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Nez v. United States

United States District Court, D. New Mexico

February 13, 2019

Marjorie R. Nez, individually and as the Personal Representative of the Estate of Mary Tsosy, Deceased Plaintiff,
The United States of America Defendant.

          Felicia C. Weingartner Law Offices of Felicia C. Weingartner Albuquerque, New Mexico Attorney for Plaintiff Nez.

          Cid Lopez Law Office of Cid D Lopez Albuquerque, New Mexico Attorney for Plaintiff Nez.

          Roberto D. Ortega United States Attorney's Office Albuquerque, New Mexico Attorney for Defendants.

          Brandon Fyffe United States Attorney's Office Albuquerque, New Mexico Attorney for Defendant.



         THIS MATTER comes before the Court on Plaintiff's Memorandum of Law [Doc. 49], United States' Trial Brief [Doc. 50], Plaintiff's Requested Findings and Conclusions [Doc. 78], and Defendant's Requested Findings of Fact and Conclusions of Law [Doc. 81]. The Court, having considered the briefs, relevant law, trial testimony, exhibits, and being otherwise fully informed, finds that judgment must be entered in favor of Plaintiff and that Plaintiff is entitled to the relief requested, with the exception of damages for loss of consortium.


         The Court is familiar with the facts of this case from pretrial motion practice, a three-day bench trial, and the exhaustive set of exhibits submitted by the parties. Both parties have also submitted proposed findings of fact. See generally Docs. 78, 81. The Court has reviewed both sets of proposed facts and accepts some of these facts, rejects some, and finds some facts that neither party brought to its attention. Accordingly, the Court finds as follows:

         I. Mary Tsosy's Background and Medical History

         1. Mary Tsosy was a Native American woman and a member of the Navajo Tribe. Trial Transcript (“Tr.”) vol. 2, 24:23, July 10, 2018. She was 87 years of age at the time of her death. Pl. Ex. 4, Death Certificate of Mary Tsosy. Marjorie Nez, Ms. Tsosy's daughter, is the personal representative of Ms. Tsosy's estate in this wrongful death action. Id. at 4:12-13; Pl. Ex. 3, Order Appointing Personal Representative.

         2. Ms. Tsosy lived with Ms. Nez and her husband, Tom Nez, from 1998 until the date of her death, on November 8, 2013. Id. at 110:14-16.

         3. Ms. Tsosy remained active during this time by cooking, washing dishes, making her bed, sewing her own clothes, weaving, taking walks, caring for her livestock, and spending time with her family. Id. at 7:10-8:7, 11:9-21. She loved cooking, including Navajo corn mush and tortillas, walking her dogs, going for walks with her family, and playing with and feeding her animals. Tr. vol. 2, 110:23-111:12, 111:15-25. In addition to these hobbies at home, Ms. Tsosy enjoyed traveling out of state to visit her relatives. Id. at 113:17-24.

         4. Marjorie Nez and her mother, Mary Tsosy, shared a close familial relationship. They would hug each morning, and in the evenings they would lay on their beds in a room they shared, talking until they fell asleep. Id. at 13:20-25.

         5. Ms. Nez was Ms. Tsosy's caretaker, assisting her for approximately ten or 20 years prior to her death. Id. at 26:19-24; Pl.'s. Req.'d Findings and Conclusions, ¶ 21, 14, Aug. 24, 2018, ECF No. 78. She was responsible for administering her mother's prescribed medications, including Warfarin, the anticoagulation medication that is at the center of this dispute. Id. at 7:10-21, 8:9-19, 26:22-24, 27:2-28:16. Ms. Tsosy relied upon Ms. Nez to tell her which medications to take, and Ms. Nez would observe Ms. Tsosy take her medications to ensure that she was in fact taking them. Id. at 27:25-28:13.

