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Cherry v. United States

United States District Court, D. Arizona

August 15, 2019

Lawrence N Cherry, et al., Plaintiffs,
United States of America, et al., Defendants.



         Plaintiffs 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.


         A. Background

         Plaintiff 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 at 3.)

         B. 2009 VAMC Treatment

         On 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.)

         C. 2010 VAMC Treatment

         On 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 erythematous[1]papule on tip of penis circumscribing anterior aspect of urethral meatus but no erythema in meatus.[2]” (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.[3] (Doc. 289 at 76.)

         Mr. 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 at 103-04.)

         Mr. Cherry initially declined a biopsy at the January 13 appointment but returned for a shave biopsy[4] 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.)

         On 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.)

         D. 2011 VAMC Treatment

         On 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 previous lesion.

         Mr. 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.

         E. 2012 VAMC Treatment

         Mr. 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[5] involvement, and whether there is any other treatment you would recommend[.]” (Ex. 18.)

         On 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.)

         The 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[6] [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.)

         Dr. 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, [7] 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.)

         On June 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 21-22.)

         In 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.)

         Mr. 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 confirm ...

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