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Teel v. United States

United States District Court, N.D. Oklahoma

January 7, 2020

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

          OPINION AND ORDER

          GREGORY K. FRIZZELL, UNITED STATES DISTRICT JUDGE

         Before the court is the Motion to Exclude Certain Testimony of Plaintiff's Expert [Doc. 2');">2');">42');">2');">2');">2');">42');">2] and Motion for Summary Judgment [Doc. 3');">43] of defendant United States of America. For the reasons set forth below, the motions are denied.

         I. Background

         This case arises from the alleged negligence of medical professionals at Claremore Indian Hospital (“CIH”), a government owned and operated healthcare facility. Mr. Teel, a citizen of the Cherokee Nation, has received medical care at the CIH for most of his life. [Doc. 44, p. 51; Doc. 49');">49');">49');">49, p. 4');">p. 41]. Mr. Teel was diagnosed with prostate cancer in October 2');">2016. [Doc. 44, 1');">p. 1');">1');">p. 1');">1');">p. 1');">1');">p. 10, ¶ 16; Doc. 49');">49');">49');">49, p. 8, ¶ 16]. He alleges that CIH providers delayed and exacerbated his cancer by failing to timely refer him to a urologist and administering testosterone injections. “The testosterone treatment accelerated the growth of the cancer, making conservative treatment improbable. Earlier diagnosis and treatment . . . would more likely than not have delayed and/or obviated the need for surgery.” [Complaint, Doc. 2');">2, 2');">2');">p. 2');">2, ¶ 6]. Mr. Teel brings this action for medical negligence pursuant to the Federal Tort Claims Act, 2');">28 U.S.C. §§ 1346(b), 2');">2671-80. [Complaint, Doc. 2');">2, 1');">p. 1');">1');">p. 1');">1');">p. 1');">1');">p. 1, ¶ 2');">2].

         Defendant United States of America moves for summary judgment. [Doc. 3');">43]. Defendant argues “[t]he undisputed facts of this case, taken in a light most favorable to Mr. Teel, establishes that Defendant's care did not cause him any damages.” [Doc. 3');">43, 1');">p. 1');">1');">p. 1');">1');">p. 1');">1');">p. 1]. Put another way, defendant contends “Mr. Teel provides nothing beyond sheer speculation that his outcome would have been any different if the care provided by CIH had been different.” [Doc. 50');">50');">50');">50, 1');">p. 1');">1');">p. 1');">1');">p. 1');">1');">p. 1]. Defendant also moves to exclude portions of testimony by Mr. Teel's expert, Dr. Marc Steven Milsten. [Doc. 2');">2');">42');">2');">2');">2');">42');">2]. Defendant argues Dr. Milsten's opinions on (1) the relationship between testosterone and the growth of prostate cancer and (2');">2) whether the care provided by CIH caused Mr. Teel's alleged damages “are not reliable and/or based on speculation.” [Doc. 2');">2');">42');">2');">2');">2');">42');">2, 1');">p. 1');">1');">p. 1');">1');">p. 1');">1');">p. 1].

         II. Relevant Facts

         The facts in this matter are largely undisputed. Doctors use prostate specific antigen (“PSA”) blood tests to screen patients for the risk of prostate cancer. [Doc. 44, p. 5, ¶ 3; Doc. 49');">49');">49');">49, p. 5, ¶ 3]. When used correctly, PSA tests are considered reliable and valuable in the field of urology. [Id.]. However, PSA tests alone do not indicate whether a man has prostate cancer or not. [Doc. 44, p. 6, ¶ 3; Doc. 49');">49');">49');">49, p. 5, ¶ 3]. CIH providers tested Mr. Teel's PSA level on at least four occasions:

