United States District Court, D. Columbia
September 18, 2005.
STELLA & JOHN SCHAUFFERT, Plaintiffs,
UNITED STATES OF AMERICA, Defendants.
The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge
Plaintiffs brought this medical malpractice action against
Defendant United States of America pursuant to the Federal Tort
Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2671 et seq.,
based upon the alleged negligent acts and omissions of military
personnel and staff physicians employed by the United States of
America at Walter Reed Medical Center ("Walter Reed") in
Washington, D.C. Pursuant to the terms of the FTCA, which does
not provide for a jury trial, a three-day bench trial commenced
on October 26, 2004, continued on October 27, 2004, and concluded
on October 29, 2004. This Memorandum Opinion details the Court's
findings of fact and conclusions of law, as required by Federal
Rule of Civil Procedure 52(a). See Fed.R.Civ.P. 52(a) ("In
all actions tried upon the facts without a jury . . . the court
shall find the facts specially and state separately its
conclusions of law thereon"); see also 28 U.S.C. § 2402. Venue
is appropriate pursuant to 28 U.S.C. § 1391(b)(2) because the
acts of negligence and omission alleged in the Complaint took
place at Walter Reed, which is located within the District of
Columbia. Plaintiffs exhausted their administrative appeals as
required by 28 U.S.C. § 2675(a). Based upon the credible evidence adduced at trial and all
reasonable inferences to be drawn from the testimony of the
witnesses and the documentary evidence in the case, the Court
concludes that the physicians employed by Defendant at Walter
Reed (1) properly obtained Ms. Schauffert's informed consent
before performing surgery on her, and (2) met the standard care
of reasonably prudent practitioners in the District of Columbia
acting under the same or similar circumstances in providing care
to Mrs. Schauffert. As such, pursuant to Federal Rule of Civil
Procedure 58, the Court shall enter judgment in favor of
Defendant and shall dismiss this action with prejudice.
I: PRELIMINARY FINDINGS OF FACT
At trial, Plaintiffs narrowed the claims originally forwarded
in their Complaint to essentially an action seeking to recover
for a failure by the relevant physicians to obtain her informed
consent when conducting an operation on Mrs. Schauffert that
ultimately constituted a bilateral salpingo-oophorectomy and
total abdominal hysterectomy, which involved the complete removal
of Mrs. Schauffert's ovaries, fallopian tubes, and uterus.
Essentially, Plaintiffs assert that (1) the physicians at Walter
Reed failed to inform Mrs. Schauffert of the nature of the
operative plan, 10/27/04 Tr. at 173:12-20, and (2) failed in
their duty to inform her of the option to retain as much ovarian
tissue as possible, id. at 163:24-25, 164:1-6, 166:14-167:25.
After listening to the testimony in the case, reviewing the
evidentiary record, personally observing the demeanor and
credibility of the witnesses, and making all reasonable
inferences to be drawn therefrom, the Court sets forth the
following findings of fact. A. Undisputed/Uncontroverted Facts
1. Plaintiff Stella Schauffert is the spouse of Plaintiff John
Schauffert, a retired Air Force Lieutenant Colonel who was
stationed in Naples, Italy in July 1999. 10/27/05 Tr. at
177:2-20. While on active duty in the Air Force, Lieutenant
Colonel Schauffert was a military policeman and served as a
commander of military police units during four (4) of his
military assignments. Id. at 193-94.
2. While Mrs. Schauffert's native language is Italian, she
began studying English when she was eleven (11) years-old, has
lived in the United States for significant periods of time since
she was twenty-six (26) years-old, and is fluent in English.
10/26/07(a) Tr. at 28:5-6, 20.*fn1 Prior to marrying her
husband, Lt. Col. John Schauffert, Mrs. Schauffert received
formal legal training in Italy. J. Tr. Ex. 24 at 26. Mrs.
Schauffert and her husband have been married to each other three
(3) times extending over a period of roughly twenty (20) years.
10/26/04(a) Tr. at 21:21-23.
The Discovery of Mrs. Schauffert's Medical Issues
3. In early May 1999, Mrs. Schauffert experienced excruciating
pelvic pain after intercourse. Her pain was so intense that her
husband had to pick her up and carry her to the car, and then
carry her into the emergency room of the United States Naval
Hospital in Naples, Italy. 10/27/04 Tr. at 199:3-7; J. Tr. Ex. 9
at 3-6. At the time of her admission, Mrs. Schauffert was forty
years-old (40), had an eighteen (18) year-old son by her husband,
and did not intend to have any further children. 10/26/04(a) at 31:12-15; J. Tr. Ex. 1
(Treatment Record Cover); J. Pre-Tr. Stmt., J. Undisputed Fact
#1. Upon examination, her attending physicians believed that Mrs.
Schauffert was suffering from Pelvic Inflammatory Disease ("PID")
and prescribed an antibiotic treatment regimen for that
condition. J. Tr. Ex. 9 at 3.
4. Mrs. Schauffert was given a referral that ultimately led to
an appointment with Dr. Lauren Bales, an Obstetrician and
Gynecologist ("OB/GYN") at the Navy clinic in Naples, Italy.
Id. On June 24, 1999, Mrs. Schauffert underwent an ultrasound
of her pelvic area. Id. at 7. When Mrs. Schauffert met with Dr.
Bales to discuss the results of the ultrasound on July 6, 1999,
it was revealed that the ultrasound detected a mass on Mrs.
Schauffert's right ovary. Id. at 1, 7. Dr. Bales described the
mass as a "large complex cystic mass," measuring 5.6 × 4.1 ×
7.1 cm, with septations i.e., the mass had compartments or
walls within the cyst. Id. at 7. At the time, Dr. Bales
believed that it was likely that Mrs. Schauffert was suffering
from a complex hemorrhagic cyst. Id. at 1; J. Pre-Tr. Stmt., J.
Undisputed Fact #4.
5. Dr. Bales ordered a CA-125 blood test for Mrs. Schauffert in
order to test for cancer markers and ascertain whether the cystic
mass may be cancerous. Mrs. Schauffert's test received a score of
46, which is considered an "elevated" score. J. Tr. Ex. 9 at 8;
J. Pre-Tr. Stmt., J. Undisputed Fact #5. Based on her
examination, symptoms, ultrasound, and CA-125 findings, Dr. Bales
informed Mrs. Schauffert that she had a small chance of having
cancer. J. Tr. Ex. 9 at 1; J. Pre-Tr. Stmt., J. Undisputed Fact
#7. Plaintiffs' expert, Dr. Charles Seigel, testified in his
trial deposition that the percentage chance of a forty (40)
year-old woman with a complex ovarian cyst having cancer is
approximately thirty percent (30%). J. Tr. Ex. 20 (Seigel Dep.)
at 54:10-13; J. Pre-Tr. Stmt., J. Undisputed Fact #11. 6. Despite her belief that Mrs. Schauffert had a relatively
small chance of having cancer, Dr. Bales suggested that Mrs.
Schauffert have surgery due to the presence of pain and
laboratory abnormalities. J. Tr. Ex. 9 at 1; 10/29/04 Tr. at
20:12-15. Dr. Bales also counseled Mrs. Schauffert on the option
of follow-up and close observation without surgical intervention,
but did not recommend it. J. Tr. Ex. 9 at 8; 10/26/04(b) Tr. at
48:22-24. Dr. Bales told Mrs. Schauffert that surgery would
entail the removal of the right ovary and an evaluation of the
left ovary. 10/29/04 Tr. at 20:16-19. Dr. Bales did not inform
Mrs. Schauffert that she would attempt to remove the cyst from
the right ovary and allow her to retain as much tissue as
possible because Dr. Bales did not consider that course of action
to be a medically viable option within the standard of care.
Id. at 20:20-21:2.
7. During discussions with Dr. Bales, Mrs. Schauffert asked
several questions regarding what the planned surgery entailed,
and agreed to undergo the proposed surgery. Id. at 21:5-10. As
such, Mrs. Schauffert left Dr. Bales's office on July 6, 1999
with the understanding that she was going to have surgery,
10/26/04(a) Tr. at 58:7-10, and surgery was scheduled for a later
point in July 1999 at the Naples hospital, id. at 48:17-19,
49:1-9. However, Mrs. Schauffert ultimately decided against
having surgery at the Naples facility due to its relatively small
size and the fact that it was not staffed with OB/GYN
oncologists. Id. at 59:6-13.
Travel to Walter Reed Army Medical Center in the United
8. As an alternative, Mrs. Schauffert chose to travel to Walter
Reed Army Medical Center in Washington, D.C., where gynecologic
oncologists would be available to conduct her surgery. Id. Mrs.
Schauffert was flown via medical evacuation at government expense
to Walter Reed. Id. at 59:1-18, 62:3-9; J. Tr. Ex. 4 at 29.
