United States District Court, D. Arizona
HONORABLE ROSLYN O. SILVER SENIOR UNITED STATES DISTRICT
Lawrence Cherry (“Mr. Cherry”) and Judy Cherry
(“Mrs. Cherry”) filed suit under the Federal Tort
Claims Act (the “FTCA”). Mr. Cherry is a veteran
who received medical care at the Carl T. Hayden VA Medical
Center (the “VAMC”), a facility operated by
Defendant United States of America. Plaintiffs allege that
medical practitioners at the VAMC breached the standard of
care in treating Mr. Cherry's penile squamous cell
carcinoma, causing his partial penectomy in 2013. Plaintiffs
also allege that as a result of the practitioners'
breach, his squamous cell carcinoma metastasized to his lung
and caused a lung lesion to grow. After a six-day bench
trial, and consideration of the testimony of the witnesses,
the exhibits admitted into evidence, and the memoranda
submitted by the parties, the Court makes the following
findings of fact and conclusions of law pursuant to Federal
Rule of Civil Procedure 52. Plaintiffs will be awarded
judgment with respect to Mr. Cherry's partial penectomy
but not with respect to his lung cancer. Judgment in favor of
Plaintiffs shall be awarded in the amount of $3, 750, 000.00.
FINDINGS OF FACT
Lawrence Cherry is a 70-year-old veteran of the Vietnam War.
(Doc. 217 at 3.) Mr. Cherry served in combat from 1966 until
1968, volunteering for a second tour in Vietnam. (Doc. 290 at
227-28.) He has received numerous medals and honors for his
military service. (Doc. 290 at 230.) Mr. Cherry is entitled
to medical treatment through the United States Department of
Veterans Affairs and has been treated for various
service-related conditions, including post-traumatic stress
disorder (“PTSD”), hearing loss, tinnitus,
coronary artery disease, and a blood disorder caused by
exposure to Agent Orange. (Doc. 290 at 231). Mr. Cherry has
been married to Plaintiff Judy Cherry for 44 years. (Doc. 217
2009 VAMC Treatment
February 19, 2009, Mr. Cherry saw Dr. Christopher Reardon, a
dermatologist at the VAMC in Phoenix, Arizona, and reported
he had wart-like, white lesions on his legs and feet, as well
as a similar crusty bump on his penis that he had picked off.
(Doc. 217 at 3.) Dr. Reardon diagnosed Mr. Cherry with benign
keratosis and used liquid nitrogen to freeze off the
keratoses, including one on his penis. (Doc. 217 at 3.) On
April 21, 2009, Mr. Cherry returned to see Dr. Reardon,
reporting that the bump on the head of his penis had
returned, and Dr. Reardon used liquid nitrogen to treat the
bump. (Doc. 217 at 3.)
2010 VAMC Treatment
January 13, 2010, Mr. Cherry again visited the dermatology
department (“Dermatology”) at the VAMC, reporting
a lesion at the tip of his penis. (Doc. 217 at 3.) Physician
Assistant Steven Carbonniere (“PA Carbonniere”)
examined Mr. Cherry and authored a clinical note, which
stated the presence of a “6mm x 4mm
erythematouspapule on tip of penis circumscribing
anterior aspect of urethral meatus but no erythema in
meatus.” (Ex. 5.) Dr. Reardon, who was PA
Carbonniere's supervising physician, was present for a
portion of the appointment but testified that he disagreed
with PA Carbonniere's written description of Mr.
Cherry's lesion. (Doc. 289 at 76.) Dr. Reardon testified
that he recalled the lesion was a macule, which is flat,
rather than a papule, which is raised. (Doc. 289 at 76.)
Cherry was diagnosed with presumed squamous cell carcinoma
(“SCC”) on the tip of his penis and was
prescribed Efudex, a topical cream containing a chemotherapy
agent, to use for two weeks. (Doc. 217 at 4.) Squamous cell
carcinoma is a type of skin cancer. (Doc. 291 at 49.) SCC in
situ is defined as “superficial” and is not
invasive. (Doc. 291 at 74.) Left untreated, SCC in situ can
evolve into invasive SCC. (Doc. 291 at 45.) Dr. Reardon
testified that Mr. Cherry's lesion “did not look
like an invasive carcinoma” because it was a macule
rather than a papule. (Doc. 289 at 93-94.) Dr. Reardon
believed that Mr. Cherry was suffering from an underlying
Human Papilloma Virus (“HPV”) infection, which
can give rise to both SCC in situ and invasive SCC. (Doc. 289
Cherry initially declined a biopsy at the January 13
appointment but returned for a shave biopsy just two days
later on January 15. (Doc. 217 at 3-4.) Dr. Anna
Felty-Duckworth, a pathologist at the VAMC, authored the
pathology report for Mr. Cherry's biopsy. (Ex. 11.)
