Brown et al v. United States of America et al

Filing 119

MEMORANDUM AND OPINION: Plaintiffs have sustained injuries proximately caused by negligence of Dr. Matthew Barchie and are entitled to recover noneconomic damages of $500,000 and economic damages in an amount to be determined following additiona l briefing on the issue of whether Tri-Care is a collateral source. Plaintiffs have 14 days to submit a brief on this issue. The government will have 7 days thereafter to submit a brief on the issue if it so chooses. Signed by District Judge Tom S. Lee on 11/26/19 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
CHARLES BROWN AND
TRUDY BROWN

PLAINTIFFS

VS.

CIVIL ACTION NO. 3:17CV551TSL-RHW

UNITED STATES OF AMERICA

DEFENDANT

MEMORANDUM OPINION AND ORDER
Charles Brown and his wife, Trudy Brown, brought this medical
malpractice action against the United States of America under the
Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et
seq., for alleged medical malpractice by Dr. Matthew Barchie, an
interventional radiologist at Keesler Medical Center, relating to
a percutaneous drainage procedure he performed on Mr. Brown in May
2016.

After the court granted partial summary judgment to

plaintiffs on the issue of Dr. Barchie’s breach of the standard of
care, the case was tried to the court over five days on the issues
of proximate cause and damages.

In accordance with Federal Rule

of Civil Procedure 52, the court herein makes its findings of fact
and conclusions of law on the issue of causation and plaintiffs’
claims for noneconomic damages.1

1

As explained more fully below,

Rule 52(a)(1) states:
In an action tried on the facts without a jury or with
an advisory jury, the court must find the facts
specially and state its conclusions of law separately.
The findings and conclusions may be stated on the record
after the close of the evidence or may appear in an
opinion or a memorandum of decision filed by the court.
Judgment must be entered under Rule 58.

as to these issues, the court finds and concludes that plaintiffs
have established by a preponderance of the evidence that Dr.
Barchie’s negligence proximately caused significant, long-term
injuries, for which they are entitled to recover $500,000, the
maximum amount of noneconomic damages allowable under Mississippi
law.

The court at this time reserves ruling on plaintiffs’ claims

for past and future economic damages pending further, detailed
briefing by the parties, as requested by plaintiffs, on the issue
of whether TRI-CARE payments, received or anticipated, constitute
a collateral source.2
Course of Treatment of Charles Brown
On October 19, 2015, plaintiff Charles Brown presented at the
Emergency Department at Keesler Medical Center (Keesler) with a
complaint of pain on his side.

He had previously been diagnosed

2

Plaintiff Charles Brown is eligible for certain health
care benefits under Tricare, a statutory federal entitlement
program that provides health care to members of the armed
services. The Government maintains that plaintiffs are not
entitled to recover any amounts for medical expenses, past or
future, paid or payable under Charles’ Tricare coverage, reasoning
that since Tricare is funded from the federal treasury, payments
under Tricare are not collateral source payments and therefore
should be deducted from any recovery made by plaintiffs. See
Murphy v. United States, No. CIV. 06-00304 BMK, 2009 WL 454627, at
*6 (D. Haw. Feb. 23, 2009) (observing that “[t]he vast majority of
courts to consider this issue ... have concluded that
TriCare/CHAMPUS benefits are not a collateral source, holding that
they are benefits derived from general revenues of the United
States.”) (quoting Lawson v. United States, 454 F. Supp. 2d 373,
414 (D. Md. 2006) (emphasis in original)). Plaintiffs requested
an opportunity to submit additional briefing addressed to this
issue if the court ruled in their favor on the issue of liability.
The court granted their request.
2

with gallstones, and on this visit, his gallbladder was identified
as the source of the problem.

On October 21, 2015, he underwent a

laparoscopic cholecystectomy (gallbladder removal).

A week and a

half later, Charles began experiencing pain again and returned to
Keesler, where it was determined that he had an abscess – an
infected collection of fluid – in the gallbladder fossa, the space
where the gallbladder had been.

He was admitted and the abscess

was successfully drained percutaneously.

Percutaneous abscess

drainage uses imaging guidance, such as ultrasound or computed
tomography (CT), to place a needle or catheter through the skin
into the abscess to drain the infected fluid.

Two days later, he

was discharged and returned home.
About six months later, in early May 2016, Charles was again
having pain in his side, toward the back.

His pain seemed to

improve with stretching but continued to bother him, so on May 8,
after church, his wife Trudy suggested they go to Keesler and get
it checked out.

A CT scan revealed an intra-abdominal abscess

near his liver.

Charles was admitted and administered IV

antibiotics.

The following day, he was scheduled for a

percutaneous drainage procedure.

The plan at the time was to keep

him on antibiotics and to drain the abscess and get a sample to
determine what was causing the abscess.
The drainage procedure was performed by Dr. Matthew Barchie.
During that procedure, Dr. Barchie became confused as to the

3

location of the trocar – a hollow cylindrical instrument with a
pointed end used to gain access to and insert medical instruments
into a body cavity – and inserted it too far.

