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McKinley v. United States

United States District Court, M.D. Georgia, Macon Division

August 10, 2017

MARY JO MCKINLEY, Individually and as Administrator of the Estate of HOWARD MCKINLEY, Plaintiff,
v.
THE UNITED STATES OF AMERICA, Defendant.

          ORDER

          HUGH LAWSON, SENIOR JUDGE.

         Before the Court is Defendant's Motion for Summary Judgment (Doc. 43), Plaintiff's Partial Motion to Exclude Expert Testimony of Glenn Preminger, M.D. (Doc. 36), and Defendant's Motion to Exclude the Expert Witness Testimony of Drs. Mark Keaton and Maxwell White (Doc. 37). For the reasons given herein, Defendant's motion for summary judgment is granted in part and denied in part, Plaintiff's motion to exclude is granted, and Defendant's motion to exclude is denied.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This is a negligence action brought under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1) (2013) and 28 U.S.C. §§ 2671-80 (2000). Plaintiff commenced this action individually and as the administrator of the estate of her now-deceased husband, Howard McKinley. (Doc. 7). Plaintiff is seeking compensation for damages resulting from the death of Mr. McKinley. (Doc. 7). Plaintiff alleges that Mr. McKinley died as a result of the negligence of various personnel at the United States Department of Veterans Affairs' Tennessee Valley Healthcare System (“Nashville VA”) in Nashville, Tennessee. (Doc. 7).

         Mr. McKinley was first seen at the Nashville VA on July 29, 2010 in the emergency room, following an episode of gross hematuria (blood in his urine). (Doc. 7-4, pp. 465-66). Mr. McKinley was referred to the urology department at the Nashville VA “for possible cystoscopy as soon as possible.” (Doc. 7-4, p. 466). Mr. McKinley underwent cystoscopy at the Tennessee VA on September 9, 2010, which revealed urothelial carcinoma (cancer). (Doc. 7-4, pp. 150, 679- 80).

         As a result of his urothelial carcinoma diagnosis, Mr. McKinley underwent bladder biopsy and tumor removal surgery on November 23, 2010. (Doc. 7-4, pp. 372-73). Pathology for the removed tumor showed non-invasive high-grade papillary urothelial carcinoma. (Doc. 7-4, p. 159). The two biopsies taken during the procedure were “negative for tumor.” (Doc. 7-4, p. 159).

         On December 17, 2010, Mr. McKinley returned to the Nashville VA for a follow up appointment after his surgery, and cytology again showed urothelial carcinoma as well as large amounts of blood in his urine. (Doc. 7-4, p. 426). A resident physician at the Nashville VA ordered Mr. McKinley to follow up in two months for a surveillance cystoscopy. (Doc. 7-4, p. 426). However, after a hospitalization for gross hematuria in late December and multiple calls to the urology clinic by Mr. McKinley and his wife with complaints of hematuria and difficulty urinating, repeat cystoscopy was scheduled for January 18, 2011. (Doc. 7-4, pp. 414, 418).

         The bladder biopsies taken during Mr. McKinley's January 18, 2011 cystoscopy revealed urothelial carcinoma in-situ. (Doc. 7-4, p. 399). At that point, Mr. McKinley's physicians recommended that he undergo a course of Bacillus Calmette-Guerin chemotherapy (“BCG”). (Doc. 7-4, pp. 399-400). Mr. McKinley began a six week course of BCG on February 15, 2011, which concluded on March 29, 2011. (Doc. 7-4, pp. 20, 400).

