Woodhouse v. United States of America

Filing 60

Magistrate Judge Judith G. Dein: ORDER entered. FINDINGS OF FACT AND RULINGS OF LAW. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ENOCH O’D. WOODHOUSE II,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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CIVIL ACTION
NO. 11-12051-JGD

FINDINGS OF FACT AND RULINGS OF LAW
February 4, 2015
DEIN, U.S.M.J.
I. INTRODUCTION
This malpractice action, brought under the Federal Tort Claims Act, arises out of
the medical treatment the plaintiff received at the Department of Veterans Affairs
Medical Center in Jamaica Plain, Massachusetts, on July 13, 2007. Specifically, the
plaintiff challenges the manner in which an esophagogastroendoscopy (“EGD” or
“endoscopy”) was performed, and the sufficiency of the information he was provided
prior to consenting to the procedure. A jury-waived trial was held before this court on
October 6, 7 and 8, 2014. The court heard testimony from the plaintiff, Enoch
Woodhouse II; his wife Stella Sealy Woodhouse; his treating physician at Massachusetts
General Hospital, Christopher R. Morse, MD, Internal Medicine, Gastroenterology; and
three treating physicians from the VA Medical Center in Jamaica Plain: Sharmeel Wasan,
MD, Fellow in Gastroenterology; Satish Singh, MD, Staff Gastroenterologist; and Marcos

C. Pedrosa, MD, Chief of Endoscopy. The plaintiff’s primary care physician, Carl
Dettman, MD, testified by deposition. The parties submitted proposed findings of fact
and rulings of law on December 17 and 22, 2014. The court has been provided with
transcripts of the trial proceedings. After careful consideration of the transcripts,
exhibits, and the parties’ submissions, this court makes the following findings of fact and
rulings of law. Judgment shall enter in favor of the defendant for the reasons detailed
herein.
II. FINDINGS OF FACT1
1.

The plaintiff, Enoch Woodhouse, was born in 1927 in Boston, Massachu-

setts. He enlisted in the army at age 17 during World War II, and was a member of the
Tuskegee Airmen, a group with which he is still involved. After being discharged from
the army, Mr. Woodhouse attended Yale on the GI Bill, and graduated in the class of
1952. He attended Boston University and Yale law schools, and received his JD degree.
(I:76-78).
2.

After law school, the plaintiff was appointed as a United States Diplomatic

Courier with the State Department, and later served as a JAG officer for the Air Force
before starting his own law practice in Boston. (I:77-79). There is no question that Mr.

1

Exhibit 1 contains the medical records from the VA Medical Center. Exhibit 2 contains
the medical records from Massachusetts General Hospital (“MGH”). Exhibit A is the transcript
of the deposition of Dr. Carl E. Dettman, which was admitted by agreement in lieu of live
testimony. There are three days of trial transcripts cited by day and page number.
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Woodhouse has served his country honorably and proudly and, as his counsel argued,
that he had earned the right to quality healthcare services. (See III:91).
3.

Mr. Woodhouse developed dysphagia, i.e., difficulty in swallowing. On

March 18, 2002, he was seen as an outpatient at the VA Medical Center in Jamaica Plain,
where he complained that he had been having difficulty swallowing pills and solid food
for the past two years. (Ex. 1 at 327; I:81-82). At that time, he had no complaints about
weight loss. (Ex. 1 at 327).
4.

On April 3, 2002, he underwent a barium swallow and upper GI exam at

the VA Medical Center. The test showed a “small Zenker’s diverticulum, and no
relaxation phase of the cricopharayngeal [muscle] and [a] small hiatal hernia, no other
mechanical abnormalities.” (Ex. 1 at 322).
5.

A Zenker’s diverticulum is an outpouching, or defect, of the posterior wall

of the esophagus. It forms posterior to and above the cricopharyngeus muscle (the “CP
muscle”) when a hypertonic, or tense, CP muscle partially obstructs the flow of food
down the esophagus during swallowing. When the food hits the obstruction, it finds a
point of weakness above that obstruction and creates a pouch, which is the Zenker’s
diverticulum. (I:24-25). As in the case of Mr. Woodhouse, a Zenker’s diverticulum in
and of itself can be asymptomatic. It may become problematic, however, if it causes
regurgitation or aspiration, or if it causes halitosis. (I:25; II:103-04).
6.

In 2002, Mr. Woodhouse and his doctor agreed to a conservative course of

treatment for his swallowing difficulties. Mr. Woodhouse was to manage his condition
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by breaking up his pills, chewing his food well, drinking a lot of fluid while eating, and
monitoring his progression. (Ex. 1 at 322).
7.

Mr. Woodhouse continued to have difficulty swallowing. In 2004, he was

seen by his primary care doctor at the VA Medical Center, Dr. Carl Dettman. (Ex. 1 at
297). In March 2004, he reported to Dr. Dettman that he was “concerned” because
“others have commented on his [weight] loss” and attributed his weight loss to difficulty
chewing due to new false upper teeth. (Ex. 1 at 307). His records showed a slow weight
loss over the last 1½ years “most likely due to dentition.” (Id.). By October 2004, his
weight had declined from 138 in March to 131¾ pounds. (Ex. 1 at 297, 307). His weight
remained stable through about June 2007. (See Ex. 1 at 278).
8.

On May 17, 2007, Mr. Woodhouse was seen by Dr. Dettman complaining

that over the “last couple of months” he had had difficulty swallowing solids, which were
getting stuck in his throat, and in swallowing pills. (Ex. 1 at 278-79). His weight was
recorded at 134 pounds. (Ex. 1 at 279). While the plaintiff attributed his difficulty to his
Zenker’s diverticulum, the doctor questioned whether this was the cause. (Ex. 1 at 279).
9.

Dr. Dettman ordered another barium swallow and upper GI, which was

performed on June 4, 2007. (Ex. 1 at 278). The exams disclosed no changes since 2002.
There was still a small Zenker’s and non-relaxation of the CP muscle. (Ex. 1 at 278).
Dr. Dettman wrote that he “doubt[ed] Zenker’s is cause of swallowing problems,” but
since the patient was “very symptomatic” and Mrs. Woodhouse, a nutritionist, was “very
concerned about weight loss, and malnutrition relating to swallowing difficulty,” he
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ordered further review by a gastroenterologist. (Ex. 1 at 278). Dr. Dettman discussed the
test results with Mr. and Mrs. Woodhouse on June 5, 2007. (Ex. 1 at 278).
10.

