Williamson v. USA

Filing 116

MEMORANDUM OPINION & ORDER: that JUDGMENT be entered in favor of Plaintiff Gary Williamson and against Defendant United States of America and that damages be awarded to Mr. Williamson in the amount of $224,334.39, plus interest from the date of judgment. A separate judgment will be entered contemporaneously herewith. Signed by Judge Joseph M. Hood on 4/21/2016.(STC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
GARY EDWARD WILLIAMSON,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

Civil Case No.
5:12-CV-334-JMH-REW
MEMORANDUM OPINION AND ORDER

***
I.
Plaintiff Gary Edward Williamson filed this action under the
Federal Tort Claims Act, (“FTCA”) 28 U.S.C. § 1346(b), 2671 et
seq.

against

the

United

States,

asserting

claims

of

medical

malpractice arising out of Williamson’s medical treatment at the
Veteran’s Administration Medical Center (“VAMC”) in Lexington,
Kentucky.

Williamson alleges that he suffered a fracture of his

right navicular bone that was improperly diagnosed and treated
despite multiple visits to the VAMC.

Specifically, Williamson

claims that VAMC employees failed to diagnose the fracture on four
separate

occasions

between

October

26

and

December

8,

2009,

although the fracture was visible on x-ray and MRI imaging.
Williamson claims that Syed Ahmed, D.P.M., correctly diagnosed the
fracture in January 2010, but failed to initiate a clinically
acceptable course of treatment.
heal

with

conservative

When Williamson’s foot did not

treatment,

Dr.

Ahmed

performed

two

surgeries, both of which, Williamson claims, violated the accepted
standard of care.

In the summer of 2010, Williamson sought an

outside opinion from Stephen Lawrence, M.D., an orthopedic surgeon
specializing in the foot and ankle.

Dr. Lawrence performed two

additional surgeries, resulting in a fusion of Williamson’s right
talonavicular joint.

Williamson claims that, had it not been for

the Defendants’ failure to diagnose and treat his fracture within
the accepted standard of care, the fracture would have healed
uneventfully.
After completion of discovery and a ruling granting partial
summary judgment to Plaintiff with respect to damages, [DE 75], a
bench trial commenced on September 2, 2015, and concluded on
September

4,

2015.

Following

the

bench

trial,

the

parties

submitted post-trial briefs. [DE 109, 112, 113]. Having considered
the testimony of various witnesses, the exhibits admitted into
evidence on behalf of both parties, the arguments of counsel, and
the remainder of the record, the Court finds as follows, pursuant
to Federal Rule of Civil Procedure 52:1
II.

FINDINGS OF FACT

Williamson is a retired United States postal carrier and a
military veteran.

He joined the United States Army in 1989,

serving as an airborne soldier.

He was honorably discharged from

1

To the extent that any findings of fact constitute conclusions of law, they
are adopted as such. To the extent that any conclusions of law constitute
findings of fact, they are so adopted.

2

active duty in 1993, and transferred to the National Guard, where
he remained enlisted until 1998.

That year, he left the Guard to

attend college, earning a Bachelor’s degree in criminal justice.
He began working for the U.S. Postal Service as a city mail carrier
in 2006.

He was considered “part-time flexible” throughout his

tenure, which meant that he did not have a fixed assigned route,
but he averaged 55 hours per week and walked up to eight miles per
day.

From 2006 to 2009, he also worked for the Lexington Herald-

Leader, delivering newspapers in the mornings before his mail
route.

Despite developing serious, chronic pain in his right foot

in September 2009, and quitting his newspaper-delivery job because
of it, Williamson reenlisted in the National Guard because he
“wanted to finish [his] military career.”

He testified that his

goal upon reenlistment was to go to Officer Candidate School and
become a Commissioned Officer.

He continued to deliver mail until

December 2009 but, around that time, became unable to do so and
began drawing workers’ compensation under the Federal Employees’
Compensation Act (“FECA”).

Williamson was approved for disability

retirement by the Office of Personnel Management on July 18, 2013.
On October 26, 2009, Williamson presented to the Veteran’s
Administration Emergency Department (“ED”) complaining of right
foot and ankle pain.

