Vargas v. United States of America

Filing 121

MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, the Court finds that Plaintiff has not proven that the defendant was negligent by a preponderance of the evidence. Accordingly, the Court enters judgment in favor of the government. A separate AO-450 judgment shall be entered. The status hearing of 01/09/2020 is vacated. Civil case terminated. Mailed notice(sxw, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LOUIS VARGAS,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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No. 16 C 11012
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
In November 2015, Louis Vargas suddenly felt sick during a dinner banquet.
So he went home and went to bed. The next morning, his wife, Minnie Vargas, found
him unresponsive. R. 1, Compl.1 It turns out that, unfortunately, Vargas had suffered
a heart attack and experienced septic shock from a urinary infection. He was
hospitalized for ten days. Id. Around a month later, he was diagnosed with carpal
tunnel syndrome. Id. Eventually, Vargas filed this lawsuit under the Federal Tort
Claims Act, 28 U.S.C. § 1346(b), alleging medical malpractice arising from an October
2015 visit to the Urology Clinic of the Department of Veterans Affairs (known by the
acronym VA) Edward Hines, Jr. Hospital. Specifically, Vargas alleges that Hines
Hospital’s health care providers breached the standard of care after failing to follow
up with a urinalysis obtained in October 2015, and that that breach proximately
caused his carpal tunnel syndrome.

1This

Court has subject matter jurisdiction over this action under 28 U.S.C. § 1331
and 28 U.S.C. §§ 1346(b) and 2671 et seq. Citations to the record are “R.” followed by the
docket entry number and, where applicable, a page or paragraph number.

In February 2019, the case proceeded to a five-day bench trial, during which
both fact and expert witnesses testified. The parties delivered closing arguments
focused on liability (as distinct from damages), and then filed post-trial briefs. R. 105,
Pl.’s Br.; R. 114, Gov.’s Resp. Br.; R. 116, Pl.’s Reply Br. This Opinion sets forth the
Court’s findings of fact and conclusions of law under Federal Rule of Civil Procedure
52(a). These findings are based on the records allowed into evidence and the
testimony at trial. The findings are also premised on the Court’s credibility
determinations after observing each of the witnesses testify in-person at trial. As
detailed below, the Court finds that Vargas has not met his burden of proof on liability
and enters judgment in favor of the United States.
I. Background
The following evidence was offered at trial and is undisputed except where
noted. To the extent that any factual findings are made in the Conclusions of Law
section, that was done to better organize the Opinion for comprehensibility.
A. Medical History
Vargas is now a 73-year-old Vietnam veteran. 2/6/19 L. Vargas Trial Tr. at
24:22-23; 25:9-20. He suffers from several disabilities and chronic illnesses, including
diabetes with peripheral neuropathy, hypertension, obesity, post-traumatic stress
disorder, arthritis, chronic low back pain, and benign prostatic hypertrophy (often
referred to as “BPH”). Id. at 101:9-104:7; Joint Exh. 1, VA Medical Records at 1515.2
Many of these illnesses, specifically, diabetes, diabetic neuropathy, age, obesity, and

2The

page numbers noted with respect to the parties’ joint exhibits refer to the Bates
number stamped on the bottom right hand corner of the document.

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arthritis are associated with carpal tunnel syndrome. See Fernandez Trial Tr. at
95:22-25; Hoepfner Trial Tr. at 22:20-23:25. Additionally, BPH and diabetes are risk
factors that predispose individuals to contracting urinary infections. See Coogan Trial
Tr. (afternoon) at 32:9-21; Fox Trial Tr. at 40:8-14.
Vargas had been receiving medical care for his disabilities and illnesses from
the Hines VA Hospital system since around 1985. 2/6/19 L. Vargas Trial Tr. at 101:68. Starting in around 2014, Mary Petrella, a nurse practitioner at the Hines Hospital
Joliet Community-Based Outreach Clinic, became Vargas’s primary care provider.
Petrella Trial Tr. at 7:10-22. Vargas regularly met with Petrella—every three months
or so—for routine follow-ups on his chronic medical issues. See id. at 8:1-4. In addition
to receiving treatment from the VA, Vargas also saw outside providers, including a
private urologist who treated Vargas for urinary tract infections in 2015. Id. at 17:1519:7; 2/6/919 L. Vargas Trial Tr. at 112:25-113:6.
B. Back Surgeries and Follow-up Visits
In early March 2015, Petrella referred Vargas to a physiatrist for rightshoulder pain. Petrella Trial Tr. at 23:10-24:2. At the referral, Vargas saw Dr.
Chandhuri and complained to her about ongoing right-shoulder pain, as well as
numbness or tingling in his arm if he kept his arm flexed at the elbow. VA Medical
Records at 1552. These symptoms are a sign of ulnar-nerve conditions. Hoepfner Trial
Tr. at 10:22-12:14; Fernandez Trial Tr. at 89:23-90:7. He also complained that he felt
weakness in his right hand, and that this condition had been worsening over the past
two years. VA Medical Records at 1552.

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Later that month, Vargas underwent two back surgeries in late March and
early April 2015 with an outside provider—Silver Cross Hospital—to treat his chronic
lower back pain. 2/6/19 L. Vargas Trial Tr. at 32:6-16, 104: 8-11. Vargas initially went
in for a lumbar fusion, and while the doctors were performing that procedure, they
found a fracture in a different part of his spine. Id. at 104:14-19. So the doctors
performed two surgeries. Id. Vargas was then hospitalized for an additional 30 days
due to complications related to colitis. Id. at 32:20-33:8, 104:20-22.
Following the two surgeries, Vargas saw Petrella for one of his routine followups on June 9, 2015. VA Medical Records at 1531. In advance preparation for the
June visit, Petrella ordered Vargas to have a urinalysis conducted on May 20, 2015.
Petrella Trial Tr. at 29:24-30:5. A urinalysis allows medical-care providers to analyze
the contents of the urine and make a preliminary diagnosis. See Buesser Trial Tr. at
42:3-7; see also Turner Trial Tr. at 14:10-17. The lab results from the May urinalysis
tested positive for nitrites and had high white-blood cell and leukocyte-esterase
counts. See VA Medical Records at 1606; see also Petrella Trial Tr. at 36:24-38:5; Fox
Trial Tr. at 29:12-31:2; Coogan Trial Tr. (afternoon) at 15:3-16:12. These results could
indicate the possibility of a urinary tract infection (which the parties and witnesses
referred to with the shorthand “UTI”). Coogan Trial Tr. (afternoon) at 15:22-16:4; Fox
Trial Tr. at 47:14-49:1; Petrella Trial Tr. at 37:1-3 (“[P]ositive nitrites … is an
indication that there could be an issue with a … urinary infection … or
contaminant.”) (emphases added). Also, Vargas’s recent back-surgery hospitalization

