Rivera-Nazario et al v USA

Filing 25

CONCISE MEMORANDUM FOR ORDER OF DISMISSAL of 1 Complaint. For the reasons contained in the attached Memorandum, judgment shall issue in favor of Defendant, dismissing the complaint filed in this case. Signed by Judge Jose A. Fuste on 09/16/2015.(mrj)

UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO

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JOAQUIN RIVERA-NAZARIO, et al.,
Plaintiffs,

Civil No. 14-1634 (JAF)

v.
UNITED STATES OF AMERICA (Veterans
Administration),
Defendant.
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CONCISE MEMORANDUM FOR ORDER OF DISMISSAL

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In Puerto Rico, as in many jurisdictions, in order to prevail on a medical

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malpractice claim, “a party must establish (1) the duty owed; (2) an act or omission

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transgressing that duty; and (3) a sufficient causal nexus between the breach and the

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harm.” Marcano Rivera v. Turabo Med. Ctr., 415 F.3d 162, 167 (1st Cir. 2005) (citation

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omitted). In the context of medical malpractice actions, the Puerto Rico Supreme Court

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has explained that a physician’s duty is “to offer his or her patient that medical care,

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attention, skill, and protection that, in the light of the modern means of communication

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and education, and pursuant to the current status of scientific knowledge and medical

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practice, meets the professional requirements generally acknowledged by the medical

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profession.” Santiago Otero v. Méndez, 1994 P.R.–Eng. 909,224, 1994 WL 909224

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(1994). To prevail, a plaintiff must prove by a preponderance of the evidence both that

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the standard of care was not met, and that the failure to meet an acceptable standard

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caused the harm. Id. In order to determine the applicable standard of care in a medical

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malpractice action and to make a judgment on causation, a trier of fact will generally

Civil No. 14-1634 (JAF)

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need the assistance of expert testimony. Pages-Ramirez v. Ramirez-Gonzalez, 605 F.3d

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109, 113 (1st Cir. 2010); see also Rojas–Ithier v. Sociedad Española de Auxilio Mutuo y

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Beneficencia de P.R., 394 F.3d 40, 43 (1st Cir. 2005) (citing Rolon–Alvarado v.

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Municipality of San Juan, 1 F.3d 74, 78 (1st Cir.1993); Lama v. Borras, 16 F.3d 473, 478

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(1st Cir.1994)).

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This Federal Torts Claim Act medical malpractice claim is against the Veterans

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Administration Hospital of Puerto Rico. It involves a 66-year-old veteran who had a

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recurrent inguinal hernia since at least 2003, was submitted to surgery on September 7,

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2012, to correct the recurrent inguinal defect, and later developed an infection that

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required the removal of a testicle. The following timeline is material to these findings.

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On May 19, 2011, surgery was carried out on Plaintiff Joaquín Rivera-Nazario to

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treat the latest recurrence of a right inguinal hernia which dated back to around 2003. It

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was an indirect hernia, meaning that a portion of the intestines or abdominal fatty tissues

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had protruded along the pathway made by the testicles during fetal development when

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they descended from the abdomen into the scrotum. Plaintiff fully recovered without any

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complications.

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On June 25, 2012, a general surgery consultation was made because Mr. Rivera

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presented once again with a large recurrent hernia on the right side. Consent was obtained

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for a hernia repair.

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On September 7, 2012, the large direct right inguinal hernia was this time repaired

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laparoscopically with mesh. The Board-Certified general surgeon was Dr. Mariluz

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Rivera-Hernández (hereinafter, Dr. Rivera). A direct hernia does not involve protrusion

Civil No. 14-1634 (JAF)

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into the pathway to the scrotum left by the testicles in the development of the fetus but

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forms due to weakness in the abdominal tissue. This is very important to understand the

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eventual scrotal problem that occurred. The defect was repaired with mesh because of the

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fragility of the lower abdominal wall and fasciae. The mesh reinforces the weak tissue to

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hopefully avoid or retard a recurrence. He was discharged on September 8, 2012, without

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known complications or hernia recurrence. Plaintiff gave informed consent of all possible

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complications out of a recurrent hernia repair, including the loss of a testicle.

