in 2009, the Salud records would have been available at PVMC
electronically.
33

The Court takes judicial notice of the fact that it is approximately a twelve mile
drive between the Fort Lupton Salud facility and PVMC.
36

point, agree to admit her. Dr. Bracy testified that, if he had admitted Ms. Basanti,
it was his standard practice to write admission orders and dictate an admission
history and physical. No such orders or notes are contained in the m edical
records.
b. Dr. Rozeski, despite admitting that he had very little specific memory of
Ms. Basanti’s visit, testified that during the phone call Dr. Bracy indicated that he
would accept admission of the patient and do an evaluation at the hospital, as is
typical for admitting physicians. Dr. Rozeski’s note indicates that, at 5:40 a.m.
he was admitting the patient to Dr. Bracy. Dr. Rozeski’s note also states that, at
6:50 a.m., Dr. Bracy saw the patient in the ER, perceived diminished motor
function in Ms. Basanti’s right leg, and wanted an MRI prior to admission. Ex. 3,
p. PVMC000032. Dr. Rozeski testified that, if Dr. Bracy did not intend to admit
Ms. Basanti, Dr. Bracy failed to inform nurses, Dr. Rozeski, or the incoming
PVMC ER physician Dr. James Hogan of that fact.
c. The admission orders in the medical record state that the patient was
admitted to Dr. Bracy. The admission orders were filled out at 5:56 a.m., before
Dr. Bracy examined Ms. Basanti.
d. The Court finds Dr. Bracy’s testimony credible and, as such, the Court
finds that Dr. Bracy was operating under a genuine and reasonable belief that he
did not admit Ms. Basanti.
76. After examining Ms. Basanti, Dr. Bracy discussed his findings with Dr.
Rozeski and suggested that Ms. Basanti receive an MRI before being admitted. Dr.

37

Bracy testified that he was considering an MRI of the lumbar spine. An MRI of Ms.
Basanti’s brain and lumbar spine was then ordered. 34
77. Dr. Rozeski has no independent memory of speaking with Dr. Hogan and
testified that he did not speak with Dr. Beagle. Dr. Rozeski’s shift ended at 7:00 a.m.
78. At 7:20 a.m., Ms. Basanti was taken to the MRI machine. She returned to
the ER at 8:40 a.m. complaining of increased pain in her arms and left side. Ex. 3, p.
PVMC000029. Radiologist Randy Mount dictated his findings at approximately 8:30
a.m. Ex. 3, p. PVMC000057-59. The brain MRI findings were transcribed at 11:11 a.m.
and the lumbar MRI findings were transcribed at 12:40 p.m. Id.
79. Based upon the notes from PVMC nurses, it appears that, at 10:05 a.m.,
Ms. Basanti was transferred by cart to the hospital floor. Ex. 3, p. PVMC000029. At
11:20 a.m., a PVMC nurse noted that Ms. Basanti was experiencing weakness in her
right and left legs, but was able to move all extremities. Ex. 3, p. PVMC000093.
b. Dr. Beagle
80. Dr. Beagle testified that she has no independent memory of Ms. Basanti
from October 27, 2009. Her testimony as to the events of that day are based upon her
review of medical records and her habit and practice.
81. At 7:00 a.m., Dr. Beagle took over for Dr. Bracy as the on-call Salud
physician. Dr. Beagle did not recall speaking with anyone in the emergency department
about Ms. Basanti. Dr. Bracy recalled speaking with Dr. Beagle later in the morning,
but neither Dr. Bracy nor Dr. Beagle has a specific recollection of what was discussed.
34

Although Dr. Bracy and Dr. Rozeski disagree as to who ordered the MRI, the
disagreement is inconsequential.
38

Dr. Bracy testified that, because Ms. Basanti was not yet admitted to Salud, he may not
have automatically discussed Ms. Basanti with Dr. Beagle. He also testified that it was
likely that he would have mentioned Ms. Basanti and the reason for not admitting her.
The Court finds that, had Dr. Bracy been operating under the belief that Ms. Basanti
was an admitted patient, he would have discussed Ms. Basanti’s condition with Dr.
Beagle in additional detail. The Court therefore cannot find it more likely than not that
Dr. Bracy communicated to Dr. Beagle that Ms. Basanti was unable to move her right
leg.35
82. The circumstances under which Dr. Beagle came to care for Ms. Basanti are
not entirely clear.36 Dr. Beagle saw Ms. Basanti at some point after 10:05 a.m. and
before 12:15 p.m., likely at approximately 11:00 a.m. Dr. Beagle testified that it is her
general practice, when seeing a patient transferred from the emergency department, to
review records and notes from the emergency department.
a. Dr. Beagle’s note makes specific reference to multiple findings
contained in Dr. Rozeski’s note and the ER records, such as Ms. Basanti’s blood
sugar level at the time of admission, current medications, CT scan and MRI, and
Dr. Rozeski’s neurological exam findings. Ex. 3, pp. PVMC000036-37. The
Court finds that it is more likely than not that Dr. Beagle viewed records and

35

However, as discussed below, Dr. Beagle did have access to Dr. Rozeski’s
note, which indicated that Dr. Bracy found diminished motor function in the right leg.
See Ex. 3, p. PVMC000032
36

Dr. Beagle did not recall how and when she was asked to accept care, yet she
also testified that the decision to admit Ms. Basanti to the hospital had already been
made by the time she came to care for Ms. Basanti.
39

notes from the ER, including Dr. Rozeski’s note, before dictating her October 27
note.
b. Dr. Beagle was presented with the ER records and Dr. Rozeski’s note
during trial. She was asked to testify as to what she may have been thinking on
October 27 when viewing those records. Because Dr. Beagle testified that she
had no independent recollection of reviewing the ER records, the Court finds that
Dr. Beagle’s testimony as to what she was thinking on October 27 when
reviewing the ER records is speculative and accordingly disregards it.
83. At 12:15 p.m., shortly after seeing Ms. Basanti, Dr. Beagle, as is her habit
and practice, recorded her initial impressions on an order sheet. See Ex. 3, p.
PVMC000074. In the right column, Dr. Beagle recorded what she described as a
problem list, or an initial working diagnosis. Dr. Beagle listed four things: (1)
generalized weakness, (2) hyponatremia, (3) diabetes, and (4) hypertension. Id.
i. History and Physical Examination
84. At 12:20 p.m., Dr. Beagle dictated a “HISTORY AND PHYSICAL
EXAMINATION” note. Ex. 3, p. PVMC000036. Ms. Basanti’s chief complaint is listed
as “Generalized weakness.” With regard to patient history, the note stated:
This is a 54 year-old lady with known history of diabetes with peripheral
neuropathy37 who presents with increasing weakness, nausea and vomiting
over the past couple of days. She also complains of pain in her right groin
and her right neck. Her sugars have been running high this morning, about
290 when she checked it. She has a long standing history of weakness in
her left leg. However, she says, she initially felt like it was getting weaker on
the right leg as well and causing some numbness and tingling.

37

Peripheral neuropathy is the inflammation of the peripheral nerves.
40

Id. The note listed diabetes, hypertension, and left leg weakness secondary to
neuropathy as relevant past medical history. Id. The note also mentioned Ms.
Basanti’s current medication and social and family history.
a. When questioned by plaintiff’s counsel, Dr. Deutchman testified that
Dr. Beagle’s history, as charted, did not meet the standard of care. When
evaluating a patient with potential neurologic deficits, he stated that it is
important to know whether the deficit had a rapid or gradual onset. Dr.
Deutchman testified that, based upon Dr. Beagle’s note, it appeared that Dr.
Beagle did not determine when Ms. Basanti first began having weakness issues
related to her right leg and a sensory deficit in her left leg, as a reasonable
physician would have done. Dr. Deutchman testified that, if Dr. Beagle failed to
obtain a proper history, her chances of having a good differential diagnosis
would be greatly diminished and that an inaccurate or incomplete differential
diagnosis increases the likelihood of a misdiagnosis or delay in diagnosis.
Because Dr. Deutchman’s opinions on this point were elicited by plaintiff’s
counsel and because such opinions are, with the exception of certain opinions of
Dr. Beagle, undisputed by any other family medicine physician, the Court finds
Dr. Deutchman’s opinions on this point credible and assigns them significant
weight.
ii. Physical Examination
85. With respect to Dr. Beagle’s physical examination, her note states, as
relevant here:

41

GENERAL
Thin female, well developed, otherwise lying in bed. She is of East Indian
decent [sic]. She complains of pain and nausea in her stomach. She is very
sleepy as she has received narcotics.
*

*

*

NECK
Neck is supple on palpation. There is no mass.
CHEST
Lungs are clear bilaterally with good expansion, no wheezes.
HEART
Regular rate and rhythm with no murmur.
ABDOMEN
Abdomen is nondistended. Bowel sounds are noted. They are slightly
hyper-pitched. . . . There is no mass, rebound and no guarding. There is no
pain in the suprapubic area.
EXTREMITIES
On legs she has no swelling or deformities noted. There are intact pulses
bilaterally. On my examination there are still deep tendon reflexes although
they are 1+bilaterally. There is no clonus and pulses are again intact in the
feet.
There is a report in the ER that when family members touched her legs she
claims that she could not feel it but when the doctor in the ER touched her
legs she could feel his touch.
LABS AND STUDIES
The patient underwent a CT of her arms and head which was negative. She
also had an MRI of her lower spine which showed no bulging discs. This is
by report from the ER.
Please note that the neurologic examination in the ER showed that she is
oriented times 3. She had good reaction to sensation on both legs with pinprick sensation cold and normal Babinski. There is a +/- objective tingling
reported without a significant pattern.

