Case 1:17-cv-00005-EAW-MJR Document 107 Filed 12/28/20 Page 1 of 70
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF NEW YORK
`_____________________________________
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`GERALD CULHANE and CAROL
`CULHANE,
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`UNITED STATES OF AMERICA,
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`Defendant.
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`_____________________________________
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`v.
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`Plaintiffs,
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`DECISION AND ORDER
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`1:17-CV-00005 EAW
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`Plaintiffs Gerald Culhane (“Mr. Culhane”) and Carol Culhane (“Mrs. Culhane”)
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`INTRODUCTION
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`(collectively, “Plaintiffs”) commenced this action on January 3, 2017, alleging a cause of
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`action against the United States of America (“Defendant”) pursuant to the Federal Tort
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`Claims Act, 28 U.S.C. §§ 2671-2680 (the “FTCA”). (Dkt. 1). Plaintiffs seek damages due
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`to the alleged negligence of Defendant’s employees in failing to timely diagnose several
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`cancerous growths Mr. Culhane suffered from while under Defendant’s care. (Id. at ¶ 11).
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`On August 20, 2013, Mr. Culhane saw his primary care physician at the Buffalo
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`Veteran’s Administration Medical Center (“Buffalo VAMC”) complaining of a lump in
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`his left neck that had been present for three months. A computed tomography (“CT”) scan
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`was ordered, and on September 5, 2013, the results of the CT scan were reviewed and
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`found to be unremarkable. However, a mass was obviously present in the CT images. Mr.
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`Culhane was notified of the purportedly negative test results the same day, and there was
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`no follow up on the lump. Over a year-and-a-half later, on April 27, 2015, Mr. Culhane
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`called the Buffalo VAMC to report that the lump on his left neck was growing and
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`requested another medical evaluation. Another CT scan of his neck was performed on May
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`11, 2015, and it was discovered that a large, submandibular mass was present in both the
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`2013 and 2015 CT scans. The lump was determined to be keratinizing squamous cell
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`carcinoma in the left palatine tonsil, and Mr. Culhane underwent 40 radiation treatments
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`and seven cycles of weekly intravenous chemotherapy, which he completed on August 25,
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`2015. Although this initial treatment appeared successful, on January 24, 2017, a
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`recurrence of the cancer was discovered in Mr. Culhane’s tonsil. He underwent a radical
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`tonsillectomy and a left modified neck dissection on March 23, 2017.
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`In addition, on January 13, 2014, Mr. Culhane was examined at the Buffalo VAMC
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`Dermatology Clinic to evaluate a skin lesion on his right temple. A benign condition was
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`diagnosed and liquid nitrogen cryotherapy used on the lesion. Mr. Culhane returned to the
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`Dermatology Clinic on April 18, 2014, and a punch biopsy of the lesion was performed.
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`On April 22, 2014, Henry D. Friedman, M.D. (“Dr. Friedman”), diagnosed a benign
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`condition based on the sample taken, and Mr. Culhane was told that the lesion was non-
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`malignant. On February 23, 2015, Mr. Culhane was evaluated by a dermatologist in
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`Rochester, New York, for a different skin issue. (Id. at ¶ 59). The dermatologist performed
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`a shave biopsy of the right temple lesion the same day and confirmed the diagnosis of a
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`malignant melanoma. On March 24, 2015, a Mohs surgical excision of the malignant
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`melanoma was performed at Strong Memorial Hospital in Rochester, New York.
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`Defendant concedes that it owed a duty to Mr. Culhane, and that the failure to
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`diagnose Mr. Culhane with squamous cell carcinoma in September 2013 was a departure
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`Case 1:17-cv-00005-EAW-MJR Document 107 Filed 12/28/20 Page 3 of 70
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`from the standard of care. (Dkt. 52 at 14). The parties dispute proximate cause as to the
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`squamous cell carcinoma. Specifically, while Plaintiffs concede that Mr. Culhane would
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`have had to undergo chemotherapy and radiation regardless of when the squamous cell
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`carcinoma was diagnosed, they contend that the recurrence of the cancer and the surgery
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`Mr. Culhane underwent to treat the recurrence were a result of the delay in diagnosis.