Prior to her flight, Dr. Bales contacted Dr. Michael Sundborg, the Gynecological Oncology Fellow at Walter
Reed, to discuss Mrs. Schauffert's treatment and to ensure that
Walter Reed would receive her. J. Tr. Ex. 9 at 8; J. Tr. Ex. 4 at
30. Mrs. Schauffert also spoke to Dr. Sundborg on the telephone
regarding her treatment and the plans for her evacuation to
Walter Reed. 10/26/04(b) Tr. at 62:14-25. Prior to her arrival at
Walter Reed, Mrs. Schauffert conducted research and reviewed the
medical literature concerning her condition, and considered
herself "educated" on the issues surrounding her surgery. J. Tr.
Ex. 2 at 31:1-25.
The July 20, 1999 Examination and Counseling Session
9. Mrs. Schauffert arrived at Walter Reed on July 20, 1999, and
met with Dr. Jay Carlson, an experienced, well-published,
board-certified gynecologic oncologist, J. Tr. Ex. 15 at 4, and
Dr. Shad Deering, a resident in his third year of his OB/GYN
rotation, 10/29/04 Tr. at 45:8-10. See 10/26/04(b) Tr. at
63:1-25. Drs. Carlson and Deering performed a physical
examination of Mrs. Schauffert, which included a pelvic vaginal
ultrasound. 10/29/04 Tr. at 53:7-12. Dr. Remenga, another
board-certified gynecological oncologist, was also present for
the examination and signed off on the report of the physical
examination. The ultrasound revealed that Mrs. Schauffert now had
bilateral complex adnexal masses, both with septations. J. Tr.
Ex. 1 at 11. The left cyst was estimated to be 5.2 × 4.3 cm, and
the right cyst was estimated to be 5.6 × 3.1. cm. Id.
Moreover, the ultrasound revealed a small 1.6 cm polyp on the
interior posterior of the uterus. Id.
10. The Walter Reed physicians considered the fact that the
ultrasound showed two (2) ovarian cysts to be very significant,
as the previous ultrasound conducted by Dr. Bales in Italy
had revealed only one complex cyst. 10/27/04 Tr. at 56:23, 57:6;
J. Tr. Ex. 20, Seigel Dep. at 26:23, 27:1-5. The presence of bilateral masses is an indicator
for cancer. 10/27/04 Tr. at 108:4-17. Upon conclusion of this
examination, Drs. Carlson, Deering, and Remenga had a discussion
with Mrs. Schauffert regarding the examination results and
possible courses of treatment at roughly 10:00 a.m. that day,
i.e., July 20, 1999. Id. at 57:23, 58:6. During this
discussion, which was led by Dr. Remenga in Walter Reed's OB/GYN
clinic, id. at 96:13-25, 97:1-22, Mrs. Schauffert was informed
that her evaluation revealed that she had bilateral adnexal
masses whose appearance suggested a possible ovarian malignant
neoplasm. J. Tr. Ex. 1 at 9-10. Mrs. Schauffert was also told
that she had a suspicious mass in her uterus that was evaluated
on sonohysterogram. 10/26/04(b) Tr. at 67:13-15.
11. Mrs. Schauffert was informed that, based on the examination
findings, her age, and an elevation in her CA-125 count, there
was a thirty percent (30%) risk that she had cancer. 10/26/04(b)
Tr. 67:21-24. Mrs. Schauffert was very scared at the prospect of
having cancer. Id. at 68:12-14. The physicians inquired as to
whether Mrs. Schauffert planned on having more children, and were
told by her that she did not plan on any future pregnancies.
10/27/04 Tr. at 59:18-21.
12. Given their findings and Mrs. Schauffert's age, CA-125
count, and desire for no further children, the physicians
discussed several courses of treatment with Mrs. Schauffert.
10/27/04 Tr. at 59:22, 60:8. Mrs. Schauffert was not on any
medication at the time of this counseling. 10/26/04(b) Tr. at
89:2-6. Three options were discussed at length. 10/29/04 Tr.
59:11-60:8, 98:4-11; J. Tr. Ex. 1, 17, 86; J. Pre-Tr. Stmt., J.
Undisputed Fact #13. First, Mrs. Schauffert and the physicians
discussed the possibility of close physician follow-up and
monitoring, which would have entailed serial ultrasounds,
examinations, and possible therapy with tumor markers. 10/27/04 Tr. at 59:25, 60:2. Mrs. Schauffert
rejected this option, as it could not guarantee that she would be
free of cancer. 10/26/04(b) Tr. at 76:17-23. Second, because
Mrs. Schauffert had a suspicious mass inside her uterus, the
physicians discussed with her the option of having a
hysteroscopy, using a transvaginal approach. 10/27/04 Tr. at
60:3-5. This approach would allow the surgeon to look inside the
uterine cavity, evaluate the uterine mass, potentially remove it
and see if that was a focus of cancer, and then perform an
abdominal procedure to evaluate the ovaries. Id. Mrs.
Schauffert rejected this option as well. Id. at 61:9-14.
Third, the physicians discussed with Mrs. Schauffert the option
of (1) a laparotomy, which is an abdominal incision, to remove
any visible tumors, (2) with an abdominal hysterectomy, which was
explained as the total removal of the uterus, (3) and also with a
bilateral salpingo-oopherectomy, which was explained as the total
removal of both ovaries and associated tubes, and (4) possibly a
staging procedure to see if the cancer had spread, with the
addition of chemotherapy-radiation as needed. 10/27/04 Tr. at
61:18-23, 66:6-19, J. Tr. Ex. 1 at 17.
13. Upon discussion with Mrs. Schauffert, the physicians at
Walter Reed believed that she had selected the third option. As
such, on 3:20 p.m. that day July 20, 1999 Dr. Deering
presented Mrs. Schauffert with a form entitled "A Request for
Administration of Anesthesia and for Performance of Operations
and Other Procedures." J. Tr. Ex. 11. On this "consent" form, Dr.
Deering outlined the planned surgical procedure in detail. Id.
In the block entitled "Operation and Procedure," Dr. Deering
wrote "exploratory laparotomy, bilateral salpingo-oopherectomy,
total abdominal hysterectomy, possible staging operation." Id.
In the section labeled "Statement of Request," Dr. Deering wrote:
"To make incisions in the abdomen to evaluate and remove one or
both ovaries/the mass/possibly uterus/fallopian tubes/lymph
nodes/omentum/pelvic washings." Id. The form continued: "Risks to include
bleeding/transfusion/damage to other organs with need for more
surgery/infection." Id. Dr. Deering also wrote that the
operating team was to include Drs. Deering, Rose, and Remenga.
Id. Below the section filled out by Dr. Deering, a block reads:
"I understand the nature of the proposed procedure(s), attendant
risks involved, and expected results, as described above, and
hereby request such procedure(s) be performed." Id. In this
section, Mrs. Schauffert signed her name in the presence of a
witness after reading the entire contents of the form. Id.
The July 21, 1999 Counseling Session and Operation
14. The next day July 21, 1999 Mrs. Schauffert was examined
by Dr. Cynthia Macri, the United States Navy's Senior Gynecologic
Oncologist at Walter Reed and a board-certified OB/GYN
oncologist. J. Tr. Ex. 12. Dr. Macri was going to be the
operating surgeon on Mrs. Schauffert. Id. With Dr. Deering
present, id., 10/26/04(b) Tr. at 89:7-12, Dr. Macri discussed
the nature of the surgery with Mrs. Schauffert, who indicated
that she wanted and consented to the procedure discussed the
previous day. J. Tr. Ex. 12; 10/27/04 Tr. at 11-12. Mrs.
Schauffert's only concern during this counseling session was
whether her surgery necessitated a horizontal rather than
vertical incision Mrs. Schauffert desired a horizontal scar for
cosmetic reasons. J. Tr. Ex. 1 at 19; 10/27/04 Tr. at 140-46.
15. Immediately after this conversation, Dr. Macri made the
following entry in Mrs. Schauffert's medical records: "40
year-old with bilateral complex adnexal masses, and elevated
CA-125. I have discussed with her the possibility of cancer,
given the complex nature of her adnexal masses. I have discussed
vertical midline decision and need for adequate exposure for
possible surgical staging, risks and benefits discussed. Patient
voiced understanding, although apprehensive, and desires to proceed as planned." Jt. Tr. Ex. 1
at 19; 10/27/04 Tr. at 141.
16. Due to the change in Mrs. Schauffert's surgical team from
Drs. Deering, Rose, and Remenga to Drs. Deering, Macri, Sundborg,
and Ochoa, a second consent form was required. J. Tr. Ex. 11, 12;
10/29/04 Tr. at 74:22, 75:1. Mrs. Schauffert was provided a
second consent form before her surgery on July 21, 2004, which
read on the first handwritten line: "Exploratory Laparotomy/Total
Abdominal Hysterectomy/Bilateral Salpingo-oophorectomy with
possible staging." J. Tr. Ex. 12. The form also reads: "plan is
to remove uterus, fallopian tubes, ovaries, the mass, and
possibly lymph nodes, and any other involved tissue or organs."
