v. Pan

Filing 105

FINDINGS OF FACT AND CONCLUSIONS OF LAW: IT IS HEREBY ORDERED that plaintiff Richard Harts claims against defendant United States of America are DISMISSED. An appropriate judgment will accompany these Findings of Fact and Conclusions of Law. Signed by District Judge Charles A. Shaw on 9/19/2012. (KSM)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

RICHARD HART,
Plaintiff,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.

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No. 4:09-CV-1946 CAS

FINDINGS OF FACT AND
CONCLUSIONS OF LAW
This matter is before the Court following a four-day bench trial. The above-captioned cause
of action was filed pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671 et seq.
The plaintiff, Richard Hart, claims he received improper medical care when he was a patient at the
St. Louis Veterans Administration Medical Center – John Cochran Division. Having considered the
pleadings, trial and deposition testimony, and exhibits, the Court hereby makes and enters the
following findings of fact and conclusions of law in accordance with Rule 52 of the Federal Rules
of Civil Procedure.
I. Findings of Fact
A.

Plaintiff’s medical background

Plaintiff Richard Hart suffers from cervical dystonia, an involuntary movement disorder that
causes his neck to twist and turn to the side resulting in pain and discomfort. Joint Stipulation of
Fact (“JSF”). Plaintiff has suffered from cervical dystonia for over ten years. There is no cure for
cervical dystonia. There is only treatment for the symptoms. Trial Tr., Vol. I at 60-61.

In addition, Mr. Hart suffers from chronic obstructive pulmonary disease (“COPD”), also
know as emphysema; migraine headaches; alcohol abuse; gastroesophageal reflux disease
(“GERD”); and degenerative disease in the cervical region at C5, C6 and C7. Trial Tr., Vol. II at
15-16; 18; Pan Video Dep. at 39; Def. Ex. Y.
B.

Botulinum toxin injections

An effective treatment for cervical dystonia is onabotulinumtoxinA (“Botox”) and other
botulinum toxin injections. Pan Video Dep. at 12; Trial Tr., Vol. I at 57, Trial Tr.,Vol. III at 8.
Botox, which is administered through localized injections, relaxes the muscles and alleviates the
twist and tilt. Trial Tr., Vol. III at 8. More specifically, Botox blocks the muscle from contracting
by inhibiting the release of neurotransmitters from the nerve terminal to the muscle. Trial Tr., Vol.
IV at 6; Pan Video Dep. at 13. While Botox is an effective treatment, it is transient, which means
its effect only lasts weeks and possibly months. Trial Tr., Vol. I at 14; Trial Tr., Vol. III at 24. A
cervical dystonia patient receiving Botox treatments must return to his or her doctor to receive
additional injections at various intervals.
Determining Botox dosages for the treatment of cervical dystonia is based on a doctor’s
individualized assessment of the patient’s clinical situation. Trial Tr., Vol. I at 62, 64; Trial Tr.,Vol.
IV at 7. While there are recommended dosages for Botox injections, a doctor determines the proper
Botox dosage for a particular patient using the recommended dose ranges, while at the same time
taking into account the patient’s clinical condition, the severity of the pain, the turning of the head,
and the patient’s muscle mass. Trial Tr., Vol. I at 17-18; Pan Video Dep. at 4-6, 22-23.
The time between Botox treatments will also vary. As stated above, Botox is a transient
drug, and medical providers will administer an additional treatment once the prior treatment is no

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longer effective in alleviating a patient’s symptoms. There was testimony that the average interval
between Botox injections for cervical dystonia is twelve weeks. Pan Video Dep. at 78. But twelve
weeks is merely an average. There is nothing in the Botox package insert that recommends a 12week interval for treating cervical dystonia with Botox. Trial Tr., Vol. I at 18; 66. As discussed in
more detail below, the experts in this case disagree as to how quickly the effects of Botox can wear
off. Consequently, they also disagree as to what should be the minimum amount of time between
Botox treatments.
While Botox is often used to treat cervical dystonia, it does have many listed side effects.
Dysphagia, or difficulty swallowing, is a commonly reported adverse event following treatment of
cervical dystonia patients with Botox. Def. Ex. B; Pl. Ex. 5; Pan Video Dep. at 19-21; Trial Tr.,
Vol. I at 24-26, 82. The Botox package insert also warns that subsequent to the finding of
dysphagia, patients have developed aspiration pneumonia. Pl. Ex. 5.
C.