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likely involved the use of a Foley catheter, which could also make a patient
predisposed to a UTI. Petrella Trial Tr. at 33:14-25.
A UTI is a “symptomatic infection of the urinary tract.” Buesser Trial Tr. at
41:3-4. Common symptoms of a urinary tract infection include dysuria (painful or
difficult urination), frequent urination, incontinence, and abdominal or lower pelvic
pain. Id. at 41:9-25. But at the June 9 visit, Petrella noted that Vargas had no “signs
or symptoms” of a UTI. Petrella Trial Tr. at 34:9-15; VA Medical Records at 1537. She
also noted that Vargas had already been treated with antibiotics during his
hospitalization. VA Medical Records at 1537. Either way, to be safe, on June 9,
Petrella ordered a follow-up urinalysis and a urine culture based on the results of the
May urinalysis and Vargas’s predisposition to UTIs based on the recent
hospitalization. Petrella Trial Tr. at 36:10-13; see also VA Medical Records at 153738. Medical-care providers use urine cultures to confirm whether there is the
presence of an infection in the urine. See Buesser Trial Tr. at 42:8-9.
The results of the June urinalysis were similar to the results of the one done
in May. Compare VA Medical Records at 1606 (May urinalysis results) with 1604
(June urinalysis results). Vargas’s urine again tested positive for nitrites and had
high white-blood cell and leukocyte-esterase counts. See VA Medical Records at 1604;
see also Petrella 38:9-15; Fox Trial Tr. at 31:7-16. Also, the culture showed the
presence of 100,000 colony-forming units per milliliter of E. coli. See VA Medical
Records at 1605. So even though Vargas did not have signs or symptoms of a UTI,
based on the lab results of the urinalysis and the culture, and Vargas’s medical

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history, Petrella diagnosed Vargas with a UTI and prescribed him antibiotics.
Petrella Trial Tr. at 40:1-7.
C. The Urology Clinic Visit
Fast forward to September 2015: Vargas again visited Petrella, this time with
complaints about his erectile dysfunction medication. VA Medical Records at 151415. During this visit, Petrella noted that Vargas was not experiencing a change in
urinary symptoms and that he was taking Oxybutynin and Terazosin to treat his
lower urinary tract symptoms associated with BPH. VA Medical Records at 1515. She
also listed BPH under Vargas’s “problem list.” Id. After this visit, Petrella referred
Vargas to the Hines VA urology clinic. Id. at 1453.
About a month later, on October 2, 2015, Vargas went to the Hines VA urology
clinic and was examined by nurse practitioner Julia Buesser. See VA Medical Records
at 1454. During the visit, Buesser took notes on the reason for Vargas’s visit; his
medical history, including his two recent back surgeries; and his current symptoms.
Id. Buesser specifically noted that Vargas had the following symptoms: significant
hesitancy and intermittent voiding pattern, nocturia (excessive urination at night),
urgency without incontinence, significant post-void dribbling, and difficulty voiding
from a seated position. See id.
In addition to the information that she gathered from Vargas directly, Buesser
also looked up and noted Vargas’s past visits to the VA urology department. VA
Medical Records at 1456. She also noted that Vargas underwent a cystoscopy (a
procedure that uses a camera to look inside a patient’s urethra) and a microwave

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prostate procedure (a minimally invasive procedure that uses thermal energy to
shrink the prostate gland) at an outside private facility in 2007 to treat his lower
urinary tract symptoms. Id. at 1456; Bresler Trial Tr. at 12:16-24. One potential risk
of a microwave procedure is the formation of scar tissue in the urethra—also called a
“stricture”—that can contribute to urinary symptoms. Buesser Trial Tr. at 22:13-18.
The symptoms noted by Buesser can be associated with both a UTI and BPH.
Buesser Trial Tr. at 78:12-19. One way to distinguish between the two conditions is
by assessing when the symptoms started and how long they last. If the symptoms are
new, then they are a sign of a UTI. Id. If the symptoms are ongoing, meaning the
patient has been experiencing them for some time, then they are a sign of BPH with
LUTS (lower urinary tract symptoms). Id. Based on Vargas’s medical records and her
conversations with him, Buesser determined that Vargas’s symptoms were ongoing
and a sign of his “longstanding, lower urinary tract symptoms.” See Buesser Trial Tr.
at 24:18-19; 24:11-25:25 (“If I had seen that his urinary symptoms were different than
before, I would have taken note of that. … I looked at [Vargas] as someone who had
been dealing with lower urinary tract symptoms since 2007.”). Also, Vargas denied
having certain symptoms that are commonly associated with a UTI, specifically,
dysuria, gross hematuria (blood in the urine), flank pain, and fever and chills. VA
Medical Records at 1454; Buesser Trial Tr. at 78:20-22.
As part of Vargas’s treatment plan, Buesser ordered Vargas to undergo
another cystoscopy to rule out the possibility of a stricture. VA Medical Records at
1459-60. Buesser also switched Vargas from Terazosin to Tamsulosin, and decreased

