United States District Court, S.D. Indiana, Indianapolis Division
Jane Magnus-Stinson, Chief Judge
2013, Ronald Kraemer had back surgery at a medical center
operated by the Department of Veteran's Affairs (the
“VA”). In 2016, after exhausting his
administrative remedies, Mr. Kraemer brought suit against the
VA alleging that the medical care he received was below the
standard of care and that the VA did not obtain his informed
consent. [Filing No. 1.] As a result, Mr. Kramer
alleges that he suffered severe complications which are
permanent and irreversible. [Filing No. 1.] Now
pending before the Court is the VA's Motion for Summary
Judgment. [Filing No. 50.] For the reasons set forth
herein, the VA's Motion is GRANTED.
motion for summary judgment asks the Court to find that a
trial is unnecessary because there is no genuine dispute as
to any material fact and, instead, the movant is entitled to
judgment as a matter of law. SeeFed. R. Civ. P.
56(a). As the current version of Rule 56 makes clear, whether
a party asserts that a fact is undisputed or genuinely
disputed, the party must support the asserted fact by citing
to particular parts of the record, including depositions,
documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party
can also support a fact by showing that the materials cited
do not establish the absence or presence of a genuine dispute
or that the adverse party cannot produce admissible evidence
to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or
declarations must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant is competent to testify on matters stated.
Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in
opposition to a movant's factual assertion can result in
the movant's fact being considered undisputed, and
potentially in the grant of summary judgment. Fed.R.Civ.P.
deciding a motion for summary judgment, the Court need only
consider disputed facts that are material to the decision. A
disputed fact is material if it might affect the outcome of
the suit under the governing law. Hampton v. Ford Motor
Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words,
while there may be facts that are in dispute, summary
judgment is appropriate if those facts are not outcome
determinative. Harper v. Vigilant Ins. Co., 433 F.3d
521, 525 (7th Cir. 2005). Fact disputes that are irrelevant
to the legal question will not be considered. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
summary judgment, a party must show the Court what evidence
it has that would convince a trier of fact to accept its
version of the events. Johnson v. Cambridge Indus.,
325 F.3d 892, 901 (7th Cir. 2003). The moving party is
entitled to summary judgment if no reasonable fact-finder
could return a verdict for the non-moving party. Nelson
v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court
views the record in the light most favorable to the
non-moving party and draws all reasonable inferences in that
party's favor. Darst v. Interstate Brands Corp.,
512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence
or make credibility determinations on summary judgment
because those tasks are left to the fact-finder.
O'Leary v. Accretive Health, Inc., 657 F.3d 625,
630 (7th Cir. 2011). The Court need only consider the cited
materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit
Court of Appeals has “repeatedly assured the district
courts that they are not required to scour every inch of the
record for evidence that is potentially relevant to the
summary judgment motion before them, ”
Johnson, 325 F.3d at 898. Any doubt as to the
existence of a genuine issue for trial is resolved against
the moving party. Ponsetti v. GE Pension Plan, 614
F.3d 684, 691 (7th Cir. 2010).
the background facts of this case are not in dispute. Local
Rule 56-1(b) provides that “a party opposing a summary
judgment motion” must file a response that includes
“a section labeled ‘Statement of Material Facts
in Dispute' that identifies the potentially determinative
facts and factual disputes that the party contends
demonstrate a dispute of fact precluding summary
judgment.” In this case, Mr. Kraemer presents six
points that he alleges are material facts in dispute. The
Court notes that not all of these points are factual
disputes. In addition, not all factual disputes
identified by Mr. Kraemer are material to the determination
of this case. Any doubt as to the existence of a genuine
issue for trial will be resolved against the VA as required
by Rule 56 and explained in Ponsetti, 614 F.3d at
Treatment Leading up to 2013 Surgery
Kraemer is a veteran of the United States Navy who has sought
medical care at the VA hospital. [Filing No. 50-1 at
6.] ¶ 1999, prior to seeking medical care at the
VA, Mr. Kraemer began to lose feeling in his hands and feet
and sought medical care from Dr. Daniel Cooper. [Filing
No. 50-1 at 7]. Dr. Cooper performed surgery on Mr.