         6. Ms. Nez also assisted with Ms. Tsosy's bathing (helping so that Ms. Tsosy did not slip in the bathtub), hygiene (including cleaning her dentures and applying eye drops), and taking her to medical appointments. Id. at 8:8-19, 27:3-16, 28:14-24, 13:20-23. Because Ms. Tsosy was monolingual, Ms. Nez was responsible for translating and providing important information at Ms. Tsosy's medical appointments. Tr. vol. 1, 235:4-25, July 9, 2018. Ms. Nez received care instructions for Ms. Tsosy at these appointments. Tr. vol. 2, 28:14-24.

         7. Ms. Nez was paid by an organization called Ambercare to take care of her mother. Id. at 5:24-6:5; 27:21-24.

         8. Ms. Nez testified at trial that she enjoyed taking care of her mother. Id. at 14:1-2.

         II. March 28, 2013 Hospitalization at Lovelace Heart Hospital

         9. On March 28, 2013, Ms. Tsosy was hospitalized at Lovelace Heart Hospital with symptoms of chest pain, shortness of breath, and palpitations. Ms. Tsosy was treated for atrial fibrillation and placed on heart medications and the anticoagulation medication, Warfarin (also referred to as Coumadin) by cardiologist, Mel Peralta, M.D. Pl. Ex. 6 at 5-15; Tr. vol 1, 216:16-18.

         10. After her discharge from Lovelace Heart Hospital, Ms. Tsosy followed up with the Crownpoint anticoagulation clinic as instructed by Dr. Peralta. Pl. Ex. 6 at 15; Def. Ex. H. Ms. Tsosy attended 13 appointments at the Crownpoint anticoagulation clinic between April and October of 2013. At these appointments, her anticoagulation medication was monitored and adjustments were made by the pharmacy physician in order to maintain Ms. Tsosy's International Normalization Ratios (“INRs”) within a therapeutic range. Pl. Ex. 6 at 15.

         11. The INR is a ratio used for patients taking anticoagulants to measure how thin the patient's blood is, and whether the patient is compliant with his or her anticoagulation medication. Tr. vol. 1, 68:19-21. It measures how quickly the patient's blood clots. A higher INR value translates to thinner blood and a lower likelihood of blood clotting whereas a lower number translates to a higher likelihood of clotting. Id. at 7:19-25. The therapeutic range for patients like Ms. Tsosy with atrial fibrillation is between 2.0 and 3.0. Id. at 8:1-2.

         12. Ms. Tsosy was not taken off Warfarin during any of these visits to the Crownpoint anticoagulation clinic despite INR values that were, at times, either sub-therapeutic (below 2.0) or supra-therapeutic (above 3.0). There is no documentation of any discussion about removing her from the medication, nor is there documentation of any concern that the risks of taking Warfarin outweighed the benefits of Warfarin. Pl. Ex. 6 at 15; Def. Ex. H; Tr. vol. 2, 108:6-9. Ms. Tsosy was seen by three separate specialists during this time, including two cardiologists, all of whom kept her on Warfarin. Tr. vol. 1, 213:8-9, 216:16-25, 217:10-13.

         13. Lorenzo Nava, R.N., Ph.D., became Ms. Tsosy's primary care provider beginning on April 15, 2013. Tr. vol. 2, 80:6-15. Dr. Nava based his notes and understanding of Ms. Tsosy's medical history, lifestyle information, and medication compliance on information he received from her. Id. at 64:1-5, 68:22-69:2, 74:7-13, 88:16-89:25, 93:12-18. Over the course of his care of Ms. Tsosy, he assisted in treatment for her congestive heart failure, atrial fibrillation, diabetes, high blood pressure, high cholesterol, and osteoporosis. Id. at 80:23-83:2, 86:4-9, 96:14-17; Def. Ex. A; Def. Ex. A-1.

         14. Dr. Nava testified that Ms. Tsosy was compliant in following up with her primary care provider, and that, to his knowledge, she was compliant with taking her Warfarin. Tr. vol. 2, 73:10-18.