Id. Mrs. Schauffert signed this consent form. Id.
17. At trial, Mrs. Schauffert admitted that she read the
description of the surgical plan as provided on the July 21, 1999
consent form. 10/26/04(b) Tr. at 89:18-22. She also testified
that she remembered reading the entire contents of this form and
signing the consent. Id. at 90:1-3. Moreover, she admitted at
trial that she consented to the surgery and surgical plan as
detailed on the consent form when she signed the consent form.
See 10/26/04(b) Tr. at 90:4-15, 11:15 (Q: "And by signing [the
second consent form], did you consent to having your ovaries and
uterus removed?"; A: "It is a consent form, yes."; Q: "Did you
consent when you signed this form? [The second consent form]?";
18. Plaintiff's expert, Dr. Charles J. Seigel, in his trial
deposition, testified that the two consent forms provided to Mrs.
Schauffert appropriately described the procedure that took place,
and that he would not have written them any differently. J. Tr.
Ex. 20 (Seigel Dep.) at 55:16-20, 56:9-23. 19. Mrs. Schauffert never asked or expressed a desire to have
as little ovarian or reproductive tissue removed as possible.
10/26/04(b) Tr. at 77:25, 78:13.
20. On July 21, 1999, Dr. Deering under the supervision of
Dr. Macri performed the exploratory laparotomy. J. Tr. Ex. 1 at
86. Upon opening the abdomen, Dr. Deering observed that Mrs.
Schauffert's left ovary had a large hemorrhagic cyst, which was
apparently ruptured; however, there was no way to ascertain the
degree or extent of the rupture. J. Tr. Ex. 1 at 87; 10/27/04 Tr.
at 161:17-21; J. Pre-Tr. Stmt., J. Undisputed Fact #14. The left
ovary was removed and tested for malignancy. J. Tr. Ex. 1 at 87.
The pathology report concerning the left ovary revealed, upon
cross-sectioning, a 1 cm cyst. Id. at 74. This 1 cm cyst was a
separate and distinct cyst from the ruptured large hemorrhagic
cyst that Dr. Deering visually observed and was contained within
the remainder of the left ovary, which was removed and sent for
testing. 10/27/04 Tr. at 164:24-25, 165:1-2; 10/29/04 Tr. at
118:20-25, 119:1-7. Mrs. Schauffert's right ovary also contained
a hemorrhagic cyst that was green in appearance, surrounded by
fibrous tissue, and adhered to the abdominal wall. J. Tr. Ex. 1
at 86-87. The right ovary was also removed and then tested for
malignancy. Id. The tissue from both the left and right ovaries
were determined to be benign based on the pathology reports.
Id. at 74. The surgical team ultimately performed a bilateral
salpingo-oophorectomy and total abdominal hysterectomy, which
involved the complete removal of Mrs. Schauffert's ovaries,
fallopian tubes, and uterus. Id. at 86-87.
After the Operation
21. After she recovered from the surgery and was discharged
from Walter Reed, Mrs. Schauffert met with Dr. Deering. 10/27/04
Tr. at 83:8-25, 84-86. At this meeting, Mrs. Schauffert's only
complaint was that the scar from her abdominal incision was not
straight, as it was skewed approximately 3-4 millimeters at the inferior edge.
Id. at 88:4-23; see also 10/24/04(b) Tr. at 6:8-25 (Mrs.
Schauffert admits during trial that her only complaint to Dr.
Deering after surgery was the alignment of her scar). Mrs.
Schauffert was quite upset that her scar was not straight, and
voiced her desire to have a plastic surgeon fix the scar. Id.
Her complaint regarding the scar is noted in visits to her
doctors in October-December 1999. Id. Mrs. Schauffert did not
complain to Dr. Deering about the removal of both of her ovaries.
22. Between August 1999 and June 19, 2000, Mrs. Schauffert had
at least eighteen (18) documented discussions with her primary
physician and primary care providers. None of her medical records
from this period indicate that she raised any complaint about her
claimed non-consent to the removal of her ovaries. Rather, the
first time Mrs. Schauffert's complaint about the removal of her
ovaries is noted in her medical records is on June 19, 2000
eleven (11) months after her surgery. J. Tr. Ex. 5 at 93. Mrs.
Schauffert testified that she did not make any complaints to
medical personnel regarding her surgery because she was told by
her husband, then an active-duty officer in the military, that
she could not sue his employer i.e., the United States
government. 10/26/04(b) Tr. at 6:3-5, 7:6-9. Her husband, John
Schauffert, testified that he was familiar with the mechanisms
for initiating complaints and investigations within the military;
however, at no time did he make any official complaint regarding
the conduct of the surgery in this case. 10/29/04 Tr. at
23. Mrs. Schauffert has been diagnosed as a "hypochondriac."
10/27/04 Tr. at 34:23-25, 35. She has also been diagnosed as
displaying "obsessive-compulsive" symptoms. J. Tr. Ex. 24 at 22.
Plaintiff has experienced problems with short-term memory loss as
early as 2001, 10/27/04 Tr. at 37:7-25, J. Tr. Ex. 24 at 23, and
testified that it is difficult for her to separate what she knows now from what happened at the time of the surgery.
10/26/04(b) Tr. at 52:19-25; 10/27/04 at 30:3-8. Mrs.
Schauffert's psychiatrist Dr. Habib Nathan made an entry in
her psychiatric records opining: "[T]his unexpected hysterectomy
is becoming a legal issue between patient and military doctors
and patient may hold onto symptoms for secondary gain." J. Tr.
Ex. 24 at 20.
24. After her surgery, which removed both of her ovaries, both
fallopian tubes, and her uterus, Mrs. Schauffert experienced a
number of side effects from the hormone therapy treatment on
which she was placed. Specifically, she testified that (1) the
frequency and quality of her sexual intercourse with her husband
has greatly decreased, see Pls.' Suppl. Proposed Findings of
Fact at 14, ¶ 54; and she suffers from (2) vaginal dryness, id.
at 14, ¶ 55; (3) pelvic pain, id. at 14, ¶ 56; (4) hot flashes
and night sweats, id. at 14, ¶ 57; and (5) a blunting of
emotions and alternatively feelings of depression,
irritability, and anger, id. at 15, ¶ 58. Moreover, she (1)
fears that she will develop complications relating to the hormone
replacement therapy required, and (2) has suffered mental and
emotional anguish from the loss of her reproductive organs. Id.
at 15, ¶¶ 60, 62. Finally, her husband John Schauffert notes
that he has suffered the loss of his wife's affections, society,
sexual relations, services, and companionship after the surgery.
Id. at 16, ¶ 63.
25. In describing the effects of her surgery and the hormone
treatment, Mrs. Schauffert testified that she believes that she
experienced the equivalent of "female castration." 10/26/04(b)
Tr. at 13:4-5. According to Mrs. Schauffert, "My life has changed
for the worse. Sometimes I wish I had cancer." Id. at
12:25-13:1. Mrs. Schauffert noted that she feels "diminished. I
feel like my life is over. I don't consider I didn't consider
myself old, and now I do feel very old, inadequate and an it. Not a he; not a she. An it." Id. at
B. Disputed/Controverted Facts
1. After Mrs. Schauffert's evaluation on July 20, 1999, her
physicians Drs. Carlson, Deering, and Remenga discussed
possible options with her. According to Defendant, as to the
third option discussed, i.e., "exploratory laparotomy/total
abdominal hysterectomy/bilateral salingo-oophorectomy with
possible staging," Mrs. Schauffert was informed that under this
option, the physicians would remove her uterus and ovaries and
send them for testing during the operation to determine if there
were malignant cells present. If cancerous cells were found, they
would then conduct the staging procedure, which would entail the
systematic removal and dissection of lymph nodes to ascertain
whether the cancer had spread. It could include an omentectomy
and bowel resections depending upon the location and extent of
the tumor. See Def.'s Suppl. Proposed Findings of Fact at 6-7,
¶ 15 (citing J. Tr. Ex. 11 & 12; 10/26/04(b) Tr. at 89:18, 90:15;
10/29/04 Tr. at 63:10-15). As such, Defendant claims that "Mrs.
Schauffert agreed to have both of her ovaries, fallopian tubes,
adnexa, and her uterus completely removed and then to have a
staging procedure if there was any evidence of malignancy." Id.
at 7, ¶ 16.