         On May 6, 2011, Mr. McKinley underwent cystoscopy again. (Doc. 7-4, p. 654). The procedure revealed at least three velvety lesions inside of Mr. McKinley's bladder that were suspicious for carcinoma in situ, but could have also been caused by his recent BCG. (Doc. 7-4, p. 655). As a result, an additional cystoscopy and a biopsy were scheduled for June 28, 2011. (Doc. 7-4, p. 655). During the June 28 cystoscopy, it was “extremely difficult to fully examine [Mr. McKinley's] bladder, ” due to his body habitus and high bladder neck. (Doc. 7-4, p. 650). Nonetheless, two biopsies were taken, which revealed “largely denuded urothelial mucosa with urothelial dysplasia” as well as muscilaris propria. (Doc. 7-4, p. 340). As a result, it was recommended that Mr. McKinley return in six weeks for another course of BCG. (Doc. 7-4, p. 651). This round of BCG did not begin until November of 2011. (Doc. 7-4, p. 313). The second round of BCG concluded on November 22, 2011, and Mr. McKinley was ordered to return in six weeks. (Doc. 7-4, p. 312).

         At his December 20, 2011 appointment, a CT scan was performed of Mr. McKinley's bladder, revealing a bladder mass consistent with a clinical diagnosis of carcinoma, although there was no metastatic disease at the time. (Doc. 7-4, p. 249). The scan was difficult to evaluate, as the bladder appeared decompressed. (Doc. 7-4, p. 309). On January 5, 2012, Mr. McKinley underwent another cystoscopy, during which the posterior bladder wall showed signs of either BCG changes or carcinoma in situ, and the right lateral wall exhibited what could have been either BCG changes or papillary superficial bladder cancer. (Doc. 7-4, p. 640).

         On February 13, 2012, Mr. McKinley underwent cystoscopy, urethral dilation, and bladder barbotage. (Doc. 7-4, pp. 286-87). During the procedure, there were “no obvious bladder tumors seen.” (Doc. 7-4, p. 287). Mr. McKinley returned to the Nashville VA on February 23, 2012. (Doc. 7-4, p. 278). He had been experiencing periodic gross hematuria since the February 13, 2012 procedure. (Doc. 7-4, p. 278). The resident physician “[h]ad an extended conversation with [Mr. McKinley] about [gross hematuria] following this type of procedure, ” and instructed Mr. McKinley to follow up as scheduled on May 17, 2012. (Doc. 7-4, p. 278).

         Mr. McKinley continued to experience gross hematuria between February and May of 2012. (Doc. 7-4, pp. 255, 278). He was seen at the Nashville VA on May 17, 2012 and underwent cystoscopy on May 31, 2012. (Doc. 7-4, pp. 256, 246). The cystoscopy revealed no tumor recurrence, bullous edema, and a high riding bladder neck. (Doc. 7-4, p. 246). Mr. McKinley was scheduled for a follow up appointment in six months. (Doc. 7-4, p. 249).

         In July 2012, Plaintiff and Mr. McKinley relocated to Bibb County, Georgia. (Doc. 43-2, p. 4). Mr. McKinley visited the Dublin, Georgia VA hospital to establish primary care on August 28, 2012. (Doc. 49-3, p. 17). During this visit, Mr. McKinley told his physician that his bloody urination persisted. (Doc. 49-3, p. 17). He was referred to a non-VA urologist, and an appointment was scheduled for October 2012. (Doc. 49-3, p. 17). On September 13, 2012, Mr. McKinley returned to the Dublin VA due to continued bloody urination and the onset of low blood pressure. (Doc. 49-3, p. 17). While hospitalized, Mr. McKinley underwent an abdominal and pelvic CT scan at the direction of a urologist, which revealed findings consistent with advanced bladder cancer and metastatic disease. (Doc. 49-3, p. 18).

         Mr. McKinley's diagnosis was confirmed after he underwent tumor removal surgery on October 2, 2012. (Doc. 49-3, p. 18). A large necrotic tumor was removed, and pathology results revealed malignancy. (Doc. 49-3, p. 18). Despite aggressive chemotherapy and radiation, Mr. McKinley's cancer worsened, spreading to his brain and eventually killing him on September 21, 2013. (Doc. 49-3, pp. 18-19). Mr. McKinley died at his home in Georgia. (Doc 43-2, p. 4).

