Veteranclaims’s Blog

August 4, 2010

VA Medical Malpractice Cases

Full Cases at: Veterans Administration Medical Malpractice Information-Cases, 2009

Gaddis v. USA

Kout v USA

Casey v. USA

Deasey v. USA

Thomas v. USA

US v. Kubrick

Dejesus v. USA Liability Opinion 2005

Dejesus v. USA Damages Opinion 2005

Dumble v. USA Opinion 2005

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MARY THERESE DUMBLE

V.

USA

:

No. 3:04cv1789

This matter having been heard by the court as a non-jury trial on August 24, 2005, we hereby

make the following findings of fact1 and conclusions of law:

I. Findings of fact

1) Plaintiff’s decedent Arthur E. Dumble (hereinafter “Dumble”) was born on October 15, 1932.

2) Dumble was sixty-eight years of age when he presented himself to Defendant Veterans Affairs Medical Center in Wilkes-Barre, Pennsylvania (“VAMC”) for treatment on February 3, 2001.

3) On February 3, 2001, Dumble presented himself to Defendant VAMC where he conveyed complaints of burning pain in his chest and epigastrum.

4) An EKG performed in the VAMC Emergency Department revealed evidence of an old inferior wall infarct and definite up sloping ST segment depression in leads I, VL, and V2 through V5.

1The findings of fact are derived from undisputed facts found in plaintiff’s pretrial memorandum (Doc. 18). Defendants have agreed to these facts. See (Doc. 21). We have only made slight stylistic changes to the findings of fact. Beginning with finding number 14, we provide citations for the record as these are the matters discussed at the trial.

5) Dumble’s CPK was noted to be elevated to 640 and his troponin I level was noted as being positive by K. Patel, M.D., the Emergency Department physician attending to him.

6) Therapy of sublingual nitroglycerin, subcutaneous Lovenox, aspirin and nitroglycerin ointment was started in the Emergency Department.

7) Medical resident A.K. Azad, M.D., examined Dumble on February 4, 2001. He acknowledged Dumble’s chest pain, abnormal EKG and elevated cardiac enzymes, and he concluded that an acute coronary syndrome had to be ruled out.

8) Azad’s notes indicate that he discussed his findings with Ashok Agarwal, M.D., by telephone and the Agarwal agreed with Azad’s plan of treatment and management.

9) Agarwal ordered repeated troponin levels to be drawn, but the order was subsequently canceled.

10) Dumble was discharged from the VAMC on February 5, 2001 at approximately 5:30 p.m.

11) Dumble went into cardiac arrest while being driven home by his son only minutes after being discharged from the VAMC on February 5, 2001.

12) Dumble was pronounced dead at Mercy Hospital in Wilkes-Barre at 6:16 p.m. on February 5, 2001.

13) Dumble suffered an acute non Q wave myocardial infarction on or about February 3, 2003.

14) Dumble had a life expectancy of 82.6 years (Trial Dep. of Brian P. Sullivan, Ph.D. (“Sullivan Dep.”) at 13).

15) The net retirement income loss resulting from Dumble’s death is $110,595.00. (Def. Ex. 7, Verzilli and Verzilli Report, page 2).

16) Decedent’s funeral related expenses are $8,967.78.(Pl. Ex. 9, p. 6).

17) Estate administration expenses in the instant case are $ 2,285.35 (Pl. Ex. 9, p. 6).

II. Conclusions of law

1) We have jurisdiction over this matter pursuant to 28 U.S.C. § 1346(b), the Federal Torts Claim Act for medical malpractice committed by the VAMC and its medical personnel and/or employees.

2

2) Defendant concedes that it breached the duty of care it owed to Dumble.

3) Under Pennsylvania’s Wrongful Death Statute plaintiff is entitled to recover damages for the death of an individual caused by the wrongful act or neglect of another. 42 PA.C.S.A. § 8301(a).

4) Under the Wrongful Death Statute a plaintiff can recover, “in addition to other damages, damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death.” 42 PA.C.S.A. § 8301(c).

5) The Survival Act allows the plaintiff to recover for decedent’s pain and suffering from the time of the injury to death. Frey v. Pennsylvania Elec. Co., 607 A.2d 796, 798 (Pa. Super. Ct. 1992). 42 PA.C.S.A. § 8302

6) We find that the plaintiff experienced pain and suffering. When his son picked him up at the hospital, Dumble was speaking very little. (N.T. Trial, Aug. 2, 2005 at 21). Evidently, Dumble was uncomfortably hot as the temperature outside was below freezing, and he nevertheless rolled down the window on the car. (Id.). When the car stopped, he started to slide himself out, his eyes rolled up in his head, he gasped twice and his head dropped. (Id.). His son then threw him into a pile of snow and began to perform CPR. (Id.).

Accordingly, we will award the following amounts to the plaintiff: 1) Funeral expenses: $8,967.78; 2) Administrative costs: $2,285.35; 3) Loss of net retirement income: $110,595.00; and 4) Pain and suffering: $80,000.00.

An appropriate verdict follows.

eterans administration medical malpractice new jersey nj lawyer attorney

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: VERDICT

AND NOW, to wit, this 17th day of October 2005, the court’s verdict is as follows:

Defendant is liable to the plaintiff for the following amounts:

1) Funeral expenses: $8,967.78

2) Administrative costs: $2,285.35

3) Loss of net retirement income: $110,595.00

4) Pain and suffering: $80,000.00

Total amount of damages awarded to the plaintiff and against the defendant: $201,848.13.

BY THE COURT:

s/ James M. Munley JUDGE JAMES M. MUNLEY United States District Court

Judge Awards Mothers $7,400,000 in malpractice case against Veterans Administration

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CAMILLE DEJESUS, Individually and as

:

Administratrix of the Estate of Alejandro

:

CIVIL ACTION

DeJesus, Jr., Deceased, and the Estate of

:

Felicia Lynne DeJesus, Deceased, et al.

:

:

v.

:

:

UNITED STATES OF AMERICA

:

NO. 02-0253

DEPARTMENT OF VETERANS AFFAIRS

:

:

v.

:

:

THE PHILADELPHIA VETERANS

:

MULTI-SERVICE & EDUCATION CENTER,

:

INC., d/b/a Landing Zone II Transitional Residence : :

v. :

: LANDING ZONE II : TRANSITIONAL RESIDENCE :

Diamond, J. September 6, 2005

In my earlier opinion in this case, I found that the Veterans Administration’s gross negligence had substantially caused the deaths of Felicia DeJesus, Alejandro DeJesus, Jr., Michael Faulk, and Aaron Faulk. I also found the VA liable for the emotional distress suffered by Mrs. DeJesus when she heard her children being murdered. See DeJesus v. Dep’t of Veteran Affairs, No. 02-0253, 2005 U.S. Dist. LEXIS 15903 (E.D. Pa. July 26, 2005).

I subsequently conducted a four-day bench trial on damages. Plaintiffs base their damages claim on: (1) the economic losses incurred as a result of their children’s deaths; (2) the children’s pain and suffering; (3) wrongful death damages, such as funeral expenses; and (4) the harm Mrs. DeJesus suffered as she heard her children being murdered. The parties agreed to reduce their damages calculations to present value. (P-93; G-72; G-73). Plaintiffs thus contend they are entitled to $11,692,519.43 in damages. The VA counters that the damages should not exceed $1,752,741.67.

I award damages to Camille DeJesus in the amount of $3,774,429 and Cheryl Faulk in the amount of $3,703,371.67.

FINDINGS OF FACT

Plaintiffs presented compelling, credible evidence of the horrific events of March 23, 1999, when Alejandro DeJesus, Sr. murdered his children and the Faulk children. My “pain and suffering” determinations reflect both the pain and the dread the children experienced as they were shot, one after another, inside the living room of the small apartment in which the DeJesus family resided.

In determining “economic damages,” I have generally credited the testimony offered by Plaintiffs’ experts, Drs. Herman Axelrod and Michael Wachter. I have generally discredited the testimony offered by the VA’s experts, Drs. Jasen Walker and Brian Sullivan. For instance, Dr. Walker, a vocational expert, opined that the “law of familial regression” makes it very likely that children will not significantly surpass their parents’ educational and vocational achievements (7.30–7.32, N.T. of July 10, 2005). If the “law” of familial regression were correct — and the trial evidence underscores that this social science theory is by no means established — it is difficult to understand how human progress could ever occur. The applicability of this “law” is especially dubious here, given the obvious determination of Mrs. DeJesus and Ms. Faulk that their children achieve and excel. (8.35–8.36, N.T. of July 27, 2005; 8.42; 8.89; 8.91). In any event, I credit Plaintiffs’ vocational expert, Dr. Axelrod, who testified that the DeJesus and Faulk children — all from impoverished backgrounds — would likely have exceeded their parents’ attainments. (9.172, N.T. of July 28, 2005). I also largely credit the testimony of Dr. Wachter, who set out the work life, potential earnings, and non-wage benefit calculations that I find applicable to the DeJesus and Faulk children. (P-93). Further, in determining economic damages, I have examined their “station in life”: the circumstances in which the decedents lived, and evidence respecting how the decedents likely would have lived had they not been murdered. (9.155–9.156; 9.160–9.164; 9.169–9.170). See McClinton v. White, 444 A.2d 85, 88 e(Pa. 1982). Accordingly, I have increased the maintenance percentages employed by Dr. Wachter respecting all four decedents.

Finally, in determining the harm Mrs. DeJesus suffered, I have fully credited the harrowing version of events offered by her and her neighbor describing how Mrs. DeJesus saw the murder of Michael Faulk and heard the murders of her own children. I have also credited the evidence showing the resulting harm Mrs. DeJesus continues to suffer.

A. The Events of March 23, 1999

When Mr. DeJesus burst into his wife’s Media apartment, she and the four children were in the living room. (8.92–8.97). Mrs. DeJesus was seated closest to the doorway on a couch, with Felicia sitting next to her and Aaron Faulk sitting at the opposite end. (8.95–8.96). Alejandro, Jr. was sitting on a red futon on the other side of the doorway. (8.97). Michael Faulk had been seated at the computer in the corner on a diagonal from the doorway and was starting to move when Mr. DeJesus entered. (8.97). Upon seeing her husband with a gun, Mrs. DeJesus said, “Oh my God.” (8.98). Mr. DeJesus passed within inches of Mrs. DeJesus; she saw him immediately shoot Michael. (8.98). Mrs. DeJesus then ran to the adjoining apartment of her neighbor, Doris Rovetti, to get help. (9.108).

When she entered Ms. Rovetti’s apartment, Mrs. DeJesus was frantic. (9.108). Both she and Ms. Rovetti heard gunshots in the hallway and through the common wall she shared with Ms. Rovetti. (1.173, N.T. of March 15, 2005; 9.108). When Ms. Rovetti asked Mrs. DeJesus to take a seat, Mrs. DeJesus sat down directly on the floor, exclaiming, “He shot the children.” (9.109). Ms. Rovetti phoned the police. (1.173).

As Mrs. DeJesus fled for help, Mr. DeJesus continued shooting and killing the other children before shooting himself in the head. (8.132). The entire incident took between twenty and sixty seconds. (8.135–8.137). The children sustained thirteen gunshot wounds. The parties agree that Mr. DeJesus shot Michael Faulk first. (8.98). They do not agree, however, as to the order of death among the other children, and there is insufficient evidence to make findings on this point. The evidence shows quite plainly, however, that after Michael was shot, each of the other children anticipated his or her death and witnessed the murder of the prior victims. (8.116­8.138; 8.149). Thus, the DeJesus children anticipated their deaths at the hands of their own father. I also credit the expert testimony of Dr. Dimitri Contostavlos, a forensic psychologist, who testified that the children were aware of their predicament and experienced various levels of consciousness before their deaths. (8.116–8.138).

I make specific findings regarding each decedent below.

B. Felicia DeJesus’s Damages

I award Camille DeJesus $1,984,950 in survival and wrongful death damages for the loss of Felicia DeJesus.

Felicia’s Background

Felicia was six years old and in the first grade at the time of her death. On standardized tests taken in kindergarten, she scored at average levels, with above average marks in language skills. (9.156–9.157; G-66). She had close relationships with a variety of accomplished women. Despite the extraordinary burdens imposed on her by raising three children with a drug-addicted, absent father, Mrs. DeJesus obtained a PJA Paralegal School certificate. (8.177). Felicia’s older sister Candida attends Delaware County Community College. (G-69). Her aunt, Lynn Viti, is a college graduate and was a certified Federal Agent until she retired. (2.5, N.T. of March 16, 2005; 9.20). Finally, the DeJesus’s neighbor and close friend, Doris Rovetti, received a Bachelor of Arts degree from Mt. Holyoke College. (9.96). Experts for both sides agreed that these women would have influenced Felicia for the good. (7.75–7.76; 9.231). Further, Mrs. DeJesus was committed to the education of her children and aspired to have Felicia attend college. (8.91; 8.205). Candida DeJesus and Ms. Viti were similarly committed to Felicia’s education. (2.11; 9.231)

Felicia’s Economic Damages

Given her background and salutary influences, it is likely that Felicia would have attended and graduated from a four-year college. Both sides’ experts agreed that Felicia had the potential and ability to succeed at college. (7.151; 8.160). In opining that Felicia would not have gone beyond an associate’s degree, the VA’s expert employed the “law” of familial regression. (7.31–7.34). Once again, I do not accept this theory’s application here, and I do not credit the expert’s testimony. Rather, Plaintiff’s expert, Dr. Axelrod, credibly testified that the beneficial influences provided by Felicia’s mother, sister, aunt, and neighbor, combined with Felicia’s ability and the general brightening of the DeJesus family’s fortunes once Mr. DeJesus left the household, made it likely that Felicia would have graduated from a four year college. (9.210).

The parties agreed in their calculations of lost earning power for a high school graduate, college graduate, and holder of an associate’s degree or certificate. (P-93; G-72; G-73). They disagreed, however, as to whether to include certain fringe benefits, such as health insurance, in the calculations, and how to calculate maintenance. The VA estimated economic damages for Felicia at $361,699 — assuming a high school degree, 74% maintenance expenditures, and nonwage benefits at 3% of salary. (G-72). Dr. Wachter (Plaintiffs’ expert) estimated the damages at $2,096,886 — assuming a bachelor’s degree, 35% maintenance expenditures, and nonwage benefits at 20% of salary. (P-93).

I generally credit Dr. Wachter’s testimony, and find that Felicia’s economic damages should be in the higher range indicated by Dr. Wachter. I employ a maintenance percentage of 45%, however. I therefore award $1,774,288 to Camille DeJesus for Felicia’s economic damages.

Felicia’s Pain and Suffering

In making my determinations on the decedents’ pain and suffering, I considered not only Dr. Contostavlos’s testimony, but the uncontradicted physical evidence. Felicia suffered three close contact wounds to her chest. (8.123–8.124). She was found on the floor a short distance away from her father. (8.126). Because she suffered no head wound, it is likely that she remained conscious and experienced severe pain for some period after being shot. (8.124; G-57). She also witnessed her father shooting Michael Faulk and anticipated her own injuries. I therefore award her estate $150,000 compensation for the pain and suffering associated with her death, and $50,000 for her anticipation of death.

Felicia’s Wrongful Death Damages

The parties have stipulated to Plaintiffs’ wrongful death damages in the amount of $10,662 for Felicia’s funeral and burial expenses. I therefore award that amount to Camille DeJesus.

C. Alejandro DeJesus, Jr.’s Damages

I award Camille DeJesus $1,289,479 in survival and wrongful death damages for the loss of Alejandro DeJesus, Jr.

Alejandro, Jr.’s Background

Alejandro, Jr. was twenty-two years old at the time of his death (not eighteen, as I mistakenly noted in my earlier opinion). (8.66). He was diagnosed with cerebral palsy when he was one year old, and was limited in his ability to participate in certain activities throughout his childhood. (8.68-8.72). He attended primarily special education classes throughout his school career. (7.51–7.53; 8.188). He also was a Social Security disability recipient for most of his life, and held only part-time and seasonal employment. (8.199; 8.85–8.86). Nonetheless, Alejandro was determined to overcome his disability, discarding his leg braces in the ninth grade against the advice of doctors, (8.71), and wrestling on his high school team against disabled and non-disabled individuals, often without accommodation. (9.219–9.221).

Alejandro, Sr. created obstacles and difficulties that in no small measure impaired Alejandro, Jr.’s ability to achieve. Shortly after his graduation from high school, his parents separated, and Alejandro, Jr. resided with his father for a number of months. (8.84–8.85). This was certainly a troubled period for him. He had witnessed his father’s assault of his mother and was himself a victim of his father’s physical and emotional abuse. (1.136–1.137; 8.85). In the months following his decision to reside with his mother, however, Alejandro, Jr.’s attitude changed. (7.137–7.138; 9.19). Mrs. DeJesus and Alejandro, Jr. had begun to explore the possibility of continuing his education. (8.86). Shortly before Alejandro, Jr.’s death, Doris Rovetti took him to visit the Delaware County Community College. (9.106). He spoke with academic counselors and received an application and financial aid forms. (9.106–9.107). Alejandro, Jr. told Ms. Rovetti that he would be applying to the College in the Fall. (9.107). He was excited at the prospect of continuing his education. (9.105). The College had an office specializing in services to disabled individuals, including those with cerebral palsy. (9.150–9.151). I credit the testimony of Dr. Axelrod — whose expertise includes teaching the disabled and handicapped — that the College could have accommodated Alejandro, Jr.’s needs. (9.150–9.152). He was murdered before he could apply for admission to the College. (8.198).

Alejandro, Jr.’s Economic Damages

I find it likely that Alejandro, Jr. would have achieved an associate’s degree had he survived. (9.33). Alejandro, Jr. had a slight limp, but was physically fit and able to walk quickly. He had obtained employment in the past. (9.99–9.100). Freed from his father’s influence, Alejandro, Jr. was beginning to accept adult responsibilities and was actively pursuing opportunities for higher education. Like Felicia, he benefitted from the influences of Mrs. DeJesus, Candida DeJesus, and Ms. Rovetti, all of whom clearly intended to encourage Alejandro, Jr.’s ambitions. (8.89; 9.96–9.97).

The VA estimated Alejandro, Jr.’s economic damages at $0 — assuming he would never be regularly employed or obtain an associate’s degree. (G-72). Plaintiffs estimated his economic damages at $1,557,483 — assuming an associate’s degree, 35% maintenance expenditures, and nonwage benefits at 20% of salary. (P-93). Once again, I look to an award in the higher range, both because of Alejandro’s aspirations and his family influences. Because of Alejandro, Jr.’s disability, however, I believe his maintenance expenditures would have been somewhat higher than those of the other decedents. Accordingly, I employ a maintenance percentage of 55%. I thus award $1,078,257 to plaintiff Camille DeJesus for Alejandro, Jr.’s economic damages.

Alejandro, Jr.’s Pain and Suffering

Alejandro, Jr. suffered seven gunshot wounds: one to the head, five to the back at close range, and one to the right thigh. (8.117). He was found between the living room and the entry to the kitchen, likely attempting to flee. (8.118–8.120). The way the wounds were inflicted indicates that he experienced some period of physical pain before death. (8.117–8.120). He also witnessed his father shooting Michael Faulk and anticipated his own injuries. (8.98). I therefore award his estate $150,000 for pain and suffering associated with his death, and $50,000 for his anticipation of death.

Wrongful Death Damages

The parties have stipulated to wrongful death damages in the amount of $11,222 for Alejandro, Jr.’s funeral and burial expenses. I therefore award that amount to Camille DeJesus.

D. Michael Faulk’s Damages

I award Cheryl Faulk $2,260,124.67 in survival and wrongful death damages for the loss of Michael Faulk.

Michael’s Background

Michael Faulk was sixteen years old and in the tenth grade at the time of his death. A gifted student who scored high on standardized tests, Michael was extremely well-rounded — as comfortable on the chess team or doing sketches as he was playing junior varsity football. (8.30–8.33). He attended a magnet school for gifted children during most of his life, and aspired to attend college and become a professional. (8.35; 9.164–9.165). Shortly before his death, he obtained a part time job at a local pizza parlor, but was murdered before he was able to begin work. (8.35). Although Michael’s grades had declined in high school, his tenth grade college aptitude test confirmed that he was a strong candidate for college admission. (8.163; P-75).

The Faulks were a close-knit family. Like Mrs. DeJesus, Ms. Faulk was a devoted mother, enormously invested in her children’s well-being. Concerned about their Manhattan neighborhood, Ms. Faulk moved the family to Media, Pennsylvania. (8.12–8.15). A single mother with three sons, she eventually earned a diploma from a technical school and found a higher paying job at a cancer treatment center. (8.12–8.15; 8.20–8.22). I credit the testimony of Dr. Axelrod that Ms. Faulk strongly influenced her children for the good. (8.166).

Michael’s Economic Damages

I find it likely that Michael would have achieved a bachelor’s degree had he lived. Michael was a highly motivated, gifted child. His brother, Mark, was admitted to a four-year college. (7.159; 8.25–8.26; 9.165–9.166). Unfortunately, emotional problems brought on by his brothers’ murders caused Mark to drop out of college. (7.159). Nonetheless, had Michael survived, it is likely that Mark would have encouraged Michael to attend college.

The VA estimated Michael’s economic damages at $1,030,514 — assuming an associate’s degree, 57% maintenance expenditures, and nonwage benefits at 3% of salary. (G­72). Plaintiffs’ estimate was $2,478,937 — assuming a bachelor’s degree, 35% maintenance expenditures, and nonwage benefits at 20% of salary. (P-93). Because I find that Michael would have received at least a bachelor’s degree, I again look to the higher range. I employ a maintenance percentage of 45%. I thus award $2,097,563 to plaintiff Cheryl Faulk for Michael’s economic damages.

Michael’s Pain and Suffering

As soon as Mr. DeJesus entered his wife’s living room, he shot Michael in the head and forearm. (8.13; 8.131–8.132). Police took Michael to the hospital, where he died of his wounds. Unlike the other decedents, it is likely that Michael did not have the opportunity to anticipate his death. (9.12–9.13). Accordingly, I award his estate $150,000 for the pain and suffering associated with his death.

Wrongful Death Damages

The parties have stipulated to wrongful death damages in the amount of $5335.24 in funeral and burial expenses and $7226.43 in medical expenses for Michael Faulk. I therefore award $12,561.67 to Cheryl Faulk.

E. Aaron Faulk’s Damages

I award Cheryl Faulk $1,443,247 in survival and wrongful death damages for the loss of Aaron Faulk.

Aaron’s Background

Aaron Faulk was fourteen years old and in the ninth grade at the time of his death. Less motivated than either of his brothers, he had difficulties in school and did not test well on standardized reading and math assessments. (G-56; 9.168). Ms. Faulk and both sides’ experts agreed that Aaron found it very difficult to adjust from the mostly minority school he had attended in Manhattan to the primarily non-minority school he first attended in Media. (7.162–7.163; 8.38–8.40; 9.167–9.168). These problems diminished, however, with the help of Aaron’s brothers once he started high school. (8.39).

Aaron’s Economic Damages

I find it likely that Aaron would have achieved an associate’s degree had he survived. Though not as motivated or, perhaps, as talented as either of his brothers, Aaron was beginning to adjust to high school in Media and expressed interest in becoming a chef, thus emulating his great uncle, with whom he was very close. Had it not been for the VA’s gross negligence, both of Aaron’s brothers would have attended college and, along with his mother, would have encouraged him to pursue a degree beyond his high school diploma. (8.42). With these beneficial influences, I find it likely that Aaron would have obtained an associate’s degree.

The VA estimated Aaron’s economic damages at $310,654 — assuming one to three years of high school, 75% maintenance expenditures, and nonwage benefits at 3% of salary. Plaintiffs’ estimate was $2,520,904 — assuming a bachelor’s degree, 35% maintenance expenditures, and nonwage benefits at 20% of salary. Because I find that Aaron would have received at least an associate’s degree, I look to the middle of this range. I employ a maintenance percentage of 45%. In addition, I note that because Aaron was eight years younger than Alejandro, Jr., his working life would have been longer than Alejandro, Jr.’s. I therefore award $1,259,895 to plaintiff Cheryl Faulk for Aaron’s economic damages.

Aaron’s Pain and Suffering

Aaron suffered two wounds, one to the right abdomen and the other to his head — entering his right cheek and exiting behind his left ear. (8.127–8.129). He was found in the same spot he had been in before the shooting began. (8.130). Accordingly, I find that he was shot quickly after Mr. DeJesus entered the room.

Aaron witnessed his brother’s death, and briefly anticipated his own injuries. He also experienced the physical pain of being shot. I therefore award his estate $150,000 compensation for the physical pain and suffering associated with his death and $25,000 for his anticipation of death.

Wrongful Death Damages

The parties have stipulated to wrongful death damages in the amount of $8352 for Aaron’s funeral and burial expenses. I therefore award that amount to Cheryl Faulk.

F. Damages for Camille DeJesus’s Emotional Distress

I have found that Camille DeJesus heard her husband shoot and kill her children. DeJesus, 2005 U.S. Dist. LEXIS 15903, at *60. As I noted, “[t]he grief and horror she has suffered were painfully obvious. Hearing the murder of her children has caused Mrs. DeJesus to suffer stress, anxiety, depression, and post-traumatic stress disorder.” See id. In making my determination respecting the harm she suffered, I have credited her testimony, that of Candida DeJesus, and that of Ms. Rovetti, as well as the records of her therapist, John Kessler. I award Mrs. DeJesus $500,000 on this claim.

Mrs. DeJesus was medicated at the emergency room on the night of the murders, and saw a therapist, Mr. Kessler, for approximately one year after the killings. (8.99). Mr. Kessler diagnosed Mrs. DeJesus with depression, “adjustment disorder,” and post-traumatic stress disorder, and noted that she had trouble concentrating, eating, and sleeping for a period after the murder of her children. (G-68; P-88; P-89). The trauma she experienced has also caused Mrs. DeJesus to have memory problems. (G-68). She continues to relive the events of March 23rd, particularly in her sleep. (8.100; 9.110). Mrs. DeJesus cannot sleep without a light on; in public places she will sit near walls because she is afraid to have an open door at her back. (8.100–8.102).

In sum, hearing the murders of her children has caused Mrs. DeJesus to suffer severe emotional distress. I award her $500,000 for this distress.

CONCLUSIONS OF LAW

A. Economic and Wrongful Death Damages Generally

Under Pennsylvania’s Survival Act, economic damages are properly measured by the loss of earning power less personal maintenance expenses from the time of death through a decedent’s estimated working life span. Incollingo v. Ewing, 282 A.2d 206, 229 (1971). The law does not require mathematical exactness; a plaintiff need only provide evidence of a reasonably fair basis for calculating losses. Smail v. Flock, 180 A.2d 59, 61 (Pa. 1962). In calculating the loss of earning power, it is proper for a fact finder to make use of average earnings based upon government statistics. Weaver v. Ford Motor Co., 382 F. Supp. 1068, 1074–75 (E.D.Pa. 1974), aff’d 515 F.2d 506 (3d Cir. 1975). Personal maintenance is defined as the “necessary and economical sum which a decedent would be expected to spend, based upon his station in life, for food, clothing, shelter, medical attention, and some recreation.” McClinton, 444 A.2d at 88. Maintenance is an amount smaller than the total personal expenditures of a given individual but larger than that necessary for basic subsistence. Id. at 87,

88.

Under Pennsylvania’s Wrongful Death Act, survivor beneficiaries are entitled to funeral and medical expenses plus any pecuniary loss suffered by reason of a decedent’s death. 42 Pa. Const. Stat. § 830; Kiser v. Schulte, 648 A.2d 1, 4 (Pa. 1994).

B. Judicial Estoppel as to Alejandro, Jr.’s Economic Damages

Alejandro, Jr. was receiving Social Security disability benefits at the time of his death, as he had been for much of his life. (8.199, N.T. of July 27, 2005). The VA argues that because he qualified for these benefits – that his disability made him “unable to engage in any substantial gainful activity”– his estate is estopped from now claiming that he would have become gainfully employed had he survived. See 42 U.S.C. § 1382c(a)(3)(A) (2004). I disagree.

The Supreme Court has held that receiving social security disability payments does not automatically bar the recipient from later claiming ability to work. See Cleveland v. Pol’y Mgmt. Sys. Corp., 526 U.S. 795, 798 (1999). A contention made by someone seeking Social Security Disability Insurance that he is disabled is not a “purely factual statement, but is instead a “context-related legal conclusion,” to which the usual judicial estoppel analysis does not apply. Id. at 802; see also Detz v. Greiner Indus., 346 F.3d 109, 116 (3d Cir. 2003) (explaining that the Cleveland Court distinguished “conflicting legal positions” from “contradictory factual assertions” for estoppel purposes). Instead, when a defendant claims judicial estoppel in this context, a plaintiff “cannot simply ignore” previous statements made to the Social Security Administration, but must explain why that SSDI contention is consistent with any subsequent assertion made for other purposes. Cleveland, 526 U.S. at 798.

Mrs. DeJesus does not contend that Alejandro, Jr. was able to work during the time he was receiving Social Security benefits. Instead, she submits, and I have found, that he would have become able to work in the future. This is consistent with the Social Security Administration’s program that encourages claimants to develop a vocational plan and to obtain work and so reduce their reliance on disability benefits. See 42 U.S.C. § 1382b(a)(4) (2004) (excluding from the SSDI determination “such resources [necessary for the fulfillment of] a plan for achieving self-support approved by the Commissioner of Social Security”); 20 C.F.R. § 416.1181 (2001) (defining “plan to achieve self-support”). I have also credited the testimony of Dr. Axelrod, an expert in the education of children with disabilities, that Alejandro, Jr. could have been trained to perform a variety of jobs in the workplace, especially if his potential employers made “reasonable accommodations” for him, as required by the Americans with Disabilities Act. (8.136; 8.153–154). See 42 U.S.C. § 12111(8).

Thus, Alejandro, Jr.’s estate has not taken a position before me that is inconsistent with that which Alejandro, Jr. took before the Social Security Administration. On the contrary, the facts as I have found them underscore that the positions are reconcilable. Accordingly, I reject the VA’s estoppel argument. Cleveland, 526 U.S. at 798.

C. Recovery for Decedents’ Pain and Suffering

Under Pennsylvania’s Survival Act, all causes of action survive the death of the plaintiff. See 42 Pa. Cons. Stat. § 8302. The estate of each decedent is entitled to compensation for their physical pain and suffering before death. Mecca v. Lukasik, 530 A.2d 1334, 1345 (Pa. 1987). The VA acknowledges that the law allows recovery for the pain and suffering associated with the decedents’ deaths. See Def. United States’ Proposed Findings of Fact and Conclusions of Law Concerning Damages at 34–37 (Aug. 8, 2005). The VA contends, however, that the mental anguish the decedents suffered immediately before their deaths is not compensable. I disagree.