X-rays were taken and the ED physician

diagnosed Williamson with a sprain.

He was advised to rest,

elevate, and ice his foot, and NSAIDs were prescribed.
3

Williamson

returned to the ED on November 27, 2009, again complaining of right
ankle pain.

During this visit, he reported that while delivering

mail, he had stepped in a hole and twisted his ankle.

X-rays were

ordered, which the radiologist read as showing no boney trauma or
acute fracture.

Based on the x-ray and his clinical findings,

Travis Sewalls, M.D., constructed a splint to protect Williamson’s
ankle and instructed him to rest his foot and apply ice and
compression.

Dr. Sewalls testified that he instructed Williamson

to avoid bearing weight on his right ankle, but Williamson disputes
this. While any instruction for Williamson to avoid bearing weight
was absent from Sewalls’ treatment note, Sewalls did indicate that
Williamson should avoid bearing weight in a Department of Labor
form.

Sewalls arranged for Williamson to follow up with the

orthopedic department in December.
On December 4, 2009, Williamson underwent an MRI of his right
foot and ankle and, on December 8, reported for a follow-up
appointment at the VA orthopedic clinic.

Neither the radiologist

nor the treating orthopedist diagnosed Williamson with a fracture
at that time.

Rather, the orthopedist diagnosed Williamson with

an ankle sprain and advised him to bear weight on his right foot
as tolerated.

On December 23, 2009, Williamson telephoned Sharon

Chandler, A.R.N.P., his primary care provider at the VA, telling
her that he was still having significant problems with his right
foot and that he felt he had been “blown off” by the orthopedic
4

department.

He requested a referral to a podiatrist and, after an

office visit with Chandler, Chandler referred him to the VA
podiatric clinic.
On January 20, 2010, Williamson saw Syed Ahmed, D.P.M., who
diagnosed a fracture of the navicular bone based on the x-rays and
MRI.

Dr.

Ahmed

and

Williamson

decided

to

try

conservative

treatment, which featured a CAM walker—a removable boot used to
offload pressure from a patient’s foot, while allowing the patient
to place some amount of weight on the extremity.

Ahmed also

administered a steroid injection to the right heel and planned to
order

a

bone

stimulator.

Ahmed’s

notes

reflect

that,

when

Williamson returned on February 11, he reported that his midfoot
pain was fifty percent better.
On February 27, 2010, Williamson left Kentucky to attend
National Guard training at Fort Bragg, North Carolina. Dr. Ahmed’s
treatment notes made no mention of the military training prior to
Williamson’s departure.

Ahmed testified that he did not recall

discussing this with Williamson, and that he would have discouraged
Williamson from participating in any type of physical training at
that time. On March 1, 2010, while still in Fort Bragg, Williamson
reported to Womack Army Medical Center with right foot pain,
stating

that

navigation

he

had

exercise.

approximately

three

“reaggravated”
X-rays

were

millimeters
5

of

his

ankle

performed,

during
which

separation

a

land

revealed

between

the

navicular bone fragments.

Williamson concluded his training at

Fort Bragg on March 14 and returned for a follow-up appointment
with Dr. Ahmed on March 17, 2010.

At that point, Williamson

reported that the pain was much worse and acknowledged that he had
been out of his CAM walker. Noting the separation that was visible
on the most recent x-ray, Williamson and Ahmed agreed that Ahmed
would perform an open reduction internal fixation (“ORIF”) to
repair the navicular fracture.
Dr. Ahmed performed the procedure on April 6, 2010, using a
dorsal medial approach to access the fracture.

At the time of

surgery, he believed he had achieved “good compression,” but
quickly realized that the fracture was not fixated.

Williamson

and Dr. Ahmed chose to go forward with a revision of the procedure.
On April 21, 2010, Dr. Ahmed performed a second ORIF, using a fully
threaded screw to attempt fixation of the navicular bone.

Dr.

Ahmed testified that he was satisfied with the outcome of this
surgery and that he instructed Williamson to remain non-weight
bearing for six to eight weeks.
likelihood

of

arthritis

Based on his history and the

progressing,

Ahmed

believed

that

Williamson would need a joint fusion at some point in the future.
Following the April 21 surgery, there were some signs that
Williamson was not progressing normally.