         Plaintiff initially presented her claims to the VA for wrongful death, medical expense, pre-death pain and suffering, loss of consortium, and ordinary negligence on October 4, 2013. (Doc. 43-2, p. 4). The VA denied her claims initially and on appeal. (Doc. 43-2, p. 5). Plaintiff filed this lawsuit on March 20, 2015, just over one month after her request for reconsideration was denied. (Doc. 1).

         II. THE PARTIES' DAUBERT MOTIONS

         The Court will address the Parties' respective motions to exclude before turning to Defendant's Motion for Summary Judgment because whether the Parties' proposed experts will be allowed to testify relates to the summary judgment analysis.

         A. Plaintiff's Partial Motion to Exclude the Expert Testimony of Glenn Preminger, M.D. (Doc. 36)

         Plaintiff filed a motion to exclude testimony by Dr. Preminger regarding the films from any of Mr. McKinley's CT scans. (Doc. 36). Plaintiff claims that following the December 20, 2011 CT scan, the providers at the Nashville VA failed to act upon a new bladder tumor that was identified by the radiologist, and as a result, Mr. McKinley's bladder cancer went undiagnosed until September 19, 2012. During his deposition, Dr. Preminger testified that he had not been provided with any of the CT scan films, and that he would “defer to radiologists or - or to someone with more expertise in managing the cancer to opine about those specific films.” (Doc 36-1, p. 18). As a result of this testimony, Plaintiff argues that Dr. Preminger should be precluded “from testifying at trial regarding the CT scan films or their contents because by his own admission, he is not qualified to give such opinions and no such opinions have been disclosed to Plaintiff.” (Doc. 36, p. 5).

         At the June 26, 2017 hearing, Defendant conceded that it does not intend to offer any expert testimony about the interpretation of any of Mr. McKinley's CT scan films. (See also Doc. 45, p. 2). Dr. Preminger's testimony regarding the CT scans will apparently be limited to the content of the films, as discussed in the radiologist's reports. As a result, the Parties agree that this motion has been resolved. Plaintiff's Partial Motion to Exclude the Expert Testimony of Glenn Preminger, M.D. (Doc. 36) is GRANTED.

         B. Defendant's Motion to Exclude the Expert Witness Testimony of Drs. Mark Keaton and Maxwell White[1]

         Defendant moves to exclude the testimony of Dr. Mark Keaton and Dr. Maxwell White, arguing that neither physician is competent to testify under Tennessee law. Further, Defendant argues that Dr. Keaton's testimony is not relevant under Tennessee law or credibly reliable under federal law.

         1. Standard of Review

         “When analyzing a FTCA claim, [federal courts] appl[y] the law of the state in which the alleged tort was committed.” Duque v. United States, 216 Fed.Appx. 830, 832 (11th Cir. 2007) (per curiam) (citation omitted). “In state medical malpractice actions brought in Georgia federal courts, ‘state law governs substantive issues and federal law governs procedural issues.'” Adams v. Lab Corp. of Am., No 1:10-cv-3309-WSD, 2012 WL 370262, at *8 (N.D.Ga. Feb. 3, 2012) (citation omitted) (quoting McDowell v. Brown, 392 F.3d 1283, 1294 (11th Cir. 2004)). “Whether a medical expert is competent to testify is a substantive issue[, ] governed [in this case] by [Tennessee law] . . . .” Id. (citations omitted); see also Dukes v. Georgia, 428 F.Supp.2d 1298, 1313 (N.D.Ga. 2006) (“The Eleventh Circuit stressed in McDowell that when determining the competency of an expert witness in state medical malpractice claims, federal courts first should apply the competency standard under state law.”).

         “Once a district court determines that a medical expert is qualified to offer an opinion under [Tennessee law, ] the proposed expert testimony is [ ] screened under Federal Rule of Evidence 702 and Daubert[2] to determine if it is otherwise admissible.” Adams, 2012 WL 370262, at *8 (citation omitted). In sum, when determining admissibility of an expert witness's testimony, “[t]he analysis . . ., is first whether the expert is qualified to render an opinion regarding the standard of care (the competency component) [under state substantive law, via Fed.R.Evid. 601], and second, whether the expert's causation theory meets the strictures of Rule 702.” McDowell, 392 F.3d at 1295.