         15. On July 16, 2013, Ms. Tsosy's hemoglobin A1C level was quite high, indicating to Dr. Nava that her blood sugar had been elevated for a period of at least three months. He testified that this could have increased her risk of possible negative outcomes, including an increased risk of fall and uncontrolled bleed. Id. at 86:1-88:4. He also testified that it was a challenge to keep Ms. Tsosy's hemoglobin and glucose levels properly adjusted, and that her elevated A1C levels and sub-therapeutic INR readings could have been due to a lack of compliance with medications. Id. at 88:16-21, 90:1-4, 94:1-4; Def. Ex. A; Def. Ex. A-1.

         16. However, between August and September of 2013, because he considered her blood sugars to be more stable, he changed the frequency of Ms. Tsosy's visits from every two weeks to once a month. Tr. vol. 2, 102:25-103:16. Ms. Tsosy was also considered stable on her Warfarin at that time. Id. at 77:16-22; Pl. Ex. 5 at 16.

         17. On her last visit with Dr. Nava on September 20, 2013, he changed the frequency of her visits from once a month to once every three months because her blood sugar had shown significant improvement and because she was stable on Warfarin since her INR ratios were in the therapeutic range for three visits in a row.[1] Tr. vol. 2, 98:18-25, 104:1-13.

         18. Between April and September of 2013, Ms. Tsosy attended appointments with Dr. Nava on a regular basis to follow up on her diabetes and atrial fibrillation. She was not taken off Warfarin during this time, nor was there any discussion about removing her from Warfarin, or documentation of any concern that the risks of taking Warfarin outweighed the benefits. Pl. Ex. 5 at 16-17, 18-21, 22-24, 31, 34, 37, 42, 45-51, 58, 62-67; Def. Ex. A-1; Def. Ex. G; Tr. vol. 2, 108:6-10. Dr. Nava testified that at no time during his visits with Ms. Tsosy did he have any reason to recommend that she discontinue Warfarin. Id. at 108:6-10.

         III. August 6, 2013 Fall and Visit to Crownpoint Emergency Department.

         19. On August 6, 2013, Ms. Tsosy was seen at Crownpoint Emergency Department after falling and hitting her knee. Although there was a small amount of bruising and swelling observed around her left knee, she was not taken off Warfarin, and there was no discussion of concern about bleeding in her knee. There was no discussion of removing her from Warfarin, and no documentation of any concern by the emergency room physician that the risks of taking Warfarin outweighed the benefits. Pl. Ex. 5 at 18-21; Tr. vol. 1, 86:21-87:3, 89:18-21. The medical records from that date reflect outpatient directions to take one tablet of Warfarin daily, six days a week. Pl. Ex. 5 at 18-19.

         IV. October 29, 2013 Hospitalization at Crownpoint Healthcare Facility

         20. On October 29, 2013, Ms. Tsosy presented to Crownpoint Healthcare Facility with complaints of shallow breath. Def. Ex. A; Pl. Ex. 5 at 6. Medical records from that visit indicate that she presented with multiple co-morbidities, including diabetes, dyslipidemia, atrial fibrillation, congestive heart failure, and high blood pressure. Def. Ex. A at 243; Tr. vol. 1, 33:11-18, 188:10-21, 189:1-14. Her atrial fibrillation was still being managed with Warfarin. Pl. Ex. 5 at 6-10.

         21. On October 29 and 30, 2013, Ms. Tsosy came under the care of physician Dr. Erin Nealon, D.O. Tr. vol. 1, 22:1-3. At this time, Dr. Nealon was an employee of the Defendant, United States, and acting within the scope and course of her employment. Tr. vol. 1, 21:8-22:13.

         22. During her initial assessment, Dr. Nealon reviewed Ms. Tsosy's chart, notes, labs, and medications. Def. Ex. A at 243. She then reviewed Ms. Tsosy's symptoms and determined that Ms. Tsosy had uncontrolled atrial fibrillation, uncontrolled diabetes, and congestive heart failure. Ms. Tsosy's INR ratio was also sub-therapeutic. Def. Ex. A at 6, 239-40; Tr. vol. 1, 68:19-23, 188:16-19. In her evaluation, Dr. Nealon obtained an extensive history, relying on medical assistants and family members (primarily Ms. Nez) who were bilingual. Tr. vol. 1, 190:15-25, 191:1-6, 235:12-25.