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A Foley catheter placed at the time of surgery was withdrawn in the Urology

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Clinic on September 10, 2012. On that date, no extraordinary adverse finding was

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documented on the chart. Plaintiff was on his way to recovery at home.

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On September 28, 2012, Plaintiff visited the Surgical Clinic. While Mr. Rivera felt

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well and was recovering satisfactorily from his recent surgery, the surgeon who saw him,

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Dr. José Sorrentino-Brunisholz (hereinafter, Dr. Sorrentino) noted the apparent

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occurrence of another hernia which extended into the right hemi-scrotum. A CT-Scan

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was ordered, but not on an urgent basis. It was scheduled for October 29, 2012.

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Dr. Sorrentino also discussed with Mr. Rivera the possibility that, as a result of all those

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recurrences, he might lose a testicle because of his health status and the previous

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surgeries.

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On October 29, 2012, the CT-Scan was performed as scheduled. It was originally

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read as indicating another large inguinal hernia with a large right hydrocele (a collection

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of fluid around the testes). The great weight of the credible evidence confirms that the

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“delay” in performing the CT-Scan was not a notable dereliction in care. There was no

Civil No. 14-1634 (JAF)

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need to perform the CT-Scan on an emergency basis so that immediate treatment could

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have been administered. The standard of care regarding collection of fluid around the

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testes is to give it time for the body to absorb the fluid as part of the healing process.

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Expectancy, that is, waiting for the body to react, is the norm. For that reason, the CT-

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Scan did not have to be performed on a stat or expedited basis.

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Once the CT-Scan was available, Dr. Mariluz Rivera, the general surgeon, and

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Dr. Elizabeth Perazza, the staff urologist, met with the radiologist, Dr. José Rivera, to

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together look over the CT-Scan. They determined, on November 2, 2012, that, upon

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further review, there was no new hernia. Moreover, there was no connection between the

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repairs made during the recent surgery and the scrotal symptoms Plaintiff was reporting.

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As stated, the CT-Scan was not needed on an emergency basis but was simply indicated

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for future diagnostic purposes.

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Even if there was an early recurrence of a hernia or a scrotal lesion, it is the

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surgical standard of care to wait at least eight weeks, and sometimes a bit longer,

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following an operation before carrying out a subsequent procedure. This is due to the

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time needed for inflammation to subside and for the mesh used to incorporate into the

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body. Additional surgery done too soon makes dissection more difficult, increases the

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chance of damage to other structures, and raises the possibility of contaminating the

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mesh. Further, even placement of a drain for a hydrocele or hematoma is also not

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indicated in the presence of a recently-placed mesh. If there is indication to drain a

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hematoma or hydrocele, it would have needed to be done within forty-eight to seventy-

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two hours of formation. Otherwise, the blood cakes up and drainage is not possible.

Civil No. 14-1634 (JAF)

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During the first forty-eight to seventy-two hours post-surgery, there seemed to be no

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complaint that could indicate immediate drainage. And, Plaintiff did not inform

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Defendant of a possible hematoma or hydrocele until long after it had formed and the

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Defendant could have successfully drained it.

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It is also well recognized in surgery that pseudo-hernia recurrences with scrotal

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swelling is fairly common post-operatively. The standard of care is still to be

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conservative in treatment. About 90% of cases of swelling in the area of the former

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hernia or a scrotal hematoma resolve in from six to eight weeks without further

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intervention. In Mr. Rivera’s case, that did not happen.