2. In contrast, Mrs. Schauffert contends that the Walter Reed
physicians "negligently failed to inform" her that "her
reproductive organs would be removed . . . as a consequence of
determining whether she was suffering from a cancerous
condition." See Pls.' Suppl. Proposed Findings of Fact at 5, ¶
16 (citing 10/26/04(a) Tr. at 48:3-49:10, 61:25-62:21). According
to Plaintiffs, "[i]t was Mrs. Schauffert's belief, albeit an
incorrect one, that during the July 21, 1999 surgery her
reproductive organs were to be biopsied in place to determine if
she were suffering from a cancerous conidtion." Id. at 5-6, ¶ 18 (citing
10/26/04(a) Tr. at 48:3-49:10, 56:4-13; 10/27/04 Tr. at 29:2-23).
Underlying Mrs. Schauffert's belief that her reproductive organs
could be biopsied in place was her prior experience with breast
biopsies and the counseling that she received in Italy concerning
cystectomy procedures. Id. at 6, ¶ 19 (citing 10/26/04(a) Tr.
at 35:2-8, 36:8-11, 37:1-9, 56:14-57:25; 10/26/04(b) Tr.
23:18-24; 10/27/04 Tr. at 29:2-14, 31:1-32:1). Mrs. Schauffert
claims that she believed "that none of her reproductive organs
would be removed if intra-operative testing indicated that she
did not have cancer." Id. at 6, ¶ 21 (citing 10/26/04(a) Tr. at
48:3-49:10, 56:4-13, 61:25-62:21; 10/26/04(b) Tr. at 73:3-14).
According to Mrs. Schauffert, "[t]his belief was not corrected by
the physicians at [Walter Reed] because they failed to explain
the plan of surgery and operative procedure to Mrs. Schauffert in
reasonably sufficient detail." Id. at 6, ¶ 20 (citing
10/26/04(a) Tr. 48:3-49:10). Moreover, she stresses that the
Walter Reed physicians failed to apprise her of "alternative
courses of surgical treatment." Id. at 10, ¶ 34.
3. Mrs. Schauffert attacks the adequacy of her pre-operative
counseling at Walter Reed, noting that neither Dr. Jay Carlson
nor Dr. Cynthia Macri at the time of trial had any memory of
counseling her, or had any memory of her as a patient. Id. at
8, ¶ 26 (citing Carlson Dep. at 60:21-61:11; 10/27/04 Tr.
48:22-49:5, 133:1-2, 139:20-25). She also stresses that Dr. Shad
Deering, the only other witness besides herself who claims to
remember the pre-operative counseling session, was not
responsible for the counseling and was unsure about the identity
of the physician who actually conducted the counseling. Id. at
8-9, ¶ 27.
4. Mrs. Schauffert contends that she signed the second consent
form, i.e., the July 21, 1999 form, "not because the proposed
operation had changed or because Mrs. Schauffert was provided with additional counseling, but because of
administrative procedures at [Walter Reed]." Id. at 9, ¶ 30
(citing various segments of testimony by Mrs. Schauffert). She
claims that this form was presented to her "shortly before
surgery, and when she raised questions about the different
wording, she was assured that the changes were not significant."
Id. at 9-10, ¶ 31 (same). While she recognizes that the
surgical consent forms that she signed "undeniably address? the
type of surgery that was performed" on her, she contends that
these forms "do not replace proper pre-surgical patient
counseling and do not absolve the [Walter Reed] physicians of the
duty to explain the nature, extent and effects of a proposed
surgery." Id. at 10, ¶ 32.
5. Ultimately, Mrs. Schauffert claims that "had she been
counseled that the proposed surgical procedure would result in
the removal of her reproductive organs, in order to determine if
she was suffering from a cancerous condition, she would have
declined to consent to the proposed surgery." Id. at 10, ¶ 33
(citing 10/26/04(a) Tr. at 49:11-50:7, 51:7-19; 10/26/04(b) Tr.
at 83:2-7). She emphasizes that given her age, CA-125 level, and
symptomatology, she should have been provided with the option of
requesting that the operating physicians preserve as many of her
reproductive organs as possible while still determining with a
reasonable (if not absolute) degree of confidence that she was
not suffering from a cancerous condition. Id. at 11-12, ¶ 42
(citing Seigel Dep. at 27:17-34:15).
Medically Viable Options Within the Standard of Care During
6. Mrs. Schauffert takes issue with the "inevitability" of
certain decisions made during her surgery. She asserts that
"complete removal of her reproductive organs, followed by
intra-operative pathology, was not the only reasonable operative
treatment course that should have been made available" to her.
Id. at 11, ¶ 35 (citing Seigel Dep. at 34:16-35:23). Mrs. Schauffert's theory is based on the testimony of her expert, Dr.
Charles J. Seigel, who was board-certified as an gynecologist by
the American Board of Obstetrics and Gynecology in 1976 but who
is not an oncologist, has never lectured on gynecological
oncology, and has authored only two articles published more
than thirty (30) years ago that were unrelated to the issues of
this case. See J. Tr. Ex. 20 (Seigel Dep.) at 9:9-14, 14:7-8,
7. Plaintiffs contend that under the circumstances of Mrs.
Schauffert's surgery, "tissue from the left ovarian mass and the
entire right ovary could have been removed for intra-operative
pathology." See Pls.' Suppl. Proposed Findings of Fact at 12, ¶
46 (citing Seigel Dep. at 32:6-16). According to Dr. Seigel, "as
long as the mass is ruptured, as long as there are no other
suspicious looking areas on that same ovary, if there are no
other locales or compartments of fluid, and the ovary basically
looks normal, you can at least biopsy or remove a section of that
mass that ruptures and do pathology on that." J. Tr. Ex. 20
(Seigel Dep.) at 32:10-16. "Because intra-operative pathology
would have indicated a benign condition and because other
operative findings were consistent with a benign condition, the
operating physicians could have reasonably allowed Mrs.
Schauffert to retain her left ovary, left fallopian tube, and
uterus." See Pls.' Suppl. Proposed Findings of Fact at 13, ¶ 47
(citing Seigel Dep. at 38:3-40:17). Had this occurred, and Mrs.
Schauffert retained these organs, it would not have been
necessary to place Mrs. Schauffert on hormone replacement therapy
("HRT"). Id. at 13, ¶ 48 (citing Seigel Dep. at 39:11-40:17).
The failure to take this step has arguably caused Mrs. Schauffert
to feel like a victim of "female castration," id. at 14, ¶ 52
(citing 10/26/04(b) Tr. at 12:20-13:8), and caused the numerous
other damages described. 8. Defendant attacks Plaintiffs' theories regarding the
medically viable options for a patient with Mrs. Schauffert's
condition that fall within the standard of care in three ways.
First, Defendant attempts to refute the testimony of
Plaintiffs' expert, Dr. Seigel, with the testimony of Drs. Macri,
Carlson, and Barter, all of whom are gynecologic-oncologists and
experts in this specialized field. These three doctors uniformly
testified that it is not within the standard of care to conduct
an intra-operative biopsy of ovarian tissue, regardless of
whether it is ruptured or un-ruptured, because it is impossible
to ascertain with any degree of medical certainty whether the
ovarian tissue left in the body contains lingering malignant
cells. 10/29/04 Tr. at 111:1-21; J. Tr. Ex. 21 (Carlson Dep.) at
37-38, 42:1-21. Additionally, these doctors testified that an
intra-operative, in situ ovarian biopsy would expose the
patient to an unacceptable risk of accidentally rupturing a
cancerous cyst and spilling the contents into the peritoneal
cavity, increasing the patient's cancer staging and possibly
spreading the cancer. 10/27/04 Tr. at 113:14-25, 114:121;
10/29/04 Tr. at 111:1-21.
9. Second, Defendant attacks the credentials of Dr. Seigel.
Defendant emphasizes that Dr. Seigel (1) is not an oncologist,
(2) has never lectured on gynecologic oncology, and (3) has only
published two articles, which were entirely unrelated to the
issues involving in this case. See Def.'s Suppl. Proposed
Findings of Fact at 21, ¶ 27. Defendant notes that Dr. Seigel, in
his trial deposition, stated that he thought obstetrical
oncologists were better equipped to diagnose the risk of leaving
or not leaving a cyst in the body during a surgery. Id. at
21-22, ¶ 28 (citing J. Tr. Ex. 20 (Seigel Dep.) at 60:3-12).
Indeed, Dr. Seigel admitted that "I would defer to them [i.e.,
oncologists] in the present day and age as opposed to 35 years
ago when I was doing it myself." J. Tr. Ex. (Seigel Dep.) at
60:4-17. According to Dr. Seigel, "my techniques are a lot older now." Id. at 47:14. When asked if Mrs. Schauffert was the
type of patient that he would see in his practice, Dr. Seigel
stated, "I would possibly, okay. It could be probably. . . ."