Dr. Pan’s Treatment

Dr. Yi Pan was employed at the St. Louis Veterans Administration Medical Center – John
Cochran Division at the time she administered Botox to Mr. Hart. JSF; Pan Video Dep. at 13. Dr.
Yi Pan is board certified in Neurology and Clinical Neurophysiology and she has been using Botox
to treat patients with cervical dystonia since 1997. Pan Video Dep. at 8.
Dr. Pan began treating Mr. Hart in 2003. Pan Video Dep. at 32. Dr. Pan was aware that prior
to the treatments Mr. Hart received in August and October 2007 – the treatments at issue in this case
– Mr. Hart had received Botox and other botulinum toxin injections to varying degrees of effect. Pan
Video Dep. at 32-34; Def. Exs. C, D, E, F and H.

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Dr. Pan administered a treatment of Myobloc, another botulinum toxin, to Mr. Hart on June
18, 2007. Pan Video Dep. at 40-41; Def. Ex. I. Following this treatment, Mr. Hart called Dr. Pan
and told her that his pain was little reduced and that he developed dry mouth, a known side effect
of Myobloc. Pan Video Dep. at 42-43. Mr. Hart returned to Dr. Pan on August 20, 2007. Dr. Pan
noted that Mr. Hart complained of neck and shoulder pain and spasticity. Pan Video Dep. at 48-49;
Def. Ex. J. She characterized Mr. Hart’s pain as constant. Pan Video Dep. at 49. After a discussion
with Mr. Hart about his prior treatment and after performing a physical examination of Mr. Hart, Dr.
Pan recommended that Mr. Hart receive 300 units of Botox instead of the Myobloc. Pan Video Dep.
at 44-45; Def. Ex. J. Dr. Pan discussed the Botox treatment with Mr. Hart. She informed him that
the treatment was transient, and that there were potential side effects including lack of improvement,
pain, infection, allergic reaction, dry mouth and dysphagia. Mr. Hart consented to the Botox
treatment. Pan Video Dep. at 46; Def. Ex. J. Dr. Pan injected plaintiff with 300 units of Botox on
August 20, 2007. The Botox doses for each muscle injected were within the recommended dosing
guidelines. Pan Video Dep. at 47; Def. Ex. G; Trial Tr., Vol. I at 75.
On October 5, 2007, Mr. Hart returned to Dr. Pan in a great deal of pain. Pan Video Dep.
at 49; Def. Ex. K. Dr. Pan performed a physical examination of Mr. Hart and determined that he
did not have any muscle weakness, instead his head was still turned and had a tilt to the left
indicating that his muscles were still contracting due to cervical dystonia. Pan Video Dep. at 50, 52;
Def. Ex. K. Dr. Pan documented that Mr. Hart told her that the treatment on August 20, 2007,
provided him some relief and less dry mouth, but about two weeks prior his neck spasticity had
returned. Pan Video Dep. at 50-51; Def. Ex. J. When Dr. Pan examined Mr. Hart on October 5,
2007, she noted that because of his head and neck position, it was her opinion that the Botox dose