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`Defendant argues that the delay in diagnosis of the squamous cell carcinoma did not cause
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`the recurrence, diminish Mr. Culhane’s chance of a better outcome, or increase his injury.
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`The parties also dispute whether there was a delay in diagnosis and treatment of the
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`melanoma. Whereas Plaintiffs contend Defendant deviated from the standard of care as to
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`the diagnosis and treatment of Mr. Culhane’s cancers, Defendant maintains that the
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`diagnosis and treatment of the skin lesion in 2014 was reasonable.
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`After considering all of the evidence, the Court finds that Plaintiffs have failed to
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`establish medical malpractice for failure to timely diagnose Mr. Culhane’s malignant
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`melanoma, but have established medical malpractice for failure to timely diagnose Mr.
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`Culhane’s squamous cell carcinoma. The Court finds that Plaintiffs have established their
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`entitlement to recover a total of $1,950,000 in damages for the injuries that they have
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`proven they suffered as a result of Defendant’s actions. This Decision and Order
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`constitutes the Court’s findings of fact and conclusions of law pursuant to Rule 52(a) of
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`the Federal Rules of Civil Procedure.
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`PROCEDURAL BACKGROUND
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`Plaintiffs filed the instant matter on January 3, 2017. (Dkt. 1). Defendant filed its
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`Answer on March 6, 2017 (Dkt. 9), and the case was referred to United States Magistrate
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`Judge Michael J. Roemer for all pretrial matters excluding dispositive motions. (Dkt. 10).
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`Discovery closed on May 17, 2019 (Dkt. 40), and a pretrial conference was held on
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`December 19, 2019, before the undersigned, where the parties stipulated to the dismissal
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`of Plaintiffs’ third cause of action with prejudice (Dkt. 63; Dkt. 64). A bench trial
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`commenced on January 13, 2020. (Dkt. 73). After nine days of testimony spread out over
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`the course of several months, the bench trial concluded on June 16, 2020. (Dkt. 93).
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`Following the bench trial, the parties submitted their written summations and
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`proposed findings of fact and conclusions of law on July 22, 2020. (Dkt. 97; Dkt. 98; Dkt.
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`99; Dkt. 100; Dkt. 101; Dkt. 102). Responsive proposed findings of fact and conclusions
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`of law were submitted on July 31, 2020. (Dkt. 103; Dkt. 104; Dkt. 105).
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`FINDINGS OF FACT
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`The following section constitutes the Court’s Findings of Fact pursuant to Federal
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`Rule of Civil Procedure 52(a)(1). The Court has made its Findings of Fact based on the
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`testimony and exhibits presented at trial, and has discussed only those issues considered
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`“material to the resolution of the parties’ claims.” Cliffstar Corp. v. Alpine Foods, LLC,
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`No. 09-CV-00690-JJM, 2016 WL 2640342, at *1 (W.D.N.Y. May 10, 2016) (citing I.N.S.
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`v. Bagamasbad, 429 U.S. 24, 25 (1976) (“[C]ourts . . . are not required to make findings
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`on issues the decision of which is unnecessary to the results they reach.”)). Moreover, “the
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`distinction between law and fact is anything but clear-cut” and therefore, “for purposes of
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`appellate review, the labels of fact and law assigned” should not be considered controlling.
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`Id. (quotation marks and citations omitted).
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`I.
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`Burden of Proof
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`“In a civil case, the plaintiff bears the burden of proving the elements of his claim
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`by a preponderance of the evidence.” Brown v. Lindsay, Nos. 08-CV-351, 08-CV-2182,
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`2010 WL 1049571, at *12 (E.D.N.Y. Mar. 19, 2010). “To establish a fact by a
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`preponderance of the evidence means to prove that the fact is more likely true than not
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`true.” Id. (quoting Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997)). “Under the
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`preponderance of the evidence standard, if the evidence is evenly balanced, the party with
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`the burden of proof loses.” Richardson v. Merritt, No. 12-CV-5753 (ARR), 2014 WL
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`2566904, at *5 (E.D.N.Y. June 4, 2014) (citing Kosakow v. New Rochelle Radiology
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`Assocs., 274 F.3d 706, 731 (2d Cir. 2001)). In other words, if the credible evidence on a
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`given issue is evenly divided between the parties—that it is equally probable that one side
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`is right as it is that the other side is right—then the plaintiff has failed to meet his burden.