Id. at 17:13-15. Moreover, he stated that he would "most
likely" consult with an obstetric oncologist before feeling
comfortable in handling a patient with symptoms identical to
those of Mrs. Schauffert. Id. at 18:12-15, 51:17-7. Dr. Seigel
conceded a certain level of uncertainty in his opinions, as when
he was asked (1) if the standards of care varied from state to
state, (2) if his opinions involved any novel or unusual issues,
and (3) if there was a different standard that would apply to a
gynecologic oncologist advising a patient like Mrs. Schauffert,
Dr. Seigel responded each time, "I don't think so." Id. at
10. Third, Defendant attempts to show how Dr. Seigel's
testimony is ultimately supportive of the testimony offered by
Drs. Macri, Carlson, and Barter. When questioned, Dr. Seigel
explicitly agreed that the two consent forms provided to Mrs.
Schauffert appropriately described the procedure that took place,
and that he would not have written them any differently. Id. at
55:16-20, 56:9-23. He also noted that the best course of action
for the doctors during the surgery was to remove the right
non-ruptured cyst and ovary to avoid the risk of spillage from a
malignant cyst. Id. at 32:6-24. Moreover, he also testified
that if the left ovary had a remaining cyst, as indicated by the
laboratory reports in this case, then removal of the entire left
ovary was also appropriate. Id. at 35:15-20, 57:17-22, 65:6-24,
81:4-15. Finally, he agreed that if Mrs. Schauffert's primary
concern was to be cancer-free, her surgery as done by the
physicians at Walter Reed was the correct course of action, as
the doctors could not have saved either ovary if they were to
obtain a definitive diagnosis of whether she had cancer. Id. II: LEGAL STANDARDS
A. Jurisdiction and the FTCA
Under the FTCA, the Government is liable for the torts of its
employees in the same manner as a private party, see
28 U.S.C. § 2674, and that liability is determined "in accordance with the
law of the place where the act or omission occurred," see
28 U.S.C. § 1346(b); see also Molzof v. United States,
502 U.S. 301, 305, 112 S.Ct. 711, 116 L.Ed.2d 731 (1992). "Law of the
place" requires the court to apply the whole law of the state in
which the alleged negligent acts occurred. Richards v. United
States, 369 U.S. 1, 11, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); see
also Franklin v. United States, 992 F.2d 1492, 1495 (10th Cir.
1993) ("[W]e resolve questions of liability in accordance with
the law of the state where the alleged tortious activity took
place.") (citing Flynn v. United States, 902 F.2d 1524, 1527
(10th Cir. 1990)); Lee v. Flintkoke Co., 593 F.2d 1275, 1278-79
n. 14 (D.C. Cir. 1979). As such, given that the negligent acts or
omissions alleged to have occurred by Plaintiffs in this case
occurred within the District of Columbia, the Court must apply
District of Columbia law.
However, Defendant for the first time in its post-trial
Supplemental Proposed Findings of Fact and Conclusions of Law
asserts that Plaintiffs' claims are not properly before this
Court, as they are barred by the doctrine of sovereign immunity.
See Def.'s Suppl. Proposed Findings of Fact at 14-16, ¶¶ 1-7.
Essentially, Defendant's argument is as follows: while the FTCA
provides jurisdiction to federal courts for claims against the
United States arising out of negligence, the United States
retains sovereign immunity for any "claims arising out of
assault, battery, false arrest, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit or
interference with contract rights." 28 U.S.C. § 2680(h).
Moreover, given its "sweeping language," this exception to the FTCA's general waiver of
sovereign immunity excludes claims that sound in negligence but
"aris[e] out of" an intentional tort. Kugel v. United States,
947 F.2d 1504, 1507 (D.C. Cir. 1991) (quoting United States v.
Shearer, 473 U.S. 52, 55, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985)).
In Kugel, the D.C. Circuit emphasized that "Section 2680(h)
does not merely bar claims for assault or battery; in sweeping
language it excludes any claims that arises out of assault and
battery. We read this provision to cover claims . . . that sound
in negligence but stem from a battery committed by a Government
employee." Id. (citing Shearer, 473 U.S. at 55,
105 S.Ct. 3039). Citing Buckner v. United States, Civ. No. 88-2003 (OG),
1989 U.S. Dist. LEXIS, at *40 n. 19 (D.D.C. July 26, 1989), for
the proposition that when a doctor proceeds with a surgical
procedure or drug treatment without first obtaining the patient's
consent, a battery has occurred, see Def.'s Suppl. Proposed
Findings of Fact at 15, ¶ 6, Defendant argues that Plaintiffs'
"claim of an unconsented [sic] to surgical procedure is not
actionable through the FTCA," id. (citing Jordan v. United
States, 740 F. Supp. 810, 813 (W.D. Okla. 1990) (holding that
battery claims based on failure to obtain consent to a surgical
procedure are barred by Section 2680(h), notwithstanding
10 U.S.C. § 1089(e))).
Upon a review of the relevant case law, it is clear that
Defendant's assertion that Plaintiffs' claim falls outside of the
parameters of the FTCA and is barred by the doctrine of sovereign
immunity is fundamentally without merit. Importantly, as noted in
their opening, Plaintiffs' claim in this case is that Defendant's
physicians "fail[ed] to communicate . . . the operative plan to
Stella Schauffert, and fail[ed] to communicate all of the
surgical options available to her." 10/26/04(a) Tr. at 5:18-23.
As such, Plaintiffs' claim as presented and narrowed at trial
is properly construed as a failure to obtain Mrs. Schauffert's
informed consent. See Cleary v. Group Health Ass'n, Inc., 691 A.2d 148,
155 (D.C. 1997) (informed consent claims involve the nature and
risks of procedure and the nature of available alternatives to
treatment); Crain v. Allison, 443 A.2d 558, 562-63 (D.C. 1982)
(same). "The doctrine of informed consent in this jurisdiction is
essentially a cause of action for negligence focusing on the
physician's duty to disclose material information regarding a
proposed course of medical treatment." Buckner, 1989 U.S. Dist.
LEXIS at *40 n. 19 (citing Canterbury v. Spence, 464 F.2d 772,
787 (D.C. Cir. 1972)); see also Tavakoli-Nouri v. Gunther,
745 A.2d 939, 942 (D.C. 2000) (informed consent cases alleging the
failure to disclose information sound in negligence); Cleary,
691 A.2d at 155 (informed consent claims actionable in
negligence); see also W. Page Keeton, et al., Prosser and
Keeton on the Law of Torts § 18, 120-21 (5th ed. 1984)
(recognizing that considering informed consent cases to arise out
of negligence, and thereby constituting an exception to
traditional common law battery, is now the prevailing view);
61 Am. Jur. 2d Physicians, Surgeons, Etc. §§ 197, 199 (1981)
The Tenth Circuit best describes the difference between a claim
such as Plaintiffs' informed consent claim, which arises out of
negligence, and the type of medical malpractice battery claim
focused on by Defendant:
If treatment is completely unauthorized and performed
without any consent at all, there has been a battery.
However, if the physician obtains a patient's consent
but has breached his duty to inform, the patient has
a cause of action sounding in negligence for failure
to inform the patient of his options, regardless of
the due care exercised at treatment, assuming there
is injury. Franklin v. United States, 992 F.2d 1492, 1496 (10th Cir. 1993)
(citation omitted). This is a vital distinction "[i]f the
negligence theory applies, redress against the government under
the FTCA is available." Id. (citing Haley v. United States,
739 F.2d 1502, 1503, 1506 (10th Cir. 1984); Valdiviez v. United
States, 884 F.2d 196, 198, 199-200 (5th Cir. 1989); Harbeson v.
Parke Davis, Inc., 746 F.2d 517, 521-22 (9th Cir. 1984)).
Plaintiffs' claim clearly falls outside the definition of a
common law battery when considered in this light: Mrs. Schauffert
was clearly competent to consent to an operation, visited Walter
Reed on her own accord to have an operation, and knowingly
consented to at least some kind of treatment and operation; she
simply alleges that she was not fully informed of the details and
parameters of that operation and other possible options. Her
argument plainly consists of a claim that her physicians while
obtaining some level of her consent breached their duty to
adequately inform. Accordingly, her claim arises out of
negligence and falls outside of the reach of Section 2680(h).
Compare with Franklin, 992 F.2d at 1497 (finding a battery
because physicians operated on an incompetent patient without his
wife's substituted consent, but holding that an equivalent of
10 U.S.C. § 1089(e) ensured that the Veterans Administration waived
sovereign immunity). Plaintiffs' claim is therefore actionable
under the FTCA, and the Court possesses the jurisdiction
necessary to resolve this action.*fn3 B. Informed Consent
The plaintiff in a medical malpractice suit must establish by a
preponderance of the evidence: (1) the applicable standard of
care; (2) a deviation from or breach of that standard by the
defendant; and (3) a causal relationship between that deviation
or breach and the plaintiff's injury. See Randall v. United
States, 850 F. Supp. 22, 30 (D.D.C. 1994) (citing Kosberg v.