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his Oxybutynin dosage to treat his BPH with LUTS. See id. at 1459-60.3 Buesser
replaced Vargas’s Terazosin prescription with Tamsulosin because Tamsulosin is a
newer version of the same drug and she was hopeful that it might be more effective.
Buesser Trial Tr. at 77:20-78:6. And she decreased Vargas’s Oxybutynin dosage to
address his hesitancy issues. VA Medical Records at 1506. Finally, Buesser ordered
a urinalysis because Vargas had a history of microhematuria (microscopic levels of
blood in his urine), id.; Vargas had not visited the VA urology department in around
four years, and microhematuria is potentially indicative of genitourinary malignancy,
Buesser Trial Tr. 10:9-13. Buesser consulted with Dr. Larissa Bresler, the attending
urologist on duty at that time, about Buesser’s proposed assessment and plan.
Buesser 45:25-46:20; VA Medical Records at 1460. Bresler agreed with Buesser’s
assessment that the symptoms described by Vargas were symptoms of his preexisting
BPH with LUTS, and signed off on the treatment plan. Bresler Trial Tr. at 8-9.
As it turns out, Vargas’s October 2015 urinalysis results were similar to his
June 2015 urinalysis results (which, as a reminder, were similar to his May urinalysis
results) in that they again tested positive for nitrites and had high white-blood cell
and leukocyte-esterase counts. Compare VA Medical Records at 1430 (October
results) with 1604 (June results). April Turner, a nurse practitioner at the VA urology
clinic, was responsible for reviewing routine lab work and ordering follow up if

3The

parties dispute whether Buesser’s BPH notation in Vargas’s medical records is
evidence that she “diagnosed” him with BPH, and whether this suggests that Vargas was
experiencing a change in symptoms; or whether Vargas’s BPH was a longstanding issue. See
Pl.’s Br. at 14; Gov.’s Resp. Br. at 4-6; Pl.’s Reply Br. at 2-3. As discussed in further detail
below, the evidence shows that Vargas had already been diagnosed with BPH and that this
notation is not evidence of a new symptom.

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necessary. See Buesser Trial Tr. at 17:17-24; Turner Trial Tr. at 10-11. But the week
that Vargas’s lab results came in, Turner was on vacation, and she could not
remember whether Vargas’s lab results were flagged for her to review or whether she
actually reviewed them. Turner Trial Tr. at 9:9-10:25.
D. History of Benign Prostate Hypertrophy
As mentioned earlier, a central question in this case is whether the symptoms
that Vargas was experiencing on October 2 were signs of a UTI or ongoing symptoms
of BPH. The importance of the answer will become clear later on. As explained next,
the Court finds that Vargas was experiencing symptoms associated with BPH before
his October 2 visit to the urology clinic.
BPH is the medical term for an enlarged prostate. Coogan Trial Tr. (morning)
at 7:24; Bresler Trial Tr. at 8:17. Dr. Coogan, the government’s retained urology
expert, explained that BPH is typically diagnosed in three ways: (1) sticking a needle
into the prostate to see if the tissue is enlarged; (2) using a CAT scan to show
enlargement of the prostate; or (3) assessing the patient’s symptoms. Coogan Trial
Tr. (morning) at 7:25-8:8. A diagnosis via the third method is sometimes referred to
as lower urinary tract symptoms, or LUTS. Id. at 9:2-12. The symptoms most
commonly associated with BPH include nocturia, slow flow, hesitancy, urgency,
frequency, incomplete emptying, and starting and stopping of the stream. Id. at 8:913; Bresler Trial Tr. at 8:19-20.
Vargas’s medical records show that he has had BPH since at least 2004, and
BPH with LUTS since at least 2007. See VA Medical Records at 1517, 1899. As noted

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above, Vargas underwent a cystoscopy and a microwave procedure to treat his BPH
symptoms in 2007. See id. at 1456, 1899; Bresler Trial Tr. at 12:16-24. Progress notes
in Vargas’s medical records specifically say that Vargas underwent this cystoscopy
because he had been experiencing “irritative lower urinary tract symptoms” and
because he had microhematuria. See VA Medical Records at 1899 (emphasis added).
Also, back in 2007, Vargas was prescribed Oxybutynin and Terazosin to treat his
BPH-related symptoms. Id. Oxybutynin is an anticholinergic medication that is used
to relax a patient’s bladder muscles, and Terazosin is an alpha-blocker that is
supposed to relieve prostate pressure from the urethra. Buesser Trial Tr. at 56:5-15.
Both medications are prescribed specifically to treat LUTS. Id.
It is true that, from 2007 through 2015, Vargas’s medical records are devoid of
any notation related to BPH or BPH with LUTS. It is not until Vargas’s June 9, 2015
visit with Petrella that his records note again that Vargas had BPH. Petrella’s notes
from that visit include BPH with stress incontinence under Vargas’s “problem list,”
and the notes say that Vargas was still on Terazosin and Oxybutynin. See VA Medical
Records at 1531-1533. At this visit, Petrella also noted that Vargas had “no bowel or
bladder changes or incontinence” because the condition was being treated with the
medication. Id. at 1531; Petrella Trial Tr. at 55:16-18, 13:1-13. Again, at the
September 1, 2015 visit, Petrella made the same notation. See VA Medical Records
at 1515-1517. This gap, though, is not persuasive evidence (as Vargas suggests) that
Buesser’s BPH notation was a “new” diagnosis. Instead, this gap is explained by the
fact that the VA system did not have all of Vargas’s medical records, particularly