1. Mr. Teel's PSA levels were first tested at the CIH Walk-In Clinic on March 6, 2');">2012');">2. [Doc. 44, p. 6, ¶ 4; Doc. 49');">49');">49');">49, p. 5 ¶ 4]. His PSA on that day was 4.78, which was considered high. [Doc. 44, p. 6, ¶ 5; Doc. 49');">49');">49');">49, p. 5, ¶ 5]. However, the PSA may not have been reliable because Mr. Teel had acute prostatitis at the time of the test. [Doc. 44, p. 6 ¶¶ 4-5; Doc. 49');">49');">49');">49, p. 5, ¶¶ 4-5].
2');">2. On August 2');">25, 2');">2014, Mr. Teel returned to the CIH with complaints of pain and swelling from an arm tattoo. [Doc. 44, pp. 6-7, ¶ 6; Doc. 49');">49');">49');">49, p. 5, ¶ 6]. His PSA on that day was 4.00, which was considered at the high end of normal. [Id.]. At a follow-up visit on August 2');">28, 2');">2014, another PSA was ordered. [Doc. 44, p. 7, ¶ 7; Doc. 49');">49');">49');">49, p. 5, ¶ 7]. However, no follow-up PSA was performed. [Id.].
3. Mr. Teel went to the CIH again on March 7, 2');">2016 because of low energy and libido, as well as a lump on his right elbow. [Doc. 44, p. 7, ¶ 8; Doc. 49');">49');">49');">49, p. 6, ¶ 8]. Blood work performed showed Mr. Teel's testosterone levels were low. [Id.]. At a follow-up visit on March 2');">21, 2');">2016, Mr. Teel began testosterone replacement therapy. [Doc. 44, p. 8, ¶ 9; Doc. 49');">49');">49');">49, pp. 6-7, ¶ 9]. That day, his PSA level was elevated to 7.17. [Id.]. On April 11, 2');">2016, Mr. Teel's testosterone dose was increased and, because of his elevated PSA score, he was referred to a urologist. [Doc. 44, p. 8, ¶¶ 10-11; Doc. 49');">49');">49');">49, p. 7, ¶¶ 10-11].
4. On August 17, 2');">2016, Mr. Teel returned to the CIH for follow-up for his elevated PSA. [Doc. 44, 1');">p. 1');">1');">p. 1');">1');">p. 1');">1');">p. 10, ¶15; Doc. 49');">49');">49');">49, p. 7, ¶ 15]. Mr. Teel's PSA was elevated to 12');">2.88 on that day. [Id.]. Mr. Teel was again referred to a urologist. [Id.].

         Mr. Teel ultimately received care for his elevated PSA from the Urologic Specialists of Oklahoma (“USO”). [Doc. 44, 1');">p. 1');">1');">p. 1');">1');">p. 1');">1');">p. 10, ¶ 16; Doc. 49');">49');">49');">49, p. 8, ¶ 16]. On October 6, 2');">2016, Dr. Andrew Wright performed a biopsy and diagnosed Mr. Teel with prostate cancer. [Id.]. Dr. Wright determined Mr. Teel's prostate cancer was moderately aggressive with a Gleason Score of 7.[1" name="FN1" id="FN1">1] [Id.]. Mr. Teel continued to receive testosterone replacement therapy until providers at CIH were advised of Mr. Teel's prostate cancer diagnosis on October 17, 2');">2016. [Doc. 44, p. 8, ¶ 9; Doc. 49');">49');">49');">49, pp. 6-7, ¶ 9].

         Mr. Teel met with Dr. Marc Milsten at USO for a prostate cancer treatment consultation on October 2');">26, 2');">2016. [Doc. 44, 1');">p. 1');">1');">p. 1');">1');">p. 1');">1');">p. 11, ¶ 17; Doc. 49');">49');">49');">49, p. 8, ¶ 17]. Dr. Milsten specializes in prostate cancer care. [Id.]. Dr. Milsten and Mr. Teel discussed Mr. Teel's treatment options, including surveillance, radiation therapy, and surgical intervention. [Id.]. Mr. Teel ultimately elected to have surgery despite the known possible side effects, including urinary incontinence and erectile dysfunction. [Doc. 44, 1');">p. 1');">1');">p. 1');">1');">p. 1');">1');">p. 11, ¶ 18; Doc. 49');">49');">49');">49, p. 8, ¶ 18]. On December 19, 2');">2016, Dr. Milsten successfully removed Mr. Teel's prostate and tumor contained therein. [Doc. 44, 1');">p. 1');">1');">p. 1');">1');">p. 1');">1');">p. 12');">2, ¶ 2');">20; Doc. 49');">49');">49');">49, p. 8, ¶ 2');">20]. The prostate cancer was moderate volume, had a Gleason Score of 7, and involved ten percent of the prostate on the left side. [Id.]. No. cancer was detected on the right side of Mr. Teel's prostate and it had not metastasized. [Id.].

         Dr. Milsten provided post-operative care to Mr. Teel. [Doc. 44, 1');">p. 1');">1');">p. 1');">1');">p. 1');">1');">p. 12');">2, ¶ 2');">21; Doc. 49');">49');">49');">49, p. 8, ¶ 2');">21]. Mr. Teel has suffered urinary incontinence and erectile dysfunction as a result of the surgery, but, to date, Mr. Teel has no evidence of recurrence of the cancer. [Doc. 44, 1');">p. 1');">1');">p. 1');">1');">p. 1');">1') ...


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