Washington Hosp. Ctr., 394 F.2d 947, 949 (D.C. Cir. 1968)); see
also Ornoff v. Kuhn & Kogan Chartered, 549 A.2d 728, 731 (D.C.
1988). In order for a plaintiff to meet the required burden of
proof, "[the] plaintiff must affirmatively prove the relevant
recognized standard of care exercised by other physicians and
that defendant departed from that standard when treating the
plaintiff." Robbins v. Footer, 553 F.2d 123, 126 (D.C. Cir.
1977). Importantly, the court must look to the national standard
of care for comparative purposes. See Morrison v. MacNamara,
407 A.2d 555, 564 (D.C. 1979); Capitol Hill Hosp. v. Jones,
532 A.2d 89 (D.C. 1987). To establish proximate cause, "the plaintiff
must present evidence from which a reasonable juror could find
that there was a direct and substantial causal relationship
between defendant's breach of the standard of care and the
plaintiff's injuries and that the injuries were foreseeable."
Psychiatric Inst. of Washington v. Allen, 509 A.2d 619, 624
"Ordinarily, in a medical malpractice case, expert testimony is
required in order to prove the proper standard of care and
causation." Sponaugle v. Pre-Term, Inc., 411 A.2d 366, 368
(D.C. 1980) (citations omitted); Psychiatric Inst.,
509 A.2d at 624. Although there are cases which do not require expert
testimony on the issue of breach, i.e., cases "[w]here laymen can
say, as a matter of common knowledge and observation, that the
type of harm would not ordinarily occur in the absence of
negligence," Harris v. Cafritz Mem'l Hosp., 364 A.2d 135, 137
(D.C. 1976), expert testimony is required "if a case involves the
merits and performance of scientific treatment, complex medical
procedures, or the exercise of professional skill and judgment,
[because] a jury will not be qualified to determine whether there
was unskillful or negligent treatment without the aid of expert
testimony," id.; see also Nimetz v. Cappadona, 596 A.2d 603,
606 (D.C. 1991) (expert testimony is required when "the subject
presented is `so distinctly related to some science, profession,
or occupation as to be beyond the ken of the average layperson'")
(quoting Dist. of Columbia v. Peters, 527 A.2d 1269, 1273 (D.C.
1987)); Canterbury, 464 F.2d at 785-87 (prevailing medical
practice must be considered when medical judgment is at issue;
ordinarily, only the physician is in a position to identify
To establish a prima facie case in an informed consent action,
the plaintiff must show:
1. the doctor failed to inform plaintiff of certain
risks of the medical procedure, Canterbury,
464 F.2d at 785;
2. the undisclosed risks were "material," i.e.[,]
the reasonable person, in what the physician knows or
should know to be the plaintiff's position would be
likely to attach significance to the allegedly
undisclosed risks in deciding to accept or to forego
the proposed treatment, id. at 787;
3. the prudent person, in the plaintiff's position,
would have decided to decline treatment if suitably
informed of all perils bearing significance, id. at
4. the undisclosed risk actually manifested itself
and caused the damage for which plaintiff seeks
recovery, Gordon v. Neviaser, 478 A.2d 292, 296
Blincoe v. Luessenhop, 669 F. Supp. 513, 516 (D.D.C. 1987). "At
trial, the plaintiff bears both the burden of production and the
risk of non-persuasion on these elements." Id. (citing
Canterbury, 464 F.2d at 791). Importantly, a physician is not
required to disclose all risks; rather, only material risks must
be disclosed. See Crain, 443 A.2d at 562 (citations omitted). Additionally, a physician need not advise a patient of risks that
the patient already has actual knowledge. Id. (citations
omitted). "[A]t a minimum, the physician must disclose the nature
of the condition, the nature of the proposed treatment, any
alternative procedures, and the nature and degree of the risks
and benefits inherent in undergoing and in abstaining from the
proposed treatment." Id. (citations omitted). "Consent obtained
without divulging this information is ineffective to grant the
physician permission to institute the proposed treatment." Id.
(citing Scott v. Bradford, 606 P.2d 554, 556-57 (Okla. 1979)).
In order to establish what disclosures are material, expert
testimony is not needed to establish the scope of or the breach
of the duty to inform one's patients before treating them;
however, expert testimony is necessary to establish the nature
and degree of the risks of the proposed and alternate treatments,
the probability of therapeutic success, and whether disclosure
would be detrimental to a particular patient. See id. at 563
(citation omitted). Moreover, while a patient's testimony is
relevant on the issue of causation, the test of causation is
objective: what a prudent person in the patient's position would
have decided if informed of all relevant factors. Id. at 564 n.
14 (citing Canterbury, 464 F.2d at 791); see also Randall,
859 F. Supp. at 31; Wagner v. Georgetown Univ. Med. Ctr.,
768 A.2d 546, 561 & n. 19 (D.C. 2001).
III: DISCUSSION FINAL FINDINGS OF FACT
As evident from the Preliminary Findings of Fact set out in
this Memorandum Opinion, two distinct questions are currently
before the Court, each of which contains some material facts that
are in dispute which require resolution by the Court. Taken in
reverse order, the first issue concerns whether the physicians
employed by Walter Reed met the standard of care of reasonably
prudent practitioners in the District of Columbia acting under
the same or similar circumstances in providing care to Mrs. Schauffert. Under this
issue, the Court shall explore whether Mrs. Schauffert's
physicians could have actually conducted an operation within the
standard of care if her doctors followed the procedures she now
proposes i.e., an intra-operative, in situ biopsy of her
ovarian tissue and the retention of certain reproductive material
and organs rather than a bilateral salpingo-oophorectomy and
total abdominal hysterectomy, which involved the complete removal
of Mrs. Schauffert's ovaries, fallopian tubes, and uterus.
Defendant admits that Mrs. Schauffert was not provided counseling
related to the possibility of an intra-operative, in situ
biopsy of her ovarian tissue with the retention of certain
reproductive organs. See, e.g., Def.'s Suppl. Proposed Findings
of Fact at 20-23, ¶¶ 24-31. If such an operation was viable and
fell within the standard of care, Defendant may well have
breached its duty to inform Mrs. Schauffert of a plausible
alternative treatment. The second issue concerns whether Mrs.
Schauffert's physicians properly obtained her informed consent
before commencing the surgery they did perform on her. Under this
issue, the Court shall investigate whether Mrs. Schauffert's
physicians at Walter Reed properly informed her of the nature of
the actual operative plan.
A. Plaintiffs' Proposed Operation Falls Outside of the
Standard of Care
1. Upon a searching examination of all testimony adduced on the
subject, the Court concludes that Plaintiffs have failed to meet
their burden of production and persuasion on their theory that
the physicians at Walter Reed were required to offer Mrs.
Schauffert the option of undergoing an intra-operative, in situ
biopsy of her ovarian tissue. Rather, the Court finds that the
standard of care for her medical condition did not require that
Mrs. Schauffert's physicians offer her the option of performing a
surgical procedure by which they would attempt to leave some of her ovarian or uteran tissue by excising portions of her
ovaries or uterus for intra-operative biopsy.
2. Having observed their demeanor and weighed their testimony
upon direct and cross-examination, the Court credits the
testimony of Drs. Macri, Carlson, and Barter in this area.
Simply, Defendant introduced the testimony of three separate
gynecologist-oncologists who are experts in this specialized
field. Each of these experts uniformly testified that it would
not be within the standard of care to conduct an intra-operative
biopsy of ovarian tissue for two reasons: (1) regardless of
whether the ovarian tissue was ruptured or unruptured, it would
be impossible to ascertain with any degree of medical certainty
whether the ovarian tissue left in the body contained any
malignant cells, see 10/29/04 Tr. at 111:1-21; J. Ex. 21
(Carlson Dep.) at 37-37:1-21; and (2) an intra-operative, in
situ ovarian biopsy would expose the patient to the unacceptable
risk of accidentally rupturing a cancerous cyst, thereby spilling
the contents into the peritoneal cavity, increasing the patient's
cancer staging, and possibly spreading the cancer, see 10/27/04
Tr. at 113:14-25, 114:21; 10/29/04 Tr. at 111:1-21. Given these
two major concerns and Mrs. Schauffert's expressed desire to be
cancer-free, such an operation would have been highly dangerous
and not necessarily effective.
3. Plaintiffs did proffer the testimony of Dr. Charles Seigel,
which contravened in part the testimony offered by
Defendant's experts. Dr. Seigel, who has been a board-certified
gynecologist since 1976, is not an oncologist, has never lectured
on gynecologic oncology, and has never published an article on
the subject. Certainly, "a physician need not be a specialist in
the field of which he speaks in order to testify as an expert."