Under the Survival Act, a plaintiff representative is entitled to all damages to which a decedent would have been entitled under Pennsylvania law had he or she lived. Harsh v. Petroll, 840 A.2d 404, 437 (Pa. Commw. Ct. 2003). I am obligated to apply Pennsylvania law as announced by that state’s Supreme Court, and to anticipate how that Court would decide an open legal question. See Packard v. Provident Nat’l Bank , 994 F.2d 1039, 1046 (3d Cir. 1993). Pennsylvania Commonwealth and Superior Court decisions, although not dispositive, are persuasive authority in this regard. Id. at 1047.

Pennsylvania law is unsettled as to whether damages for pre-impact fright are recoverable. See Nye v. Commonwealth, Dep’t of Transp., 480 A.2d 318, 322 (Pa. Super. 1984) (“[W]e need not decide whether such a recovery [for pre-impact fright] is permitted in Pennsylvania”). The weight of authority is in favor of allowing such a recovery, however. See Potere v. City of Philadelphia, 112 A.2d 100, 104 (Pa. 1955) (where physical injury is “accompanied by fright or mental suffering directly traceable to the peril in which the defendant’s negligence placed the plaintiff, then mental suffering is a legitimate element of damages”); cf. Niederman v. Brodsky, 261 A.2d 84, 85 (Pa. 1970) (extending Potere to cases where there is no physical impact). Other states with statutes similar to Pennsylvania’s Survival Act allow recovery for pre-impact fright. See, e.g., Platt v. McDonnell Douglass Corp., 554 F. Supp. 360, 363 (D. Mich. 1983) (interpreting the Michigan Wrongful Death Act); D’Angelo v. United States, 456 F. Supp. 127, 142 (D. Del. 1978) (interpreting Maryland law).

The VA offers authority addressing the requirement under Pennsylvania law that a living plaintiff claiming infliction of emotional distress demonstrate a physical manifestation of that distress. See, e.g., Sinn v. Burd, 404 A.2d 672, 686 (Pa. 1979); Robinson v. May Dep’t Stores Co., 246 F. Supp. 2d 440, 445 (E.D. Pa. 2003) (“Manifestation of physical injury is necessary to sustain a claim for negligent infliction of emotional distress.”). Indeed, Pennsylvania courts require proof of physical manifestation in emotional distress cases as a substitute for proof of injury caused by a physical impact. See Neiderman, 261 A.2d at 85 (rejecting the “impact rule,” which had required proof of “contemporaneous impact,” because the plaintiff could show physical manifestations of his emotional distress); Nelson v. Monroe Regional Medical Center, 925 F.2d 1555, 1561 (7th Cir. 1991). The law thus draws a clear distinction between the anguish the decedents experienced immediately before their murders, and the emotional distress suffered by someone who experiences no physical impact.

In these circumstances, I anticipate that the Pennsylvania Supreme Court would allow recovery for the dread and fright the decedents experienced immediately before they were murdered.

BY THE COURT:

Paul S. Diamond, J.

7 F.Supp.2d 709

United States District Court,

D. South Carolina,

Columbia Division.

Vera C. GADDIS, individually and as Personal Representative of the Estate of

Charles E. Cauthen, Deceased, Plaintiff,

v.

UNITED STATES of America, Defendant.

Dec. 3, 1997.

Daughter of patient who died from laryngeal cancer in Veterans Administration (VA) hospital brought medical malpractice action against United States. The District Court, Shedd, J., held that: (1) contract physician at VA breached standard of care by failing to refer patient back to treating radiologist for follow-up examination after radiation therapy, and by failing to diagnose and treat cancer when patient experienced pain, hoarseness, and swelling in throat; (2) VA hospital breached standard of care by allowing condition to deteriorate to a point at which removal surgery was inadvisable or impossible, by failing to discuss with patient and daughter the options available to them, and by failing to properly monitor, treat, and care for patient following his admission to hospital; (3) negligence of hospital in failing to provide proper diagnosis of treatment for patient’s cancer caused his death; (4) daughter was entitled to $800,000 in damages for loss of society and companionship, $75,000 for mental shock and suffering, and $75,000 for grief, sorrow, and wounded feelings; and (5) $125,000 would be awarded for the pain and suffering of patient.
Judgment accordingly.

ORDER

SHEDD, District Judge.
This medical malpractice case involves the 1991 death of Charles E. Cauthen at the Dorn Veterans Administration Hospital in Columbia, South Carolina. Jurisdiction in this Court is proper pursuant to , and the Federal Torts Claims Act, . Plaintiff in this case, Vera Gaddis (hereinafter “Gaddis”), filed a claim with the Veterans Administration alleging that the Veterans Administration’s negligent care for her father, Charles E. Cauthen (hereinafter “Cauthen”), resulted in his death. This claim was denied by the Veterans Administration. [FN1] Subsequently, this case came before this Court for a bench trial beginning on September 22, 1997. Based upon the testimony and evidence presented over eight days of trial, the Court hereby makes the following findings of fact and conclusions of law:

FN1. In light of the facts presented at this trial, the Court has serious reservations about the credibility of the administrative process which rejected this claim.

FINDINGS OF FACT

Background:
Cauthen was a World War II veteran, having served in the Pacific Theater. He was proud of his service to his country, and spoke proudly of his military service. Born in June, 1922, Cauthen lived most of his life in rural Lancaster County, South Carolina. Cauthen lived a simple life, by choice, and was well-known, and respected in his community. An independent man, Cauthen was happy and satisfied with his lifestyle. He was one of seven children, and all others survive him.
He married Ogla Vian Cauthen, and one child, Gaddis, was born of this marriage. During Gaddis’ childhood, her mother became ill. Because of Mrs. Cauthen’s illness, Cauthen served the role of both mother and father. Although Gaddis moved in with her maternal grandmother because of her mother’s illness, Cauthen and Gaddis remained extremely close throughout her life, visiting several times a month and maintaining regular telephone contact.
Through the years, Gaddis remained the most important person in Cauthen’s life. This special closeness between father and daughter was due, at least in part, to Gaddis’ mother’s periods of absence and her mother’s ongoing medical problems. This special closeness between Cauthen and Gaddis continued throughout his entire life.
Gaddis and her family have lived in the Charlotte, North Carolina area for many years. Gaddis lives approximately one hour’s travel time from Cauthen’s home in Lancaster County, South Carolina. Over the years, Cauthen would visit Gaddis and her family on a frequent and regular basis, often at least two times per month. In addition, Gaddis and her family would often visit Cauthen at his home in South Carolina. In addition to these frequent visits, they continued to maintain frequent and regular telephone contact. Cauthen was always present with Gaddis and her family for holidays and special occasions.
Diagnosis and Treatment:
In late February, or early March of 1991, Cauthen developed hoarseness in his voice. At that time, Cauthen was a regular smoker, having smoked for many years. Cauthen’s sister and Gaddis convinced Cauthen to see a doctor. Cauthen called the Lancaster County Veterans Affairs Office and obtained an appointment at the Dorn Veterans Administration Hospital (hereinafter “VA”) in Columbia, South Carolina, for March 14, 1991. Cauthen had great faith in the VA Hospital and felt that, as a veteran, he was privileged to be able to go there. He relied upon their evaluation and judgment, and believed he would be taken care of at the VA.
On March 14th, Cauthen visited the VA Hospital, but received no evaluation of his throat. Although, in addition to his hoarseness, he related to them a history of smoking, there was no examination or evaluation at that time of Cauthen’s throat. Only a chest X-ray was done. Cauthen was sent home without any evaluation of the cause of his hoarseness.
Cauthen’s hoarseness continued. Although his family continued to be concerned about his hoarseness, Cauthen was hesitant to see another doctor. When Cauthen’s hoarseness continued to worsen, Gaddis finally convinced him to have it checked by a private physician.
On May 3, 1991, Gaddis and Cauthen’s sister took Cauthen to see his family physician, Dr. Furse. Upon learning of Cauthen’s hoarseness, Dr. Furse immediately referred him to Dr. Brian Wilson, an ear, nose and throat specialist in Rock Hill, South Carolina.
Also on May 3, 1991, Dr. Wilson performed an indirect laryngoscopy with a flexible laryngoscope on Cauthen’s throat. At that time, Dr. Wilson found a lesion on Cauthen’s left vocal cord. Dr. Wilson then ordered that further tests be done, including a direct laryngoscopy and a CT scan, to determine the “stage” of the tumor in Cauthen’s throat. Dr. Wilson’s orders were to “rule out” a “T2N0M0” carcinoma in his throat. [FN2]

FN2. With regard to throat cancer, the following classifications, or

“stages,” are used: A T1 tumor is confined to the vocal cord with no extension off the vocal cord, and no impairment of motion of the cord. A T2 tumor extends off the visible vocal cord into other areas and may produce some impairment of motion. T3 and T4 tumors extend even further into the tissue surrounding the visible vocal cord. The difference between a T1, T2, T3, and a T4 tumor is of critical importance when choosing the method and extent of treatment. If the tumor is still confined to the vocal cords, then very localized radiation treatment or surgical removal will usually cure the cancer completely. If the cancer has spread off of the vocal cords, then localized radiation will not properly attack all of the cancer, leaving it free to continue spreading.

For example, the N0M0 classification of a tumor represents that the cancer has not metastasized and that there is no involvement of the nodes.

Dr. Wilson’s diagnosis and instructions to rule out a T2 tumor were given because a physical examination of the throat may not be enough to determine the true extent of the tumor. An indirect laryngoscopy limits what can actually be seen of the vocal cords and larynx. A direct laryngoscopy gives a more complete view of the vocal cords and larynx. Moreover, even with a direct laryngoscopy, possible sub-mucosal (under the surface) tumor invasion into the surrounding tissue cannot be seen. Dr. Wilson’s orders were to perform a CT scan of the area to properly stage the tumor. With a CT scan, or an MRI, any spread into the surrounding tissue might be seen. A physical exam, employing a direct or indirect laryngoscopy cannot fully show extensions beneath the surface of the vocal cords and into surrounding areas. *712 The misdiagnosis, mis-staging, and under-treatment of a tumor can allow the cancer to spread, while appropriate treatment after a proper diagnosis almost always cures the cancer completely. [FN3]

FN3. All of the medical witnesses agreed that laryngeal cancer is one of the most curable of all cancers.

On May 6, 1991, Cauthen went to Columbia in an attempt to be seen at the VA Hospital. After a great deal of difficulty, [FN4] Cauthen was admitted to the VA Hospital on May 8, by Dr. David McKee (hereinafter “Dr. McKee”), a contract physician at VA.

FN4. The VA’s action toward Gaddis and Cauthen on this occasion were indifferent at best, and callous at worst.

On May 9, a direct laryngoscopy and biopsy of Cauthen’s left vocal cord was performed. [FN5] The results of the direct laryngoscopy and biopsy showed a cancerous tumor along the entire length of Cauthen’s left vocal cord. Cauthen’s tumor was staged as a T1 lesion.

FN5. A resident doctor ordered a CT scan of Cauthen’s throat, but, in another example of what seems to be the level of medical care provided at the VA, this order resulted in a CT scan of Cauthen’s head instead.

Based upon the VA’s diagnosis and staging of Cauthen’s tumor, the VA’s Tumor Board recommended a course of radiation therapy for Cauthen. [FN6] The course of radiation was performed for the VA at Richland Memorial Hospital, while Cauthen was still admitted at the VA. A small and localized radiation field was used. Cauthen’s radiation treatment was completed on July 16, 1991. Cauthen was released from the VA on July 17, 1991.

FN6. Dr. McKee did not attend the meeting of the Tumor Board.

Dr. McKee did not see Cauthen again during his entire course of radiation treatment, and did not once consult with the physicians at Richland Memorial Hospital who were performing the radiation treatment and monitoring.
On July 30, 1991, Cauthen returned to the VA Hospital with Gaddis for his first follow-up visit with Dr. McKee. At that visit, Cauthen’s voice was hoarse. Dr. McKee simply looked down Cauthen’s throat with a mirror and told Cauthen and Gaddis that there was no sign of cancer. Dr. McKee’s medical notes indicate that the vocal cord looked clear. Cauthen and Gaddis left this visit with high spirits, believing the cancer was cured.
Cauthen’s hoarseness worsened. He returned to the VA Hospital on September 3, 1991, for his second follow-up visit with Dr. McKee. Again, Dr. McKee simply looked down Cauthen’s throat with a mirror and told him that there was no sign of cancer. Dr. McKee’s medical notes for this visit again indicate that the vocal cord looked clear.
After this, Cauthen’s hoarseness continued to worsen. In addition, he began having soreness in his throat and pain in his ear. However, he was still eating and drinking well. On October 15, 1991, Cauthen returned to the VA Hospital for his third follow-up visit with Dr. McKee. Once again, Dr. McKee simply looked down Cauthen’s throat with a mirror and told him that there was no sign of cancer. Dr. McKee’s medical notes again indicate at this visit that the vocal cord looked clear, but noted for the first time since radiation therapy that there was some swelling, or edema, in the area. At no time during any of these follow-up visits did Dr. McKee perform a direct laryngoscopy, order further diagnostic tests, or examine Cauthen’s outer neck for lumps or other signs of tumors. The Court finds incredible Dr. McKee’s testimony that the now-noted edema was always present, but was noted by him here to change his notes, thereby avoiding the appearance of “rubber-stamping” his notes. This explanation is particularly unbelievable because edema noted for the first time here almost certainly indicated a recurrence, or persistence of cancer. At this stage in Cauthen’s treatment, a doctor’s failure to respond accordingly in light of a “new” edema would be, in essence, an admission of malpractice. The Court believes that faced with this alternative, Dr. McKee gave this story about not wanting to “rubber stamp” his notes. The Court finds Dr. McKee’s testimony on this point wholly without merit. *713 Dr. McKee told Cauthen that there was no cancer and scheduled the next follow-up visit for January of 1992. Dr. McKee prescribed Tylenol for Cauthen’s pain.
Shortly thereafter, Cauthen’s condition grew considerably worse. His hoarseness worsened, his throat was very sore, he had a severe earache, he was coughing up phlegm, and could not eat or drink well. In addition, he developed dysphasia (difficulty in swallowing) and a large lump appeared on the side of his neck.
On November 5, 1991, Gaddis took Cauthen back to the VA Hospital to see Dr. McKee. Dr. McKee simply looked once again down Cauthen’s throat and said that there was no sign of the cancer. Once again, Dr. McKee did not perform a direct laryngoscopy, did not order or perform a CT scan, and did not discuss with Cauthen the possibility that the hoarseness, pain, swelling, dysphasia, and lump could be a sign of the persistence of the tumor. Once again, Dr. McKee did not even examine the outside of Cauthen’s throat for lumps or other signs of a tumor.
Gaddis then expressed concern about Cauthen’s condition, the fact that he could not eat or drink, and about the large lump on the side of his throat. Dr. McKee explained it as simply a swollen lymph gland. At Gaddis’s insistence, Dr. McKee finally agreed to admit Cauthen to the VA Hospital on that day, November 5th.
Dr. McKee’s admission notes do not reflect any indication that Dr. McKee was concerned that Cauthen’s cancer was persisting or recurring. [FN7] No tests or studies to detect the cancer, such as a direct laryngoscopy and biopsy or a CT scan, were ordered or performed. Only marginal steps were taken to rehydrate Cauthen. Even with clear orders for the administration of liquids and nutrition through intravenous lines, nurses failed to carry out the physicians’ directives. On at least one occasion, when Cauthen pulled out his IV lines, the nurses simply left them out without taking any steps to keep them in. Cauthen was an adequate candidate for surgery during the period from approximately November 6th through November 8th, as confirmed by the VA’s own witness, Dr. Barwick, a surgical resident who attended Cauthen.

FN7. While the Government has tried to convince the Court that the doctors knew cancer recurrence was a possible diagnosis, that testimony is

completely unpersuasive.

Incredibly, in light of Cauthen’s condition and the clear indications of the persistence of his laryngeal cancer, on November 7, 1991, the VA informed him that they were getting ready to send him home. Cauthen called Gaddis and informed her of this development. Gaddis called Cauthen’s attending resident, Dr. Lynn Flowers, and asked him about such an apparent mistake. Dr. Flowers indicated that Cauthen was being sent home with orders to re-hydrate him and to receive guidance from a dietician regarding his eating habits. Dr. McKee had not seen Cauthen since he was first admitted.
On November 9, 1991, Dr. Flowers called Gaddis to ensure that she was coming to the VA to pick up Cauthen on that day, as the VA was preparing to release him. When Gaddis arrived, she found Cauthen curled up, lying in a urine-soaked bed. The urine stain on the bed sheet was brownish and drying around the edges, suggesting that Cauthen had been lying in the urine-soaked bed for some time. He had no IV tubes in his arm and was greatly disoriented. Gaddis’ efforts to obtain nurse assistance were futile, and Gaddis had to clean up Cauthen herself. [FN8]

FN8. Gaddis, then 37 years old, had never seen her father naked and had never before had to assist her father in such a manner.

Finally, Dr. Flowers arrived and Gaddis explained the situation. The doctor tried to find a lighted instrument to look down Cauthen’s throat but could not find one. Dr. Flowers was joined by another doctor, and the doctors finally looked down Cauthen’s throat with a mirror. The doctors determined that there was a blockage in the throat. They then put Cauthen in the surgical intensive care unit because of bronchial spasms. Dr. McKee still had not seen Cauthen since he was admitted on November 5. In addition, there had still been no tests or studies done, such as a direct laryngoscopy *714 and biopsy or CT scan, to test for the persistence or recurrence of Cauthen’s throat cancer.
In response to Cauthen’s breathing difficulties, Dr. Flowers finally placed an endotracheal tube down Cauthen’s throat on November 12. Cauthen was admitted by Dr. McKee for dehydration. However, Dr. McKee took no steps to address Cauthen’s throat pain, his difficulty in swallowing, and the general critical and serious problems with his throat.
Cauthen remained in the surgical intensive care unit from November 9 until December 2, 1991. It was not until November 14, that Dr. McKee even saw Cauthen. On that day, a direct laryngoscopy was performed and it was determined that Cauthen’s cancer had persisted and that he now had a tumor the size of a “golf ball” in his throat. [FN9] Dr. Flowers went with Gaddis to tell Cauthen that his cancer was still there. When told of the cancer, Cauthen cried.

FN9. A CT scan was still not performed until the next day, November 15, 1991. Even then it seems that a CT scan of the throat was a mistake. The doctor’s orders are for a CT scan of the chest, abdomen, and hips. Ironically in May a neck CT scan had been ordered but one of the head was done. See, note 4.

During the next two weeks, more tests and scans were performed, many in an untimely manner. There was no urgency in the care of Cauthen. On November 29, 1991, a tracheostomy was performed on Cauthen to ensure his ability to breathe. Even though there was a slight rebound after November 29, Cauthen never recovered from the effects of sustained hypoxia. [FN10]

FN10. Dr. Spencer, a government pathologist, now disagrees with the VA autopsy and claims that Cauthen’s death was caused by an independent and unrelated heart attack. However, all of the Plaintiff’s expert physicians concur with the VA’s autopsy that Cauthen’s untreated cancer led to sepsis, hypoxia, multiple organ failure, and his death. Although unwilling to go so far as to officially change his opinion, Dr. Spencer admitted that the full and complete facts of the case, when finally brought to his attention

during cross examination, were surprising and that he would have liked to have known about them when forming his opinion.

On December 2, 1991, despite Cauthen’s obviously critical condition, he was removed from the intensive care unit to a room with no continual monitoring. Despite Cauthen’s critical and dangerous condition, the hospital records reflect very long periods of time in which no VA medical personnel, either doctors or nurses, properly checked on Cauthen.
On December 10, 1991, the medical records reflect that the mucous which was coming from Cauthen’s trach tube was increasing in flow and changing in color and character. On that morning, Cauthen’s brother and sister-in-law came to visit him. The VA had Cauthen sitting up, tied to a chair with wrist straps and posey belts. Cauthen was disoriented, unresponsive, and coughing up large amounts of phlegm.
Between approximately 11:00 a.m. and 4:30 p.m., Cauthen’s brother and sister-in-law tried in vain to get the VA nurses to help Cauthen. During that entire time, no one came into Cauthen’s room. Hours later, Cauthen was found dead, still tied to the chair. He was sixty-nine years old.
The testimony and evidence in this case, especially the medical records, paint a dismal picture of neglect by the VA Hospital; especially during the last days leading up to Cauthen’s death. There are only sparse records about the care, cleaning, and suctioning of Cauthen’s trach tube. The sparse medical notes which are present during this time are often illegible. There are several shifts during those days for which no nursing notes are entered. Vital signs were often not checked or charted for long periods of times; often several shifts. There is often a failure to chart a record of Cauthen’s breathing as ordered by the physicians. Cauthen’s nurse-call button was often not within his reach when he was restrained. Many doctors’ orders were never followed and many were followed only after several days had passed.
Dr. Hirst-Allen, a VA physician, performed an autopsy and determined that Cauthen’s death was caused by his untreated and spreading laryngeal cancer, which led to infection and multiple organ failure, which led to the stoppage of his heart. The autopsy also revealed that the cancer was found to be *715 large and localized, on both sides of the vocal cords without metastasis.

CONCLUSIONS OF LAW

Negligence:
There are literally dozens of breaches of the medical standard of care in this case. Many of these breaches are admitted by the VA’s own witnesses. Many others are clearly proven from the evidence and testimony presented. Cauthen’s death was directly caused by such neglect and error.
Breach of the Standard of Care:
Cauthen’s diagnosis and treatment can be separated into three time periods. First is the period from March, 1991 through his radiation treatment, ending on July 17, 1991. Second is the follow-up period which begins on July 17, 1991, and runs through November 5, 1991. Third is Cauthen’s final period of hospitalization beginning on November 5, 1991 and ending with his death on December 10, 1991.
Initial diagnosis and treatment:
Although the Court does not find it necessary to causally connect the treatment received during this period with Cauthen’s death, it appears the VA breached the appropriate standard of care in several ways:
Dr. McKee never even saw Cauthen after the direct laryngoscopy on May 9th until the first post-radiation follow up visit on July 30, 1991. This includes the entire six week radiation treatment period. [FN11] Dr. McKee himself admitted that his own record keeping was not very good and that he failed to read all of the orders and progress notes of the residents, interns, medical students, and nurses who were attending Cauthen. Dr. McKee never consulted with the physician administering Cauthen’s radiation treatment. Dr. Wells, the VA’s own expert witness, testified that this fact was surprising to him.

FN11. Although Cauthen was diagnosed with laryngeal cancer on May 9,

1991, the VA delayed his treatment until May 30, 1991, twenty-one days later.

The follow-up period:
The second period of Cauthen’s care, the follow up period from July 17 until November 5, 1991, is when the most crucial breaches of the standard of care occurred. It is during this period that the signs of persistence of Cauthen’s cancer were surfacing more and more clearly with each follow-up visit. Dr. McKee ignored these obvious signs, and missed several opportunities to diagnose and treat Cauthen’s tumor with salvage surgery (surgical resection of the tumor); a step which, by everyone’s account, would have saved Cauthen’s life.
Initially, Dr. McKee erred during the follow-up period by failing to refer Cauthen back to the treating radiologist for a follow-up examination during the first six weeks following radiation therapy. The VA’s own witness, Dr. Wells, testified that the standard of care required such a referral.
As discussed above in the findings of fact, Cauthen’s symptoms worsened from one follow-up visit to the next. If the radiation therapy was successful, and reduced or eliminated the tumor located on the cord, then the hoarseness, pain, and swelling were indications that there was another reason for the symptoms, likely a recurrence or persistence of the tumor in the surrounding tissue. This was made clear by the testimony of the Plaintiff’s physician witnesses as well as the VA’s expert, Dr. Wells. This should have been a red flag to Dr. McKee.
It was a breach of the standard of care for Dr. McKee to have failed to at least inform Cauthen that there was a possibility that the tumor was persisting or recurring, and to have failed to give him further diagnostic and treatment options. There is absolutely no question that on October 15, 1991, when Cauthen’s hoarseness continued to worsen, when Cauthen experienced pain, and when swelling was noted for the first time, Dr. McKee breached the medical standard of care when he failed to take further steps to properly evaluate and treat Cauthen. The testimony was uncontroverted that, had Dr. McKee discovered the persistence of the tumor at that time, Cauthen would have been able to undergo removal surgery and that it almost certainly would have been curative and saved his life.
*716Dr. McKee testified that his notes on October 15, indicating the appearance of swelling for the first time, may not really have meant that. He testified that there may have been swelling during the past visits but that he did not like to “just rubber-stamp” his progress notes. He indicated that he might have added the note about swelling so that there was some variety in his notes. First, if Dr. McKee’s practice really was as he stated, this was a breach of the standard of care according to VA witness Wells. In medical treatment, trends are of critical importance. As in Cauthen’s case, if swelling appeared for the first time in October, this was a critical factor for monitoring Cauthen’s condition.
Cauthen’s November 5 visit to Dr. McKee almost had the same result as his previous follow-up visits. If Gaddis had not insisted, it is doubtful that McKee would have admitted Cauthen to the hospital. Once again, Dr. McKee did not even order or perform further diagnostic tests to investigate the cause of his problems (i.e., recurrence or persistence of the tumor), such as a direct laryngoscopy and biopsy or a CT scan. He simply stated that there was no sign of cancer and that the lump on Cauthen’s neck was only a swollen lymph gland.

The final hospitalization:

Cauthen’s final hospitalization was one of continuing neglect and error containing many individual breaches of the standard of care. Among these areas were: The VA’s failure to quickly diagnose, treat, and remove the growing tumor in Cauthen’s throat; VA’s failure to address Cauthen’s immediate medical needs which caused his condition to deteriorate to a state in which removal surgery was inadvisable or impossible; VA’s failure to discuss with Cauthen or Gaddis the options available to them, including the weighing of risks for waiting or performing the removal surgery in light of Cauthen’s condition; and VA’s failure to properly monitor, treat and care for Cauthen caused continued decline, distress, pain, suffering, and eventually death.
The many breaches of the standard of medical care during this final hospitalization, as listed in detail in the findings of fact, fall under one of the four general areas of breach listed above. It is noteworthy that many of the breaches were freely admitted by VA personnel or other VA witnesses.
VA nurse Ellastine Horne, herself, admitted at least fourteen breaches involved in Cauthen’s care. In addition, many of the VA’s physician witnesses, whether fact witnesses or expert witnesses, admitted several breaches and further admitted “surprise” when specifically questioned about details in the medical records which were evidence of negligent care. [FN12]

FN12. On several occasions, the VA’s expert witnesses began by giving opinions which defended Dr. McKee and the VA’s actions, or in some other way defended the VA’s case. However, upon cross examination, when all of the details of Cauthen’s care were made clear to them, they expressed some surprise. Dr. Wells, the VA’s ENT expert, even admitted that if some of the facts in the record were true, then that might affect his opinions; in his words: “all bets are off.” Dr. Spencer, the VA’s pathologist, who first testified that Cauthen’s death was not the result of cancer but was the result of an independent heart attack, clearly indicated that he would have liked to have had more of the facts of the case in the formation of his opinions. These assertions by the VA’s own witnesses lead this Court

to seriously question some of the VA’s expert’s opinions based upon the strong suspicion that they had not been fully and fairly informed of all of the facts of the case before they were asked to give their opinions.

Dr. Flowers, the VA resident attending to the care of Cauthen, was, in many ways, typical of the VA’s witnesses in this case. He attempted to respond with an unseemly willingness to defend the VA in this case. In so doing, he was often caught in an inconsistency. For instance, Dr. Flowers attempted to defend the VA’s delay in action by testifying that it would have been nearly impossible for Cauthen to have been moved from surgical intensive care to have the CT scan of the neck performed. Yet, when confronted with the clear records in this case, he had to admit that he himself ordered several CT scans for other areas on several days while Cauthen was actually in surgical intensive care.
It is further evident from the testimony and evidence, that Cauthen’s final weeks in the VA Hospital were filled with pain and suffering, both physical and emotional. He was, for the most part, placed and kept in a helpless state, tied to a chair, often without *717 the ability to eat, drink, breathe properly, or use the bathroom. In addition, he suffered with the knowledge that his cancer was not cured as he had been earlier assured by Dr. McKee, and that he was probably going to die under the most painful and helpless conditions. [FN13] While his pain and suffering really began during the period from July through November, his physical and emotional pain and suffering was many times worse during his final hospitalization. During this final period, for example, pain medicine was ordered for him but never given.

FN13. The Court notes that Cauthen’s desire, as recounted through testimony, to defeat his cancer, and the happiness expressed by him when he was told the cancer was defeated, were rivaled in intensity only by the dread which he was forced to endure due to the VA’s negligence over the course of his illness.

Causation:
The VA’s own autopsy concluded that Cauthen’s death was caused by his untreated and spreading laryngeal cancer, which led to infection and multiple organ failure, which led to the stoppage of his heart. [FN14]

FN14. It is interesting to note that the VA defends everything it did except the autopsy.

It is clear that Cauthen died as a result of his untreated cancer and the negligence of the VA Hospital. [FN15]

FN15. On the day of Cauthen’s funeral, an individual from the VA called Gaddis’s office to tell her that everything was all right with her father. The caller did not even know that Cauthen was dead.

There is no question that, at the very latest, on October 15, 1991, Dr. McKee missed an opportunity to save Cauthen’s life. [FN16] On November 5, 1991, Dr. McKee also missed an opportunity to save Cauthen’s life. Dr. McKee’s failures on these two dates, as well as later failures, directly caused a death which would not have occurred otherwise. Testimony in this case put Cauthen’s survival percentage at over 90% had salvage surgery been performed, as it should have, on or about October 15, 1991.

FN16. It is probable that even as early as July 30, 1991, or September 3, 1991, Dr. McKee could and should have taken another course of action which would have saved Cauthen’s life.

Damages:
Wrongful Death:
[4] According to the statutory life expectancy tables, Cauthen would have had a life expectancy of 11.54 years. In addition is the fact that all of Cauthen’s brothers and sisters are still alive, indicating a familial propensity towards longevity. Further, it is clear from the testimony and evidence in this trial that Cauthen could have expected love, care, and support from his family. Accordingly, this Court finds that Cauthen would have had a life expectancy of ten (10) years.
As discussed above, this Court is convinced that Gaddis and Cauthen enjoyed a close, loving relationship. Accordingly, this Court values the loss of society and companionship at $80,000.00 per year, for a total of $800,000.00. For mental shock and suffering, this Court awards $75,000.00. For grief, sorrow, and wounded feelings, this Court awards $75,000.00. For funeral expenses, based upon evidence presented, this Court awards $3,526.65.