         23. Dr. Nealon testified that the INR values were the first thing she referred to in Ms. Tsosy's case, in addition to considering issues of compliance around diabetes control which, Dr. Nealon stated had shifted in the months prior to their first visit. Tr. vol. 1, 68:19-25.

         24. It was noted that Ms. Tsosy was still able to get around the house and “ambulate without falls, ” and that although she had a decline in exertional capacity over the previous year, she had no major changes to her mental status. Pl. Ex. 5 at 243; Def. Ex. A at 239, 243; Tr. vol. 1, 38:9-17, 188:11-21.

         25. Dr. Nealon learned that Ms. Tsosy had uncontrolled diabetes such that her hemoglobin A1C level had risen significantly, which was potentially indicative of non-compliance. Id. at 68:23-25, 69:1-5, 195:17-23. She was also aware that Ms. Tsosy took Warfarin for anticoagulation at the time she was admitted to the hospital, but at that time she was sub-therapeutic with an INR of 1.44. Def. Ex. A at 6, 246; Tr. vol. 1, 191:7-15. This low INR value could have been indicative of non-compliance or of a problem with the patient's diet. Id. at 80:7-18, 195:24-25, 196:1-7.

         26. Dr. Nealon was in charge of assessing Ms. Tsosy's overall risk based on all of her factors. Based on Ms. Tsosy's condition, Dr. Nealon determined that she was at a high risk for stroke and a high risk for bleed given her functional status. Id. at 40:15-20.

         27. The CHADS2-Vasc calculator measures the risk of stroke per year for patients based on certain risk factors. Each factor adds points based on conditions, including age over 75 years, gender, congestive heart failure or hypertension, prior stroke, coronary artery disease, or diabetes. Tr. vol. 3, 30:5-9, 31:2-11, July 11, 2018. Dr. Nealon calculated Ms. Tsosy's CHADS2-Vasc score to be six out of 10 possible points. Tr. vol. 1, 59:14-17; see Pl. Ex. 14. Any score greater than or equal to three is considered a high risk for ischemic stroke.[2] See Def. Ex. C.

         28. The HAS-BLED calculator tabulates certain risk factors to calculate the risk of bleeding. The relevant factors include hypertension, liver disease, prior stroke, bleeding disorder or predisposition, labile INRs, [3] and age over 75 or 80 years. Tr. vol. 3, 32:12-25, 33:1-14; Def. Ex. D.

         29. Dr. Nealon testified that she evaluated Ms. Tsosy based on the CHADS2-Vasc score, HAS-BLED score, and using her own clinical judgment. She determined that the bleeding risk was of more concern to her than the stroke risk. Tr. vol. 1, 205:22-25. In reaching this decision, Dr. Nealon also factored in Ms. Tsosy's fall risk in relation to the bleeding risk. In doing so, she relied on the admitting nurse's “Morse Fall Risk Scale” calculation in the medical chart, which takes into account a patient's history of falls, use of canes or crutches, use of IV medications in the hospital, gait and transfer issues, and weakness. The admitting nurse had calculated a score of 60, which is a high fall risk. Id. at 196:25, 197:1-25, 198:1-11; Def. Ex. A at 196, 264.

         30. Dr. Nealon additionally testified that she observed that Ms. Tsosy required “touch assist” in the hospital in order to walk around, and that she was transferred to a wheelchair when she went for x-rays. Tr. vol. 1, 229:9-22, 230:5-12. She stated that it is part of her “standard of practice” to watch every patient get up and walk, and that typically, she would observe the patient performing at different levels including sitting and talking, standing, and transferring. Id. at 229:9-16, 230:17-22. During her testimony, Dr. Nealon frequently spoke in generalities about her standards of practice, rather than specific interactions with Ms. Tsosy. See e.g. Id. at 49:22-25, 229:9-16, 230:17-22. It was upon being questioned by the Court about this specific patient and this particular case that Dr. Nealon testified that she recalled watching Ms. Tsosy move from the bed to the chair and then to the x-ray machine and observing her ability to walk prior to discharge. Id. at 230:23-231:16. Dr. Nealon conceded that she did not document in the medical records any of her observations with respect to Ms. Tsosy's ability to walk. Id. at 230:13-16. The records indicated that Ms. Tsosy was a fall risk at home and wandered on her own at times, but contained no observations by Dr. Nealon. Pl. Ex. 5 at 240.