Baerman v. Reisinger, 363 F.2d 309, 310 (D.C. Cir. 1966)
(quoting Sher v. De Haven, 199 F.2d 777, 782 (D.C. Cir. 1952),
cert. denied, 345 U.S. 936, 73 S.Ct. 797, 97 L.Ed 1363 (1953)). While
an expert, Dr. Seigel appeared quite uncomfortable in rendering
an opinion as to the standard of care for an OBGYN-oncologist.
Dr. Seigel admitted that obstetrical oncologists were better
equipped to diagnose the risk of leaving or not leaving a cyst in
the body during surgery, J. Tr. Ex. 20 (Seigel Dep.) at 60:3-12,
noting that he "would defer to them [oncologists] in the present
day and age as opposed to 35 years ago when I was doing it
msyelf," id. at 60:14-17. He also stated that he would "more
likely" consult with an obstetric oncologist before he would feel
comfortable handling a patient with symptoms identical to those
of Mrs. Schauffert. Id. at 18:12-15, 51:1-7. In addition to
admitting that his "techniques are a lot older now," id. at
47:14, Dr. Seigel also evinced uncertainty at various points,
frequently answering "I don't think so" when asked about relevant
issues, id. at 44:22-23, 45:1, 6-8. As such, with his limited
background and comparative lack of experience with the specific
issues at hand, the testimony offered by Dr. Seigel that
contradicted Defendant's experts was simply less credible and had
significantly less substantiation.
4. Moreover, Dr. Seigel's testimony was not contradictory to
the testimony provided by Defendant's experts in many respects.
For instance, Dr. Seigel testified that the best course of action
for doctors during the surgery was to remove the right
non-ruptured cyst and ovary to avoid the risk of spillage from a
malignant cyst. Id. at 32:6-24. Moreover, he noted that if the
left ovary had a remaining cyst as the laboratory report
indicates, then removal of the entire left ovary was also
appropriate. Id. at 35:15-20, 57:17-22, 65:6-24, 81:4-15.
Indeed, he agreed that if Mrs. Schauffert's primary concern was
to be free of cancer, her surgery as done by the physicians at
Walter Reed was the correct course of action, as the doctors
could not have saved either ovary if they were to obtain a
definitive diagnosis of whether she had cancer. Id. Ultimately, Dr. Seigel did not testify that the Walter Reed
physicians should not have performed a total abdominal
hysterectomy; rather, to the extent that his opinion conflicted
with those of Defendant's experts, the conflict was based at
least in part on his erroneous assumption that the
apparently-ruptured left ovary was of normal size on pathology,
and therefore was not an additional cyst. J. Tr. Ex. 20 (Seigel
Dep.) at 62, 75.*fn4 Finally, while Dr. Seigel expressed
support for the in situ biopsy option given certain
circumstances, he noted that the duty to inform a patient of that
option was contingent upon the patient affirmatively expressing
the desire to retain as much tissue as possible, id. at
35:15-23; Mrs. Schauffert, upon cross-examination, conceded that
she did not express a desire to the physicians to have as little
ovarian or reproductive tissue removed as possible, 10/26/04(b)
Tr. at 77:25, 78:13.
5. Given the strength of the testimony provided by Defendant's
experts, the superior qualifications and expertise of those
experts in the specific field at issue, and the large degree of
overlap between the testimony provided by Plaintiffs' expert and
that of Defendant's experts, the Court concludes that an
intra-operative, in situ biopsy of Mrs. Schauffert's ovarian
tissue would not have been within the standard of care, as it
could not have ensured that Mrs. Schauffert was cancer-free and
due to the increased danger from a rupture could have actually
increased her cancer staging. While physicians certainly have a
duty to inform their patients of medically viable options within
the standard of care, the physicians at Walter Reed simply had no
duty to inform Mrs. Schauffert of her now-desired style of
surgery. B. Mrs. Schauffert Was Provided With Adequate Counseling and
Gave Her Informed Consent to the Operation That Took Place
1. Because the Court has concluded that it would not have been
within the standard of care to provide Mrs. Schauffert counseling
regarding an intra-operative, in situ biopsy, the remaining
issue regarding the counseling received by Mrs. Schauffert and
the subsequent level of her consent is: "What counseling did Mrs.
Schauffert receive, and what did she understand as a result of
that counseling?" Having observed the demeanor of Mrs. Schauffert
during her testimony, the lack of clarity in her recollection of
several key events, and her oft-contradictory responses upon
cross-examination, the Court does not credit Mrs. Schauffert's
testimony to the extent that she testified that (1) the
physicians at Walter Reed did not provide an explanation as to
the extent of the surgery planned, i.e., a bilateral
salpingo-oophorectomy and total abdominal hysterectomy, which
involved the complete removal of Mrs. Schauffert's ovaries,
fallopian tubes, and uterus, or (2) that if the physicians did
attempt to provide an explanation, she did not adequately
understand the nature of the surgery.
2. Rather, numerous factors have persuaded the Court that
Defendant provided the necessary counseling vis-á-vis the
surgery undertaken. First, it is undisputed that Mrs.
Schauffert knows and understands English well, and is a highly
educated and intelligent individual. Moreover, Mrs. Schauffert
has proven to be both motivated and inquisitive, obtaining as
much information on the subject of her condition and possible
surgeries while in Italy, before traveling to Walter Reed for an
operation. Given Mrs. Schauffert's intelligence, capacity, and
motivation, the Court considers it unlikely that she would have
undergone counseling on June 20, 1999 and June 21, 1999, and
signed two clear consent forms without understanding the content
of those discussions and consent forms or objecting and asking basic
3. Second, Mrs. Schauffert's medical records, created
contemporaneously during the events leading up to her July 21,
1999 surgery support Defendant's claim that Mrs. Schauffert was
specifically counseled on the nature and breadth of the planned
surgery on multiple occasions. Indeed, these records quite
clear in their language and drafted by multiple physicians are
in many ways more reliable than the recollections of individuals
over five (5) years after the events in question. These records
show: (1) Mrs. Schauffert was counseled twice, once on June 20,
1999, and once on June 21, 1999; (2) different physicians
conducted the pre-operative counseling; (3) Mrs. Schauffert
stressed that she wished to be "cancer-free" after being told
that with her condition she had a thirty percent (30%) chance of
having cancer; (4) the need for Mrs. Schauffert to undergo a
bilateral salpingo-oophorectomy and total abdominal hysterectomy
in order to be cancer-free was emphasized; (5) the meaning of
those terms and the scope of the operation was explained; and (6)
Mrs. Schauffert's only questions focused on the condition of her
resulting scar, and she evinced no confusion regarding the
planned surgery. See generally J. Tr. Ex. 1.
4. Third, Dr. Shad Deering, witness for Defendant, testified
in a more persuasive and credible manner than Mrs. Schauffert
concerning the extent and type of counseling provided.
Importantly, Dr. Deering's testimony, corroborated by notations
in Mrs. Schauffert's contemporaneous medical records, was also
supported by the two consent forms signed by Mrs. Schauffert
prior to her surgery, on June 20, 1999 and June 21, 1999. Each of
these forms was quite clear regarding the scope of the surgery.
The first form, entitled "A Request for Administration of
Anesthesia and for Performance of Operations and Other
Procedures," J. Tr. Ex. 11, specifically noted that the operation Mrs. Schauffert was
to undergo was an "exploratory laparotomy, bilateral
salpingo-oopherectomy, total abdominal hysterectomy, possible
staging operation." Id. As Dr. Deering wrote in the "Statement
of Request," the surgeons were "[t]o make incisions in the
abdomen to evaluate and remove one of both ovaries/the
mass/possibly uterus/fallopian tubes/lymph nodes/omentum/pelvic
washings." Id. Mrs. Schauffert read this form and signed it in
the presence of a witness on June 20, 1999. Id. Due to a change
in her operating team, Mrs. Schauffert was provided a second
consent form before her surgery on July 21, 2004, that was even
more clear; the second form read on the first handwritten line:
"Exploratory Laparotomy/Total Abdominal Hysterectomy/Bilateral
Salpingo-oophorectomy with possible staging." J. Tr. Ex. 12. The
form also noted: "plan is to remove uterus, fallopian tubes,
ovaries, the mass, and possibly lymph nodes, and any other
involved tissue or organs." Id. Mrs. Schauffert signed this
consent form as well. Id. These forms are quite clear and,
having been read and signed by someone with Mrs. Schauffert's
intelligence and level of English, clearly spell out the planned
surgery and are consistent with the actual operation as it
occurred. Moreover, the existence of these multiple forms,
provided to Mrs. Schauffert on separate occasions over a two-day
span, supports the testimony of Defendant's witnesses that
specific, adequate counseling occurred.