Pain and Suffering of Cauthen:

Cauthen died a horrible death. He endured terrible pain and suffering while slowly suffocating to death. Although pain medication was ordered, none was given to help offset the terrible pain caused as Cauthen’s cancer slowly ate away the cartilage and muscle of his throat and neck. In addition, Cauthen suffered a severe loss of dignity and pride. He was reduced to a helpless state, in diapers, unable to help himself or even communicate with his family.
Calculating from October 15, 1991, through his final, horrible hospitalization until his death on December 10, 1991, this Court awards $125,000.00 for the pain and suffering of Cauthen.
This Court, therefore enters a judgment against the Defendant and in favor of the Plaintiff in the total amount of $1,078,526.65. This Court has carefully awarded damages in accordance with the actual damages suffered by Cauthen and Gaddis, without adding any punitive component to this award.
D.S.C.,1997.
Gaddis v. U.S.
7 F.Supp.2d 709

241 F.Supp.2d 1183

United States District Court,
D. Kansas.
ESTATE of Lawrence A. KOUT, Eva L. Kout, Lance A. Kout, Deanna M. Lyon,
Plaintiffs,
v.
UNITED STATES of America, Seyed A. Sajadi, and Managed Health Care, Ltd.,
Defendants.
Case No. 01-4175-SAC.
Nov. 22, 2002.

*1186 MEMORANDUM AND ORDER

CROW, Senior District Judge.
This medical malpractice case comes before the court on the following motions: plaintiff’s motion to estop the government (Dk. 39); the government’s motion to dismiss a claim (Dk. 41); and defendants Sajadi and Managed Health Care, Ltd.’s motion for judgment on the pleadings (Dk. 68). Discovery has been stayed pending decision of these motions.
Facts
The facts underlying these motions are few and undisputed. On March 23 and 24, 2000, Lawrence A. Kout visited the Colmery-O’Neil Veterans Administration Hospital in Topeka, Kansas twice: once from approximately 4:15 a.m. to 5:35 a.m., and once from 6:45 p.m. until his death the following morning. Each time he was treated by Dr. Seyed A. Sajadi. The second time, Dr. Dasaraju was asked to consult on Mr. Kout’s case, and was in charge of his care and treatment from approximately 12:20 a.m. on March 24 until approximately 3:35 a.m., when he was pronounced dead.
The estate and family of the deceased initially brought suit pursuant to the Federal Tort Claims Act (“FTCA”) solely against the government, asserting that Dr. Sajadi and others were negligent in their care and treatment of Mr. Kout. Plaintiffs later amended their complaint to add Dr. Sajadi and Managed Health Care. Ltd. as defendants.
The government responds that Dr. Sajadi was not its employee on the relevant dates, but was working for Managed Health Care, an independent contractor of the government, precluding any liability under the FTCA. Plaintiffs reply that the government should be equitably estopped from asserting the independent contractor status of Dr. Sajadi because of factors including the government’s delay in so notifying plaintiffs until after the statute of limitations had run. Additionally, defendants Sajadi and Managed Health Care assert that the statute of limitations expired before plaintiffs filed suit against them. Plaintiffs contend that their suit against these defendants is permitted because of the relation back doctrine. These controlling procedural issues are ripe for determination.
Government’s motion to dismiss
The court first examines the government’s motion to dismiss the FTCA claims against it based upon any acts or inaction of Dr. Sajadi, pursuant to Fed.R.Civ.P. 12(b)(1). [FN1] This motion is founded upon the assertion that at all relevant times, Dr. Sajadi was not an employee of the government, but was an employee of an independent contractor, barring all FTCA claims against the government based upon his acts or inactions.

FN1. No motion to dismiss has been filed relating to the acts of Dr. Dasaraju, whom the government admits is a VA employee physician in ICU.

The parties do not dispute that the FTCA waives the government’s sovereign immunity for tortious acts caused by its employees, but preserves sovereign immunity for identical acts or omissions of independent contractors. See 28 U.S.C.A. § 1346(b); Williams v. United States, 50 F.3d 299, 305 (4th Cir.1995)(district court lacks subject matter jurisdiction to hear FTCA claim arising out of the actions of an independent contractor); 28 U.S.C. § 2671 (defining “federal agency” to exclude “any contractor of the United States.”); Kirchmann v. United States, 8 F.3d 1273, 1275 (8th Cir.1993) (affirming dismissal for want of subject matter jurisdiction under Rule 12(b)(1) because the entity’s status as an independent contractor *1187 precluded imputed liability on behalf of the United States); Broussard v. United States, 989 F.2d 171, 177 (5th Cir.1993) (per curiam) (noting that the proper practice is to dismiss for want of jurisdiction for purposes of the FTCA under Rule 12(b)(1), not to grant summary judgment under Rule 56(c)). Given the controlling law, no FTCA claim will lie against the government in this case unless Dr. Sajadi was an employee of the government on March 23-24, 2000.
The parties dispute the test which should be used to determine this issue. Plaintiffs assert that the proper focus of the inquiry should be “what control the government actually exercised over Dr. Sajadi’s practice,” regardless of the intent of the parties. Dk. 50, p. 5. [FN2] The government states that its intent is determinative. Both parties rely largely on the case of Lilly, supra.

FN2. Plaintiffs have additionally filed without leave of court, and in violation of the local rules, a surreply (Dk. 58) which the court shall not consider.

The court agrees that Lilly establishes the governing law, and that its language leaves room for dispute. There, the Tenth Circuit addressed the issue by stating:
The critical determination in distinguishing a federal employee from an independent contractor is the power of the federal government “to control the detailed physical performance of the contractor.” Logue v. United States, 412 U.S. 521, 528, 93 S.Ct. 2215, 2219, 37 L.Ed.2d 121 (1973). In our circuit “the key inquiry under this control test is whether the Government supervises the day-to-day operations of the individual.” Lurch v. United States, 719 F.2d 333, 337 (10th Cir.1983).
In Lurch, a case similar to the one before us, the plaintiff sued the Veterans Administration hospital under the Federal Tort Claims Act alleging that a surgeon’s negligence caused his hearing loss. In dicta, we noted that
Because a physician must exercise his own professional judgment, no one controls the detailed physical performance of his duties. Given this, by strictly following the traditional control test it is doubtful whether a physician could ever be found to be a federal employee under the FTCA.
. Although the application of a “modified control” test “seems logical” in this situation, we did not adopt such a test in Lurch because the issue was not before us. Id. at 337-38. But see Quilico v. Kaplan,*1188 by express, unambiguous agreement.
Lilly v. Fieldstone, 876 F.2d 857, 858-59 (10th Cir.1989).
A more recent case in which the Tenth Circuit interpreted Lilly sheds additional light on the proper test, in stating:
In determining whether an individual is a federal employee or an independent contractor, the critical question is whether the federal government has the power to control the detailed physical performance of the individual. [See 876 F.2d at 858.] We have held that the key inquiry under this control test is “whether the Government supervises the day-to-day operations of the individual.” Id. (quotation marks omitted). This inquiry involves consideration of a number of factors, including the intent of parties, the allocation of insurance obligations, and whether the government in fact controlled only the end result of [the physician’s] efforts or also controlled the manner and method in which [the physician] conducted his activities. See id. at 859.
188 F.3d 1195, 1200 (10th Cir.1999).
Application of the factors noted above to the facts shown by the record [FN3] reveals that Dr. Sajadi was not an employee of the government at the relevant time. Plaintiffs do not dispute the fact that a written contract existed between the Colmery-O’Neil Veterans Administration Hospital in Topeka, Kansas, (“VA”) and Managed Health Care, Ltd., requiring the latter to provide the Officer of the Day (OD) for the Urgent Care division of that hospital during the relevant time. Plaintiffs do not challenge defendant’s assertion that the contract covered Dr. Sajadi, and that Dr. Sajadi was assigned by Managed Health Care, Ltd. as the OD on March 23-24, 2000. Nor do plaintiffs dispute any of the governing language of the contract.

FN3. In ruling on a Rule 12(b)(1) motion, the court may consider exhibits outside the pleadings, without converting the motion into one for summary judgment under Rule 56. Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (10th Cir.), cert. denied, 484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d 501 (1987); Rothenberger v. U.S. By and Through U.S. Air Force, 931 F.2d 900, 1991 WL 70719, *2 (10th Cir.1991).

The contract states, in pertinent part, as follows:
6. Personnel Policy
The contractor shall be responsible for protecting the personnel furnishing services under this contract. To carry out this responsibility, the contractor shall provide the following for these personnel: Worker’s compensation, income tax withholding, and social security payments. The parties agree that such personnel shall not be considered VA employees for any purpose and shall be considered employees of the contractor.
Dk. 41, Exh. A 4, p. 16.
1.8 Indemnification and Medical Liability Insurance
It is expressly agreed and understood that this is a nonpersonal services contract … under which the professional services rendered by the Contractor or its health care providers are rendered in its capacity as an independent contractor. The Government may evaluate the quality of professional and administrative services provided but retains no control over professional aspects of the services rendered, including by example, the Contractor’s or its health-care providers’ professional medical judgment, diagnosis, or specific medial (sic) treatments. The contractor and its health care providers shall be liable for their liability-producing acts or omissions. *1189 The Contractors shall maintain or require all health-care providers performing under this contract to maintain, during the term of this contract, professional liability insurance issued by a responsible insurance carrier of not less than [stated amount] per specialty per occurrence.
Dk. 41, Exh. A 4, p. 16. The court has found no language in the contract or other documents which contradicts the plain language set forth above, or which otherwise supports plaintiff’s assertion that Dr. Sajadi was a government employee, nor do plaintiffs point to any.
Instead, plaintiffs assert that “the contract is largely immaterial as the issue is whether Dr. Sajadi was an employee.” (Dk. 50, p. 6.) Although the court is confounded by this statement, plaintiffs apparently mean that it is not the contract, but the control test which should govern the determination of the issue. Plaintiffs ignore the fact that the contract speaks volumes about the government’s control, in stating that the Government “retains no control over professional aspects of the services rendered, including by example, the Contractor’s or its health-care providers’ professional medical judgment, diagnosis, or specific medi[c]al (sic) treatments.” Id. This language, which reveals the clear intent of the parties, has not been shown to be inapplicable to the present case. Therefore, by virtue of this agreement, the government retained no control over Dr. Sajadi’s professional medical judgment, diagnosis, or specific medical treatments, the very aspects of his practice which give rise to plaintiffs’ suit.
Nor have plaintiffs shown that the “actual control” exercised by the government over Dr. Sajadi was in any way inconsistent with the language of the controlling contract, set forth above. No pattern or practice of the parties has been shown evidencing any degree of control by the government over the aspects of Dr. Sajadi’s practice which give rise to plaintiffs’ complaints.
Plaintiffs urge the court to consider items such as the following in making the “control” determination: separate billing at standard rates, exclusive control by the physician over his patients and records, lack of permanent office space at the hospital, no secretarial help at the hospital, not being regularly scheduled on the hospital duty roster, no requirement that he see patients only at the hospital, and some ability to refuse to see a military patient. (Dk. 50, p. 5). Plaintiff offers no evidence to show that any of these facts is present in this case, however. Compare Lilly, supra.
In tacit recognition of this factual failing, plaintiffs assert that the “relevant facts to resolve the question presented were not developed” because “the Defendant waited so long to raise this issue.” (Dk. 50, p. 6). Plaintiffs request additional discovery on this issue, at defendant’s expense, including attorneys’ fees. This request shall be denied as futile, given the clear and unequivocal language of the governing written agreement between the VA and Managed Health Care, Ltd., relating to control of Dr. Sajadi’s practice. Because Dr. Sajadi was not an employee of the government during the relevant time, no FTCA claims based upon his actions or inactions may be brought against the government.

Plaintiff’s motion to estop the government
The court next addresses plaintiff’s motion to estop the government from asserting that Dr. Sajadi was employed by an independent contractor, rather than by the government. Although plaintiffs have requested oral argument on this motion, *1190the court finds tha t oral argument would not materially assist the court, so denies that request.
Plaintiff asserts that estoppel is warranted because “defendant knew that the plaintiffs believed that Dr. Sajadi was the defendant’s employee, that the plaintiffs believed Dr. Sajadi’s negligence caused their father’s death, and that the plaintiffs intended to hold the defendant legally responsible, under the FTCA, for the damages caused by Dr. Sajadi’s negligence.” Dk. 40, p. 9. The government proposes that this is not the proper test to use in determining whether to estop the government. [FN4] The court agrees.

FN4. Both briefs are unusually acrimonious.

719 F.2d 333, 341 n. 12 (10th Cir.1983), citing generally, Note, Equitable Estoppel of the Government, 79 Colum. L.Rev. 551, 552-54, 565-68 (1979). A showing of “affirmative misconduct” is necessary to estop the Government. See 459 U.S. 14, 103 S.Ct. 281, 74 L.Ed.2d 12(1982) (per curiam); Schweiker v. Hansen, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981) (per curiam); INS v. Hibi, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973) (per curiam).
The Tenth Circuit’s requirements for a claim of estoppel against the Government are:
(1) the party to be estopped must know the facts; (2) he must intend that his conduct will be acted upon or must so act that the party asserting the estoppel has the right to believe that it was so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former’s conduct to his injury. (citation omitted ).
Lurch, 719 F.2d at 341.
The court finds that plaintiffs fail to show the basic first element of estoppel. No showing is made that government’s counsel knew of any fact which might lead it to claim that Dr. Sadaji worked for an independent contractor before the statute of limitations expired. Instead, it is undisputed that the government’s counsel learned of this fact only approximately two weeks before it disclosed that fact to plaintiffs’ counsel, long after the statute had expired.
Plaintiff contends that because the independent contractor agreement was in existence, the government itself knew of the agreement and thus of Dr. Sajadi’s status as a contract employee from the beginning of administrative proceedings which predated initiation of suit, if not before. Plaintiff seeks to impute this knowledge to government’s counsel, and to impose upon him a duty to discover and disclose. The court finds no basis in law for such an approach, and plaintiffs offer none.
Here, the government has not been shown to have taken any affirmative acts or made any misrepresentations to plaintiffs relating to Dr. Sajadi’s employment status during the course of the administrative proceedings which predated the filing of this case, during discovery proceedings in this case, or at any other time. Neither the government’s answer nor any discovery documents included in the record before this court assert that Dr. Sajadi was or was not its employee. Plaintiffs have not alleged that at any time, the government made any verbal or written representations to them that Dr. Sajadi was or was not its employee. Plaintiffs complain *1191 of the government’s silence during administrative proceedings prior to their initiation of this suit, but have not shown the court that this particular issue ever arose, or the manner in which it was addressed, if at all, by the government.
The court therefore finds that at no time prior to the government’s assertion to plaintiffs that Dr. Sajadi was not a governmental employee, did the government made any representation intended to lead or which would have led plaintiffs or any reasonable persons to believe that Dr. Sajadi was an employee of the government. Rather, the government took no action and made no representations whatsoever on this topic. Its delay in learning the true status of Dr. Sajadi may or may not evidence a lack of diligence, but fails to shows any intent or attempt to mislead plaintiffs.
The court finds that plaintiffs fail on at least the first two elements of estoppel, and additionally have not shown that the government engaged in any affirmative misconduct. Plaintiffs’ motion to estop shall therefore be denied.
Motion for judgment on the pleadings
Defendants Sajadi and Managed Health Care, Ltd., have moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), contending that suit against them was filed after the relevant statute of limitations had run. As originally styled, plaintiffs brought suit on November 20, 2001, against the United States of America alone. By an amended complaint filed on August 16, 2002, plaintiffs first named Dr. Sajadi and Managed Health Care, Ltd. as parties defendant.
The parties agree that plaintiffs’ claims are subject to a two year statute of limitations, and that the date plaintiffs first named these defendants as parties was more than two years after the cause of action accrued. Defendants thus contend that the action is barred by virtue of the statute of limitations.
Plaintiffs counter that under Kansas law, the action relates back to the date of the original pleading. See K.S.A. § 60-215(c). When a complaint is filed in federal court, however, the matter of relation back of amendments to pleadings is governed by the Federal Rules of Civil Procedure. Lemmons v. Board of County Com’rs of County of Brown, 2002 WL 370227, *2 (D.Kan.2002) (citing cases). This distinction is largely academic, however, as the language of the two is substantially similar.
Under Fed. R. 15(c)(3), an amendment adding a new party will relate back to the date of the original complaint only if three conditions are met:
(1) the amended complaint involves the same transaction or occurrence as the original complaint; (2) the new party had notice of the action such that the party will not be prejudiced in maintaining a defense on the merits; and (3) the new party knew or should have known that but for a mistake in identity, the action would have been brought against him.
Alexander v. Beech Aircraft Corp., 952 F.2d 1215, 1226-27 (10th Cir.1991).
Defendants challenge solely the mistaken identity requirement, contending that neither Dr. Sajadi nor Managed Health Care Ltd. knew or should have known that but for a mistake in identity, the action would have been brought against them. Defendant asserts that plaintiff’s error in naming only the government in its original complaint was the result of plaintiff’s strategic choice to assume that Dr. Sajadi was an employee of the government, rather than the result of any mistaken identity. Defendant further contends that neither Dr. Sajadi nor Managed Health Care Ltd. *1192is a party whose identity was or could reasonably have been mistaken with that of the government.
Where a plaintiff’s failure to name a defendant stems from lack of knowledge rather than a mistake in identification, the plain language of Rule 15(c)(3) does not permit relation back. Henry v. Fed. Deposit Ins. Corp., 168 F.R.D. 55, 59 (D.Kan.1996); see Mitchell v. Unified Goverment, 2000 WL 1920036 (D.Kan. Dec. 21, 2000). Similarly, errors due to tactical mistakes, rather than to true mistakes in identity, do not meet the requirements of the relation back rule. Bloesser v. Office Depot, Inc., 158 F.R.D. 168, 171 (D.Kan.1994).
Here, plaintiffs failed to name Dr. Sajadi and/or Managed Health Care, Ltd. because they assumed that Dr. Sajadi was an employee of the government. This error was either due to a lack of knowledge or an error in strategy, but was not the result of plaintiffs’ mistake about the identity of the government or either of these defendants. Rather, this case reflects a mistaken status of a known party, rather than a mistaken identification of a known party.
Unable to satisfy the mistaken identity requirement, the plaintiffs’ amended complaint does not relate back and their claims against Dr. Sajadi and Managed Health Care are barred under the two-year statute of limitations. The motion of these defendants for judgment on the pleadings shall thus be granted.
IT IS THEREFORE ORDERED that plaintiffs’ motion to estop the government (Dk. 39) is denied; that the government’s motion to dismiss claims (Dk. 41) is granted; that Dr. Sajadi and Managed Health Care, Ltd.’s motion for judgment on the pleadings (Dk. 68) is granted; and that plaintiff’s motion for oral argument (Dk. 57) is denied.
D.Kan.,2002.
In re Estate of Kout v. U.S.
241 F.Supp.2d 1183

Motions, Pleadings and Filings

• 5:01CV04175 (Docket) (Nov. 20, 2001)

99 F.3d 354

United States Court of Appeals,
Tenth Circuit.
John F. DEASY, Jr., Plaintiff-Appellee,
v.
UNITED STATES of America, Denver Veterans Administration Medical Center (the
“Denver VAMC”) Baltimore Veterans Administration Medical Center (the Baltimore
VAMC) and Perry Point Veterans Administration Medical Center (Perry Point
VAMC), Defendant-Appellant.
No. 95-1276.
Oct. 28, 1996.

LOGAN, Circuit Judge.
The United States appeals from the district court’s judgment in favor of plaintiff John F. Deasy, Jr. in his Federal Tort Claims Act (FTCA) suit for medical malpractice. Plaintiff asserted that psychiatrists at Veterans Administration (VA) hospitals committed malpractice when they provided him only psychiatric treatment and failed to refer him for medical treatment of severe edema. He further claimed that as a result of the malpractice he suffers from post traumatic stress disorder (PTSD), which prevents him from being able to receive the care at VA facilities to which he is entitled. The district court heard the case without a jury and found that the VA committed malpractice in Maryland and Colorado. The district court awarded plaintiff $3,993,971, to be placed in a reversionary trust to provide for his future *356 medical needs outside the VA hospital system, with any balance at plaintiff’s death reverting to the United States. The court also awarded plaintiff $600,000 damages for pain and suffering–$350,000 for the Maryland occurrence and $250,000 for the Colorado occurrence, the maximum permitted under those states’ tort laws.
On appeal, the United States argues that (1) the district court judge erroneously found that the psychiatrists committed malpractice; (2) the $4 million trust for plaintiff’s medical treatment outside the VA system was not compensatory for his injuries suffered and therefore was improper; and (3) the district court’s award of $600,000 for noneconomic damages was excessive.

I
The district court made detailed findings of fact and conclusions of law that we summarize here. Plaintiff is a service-connected, totally and permanently disabled veteran entitled to lifetime hospital and medical services from the VA. He has suffered for almost forty years from idiopathic retroperitoneal fibrosis, or Ormond’s disease. [FN1] Over the years he has required repeated hospitalization for treatment related to his Ormond’s disease, and also for psychiatric care.

FN1. Ormond’s disease causes scar tissue in the peritoneal cavity which can encase tubular organs or structures between organs, including veins and arteries. It is a cyclical disease which tends to have alternating periods of activity and remission. It is apparently difficult

to diagnose; in fact, plaintiff was originally diagnosed with Ormond’s disease and Hodgkins disease and was treated for both for some period of time.

In a prior FTCA case, plaintiff asserted malpractice for treatment at the VA from December 1976 through July 1980. The district court in that case found that the VA system failed to provide adequate medical care to plaintiff and awarded him $474,000 in damages. See Deasy v. United States, No. 83-M-899 (D.Colo. Dec. 27, 1985); II Supp.App. 383-405. Plaintiff then investigated obtaining private insurance coverage as an alternative to VA services but found he could not obtain coverage for his preexisting condition.
Plaintiff then met with Larry Seidl, M.D., an internist who was chief of staff at the Denver VA hospital, who agreed to become his primary treating physician. When plaintiff was hospitalized in 1987 for a kidney and urinary tract infection, he again became concerned with the quality of his treatment at the Denver VA hospital. Dr. Seidl ultimately drafted a document titled “Important Notice to All Physicians Treating John Deasy” (Dr. Seidl’s notice). II Supp.App. 367. The notice contained information about plaintiff’s medical history, including his primary diagnosis of idiopathic retroperitoneal fibrosis, and briefly outlining the physical and psychiatric treatments he had received. The notice stated that “[w]hat Mr. Deasy justifiably seeks is to obtain the optimum treatment available for his unusual medical condition and to avoid improper and ineffective or harmful treatment–which he has experienced in the past–based on review of his medical records, which include diagnoses, both medical and psychiatric, that are highly suspect, in my opinion.” Id. The notice explained that the psychiatric diagnoses in plaintiff’s history are highly suspect because they have occurred either during a period when his Ormond’s disease has been active with secondary renal function impairment and its resulting toxicity; or they have occurred during periods when he was receiving multiple medications including corticosteroids to control the Ormond’s disease which became active undiagnosed–to be detected only later when it interfered with other organ functions. From December 1976 through August 1980, his psychiatric diagnoses included chronic schizophrenia, manic-depressive psychosis and organic brain syndrome. It is more than highly probable in my opinion that his mental symptoms resulted from the adverse effects of multiple medications including corticosteroids. During this period, he experienced an active phase of the Ormond’s disease initially undetected, which caused common bile duct obstruction and the removal of an acalculus gall bladder. Subsequently the inferior vena cava syndrome developed secondary to the fibrosis. It should be noted here that during *357periods when the Ormond’s disease is active, Mr. Deasy may be highly sensitive to drugs and drug therapy of any kind should be conservative and closely monitored. … The toxic side-effects of his underlying disease and its treatment should always receive primary consideration in evaluating Mr. Deasy’s mental and emotional symptoms during treatment in the Veterans Administration Department of Medicine and Surgery.
Id. The notice included instructions that it be displayed as the top sheet in each volume of plaintiff’s medical records. The notice was signed by Dr. Seidl; however, it did not reflect the signature or concurrence of a psychiatrist.
In December 1989, plaintiff was staying at the Fort George Meade military base near Baltimore, Maryland, when he developed peripheral edema related to Ormond’s disease and the inferior vena cava syndrome. Despite plaintiff’s use of a diuretic the edema continued to worsen. On December 19, plaintiff decided to leave Fort Meade. Because of the edema, his feet were too swollen to wear his shoes. He decided to load his belongings into his van by taking them out a window so that he could avoid walking in the snow in his bare feet. Military police officers came upon plaintiff as he was using a hunting knife to pry the screen off a window. The military police decided that plaintiff needed medical or psychiatric care and took him to the Fort Meade infirmary. Plaintiff became agitated and uncooperative and was transferred to the Baltimore VA medical center.
Upon arrival at the Baltimore VA, plaintiff was evaluated by psychiatrists and became enraged when despite his requests he was not treated for his edema. During his brief stay at the Baltimore VA, psychiatrist David Barrett, M.D., diagnosed him with bipolar disorder manic psychosis, and prescribed thorazine. Although plaintiff’s friend and former treating psychologist, Dr. Thomas Holman, gave Dr. Barrett the notice signed by Dr. Seidl, Dr. Barrett analyzed an electrolyte test and decided that plaintiff’s physical condition was not causing the psychiatric disturbance. Dr. Barrett did not prescribe any medication or other treatment for the edema, although he noted that plaintiff’s legs were edematous. After a few hours Dr. Barrett decided to transfer plaintiff to the Perry Point VA medical facility, which is primarily a psychiatric facility. As part of the transfer procedure, another psychiatrist, Robert Fiscella, M.D., also examined plaintiff and diagnosed him as acutely manic.
When plaintiff was admitted at Perry Point, yet another psychiatrist, Eapen Abraham, M.D., noted that both of plaintiff’s legs and feet were edematous. As with Dr. Barrett, Dr. Abraham read Dr. Seidl’s notice but found normal electrolyte levels and concluded plaintiff’s physical condition was not causing his psychiatric problems. Plaintiff did not receive a medical consultation until December 22, but even though that examining physician noted plaintiff’s edema required attention, he prescribed no medication. Finally on December 28 plaintiff received a one-time dose of Lasix, a diuretic. The next day plaintiff fled Perry Point because he was afraid he would have life-threatening renal failure if he did not receive proper medical care.
Plaintiff returned to Denver, and was admitted in two private psychiatric hospitals. On January 29 he transferred to the Denver VA. Jay Griffith, M.D., a psychiatry resident, examined him. Dr. Griffith read but disagreed with the contents of Dr. Seidl’s notice; he diagnosed plaintiff as suffering from “bipolar disorder manic phase.” App. 188. Dr. Griffith continued plaintiff on Lasix, and set up a medical consultation for him. Plaintiff, however, left the Denver VA the next day because he wanted to get treatment for the edema, which had caused marked abdominal distension.
On January 30, plaintiff’s friends arranged an appointment with Russell Simpson, M.D., a private internist, who testified that plaintiff had “one of the worse cases of edema that [he’d] seen.” II Supp.App. 308. Dr. Simpson treated the edema with intravenous diuresis in the hospital; after three days plaintiff was discharged in stable physical and psychiatric condition.
In May 1990, plaintiff sought psychiatric treatment from Richard Rewey, M.D., a psychiatrist who had evaluated him in 1984. Dr. *358 Rewey testified at trial that plaintiff suffered PTSD as a result of VA treatment that was the subject of plaintiff’s first FTCA suit. Dr. Rewey testified that the VA’s treatment of plaintiff in December 1989 and January 1990 caused a flare-up of his PTSD in December 1990, requiring psychiatric treatment.
The district court noted that doctors who had treated plaintiff for more than a few days agreed that his psychiatric problems were at least partly caused by organic abnormalities, while doctors who had only briefly examined him or his records diagnosed him with bipolar disorder. It noted that even with this diagnosis, medications for bipolar patients were not prescribed for plaintiff. The district court then found that plaintiff suffered PTSD in reaction to improper treatment in the VA hospitals. The court determined that because plaintiff’s “well-founded fear of maltreatment in the V.A. system actually causes or precipitates serious psychiatric problems … provision must be made for [plaintiff] to receive medical and psychiatric treatment outside the V.A. system.” App. 63.

The United States contends the district court’s finding that the VA doctors committed malpractice was clearly erroneous. Because this is an FTCA case we apply the law of both Maryland and Colorado where the alleged malpractice occurred. Under Maryland law a prima facie case of medical malpractice consists of “(1) determining the applicable standard of care, (2) demonstrating that this standard has been breached, [and] (3) developing a causal relationship between the violation and injury.” Muenstermann v. United States, 787 F.Supp. 499, 520 (D.Md.1992). In Colorado, “[t]o establish a prima facie case, the plaintiff must establish that the defendant failed to conform to the standard of care ordinarily possessed and exercised by members of the same school of medicine practiced by the defendant.” Melville v. Southward, 791 P.2d 383, 387 (Colo.1990).

The United States asserts that the district court finding of malpractice rested on a determination that the VA hospitals failed to properly treat plaintiff’s edema, which contributed to his psychosis and PTSD and ultimately rendered him incapable of utilizing the VA hospitals. The United States asserts that “this theory, which is itself suspect, can support a damages award only if the VA’s treatment of Mr. Deasy’s edema, the sole malpractice alleged, fell below the level of care required of physicians who treat edemas.” Brief for Appellant at 13 (citing Armbruster v. Edgar, 731 P.2d 757, 759-60 (Colo.App.1986), and Muenstermann, 787 F.Supp. at 520-21).
The United States then argues that its witness, Stuart Linas, M.D., a board certified internist and nephrologist who testified that the VA hospitals treated plaintiff properly for edema, was the only expert qualified to testify on the standard of care for treating edema. The United States asserts that plaintiff’s psychiatrists were not qualified to offer an expert opinion on the standard of care for edema because that condition lies outside their specialty, see Greene v. Thomas, 662 P.2d 491, 493-94 (Colo.App.1982) (“expert witness must have acquired, through experience or study, more than just a casual familiarity with the standards of care of the defendant’s specialty”); Smith v. Pearre, 96 Md.App. 376, 625 A.2d 349, 359 (physicians testifying outside of own specialties must “have sufficient knowledge, skill, and experience to make a well-informed opinion”), cert. denied, 332 Md. 454, 632 A.2d 151 (1993), and that the record does not support a finding that the VA hospitals’ treatment of plaintiff’s edema constituted malpractice. We disagree.
Psychiatric experts asserted that the VA psychiatrists’ failure to provide medical treatment for plaintiff’s edema, or to refer him to specialists for such treatment, fell below the standard of care for psychiatrists. See I Supp.App. 188-89, 192 (Dr. Rewey); see also II Supp.App. 278-85 (William McCaw, M.D.) (giving opinion that if edema was treated plaintiff’s psychotic episode would perhaps be reduced); id. at 347-56 (John L. Wiberg, M.D.) (stating that plaintiff’s edema would affect his brain, resulting in psychotic behavior; and that “immediate medical consultation” should be sought by *359 treating psychiatrist). Of course, under both Maryland and Colorado law a psychiatrist can testify to the standard of care for psychiatry. Plaintiff relied upon psychiatric experts’ testimony that it was a breach of the psychiatric standard of care to fail to refer plaintiff to an internist or nephrologist for further evaluation of his edema, and that the failure to do so increased his psychiatric symptoms. This evidence supports the district court’s malpractice finding. The failure to treat or refer plaintiff while he was in the Maryland VA continued for over a week. The failure to treat plaintiff’s edema upon his admission to the Colorado VA appears less egregious because he was scheduled to be seen the next day by a specialist. Nonetheless, plaintiff’s experts testified that the Denver VA psychiatrists should have evaluated and treated plaintiff’s edema immediately. This conclusion is supported by testimony by Dr. Simpson, an internist, that immediately after leaving the Denver VA, plaintiff had one of the worst cases of edema that he had seen, requiring hospitalization. Although the United States presented evidence that the VA did not breach its duty of care, the district court’s finding to the contrary is supported by the record. [FN2]

FN2. The district court also noted that although some of defense experts asserted that plaintiff should have received medication for his bipolar disorder, he did not. App. 55-56.