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those from outside providers. See Buesser Trial Tr. at 23:25 (“We don’t have any of
these records.”). Petrella explained that the VA’s medical records for patients who,
like Vargas, receive “dual health care”—meaning they receive health care from both
the VA health system and outside providers—are “only as good as what the patient
provides.” Petrella Trial Tr. at 26:12-14. In other words, VA medical records will not
always include information about health care received from outside providers unless
the patient notifies the VA. Id. Ultimately, the record shows that Vargas remained
on Terazosin and Oxybutynin from 2007 until October 2015, when, as explained
above, Buesser switched Vargas to Tamsulosin and lowered his Oxybutynin dosage,
suggesting that his BPH with LUTS had been ongoing since 2007.
E. November 2015 Hospitalization
About a month after Vargas’s urology clinic appointment, Vargas suffered a
heart attack, septic shock, and acute respiratory failure and was hospitalized. Joint
Exh. 3, Presence St. Joseph Records at 578-79. Vargas’s hospital records show that
this was probably the result of a UTI caused by E. coli or klebsiella. See id. at 582
(“Infection is probably caused by E.coli or klebsiella.”). Vargas remained hospitalized
for ten days. During those ten days, he had multiple IVs hooked up to him. See M.
Vargas Trial Tr. at 32-34.
According to Vargas, during his hospital stay, his hands were swollen, and they
hurt. See 2/6/19 L. Vargas Trial Tr. 50:16-19, 45:14-19; see also M. Vargas Trial Tr.
35:9-11, 36:3-6. Vargas testified at trial that he complained to the nurses and
physicians about the swelling and pain. See 2/6/19 L. Vargas Trial Tr. at 46:10-17.

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And according to Vargas’s wife, Minnie Vargas, the nurses soaked Vargas’s hands in
hot water to help with the swelling, though that did not help. M. Vargas Trial Tr. at
36:18-25.
Vargas’s hospitalization records tell a somewhat different story. The notes
entered by physicians mostly say that Vargas did not suffer from swelling at all or,
at other times, only suffered from very mild swelling. On each day that he was
hospitalized, Vargas underwent a physical examination by a physician. See Presence
St. Joseph Records at 579 (11/8/15 physician note); 582 (11/9/15 physician note); 600
(11/10/15 physician note), 606 (11/11/15 physician note), 612 (11/12/15 physician
note), 617 (11/13/15 physician note), 620 (11/14/15 physician note), 626 (11/15/15
physician note), 629 (11/16/15 physician note), 632 (11/17/15 physician note). As part
of these examinations, the physicians who saw Vargas would check to see whether
Vargas had swelling (noted as “edema” in the hospital records) in his extremities. Id.
On November 8, the physician who examined Vargas noted that Vargas had “no
significant … edema” in his extremities. Id. at 579 (11/8/15 physician note). The next
day, on November 9, the physician who examined Vargas noted “[n]o … edema.” Id.
at 582 (11/9/15 physician note). For every other examination, the physicians similarly
noted that edema was “absent” in Vargas’s extremities. Id. at 600 (11/10/15 physician
note), 606 (11/11/15 physician note), 612 (11/12/15 physician note), 617 (11/13/15
physician note), 620 (11/14/15 physician note), 626 (11/15/15 physician note), 629
(11/16/15 physician note), 632 (11/17/15 physician note).

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In some contrast, the nursing notes from Vargas’s hospitalization do state that
Vargas had at least mild swelling. During the hospital stay, nurses examined Vargas
every four hours on a daily basis and took notes related to the swelling in his
extremities. On November 10 and 11, the nurses noted that Vargas had “bilateral”
“upper extremity” edema each time that they assessed him. See Presence St. Joseph
Records at 169, 176-77, 183, 197, 201, 204, 213, 216-17, 220-21, 226-27, 235-36. At
6:30 p.m. on November 11, one of the nurses noted bilateral hand edema. Id. at 23738. From then on, the nurses continued to note bilateral hand edema until Vargas
was discharged on November 17. Id. at 252-53, 267-68, 274-75, 289-90, 298-99, 31213,319-20, 327-28, 339-40, 347-48, 353-54. But Vargas’s swelling was never rated as
higher than a 1 on a 5-point scale, with zero representing no swelling at all. Id.; see
also Fernandez Trial Tr. at 60:7-11. And that means that Vargas’s swelling, when
present, was never worse than mild. Fernandez Trial Tr. at 60:17-18. According to
the hospitalization records, Vargas complained to the nurses just once about
numbness in his hands. Presence St. Joseph Records at 298.
F. Carpal Tunnel Syndrome
Vargas was discharged from the hospital on November 17, 2015. Before the
hospitalization, Vargas had been very active with his hands and generally had no
problems with his hands. Presence St. Joseph Hospital Records at 822. About two
weeks after his hospitalization, though, Vargas complained to health care providers
that he was experiencing bilateral hand pain and that his fingers were “locked up.”
Joint Exh. 5, Neuroscience Institute Records at 1292. Vargas was referred to Dr.

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Marquess Wilson at the Neuroscience Institute at Presence St. Joseph Hospital.
Presence St. Joseph Records at 822. Vargas complained that after his heart attack,
he was experiencing pain in his fingers and that he had difficulty flexing them. Id.
Vargas also complained about pain and swelling in his hands. Id. At this consultation,
Wilson noted that “the main consideration” based on Vargas’s symptoms was carpal
tunnel syndrome. Id. at 823. In response to Vargas’s complaints, Wilson ordered xrays, an EMG and nerves-conduction studies, and a pain-management consultation.
Id. at 823.
The results of the EMG and nerves-conduction studies showed the presence of
severe carpal tunnel syndrome on both of Vargas’s hands. Presence St. Joseph
Records at 833. Vargas wanted a second opinion, so he made an appointment with
Dr. Keith Schmidt and met with him in February 2016. Joint Exh. 8, Schmidt Records
at 1346. At his consultation with Schmidt, Vargas told Schmidt that his hand pain
started on November 8, 2015 (the day after his heart attack) after having multiple IV
sticks in his hands and experiencing severe edema. Id. Vargas described his pain as
a seven on a ten-point scale. Id. Schmidt confirmed Wilson’s diagnosis of carpal
tunnel syndrome and referred Vargas to a neurologist for carpal tunnel release
surgery. See id. at 1349. Around one month later, Schmidt administered cortisone
shots to Vargas’s shoulder and noted that he would administer shots for Vargas’s
carpal tunnel syndrome at the next visit. Id. at 1350.
Eventually, Vargas underwent carpal-tunnel release surgeries in April and
May 2016. Joint Exh. 14C, Parkview Orthopaedic Medical Bill at 2442. After the

