United States District Court, D. New Mexico
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.
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.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
VÁZQUEZ, UNITED STATES DISTRICT JUDGE.
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.
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:
Mary Tsosy's Background and Medical History
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
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.
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.
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
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.
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.
Nez was paid by an organization called Ambercare to take care
of her mother. Id. at 5:24-6:5; 27:21-24.
Nez testified at trial that she enjoyed taking care of her
mother. Id. at 14:1-2.
March 28, 2013 Hospitalization at Lovelace Heart
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.
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.
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.
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.
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.
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,
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.
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.
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. Tr. vol. 2, 98:18-25, 104:1-13.
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.
August 6, 2013 Fall and Visit to Crownpoint Emergency
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.
October 29, 2013 Hospitalization at Crownpoint Healthcare
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
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.
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,
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.
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,
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,
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.
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. See Def. Ex. C.
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,  and age over 75 or 80 years.
Tr. vol. 3, 32:12-25, 33:1-14; Def. Ex. D.
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.
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
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
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.
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,
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.
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.
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.
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
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.
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.
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
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.
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.
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.
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.
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