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Melber v. United States

United States District Court, D. New Jersey

April 23, 2019

ROBERT MELBER, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          OPINION

          JOHN MICHAEL VAZQUEZ, U.S.D.J.

         This Federal Tort Claims Act (the "FTCA") case arises out of Plaintiff Robert Melber's ophthalmologic care while a patient of the Department of Veterans Affairs New Jersey Health Care System (the "VA"). Plaintiff filed the instant action in New Jersey state court against Neelakshi Bhagat, M.D.; Keegan Johnson, M.D.; Scott M, Walsman, M.D.; Amir Cohen, M.D.; Jung S. Lee, M.D., and John Doe Defendants. At the time of the relevant events, Drs. Johnson, Walsman, and Lee were employed by the VA. On June 17, 2011, the United States substituted itself as the Defendant for the three physicians and removed the matter to this Court. See Amended Notice of Removal and Substitution of Defendant ¶¶ 2, 5; D.E. 2. Drs. Bhagat and Cohen, who were not federal employees at the time in question, were dismissed from this action on March 28, 2012. D.E. 31. Thus, the United States is the sole Defendant.

         Claims asserted pursuant to the FTCA are tried without a jury. See 28 U.S.C. § 2402. Accordingly, there was a five-day bench trial between April 1 and 10, 2019. The trial consisted of witness testimony and exhibits; the parties also had a full opportunity to examine and cross-examine the witnesses as well as present their arguments. After consideration of the record, the following are the Court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).

         I. FINDINGS OF FACT [1]

         This medical malpractice matter focuses on retained lens material in Melber's right eye following cataract surgery. Colloquially, the human eye is divided into two sections: the anterior segment, which is the front of the eye, and the posterior segment, which is the back of the eye. The anterior segment includes the iris; lens; cornea, which is a transparent covering over the iris and lens; and the visible white section of the eyeball, called the sclera. Tr. Vol. 3 at 247:22-248:17. The lens consists of two major components. Nuclear lens material, found in the center of the lens, is hard and looks yellowish. The remainder of the lens is called the cortex. Cortical material is softer and looks white. Id. at 273:13-17.

         The posterior section of the eye is filled with a jelly-like substance called vitreous. Id. at 248:18-25. The posterior section also consists of a very thin membrane called the retina, which lines the interior of the eye. The retina is analogous to film in a camera; images are projected through the lens onto the retina and that information is then transferred to the brain through the optic nerve. The macula is the small, center portion of the retina. The macula is the part of the retina that allows a person to see details and clearly. Id. at 249:7-15. The fovea, in turn, is at the center of the macula. Tr. Vol. 2 at 151:16-19.

         Here, Melber suffered a macula-off detached retina in his right eye. After his retina surgery, Melber developed a cataract. Melber then had a second surgery to remove the cataract, and following that surgery, lens material remained in Melber's right eye. The retained lens material, and its impact on Melber's vision, is the central focus of this case.

         A. Stipulated Facts

         The following undisputed facts were set forth in the stipulation of facts section of the Final Pretrial Order ("Stipulated Facts"), D.E. 108. Plaintiff Robert Melber, a Navy veteran, was a patient of the VA for many years. Stipulated Facts ¶ 1. Melber began noticing symptoms of blurred vision in his right eye on May 2, 2009, and went to the VA's non-urgent clinic for treatment on May 4. Id. ¶¶ 2-3. On May 5, 2009, Plaintiff was seen by Drs. Jung S. Lee, M.D., and Scott Walsman, M.D., at the VA Ophthalmology Clinic. During the appointment, Melber stated that he could not see out of his right eye and his visual acuity for the right eye was measured at "counting fingers."[2] Id. ¶ 4. Melber's visual acuity for his left eye was 20/20. Id. Melber was diagnosed with a chronic retinal detachment in the right eye, which had progressed to involve the macula. Melber also had mild cataracts in both eyes. At this appointment, Dr. Lee explained to Melber that surgery to repair his detached retina may not improve the vision in his right eye because the macula was detached. Id.