Between his May 6 and

May 20 follow-up appointments with Dr. Ahmed, he visited the ED
for additional pain medicine.

Additionally, he came back to see
6

Dr. Ahmed for a follow-up appointment after two weeks, rather than
the three Ahmed had suggested.

On July 12, 2010, Dr. Ahmed

reported that Williamson “states foot feels good and only has pain
when he is doing a lot of activities on it.

He attempted to do a

weekend of reserve training and was not able to tolerate more than
15 to 20 minutes of activity at one time.”

Around this time

Williamson attempted the running portion of a physical fitness
test for the National Guard and failed.

Dr. Ahmed determined that

Williamson should have modified activities at work and during
reserve training, with a gradual return to full activities, which
could take six to eight months.

On July 13, Dr. Ahmed wrote an

addendum indicating that REVA x-rays showed signs of healing.

He

noted that there was no need for further revision at that time and
that Williamson should continue to use a bone stimulator, which
could aid in further healing.

On July 14, Ahmed wrote another

addendum, however, which was quite different in tone.

It stated

that he had spoken with Williamson regarding his x-rays and that
the two had a detailed discussion regarding treatment options.
Ahmed noted that Williamson had not been using the bone stimulator
as directed.

He told Williamson that he may need a talonavicular

fusion, but recommended getting a second opinion.

At trial, Dr.

Ahmed explained his change in opinion between July 13 and July 14
by stating that on July 13, he had not yet reviewed Williamson’s

7

most recent x-ray films, which apparently showed that the navicular
was not healing.
Throughout the summer of 2010, Williamson made frequent trips
to the emergency room due to foot pain.

Eventually, he decided to

contact Jerold Friesen, M.D., an orthopedist who had repaired his
ACL several years earlier.

Dr. Friesen evaluated Williamson on

August 3, 2010, and ordered diagnostic imaging, including a CT
scan.

Friesen referred Williamson to Stephen Lawrence, M.D., an

orthopedic surgeon and specialist of the foot and ankle at the
University of Kentucky.

Dr. Lawrence evaluated Williamson on

August 16, 2010, diagnosing him with nonunion of the navicular
bone and arthritic changes of the talonavicular joint.

Lawrence

felt that Williamson had a very difficult and complex problem, and
recommended surgery to fixate the nonunion, including a bone graft
from the tibia, and a fusion of the talonavicular joint because of
Williamson’s arthritis.

Dr. Lawrence noted that the navicular

bone was a complete nonunion and, since it had been about four
months since the last surgery, it was very unlikely to heal on its
own.

Dr.

Lawrence

performed

surgery

on

August

25,

2010.

Williamson wore a cast and was instructed to remain non-weight
bearing for at least six weeks.

He followed up regularly with Dr.

Lawrence and in October 2010, Lawrence thought Williamson was doing
“exceptionally well.”

By January 2011, he had begun bearing full

weight on his right foot.

Dr. Lawrence felt it unlikely that
8

Williamson would ever be able to return to his duties as a mail
carrier, however, because the fusion would almost surely lead to
problems with prolonged walking.

Around this time, Williamson

made another attempt to run as part of a physical fitness test for
the National Guard, which he failed.

Based on Williamson’s right

foot and ankle problems, Dr. Lawrence assigned him a six percent
whole body impairment rating, using the fifth edition of the
American

Medical

impairment.

Association’s

guide

to

the

evaluation

of

Though the fracture had healed and Williamson had

reached maximum medical improvement, Dr. Lawrence believed that
the foot would never be normal.
On September 1, 2012, Williamson’s National Guard unit was
deployed to the Republic of Djibouti in the Horn of Africa.

He

was on a permanent physical profile at the time, which restricted
him to low impact activity and no running.

Williamson testified

that his tasks during deployment were security-based, such as
driving a Humvee, and that he did not walk for his job.

He only

took ten to fifteen minute walks from his housing unit to the chow
hall and to his work compound. Williamson testified that his right
foot pain was tolerable for the most part, but that the pain
increased toward the end of his deployment.