I find that while the medical records do not support a finding of significant

weight loss from 2004 through 2007, Mr. and Mrs. Woodhouse consistently reported in
2007 that Mr. Woodhouse was losing a lot of weight, and that they were concerned that
he would become malnourished. The doctors at the VA Medical Center took the
Woodhouses’ concerns seriously.
The Recommended Procedure
11.

On June 26, 2007, Mr. Woodhouse had a gastroenterology consult with Dr.

Raj Goyal at the VA Medical Center. (Ex. 1 at 274). Dr. Goyal is a pre-eminent expert
in his field of the esophagus and esophageal diseases. (II:65-66). The plaintiff has raised
no objection to the care provided by Dr. Goyal.
12.

Mr. Woodhouse complained to Dr. Goyal that he had been suffering from

dysphagia for many years, which he described as being localized to the throat and limited
mostly to solids. (Ex. 1 at 274). According to Mr. Woodhouse (although not supported
by the medical records), he had lost over 15 pounds over 5 years due to poor food intake.
(Ex. 1 at 274). Dr. Goyal noted that there had been a “recent barium swallow for
worsened symptoms (but no further weight loss)” which revealed no change – there was
still a small Zenker’s and non-relaxation of the CP muscle. (Ex. 1 at 274). Dr. Goyal
recommended an upper endoscopy (“EGD”) with empiric dilation of the upper esopha-

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geal sphincter. (Ex. 1 at 276). According to Dr. Goyal’s notes “[t]he assessment and
plan were discussed with the patient who appears to understand.” (Ex. 1 at 276).
13.

An upper endoscopy (EGD) is performed using a scope that is passed down

the esophagus into the stomach and into the first portion of the duodenum, or the area of
the bowel after the stomach, in order to look for any abnormalities. (I:27).
14.

The EGD is done to assist in identifying the cause of dysphagia. In the case

of a patient such as Mr. Woodhouse, i.e., an older patient who was complaining of a
worsening condition and weight loss, I find that it is common and within the standard of
care to use the EGD to rule out cancer. (II:52, 68-69, 118). While cancer may be
identified through a barium swallow, an endoscopy may help to reveal lesions that are not
evident in a barium swallow. (I:65).2
15.

An EGD may also result in a limited dilation of the sphincter simply due to

the passage of a scope through the constricted area. (III:54-55). This might result in
some relief to the patient, although it would be very temporary. (III:12).
16.

A dilation is a procedure using a balloon or series of dilators (long tubes of

varying increasing sizes) that are passed down the esophagus over the obstruction in order
to stretch out a stricture that is causing the narrowing of the esophagus. (I:27-28, 70).
Generally, a scope is passed through the narrowed area to assess it, and a guide wire is

2

Stable weight would mitigate against a finding of cancer. (See III:71). In light of Mr.
and Mrs. Woodhouse’s reports of significant weight loss, however, I find that the VA doctors
acted appropriately in seeking to rule out cancer.
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then left behind. The scope is taken out and then, using the guide wire, either a series of
dilators that are tapered and rigid, or a balloon that will have a central channel that could
be threaded over the wire, is inserted to stretch out the area. (II:71). The guide wire
helps insure that the dilators are placed down the esophagus and not diverted into the
diverticulum, so it is not prudent to dilate a patient with a Zenker’s diverticulum without
some sort of guidance or tract. (II:71). However, the existence of a Zenker’s diverticulum does not render an endoscopy inappropriate treatment. (See I:65-66).
17.

With an “empiric dilation,” a dilation is performed to treat whatever is

causing the symptoms, without knowing what in actuality is causing the symptoms.
(II:69-70).
18.

The dilation is intended to provide temporary relief by stretching the non-

relaxing CP muscle. (I:28-29). At some point following a dilation, the muscle will recontract back. (I:28). There is a study, however, albeit involving only a limited number
of patients, that shows “that endoscopic dilation can be an effective treatment for patients
with oropharyngeal dysphagia because of a CP bar” and that the temporary relief provided can last as long as a period of years, even if the patient has a Zenker’s diverticulum.
(I:70-72, III:33-34, 42-43).
19.

As a general statement, a dilation will not treat a Zenker’s diverticulum, and

the pouch will still exist. (I:28-29; II:121; III:67).
20.

The plaintiff’s expert, Dr. Morse, initially questioned the decision to

attempt to perform the endoscopy and dilation on a patient with a known Zenker’s
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diverticulum and negative barium swallow on the basis that the risk of cancer was low.
Instead, he testified that Mr. Woodhouse should have been sent to surgery initially, with
an endoscopy performed in connection with the surgery. (See II:34-35, 59). However,
Dr. Morse subsequently testified that the EGD and dilation may have been an appropriate
initial course of treatment. (I:65-66 (“I don’t know that the initial decision was incorrect
or correct. That’s a physician’s judgment call.”)). The plaintiff has made it clear that he
is not challenging the initial decision to perform the endoscopy and dilation. (I:66; III:9192). Rather, the issue is whether, as detailed below, the VA doctors should have
continued attempts to insert the scope after having difficulty with the procedure. (I:66).
21.

To the extent that it is an open issue, I find that it was within the acceptable

standard of care for the VA doctors to have attempted to perform an endoscopy and
dilation without first proceeding to surgery. As an initial matter, Mr. Woodhouse’s
Zenker’s diverticulum was both small and asymptomatic, so there is evidence that there
was no need to treat it surgically in 2007. (II:104; III:43). Moreover, an endoscopy is a
much less invasive procedure, and does not require general anesthesia so it has less
potential dangers for the patient. (II:120; III:33-34, 43-44). It is recommended by
doctors that you start with the least invasive and less risky procedures before moving on
to more invasive procedures. (II:120; III:16-17, 43-44). The results of the endoscopy,
along with other tests such as a functional test, would provide information to determine if
surgery was warranted. (II:46).
The Procedure at the VA Medical Center
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22.

As detailed above, Dr. Goyal recommended that Mr. Woodhouse undergo

an upper endoscopy with an empiric dilation of the upper esophageal sphincter. (Ex. 1 at
276). Mr. Woodhouse underwent the procedure at the VA Medical Center in Jamaica
Plain on July 13, 2007. (Ex. 1 at 272-73). He was 80 years old at the time.
23.

Approximately 15 minutes before the start of the procedure, Mr.

