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 ...