According to the report, the diagnosis was “squamous
cell carcinoma in-situ (Bowen's disease) involving the
deep and lateral margins.” (Ex. 11.) It also noted:
“Due to the superficial nature of the biopsy, an
underlying invasive component cannot be ruled out.”
(Ex. 11.) A nurse called Mr. Cherry to inform him of the
results of his biopsy. (Doc. 293 at 12-13.) Mr. Cherry
testified that nobody from the VAMC told him the margins of
the biopsy were positive or that invasive SCC had not been
ruled out. (Doc. 293 at 12-13.) A written record of the phone
call stated Mr. Cherry was instructed to continue using
Efudex in accordance with the original treatment plan. (Ex.
12.) Mr. Cherry was neither offered nor informed of any other
treatment options, including a surgical option called Mohs
surgery. (Doc. 293 at 13.)
March 5, 2010, Mr. Cherry returned to the VAMC's
dermatology clinic. The clinical note from this appointment,
authored by PA Carbonniere, observed the Efudex treatment had
“excellent results.” (Ex. 13.) The note indicated
Mr. Cherry had “[m]ild hyperpigmentation on glans penis
around dorsal urethral meatus” but “[n]o invasion
seen into meatus.” (Ex. 13.)
2011 VAMC Treatment
February 9, 2011, Mr. Cherry returned to the dermatology
department at the VAMC. (Ex. 14.) The clinical note, authored
by PA Carbonniere, described another lesion on Mr.
Cherry's penis: “6mm x 3mm erythematous pink scaly
papule on tip of penis circumscribing anterior aspect of
urethral meatus but no erythema in meatus.” (Ex. 14.)
The note stated this lesion was a “[l]ikely
reoccurrence of SCC on tip of penis.” (Ex. 14.) At this
appointment, Mr. Cherry was prescribed Efudex to use for
three weeks. (Ex. 14.) At trial, Dr. Reardon testified that
he disagreed with PA Carbonniere's clinical note, saying
that although nothing in the written record indicates he was
present at the appointment, he recalled examining Mr. Cherry.
(Doc. 289 at 120.) According to Dr. Reardon, Mr. Cherry's
lesion was a flat macule rather than a raised papule, and the
clinical note was again incorrect in its description. (Doc.
289 at 121.) In addition, Dr. Reardon testified Mr.
Cherry's lesion was “linear, ” rather than
circumscribing the meatus as the note observed. (Doc. 289 at
121.) Mr. Cherry, on the other hand, testified the lesion was
raised and “adjacent to the urethral opening.”
(Doc. 293 at 15.) Dr. Reardon also disagreed with the
note's characterization of the lesion as a
“reoccurrence, ” testifying that it “looked
independent” from the previous lesion because he
recalled it was in a different location. (Doc. 289 at
122-23.) The Court concludes that Dr. Reardon's testimony
regarding the February 2011 appointment was not credible. Dr.
Reardon's testimony at trial was inconsistent with his
deposition testimony, in which he stated he did not recall
being present at the February 2011 appointment. (Doc 289 at
118-19.) Moreover, Dr. Reardon's description of Mr.
Cherry's lesion differed from the written record in
almost every material aspect, and the Court finds it
incredible that Dr. Reardon had a detailed memory-at the time
of trial, eight years later-of the particulars of Mr.
Cherry's lesion, down to its exact location relative to a
Cherry again visited the VAMC on July 26, 2011. The clinical
note for this visit was authored by Dr. Reardon. (Ex. 15.)
The note stated Mr. Cherry was “here today for . . .
recurrence of SCC on penis, ” and described the penile
lesion as a “linear 3mm x 7mm erythematous macule at
tip of glans penis.” (Ex. 15.) The note indicated Mr.
Cherry had a history of “SCC of tip of penis” and
that it was “treated for 2 weeks the first time,
” but made no mention of Mr. Cherry's February 2011
appointment and subsequent three-week treatment with Efudex.
(Ex. 15.) Dr. Reardon testified that at this point, he became
concerned because Mr. Cherry had experienced three
occurrences of SCC in situ at or near the tip of his penis,
something he had never seen in his career. (Doc. 289 at
132-33.) But Dr. Reardon determined, without a reliable
medical explanation, that a second biopsy was not needed
because his “clinical judgment told [him] this is still
squamous cell carcinoma in situ.” (Doc. 289 at 136.)
While Dr. Reardon testified during his deposition that he
believed Mr. Cherry had “either a spread [of the
previous lesions] or a new one, ” he testified at trial
that the lesion he observed in July 2011 was a “new
lesion” that was unrelated to the previous lesions.