III
The United States asserts that the district court erred in awarding plaintiff damages in the form of lifetime free medical and psychiatric care. Furr v. AT & T Technologies, Inc., 824 F.2d 1537, 1548 (10th Cir.1987). The amount of damages is a finding of fact that we uphold unless clearly erroneous. See Fed.R.Civ.P. 52(a). The United States points out that although the plaintiff “is entitled to be compensated for losses attributable to the injury inflicted … it is only the damage flowing legally from the defendant’s misdeeds which counts.” Brief for Appellant at 22 (quoting Westric Battery Co. v. Standard Elec. Co., 482 F.2d 1307, 1318 (10th Cir.1973)). It argues that lifetime medical care is not compensation for injuries caused by failure to coordinate plaintiff’s care or any delay in treating plaintiff’s edema; also that if the district court based its award on a finding that plaintiff would continue to receive improper care from the VA in the future, the ruling is too speculative to support a damage award.
The district court, however, specifically found that the VA’s malpractice caused plaintiff to suffer from a recurrence of PTSD. This finding is supported by the record. See, e.g., I Supp.App. 170-94 (psychiatrist testified that the VA’s treatment of plaintiff in December 1989 to January 1990 caused flare-up of PTSD). The district court found that the PTSD itself arose out of his years of improper treatment.
[It] has evolved to the point where his reaction to medical maltreatment has become a separate and distinct psychiatric problem–namely post-traumatic stress disorder. Once triggered, this disorder exacerbates whatever psychosis may be presenting at the same time. If not treated for his Ormond’s disease and its resulting problems, Mr. Deasy becomes so distrustful, anxious, and enraged that he literally is unable to cooperate with treatment being offered.
App. 51. The basis of the district court’s decision to award a sum of money to permit plaintiff to receive the future care he would need outside the VA system was that “the medical testimony establishes that after decades of substantial treatment, [plaintiff’s] well-founded fear of maltreatment in the V.A. system actually causes or precipitates serious psychiatric problems.” Id. at 63. We cannot find this conclusion clearly erroneous.

The award here is very substantial. But plaintiff was entitled to lifetime free care in government hospitals; he has extremely serious physical and mental illnesses. Both Maryland and Colorado recognize the “thin skull” rule: “a tortfeasor must accept his or her victim as the victim is found.” Schafer v. Hoffman, 831 P.2d 897, 900 (Colo.1992). Compensation for loss of medical services would not, of course, be appropriate merely because a plaintiff disliked the care provided by the VA; however, this is a rare case in which plaintiff produced expert testimony *360supporting a finding that, due to the VA’s own negligence, further treatment in a VA hospital would result in recurrence of his PTSD. The district court’s award of damages thus serves to make plaintiff whole. See Ballow v. PHICO Ins. Co., 878 P.2d 672, 677 (Colo.1994) (“[c]ompensatory damages are awarded in order to make the injured party whole”).
The United States did not object in the district court to awarding damages in the form of a trust, with any sums remaining at plaintiff’s death reverting to the government. This ensures that plaintiff does not receive a windfall. We have approved reversionary trusts in FTCA cases involving large awards for future medical needs. See Hill v. United States, 81 F.3d 118 (10th Cir.), cert. denied, 519 U.S. 810, 117 S.Ct. 56, 136 L.Ed.2d 19 (1996); Hull v. United States, 971 F.2d 1499 (10th Cir.1992), cert. denied, 507 U.S. 1030, 113 S.Ct. 1844, 123 L.Ed.2d 469 (1993). We perceive no error in this aspect of the district court’s award.

IV
Finally, the United States argues that the $600,000 noneconomic damages awarded by the district court were excessive. We review the award of noneconomic damages for clear error, to determine whether “the award shocks the judicial conscience.” Miller v. United States ex rel. Dep’t of the Army, 901 F.2d 894, 897 (10th Cir.1990). Based on the extent of plaintiff’s physical and emotional injuries he sustained as a result of the VA’s malpractice, we cannot conclude that these noneconomic damage awards were excessive.
AFFIRMED.
C.A.10 (Colo.),1996.
Deasy v. U.S.
99 F.3d 354

United States District Court,
D. Connecticut.
Robert CASEY, [FN1] Plaintiff

FN1. Plaintiff died on November 20, 1999. Plaintiff’s motion to substitute party was granted on March 27, 2000, adding plaintiff Nancy C. Elliott. [Doc. # 80.]

v.
UNITED STATES of America, Defendant
No. CIV. 3:95CV1949(HBF).
April 9, 2001.

RULING ON PLAINTIFF’S MOTION FOR RECONSIDERATION

FITZSIMMONS, United States Magistrate Judge.

On September 13, 1995, plaintiff filed this action under the Federal Torts Claim Act (“FTCA”), alleging medical malpractice and negligence on the part of Veterans Administration (“VA”) employees. On September 30, 1999, this court granted defendant’s oral motion for judgment as a matter of law with respect to plaintiff’s allegations that staff at the Newington Veterans Affairs facility was negligent in failing to provide him with Standard Form 95 (“SF 95”) which was a prerequisite to bringing a medical malpractice suit against the United States. [Doc. # 66.] However, *88 the parties were directed to brief the question of whether, in light of the factual record presented at trial, the statute of limitations for filing a medical malpractice action was equitably tolled by the failure of a VA benefits counselor to properly advise plaintiff about the filing requirements for a medical malpractice action. [FN2] [See id. at 10.] Plaintiff’s Memorandum of Law on Whether Statute of Limitations for Filing Medical Malpractice Claim Should be Equitably Tolled [Doc. # 72] is hereby construed as a Motion for Reconsideration of the Recommended Ruling on Defendant’s Motion to Dismiss or for Summary Judgment [Doc. # 28]. For the following reasons, plaintiff’s Motion for Reconsideration [Doc. # 72] is GRANTED, and the Clerk is directed to reopen the case for further proceedings in accordance with this ruling.

FN2. Judge Margolis dismissed plaintiff’s medical malpractice claim against the United States because plaintiff failed to present his claim in writing to the VA within two years of the accrual of the claim. [See Recommended Ruling on Defendant’s Motion to Dismiss or for Summary Judgment, Doc. # 28, approved and adopted by Judge Nevas on August 29, 1996.] In that ruling, Judge Margolis rejected plaintiff’s argument that the statute of limitations should be equitably tolled due to misconduct on the part of VA benefits counselors. [See id. at 6-7.] For the reasons discussed in this opinion, this court believes that the issue of equitable tolling should be revisited.

BACKGROUND

Robert Casey brought this action against the United States for injuries he allegedly received as a result of medical malpractice committed during and after surgery on his stomach at the West Haven Veterans Affairs Medical Center (“VAMC”). Plaintiff’s first stomach surgery occurred at the VAMC on January 6, 1992, to treat his ulcer condition. [Doc. # 71, at 27.] After the surgery, plaintiff filed a claim for service connected disability benefits related to his condition, which was denied in April, 1992. [Doc. # 71, at 28.]
During this time, VAMC doctors told plaintiff that they discovered he had stomach cancer when they took a biopsy during the surgery to repair plaintiff’s perforated ulcer. [See id., at 27.] The VAMC released plaintiff on January 16, 1992, on the condition that plaintiff return to the hospital on January 26, 1992, to have a second surgery to remove cancerous portions of his stomach. [See id.] After the second surgery, plaintiff was discharged from VAMC on February 8, 1992. [See id. at 33-34.] On February 9, 1992, plaintiff was rushed to Backus Hospital in Norwich, Connecticut by his mother and sister-in-law for acute peritonitis allegedly resulting from the second VAMC surgery. [FN3] [See id. at 34.] Plaintiff was discharged from Backus Hospital on February 21, 1992. [See id. at 35.] Post-operative care relating to plaintiff’s stomach surgeries continued for approximately one year following his release from Backus Hospital. [See id.]

FN3. A VAMC report dated October 23, 1995, indicated that plaintiff “underwent surgery for peritonitis and dehiscence of the abdominal wound” on February 9, 1992, at Backus Hospital. [Plaintiff’s Exhibit 11, Doc. # 73, at tab 2.] “Peritonitis” is defined as the inflammation of the

membrane that lines the abdominal cavity and the organs contained therein. STEDMAN’S MEDICAL DICTIONARY, (25th ed., 1990). “Dehiscence” is defined as “a bursting open, splitting, or gaping along natural or sutured lines.” Id.

In the spring of 1992, plaintiff learned that he did not have stomach cancer even though one-half of his stomach had been removed during the surgery. [See id. at 37-38; Pl. Exh. 6, Doc. # 73, Tab 10]. Plaintiff also learned that he was released from VAMC on February 8, 1992, even *89 though his sutures had not healed properly and he had an infection in the membrane surrounding his stomach. [Doc. # 73, at tab 2.]
Following his discharge from Backus Hospital, and during his year long post-operative treatment at the VAMC, plaintiff claimed to have had numerous conversations with VA benefits counselors concerning his care at the West Haven facility. [Doc. # 71, at 37, 41, 42.] Plaintiff stated that Mr. Lou Turcio and Mr. Donald Dubrock [FN4] both told him that he should sue the government because of the care he received at the VAMC during and after his stomach surgeries. Turcio testified that he had no personal recollection of discussing the possibility of plaintiff filing a torts claim against the government. [See id. at 124.] Turcio did recall overhearing Robert Begin [FN5] start a conversation with plaintiff regarding filing the torts claim, but could not remember any specifics of the conversation. [See id. at 119.] Dubrock testified that he recalled conversations with plaintiff regarding plaintiff’s dissatisfaction with the treatment he received from West Haven VAMC for his stomach surgeries and discussions about the possibility of plaintiff suing the government regarding his care. [See id. at 181.] However, although Dubrock remembered plaintiff asking his opinion as to whether he should sue the government, he said that he never advised plaintiff to do so. [See id. at 197.]

FN4. Turcio is a VA benefits counselor, while Dobruck is a vocational rehabilitation specialist.

FN5. Begin, also a VA benefits counselor, testified during his deposition that he recommended that plaintiff file a torts claim against the government, but that at the time plaintiff did not want to do so. [Plf. Exh. # 5, at 13.]

Plaintiff testified that initially he didn’t want to sue the government because he didn’t want to believe that his country committed any wrongdoing with respect to his treatment and because he was hoping to gain employment with a government contractor. [FN6] At no point during these discussions with the plaintiff did any VA employee tell him how to file a claim against the government, provide the proper forms to him, or direct him to available resources to help him file suit against the United States. [See id . at 40, 41.] Plaintiff admitted that he did not ask for this information during those conversations. [See id. at 41.]

FN6. Plaintiff served in the Air Force for 20 years, and after retiring he received training in computer science as a disabled veteran through the Department of Veterans Affairs. [Doc. # 71 at 11, 176.]

During the summer of 1992, plaintiff requested a mental health evaluation at the West Haven VAMC. [See id. at 43.] Plaintiff requested this evaluation because he was “full of rage and anger because [he] had found out [for himself]” about the quality of care he received from the VAMC. [Id.] Plaintiff’s request that his mental health treatment be transferred to the Newington VAMC was granted and he received counseling services there through June, 1998. [See id. at 45.] Part of plaintiff’s mental health treatment plan included alcohol abuse treatment. [See id. at 44.]
In spring of 1993, plaintiff was admitted to the West Haven VAMC for carpel tunnel surgery on his left hand. [See id. at 48.] As a result of this surgery, plaintiff filed a disability benefits claim in May 1993 for a two month, hundred percent temporary disability. [See id.] Plaintiff testified that benefits counselor Begin filled in all of the information on the form relating *90 to the claim and he just signed it and filled in his address. [See id. at 49.]
Plaintiff had previously received care for his left wrist at the West Haven VAMC as a service related disability. After retiring from the Air Force, plaintiff received a ten percent disability rating for his left wrist. [See id. at 14.] In November 1989, plaintiff underwent surgery on his left wrist at the West Haven VAMC, which left him with a twenty percent disability rating in that wrist. [See id. at 17.] On each occasion when plaintiff filed for service connected disability benefits as a result of his wrist injury, the paperwork was filled out and he was guided through the process by Turcio. [See id. at 18.]
On June 23, 1993, plaintiff was admitted into the detoxification treatment program at the Newington VAMC after he resumed drinking alcohol. [FN7] [See id. at 52-3.] After plaintiff completed the five day detoxification period, on June 29, 1993, he was evaluated by C. Jackson-White, a physician’s assistant at the Newington VAMC. [See id. at 127.] Plaintiff testified that during this evaluation he told Jackson-White that he was “angry” about the care he received in connection with his stomach surgery at the West Haven VAMC and that Jackson-White suggested a couple of options to resolve plaintiff’s anger, one of which was to go file a claim. [FN8] [See id. at 54.] Plaintiff stated that after this conversation with Jackson-White he immediately went to see Robert Machia, the veterans benefits counselor at the Newington VAMC. [See id. at 59.]

FN7. Plaintiff received treatment for his alcoholism on two prior occasions, in 1980 and 1987. [See id. at 49-50.]

FN8. Jackson-White denied ever having a conversation with plaintiff regarding his stomach surgery or ever suggesting that plaintiff sue the government because of his treatment. [See id. at 139-40.]

Plaintiff testified that he went to Machia’s office because he wanted to sue the government and believed that “it would be the only thing that would probably straighten [him] out a little bit, [by] tak[ing] away some of the rage and anger that [he] had.” [Id. at 60.] Plaintiff stated that he told Machia that he wanted to sue the government for releasing him from the West Haven VAMC when the doctors there knew he had peritonitis. [See id.] Machia filled out a form for a service-connected disability claim, which plaintiff signed and dated. [See id. at 61-2.] Plaintiff testified that he questioned Machia as to why he was applying for service-connected disability when plaintiff knew that wasn’t what he was asking for. [See id. at 64.] Plaintiff stated that Machia responded that the claim would be denied quickly and that it would help plaintiff out when he brought suit against the government. [See id.] Once the claim came back denied, plaintiff testified that Machia told him he would then see someone else to help him sue. [See id. at 65.] Plaintiff stated that at no point did any VA benefits counselors or other personnel tell him how to file a tort claim against the government, provide him with the necessary forms to bring a tort claim, or refer him to anyone who would be able to advise him on bringing suit against the government. [See id. at 72-74.]
Machia did not recall the details of his meeting with plaintiff, and based on the form he filled out he was unable to remember discussing plaintiff’s right to file a tort claim with him. [See id. at 160.] Machia testified that he had never advised a veteran that he needed to file a disability claim prior to filing a tort claim, or that it would be advantageous to do so. [See id.] Machia also testified that he never provided *91 tort claim forms to veterans and would refer those who wanted to pursue a torts claim against the government to the patients’ advocate. [See id. at 155.]
Plaintiff’s claim form was returned denied in November 1995. [See id. at 65.] Plaintiff testified that he would call or stop by Machia’s office regularly to check up on the status of his claim, and eventually resorted to calling the regional office to find out about his claim. [See id. at 69.] Machia testified that he was unable to recall whether plaintiff came in after June 29, 1993, to check on the status of his claim. [See id. at 161.]
In the summer of 1994, plaintiff consulted with counsel regarding an unrelated employment matter. [See id. at 67.] During this discussion, plaintiff told counsel about his treatment at the West Haven VAMC during and after his stomach surgeries. [See id.] Plaintiff testified that this discussion was the first time he learned what a tort claim was. [See id.] Shortly thereafter, on September 22, 1994, plaintiff filed Standard Form 95 (“SF-95”) initiating a tort claim against the government. [Pl. Exhs. 12, 13.] The Department of Veterans Affairs denied plaintiff’s claim as time barred on March 17, 1995.
On September 13, 1995, plaintiff commenced this action.
DISCUSSION
I. Law of the Case Doctrine
The government argues that, because Judge Margolis previously ruled on whether equitable tolling would be appropriate in this case, this court is barred from reopening the issue under the law of the case doctrine. [Doc. # 28.]

[1] [2] The law of the case doctrine provides that “a legal decision made at one stage of litigation, unchallenged in a subsequent appeal when the opportunity to do so existed, becomes the law of the case for future stages of the same litigation, and the parties are deemed to have waived the right to challenge that decision at a later time.” North River Ins. Co. v. Philadelphia Reinsurance Corp., 63 F.3d 160, 164 (2d Cir.1995), cert. denied 516 U.S. 1184 (1996) (citing, Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 250 (D.C.Cir.1987)). The doctrine does not limit or prohibit the court’s power to revisit those issues; it “merely expresses the practice of courts generally to refuse to reopen what has been decided.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817, 108 S.Ct. 2166, 2178, 100 L.Ed.2d 811 (1988) (quoting Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912)); see also LNC Investments, Inc. v. First Fidelity Bank, N.A., 173 F.3d 454, 467 n. 12 (2d Cir.1999). However, “a court should be loath to revisit an earlier decision in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would work a manifest injustice.” North River, 63 F.3d at 165 (quoting Christianson, 486 U.S. at 817, 108 S.Ct. 2166, internal quotation marks omitted).
[3]

The doctrine “seeks to ensure fair treatment of the parties and to promote judicial efficiency and finality of the proceedings by avoiding duplicative decisionmaking.” Natural Resources Defense Council, Inc. v. Fox, 30 F.Supp.2d 369, 374 (S.D.N.Y.1998). See also Remington Products, Inc. v. North American Philips Corp., 755 F.Supp. 52, 54 (D.Conn.1991). A court may reconsider a prior ruling under three situations: 1) an intervening change in the controlling law; 2) the availability of new evidence; and 3) the need to correct a clear error of law or to prevent manifest injustice. See DiLaura v. Power Auth. of State of New York, 982 F.2d 73, 76 (2d Cir.1992); *92Washington Nat’l Life Ins. Co. of New York v. Morgan Stanley & Co., Inc., 974 F.Supp. 214, 218-9 (S.D.N.Y.1997).
A. Development of a More Complete Record
[4] In this case, the court believes that two separate grounds make the law of the case doctrine inapplicable. First, as the court observed in Washington Nat’l Life Ins., “a court may revisit the law of the case where new evidence has surfaced or a more complete record has developed.” 974 F.Supp. at 219. See also, Tischmann v. ITT/Sheraton Corp., 1997 WL 195477, *5 (S.D.N.Y.), aff’d 145 F.3d 561 (2d Cir.1998), cert. denied 525 U.S. 963, 119 S.Ct. 406, 142 L.Ed.2d 329 (1998) (Finding that the law of the case doctrine inapplicable where a “bit of new evidence regarding the administrative scheme … was adduced at trial in the form of testimony ….”); Pineiro v. Pension Benefit Guar. Corp., 1999 WL 195131, * 2 (S.D.N.Y.) (court took a “fresh look” at prior decision after further information was presented in the amended complaint). Here, a more complete record was developed through the trial process. [FN9] It only became apparent then that the evidence on which Judge Margolis made her decision on the issue of equitable tolling was incomplete. For example, she did not have the benefit of knowing plaintiff’s prior history of working with the VA benefits counselors, all the details surrounding plaintiff’s alleged attempt to initiate legal proceedings against the government, [FN10] and information regarding whether plaintiff knew how to file a tort claim against the government. All of this information is relevant to evaluating plaintiff’s diligence in pursuing his rights and deciding if plaintiff received adequate notice regarding the proper procedure to perfect his tort claim against the government.

FN9. Although more detailed summary judgment responses by plaintiff could have provided the court with information which could have resulted in Judge Margolis leaving the equitable tolling issue open, this court recognizes that the form of a summary judgment response often is not conducive to laying out a detailed history of the case or evaluating the credibility of various witnesses.

FN10. For example, although Machia testified that he normally told veterans that they had the option to file both a tort claim and a service connected disability claim, he did not recall what information he provided

to plaintiff. Machia also admitted that based on what he wrote on plaintiff’s disability form, “they removed half of my stomach because they thought I had cancer, but it was not so,” would have a “logical interpretation that somebody screwed up at the hospital.” [Doc. # 71 at 170.] This court believes that this provides substantial evidence that the government was aware that plaintiff had a potential tort claim against the government and a strong argument that plaintiff was attempting to initiate a tort claim against the government during his June 29, 1993, meeting with Machia.

Along with the fact that many of the surrounding circumstances were not before Judge Margolis, she was faced with the difficult task of deciding the issue without assessing credibility. [FN11] It was only *93after this court was able to hear testimony from all of the witnesses that it was able to make a credibility determination on issues crucial to deciding whether plaintiff acted reasonably and diligently, and whether the VAMC fulfilled its duty to plaintiff in providing him with the information necessary to pursue Independent Order of Foresters v. Donald, Lufkin & Jenrette, Inc.,a tort claim against the government. This court now believes that these are material questions of fact which should not have been decided at the summary judgment stage. See 157 F.3d 933, 942 (2d Cir.1998) (genuine issues of material fact regarding the equitable tolling issue precluded district court’s grant of summary judgment on limitations grounds); Eidshahen v. Pizza Hut of America, Inc., 973 F.Supp. 113, 116 (D.Conn.1997) (denying summary judgment because question of fact whether the statute of limitations was equitably tolled).

FN11. The Second Circuit has repeatedly cautioned trial courts not to make credibility determinations at the summary judgment stage, and to limit themselves to deciding whether there are issues of material fact. See Vital v. Interfaith Med. Ctr., 168 F.3d 615, 621-22 (2d Cir.1999); Rodriguez v. City of New York, 72 F.3d 1051, 1061 (2d Cir.1995) (listing cases). It is the finder of fact who must assess the credibility of witnesses during trial. See Vital, 168 F.3d at 622; Rodriguez, 72 F.3d at 1061. See also Danzer v. Norden Sys., Inc., 151 F.3d 50, 57 (2d Cir.1998) (In the context of a motion for summary judgment on discrimination claim, the “issue frequently becomes one of assessing the credibility of the parties … [which] is necessarily resolved in favor of the nonmovant;” to hold otherwise would turn a summary judgment motion into an “adjudication of the merits.”).

The additional information available to the trial court expanded the record reviewed by Judge Margolis and allowed a more complete and thorough analysis of the equitable tolling issue than would have been possible in the summary judgment context.
B. The Need to Prevent Manifest Injustice
The court is also persuaded that it must revisit the issue of equitable tolling in order to prevent manifest injustice. One of the exceptions to the law of the case doctrine is the “need to correct a clear error of law or to prevent manifest injustice.” DiLaura v.. Power Auth., 982 F.2d 73, 76 (2d Cir.1992). See also Agostini v. Felton, 521 U.S. 203, 236, 117 S.Ct. 1997, 2017, 138 L.Ed.2d 391 (1997); Doctor’s Assocs., Inc. v. Distajo, 107 F.3d 126, 131 (2d Cir.1997), cert. denied 522 U.S. 948, 118 S.Ct. 365 (1997); Virgin Atlantic Airways, Ltd. v. Nat. Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.1992), cert. denied 506 U.S. 820, 113 S.Ct. 67, 121 L.Ed.2d 34 (1992).
The court reaches this conclusion upon consideration of the record as a whole and after weighing the credibility of the witnesses at trial. As discussed above, critical facts regarding plaintiff’s knowledge and understanding of his rights to file a tort claim against the government, the VAMC benefits counselors’ failure to fulfill their duty to plaintiff in providing him the proper paperwork to perfect his claim, the VAMC staff’s knowledge of the potential tort claim, and the on-going history between plaintiff and the VAMC staff regarding the filing of benefit claims were all developed more fully during trial. It became apparent that the previous ruling declining to equitably toll the statute of limitations was premature, as the court could not have considered all of the circumstances and the actions of the parties in dismissing the claim on statute of limitations grounds. See DiLaura v. Power Auth., 982 F.2d 73, 77 (2d Cir.1992) (“[T]he doctrine of law of the case permits a change of position if it appears that the court’s original ruling was erroneous.” (citations omitted)). See also Independent Order of Foresters, 157 F.3d at 942; Eidshahen, 973 F.Supp. at 116. After hearing evidence not available to Judge Margolis, this Court finds it would work a manifest injustice to adhere to the prior ruling, the effect of which would be to deny plaintiff a full opportunity to present his claims. Thus, the question of whether the statute of limitations was equitably tolled must be reconsidered.
II. Equitable Tolling
[5]

Under the FTCA, a claim against the government is “forever barred unless it is presented in writing to the appropriate federal agency within two years after such claim accrues or unless action is begun *94 within six months after the date of mailing … of notice of the final denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b). In order to be presented in writing, a claim for personal injury must use the government’s SF 95, unless the “agency is given sufficient written notice of the circumstances of the underlying incident to enable it to investigate the claim and respond by settlement or defense.” Blue v. United States, 567 F.Supp. 394, 397 (D.Conn.1983) (adopting the Fifth Circuit’s reasoning in Adams v. United States, 615 F.2d 284, 289 (5th Cir.1980), clarified, 622 F.2d 197, 197 (5th Cir.1980)). “In most circumstances, adequate notice must include both a statement of the factual details of the underlying incident and a demand for a sum certain in damages.” See id.
In the case at bar, there is no dispute that plaintiff failed either to submit the SF 95 or provide a “demand for a sum certain” to the appropriate agency within the two years after his claim accrued. However, based on the West Haven VAMC reports, [FN12] plaintiff’s June 29, 1993, claim for service-connected disability benefits and a letter from the Chief of Staff at the West Haven VAMC to plaintiff discussing the hospital’s own investigation, [FN13] the government had complete notice of the facts and circumstances surrounding plaintiff’s surgeries and subsequent discharge from the hospital well within two years of that discharge. Plaintiff submitted a SF 95 and an amended SF 95 on September 22, 1994, more than two years after his discharge from the hospital and his discovery that he did not have cancer. [Pl. Exs. 12, 13.] Since plaintiff did not provide statutorily adequate notice to the agency within two years, the question that must be answered is whether the statute of limitations was extended by the doctrine of equitable tolling.

FN12. Department of Veterans Affairs Rating Decision Report, dated

October 23, 1995. [Plaintiff’s Exhibit 11].

FN13. Letter from Colin Atterbury, dated October 8, 1992. [Plaintiff’s Exhibit 14.] (Indicating that hospital undertook independent investigation into plaintiff’s case. Hospital reviewer “concluded that the problem that occurred could have been identified prior to discharge” and suggesting “most physicians would have handled the case differently.” ).

[7] Equitable tolling allows a plaintiff to sue after the “statutory time period has expired if they have been prevented from doing so due to inequitable circumstances.” Stanfill v. United States, 43 F.Supp.2d 1304, 1307 (M.D.Ala.1999). See also Iavorski v. United States Immigration and Naturalization Serv., 232 F.3d 124, 129 (2d Cir.2000) (“A statute of limitations may be tolled as necessary to avoid inequitable circumstances.”). The doctrine of equitable tolling is “applied as a matter of fairness where a plaintiff has been prevented in some extraordinary way from exercising his rights.” James v. United States of America, 2000 WL 1132035, *2 (S.D.N.Y.), citing Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir.1996).
[8] The Supreme Court in Irwin v. Dep’t of Veterans Affairs, found that the principle of equitable tolling should apply to cases against the government brought under statutes that waive sovereign immunity. 498 U.S. 89,95-96, 111 S.Ct. 453, 457-58, 112 L.Ed.2d 435 (1990). Although the Second Circuit has not directly addressed the issue, many federal courts have found that the statute of limitations found in the FTCA may be equitably tolled. See, e.g., Perez v. United States, 167 F.3d 913 (5th Cir.1999); Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir.1996); *95 Glarner v. United States Dep’t of Veterans Admin., 30 F.3d 697, 701 (6th Cir.1994); Krueger v. Saiki, 19 F.3d 1285, 1286 (8th Cir.1994), cert. denied, 513 U.S. 905, 115 S.Ct. 269, 130 L.Ed.2d 187 (1994); de Casenave v. United States, 991 F.2d 11, 13 (1st Cir.1993); Hyatt v. United States, 968 F.Supp. 96, 101 (E.D.N.Y.1997).
When assessing whether equitable tolling is appropriate in an action against the government, the Irwin Court stated:
federal courts have typically extended equitable relief only sparingly. We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass. We have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights…. [T]he principles of equitable tolling described above do not extend to what is at best a garden variety claim of excusable neglect.
498 U.S. at 96, 111 S.Ct. at 457-58. Although the Supreme Court in Irwin offered specific examples of when equitable tolling should be applied, the lower courts have not restricted the doctrine to those situations.
[9]

Equitable tolling does not require any misconduct on the part of the defendant. See Canales v. Sullivan, 936 F.2d 755, 758 (2d Cir.1991) (rejecting the position that equitable tolling is permitted only in situations involving misconduct). See also Stanfill v. United States, 43 F.Supp.2d 1304, 1309 (M.D.Ala.1999), citing, Browning v. AT & T Paradyne, 120 F.3d 222, 226 (11th Cir.1997). “A claimant need not necessarily show affirmative misconduct to avail himself of equitable tolling; rather, he must show that a failure to meet a filing deadline was, in a phrase, out of his hands.” Bartus v. United States, 930 F.Supp. 679, 682 (D.Mass.1996).
[10]

Courts have found that the failure of VA staff to provide a claimant with SF 95 violates a legal duty owed to the claimant by the government. See Glarner, 30 F.3d at 701; James v. United States, 2000 WL 1132035, *3 (S.D.N.Y.). The failure to provide claimants with a SF 95 when VA officials learned of the potential tort claim tolls the statute of limitations until the claimant was actually informed of the proper filing requirements. See id. at *4. In so holding, these courts relied upon 38 C.F.R. § 14.604(a), promulgated by the Department of Veterans Affairs, which provides:
Each person who inquires as to the procedure for filing a claim against the United States, predicated on a negligent or wrongful act or omission of an employee of the [VA] acting within the scope of his or her employment, will be furnished a copy of SF 95, Claim for Damage, Injury, or Death. The claimant will be advised to submit the executed claim directly to the Regional Counsel having jurisdiction of the area wherein the occurrence complained of took place.
Id.
This court agrees with the reasoning of the Glarner and James courts that when VA officials knew that a claimant wanted to file a tort claim against the government, the failure to provide SF 95 to him violated a duty owed to the claimant. Here, there is no disagreement that VA employees failed to provide plaintiff with the SF 95 or inform him of the requirements for filing a tort claim against the government. Although VA officials may argue that they did not know plaintiff wanted to bring suit against the government (and there was evidence that plaintiff was ambivalent *96 about suing the government), the Court finds that, when plaintiff tried to file a claim on June 29, 1993, VA employees had the requisite knowledge that plaintiff was attempting to initiate legal proceedings against the hospital. On this date, the VAMC had a duty to provide plaintiff with the proper paperwork to file a tort claim. Their failure to do so tolled the statute of limitations until plaintiff reasonably became aware of the filing requirements.