         On May 11, 2009, Melber met with Dr. Neelakshi Bhagat, M.D., and resident Dr. Keegan Johnson, M.D., at the VA. Id. ¶ 5. Dr. Bhagat explained the benefits and risks of surgery to repair the detached retina, including a decrease in vision, the need for repeated surgery, and the progression of cataracts. Understanding the risks, Melber decided to have the surgery. Id. Drs. Bhagat and Johnson performed the surgery the same day. Intraoperatively, Drs. Bhagat and Johnson again diagnosed Melber with a macula-off retinal detachment in the right eye in addition to a retinal tear. Id. There were no complications during the surgery, and Melber was in stable condition and discharged following the procedure. Id.

         Dr. Amir Cohen, M.D., examined Melber in the VA Ophthalmology clinic the following day, May 12, 2009. Id. ¶ 6. Melber's vision in his right eye was limited to hand motions (which is worse than counting fingers), and Dr. Cohen noted that Melber's cataract had worsened. Id. Melber had additional post-operative appointments on May 13 and 14, 2009. Id. ¶¶ 7-8. On the May 13 visit, the examining doctors confirmed that Melber's retina had successfully been reattached during surgery. Id. On May 14, 2009, a B-scan ultrasound of the right eye "showed findings consistent of a progressive cataract." Id. On both days, however, Melber's vision remained at hand motions, and the pressure in his right eye was low. Id. Drs. Bhagat and Walsman examined Melber at the VA Eye clinic on May 18, 2009. Melber's vision remained at hand motions, and he still had low intraocular pressure. Id. ¶ 9. Drs. Bhagat and Walsman performed another B-scan ultrasound, which showed choroidal detachment. Id.

         Melber was then scheduled for a second surgery on his right eye: a cataract extraction[3]and placement of a sulcus intraocular lens. Id. On June 8, 2009, Drs. Cohen and Walsman performed the surgery. Id. ¶ 11. On June 9, 2009, one day after the cataract surgery, Drs. Cohen and Walsman examined Melber. "It was noted that [Melber] had a small amount of retained cortical lens material in the right eye.'"[4] Id. ¶ 12. Dr. Walsman examined Melber during a follovv- up visit on June 12, 2009, and again noted a small amount of retained cortical material in Melber's right eye. Id. ¶ 14. On June 19, 2009, Drs. Lee and Walsman examined Melber during a follow-up visit at the VA Ophthalmology Clinic. During this visit, Drs. Lee and Walsman noted that the retina was attached but there was a decreased view of the posterior section of Melber's right eye due to corneal swelling. Id. ¶ 15. Drs. Lee and Walsman also saw a small amount of retained cortical material. Id. "The recommendation was to allow time to clear the inflammation and to schedule a follow-up visit in two [to] three weeks to allow time for corneal swelling to resolve and allow improved visualization of the retina." Id.

         On July 20, 2009, Melber had a follow-up appointment with Dr. Bhagat. At this time, Melber's visual acuity had improved and was approximately 20/200 in the right eye. Id. ¶ 16. During her examination, Dr. Bhagat saw an "[i]nferiorly dislocated large cataract piece." Id. Dr. Bhagat noted that the retained cataract fragment "?? Looks nuclear cortical." Id. Dr. Bhagat also indicated that there was mild vitreal inflammation. Id. Dr. Bhagat wrote that Melber should follow up in one month, and "if still unchanged, [he] may need to consider PPV/PPL (surgical procedures to remove cataract fragment)". Id.

         Dr. Lee saw Melber at a follow-up appointment on August 3, 2009. Melber's visual acuity was measured at 20/200[5] and during his examination, and Dr. Lee confirmed that the retained lens material was still in Melber's right eye. Dr. Lee noted that the retina was flat (meaning in place) and diagnosed Melber as having an epiretinal membrane in his right eye. Id. ¶ 17. Dr. Lee recommended that Melber return for a follow-up visit on August 17, 2009. Id.