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surgeries, Vargas received physical therapy once a week at Parkview Orthopaedic for
a couple of months. See 2/6/19 L. Vargas Trial Tr. at 58:5-8. During this time, Vargas’s
condition improved. Just one month after his surgery, Vargas’s pain, while still
significant, did not interrupt his sleep, and the numbness and tingling in his hands
were slowly going away. See Joint Exh. 4, Parkview Orthopaedic Medical Records at
1247. Then during a therapy session in August, Vargas noted that he was able to cut
his own food. Id. at 2272. Two weeks later, Vargas hit a milestone: he was able to
close both of his fists during therapy. Id. at 2281. Vargas ended physical therapy with
Parkview Orthopaedic in September 2016, and on his last day, his doctor noted that
Vargas was doing better and that his motion and function were returning. Id. at 2288.
After his last physical-therapy session with Parkview Orthopaedic, Vargas
continued to receive physical therapy at the VA. See VA Medical Records at 1856.
During his initial visit with the VA, Vargas underwent an assessment of his ability
to perform daily functions, otherwise known as “activities of daily living.” Id. at 1858.
These activities include feeding, grooming, bathing, dressing, toileting and
homemaking. Id. For each of these, the VA assessed a score ranging from one to seven,
with seven representing that Vargas could perform the activity independently; six
meant that he could perform the activity independently with some modifications; five
represented that he could perform the activity under supervision; and so on. Id.; see
also 2/6/19 L. Vargas Trial Tr. at 120:3-16. At his initial visit, Vargas was able to
perform all of the activities of daily living either with supervision (a score of five on

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the scale) except for feeding, which he was able to do independently with some
modification (a score of six on the scale). VA Medical Records at 1858.
On October 7, 2016, Vargas had his last physical-therapy session with the VA.
By that time, the pain in his hands and wrists was a one out of ten and he had met
most of the goals of his therapy. See VA Medical Records at 2031-2033. Vargas was
able to grasp the phone with his left hand pain-free, open a container using both
hands pain-free, perform all exercises independently, and dial a phone with his left
hand. Id. at 2033. The only goal Vargas was unable to meet was to cook independently
without pain. Id.
Just a couple of weeks later, Vargas was still experiencing pain and a limited
range of motion. See Joint Exh. 9, Bolton Medical records at 2300. Four months later,
in February 2017, Vargas was experiencing tenderness in his wrists and weakness in
his hands. Id. at 2326. Vargas’s condition got progressively worse and in May 2017,
Vargas started occupational therapy at Midwest Hand Care. Joint Exh. 10, Midwest
Hand Care Records at 2355. During his initial visit with Midwest Hand Care, he
rated his pain as an eight out of ten. Id. Vargas also complained that he was unable
to bend his fingers into a fist and that he had difficulty opening containers. Id. By
August 2017, Vargas’s condition had improved but he reached a plateau and
discontinued therapy. Joint Exh. 11, Keane Medical Records at 2420.
II. Legal Standard
Vargas seeks relief under the Federal Tort Claims Act, 28 U.S.C. § 2674, for
the VA’s alleged negligence in failing to follow up on his October 2 urinalysis. The

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Federal Tort Claims Act “is a limited waiver of the United States’ sovereign
immunity.” Luna v. United States, 454 F.3d 631, 634 (7th Cir. 2006). It renders the
federal government liable for those acts or omissions of its employees that would be
unintentional torts in the state in which they occurred had they been committed by
someone other than a federal employee. Id.; Richards v. United States, 369 U.S. 1, 6
(1962); see also Furry v. United States, 712 F.3d 988, 992 (7th Cir. 2013) (“In the
FTCA, … Congress waived the United States’s sovereign immunity for suits brought
by persons injured by the negligence of federal employees acting within the scope of
their employment.”). An action brought under the Federal Tort Claims Act is
governed by “the law of the place where the act or omission occurred.” 28 U.S.C.
§ 1346(b); Luna, 454 F.3d at 634. In this case, the alleged medical malpractice
occurred in Illinois, so Illinois law governs.
Under Illinois law, the patient must establish the following elements to prevail
in a medical malpractice action: “(1) the standard of care in the medical community
by which the [medical provider’s] treatment was measured; (2) that the [medical
provider] deviated from the standard of care; and (3) that a resulting injury was
proximately caused by the deviation from the standard of care.” Neade v. Portes, 739
N.E.2d 496, 502 (2000); see also Morisch v. United States, 653 F.3d 522, 531 (7th Cir.
2011) (applying Illinois law). Very generally speaking, a “plaintiff must present
expert testimony to establish all three elements.” Wilbourn v. Cavalenes, 923 N.E.2d
937, 949 (2010). The elements must each be proven by a preponderance of the
evidence, “otherwise referred to as the ‘more probably true than not true’ standard.”

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Holton v. Mem’l Hosp., 679 N.E.2d 1202, 1207 (1997) (citing Borowski v. Von Solbrig,
328 N.E.2d 301, 305 (1975)).
III. Analysis
Vargas does not set forth a definitive baseline standard of care but suggests
that the standard of care here required some follow-up to his October 2 urinalysis,
namely, a urine culture and possibly additional treatment. See Pl.’s Br. at 11.
According to Vargas, if the VA had ordered a culture, then he would have been
diagnosed with a UTI and he would have been prescribed the appropriate treatment.
Id. at 12. This alleged breach, argues Vargas, caused him to suffer a heart attack. Id.
The hospital stay in turn allegedly caused severe swelling in his hands, which then
caused the carpal tunnel syndrome. Id. at 18-22. In response, the government argues
that additional follow up was not reasonably necessary because Vargas did not have
symptoms of an infection. Gov.’s Resp. Br. at 1. And even if a breach did occur, the
government argues that any alleged negligence did not cause Vargas’s carpal tunnel
syndrome. Id. The Court agrees that Vargas has failed to prove that Hines Hospital
health care providers were negligent.
A. Standard of Care
In determining the appropriate care that must be provided to a patient, Illinois
law “requires [medical providers] to possess and apply the knowledge, skill, and care
which a reasonably well-qualified [medical provider] in the same or similar
community would bring to a similar case.” Wilbourn v. Cavalenes, 923 N.E.2d 937,
953 (2010) (cleaned up); see also Neade, 739 N.E.2d at 502. A breach occurs when a