Woodhouse met with Dr. Sharmeel Wasan. (II:15, 17). Dr. Wasan had completed a
three year Residency in internal medicine, worked as a hospitalist at Brigham and
Women’s Hospital for a year, and was starting as a Gastroenterology Fellow, a three year
program. (II:23-25). She had just started at the VA Medical Center on July 1, 2007.
(II:25-26). She had been taught how to obtain an informed consent. (II:27-28).
24.

Dr. Wasan had no independent memory of obtaining consent from Mr.

Woodhouse. I find, however, that Dr. Wasan followed her usual procedure in the case of
Mr. Woodhouse. I also find that since Dr. Wasan was new to the VA, it is likely that she
would have been even more careful to follow appropriate procedure, especially since, as
was standard procedure, she was being overseen by the attending physician, Dr Singh.
(See II:17-18).
25.

It was Dr. Wasan’s practice to explain the scheduled procedure, but not the

alternatives to the procedure. (II:18). While the plaintiff argues that Dr. Wasan should
have explained the alternative of surgery to Mr. Woodhouse, I find that the plaintiff has
not established that it was Dr. Wasan’s role to explain alternative procedures, especially
since she was not responsible for determining the appropriate course of treatment.
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Rather, the record establishes that Dr. Dettman discussed the test results with Mr. and
Mrs. Woodhouse on June 5, 2007. (Ex. 1 at 278). Mr. Woodhouse ‘s condition was then
assessed by Dr. Goyal, who determined the appropriate course of treatment. (Ex. 1 at
276). Moreover, according to Dr. Goyal’s notes, he reviewed his “assessment and plan”
with Mr. Woodhouse who understood them. (See Ex. 1 at 276). The plaintiff has not
challenged Dr. Goyal’s treatment of him. I find that the plaintiff has failed to establish
that Dr. Wasan was responsible for advising him of alternative treatment options and/or
that Dr. Goyal did not fully explain the available treatment options.
26.

In connection with obtaining consent for the endoscopy and dilation

procedure, it was Dr. Wasan’s practice to explain that there were risks, including, without
limitation, “risks of bleeding, infection and even a small tear or a perforation that can
require an emergency surgery. These risks are very rare but they do exist.” (II:29). In
addition, it was Dr. Wasan’s practice to tell a patient with a medical history of a Zenker’s
diverticulum that “because you have Zenker’s diverticulum, there is a slightly increased
risk of having a tear that can cause a surgery.” (II:29-30). Dr. Wasan’s practice would
have been to have the patient sign a consent form. (II:30). The form Mr. Woodhouse
signed expressly provided: “[p]otential complications include perforation (a hole in the
esophagus, stomach or small intestine[)], bleeding requiring transfusion, infection, drug
reaction, the need for surgery, or death.” (Ex. 1 at 36 ).

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27.

I find, therefore, that Mr. Woodhouse was informed, both orally and in

writing, that there was a risk of perforation during the EGD and that his Zenker’s
diverticulum increased the risks. (II:29; Ex. 1 at 36).
28.

The risk of perforation during a routine upper endoscopy is less than one

percent, although as the condition becomes more and more advanced, the risk becomes
higher. (III:13). The risk of perforation for a patient with Zenker’s diverticulum is
somewhere between three and five percent. (II:37).
29.

Mr. Woodhouse testified that if he been advised that there was a risk of

bleeding requiring a transfusion, or a possibility of a drug reaction, a possible need for
surgery, or that the procedure could result in death, he “never” would have agreed to the
procedure. (I:86). I find, however, that Mr. Woodhouse was appropriately advised and
that he did consent to the procedure freely and voluntarily. In fact, as detailed below, he
subsequently agreed to a much more invasive, surgical procedure, which was performed
by Dr. Morse with similar warnings.
30.

Dr. Satish Singh was assigned to perform the EGD on Mr. Woodhouse.

(II:64-65). Dr. Singh graduated from Boston University medical school in 1987. He
completed a three year residency at University of Rochester, Strong Memorial Hospital.
He did a GI Fellowship at Yale University, Yale New Haven Hospital, and he is board
certified in gastroenterology. (II:57-58). Prior to the day in question, Dr. Singh had
performed hundreds of EGDs. (II:59-60).

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31.

Dr. Singh reviewed portions of Mr. Woodhouse’s medical records prior to

the procedure, including Dr. Goyal’s notes. (II:42-43). He was aware that Mr.
Woodhouse had a Zenker’s diverticulum. (II:46). As ordered by Dr. Goyal, Dr. Singh
planned on doing an upper endoscopy and, if appropriate, an esophageal dilation. (II:43).
The endoscopy would determine whether the dilation, which as detailed above included
the passing of a wire into the stomach, could be performed, and whether there were other
causes of the dysphagia. (II:44-45). The fact that Mr. Woodhouse had a Zenker’s
diverticulum put Dr. Singh “at high alert” and he knew that he should be “very careful”
when introducing the scope. (II:46).
32.

Mr. Woodhouse was consciously sedated, which meant that he could still

interact with the doctor. (II:133). Under conscious sedation, the patient responds to both
verbal stimuli and to touch. (III:10).
33.

Dr. Singh first attempted to pass the 180 adult endoscope. (II:46). Normal-

ly, a physician puts the endoscope down the patient’s throat right on the sphincter and
asks the patient to swallow. With gentle pressure the endoscope can then be advanced
into the esophagus. (II:134). This is a standard procedure which plaintiff’s expert agrees
has a very small risk of perforation. (I:44). Dr. Singh attempted this procedure three to
five times, but was unsuccessful. (II:47). I find that Dr. Singh did not push the scope
into the esophagus because of his concerns about the Zenker’s diverticulum. (II:78-79). I
also find that Dr. Singh did not push the scope into the Zenker’s. If he had done so, it
would have been obvious from the pictures being generated by the scope. (II:75-76).
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34.

Dr. Singh felt that there was something that he couldn’t explain, so he then

called Dr. Marcos Pedrosa for assistance. (II:46-47). Dr. Pedrosa was the Chief of
Endoscopy at the VA Medical Center and had performed approximately 8,000 or more
upper endoscopic procedures as of that time. (II:129-130). Dr. Pedrosa was board
certified in internal medicine and gastroenterology and had advanced training in
endoscopy. (II:127).
35.

Dr. Singh advised Dr. Pedrosa that Mr. Woodhouse had progressive

dysphagia and a history of a Zenker’s diverticulum, and that Dr. Singh had been unable to
pass the scope. (II:48).
36.