         2. Drs. Mark Keaton and Maxwell White Are Competent to Testify Under Tennessee Law To prevail on a claim for medical malpractice in Tennessee, a plaintiff must prove by competent[3] opinion evidence:

The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred[.]

Tenn. Code Ann. § 29-26-115(a)(1).

         An essential element of a claimant's proof is the “recognized standard of acceptable professional practice . . . in the community in which the defendant practices or in a similar community.” Tenn. Code. Ann. § 29-26-115(a)(1). This requirement is known as the “locality rule.” Shipley v. Williams, 350 S.W.3d 527, 537 (Tenn. 2011). “The statute does not require a particular means or manner of proving what constitutes a ‘similar community, ' nor does it define that term.” Id. at 552. The Tennessee Supreme Court has observed that, “[g]enerally, an expert's testimony that he or she has reviewed and is familiar with pertinent statistical information such as community size, hospital size, the number and type of medical facilities in the community, and medical services or specialized practices available in the area; has discussed with other medical providers in the pertinent community or a neighboring one regarding the applicable standard of care relevant to the issues presented; or has visited the community or hospital where the defendant practices, will be sufficient” to establish the expert's competency in a medical malpractice action. Id. An expert is not required to have “personal, firsthand, direct knowledge” of the applicable standard of care to meet the competency requirement. Id. at 552-53.

         Further, “an expert may utilize a national or regional standard of care in formulating an opinion in a medical malpractice case, but only if that expert first establishes familiarity with the relevant local community and then explains that the local and national standard are the same.” Miller v. Chinenye Uchendu, M.D., No. 13-CV-2149-SHL-DKV, 2016 WL 4524306, at *2 (W.D. Tenn. July 21, 2016 (citing Shipley, 350 S.W.3d at 553)). “[I]n many instances[, ] the national standard is representative of the local standard.” Shipley, 350 S.W.3d at 553 (citations omitted).

         In its Motion to Exclude, Defendant argues that Drs. Keaton and White base their testimony on the national standard of care, and that neither has established familiarity with the Nashville community or that they practice in a similar community. As a result, Defendant argues that Plaintiff's experts fail to meet the requirements of Tennessee's locality rule and are not qualified to testify under Tennessee law.

         In response, Plaintiff submitted supplemental affidavits[4] from each of her experts, which purportedly establish that both experts have familiarized themselves with the Nashville community since their depositions, and have determined that Nashville is a similar medical community to both Atlanta and Augusta, respectively. Accordingly, Plaintiff contends that both experts are qualified to testify as to the recognized standard of care in the Nashville medical community and at the Nashville VA. The Court agrees with Plaintiff.

         i. Dr. Mark Keaton

         Dr. Keaton is the Principal Investigator for Augusta Oncology Associates (“Augusta Oncology”) in Augusta, Georgia, where he has been employed since 2002. (Doc. 49-2, p. 4). In addition, Dr. Keaton serves as an Associate Professor of Medicine at Augusta University, a position that he has held since 2015. (Doc. 49-2, p. 4). During his time at Augusta Oncology, he has worked on approximately five to six clinical trials at the Sarah Cannon Research Institute in Nashville, Tennessee. (Doc. 49-2, p. 5). This facility is located across the street from Vanderbilt University. (Doc. 49-2, p. 5). In addition, in his position as Associate Professor at Augusta University, he is currently working to reestablish a partnership with the Sarah Cannon Research Institute for new clinical trials. (Doc. 49-2, p. 5). Further, Dr. Keaton has referred approximately ten patients to the Sarah Cannon Research Institute for treatment. (Doc. 49-2, p. 5). As a result of his work with the Sarah Cannon Research Institute and through his medical training, Dr. Keaton has formed relationships with several physicians who practice in Nashville. (Doc. 49-2, p. 5). He has had numerous conversations with these physicians about their patients, clinical trials, and other medical issues. (Doc. 49-2, p. 5).