The trocar went

through the abscess and diaphragm, transfixed the liver, lung and
pericardium and punctured his heart, causing extreme pain.3

As a

result, Charles suffered cardiac tamponade, a condition in which
blood (or other fluid) builds up inside the pericardial sac and
creates pressure on the heart, preventing it from filling with
blood and resulting, in turn, in a reduction in cardiac output and
blood flowing to the body’s organs.

The cardiac tamponade caused

a major episode of circulatory/obstructive shock.4

An emergency

sternotomy was performed to remove the blood in order to relieve
pressure on his heart5 and to identify and, if needed, treat any

3

The Government denies that the trocar actually entered
Charles’ heart. Although ultimately it is not determinative of
anything, the court does find that the trocar probably did
puncture his heart. See infra note 6.
4

Blood carries oxygen to the body’s tissues; oxygen, and
hence an adequate blood supply, is necessary for the health and
survival of tissue. Shock occurs when there is an inadequate flow
of blood – perfusion – to the body’s tissue and organs. Symptoms
of shock include tachycardia (elevated heart rate), hypotension
(low blood pressure), diaphoresis (sweating), and cold/pale/clammy
skin. Charles was observed to have all these symptoms. Although
Dr. Jacob Anderson, a Keesler surgeon who treated Charles,
maintained at trial that there was never a lack of adequate
tissue/organ perfusion, the court credits the contrary testimony
of Dr. Carl Hauser, plaintiffs’ medical expert.
5

In a sternotomy, the sternum is cut in half and pulled
apart to provide access to the heart (and lungs).
4

source of bleeding.6

During the sternotomy, Charles was found to

also have a hemothorax, a collection of blood in the the pleural
cavity (the space between the chest wall and the lung), which was
evacuated.
After the surgery, Charles was taken to the intensive care
unit (ICU) at Keesler, where he remained until he was discharged
nine days later to a rehabilitation facility.

Throughout his stay

in Keesler’s ICU, Charles was extremely frail and debilitated.
For the first couple of days, he remained heavily sedated and in
and out of consciousness.

Within a few days, he became a little

more alert but was confused.
and communication.

He had difficulty with comprehension

He was given physical therapy daily, but his

progress was slow and limited.

On May 17, just one day before his

discharge to the Physical Medicine and Rehabilitation (PMR) unit
at Gulfport Memorial Hospital (Memorial-PMR) for more intensive
rehabilitation services, one of his physical therapists noted that
the goal was for him to be able to tolerate three hours of
physical therapy a day, yet he was “still highly deconditioned”

6

Dr. Jacob Anderson, who performed the sternotomy,
testified that he and his surgical team examined Charles’ heart
and found no active bleeding or evidence of injury. However, Dr.
Hauser testified that it is not uncommon to not find the source of
bleeding in these types of events because often, the blood will
have clotted off. He stated that the 700 milliliters of blood
removed from the pericardium demonstrates that the heart was
penetrated. Dr. Hauser’s testimony was credible and persuasive.
5

and could not tolerate more than thirty minutes of therapy at a
time.
Because of the trocar injury that occurred during the May 9
drainage procedure and the consequent emergency sternotomy, Dr.
Barchie did not complete the drainage procedure and did not drain
the abscess.

The plan, according to Dr. Anderson, was thus to

continue Charles on antibiotics and “repeat a CT scan before he
went to rehab to see if the abscess was still present, assuming he
did not show signs of further infection in the interval.”

And in

fact, a CT scan was taken a day or two before his discharge which
showed no abscess.

Keesler apparently regarded that antibiotics

had cleared the infection.7
Within hours of his arrival at Memorial-PMR on May 18,
Charles was observed to be disoriented and confused.

Tests were

run which indicated a possible transient ischemic attack (TIA), a
sort of mini-stroke, so he was promptly transferred from PMR to
the Memorial’s Progressive Care Unit (PCU), where he remained for
about a week.

An EEG taken May 19 showed seizure activity,

suggesting his symptoms may have been caused by a seizure rather
than a TIA.

On day two of his admission, a CT angiogram was

ordered because Charles had a cough and congestion.

The CT showed

a right pleural effusion (a collection of fluid in the pleural
7

Trudy noted that she was told before leaving Keesler
that the infection “had almost disappeared thanks to heavy doses
of antibiotics.”
6

space), which was thought to be related to the trocar injury.
During thoracentesis to drain the fluid, Charles had a small
pneumothorax (or collapsed lung), which required a pleural tube
(to reinflate), as a result of all of which Charles remained in
the PCU for several additional days in poor condition.

At some

point during this time, a social worker approached Trudy and
inquired whether she had considered hospice care for Charles;
Trudy was horrified at the thought of hospice.
In addition to the pleural effusion, the report on Charles’
May 20 chest CT also showed an “incompletely evaluated” “5.8 cm
mass” of “central low attenuation” on or adjacent to the liver.
The CT report noted, “the mass is amenable to percutaneous tissue
sampling, if needed, following diagnostic thoracentesis”.
However, at the time, nothing further was done with respect to
this mass.8
On May 27, after a week in PCU, Charles was transferred back
to PMR to start rehabilitation.

