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Henahan v. United States

United States District Court, W.D. Virginia, Roanoke Division

August 30, 2016



          Hon. Glen E. Conrad Chief United States District Judge.

         Plaintiff William A. Henahan filed this action against the United States of America (the "government") pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2401(b), 2671-2680, seeking to recover for injuries he sustained during a surgery performed at the Veterans Affairs Medical Center in Durham, North Carolina ("Durham VAMC"). The case is presently before the court on various motions from the government. For the following reasons, the government's motion for partial dismissal as to claims against the health care providers at the Veterans Affairs Medical Center in Salem, Virginia ("Salem VAMC") will be granted, its motion to dismiss allegations that North Carolina laws are unconstitutional will be granted in part and denied in part, and its motion seeking a court order that North Carolina substantive law applies will be granted.

         Factual Background

         The following facts, taken from plaintiffs complaint, are accepted as true for purposes of the motion to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         William A. Henahan is a 65-year-old Vietnam War veteran. On or about July 26, 2011, Henahan received an elevated prostate-specific antigen ("PSA") test at the Salem VAMC. On or about July 29, 2011, a prostate biopsy confirmed that Henahan had "prostate cancer Gleason grade 6-9." Compl. ¶ 19. In August of 2011, he was also diagnosed with adenocarcinoma of the prostate. Henahan received another PSA test in October of 2011, which again revealed abnormal results. Chin-Ti Lin, M.D., a urologist at the Salem VAMC, was aware of Henahan's elevated PSA tests but did not offer radiohormonal therapy or cryotherapy for his adenocarcinoma. The Salem VAMC referred Henahan to the Durham VAMC for surgery, and on January 5, 2012, Dr. Erin McNamara, a resident surgeon, saw Henahan at the Durham VAMC.

         The complaint alleges that Henahan has an extensive medical history of "diabetes mellitus type II with neuropathy, hypertension, respiratory distress, hepatitis C, kidney disease, anxiety disorder[], post-traumatic stress disorder, and mood disorder, all of which mitigated against a significant surgery." Id. ¶ 29. Henahan did not receive any treatment for his prostate cancer between August of 2011 and February of 2012.

         On February 8, 2012, an MRI performed on Henahan revealed "no evidence of extracapsular extension of the disease and no significant lymphadenopathy." Id. ¶ 33. Dr. Stephen Freedland at the Durham VAMC evaluated Henahan and recommended that Henahan proceed with a radical prostatectomy. Dr. Freedland was undertaking a clinical study on radical prostatectomy at the time.

         On February 15, 2012, Dr. Freedland and Dr. McNamara, a resident surgeon, performed a radical prostatectomy with "extended bilateral pelvic lymphadenectomy" on Henahan at the Durham VAMC. Id. ¶ 35. During the surgery, Dr. Freedland and Dr. McNamara placed a surgical clip across Henahan's right ureter, and Henahan experienced extensive blood loss. The next day, Henahan was "profoundly hypoxic with fluid overload, liver dysfunction, renal failure, cardiopulmonary insufficiency!;, ] and a distended abdomen." Id. ¶ 38. He subsequently required a blood transfusion.

         Over the course of several days, Henahan's urine output declined and his serum creatinine levels increased, indicating a urine leak and kidney complications. A renal ultrasound also revealed hydonephrosis. On February 22, 2012, medical providers at the Durham VAMC removed Henahan's drain, placed a stitch at the drain site, and discharged him.

         Over the course of several months, Henahan continued to suffer from abdominal pain and complications. On June 12, 2012, an antegrade urogram revealed that Henahan's right ureter was obstructed. On July 23, 2012, he underwent a right ureteral reconstruction with "ileal ureter, cystoscopy with dilation of the bladder neck contracture, and appendectomy." Id. ¶ 63. Henahan remained hospitalized for a week. After his discharge, he had to return to the emergency department on multiple occasions because of catheter difficulties and infections. On August 7, 2012, Henahan was also diagnosed with "vancomycin-resistant enterococci." Id. ¶ 68.

         In October of 2012, a cystoscopy performed on Henahan revealed bladder neck closure with a "very dense and hard" contracture. Id. ¶ 82. On October 29, 2012, Henahan underwent a "transurethral resection" of his bladder neck. Id. ¶ 84. He continues to be catheter-dependent and suffers from pain, infection, incontinence, mental distress, and associated illnesses. He also will require future medical treatment for his conditions.

         Procedural History

         On January 11, 2013, Henahan filed an administrative claim, through an executed Standard Form 95, with the Department of Veterans Affairs (the "DVA"). In that claim, Henahan explained that he had undergone a radical prostatectomy at the Durham VAMC. He then alleged that Drs. Freedland and McNamara failed to appropriately perform his surgery. Specifically Henahan claimed that they violated their standard of care by: (1) failing to take proper precautions in his care; (2) placing the surgical clip across his right ureter; and (3) failing to identify the surgical clip's improper location and remove it before closure of the surgical site. In addition, he alleged that the employees at Durham VAMC failed to timely and properly assess, identify, and treat his condition. He sought compensation for his injuries in the amount of $2, 000, 000.00.

         Between April of 2013 and December of 2013, Henahan's counsel and the DVA discussed Henahan's claim and settlement options. These letters provided additional information as to the circumstances surrounding Henahan's surgery and the "investigation, diagnosis, and treatment of his obstruction and urine leak." Ex. 3 to Def s Mot. to Dismiss, Docket No. 4-3. In a letter dated May 20, 2013, Henahan's counsel reiterated that the primary source of Henahan's injuries was the "damage to his ureter during the course of a certain surgical procedure at the Durham facility." Ex. 4 to Def s Mot. to Dismiss, Docket No. 4-4. In a letter dated September 13, 2013, the DVA stated that it completed its investigation into Henahan's administrative claim, in which Henahan alleged that "VA healthcare providers at the Durham [VAMC] negligently placed a clip across his right ureter during his retropubic prostatectomy, " and that "VA healthcare providers negligently failed to timely and properly identify and treat Mr. Henahan's condition." Ex. 5 to Def s Mot. to Dismiss, Docket No. 4-5. In that letter, the DVA proposed a settlement amount and invited Henahan to provide a counter-offer, if he believed that his claim was worth more. The DVA indicated that, to date, Henahan had not provided a theory of the case that warranted a higher settlement amount. On October 24, 2013, Henahan's counsel rejected the DVA's offer. In support of the ...

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