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On January 25, 2013, Plaintiff visited the clinic at the VA Hospital with a request

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regarding his sexual life and complaining to urologist Dr. Elizabeth Perazza that the large

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right scrotal mass that had been observed in September was deviating his penis and made

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sex with his wife impossible. The emphasis placed by Plaintiff was not on the mass itself,

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but rather on the deviation of the penis, which he wanted to correct to improve his sexual

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performance. He sought treatment for it. An ultrasound of the scrotum showed a large

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complex extra-testicular structure that probably was a hydrocele. A hydrocele is a totally

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benign condition. He opted and consented to exploration of his right scrotum with

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removal of the mass, and was informed once again, and he specifically accepted, that the

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surgery might require removal of the right testicle of complications arose.

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On February 5, 2013, Dr. Perazza explored the veteran’s right scrotum. No hernia

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was present, but a cystic lesion was removed and sent for pathologic review. Dr. Mariluz

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Rivera, the general surgeon, assisted in the procedure. She noted no connection between

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the cystic mass and the repaired inguinal hernia. Dr. Perazza described the veteran’s

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testicles as being atrophic, a condition related to the multiple interventions which place

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stress on that reproductive part of the body. Each time there is inguinal hernia or surgery

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in the scrotal area, the surgery compromises the blood circulation to the scrotum and

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testicles, and the testicles can be damaged by atrophy.

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On February 12, 2013, Plaintiff visited the Urology Clinic. On this one-week

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follow up, Dr. Perazza found the veteran doing well, though there was the expected

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scrotal edema (swelling). Thirty-seven days went by and, on March 14, 2013, Plaintiff

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visited the Emergency Room. Mr. Rivera presented right scrotal swelling, along with

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redness and pain. Pus was draining from the site and he informed that the pus had been

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first noticed about nine days before he came to the clinic. An abscess was diagnosed.

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Dr. Perazza, the urologist, incised and drained the abscess and described the wound as

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“dirty and infected.” Cultures showed the presence of several types of bacteria. Dr.

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Perazza noted at trial that there appeared to be a connection between the infection and

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poor hygiene, because bacteria of fecal origin were present in the cultures made from the

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scrotal area. A prescription for antibiotics was also given.

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By March 18, 2013, and despite the drainage procedure carried out on March 14,

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2013, and the provision of antibiotics, purulent drainage persisted from the wound.

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Dr. Perazza operated on an emergency basis to perform another scrotal exploration,

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during which she removed a necrotic ovoid lesion. She also removed the right testicle and

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placed a percutaneous cystostomy (a tube through the skin into the bladder) for the

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elimination of urine. On March 19, 2013, Dr. Perazza reported the wound was healing

Civil No. 14-1634 (JAF)

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well. The cystostomy tube was removed on March 21, 2013, with the wound continuing

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to heal.

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The use of the cystostomy tube was needed to drain urine to avoid further

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contamination of the infected scrotal region. The decision was made during the procedure

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when necrotic tissue was found and it proved impossible to identify either the right

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testicle or the right spermatic cord. The literature favors the use of a supra-pubic

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cystostomy to manage scrotal necrotizing conditions such as Mr. Rivera had. The use of a

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temporary cystostomy is more comfortable to the patient and easier to care for by the

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nursing staff. It also avoids the use of a Foley catheter, which can also cause further

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infection.

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The testicle was removed because Mr. Rivera had three prior hernia repairs that

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had compromised the vascularity of the testicle and the same was necrotic. Plaintiff had

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been made aware of this, and he knew that this complication could happen.

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On April 16, 2013, Plaintiff visited the Urology Clinic.

Dr. Perazza saw

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Mr. Rivera and noted he once more had a right-sided hernia, though the scrotal wound

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was healed and was not red or swollen. Mr. Rivera nevertheless said he felt well and that

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he was able to have sex with his wife (stated in Spanish in the note). A male with one

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testicle can perform sexually.

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Finally, on May 15, 2013, Mr. Rivera was admitted once again for his final

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recurrent hernia repair. Two large pieces of mesh were used to cover the defect. He was

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discharged home the next day in good condition. Those who have recurrent hernias tend

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to have more complications than those who only undergo an original repair.