Williamson returned

to Lexington and followed up with Dr. Lawrence on September 23,
2013.

Upon examining Williamson’s foot, Dr. Lawrence noted that

a piece of bone on the lateral side of the foot had become
9

prominent, meaning that it had likely shifted.

Lawrence ordered

a CT scan to confirm his suspicion that Williamson had developed
a nonunion of the talonavicular joint.
Dr. Lawrence performed a second surgery on October 29, 2013,
removing the existing hardware and replacing it with three screws.
Lawrence also performed another bone graft, this time using bone
from the upper portion of the tibia.

There were no complications

from the surgery, but Dr. Lawrence opined that persistent pain
could be an outcome, as the risk of complications increases with
each successive surgery.

Williamson was required to remain non-

weight bearing for a number of weeks following the surgery and Dr.
Lawrence prescribed narcotics for pain management for several
weeks.

A

December

18,

2013

treatment

note

indicated

that

Williamson had not obtained a bone stimulator as he was directed
to do.

Williamson testified that this was because the bone

stimulator was expensive and he had no faith in its efficacy, as
he had used one in the past and it had not helped.

The December

18 treatment note also reported that Williamson had been bearing
weight against Dr. Lawrence’s advice.

Dr. Lawrence cautioned

Williamson that, despite good bone alignment, he did not see a lot
of healing, and obtaining the bone stimulator was very important.
In January, Dr. Lawrence referred Williamson to pain management,
as Williamson’s pain had become chronic and Lawrence felt that the
continued use of narcotics was inappropriate.
10

Williamson did not return for another follow up with Dr.
Lawrence until May 14, 2014.

It appears that Williamson never

obtained the bone stimulator and that he did not follow through a
progressive return to weight bearing by following up regularly
with Dr. Lawrence.

Lawrence felt that Williamson returned in 2014

only because he had injured his left foot.

At that time, Dr.

Lawrence performed x-rays of both feet and found that, despite
“lucency in the talonavicular fusion sight,” there was no evidence
of

loosening

or

hardware

failure

and

Williamson

was

not

particularly concerned about any discomfort in his right foot.
With respect to his current status, Williamson testified that
he is unable to participate in activities with his wife and
children as he did before.

He reports being unable to mow the

grass or climb a ladder, and he has difficulty navigating stairs.
He testified that he used to scuba dive and go to the lake, and it
is difficult to be unable to participate in activities along with
his family.

He works out at the gym four days per week, where he

uses the elliptical machine or stationary bike for thirty minutes
and lifts free weights.

His daily routine consists of taking the

kids to school and to sports practice and doing things around the
house.

He reports last applying for a job in 2013.

The Court

also heard testimony from Williamson’s wife, Monica, who cared for
him after each of his surgeries.

Monica testified that since his

most recent surgery, Williamson’s foot has improved but he still
11

has problems and cannot participate in normal activities, such as
hiking or sports with his sons.
III. CONCLUSIONS OF LAW
The liability of the United States under the Federal Torts
Claim Act is to be determined in the same manner and to the same
extent as a private individual under similar circumstances.

28

U.S.C.

of

§

2674.

Because

the

alleged

negligent

treatment

Williamson occurred at the Veteran’s Administration Medical Center
in Lexington, Kentucky, the law of Kentucky is to be applied in
this case.

See 28 U.S.C. § 1346(b).

In order to establish a cause

of action for medical malpractice, a plaintiff must establish, by
expert testimony, (1) the standard of care recognized by the
medical community as applicable to the defendant; (2) that the
defendant departed from the applicable standard of care; and (3)
that the defendant’s departure was a proximate cause of the
plaintiff’s injuries.

Heavrin v. Jones, No. 2002-CA-16-MR, 2003

WL 21673958, *1 (Ky. Ct. App. July 18, 2003) (citing Reams v.
Stutler, 642 S.W.2d 586, 588 (Ky. 1982)).

The Court will not

presume negligence based on failure to cure or poor results.
Meador v. Arnold, 94 S.W.2d 626, 631 (Ky. 1936).
A physician’s general legal duty to his patient is defined as
follows: “A physician has the duty to use the degree of care and
skill expected of a competent practitioner of the same class and
under

similar

circumstances.”