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administered on August 20, 2007, either had worn off or only had a partial effect. Pan Video Dep.
at 59.
Dr. Pan recommended an increased dose of 400 units of Botox. She believed that the prior
dose might have been too low. And in order to avoid frequent injections, Dr. Pan recommended that
Mr. Hart received an increased dose, so that the effect might last longer and reduce his pain. Pan
Video Dep. at 53; Def. Ex. K. Dr. Pan again discussed the Botox treatment with Mr. Hart. She
informed him that the treatment was transient, and that there were potential side effects including
lack of improvement, pain, infection, allergic reaction, dry mouth and dysphagia. Mr. Hart
consented to the Botox treatment. Pan Video Dep. at 53-54; Def. Ex. K. Dr. Pan injected plaintiff
with 400 units of Botox on October 5, 2007. The Botox doses for each muscle injected were within
the recommended dosing guidelines. Pan Video Dep. at 54; Def. Ex. G; Trial Tr.,Vol. I at 75; Pl.
Ex. 46.
Following the Botox treatment on October 5, 2007, plaintiff suffered a number of serious
side effects, including dysphagia that was so severe that it required the insertion of a feeding tube.
Plaintiff also suffered from aspiration pneumonia that required four thoracentesis procedures and
surgical decortication in February 7, 2008. Pl. Exs. 15, 53, 54, 56, and 57; Trial Tr.,Vol. II at 6.
Furthermore, plaintiff claims that he still suffers from dysphagia to this day as a result of the Botox
injections. In addition, he testified that he continues to experience aspiration requiring him to sleep
upright, and he has shortness of breath.
D.

Expert Testimony

Plaintiff retained Robert J. Friedman, M.D., to testify regarding the standard of care and
causation. Dr. Friedman is a neurologist and pain specialist, who practices at the Headache and Pain

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Center in West Palm Beach, Florida. Trial Tr., Vol. I at 6. Dr. Friedman is board certified in
Neurology, Pain Medicine, and Neuromuscular Medicine. Id. at 7. Dr. Friedman testified that he
has used Botox injections for the treatment of cervical dystonia.
Dr. Friedman testified generally about how Botox and other botulinum toxin injections work
when they are injected into a patient’s body. He stated that once injected it takes a few days for a
botulinum toxin to take full effect, and “then it lasts for a number of weeks to months.” Trial Tr.,
Vol. I at 14. More specifically, Dr. Friedman testified that Botox’s maximum effect starts around
two weeks, and it begins to wear off around three to four months. Id. at 15. When asked when was
the soonest he had seen the effects of Botox wearing off, Dr. Friedman responded, “Well, it depends
how you define that. Whether you’re talking about completely wearing off or you’re talking about
assessing pain or dystonia, spasm of the muscle, but the latest I’ve seen a clear response of pain and
movement and had it wear off that I was sure it was wearing off of the Botox was around 10 or 11
weeks.” Id. at 15-16.
Dr. Friedman also offered his opinion about Botox dosing and the requisite amount of time
between treatments. Friedman testified that the average dosage for Botox injections is 200 units,
but that amount can vary, and the administration of 400 units can be appropriate. He testified that
he has injected patients above 400 units. Trial Tr., Vol. I at 84. As for the interval between
treatments, Dr. Friedman testified that although it can vary, the average interval for treating patients
with Botox with cervical dystonia is twelve weeks. He also testified that he has never treated
patients with therapeutic dosages of Botox in intervals of less than eight weeks. Trial Tr., Vol. I at
43, 65.

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When asked to give an opinion as to Dr. Pan’s course of treatment, Dr. Friedman testified
that injecting Botox within a couple weeks short of the 12-week average interval is not necessarily
a breach of the standard of care, but injecting Botox at six weeks “was too risky.” Id. at 69-70. He
further testified that Dr. Pan knew or should have known that the biochemical effect of Botox had
not worn off, which would make Mr. Hart more prone to the side effects of Botox. Id. at 48. As for
the course of treatment Dr. Pan should have taken, Dr. Friedman testified that further Botox
injections could have been considered, but they should have been delayed. Id.
Defendant retained Jeffrey Gelblum, M.D., to testify regarding the standard of care and
causation. Trial Tr., Vol. III at 4-5. Dr. Gelblum is a neurologist practicing in Miami, Florida, who
is board certified in Neurology by the American Board of Psychiatry and in Neurology and
Neuromuscular Disease by the American Board of Electrodiagnostic Medicine. Trial Tr., Vol. III
at 5-6; Def. Ex. RR. Dr. Gelblum has a large practice and treats cervical dystonia patients with
Botox about three times a week. Trial Tr., Vol. III at 8.
Dr. Gelblum testified that Botox is transient and that its effect typically wears off, on
average, after a couple of months, although its effects can be shorter or longer. Trial Tr., Vol. III at
15. Dr. Gelblum also reviewed Mr. Hart’s medical records, and he testified that the care Dr. Pan
provided to plaintiff for the treatment of cervical dystonia was “completely appropriate.” Trial Tr.,
Vol. III at 15-16. According to Dr. Gelblum, Mr. Hart presented on October 5, 2007 with
“documented complaints of a recurrence of this well-documented diagnosed disorder.” Trial Tr.,
Vol. III at 15. Mr. Hart responded to prior Botox treatments and “[b]asically there are no other
treatment options based upon his specific clinical presentation.” Trial Tr., Vol. III at 15-16. Dr.
Gelblum testified that given Mr. Hart’s presentment on October 5, 2007, which indicated that the