Civil No. 14-1634 (JAF)

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When Plaintiff visited the Surgery Outpatient Clinic on May 31, 2013, Mr. Rivera

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reported he was doing well after the latest surgery, except for some problems urinating

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which suggested a urinary tract infection. He was treated for the presumed infection.

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Plaintiff was seen again on December 13, 2013, at the Primary Care Unit of the

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Community Based Outpatient Clinic, in Ceiba, Puerto Rico. Mr. Rivera told his provider

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that he felt fine and reported no acute complaints. He stated he was very active and

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exercised by walking on a routine basis without any problem. As of late May 2013, there

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were no further hernia complaints.

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Plaintiff complains that he lost the testicle because of delays in treatment and CT-

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Scan imaging. Plaintiff claims compensation in the amount of $6 Million to make him

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whole. The credible evidence produced by Defendant and its Board-certified surgeon,

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urologist, radiologist, and expert witness, clearly established that the unfortunate

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complications suffered by Plaintiff were not the product of negligent or delayed medical

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care.

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The patient was given the best treatment possible and the alleged delay between

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interventions only deferred to the need to grant time for the body to heal and for

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inflammation to subside. Mesh had been used to repair the hernia and the best medical

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practice was to give it time to heal on its own. This is of primary importance to avoid

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possible infection or damage to the mesh and its absorption as part of the tissue.

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Plaintiff was not a healthy man. He suffered from many complications, all of

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which affect the healing process. His general health has been compromised by a number

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of conditions, such as depressive disorder, chronic obstructive pulmonary disease, asthma

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attacks, hypothyroidism, hypertension, hyperlipidemia, and benign prostate disease.

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These conditions, according to Defendant’s expert witness, have significant deleterious

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effect on the healing processes in tissues. Defendant’s expert witness reported that these

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conditions cause repeated strain on abdominal muscles and fasciae due to labored

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breathing and difficulty urinating.

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oxygenation, cell metabolism, and body defenses against infection. The very occurrence

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of repeated hernia repairs gradually deteriorate the abdominal tissues and fasciae, as well

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as blood circulation in the structures of the spermatic cords and testicles.

Also, they compromise vital blood flow and

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Plaintiff failed to establish by credible and preponderant evidence that the

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Veterans Administration physicians failed to offer Plaintiff the proper medical care,

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attention, skill, and protection in light of modern means of scientific medical knowledge.

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Plaintiff was a risk patient. He was made aware of that on several occasions. His

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credibility was tarnished when he totally exaggerated the claim that he became suicidal

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on account of his suffering. The medical records belie that because, even with all the

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complications he suffered, on occasion after occasion he reported to physicians and

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nurses feeling quite well under the circumstances.

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Plaintiff did not have an expert at trial. The court admitted, at his request, a report

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by a Doctor José L. Cerra, rendered on November 4, 2013, confirming the long history of

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hernias since 2003. Dr. Cerra is now deceased, but his report is against the great weight

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of the credible, unimpeached evidence offered by the attending Board-Certified surgeon,

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the attending Board-Certified urologist, the attending Board-Certified radiologist, and the

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Board-Certified expert urologist, who is still a professor at the School of Medicine of the

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University of Puerto Rico. It consists basically of Monday-morning quarterbacking, that

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is, a listing of reasons to justify after the fact some sort of deviation from a standard of

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care that Dr. Cerra failed to establish.

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Unfortunate as Plaintiff’s complications were, there is no credible evidence, as a

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matter of fact no preponderant evidence, that the standard of care described by the

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treating physicians, Defendant’s expert, and documented in the medical chart was not the

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correct one to follow.

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On account of the above, the court will enter a judgment of dismissal on the
complaint filed by Plaintiffs.

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IT IS SO ORDERED.

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San Juan, Puerto Rico, this 16th day of September, 2015.

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S/José Antonio Fusté
JOSE ANTONIO FUSTE
U. S. DISTRICT JUDGE