Madison - St. Clair Record

Monday, October 14, 2019

Vietnam vet awarded nearly $2 million after prostate cancer signs ignored at VA

By David Hutton | Jan 29, 2018


BENTON – A Marine veteran was awarded a $1.93 million medical malpractice verdict in federal court over allegations that employees and physicians at the Marion VA Medical Center failed to timely diagnose and treat his prostate cancer.

U.S. District Judge Staci M. Yandle entered judgment for Michael E. Gunter following a four-day bench trial that ended Jan. 19.

Gunter, who served during the Vietnam War, also worked for the United States Postal Service for 32 years, retiring in 2005.

According to court records, Gunter, 69, started prostate specific antigen (PSA) screening at the age of 50.

PSA is a protein made by the prostate that can be elevated secondary to prostate cancer. A PSA above four is considered abnormal. Gunter’s PSA levels were in the normal range until 2009, according to the order.

Gunter generally received his medical care from providers at the Marion VA. On April 29, 2009, he presented to Dr. Razia Sami, a primary care physician, to establish primary care with her. Dr. Sami had been a primary care physician at the VA since 2001, and was board certified in internal medicine until 2009, the order states.

Sami ordered a PSA during the initial visit with Gunter, who was 60 at the time.

"The result of the test was PSA of 4.534 and Sami ordered a repeat PSA on the same day. The repeat PSA was 4.317 with a free PSA percentage of 12.05 percent," the order states.

"She diagnosed Gunter with an elevated PSA and recommended that they actively monitor his PSA every six months," the order states.

On Oct. 9, 2009, Gunter saw urologist Dr. Kent Johnson at the Marion VA. During that visit, Johnson ordered another PSA, which came back at 5.578 with a free PSA of 12.28 percent, according to the order.

"Dr. Johnson’s impression was benign prostatic hyperplasia (BPH) with rising PSA" levels, the order states. He also was under the "impression that Gunter had a 42 percent chance of having prostate cancer."

No follow-up visit with Johnson was scheduled by Gunter.

On Feb. 23, 2010, Gunter returned to see Sami, who ordered another PSA test, which came back at 4.968.

While Sami was aware it had been four months since Gunter had seen Johnson, she didn’t talk to Gunter about the importance of returning to see Johnson. 

"She did not believe it was her responsibility to do so," the order states.

From August of 2011 to May 2012, Gunter saw Steve Martinez, a certified physician’s assistant at the Marion VA.

On Aug. 3, 2011, Martinez ordered a PSA. "The result of the test was 7.258, which was 20 percent greater than Gunter’s PSA had been the prior year," the order states.

According to the order, Martinez’s plan of care included "ordering a free-PSA panel, having Gunter return in three months, and referring Gunter to urology if his PSA continued to elevate."

Gunter’s PSA continued to increase and he subsequently visited Dr. Adiraju Palagiri at Marion VA. By late 2012, his PSA was 10.817.

Gunter was referred to Dr. Gerald L. Andriole, the chief of Urologic Surgery at Washington University School Medicine/Barnes-Jewish Hospital.

The order notes that on Feb. 8, 2013, "Andriole performed a laparoscopic bilateral pelvic lymphadenectomy, removing 12 lymph nodes – four of which were positive for metastatic prostate cancer."

Ultimately, Gunter suffered erectile dysfunction and he testified that the size of his penis had decreased. His health issues also have impacted his post-traumatic stress disorder symptoms, the ruling states..

During trial, Andriole testified that in "his opinion, given the extent of the cancer detected on the 2012 biopsy, had a biopsy been performed sometime from 2009 to 2013, there is a good chance it would have shown cancer and it may have been smaller."

Ultimately, Johnson testified that he always discussed the pros and cons of a biopsy with patients and did so in 2009 with Gunter. However, he did not have an independent recollection of treating Gunter.

Moreover, there was no documentation in the medical records indicating that Johnson ever had the required discussions with Gunter. In fact, the order indicates that the medical records “are sparse regarding Johnson’s interaction with Gunter.”

Taking the stand, Gunter testified that Johnson never told him he had a 42 percent chance of having prostate cancer and had Johnson communicated that information to him, “he would have been standing on Dr. Johnson’s desk hollering 42 percent chance, what are we going to do about it?” the order states.

“Gunter’s testimony is credible,” Yandle wrote. “In light of the totality of the evidence in this case, the court finds it highly unlikely that if Gunter was told he had a 42 percent chance of having prostate cancer, he would do nothing.”

Yandle also wrote that the court determined that Johnson “deviated from the applicable standard of care for a urologist treating patients with elevated PSAs, and was therefore negligent.”

The government didn’t offer an expert to defend the conduct of Martinez and court records indicate Martinez tried to defend his own conduct.

Yandle wrote that Martinez’ testimony “was self-serving and lacked credibility.”

Ultimately, the court found that Gunter wasn’t contributorily negligent.

Gunter sought damages for disfigurement, pain and suffering, loss of a normal life, and shortened life expectancy.

Yandle ordered a judgment be entered in Gunter’s favor for $1.93 million. He also was awarded costs.

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U.S. District Court for the Southern District of Illinois