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symptoms of cervical dystonia had returned, he would have provided the same treatment Dr. Pan
administered. Trial Tr., Vol. III at 25. It is Dr. Gelblum’s opinion within a reasonable degree of
medical certainty that the care and treatment Dr. Pan provided on both August 20, 2007, and October
5, 2007 were within the standard of care for a neurologist. Trial Tr., Vol. III at 25-26. Dr. Gelblum
testified that it was within the “[c]ommunity standard of care, reasonable, related, medically
necessary, and without alternative option.” Id.
Plaintiff also retained Gary Salzman, M.D., a physician board certified in Internal Medicine,
Pulmonary Disease and Critical Care Medicine to testify. Trial Tr., Vol. I at 93. Dr. Salzman
testified that in his opinion Mr. Hart currently suffers from dysphagia, or trouble swallowing, as a
result of the Botox from October 2007. Trial Tr., Vol. I at 105. In addition, Dr. Salzman testified
that in his opinion Mr. Hart suffers from an increase in shortness of breath due to the Botox he
received in October 2007. Trial Tr., Vol. I at 105.
Dr. Salzman, however, has no experience administering Botox. Id. at 110. Dr. Salzman
admitted that according to the literature he reviewed for this case, “generally for most patients, the
[side] effects should wear off in three to four months.” Trial Tr., Vol. I at 107-08. Dr. Salzman
could not find any articles documenting any long term effects from Botox and recognized that there
is no “real data on that.” Trial Tr., Vol. I at 109. See also Trial Tr., Vol. I at 146. Dr. Salzman’s
opinion is based on the “temporal connection” between Mr. Hart’s symptoms and the Botox. Trial
Tr., Vol. I at 110-11.
Dr. Salzman conceded that the modified barium swallow test is a good indicator of
someone’s ability to swallow. Trial Tr., Vol. I at 114. Dr. Salzman conceded that Mr. Hart had
several barium swallow tests that showed no objective problems with Mr. Hart’s ability to swallow.

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Trial Tr., Vol. I at 113. Dr. Salzman also conceded that dysphagia can be caused by other illnesses
including cervical dystonia itself and GERD. Trial Tr., Vol. I at 124, 127-28.
There is nothing in medical literature to support Dr. Salzman’s opinion that Mr. Hart’s
claims of continued shortness of breath can be attributed to the Botox. Trial Tr., Vol. I at 136-37.
Dr. Salzman admitted that the pulmonary function test is an objective test that shows someone’s
breathing difficulty. Trial Tr., Vol. I at 137. Dr. Salzman agreed that Mr. Hart’s total lung capacity
had essentially not changed since he received the Botox treatments at issue. Trial Tr., Vol. I at
138-39; Def. Ex. BBB. Dr. Salzman also agreed that Mr. Hart’s FEV1 values – which measures a
patient’s forced expiratory volume in one (1) second – were virtually unchanged. Trial Tr., Vol. I
at 139-40; Def. Ex. BBB.
Defendant retained Stephen Steinberg, M.D., to testify regarding causation. Trial Tr., Vol.
IV at 2. Dr. Steinberg is board certified in Internal Medicine, Hematology, Oncology and
Gastroenterology, and board eligible in Nutrition. Trial Tr., Vol. IV at 3; Def. Ex. RR.
Dr. Steinberg opined that it would be very difficult to conclude that plaintiff’s current
symptoms were the result of the long-term effects of Botox. Trial Tr., Vol. IV at 5. Specifically,
according to Dr. Steinberg “there’s no evidence, no explanation and no data that suggests that his
ongoing subjective complaint represents true dysphagia [] and certainly no evidence that it could or
does represent a complication of Botox.” Trial Tr., Vol. IV at 19-20. Dr. Steinberg found no
evidence that the 2007 Botox injections caused long-term dysphagia, and found no evidence that Mr.
Hart even has dysphagia as measured by objective tests. Trial Tr., Vol. IV at 10-11.
According to Dr. Steinberg, Mr. Hart suffered from an episode of dysphagia after the
October 5, 2007 Botox injections, a known and common side effect of Botox. In addition, this

