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Gadson v. United States

United States District Court, E.D. Virginia, Richmond Division

December 12, 2017




         The plaintiff, Eugene Gadson, underwent a reverse vasectomy at McGuire VA Medical Center. Gadson experienced significant pain after the surgery and had his testicle removed three days later due to a lack of blood flow. Gadson has brought a negligence claim for medical malpractice under the Federal Tort Claims Act, 28 U.S.C. § 2671, and the Court held a bench trial on liability on September 18 and September 20, 2017. The parties submitted post-trial briefs and argued those briefs before the Court on November 2, 2017. Gadson fails to satisfy his burden of proof that his operating doctors violated the standard of care, and his claims fail.


         Gadson had a reverse vasectomy at McGuire VA Medical Center on August 20, 2015. Drs. Adam Klausner and Shaoqing Zhou, both fellowship-trained microsurgeons, performed the surgery. During the surgery, the doctors used a standard-tip monopolar ("bovie") cauterization device at a setting of 30 on the skin and a micro needletip at a setting of 15 on and around the spermatic cord. Medical records indicate that the doctors set the electrocautery settings to a "range" of 30, but no evidence suggests that a range of 30 meant that the doctors used the bovie at 30 the whole time. Further, undisputed testimony by Nurse Kathleen Childress revealed the practice of the doctors in a reverse vasectomy: they use a bovie at a setting of 30 on the skin but at a lower level when dissecting the vas deferens from the spermatic cord. The doctors did not use the bovie to cut tissue; they only used the device to coagulate tissue and stop bleeding.

         For each testicle, the doctors dissected the spermatic cord to locate the two ends of the vas deferens that had been cut and clipped during Gadson's vasectomy. The doctors found that Gadson's vasectomy had occurred in an area called the convoluted vas deferens, a difficult area to see during a reversal procedure. The doctors removed the clips that had been placed on the ends of the vas deferens during the vasectomy. Next, the doctors used an operating microscope to reconnect the vas deferens (called an "anastomosis"). At some point during the procedure, the doctors experienced some kind of hiccup causing concern for blood flow to the testicle, but the doctors visually examined the testicles' color, consistency, and turgor to ensure blood flow just before closing the surgical openings and ending the procedure. The doctors closed the surgery about one hour after they dissected the vas deferens. The doctors did not use a Doppler ultrasound to check for blood flow.

         Following the surgery, Gadson experienced significant pain and discomfort. The hospital records conflict with Gadson and his wife's recollection of the events. Hospital records indicate that Gadson had a pain level of zero out often upon discharge from the hospital the same day as the reverse vasectomy, but Gadson and his wife recall significant pain. In any event, the doctors had given Gadson strong pain medication for the surgery, perhaps accounting for a low pain level at discharge. The day after the surgery, a nurse from the hospital called Gadson, and he reported an eight out of ten pain level, but also said that he felt "fair." Gadson testified at trial that he actually told the nurse that he felt fair considering the fact that he was not dead, but the records do not indicate that response. The follow-up report also indicates that Gadson could eat, did not have nausea or vomiting, had continued swelling, and had no drainage. Gadson called the hospital on the second day after surgery complaining of pain, but the hospital records do not reflect this call and Gadson said that nobody instructed him to take any action based on his complaints. On the third day after surgery, Gadson called the hospital again, complaining of ten out often pain. A nurse told Gadson to go immediately to the nearest hospital. Gadson went to Henrico Doctors' Hospital, where Dr. David Rapp removed Gadson's left testicle after discovering that a lack of blood flow had left it nonviable.


         This Court has jurisdiction over this matter pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1), 2671-80. Venue is proper in the Eastern District of Virginia pursuant to 28 U.S.C. § 1402(b) because the surgery at issue occurred in Richmond, Virginia.

         A. Legal Standard

         In a Federal Tort Claims Act case, the place where the negligent acts occurred provides the substantive law for the claims. Starns v. United States, 923 F.2d 34, 37 (4th Cir. 1991). In Virginia, a medical malpractice plaintiff must prove, by a preponderance of the evidence: "(1) the applicable standard of care, (2) a breach of that standard of care, and (3) that this breach proximately caused plaintiffs injuries." Parker v. United States, 475 F.Supp.2d 594, 598 (E.D. Va.), affd, 251 Fed.Appx. 818 (4th Cir. 2007) (citing Bryan v. Burt, 254 Va. 28, 34, 486 S.E.2d 536, 539-40(1997)).

         Virginia's standard of care requires a doctor to use the "degree of skill and diligence in the diagnosis and treatment of the patient which is employed by a reasonably prudent practitioner in the physician's field of practice or specialty." Bryan, 254 Va. at 34, 486 S.E.2d at 539 (citing Va. Code § 8.01-581.20) (other citation omitted). "A physician is neither an insurer of diagnosis and treatment nor is the physician held to the highest degree of care known to the profession. The mere fact that the physician has failed to effect a cure or that the diagnosis and treatment have been detrimental to the patient's health does not raise a presumption of negligence." Id.

         B. Standard of Care

         This case comes down to a battle of two highly successful, skilled physicians who present two entirely different pictures of what the standard of care in Virginia requires. Gadson's expert, Karen Boyle, M.D., has performed thousands of reverse vasectomies and the Court does not question her impressive credentials. Dr. Boyle testified at trial that the standard of care requires (1) the use of a bipolar cautery device at a low setting below 30, (2) the use of an operating microscope while dissecting the spermatic cord and the vas deferens, (3) the use of a Doppler ultrasound to check blood flow after a suspected injury, and (4) patient follow-up when a patient has eight out of ten pain the day after a reverse vasectomy. Gadson claims that Drs. Zhou and Klausner breached the standard of care as to each of the deficiencies outlined by Dr. Boyle.

         The defendant's expert, Raymond Costabile, M.D., has likewise performed thousands of reverse vasectomies and serves as the Chair of Urology at the University of Virginia School of Medicine. Dr. Costabile presented a completely different picture of the standard of care, saying that (1) the use of a monopolar or bipolar cautery device is mere surgeon preference and that a setting of 30 could be justified, (2) an operating microscope is not always necessary and depends upon the surgeon's specific need to see during a surgery, (3) a Doppler ultrasound is unnecessary to determine blood flow to the testicle because restricted blood flow ...

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