Hyman
12

&

Armstrong,

P.S.C.

v.

Gunderson, 279 S.W.3d 93, 113 (Ky. 2008).

While only one recovery

may be had for a physician’s negligence, liability may be based on
one

or

more

deviations

from

the

accepted

standard

of

care.

VanMeter v. Crews, 148 S.W. 40 (Ky. 1912).
A.

Failure to Diagnose

Williamson presented the testimony of Dr. Andrew Thomson, an
orthopedic surgeon and specialist of the foot and ankle who
routinely treats navicular stress fractures.
Assistant

Professor

Vanderbilt University.

of

Orthopedics

and

Dr. Thomson is also
Rehabilitation

at

Thomson had reviewed all of Williamson’s

records, with the exception of the x-rays taken at Fort Bragg,
which were unavailable.

While Dr. Thomson was able to discern the

navicular fracture based on a lateral image of the ankle from the
October 26, 2009 x-ray, he conceded that the fracture easily could
have been missed and the VA’s failure to diagnose based on that xray was not a deviation from the standard of care.

Based on his

review of a lateral film taken from the November 27 x-ray, Thomson
opined that the fracture was visible and now displaced, “about
four millimeters gapped.”

Upon cross-examination, however, Dr.

Thomson stated that he was not commenting upon emergency room or
radiology standards of care in interpreting x-rays. Upon reviewing
the December 4, 2009 MRI, Thomson also identified the navicular
fracture, pointing out displacement of three to four millimeters.

13

He opined that the VA’s failure to diagnose the fracture, based on
the December 4, 2009 MRI was a deviation from the standard of care.
Williamson

also

introduced

the

deposition

testimony

of

Clifford Jeng, M.D., a board certified orthopedic surgeon and
specialist of the foot and ankle.

Dr. Jeng practices at the

Institute for Foot and Ankle Reconstruction located at Mercy
Medical Center in Baltimore, Maryland.

He performs approximately

400 surgeries per year and around half his practice is performing
corrective surgeries that have been referred from other surgeons.
While Jeng testified that the fracture should not have been missed
on the October 26, 2009 x-ray, that testimony is undermined by his
statement that he “could certainly see how that subtle fracture
line could have possibly been overlooked.”
navicular
diagnoses.

fractures

are

commonly

He also testified that

missed,

leading

to

delayed

Jeng opined that the fracture line he saw in the

November 27 x-ray films, viewed in isolation, could be mistaken
for arthritis.

When viewed in conjunction with the October 26

film, however, Jeng felt it was a “clear case” of a fracture.

Dr.

Jeng went on to testify that he was able to diagnose a navicular
fracture upon viewing the 2009 MRI and that the VA’s failure to do
so was a deviation from the standard of care.
The United States presented the testimony of Joseph Dobner,
M.D., a board certified orthopedic surgeon in private practice who
performs around 400 surgeries per year.
14

Dr. Dobner was unable to

visualize a navicular fracture upon reviewing the October 2009 xray.

Dobner explained that navicular fractures are difficult to

identify and practitioners often have to “put everything together”
to provide an accurate diagnosis.

Upon viewing a lateral view

from the November 2009 x-ray, Dobner opined that that, compared to
the October x-ray, it had “progressed into more of a fracture.”
With respect to the December 4 MRI, Dobner testified that, “[t]here
is clearly injury in [the navicular], there is no question.”

He

opined, however, that the radiology report was not lacking and
that he could not read a fracture on the MRI.

Dobner discussed

the inflammatory process that takes place in an injured bone and
stated that, based on the MRI, the injury could have been a bone
bruise.
The weight of the evidence supports a finding that the
Defendants violated the appropriate standard of care by failing to
diagnose Williamson’s navicular fracture based on the December 4,
2010

MRI,

but

not

before.

While

Williamson’s

two

experts

identified the fracture based on the earlier x-ray studies, both
testified that the fracture easily could have been missed and did
not characterize the VA’s failure to diagnose as an unequivocal
deviation from the standard of care.

