The opinion of the court was delivered by: Karen E. Schreier Chief Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, William Owen, contends that the medical care he received at the Indian Health Services Hospital in Sisseton, South Dakota, in July and August 2001 fell below the standard of care, which caused him to sustain permanent impairment of his bladder, bowel, and sexual function. Defendant, the United States, denies the allegations. After considering the evidence admitted during a two-day court trial, the court determines by a preponderance of the evidence the following facts and reaches the following conclusions of law.
Plaintiff, William Owen, is an enrolled member of the Sisseton-Wahpeton Sioux Tribe who lives in Peever, South Dakota. Tr. 56; Ex. 101, USA 392. He lives with his fiancee, Jacqueline Red Wing, and their three children. Tr. 12-14, 56. Owen and Red Wing were married from 1993 until 2003. Tr. 12-13.
They divorced in 2003, but got back together later that year and are currently engaged to be married. Tr. 12-13. In July and August 2001, their children were three years old and eleven months old. Tr. 19. Their youngest child was born in May 2005. Tr. 14.
Owen served in the Marine Corps for four years. Tr. 29, 56-57. Shortly after being discharged, Owen began working in the law enforcement field. Tr. 58. He has worked for Sisseton-Wahpeton Law Enforcement and the Standing Rock Sioux Tribe. Tr. 58. He started his current position with SissetonWahpeton Law Enforcement in January 2000. Tr. 58.
Owen sought medical treatment for severe back and leg pain and related symptoms at the Indian Health Services hospital in Sisseton (IHS hospital) in July and August 2001. He was eventually diagnosed with cauda equina syndrome and underwent emergency back surgery at MeritCare Hospital in Fargo, North Dakota, on August 2, 2001. Owen suffered previous back injuries in 1996 and 2001. Tr. 52, 89. Owen weighed about 300 pounds in July and August 2001. Tr. 62. He underwent gastric bypass surgery in 2005 and lost about 120 pounds. Tr. 62-63.
Defendant, the United States, is sued in the place of Dr. Donald D. Weiffenbach, an emergency room physician at the IHS hospital, pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b)(1). Dr. Weiffenbach treated Owen from July 22, 2001, to August 1, 2001. Ex. 1, USA 403A.
Dr. Weiffenbach was practicing at the IHS hospital through the Project U.S.A. program under which physicians provide medical services on American Indian reservations for one to two weeks at a time. Dep. Tr. 15-16. Dr. Weiffenbach was placed in Sisseton for a few weeks in 2001. Dep. Tr. 16. He is currently retired from the practice of medicine and does not remember seeing or treating Owen. Dep. Tr. 14, 16.
II. Events in July and August 2001
This case arises out of the medical treatment Owen received at the IHS hospital from July 22, 2001, to August 2, 2001, when he was transferred by ambulance to MeritCare and diagnosed with cauda equina syndrome. By way of background, cauda equina syndrome is the name for dysfunction of the cauda equina. Tr. 284-85. The phrase "cauda equina," Latin for "horse's tail," refers to the nerves in the lower back that begin where the spinal cord ends, at L1.*fn1 Tr. 115-16. These nerves project downward from the end of the spinal cord and into the legs, buttocks, thighs, perineum or saddle area (which includes the scrotum, testes, and penis in males), and rectal sphincter. Tr. 116. The remnants of these nerves control the functioning of the bladder and penile and vulvar sensation and activity. Tr. 116. The most common symptom of cauda equina syndrome is urinary retention, but cauda equina syndrome can also cause bowel and bladder incontinence, perineal sensory loss, bilateral leg pain, weakness, numbness, and sexual dysfunction. Tr. 285. Cauda equina syndrome is a neurosurgical emergency. Tr. 285.
Owen first presented at the IHS hospital emergency room at 11:09 a.m. on Sunday, July 22, 2001, where he was seen by Dr. Weiffenbach. Ex. 1, USA 403A. Owen complained of back pain, leg numbness, and leg pain. Id. Owen told Dr. Weiffenbach that the pain radiated down to his right foot and that it was difficult to lift his right foot. Id. Dr. Weiffenbach observed "[d]ifficult flexion, somewhat weak dorsiflexion of right foot." Ex. 1, USA 403A.
Dr. Weiffenbach testified that "dorsiflexion" means to pick up the foot at the ankle. Dep. Tr. 38. He testified that weak dorsiflexion indicates that there is some pressure on the nerve, but he could not identify which nerve was affected. Dep. Tr. 39.
Dr. Weiffenbach assessed Owen's condition as "L-S [lumbosacral] strain and radiculitis." Ex. 1, USA 403A. Dr. Weiffenbach testified that radiculitis means inflammation of the nerve. Dep. Tr. 21. Dr. Weiffenbach prescribed analgesic and muscle relaxant medications. Dep. Tr. 21; Ex. 1, USA 403A. Owen was also told not to work that week and to return to the clinic in one week. Tr. 78; Ex. 1, USA 403A.
