United States District Court, E.D. Washington
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Stanley A. Bastian United States District Judge
trial was held on April 8-12, 2019, in Spokane, Washington.
Plaintiff was represented J. Gregory Casey and Marshall W.
Casey. The United States was represented by Rudolf J.
Vershoor, Timothy M. Durkin, and Joseph P. Derrig. At the
conclusion of the trial, the Court orally ruled from the
bench in favor of Defendant. The following are the Findings
of Fact and Conclusions of Law, pursuant to Fed.R.Civ.P.
Plaintiff, Patrick Botherton, served the United States with
honor over twenty-five years ago. While serving in the Navy,
he fractured his right ankle, which required an ankle fusion.
The ankle did not properly heal and continued to give
Plaintiff problems. In 2013, Plaintiff sought treatment for
the malunion right ankle fusion. Surgery was performed in
January 2014 by Dr. Craig Burrow, a non-VA surgeon. Dr.
Burrow performed the surgery, complications followed, and
ultimately Plaintiff's lower left leg was amputated.
filed this action against Defendant, the United States of
America, on March 15, 2017, asserting negligence on the part
of employees of the Mann-Grandstaff VA Medical Center. After
summary judgment was granted on his failure to obtain
informed consent claim, ECF No. 54, the remaining claim was
whether his primary care physician at the VA, Dr. Daniel Sim,
breached his duty of care in failing to act to prevent the
corrective ankle surgery.
facts are largely undisputed and are set forth in Judge
Quackenbush's Order Re: Defendant's Motion for
Summary Judgment, ECF No. 54, and the Court will not revisit
those facts. The facts as summarized by Judge Quackenbush in
his Order addressing Defendant's Motion for Summary
Judgment, ECF No. 54, are adopted by this Court and
incorporated herein. What was at issue at trial was defining
the standard of care that was expected of Dr. Sims, whether
it was breached and causation.
of Fact and Conclusions of Law
Washington law, a negligence claim requires a showing of
duty, breach, causation, and damages. Ranger Ins. Co. v.
Pierce Cnty., 164 Wash.2d 545, 552 (2008). “The
concept of duty is a reflection of all those considerations
of public policy which lead the law to conclude that a
plaintiff's interests are entitled to legal protection
against the defendant's conduct.” Volk v.
DeMeerleer, 187 Wash.2d 241, 266 (2016) (quotation
omitted). “The existence of a legal duty is a question
of law and ‘depends on mixed considerations of logic,
common sense, justice, policy, and precedent.' ”
Christensen v. Royal Sch. Dist., 156 Wash.2d 62, 67
(2005) (quoting Snyder v. Med. Serv. Corp. of Eastern
Washington, 145 Wash.2d 233, 243 (2001)).
medical malpractice case, a plaintiff must show “[t]he
health care provider failed to exercise that degree of care,
skill, and learning expected of a reasonably prudent health
care provider at that time in the profession or class to
which he or she belongs, in the state of Washington, acting
in the same or similar circumstances.” RCW 7.70.040(1);
Reyes v. Yakima Health Dist., 191 Wash.2d 79, 86
(2018). The applicable standard of care in medical
malpractice actions must generally be established through
expert testimony. Id.
argues a reasonably prudent primary care physician, such as
Dr. Sim, would have done one or more of the following: (1)
told Plaintiff not to go forward with the surgery because his
diabetic condition was not controlled, which created an
unreasonable risk of infection and other complications; (2)
contacted Dr. Barrow with the same warning; and/or (3)
de-authorized the VA's referral to Dr. Barrow. Plaintiff
argues that in failing to do so, Dr. Sim violated the
standard of care required of primary care physicians. It is
undisputed that Dr. Sim did not take any of these actions.
failing to perform these tasks, Dr. Sim did not violate the
degree of care, skill, or learning expected of a reasonably
prudent primary care physician. Dr. Sim was not trained,
either in the Philippines or the United States during his
medical training, that this was the standard of care that was
required. He testified that he consults with a surgeon only
if the surgeon requests such consultation.
Barrow testified he does not practice in this way, he was not
trained in this way, and he would consult with a primary care
physician only in unusual circumstances. Dr. Barrow is an
experienced orthopedic surgeon, who has been trained to treat
and operate on people who have diabetes. He performs 40-50
operations per month and has done so for over 15 years. Fifty
percent of his patients have diabetes, and he is trained,
experienced, and competent to monitor their diabetic
condition and decide when surgery has a green or red light.
Notably, Dr. Barrow obtained lab results before and after
surgery that suggested Plaintiff's diabetic condition was
controlled sufficiently. Dr. Barrow never requested a consult
with Dr. Sim and Dr. Sim was not the physician who referred
Plaintiff to Dr. Barrow. This was done by Dr. Morton, who was
a podiatrist with the VA.
Barrow also testified that in his opinion, the blood glucose
level is a more important factor for surgeons to consider,
rather than the A1C, which is the numbers that Dr. Sim had
obtained. Plaintiff's blood glucose level was closely
monitored by the hospital where the surgery was performed
both before and after the surgery. The level stayed between
the 200-300 level, but then spiked dramatically higher after
Plaintiff left the hospital.
Oakley, one of the United States' experts, testified he
was not trained to perform the acts suggested by Plaintiff,
does not practice in this manner, and does not recognize this
standard of care. Dr. Ledgerwood, another of the United
States' experts, also testified that he practices in the
same manner as described above by Dr. ...