At the time, PMR personnel

purportedly anticipated he would complete his rehabilitation in
ten to twelve days and be discharged home, but Charles did not
progress as expected.

It was decided that he needed more care

than PMR could provide and so on June 6, he was transferred to
Greenbriar Nursing Home, a long-term care facility with a more

8

It is unclear to the court whether this was an abscess
or a phlegmon, or inflammation of soft tissue.
7

intensive rehabilitation program.
slow but steady improvement.

At Greenbriar, Charles made

After three weeks, on June 27,

although he remained quite frail, he was discharged, to continue
therapy with home care.

He was home for only a few days before he

was again hospitalized for an infection.

During his brief time at

home, he fell twice, and Trudy had to call emergency services for
help getting him up.
On June 28, Trudy drove Charles to Memorial for a previouslyscheduled CT that had been ordered by his oncologist, Dr. Olivia
Hightower.9

The June 28 CT scan did not show any cancer, but it

did show what appeared to be an abscess (a “subcapsular fluid
collection along the posterior inferior hepatic margin increased
from prior study”).

Dr. Hightower believed this was probably the

abscess that Dr. Barchie had failed to drain.

Charles was thus

admitted to Memorial on June 30, and the next day, he underwent a
percutaneous drainage procedure and was started on a course of IV
antibiotics.

The drain was removed five days later, after a CT

scan taken July 6 showed there was “no residual fluid collection
in the abscess cavity”.

A PICC line was placed for continued

9

In 2002, Charles was diagnosed with small cell lung
cancer (SCLC), with liver metastasis. SCLC is a particularly
aggressive cancer which has a five-year survival rate of only 2%.
Charles was treated initially with chemotherapy, and later, in
2004, underwent prophylactic cranial irradiation, since SCLC will
commonly metastasize to the brain. Because of his history of
cancer, he underwent regular cancer screenings. He has been in
complete remission since he completed treatment in or before 2004.
8

administration of antibiotics,10 and on July 8, Charles was
discharged to Greenbriar to resume rehabilitation, with
instructions to return if he developed a fever.11
Within a couple of days, the site where the drain was removed
began to drain profusely; Charles’ antibiotic was changed but the
site continued to drain for more than a week.
weak, “wiped out tired”, in Trudy’s words.

And Charles was

On July 17, four days

after his last dose of antibiotics, he had a fever of 101, so he
was transported back to Memorial.

A CT scan showed the continued

presence of a phlegmon – inflammation of soft tissue, usually
caused by infection – around his liver but minimal drainage from
the abscess.

It also showed, though, that he had bilateral deep

vein thrombosis (DVT), i.e., blood clots in both legs, probably as
a result of his extended immobility.12

Initially, Charles was

given a blood thinner for the DVT, but that was discontinued when
a CT scan the following day showed he had developed a small brain

10

A PICC line is a peripherally inserted central catheter
that is inserted into a vein and is typically used for long-term
IV antibiotics.
11

On that date, Trudy recorded in her notes: “It’s 2
calendar months since this all started and we haven’t really got
anywhere. CB is still too weak to stand alone and still not ready
to come home.”
12

The blood clots of deep vein thrombosis can be caused by
anything that prevents the blood from circulating or clotting
normally, including limited movement.
9

bleed.13

Instead, IVC filters were placed to prevent clots from

entering his lungs.14
Charles was transferred from Memorial back to Greenbriar on
July 27.

During those ten days at Memorial, Charles’ condition

was very poor.
out of bed.

As described by Trudy, he was weak and barely got

Most of the time, he was “too shaky to stand”.

One

of his treating physicians, Dr. Aultman, noted that his “biggest
problem at this time is debility and decline given his several
months of hospitalization since the spring”; she spoke to Trudy
and told her she should expect a gradual decline in his condition
and suggested to Trudy that she should consider hospice care for
him.

Trudy did not choose hospice.
Charles remained at Greenbriar for the next several months,

with intermittent visits to various hospitals and doctors.
Initially, some days were bad, some were better.

Some days he

could barely stand; others he was able to walk “quite a way” on a
walker, though he was usually exhausted afterward and slept the
rest of the day.

Some days he was more lucid than others.

In

early August, he began having tremors in both hands and his mouth,
which became worse over time.

A neurologist, Dr. Abha Mishra,

13

Charles had a history of chronic subdural hemotoma
dating to 2014, when he developed a subdural hematoma after being
struck in the head by a suitcase.
14

In patients who cannot be given blood thinners, IVC
(inferior vena cava) filters are used to trap blood clots and
prevent them from traveling to the heart and lungs.
10

thought they could be the result of an anti-anxiety medication he
was on; but even after she took him off the medication, his
tremors did not improve.
strength.

However, he did seem to be regaining

In her notes, Trudy wrote on August 25 that he had

“walked the furthest ever – over 300 ft - all around the interior
building + walked again in the afternoon. ... Appears to be
getting stronger.”
On August 26, Mr. Brown was taken to Merit Health hospital
for an abdominal CT scan ordered by Dr. Hightower, who, according
to Trudy, wanted to “make sure the abscess on the liver had not
returned.”