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`“An affirmative defense, by contrast, is a defense that the defendants must assert and prove,
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`and for which they have the burden.” Amerio v. Gray, No. 5:15-CV-538, 2019 WL
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`5307248, at *2 (N.D.N.Y. Oct. 21, 2019); see Barton Grp., Inc. v. NCR Corp., 796 F. Supp.
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`2d 473, 498 (S.D.N.Y. 2011) (“[A] defendant asserting an affirmative defense bears the
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`burden of proof with respect to that defense.”), aff’d, 476 F. App’x 275 (2d Cir. 2012).
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`II.
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`Undisputed Facts1
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`The parties stipulate to the following facts. On August 20, 2013, Mr. Culhane went
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`to see Caroline E. Fernandez, M.D. (“Dr. Fernandez”), his primary care physician at the
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`The following facts are taken from the parties’ written stipulation, which was
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`entered into evidence as Court Exhibit 1.
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`Buffalo VAMC. (Dkt. 70 at ¶ 1). Mr. Culhane complained of a “lump in the left neck”
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`that had been present for three months. (Id.). Dr. Fernandez’s physical examination of the
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`left submandibular area of Mr. Culhane’s neck, i.e., the area under his left jaw, revealed a
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`four-by-five-centimeter firm mass. (Id.). Dr. Fernandez suspected the mass was a
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`neoplasm, or tumor, and she ordered a CT scan be done of his neck, both with and without
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`contrast dye. (Id.). She noted that an ear, nose, and throat (“ENT”) consultation would
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`follow the CT. (Id.).
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`On September 4, 2013 a CT scan was performed on Mr. Culhane’s neck at the
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`Buffalo VAMC. (Id. at ¶ 2). The CT imaging was done without contrast, although Mr.
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`Culhane’s medical records do not indicate that Dr. Fernandez’s order for a CT with contrast
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`dye was ever contraindicated. (Id.). Angelo DelBalso, M.D. (“Dr. DelBalso”) interpreted
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`the non-contrast imaging of Mr. Culhane’s neck and reported, “no submandibular mass
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`lesions noted,” and “subcentimeter sized benign submandibular lymph nodes are
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`identified.” (Id. at ¶ 3). However, without contrast, a 2.5 by 4-centimeter Level II, left-
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`sided mass was visible on the September 3, 2013 CT images. (Id.).
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`On September 5, 2013, based on Dr. DelBalso’s CT interpretation, Dr. Fernandez
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`wrote as an Addendum to her Primary Care Note of August 20, 2013: “Good news: No
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`evidence of a mandibular tumor that will require biopsy.” (Id. at ¶ 4). The same day,
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`Michelle Gaylord, Registered Nurse (“RN”), noted in another Addendum to the Primary
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`Care Note of August 20, 2013, that Mr. Culhane had been notified of his CT scan results.
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`(Id.). Mr. Culhane was not referred to an ENT physician. (Id.). Dr. Fernandez examined
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`Mr. Culhane at “routine follow-up” visits on December 3, 2013, June 2, 2014, and
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`December 10, 2014. (Id. at ¶ 5). At each of these visits, she listed “Neoplasm of uncertain
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`behavior of neck” under the “Active Problem” list. (Id.). The parties dispute what occurred
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`at these visits. (Id.).
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`In Dr. Fernandez’s notes for the December 3, 2013, follow-up visit, she wrote there
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`was a “0.3 x 0.3 irregular flat brown lesion with darkened center on the right temple,” and
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`referred Mr. Culhane for a dermatology consult. (Id. at ¶ 6). On January 13, 2014, Mr.