42

Id. at p. PVMC000036-37. Dr. Beagle testified that she does not necessarily document
every normal finding when examining a patient for motor function, testimony which the
Court credits to some extent.
86. Dr. Beagle’s habit and practice of conducting a physical examination of a
patient’s extremities was as follows: ask the patient to move her toes or push against
Dr. Beagle’s hands. Take the patient’s pulse and ask if the patient felt her touch. Lift
the patient’s leg up and tell the patient to completely relax the leg; usually the patient
will try to assist and it is abnormal for the patient not to do so. Move the patient’s feet in
a circle to check for clonus.
a. Dr. Huffman criticized Dr. Beagle’s neurological exam for failure to get
Ms. Basanti out of bed or otherwise test her leg for weakness. Although Dr.
Huffman did not explain how such a test would be done and what a reasonable
physician would have found had a proper neurological exam been performed,
the Court assigns Dr. Huffman’s opinion significant weight.
b. Dr. Deutchman testified that Dr. Beagle’s note does not document that
Dr. Beagle asked Ms. Basanti to try to lift her legs off the bed. Dr. Beagle
admitted that, based solely upon her note, it is impossible to draw any conclusion
about whether Ms. Basanti was able to move her legs at the time of examination.
Dr. Deutchman testified that the only charted evidence that Dr. Beagle
performed her own physical examination of Ms. Basanti’s motor function in her
lower extremities was the examination of deep tendon reflexes. Dr. Beagle
testified that she checks deep tendon reflexes by lifting the patient’s leg and
tapping the patellar tendon. To the extent Dr. Beagle’s testimony of habit and
43

practice is offered to show that Dr. Beagle actually performed her entire standard
physical examination on Ms. Basanti, the Court declines to credit such testim ony.
However, the Court finds it more likely than not that Dr. Beagle examined Ms.
Basanti’s legs to the extent necessary to determine deep tendon reflexes,
including lifting Ms. Basanti’s legs off the bed.
87. Dr. Beagle reviewed the results of Ms. Basanti’s CT scan and lumbar and
brain MRIs. Dr. Beagle interpreted the CT scan as showing arthritic changes, but
nothing else abnormal, the brain MRI results as containing nothing abnormal, and the
lumbar MRI results as showing signs of degenerative disc disease, but nothing else
abnormal.
iii. Plan and Impression
88. Dr. Beagle dictated her impression and plan as follows:
1. Generalized weakness. This could be secondary to the hyponatremia
which is also causing her to feel sick to her stomach and throw up. At this
time we will gently replace her fluids and follow her electrolytes carefully.
Differential of her generalized neuropathy could be from the hyponatremia.
She also could be feeling weak and tired from possible infectious etiology
such as a viral syndrome which is causing the nausea and vomiting as well.
It is unlikely that she is having a stroke at this time. She could also have a
flair of her peripheral neuropathy which is causing her the subjective pain
and tingling in her legs but does look like her neurologic examination is
relatively intact. Also we will follow and make sure that she is able to
maintain urine output and bowel movements[. I]f she has true incontinence
of urine that would be a concern that there is something else going on.
2. Diabetes type 2. Had been relatively poor control [sic] until recently but
she has also been feeling ill . . . .
3. Hypertension. Initially high but she was in distress when she came in.
She currently is in good control . . . .
4. This is a patient of Dr. Robinson’s. She is aware that the patient has
been admitted. She feels that the patient has been dealing with a subjective
complaint of neuropathy in the out-patient setting for a while and so there
may be a bit of a psychosomatic component to the condition. We will follow

44

her closely with observation and see how she does with the above
mentioned treatment. The patient is a full COR status.
Id. at p. PVMC000037-38.
a. Dr. Beagle testified that a Foley catheter can be used if the patient is a
fall risk or taking narcotics that would increase the fall risk. However, she
admitted that a Foley catheter must be removed in order to fully evaluate a
patient’s ability to void. There is no indication that Ms. Basanti’s Foley catheter
was ever removed in an effort to determine whether she retained the ability to
void without assistance, yet Dr. Beagle testified that her note indicates that she
had no concern about Ms. Basanti’s ability to void. Dr. Beagle did not explain
this inconsistency. The Court finds it more likely than not that Dr. Beagle was
unable to tell whether Ms. Basanti was urinating properly on her own. Dr.
Deutchman testified that, under the circumstances, an inability to void would be
very worrisome.
b. Dr. Deutchman admitted that, on a worst first basis, spinal cord
compression would be above hyponatremia and that Dr. Beagle did no further
workup on spinal cord compression. He further admitted that, in retrospect, Dr.
Beagle should have been thinking of spinal cord compression, but consistently
testified that, given her generalized weakness, hyponatremia, and diabetes, the
CT and MRIs performed on Ms. Basanti to this point were a reasonable attempt
at looking for a neurologic origin of her symptoms.

45

c. Dr. Beagle admitted that spinal cord compression should be
considered when a patient is unable to void, suffers from new right leg
weakness, prior left leg weakness, and sensory changes.
89. Dr. Beagle testified that it was her standard practice when seeing a Salud
patient at PVMC to contact the patient’s PCP and, as a result, she contacted Dr.
Robinson to discuss Ms. Basanti. Neither Dr. Beagle nor Dr. Robinson recall the
substance of their October 27 conversation regarding Ms. Basanti.
a. Dr. Beagle testified that, if a physician informed her that a patient had
a history of progressive neurologic deficits, it would have been her habit and
practice to record such information
b. Dr. Huffman testified that Dr. Beagle had a responsibility to review the
Salud records herself, rather than relying on information Dr. Robinson provided
during the phone call. The Court credits this opinion to some extent, although
Dr. Huffman did not explain how Dr. Beagle would go about requesting the Salud
records, how long such a request might take, and the effect that seeing the
Salud records would have had on Dr. Beagle’s diagnosis and plan of care.38
iv. Conversation with Dr. Robinson
90. In regard to Dr. Beagle’s note concerning her conversation with Dr.
Robinson, Dr. Robinson testified that, if she used the term “psychosomatic” during the
conversation, she would have been expressing that life experiences can have an effect

38

As noted above, there is no indication that the Salud records were available
electronically at PVMC.
46

on pain. Dr. Robinson indicated that she did not believ e that Ms. Basanti was imagining
her pain.39
a. Dr. Huffman testified that, rather than simply telling Dr. Beagle that Ms.
Basanti’s symptoms were psychosomatic, Dr. Robinson was required to review
her notes and Ms. Basanti’s chart and communicate with Dr. Beagle based upon
the information contained within. The Court credits this opinion.
b. Dr. Deutchman testified that, if the information contained in Dr.
Beagle’s note was the only information that Dr. Robinson transmitted to Dr.
Beagle, Dr. Robinson failed to provide a complete picture of Ms. Basanti’s care
and breached the standard of care. The Court credits this opinion.
c. The Court finds that Dr. Robinson expressed to Dr. Beagle that Ms.
Basanti’s complaints may have a psychosomatic component, but does not find
sufficient evidence upon which to conclude, by a preponderance of the evidence,
that this was the only information Dr. Robinson relayed to Dr. Beagle.40

39

Dr. Robinson testified that Ms. Basanti’s perception of pain may have been the
result of sadness, due to her inability to speak English and the lack of a strong social
network in the United States. However, at her deposition, Dr. Robinson testified that
she mostly remembered Ms. Basanti’s family, rather than Ms. Basanti herself, and was
not aware of her ethnicity. Ms. Basanti testified that, during the relevant time period,
she was not sad. The Court declines to credit Dr. Robinson’s trial testimony on factors
affecting Ms. Basanti’s perception of pain.
40

At trial, plaintiff’s counsel attempted to refresh Dr. Beagle’s memory concerning
her impressions following this conversation. Dr. Beagle then testified that, after
speaking with Dr. Robinson, Dr. Beagle was not of the impression that Ms. Basanti had
been seen recently at the Salud Clinic for neurologic deficits. The Court finds this
testimony speculative and imprecise on the question of exactly what information Dr.
Robinson shared during the conversation. As a result, the Court assigns this testimony
no weight.
47

c. Additional Standard of Care Opinions
91. Dr. Deutchman offered the following additional opinions concerning the
Salud physicians’ care of Ms. Basanti up to this point:
a. If Ms. Basanti’s function deteriorated or did not improve, then
guidelines for imaging practices, as discussed further below, recommended
advanced imaging and specialist referral.
b. Since the Salud physicians had available to them the information
contained in the Salud records, Dr. Robinson was charged with knowledge of
Ms. Basanti’s care between September 9 and October 22 whether Dr. Robinson
saw Ms. Basanti personally or not. Dr. Robinson had an obligation to look at
notes made by other physicians.
c. If a Salud provider looked at the totality of Ms. Basanti’s medical
records, a provider would have noticed a progression of symptoms. If, between
September 9 and October 22, the Salud physicians had information that Ms.
Basanti’s neurological status was deteriorating and that she was having
progressive deficits or leg pain, then specialist referral and advanced imaging
should have been considered. If a provider noticed the progression of symptoms
and if Ms. Basanti’s shoulder pain was viewed as thoracic pain, rather than
shoulder pain, the one unifying diagnosis was a problem in the thoracic spine.
Because these opinions were elicited by plaintiff’s counsel, the Court affords the
opinions considerable weight.

48

d. Subsequent Events
92. Dr. Beagle testified that, based upon her note, no additional radiolog ical
imaging was necessary and that there was no indication of neurological deficits.
a. Dr. Deutchman admitted that, had Dr. Beagle thought it appropriate,
there was time to get an MRI of the thoracic spine before Ms. Basanti became
paralyzed, but did not indicate that Dr. Beagle was required to order a thoracic
MRI.
93. Dr. Beagle’s practice after leaving a patient’s room is to discuss her orders
with the nurse assigned to the patient and to tell the nurse to call w ith any questions.
Dr. Beagle testified that she had an expectation that Ms. Basanti would be seen by
nurses periodically. Dr. Beagle’s shift ended at 7:00 p.m. Dr. Beagle testified that the
incoming Salud physician during the night is usually not at the hospital unless he or she
is called for admission. Dr. Beagle testified that it was her habit and practice to brief the
incoming Salud physician.
94. After Dr. Beagle left her shift, it appears that Ms. Basanti’s care was
transferred to another Salud physician. There was no evidence at trial concerning that
physician’s identity or role in Ms. Basanti’s care. Similarly, there was no criticism of the
care provided to Ms. Basanti once Dr. Beagle went off shift.
95. At 7:50 p.m., a PVMC nurse noted that Ms. Basanti was experiencing
weakness in her left and right legs, but was able to move all extremities. Ex. 3, p.
PVMC000092. At 8:05 p.m. and 11:45 p.m., a nurse recorded in the “Interventions”
section of the nurses’ notes that Ms. Basanti could ambulate with standby assistance.
Ex. 3, p. PVMC000090.
49