18

medical provider fails to use the “reasonable skill” that a medical provider in good
practice would ordinarily use and would bring to a similar case. Cummings v. Jha,
915 N.E.2d 908, 920 (2009) (quoting Pugh v. Swiontek, 253 N.E.2d 3, 5 (1969)).
Based on the record evidence, the Court finds that no action other than
reviewing the lab results of the October 2 urinalysis was reasonably required as a
follow-up. As a preliminary matter, the record does not show whether or not Turner
ever actually reviewed the results of Vargas’s urinalysis. But at trial, Turner
explained that, even if she had reviewed the results, she would not have ordered any
follow-up for two reasons: (1) the urinalysis was ordered specifically because of
concerns regarding microhematuria and the urinalysis results were negative for
microhematuria; and (2) there was no indication in Buesser’s notes that Vargas was
suffering from symptoms related to a urinary tract infection. See Turner Trial Tr. at
25-27. Turner further explained that the urinalysis results could be indicative of a
UTI if the patient was also experiencing new lower urinary tract symptoms. See id.
at 12:18-18:23.
Christopher Coogan, the government’s retained urology expert, agreed (not
surprisingly) with Turner’s assessment. According to Coogan, the standard of care
here only required the VA to review the urinalysis lab results. See Coogan Trial Tr.
(morning) at 49:18-51:1. A follow-up urine culture was not necessary because Vargas
did not have a symptomatic infection and the symptoms described by Vargas in
October were instead signs of Vargas’s ongoing BPH with LUTS. Id. at 30:15-31:11.
Vargas’s medical records support Cogan’s reasoning. First, as explained earlier in

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this Opinion, Vargas had a history of BPH with LUTS since at least 2007 (when he
underwent a microwave procedure and cystoscopy to treat his LUTS), and the
symptoms that Vargas described at his October 2 urology clinic visit were consistent
with the common symptoms of BPH with LUTS. See VA Medical Records at 1456,
1899; see also Coogan Trial Tr. (morning) at 19:21-20:13 (“Someone who has LUTS,
this would be a pretty standard kind of complaint. You know, it’s usually fairly stable.
… none of it stands out consistent with a UTI and none of it just sort of seems like it
has changed, … It seems baseline.”). Buesser and Bresler also both agreed that
Vargas’s symptoms on October 2 were consistent with BPH. What’s more, back in
2007, Vargas was prescribed medication to treat his BPH-related symptoms. See VA
Medical Records at 1899. And when Vargas saw Buesser in October 2015, he was still
on those same medications.
Second, Vargas’s medical records show that Vargas did not experience a
change in symptoms. Buesser explained at trial that the symptoms that Vargas
experienced could be associated with either a UTI or BPH. Buesser Trial Tr. at 78:1219. She further explained that when the symptoms are new, they are a sign of a UTI.
Id. But when they are ongoing, then they are a sign of BPH with LUTS. Id. Buesser
also credibly testified that she would have made a note of any changes in symptoms
during her consultation with Vargas. Id. The breadth and detail of Buesser’s October
2 note corroborates her testimony. Even Vargas’s retained expert in infectious
diseases, Dr. Barry Fox, testified that Buesser would have asked “detailed questions
regarding the bladder and the urine system.” Fox. Trial Tr. at 46.

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Vargas suggests that the fact that Buesser switched Vargas from Terazosin to
Tamsulosin indicates that Vargas experienced a change in symptoms. Pl.’s Br. at 14.
But Buesser credibly explained that she changed Vargas’s prescription to Tamsulosin
because it was a newer version of the same drug and she thought it might be more
effective. Buesser Trial Tr. at 77:20-78:6. So the change in prescription did not mark
a change in symptoms. Vargas also points out that Coogan testified that “that there
was nothing in the record to suggest that the medications that [Vargas] was taking
for his symptoms were not working.” Pl.’s Br. at 14; see also Pl.’s Reply Br. at 3. The
Court assumes (though Vargas does not clearly say) that Vargas is attempting to
suggest that because the medications were working, Vargas should not have had any
symptoms, and any new symptoms can be attributed to a UTI. But even Vargas
admits that the medications were “for the purpose of alleviating the symptoms,” Pl.’s
Reply Br. at 3, not curing the BPH with LUTS altogether. Ultimately, Vargas has not
met his burden of showing by a preponderance of the evidence that the VA should
have diagnosed him with a UTI instead of concluding that he has ongoing BPH with
LUTS.
In arguing that the VA should have done more to figure out the UTI, Vargas
also relies on his clinical history, including his risk factors, past lab results, prior UTI
diagnosis, and prior treatments. See Pl.’s Br. at 11. In support of this standard of
care, Vargas relies on his retained experts, Dr. Barry Fox and Nurse Practitioner
Donna Woodward, who both opined that based on Vargas’s October 2 urinalysis result
and his clinical history, a urine culture should have been ordered. Specifically, Fox

