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Kraemer v. United States

United States District Court, S.D. Indiana, Indianapolis Division

April 17, 2018



          Hon. Jane Magnus-Stinson, Chief Judge

         In 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.


         Standard of Review

         A 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. 56(e).

         In 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).

         On 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).



         Many of 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.[1] 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 691.

         A. Treatment Leading up to 2013 Surgery

         Mr. 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].

         In 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.]

         Between 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.]

         In 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. 50-4.]

         In 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.]

         In 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].

         In May 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.]

         Mr. 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.]

         B.2013 Surgery

         1. Discussion with Dr. Patel Prior to Surgery

         On July 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.

         Dr. 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 demonstrated.
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 days.
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.]

         Ms. 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 22].[2]

         Mr. 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 instead ...

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