Like Dr. Singh, Dr. Pedrosa first tried a standard endoscope. Again,

however, Mr. Woodhouse’s sphincter did not relax and he was unable to swallow and
pass the scope into the esophagus. (II:134). Dr. Pedrosa then tried to pass a thinner,
nasogastric (nasal) endoscope through Mr. Woodhouse’s mouth, but again this did not
work. (II:134-35). Finally, Dr. Pedrosa passed the thinner, nasogastric endoscope
through Mr. Woodhouse’s nose. (II:79-80, 135). That procedure went smoothly. Thus,
Dr. Pedrosa inserted a J-wire down in the stomach as a guide wire. (II:135). The nasal
scope was withdrawn. Using the J-wire as a guide, Dr. Pedrosa passed a Q 180 scope
orally into position, allowing the doctors to examine the esophagus, stomach and
duodenum. (II:81, 135-36). No significant abnormalities were noted. (Ex. 1 at 2).
37.

As he was engaged in the procedure, Dr. Pedrosa noted a significant

amount of scarring in the sphincter area. (III:5-6). He opined that scarring is usually
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caused by a chronic inflammation. (III:6). Dr. Pedrosa testified that the scarring is
visible on pictures he had taken during the endoscopy. (III:5; Ex. 1 at 4-5; Ex. 5).
However, the defendant’s expert, Dr. Cave, did not see scarring on the photographs.
(III:77-78). I find that since Dr. Pedrosa was viewing the photographs in real time, and in
the context of performing the endoscopy, his testimony concerning the existence of
scarring is credible.
38.

Mr. Woodhouse was originally scheduled for a full dilation, but that was

not done because Dr. Pedrosa was concerned about the amount of time that Mr.
Woodhouse had already been under sedation. (III:10-11)
39.

Mr. Woodhouse was monitored post-procedure for approximately an hour.

This was the standard amount of time. (II:85). When Mr. Woodhouse awoke from the
sedation, he complained of pain and difficulty swallowing. (II:31, 86; Ex. 1 at 40). Mr.
Woodhouse testified that there was blood coming out of his mouth. (I:87-88). However,
that is not reflected in the medical records and no medical witness testified as to the
existence or significance, if any, of any blood. I do note, however, that the informed
consent form identifies bleeding as a potential risk. (Ex. 1 at 36).
40.

Mr. Woodhouse was monitored post-surgery by Dr. Wasan, among others.

(II:31-32). He was complaining of dysphagia with sharp pain on swallowing, even his
saliva, and he was unable to drink. However, there was no substenal chest pain, no
shortness of breath, no abdominal pain, and no nausea or vomiting. He was alert and
oriented and speaking in full sentences. His abdomen was soft, non-tender and non-14-

distended. (Ex. 1 at 273; II:32). Pain and difficulty swallowing could be due to natural
swelling caused by the scope passing, and would be temporary once the inflammation and
trauma caused by the scope healed itself. (II:91).
41.

Drs. Singh and Wasan discussed his situation and decided to have Mr.

Woodhouse admitted to the hospital for further observation. (II:32). Mr. Woodhouse
was transferred to the inpatient facility at the VA Medical Center in West Roxbury, and
was admitted to the surgical intensive care unit for further monitoring. (Ex. 1 at 40, 273;
II:87). Dr. Singh’s progress notes provided as follows:
Plan:
-- Admit to medicine service for further monitoring, IV hydration.
-- Daily trial of sips of fluids to see if pain is secondary to
endoscope trauma.
Would not pass an NG tube down blindly for feeding as patient has a
zenker’s diverticulum.
-- Please put in a GI consult so that we can follow the patient.
-- Would check chest/abdominal xray to r/o [rule out] perforation
given the complexity of the endoscopy done this morning; though
given patient’s hemodynamic stability and good 02 s[t]ats on room
air this is highly unlikely.
(Ex. 1 at 273). Thus, Mr. Woodhouse’s vital signs, including his blood pressure, were
fine and he was not having trouble breathing. (II:92).
42.

A CT scan and x-rays were taken on July 13, 2007. The scan did not reveal

a specific perforation, but there was “a suggestion of a small mural rent within the cervical esophagus[.]” (Ex. 1 at 116). This could not be confirmed due to a lack of contrast in
that area. (Id.). While there was a suggestion of a tear within the inner lining of the
esophagus, there was no leakage of liquid into the body. (Id.; I:52). The CT scan, as
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well as the x-ray, did reveal, however, that there was subcutaneous air in many locations.
(Ex. 1 at 116-17).
43.

Mr. Woodhouse was put on antibiotics and referred to thoracic surgery for

a consultation, “although surgical intervention may not be indicated at the present time.”
(Ex. 1 at 264).
44.

A barium swallow done on July 14, 2007 confirmed that there was no

leakage of liquid out of the esophagus. (II:97; Ex. 1 at 111). Similarly, CT scans without
contrast of the abdomen and thorax done on July 14, 2007 continued to show subcutaneous air in many locations with a “suggestion of a tear within the wall of the esophagus”
but no leakage of fluid. (Ex. 1 at 101). A number of tests were performed between July
13 and 19, 2007. None of them revealed an actual hole. (I:49; Ex. 1 at 94-132).
Throughout his stay at the VA Medical Center, Mr. Woodhouse did not demonstrate any
signs of infection or inflammation, such as fever, elevation in the white blood count or
abnormalities in other chemistries. In addition, he was able to swallow his secretions,
and after the very initial recovery period, repeatedly reported having no pain. (E.g., Ex. 1
at 247, 234-35, 238-41, 255; I:112-14).
45.

Mr. and Mrs. Woodhouse met with a nutritionist on July 20, 2007 at the

VA Medical Center, and it was decided that he would continue on puréed food with
supplementation. He was discharged home on July 20, 2007 with a diagnosis of
“esophageal perforation.” (Ex. 1 at 220). The decision was made to continue

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conservative management for a limited perforation, i.e., not a hole. (II:99). Conservative
treatment is basically nonsurgical, observation and antibiotics. (II:100).
46.

Mr. Woodhouse was seen by Dr. Daniel Cohen, Chief of Thoracic Surgery

at the VA Medical Center on July 31, 2007. (Ex. 1 at 216). According to Dr. Cohen’s
notes, Mr. Woodhouse was “presenting for follow up after esophageal perforation during
upper endoscopy for evaluation of upper esophageal stricture/Zenker diverticulum. He
was discharged 1 week ago on a full liquid diet which he tolerated well since then. He
reports a stable [weight] gain since discharge[.]” (Ex. 1 at 216). They discussed the risks
and benefits of a crycomyotomy (surgery) which could be scheduled in approximately a
month. (Ex. 1 at 216-17) Mr. Woodhouse had no pain or fever, and no residual
subcutaneous air. (Ex. 1 at 217).
47.