4. October 28, 2009
a. PVMC
96. On October 28, at 1:45 a.m., 3:45 a.m., and 6:54 a.m., nurses recorded in
the “Interventions” section of the nurses’ notes that Ms. Basanti could ambulate with
standby assistance. Ex. 3, p. PVMC000089. At 8:10 a.m., a nurse made a similar
indication in the “Interventions” section. Id. However, an 8:10 a.m. entry in the “Med
Surg Basic Assessment” section of the nurses’ notes by the same nurse indicates that
Ms. Basanti was, at that time, unable to wiggle her toes or lift her legs. Id. at p.
PVMC000091. The Court concludes that Ms. Basanti lost the use of her legs by 8:10
a.m. on October 28, 2009, but further finds that the inconsistency between the Med
Surg Basic Assessment and Interventions sections on Ms. Basanti’s ability to ambulate
calls into question accuracy of the entries in the Interventions section, especially those
made during the early morning hours of October 28.
a. The 8:10 a.m. Med Surg Basic Assessment note also stated “pt states
this is unchanged from admit.” Id. There is no evidence that Ms. Basanti was
unable to wiggle her toes or lift her legs at the time of admit. Thus, the Court
does not credit that particular statement as true.
97. Dr. Beagle testified that, unlike the day before, she has an independent
memory of seeing Ms. Basanti on October 28, 2009. No expert witness was critical of
Dr. Beagle’s care on October 28, 2009. The evidence at trial did not establish the
precise time that Dr. Beagle saw Ms. Basanti that day. Dr. Beagle dictated her note at
2:16 p.m., which indicates that Dr. Beagle saw Ms. Basanti before that time. When Dr.
Beagle examined Ms. Basanti, Ms. Basanti was unable to move her feet or legs. Dr.
50

Beagle firmly pinched Ms. Basanti’s legs. Ms. Basanti was unable to feel anything. Dr.
Beagle testified that she remembers thinking that, at that point, Ms. Basanti’s condition
was becoming so serious that it might require transfer. Dr. Beagle consulted with Dr.
Honaganahalli, an internal medicine physician, who was concerned that Ms. Basanti
may have been suffering from transverse myelitis41 or Guillain-Barre syndrome.42 If Ms.
Basanti had those conditions, she required specific care, including plasma
electrophoresis, that PVMC could not provide. Dr. Honaganahalli also suggested that
Dr. Beagle consult with a neurologist.
98. Dr. Beagle began arrangements to transfer Ms. Basanti to a different
hospital. Dr. Beagle spoke by phone with Dr. Celina Tolge, a neurologist consulting
through the Medical Center of Aurora - South (“MCA”), who indicated that she would
accept Ms. Basanti as a consult. Dr. Beagle also spoke with Dr. John Barrett at MCA,
an internal medicine physician, who agreed to act as the accepting physician for Ms.
Basanti.43 At 2:30 p.m., Dr. Beagle signed Ms. Basanti’s transfer paperwork. Later that
afternoon Ms. Basanti was transferred to Aurora South.

41

Transverse myelitis is an inflammatory process that can affect the spine and
cause paralysis.
42

Guillain-Barre syndrome is a viral illness that attacks the peripheral nerves,
which can cause rapid ascending paralysis.
43

Neurology consults do not have the ability to admit patients to MCA. In order to
transfer a patient with neurological problems, a family medicine or internal medicine
physician at the hospital must accept the patient for admission and routine care.
51

b. Medical Center of Aurora
99. At some time before 5:16 p.m. on October 28, 2009, Dr. Tolge saw Ms.
Basanti.44 Dr. Tolge has no independent memory of her examination of Ms. Basanti.
According to the history documented in Dr. Tolge’s note, Ms. Basanti reported that left
leg numbness and tingling began one month prior, with the onset of right leg numbness
approximately three days prior. Ms. Basanti reported unawareness of sensation of
bladder fullness and urinary incontinence. Dr. Tolge’s physical examination confirmed
that Ms. Basanti was paraplegic in the lower extremities. Dr. Tolge noted that a cranial
and lumbar MRI had been done at PVMC, that the cranial MRI was normal, and the
lumbar MRI demonstrated degenerative changes. Ex. 5, p. MCA000027-29. Dr.
Tolge’s note contained the following assessment: “Rapidly progressive ascending lower
extremity sensory motor impairment with sphincteric disturbances, very concerning for
Guillain-Barre with autonomic dysfunction. Consider compressive myelopathy45 or
transverse myelitis in differential but consider these less likely.” Id. at p. MCA000029.
a. At trial, Dr. Tolge interpreted her note to indicate that Guillain-Barre
was, although not the only consideration, the most likely explanation for Ms.
Basanti’s condition at that time. Guillain-Barre is considered a neurologic
urgency given the potential for complications in the respiratory system, but is a
treatable condition. Dr. Tolge testified that she would generally expect a slower

44

Dr. Tolge’s note from the visit was dictated at 5:16 p.m., which indicates that
the visit with Ms. Basanti took place before that time.
45

Compressive myelopathy, as the term was used by Dr. Tolge, refers to
anything that may be pushing on the spinal cord.
52

progression of neurologic symptoms with a compressive lesion and that threeday rapidly progressing weakness and numbness is not a typical presentation for
a compressive lesion. The Court finds Dr. Tolge to be credible; her testimony on
this point is essentially undisputed. The Court assigns Dr. Tolge’s opinion great
weight.
100. Dr. Tolge’s plan of treatment was as follows:
1. Cervical and thoracic spine MRI without and with contrast to screen for
compressive myelopathy as well as transverse myelitis.
2. CSF analysis to screen for albumino-cytologic dissociation characteristic
of Guillain-Barre, we will also ask for screening for CSF inflammatory
markers including oligoclonal band, IgG index, and synthesis rate.
3. Prompt initiation of plasmapheresis.
4. Monitor in ICU.
Id. As a result, Dr. Tolge ordered an MRI of Ms. Basanti’s thoracic spine.
a. Dr. Tolge testified that an MRI is generally not done to confirm a
diagnosis of Guillain-Barre. Rather, when considering a Guillain-Barre diagnosis,
Dr. Tolge’s habit and practice is to image the spine to screen for alternative
diagnoses such as conditions affecting the spinal cord. Dr. Tolge testified that
four hours and 45 minutes is not an unreasonable amount of time for MRI results
to be obtained. The Court finds Dr. Tolge’s testimony credible and assigns it
great weight.
101. At some point before 5:19 p.m., Dr. Barrett also examined Ms. Basanti.
The history contained in his note is consistent with the history contained in Dr. Tolge’s
note. Ex. A-21, p. MCA00019. Dr. Barrett’s impression was, as relevant here:
This is a lady with a sort of questionable prodrome lasting for several weeks,
that I do not know what it means, but she has a rapid onset over several
days of ascending motor and sensory loss compatible with Guillain-Barre or
53

alternatively with a transverse myelitis. I am doubtful that this would
represent an epidural abscess or diskitis or mass lesion.
Id. at p. MCA 00021.
102. It is unclear precisely when the results of Ms. Basanti’s MRI became
available. See Ex. A-21 at p. MCA 00346. 46
103. At approximately 8:00 p.m., Dr. Rauzzino received a call at home from Dr.
Joseph Forrester. Dr. Forrester told Dr. Rauzzino that Ms. Basanti’s legs had likely
been paralyzed for 12 to 24 hours and had no motor or sensory function. Dr. Rauzzino
viewed Ms. Basanti’s thoracic MRI from home, which clearly showed a mass
compressing the spinal cord.
a. Dr. Rauzzino explained that, if a patient retains some function, then
there is likely some continuity to the signals passing through the spinal cord and
a chance for improvement. If no motor or sensory function remains, even
immediate surgery is unlikely to change the outcome. Surgery to remove the
cyst is a complicated operation and is not without risk, even for a patient who is
already paralyzed. Surgery during the night carries an additional risk that the
surgical staff on duty may not be experienced in brain or spine operations. Dr.
Rauzzino testified that, nonetheless, he will operate at night if there is a chance
to improve a patient’s outcome. Rather than perform surgery at night, Dr.
Rauzzino elected to remove the cyst the next morning. Dr. Rauzzino testified
that, even if he had began operating at that very moment, Ms. Basanti’s outcome

46

The top of the document reads “MRI THORACIC SPINE WITHOUT AND WITH
CONTRAST, 10/28/09, 1916 HOURS” and the document was electronically signed by
F. Gaynor Laurence M.D. at 9:46 p.m. Id.
54

would not have been altered in any way. At trial, no expert witnesses was critical
of Dr. Rauzzino’s decision to delay Ms. Basanti’s surgery.
5. October 29, 2009
104. Dr. Rauzzino began operating on Ms. Basanti at 9:00 a.m. He began by
making an incision in Ms. Basanti’s back and drilling through bone to reach the dura.
He made a small incision in the dura, and, within an hour or two, reached the cyst.
Because the cyst had compressed and rotated the spinal cord slightly, Dr. Rauzzino
was able to access the cyst without going through the spinal cord. Dr. Rauzzino
punctured the cyst, removed the fluid, and, once decompressed, was able to remove a
majority of the cyst wall.
105. Ms. Basanti did not regain any function following surgery.
H. Ms. Basanti’s Testimony
106. Ms. Basanti’s testimony concerning the events of September and October
2009 was extremely limited. Ms. Basanti testified that she visited Salud in September
2009 because of pain between her shoulder blades, but did not testif y about specific
visits. Ms. Basanti estimated that she went to Salud five or six times for such pain and
recalled that the Salud physicians prescribed medication and told her that her pain was
diabetes-related. She recalls that the prescribed medications temporarily reduced her
pain.
107. Ms. Basanti testified that her leg numbness began two to three months
prior to her paralysis.
108. Ms. Basanti appeared to have an independent recollection of going to
PVMC on October 27, 2009. Ms. Basanti testified that she was in a lot of shoulder
55

pain, and because of increasing numbness in one of her legs, did not feel comfortable
driving herself. She phoned a friend to drive her to the hospital. Ms. Basanti testified
that she was able to walk down the stairs at her home by herself and made her way to
the car with the help of her husband and friend. When she arrived at PVMC, she was
taken into the hospital in a wheelchair.
109. Ms. Basanti does not recall when she lost the use of her legs.47 Ms.
Basanti testified that she was concentrating on her pain and, as a result, does not recall
when she lost movement and feeling in her legs.
I. Guidelines that Dr. Deutchman Discussed
110. Dr. Deutchman relied upon guidelines created by the National Guideline
Clearinghouse entitled “Diagnostic imaging practice guidelines for musculoskeletal
complaints in adults – an evidence-based approach” (the “guidelines”), the purpose of
which is to develop imaging practice guidelines to assist chiropractors and other primary
care providers in decision making for the appropriate use of diagnostic imaging for
spinal disorders.48 Dr. Deutchman considered the guidelines authoritative, but no other
evidence was presented concerning the nature of the National Guideline Clearinghouse
organization, its reputation in the medical community, or how the guidelines were
prepared. The Court therefore gives the guidelines lesser weight.

