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Flores-Hernandez v. United States

United States District Court, District of Columbia

December 18, 2012

Rosa Alba FLORES-HERNANDEZ, Plaintiff,
UNITED STATES of America, et al., Defendants.

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Daniel C. Scialpi, Leonard William Dooren, III, Patrick A. Malone, Patrick Malone & Associates, Washington, DC, for Plaintiff.

Leila Jade Levi, Wynne Patrick Kelly, Jonathan Ryan Hammer, Michelle Lo, U.S. Attorney's Office, Washington, DC, for Defendants.


ROBERT L. WILKINS, District Judge.

Upon consideration of the parties' undisputed and stipulated facts, as well as the testimony of the witnesses, the exhibits,[1]

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and the arguments of the parties presented at trial, the Court makes the following findings of fact and conclusions of law in this matter.


Plaintiff Rosa Alba Flores-Hernandez (" Plaintiff" or " Flores-Hernandez" ) brings this medical malpractice action against Defendant United States of America (" Defendant" or the " Government" ) pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) & 2671 et seq. Specifically, Flores-Hernandez asserts that Dr. Luis Padilla— an employee of Unity Health Care, Inc., in whose stead the United States now stands under the Federally Supported Health Centers Assistance Act, 42 U.S.C. § 233(g)-(n)— negligently delayed in referring her for diagnostic gynecological testing for cervical cancer. Flores-Hernandez contends that, had Dr. Padilla referred her for such testing earlier, specialists would have diagnosed and completely treated her condition as a pre-malignancy or an early stage cancer, rather than Stage IVA cervical cancer, as her doctors ultimately diagnosed in July 2010.


The Court finds that the following facts have been established by a preponderance of the evidence:

Flores-Hernandez's Patient Care History

1. Flores-Hernandez first went to Unity Health Care's Upper Cardozo Clinic, located in the Columbia Heights neighborhood of the District of Columbia, in 2004.
2. At that time, Flores-Hernandez's primary care physician became Dr. Luis Padilla. As her primary care physician, Dr. Padilla provided Flores-Hernandez with basic gynecological care, including Pap smears, pelvic exams, and " well-woman" physicals.
3. In August 2006, Dr. Padilla performed an annual " well-woman" exam on Flores-Hernandez, which included a Pap smear. The results of the Pap smear were negative for intraepithelial lesions and malignancy. In addition, because no abnormalities were detected in the Pap smear, reflex testing for the human papillomavirus (" HPV" ) was not triggered and no HPV testing was performed at that time.
4. On November 7, 2007, Flores-Hernandez went to see Dr. Padilla complaining of heavy, irregular menstrual bleeding for the past six months. Dr. Padilla classified these symptoms as menometrorrhagia, and he began a differential diagnosis to determine the cause of the bleeding. Dr. Padilla placed a number of potential causes on his differential diagnosis at that time, including early-onset menopause, uterine fibroids, and cervical cancer.
5. During that visit, Dr. Padilla performed a Pap smear on Flores-Hernandez to screen for cervical cancer or any other abnormalities. He also ordered complete blood work and a urine pregnancy test, and he prescribed Flores-Hernandez a nonsteroidal anti-inflammatory, Naproxen.
6. Dr. Padilla did not refer Flores-Hernandez to a gynecologist for any further follow-up examination or testing at that time.