Dr. Weiffenbach testified that back pain was one of the most common complaints he saw as an emergency room physician. Dep. Tr. 21. Usually, back pain would resolve itself with time and that the patient should not do anything to aggravate it. Dep. Tr. 22. If a patient had ongoing back pain, Dr. Weiffenbach would order an MRI or a myelogram. Dep. Tr. 22.
Owen went back to the IHS hospital twice on Friday, July 27, 2001: first at 12:27 a.m. and then again at 9:31 a.m. Ex. 1, USA 340A; Ex. 1, USA 404A.
Owen presented to the emergency room at 12:27 a.m. complaining of lower back pain with right leg pain and numbness. Ex. 1, USA 404A. He had run out of Motrin, an analgesic, and Robaxin, a muscle relaxant. Id. The emergency room nurse observed that Owen ambulated with a severe limp. Id. Dr. Weiffenbach was not present at the IHS hospital, but the nurse contacted him and received instructions for Owen's care. Dep. Tr. 23-24.
Dr. Weiffenbach ordered the nurse to administer injections of 50 milligrams of Demerol and 50 milligrams of Phenergan and to instruct Owen to come back for a follow-up appointment with Dr. Weiffenbach at 9:15 a.m. the same day. Ex. 1, USA 404A.
Owen returned to the IHS hospital at 9:31 a.m. the same day. Ex. 1, US 340A. He complained of pain going down his right leg, starting in his right buttock. Id. Dr. Weiffenbach observed that Owen was sitting in a chair, splinting, but was able to walk. Id. Dr. Weiffenbach wrote "no footdrop," but there is no notation of any tests or examinations. Id. Dr. Weiffenbach diagnosed Owen as having sacroiliac pain with radiculitis. Ex. 1, USA 340A. He ordered an x-ray of the lumbosacral spine*fn2 and a request for an MRI.*fn3 Id. Dr. Weiffenbach also prescribed analgesics and muscle relaxants and advised Owen to return to the clinic in one week. Id.
Owen returned to the emergency room of the IHS hospital at 11:48 a.m. on Saturday, July 28, 2001, complaining of pain or weakness of his right leg and pain in his back. Ex. 1, USA 405; see also Tr. 166. He reported that the pain was in the hamstring area of his leg. Ex. 1, USA 405. Owen indicated that his pain was "off the chart" when he moved. Id. Owen saw Dr. Cropp, rather than Dr. Weiffenbach, who prescribed medication and advised Owen to keep his MRI appointment, begin physical therapy, and return to the clinic in one week. Id.
On Tuesday, July 31, 2001, Owen drove himself to Watertown, South Dakota, to get a massage. Tr. 41. He decided to get a massage because he had experienced pain in the buttock area before, and getting a massage helped on that occasion. Tr. 71. Owen received a full body massage, and the therapist used a soft touch on his head, neck, shoulders, back, and sides. Tr. 109. Owen does not remember having bowel or bladder dysfunction at the time of the massage. Tr. 93. Owen also drove himself home from the massage. Tr. 85. He used his right foot on the gas pedal and his left foot on the brake. Tr. 85. When Owen got home from the massage, he heard a "crack" or "pop" sound in his buttock. Tr. 70. He did not feel any sensation associated with the sound. Tr. 109.
The next morning, Wednesday, August 1, 2001, Owen and Red Wing got out of bed and Owen almost fell. Tr. 22. He also urinated on himself. Tr. 22.
It was the first time Owen had urinated on himself and the first time he noticed problems with his bowel and urinary functions. Tr. 22, 95.
2. IHS Hospital--7:59 p.m.
That evening, Red Wing drove Owen to the IHS hospital. Tr. 23. He presented at 7:59 p.m. Ex. 1, USA 406. Red Wing walked beside Owen from the car to the hospital, but Owen was able to walk into the clinic without assistance. Tr. 23. Owen had one of his children's diapers over his groin area because he was urinating on himself. Tr. 24, 75. Owen felt pain in his abdomen/belly button area. Tr. 75. Owen does not remember whether he still had the diaper over his groin area when Dr. Weiffenbach saw him. Tr. 76.