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`Culhane went to the Buffalo VAMC Dermatology Clinic, where he was examined by
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`dermatology resident Jennifer Powell, M.D. (“Dr. Powell”). (Id. at ¶ 7). Dr. Powell noted
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`no personal or family history of skin cancer. (Id.). Mr. Culhane told Dr. Powell that a skin
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`lesion on his right temple had been “present for over one year and [that he] thinks it is
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`gradually enlarging.” (Id.). Dr. Powell noted a 1.6 by 1.8 centimeter “asymmetric light to
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`dark brown very thin plaque with a waxy and stuck-on appearance.” (Id.). She diagnosed
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`a “probable large seborrheic keratosis,” treated the lesion with liquid nitrogen cryotherapy,
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`and instructed Mr. Culhane to return for follow-up care in three months. (Id.).
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`On April 18, 2014, Mr. Culhane went to the VAMC Dermatology Clinic2 for his
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`three-month follow-up appointment. (Id. at ¶ 8). Dermatology resident Amanda B.
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`Carpenter, M.D. (“Dr. Carpenter”) examined him and noted that cryotherapy had not
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`resolved the lesion on Mr. Culhane’s right temple. (Id.). Mr. Culhane told Dr. Carpenter
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`that the lesion had been present for several years and that he did not think it had grown in
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`The doctors practicing at the VAMC Dermatology Clinic are not VA employees,
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`but instead are independent contractors. (Dkt. 98 at ¶ 50). Accordingly, none of the claims
`in this lawsuit are brought against the VAMC Dermatology Clinic practitioners.
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`size or changed in color since his last visit, but that it was difficult for him to see and
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`monitor given its location. (Id.). Dr. Carpenter described the lesion as “[r]ight temple
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`asymmetric, irregularly pigmented light to dark brown patch measuring 2.0 x 1.8 cm,” and
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`diagnosed “[n]eoplasm uncertain behavior of skin” with a differential diagnosis of “solar
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`lentigo vs lentigo maligna vs seborrheic keratosis.” (Id.). To “aid in diagnosis and rule
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`out Lentigo Maligna,” Dr. Carpenter performed a 0.4 by 0.3 by 0.3 centimeter punch biopsy
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`of the lesion, which is a procedure in which a small round piece of tissue is removed using
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`a sharp, hollow, circular instrument. (Id.).
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`On April 23, 2014, the surgical pathology report of the punch biopsy was diagnosed
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`by pathologist Dr. Friedman as “[s]olar lentigo, focal early junctional nevus, focal mild
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`melanocytic atypia.” (Id. at ¶ 9). Mr. Culhane had a follow-up appointment at the
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`Dermatology Clinic with Dr. Carpenter on April 25, 2014. (Id. at ¶ 10). Dr. Carpenter
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`removed Mr. Culhane’s sutures and told him that the biopsy of the lesion on his right
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`temple showed Solar Lentigo, a non-malignant condition. (Id.). Dr. Carpenter told Mr.
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`Culhane to perform monthly skin checks and advised him to return to the Dermatology
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`Clinic for follow-up in three months. (Id.). At Mr. Culhane’s June 2, 2014, and December
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`10, 2014, evaluations with his primary care physician Dr. Fernandez, she did not make any
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`reference to the lesion on Mr. Culhane’s right temple. (Id. at ¶ 11). Mr. Culhane canceled
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`an appointment with the VA’s Dermatology Clinic in August 2014. (Id. at ¶ 12).
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`On February 23, 2015, Mr. Culhane consulted with non-VA dermatologic specialist
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`Michael Bobrow, M.D. (“Dr. Bobrow”) regarding a hyperkeratotic plaque on the lower
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`helix of his ear. (Id. at ¶ 13). During the course of his examination, Dr. Bobrow noticed a
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`lesion on Mr. Culhane’s right temple, referred to in his report as the right lateral canthus.
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`(Id.). Mr. Culhane told Dr. Bobrow that the lesion had been previously biopsied at the VA
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`and found to be benign. (Id.). Noting that the “area was very atypical in appearance,” Dr.