This court was also persuaded by the evidence presented at trial that, until he consulted counsel, plaintiff did not have adequate notice of the proper filing requirements to begin a tort claim against the government. As Judge Margolis noted in her ruling, one of the bases for allowing equitable tolling is that “the claimant has received inadequate notice.” The Court finds that the lack of adequate notice provides an additional ground to toll the statute of limitations until the date plaintiff reasonably became aware of the filing requirement. As discussed above, it became clear during the course of trial that no VA employee apprised plaintiff of the procedures he would have to follow to file a tort claim against the government, even though plaintiff discussed the possibility of filing a tort action with his counselors. Although it is undisputed that plaintiff did not ask VA benefits counselors how to file a tort claim, or attempt to initiate a malpractice action until June 29, 1993, there is no evidence that he had actual or constructive knowledge of the filing requirements until he met with a lawyer in the summer of 1994. Plaintiff testified that he thought that he had completed the necessary paperwork on June 29, 1993, and had to wait for it to be denied and returned before he could pursue the claim in court. Given plaintiff’s history of working with VA benefits counselors in preparing claim forms, the Court finds that it was reasonable for plaintiff to believe that he was following a proper course of action in filing his malpractice claim.
The court does not believe that this plaintiff’s actions constituted a “garden variety claim of excusable neglect.” Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 458, 112 L.Ed.2d 435 (1990). Here, the VA benefits counselors violated a legal duty owed to plaintiff when they failed to provide him with an SF 95 after it became apparent that plaintiff wanted to pursue a malpractice claim against the government. Plaintiff also had inadequate notice as to the proper requirements for filing a tort claim.

After consideration of the record as a whole and the testimony of all of the witnesses at trial, the Court finds that the statute of limitations was equitably tolled from June 29, 1993, until the summer of 1994 when plaintiff became aware of the filing requirements, or for approximately one year. Since plaintiff filed his SF 95 on September 22, 1994, for a claim accruing in February 1992, plaintiff’s malpractice action against the government is not barred by the statute of limitations and may proceed.

CONCLUSION
For the reasons set forth in this ruling, plaintiffs’ Motion for Reconsideration [Doc. # 72] is GRANTED. The Clerk is directed to reopen the case for further proceedings in accordance with this ruling on plaintiff’s malpractice claim.
D.Conn.,2001.
Casey v. U.S.
161 F.Supp.2d 86

UNITED STATES
v.
KUBRICK

UNITED STATES v. KUBRICK

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.

[8]
[9] White, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Blackmun, Powell, and Rehnquist, JJ., joined. Stevens, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 125.

[10] Author: White

[11] Mr. JUSTICE WHITE delivered the opinion of the Court.

[12] Under the Federal Tort Claims Act (Act),*fn1 28 U. S. C. 2401 (b), a tort claim against the United States is barred unless it is presented in writing to the appropriate federal agency “within two years after such claim accrues.” The issue in this case is whether the claim “accrues” within the meaning of the Act when the plaintiff knows both the existence and the cause of his injury or at a later time when he also knows that the acts inflicting the injury may constitute medical malpractice.

[13]

[14] Respondent Kubrick, a veteran, was admitted to the Veterans’ Administration (VA) hospital in Wilkes-Barre, Pa., in April 1968, for treatment of an infection of the right femur. Following surgery, the infected area was irrigated with neomycin, an antibiotic, until the infection cleared. Approximately six weeks after discharge, Kubrick noticed a ringing sensation in his ears and some loss of hearing. An ear specialist in Scranton, Pa., Dr. Soma, diagnosed the condition as bilateral nerve deafness. His diagnosis was confirmed by other specialists. One of them, Dr. Sataloff, secured Kubrick’s VA hospital records and in January 1969, informed Kubrick that it was highly possible that the hearing loss was the result of the neomycin treatment administered at the hospital. Kubrick, who was already receiving disability benefits for a service-connected back injury, filed an application for an increase in benefits pursuant to 38 U. S. C. 351,*fn2 alleging that the neomycin treatment had caused his deafness. The VA denied the claim in September 1969, and on resubmission again denied the claim, on the grounds that no causal relationship existed between the neomycin treatment and the hearing loss and that there was no evidence of “carelessness, accident, negligence, lack of proper skill, error in judgment or other fault on the part of the Government.”

[15] In the course of pursuing his administrative appeal, Kubrick was informed by the VA that Dr. Soma had suggested a connection between Kubrick’s loss of hearing and his prior occupation as a machinist. When questioned by Kubrick on June 2, 1971, Dr. Soma not only denied making the statement attributed to him but also told respondent that the neomycin had caused his injury and should not have been administered. On Dr. Sataloff’s advice, respondent then consulted an attorney and employed him to help with his appeal. In rendering its decision in August 1972, the VA Board of Appeals recognized that Kubrick’s hearing loss “may have been caused by the neomycin irrigation” but rejected the appeal on the ground that the treatment was in accordance with acceptable medical practices and procedures and that the Government was therefore faultless.*fn3

[16] Kubrick then filed suit under the Act, alleging that he had been injured by negligent treatment in the VA hospital.*fn4 After trial, the District Court rendered judgment for Kubrick, rejecting, among other defenses, the assertion by the United States that Kubrick’s claim was barred by the 2-year statute of limitations because the claim had accrued in January 1969, when he learned from Dr. Sataloff that his hearing loss had probably resulted from the neomycin. The District Court conceded that the lower federal courts had held with considerable uniformity that a claim accrues within the meaning of the Act when “the claimant has discovered, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice,” 435 F.Supp. 166, 180 (ED Pa. 1977), and that notice of the injury and its cause normally were sufficient to trigger the limitations period. of the statute, 440 U.S. 906 (1979), and we now reverse.

[18] Statutes of limitations, which “are found and approved in all systems of enlightened jurisprudence,” Wood v. Carpenter, 101 U.S. 135, 139 (1879), represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that “the right to be free of stale claims in time comes to prevail over the right to prosecute them.” Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349 (1944). These enactments are statutes of repose; and although affording plaintiffs what the legislature deems a reasonable time to present their claims, they protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise. United States v. Marion, 404 U.S. 307, 322, n. 14 (1971); Burnett v. New York Central R. Co., 380 U.S. 424, 428 (1965); Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314 (1945); Missouri, K. & T. R. Co. v. Harriman, 227 U.S. 657, 672 (1913); Bell v. Morrison, 1 Pet. 351, 360 (1828).

[19] Section 2401 (b), the limitations provision involved here, is the balance struck by Congress in the context of tort claims against the Government; and we are not free to construe it so as to defeat its obvious purpose, which is to encourage the prompt presentation of claims. Campbell v. Haverhill, 155 U.S. 610, 617 (1895); Bell v. Morrison, supra, at 360. We should regard the plea of limitations as a “meritorious defense, in itself serving a public interest.” Guaranty Trust Co. v. United States, 304 U.S. 126, 136 (1938).

[20] We should also have in mind that the Act waives the immunity of the United States and that in construing the statute of limitations, which is a condition of that waiver, we should not take it upon ourselves to extend the waiver beyond that which Congress intended. See Soriano v. United States, 352 U.S. 270, 276 (1957); cf. Indian Towing Co. v. United States, 350 U.S. 61, 68-69 (1955). Neither, however, should we assume the authority to narrow the waiver that Congress intended. Indian Towing Co. v. United States, supra.

[21] It is in the light of these considerations that we review the judgment of the Court of Appeals.

[22] III

[23] It is undisputed in this case that in January 1969 Kubrick was aware of his injury and its probable cause. Despite this factual predicate for a claim against the VA at that time, the Court of Appeals held that Kubrick’s claim had not yet accrued and did not accrue until he knew or could reasonably be expected to know that in the eyes of the law, the neomycin treatment constituted medical malpractice. The Court of Appeals thought that in “most” cases knowledge of the causal connection between treatment and injury, without more, will or should alert a reasonable person that there has been an actionable wrong. 581 F.2d, at 1096. But it is apparent, particularly in light of the facts in this record, that the Court of Appeals’ rule would reach any case where an untutored plaintiff, without benefit of medical or legal advice and because of the “technical complexity” of the case, id., at 1097, would not himself suspect that his doctors had negligently treated him. As we understand the Court of Appeals, the plaintiff in such cases need not initiate a prompt inquiry and would be free to sue at any time within two years from the time he receives or perhaps forms for himself a reasonable opinion that he has been wronged. In this case, for example, Kubrick would have been free to sue if Dr. Soma had not told him until 1975, or even 1980, instead of 1971, that the neomycin treatment had been a negligent act. There is nothing in the language or the legislative history of the Act that provides a substantial basis for the Court of Appeals’ construction of the accrual language of 2401 (b).*fn6 Nor did the prevailing case law at the time the Act was passed lend support for the notion that tort claims in general or malpractice claims in particular do not accrue until a plaintiff learns that his injury was negligently inflicted. Indeed, the Court of Appeals recognized that the general rule under the Act has been that a tort claim accrues at the time of the plaintiff’s injury, although it thought that in medical malpractice cases the rule had come to be that the 2-year period did not begin to run until the plaintiff has discovered both his injury and its cause.*fn7 But even so — and the United States was prepared to concede as much for present purposes — the latter rule would not save Kubrick’s action since he was aware of these essential facts in January 1969. Reasoning, however, that if a claim does not accrue until a plaintiff is aware of his injury and its cause, neither should it accrue until he knows or should suspect that the doctor who caused his injury was legally blameworthy, the Court of Appeals went on to hold that the limitations period was not triggered until Dr. Soma indicated in June 1971 that the neomycin irrigation treatment had been improper.*fn8 We disagree. We are unconvinced that for statute of limitations purposes a plaintiff’s ignorance of his legal rights and his ignorance of the fact of his injury or its cause should receive identical treatment. That he has been injured in fact may be unknown or unknowable until the injury manifests itself; and the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain. The prospect is not so bleak for a plaintiff in possession of the critical facts that he has been hurt and who has inflicted the injury. He is no longer at the mercy of the latter. There are others who can tell him if he has been wronged, and he need only ask. If he does ask and if the defendant has failed to live up to minimum standards of medical proficiency, the odds are that a competent doctor will so inform the plaintiff.

[24] In this case, the trial court found, and the United States did not appeal its finding, that the treating physician at the VA hospital had failed to observe the standard of care governing doctors of his specialty in Wilkes-Barre, Pa., and that reasonably competent doctors in this branch of medicine would have known that Kubrick should not have been treated with neomycin.*fn9 Crediting this finding, as we must, Kubrick need only have made inquiry among doctors with average training and experience in such matters to have discovered that he probably had a good cause of action. The difficulty is that it does not appear that Kubrick ever made any inquiry, although meanwhile he had consulted several specialists about his loss of hearing and had been in possession of all the facts about the cause of his injury since January 1969. Furthermore, there is no reason to doubt that Dr. Soma, who in 1971 volunteered his opinion that Kubrick’s treatment had been improper, would have had the same opinion had the plaintiff sought his judgment in 1969.

[25] We thus cannot hold that Congress intended that “accrual” of a claim must await awareness by the plaintiff that his injury was negligently inflicted. A plaintiff such as Kubrick, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government.*fn10 If there exists in the community a generally applicable standard of care with respect to the treatment of his ailment, we see no reason to suppose that competent advice would not be available to the plaintiff as to whether his treatment conformed to that standard. If advised that he has been wronged, he may promptly bring suit. If competently advised to the contrary, he may be dissuaded, as he should be, from pressing a baseless claim. Of course, he may be incompetently advised or the medical community may be divided on the crucial issue of negligence, as the experts proved to be on the trial of this case. But however or even whether he is advised, the putative malpractice plaintiff must determine within the period of limitations whether to sue or not, which is precisely the judgment that other tort claimants must make. If he fails to bring suit because he is incompetently or mistakenly told that he does not have a case, we discern no sound reason for visiting the consequences of such error on the defendant by delaying the accrual of the claim until the plaintiff is otherwise informed or himself determines to bring suit, even though more than two years have passed from the plaintiff’s discovery of the relevant facts about injury.

[26] The District Court, 435 F.Supp., at 185, and apparently the Court of Appeals, thought its ruling justified because of the “technical complexity,” 581 F.2d, at 1097, of the negligence question in this case. But determining negligence or not is often complicated and hotly disputed, so much so that judge or jury must decide the issue after listening to a barrage of conflicting expert testimony. And if in this complicated malpractice case, the statute is not to run until the plaintiff is led to suspect negligence, it would be difficult indeed not to apply the same accrual rule to medical and health claims arising under other statutes and to a whole range of other negligence cases arising under the Act and other federal statutes, where the legal implications or complicated facts make it unreasonable to expect the injured plaintiff, who does not seek legal or other appropriate advice, to realize that his legal rights may have been invaded. We also have difficulty ascertaining the precise standard proposed by the District Court and the Court of Appeals. On the one hand, the Court of Appeals seemed to hold that a Torts Claims Act malpractice claim would not accrue until the plaintiff knew or could reasonably be expected to know of the Government’s breach of duty. Ibid. On the other hand, it seemed to hold that the claim would accrue only when the plaintiff had reason to suspect or was aware of facts that would have alerted a reasonable person to the possibility that a legal duty to him had been breached. Ibid. In any event, either of these standards would go far to eliminate the statute of limitations as a defense separate from the denial of breach of duty.

[28] It goes without saying that statutes of limitations often make it impossible to enforce what were otherwise perfectly valid claims. But that is their very purpose, and they remain as ubiquitous as the statutory rights or other rights to which they are attached or are applicable. We should give them effect in accordance with what we can ascertain the legislative intent to have been. We doubt that here we have misconceived the intent of Congress when 2401 (b) was first adopted or when it was amended to extend the limitations period to two years. But if we have, or even if we have not but Congress desires a different result, it may exercise its prerogative to amend the statute so as to effect its legislative will.

[29] The judgment of the Court of Appeals is

[30] Reversed.

[31] Disposition

[32] 581 F.2d 1092, reversed.

[33] MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, dissenting.

[34] Normally a tort claim accrues at the time of the plaintiff’s injury. In most cases that event provides adequate notice to the plaintiff of the possibility that his legal rights have been invaded. It is well settled, however, that the normal rule does not apply to medical malpractice claims under the Federal Tort Claims Act. The reason for this exception is essentially the same as the reason for the general rule itself. The victim of medical malpractice frequently has no reason to believe that his legal rights have been invaded simply because some misfortune has followed medical treatment. Sometimes he may not even be aware of the actual injury until years have passed; at other times, he may recognize the harm but not know its cause; or, as in this case, he may have knowledge of the injury and its cause, but have no reason to suspect that a physician has been guilty of any malpractice. In such cases — until today — the rule that has been applied in the federal courts is that the statute of limitations does not begin to run until after fair notice of the invasion of the plaintiff’s legal rights.

[35] Essentially, there are two possible approaches to construction of the word “accrues” in statutes of limitations: (1) a claim might be deemed to “accrue” at the moment of injury without regard to the potentially harsh consequence of barring a meritorious claim before the plaintiff has a reasonable chance to assert his legal rights, or (2) it might “accrue” when a diligent plaintiff has knowledge of facts sufficient to put him on notice of an invasion of his legal rights. The benefits that flow from certainty in the administration of our affairs favor the former approach in most commercial situations.*fn1 But in medical malpractice cases the harsh consequences of that approach have generally been considered unacceptable.*fn2 In all events, this Court adopted the latter approach over 30 years ago when it endorsed the principle that “blameless ignorance” should not cause the loss of a valid claim for medical injuries. Writing for the Court, Mr. Justice Rutledge expressed the point simply:

[36] “We do not think the humane legislative plan [Federal Employers’ Liability Act] intended such consequences to attach to blameless ignorance. Nor do we think those consequences can be reconciled with the traditional purposes of statutes of limitations, which conventionally require the assertion of claims within a specified period of time after notice of the invasion of legal rights.” Urie v. Thompson, 337 U.S. 163, 170.

[37] This rule has been consistently applied by the Courts of Appeals in the intervening decades without any suggestion of complaint from Congress.

[38] In my judgment, a fair application of this rule forecloses the Court’s attempt to distinguish between a plaintiff’s knowledge of the cause of his injury on the one hand and his knowledge of the doctor’s failure to meet acceptable medical standards on the other. For in both situations the typical plaintiff will, and normally should, rely on his doctor’s explanation of the situation.*fn3

[39] The Urie rule would not, of course, prevent the statute from commencing to run if the plaintiff’s knowledge of an injury, or its cause, would place a reasonably diligent person on notice that a doctor had been guilty of misconduct. But if he neither suspects, nor has any reason to suspect, malpractice, I see no reason to treat his claim differently than if he were not aware of the cause of the harm or, indeed, of the harm itself. In this case the District Court expressly found that “plaintiff’s belief that there was no malpractice was reasonable in view of the technical complexity of the question whether his neomycin treatment involved excessive risks, the failure of any of his doctors to suggest prior to June 1971 the possibility of negligence, and the repeated unequivocal assertions by the Veterans Administration that there was no negligence on the part of the government.” 435 F.Supp. 166, 174.

[40] The Court is certainly correct in stating that one purpose of the statute of limitations is to require the “reasonably diligent presentation of tort claims against the Government.” Ante, at 123. A plaintiff who remains ignorant through lack of diligence cannot be characterized as “blameless.” But unless the Court is prepared to reverse the Court of Appeals’ judgment that the District Court’s findings were adequately supported by the evidence, the principle of requiring diligence does not justify the result the Court reaches today. The District Court found that “plaintiff exercised all kinds of reasonable diligence in attempting to establish a medical basis for increased disability benefits.” 435 F.Supp., at 185. That diligence produced not only the Government’s denials, but, worse, what may have been a fabrication. It was only after the Government told plaintiff that Dr. Soma had suggested that plaintiff’s occupation as a machinist had caused his deafness that plaintiff, by confronting Dr. Soma, first became aware that neomycin irrigation may not have been an acceptable medical practice. Plaintiff was unquestionably diligent; moreover, his diligence ultimately bore fruit. There is no basis for assuming, as this Court holds, that plaintiff could have been more diligent and discovered his cause of action sooner.

[41] The issue of diligence in a negligence case should be resolved by the factfinder — not by the Supreme Court of the United States — and its resolution should depend on the evidence in the record, rather than on speculation about what might constitute diligence in various other circumstances.*fn4 Since a large number of circuit judges have reached the same conclusion, and since I find nothing in the Court’s opinion that lessens my respect for their collective wisdom, I would simply affirm the unanimous holding of the Court of Appeals for the Third Circuit affirming the judgment of the District Court which merely applied well-settled law to the somewhat unusual facts of this case.*fn5

Opinion Footnotes

[42] *fn1 Title 28 U. S. C. 2674 provides in part:

“The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.” Title 28 U. S. C. 1346 (b) provides that the district courts “shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Title 28 U. S. C. 2401 (b), the limitations provision applicable to tort claims against the United States, provides: “A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.”

[43] *fn2 Title 38 U. S. C. 351 provides that a veteran who suffers “an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment” administered by the VA shall be awarded disability benefits “in the same manner as if such disability . . . were service-connected.” The regulations require the applicant for benefits to show that “the disability proximately resulted through carelessness, accident, negligence, lack of proper skill, error in judgment, or similar instances of indicated fault on the part of the Veterans Administration.” 38 CFR 3.358 (c)(3) (1978).

[44] *fn3 In 1975, upon reconsideration of its decision, the VA Board of Appeals not only found, as it had before, that Kubrick’s hearing loss may have been caused by neomycin irrigation but also concluded that there was fault on the part of the VA in administering that drug by irrigation. In the present litigation, the Government contested the allegation of malpractice despite the administrative finding of fault.

[45] *fn4 Title 28 U. S. C. 2675 (a) in pertinent part provides:

“An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal Agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.” Kubrick did not file an administrative claim until after he filed his action in the District Court. This possible objection to his suit the District Court found moot when the VA denied the administrative claim on April 13, 1973. The United States did not pursue the issue on appeal.

[46] *fn5 The VA Board of Appeals’ reconsideration of Kubrick’s case in 1975 entitled him to an increase in his disability rating as a result of the use of neomycin. By the time of the Court of Appeals’ decision, respondent had received over $50,000 in augmented disability benefits. Under 38 U. S. C. 351, the benefits payments must be set off against the damages awarded in tort; and the increment in future monthly benefits is not paid until the aggregate amount of the benefits withheld equals the damages awarded.

[47] *fn6 Respondent concedes as much with respect to the legislative history. The Act was enacted as part of the Legislative Reorganization Act of 1946. 60 Stat. 842. The Senate Report on the bill, S. Rep. No. 1400, 79th Cong., 2d Sess., 33 (1946), merely states that the limitations period is one year but does not mention when a claim accrues. In 1949, the limitations period was extended to two years, Ch. 92, 63 Stat. 62, but the issue of accrual was not further addressed. H. R. Rep. No. 276, 81st Cong., 1st Sess., 1 (1949), notes that the limitations period would enlarge the period for filing to two years from “the date of accrual” but does not explain how to determine the date of accrual. Indeed, to the extent that the Report touches the issue at all, the Report seems almost to indicate that the time of accrual is the time of injury. Thus, the Report states as the reason for the amendment, in addition to bringing the Act more in line with limitations periods for state tort actions and other federal statutes:

“The 1-year existing period is unfair to some claimants who suffered injuries which did not fully develop until after the expiration of the period for making claim. Moreover, the wide area of operations of the Federal agencies, particularly the armed-service agencies, would increase the possibility that notice of the wrongful death of a deceased to his next of kin would be so long delayed in going through channels of communication that the notice would arrive at a time when the running of the statute had already barred the institution of a claim or suit.” Id., at 3-4. The Act was further amended in 1966, 80 Stat. 307, to require that every claim under the Act be presented in writing to the appropriate agency as a prerequisite to suit. The Act originally required presentation to the agency only if the claim was for $1,000 or less, 60 Stat. 845. An amendment in 1959 raised the amount to $2,500, Pub. L. 86-238, 73 Stat. 472. Prior to 1966, the limitations period was keyed to the filing of suit; the 1966 amendment made the time of filing the administrative claim the critical date for limitations purposes. But although the Reports indicate these changes with precision, they do not further explicate when a tort claim “accrues” within the meaning of 28 U. S. C. 2401 (b). S. Rep. No. 1327, 89th Cong., 2d Sess., 1, 5 (1966); H. R. Rep. No. 1532, 89th Cong., 2d Sess., 3, 8 (1966).

[48] *fn7 In Urie v. Thompson, 337 U.S. 163 (1949), the Court held that a claim under the Federal Employers’ Liability Act did not accrue until the plaintiff’s injury manifested itself. In that case, plaintiff Urie contracted silicosis from his work as a fireman on a steam locomotive. His condition was diagnosed only in the weeks after he became too ill to work. The Court was reluctant to charge Urie with the “unknown and inherently unknowable” and held that because of his “blameless ignorance” of the fact of his injury, his claim did not accrue under the Federal Employers’ Liability Act until his disease manifested itself. 337 U.S., at 169-170. Quinton v. United States, 304 F.2d 234 (CA5 1962), applied the Urie approach to medical malpractice claims under the Federal Torts Claims Act. Other Circuits have followed suit. Hungerford v. United States, 307 F.2d 99 (CA9 1962); Toal v. United States, 438 F.2d 222 (CA2 1971); Tyminski v. United States, 481 F.2d 257 (CA3 1973); Portis v. United States, 483 F.2d 670 (CA4 1973); Reilly v. United States, 513 F.2d 147 (CA8 1975); Casias v. United States, 532 F.2d 1339 (CA10 1976).

Restatement (Second) of Torts 899, Comment e, pp. 444-445 (1979), reflects these developments: “One group of cases in which there has been extensive departure from the earlier rule that the statute of limitations runs although the plaintiff has no knowledge of the injury has involved actions for medical malpractice. Two reasons can be suggested as to why there has been a change in the rule in many jurisdictions in this area. One is the fact that in most instances the statutory period within which the action must be initiated is short — one year, or at most two, being the common time limit. This is for the purpose of protecting physicians against unjustified claims; but since many of the consequences of medical malpractice often do not become known or apparent for a period longer than that of the statute, the injured plaintiff is left without a remedy. The second reason is that the nature of the tort itself and the character of the injury will frequently prevent knowledge of what is wrong, so that the plaintiff is forced to rely upon what he is told by the physician or surgeon. “There are still courts that proceed to apply the rule that the action is barred by the statute even though there has been no knowledge that it could be brought. . . . “In a wave of recent decisions these various devices have been replaced by decisions meeting the issue directly and holding that the statute must be construed as not intended to start to run until the plaintiff has in fact discovered the fact that he has suffered injury or by the exercise of reasonable diligence should have discovered it. There have also been a number of instances in which a similar rule has been applied to other professional malpractice, such as that of attorneys or accountants and the rule may thus become a general one.”

[49] *fn8 The Court of Appeals relied on three federal cases, all decided within the past five years, that held or indicated in dictum that a malpractice plaintiff under the federal Act must know the legal implications of the facts, as well as the facts themselves, before the limitations period will begin to run. Exnicious v. United States, 563 F.2d 418, 420, 424 (CA10 1977); Bridgford v. United States, 550 F.2d 978, 981-982 (CA4 1977); Jordan v. United States, 503 F.2d 620 (CA6 1974). Since the holding below, another Circuit has endorsed these views. De Witt v. United States, 593 F.2d 276 (CA7 1979).

The dissent, like the respondent, relies on Urie and Quinton, but neither case controls this one. Both dealt with the discovery of the factual predicate for a malpractice claim, but neither addressed the question of plaintiff’s awareness of negligence on defendant’s part. Contrary to the implications of the dissent, the prevailing rule under the Act has not been to postpone the running of the limitations period in malpractice cases until the plaintiff is aware that he has been legally wronged. Holdings such as the one before us now are departures from the general rule and, as indicated above, are of quite recent vintage.

[50] *fn9 The trial court found:

“We credit the testimony of plaintiff’s experts that the medical literature as of April 1968 contained sufficient and sufficiently widespread information as to the ototoxicity and absorption properties of neomycin to have warned [the treating physician] of the dangerousness and hence the impropriety of his treatment.” 435 F.Supp. 166, 177 (ED Pa. 1977) (footnote omitted). It further concluded: “Those findings tell us that [the physician’s] lack of knowledge, and his concomitant treatment, violated the national standard for specialists because of the generalized knowledge in the national community of orthopedic specialists of the hazards of neomycin and of its potentiality for absorption in circumstances such as those created by [the physician’s] use of neomycin in 1% irrigating solution through a closed hemovac system (at least in such high and lengthy dosage). However, even if a similar locality standard were to be applied, our findings of fact support the conclusion that the information in question was available to or known by the average specialist in Wilkes-Barre to the same or similar extent as the average specialist in Philadelphia. . . . “Finally, we conclude that what was involved was not mere error in judgment but a lack of skill or knowledge as measured, of course, by the level of medical knowledge in April, 1968.” Id., at 188-189.

[51] *fn10 As the dissent suggests, post, at 128, we are thus in partial disagreement with the conclusion of the lower courts that Kubrick exercised all reasonable diligence. Although he diligently ascertained the cause of his injury, he sought no advice within two years thereafter as to whether he had been legally wronged. The dissent would excuse the omission. For statute of limitations purposes, we would not.

Dissent Footnotes

[52] *fn1 See Gates Rubber Co. v. USM Corp., 508 F.2d 603, 611 (CA7 1975).

[53] *fn2 One should note not only the cases cited by the Court in its footnote 7, ante, at 120, but also the reference to “a wave of recent decisions” in the quotation from the Restatement (Second) of Torts in that footnote.

[54] *fn3 In its discussion of the reasons why most jurisdictions have adopted a special rule for medical malpractice cases, the Restatement (Second) of Torts notes “that the nature of the tort itself and the character of the injury will frequently prevent knowledge of what is wrong, so that the plaintiff is forced to rely upon what he is told by the physician or surgeon.” Restatement (Second) of Torts 899, Comment e, p. 444 (1979).

[55] *fn4 The factual predicate for the Court’s speculation is its assumption that if a patient who has been mistreated by one doctor should ask another if the first “failed to live up to minimum standards of medical proficiency, the odds are that a competent doctor will so inform the plaintiff.” Ante, at 122. I am not at all sure about those odds. See W. Prosser, Law of Torts 164 (4th ed. 1971); Markus, Conspiracy of Silence, 14 Clev.-Mar. L. Rev. 520 (1965); Seidelson, Medical Malpractice Cases and the Reluctant Expert, 16 Cath. U. L. Rev. 158 (1966). But whatever the odds are generally, I would prefer to have the issue of the diligence in exploring the reason for the unfortunate condition of this deaf plaintiff decided on the basis of evidence relevant to his particular injury.

[56] *fn5 Not only do I dissent from the Court’s result, but I also believe the decision to grant certiorari was ill-advised. The Court notes, ante, at 125, that Congress may change the rule announced today. I would add that Congress possesses certain options we do not have, such as creating a bifurcated statute, to temper the interest in repose when it threatens to cause an unfair result. See Gates Rubber Co. v. USM Corp., 508 F.2d, at 611-612. But Congress possessed the same options before this decision as well as after it. There was nothing to prevent the Executive from notifying Congress that the omission of any statutory definition of the word “accrues” has created problems that need legislative attention. Reversal of a just judgment is an unnecessarily high price to pay in order to provide Congress with that notice.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 12, 2004 Decided January 14, 2005
No. 03-5182
OSCAR L. THOMAS,

APPELLANT

V.

ANTHONY J. PRINCIPI, SECRETARY, DEPARTMENT OF
VETERANS AFFAIRS, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 02cv01743)

Oscar L. Thomas, pro se, filed briefs for appellant.

Pamela D. Huff, Assistant U.S. Attorney, argued the cause for appellees. With her on the brief were Kenneth L. Wainstein,

U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney.

Before: GINSBURG, Chief Judge, and TATEL and ROBERTS, Circuit Judges.

