Templin v. US

BENCH JUDGMENT: $59,820 ($58,600 emotional distress, $200 for “last” birthday party, $1,020 for pre-need funeral agreement), VA doctor misdiagnosis of terminal brain cancer, prognosis of imminent death, when correct diagnosis was stroke… Molloy.

Mark Templin arrived at Fort Harrison ER complaining of acute chest pain 1/28/09. He underwent cardiac catheterization with stent placement. In the days until his discharge 2/4 he developed word recall difficulty, memory & speech deficiencies, unsteady gait, and headaches. On 2/4 he had acute right lateral visual field loss. His internist Patrick Morrow requested an ophthalmology consultation. Paul Berner found homonymous hemianopsia consistent with stroke and recommended a CT scan to identify sources of the possible embolus. Morrow acknowledges Templin’s symptoms including trouble with balance, finding words, and vision were consistent with a stroke, that stroke was a working diagnosis after the ophthalmologist consult, and the determination of homonymous hemianopsia further signified a CVA/stroke. A non-contrast CT scan was ordered. Morrow acknowledges that a non-contrast CT is adequate to show brain abnormalities but inadequate to differential the cause. Neuroradiologist Randy Sibbitt’s impression of the CT was: “Probable metastatic tumor to brain. The only other considerations would be cerebritis with abscesses.” He discussed with Morrow a variety of diagnoses including stroke. Morrow left with the clear understanding that the abnormalities could have been from one of many possible etiologies including stroke. Sibbitt’s interpretation of the CT was communicated to Morrow as his impressions and not a definitive diagnosis. Sibbitt discussed the possibility of further testing to narrow possible etiologies. While the Court finds it highly unlikely that Sibbitt and Morrow discussed multiple differential diagnoses, it does not foreclose the possibility that Sibbett’s interpretation of the scan and limited formal documentation of his impressions encouraged Morrow to prematurely reach a definitive diagnosis of metastatic brain cancer. Morrow presented Templin’s case to oncologist Karl Guter and the Tumor Board. Guter believed was based on a definitive study. Morrow presented it as a strong suspicion of metastases to the brain. Guter was under the impression that the scan was contrast-enhanced and therefore did not suggest an MRI. When dictating notes from the meeting he noted that an MRI would help solidify the diagnosis. Morrow did not present the stroke diagnosis at the meeting. After the meeting his working diagnosis was metastatic neoplasm. He testified that he told Templin that his “greatest fear” was metastatic tumors of the brain and that further diagnostics were needed and that he advised an MRI, but there is no indication in Templin’s medical records that Morrow suggested an MRI or further diagnostic workup. Morrow confirms that medical records are intended to memorialize and document care & treatment, including communications with a patient. Given the non-specific nature of his memories of communications with the Templin family, the Court finds his entries in medical records more reliable. Templin and his family understood his communication of the results of the non-contrast CT as a diagnosis of brain cancer. His daughter Donna Patterson asked Morrow how her father would die. He said one of the tumors would grow “like cauliflower” and he would die from a brain bleed. Morrow testified that Templin went home with the understanding that he had a grim prognosis that proceeded “from the point of view of cancer treatment.” Templin said he did not want cancer treatment involving chemo, biopsy, or surgery. Morrow stated in his notes that Templin “understands that his prognosis is grim and that any treatment would be palliative and not curative,” and that he did not want to sacrifice “quality of life for any potential increase in quantity.” His discharge summary states that Templin was not interested in any kind of treatment. He prescribed Decadron and Dilantin, both suggested for brain cancer patients. Decadron is contraindicated for stroke patients. Morrow ordered hospice care.

Templin terminated hospice services 6/26/09. On 7/1 he had another CT scan. Michael Strekall informed him that it showed old infarcts consistent with stroke, not metastatic brain tumor. On hearing this, Templin was amenable to further testing. Another CT showed old infarcts consistent with stroke. An MRI confirmed stroke activity and not metastatic brain cancer. Chief of Staff Faust Alvarez sent a letter to Templin 1/13/10 stating that the MRI and CTs “failed to demonstrate any abnormal enhancement suggestive of tumor process,” but instead “appear to represent previous stroke activity.” He indicates that these statements do not amount to admission of fault or that diagnosis was actually faulty as no investigation of the underlying complaint had taken place. His testimony is not credible. The letter was intended to communicate acceptance of fault for the misdiagnosis. Strekall noted the changed diagnosis in an adverse event disclosure: “No brain cancer existed and the previous diagnosis was discussed to be in error.”