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`Bobrow requested and received the VAMC pathology report that had been performed ten
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`months earlier. (Id.). His review of the report led him to “certainly worry about sampling
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`error.” (Id.). Dr. Bobrow performed three shave biopsies of the lesion. (Id.). The
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`pathology report of the shave biopsies revealed the presence of “in situ melanoma of the
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`lentigo maligna type that extends to the lateral margins.” (Id. at ¶ 14).
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`On March 3, 2015, Dr. Bobrow told Mr. Culhane that the results of the shave
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`biopsies revealed malignant melanoma. (Id. at ¶ 15). Because a specialized type of surgery
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`would be required to remove the lesion, Dr. Bobrow referred Mr. Culhane to Marc D.
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`Brown, M.D. (“Dr. Brown”), of University Dermatology Associates. (Id.). On March 24,
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`2015, Dr. Brown performed a Mohs surgical excision of the malignant melanoma at Strong
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`Memorial Hospital. (Id. at ¶ 16). Dr. Brown performed a rotation flap on March 26, 2015,
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`to close the skin defect that resulted from the modified Mohs procedure. (Id. at ¶ 17). On
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`April 2, 2015, Mr. Culhane had a post-operative follow-up appointment with Dr. Brown,
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`and he continues to have skin checks with Dr. Bobrow every three to six months. (Id. at
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`¶¶ 18-19).
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`On April 27, 2015, Mr. Culhane telephoned his primary care provider to report “a
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`growth on the left side of my face which seems to be growing fast” and to request an
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`evaluation. (Id. at ¶ 20). On April 30, 2015, Mr. Culhane was evaluated at the Buffalo
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`VAMC by Family Nurse Practitioner (“FNP”) Cheryl L. Rymarkczyk. (Id. at ¶ 21). Mr.
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`Culhane’s chief complaint was an enlarging, painless left neck mass and lower jaw
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`swelling, and he also complained of pain on palpation of his left ear tragus. (Id.). He
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`reported that the mass had been present for two-to-three years, but had been getting larger
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`over the past few months, and that he thought that it was twice the size now. (Id.). Ms.
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`Rymarkczyk ordered antibiotics and a CT scan of Mr. Culhane’s neck and soft tissues,
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`noting a “probable enlarged lymph node.” (Id.).
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`On May 11, 2015, a CT scan of the neck with and without intravenous contrast was
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`performed on Mr. Culhane at the Buffalo VAMC. (Id. at ¶ 22). Radiologist Michelle Ding,
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`M.D. (“Dr. Ding”), interpreted the study and compared the images with the CT scan
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`performed twenty months earlier, on September 4, 2013. (Id.). Dr. Ding noted that a “left
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`level II lymph node posterior to the submandibular gland has increased in size and is
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`heterogeneous in appearance measuring 2.5 X 4 X 4.1 cm (previously 2.4 X 2.5 X 3.8 cm
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`on 9/4/13).” (Id. at ¶ 23). Dr. Ding also reported that “[i]n the region of the left oropharynx
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`adjacent to the palatine tonsil, there is an area of fullness and slight increase in enhancement
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`measuring 2 X 1.3 cm (image 57/85), and underlying mass lesion cannot be excluded.”
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`(Id.). Dr. Ding concluded that the increased size of the left level II lymph node “in
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`conjunction with slight fullness in the left palatine tonsil is worrisome for underlying
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`neoplasm within the oral cavity with adjacent adenopathy. Correlation should be made with
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`direct visualization and tissue sampling.” (Id.).
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`On May 19, 2015, Mr. Culhane had an ENT consultation with Dwight M. Patterson,
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`M.D. (“Dr. Patterson”), at the Buffalo VAMC. (Id. at ¶ 24). Dr. Patterson’s physical
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`examination noted the presence of a “mobile, non-tender, 4 X 5 cm firm mass” in Mr.
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`Culhane’s upper neck. Dr. Patterson performed a flexible fiberoptic laryngoscopy and a
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`fine needle aspiration biopsy of Mr. Culhane’s left neck mass that day in his office. (Id.).