The CT showed “a multi-loculated hepatic abscess

extending from the right lobe of the liver into the gutter.”

The

abscess that had been drained in July had grown and was extending
down to the kidney.

The Browns met with Dr. Stephen Johns at

Merit Health on September 2 to discuss the CT results, and on
September 22, Charles underwent another drainage procedure at
Memorial to drain the abscess.

A CT at the time showed that a

second smaller abscess had formed further down the liver, which
was also drained.

Charles was again put on antibiotics.

After the September 22 drainage procedure, Charles again
returned to Greenbriar, where he briefly resumed therapy.

On

October 3, he became weak and was running a low grade fever.

The

next day, his fever spiked, fluid from the drain site changed
color and he had was observed to have altered mental status.
11

He

was taken the to emergency department at Memorial and admitted to
the PCU.

A post-op CT showed “near resolution” of the

main/original abscess and a decrease in size of the secondary
abscess; but infection was still present.

A subsequent CT, taken

October 13, similarly showed “decreased size and conspicuity” in
the main abscess.
In the meantime, Charles was seen on October 5 by Dr. Jesse
Penico, an infectious disease specialist.

Dr. Penico concluded

that Charles’ infection had failed antibiotic and drain therapy
and that what he needed was surgery to eliminate the source of the
infection, which he thought might be a biliary fistula.

Although

he did not request a formal consult, Dr. Penico spoke with
surgeons at Memorial about performing surgery on Charles, but they
declined, on account of Charles’ complicated medical picture,
struggles with infection, brain bleeds and DVT.

Since he was

unable to find a local surgeon willing to surgically treat
Charles, Dr. Penico referred Charles to Oschner’s in New Orleans,
hoping for a different response.
November 1.

An appointment was scheduled for

Meanwhile, Charles’ condition continued to decline.

On October 14, a CT revealed fluid on his brain; burr holes were
drilled to relieve the pressure.

On October 18, Charles was

discharged, not to Greenbriar, but to Select Specialty for
specialized nursing care.

While at Select Specialty, he was

12

deconditioned; he was weak, running fevers, and, in general,
“looking awful”.

He was, in Dr. Penico’s words, “a mess.”

On November 1, Charles was transported to Oschner’s via
ambulance.

CT scans taken at Oschner’s showed two abscesses.

To

Dr. Penico’s dismay, doctors at Oscher’s did not opt for surgery,
as he had hoped, but instead chose to drain them again.

While at

Oschner’s, Charles was found to have dangerously low sodium, which
manifested as fatigue, weakness and mental confusion.

He remained

at Oschner’s for over two weeks, while doctors worked to improve
his sodium level.

He was discharged on November 17 to Select

Specialty, where he remained until he was returned to Greenbriar
on December 16.
On January 12, Charles was sent back to Memorial, where a CT
scan showed the two abdominal abscesses were still present.

They

were treated with antibiotics and Charles was discharged back to
Greenbriar on January 30.

By that time, Dr. Penico had reached

out to Dr. Douglas Slakey, head of the surgery department at
Tulane Medical Center, for a surgical consultation, and an
appointment had been scheduled for February 8.
After reviewing Charles’ medical records and CT scans, Dr.
Slakey suspected that his abscess was caused by retained
gallstones, given the location of the abscess, the fact that
Charles had experienced the first abscess just ten days after the

13

cholesystectomy and the fact that the abscess was recurring.15

He

concluded that although Charles was “somewhat frail due to
longstanding illness [with] risk factors of chronic illness and
associated deconditioning as well as a history of deep venous
thrombosis and intracranial hemorrhage”, open surgery to drain the
abscess and remove any retained gallstones was the best and most
likely effective treatment.
Surgery was initially scheduled for February 16, 2017, but
had to be rescheduled because on February 14, Charles experienced
another brain bleed.16

It was subsequently rescheduled for and

took place on April 25, 2017.17

At that time, Dr. Slakey drained

the abscess and also removed most of the lowest right rib because
the rib appeared to him “to be intimately involved with the
infectious process”.18

Dr. Slakey also removed from the abscess

15

It is not uncommon and is usually harmless for
gallstones to be spilled during a laparoscopic cholecystectomy.
However, in rare cases, spilled or retained gallstones, especially
if infected, can cause abdominal infections/abscesses.
16

It was a small brain bleed that resolved without any
intervention.
17

Charles went for his pre-op evaluation on April 18 and
was sent to Tulane’s emergency department because he was agitated,
having problems remembering time and place and complaining of
chest pains. He was admitted. An MRI of the brain showed an
acute or chronic subdural hemotoma. It resolved and he was
discharged on April 20.
18

The rib was soft and had a spongy feel to it, leading
Dr. Slakey to conclude it was infected. An infection of the bone
– osteomyelitis – can be caused in a number of ways, including by
bacteria deposited by medical instruments inserted in the body
14

cavity several small stones that he believed were gallstones that
had been dropped during the cholecystectomy.
Two days after surgery, Charles was discharged and returned
to Greenbriar.