47

Ms. Basanti testified that, on the morning of October 28, her left leg was
moving completely but her right leg was not. However, it appeared at trial as though
Ms. Basanti was confused as to the time frame contemplated by her attorney’s
question. Thus, the Court gives Ms. Basanti’s testimony on this point little weight.
48

Statements from the guidelines were received into evidence. However,
pursuant to Fed. R. Evid. 803(18), the document was not admitted as an exhibit.
56

111. The guidelines set forth red flags for patients with thoracic pain, which,
when present, increase the likelihood of a more serious underlying disorder. However,
the presence of a red flag alone may not necessarily indicate the need for radiography.
The Court finds that the guidelines illustrate relevant considerations for reasonable
family physicians to consider when evaluating a patient, but do not prescribe a course
of action in every circumstance and are not a substitute for the standard of care.49
a. Red flags from the guidelines mentioned at trial include:
- No response to care after four weeks.
- Significant activity restriction of greater than four weeks.
- Nonmechanical pain, such as unrelenting pain at rest or constant
or progressive signs and symptoms.
- Persistent localized pain for greater than four weeks.
- Symptoms associated with neurologic signs in the lower
extremities.
112. When questioned by plaintiff’s counsel at trial, Dr. Deutchman testified that
Ms. Basanti’s age (over 50) and leg symptoms constituted red flags. Hypothetically, if
Ms. Basanti’s pain were localized between the shoulder blades, over the spine, Dr.
Deutchman agreed that such pain would be a red flag. The Court generally credits
these opinions. However, Dr. Deutchman also testified that, based upon his review of
the medical records, Ms. Basanti’s pain presented mostly in the shoulders, an opinion
to which the Court gives less weight.

49

There is no evidence that the Salud physicians were aware of these guidelines.
57

113. When questioned about the guidelines by the government’s counsel, Dr.
Deutchman testified as follows: in the absence of what would be considered thoracic
spine pain, the guidelines may not apply to Ms. Basanti. Even if Ms. Basanti’s pain was
characterized as thoracic pain, the guidelines do not necessarily indicate that an MRI
was required. Back pain generally resolves itself in four to twelve weeks; thus, x-rays or
other spinal imaging are generally not indicated until the patient’s pain has been
present for more than four weeks. The Court assigns these opinions lesser weight to
the extent they are inconsistent with testimony elicited from Dr. Deutchman by plaintiff’s
counsel.
II. CONCLUSIONS OF LAW
A. Federal Tort Claims Act
The FTCA provides that the United States may be held liable for “the negligent or
wrongful act or omission of any employee of the Government while acting within the
scope of his office or employment, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the law of the place
where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). The Salud physicians
are employed by a federally-funded clinic and, pursuant to the FSHCAA, are theref ore
deemed to be employees of the Public Health Service. See 42 U.S.C. § 233(g). The
FTCA provides the exclusive remedy for actions against employees of the Public Health
Service. § 233(a). There is no dispute that the Salud physicians were, at all times
relevant, acting within the scope of their employment when caring for Ms. Basanti. As
such, the Salud physicians are covered under the FTCA, 28 U.S.C. § 1346(b) and
§§ 2671-80, pursuant to which the Court exercises jurisdiction over this case.
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Questions of liability under the FTCA are resolved “in accordance with the law of
the state where the alleged tortious activity took place.” Franklin v. United States, 992
F.2d 1492, 1495 (10th Cir. 1993). Because all relevant events in this case occurred in
Colorado, the Court applies Colorado substantive law to plaintiff’s claim.
B. Applicable Law
In Colorado, “[a] medical malpractice action is a particular type of negligence
action.” Day v. Johnson, 255 P.3d 1064, 1068 (Colo. 2011) (citing Greenberg v.
Perkins, 845 P.2d 530, 534 (Colo. 1993)). “Like other neg ligence actions, the plaintiff
must show a legal duty of care on the defendant’s part, breach of that duty, injury to the
plaintiff, and that the defendant’s breach caused the plaintiff’s injury.” Id. at 1068-69
(citing Greenberg, 845 P.2d at 533).
1. Duty of Care
In Colorado, “the law implies that a physician employed to treat a patient
contracts with his patient that: (1) he possesses that reasonable deg ree of learning and
skill which is ordinarily possessed by others of the profession; (2) he will use
reasonable and ordinary care and diligence in the exercise of his skill and the
application of his knowledge to accomplish the purpose for which he is employed; and
(3) he will use his best judgment in the application of his skill in deciding upon the
nature of the injury and the best mode of treatment.” Id. at 1069 (citation omitted). “A
physician who holds himself or herself out as a specialist in a particular field of
medicine is measured against a standard commensurate with that of a reasonable
physician practicing in that specialty,” without regard for geographic locality. Jordan v.
Bogner, 844 P.2d 664, 666-67 (Colo. 1993); see also Hall v. Frankel, 190 P.3d 852,
59

858 (Colo. App. 2008). The Salud physicians undertook Ms. Basanti’s medical care
and treatment, which created a physician-patient relationship and corresponding duty of
care. See Greenberg, 845 P.2d at 534 (holding that physician undertaking medical
care of another “expressly or impliedly contract[] to exercise reasonable and ordinary
care”). Dr. Robinson and Dr. Beagle are both board certified “in the nationally
recognized speciality of family practice” and held themselves out as qualified to practice
in that specialty. See Jordan, 844 P.2d at 667. Although Dr. Rufner’s background was
not discussed at trial, both sides presented expert testimony from specialists in family
practice who testified as to the standard of care applicable to a family practice
physician. The Court finds no reason to apply a lesser standard of care to Dr. Rufner.
The Court concludes that the Salud physicians should be judged against a standard
commensurate with that of reasonable family medicine physicians. Id. at 666-67
(holding that physician board certified in family medicine subject to standard of care for
specialist practicing family medicine).
2. Breach of the Duty of Care
A physician possessing ordinary skill and exercising ordinary care in applying it is
not responsible for a mistake of judgment. Bonnet v. Foote, 107 P. 252, 254 (Colo.
1910) (citations omitted); see Day, 255 P.3d at 1069 (citing, inter alia, Bonnet and
Foose v. Haymond, 310 P.2d 722, 727 (Colo. 1957) (“To avail himself of the defense of
a mistake of judgment, it must appear that the physician used reasonable care in
exercising that judgment.”)). Moreover, “a poor outcome does not, standing alone,
constitute negligence.” Day, 255 P.3d at 1069 (citing Melville v. Southward, 791 P.2d
383, 390 (Colo. 1990) (“The mere presence of an infection following surgery, however,
60

does not establish a prima facie case of negligence.”)). A plaintiff cannot therefore
succeed by simply proving a bad outcome, but instead must show that the defendant
physician failed to conform to the standard of care, measured here by whether a
reasonably careful family medicine physician “would have acted in the same manner as
did the defendant in treating and caring for the patient.” Day, 255 P.3d at 1069; accord
Greenberg, 845 P.2d at 534; Melville, 791 P.2d at 389.
“[M]atters relating to medical diagnosis and treatment ordinarily involve a level of
technical knowledge and skill beyond the realm of lay knowledge and experience.”
Melville, 791 P.2d at 387. This case is no exception and, as such, “plaintiff must
establish the controlling standard of care, as well as the defendant’s failure to adhere to
that standard, by expert opinion testimony.” Id. An expert in one medical subspecialty
is not generally permitted to testify against a physician in another medical subspecialty
unless the expert demonstrates a “substantial familiarity” with the defendant’s specialty
or that “the standard of care for both specialties is substantially similar.” Hall, 190 P.3d
at 858-59 (citing Colo. Rev. Stat. § 13-64-401). The Court finds that no expert witness
outside the specialty of family medicine satisfied either condition. Thus, in evaluating
the applicable standard of care, the Court relies on the opinions of the testifying family
medicine physicians. Nonetheless, where it is established that the standard of care for
a particular issue is identical “regardless of specialty [and] common to all physicians
and fourth-year medical students,” physicians may, regardless of specialty, testify as to
the general standard of care common to the medical profession. Id. at 859. Despite
the fact that Dr. Rauzzino is not a family practice physician, the Court finds that the
concept of red flags regarding back pain is common to all physicians regardless of
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specialty and therefore will consider Dr. Rauzzino’s testimony on the issue as relevant
to the standard of care for family medicine physicians.
3. Causation
Where, as here, “an injury results from the combined negligence of the
defendant and other factors, the injury is attributable to the defendant if the injury would
not have occurred in the absence of the defendant’s negligence.” Graven v. Vail
Assoc., Inc., 909 P.2d 514, 520 (Colo. 1995); see also June v. Union Carbide Corp.,
577 F.3d 1234, 1254 (10th Cir. 2009); Kaiser Found. Health Plan of Colo. v. Sharp, 741
P. 2d 714, 719 (Colo. 1987) (holding that plaintiff must show that “that the injury would
not have occurred but for the defendant’s negligence conduct”); Reigel v.
SavaSeniorCare L.L.C., 292 P.3d 977, 987 (Colo. App. 2011) (collecting cases).
Causation is therefore satisfied “‘if the negligent conduct in a natural and continued
sequence, unbroken by any efficient, intervening cause, produce[s] the result
complained of, and without which the result would not have occurred.” N. Colo. Med.
Ctr., Inc. v. Comm. on Anticompetitive Conduct, 914 P.2d 902, 908 (Colo. 1996)
(quoting Smith v. State Compensation Ins. Fund., 749 P.2d 462, 464 (Colo. App.
1987)). However, “[i]n some cases the chain of causation is so attenuated” that no
liability exists as a matter of law. Rodriguez v. HealthONE, 24 P.3d 9, 15 (Colo. App.
2000), rev’d on other grounds 50 P.3d 879 (Colo. 2002). 50

50

Plaintiff argues for the application of Restatement (Second) of Torts § 457,
which states:
If the negligent actor is liable for another’s bodily injury, he is also subject to
liability for any additional bodily harm resulting from normal efforts of third
persons in rendering aid which the other’s injury reasonably requires,
irrespective of whether such acts are in a proper or negligent manner.
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C. The Salud Physicians
This is a failure to diagnose case. Ms. Basanti was paralyzed as a result of a
cyst in the thoracic region of her spine, compressing her spinal cord. There is no
dispute that, if Ms. Basanti’s cyst had been diagnosed and removed at any time before
full paralysis, she would have been expected to retain some function in her legs.
Similarly, it is undisputed that, between September 20 and October 28, the cyst would
have been immediately visible on an MRI of Ms. Basanti’s thoracic spine. There was
no indication that Ms. Basanti’s cyst could have been definitively diagnosed by other
means. Thus, the causal analysis is considerably simplified. The questions that remain
are therefore two-fold: (1) did a particular Salud physician breach the standard of care