(Doc. 289 at 133-34.) Dr. Reardon testified that he then
prescribed a four-week treatment of Efudex in July 2011
because he believed that the previous Efudex treatments were
effective and had completely resolved Mr. Cherry's other
lesions. (Doc. 289 at 136.) The clinical note stated:
“[P]atient to return to clinic in 1-2 months to follow
progress of Efudex” and “[m]ay consider urology
eval after [treatment].” (Ex. 15.) According to Dr.
Reardon, he considered referring Mr. Cherry to a urologist
because he was concerned that even though there was no
visible involvement of the “external most portion of
the meatus, ” he could not rule out that “there
might be something beyond” what he could see. (Doc. 289
at 139.) Nonetheless, he did not refer Mr. Cherry to a
urologist at this appointment.
2012 VAMC Treatment
Cherry next saw Dr. Reardon on April 12, 2012, and Dr.
Reardon's clinical note described a “[l]inear 2.5cm
x 1.5cm erythematous macule with scaling at tip of glans
penis, now adjacent to meatus.” (Ex. 17.) According to
the note, “[patient] states that the lesion on his
penis has not gotten any bigger, does not bleed or cause
pain, [does not have] any urinary [symptoms].” (Ex.
17.) The note also indicated that Mr. Cherry “has not
been compliant with [follow up] appointments and admits that
he did not follow through with the 4 weeks Efudex treatment
to the SCC on penis.” (Ex. 17.) At this appointment,
Dr. Reardon referred Mr. Cherry to the urology department
(“Urology”) at the VAMC. (Ex. 17.) Dr.
Reardon's consult request provided information about Mr.
Cherry's history of penile lesions and treatment with
Efudex. (Ex. 18.) It also stated: “SCC site is now
slightly raised and is adjacent to the meatus. Please
evaluate the lesion, particularly if there is any
mucosal involvement, and whether there is any
other treatment you would recommend[.]” (Ex. 18.)
April 30, 2012, Mr. Cherry had an appointment at the
VAMC's urology department and saw Physician Assistant
Robert Torigian (“PA Torigian”) and Dr. Paul
Papoff, a urologist. (Ex. 19.) Dr. Papoff reviewed Mr.
Cherry's medical records and Dr. Reardon's consult
request, and understood “from Dr. Reardon's
referral that he was concerned about the patient, that there
was some other insidious process going on.” (Doc. 292
at 19.) Dr. Papoff testified that he conducted a physical
examination of Mr. Cherry's penis, which included looking
at the genitalia, palpating the genitalia for induration or
hardness, and everting and tubularizing the edges of the
meatus to “look further into the urethral meatus into
the mucosa.” (Doc. 292 at 14-16.) According to Dr.
Papoff, this physical examination did not reveal abnormal
findings in the mucosa. (Doc. 292 at 16.) Mr. Cherry, on the
other hand, testified that Dr. Papoff never physically
examined his penis. (Doc. 293 at 21-22.)
clinical note from this appointment contained an initial
observation written by PA Torigian and signed off by Dr.
Papoff, and an addendum written by Dr. Papoff a day after the
appointment. (Ex. 19.) PA Torigian's clinical note
described two areas of involvement: a “[p]unctate
lesion at the top of the meatus” with “erythema
to left lateral aspect of the meatus.” (Ex. 19.)
Although Dr. Papoff reviewed and signed off on PA
Torigian's note at the time, and Dr. Papoff's
addendum did not describe any type of physical examination or
physical findings of Mr. Cherry's penis, Dr. Papoff
testified at trial, seven years after the appointment, that
he disagreed with PA Torigian's characterization of Mr.
Cherry's lesion as “at the top of the
meatus.” (Doc. 292 at 34; Ex. 19.) According to Dr.
Papoff, he recalled “there was a punctate lesion which
was lateral to the meatus, on the left lateral side, not
involving the meatus.” (Doc. 292 at 34.) And while PA
Torigian's note indicated two areas of involvement, Dr.
Papoff testified there was only one. (Doc. 292 at 37.) Dr.
Papoff's addendum noted Mr. Cherry had “no new
voiding [complaints]” but “had a splayed
stream [while urinating for] 5 yr.” (Ex.
19.) Mr. Cherry testified he did not tell Dr. Papoff that he
had experienced a splayed stream for five years. (Doc. 293 at
21.) Rather, Mr. Cherry testified that as of April 2012, he
had experienced a splayed stream for approximately five
months and that he told Dr. Papoff it was five months. (Doc.
293 at 21.)