         In addition to Dr. Keaton's firsthand knowledge of the Nashville medical community, he has since familiarized himself with relevant statistical data. As the Tennessee Supreme Court concluded in Shipley, a proffered medical expert need not “demonstrate ‘firsthand' and ‘direct' knowledge of a medical community . . . in order to qualify as competent to testify in a medical malpractice case.” Shipley, 350 S.W.3d at 552. It is sufficient for the expert to educate himself about the characteristics of the medical community by “reading reference materials on pertinent statistical information such as community and/or hospital size and the number and type of medical facilities in the area, conversing with the other medical providers in the pertinent community or a neighboring or similar one, visiting the community or hospital where the defendant practices, or other means.” Id. at 553. As described in paragraphs ten and eleven of Dr. Keaton's supplemental affidavit, he has “reviewed extensive information” about the medical community in Nashville, Tennessee, and has cited several statistics about the size of the community, the size of the Nashville VA, the number and type of medical facilities in the Nashville area, and the medical services or specialized practices available in the area. (Doc. 49-2, pp. 7-13).[5]

         Based on his firsthand knowledge and review of reference materials on pertinent statistical information about the Nashville medical community, Dr. Keaton has concluded that Nashville is a similar medical community to Augusta, where he practices, and thus, that the standard of care applicable in Augusta is also applicable to the physicians at the Nashville VA, who allegedly breached the standard of care in this case. Specifically, Dr. Keaton explains that, while Augusta is a smaller metropolitan area than Nashville, both cities have “significant” catchment areas[6], several hospitals[7], one VA hospital, and a large population of veterans[8]. (Doc. 49-2, pp. 8-9). Both Augusta and Nashville have highly regarded medical schools, students from which are trained at the local VA hospitals. (Doc. 49-2, pp. 8-9). With respect to the medical specialties and equipment available, Dr. Keaton stated that the “equipment, techniques, reference materials, practices, and procedures” that he uses in his practice in Augusta are “the same if not very similar to those utilized in and by the Nashville medical community.” (Doc. 49-2, p. 9). Finally, the Nashville VA and the Augusta VA both have 17 specialties and subspecialties represented. (Doc. 49-2, p. 10).[9] Although the medical communities in Nashville and Augusta are distinct in many ways, as detailed in Defendant's Reply Brief (Doc. 60, pp. 7-8), “[a]n exact match between the two communities and medical institutions is not required.” Nevels v. Contarino, No. M2012-00179-COA-R3-CV, 2013 WL 5844751, at *7 (Tenn. Ct. App. Nov. 16, 2012). The Court is satisfied with Dr. Keaton's conclusion that Nashville is a similar medical community to Augusta. Accordingly, the Court finds that Dr. Keaton is qualified to testify as to the standard of care in Nashville and at the Nashville VA, pursuant to Tenn. Code Ann. § 29-26-115(a)(1).

         ii. Dr. John Maxwell White

         Dr. John Maxwell White is a urologist practicing with Piedmont Physicians Urology Specialists in Atlanta, Georgia. (Doc. 49-1, p. 4). Dr. White's practice involves caring for patients with bladder cancer, among other ailments. (Doc. 49-1, p. 4). He also “regularly perform[s] the following surgical procedures: cystoscopies, in the office and operating room, bladder resection, prostate resection and radical prostatectomy.” (Doc. 49-1, p. 5).