Tortfeasors are not absolved of liability when a plaintiff’s injuries “result from medical
treatment reasonably sought and directly related to the actions of the original
tortfeasor.” Redden v. SCI Colo. Funeral Servs, Inc., 38 P.3d 75, 81 n.2 (Colo. 2001).
Although § 457 has been applied in Colorado, it is typically cited where, unlike here, a
plaintiff sought medical treatment for an injury not suffered as a result of medical
malpractice. See, e.g., Union Supply Co. v. Pust, 583 P.2d 276, 285-86 (Colo. 1978)
(holding that evidence of settlement with treating physicians not relevant to causation in
case against conveyor belt manufacturer); Madrid v. Safeway Stores, Inc., 709 P.2d
950, 951 (Colo. App. 1985) (discussing surgery necessary as a result of injury
sustained during a fall); Powell v. Brady, 496 P.2d 328, 331 (Colo. App. 1972)
(discussing medical treatment flowing from injury suffered in automobile-pedestrian
collision), superseded in part by statute, Colo. Rev. Stat. § 13-21-111.6. Plaintiff does
not cite any authority, and the Court is aware of none, where § 457 has been applied in
a case such as this. Other courts have held that § 457 applies, in cases of successive
malpractice, “only when the second physician’s treatment is directed toward mitigating
the harm inflicted by the first.” Daly v. United States, 946 F.2d 1467, 1472 (9th Cir.
1991). Where, as here, a plaintiff seeks treatment from a “second physician for an
underlying ailment rather than for any harm inflicted by earlier treatment,” liability based
upon § 457 does not arise. Id. Although not binding, the Court finds the reasoning in
Daly persuasive and consistent with the text of § 457. Moreover, plaintiff fails to
reconcile § 457 liability with Colo. Rev. Stat. § 13-21-111.5, which requires that a fact
finder apportion fault among negligent actors. Thus, the Court finds that § 457 is not
applicable.
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and (2) if so, did such breach (or breaches) cause, in a natural and continued
sequence, an MRI of Ms. Basanti’s thoracic spine not to have been ordered or to be
delayed past the point at which the cyst could have been diagnosed and removed
before full paralysis.
1. Dr. Robinson
With few exceptions, plaintiff did not identify the specific points at which Dr.
Robinson’s conduct allegedly breached the standard of care. During closing argument,
plaintiff argued that the signs and symptoms of spinal cord compression were present
for Dr. Robinson to assemble, using a demonstrative exhibit to indicate that Dr.
Robinson had access to all of the relevant medical records. Plaintiff further argued that
Ms. Basanti’s treating physicians were improperly following up on her complaints.
Plaintiff was critical of Dr. Robinson for failing to follow her own suggestion to order an
MRI if Ms. Basanti’s symptoms worsened and for telling Dr. Beagle that Ms. Basanti’s
symptoms may have been psychosomatic. Dr. Huffman opined that Dr. Robinson failed
to obtain PVMC ER records, failed to act upon her September 28 note concerning the
possibility of ordering an MRI, and failed to communicate sufficient information to Dr.
Beagle. However, Dr. Huffman did not otherwise specify what signs and symptoms
were present but went undiscovered by Dr. Robinson, what area of the body Dr.
Robinson should have imaged, or what a reasonable family physician would have done
differently than Dr. Robinson. Although plaintiff attacked the credibility of Dr. Robinson
and Dr. Deutchman during their testimony and, in the process, elicited multiple expert
opinions relevant to the standard of care, plaintiff did not explain how such opinions
advanced her theory of liability, nor was it always apparent. Because plaintiff is
64

required to establish that Dr. Robinson breached the standard of care by expert
testimony, the Court is not permitted to consider those breaches that plaintif f appeared
to assert but failed to support with expert testimony.
The Court first turns to Ms. Basanti’s September 9 visit with Dr. Robinson. Dr.
Robinson indicated that, given Ms. Basanti’s age and the duration and severity of her
symptoms, Ms. Basanti’s symptoms were not particular concerning. Notably, no other
family medicine physician disagreed or was critical of Dr. Robinson’s conduct during
this visit.51
The Court next turns to Ms. Basanti’s September 28 visit with Dr. Robinson. The
Court finds that a reasonable family physician would have acquired the records from
Ms. Basanti’s September 20 PVMC ER visit or spoken to Dr. Metcalf regarding his care
and treatment of Ms. Basanti. Dr. Huffman testified unequivocally that Dr. Robinson
breached the standard of care by failing to do so. Dr. Deutchman’s opinions to the
contrary are not credible and contradicted by his own testimony. See supra Finding of
Fact No. 52. Had Dr. Robinson acted in accordance with the standard of care, she
would have learned that a central nervous system mass or tumor was listed on Dr.
Metcalf’s differential diagnosis and that Dr. Metcalf did not otherwise rule out that
particular diagnosis. However, plaintiff fails to show that this particular breach led to a
delay in the diagnosis of Ms. Basanti’s thoracic cyst. Dr. Huffman opined that, had Dr.
Robinson acquired the PVMC ER records, a more aggressive workup would, perhaps,
have resulted. Id. Dr. Huffman failed to explain how Dr. Robinson or any reasonable

51

Moreover, Ms. Basanti subsequently visited Dr. Walter on two separate
occasions with similar complaints, yet plaintiff was not critical of Dr. Walter’s care.
65

family physician would have acted differently if armed with the knowledge contained in
Dr. Metcalf’s note and plaintiff does not otherwise indicate how such knowledge would
have altered the appropriate course of treatment. Dr. Deutchman testified that,
hypothetically, if Dr. Rufner had been aware of Dr. Metcalf’s differential diagnosis,
ordered a lumbar MRI which came back negative, and thought a lesion higher up was
causing Ms. Basanti’s symptoms, then ordering a thoracic MRI would have made
sense. See supra Finding of Fact No. 64. Plaintiff did not ask Dr. Deutchman to
elaborate or further explain his opinion and, as such, the Court has dif ficulty construing
the hypothetical as an opinion that it violated the standard of care not to order a
thoracic MRI. Even assuming the hypothetical can be applied to Dr. Robinson, plaintif f
presented no evidence that a reasonable family physician would have ordered a lumbar
MRI at this point and, as such, the hypothetical lacks a sufficient factual connection to
this case to have any weight. The Court cannot therefore conclude that plaintiff has
met her burden of showing that Dr. Robinson’s failure to acquire the PVMC ER records
delayed the ordering of a thoracic MRI or was otherwise a legally sufficient cause of Ms.
Basanti’s injuries.
For the above-stated reasons, the Court does not credit Dr. Huf fman’s opinion
that Dr. Robinson breached the standard of care for failure to order an MRI of Ms.
Basanti’s back based upon a note from a May 18, 2006 physical therapy visit. See
supra Finding of Fact No. 52 n.19. Even if Dr. Huffman’s testimony were construed as
an opinion that Dr. Robinson was obligated to look back at this particular note, the
issues Ms. Basanti complained of in 2006 appeared to have resolved without further
medical intervention. Dr. Huffman does not otherwise sufficiently explain what
66

information in the 2006 physical therapy note should have been concerning to Dr.
Robinson. Moreover, there is no evidence that Ms. Basanti’s symptoms in 2006 are
attributable, or would have been attributed by a reasonable family physician, to the
presence of a thoracic cyst.
Plaintiff also failed to show that Dr. Robinson was required on September 28 to
initiate further workup of Ms. Basanti’s symptoms. There is no indication that Ms.
Basanti had pain directly over the thoracic spine. The shoulder pain complained of was
associated with tightness of the subscapularis muscles and her shoulder joint had
normal strength and movement. Although the experts generally agreed that pain can
be referred from one location to another, neither Dr. Huffman nor Dr. Deutchman
testified that Dr. Robinson should have appreciated Ms. Basanti’s shoulder pain as
associated with a thoracic spinal cord issue. There is no indication that Ms. Basanti
complained of any leg weakness or that Dr. Robinson should have appreciated leg
weakness. Although Dr. Robinson’s diagnosis of a lower back issue would not have
conclusively explained all of Ms. Basanti’s symptoms, pain in the lumbar spine can
cause a sensation of numbness in the leg. Neither Dr. Huffman nor Dr. Deutchman
were critical of Dr. Robinson’s decision to order x-rays of the shoulder and lumbar
spine. Dr. Deutchman testified that Dr. Robinson was not at this point required to order
an MRI of the thoracic spine and no expert witness testified to the contrary. Supra
Finding of Fact No. 55. Moreover, as evidenced by her note, Dr. Robinson was
considering the possibility of an MRI if Ms. Basanti’s condition worsened. See Ex. 1, p.
SF000101. Based upon Ms. Basanti’s presentation on Septem ber 28, the Court cannot

67

conclude that a reasonable family physician would have initiated further workup to rule
out a thoracic spinal cord tumor, let alone ordered a thoracic MRI.
The October 5 visit with Dr. Robinson was initiated by the Salud Clinic and was
for the stated purpose of reviewing lab results. There is no indication Ms. Basanti made
a specific complaint or otherwise indicated that her condition was worsening. To the
contrary, Ms. Basanti indicated that her pain had improved without the use of
medications, a finding which, according to Dr. Deutchman’s undisputed testimony,
decreased the urgency of doing further evaluation. See supra Finding of Fact No. 57.
Although plaintiff was critical of Dr. Robinson’s admitted failure to conduct a full
neurological exam during this visit, neither Dr. Huffman’s nor Dr. Deutchman’s
testimony supported such criticism. Moreover, plaintiff failed to show what findings a
full neurological exam would have uncovered. Ms. Basanti did not testify that she was
suffering from leg weakness or complete numbness in both legs consistent with spinal
cord compression as of October 5. Dr. Rauzzino testified that Ms. Basanti was likely
suffering from neurological symptoms related to her cyst during this time period, but the
Court finds that he was unable to determine, to a reasonable degree of medical
certainty, precisely what symptoms would have been present. See supra Finding of
Fact No. 26. For the reasons discussed above, the medical record is, by itself,
insufficient to conclude that Ms. Basanti was experiencing numbness in both legs
consistent with spinal cord compression. See supra Finding of Fact No. 56.a. At best,
it is more likely than not that the numbness Ms. Basanti reported on September 28 was
still present on October 5. Even if Dr. Robinson had performed a full neurological
exam, it is unclear what she would have found, and plaintiff fails to show whether such
68

findings would have prompted a reasonable family physician to take further action.52 As
for the possibility of further imaging, Dr. Deutchman testified that Dr. Robinson was not,
at this point, required to order a lumbar or thoracic MRI and no other family medicine
physician offered a contrary opinion. See supra Finding of Fact No. 59. The Court
cannot therefore conclude that Dr. Robinson breached the standard of care during Ms.
Basanti’s October 5 visit.
Dr. Robinson admitted that, on October 12, she documented only the location
and severity of Ms. Basanti’s symptoms. Although there was no direct criticism of Dr.
Robinson’s patient history, it is possible to infer that, based upon the testimony of Dr.
Deutchman, Dr. Robinson, and Dr. Beagle, a reasonable family physician would have
inquired about Ms. Basanti’s symptoms in more detail. Dr. Robinson admitted that she
did not perform a neurological examination for reasons that were not entirely credible.
Supra Finding of Fact No. 67. However, no family medicine physician was directly
critical of her decision not to perform such an examination, especially given the fact that
Ms. Basanti reported that her back pain had improved. The Court will not therefore
infer that Dr. Robinson’s patient history and failure to conduct a neurological
examination breached the standard of care. Even assuming that a breach did occur, as
discussed above, the lack of evidence as to what symptoms Ms. Basanti was
experiencing at this time provides no basis upon which to determine what a more
thorough patient history or neurological exam would have revealed.