5. Fourth, it is undisputed that Mrs. Schauffert never
complained to Dr. Deering regarding the fact that her ovaries
were removed without her consent; rather, she admitted at trial
that her only complaint to him after surgery was the alignment of
her scar. 10/26/04(b) Tr. at 6:8-25. Moreover, despite the fact
that Mrs. Schauffert had eighteen (18) documented discussions
with her primary care providers between August 1999 and June 19,
2000, none of her medical records from this time indicate that she raised any
complaints regarding her claimed non-consent to the removal of
her ovaries. Indeed, Mrs. Schauffert admitted that she never
discussed the surgery during this time with her primary
physician, Dr. Kass. Id. at 9:18-25. While Mrs. Schauffert
testified during trial that she complained about the removal of
her ovaries and uterus to Dr. Bales immediately upon her return
to Italy, no records support Mrs. Schauffert's contention and at
trial Dr. Bales testified that Mrs. Schauffert did not raise any
concerns regarding the removal of her reproductive organs at
Walter Reed, but only complained about her surgical scar.
10/29/04 Tr. at 21:21-23, 22:1-11. While Plaintiffs claim that no
official complaints were filed due to a fear of retaliation while
John Schauffert served in the United States military as a
Lieutenant Colonel during this time, the Court finds that
explanation to lack credibility: Lt. Col. Schauffert was an
experienced officer in the military, was admittedly aware of the
military's complaint and investigation procedure, and was
certainly familiar with the fact that employees of the United
States government frequently bring complaints or litigation
relating to real or perceived harms. Moreover, Mrs. Schauffert
could have expressed her concerns without necessarily filing a
formal complaint; however, she did not do so for eleven (11)
months. Ultimately, given that (1) roughly eleven months passed
between the time of Mrs. Schauffert's surgery and any documented
complaint, (2) Plaintiffs presented no outside testimony
supporting any complaints during this time period, and (3) it was
during this period that the negative side-effects of Mrs.
Schauffert's hormone treatment began to take their toll, the
Court finds it unlikely that Mrs. Schauffert did not understand
or consent to the actual surgery that occurred; rather, the Court
finds that it is more likely true that Mrs. Schauffert developed
an ex post facto antipathy to her surgery after experiencing
negative side-effects related to her hormone treatment. This ex post facto antipathy buoyed by the knowledge that her
condition turned out to be benign has led Mrs. Schauffert to
retrospectively question her decision to undergo the "exploratory
laparotomy, total abdominal hysterectomy, bilateral
salpingo-oophorectomy with possible staging" surgery. The fact
that nearly eleven (11) months passed between the time of her
surgery and her first medically documented complaint supports
such an inference i.e., that Mrs. Schauffert came to question
her decision only after experiencing side effects and finding out
that she did not have cancer.
6. Fifth, if Mrs. Schauffert's primary concern was to be
assured that she was free of cancer, as it admittedly was at the
time of the operation, the physicians at Walter Reed took all the
necessary steps to ensure that result, given the condition
encountered during Mrs. Schauffert's surgery. While Mrs.
Schauffert now claims that she understood that the operation
would involve an intra-operative, in situ biopsy, Plaintiffs
presented no evidence indicating that any doctor, either in
Italy or Walter Reed, discussed such a procedure with her;
moreover, the physicians at Walter Reed were unanimous in
testifying that they would not have performed such an operation
and would not have provided counseling on such an "option."
Rather, they considered such an operation to be outside the
standard of care. Mrs. Schauffert may now assert, after the fact,
that the side effects of her surgery and hormone treatment are so
severe that she feel that "[s]ometimes I wish I had cancer,"
10/26/04(b) Tr. at 12:25-13:1; however, while such obsessing over
certain issues and gazing through retrospective glasses may lead
her to conclude that she was supposed to be given an
intra-operative, in situ biopsy that would leave some portion
of her ovaries or uterus, it is clear that at the time of the
surgery, (1) Mrs. Schauffert expressed a deep fear of cancer and
a desire to be "cancer-free"; (2) she never expressed a desire to have as little ovarian or reproductive tissue removed as
possible; (3) no other operation within the standard of care
would have ensured that she was "cancer-free"; and (4) the
intra-operative, in situ option was never discussed with her by
the physicians at Walter Reed.
7. Given these considerations, the Court concludes that the
physicians at Walter Reed adequately informed Mrs. Schauffert of
the nature of her condition, the nature of the proposed
treatment, any alternate treatment procedures within the standard
of care, and the nature and degree of risks and benefits inherent
in undergoing and in abstaining from the proposed treatment.
Simply, the Court finds that (1) given Mrs. Schauffert's
intelligence, capacity, and motivation and the Court's
observation of her on the witness stand, it is unlikely that Mrs.
Schauffert did not comprehend the content discussed in her two
pre-operative counseling sessions, and her contrary testimony
lacks credibility; (2) her medical records, created
contemporaneously, provide strong support for an inference that
she was afforded adequate counseling and gave her informed
consent to the operation actually undertaken; (3) the credible
testimony of Dr. Deering, in combination with the two detailed,
specific consent forms signed by Mrs. Schauffert prior to her
operation, supports the adequacy of the counseling provided; (4)
the fact that nearly eleven months passed between Mrs.
Schauffert's operation and her initial complaint to any medical
personnel supports an inference that Mrs. Schauffert was aware of
the operative plan and did not object until she began
experiencing unpleasant side effects from her hormone treatments
in the months following the operation; and (5) given that no
doctor testified that he or she counseled Mrs. Schauffert on the
option on an intra-operative, in situ biopsy, and the fact that
such an option would have fallen outside the standard of care,
Mrs. Schauffert's current desire to have undergone an
intra-operative, in situ biopsy represents nothing more than wishful thinking given the hindsight that her condition was
IV: CONCLUSIONS OF LAW
1. The operation provided to Mrs. Schauffert on July 21, 1999
a bilateral salpingo-oophorectomy and total abdominal
hysterectomy, which involved the complete removal of Mrs.
Schauffert's ovaries, fallopian tubes, and uterus was within
the standard of care of a reasonably prudent practitioner
operating in the District of Columbia acting under the same or
similar circumstances in providing care. Drs. Deering, Macri,
Rose, Remenga, Sundborg, and Ochoa exercised reasonable care and
skill in evaluating Mrs. Schauffert's ovaries, cysts, and uterine
mass, and in recommending and performing surgery. The type of
operation hinted at by Plaintiffs' expert, Dr. Seigel, and
focused upon by Plaintiffs an intra-operative, in situ biopsy
that would have left some portion of Mrs. Schauffert's ovaries or
uterus was not within the standard of care given Mrs.
Schauffert's condition, her thirty percent (30%) risk of cancer,
her desire to have no more children, and her expressed wish to be
2. Because an intra-operative, in situ biopsy would not have
been within the standard of care, the physicians at Walter Reed
did not have a duty to inform Mrs. Schauffert of such an
"option." Without a duty to inform, the physicians' admitted
failure to disclose the "option" did not constitute a breach of
any duty. Simply, a reasonably prudent person in Mrs.
Schauffert's position would not have decided to undergo such an
operation, and should not have been informed of such a technique.
Accordingly, Plaintiffs cannot and have not established by a
preponderance of the evidence either a duty, breach, or causation
as required on the alleged failure to inform the patient of
viable alternative treatments. As such, the physicians at Walter
Reed were not medically negligent in the options offered to Mrs.
Schauffert. 3. The actual counseling provided by the physicians at Walter
Reed on July 20, 1999 and July 21, 1999, as memorialized in Mrs.
Schauffert's medical records and two separate consent forms,
adequately disclosed the nature of Mrs. Schauffert's condition,
the nature of the recommended treatment, the two other alternate
treatment procedures that fell within the standard of care, and
the nature and degree of risks and benefits inherent in
undergoing and in abstaining from the proposed treatment.
4. The communications between the physicians at Walter Reed and
Mrs. Schauffert were not unreasonably inadequate and do not
justify an imposition of liability. Plaintiffs have failed to
meet their burden of persuasion on the issue of deviation from
the appropriate standard of care: Plaintiffs have not
established by a preponderance of the evidence that (1) Mrs.
Schauffert's counseling was insufficient in that she was not
informed of any material facts relating to her surgery; (2) Mrs.
Schauffert did not consent to the surgery without being fully
aware of or fully informed of such material fact; or (3) that a
reasonably prudent patient under similar circumstances would not
have consented to the surgery if informed of such material fact
or facts. Rather, all material information was disclosed to Mrs.
Schauffert, who then provided her informed consent to the
operation as constituted. V: CONCLUSION
For the reasons set forth above, the Court finds that Defendant
is not liable to Plaintiffs. Judgment is awarded in Defendant's
favor, without costs to either party. The Clerk is directed to
prepare a judgment and close this case.
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