On August 22, 2007, Mr. Woodhouse was contacted by the VA, but

declined to go for pre-surgery testing, reporting that he was seeking a second opinion.
(Ex. 1 at 213). I find that he refused to undergo surgery at the VA because of his
dissatisfaction with his treatment.
48.

On November 19, 2007, Mr. Woodhouse was seen by Dr. Dettman at the

VA Medical Center, his primary care physician. (Ex. 1 at 210). Mr. Woodhouse
reported that Dr. Dettman was the only doctor at the VA he was willing to see, and that
he had sought other opinions about possible surgery for dysphagia, but had not made a
decision. He was continuing to eat puréed foods, and reported a stable to increased
weight. His weight was 140 pounds. (Ex. 1 at 210-11).
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49.

Mr. Woodhouse did not seek further medical treatment for his dysphagia

for more than two years. During this period, he continued to eat pureed foods and
maintained his weight. (Ex. 2 at 124).
Treatment in 2010
50.

Mr. Woodhouse was seen by Dr. Christopher Morse at Massachusetts

General Hospital on January 6, 2010 for a consultation about his Zenker’s diverticulum.
(Ex. 2 at 125). Dr. Morse testified at trial as an expert for the plaintiff. He is board
certified in surgery and cardiothoracic surgery. (I:23). Dr. Morse is an assistant
professor of surgery at Harvard Medical School and a thoracic surgeon at MGH. He is
co-director of the gastroesophageal surgery program. (I:24).
51.

At the time he first saw Mr. Woodhouse in 2010, Dr. Morse wrote to Dr.

Dettman that Mr. Woodhouse’s treatment at the VA in 2007 “was complicated by a
perforation which was treated conservatively and did resolve.” (Ex. 2 at 125). Mr.
Woodhouse continued to be unable to tolerate solid food, but his weight was stable. (Ex.
2 at 125). Mr. Woodhouse continued to have “dysphagia with almost everything he eats
and does have mild nocturnal regurgitation” but no halitosis. (Id.). A barium swallow
revealed a large Zenker’s diverticulum (though as noted below surgery did not confirm
this condition) with a severe stricture of the esophagus. (Ex. 2 at 123).
52.

Dr. Morse scheduled an EGD and a surgical repair of the Zenker’s

diverticulum by way of a cricopharyngeal myotomy. (Ex. 2 at 123). On April 9, 2010,
Dr. Morse conducted a flexible upper GI endoscopy, left neck exploration, and
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cricopharyngeal myotomy. (Ex. 2 at 140). The consent form given to Mr. Woodhouse
by Dr. Morse contained similar language as the consent form used by the VA Medical
Center in 2007, although it was even less specific. (I:66-68; Ex.1 at 36; Ex. 2 at 59).
Thus, the risks identified in the MGH form included “drug reactions, bleeding, infection,
and complications from receiving blood or blood components” as well as “unexpected
complications.” (Ex. 2 at 59). Mr. Woodhouse was placed under general anesthesia for
this procedure. (Ex. 2 at 99).
53.

Dr. Morse made two attempts to do an EGD with different scopes, but they

were blocked by a “quite tortuous bend in the esophagus” which he could not navigate
with the scope. (Ex. 2 at 140). As a result, Dr. Morse performed a left neck exploration
and a cricopharyngeal myotomy. Dr. Morse found “a very tight narrowing consistent
with scarring, inflammation and very hypertonic cricopharyngeal muscle.” (Ex. 2 at
140). He did not take any pictures of the scarring. (III:78). Dr. Morse attributes the
scarring to the procedure at the VA Medical Center, and opined that there was no other
plausible explanation for the source of the scar tissue that he encountered. (I:40).
54.

Dr Morse did not find a large Zenker’s diverticulum, but rather found

something “that looked more like redundant esophageal tissue[.]” (Ex. 2 at 117).
Although Dr. Morse did not find a Zenker’s diverticulum, he believes that it had existed
and was not identifiable because the area was scarred and densely inflamed, which was
consistent with a perforation. (I:37).

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55.

Mr. Woodhouse remained in the hospital for postoperative care until April

15, 2010, when he was discharged home. (Ex. 2 at 99). As of May 19, 2010, Dr. Morse
reported that Mr. Woodhouse was tolerating a soft solid diet with some mild dysphagia.
He recommended another upper GI endoscopy and dilation in several months once Mr.
Woodhouse healed. (Ex. 2 at 117).
56.

On June 25, 2010, Mr. Woodhouse was readmitted to MGH for further

endoscopy and dilation, which were performed without complication. (Ex. 2 at 130).
According to Dr. Morse, this second procedure was necessary because of the amount of
scarring he found during the first procedure. (I:41). It was very unusual for a second
procedure to be necessary. (I:40-41).
57.

Mr. Woodhouse remains on a puréed diet after these two procedures,

although he can eat a broader range of foods. (I:137, 96-97). Mr. Woodhouse testified
that, as of the time of trial, he was still unable to eat solid food. (I:91).
Plaintiffs’ Expert Opinions
58.

Dr. Morse testified as an expert on behalf of Mr. Woodhouse. As noted

above, the plaintiff is not challenging the initial decision to perform the EGD and empiric
dilation. However, Dr. Morse opined that once the VA doctors encountered difficulties,
there was no medical reason to continue to attempt the endoscopy, and that to do so was
outside the standard of care. (I:66). Thus, Dr. Morse opined that he would expect any
cancer to have been evident from the barium swallow. Since Mr. Woodhouse’s barium
swallow was normal, in Dr. Morse’s opinion it was below the standard of care to proceed
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with the endoscopy once difficulties had been encountered. (I:32-33). Rather, Mr.
Woodhouse should have been referred for surgical correction of his Zenker’s diverticulum. (I:43-44).
59.

In Dr. Morse’s opinion, there was no benefit to Mr. Woodhouse in perform-

ing the endoscopy as it did not treat the Zenker’s diverticulum, which had existed at the
time of the 2007 procedure, and which needed to be treated through surgery. (I:35).
60.