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episode resulted in aspiration pneumonia, also a known side effect of Botox. Mr. Hart had a pleural
effusion related to that and underwent a decortication, but there were no ongoing events. Trial Tr.,
Vol. IV at 20-21, 36-37. Further, Mr. Hart’s pleural effusion did not cause any long-term pulmonary
function issue as evidenced from the results of the pulmonary function tests performed before and
after the Botox treatments, which were essentially identical. Trial Tr., Vol. IV at 21.
Dr. Steinberg also noted that Mr. Hart had numerous swallow tests that were determined to
be normal, including three bedside swallow tests and five barium swallow tests from multiple
providers. Trial Tr., Vol. II at 32-50; Trial Tr., Vol. IV at 12-13; Def. Exs. BBB, DD, BB, HH, II,
JJ, AAA.
E.

Damages

All of Mr. Hart’s medical expenses for the relevant time period were paid by the United
States of America. Plaintiff has no claim for past or future medical expenses related to his care.
JSF; Trial Tr., Vol. II at 11-12. Mr. Hart also has no claim for any past or future lost wages as a
result of the care provided by Dr. Pan. JSF; Trial Tr., Vol. II at 4.
II. Conclusions of Law
This Court has jurisdiction pursuant to 28 U.S.C. § 1346(b). In a case filed pursuant to the
FTCA, the court applies the law of the state in which the acts complained of occurred. Goodman
v. United States, 2 F.3d 291, 292–93 (8th Cir.1993) (citing 28 U.S.C. § 1346(b)). In this case,
plaintiff’s claims arise from the treatment he received at the St. Louis Veterans Administration
Medical Center. Therefore, Missouri law applies.
Plaintiff has alleged a claim for medical malpractice. Under Missouri law, in order to
establish a claim for negligence, a plaintiff must prove: “(1) the existence of a duty on the part of

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the defendant to protect the plaintiff from injury, (2) a failure of the defendant to perform that duty,
and (3) an injury proximately caused by the defendant’s failure.” Blevens v. Holcomb, 469 F.3d
692, 694 (8th Cir. 2006) (citing Krause v. U.S. Truck Co., 787 S.W.2d 708, 710 (Mo.1990) (en
banc)). In a medical malpractice case, the plaintiff must show that the defendant failed to use “that
degree of skill and learning ordinarily used under the same or similar circumstances by members of
defendant’s profession.” Id. (quoting Swope v. Printz, 468 S.W.2d 34, 39 (Mo. 1971)). In most
instances, “a plaintiff cannot state a prima facie case of medical negligence without expert testimony
describing how the defendant’s conduct fell below the applicable standard of care.” Id. (citing Hart
v. Steele, 416 S.W.2d 927, 931-32 (Mo. 1967)). The specific duty required of the defendant is
defined by the profession, and an “expert witness is generally necessary to tell [the fact finder] what
the defendant should or should not have done under the particular circumstances of the case and
whether the doing of that act or the failure to do that act violated the standards of care of the
profession.” Ostrander v. O’Banion, 152 S.W.3d 333, 338 (Mo. Ct. App. 2005). Once the duty is
established by expert testimony, whether a physician was negligent under the evidence presented
becomes a question of fact for the fact finder. Lashmet v. McQueary, 954 S.W.2d 546, 551 (Mo.
Ct. App. 1997). The standard of proof in civil actions is a preponderance of the evidence. State ex
rel. Amrine v. Roper, 102 S.W.3d 541, 548 (Mo.2003) (en banc); Bonney v. Envtl. Eng’g, Inc., 224
S.W.3d 109, 120 (Mo. Ct. App. 2007). Thus, in order to prevail in this case, plaintiff must prove,
by a preponderance of the evidence, that Dr. Pan beached the standard of care, and that the breach
caused his injuries.
Plaintiff claims Dr. Pan was medically negligent in treating his cervical dystonia. Plaintiff
argues Dr. Pan breached the applicable standard of care by administering to plaintiff Botox