Within days of his discharge, however, he

experienced redness and swelling at the site of his surgical
incision.

Dr. Penico ordered a PICC line and broad-spectrum

antibiotics, but when Charles presented at Merit the next day for
placement of the PICC line, he was hypotensive, extremely weak,
confused and slow in his responses.

He was diagnosed with severe

sepsis and septic shock19 and admitted to the ICU.

He recovered,

and five days later, was discharged, once again, to Greenbriar.
He remained at Greenbriar for another two and a half months of
convalescing and receiving physical, occupational and speech
therapy.
On July 26, 2017, Charles was finally able to return home,
though he was still in a weakened condition and required
outpatient/home rehabilitation services and assistance with
activities of daily living.

Because of his weakness and balance

issues, he has had a number of falls, some resulting in trips to

that come in contact with the bone. While bones are typically
resistant to infection, a person whose immune system is
compromised has a greater risk of osteomyelitis.
19

When sepsis is untreated or occurs in a person with a
weak immune system, it can spread throughout the body and cause
septic shock, a life-threatening condition requiring immediate
medical treatment.
15

the emergency room.

Moreover, in December 2017, he developed an

eye infection that tested positive for methicillin-resistant
Staphylococcus aureus (MRSA), a type of staph bacteria that is
difficult to treat because it is resistant to many of the
commonly-used antibiotics.

As a result, his rehabilitative

therapies had to be stopped for several months.

In addition, he

developed chronic cellulitis, a painful bacterial skin infection,
in both lower legs that required several months of sustained
treatment.
Charles remains significantly debilitated.
assistance with most activities of daily living.

He requires
He can walk, but

only short distances and only with the aid of a walker.

When he

leaves the house for any purpose, he relies on a wheelchair to get
around.

He can tend to his own toileting needs but requires

assistance with bathing/showering.

Depending on the clothing, he

can dress himself, though he needs help with buttons.
cook, clean, or mow the lawn.

He cannot

He cannot drive and, because he

needs regular assistance and is at a high risk for falls, he
cannot be left alone.
Applicable Law
The FTCA authorizes suits for damages against the United
States for personal injury or death caused by a government
employee's negligence “under circumstances in which a private
person would be liable under the law of the state in which the
16

negligent act or omission occurred.”

Hannah v. United States, 523

F.3d 597, 601 (5th Cir. 2008) (citing 28 U.S.C. §§ 1346(b)(1),
2674).

State law controls liability for medical malpractice

claims under the FTCA; the court thus looks to Mississippi law for
the elements of plaintiffs’ claims.

Coleman v. United States, 912

F.3d 824, 829 (5th Cir. 2019).
Under Mississippi law, to establish a prima facie case of
medical malpractice, a plaintiff must prove the following
elements:

“(1) the existence of a duty by the defendant to

conform to a specific standard of conduct for the protection of
others against an unreasonable risk of injury; (2) a failure to
conform to the required standard; and (3) an injury to the
plaintiff proximately caused by the breach of such duty by the
defendant.”

Estate of Sanders v. United States, 736 F.3d 430,

435–36 (5th Cir. 2013) (quoting Hubbard v. Wansley, 954 So.2d 951,
956–57 (Miss. 2007)).

The court previously ruled via summary

judgment that in performing the drainage procedure on May 9, 2016,
Dr. Barchie breached the applicable standard of care by failing to
know where the tip of the trocar was at all times and as a result,
inserting the trocar through the abscess, through the liver and
the diaphragm and into the thoracic cavity, where it punctured the
lung, pericardium and heart.

Based on the record evidence, there

is no doubt that Dr. Barchie’s negligence proximately caused
injury to Charles.

As a direct result of the trocar entering the
17

pericardium and puncturing Charles’ heart, he experienced severe
pain, reportedly a “10" on a scale of 1 to 10; he required an
emergency sternotomy, major surgery that would not have been
necessary but for the trocar injury; and he was hospitalized in
the ICU, bedridden, for more than a week, which also would not
have occurred but for Dr. Barchie’s negligence.

Further, even

under the best of circumstances, recovery from a sternotomy
requires a period of rehabilitation/physical therapy; Charles’
were not the best of circumstances.
controverted.20

None of this is

There is, however, a significant dispute between

the parties as to the extent of injury proximately caused by Dr.
Barchie’s negligence.

Plaintiffs maintain that the long-term

deconditioning and debility and associated medical problems
Charles has experienced were proximately caused by the May 9, 2016
botched drainage procedure and the resulting shock and sternotomy,
while the Government contends that his problems were the result,
not of the trocar injury, but rather the recurrent abdominal
abscesses he had for nearly a year following his discharge from
Keesler.

This dispute was the principal focus of evidence at

trial.

20

The Government does not agree that Dr. Barchie breached
the standard of care and opposed plaintiffs’ motion for summary
judgment on that issue. However, the Government does not deny
that if Dr. Barchie did breach the standard of care, then Dr.
Barchie’s negligence resulted in at least some injury to Charles.
18

Proximate cause is comprised of cause-in-fact and
foreseeability.