         In preparing to offer expert testimony in this case, Dr. White reviewed reference materials[10] to familiarize himself with the medical community in Nashville. Through his research, Dr. White has concluded that Nashville and Atlanta are similar medical communities. Specifically, he explains that both Atlanta and Nashville are the largest cities in their states, each with multiple hospitals[11], and large catchment areas[12]. (Doc. 49-1, pp. 6-7). Further, both cities have large VA hospitals[13] where resident physicians from local medical schools are trained. (Doc. 49-1, p. 6). The VA hospitals in both Atlanta and Nashville have 11 board certified urologists on staff, as does Piedmont Hospital where Dr. White practices. (Doc. 49-1, p. 7). Finally, Dr. White notes that “[n]early every specialty and subspecialty of medicine, including urology and its subspecialties, are represented in the Nashville medical community as well as the Atlanta medical community.” (Doc. 49-1, p. 8).[14] The Court is satisfied with Dr. White's conclusion that Nashville is a similar medical community to Atlanta. Accordingly, the Court finds that Dr. White is qualified to testify as to the standard of care in Nashville and at the Nashville VA, pursuant to Tenn. Code Ann. § 29-26-115(a)(1).

         3. Dr. Keaton's Testimony is Relevant Under Tennessee Law

         Defendant further challenges the relevancy of Dr. Keaton's testimony under Section 29-26-115(b) of the Tennessee Code, which states that:

No person in a health care profession requiring licensure under the laws of this state shall be competent to testify in any court of law to establish the facts required to be established by subsection (a), unless the person was licensed to practice in the state or a contiguous bordering state a profession or specialty which would make the person's expert testimony relevant to the issues in the case and had practiced this profession or specialty in one (1) of these states during the year preceding the state that the alleged injury or wrongful act occurred.

Tenn. Code Ann. § 29-26-115(b).

         i. As to the standard of care

         Defendant contends that Dr. Keaton is not competent to offer standard of care testimony because he does not practice “a profession or specialty which would make [his] expert testimony relevant to the issues in the case, ” as required by Section 29-26-115(b) of the Tennessee Code. Defendant points to the following facts in support of its argument: Dr. Keaton primarily treats breast cancer patients; he does not currently treat any bladder cancer patients; in previous years, he saw a couple of patients with bladder cancer each year; all of the patients he has treated with bladder cancer were in an advanced stage of cancer; his only experience treating bladder cancer in its initial stages was during his fellowship in the late 1980s; he has never performed a cystoscopy; he has never performed a perineal cystoscopy or had a patient undergo one; he has never ordered a percutaneous biopsy on a bladder cancer patient; he has never taken a bladder biopsy; he has never performed a bladder barbitage; he has never performed a cystectomy or any surgery; and he is not versed in the risks of complications following a cystectomy. (Doc. 37-1, pp. 9-10). As a result, Defendant argues that Dr. Keaton “has a complete lack of experience with the procedures and treatment at issue in this case and is clearly not competent to testify regarding whether Mr. McKinley's physicians complied with the standard of care.” (Doc. 37-1, p. 10).

         The Court disagrees. Dr. Keaton has offered limited testimony as to the standard of care that should have been followed in this case. Specifically, Dr. Keaton plans to testify that the standard of care was breached when doctors at the Nashville VA delayed Mr. McKinley's initial urology work up; delayed removing the tumor and taking a biopsy; took only two random biopsies during the tumor removal operation; delayed further action after BCG chemotherapy and subsequent abnormal cytology; failed to take appropriate action to rule out bladder cancer after the December 20, 2011 CT scan result; and poorly coordinated Mr. McKinley's care at the Nashville VA.

         Although Dr. Keaton is an oncologist, whereas the Nashville VA physicians who allegedly breached the standard of care were urologists, there is “no requirement that the witness practice the same specialty as the defendant.” Cardwell v. Bechtol, 724 S.W.2d 739, 751 (Tenn. 1987). Rather, the expert need only be “sufficiently familiar with the standard of care of the profession or specialty and be able to give relevant testimony on the issue in question.” Id. Dr. Keaton stated that, “as an oncologist[, he] ha[s] sufficient familiarity with the treatment of cancer patients, like Howard McKinley, [ ] so as to testify to certain standards of medical practice for any medical doctor, including urologists, who are treating cancer patients in regards to appropriate wait times for medical appointments, surgical ...


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