TATEL, Circuit Judge: The Veterans’ Judicial Review Act not only provides that the Secretary of Veterans Affairs “shall decide all questions of law and fact necessary to a decision . . . under a law that affects the provision of benefits,” but also bars district courts from reviewing such decisions. In this case, we must decide whether this provision deprives the district court of jurisdiction over an action brought pursuant to the Federal Tort Claims Act by a veteran asserting (among other things) that the VA failed to inform him that a VA doctor had diagnosed him with schizophrenia. Because adjudicating this claim would not require the district court to review a question “necessary to a decision . . . under a law that affects the provision of benefits,” we reverse the district court’s dismissal of the complaint and remand for further proceedings consistent with this opinion.

I.

Reviewing the district court’s dismissal of the complaint for lack of subject matter jurisdiction and failure to state a claim, see Fed. R. Civ. P. 12(b)(1), (6), “we construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged.” Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004) (internal quotation marks omitted). Viewed through that lens, the record reveals the following.

Appellant Oscar L. Thomas, following his honorable discharge from the United States Army, filed for mental and physical disability benefits with the Department of Veterans Affairs in 1989. Two years later, a VA doctor concluded that Thomas had “persistent auditory hallucinosis which is troubling, so a diagnosis of schizophrenia is the most likely correct diagnosis. Some of the other adjunct symptoms are not present, however, but this will be the working diagnosis for him. He has slight social and industrial disability resulting from this.” The VA nevertheless denied Thomas’s claim, stating in a letter to him that a “final diagnosis was not made.” Neither the rating decision nor the doctor’s report was mentioned in the letter or attached to it. See Thomas v. Principi, 265 F. Supp. 2d 35, 37

(D.D.C. 2003); see also Appellee’s Br. at 4.

Thomas pursued a variety of appeals and claims for benefits. Not until 1999, however, some eight years after the VA doctor saw him, did the VA reveal to Thomas that the doctor had diagnosed him with schizophrenia. Alleging that the VA had wrongfully withheld notice of his diagnosis, thereby severely limiting his ability to pursue his livelihood, Thomas appealed to the Board of Veterans’ Appeals. That appeal remains pending.

In 2001, Thomas filed an administrative tort claim—a prerequisite to bringing suit under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2675(a). Like Thomas’s appeal to the Board, this claim asserted that the VA’s failure to disclose the schizophrenia diagnosis and to treat him resulted in greater medical problems, denial of state and federal benefits, and loss of income, including earning capacity. Although the administrative tort claim also remains pending, the VA is deemed to have finally denied the claim because it failed to “make a final disposition of [the] claim within six months after it [was] filed.” See id.; see also Thomas, 265 F. Supp. 2d at 38.

Acting pro se, Thomas filed suit in the United States District Court for the District of Columbia, alleging that the VA had committed medical malpractice and caused him intentional emotional distress by failing to inform him of the working diagnosis of schizophrenia. In addition to these FTCA claims, the forty-four-page complaint alleges Privacy Act violations, constitutional violations by the VA and several VA employees, defamation, fraud, loss of consortium, and estoppel. In his prayer for relief, Thomas requested compensatory and punitive damages of over one billion dollars from both the government and individual VA employees.

The VA moved to dismiss, or alternatively for summary judgment. Among other things, the VA argued that Thomas’s FTCA claim was jurisdictionally barred by 38 U.S.C. § 511, which prohibits district courts from reviewing “all questions of law and fact necessary to a decision by the Secretary [for Veterans Affairs] under a law that affects the provision of benefits by the Secretary to veterans.”

The district court agreed with the VA, granting its motion to dismiss the FTCA claims for lack of subject matter jurisdiction. 265 F. Supp. 2d at 41. Reasoning that “the gravamen of plaintiff’s claim is that [the VA] . . . failed to treat [him] . . . for schizophrenia . . . and other medical conditions,” the district court found that judicial review “would require the Court to second-guess medical judgments made by DVA.” Id. at 39. Thus, “[a] favorable decision as to plaintiff’s claims would entail a finding that defendants should have provided a particular quantum of medical treatment to plaintiff that they did not in fact provide . . . . [S]uch a finding is flatly forbidden by § 511.” Id. at 39.

Via the same analysis, the district court dismissed Thomas’s Privacy Act and constitutional claims for lack of subject matter jurisdiction. Id. at 39-40. Finding that Thomas’s defamation and fraud claims, though perhaps permissible under section 511, were excluded from the FTCA’s sovereign immunity waiver, the district court dismissed these claims as well. Id. at 40. Finally, the court denied Thomas’s request for leave to amend his complaint to add (1) a Privacy Act claim against the Assistant United States Attorney for discussing Thomas’s medical records in the VA’s motion to dismiss, (2) another tort claim against the VA for failure to “diagnose, inform, warn, or treat,” and (3) a legal malpractice claim against Thomas’s former legal representatives for failing to give him documents sent to them by the VA. Id. at 40 n.5.

Following Thomas’s timely appeal, we appointed amicus curiae, who has ably briefed and argued Thomas’s FTCA claims. We consider those claims in Part II and Thomas’s other claims in Part III.

II.

The VA argues that the “District court properly granted summary judgment in favor of the government [because] Thomas did not provide any evidence that the VA’s action were [sic] wrongful.” Appellee’s Br. at 9. This argument suffers from two defects. First, it rests on an incorrect premise. The district court did not grant summary judgment for the government. Instead, it dismissed Thomas’s complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The government did file a motion for summary judgment as an alternative to its motion to dismiss, but the district court granted only the latter. Second, Thomas’s failure to “provide any evidence” is hardly surprising given that the district court’s ruling preceded discovery, mooting Thomas’s motion to commence discovery.

Both in its brief and at oral argument, the VA also suggested that Thomas may not in fact suffer from schizophrenia. The VA, however, does not deny that for eight years it failed to advise Thomas of the working diagnosis of schizophrenia, and whether or not Thomas actually suffers from schizophrenia is a question the district court will have to resolve if it has jurisdiction over Thomas’s FTCA claim. We now turn to that jurisdictional issue.

Section 511 provides:

The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. . . . [T]he decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.

38 U.S.C. § 511. Other provisions of the Act demarcate the path to appellate review of secretarial benefits decisions: claimants may first appeal to the Board of Veterans’ Appeals, id. § 7104(a), then to the Court of Appeals for Veterans’ Claims, id. § 7252(a), to the Federal Circuit, id. § 7292(c), and ultimately to the Supreme Court, id.

According to the VA, “[f]ederal courts construing the predecessors to section 511 have consistently recognized that the statute barred district court consideration of individual claims for veterans’ benefits.” Appellee’s Br. at 11. True enough, but our task here is to determine whether Thomas has presented any such claims.

We have addressed section 511’s scope only once. In Price

v. United States, we held that “the district court lacked jurisdiction to consider [appellant’s] federal claim because underlying the claim is an allegation that the VA unjustifiably denied him a veterans’ benefit.” 228 F.3d 420, 421 (D.C. Cir. 2001) (per curiam). Assuming appellant’s damages claim was cognizable under a Florida tort statute, we found that the Florida cause of action depended on whether the insurer—in that case the VA—had acted in bad faith. Id. at 422. Reasoning that a “determination whether the VA acted in bad faith or with negligence would require the district court to determine first whether the VA acted properly in handling Price’s request for reimbursement,” we concluded that section 511 foreclosed judicial review. Id.

Applying Price to the facts of this case, we must determine whether adjudicating Thomas’s claims would require the district court “to determine first whether the VA acted properly in handling” Thomas’s benefits request. Id. Given that we hold pro se complaints “to less stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), and giving Thomas the benefit of all inferences, as we must at this stage of the litigation, we think he has alleged at least some VA actions that the district court can adjudicate without “determin[ing] first” whether Thomas was entitled to a certain level of benefits.

For example, Count III, alleging intentional infliction of emotional distress, states that “Defendants [sic] outrageous conduct in covering up the presence of a diagnosis of Schizophrenia with slight social and industrial disability because of this, for more than 10 years, was intentionally and recklessly directed at Plaintiff.” Compl. ¶ 31. Count V, labeled “Gross Negligence, Medical Negligence, and Legal Misconduct,” alleges that defendants negligently “failed to inform Plaintiff of the diagnosis, and about the risk of an untoward outcome.” Compl. ¶ 62. Similarly, Count X, entitled “Medical Malpractice,” alleges that

[e]ach of these defendants failed to take responsibility by not ensuring and taking time to communicate the risks and choices that were available to Plaintiff, e.g., the right to know, (1) you have been diagnosed with Schizophrenia with slight social and industrial impairment because of this,

(2) you have the choices of receiving medical treatment care from DVA, or to not receive treatment from DVA, and we let you make these choices; or inform Plaintiff that . . . ‘your claims for Schizophrenia is [sic] denied.’

Compl. ¶ 95. Because none of these claims alleges that the VA failed to pay for treatment (or even to provide for treatment), they raise no “questions of law [or] fact necessary to a decision by the Secretary under a law that affects the provision of benefits.” 38 U.S.C. § 511. The raised “questions of law and fact” relate to whether the alleged withholding of the diagnosis states a tort claim, and resolution of those questions is not “necessary” to the benefits determination. See id. Putting the issue in Price’s terms, no denial of benefits “underl[ies]” Thomas’s failure-to-inform allegations. See 228 F.3d at 421.

In reaching a different conclusion, the district court cited the regulatory definition of “benefit,” which includes “any . . . service, . . . entitlement to which is determined under laws administered by the Department of Veterans Affairs pertaining to veterans.” 38 C.F.R. § 20.3(e). But neither the district court nor the VA maintains that “service” spans so broadly as to encompass an alleged duty to inform. Indeed, when pressed at oral argument, counsel for the VA agreed that if a VA doctor left a sponge inside a patient during surgery, section 511 would permit an FTCA malpractice suit in district court. Reiterating our reliance on Price, we reject any implication that all action or inaction by the VA represents a type of “service,” and therefore automatically constitutes a “benefit.”

To be sure, as amicus acknowledges, not all of Thomas’s tort allegations survive the standard articulated in Price. For example, Count X alleges that the VA “failed to render the appropriate medical care services that are delivered to alleviate a harmful medical condition, which is calculated to prevent, diagnose, correct, cure, alleviate, or prevent the worsening in the Plaintiff.” Compl. ¶ 109. Likewise, Count III claims (among other things) that the VA’s “continuous and persistent deprivation and denial of known needed and necessary medical care treatment . . . caused Plaintiff severe emotional distress.” Compl. ¶ 29. Because adjudicating these allegations—failure to “render appropriate medical services” and “denial of . . . necessary medical care treatment”—would require the district court “to determine first whether the VA acted properly” in providing Thomas benefits, these claims are barred by section

511. See Price, 228 F.3d at 422. The district court’s lack of jurisdiction over these claims, however, has no effect on its ability to consider the non-benefits claims also raised in Counts III, V, and X.

III.

Without benefit of amicus curiae, Thomas also challenges the district court’s dismissal of his Privacy Act and Bivens claims, as well as its denial of his motion for leave to amend. These arguments require little discussion.

As to Thomas’s Privacy Act claims, the district court correctly found them barred by section 511. Unlike the FTCA claims, counts XI and XII allege only that the VA’s failure to maintain accurate and complete records adversely affected Thomas’s benefits determinations.

Thomas’s constitutional claims for money damages against VA employees are also barred. Under Bivens, “special factors” may counsel “hesitation in the absence of affirmative action by Congress” establishing liability for the acts of individual government employees. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 396 (1971). “Special factors” include “an elaborate remedial system” constructed by Congress “with careful attention to conflicting policy considerations.” Bush v. Lucas, 462 U.S. 367, 388 (1983). Here, “the administrative process created by Congress provides for a comprehensive review of veterans’ benefits disputes. Further, Congress has explicitly precluded judicial review of veterans’ benefits disputes, which suggests that Congress’ failure to create a remedy against individual VA employees was not an oversight.” Zuspann v. Brown, 60 F.3d 1156, 1161 (5th Cir. 1995) (internal quotation marks omitted); accord Sugrue v. Derwinski, 26 F.3d 8, 12-13 (2d Cir. 1994). Because we agree with the Fifth Circuit that this combination forecloses a Bivens action against VA employees for constitutional torts in the context of a dispute over veterans’ benefits, we will affirm the district court’s dismissal of these claims.

Finally, reviewing for abuse of discretion, see Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam), we will also affirm the district court’s denial of leave to amend the complaint to add a legal malpractice claim against Thomas’s former legal representatives and another Privacy Act claim. See 265 F. Supp. 2d at 40 n.5. As the district court noted, Thomas “remains free to assert [these] claims in a new action against the appropriate defendants.” Id. In light of our determination that the district court has jurisdiction over Thomas’s FTCA claims, however, we will remand his request to add a claim against the VA for “failure to diagnose, inform, warn, or treat,” 265 F. Supp. 2d at 40 n.5. Once Thomas amends his complaint, the district court, applying Price and this decision, will need to decide whether section 511 bars the additional allegation.

IV.

We reverse the dismissal of counts III, V, and X, as well as the denial of Thomas’s request to amend his complaint to add another tort claim, and remand for further proceedings consistent with this opinion. In all other respects, we affirm.

So ordered.

VA Found Responsible for Deaths of 4 Children After It Improperly Discharges Veteran Who Kills Family

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CAMILLE DEJESUS, Individually and as : Administratrix of the Estate of Alejandro : CIVIL ACTION DeJesus, Jr., Deceased, and the Estate of : Felicia Lynne DeJesus, Deceased, et al. ::
v. ::
UNITED STATES OF AMERICA : NO. 02-0253
DEPARTMENT OF VETERANS AFFAIRS ::
v. ::
THE PHILADELPHIA VETERANS : MULTI-SERVICE & EDUCATION CENTER, : INC., d/b/a Landing Zone II Transitional Residence ::
v. ::
LANDING ZONE II : TRANSITIONAL RESIDENCE :
Diamond, J. July 26, 2005
On March 23, 1999, Alejandro DeJesus, Sr. shot and killed his children, Alejandro, Jr. and Felicia (ages eighteen and seven), and their friends, Michael and Aaron Faulk (ages sixteen and fourteen), and then committed suicide. The Veterans Administration Medical Center in Coatesville, Pennsylvania had been treating Mr. DeJesus since 1997 for severe mental problems – – including Intermittent Explosive Disorder – – drug addiction, and domestic abuse. The VA’s medical records underscored that Mr. DeJesus was a severely disturbed, unstable individual who was likely to commit acts of domestic violence when frustrated or unemployed. Nonetheless, the day before the murders, the VA agreed to expel Mr. DeJesus from its transitional residence and fire him from his employment there because, for no rational reason, he had attacked another resident with a knife. Remarkably, the VA agreed to the expulsion even though DeJesus’s Primary Therapist wanted him first to be evaluated by a Psychiatrist because she feared his expulsion might provoke him to an act of domestic violence.
In the instant case, the mothers of the murdered children have sued the VA, alleging that in light of Mr. DeJesus’s severe mental illness and his violent, abusive history, the VA was grossly negligent in discharging Mr. DeJesus or in failing to treat, detain, or commit him after the knife fight. Following a six day non-jury trial, I returned a verdict in favor of Plaintiffs. In accordance with Federal Rule of Civil Procedure 52, I now offer my supporting factual findings and legal conclusions.
PROCEDURAL HISTORY
On January 16, 2002, Plaintiffs Camille DeJesus and Cheryl Faulk, acting on behalf of themselves and the estates of their deceased children, filed suit under the Federal Torts Claims Act against the VA. See 28 U.S.C. § 1346(b)(1). Their Complaint included the following causes
of action:
Count I — the DeJesuses’ claims for the VA’s gross negligence in discharging or in failing to treat, detain, or commit Mr. DeJesus, and for failing to warn the DeJesuses that Mr. DeJesus was an imminent threat;
Count II — the Faulks’ claims for the VA’s gross negligence in discharging or in failing to treat, detain, or commit Mr. DeJesus, and for failing to warn the Faulks that Mr. DeJesus was an imminent threat;

Count III — a wrongful death claim on behalf of Alejandro DeJesus, Jr.;
Count IV — a wrongful death claim on behalf of Felicia Lynne DeJesus;
Count V — a wrongful death claim on behalf of Michael Brandon Faulk;
Count VI — a wrongful death claim on behalf of Aaron Ashanti Faulk;
Count VII — a survival claim on behalf of the estate of Alejandro DeJesus, Jr.;
Count VIII — a survival claim on behalf of estate of Felicia LynneDeJesus;
Count IX — a survival claim on behalf of the estate of Michael Brandon Faulk;
Count X — a survival claim on behalf of the estate of Aaron Ashanti Faulk;
Count XI — Mrs. DeJesus’s claim for negligent infliction of emotional distress; and
Count XII — Ms. Faulk’s claim for negligent infliction of emotional distress.
As required by statute, their lawsuit would be heard by me sitting without a jury. See 28 U.S.C.
§§ 1346(b)(1), 2402.
The VA filed a Third Party Complaint against Landing Zone II Transitional Residence. LZ-II elected to have this third-party action heard by a jury. Upon the agreement of the parties, the non-jury trial against the VA would proceed first on liability, and then, if necessary, on damages. If necessary, the jury trial on the third-party Complaint against LZ-II would then proceed.
At Summary Judgment, I dismissed the Faulk and DeJesus failure to warn claims in Counts I through X, and Ms. Faulk’s claim for negligent infliction of emotional distress (Count XII).