City of Jackson v. Thornton, 94 So. 3d 1186, 1194

(Miss. Ct. App. 2011) (citation omitted).

An act or omission is a

“cause in fact” if it was “a substantial factor in bringing about
the injury, and without it the harm would not have occurred.”

Id.

(quoting Ogburn v. City of Wiggins, 919 So. 2d 85, 91 (Miss. Ct.
App. 2005)).

“‘Foreseeability means that a person of ordinary

intelligence should have anticipated the dangers that his
negligent act created for others.’”

Id. at 1194-95 (quoting

Ogburn, 919 So. 2d at 92).
Plaintiffs are not required to prove causation with certainty
but rather to a degree of reasonable medical probability.

Norman

v. Anderson Reg'l Med. Ctr., 262 So. 3d 520, 524 (Miss. 2019)
(citing Clayton v. Thompson, 475 So. 2d 439, 445 (Miss. 1985)).
That is, they must present evidence which establishes to a
reasonable medical probability that their alleged injuries were
caused by the defendant, i.e., to show that it is more likely than
not that the defendant’s negligence caused the harm or condition
for which they seek relief.

See The Univ. of Mississippi Med.

Ctr. v. Littleton, 213 So. 3d 525, 535–36 (Miss. Ct. App. 2016)
(“For the proximate-cause element, the plaintiff must introduce
evidence which affords a reasonable basis for the conclusion that
it is more likely than not that the conduct of the defendant was a
cause in fact of the result.

A mere possibility of such causation
19

is not enough.”) (internal quotation marks and citation omitted).21
Findings of Fact:
The court makes the following findings of fact.
Causation:
The court has carefully considered all the evidence and the
parties’ arguments, and finds that the trocar injury Charles
sustained on May 9, 2016 was a substantial factor in causing his

21

Where a plaintiff alleges that his medical provider
“failed to administer proper care and that the failure allowed an
already existing injury to deteriorate,” that is, in a lostchance-of-recovery case, to establish proximate cause, “the
plaintiff must prove that had proper care been administered then
it is probable, or more likely than not, that a substantially
better outcome would have resulted.” Griffin v. N. Mississippi
Med. Ctr., 66 So. 3d 670, 673 (Miss. Ct. App. 2011) (citation
omitted). “Stated differently, the plaintiff must show that,
absent malpractice, there is a greater than fifty-percent chance
that a substantially better result would have followed.” Id. If
plaintiffs had sued Dr. Barchie because of his failure to drain
the abscess, this would be the applicable standard; but that is
not the basis of their claim. Rather, they have sued Dr. Barchie
because, in the course of attempting to drain the abscess, he
negligently injured Mr. Brown by inserting the trocar too far and
puncturing Mr. Brown’s liver, lung, pericardium and heart.
Accordingly, this is not a lost-chance-of-recovery case. See
Estate of Sanders v. United States, 736 F.3d 430, 437 (5th Cir.
2013) (citation omitted) (in so-called “loss of chance” cases,
“where the injury resulted from an underlying disease and the
alleged malpractice took the form of a failure to cure, rather
than the results of ‘any positive effects of mistreatment,’” the
plaintiff must prove that it was probable, or more likely than
not, that the patient would have been helped by proper treatment);
Carrano v. Yale-New Haven Hosp., 279 Conn. 622, 660, 904 A.2d 149,
175 (2006) (claim that improper provision of medical treatment
affirmatively caused death of decedent was not loss of chance
claim as it was based on affirmative act causing harm rather than
a negligent failure to act). Even if it were, however, the court
would find the plaintiffs had sustained their burden to prove
causation. See infra p.p. 20-22.
20

extreme and long-term debility and associated medical problems
that continue to plague him to this day.

Charles walked into

Keesler on May 8 a vigorous, independent individual with an
abdominal abscess that for a couple of weeks had caused him some
relatively minor pain and discomfort.

In the court’s opinion, it

is likely that, but for the trocar injury, the abscess would have
been drained – apparently successfully – and in a couple of days,
Charles would have recovered and returned to his home and to his
life as it was.

However, because the abscess was likely caused by

retained gallstones from his earlier cholecystectomy, the abscess
would have recurred and begun causing him pain and discomfort,
though probably not until some weeks or months later.
did, he would have gone back to Keesler.

When it

At that point, his

doctors might have begun to suspect he had retained gallstones and
opted to go ahead and perform surgery to remove them, in which
case he would have been discharged within several days and
returned home to his life, fully recovered.

Alternatively, they

might have decided to try another drainage procedure, which would
again have seemed successful, at least initially; but because the
source of the infection had not been removed, the abscess would
have recurred.

And when it did, his doctors at Keesler likely

would have performed surgery and found and removed the retained
gallstones, and he would have returned home in a matter of days,

21

with no adverse sequella.

The evidence suggests that this is the

course of events that would reasonably have been expected.
This entire scenario, however, is necessarily hypothetical,
because the May 9 drainage procedure attempted by Dr. Barchie did
not go as expected.