52

Although plaintiff argued that Dr. Robinson’s failure to keep adequate records
caused this uncertainty, this does not discharge plaintiff’s burden of showing what
would have been revealed with better record keeping or a more thorough patient history
and how such information would have led to an earlier diagnosis of Ms. Basanti’s cyst.
69

October 12, 2013 was Dr. Robinson’s last visit with Ms. Basanti. There was no
expert testimony suggesting that she breached the standard of care by failing to initiate
contact with Ms. Basanti after that date. The Court therefore turns to the question of
whether Dr. Robinson was required on October 12 to order further imaging. Dr.
Huffman seemed to suggest that, based upon Dr. Robinson’s September 28 note and
Ms. Basanti’s persistent symptoms, Dr. Robinson should have ordered an MRI. See
supra Finding of Fact No. 68.b. Thus, Dr. Huffman appeared to be of the opinion that
Dr. Robinson’s note expressed the relevant standard of care, such that if Ms. Basanti’s
symptoms worsened or, if more objective findings of weakness manifested, Dr.
Robinson was required to order an MRI. 53 Dr. Huffman did not further explain his
opinion, which suffers from two flaws. First, implicit in Dr. Huffman’s testimony is a
belief that Ms. Basanti’s symptoms did indeed worsen between September 28 and
October 12. The evidence does not support such a conclusion. Plaintif f was critical of
Dr. Robinson for failing to thoroughly examine Ms. Basanti to establish a baseline by
which Ms. Basanti’s symptoms could subsequently be judged. However, as discussed
above, plaintiff fails to show, by a preponderance of evidence, that, had such a baseline
been established, a reasonable family physician would have determined that Ms.
Basanti’s symptoms had worsened. Ms. Basanti did not offer any testimony concerning
her symptoms during this period.

53

Dr. Huffman’s testimony on this point was not entirely clear and is subject to
more than one interpretation. The Court, however, interprets Dr. Huffman’s testimony
liberally.
70

Dr. Robinson was, as Dr. Deutchman testified, charged with knowledge of
information contained in the Salud records during the relevant time period. See supra
Finding of Fact No. 91.b. On September 28, Ms. Basanti was suffering from right
shoulder pain, lower back pain, and left leg numbness. See Ex. 1, p. SF000101. As
discussed above, as of October 5, Ms. Basanti’s back pain improved and her leg
numbness persisted. See supra Finding of Fact No. 56. As of October 9, Ms. Basanti’s
left leg numbness did not improve, but she had sensation in both her lower extremities.
See Ex. 1, p. SF000110. On October 12, Ms. Basanti’s back pain ag ain improved, but
there was little indication that her leg numbness or shoulder pain either improved or
worsened. See Ex. 1, p. SF000112. The medical records are therefore inconclusive.
The Court cannot conclude that a reasonable f amily physician, when viewing the
medical records of Ms. Basanti’s visits between September 28 and October 12, would
have determined that Ms. Basanti’s symptoms had worsened. The more reasonable
conclusion is that Ms. Basanti’s numbness and shoulder pain persisted without
significant improvement. On that basis, Dr. Huffman’s opinion that Dr. Robinson should
have ordered an MRI if Ms. Basanti’s symptoms worsened is factually unsupported.
Second, Dr. Huffman did not explain what area of the body the standard of care
required Dr. Robinson to image. Dr. Robinson and Dr. Deutchman interpreted Dr.
Robinson’s September 28 note’s reference to an MRI as referring to MRIs of the
shoulder and/or lower back. Supra Finding of Fact No. 55. Their testimony is
undisputed and there is no suggestion that an MRI of the thoracic spine was, or should
have been, contemplated as of September 28. Even if an MRI of the shoulder and
lower back were conducted and the results failed to explain Ms. Basanti’s symptoms,
71

neither Dr. Huffman nor any other family medicine physician explained how the
appropriate course of treatment would subsequently lead to the ordering of a thoracic
MRI. The Court therefore declines to adopt Dr. Huffman’s opinion.
The testimony of Dr. Robinson and Dr. Deutchman does not lead the Court to a
different conclusion. Dr. Robinson’s diagnosis of back and shoulder pain caused by
osteoarthritis did not, according to the expert testimony in this case, entirely explain Ms.
Basanti’s shoulder pain. Similarly, had plaintiff established that Ms. Basanti was indeed
presenting with indications of complete leg numbness consistent with spinal cord
compression, lumbar back pain would not have explained such numbness. Just
because Dr. Robinson’s diagnosis was not entirely credible does not necessarily
establish that she breached the standard of care in failing to order further imaging. Dr.
Robinson agreed that leg numbness and pain in the thoracic spine can be red f lags
indicating more serious underlying pathology, and that, if one or more red flags were
present, a neurologic evaluation should generally be done. See supra Finding of Fact
No. 22 n.7. The presence of red flags does not, however, in every instance dictate that
the patient undergo an MRI. Moreover, plaintiff fails to show that, had a more thorough
neurological evaluation been done, complete numbness consistent with spinal cord
compression would have been found and that a reasonable family physician should
have perceived Ms. Basanti’s shoulder pain as pain in the thoracic spine.
Dr. Deutchman’s credibility was negatively affected where, when questioned by
government counsel, his opinions were inconsistent with prior testimony elicited by
plaintiff’s counsel during his deposition and at trial. He testified that Dr. Robinson was
not required to order a lumbar or thoracic MRI on October 12 because Ms. Basanti’s
72

symptoms were not referable to the thoracic area and appeared to be improving. Supra
Finding of Fact No. 68.c. As discussed above, Dr. Deutchman’s opinion fails to
consider the undisputed testimony that pressure on the dura can cause pain that is
referred to other locations. To that extent, his opinion is not entirely credible. However,
with the exception of the above-discussed opinion of Dr. Huffman, no other family
medicine physician testified that Dr. Robinson was required to conduct further imaging.
The Court cannot therefore conclude that Dr. Robinson breached the standard of care
by failing to order additional imaging on October 12. Moreover, even if a lumbar and
shoulder MRI had been ordered, as contemplated by Dr. Robinson’s September 28
note, plaintiff fails to show or explain through expert testimony how ordering such
imaging would lead a reasonable family physician in the appropriate course of
treatment to subsequently order a thoracic MRI. Plaintiff therefore fails to show that Dr.
Robinson breached the standard of care on October 12 or that any such breach was a
legally sufficient cause of Ms. Basanti’s injuries.
The Court turns to the October 27, 2009 phone conv ersation between Dr.
Robinson and Dr. Beagle, where Dr. Robinson expressed to Dr. Beagle that Ms.
Basanti’s pain had, to some extent, a psychosomatic component. See supra Finding of
Fact No. 90. Dr. Robinson did not have a credible explanation for believing that Ms.
Basanti’s symptoms were in fact psychosomatic. Dr. Huffman testified that, rather than
generally stating that Ms. Basanti’s pain may be psychosomatic, Dr. Robinson was
required to review the Salud records herself to provide Dr. Beagle additional
information. Id. Dr. Deutchman testified that, if the only thing Dr. Robinson told Dr.
Beagle was that Ms. Basanti’s pain was psychosomatic, Dr. Robinson breached the
73

standard of care. Id. However, both opinions lack factual support in the record. First,
the most reasonable interpretation of Dr. Beagle’s note is that Dr. Robinson told Dr.
Beagle that Ms. Basanti’s pain had “a bit” of a psychosomatic component, Ex. 3, p.
PVMC000037-38, which does not does not entirely support plaintiff’s argument that Dr.
Robinson told Dr. Beagle that Ms. Basanti was “making up” all symptoms. Moreover,
the fact that Dr. Robinson may have been incorrect in her belief that Ms. Basanti’s pain
had “a bit” of a psychosomatic component does not, by itself, appear to violate the
standard of care. Second, Dr. Robinson and Dr. Beagle do not have any specific
memory of their conversation, which places plaintiff in the position of having to prove
that Dr. Robinson did not review her notes and did not provide Dr. Beagle with any
additional information. There is some suggestion that, had Dr. Beagle been provided
with information that Ms. Basanti had a history of neurological deficits, it was Dr.
Beagle’s habit and practice to record such information but that no such information was
recorded. See supra Finding of Fact No. 89. Dr. Beagle’s testimony regarding her
habit and practice on this issue was not persuasive and, as a result, the Court will not
make an inference based on the absence of certain information in Dr. Beagle’s note.
Because there is no other evidence of what additional information, if any, was
exchanged during the conversation, plaintiff fails to meet her burden of showing what
additional information Dr. Robinson did or did not share, rendering the experts’
criticisms without factual support. Moreover, even if the Court assumed that Dr.
Robinson breached the standard of care by failing to pass on information she should
have been aware of, neither Dr. Huffman, Dr. Deutchman, nor Dr. Beagle explained
how additional information from Dr. Robinson would have altered the appropriate
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course of treatment and hastened the performance of a thoracic MRI. It is possible to
infer that, had Dr. Robinson communicated the contents of the diabetic educator’s
October 22 note indicating that Ms. Basanti was having difficulty walking, Dr. Beagle
may have had a clearer picture of Ms. Basanti’s symptoms, but plaintiff provides no
expert testimony to explain whether this information would have led to a different result,
especially, as discussed below, given that Ms. Basanti was being treated for other
issues. Thus, the Court finds that plaintiff has failed to show that Dr. Robinson
breached the standard of care during her October 27 conversation with Dr. Beagle and,
in the alternative, that the alleged breach was a legally sufficient cause of Ms. Basanti’s
injuries.
Plaintiff suggested that Dr. Robinson’s longitudinal care of Ms. Basanti did not
comport with the standard of care. Plaintiff’s counsel argued that the National
Guideline Clearinghouse guidelines required the Salud physicians to conduct further
imaging or specialist referral. Dr. Deutchman admitted that Ms. Basanti’s age and leg
symptoms constituted red flags and testified that, if Ms. Basanti’s function did not
improve, the guidelines recommended imaging. See supra Finding of Fact Nos. 91,
112. He further testified that Dr. Robinson, as a Salud provider, was charged with
knowledge of Ms. Basanti’s care during the relevant time and, when looking at the
totality of Ms. Basanti’s medical records, would have noticed a progression of
symptoms. Under the guidelines, advanced imaging and specialist referral should have
been considered. See id. Because this information was elicited by plaintiff’s counsel,
the Court finds it credible. Nevertheless, while credible, it is insufficient to meet
plaintiff’s burden for multiple reasons. First, Dr. Deutchman did not further explain his
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opinion or point to specific records from which a reasonable family physician would
have perceived progressive neurological deficits or disabling leg pain. Although, in
hindsight, Ms. Basanti was suffering from neurological deficits related to her cyst and
there is no indication that her left leg numbness improved during the relevant time
period, there is insufficient evidence upon which to conclude that a progression of
neurological deficits was taking place between September 20 and October 12 that Dr.
Robinson should have considered. Second, as noted earlier, the guidelines are
relevant considerations but do not substitute for the standard of care. Dr. Deutchman
did not provide a detailed explanation of why he believed the guidelines were
authoritative and to what degree the guidelines were accepted in the medical
community. Third, the guidelines do not prescribe a course of action or indicate which
area of the body should be imaged. As noted above, there is no evidence that a
reasonable family physician would have first ordered a thoracic MRI and no explanation
of how an MRI of, for example, the lumbar spine would lead to the ordering of a thoracic
MRI. Similarly, plaintiff failed to show that specialist referral would have altered the
outcome. This omission is significant, especially given that Dr. Tolge examined Ms.
Basanti when she had dramatically more severe symptoms, yet believed that GuillainBarre was the primary diagnosis. See supra Finding of Fact No. 99.a. Thus, even if the
guidelines suggested that Dr. Robinson should have conducted further imaging or
specialist referral, plaintiff fails to show that such actions would have resulted in an
earlier diagnosis. The same holds true for the presence or absence of other back pain
red flags. As with the aforementioned alleged breaches of the standard of care, here