         Melber did not follow-up with any doctor at the VA. Instead, on August 24, 2009, Melber saw Dr. Michael Harris, M.D., a private ophthalmologist with Retina Associates of N.J., P.A. Id. ¶ 18. Dr. Harris examined Melber and determined that there were "retained nucleus fragments" in his right eye, an epiretinal membrane, and "evidence of macular edema associated with the retained lens material." Id. ¶ 18. Edema refers to swelling. Dr. Harris recommended removal of the retained lens material "in hopes of eliminating the edema" but noted that "the amount of visual recovery will be limited due to the fact that the retinal detachment has been present for several weeks prior to its surgical repair." Id. Approximately three weeks later, on September 16, 2009, Dr. Harris performed Pars Plana Vitrectomy/Lensectomy ("PPV/PPL") surgery on Melber's right eye to remove the retained lens material and the epiretinal membrane. Id. ¶ 19.

         At a post-operative follow-up with Dr. Harris on September 21, 2009, Melber's visual acuity was measured at 20/150. Id. ¶ 21. Melber, however, still had macular edema in his right eye. Id. On October 5, 2009, Melber's visual acuity had worsened and was measured at 20/400. In addition, the macular edema was still present. Id. ¶ 22. Melber's condition was unchanged at an October 19, 2009 appointment. Id. ¶ 23. At a November 16, 2009 appointment, Melber's visual acuity had improved to 20/150. The macular edema had also improved. Id. ¶ 24.

         Melber continued to be treated by Dr. Harris' practice over the next several years. Melber received periodic steroidal injections and, at times, his vision in the right eye and the macular edema appeared to improve. For example, at a January 4, 2010 appointment with Dr. Harris, Melber's visual acuity was "stabilized at 20/800 in the right eye." Id. ¶ 28. In addition, Dr. Harris noted that there was "a mild amount of edema" but it was "not severe enough to explain the acuity." Id. Dr. Harris indicated that Melber's vision loss "was more related to damage from the original retinal detachment, rather than the macular edema." Id. On September 13, 2010, Dr. Harris found no evidence of macular edema and Melber's vision in his right eye was measured at 20/150. Id. ¶ 35.

         Despite these periodic improvements, the overall condition of Melber's right eye ultimately worsened. On December 13, 2010, Melber's visual acuity was measured at 20/400 and Dr. Harris "found that the right eye macular edema had returned along with a prominent epiretinal membrane." Id. ¶ 37. At a February 14, 2011 appointment, Dr. Harris determined that Melber continued to have macular edema in the right eye with vision at finger counting at five feet. Id. ¶ 39. On May 23, 2011, Dr. Harris found that in addition to the epiretinal membrane, Melber's right eye had subretinal fluid beneath the right fovea along with intraretinal cystic edema. Id. ¶ 40. On September 22, 2014, Melber's visual acuity was counting fingers at three feet in his right eye and 20/20 in the left eye. Id. ¶ 45. During an examination, Dr. Harris noted evidence of recurrent epiretinal member and macular edema in the right eye. Dr. Harris noted that Melber's "right eye vision has been at this level for many years and no additional treatment is required at this point." Id.

         B. Trial Testimony

         At trial, the Court heard testimony from the following witnesses: Robert Melber; Michael Melber, Plaintiffs son; Dr. Harris (by way of video deposition), a vitreoretinal surgeon and Plaintiff's treating physician after the VA; Dr. Harvey Rosenblum, a general ophthalmology and anterior segment surgery specialist and Plaintiffs liability expert; Dr. Bhagat, a vitreoretinal surgeon and one of Plaintiff s treating physicians at the VA; Dr. Cohen, a glaucoma specialist and one of Plaintiff's treating physicians at the VA; Dr. Lee, the head of ophthalmology at the VA during the events at issue, an anterior segment surgery specialist, and one of Plaintiffs treating physicians at the VA; and Dr. Mitchell S. Fineman, a vitreoretinal surgeon and Defendant's liability expert.

         Plaintiff testified first. Melber is retired and a veteran of the United States Navy. He served for approximately one year and was discharged in 1960 due to a medical condition. Tr. Vol. 1 at 33:23-24:12. At his deposition, Melber indicated that he was discharged because of paresthesia of the right lower mandible. At trial, however, Melber added that his discharge was also due to falling arches. Id. at 98:6-22. Melber received medical disability upon discharge, which he continues to receive to this day. Id. at 35:10-14.