         31. Dr. Nealon testified that, based on these evaluations and the information she learned from Ms. Tsosy's family, she was concerned about keeping Ms. Tsosy on Warfarin due to her fall risk and corresponding bleed risk, as well as possible non-compliance with the medication. She also testified that she was concerned, based on the functional assessment, about Ms. Tsosy's overall status, dependency, and ability to perform daily tasks. Tr. vol. 1, 200:5-21, 202:2-14. Based on the lab values, she also found that Ms. Tsosy was not therapeutic with respect to her medications for diabetes, heart rate, blood pressure, or INR values. Id. at 203:1-7.

         32. Dr. Nealon noted in her “Assessment and Plan” that she wanted to “discuss with family stopping Coumadin, ” noting that Ms. Tsosy was sub-therapeutic and of questionable compliance, with her “age-fall risk” outweighing the benefits of the medication. Id. at 91:19-25, 92:1-2; Def. Ex. A at 202.

         33. Dr. Nealon testified that she had a “risk-to-benefit ratio conversation” in which she would have indicated to the family that “if [Ms. Tsosy] stopped Coumadin or if we decide to do that, ” then Ms. Tsosy would be at a high risk for stroke. Tr. vol. 1, 234:3-19. Plaintiff, however, disputes that such conversation ever took place. Tr. vol. 2, 20:13-18.

         34. According to Ms. Nez, Dr. Nealon never informed her or Ms. Tsosy of her mother's high risk for blood clots or stroke if the Warfarin anticoagulation therapy was discontinued. Id. at 20:13-18.

         35. Dr. Nealon did not include in her notes in the medical records any specific reference to a discussion with Ms. Nez or Ms. Tsosy regarding Ms. Tsosy's bleed risk or stroke risk. Tr. vol. 1, 45:2-46:21. She did not specify any discussion of advising Ms. Tsosy to discontinue Warfarin because she was a bleed risk, nor did she specify a conversation regarding Ms. Tsosy's high risk of stroke if she discontinued Warfarin. Id. at 45:8-46:9, 46:10-21; Pl. Ex. 5 at 240.

         36. Ms. Nez testified that Dr. Nealon spoke to her only one time and spent just a few minutes discussing her mother's healthcare with her. Tr. vol. 2, 21:6-10.

         37. On October 30, 2013, Dr. Nealon took Ms. Tsosy off Warfarin. Pl. Ex. 5 at 211. At that time, she had approximately a 36-hour history with Ms. Tsosy. Tr. vol. 1, 128:6-11. Dr. Nealon instructed Ms. Tsosy to start taking a daily dose of aspirin for her uncontrolled diabetes, congestive heart failure, hypertension, and dyslipidemia, all of which Dr. Nealon described as independent risk factors for stroke. She testified that aspirin is an important part of treatment strategies for patients over 65 years of age. However, Ms. Tsosy had already been prescribed a daily dose of aspirin, as instructed by her cardiologist several months prior. Id. at 43:20-25, 64:20-65:4. Dr. Nealon also testified that she believed Ms. Tsosy had a high risk of bleeding so she did not want to treat her with “excessive anticoagulation.” Id. at 65:10-17.

         38. Dr. Nealon testified that Ms. Tsosy had multiple high-risk factors for stroke, including atrial fibrillation, diabetes, age, hypertension, and congestive heart failure. Id. at 26:8-27, 39:16-24. Despite this, Dr. Nealon did not consult or attempt to consult Ms. Tsosy's primary care physician or cardiologists before making the decision to remove her from the medication that they had all previously ordered. Id. at 65:5-9. Further, Dr. Nealon did not obtain a cardiology consult by telephone at Crownpoint Healthcare Facility prior to discontinuing Ms. Tsosy's anticoagulation therapy. Id. at 53:20-54:4.