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plaintiff failed to show what steps a reasonable family physician would have taken that
would have led to the ordering of a thoracic MRI.
Dr. Huffman appeared to suggest that all of the breaches of the standard of care
he identified during his testimony led to a delay in the correct diagnosis. Even if the
Court construes Dr. Huffman’s testimony as an opinion that all of Dr. Robinson’s
breaches, taken together, caused a delay in diagnosis, Dr. Huffman’s testimony is
conclusory and without support. Dr. Huffman did not explain how, had the claimed
breaches not occurred, the appropriate course of treatment would have been altered so
as to lead to a timely thoracic MRI. See Flores-Hernandez v. United States, 910 F.
Supp. 2d 64, 79 (D.D.C. 2012) (“Flores-Hernandez did not present any testimony, from
Dr. Boothby or otherwise, establishing that a cone biopsy would have been the
appropriate course of treatment upon a finding of CIN-1.”). Dr. Huffman’s opinion is
therefore insufficient to establish Dr. Robinson’s liability.
Although Dr. Robinson did not, in all instances, act in accordance with the
standard of care, plaintiff fails to meet her burden of showing that any such breaches
would have led to a timely thoracic MRI. The causal chain is therefore too attenuated
to find Dr. Robinson liable for Ms. Basanti’s injuries.
2. Dr. Rufner
Plaintiff’s lone criticism of Dr. Rufner during closing arguments appeared to be
that Dr. Rufner failed to adequately communicate with Ms. Basanti’s other treating
physicians. Dr. Huffman did not offer an opinion on Dr. Rufner’s care and neither side

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called Dr. Rufner as a witness. Thus, Dr. Deutchman was the only expert to offer an
opinion concerning Dr. Rufner’s care.54
Dr. Rufner saw Ms. Basanti on a single occasion. Plaintiff presented no
substantive evidence that Dr. Rufner was required to acquire the records from Ms.
Basanti’s September 20 PVMC ER visit. See Melville, 791 P.2d at 387. Although
plaintiff appeared to argue that Dr. Rufner was required to do her own workup of Ms.
Basanti’s leg numbness, Dr. Deutchman testified that Ms. Basanti’s visit was for the
purpose of changing her diabetic medication such that Dr. Rufner was not required to
address Ms. Basanti’s complaint of leg numbness. Supra Finding of Fact No. 64. Dr.
Deutchman’s testimony was undisputed. Although, in hindsight, Dr. Rufner’s apparent
belief that Ms. Basanti’s leg numbness had been “worked up” at the hospital proved to
be incorrect, the belief was based upon information provided by Ms. Basanti and no
expert found Dr. Rufner’s belief unreasonable or testified that Dr. Rufner was required
to confirm information provided by her patient. See supra Finding of Fact No. 62.b.
Plaintiff presented insufficient substantive evidence that Dr. Rufner was required to
order an MRI as contemplated by Dr. Robinson’s September 28 note and Dr.
Deutchman testified that Dr. Rufner was not required to order a thoracic MRI. 55 See

54

Although the Court could infer that Dr. Rufner breached the standard of care
based upon the expert testimony offered against Dr. Beagle and Dr. Robinson, the
Court declines to do so, finding that plaintiff failed to prove that such testimony was
applicable to Dr. Rufner.
55

Dr. Deutchman also testified to a hypothetical concerning Dr. Rufner’s care.
Plaintiff did not ask Dr. Deutchman to further explain the basis for his hypothetical and,
as noted above, it lacks a sufficient factual connection to this case at several steps. For
example, there is insufficient expert testimony upon which to conclude that Dr. Rufner
was required to order the PVMC ER records and that she was required to order a
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supra Finding of Fact No. 64.a. Plaintiff has failed to show that Dr. Rufner breached the
standard of care.
3. Dr. Beagle
Plaintiff criticized Dr. Beagle for performing a perfunctory assessment of Ms.
Basanti on October 27. The criticisms of Dr. Beagle leveled by the expert witnesses in
this case consist of the following: Dr. Deutchman criticized Dr. Beagle for failing to
obtain a proper patient history. He explained that, when evaluating a patient with
neurological deficits, it is important to know when those deficits first occurred. As such,
a reasonable family physician would have determined when Ms. Basanti first started
having weakness issues in her right leg and sensory deficits in her left leg. See supra
Finding of Fact No. 84.a. The Court finds, by a preponderance of evidence, that Dr.
Beagle failed to take a proper patient history, namely, that Dr. Beagle failed to
determine when Ms. Basanti’s neurological deficits first occurred. Dr. Deutchman
further testified that the failure to obtain a proper history diminishes the chances of an
accurate differential diagnosis and increases the likelihood of a misdiagnosis or delay in
diagnosis. Id. However, “the fact that a defendant’s conduct increased the victim’s risk
of injury does not necessarily mean that the defendant’s conduct was a but-for cause of
the injury or a necessary component of a causal set of events that would have caused
the injury.” Reigel, 292 P.3d at 987. Dr. Deutchman was not asked to explain what a
more thorough history would have unearthed and how it would have changed the

lumbar MRI. Therefore, because the steps of the hypothetical are not factually
supported, the Court cannot credit the conclusion, nam ely, that Dr. Rufner had a
responsibility to look at the remainder of the spine and that it would have made sense
to proceed with a thoracic MRI.
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appropriate course of treatment. No other family medicine physicians offered an
opinion on the issue. Thus, the Court finds that plaintiff has failed to show that Dr.
Beagle’s negligent patient history was a legally sufficient cause of Ms. Basanti’s
injuries.
Dr. Huffman testified that Dr. Beagle’s neurological exam violated the standard
of care for failure to thoroughly check for muscle weakness. Supra Finding of Fact No.
86. Dr. Deutchman admitted that the medical records did not document that Dr. Beagle
asked Ms. Basanti to lift her leg off the bed. Id. Although Dr. Beagle lifted Ms.
Basanti’s legs off the bed to test for deep tendon reflexes, there is no indication that
Ms. Basanti assisted Dr. Beagle in lifting her leg off the bed as Dr. Beagle indicated
patients generally do. Id. As such, the Court cannot conclude that Dr. Beagle
assessed Ms. Basanti’s motor function. Moreover, rather than listing her own physical
exam findings on leg sensation and strength, Dr. Beagle’s note suggests that she relied
on the neurologic examination conducted by Dr. Rozeski – further indication that Dr.
Beagle did not conduct her own assessment of Ms. Basanti’s legs to check for
numbness. See Ex. 3, p. PVMC000037. The Court finds that Dr. Beagle breached the
standard of care by failing to determine the degree of numbness and motor function in
Ms. Basanti’s legs. Nonetheless, it is not clear what a more thorough neurologic exam
would have uncovered. At approximately 6:30 a.m., Dr. Bracy determined that Ms.
Basanti was unable to move her right leg,56 yet a nurse examining Ms. Basanti at 11:20
a.m., and later at 7:50 p.m., noted that Ms. Basanti was experiencing weakness in her