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injections that were too high in dose and too close in time. It is undisputed that targeted injections
of Botox are a recognized method for treating the symptoms of cervical dystonia. It is also
undisputed that Dr. Pan injected plaintiff with 300 units of Botox on August 20, 2007, and that
plaintiff returned to her clinic, 46 days later, on October 5, 2007, complaining of pain. After
examining plaintiff, Dr. Pan injected plaintiff with 400 additional units of Botox. The issue for the
Court to decide as the finder of fact in this case is whether Dr. Pan violated the standard of care by
employing this course of treatment.
The Court finds that the evidence does not support plaintiff’s contention that the dosages of
Botox were too high. Plaintiff’s own expert testified that 300 units and 400 units of Botox were
within the acceptable dosage range for treatment of cervical dystonia. The 400 unit dose was on the
higher end of the range, but it was a recommended dose for treatment of cervical dystonia at the
time. The Court finds Dr. Pan did not breach the standard of care based on the amount of Botox she
injected.1
The real contested issue in this case is whether the time interval between the two Botox
treatments was too short. The experts disagreed as to the time it takes for the pharmacological
effects of Botox to wear off. Consequently, they disagreed as to what is a safe interval between the
administration of Botox injections.

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Plaintiff argues that Dr. Pan has all but admitted that she breached the standard of care. Plaintiff
testified, as did his wife, that during his first visit to Dr. Pan following his bouts of pneumonia, Dr.
Pan exclaimed that she had overdosed plaintiff with Botox. In her testimony, Dr. Pan disputes that
she made any such statement. The Court credits the testimony of Dr. Pan over the testimony of Mr.
and Mrs. Hart. Mr. and Mrs. Hart both have more of a direct financial interest in the outcome of this
case. In addition, Mr. Hart admitted to drug use that affects his memory, and he was convicted of
a felony for misrepresentation to a senior. But even if the Court were to credit the Harts’ testimony,
the alleged statement does not prove plaintiff’s claim. Dr. Gelblum, an expert in the field, testified
that Dr. Pan’s treatment was completely appropriate and she did not breach the standard of care.
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Dr. Friedman and Dr. Gelblum both testified that the effects of Botox are transient. Dr.
Friedman, however, testified that Botox remains in the body’s system for at least two months.
Therefore, according to Dr. Friedman, it is too risky to administer a second dose of Botox in an
interval less than eight weeks, because there is a risk of cumulative dosing and an increased chance
of adverse side effects. Dr. Friedman, like Dr. Pan, testified that the average interval between Botox
injections is twelve weeks. He further testified that administering a second dosage of Botox within
six weeks was “too risky,” and the shortest interval he has administered treatment was eight weeks.
Relying on Dr. Friedman’s testimony, plaintiff claims that Dr. Pan failed to meet the requisite
medical standard of care because she injected him with the second dose of Botox in an interval that
was less than eight weeks.
Dr. Friedman’s testimony was contradicted by the testimony of Dr. Gelblum. Dr. Gelblum
testified that the effects of Botox last approximately eight weeks, but for some patients it lasts
longer, and for others it is shorter. According to Dr. Gelblum, Dr. Pan’s administration of 300 units
of Botox on August 20, 2007, and 400 units of Botox on October 5, 2007, was within the standard
of care and completely appropriate under the circumstances. He testified that had plaintiff presented
to him on October 5, 2007, complaining of pain, he too would have injected him with more Botox,
as there were no other effective treatment options.
The time it takes for the effects of Botox to wear off is significant in this case because when
Mr. Hart returned to Dr. Pan on October 5, 2007, it is undisputed that he was in pain. When the
doctor physically examined Mr. Hart on October 5, 2007, 46 days after the previous injections, she
documented that Mr. Hart’s cervical dystonia symptoms had returned – meaning she believed that
the effect of the previous Botox injections had worn off. After reviewing the medical records and