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opined that a culture should have been done “to add one more piece of data to the
total assessment … to see whether further investigation or treatment was necessary.”
Fox Trial Tr. at 50:7-22. Woodward likewise opined that a urine culture following the
October 2015 urinalysis results was required to identify any bacterial growth and
determine what, if any, antibiotics are appropriate. In other words, Fox’s and
Woodward’s testimonies directly contradict Coogan’s. In the case of dueling experts,
the Court “must determine what weight and credibility to give the testimony of each
expert and physician.” Gicla v. United States, 572 F.3d 407, 414 (7th Cir. 2009) (citing
cases).
Here, the scale tips slightly in favor of Coogan’s testimony, which is enough to
undermine Vargas’s case because he bears the burden of proof. Coogan is a urologist
and has experience screening, diagnosing, and treating individuals with UTIs, BPH,
and asymptomatic bacteriuria. See Coogan Trial Tr. at 5:21-6:9. Neither Fox nor
Woodward, however, are experts in urology. Although Fox works closely with
urologists, he himself is not a urologist. Fox Trial Tr. at 9:3-21. He is an infectious
disease doctor and deals with any type of germ that might be considered an infection.
Id. at 7:10-19. This includes strep throat, common colds, Lyme disease, and of course
UTIs. Id. Although Fox testified that he typically gets referrals from urologists for
patients with recurrent UTIs, id. at 9:15-21, the record is absent on his experience
screening, diagnosing, and treating individuals with BPH. And because BPH is not
an infectious disease, it is reasonable to infer that Fox likely has less knowledge and

22

expertise than Coogan on BPH and its symptoms, and how it affects screening,
diagnosing, and treating UTIs and asymptomatic bacteria.
Woodward likewise lacks expertise in urology. She testified at trial that she
does not have any specialized training or vocations in urology. She further testified
that she has not taken courses that pertain specifically to urology, and that she does
not belong to any urological associations. Instead, Woodward is a nurse practitioner
and administers general care at a VA clinic. Moreover, Buesser and Bresler, although
not retained as experts in this case, both work in the field of urology and agreed that
Vargas’s symptoms on October 2 were consistent with his pre-existing BPH with
LUTS.
In further support of his position, Vargas also points to the fact that under very
similar conditions, Petrella ordered a culture, diagnosed Vargas with a UTI, and
treated him with antibiotics. Vargas argues that Petrella’s actions suggest that Fox
and Woodward are right—the standard of care required more follow up, including a
culture. Pl.’s Br. at 11. But Petrella is likewise not an expert in urology. And the only
urology expert in this case, Coogan, testified that while Petrella’s action were within
the standard of care, they were not required to satisfy the standard of care. Coogan
explained that he did not think that back in June 2015 (when Petrella examined
Vargas) Vargas had a UTI because, according to Petrella’s notes, Vargas did not have
a change in symptoms. See Coogan Trial Tr. at 29:21-1. Coogan testified that, instead,
Vargas probably had asymptomatic bacteriuria, Coogan Trial Tr. (morning) at 30:12, which would explain the lab results and lack of symptoms.

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Vargas also points to the testimony of April Turner (the nurse who was
supposed to review Vargas’s urinalysis) for support. See Pl.’s Br. at 11. In her
deposition, Turner testified that “[she] would recommend a culture if she saw this”
(“this” being the October 2 urinalysis results). See Turner Trial Tr. at 16:15-16.
Vargas takes “this” to mean that Turner would have ordered a culture in this case.
See Pl.’s Br. at 11. But at trial, Turner clarified that that response was based only on
the documents shown to her during her deposition and that in her deposition she
meant that she would order a culture if the only information she had was the October
2 lab results. See Turner Trial Tr. at 14:18-21; 20:22-25. She further testified that
based on all of the information in this case (including Vargas’s ongoing BPH with
LUTS), she would not order a culture. Id.
Lastly, Vargas points out that if the culture had been done, it would have likely
shown the growth of E. coli. See Pl.’s Br. at 17. But regardless of what the results of
a culture would have been, without any new symptoms, the standard of care does not
require a medical provider to prescribe antibiotics. See Coogan Trial Tr. (morning) at
25:11-15; 30:9-14. In fact, there are various down sides to doing so, including: (1) antibacterial resistance (meaning a patient can develop resistant organisms that make it
more difficult to subsequently treat infections); (2) interactions with other
medications; and (3) side effects. Id. at 25:16-26:2. Fox even agreed that generally “it
would be outside the standard of care for a physician to treat a patient with
asymptomatic bacteria with antibiotics.” Fox Trial Tr. at 61:11-14.

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Ultimately, Vargas has not shown by a preponderance of the evidence that the
standard of care required further follow-up. So Hines Hospital health care providers
did not breach the standard of care, and Vargas’s claim fails.
B. Causation
With the case failing on liability, this Opinion could end right here. But it
might be useful for the parties to know (whether for settlement or other purposes)
what the Court’s decision would have been on causation and damages. Generally
speaking, “[p]roximate cause in a medical malpractice case must be established by
expert testimony to a reasonable degree of medical certainty, and the causal
connection must not be contingent, speculative, or merely possible.” Morisch, 653
F.3d at 531 (quoting Johnson v. Loyola Univ. Med. Ctr., 893 N.E.2d 267, 272 (2008)).
To establish this element, Vargas must show “cause in fact and legal cause.” Id.
(quoting Bergman v. Kelsey, 873 N.E.2d 486, 500 (2007)). “Cause in fact exists when
there is a reasonable certainty that a defendant's acts caused the injury or damage.”
Id. ((quoting Coole v. Cent. Area Recycling, 893 N.E.2d 303, 310 (2008)). To prove legal
cause, Vargas must also show that the carpal tunnel syndrome was “foreseeable as
the type of harm that a reasonable person would expect to see as a likely result of”
the VA’s conduct. Id. (quoting LaSalle Bank, N.A. v. C/HCA Devel. Corp., 893 N.E.2d
949, 970 (2008)).
The gist of Vargas’s causation theory is this: the VA failed to culture his
October urinalysis and so they failed to diagnose and treat Vargas for a UTI, which
caused Vargas to go into septic shock, which led to his ten-day hospitalization, which