56

As noted above, it is unlikely that Dr. Bracy communicated to Dr. Beagle the full
extent of his neurologic findings.
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legs, but was able to move all extremities. Ex. 3, p. PVMC000093. The nurses’ notes
during the evening of October 27 indicate that Ms. Basanti was able to ambulate with
standby assistance. See supra Finding of Fact No. 95. The evidence, therefore, does
not support an inference that a complete neurological examination at approximately
11:00 a.m. would have revealed that Ms. Basanti was unable to move her right or left
leg. Moreover, plaintiff again fails to explain how such a finding would have altered the
appropriate course of treatment and led to a thoracic MRI. By this time, a brain and
lumbar MRI had already been performed, which, according to Dr. Beagle’s note, did not
appear to explain Ms. Basanti’s condition. See Ex. 3, p. PVMC000037-38. Although
spinal cord compression may have been a unifying diagnosis for Ms. Basanti’s
neurological symptoms, Ms. Basanti was also hyponatremic and had high glucose
levels. Hyponatremia and high glucose levels, in retrospect, may not have conclusively
explained all of Ms. Basanti’s symptoms, but nonetheless required treatment and fit the
clinical picture of someone with generalized weakness and gastrointestinal issues. See
supra Finding of Fact No. 88.b. No expert witness clearly expressed an opinion that,
had a reasonably family physician found Ms. Basanti unable to move her right leg, the
appropriate course of treatment at that point would have been to order a thoracic MRI.
See Melville, 791 P.2d at 387. Thus, the Court cannot find, by a preponderance of
evidence, that Dr. Beagle’s failure to conduct a proper neurological exam was a legally
sufficient cause of Ms. Basanti’s injuries.
Dr. Huffman criticized Dr. Beagle for relying on Dr. Robinson’s assessment of
Ms. Basanti’s symptoms and opined that Dr. Beagle should have conducted her own
review of Ms. Basanti’s Salud records. Supra Finding of Fact No. 89.b. It was possible
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for Dr. Beagle to call and ask a Salud staff member to relay specific information from
the Salud records. However, there is no indication that the Salud records were
available at PVMC electronically and it is unclear how long it would have taken for
physical copies of the records to arrive at PVMC. However, even if the Court accepts
Dr. Huffman’s opinion, Dr. Huffman does not explain what a reasonable family
physician, standing in the shoes of Dr. Beagle on October 27, 2009, would have
gleaned from the Salud records and how such information would have altered the
appropriate course of treatment. Dr. Beagle was already aware that Ms. Basanti had a
“long standing history of weakness in her left leg” and was complaining of increasing
weakness in her right leg. Ex. 3, p. PVMC000036. As discussed above, Dr.
Deutchman was of the opinion that a Salud physician, looking at the totality of Ms.
Basanti’s medical records, would have noticed a progression of symptoms and, under
the guidelines, advanced imaging and specialist referral should have been considered.
See supra Finding of Fact No. 91.c. However, advanced imaging of the lumbar spine
and brain had already been conducted by this point and the guidelines do not prescribe
a specific course of treatment or set forth next steps. More critically, even assuming Dr.
Beagle was able to acquire the records before going off shift and assuming such
information would have led a reasonable family physician to order a thoracic MRI,
plaintiff does not show that the standard of care required an MRI to be ordered
immediately and, if so, whether time remained to conduct a thoracic MRI at PVMC and
to remove the cyst prior to Ms. Basanti becoming paralyzed. Thus, the Court cannot
find that Dr. Beagle is liable for a failure to conduct her own review of the Salud
records.
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There are troubling aspects of Dr. Beagle’s care. For example, the experts
generally agree that the inability to void can be consistent with a spinal cord injury.
There is no indication that Ms. Basanti’s Foley catheter was ever removed to assess
her ability to void. Thus, Dr. Beagle’s finding that Ms. Basanti had no difficulty voiding
is not credible. Supra Finding of Fact No. 88. Dr. Beagle’s apparent reliance on the
neurological examination conducted in the ER is troublesome given the lack of
evidence that she made her own neurological findings. Dr. Beagle also admitted that
spinal cord compression should be considered when a patient was unable to void,
suffering from new right leg weakness, prior left leg weakness and sensory changes.
Id. Dr. Deutchman admitted that Dr. Beagle did no further workup on spinal cord
compression. Id.
In hindsight, it appears that Ms. Basanti’s cyst caused her condition to progress
from leg numbness and weakness to complete paralysis in roughly 24 hours. Plaintiff
fails to show that a reasonable family physician would have perceived that paralysis
could occur in such a short window under the circumstances present on October 27.
There is no indication that spinal cord compression regularly causes so rapid a
progression such that, even if Dr. Beagle believed a thoracic MRI was warranted, the
standard of care required a thoracic MRI to be conducted on an em ergent basis.57 Dr.

57

Dr. Tolge testified that a compressive lesion typically causes a slower
progression of deficits than Ms. Basanti complained of and that a three day rapid
progression of symptoms is not a typical presentation for a compressive lesion. Supra
Finding of Fact No. 99.a. Dr. Rauzzino testified that symptoms of spinal cord
compression are generally progressive and that, for Ms. Basanti to be able to retain any
function during the relevant time period, her cyst was likely growing very slowly. Supra
Finding of Fact No. 23.
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Deutchman consistently testified that the CT scan and lumbar MRI were reasonable
efforts under the circumstances to determine whether Ms. Basanti’s symptoms had a
neurologic origin. See supra Finding of Fact No. 88.b. Tellingly, Dr. Huffman did not
directly criticize the fact that Dr. Beagle visited Ms. Basanti just once on October 27.
Were a compressive lesion reasonably likely to cause rapid paralysis, one would expect
the expert witnesses in this case to criticize Dr. Beagle for failing to reexamine Ms.
Basanti or arrange for the on-call Salud physician to check her neurologic function
during the night. Plaintiff elicited no such testimony. Given the atypical presentation of
Ms. Basanti’s compressive lesion, the Court cannot, in the absence of expert testimony
on the issue, find that a reasonable family physician would have thought the urgency of
ruling out a compressive lesion in the thoracic spine so great that a thoracic MRI would
have been ordered and conducted on October 27, in tim e to prevent paralysis.
More so than other physicians, the examination of Ms. Basanti performed by Dr.
Tolge provides an important perspective on the degree to which the Salud physicians
should have analyzed the symptomology and medical history to conclude that an MRI
of the thoracic spine was needed. Dr. Tolge is a board-certified neurologist, who has
been practicing in the field of neurology for more than twenty years. When Dr. Tolge
examined Ms. Basanti, her neurological condition was much more serious than when
any of the Salud doctors saw her on or before October 27. Ms. Basanti had no
sensation in or motor control of her legs and was paraplegic in the lower extremities.
She had no sensation of bladder fullness. See supra Finding of Fact No. 99. After
reviewing the medical records and noting that cranial and lumbar MRIs were essentially
normal for a person plaintiff’s age and learning from plaintiff that left leg numbness had
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began a month earlier and right leg numbness three days earlier, Dr. Tolge made the
following assessment: “Rapidly progressive ascending lower extremity sensory motor
impairment with sphincteric disturbances, very concerning for Guillain-Barre with
autonomic dysfunction. Consider compressive myelopathy or transverse myelitis in
differential but consider these less likely.” Ex. 5, p. MCA000029. Dr. Tolge, a
neurologist examining Ms. Basanti in a paralytic condition and armed with information
regarding the history of Ms. Basanti’s condition, focused first on Guillain-Barre and
determined that a compressive spinal lesion was less likely. The Court recognizes that
neurologists and family practice physicians are subject to different standards of care.
See Hall, 190 P.3d at 858-59. Nonetheless, neurologists are generally more
experienced than family physicians at recognizing and diagnosing neurological
problems. The fact that an experienced neurologist examining Ms. Basanti in an acute
neurological condition directly implicating a spinal cord problem did not consider a
spinal lesion to be likely makes it more reasonable that the Salud physicians, based on
far less obvious symptoms, would not have ordered a thoracic MRI to rule out the
possibility of a compressive lesion.
Although Dr. Beagle did not in all instances act as a reasonable f amily physician,
for the foregoing reasons, the Court cannot conclude that Dr. Beagle’s breaches of the
standard of care caused plaintiff’s injuries and therefore render her liable for Ms.
Basanti’s injuries.58

58

Dr. Huffman’s suggestion that all of the breaches of the standard of care he
identified during his testimony led to a delay in the correct diagnosis is, for the foregoing
reasons, similarly unsupported and insufficient to hold Dr. Beagle liable.
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III. CONCLUSION
There is uncertainty surrounding Ms. Basanti’s condition during the relevant time
period. The physicians who treated Ms. Basanti prior to her becoming paralyzed have
little to no independent memory of Ms. Basanti’s visits. Ms. Basanti and her family
members provided little indication of how her symptoms progressed, let alone what
symptoms were present but undiscovered during visits with the Salud physicians. No
expert witnesses indicated, to a reasonable degree of medical certainty, what specific
symptoms Ms. Basanti’s cyst would have caused and when such symptoms would have
manifested. This leaves the medical records as the primary source of information and,
as discussed at length, it is difficult to infer the presence or absence of a particular
medical finding based upon the presence or absence of a particular finding in the
records. It is harder still to say, with the necessary certainty, what findings would have
been discovered had more complete histories or more complete physical examinations
been performed.
The appropriate course of treatment in this case is beyond “the realm of lay
knowledge and experience” and expert testimony is therefore required. Melville, 791
P.2d at 387. Plaintiff did not establish through expert testimony that the standard of
care required Dr. Robinson, Dr. Rufner, or Dr. Beagle to order a thoracic MRI. As a
result, plaintiff was required to show that, had the Salud physicians acted as reasonable
family physicians, the appropriate course of treatment would have been altered in such
a way that a thoracic MRI would have been conducted in time to remove the cyst and
prevent at least some of Ms. Basanti’s injuries. However, the expert testimony in this
case did not illustrate, and the Court cannot speculate as to, w hat the appropriate
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course of treatment would have been had the various breaches not occurred. Thus, the
Court has no basis upon which to determine how, if at all, certain substandard conduct
of some Salud physicians changed the outcome.59
Ms. Basanti has the extreme misfortune of having a rare cyst in her thoracic
spine compress her spinal cord to the point of paralysis. Ms. Basanti will never again
be able to walk or care for herself without assistance. Although some of Ms. Basanti’s
treating physicians from the Salud Clinic in some instances fell below the standard of
care, there is insufficient evidence upon which to conclude that the Salud physicians
caused a delay in the diagnosis of Ms. Basanti’s spinal cord cyst. As a result, the
United States cannot be held liable for any damages suffered by Ms. Basanti.60 It is
therefore
ORDERED that judgment shall enter in favor of the United States and against
plaintiff. It is further
ORDERED that the government’s Motion Pursuant to Fed. R. Civ. P. 52(C) for
Judgment on Partial Findings Relating to the Claim Against Dr. Kelet Robinson [Docket
No. 346] and plaintiff’s Motion for Judgment as a Matter of Law Regarding Causation

59

The Court did not declare the jury advisory pursuant to Fed. R. Civ. P. 39(c)
and has arrived at this conclusion through an independent review of the evidence. See
Engle v. Mecke, 24 F.3d 133, 136 (10th Cir. 1994) (holding that parallel jury
determination has no binding effect in an FTCA action). Nonetheless, it is worth noting
that the jury was asked to apportion fault among all defendants pursuant to Colo. Rev.
Stat. § 13-21-111.5 and found that, while the United States was negligent, such
negligence did not cause any damages to plaintiff. See Docket No. 372-1 at 2.
60

The Court therefore need not, for purposes of Colo. Rev. Stat. § 13-21-111.5,
determine whether Dr. Metcalf or Dr. Rozeski should be attributed a percentage of fault.
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[Docket No. 368] and Motion for Judgment on Partial Findings [Docket No. 369] are
DENIED as moot. It is further
ORDERED that this case is closed.

DATED February 26, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

88