Dr. Morse opined that as a result of the procedure at the VA Medical

Center, Mr. Woodhouse “had a perforation of his esophagus as evidenced by the air that
they saw in his neck and his mediastinum or the upper chest. I believe that despite them
not seeing much extravasation or leakage of contrast that there were bacteria and oral
saliva that was extravasated through that perforation which caused a significant inflammatory response of his upper neck and around the esophagus and made the subsequent
operation that I performed infinitely more difficult than it would have been as a primary
procedure.” (I:36)
61.

In Dr. Morse’s opinion, if Mr. Woodhouse had had surgery in 2007 instead

of the EGD, Dr. Morse would have been able to achieve a much better end result. Due to
the perforation and scarring, however, Dr. Morse opined that Mr. Woodhouse’s
swallowing will never be perfect. (I:41-42).
Defendant’s Expert Opinions
62.

As detailed above, the VA doctors were of the opinion that Mr.

Woodhouse’s Zenker’s diverticulum did not warrant surgery in 2007. This opinion was
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shared by the defendant’s expert, Dr. Cave. (See III:60-61). At that time, the Zenker’s
was small and asymptomatic. Dr. Cave opined that the Zenker’s diverticulum did not
cause the difficulty swallowing but, rather, was a result of the difficulty passing food into
the esophagus. (See, e.g., III:66-67).
63.

Defendant’s expert witness was Dr. David Cave. Dr. Cave completed his

surgical training and obtained a PhD in 1976 from King’s College in London, England.
He then moved to the United States, did his Residency at the University of Chicago and
then a two year Fellowship in gastroenterology at the University of Chicago. He is board
certified in internal medicine and gastroenterology. From 1983 until 1992, he was at
Boston University, where he was chief of endoscopy. From 1992 until 2005, he was at
St. Elizabeth’s Medical Center, where he was the chief of the gastroenterology division,
which includes endoscopy. In 2005, he moved to the University of Massachusetts, where
he was the chief of the GI training program until 18 months ago. He is still at UMass
focusing on research. (III:20-25). He has performed many thousands of upper esophagus
endoscopies, and many hundreds of dilations of the upper esophagus. (III:26).
64.

Dr. Cave opined that the decision to perform an EGD on Mr. Woodhouse

on July 13, 2007 was entirely appropriate. (III:27). Prior to undertaking a dilation, he
testified that it is important to determine that there are no other co-existing problems
causing the dysphagia, including cancer. (III:39-40).
65.

Dr. Cave further opined that the manner in which the EGD was performed

was within the standard of care. (III:28).
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66.

It is undisputed that a perforation is a known potential complication of an

endoscopy. (III:48). Even Dr. Morse opined that a perforation may occur even without
negligence. (I:68-69). Dr. Cave explained that various physical conditions, especially in
older patients, can cause a perforation. (III:49-50).
67.

Dr. Cave opined that nothing that was done during the EGD caused Mr.

Woodhouse’s condition to worsen. (III:57).
68.

During the EGD, air was pumped in to distend the pathway to allow the

scope to pass and to allow the doctor to see more clearly. (III:8-9). Dr. Cave opined that
during this procedure, an extremely small tear in the esophageal wall occurred so that air
was trapped in the tissue. The air would be expected to last for several days. (III:52-53).
However, the micro perforation would seal itself once the scope was removed. (III:52).
This opinion was shared by other defense witnesses. (See II:53-54 (Dr. Singh); II:124-26
(Dr. Pedrosa)).
69.

In support of his opinion, Dr. Cave pointed to the fact that repeated testing

showed some air in the surrounding tissues, but no leakage of any liquid such as barium.
(III:52). Any true hole would be seen on an x-ray following a barium swallow. (III:5354).
70.

While the witnesses defined the term “perforation” differently, all agreed

that no true hole was seen on any of the tests. (See I:49).
71.

Dr. Cave further opined that the micro perforation would not cause the

massive scarring reported by Dr. Morse. (III:62).
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72.

Dr. Cave was of the opinion that the endoscopy did benefit Mr.

Woodhouse, and that there was some dilation of the CP muscle which improved the
patient’s swallowing and delayed the need for surgical intervention. (III:28).
73.

In support of this opinion, Dr. Cave relied on the fact that Mr. Woodhouse

did not seek medical advice for several years, indicating that there was some relief of
symptoms. Also, between the time of his procedure on July 13, 2007 and the time he
sought medical advice on March 11, 2010, Mr. Woodhouse’s weight went from 129
pounds to 141 pounds. (III:56-57).
74.

Finally, Dr. Cave opined that the informed consent procedure at the VA

Medical Center was entirely appropriate. (III:28).
Conclusions of Fact
75.

I find that it was reasonable for the VA doctors to perform the least invasive

procedure first and to try to rule out alternative causes of the dysphagia before considering surgery. Therefore, it was appropriate for the VA doctors to attempt the EGD and
empiric dilation in 2007.
76.

I also find that in 2007, there was no indication that surgery was warranted

for the Zenker’s diverticulum. It was small and asymptomatic. It was also not the cause
of Mr. Woodhouse’s swallowing difficulties.
77.

I find that Mr. Woodhouse was advised of the risks involved in the

scheduled procedure at the VA Medical Center. I further find that he gave his consent
freely and voluntarily.
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78.

I find that the repeated attempts by Drs. Singh and Pedrosa to pass the

scope were not excessive. As evidenced by Dr. Morse, multiple efforts are not unusual. I
find that both Drs. Singh and Pedrosa were highly skilled and were very careful not to
divert the scope or wire into the Zenker’s diverticulum.
79.

I also find that neither Dr. Singh nor Dr. Pedrosa caused anything more

than a micro tear in the tissue and that it did not cause any harm. I find Dr. Cave’s
explanation of the air escaping and being caught in the tissue to be persuasive.
80.

I reject Dr. Morse’s contention that the scarring he allegedly found was

caused by the procedure at the VA Medical Center. There was no leaking of any liquids,
as evidenced by the repeated tests Mr. Woodhouse underwent following the procedure.
Significantly, Mr. Woodhouse showed no signs of any infection and he was put on
antibiotics following the procedure. His pain went away promptly after the procedure.
Furthermore, Dr. Morse reported to Dr. Dettman that any perforation had healed by the
time he saw Mr. Woodhouse, and Mr. Woodhouse did not complain of pain, fever or the
like for years after the procedure. Thus, there is no support for Dr. Morse’s hypothesis
that, beginning at the time of the 2007 procedure, bacteria and oral saliva “was extravasated through a perforation which caused a significant inflammatory response in his upper
neck[.]” (I:36).
81.