Papoff testified that he determined Mr. Cherry's
condition was “not concerning” based on the
physical examination. (Doc. 292 at 18.) Moreover, Dr. Papoff
testified that a splayed stream for five years was not cause
for concern because “five years implies chronicity,
meaning it's been there for a long time, it's not
troubling, it's not causing the patient any ill
effect.” (Doc. 292 at 62.) Allegedly because Dr. Papoff
believed Mr. Cherry's condition was not concerning, he
did not perform a cystoscopy,  a very basic urological procedure
in which a scope is passed through the urethra for
inspection. (Doc. 292 at 20.) According to Dr. Papoff, a
cystoscopy was not clinically indicated because he allegedly
“saw no evidence of any meatal involvement of the
lesion, and the patient had no history that indicated any
voiding problems were new or changed or different or were
bothersome to him.” (Doc. 292 at 22.) Inexplicably, Dr.
Papoff did order a CT scan of the abdomen and pelvis to
evaluate Mr. Cherry for potential lymph node involvement and
metastatic disease. (Doc. 292 at 54.) Dr. Papoff testified,
but did not credibly explain why, a CT scan to look for
metastasis was clinically indicated even though a cystoscopy
to assess urethral involvement was not. (Doc. 292 at 54.)
21, 2012, Mr. Cherry had an appointment with Dr. Reardon in
Dermatology to follow up about the lesion on his penis. Dr.
Reardon's note stated that “[patient] went to
Urology after starting the Efudex treatment but they just
ordered an abdominal CT and did not look at the meatus of the
penis as requested.” (Ex. 21.) Dr. Reardon also
recorded: “[Patient] to [follow up] with Urology today
and asked him to specifically ask them [to] check the mucosal
meatus of the penis to ensure that it is clear.” (Ex.
21.) Dr. Reardon testified that Mr. Cherry told him the
urology department had not looked at his meatus or urethra,
and that Dr. Reardon sent Mr. Cherry back “to tell the
urologist that he needed to inspect the mucosal
meatus.” (Doc. 289 at 160-61.) Mr. Cherry then saw Dr.
Papoff on the same day. (Ex. 22.) Dr. Papoff reviewed the
results of the CT scan with Mr. Cherry, which showed no
evidence of metastatic disease. (Ex. 22.) In his note, Dr.
Papoff wrote that Mr. Cherry reported “the lesion has
fully resolved, ” and recorded that “penis /
meatus normal.” (Ex. 22.) According to Dr. Papoff, he
made this finding after performing a physical examination.
(Doc. 292 at 23.) But, as noted above, Mr. Cherry testified
that Dr. Papoff never examined his penis. (Doc. 293 at
August 2012, Mr. Cherry underwent heart surgery for an
unrelated condition. As a consequence of this surgery, Mr.
Cherry was prescribed the blood thinner Plavix. (Doc. 293 at
24.) After his recovery from heart surgery, Mr. Cherry rather
desperately attempted to make another appointment with
Urology. (Doc. 293 at 24.) According to Mr. Cherry, when he
spread apart the opening of his penis, he “could see
something white in the inside.” (Doc. 293 at 24-25.)
Mr. Cherry also experienced pain and sensitivity of his
penis. (Doc. 293 at 27.) Mr. Cherry made multiple calls to
Urology but never received an answer. (Doc. 293 at 25.)
Consequently, as supported by the VAMC's records, Mr.
Cherry contacted a patient advocate on October 29, 2012, and
said: “I have been trying to contact the Urology clinic
with no luck. No. one answer[s] the phone and there is no
voicemail.” (Ex. 24.) Mr. Cherry requested that someone
call him back to “schedule an [appointment] as soon as
possible.” (Ex. 24.) Dr. Papoff then called Mr. Cherry
on October 30, 2012, and his note of the call stated:
“[Patient] called [regarding] pain at glans penis. It
is sensitive to touch. He has no visible lesion on penis and
denies discharge or dysuria. [Patient was] advised that
urology cannot help him with this and that it might represent
a neuropathic pain. Advised to contact dermatology[.]”
(Ex. 25.) Mr. Cherry testified that Dr. Papoff emphatically
told him: “What part of this don't you understand?
There's nothing I can do to help you. This case is
closed. Go see Dr. Reardon.” (Doc. 293 at 25.)
Cherry returned to Dr. Reardon. Dr. Reardon's note, dated
November 29, 2012, stated: “For SCC [patient] went to
Urology but felt he was not properly examined. No. current
external lesions on penis. Now for the past 3 months is
having hypersensitivity at the tip of the penis and noted a
white lesion at the meatus. Has split stream when
urinating.” (Ex. 29.) Dr. Reardon referred Mr. Cherry
back to Urology, noting: “[Patient] to reschedule with
urology as problem associated with penis is internal and
[patient] describes urethral obstruction. Also want them to