         39. On the day Dr. Nealon removed Ms. Tsosy from her anticoagulation medication, Ms. Tsosy was at a high risk for stroke. Id. at 116:13-21, 39:16-24. This high risk was due to her atrial fibrillation. Id. at 106:13-20.

         40. Prior to October 29, 2013, Ms. Tsosy had taken Warfarin for anticoagulation without complication. Id. at 109:5-21. Nevertheless, Dr. Nealon discharged Ms. Tsosy home from the hospital without a plan for managing her anticoagulation levels for her atrial fibrillation, other than a daily dose of aspirin. Id. at 67:12-18; Pl. Ex. 5 at 211. Still, there were alternative medications, other than Warfarin, that Dr. Nealon could have considered for Ms. Tsosy. Tr. vol. 1, 117:17-118:4. Dr. Nealon testified that anticoagulation therapy is one way to manage the risk of stroke for patients with atrial fibrillation. Id. at 28:12-19.

         41. Ultimately, in her evaluation, Dr. Nealon determined Ms. Tsosy's bleed risk to be higher than her stroke risk. She testified that her decision to stop the Warfarin was not “black and white, ” and that her decision was based on Ms. Tsosy's medical history, functional status, the decline she was experiencing, her fall risk, the risk-to-benefit ratio including medication compliance, control of disease, and Dr. Nealon's own clinical judgment. Id. at 63:18-64:10. She also based her recommendation on Ms. Tsosy's long-standing dyslipidemia, uncontrolled diabetes, and long-standing hypertension. Id. at 209:8-25.

         42. On October 30, 2013, prior to her discharge from the hospital, Ms. Tsosy was diuresed (excess fluid levels removed). At that time, her heart rate was normalized and her blood pressure had improved. Id. at 204:1-16. Based on her evaluation, Dr. Nealon discharged Ms. Tsosy without Warfarin and continued her on aspirin. She testified that she discharged Ms. Tsosy without a specific anticoagulation drug for atrial fibrillation, but with other medications to reduce her risk of stroke. She testified that Ms. Tsosy had a high risk of stroke due to her chronic long-standing hypertension that was not always controlled, as well as her uncontrolled diabetes, uncontrolled congestive heart failure and left ventricular failure. Id. at 66:10-67:1. Dr. Nealon testified that she mitigated the risk of stroke with a statin lipid-lowering drug for her atrial fibrillation and dyslipidemia. Id. at 67:2-7.

         43. On October 30, 2013, Ms. Nez received and signed the discharge instructions from Dr. Nealon in which Dr. Nealon ordered “stop Warfarin, start low dose aspirin for blood thinning.” Pl. Ex. 5 at 211; Def. Ex. A; Tr. vol. 2, 40:3-9. Pursuant to Dr. Nealon's instructions, Ms. Nez stopped giving Ms. Tsosy Warfarin. Id. at 21:3-5.

         44. The nursing notes from Crownpoint Healthcare Facility on that date indicated that, although Ms. Tsosy was taken to x-ray in a wheelchair, she was able to walk with minimal assistance back from x-ray and later to the vehicle when she was discharged. Pl. Ex. 5 at 199-200, 243. These notes are not consistent with the observations that Dr. Nealon testified she made regarding Ms. Tsosy's ability to walk, but that she failed to record in her notes. Furthermore, Dr. Nealon was not able to describe what Ms. Tsosy looked like, nor could she describe the patient she saw immediately before or after her, Ms. Nez, or Ms. Tsosy's grandson with any specificity. Tr. vol. 1, 48:15-49:25.

         45. The Court finds that Dr. Nealon's memory of her interactions with Ms. Tsosy and her family are dubious, and accordingly does not find credible Dr. Nealon's testimony as to her observations of Ms. Tsosy's ability to walk or her ...

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