I conclude that the VA was grossly negligent in agreeing to discharge or in failing to treat, detain, or commit Mr. DeJesus, and that it is liable to Mrs. DeJesus for negligent infliction of emotional distress.
FINDINGS OF FACT
During their depositions, all the VA professionals who treated Mr. DeJesus admitted to facts that underscored the VA’s appalling negligence in this matter. At trial, these same witnesses strove to undo, ignore, qualify, or evade their earlier testimony. In virtually all instances, I did not believe the witnesses’ revised versions, and instead credited their deposition admissions. See Davis v. United States Steel Supply, Civ. No. 80-2571, 1981 U.S. App. LEXIS
17407, at *20-*22 (3d Cir. Sep. 24, 1981) (allowing the crediting of deposition designations and documentary evidence over live testimony); see also FED. R. CIV. P. 52(a). My factual findings are based in no small part on these and other credibility determinations. Perhaps the most striking deficiency in the VA’s treatment of Mr. DeJesus was the failure of any VA professional to familiarize him or herself fully with the VA’s own medical history of Mr. DeJesus. For instance, Mr. DeJesus’s Primary Therapist did not know that a VA Psychologist had diagnosed Mr. DeJesus with Intermittent Explosive Disorder. A VA Psychiatrist confirmed this diagnosis, and prescribed a psychotropic drug to moderate Mr.DeJesus’s explosive episodes. A second VA Psychiatrist who treated Mr. DeJesus for depression, however, did not know of the Intermittent Explosive Disorder diagnosis or the psychotropic medication. Mr. DeJesus’s Treating Psychologist did not know that a VA Therapist had reported his concern at Mr. DeJesus’s too-sanguine description of an earlier incident, when he shot and killed an individual. As a result of this universal ignorance of Mr. DeJesus’s mental condition, no one at the VA knew just how disturbed and dangerous Mr. DeJesus was. Significantly, trial evidence underscored that the critical decisions respecting Mr. DeJesus’s expulsion from the LZ-II facility were made by the VA itself. Although LZ-II is a privately run transitional residence, the evidence showed quite clearly that it is a VA creation, receives its funding exclusively from the VA, operates exclusively on VA property, and exists solely to serve VA patients. No one at the VA ever informed LZ-II’s staff of Mr. DeJesus’s mental condition. On the contrary, Mr. DeJesus’s primary VA Therapist had unintentionally misled LZ-II staff, informing them that he was suffering from no mental illness when exactly the opposite was true. The VA had structured LZ-II so it would rely entirely upon the VA for all
medical and psychological diagnoses and treatment. Accordingly, no one on LZ-II’s staff had
medical or psychological training. My view of the evidence — especially the testimony of the
LZ-II witnesses — leads me to find that although LZ-II staff thought to expel Mr. DeJesus after
the March 22nd knife incident, LZ-II looked to the VA to determine the advisability of such
action. In these circumstances, the VA effectively made the decision to expel Mr. DeJesus, as
well as the decision not to treat, detain, or commit him — decisions that had tragic consequences.
Finally, Plaintiffs presented the expert testimony of Dr. Robert Lloyd Goldstein. With a
medical degree from the University of Chicago, a law degree from Columbia University, and a
wealth of professional and academic experience, Dr. Goldstein is exceptionally well qualified to
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offer expert opinions respecting the evaluation, treatment, and detention of dangerous patients.
Dr. Goldstein set out numerous instances in which the VA grossly breached the required
standards of care respecting Mr. DeJesus. I found his testimony and report to be credible and
compelling. The expert relied upon by the VA is an osteopath who is the Medical Director of a
local Crisis Response Center. I found her testimony and report to be equivocal and far less
persuasive. Yet, even the VA’s expert agreed with a number of Dr. Goldstein’s conclusions
respecting the VA’s mistakes.
A. The Relationship Between Mr. And Mrs. DeJesus and Mr. DeJesus’s Early History of
Domestic Violence and Mental Illness
Camille and Alejandro DeJesus, Sr., were married in Brooklyn, New York in 1975 and
had three children: Alejandro, Jr., Candida, and Felicia. (1.129-1.130). From the beginning of
their marriage, Mr. DeJesus, a veteran of the United States Navy, used cocaine and heroin.
(1.130-1.131, 1.134; Stipulated Facts ¶ 1). In 1986, after Mrs. DeJesus tried unsuccessfully to
persuade Mr. DeJesus to stop using drugs, she left him and took her children with her to stay
with relatives in upstate New York . (1.132). She told Mr. DeJesus that if he did not stop using
drugs, he could not rejoin the family. (1.133). Mr. DeJesus gave up drugs and rejoined his
family. (1.133).
In 1992, hoping for a new start, the entire family moved to Media, Pennsylvania.
Unfortunately, Mr. DeJesus began to abuse his wife and children, striking them with his hands,
brooms, or belts, leaving them with bruises, welts, and swelling. (1.137, 1.149; 1.185-1.187;
2.184-2.185). In January 1996, the abuse escalated when Mr. DeJesus choked Mrs. DeJesus and
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pushed her to the floor. (Stip. Facts, ¶ 2; 1.138-139). Mrs. DeJesus left her husband, and took
her children to live with her brother and sister-in-law. (1.138-140).
In May 1996, Mrs. DeJesus moved out of her brother’s home and rented an apartment in
Media for herself and her two daughters. (1.141). There, the DeJesuses became close friends
with their neighbors, the Faulks. (1.141). Alejandro, Jr. initially remained with Mr. DeJesus.
(2.188). During the course of the next year, Mrs. DeJesus and her daughters saw Mr. DeJesus
infrequently. (1.143).
Frustrated after the separation, Mr. DeJesus resumed his heroin use, and continued his
violent behavior. (1.134-1.35). In April 1997, Mrs. DeJesus phoned the police after Mr. DeJesus
struck her (1.143). In May 1997, Mr. DeJesus again went to his wife’s apartment and attacked
her. (1.144). Although Mr. DeJesus was carrying a knife and a gun (which he was licensed to
carry), he never used the weapons. (1.145; Stip. Facts ¶ 5). When Alejandro Jr. sought to protect
Mrs. DeJesus, Mr. DeJesus struck and pushed his son into a table and onto the floor. (1.144).
Mrs. DeJesus notified the police, who arrested Mr. DeJesus. (1.144, 1.145, 1.147; G-1;
Stip. Facts ¶¶ 7, 8). Mrs. DeJesus also obtained a Protection from Abuse Order that prohibited
Mr. DeJesus from coming near her apartment or Felicia’s school. (1.147-1.148). While in
custody, Mr. DeJesus tried to commit suicide. (P-50; 5.65).
The Protection Order notwithstanding, Mr. DeJesus again appeared at Mrs. DeJesus’s
apartment after he was released from custody. (1.149). She told him to leave and called the
police. (1.149). Mrs. DeJesus and the children then ceased routine communications with Mr.
DeJesus. (1.149.) Isolated from his family, Mr. DeJesus’s mental condition and drug addiction
worsened, and he became homeless, living in a shelter in Chester, Pennsylvania. (1.150).
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B. Mr. DeJesus Seeks Help From the Veterans Adminsitration
Hoping to reconcile with his family, in September 1997 Mr. DeJesus entered the Veterans
Administration Medical Center in Coatesville, Pennsylvania. (3.128; Stip. Facts ¶ 9). The
VAMC is a specialty referral facility that treats veterans from Pennsylvania, Delaware, and New
Jersey. (Stip. Fact. ¶¶ 10, 11).
The VA initially assigned Mr. DeJesus to its Homeless Domiciliary Program, which
provides homeless veterans with medical and psychiatric care, substance abuse treatment,
vocational evaluation and conditioning, and job placement. (Stip. Fact. ¶¶ 12, 13, 14). Since
1989, Stephen Chambers – – a licensed psychologist with a doctorate in psychology — has headed
the Domiciliary. (4.12; G- 49). The staff at the Domiciliary includes physicians, physician’s
assistants, registered nurses, psychologists, dieticians, social workers, physical therapists,
vocational rehabilitation specialists, and addiction counselors. (Id.). The staff seeks to develop
treatment plans that address each patient’s problems. (Stip. Fact. ¶ 15).
Mrs. DeJesus approved of her husband’s decision to seek help, and remained willing to
reconcile with him if his conduct improved. (1.151). She remained cautious, however, and did
not visit Mr. DeJesus during his entire stay at the VAMC facilities. (1.151). Rather, she had
periodic telephone conversations with her husband, who occasionally wrote to their daughter
Candida. (1.190). The calls and the letters were affectionate, and included nothing threatening.
(1.190-1.191).
C. VA’s Initial Diagnoses of Mr. DeJesus’s Mental Condition
At the Domiciliary, Dr. Edward Moon, a licensed psychologist, was Mr. DeJesus’s initial
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Treating Psychologist. (3.29-3.43). In 1999, Dr. Christopher Ray succeeded Dr. Moon as
Treating Psychologist. (4.95-4.97). Dr. Moon diagnosed Mr. DeJesus with Intermittent
Explosive Disorder, cocaine dependence and remission, and mood disorder. (P-2; 3.29-3.43).
Dr. Moon based his diagnosis on the DSM-IV — the standard guide used to diagnose psychiatric
disorders — which describes Intermittent Explosive Disorder as follows:
The essential feature of Intermittent Explosive Disorder is the
occurrence of discrete episodes of failure to resist aggressive
impulses that result in serious assaultive acts or destruction of
property. The degree of aggressiveness expressed during an
episode is grossly out of proportion to any provocation or
precipitating psychosocial stressor. A diagnosis of Intermittent
Explosive Disorder is made only after other mental disorders that
might account for episodes of aggressive behavior have been
ruled out (e.g., Antisocial Personality Disorder, Borderline
Personality Disorder, a Psychotic Disorder, a Manic Episode,
Conduct Disorder, or Attention Deficit/Hyperactivity Disorder).
The aggressive episodes are not due to the direct physiological
effects of a substance . . . or a general medical condition. . . . The
individual may describe the aggressive episodes as “spells” or
“attacks” in which the explosive behavior is preceded by a sense
of tension or arousal and is followed immediately by a sense of relief.
Later the individual may feel upset, remorseful, regretful, or
embarrassed about the aggressive behavior.
. . . Signs of generalized impulsivity or agressiveness may be present
between explosive episodes. Individuals with narcissistic, obsessive,
paranoid, or schizoid traits may be especially prone to having explosive
outbursts of anger when under stress. The disorder may result in job
loss, school suspension, divorce, difficulties with interpersonal
relationships, accidents . . ., hospitalization . . ., or incarcerations.
(P-13 (DSM-IV § 312-24). Although it is difficult to determine when Intermittent Explosive
Disorder will manifest, it is usually in response to a specific “triggering” event. (1.16; P-13
(DSM-IV § 312-24). The afflicted individual may be calm between episodes, or may “exhibit
some violence or impulsivity at a lower level,” but when “triggered,” he will undergo “outbursts”
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and periods of “extreme aggressiveness.” (1.16).
In his discussions with Dr. Moon, Mr. DeJesus described his violent, abusive,
relationship with his family. (3.30). Mr. DeJesus was tearful and emotional when he spoke
about his family. (3.32-3.33). Dr. Moon identified Mr. DeJesus’s aggression and abuse of his
family as symptoms of Intermittent Explosive Disorder, and noted that stressful interactions with
his family often “triggered” his rage. (P-2(b); 3.35-3.39). Dr. Moon also observed that and Mr.
DeJesus “connected domestic violence with unemployment and frustration.” (3.78). Dr. Moon
further recognized that for persons with Intermittent Explosive Disorder, “the best predictor of
future behavior is past behavior,” because “there is a pattern” of repeated conduct. Accordingly,
he cautioned that it was extremely important to monitor Mr. DeJesus’s relations with his family.
(3.35, 3.40-3.41).
Seeking a second opinion and a prescription for medication, Dr. Moon referred Mr.
DeJesus to VA Psychiatrist Glasner, who confirmed that Mr. DeJesus had Intermittent Explosive
Disorder, and prescribed 200 mg. of Tegretol, twice a day, to control his anger. (3.71; Stip. Facts
¶ ¶ 26, 27). Tegretol is an psychotropic, anti-convulsant medication commonly used as a mood
stabilizer to control Intermittent Explosive Disorder. (Stip. Facts ¶ 28). Through the use of
Tegretol and targeted therapy, Drs. Moon and Glasner hoped that Mr. DeJesus could learn to
control his aggression and abusive, violent behavior. (3.35-3.40).
Mr. DeJesus told Dr. Moon that he had fleeting thoughts of suicide and homicide and had
previously attempted suicide when he was arrested for attacking his wife. (3. 32-3.33, 3.80-
3.81). Concerned that Mr. DeJesus was depressed, Dr. Moon referred him to a second VA
Psychiatrist, Dr. Tirso Vinueza. (3.68-3.71). Remarkably, Dr. Moon never told Dr. Vinueza that
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Mr. DeJesus was taking Tegretol to control his Intermittent Explosive Disorder, and Dr. Vinueza
never reviewed Mr. DeJesus’s treatment records or asked Dr. Moon, Dr. Glasner, or Mr. DeJesus
himself if he was taking any medication. (G-7; 3.70-3.71). Thus, Dr. Vinueza concluded that
Mr. DeJesus suffered from only “mild depression,” which could be helped by psychotropic
medication. (G-7). Dr. Vinueza did not realize, however, that Mr. DeJesus was already taking a
psychotropic medication — Tegretol. (G-7). Because neither Dr. Vinueza nor anyone else
treating Mr. DeJesus had reviewed Mr. DeJesus’s entire medical record, they did not properly
diagnose or treat Mr. DeJesus’s depression, nor did anyone at the VA know the full extent of Mr.
DeJesus’s mental illness. Thus, Mr. DeJesus never received competent and complete psychiatric
and psychological treatment and therapy at the VA. (1.42-1.43, 1.44-1.45).
The VA also diagnosed Mr. DeJesus as a diabetic and prescribed daily does of insulin.
(P-4(b)).
D. The Failure of Mr. DeJesus’s Primary Therapist to Learn of His Condition or
Diagnoses
After these initial clinical and medical diagnoses, Mr. DeJesus was first referred to a
social work intern, Vicky Lynn Zaszo, and then, to Denise Outzs-Cleveland, a health science
specialist. (3.125; Dep. Des., p. 34). Ms. Outzs-Cleveland served as Mr. DeJesus’s case
manager and Primary Therapist, as well as a liaison between Mr. DeJesus and the rest of his
treatment team. (3.107, 3.109). She provided Mr. DeJesus with individual and group counseling
and substance abuse education, and headed his treatment team. (3.91-3.92, 3.107; Dep. Des. p.
34). Although Ms. Outzs-Cleveland has an RN degree, she does not have a license to practice as
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a nurse, which she has failed to obtain on two occasions. (Dep. Des. pp. 36, 67). Although the
VA designated her as Mr. DeJesus’s Primary Therapist, she does not have a license to practice as
a Therapist because the VA does not require it. (Dep. Des. pp. 36, 37).
The VA has computerized each patient’s entire clinical and medical history so that any
member of the treatment staff can refer to all records when evaluating a patient. (Dep. Des. pp.
40-41). As Mr. DeJesus’s Primary Therapist, it was Outzs-Cleveland’s responsibility to review
his medical records. (Dep. Des. 45). Ms. Outzs-Cleveland acknowledged that it was essential to
know a patient’s medications and diagnosis. (3.198). Although Ms. Outzs-Cleveland had
ample opportunity to check Mr. DeJesus’s computerized treatment records, she never did so.
(3.198). Accordingly, she was ignorant of vital facts: that VA doctors had repeatedly diagnosed
Mr. DeJesus with Intermittent Explosive Disorder; that Mr. DeJesus was taking Tegretol to
control his aggression; that he was suffering from depression (which was going untreated); that
problems with his family triggered his rage; that frustration and unemployment would likely
trigger him to domestic violence; or that he had past ideations of homicide and suicide, and had
once attempted suicide. (3.139-3.140, 3.198).
Ms. Outzs-Cleveland’s failure to familiarize herself with Mr. DeJesus’s medical records
is all the more disquieting because she understood from her therapy sessions with him that he
suffered from severe anger and anxiety problems, especially when he was separated from his
family — as he was during his entire stay at the VA facilities. (3.136, 3.212). During those
therapy sessions, Mr. DeJesus repeatedly told Ms. Outzs-Cleveland that he was distraught over
his finally problems, and was especially troubled because he could not see Felicia. (3.136,
3.212). Yet, like every other treating professional at the VA, Ms. Outzs-Cleveland inexplicably
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failed to review Mr. DeJesus’s entire VA medical history.
E. Mr. DeJesus’s Prior Use of Deadly Force
During his stay at the VAMC, Mr. DeJesus displayed his violent inclinations. He told
Ms. Outzs-Cleveland and VA Therapist Bruce Newell that he was a gun enthusiast and enjoyed
target shooting. (4.77, 4.81; Stip. Facts ¶ 6). He also told Newell that he had once worked as a
security guard and had shot and killed another man. (4.73). Although Mr. Newell had treated
many veterans who had killed others in combat, the casualness with which Mr. DeJesus
described the shooting and “taking life” so shocked Newell that he immediately informed
Domiciliary Chief Stephen Chambers – – who told no one treating Mr. DeJesus of this
information, and failed to record it in Mr. DeJesus’s medical records. (4.76).
Additionally, sometime before March 22, 1999, Mr. DeJesus was involved in a violent
interaction with his then roommate, William Melvin. (2.102-2.103). One morning, Mr. Melvin
awoke to find Mr. DeJesus standing over him with a knife. (2.27). Although it is unclear
whether Mr. Melvin mentioned this event to the LZ-II staff, he did inform his VA treatment
group, although it is not clear when he did so. (2.42; 4.126-4.127). The Melvin incident showed
that still Mr. DeJesus lacked the ability to control his aggression, and that the treatment he was
receiving to control his Intermittent Explosive Disorder was not working.
F. Mr. DeJesus’s Transfer to LZ-II.
In February 1998, Mr. DeJesus was discharged from the Domiciliary facility, but was still
eligible to stay at the VA’s onsite facility, Landing Zone II TransitionalResidence. (G-9; 3.154-
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3.155; Stip. Facts ¶ 38). LZ-II is a privately run program exclusively for homeless veterans
operated by the Philadelphia Veterans Multi-Service and Education Center, Inc. It is funded
entirely by the VA, and situated on the Coatesville VAMC property. LZ-II provides housing for
veterans for up to two years as they make the transition back into society. (Stip. Fact. ¶¶ 35, 42;
2.46). Marsha Fore is the Program Director for Homeless Veterans Services; Sandra Miller is
responsible for LZ-II’s day-to-day operations. (2.46, 2.101).
Pursuant to its grant under the VA Homeless Grant and Per Diem Program, LZ-II works
in tandem with the VA to help veterans. (Stip. Facts ¶ 38). The VA is responsible for providing
policing and safety services, as well as all mental health, psychiatric, and medical, and
rehabilitative services for LZ-II’s residents. (Stip. Fact. ¶¶ 37, 38, 43). The VA Police also have
full authority to make arrests at LZ-II and all VAMC property. (Stip. Facts ¶ 43). Accordingly,
as of March 1999, LZ-II had no one on staff to provide psychological, medical, psychiatric, or
counseling services. Rather, as the VA intended when it created LZ-II in 1996, LZ-II relied
entirely on the VA to provide these services to its residents. Moreover, LZ-II had no access to
the psychiatric and psychological records of its residents. (Stip. Facts ¶ 36; Stip. Fact ¶ 38;
3.205; P-8; Dep. Des. p. 52). Finally, as a creation of the VA, LZ-II would try to comply with
any requests regarding the treatment or placement of its residents. (2.61-62, 2.67).
During a resident’s stay at LZ-II, his VA Primary Therapist continues in that role. This
system of continuing aftercare is necessary because veterans often relapse to past behavior.
(3.82). In some instances, aftercare is needed for several years. (3.76). Thus, Ms. Outzs-
Cleveland continued to treat Mr. DeJesus and to serve as his case manager and sole outpatient
Therapist during his residence at LZ-II. (P-8; 2.103-2.104; 3.205 Dep. Des. p. 53).
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Additionally, while residents are living at LZ-II, they are assigned to perform certain tasks
for which they are paid. (2.102). Thus, a transferee to LZ-II is both a resident and an employee.
(2.69). During his stay at LZ-II, Mr. DeJesus was employed as a cook in the LZ-II kitchen.
(2.71).
Just before Mr. DeJesus moved to LZ-II, Ms. Outzs-Cleveland prepared his outgoing
Clinical Referral Report, intended to inform LZ-II staff of Mr. DeJesus’s condition, problems,
and psychological state. (G-9; 3.153-3.155; Stip. Fact 31). Ms. Outzs-Cleveland prepared a
Report that was grossly incorrect, incomplete, and outright misleading. She did not mention that
Mr. DeJesus suffered from Intermittent Explosive Disorder or needed Tegretol to control his
rage. (3.154.) Moreover, under “mental health diagnosis” she wrote “N/A” — meaning that the
category was “not applicable” — because she erroneously believed that Mr. DeJesus did not have
any mental health diagnoses. (Dep. Des. p. 48). Had she reviewed Mr. DeJesus’s medical
records before completing the Report, she would have known that in fact Mr. DeJesus had severe
mental health problems. Thus, she unintentionally misled LZ-II staff, who believed that Mr.
DeJesus was not suffering from mental illness. (Dep. Des. p. 49; 2.49).
With LZ-II’s ignorance of Mr. DeJesus’s disturbed state, it was not possible for LZ-II
properly to evaluate Mr. DeJesus’s behavior. For instance, in March 1998, Mr. DeJesus got into
a heated argument with other LZ-II residents over a shared car ride. (1.120-1.103). Because the
VA had misled LZ-II respecting Mr. DeJesus’s mental condition, LZ-II staff had no way of
knowing whether this was an isolated instance of anger, or part of a violent history, suggesting a
deterioration in Mr. DeJesus’s mental stability. (1.120-1.103).
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G. Mr. DeJesus’s Further Deterioration
By late 1998, Mr. DeJesus’s contact with his family had diminished significantly.
(1.152). In November of that year, troubled and desperate to hold onto his family, Mr. DeJesus
sought custody and visitation rights with respect to his daughter Felicia. (1.152-153). Later that
month, the Delaware County Court held a custody hearing at which Mr. DeJesus submitted a
letter from the VA, dated November 18, 1998. (P-8). Authored and signed by Ms. Outzs-
Cleveland, the letter stated that Mr. DeJesus was sober and had learned to manage his anger, and
that he was exceptional at interacting with others. (P-8, 1.155). This evaluation was incomplete
and incorrect, as Ms. Outzs-Cleveland would have known had she consulted Mr. DeJesus’s
medical records. (P-8).
Moreover, like her Clinical Referral Report, Ms. Outzs-Cleveland’s letter was
misleading. Relying upon the letter, Mrs. DeJesus concluded that Mr. DeJesus had improved as
a result of his stay at the Domiciliary and LZ-II. (1.155-156). She then agreed that Mr. DeJesus
could have supervised visits with Felicia if he was first evaluated by a counselor and submitted
his treatment records to a referee. (1.156-157). Mrs. DeJesus also decided that the time had
come to end her marriage.
On February 1, 1999, Mrs. DeJesus filed for divorce. (Stip. Facts ¶¶ 57-58). Mr.
DeJesus received the divorce papers on February 4, 1999. (P-6). Distraught and frustrated, he
immediately called Ms. Outzs-Cleveland. Although Mr. DeJesus said that his call to Ms. Outzs-
Cleveland had been a mistake — that he had intended to call his wife — it was clear that Mr.
DeJesus was turning to his Primary Therapist for help in a time of disturbance. (1.21-1.23; Dep.
Des. pp. 55, 59). Mr. DeJesus told Ms. Outzs-Cleveland that his wife had served him with
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divorce papers, and that he was terrified at the prospect of his family’s imminent dissolution.
(Dep. Des. pp. 55, 59).
It was apparent that Mr. DeJesus’s condition had worsened. (1.22-1.23). Ms. Outzs-
Cleveland was concerned about Mr. DeJesus’s confusion and anger. (P-6). She believed that he
was psychologically unstable, and because she could not calm him down, she wanted to see Mr.
DeJesus to conduct additional therapy “ASAP” — as soon as possible. (Dep. Des. p. 55; 3.167,
3.214). Nonetheless, neither Ms. Outzs-Cleveland nor anyone else at the VA made any effort to
see him and had no contact with him between the February 4, 1999 telephone call and the March
22, 1999 knife incident. (Dep. Des. pp. 55-56; 3.165, 3.217). More disturbingly, Ms. Outzs-
Cleveland told no one the VA or LZ-II of her concern about Mr. DeJesus’s mental instability.
(3.194). Additionally, although she was extremely concerned about Mr. DeJesus’s reactions to
the divorce, she never checked his medical records or asked others if there was some explanation
for his condition. (3.194). Had she checked the records, she would have realized that Dr. Moon
had determined that Mr. DeJesus’s family problems would likely “trigger” his Intermittent
Explosive Disorder.
Sometime in mid-March, Mr. DeJesus called his wife, again asking to see Felicia and
discuss the divorce. Mrs. DeJesus did not want to talk to him, and said that he could not see
Felicia unless he complied with the court ordered conditions. She also told him not to come to
her apartment. (1.160-161). Distraught over these events, and facing the failure to attain his
long-standing goal of reuniting with his family, Mr. DeJesus’s mental condition worsened. (Dep.
Des. pp. 51-52). Already distraught, on March 20, 1999, Mr. DeJesus bought a gun. (G-22).
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H. The Knife Incident
Mr. DeJesus’s Intermittent Explosive Disorder, the triggering events in his life, and the
VA’s incompetence converged on March 22, 1999. Early that morning, Mr. DeJesus was
involved in a violent altercation with another LZ-II resident, Bill Queen. (1.25-1.26; P-22). The
two were cleaning the kitchen when Mr. DeJesus became violently angry at Mr. Queen for failing
to remove a bucket of water. (P-22). Mr. DeJesus brandished a knife, and threatened Mr.
Queen’s life with it. (2.106; P-22). Another resident, Joe Lanzara, intervened and forced Mr.
DeJesus to put down the knife — something Mr. DeJesus did with great reluctance. (2.113; P-22,
P-23).
When Ms. Miller and Ms. Fore arrived around 7:00 a.m., they learned of the altercation.
To determine what occurred, they immediately separated Mr. DeJesus and Mr. Queen — who
were both angry– and interviewed them and the other witnesses to the incident. (2.55-2.56).
They then asked Mr. DeJesus to leave the residence while they investigated further. (2.55-2.57).
The staff noted that Mr. DeJesus was still very upset when he left LZ-II at 9:00 a.m., ostensibly
to go to the library. Once he left, the staff lost track of him until the afternoon. (Ct-2).
I. The VA Insists on Mr. DeJesus’s Immediate Discharge from LZ-II
Since the VA created LZ-II’s in June 1997, the DeJesus-Queen altercation was the only
instance in which one resident threatened another resident with a weapon. (2.76). Thus, neither
Ms. Fore nor Ms. Miller knew how to respond to what they deemed a major incident. (2.59,
2.76-2.76; P-23). They recognized that the altercation was out of character for Mr. DeJesus, and
turned to the VA for help. (2. 140, 2.52-2.53; P-17). They first asked Domiciliary Chief
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Chambers what they should do. (2.57; 2.107). They also made phone calls to Bruce Newell —
Mr. Queen’s Primary Therapist — and Ms. Outzs-Cleveland — Mr. DeJesus’s Primary Therapist –
– pleading for their immediate and urgent assistance. (2.57, 2.108, 4.131-132).
From their testimony, it was apparent that LZ-II staff were prepared to do everything that
they could to accommodate the entity that created and funded LZ-II, that provided LZ-II with
residents, and on whose property LZ-II existed: the VA. Had the VA treatment professionals
indicated that LZ-II should not expel Mr. DeJesus, LZ-II would not have done so. Thus, the VA
effectively made the decision to expel Mr. DeJesus. (2.61-2.62, 2.86-2.87).
All the VA professionals involved in evaluating the knife incident came to the same
conclusion: by threatening another resident with a knife, Mr. DeJesus had demonstrated that he
was too dangerous to continue to reside in LZ-II, and so should be expelled. (2.113-2.114; 3.170
4.134; 4.81-4.82). Apparently it did not occur to any of them that Mr. DeJesus would be at least
as dangerous (and certainly more so) once he was expelled and thus rendered homeless and
unemployed. (5.22).
Dr. Chambers was the only VA staff member to respond immediately to LZ-II’s call for
help. (2.107). (2.113-2.114; 3.170; 4.81-4.82). At approximately 9:00 a.m., Dr. Chambers
arrived at LZ-II and told Ms. Fore and Ms. Miller that Mr. DeJesus’s conduct was dangerous, and
that LZ-II had to discharge him for the safety of “the house, as a whole, rather than individuals.”
(2.78, 2.107, 2.108). Although Dr. Chambers had some previous contact with Mr. DeJesus and
had found him to be “a model resident,” he now concluded that Mr. DeJesus was a “different”
person. (4.133). Despite this significant change, Dr. Chambers never saw or spoke to Mr.
DeJesus. (4.132). It is disturbing that Dr. Chambers did not meet with Mr. DeJesus, given that
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he knew that Mr. DeJesus was “terrified” of leaving the VA. (4.132, 4.143; P-99). It is even
more disturbing that Dr. Chambers would make such a decision without first reviewing Mr.
DeJesus’s medical history. (4.143). An immediate expulsion meant that Mr. DeJesus would
leave LZ-II without a psychiatric consultation, a room check, or any medical professional first
determining if Mr. DeJesus was taking his Tegretol and insulin. (2.108; 4.134; 4.144).
The other VA staff consulted by LZ-II followed Dr. Chambers’s lead and told LZ-II to
expel Mr. DeJesus. Around noon – – and after Dr. Chambers left – – Bruce Newell (Mr. Queen’s
Primary Therapist) arrived at LZ-II. Mr. Newell had received professional training in
horticulture therapy and divinity. (4.51). Like Dr. Chambers, without speaking to Mr. DeJesus or
his Doctors, and without reviewing Mr. DeJesus’s medical records, Mr. Newell decided that LZII
should expel Mr. DeJesus. (4.81). Yet, Mr. DeJesus’s act troubled Mr. Newell not just
because it was extremely violent, but also because (as described above) Mr. Newell knew that
Mr. DeJesus was a gun enthusiast, and that Mr. DeJesus had callously described to Mr. Newell
how he had once killed another man. (4.58, 4.73, 4.77, 4.81; Stip. Facts ¶ 6). Mr. Newell’s
concern notwithstanding, he decided that Mr. DeJesus should be expelled immediately to protect
the safety of LZ-II’s other residents and staff. (4.58, 4.77, 4.81).
Sometime around 1:00 p.m., Ms. Outzs-Cleveland made her way to LZ-II, and attended a
meeting with Mr. Newell, Ms. Fore, and Ms. Miller. (2.58, 2.109). After speaking with Mr.
DeJesus, she told Mr. Newell that in her opinion Mr. DeJesus needed inpatient treatment and an
immediate or “STAT” psychiatric consultation; she wanted Mr. DeJesus taken for the
consultation “right then and there.” (4.83-4.87). She was “terrified” that once Mr. DeJesus was
expelled, he would “want to harm others, particularly his estranged wife.” (2.226; 3.40; Dep.
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Des. 42, 65). She was also troubled because Mr. DeJesus did not appreciate the seriousness of
brandishing a knife at Mr. Queen. (3.128; Dep. Dep p. 57).
Despite her grave concern respecting Mr. DeJesus’s mental stability, Ms. Outzs-
Cleveland — like everyone else from the VA — did not consult Mr. DeJesus’s medical records.
After the knife incident, had she — or anyone else involved in the decision to discharge Mr.
DeJesus — done so, she would have known that the mood stabilization medication Mr. DeJesus
was taking was not controlling his Intermittent Explosive Disorder, and that this disorder,
combined with his still untreated depression, terror of being expelled from LZ-II, great frustration
at his impending divorce, and related problems would almost certainly provoke him to act of
great violence. (1.46). Had Dr. Chambers, Ms. Outzs-Cleveland, or Mr. Newell referred to the
records, they would have realized that they were discharging a loudly ticking time bomb that,
inevitably, would harm his family or himself. (1.46; 3.226).
J. LZ-II Agrees with the VA and Expels Mr. DeJesus
With the VA’s insistence on Mr. DeJesus’s expulsion, and relying on Ms. Outzs-
Cleveland’s misleading Clinical Referral Report, Ms. Fore and Ms. Miller reluctantly agreed to
Mr. DeJesus’s immediate expulsion. (2.59). LZ-II staff recognized that it was unusual to expel a
patient. (2.86-2.87). Had the VA told LZ-II not to discharge Mr. DeJesus because they had
concerns about his mental stability, LZ-II would have agreed to let him remain. (2.61-2.62).
Significantly, before expelling Mr. DeJesus, no one sought to determine if he had any
money in his resident savings account. (4.32; P-18). In fact, Mr. DeJesus had no savings.
(4.32). In addition, once expelled, Mr. DeJesus automatically lost his job in LZ-II’s kitchen.
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(4.32-4.33). Thus, Mr. DeJesus’s expulsion from LZ-II necessarily meant he would be homeless.
(4.32-4.33). Had any treatment professionals checked the medical records, they would have
learned that Dr. Moon had determined that homelessness was likely to provoke Mr. DeJesus to
commit acts of domestic violence. (3.78, 3.139-3.140, 3.198).
After meeting with Newell, Fore, and Miller, Ms. Outzs-Cleveland again spoke to Mr.
DeJesus, who said that he intended to walk to Maine or New Hampshire, and that he was giving
away many of his possessions. (3.180-3.181; 4.37, 4.139; Dep. Des. p. 61). These remarks
suggested to Ms. Outzs-Cleveland that Mr. DeJesus might be having suicidal thoughts. Twice
she offered to escort Mr. DeJesus to a VA Psychiatrist for evaluation. (3.172-3.173). He
refused. (3.172-3.173). Looking for some direction, she first called Dr. Chambers to ask him
how she could get an outpatient to be seen by a Psychiatrist. (3.177). Dr. Chambers told her she
could offer to escort him to a Psychiatrist — something she had already done. (3.177).
Ms. Outzs-Cleveland then called Dr. Ray, her immediate supervisor and Mr. DeJesus’s
Treating Psychologist, to see if he knew of any other way to have Mr. DeJesus evaluated by a
Psychiatrist before he left LZ-II. (3.178). During the conversation Dr. Ray was some 100 feet
from LZ-II, attending a meeting with his treatment team. Ms. Outzs-Cleveland overheard the
discussion among the team members indicating that they were confused over the applicable
procedures, ultimately concluding that “we don’t get involved with [outpatients].” (3.179; 4.42-
4.43; Dep. Des. p. 60). Dr. Ray ultimately provided the same advice as Dr. Chambers: offer to
escort Mr. DeJesus to a Psychiatrist. (3.179).
During her conversations with Dr. Chambers and Dr. Ray, Ms. Outzs-Cleveland never
told either of them that she was “terrified” if Mr. DeJesus were expelled from LZ-II, he might
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harm his wife. (3.181). She did not tell them that her concern was so great that she wanted him
evaluated “STAT,” “right then and there.” (3.181; 4.135-4.139; Dep. Des. P. 62). Nor did Ms.
Outzs-Cleveland tell either the basis of her concerns: Mr. DeJesus’s history of domestic violence;
his involvement in custody and divorce proceedings; his frustration with the court system’s slow
handling of these proceedings; that he was giving away his possessions; that he said he was going
to walk to Maine or New Hampshire. (3.181; 4.135-4.139; Dep. Des. p. 62).
At trial, both Dr. Ray and Dr. Chambers stated that additional information may have
changed their decision respecting Mr. DeJesus’s expulsion. (4.139). Yet, even though Dr. Ray
was Mr. DeJesus’s Treating Psychologist, he did not the 100 feet to LZ-II, where Mr. DeJesus —
his patient — was being questioned. Dr. Ray explained that even though he was Mr. DeJesus’s
Treating Psychologist, he had never actually met his patient, and therefore “thought that it
wouldn’t be quite appropriate [to examine Mr. DeJesus] because [he] had never met him.”
(4.97-4.98). Dr. Ray also did not want to leave a scheduled staff meeting, although he knew that
this was not an acceptable reason to fail to answer a call for assistance. (3.85).
Neither Dr. Chambers nor Dr. Ray was familiar with the involuntary commitment
procedures under Section 302 of Pennsylvania’s Mental Health Procedures Act, or any other
procedures by which the VA or LZ-II could obtain a psychiatric consultation for an outpatient.
(4.101-102). Dr. Chambers and Dr. Ray were also unsure as to what behavior constituted an
emergency, an immediate threat, or an overt act – – any of which would justify an involuntary
commitment under Pennsylvania law. In light their ignorance respecting Section 302 procedures,
they preferred to employ the VA’s internal Psychiatric Emergency Assistance Team (“PEAT”) or
Code Green procedures. (4.107).
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Under a PEAT or Code Green procedure — which the VA or LZ-II staffs may call from
anywhere on the VAMC grounds — armed officers and psychiatric and medical personnel are
called to respond to psychiatric emergencies, and provide the troubled person with emergency
consultations and treatment. (4.100-4.107; Stip. Fact ¶ 87). Uniformed and armed VA Police are
always available and have the authority to arrest both psychiatric and “traditional” offenders.
(Stip. Fact ¶ 88).
Significantly, it was apparent from their trial testimony that Dr. Ray and Dr. Chambers
did not fully understand when they could call a “Code Green” and involuntarily detain a patient.
(4.103-4.107). Rather, all the VA treating professionals shared the tragically mistaken
understanding that unless a patient was raving or manifestly irrational, they had no legal authority
to detain him and have him evaluated. (Dep. Des. p. 59; 3.85; 3.117, 3.179; 3.221; 4.42-4.43;
4.97, 4.103-4.107). Remarkably, it never occurred to the Doctors that they could simply call the
police to arrest Mr. DeJesus for attacking Mr. Queen with a knife. (4.107). Ultimately, the
Doctors’ ignorance of proper procedures, combined with Ms. Outzs-Cleveland’s failure to
communicate her grave concerns to the Doctors, ensured that no one could offer proper or
effective advice to Ms. Outzs-Cleveland.
Finally, because the VA had misled LZ-II respecting Mr. DeJesus’s disturbed state, LZ-II
staff did not take measures that might have revealed Mr. DeJesus’s emotional instability and
dangerousness. For instance, LZ-II had the authority to search every resident’s room at any time.
(2.63-2.64, 2.66, 2.67). Had LZ-II searched Mr. DeJesus’s room, it would have discovered that
upon being told of his expulsion, Mr. DeJesus shredded his clothing, thus evincing great
emotional instability and upset. (2.63-2.64, 2.66, 2.67; 4.144). Even more important, a search of
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Mr. DeJesus’s room on March 22nd would have revealed that he had purchased a gun on March
20th. (G-22). Because the VA had misled LZ-II into accepting that knife incident was an
isolated act of violence — and not compelling evidence of Mr. DeJesus’s mental deterioration —
LZ-II did not conduct the search. (2.67).
K. The DeJesus Family’s Understanding of Mr. DeJesus’s Condition
The VA never shared with Mrs. DeJesus any of its diagnoses respecting Mr. DeJesus’s
violent, disturbed nature, or the VA’s concerns respecting the likelihood that Mr. DeJesus would
commit an act of domestic violence. (3.198). On the contrary, the only communication
concerning Mr. DeJesus’s condition that Mrs. DeJesus received from the VA was Ms. Outzs-
Cleveland’s November 18, 1998 letter to the Delaware County Court, stating incorrectly that Mr.
DeJesus had learned to manage his anger. (P-8).
Although Mrs. DeJesus and her children well understood that Mr. DeJesus could be
physically abusive, they never thought he would seriously harm them. (2.10). Mrs. DeJesus and
her children were very close to her brother Al Viti – – then employed as a United States Marshal
– – and Lynn Viti – – then employed a United States Treasury Agent. Pursuant to their official
duties, the Vitis carried firearms at all times. (1.138-1.140). The Vitis lived nearby and saw
Mrs. DeJesus and her children constantly. (1.38-1.40). Indeed, the Vitis had dinner at Mrs.
DeJesus’s home on the night of March 23, 1999. (1.169). They were aware that Mr. DeJesus
had visited Mrs. DeJesus on the evening of March 22nd. (1.170-1.171). They did not remain at
the DeJesus home on March 23rd because they did not believe that Mr. DeJesus would seriously
harm his family. (2.10). If Mrs. DeJesus had such a fear, she would have asked the Vitis to help
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protect her and her children. (1.67-1.68). The Vitis were quite prepared to offer such protection.
(2.12). Mrs. DeJesus never asked for their help because neither she nor theVitis believed that
Mr. DeJesus would seriously harm his family. (2.12).
L. Mr. DeJesus’s Explosive Reaction to the VA’s Actions
At the time of his expulsion, Mr. DeJesus told Ms. Miller that he knew that he had broken
rules, and expressed embarrassment, remorse, and regret. (2.138). According to the DSM-IV,
such apologetic behavior after an outburst is a customary symptom of Intermittent Explosive
Disorder. (P-13).
After learning of his expulsion, Mr. DeJesus gave away several of his most cherished
possessions. (2.66). He packed some of his clothes and the gun he just purchased in a bag and
shredded his remaining clothes. (2.66). He also stated that he was going to walk to Maine or
New Hampshire. (2.66).
Mr. DeJesus then immediately went to Mrs. DeJesus’s home. When he arrived, Mrs.
DeJesus would speak to him only through the door. Mr. DeJesus told her that he would agree to
the divorce, and that he had left LZ-II to go live with his brother in New York. He asked Mrs.
DeJesus to give him his brother’s phone number and some money. (1.162-163). Mrs. DeJesus
gave him the phone number, but refused to give him money. (1.165-166). During the
conversation, Mr. DeJesus was calm and did not do or say anything that was hostile or
threatening. Following their conversation, Mrs. DeJesus told Mr. DeJesus that he had to leave,
and that if he did not, she was going to call the police because she did not want him lingering
outside her home. (1.166). Mr. DeJesus was reluctant to leave, and Mrs. DeJesus called the
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police. (1.166). Mr. DeJesus left before they arrived. (1.166).
When the police arrived, Mrs. DeJesus told them about the expired Protection Order and
reiterated that she did not want Mr. DeJesus loitering outside her home. She also told the police
that her son was going to be home alone the next day, and that she was concerned that if her
husband visited, the two would get into a fight. (1.167-168).
The next evening — March 23rd — Mrs. DeJesus, her children, Aaron and Michael Faulk,
and the Vitis had dinner together in Mrs. DeJesus’s apartment. (1.169). After dinner, Al and
Lynn Viti left. (1.169). A short time later, the police came to Mrs. DeJesus’s door and told her
that they had found Mr. DeJesus’s bag with his insulin, needles, and clothes at a nearby train
stop. (1.70). Mrs. DeJesus told them that she had not heard from him that day, and that he had
told her that he was going to his brother’s home. (1.170). Mrs. DeJesus then spoke with Lynn
Viti on the telephone and told her that the police had found Mr. DeJesus’s bag. Because she saw
no need for protection, she did not ask Mrs.Viti to come over, nor did she ask if she could go to
the Vitis’ home. (1.171).
Shortly after the police left, Mr. DeJesus entered the apartment through the kitchen door.
(1.171). Carrying a gun, he ran past Mrs. DeJesus and immediately shot and killed Michael
Faulk. (1.171-172). Mrs. DeJesus ran from the apartment to get help. She went to her
neighbor’s abutting apartment which was few feet away. (1.172). As she ran from her
apartment, she heard additional gunshots and knew that Mr. DeJesus was shooting her children.
(1.173, 1.218; P-50 at p.81). Mrs. DeJesus entered the abutting apartment and told her neighbor
“that the kids were shot, [and that she] needed the cops.” (1.173). Her neighbor immediately
called the police. (1.173).
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As Mrs. DeJesus ran for help, Mr. DeJesus shot and killed his children and the Faulk
children. (1.174). He then turned the gun on himself and committed suicide. (1.174). When the
police arrived, Mrs. DeJesus tried to enter her apartment, but the police pulled her away and
would not tell her if the children were alive. (1.174). Mrs. Faulk walked down the stairs from
her apartment after Mrs. DeJesus called to tell her that “Michael had been shot.” (3.7). Both
Mrs. DeJesus and Ms. Faulk waited together, and soon learned that Mr. DeJesus had killed their
children and then committed suicide. (1.174).
The next day, upon hearing of a murder-suicide in Media, and even before learning who
was involved, the VA and LZ-II staffs immediately feared that Mr. DeJesus may have committed
the crimes. (P-38(7)). Only then did they consult — for the first time — Mr. DeJesus’s
psychological and medical treatment records. (P-38 (7)).
At trial, Mrs. DeJesus described in detail how she heard her husband shoot and kill her
children. (1.170-1.174). The grief and horror she has suffered were painfully obvious. Hearing
the murder of her children has caused Mrs. DeJesus to suffer stress, anxiety, depression, and
post-traumatic stress disorder. (P-88; P-89).
M. Mr. DeJesus’s Condition at the Time of His Expulsion from LZ-II
On March 22, 1999, Alejandro DeJesus, Sr. was severely depressed and suffering from
Intermittent Explosive Disorder. (P-92; 122-1.23, 1.25-1.26 1.34, 1.46-1.47). The combination
of the divorce and custody proceedings had caused his condition to deteriorate so that he was not
capable of controlling his violent urges, as he demonstrated when he attacked Mr. Queen. (1.25-
1.26, 1.46). His expulsion from LZ-II caused a further deterioration of his profoundly disturbed
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emotional state, making him far more likely to commit a violent act. (P-92; 1.25-1.26; 1.120-
1.103). The VA’s own medical records, combined with Mr. DeJesus’s behavior as known by the
VA on March 22nd, clearly showed that it Mr. DeJesus’s expulsion would very likely cause him
to commit a violent act against his family, himself, or both. (P-2; P-6; P-8; P-22; P-99; G-7; G-9;
Dep. Des. pp. 48, 55-56, 59, 61, 62; Stip. Fact ¶ 8; Stip. Facts ¶ 31; 2.226, 2.102-2.103, 2.42,
2.49; 3.29-3.43, 3.139-3.140, 3.68-3. 71, 3.78, 3. 80-3.81, 3.128, 3.136, 3.153-3.155, 3.167,
3.172-3.173, 3.180-3.181, 3.198, 3.212-3.214, 3.226; 4.32-4.33,4.37, 4.58, 4.73, 4.76, 4.77, 4.81,
4.83-4.87, 4.132-4.139, 4.139, 4.144).
This is not a case where the VA failed properly to diagnose its patient. Collectively, the
VA knew exactly how disturbed and violent Mr. DeJesus was. Had anyone treating Mr. DeJesus
reviewed his records, or had the treating professionals discussed among themselves their
treatment of Mr. DeJesus, the March 23, 1999 killings would not have occurred.
Based on my review of all the evidence, I find that at the time of his expulsion, the VA
should have known – – based on its own records and its own observations of Mr. DeJesus – – that
Mr. DeJesus was a seriously mentally disturbed person who presented an imminent, clear, and
present danger to himself and others. A competent and complete psychiatric evaluation before
Mr. DeJesus actually left the VAMC grounds would have confirmed this. (1.39, 1.46-1.47).
Accordingly, had the VA compelled Mr. DeJesus’s psychiatric examination, he would have been
committed. (1.46-1.47).
N. The VA’s Failure to Understand Mr. DeJesus’s Condition
It is shocking just how much information was not shared by Mr. DeJesus’s Therapists and
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Doctors, and how extensive their failure to examine or investigate Mr. DeJesus’s clinical and
medical history was. Among these failures were: (1) Dr. Moon’s failure to inform Dr. Vinueza
that Mr. DeJesus was taking Tegretol to control his Intermittent Explosive Disorder; (2) Dr.
Vinueza’s failure to review Mr. DeJesus’s treatment records or to ask Dr. Moon, Dr. Glasner, or
even Mr. DeJesus whether Mr. DeJesus was on any psychotropic medication before evaluating
him for depression; (3) Ms. Outzs-Cleveland’s failure to review Mr. DeJesus’s entire clinical and
medical histories while she served as Mr. DeJesus’s Primary Therapist; (4) Ms. Outzs-
Cleveland’s failure to consult with Mr. DeJesus’s Doctors or to review his medical records
before representing to the Delaware County Court that Mr. DeJesus had learned to manage his
anger and was exceptional at interacting with others; (5) Ms. Outzs-Cleveland’s failure to review
Mr. DeJesus’s medical records before preparing his Clinical Referral Report, which she sent to
LZ-II; (6) the failure of Dr. Chambers to record or inform anyone of Mr. Newell’s concern
respecting Mr. DeJesus’s casual description of the killing he committed when he was a security
guard; (7) Ms. Outzs-Cleveland’s preparation of a tragically incorrect and misleading Clinical
Referral Report on which LZ-II relied; (8) the failure of Drs. Moon and Ray — Mr. DeJesus’s
Treating Psychologists — to review his medical history at any time; (9) Ms. Outzs-Cleveland’s
failure after her February 4, 1999 discussion with Mr. DeJesus to determine if he was receiving
treatment to address the emotional instability his divorce was causing; (10) Ms. Outzs-
Cleveland’s failure to inform the VA or LZ-II staffs that she was worried about Mr. DeJesus’s
condition and reaction to the pending divorce and custody proceedings, and that she wanted to
see him “ASAP” for a consultation; (11) Ms. Outzs-Cleveland’s failure on March 22, 1999, to
discuss with the VA and LZ-II staffs her concerns about Mr. DeJesus’s mental state and potential
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for domestic violence; (12) the failures of Dr. Chambers, Dr. Ray, and Mr. Newell, to review Mr.
DeJesus’s records before deciding to expel him from LZ-II; and (13) the VA’s failure to check
Mr. DeJesus’s bank account before expelling him from LZ-II. (1.40-1.45; 3.70-3.711; Stip. Facts
¶ ¶ 26, 27; G-7). Collectively these failures show a systemwide breakdown in communication
and demonstrate that no one at the VA understood just how dangerous and disturbed Mr. DeJesus
was.
CONCLUSIONS OF LAW
A. The VA’s Multiple Breaches of the Standard of Care
The VAMC had an obligation to care for its patient, Alejandro, DeJesus, Sr., in a
competent manner, consistent with medically accepted standards of care. See Graham v. Barolat,
No. 03-2029, 2004 U.S. Dist. LEXIS 23567, at *5-*6 (E.D. Pa. Nov. 17, 2004) (citing Welsh v.
Bulger, 698 A.2d 581, 585 (Pa. 1997)).
Failure to Treat and Communicate Information
The VAMC’s multiple, egregious errors represented major breakdowns in
communication and reporting and a systemwide failure of the VA treating professionals to know
what their colleagues were doing or reporting. (1.42-1.47). As I have found, no one at the VA
knew Mr. DeJesus’s full medical and psychological condition. (1.47). This constituted a gross
deviation from the required standard of care in treating a patient. (1.38-1.45, 1.47).
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The Decision to Discharge Mr. DeJesus
As I have found, on March 22, 1999, Mr. DeJesus was distressed and irrational,
displaying poor control of his violent urges by brandishing a knife in his place of employment.
(1.34). His Primary Therapist was “terrified” that Mr. DeJesus expulsion would trigger an act of
domestic violence. (Dep. Des. p. 64). Further, Mr. DeJesus made comments that his Primary
Therapist believed were potentially suicidal. (1.34). Rather than expel Mr. DeJesus, under the
required standards of care, the VA should have initiated a therapeutic intervention, starting with a
psychiatric evaluation, and then taken whatever other therapeutic measures were necessary.
(1.34). If the VA determined that he was too dangerous to be treated while still a resident at LZII,
then the VA should have taken steps to have Mr. DeJesus committed. (1.34-1.35).
Had the VA professionals shared their information, performed their duties competently,
and read Mr. DeJesus’s treatment file, it would have been manifest that once discharged, Mr.
DeJesus presented a clear and present danger to himself and his family. (1.34-1.35). In expelling
Mr. DeJesus in these circumstances, the VA grossly breached the required standard of care.
(1.34).
Failure to Commit or Detain Mr. DeJesus
Once the VA decided to expel Mr. DeJesus, it again breached the required standard of
care by failing to detain or commit him. (1.34-1.35). First, the VA could have called for
involuntary commitment under Pennsylvania law. See Mental Health Procedures Act, 50 Pa.
Stat. Ann. § 7114. Given Mr. DeJesus’s irrational and dangerous behavior on March 22, 1999,
the VA should have compelled Mr. DeJesus to submit to a a psychiatric evaluation. (1.37).
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Under Pennsylvania law, such an evaluation can be compelled if a person is seriously mentally
disabled, presenting a clear and present danger to himself or others based on an overt act. (1.38).
See Mental Health Procedures Act, 50 Pa. Stat. Ann. §§ 7114, 7301; see also Bodor v. Horsham
Clinic, No. 94-7210, 1995 U.S. Dist. LEXIS 10006, at *4 (E.D. Pa. July 17, 1995) (“[W]henever
a person is severely mentally disabled and in need of immediate treatment, he may be made
subject to involuntary emergency examination and treatment. A person is severely mentally
disabled when, as a result of mental illness . . . he poses a clear and present danger of harm to
others or to himself.”). Here, such compulsion was proper because: (1) Mr. DeJesus suffered
from a mental illness, Intermittent Explosive Disorder; (2) Mr. DeJesus had committed the overt
act threatening Mr. Queen with a knife; (3) Mr. DeJesus’s Primary Therapist was terrified that
Mr. DeJesus would commit an act of violence against his family, as he had in the past; (4) Mr.
DeJesus’s medical records underscored that he was disturbed and dangerous; and (5) as I have
found, the facts the VA knew or should have known made manifest that Mr. DeJesus was an
imminent, clear, and present danger to himself , his family, and others. (1.39). Had the VA
treatment professionals known the law and their patent’s condition, they could have compelled
an evaluation and committed Mr. DeJesus under Section 302.
Second, the VA could have used its own PEAT or Code Green procedures to evaluate and
detain Mr. DeJesus. (4.100;1.38). Under the PEAT or Code Green procedures, a team of armed
officers and psychiatric and medical personnel can be called to respond to psychiatric
emergencies anywhere on the VAMC property if “there is a likelihood of some imminent
dangerous behavior taking place or about to take place.” (4.100). Persons may be committed
and detained if they “present[] a clear and present danger to themselves or others.” (G-37).
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Here, the VA could have compelled Mr. DeJesus’s evaluation on the same grounds that would
have justified compulsion under § 302. In addition, the VA could have compelled his evaluation
simply because he had brandished a knife and threatened Mr. Queen. The VA staff’s failure to
recognize this simple fact as basis for detaining Mr. DeJesus and compelling him to see a
psychiatrist is as inexplicable as it is inexcusable. It is remarkable that neither Dr. Chambers or
Dr. Ray explained this to Ms. Outzs-Cleveland when she was asking for a basis to detain Mr.
DeJesus. That failure is explained by Dr. Chambers’s and Dr. Ray’s ignorance of the VA’s own
detention and evaluation procedures. (3.177; 4.101-4.102). It is also remarkable that Ms Outzs-
Cleveland, the Primary Therapist, did not know these procedures. (1.38). Had the VA known
and followed its own procedures on March 22, 1999, Mr. DeJesus would have been detained.
(1.47).
Third, had the VA professionals performed competently, they would have conducted a
suicide or psychiatric assessment so that they could commit Mr. DeJesus. Once again. I have
found that Mr. DeJesus was an imminent, clear, and present danger to himself or others, and so
presented a “psychiatric emergency,” justifying his commitment. The VA’s expert, Dr. Brooke
Ziteck, pointed to several factors that to “varying degrees . . . may constitute a psychiatric
emergency.” (5.47- 5.50). These factors included: (1) evidence of poor “coping strategies”; (2)
change in family status, e.g. getting divorced; (3) change in a “support group”; (4) a move; (5)
job loss; and (6) changes at work or treatment group. (5.47–5.50). Here, Mr. DeJesus
demonstrated all these factors: (1) for no rational reason, Mr. DeJesus had threatened Mr. Queen
with a knife; (2) Mrs. DeJesus had filed for divorce; (3) once discharged, Mr. DeJesus would
lose his friends and “support group” at LZ-II; (4) he was leaving LZ-II; (5) he was losing his job
Case 2:02-cv-00253-PD Document 99 Filed 07/26/2005 Page 34 of 40

