United States District Court, M.D. Georgia, Albany Division
ALETA MIXON, Individually and as Administrator of the Estate of deceased WYMAN LEE MIXON, Plaintiff,
UNITED STATES OF AMERICA, Defendant
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For ALETA S MIXON, Individually and as Administrator of the Estate of deceased, WYMAN LEE MIXON, Plaintiff: ASHLEIGH RUTH MADISON, Southeast Law, LLC, SAVANNAH, GA; JOHN C COTTON, CORDELE, GA.
For UNITED STATES OF AMERICA, Defendant: STEWART R BROWN, U.S. ATTORNEY'S OFFICE, MACON, GA.
W. LOUIS SANDS, JUDGE, UNITED STATES DISTRICT COURT.
This civil case is before the Court for findings of fact and conclusions of law following a bench trial. After a review of the evidence and briefing, the Court enters judgment in favor of Plaintiff in the amount of $1.2 million.
I. PROCEDURAL BACKGROUND
Plaintiff Aleta Mixon (hereinafter " Plaintiff" ), individually and as administrator of the estate of Wyman Lee Mixon, brought suit against the United States of America under the Federal Tort Claims Act after her husband, Wyman Mixon (hereinafter " Mixon" ), died during post-operative recovery at the Charlie Norwood Veterans Affairs Medical Center in Augusta, Georgia. She claims the hospital's agents and employees caused her husband's death by negligently dispensing and monitoring pain medications. Plaintiff seeks damages for funeral expenses; for mental and physical pain and suffering; and for the full value of Mixon's life.
Before filing suit, Plaintiff presented a claim to Veteran's Affairs on a Standard Form 95. For the basis of the claim, she wrote, " claimant died as the result of excessive Dilaudid. See additional pages." An additional page stated:
Claimant, Wyman Lee Mixon, was a veteran of the United States Military. On September 29, 2009, Mr. Mixon had cervical/spinal surgery at the Veterans Affairs Medical Facility, Augusta, Georgia. Around 1925 (7:25 p.m.), after a successful surgery, Mr. Mixon complained of pain and was given between .5 milligrams and 1.0 milligrams of Dilaudid. Then around 2036 (8:36 p.m.), Mr. Mixon was given another 1.0 milligrams of Dilaudid. Approximately twenty minutes later Mr. Mixon was found unresponsive and although he was able to be resuscitated, his condition deteriorated and radiographic studies showed severe anoxic brain injury. Finally on October 2, 2009, life support care was removed and Mr. Mixon died.
The cause of Mr. Mixon's death is believed to have been an overdose of Dilaudid. One of the residents who is identified as Dr. Andrew Morgan made a note by addendum on October 16, 2009 indicating that he believed the cause of Mr. Mixon's death was an overdose of Dilaudid IV. In fact 1.0 milligrams of Dilaudid IVP every two hours was ordered as Mr. Mixon's pain medication; however, at the time of Mr. Mixon's arrest he had been given at least 1.5 milligrams of Dilaudid within Sixty-Three (63) minutes.
In the " Amount of Claim" section, Mixon wrote $5 million in the " Wrongful Death" box and left the " Property Damage" and " Personal Injury" boxes blank. She wrote $5 million as the total amount.
After filing her claim with the VA, Plaintiff timely filed suit on November 14, 2011. The Parties appeared for a pretrial conference September 11, 2013. At the conference, defense counsel requested an opportunity to brief jurisdictional issues regarding Plaintiff's theories of recovery. The jurisdictional issues primary involve 28 U.S.C. § 2675(a), which requires a plaintiff to first file a claim with the appropriate administrative agency. In its brief, the United States contends Plaintiff is limited to the theory in her Form 95--namely, that Mixon died from receiving 1.5 milligrams of Dialudid in 63 minutes. Per Defendant, this failure requires the Court to disregard Plaintiff's other theories of recovery, such as the failure to monitor Mixon and any recovery for pre-death pain and suffering. On a related issue, the United States seeks to exclude testimony from Plaintiff's expert witness, Dr. Charles Smith, because his opinion exceeds the content of the Form 95.
The Court held a bench trial on January 27 and 28 and allowed the parties to submit evidence and testimony and written arguments. Having reviewed the evidence and briefs in entirety, the Court now makes findings of fact and conclusions of law.
II. FACTUAL FINDINGS
The Court makes the following findings of fact. In 2009, Wyman Mixon was a 69-year-old resident of Cordele, Georgia, who had recently retired from Tyson Foods as a wastewater engineer. He had been married to Aleta Mixon for about fifty years and had two sons and several grandchildren. Before Tyson Foods, Mixon worked a variety of jobs and served in the United States Marine Corps from 1957 to 1960. Since his retirement, he had received $1,535 in monthly Social Security income.
Mixon remained relatively active during his senior years. As a Freemason, he mentored young men at his Masonic Lodge, where, shortly before his death, he mowed the lawn. He attended parades and events with Shriners International. He hunted deer with family, attended cookouts, and watched his grandchildren play sports. Mixon also took care of his 94-year-old mother.
Despite those activities, Mixon suffered health problems. Medical records reflect he was alcohol dependent, although family members testified he had not drank in several years. He had diabetes, hypertension, hyperlipidemia, anemia, hearing loss, and osteoarthritis. Renal cancer left him with a single kidney. In addition, in 2007, Mixon began to experience severe neck pain and weakness in his arms. Because of that latter problem, Mixon visited the Dublin VA Medical Clinic to improve mobility. VA Doctors attributed his neck issues to spinal stenosis, for which they recommended a laminectomy and a fusion to decompress the stenosis.
Mixon agreed to the procedure. On September 29, 2009, he underwent surgery at the Charlie Norwood VA Medical Center (CNMC). During the surgery, he received pain medication and sedatives. The surgery was uneventful. After four hours in the operating room, Mixon was released to the post-anesthesia care unit (PACU), where he began receiving intravenously 0.2 to 0.4 milligrams of Dilaudid, the brand name for the synthetic opioid hydromorphone. Mixon's medical records reflect he was allergic to morphine, also of the opioid class, and codeine, and experienced nausea from these drugs. At around 1:10 p.m. on September 29, when his pain began to come under control, Mixon's blood oxygenation saturation dropped to 88 percent; his respiratory rate decreased to 8. These levels are considered " ...