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Gadson v. United States

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

June 11, 2018



          John A. Gibney, Jr. United States District Judge

         The plaintiff, Eugene Gadson, brought a negligence claim for medical malpractice under the Federal Tort Claims Act, 28 U.S.C. § 2671, after he underwent a reverse vasectomy at McGuire VA Medical Center. The Court previously dismissed the plaintiffs case after a bench trial and a further round of post-trial briefing. The Court concluded that Gadson failed to satisfy his burden of proof that his operating doctors violated the standard of care. Gadson now moves the Court to amend its prior judgment or grant a new trial based on new evidence discovered after trial and the Court's purported "erroneous conclusion" as to the facts presented at trial. (Pl.'s Br. at 1, Dk. No. 68.) For the reasons stated below, the Court denies the motion.

         I. BACKGROUND

         The Court found the following facts after the conclusion of a two day bench trial on September 18 and 20, 2017, and a hearing on post-trial briefs held on November 2, 2017:

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 of ten 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 of ten 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.

(Op. 1-3, Dk. No. 65.) The Court also stated the following:

Moving to the cautery setting, Gadson claims that Drs. Klausner and Zhou violated the standard of care by using cautery at a setting of 30 throughout the surgery. This claim fails because the medical records indicate a "range" of 30, which undercuts the argument that the doctors must have used that setting the entire time. In fact, Nurse Childress believably testified that the doctors' standard practice involved reducing the cautery setting to 15 while operating on the spermatic cord. Even if the doctors did use a setting of 30 the entire time, Dr. Costabile testified that this would not necessarily violate the standard of care. On these facts, Gadson fails to show by a preponderance of the evidence that the doctors used the bo vie at a setting of 30 or that the standard of care requires a physician to use cautery at a level below 30.

(Op. 6.)

         After trial, the plaintiff discovered new evidence within the McGuire VA electronic medical system that shows that at least some doctors do input an actual range into the medical records, rather than simply a maximum.


         Gadson first asks the Court either to alter its prior judgment or to grant a new trial based on new evidence under Federal Rules of Civil Procedure Rule 59. Specifically, Gadson claims that new evidence shows that the doctors used a bovie at the setting of 30 for his entire surgery. The Court finds that the new evidence does not affect the evidence presented at trial. Second, Gadson claims that the Court erred in concluding that a bovie at 30 falls within the standard of care, and that this error, combined with his idea that the doctors used 30 the entire time, warrants a new trial. The Court need not necessarily reach this second argument after having rejected the premise that Nurse Childress lied about the settings used, but the Court nonetheless rejects Gadson's assertion that the Court erred.

         A, The New Evidence ...

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