         At trial, Melber's testimony was at times materially different from the parties' stipulated facts and his deposition testimony. First, as indicated above, in the Final Pretrial Order, the parties stipulated that Melber first experienced blurred vision on May 2, 2009 and was seen at the nonurgent clinic at the VA for his poor vision on May 4, 2009. Stipulated Facts ¶¶ 2-3. The following day, May 5, 2009, Melber met with Drs. Lee and Walsman in the VA Ophthalmology Clinic. Id. ¶ 4. At trial, Melber insisted that he first suffered blurred vision on April 27, 2009 (Tr. Vol. 1 at 53:2-5) and that he saw Dr. Walsman in VA Ophthalmology Clinic that same day (id. at 55:7-24; 56:22-57:3). The Court credits Melber's trial testimony regarding when he began noticing symptoms of the detached retina but not his statements that he was examined by Dr. Walsman on April 27. The record evidence indicates that Melber was not seen in the Ophthalmology Clinic until May 5, 2009, as the parties previously stipulated. See Ex. A; Stipulated Facts ¶ 4.

         In addition, at his deposition, Melber stated that he did not meet with any VA doctor on August 3, 2009, and that no follow-up appointment at the VA was scheduled after the August 3 appointment. Tr. Vol. 1 at 76:12-77:25. At trial, however, Melber explained that he did meet with Dr. Lee on August 3 and that during this appointment, Dr. Lee told him to come back to the VA in two weeks for a follow-up. Id. at 45:10-17; 78:13-79:1. Instead of returning the VA, Melber decided to seek a second opinion from a doctor outside of the VA. Id. at 46:21-47:3. Again, Melber's trial testimony contradicts earlier statements made during his deposition, and the Court credits Melber's trial testimony as it is also consistent with the record evidence.

         After his August 3 appointment at the VA, Melber testified that he attempted to meet a Dr. Higgins at Belleville Hospital the same day but was unsuccessful. Id. at 47:2-5. Approximately two weeks later, Melber went to a Dr. Marone in North Arlington, New Jersey. Dr. Marone examined Melber and told Melber that the "large piece" needed to "come out" but that Dr. Marone was not to correct person to perform the surgery. Id. at 47:8-49:3. On August 24, 2009, Melber met with Dr. Harris. Id. at 48:22-49:5. Dr. Harris treated Melber for multiple years. Melber testified that he has been a patient of Dr. Harris for ten years (id. at 49:24-25), although the Court notes that Melber's first appointment with Dr. Harris was in 2009 so the ten-year anniversary has not yet occurred.

         Melber stated that he now has permanent vision loss in his right eye. Melber testified that with his right eye he can see light, "but it's a blur," and that he can see his hand if he holds it close to his face. Id. at 50:7-12. Melber explained that since 2009, he can no longer read or drive, perform many household tasks, and that going up and down stairs is difficult. Id. at 51:7-25. As a result of his vision loss, Melber testified that he has to rely on his adult son daily to perform essentially all household tasks and drive Melber as needed. Id. at 50:21-51:2. The Court also heard testimony from Melber's son Michael regarding the limitations Plaintiff now faces because of the vision loss in Plaintiffs right eye.

         The remaining testimony came from multiple medical professionals. Every doctor that testified is board certified in ophthalmology. There are sub-specialties of ophthalmology although none are recognized for board certification purposes. Generally, the ophthalmologists who testified specialized in either the anterior, i.e. front, or posterior, i.e. the back, of the eye. Drs. Harris, Bhagat, and Fineman are vitreoretinal surgery specialists, which pertains to the posterior of the eye. Drs. Rosenblum, Cohen and Lee, focus on the anterior segment of the eye.

         The nuclear retained lens material in Melber's right eye is at the heart of this case. Retained lens material or fragments ("RLF") refers to material that remains in the vitreous of the eye following cataract surgery. The parties agreed that cortical material, at least if it is not too large, most often does not require surgical removal because it will naturally reabsorb into the body. The parties also agreed that nuclear material, at least if it is sufficiently large, must be removed surgically because it will not reabsorb into the body. A nuclear RLF can lead to inflammation, which in turn, can lead to macular edema.[6] ...


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