Instead, through his negligence, Charles

suffered a traumatic injury, causing shock and resulting in an
emergency sternotomy, with resulting complications from which he
has not and will never fully recover.
Dr. Hauser, plaintiffs’ medical expert who specializes in
critical care, opined that the injury and resulting shock
“elicited a SIRS response, or a systemic inflammatory response,”
which led to “persistent inflammation, immunosuppression, and
catabolism syndrome,” or “PICS”, a recently-observed syndrome in
which people with major injuries or major inflammatory events go
on to be sick for extended periods of time, and “seem to never get
getter.”

They have catabolism, i.e., protein muscle

breakdown/wasting, causing severe weakness and debility.

And they

have a tendency to get repeated bouts of infection because they
have an immunosuppression.
Inflammation is the immune system's response to an
inflammatory event, such as infection or trauma.

SIRS occurs when

there is systemic inflammation, i.e., throughout the body.

SIRS

can be caused by infection (in which case it is sepsis) or by
trauma; it can manifest, for example, by a rapid heart rate, rapid
22

breathing, low blood pressure and/or fever.

Persistent SIRS, as

explained by Dr. Hauser, can lead to persistent inflammation and
immunosuppression and catabolism, which is what he maintains
occurred in Charles’ case.

Dr. Hauser testified that as a result

of the trocar injury, Charles had significant, prolonged SIRS
which led to PICs, so that he had prolonged critical illness which
became self-sustaining; he got sick and just stayed “sick and sick
and sick.”

Dr. Hauser expressed certainty that the trocar injury

caused generalized immunosuppression, and opined that his debility
was the result of the catabolism aspect of the PICS.

In short,

what happened, according to Dr. Hauser, was that Charles
experienced the trocar injury, shock and resulting sternotomy, and
then, as a direct result,
He then had a period of prolonged critical illness
during which he never really got better and never got
well enough to handle his underlying infection. He also
still had the infection in the subphrenic space which
had not been drained.
So he had all of those things, and he never really got
well enough to be cared for them more aggressively.
In the court’s opinion, it is manifest from the evidence that
the abscess Charles presented with on May 8, 2016 was not the
cause of the immediate and precipitous decline and the persistent
debility he experienced in the weeks immediately following the
botched drainage procedure and resulting sternotomy.

The obvious

cause of this decline and debility was the trocar injury.

Indeed,

when he was discharged from Keesler, Keesler considered that the
23

abscess was nearly gone, and yet Charles was too weak even to
stand on his own.22

The infection could not have been the cause of

his debility at that point.
The infection/abscess did return, of course.

However, the

court is persuaded from the evidence, including Dr. Hauser’s
testimony, that Charles, owing principally to the trocar injury,
was immunosuppressed, and as a result, the infections/abscesses he
experienced following his discharge from Keesler developed more
rapidly, were more severe, caused complications that were not
otherwise likely and, consequently, were more difficult to treat
appropriately and effectively.

The court does believe, contrary

to Dr. Hauser’s view, that retained gallstones were the likely
source of Charles’ abscesses,23 and therefore, as Drs. Slakey,
22

Dr. Shannon Orr, the government’s medical expert, was
under the impression that when Charles left Keesler, he “was
walking about three hours a day with physical therapy”. Charles
was not “walking three hours a day” when he left Keesler; he was
barely standing for even a minute, and even then, required
assistance. Given Charles’ actual condition, he could not
reasonably have been expected to have recovered sufficiently to
return home in under two weeks.
23

Dr. Hauser was dubious of this. He pointed out that
retained gallstones rarely cause complications, and he noted that
the lab results on the material removed by Dr. Slakey did not
contain evidence of bilirubinate matter. He suggested that what
may have appeared to Dr. Slakey to be gallstones could have been
any number of other things, such as dead bone or other debris.
However, Dr. Slakey, a highly-regarded surgeon, was not equivocal
in his testimony that during the surgery to remove the abscess, he
removed what he was able to affirmatively identify as gallstones.
The court credits his testimony.
Dr. Slakey also removed part of an infected rib during the
surgery which several witnesses, including Dr. Hauser, agreed
24

Penico and Dr. Shannon Orr (the Government’s medical expert)
agreed, he would have continued to experience abscesses/infection
until the retained gallstones were removed.