35
at LZ-II; and so (6) would have no work. (5.47-5.50). Additionally, Mr. DeJesus had past
ideations of suicide and had once actually tried to kill himself. (5.45-5.51). Had the VA
competently performed its duties, it would have recognized that Mr. DeJesus was possibly
suicidal and having an imminent psychiatric emergency. (1.47). Accordingly, under its own
procedures, the VA could have detained or committed Mr. DeJesus as a threat to himself or
others. (G-37).
Fourth, the VA could have detained Mr. DeJesus by simply calling the police to arrest
him for attacking Mr. Queen with a knife. See Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir.
1997) (an attack gives rise to probable cause to arrest). It is extraordinary that this possibility
never occurred to any of the VA professionals.
The VA’s failure to appreciate any of the these four possible avenues to detain or commit
Mr. DeJesus constituted gross breaches of the required standards of care. (1.38).
B. Gross Negligence
To recover for the VA’s decision to discharge Mr. DeJesus or for its failure to detain or
involuntarily commit him before he was discharged, Plaintiffs must establish that the VA was
grossly negligent in its decisions regarding Mr. DeJesus. See Mental Health Procedures Act, 50
Pa. Stat. Ann. § 7114; see also Bloom v. Dubois Regional Medical Ctr., 597 A.2d 671, 677 n. 6,
679 (Pa. Super. Ct. 1991); Doby v. Decrescenzo, Civ. No. 94-3991, 1996 U.S. Dist. LEXIS
13175, *70-*71 (E.D. Pa. 1996). See generally 28 U.S.C. § 1346(b)(1).
Under Pennsylvania law, gross negligence is “a form of negligence where the facts
support substantially more than ordinary carelessness, inadvertence, laxity, or indifference. The
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36
behavior of the defendant must be flagrant, grossly deviating from the ordinary standard of care.”
Bloom, 597 A.2d at 679; see also Albright v. Abington Memorial Hospital, 696 A.2d 1159
(1997); Doby, 1996 U.S. Dist. LEXIS 13175 at *70-*71. In determining whether a treatment
facility has committed an act of gross negligence, an important factor is whether the patient under
its supervision showed a tendency to be violent or dangerous to himself or others. See Albright,
696 A.2d at 1166. Pennsylvania law clearly provides that if a treatment facility commits gross
negligence in its decision to discharge or not to evaluate, treat, or commit a patient, then the
facility is liable for any harm it substantially caused to any foreseeable victims. See 50 P.S. §
7114(a); see also Sherk v. County of Dauphin, 614 A.2d 226, 232 (Pa. 1992); see also Goryeb v.
Commonwealth, Dep’t of Public Welfare, 525 Pa. 70, 78 (Pa. 1990).
Here, the VA grossly breached the required standard of care by: (1) failing to treat Mr.
DeJesus properly and communicate information; (2) discharging Mr. DeJesus without first
evaluating him; and (3) failing to detain or commit Mr. DeJesus. These failures and breaches
went substantially beyond ordinary laxity or indifference. Rather, they were flagrant, and grossly
deviated from the ordinary standard of care. See Bloom, 597 A.2d at 679; see also Albright v.
Abington Memorial Hospital, 696 A.2d 1159 (1997).
The VA’s tragic decision to expel Mr. DeJesus “[w]ithout a doubt . . .[took] someone
who [was] already in crisis and . . .compound[ed] that crisis many fold because . . . now that [the
VA was] throwing him out of the sanctuary where he [had] been for over a year.” (1.140). Thus,
the VAMC’s multiple breaches and its insistence that Mr. DeJesus be discharged without an
evaluation, detainment, or involuntary commitment substantially caused the death of Alejandro
DeJesus, Jr., Felicia DeJesus, Mark Faulk, and Aaron Faulk. See Sherk v. County of Dauphin,
Case 2:02-cv-00253-PD Document 99 Filed 07/26/2005 Page 36 of 40

37
614 A.2d 226, 232 (Pa. 1992) (causation established when hospital “prematurely” discharged
mental patient who shot another some six weeks after discharge); see also Goryeb v.
Commonwealth, Dep’t of Public Welfare, 525 Pa. 70, 78 (Pa. 1990) (causation established when
hospital improperly discharged a mutual patient who shot three people a week after his
discharge); Ford v. Jeffries, 379 A.2d 111, 115 (1977).
Had the VA competently performed its duties to review and share information and to
understand the law, it would have discovered that Mr. DeJesus: (1) was a severely troubled
individual with Intermittent Explosive Disorder, who needed psychotropic medication (Tegretol)
to control even his day-to-day aggression; (2) had a history of domestic violence, which he
connected to homelessness and frustration; (3) was losing his family — the most important thing
in his life; (4) had recently purchased a gun; (5) had experience using guns; (6) was showing
clear signs of “regression” and suicidal ideation; (7) had tried to kill himself once before; and (8)
presented a plain threat that he would violently harm his family or himself. (Dep. Des. p. 64).
Given Dr. Moon’s observation that past behavior is that the best predictor of violence committed
by patients with Intermittent Explosive Disorder, the VA should have realized that by
discharging Mr. DeJesus, it was “triggering” his rage disorder, and that he would again attack his
family or himself. The VA’s decision to expel Mr. DeJesus from LZ-II “triggered” this episode
of Mr. DeJesus’s rage disorder, and therefore directly and substantially caused the children’s
murders. See Sherk, 614 A.2d at 232.
It apparent from reviewing Mr. DeJesus’s treatment records and history (something no
one at the VA ever did) that once the VA expelled him, Mrs. DeJesus and anyone in her home
were in foreseeable danger. This is exactly what Ms. Outzs-Cleveland foresaw on March 22,
Case 2:02-cv-00253-PD Document 99 Filed 07/26/2005 Page 37 of 40

38
1999, and what the VA staff feared on March 24th — before actually learning that Mr. DeJesus
had committed the murders. (3.40; Dep. Des. p. 65; P-38(7)). See Sherk v. County of
Dauphin,,614 A.2d 226 (1992); see also Goryeb v. Commonwealth Department of Public
Welfare, 575 A.2d 545 (1990); Ford v. Jeffries, 379 A.2d 1111 (1977).
The VA argues that Mrs. DeJesus’s own actions — not locking the door and not leaving
her apartment altogether — were superseding causes, relieving them of liability. See Vattimo v.
Lower Bucks Hospital, Inc., 465 A.2d 1231, 1237 n.4 (1983). A third-party’s actions do not
constitute a superseding cause, however, unless “the actor at the time of [her] negligent conduct
realized or should have realized the likelihood that such a situation might be created, and that a
third person might avail himself of the opportunity to commit such a tort or crime.” See Ford,
379 A.2d at 115; see also M.B. v. Women’s Christian Alliance, Civ. No. 00-5223, 2003 U.S.
Dist. LEXIS 10105, *16-*17 (ED. Pa. June 16, 2003). As I have found, before the shooting,
Mrs. DeJesus did not realize, nor should she have reasonably realized, that Mr. DeJesus was
capable of homicidal acts against her or her children. In fact, relying on Ms. Outzs-Cleveland’s
November 18, 1998 letter to the Delaware County Court, Mrs. DeJesus believed that her husband
was less likely to abuse her and her family. Nothing Mrs. DeJesus did was a substantial factor in
bringing about the deaths of the four children. See Ford v. Jeffries, 379 A.2d 111 (1977).
Accordingly, I conclude that the VA was grossly negligent in discharging Mr. DeJesus
and in not evaluating, detaining, or committing Mr. DeJesus, and that each of these acts of gross
negligence substantially caused the deaths of Alejandro DeJesus, Jr., Felicia DeJesus, Michael
Faulk, and Aaron Faulk. See Bloom, 597 A.2d at 677 n. 6, 679.
Case 2:02-cv-00253-PD Document 99 Filed 07/26/2005 Page 38 of 40

39
C. Negligent Infliction of Emotional Distress
To recover for negligent infliction of emotional distress, a third-party bystander must
demonstrate that she: (1) was located near the scene of the accident; (2) suffered “a direct
emotional impact . . . from the sensory and contemporaneous observance of the accident, as
contrasted with learning of the accident from others after its occurrence”; and (3) was closely
related to the injured party. See Edmonson v. Bug Stop, Inc., Civ. No. 00-2379, 2001 U.S. Dist.
LEXIS 15865, at * 3-* 4 (E.D. Pa. 2001) (emphasis added), citing Love v. Cramer, 606 A.2d
1175 (Pa. Super. 1992); see also Sinn v. Burd, 404 A.2d 672 (Pa. 1979); Krysmalski v.
Tarasovich, 622 A.2d 298 (Pa. Super. 1993).
Mrs. DeJesus has made out these elements. She was either in her apartment or fleeing to
the apartment a few feet away when she saw her husband shoot Michael Faulk and heard her
husband shoot her children and Aaron Faulk. (1.170-1.174). Thus, she was “near” the
“accident.” Her children – – Alejandro, Jr. and Felicia — were obviously “closely related” to her.
Hearing her husband shoot her children and Aaron Faulk has caused her to suffer stress, anxiety,
depression, and post-traumatic stress disorder. (P-88; P-89). Under Pennsylvania law, these
conditions constitute the requisite physical manifestations of “direct emotional impact.” See
Edmonson, 2001 U.S. Dist. LEXIS 15865, at *6 (anxiety, depression;, and post-traumatic stress
disorder constitute physical manifestations). Finally, under Pennsylvania law,
aural perception (hearing the impact) when considered together
with prior and subsequent visual observance . . .may produce a full,
direct, and immediate awareness of the nature and import of the
negligent conduct which may foresseably result in emotional injury.
Neff v. Lasso, 555 A.2d 1304, 1313-14 (Pa. Super. 1989). Mrs. DeJesus saw her husband shoot
Michael Faulk and heard her husband shoot her children. Under Pennsylvania law, she has
Case 2:02-cv-00253-PD Document 99 Filed 07/26/2005 Page 39 of 40

40
proven the “sensory and contemporaneous observance” element of negligent infliction of
emotional distress.
In these circumstances, Mrs. DeJesus has made out that the VA, in discharging Mr.
DeJesus or in failing to treat, detain, or commit him, committed gross negligence, and that this
gross negligence substantially caused her to suffer profound emotional distress. See Sinn v.
Burd, 404 A.2d 672 (Pa. 1979); see also Krysmalski v. Tarasovich, 622 A.2d 298 (Pa. Super.
1993).
BY THE COURT:
___________________________
Paul S. Diamond, J.
Case 2:02-cv-00253-PD Document 99 Filed 07/26/2005 Page 40 of 40

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The information on this web site is designed to encourage a discussion about Veterans Administration medical malpractice, malpractice claims and procedures. It is not intended to be legal advice. Legal advice can only be obtained from an attorney. If you have a medical malpractice claim against the Veterans Administration, you should consult with an attorney who is familiar with handling medical malpractice claims against the Veterans Administration and the Federal Tort Claims Act.

This web site is designed to provide information on the medical malpractice problem at the Veterans Administration hospital. Sometimes Veterans Administration hospital was referred to as Department of veterans affairs hospital, or VA Hospital. This web site has information about medical malpractice committed by doctors working for the Veterans Administration, which is sometimes referred to as the Department of veterans affairs, or sometimes simply the VA. This web site also has information about medical malpractice committed by nurses working for the Veterans Administration, which is sometimes referred to as the Department of Veterans Affairs or sometimes simply the VA. In addition, this web site has information about medical malpractice committed by physicians assistance working for the Veterans Administration, which is sometimes referred to as the Department of Veterans Affairs or sometimes simply the VA. http://www.BurlingtonCountyLawyer.com http://www.vamalpractice.com

The information which is used on this web site, is collected from information available on the World Wide Web. It contains information about Veterans Administration medical malpractice, the manner in which the Veterans Administration defends medical malpractice cases brought by veterans. It includes articles on Veterans Administration medical malpractice. These articles on Veterans Administration medical malpractice include references to medical malpractice by Veterans Administration nurses, Veterans Administration doctors, Veterans Administration physicians and Veterans Administration surgeons. Some of this information, is provided by veterans who have been harmed by medical malpractice at Veterans Administration hospitals, or by Veterans Administration doctors, Veterans Administration physicians, veterans administration surgeons, Veterans Administration nurses or other Veterans Administration medical providers. Some of information that is provided on this web site, has been provided by veterans advocate groups, that are concerned with the problem of Veterans Administration medical malpractice, because it affects the veterans who served our country, when the veterans are the subject of medical malpractice, by a Veterans Administration doctor, VA doctor, Veterans Administration surgeons, VA surgeon, Veterans Administration physician, VA physician, veterans administrations nurse, VA nurse, Veterans Administration physicians assistant, VA physician’s assistant, or other Veterans Administration medical provider. http://www.VAmalpractice.com http://www.BurlingtonCountyLawyer.com

In the event that you have a Veterans Administration medical malpractice claim, you should immediately seek representation from an attorney who is experienced with litigating medical malpractice cases against the Veterans Administration or the VA.

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The information on this web site is designed to encourage a discussion about Veterans Administration medical malpractice, malpractice claims and procedures. It is not intended to be legal advice. Legal advice can only be obtained from an attorney. If you have a medical malpractice claim against the Veterans Administration, you should consult with an attorney who is familiar with handling medical malpractice claims against the Veterans Administration and the Federal Tort Claims Act.

In the event that you have a Veterans Administration medical malpractice claim, you should immediately seek representation from an attorney who is experienced with litigating medical malpractice cases against the Veterans Administration or the VA.

This site contains information on va malpractice, veteran administration medical malpractice and veteran administration medical malpractice attorneys and lawyers. Web site for information on va malpractice claim and va medical malpractice claims as well as veterans administration patient safety issues.Information on medical malpractice at the VA, Veterans Administration medical errors, legal representation for medical errors

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The information on this web site is designed to encourage a discussion about Veterans Administration medical malpractice, malpractice claims and procedures. It is not intended to be legal advice. Legal advice can only be obtained from an attorney. If you have a medical malpractice claim against the Veterans Administration, you should consult with an attorney who is familiar with handling medical malpractice claims against the Veterans Administration and the Federal Tort Claims Act.

In the event that you have a Veterans Administration medical malpractice claim, you should immediately seek representation from an attorney who is experienced with litigating medical malpractice cases against the Veterans Administration or the VA.

This site contains information on va malpractice, veteran administration medical malpractice and veteran administration medical malpractice attorneys and lawyers. Web site for information on va malpractice claim and va medical malpractice claims as well as veterans administration patient safety issues.Information on medical malpractice at the VA, Veterans Administration medical errors, legal representation for medical errors

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If you have questions about this web site, or have information or links that you would like to see placed on this site please send an email to:

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information on this web site is designed to encourage a discussion about Veterans Administration medical malpractice, malpractice claims and procedures. It is not intended to be legal advice. Legal advice can only be obtained from an attorney. If you have a medical malpractice claim against the Veterans Administration, you should consult with an attorney who is familiar with handling medical malpractice claims against the Veterans Administration and the Federal Tort Claims Act.

In the event that you have a Veterans Administration medical malpractice claim, you should immediately seek representation from an attorney who is experienced with litigating medical malpractice cases against the Veterans Administration or the VA.

This site contains information on va malpractice, veteran administration medical malpractice and veteran administration medical malpractice attorneys and lawyers. Web site for information on va malpractice claim and va medical malpractice claims as well as veterans administration patient safety issues.Information on medical malpractice at the VA, Veterans Administration medical errors, legal representation for medical errors

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In the event that you have a Veterans Administration medical malpractice claim, you should immediately seek representation from an attorney who is experienced with litigating medical malpractice cases against the Veterans Administration or the VA.

This site contains information on va malpractice, veteran administration medical malpractice and veteran administration medical malpractice attorneys and lawyers. Web site for information on va malpractice claim and va medical malpractice claims as well as veterans administration patient safety issues. Information on medical malpractice at the VA, Veterans Administration medical errors, legal representation for medical errors

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VA malpractice information

editor@VA Malpractice.Info

The information on this web site is designed to encourage a discussion about Veterans Administration medical malpractice, medical malpractice claims and medical malpractice procedures. It is not intended to be legal advice. Legal advice can only be obtained from an attorney. If you have a medical malpractice claim against the Veterans Administration, you should consult with an attorney who is familiar with handling medical malpractice claims against the Veterans Administration and the Federal Tort Claims Act.

This web site is designed to provide information on the medical malpractice problem at the Veterans Administration hospital. Sometimes Veterans Administration hospital was referred to as Department of veterans affairs hospital, or VA Hospital. This web site has information about medical malpractice committed by doctors working for the Veterans Administration, which is sometimes referred to as the Department of veterans affairs, or sometimes simply the VA. This web site also has information about medical malpractice committed by nurses working for the Veterans Administration, which is sometimes referred to as the Department of Veterans Affairs or sometimes simply the VA. In addition, this web site has information about medical malpractice committed by physicians assistance working for the Veterans Administration, which is sometimes referred to as the Department of Veterans Affairs or sometimes simply the VA.www.vamalpractice.com

The information which is used on this web site, is collected from information available on the World Wide Web. It contains information about Veterans Administration medical malpractice, the manner in which the Veterans Administration defends medical malpractice cases brought by veterans. It includes articles on Veterans Administration medical malpractice. These articles on Veterans Administration medical malpractice include references to medical malpractice by Veterans Administration nurses, Veterans Administration doctors, Veterans Administration physicians and Veterans Administration surgeons. Some of this information, is provided by veterans who have been harmed by medical malpractice at Veterans Administration hospitals, or by Veterans Administration doctors, Veterans Administration physicians, veterans administration surgeons, Veterans Administration nurses or other Veterans Administration medical providers. Some of information that is provided on this web site, has been provided by veterans advocate groups, that are concerned with the problem of Veterans Administration medical malpractice, because it affects the veterans who served our country, when the veterans are the subject of medical malpractice, by a Veterans Administration doctor, VA doctor, Veterans Administration surgeons, VA surgeon, Veterans Administration physician, VA physician, veterans administrations nurse, VA nurse, Veterans Administration physicians assistant, VA physician's assistant, or other Veterans Administration medical provider….

In the event that you have a Veterans Administration medical malpractice claim, you should immediately seek representation from an attorney who is experienced with litigating medical malpractice cases against the Veterans Administration or the VA.

va malpractice, veteran administration medical malpractice, veteran administration medical malpractice attorney. Web site for information on va malpractice claim and va medical malpractice claim. Information on medical malpractice at the VA, Veterans Administration

1 Comment »

  1. Justice being served in the right dose. I hope more cases of malpractice are brought to book to spare those that practice ethically.

    Comment by Dr. Lawrence Kindo — August 10, 2010 @ 7:55 am


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