The Court is persuaded by

the testimony of Drs. Thomson and Jeng, both specialists of the
foot and ankle, who testified that failure to diagnose based on
the MRI was a deviation from the standard of care.
15

The Court is

also persuaded by the fact that Dr. Ahmed, a doctor of podiatric
medicine was able to diagnose the navicular fracture, relying in
large part on the MRI.

The testimony of Dr. Dobner is less

persuasive because he is a general orthopedist, as opposed to a
foot and ankle specialist. Further, he did not review Williamson’s
MRI until the morning of trial and it is unclear whether he viewed
every available image.
B. Failure to Treat
Williamson’s remaining claims focus on the treatment provided
to

him

by

Syed

Ahmed,

D.P.M.

Williamson

claims

that

after

diagnosing him with a navicular fracture on January 20, 2010, Dr.
Ahmed failed to initiate an acceptable conservative treatment but,
rather, advised Williamson to continue to bear some weight on his
right foot.

Because this treatment violated the accepted standard

of care, Williamson claims, his foot did not heal and he required
surgery to repair the fracture, which Dr. Ahmed performed on April
6, 2010.

Williamson claims that the surgery also fell below the

accepted standard of care and he required an additional surgery,
which Ahmed performed on April 21, 2010.

Williamson claims that

the second surgery also failed to meet the accepted standard of
care, requiring him to seek outside medical intervention, as
recounted in the Court’s finding of facts.

Williamson contends

that, if Dr. Ahmed’s conservative approach had complied with the

16

accepted standard of care, i.e., non-weight bearing, his foot would
have healed and he would not have required surgery.
Williamson’s expert, Dr. Thomson, testified that the standard
of care for treating a navicular stress fracture conservatively is
making a patient non-weight-bearing in a nonremovable short leg
cast for at least six weeks.

According to Thomson, small case

studies have shown better healing when patients are not permitted
to bear any weight compared to partial weight bearing in a cast or
a boot.

He relied on an article published by the American Journal

of Sports Medicine titled “Management of Tarsal Navicular Stress
Fractures, Conservative v. Surgical Treatment.”
a

meta-analysis

of

studies

published

prior

The article was
to

2009,

which

demonstrated, according to Thomson, that 96 percent of patients
treated with the recommended conservative therapy returned to
function and had pain relief. This was compared to a forty-percent
success rate for patients whose treatment included weight-bearing
activities.

Thomson testified that he strongly emphasizes non-

weight bearing in the conservative treatment of his own patients
with navicular stress fractures.

When asked whether Dr. Ahmed’s

decision to use the CAM walker was a deviation from the standard
of care, Thomson responded, “I certainly would have had a patient
be non-weight-bearing.”

Dr. Jeng also testified that the optimal

treatment would be non-weight bearing with the foot in a CAM boot
or cast, with the patient using crutches.
17

Jeng testified that

assuming normal health and compliance, a patient following this
treatment plan would most likely heal uneventfully.
Dr.

Dobner

did

not

testify

as

to

whether

Dr.

Ahmed’s

conservative treatment approach complied with the standard of
care,

but

he

appointment,

noted
his

indicates healing.

that

foot

at

pain

Williamson’s
was

February

fifty-percent

follow-up

better,

which

Dobner testified that, based on Williamson’s

improvement, Ahmed’s treatment plan was working and did not need
to be changed.

Dobner noted, through his review of Dr. Ahmed’s

treatment notes, that Williamson’s improvement stopped and the
pain became worse after he attended the military training course
at Fort Bragg.
Based on all of the evidence presented, the Court is persuaded
that

Dr.

Ahmed’s

treatment

of

partial

weight

bearing

for

Williamson’s navicular fracture was a deviation from the accepted
standard of care.

Drs. Thomson and Jeng both testified that the

accepted practice is to require patients to avoid bearing weight
and Dr. Dobner did not offer testimony regarding the accepted
standard

of

care,

but

simply

testified

that

Williamson

was

improving despite his partial-weight-bearing status.
The Court must now consider whether the surgeries performed
by Dr. Ahmed complied with the standard of care.