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7. A Pap smear is a screening test that shows whether a woman has atypical cervical cells and/or HPV. A Pap smear is performed by scraping or brushing loose cells from the outer opening of the cervix. Those cellular specimens are then reviewed by a pathologist.
8. The results of Flores-Hernandez's November 2007 Pap smear were returned as unsatisfactory for evaluation due to obscuring blood, although they did reveal the presence of trichomoniasis, a sexually-transmitted disease.
9. Following her November 2007 Pap smear, Flores-Hernandez was scheduled for a follow-up appointment in late November, but she failed to attend the appointment.
10. Flores-Hernandez visited Upper Cardozo Clinic on December 6, 2007, along with her boyfriend, Freddy Alvarado. Although Unity's progress notes do not contain any specific details about the visit, Flores-Hernandez testified that she and Mr. Alvarado saw Dr. Padilla, who informed them of the trichomoniasis findings from her Pap smear and provided them with a 3-page handout describing trichomoniasis, and the Court credits that testimony. Dr. Padilla did not recall whether he saw Flores-Hernandez and/or Mr. Alvarado on December 6th, let alone any details about their visit.
11. Flores-Hernandez also testified— both on cross-examination and on redirect— that Dr. Padilla performed a Pap smear during that December 6th visit. However, there were no records or results of such a test otherwise introduced during trial, and the Court does not credit this testimony.
12. The next time that Flores-Hernandez went to the clinic was as a walk-in patient on December 16, 2008, complaining of pain in her left lower leg. She was unable to be seen on this date because the Upper Cardozo Clinic was only open for a half-day with only one healthcare provider on site.
13. Flores-Hernandez returned to the Upper Cardozo Clinic two days later, on December 18, 2008, for a " well-woman" exam with Dr. Padilla. Dr. Padilla performed a Pap smear on Flores-Hernandez during that visit, and he also ordered a pelvic ultrasound.
14. During Flores-Hernandez's December 2008 visit with Dr. Padilla, she did not complain about any unusual or irregular symptoms of menstrual bleeding.
15. Unity received Flores-Hernandez's Pap smear results on January 6, 2009, and Dr. Padilla reviewed those results on January 15, 2009. The results reported that Flores-Hernandez had atypical squamous cells of undetermined significance (" ASCUS" ) and confirmed that she had tested positive for high-risk HPV.
16. An ASCUS finding indicates that there are abnormal cells present, but ASCUS is considered the most common cervical cytology abnormality.
17. After reviewing the December 2008 Pap smear results, Unity referred Flores-Hernandez for a colposcopy and scheduled her for an appointment on March 20, 2009, with Amy Yoxthimer, a Physician's Assistant in Unity's Gynecological Services.

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18. Unity notified Flores-Hernandez of this appointment by sending a certified letter on February 18, 2009, to the address she had on file with the clinic.
19. The letter was returned as " unclaimed" on or around March 4, 2009, and Flores-Hernandez did not appear for her appointment with Ms. Yoxthimer on March 20, 2009.
20. Two months later, on May 14, 2009, Flores-Hernandez returned to the Upper Cardozo Clinic to see Dr. Padilla for " cold-like" symptoms and to follow up on test results.
21. On May 14, 2009, when Dr. Padilla discovered that the Flores-Hernandez had failed to show up for the colposcopy that had been scheduled for March 20, 2009, he re-referred her for a colposcopy, instructed her to make the appointment that day, and reminded Flores-Hernandez of the importance of keeping her address information current. Dr. Padilla also performed another Pap smear test during that visit.
22. In conducting that Pap smear on May 14, 2009, Dr. Padilla noted visible changes on Flores-Hernandez's cervix. He described those changes as " circumferential for adherent plaque, white color, os: friable."
23. During Flores-Hernandez's May 2009 visit with Dr. Padilla, she did not complain about any unusual or irregular symptoms of menstrual bleeding.
24. The lab results for Flores-Hernandez's May 2009 Pap smear again indicated ASCUS, but the results were negative for high-risk HPV.
25. On June 8, 2009, Flores-Hernandez attended an appointment with Dr. Felicia Hamilton, a gynecologist at Unity's Upper Cardozo Clinic. During the visit, Dr. Hamilton took Flores-Hernandez's patient history, including her gynecological history, but Flores-Hernandez did not disclose that she had any symptoms or history of irregular menstrual bleeding, and such did not complain of such during this visit.
26. Dr. Hamilton also performed a colposcopy on Flores-Hernandez on June 8, 2009.
27. During a colposcopy, a gynecologist uses a microscope to closely examine the patient's cells in the squamocolumnar junction of the cervix. Using different magnetic lenses, the gynecologist also examines the patient's entire cervix and the upper third of the vagina area. If any area(s) of concern are observed during the procedure ( i.e., dysplasia or some other type of abnormal lesion), the gynecologist will generally take a small biopsy of the area. Finally, during the colposcopy, the gynecologist may attempt to obtain some tissue samples from the endocervical canal, by lightly scraping cells using a procedure called an endocervical curettage (" ECC" ).
28. During Flores-Hernandez's colposcopy procedure on June 8, 2009, Dr. Hamilton took a biopsy from a condyloma— or genital wart— that she observed at the 6 o'clock position of the cervix. Dr. Hamilton also performed an ECC during the procedure.
29. Based on her observations during the colposcopy procedure, Dr. Hamilton believed that Flores-Hernandez had

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cervical intraepithelial neoplasia grade CIN-1. CIN-1 is also referred to as low-grade dysplasia, ...

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