Owen complained of pain in his right buttock down his right leg, right leg numbness, and inability to void. Ex. 1, USA 406. Dr. Weiffenbach recorded that Owen's symptoms were variable and had been going on for one week and three days. Id. Dr. Weiffenbach observed that Owen was alert and oriented, and at times appeared to be in pain. Id. Dr. Weiffenbach also observed that Owen's numbness varied from place to place. Id. Dr. Weiffenbach's diagnosis was, "Sciatica?" Id. He testified that he really did not understand what the problem was and that Owen needed to be further investigated by a neurologist. Dep. Tr. 29. To Dr. Weiffenbach, sciatica means hip and leg pain of an unknown etiology. Dep. Tr. 43. Dr. Weiffenbach did not conduct an examination on Owen or touch Owen in any way. Tr. 74. Dr. Weiffenbach instructed Owen to return to the clinic the next morning to plan a referral to a neurologist. Ex. 1, USA 406. He noted that Owen had not gotten an MRI yet, and he told Owen to come back in the morning to chase some paperwork for the test. Id.; Tr. 27-28, 74. Owen asked Dr. Weiffenbach, "What am I supposed to do? Go home and pee on myself." Tr. 49, 77. Dr. Weiffenbach said something to the effect of "Yeah, if that's what has to happen." Tr. 28, 49, 77.
Dr. Weiffenbach testified that he did not catheterize Owen because catheterization created a risk of infection. Dep. Tr. 31. He testified that if a person is passing urine, catheterization is done for sanitary reasons only. Dep. Tr. 31. Dr. Weiffenbach did not transfer Owen to a treating facility immediately because most IHS hospitals require approval before transferring patients except in bona fide emergency situations. Dep. Tr. 31-32. Owen's situation was an urgency, but not an emergency. Dep. Tr. 32. According to Dr. Weiffenbach, an emergency is something that a physician has minutes to correct while an urgency is something a physician has hours or days to address. Dep. Tr. 44. In 2001, most hospitals were not equipped to perform MRIs in the middle of the night. Dep. Tr. 32.
3. Coteau Des Prairies Hospital--10:45 p.m.
After leaving IHS, Red Wing talked Owen into going to Coteau Des Prairies Hospital in Sisseton because Owen was frustrated, upset, and let down over the care he received at the IHS hospital. Tr. 30-31. Owen presented at the Coteau emergency room at 10:45 p.m. Ex. 1, USA 11A. At Coteau, Owen reported that he had gotten a massage the day before and heard a crack in his buttock when he got home. Id. Ever since then, he had had no urine or bowel function. Id.
Owen was examined by Dr. Van Peursem at Coteau. Dr. Van Peursem asked Owen questions and conducted reflex tests on Owen's knee and ankle and sensation tests on his leg and foot. Tr. 31; Ex. 1, USA 11A. She also performed a rectal exam and reported that there was no sensation on exam and no anal wink. Id. This was the first time anyone had given Owen this type of exam. He did not receive a rectal exam at IHS. Tr. 70. Dr. Van Peursem also indicated that Owen dragged his foot. Id. Owen was catheterized at Coteau. Tr. 73. One thousand cubic centimeters (cc's) of urine was removed immediately. Ex. 1, USA 11A. His bladder had a total of 1,200 to 1,500 cc's of urine in it. Ex. 101, USA 86.
Based on these examinations, Dr. Van Peursem suspected L5/S1 nerve injury. Id. She called Dr. Weiffenbach and told him that Owen needed to be evaluated and transferred to MeritCare for an MRI and lumbosacral spine and orthopedic referral. Id.
4. Return to IHS for Ambulance
After Dr. Van Peursem examined Owen, Owen was directed to return to the IHS hospital. Tr. 72. Red Wing drove him from Coteau to the IHS hospital so that Owen could be transported by ambulance to Fargo. Tr. 32. While Owen was waiting to be placed in the ambulance at IHS, Dr. Weiffenbach told Owen that they were getting the paperwork ready for Owen to be transferred to Fargo for emergency surgery. Tr. 80. This was the first time Owen heard Dr. Weiffenbach refer to Owen's situation as an emergency, talk about sending him to Fargo, or talk about Owen needing to have surgery. Tr. 80. The ambulance departed the IHS hospital at 12:48 a.m. on August 2, 2001, and arrived at MeritCare at 2:19 a.m. Ex. 1, USA 114.
After Owen arrived at MeritCare, a series of tests were performed between 3:15 a.m. and 6:45 a.m. Ex. 101, USA 83. An MRI was attempted, but Owen did not fit into the MRI machine. Tr. 103; Ex. 101, USA 87. A CT of Owen's spine showed a lesion at the L4-5 level. Ex. 101, USA 87. Finally, Owen had a myelogram, which showed a complete stenosis of the spinal canal at the L4-5 level. Tr. 162; Ex. 101, USA 87. Upon examination of Owen's motor strength, hip flexion, knee extension, knee flexion, dorsiflexion, big toe dorsiflexion, plantar flexion, and rectal sensation and tone, a neurosurgeon diagnosed Owen as having cauda equina syndrome which was at least thirty-six hours old. Ex. 1, USA 89-USA 90.
Owen had a decompressive laminectomy at L4-5. Tr 162; Ex. 101, USA 95-97. The surgery began at 2:15 p.m. Ex. 101, USA 117. The purpose of this type of surgery is to provide space in the spinal canal and to remove the disc fragment that is bulging into ...