I find that the pain that Mr. Woodhouse suffered following the procedure

was a natural consequence of the procedure and was not the result of any negligence.
82.

I find that Mr. Woodhouse benefitted from the procedure.
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III. RULINGS OF LAW
1.

The plaintiff has brought this malpractice action against the United States

under the Federal Torts Claims Act. Pursuant to the Act, “the law of the place where the
act or omission occurred” is controlling. 28 U.S.C. § 1326(b)(1); Zabala Clemente v.
United States, 567 F.2d 1140, 1143 (1st Cir. 1977). Therefore, as the parties agree, the
law of Massachusetts applies in the instant case.
2.

To prevail on his claims, the plaintiff must prove every essential element of

his claim by a fair preponderance of the evidence. A “proposition is proved by a
preponderance of the evidence if it is made to appear more likely or probable in the sense
that actual belief in its truth, derived from the evidence, exists in the mind or minds of the
tribunal notwithstanding any doubts that may still linger there.” Sargent v. Mass.
Accident Co., 307 Mass. 246, 250, 29 N.E.2d 825, 827 (1940).
3.

“In order to prove her medical malpractice claim, the plaintiff must show

that (1) a doctor-patient relationship existed; (2) the defendant failed to conform to good
medical practice; and (3) the defendant’s negligence caused [plaintiff’s] injury.” Doherty
v. Hellman, 406 Mass. 330, 333, 547 N.E.2d 931, 933 (1989)
4.

In the instant case, there is no dispute that a patient-physician relationship

existed between Mr. Woodhouse and Drs. Wasan, Singh and Pedrosa, that the doctors
were employees or agents of the VA Medical Center Boston, and that the facilities in
which Mr. Woodhouse was treated were owned and operated by the United States

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Department of Veteran Affairs. It is also undisputed that the defendant United States is
the proper defendant in this action.
Standard of Care
5.

“To prevail on a claim of medical malpractice, a plaintiff must establish the

applicable standard of care and demonstrate both that a defendant physician breached that
standard, and that this breach caused the patient’s harm.” Palandjian v. Foster, 446 Mass.
100, 104, 842 N.E.2d 916, 920 (2006).
6.

The proper standard of care “is whether the physician, if a general practi-

tioner, has exercised the degree of care and skill of the average qualified practitioner,
taking into account the advances in the profession. A specialist should be held to the
standard of care and skill of the average member of the profession practicing the specialty, taking into account the advances in the profession.” Palandjian, 446 Mass. at 104,
842 N.E.2d at 920 (quoting Brune v. Belinkoff, 354 Mass. 102, 109, 235 N.E.2d 793, 798
(1968) (punctuation omitted)).
7.

This standard “does not require physicians to provide the best care

possible.” Palandjian, 446 Mass. at 105, 842 N.E.2d at 921. Moreover, “[b]ecause the
standard of care is based on the care that the average qualified physician would provide in
similar circumstances, the actions that a particular physician, no matter how skilled,
would have taken are not determinative.” Id. at 104-105, 842 N.E.2d at 920-21.
8.

The plaintiff defines his claim as follows:

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According to the preponderance of the evidence, Dr. Singh and Dr.
Pedrosa failed to exercise the care and skill of the average qualified
gastroenterologist, taking into account the advances in the profession. Although the decision to perform the EGD and attempt a
dilation procedure on Mr. Woodhouse may have been reasonable
under the circumstances, to make repeated attempts at passing the
endoscope after encountering difficulties in an eighty year old
patient with two reassuring barium swallows, performed five years
apart, whose weight has been stable over the previous three years,
with a known Zenker’s diverticulum that significantly increased his
risk of perforation from less than one percent to between three and
five percent, was not, and constituted a breach of the standard of
care.
(Docket No. 58 at Plaintiff’s Proposed Rulings of Law ¶ 13).
9.

I find, however, that the plaintiff has failed to prove that continuing with

the endoscopy after having some difficulties breached the acceptable standard of care.
There is no evidence in the record as to how many attempts would be too many, and even
Dr. Morse attempted the endoscopy more than once before going into surgery. I find that
Mr. Woodhouse presented himself in 2007 as a patient for whom a long-standing problem
had recently become much worse. Moreover, he advised Dr. Goyal that he had lost a
considerable amount of weight over the last several years. Since the medical records
would only reflect Mr. Woodhouse’s weight at the time of a specific visit, I find that the
doctors were justified in accepting the representation of Mr. Woodhouse (and his wife)
that they were concerned about his weight loss even if the loss was not reflected in the
medical records. Under such circumstances, performing an endoscopy for the purpose of
ruling out cancer or other causes for Mr. Woodhouse’s dysphagia was appropriate.

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10.

I also find that performing the EGD in and of itself could, and in fact did,

provide some relief to Mr. Woodhouse, so continuing with the procedure while the
patient was still able to tolerate it was appropriate. The EGD was clearly a much less
invasive procedure than the surgery later performed by Dr. Morse. Moreover, I find that
the plaintiff has failed to establish that Dr. Singh’s decision to ask for the assistance of
Dr. Pedrosa was unreasonable. Dr. Pedrosa was the Chief of Gastroenterology and had
performed thousands of endoscopies. The plaintiff has failed to establish that Dr.
Pedrosa’s use of different methods, in which he had received special training, was in any
way inappropriate. Once the nasal scope was used through the patient’s nose, the
procedure was completed easily. Thus, I find that the plaintiff has failed to prove that the
doctors breached the standard of care by continuing with the endoscopy.
Causation
11.

The plaintiff has the burden of proving that the actions of the doctors was

the proximate cause of his alleged injuries. “The plaintiff [is] not required to show the
exact cause of [his] injuries or to exclude all possibility that they resulted without fault on
the part of the [the doctors]. It was enough if [he] showed that the harm which befell
[him] was more likely due to negligence of the [doctors] than to some other cause for
which [the doctors were] not liable.” Woronka v. Sewall, 320 Mass. 362, 365, 69 N.E.2d
581, 582-83 (1946). Thus, the plaintiff must establish “that there was greater likelihood
or probability that the harm complained of was due to causes for which the [doctors
were] responsible than from any other cause[,]” and he is “not required to eliminate
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entirely all possibility that the [doctors’] conduct was not a cause.” Carey v. Gen. Motors
Corp., 377 Mass. 736, 740, 387 N.E.2d 583, 585 (1979).
12.