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taking into account Mr. Hart’s symptoms as described, Dr. Gelblum agreed with Dr. Pan’s
assessment. Plaintiff argues, however, that the effect of the pervious Botox injections could not
have worn off due to the timing. According to Dr. Friedman, the pharmacological effect of the
Botox administered on August 20, 2007, would not have worn off in such a short period of time.
Based on Dr. Friedman’s testimony, plaintiff argues that his reports of pain on October 5, 2007, and
two to three weeks prior, were most likely due to cervical degenerative disease or osteoarthritis in
the neck, not the return of his cervical dystonia symptoms.
Dr. Gelblum debunked plaintiff’s theory. Dr. Gelblum testified that Mr. Hart’s disk disease
had nothing to do with the muscles contracting with his cervical dystonia. Trial Tr., Vol. III at
18-19. In fact, according to Dr. Gelblum, any neurologist can differentiate between symptoms
relating to someone presenting with the symptoms of cervical dystonia versus someone with
degenerative disk disease. According to Dr. Gelblum, this is “neurology 101.” Id. at 19.
There are no real disputed material facts in this case, and liability comes down to conflicting
expert opinions. Dr. Friedman testified that Dr. Pan breached the standard of care by dosing Mr.
Hart with more Botox after the effects of the previous treatment had not worn off, putting him at
greater risk for the adverse side effects of the drug. He opines that it is likely Dr. Pan mistook the
symptoms of degenerative disk disease for the return of cervical dystonia symptoms. Dr. Gelblum,
on the other hand, testified that the effects of Botox can certainly wear off in 46 days, and had Mr.
Hart presented to him with the same symptoms – symptoms of cervical dystonia – under the same
circumstances he also would have injected Mr. Hart with 400 units of Botox. He testified that it is
simple for a trained neurologist to distinguish between the symptoms of degenerative disk disease
and those of cervical dystonia.

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After hearing the testimony of both experts and reviewing the exhibits and record in this
case, the Court finds Dr. Gelblum to be more credible than Dr. Friedman. Dr. Gelblum has more
experience with Botox, as he treats patients with Botox suffering from cervical dystonia on almost
a daily basis. The Court credits the opinion of Dr. Gelblum and finds that when Mr. Hart returned
to Dr. Pan on October 5, 2007, he exhibited symptoms of cervical dystonia, which indicated that the
effects of August 20, 2007 injections had worn off. Because Botox can wear off in less than eight
weeks, it was appropriate and reasonable to administer 400 units of Botox, which was within the
recommended dosage. There is no evidence that Dr. Pan exceeded any known recommended dosage
and frequency in administering the Botox to Mr. Hart on August 20, 2007 and October 5, 2007.
There were also conflicting expert opinions as to whether plaintiff’s current complaints of
pain and difficulty breathing and swallowing can be attributed to the Botox treatments Dr. Pan
administered on August 20, 2007, and October 5, 2007. Because Dr. Pan did not breach the standard
of care, the Court need not determine whether Mr. Hart’s alleged long-term injuries were caused by
his Botox treatments.
III. Conclusion
In sum, plaintiff has not established by a preponderance of the evidence that Dr. Pan
breached the standard of care by injecting him with 400 units of Botox approximately six weeks
after she had injected him with 300 units of Botox. Mr. Hart suffered well-known and welldocumented side effects of Botox, but they were not the result of Dr. Pan’s medical negligence.
Furthermore, because the Court finds Dr. Pan did not breach the standard of care, it need not decide
whether Mr. Hart’s complaints of long-term injuries were the result of Dr. Pan’s treatment.

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Accordingly,
IT IS HEREBY ORDERED that plaintiff Richard Hart’s claims against defendant United
States of America are DISMISSED.
An appropriate judgment will accompany these Findings of Fact and Conclusions of Law.

__________________________________
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 19th day of September, 2012.

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