Kraemer, in which he inserted rods, plates, and screws into
Mr. Kraemer's neck. [Filing No. 50-1 at 8].
2003, Mr. Kraemer had another surgery involving his neck and
back, this time performed by Dr. Francesca Tekula at the
Richard L. Roudebush VA Medical Center (the
“VAMC”). Dr. Tekula performed a cervical
fusion on Mr. Kraemer, “which was performed without
complication, ” resulting in a recovery that Mr.
Kraemer stated was “pretty good.” [Filing No.
50-2 at 1-2; Filing No. 50-1 at 11.]
May and September 2008, Mr. Kraemer sought medical treatment
for back pain, including an MRI, several office visits, and
physical therapy. [Filing No. 50-17; Filing No.
50-18; Filing No. 50-19; Filing No.
50-20; Filing No. 50-21.]
early 2012, Mr. Kraemer visited the emergency room
complaining of severe low back pain. [Filing No. 50-22 at
1.] He underwent an MRI, which revealed
“[m]ultilevel degenerative changes . . . with
superimposed disc extrusion causing severe spinal canal
stenosis and impingement of the traversing L4 nerve roots in
the subarticular recesses.” [Filing No. 50-23 at
2.] Shortly thereafter, on February 21, 2012, Mr.
Kraemer had surgery at the VA due to a “herniated disc
fragment.” [Filing No. 50-3 at 1.] During the
operation, Mr. Kraemer had a “red rash on [his] chest,
abdomen, groin [and] left thigh.” [Filing No.
April 2012, Mr. Kraemer's wife, Kimberly Kraemer, called
the VA and reported that her husband was in “terrible
pain with his lower back and numbness in his legs” and
that he “was not sleeping” and was “in
tears daily.” [Filing No. 50-25 at 1.]
April 2013, Mr. Kraemer reported that he had pulled a muscle
in his lower back and had back pain “as before his
[February 2012] surgery.” [Filing No. 50-27 at
1.] He then had an MRI on his cervical spine, which
showed “[r]emote anterior cervical discectomy with
interbody and anterior fusion . . . laminectomy and posterior
fixation, ” [Filing No. 50-28 at 3], and an
MRI on his lumbar spine, which showed “concern for
residual right central disc extrusion, ”
“enhancing scar tissue, ” and “degenerative
disc changes, ” [Filing No. 50-28 at 6].
2013, Mr. Kraemer called the clinic “frantic”
with pain and was advised to go the emergency room if he
could not manage his pain at home. [Filing No. 50-5 at
1.] On May 21, 2013, Mr. Kraemer went to the emergency
room complaining of worsening back and leg pain and was
referred to the neurosurgery clinic. [Filing No. 50-29 at
1.] At the clinic the next day, Mr. Kraemer was given
morphine and told to return to the clinic to discuss surgery.
[Filing No. 50-6 at 3.] On June 21, 2013, Dr.
Shaheryar Ansari examined Mr. Kraemer and scheduled him for
discectomy and laminectomy/otomy surgery in July 2013.
[Filing No. 50-30 at 1.] After ordering more x-rays,
Dr. Neal Patel concluded that Mr. Kraemer needed a fusion
surgery, instead of a decompression surgery. [Filing No.
50-30 at 3.] Mr. Kraemer was notified of this change.
[Filing No. 50-11 at 16.]
Kraemer recalls that prior to his surgery in July 2013, he
met with neurosurgeons who told him, “[b]asically, I
need to go in there and remove that.” [Filing No.
50-1 at 29.]
Discussion with Dr. Patel Prior to Surgery
31, 2013, Mr. Kraemer was admitted to the VAMC for a spinal
fusion. [Filing No. 50-39.] Prior to the surgery,
Mr. Kraemer and his wife met with Dr. Patel to discuss the
procedure. [Filing No. 50-38 at 7; Filing No.