25

led to intravenous fluids being inserted into Vargas’s body, which led to swelling in
Vargas’s extremities, which eventually led to his carpal tunnel syndrome. See Pl.’s
Br. at 18-22. According to Vargas, “common sense” demonstrates that his
hospitalization caused him to develop carpal tunnel syndrome. But here, common
sense does not satisfy the preponderance standard. See Holton v. Mem’l Hosp., 679
N.E.2d at 1207.
For causation, Vargas offers the expert testimony of Peter Hoepfner, a boardcertified hand and orthopedic surgeon. Hoepfner Trial Tr. at 3:6-7. For its part, the
government retained John Fernandez, who also is a board-certified orthopedic
surgeon, to rebut Hoepfner’s opinions. Fernandez Trial Tr. at 41:18-25. Both experts
have experience diagnosing and treating carpal tunnel syndrome. See Id. at 44:16-24;
Hoepfner Trial Tr. at 5:16-6:1. And both agreed that swelling can cause the syndrome.
Fernandez Trial Tr. at 54:24-55:18; Hoepfner Trial Tr. at 13:15-25. Both experts also
agreed that a number of health conditions, or “comorbidities,” including diabetes,
diabetic neuropathy, age, obesity, and arthritis, are commonly associated with carpal
tunnel syndrome. Fernandez 95:2-24; Hoepfner 22:20-23:5.
Relying on Hoepfner, Vargas argues that the IV fluids inserted into his body
while he was hospitalized caused swelling in his extremities, including his hands,
and consequently caused carpal tunnel syndrome. Although it is true that IV fluids
can produce swelling, see Hoepfner 19:19-20:4, the fact of the matter is that Vargas
did not suffer swelling severe enough to cause carpal tunnel syndrome. Before trial,
Hoepfner wrote in his expert report that it is generally accepted in the medical

26

community that carpal tunnel syndrome can be caused by “severe” swelling. See
Hoepfner Trial Tr. at 37:18-21 (emphasis added). And in his report, Hoepfner opined
that Vargas’s carpal tunnel syndrome was caused by just that. Id. at 37:15-17.
Fernandez disagreed. According to Fernandez, Vargas’s hospitalization records do
not indicate swelling to the degree necessary to cause CTS. Fernandez Trial Tr. at
56:16-57:22. The Court agrees. Although Vargas and his wife, Minnie, testified that
Vargas complained about and experienced swelling while he was in the hospital, the
hospital records show that physicians noted absolutely no swelling4 and that the
nurses noted only “mild swelling.”5 Because the records are devoid of evidence of
severe swelling, which Hoepfner originally opined was necessary to cause carpal
tunnel syndrome, Vargas’s carpal tunnel syndrome could not have been caused by the
mild swelling he experienced at the hospital.
In explaining why the physicians noted no swelling, Vargas offers two
unsupported hypotheses: (1) the physicians did not note any swelling because they
simply copied and pasted their answers from a previous note; and (2) the physicians
“simply were not concerned” with swelling in Vargas’s hands because they were
dealing with the more serious concern of Vargas’s heart attack. Both theories are

4In

his expert report, Fernandez stated that Vargas’s medical records made no note of
swelling at all. See Fernandnez at 78:1-80:4. At trial, Fernandez admitted that this was an
incorrect statement based on the nursing notes. Id. Fernandez admits that the nursing notes
charted some swelling (though mild) throughout Vargas’s hospitalization. Fernandez 86:1624.
5When confronted with the nursing notes at trial, Hoepfner changed his opinion and
testified that carpal tunnel syndrome can occur with just “moderate swelling.” Hoepfner Trial
Tr. at 38:2-48:17. This change from the report was not persuasively explained and was not
credible.

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unsupported by the record. In fact, the record refutes the second theory: Hoepfner
admitted during trial that severe swelling in a patient’s extremities could be a
symptom or sign of heart failure. Hoepfner Trial Tr. at 41:23-42:1. So the physicians
would have been concerned with swelling in Vargas’s extremities.
Furthermore, at trial Fernandez presented an alternative cause for Vargas’s
carpal tunnel syndrome: pre-existing chronic illnesses. As noted above, both Hoepfner
and Fernandez agreed that carpal tunnel syndrome is commonly associated with
various comorbidities and can make a patient predisposed to the syndrome.
Unfortunately, Vargas suffered from several comorbidities associated with carpal
tunnel syndrome, including being in his late 60s and having diabetes; diabetic
neuropathy; and arthritis. And any one of these could have predisposed him to carpal
tunnel syndrome. For example, age is a predisposing factor because as a person gets
older, their median (hand) nerve tends to deteriorate. Fernandez Trial Tr. at 103:13105:1. Obesity can also contribute to carpal tunnel syndrome for two reasons: (1) it
can lead to other physiological disorders like diabetes (which Vargas had) and thyroid
diseases, which can lead to the syndrome; and (2) the median nerve and nerve tunnel
can become compressed to the point that the nerve gets pinched. Id. at 105:2-106:2.
Fernandez also testified that comorbidities can lead to carpal tunnel syndrome over
a lengthy period of time, or it can also occur suddenly. Id. at 106:9-107:6. So there is
at least some reason to believe that Vargas’s carpal tunnel syndrome was already
forecast by the comorbidities, and not caused by the hospital stay.

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The progression of Vargas’s carpal tunnel syndrome and the symptoms related
to it also support Fernandez’s alternative hypothesis. Both Hoepfner and Fernandez
testified that it would be unusual for a patient to undergo carpal tunnel release
surgery, subsequently have their condition improve after surgery, and then have it
get worse. See Fernandez Trial Tr. 75:20-76:8; Hoepfner Trial Tr. at 54-55. But that
is what happened in this case. After Vargas underwent carpal tunnel release surgery,
he went to multiple sessions of physical therapy and his condition improved. Months
later, though, his condition got progressively worse. Fernandez opined that this is
further evidence that an ongoing diseases and not the hospitalization episode is
causing Vargas’s carpal tunnel syndrome. Fernandez Trial Tr. at 75-76.
In light of all this evidence, Vargas failed to show by a preponderance that his
hospitalization was the cause of his carpal tunnel syndrome.
IV. Conclusion
Although what happened to Vargas is no doubt unfortunate, and he is still
suffering, based on the evidence presented, the Court finds that Vargas has failed to
show by a preponderance of the evidence that the VA committed medical malpractice.
Accordingly, the Court enters judgment in favor of the government. The status
hearing of January 9, 2020 is vacated.
ENTERED:

s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: December 30, 2019
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