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December 23, 1992

CAROLINE ESFANDIARI, et al., Plaintiffs,

The opinion of the court was delivered by: LOUIS F. OBERDORFER

 This is a medical malpractice action brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. Plaintiffs Caroline Esfandiari and Keith Arnold Weeks are the co-executors of the estate of the late Captain Harold Knox Edwards (U.S. Navy - Retired), who died on October 14, 1990 after a prostate cancer metastasized to his spine and elsewhere. The treatment of the decedent's condition by Army physicians at the Walter Reed Army Medical Center and Andrew Rader Clinic is put in issue by this lawsuit. A bench trial was held on December 1-2, 8, and 21. The following findings of fact and conclusions of law are made pursuant to Federal Rule of Civil Procedure 52.


 A. Treatment During 1986-1987

 On November 5, 1986, Captain Edwards, who was then 78 years of age, visited the Andrew Rader Clinic at Fort Myer, Virginia, complaining of a four-day history of constipation and urinary retention. He was sent to the emergency room at Walter Reed Army Medical Center for further examination. He was diagnosed with a urinary tract infection and referred to the Urology Service.

 Captain Edwards was evaluated by the Urology Service on November 6, 1986. At that time, the Urology Service undertook procedures with the purpose of ruling out urinary tract infection and prostatitis as well as cancer of the prostate. A prostate biopsy and cystoscopy were performed on November 17. The biopsy was negative, but the cystoscopy revealed a one- by two-centimeter bladder tumor. A transurethral resection of the bladder tumor (TURBT) and a transurethral resection of the prostate (TURP) were scheduled for December 1986.

 The TURBT was performed on December 17, 1986. The pathology on the tumor was positive for a papillary transitional cell carcinoma of the bladder. The TURBT procedure completely and finally cured the bladder cancer. Captain Edwards was discharged from the hospital.

 He was readmitted in January 1987. The TURP was performed on January 5, 1987. Pathology of the surgical debris proved positive for extensive, invasive moderate to poorly differentiated adenocarcinoma consistent with prostatic primary. The "moderate to poorly differentiated" classification indicated that the cancer lesion was more aggressive than a well-differentiated lesion, requiring more aggressive treatment. The stage of the cancer was classified as "A-2," meaning that the cancer had not progressed beyond the prostate, that it was not detectable by simple palpitation, and that the cancer cell count was above the level indicative of a stage A-1 cancer.

 A discharge form dated January 8, 1987 contains the following notation in Captain Edwards' handwriting in a blank captioned "Diet": "Every three months call 576-4117-8 ask appt. with Dr. Bishop or Moul for follow-up on bladder cancer." (Emphasis added). Drs. Jay Bishop and Judd Moul were urologists on the Walter Reed staff.

 Captain Edwards returned to Walter Reed for a follow-up visit to the Urology Service on February 6, 1987. He was seen by Dr. Moul. He noted that the pathology records revealed extensive poorly differentiated cancer of the prostate. Dr. Moul recommended that Captain Edwards undergo a workup to determine whether there was any metastatic disease.

 On March 2, 1987, Captain Edwards' case was presented to Walter Reed's Urology Service Tumor Board. The Tumor Board included Dr. Bishop and Dr. James McNab, a military officer who was Chief of the Radiation Therapy/Oncology Service. The Tumor Board concluded that Captain Edwards had stage A-2 prostate cancer and recommended radiation therapy.

 In early March 1987, soon after the Tumor Board reached its conclusion, Dr. Bishop saw Captain Edwards at Walter Reed, apparently by appointment. Dr. Bishop informed Captain Edwards of his prostate cancer, recommended radiation therapy for the condition, and referred Edwards to Dr. McNab.

 On March 11, 1987, Captain Edwards was seen by Dr. McNab pursuant to Dr. Bishop's referral. Dr. McNab testified in a videotaped deposition that he did not specifically recall any meetings with Captain Edwards or what he had said to Captain Edwards. He did recognize his signature on a form under the heading "Consultation Report." On the form he had written:

 Patient seen and examined. Counseled extensively regarding nature of his malignancy and role of radiation in its management. At this point in time patient does not desire any further medical treatment for his prostate. He is content to delay treatment until he becomes symptomatic.

 Dr. McNab stated that his typical consultation was one to two hours in length. When asked what advice he gave to Captain Edwards during the March 1987 consultation, Dr. McNab stated:

 I can't tell from the medical records. As a matter of practice, I always give patients the choice of observation as an option in treatment. For treatment of early stage prostate cancer, there are multiple approaches. Radiation is only one of these. Alternatives include radical prostatectomy, castration, ...

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