While Dr. Ahmed

characterized the first surgery as having achieved less than
complete fixation of the navicular, Dr. Thomson testified that
18

there was no fixation—the screws did not cross the fracture site.
Thomson attributed the poor outcome, at least in part, to the
dorsal approach Dr. Ahmed used to access the fracture site.
Thomson

opined

that

the

approach

did

not

permit

proper

visualization of the fracture and required Ahmed to anchor the
larger bone fragment into the smaller one, when the accepted
practice is to anchor the smaller fragment into to the larger.
Ultimately, Thomson opined that this approach was a deviation from
the accepted standard of care in his performance of Williamson’s
surgery on April 6, 2010.
Ahmed performed a revision of the ORIF on April 21, 2010.
Leaving the previously placed hardware undisturbed, he drilled in
an additional, longer screw in an attempt to fixate the fracture.
According to Dr. Thomson, however, Ahmed placed the screw straight
down the center of the fracture line, failing to join the segments
of the navicular bone.

Dr. Lawrence testified that when he

operated on Williamson’s foot in August 2010, none of screws were
crossing the fracture line, thus, they were not joining the bone
segments.

At trial, Thomson opined that the April 21 surgery was

a deviation from the standard of care, though he previously
testified during his deposition that it was not.

At trial, he

clarified that he did not think the April 21 was done properly but
that he would “stay in line” with what he had said during his
deposition and, thus, it was not a violation of the standard of
19

care. Dr. Jeng opined that both surgeries were done “very poorly,”
but did not testify regarding the specific standard of care.
With respect to the April 6 surgery, the Court finds that
there was a deviation from the accepted standard of care.

Dr.

Thomson’s testimony is persuasive, as he is an orthopedist, as
well as a foot and ankle specialist who routinely treats navicular
fractures.

His opinion is bolstered by the testimony of Dr. Jeng,

also an orthopedic surgeon, specializing in the foot and ankle,
who believed that both surgeries were performed very poorly.

The

Court also gives weight to the testimony of Dr. Lawrence, a foot
and ankle specialist, who operated on Williamson’s foot and found
that none of the hardware in place actually crossed the fracture
site.

While a poor result is not conclusive of negligence, it is

some evidence under these circumstances.

As Williamson has not

provided expert testimony stating that the April 21 surgery was a
deviation from the standard of care, the Court concludes that it
was not.
IV.

CAUSATION

Under Kentucky law, plaintiffs have the duty of proving,
through expert testimony, that their physician’s negligence is the
proximate cause of their injury and damages.
203 S.W.3d 165, 170 (Ky. Ct. App. 2006).

Andrew v. Begley,

The opinion of the expert

must be based “on a reasonable medical probability.”

Id.

Dr.

Thomson testified that the VA’s failure to diagnose the fracture
20

was a substantial factor in Williamson’s ultimate outcome and in
his need for surgery.

The American Journal of Sports Medicine

article upon which Thomson relied, however, reported that the
timing with which non-weight-bearing treatment was initiated did
not have a significant effect on patient outcome, suggesting that
a one-month lapse in diagnosis would not be crucial.

Thomson went

on to opine that the VA’s failure to diagnose the fracture,
combined with Dr. Ahmed’s conservative treatment, were substantial
factors contributing to the poor condition of Williamson’s foot
just prior to his surgery on April 6.

Following the April 6

surgery, Thomson would not have expected the bone to heal without
further

surgical

eventual

intervention.

talonavicular

fusion

With
and

respect

revision

to

Williamson’s

thereof,

Thomson

testified, “if you get the fracture to heal, then you typically
don’t develop the arthritis that would lead to an early fusion
like that.”

Dr. Jeng testified that if the fracture had been

diagnosed properly and the correct non-weight-bearing treatment
had been provided, the fracture most likely would have healed
uneventfully,

assuming

Williamson

was

otherwise

healthy

and

compliant.
Williamson’s compliance during his medical treatment has been
questioned and the Court is persuaded that it was less than ideal.
The fact that he participated in a two-week military course, which
included a land navigation exercise in February through March 2010
21

speaks volumes.

While Williamson contends that Dr. Jeng approved

the exercise, the Court finds it unlikely, as it is not reflected
in the treatment notes, and Williamson was supposed to be using a
CAM walker during that time.