Morrow advised Templin and his family to get his affairs in order since he did not want treatment for the purported cancer. Patterson notified her sister Karen Chilcoat that their father had been diagnosed with terminal brain cancer. Chilcoat joined the family at the family residence. Patterson and Templins were crying. She describes that time as “pretty devastating for my dad to hear that he had terminal brain cancer and had to go home to get his affairs in order.” Patterson and Chilcoat met with Morrow 2/6. He spoke in terms of weeks to months. He completed Chilcoat’s FMLA forms in which he specified that Templin had metastatic brain tumors for which he would need increasing care, up to total care, until his death, and that the illness would probably be less than 6 months. At the family residence after his discharge Mrs. Templin was sitting on the couch crying and Templin just sat in his recliner and cried. He lived in a state of depression for months. After his initial deep depression his outlook improved and he began to cope with the diagnosis. He and his family endured significant mental & emotional distress in preparation for his anticipated death. He testified that he tried not to let his family know, but he cried many times and even thought of shooting himself. He described emotional episodes interrupting his business while he was under the impression that he had metastatic brain cancer. Patterson saw him come to the home with all of his guns, rifles, and ammunition and put them on the bed. She called the family to retrieve them because he said he wanted to take his life to spare the family from the pain & distress associated with his diagnosed terminal illness. He often sat in his chair and did not move much when Chilcoat visited. She said he cried often and slept a lot. She saw that he did not get on with his life for months and remained depressed and suicidal through 4/09. Templins still cry sometimes about his misdiagnosis. He wondered each day whether it would be his last. His wife often greeted him in the morning with a question about whether the day would be his last. He signed a do not resuscitate order which was displayed on the fridge. He had to advise his extended family of his diagnosis and arranged for some of them to visit a final time. The family held a “last birthday” dinner which cost $200. The weekend after he was discharged the family arranged for his funeral and paid $1,020. Chilcoat’s husband made a wooden box for his ashes. Templin sold his truck and gave away many things. Morrow advised him that he could not drive, so he quit working as a driver. Had the abnormalities on the 2/4/09 CT been diagnosed as consistent with stroke, his driving would have been similarly restricted. He continued to worry that the doctors might be wrong again after his diagnosis was changed to stroke. Mrs. Templin was permanently injured in an MVA in 2007 and is disabled and very dependent on him. The family feared that she would wake up after he died during the night. They tried to make sure that Templins were not alone at the home.

It is uncontested that Morrow was within the scope of his employment and for his employer’s benefit as a physician at Ft. Harrison. Thus sovereign immunity for the tort claim is waived under the FTCA. Expert testimony in a medical malpractice case is required unless the conduct is readily ascertainable by a layperson. Willson (Mont. 2011). Even though expert testimony is present here, a layperson could readily ascertain that a doctor abiding by the standard of care should not jump to diagnostic conclusions and communicate imminent death based on incomplete information or leave a patient with a mistaken belief as to his health unsupported by a firm diagnosis or reasonable differential diagnosis. A physician has a duty to exercise ordinary care to assure that when he advises a patient about his condition it comports with the standard for his profession. Webb (Mont. 1997). This requires the doctor to make exam results available to the patient. Id. Morrow acknowledged that the entire clinical picture is integral to decisions about a patient and that it is important to clearly tell a patient to the best of the doctor’s ability the options and provide information for the patient to make an informed decision. He testified that it can be important to tell the patient the differential diagnoses, and the doctor must sometimes explain why further testing is warranted, especially where a diagnosis is uncertain and further testing is needed for a definitive diagnosis.

Plaintiff’s expert internist Thomas Bulger testified that Templin should have been informed of the preliminary nature of the non-contrast CT instead of the firm diagnosis of metastatic brain cancer.

Defendant’s expert ER physician Gregory Moore opined that Morrow provided good care to Templin in that he rapidly addressed his cardiac emergency to a favorable outcome, and that his investigation of his other symptoms was expedient and met the standard. His opinion as to Morrow’s communication to Templin does not support the conclusion that he met the standard. He opines that a doctor should tell a patient about the worst-case scenario and that limitations of diagnostic testing must be presented and all material facts must be disclosed so a patient can make an informed decision, and it is incumbent on a doctor with an unconfirmed diagnostic hypothesis to present its conditional nature along with the need for further diagnostic workup. He interpreted entries in Templin’s record to mean that he left the hospital with the impression that he had brain cancer and refused further treatment because of this.

Based on the testimony of Bulger and Moore, Morrow had a duty to adequately inform Templin of the preliminary nature of impressions based on the non-contrast CT so he could make informed decisions. Morrow breached the duty he owned to Templin by his communication of the diagnosis of terminal metastatic brain cancer to Templin and his family; failure to communicate the preliminary, nonspecific, non-diagnostic nature of the non-contrast CT; his progress notes and discharge summary indicating metastatic cancer with grim prognosis; his order for hospice care; his certification of Chilcoat’s FMLA forms indicating less than 6 months to live; his presentation of the diagnostic imaging produced from the non-contrast CT to Patterson and his statement that the tumors would grow until he died of brain bleed. Other evidence supporting Morrow’s breach includes Strekall’s “institutional disclosure of adverse events” entry in Templin’s records following the 12/09 MRI which indicates that a misdiagnosis was presented to him, and Alvarez’s letter which states that a misdiagnosis was made.

Templin did not act negligently. His refusal of further testing or treatment was based on the limited and erroneous information from Morrow.

It is difficult to put a price tag on the anguish of a man wrongly convinced of impending death. Templin lived 148 days under the mistaken impression that he was dying of metastatic brain cancer. The earlier months were particularly traumatic. He is due $500/day for the initial period of particularly traumatic & severe mental & emotional distress 2/4/09-4/15/09 when the hospice social worker noted the transition to coping — $35,500. He is due $300/day for the later period of severe mental & emotional distress 4/16/09-7/2/09 — $23,100. He is not entitled to compensation for his hospice care, which was paid in whole by Medicare. He is not entitled to lost wages; his driving restriction would have been similar had he been assigned the correct diagnosis of stroke. He is entitled to $200 for the family dinner celebrating his “last” birthday. He is entitled to $1,020 for the pre-need funeral agreement.

Templin v. US, 40 MFR 310, 5/6/13.

Daniel Buckley (Buckley Law Office), Bozeman, for Templin; AUSAs George Darragh & Michael Shin.