Here the plaintiff contends that “Dr. Singh’s and Dr. Pedrosa’s breach of

the standard of care was the proximate cause of Mr. Woodhouse’s injury, a perforation of
his esophagus.” (Docket No. 58 at Plaintiff’s Proposed Rulings of Law ¶ 16).
13.

I find, however, that the plaintiff has not met his burden of proof that the

actions of the doctors caused him injury. As an initial matter, I find that the plaintiff has
failed to establish that there was a perforation either of the esophagus or the Zenker’s
diverticulum which allowed the leakage of bacteria, saliva and other contaminants, and,
consequently, inflammation and infection. As detailed above, repetitive testing showed
no leakage of fluids, and if the scope had entered the Zenker’s it would have been visible
on the camera during the procedure. Moreover, Mr. Woodhouse exhibited no signs of
infection despite constant monitoring. While the testing did show that air passed out of
the esophagus, I find Dr. Cave’s explanation to be persuasive. Thus, I find it more likely
that the tissue of the esophagus was scraped during the EGD procedure, and because the
scope uses air to inflate the tube during the procedure, the air may have been pushed
through the tissue through the small tear, which closed itself once the scope was removed.
14.

I further find that the plaintiff has failed to prove that there was extensive

scarring formed as a result of the 2007 procedure. Consequently, the plaintiff has failed
to establish that the 2007 procedure caused Dr. Morse’s surgery to be made more difficult, or to create the need for a second procedure. Again, the absence of any evidence of
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an infection, such as a fever or high white blood count, negates a finding that there was
inflammation and infection which led to extensive scarring. Dr. Morse did not take any
pictures of scarring. I find credible Dr. Pedrosa’s testimony that he encountered scarring
during the 2007 procedure.
15.

Finally, I note that the plaintiff has not put forth any evidence or hypothesis

as to when during the course of the 2007 procedure the alleged harm to Mr. Woodhouse
occurred. Since according to the plaintiff it could have happened during the first attempt
by Dr. Singh, and the plaintiff has conceded that the decision to make the first attempt
was not malpractice, the fact that several attempts were made may be irrelevant. Thus,
Mr. Woodhouse has failed to prove by a preponderance of the evidence that the
continued efforts to complete the EGD was either malpractice or the cause of his alleged
injuries.
Informed Consent
16.

“To recover under a theory of informed consent in Massachusetts, a patient

must prove that the physician has a duty to disclose certain information and that a breach
of that duty caused the patient’s injury. To establish a breach of the physician’s duty of
disclosure, the plaintiff must establish that: (1) a sufficiently close doctor-patient relationship exists; (2) the doctor knows or should know of the information to be disclosed;
(3) the information is such that the doctor should reasonably recognize that it is material
to the patient’s decision; and (4) the doctor fails to disclose this information.” Harrison
v. United States, 284 F.3d 293, 298 (1st Cir. 2002) (internal citations omitted).
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17.

With respect to the issue of informed consent, “a physician owes to his

patient the duty to disclose in a reasonable manner all significant medical information
that the physician possesses or reasonably should possess that is material to an intelligent
decision by the patient whether to undergo a proposed procedure.” Harnish v. Children’s
Hosp. Med. Ctr., 387 Mass. 152, 155, 439 N.E.2d 240, 243 (1982).
18.

The extent to which a physician must share information with his or her

patient “depends upon what information he should reasonably recognize is material to the
plaintiff’s decision.” Id. at 156, 439 N.E.2d at 243. “Materiality may be said to be the
significance a reasonable person, in what the physician knows or should know is his
patient’s position, would attach to the disclosed risk or risks in deciding whether to
submit or not to submit to surgery or treatment.” Id. (quoting Wilkinson v. Vesey, 110
R.I. 606, 627, 295 A.2d 676, 689 (1972)). “Appropriate information may include the
nature of the patient’s condition, the nature and probability of risks involved, the benefits
to be reasonably expected, the inability of the physician to predict results, if that is the
situation, the irreversibility of the procedure, if that be the case, the likely result of no
treatment, and the available alternatives, including their risks and benefits. The obligation to give adequate information does not require the disclosure of all risks of a
proposed therapy, or of information the physician reasonably believes the patient already
has, such as the risks, like infection, inherent in any operation.” Id. (internal citations
omitted).

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19.

In the instant case, Mr. Woodhouse contends that the information with

which he was provided was insufficient because Dr. Wasan did not advise him of the
alternatives to the scheduled procedure, i.e., surgery, and because neither Dr. Wasan nor
Dr. Singh allegedly advised him of the “significantly increased risk of perforation due to
his Zenker’s diverticulum.” (Docket No. 58 at Plaintiff’s Proposed Rulings of Law ¶ 24).
Moreover, according to Mr. Woodhouse, he would not have undergone the procedure if
he had been made aware of the risks. (Id.)
20.

I find that the plaintiff has failed to meet his burden that the defendant is

liable for malpractice due to a failure to obtain informed consent. Rather, I find that Dr.
Dettman and Dr. Goyal reviewed Mr. Woodhouse’s test results and treatment options
with him, and that he fully understood them. I find that Dr. Wasan was not the appropriate doctor to advise Mr. Woodhouse about treatment options since he was not her
patient.
21.

I find further that Dr. Wasan adequately explained the risks to Mr.

Woodhouse, including the fact that there was a risk of perforation, and that the risk was
higher because of the existence of his Zenker’s diverticulum. Mr. Woodhouse also was
given the opportunity to review the consent form and ask any questions that he had. The
consent form clearly states that perforation is a risk of the endoscopy. I find that Mr.
Woodhouse signed the form freely and did not ask any questions.
22.

The form used by the VA Medical Center is more detailed than the form

used by MGH. Mr. Woodhouse signed the MGH form before undergoing surgery with
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Dr. Morse. Therefore, I find that Mr. Woodhouse had sufficient information to give his
informed consent to the 2007 procedure.
23.

It is Mr. Woodhouse’s theory that the VA doctors committed malpractice

because they made a perforation in his esophagus. I have found that Mr. Woodhouse has
not met his burden of proof on the issue of malpractice. Moreover, it is clear from the
record that perforation was a known risk of the endoscopy, and Mr. Woodhouse was
advised of that risk.
ORDER
For the reasons detailed herein, judgment will be entered in favor of the
Defendant.
SO ORDERED.
/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge

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