50-11 at 18.] Although there is no dispute that this
meeting occurred, the parties give vastly different versions
of the events.
Patel testified as follows:
The morning of surgery, we discussed what he would undergo
would be a minimally invasive L3-4 TLIF. . . . We discussed
that a surgical option for this would involve decompressing
him centrally and involving taking more of the facet joint
that would require a fusion based off the fact that this
would leave him inherently unstable, which his films have
We discussed that we would have to encounter quite a bit of
scar tissue and define the normal ana -- anatomic borders of
the bone. We discussed that we could do this through a
minimally invasion option; less blood loss, shorter hospital
stay, quick immobilization. That this would entail two
incisions in his back that would occur. Each would be about
-- about four centimeters, along with a small one over his
iliac crust. We discussed that we would place -- use a
Stealth OR navigation to kind of help guide the placement.
With this instrumentation, it's like a 360 x-ray and we
would navigate in screws to help stabilize the spine, and
that we would drill out all the bone choking his nerves and
decompress him centrally, along with a lateral recess and
foraminally. We would then address the disk space where he
had recurrent herniation. …
We discussed that the fusion aspect was going to be inhibited
due to his extensive smoking history. . . . That we'd use
bone morphogenetic protein in an off label use to help
facilitate that. This is a synthetic protein that helps the
fusion, that we use it commonly in spine surgery through
other approaches, and that Richard Fessler at Northwestern
uses it extensively in his minimally invasive fusions.
We discussed that the allograft bone, bag of bones that we
call MagniFuse may be necessary if we didn't collect
enough of his own bone. We discussed that the screws would be
placed to help stabilize it, along with rods, and that I
would use a lot of local anesthetic to numb it up to minimize
his discomfort.· I discussed with him that I
didn't anticipate a need for a blood transfusion. The
infection rates through a minimally invasive route are lower
than through a more open, traditional route. We discussed the
hospital stay would be anywhere from around one to three
We discussed that the risks of the procedure inherited CSF
leak based off the fact that it was a recurrent surgery with
reduced scar tissue; that . . . there's a slightly higher
risk of a CSF leak, somewhere that approach around five to
ten percent. We discussed infection rates any time you put in
hardware are higher. . . . But we'd give him
pre-operative and post-operative antibiotics, along with
washout with antibiotics.
We discussed that the other risks involve pseudarthrosis,
meaning that there may not be a fusion despite our best
efforts and that smoking cessation would be vital to get a
good fusion for him moving forward. We discussed the other
risks of using bone morphogenetic protein as it was a
synthetic protein include radiculitis or ectopic bone
formation. We discussed along with the other risk being
anesthesia and death.
[Filing No. 50-38 at 7-11.]
Kraemer recalls that Dr. Patel “explained the
surgery.” [Filing No. 50-11 at 19.] She asked
Dr. Patel “if it was going to be the plates, the
titanium plate screws and a cadaver bone and he said yes and
that's all he said, ” and that she did not ask Dr.
Patel any other questions about surgery because she
“felt like [she] had asked what [she] needed and . . .
thought [she] understood what he was saying.”
[Filing No. 50-11 at 20.] Ms. Kraemer also testified
as to the following:
• Dr. Patel didn't say anything about “any
graft, ” [Filing No. 50-11 at 21];
• Dr. Patel did not tell her “he would be using
bone morphogenetic protein material in the surgery, ”
[Filing No. 50-11 at 22];
• Dr. Patel did not mention “hives” or
“anything resulting in life-threatening hives, ”
[Filing No. 50-11 at 22]; and
• Dr. Patel did not tell her “that he was going to
go in through the side, ” [Filing No. 50-11 at
Kraemer recalls that they “finally got [him] in”
and told him “this is what we're going to have to
do.” [Filing No. 50-1 at 29.] He states that
he had “a serious hearing impairment” and
“did not hear much of Dr. Patel's conversation but