That is, even had the

trocar injury never occurred, Charles would have continued to
develop abdominal abscesses on account of the retained gallstones.
But in the court’s opinion, while long-term infection can cause
debility and a variety of medical problems, it is unlikely Charles
would have experienced the debility and medical complications he
suffered had it not been for the trocar injury.24

His unrelenting

infections no doubt contributed to his debility and associated

could have been the source or a source of the recurrent abscesses.
No witness could state definitively how or when the rib became
infected. It could have been at the time of the May 9 drainage
procedure or during some other drainage procedure, as the result
of contact between the rib and a medical instrument carrying
bacteria; or it could have occurred in some other way. There is
no way to know. The witnesses agreed, though, that to prevent
further infection, the rib had to be removed; and this could only
be done surgically.
24

Dr. Penico testified that a patient with a normal immune
system would have problems with infected retained gallstones but
that “it’s more severe in people who can’t fight it off”, i.e.,
who are immunosuppressed.
25

medical problems,25 but in the court’s opinion, they were not the
proximate cause.26
Noneconomic Damages
Under Mississippi law, in addition to recovery for their
economic loss, plaintiffs in an action for injury based on

25

The Government points out that Charles had a number of
preexisting conditions, including COPD, tremors, seizures or
seizure-like activity, subdural hematoma, osteoarthritis, shingles
and cancer, and appears to suggest that some or all of these may
have contributed to his debility. However, while one or more of
these conditions may have required medical treatment and may have
complicated his recovery, none can reasonably be found to have
proximately contributed to his long-term debility.
26

The Government has insinuated that Charles’ infection
from retained gallstones persisted as long as it did because the
parade of doctors who treated him after he left Keesler failed to
provide timely and appropriate treatment. It has suggested, for
example, that (1) doctors should have investigated and treated
what appeared on a May 20, 2016 CT scan as a possible abscess, as
a result of which the abscess went untreated for more than six
weeks; and (2) doctors should have recognized far sooner that
surgery was needed to remove the underlying source of the
infection.
On a pretrial motion by plaintiffs, the court ruled that
since the Government did not raise allocation of fault as an
affirmative defense, then it was precluded from presenting
evidence that Charles’ care following his discharge from Keesler
was mismanaged. Even if evidence did show that Charles’ care was
mismanaged and that his condition would have improved sooner had
the abscess been treated more timely and effectively, i.e., by
surgical intervention, that would not absolve the Government of
liability. There are circumstances in which negligence by third
parties may constitute an intervening cause that will break the
chain of causation. See Causey v. Sanders, 998 So. 2d 393, 405
(Miss. 2008). Even if the facts supported application of this
defense – they do not-- the Government has not raised this
defense, and in fact, has repeatedly denied that it seeks to prove
negligence on the part of Charles’ other medical providers.
26

malpractice or breach of standard of care against a provider of
health care, may recover noneconomic damages
arising from death, pain, suffering, inconvenience,
mental anguish, worry, emotional distress, loss of
society and companionship, loss of consortium, bystander
injury, physical impairment, disfigurement, injury to
reputation, humiliation, embarrassment, loss of the
enjoyment of life, hedonic damages, other nonpecuniary
damages, and any other theory of damages such as fear of
loss, illness or injury.
Miss. Code Ann. § 11–1–60(1)(a).

However, by statute, plaintiffs

(collectively) may not be awarded more than $500,000.00 for
noneconomic damages.

See Miss. Code. Ann. § 11-1-60 (establishing

$500,000 cap on noneconomic damages); cf. Estate of Klaus ex rel.
Klaus v. Vicksburg Healthcare, LLC, 972 So. 2d 555, 559 (Miss.
2007) (in wrongful death action, interpreting statute capping such
damages to mean that “the plaintiffs” – plural, not singular shall not be awarded more than $500,000 for noneconomic damages).
In the case at bar, the court, if permitted, would award each
plaintiff noneconomic damages of at least $500,000, but concludes
that it is limited to awarding plaintiffs, collectively, $500,000.
As a result of his injuries, Charles spent more than a year of his
life in hospitals and long-term care facilities.

He can no longer

golf, mow the lawn, sing in the choir – all the things that used
to bring him enjoyment.

He cannot drive; he cannot walk, bathe or

dress without assistance; he cannot be left alone.
his independence.

He has lost

In Trudy’s words, “His world has shrunk.

27

It’s

now about when to take medicine, when to have a doctor’s
appointment....”

His situation may improve, but not dramatically.

As for Trudy, for several years now, she has been relegated
to the role of full-time care-giver.

More than once during their

ordeal, when Charles was at his worst, she was confronted with the
very real prospect of Charles’ death; hospice was recommended.
Trudy retired with plans of traveling with and enjoying time spent
with her husband.

She cannot even have an in-depth conversation

with him anymore.

As she put it, “I’ve lost all of that.

I’ve

lost my favorite person, you know, my traveling companion, my
husband of 46 years.

I never thought it would be like this.”

Conclusions of Law
The court concludes that Charles and Trudy Brown have
sustained significant injuries proximately caused by the negligent
acts or omissions of Dr. Matthew Barchie, an employee of the
United States of America acting within the scope of his
employment, under circumstances where the United States of
America, if a private person, would be liable to plaintiffs under
the laws of the state of Mississippi.

Judgment will be entered

for plaintiffs in an amount to be determined after the parties
have had an opportunity to fully brief the Tricare issue
identified in footnote 1.

Plaintiffs shall have fourteen days

from this date within which to submit their memorandum addressing

28

that issue, following which the Government, if it chooses, may
submit a rebuttal memorandum within seven days thereafter.27
SO ORDERED this 26th day of November, 2019.

/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE

27

The Government addressed the Tricare issue in its
proposed findings and conclusions of law. Plaintiffs did not.
29