Prior to Williamson participating in

this activity, his foot pain had been improved by fifty-percent,
but when he returned from Fort Bragg, the pain was so intense he
was ready to undergo surgery.

After the April 6 surgery, Dr.

Ahmed’s treatment plan involved a gradual return to full weightbearing.

By July 12, Williamson had already attempted a running

test

the

for

increase.

National

Guard,

which

caused

his

foot

pain

to

During his treatment with Dr. Lawrence, Williamson had

some compliance issues, as well.

Williamson made another attempt

to complete a running test for the National Guard several months
after his first surgery with Dr. Lawrence.
that

he

would

not

have

recommended

it

at

Lawrence testified
the

time

Williamson was still having pain with just walking.

because

Following

Williamson’s second surgery by Lawrence, Williamson failed to
obtain a bone stimulator and began bearing weight against Dr.
Lawrence’s

advice.

In

addition,

he

stopped

attending

his

appointments.
While the Court finds that the standard of care was violated
when Williamson’s navicular fracture was not diagnosed during the
period of December 4, 2009 to January 20, 2010, the Court finds
that the damage as a result of this delay is limited. In concluding
22

so the Court relies on the fact that this was a relatively brief
period and Dr. Thomson’s testimony that the onset of conservative
treatment
outcome.

is

not

statistically

significant

with

respect

to

The Court is persuaded that had Dr. Ahmed initiated a

conservative treatment in keeping with the standard of care, there
is a greater chance that Williamson’s foot would have healed
uneventfully.

As a result of Dr. Ahmed’s failure to implement

non-weight-bearing treatment, along with Williamson’s own overuse
of his foot during a land navigation training course, he required
surgery.

Unfortunately, the surgery did not comply with the

standard of care and Williamson suffered further complications.
Under Kentucky law, however, a plaintiff is required to mitigate
his damages.

Morgan v. Scott, 291 S.W.3d 622, 640 (Ky. 2009).

This includes complying with one’s doctor’s instructions. See id.
Because the Court believes that Williamson’s healing was limited
by failure to use the bone stimulator and, particularly, by his
repeated attempts to bear too much weight and run prematurely, his
damages will be reduced accordingly.
V.
The

Court

finds

that

DAMAGES
Williamson

is

entitled

to

recover

$108,529.64 in medical expenses incurred in connection to his
treatment provided by Dr. Lawrence at the University of Kentucky
Medical Center.

23

With respect to lost wages due to time off work, Williamson
is entitled to an award of $129,405.91.

The Court declines

Plaintiff’s request to reconsider its Order of June 15, 2015.
Plaintiff’s

FECA

compensation,

regardless

of

when

Plaintiff

received it, was paid because of Plaintiff’s right navicular
fracture.

For the reasons stated in the Court’s Order of June

2015, FECA compensation must be offset against any damages awarded
herein.
With respect to pain and suffering, the Court finds that
$120,000 is a reasonable sum to compensate Williamson.

By January

2011, he was once again bearing full weight on his right foot and,
around that time, he attempted a PT test for the National Guard.
Accordingly,

the

Court’s

award

for

past

pain

corresponds roughly with a period of one year.

and

suffering

With respect to

future pain and suffering, the Court awards $0.00. While the Court
is mindful that Williamson may still have some problems with his
foot, they do not rise a level that merits compensation for pain
and suffering.

While Williamson may have some discomfort and

problems navigating uneven surfaces, he goes to the gym four days
per week and uses an elliptical trainer, which requires great
exertion of the foot and ankle.

Further, he is able to transport

his children to school and extra-curricular activities.

Based on

the evidence presented, his quality of life and prospects for the
future appear to be good.
24

These values are subject to an offset in the amount of
$133,601.16 for the reasons discussed in the Court’s Order of June
15, 2015, for a total award of $224,334.39.
For the foregoing reasons,
IT IS HEREBY ORDERED that JUDGMENT be entered in favor of
Plaintiff Gary Williamson and against Defendant United States of
America and that damages be awarded to Mr. Williamson in the amount
of $224,334.39, plus interest from the date of judgment.
separate judgment will be entered contemporaneously herewith.
This the 21st day of April, 2016.

25

A