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`Following his examination of Mr. Culhane, Dr. Patterson wrote in his Progress Note:
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`Although [the patient] is a non-smoker and his neck mass has been present
`for 2 years, this is concerning for an underlying malignancy. An underlying
`tonsil cancer cannot be completely excluded by exam alone. Squamous cell
`carcinoma and lymphoma would be the most common, but other malignant
`and benign possibilities exist, and this was discussed with [Mr. Culhane] and
`his wife in detail today.
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`Fine needle aspiration biopsy was performed today without problem.
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`(Id.).
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`On May 26, 2015, Dr. Patterson informed Mr. and Mrs. Culhane that the biopsy was
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`consistent with squamous cell carcinoma (“SCC”), which is a cancer of the thin, flat cells
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`that make up the lining of the oropharynx. (Id. at ¶ 25). Dr. Patterson noted that the report
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`from the September 4, 2013 CT scan of Mr. Culhane’s neck “does not discuss this mass.”
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`(Id.). Although SCC metastatic disease to the neck had been confirmed by biopsy, Dr.
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`Patterson was not able to identify the primary site of the cancer. (Id. at ¶ 26). An expedited
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`positron emission tomography (“PET”) scan and a staging panendoscopy were scheduled.
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`(Id.).
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`On June 4, 2015, a PET scan was performed on Mr. Culhane. (Id. at ¶ 27). The
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`PET scan revealed “focal hypermetabolic activity within the left tonsillar region most
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`likely a primary head and neck malignancy.” (Id. (original alteration omitted)). The report
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`also indicated “hypermetaboic cervical lymph nodes as described above consistent with
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`metastatic disease.” (Id. (original alteration omitted)). On June 12, 2015, Dr. Patterson
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`performed a direct laryngoscopy, bronchoscopy, and biopsies on Mr. Culhane under
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`general anesthesia. (Id. at ¶ 28). The primary malignancy site was subsequently identified
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`as the left palatine tonsil, and the biopsy was consistent with keratinizing SCC. (Id.). Using
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`American Joint Committee of Cancer (“AJCC”) staging criteria, Mr. Culhane’s cancer was
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`classified as a T2 N2b M0 Stage IVA HPV+ SCC. (Id.).
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`Head and neck cancers are staged according to a “TNM” model that includes the
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`primary tumor stage (“T”), the node involvement status (“N”), and the presence or absence
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`of distant metastatic disease (“M”). (Id. at ¶ 29). The combination of the T, N, and M
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`stages results in a group stage of I, II, III, or IV. (Id.). Stage IVA is locally advanced, non-
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`metastatic cancer. “HPV” stands for human papilloma virus. (Id. at ¶ 30). HPV can be a
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`cause of oropharyngeal cancer (“OPC”)—that is, cancers of the tonsil, base and posterior
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`one-third of the tongue, soft palate, and posterior and lateral pharyngeal walls. (Id.).
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`Because the abnormal enlargement of Mr. Culhane’s left, Level II cervical lymph
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`node, clearly visible on the September 4, 2013 neck CT scan, was not identified and acted
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`upon when it should have been, diagnosis and treatment of the SCC of Mr. Culhane’s left
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`palatine tonsil was delayed by 20 months. (Id. at ¶ 31). On June 16, 2015, a Head and
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`Neck Oncology conference was held at the Buffalo VAMC to discuss Mr. Culhane’s case.
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`(Id. at ¶ 32). Dr. Patterson recorded in the Progress Notes:
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`Potentially curative treatment options include primary surgery to include a
`radical tonsillectomy with a comprehensive neck dissection. It appears most
`likely that he would require radiation therapy after surgery. Alternatively,
`concurrent chemoradiation could be given as a primary treatment with
`surgery reserved for salvage treatment. Most patients with his type and stage
`of tumor elect for primary chemo radiation given the morbidity of surgery.
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`(Id.). A percutaneous endoscopic gastrostomy (“PEG”) tube to supplement Mr. Culhane’s
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`nutrition and hydration was surgically inserted on June 19, 2015. (Id. at ¶ 33).
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`On June 22, 2015, Mr. Culhane had a Radiation Oncology consult with Vilasini
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`Shanbhag, M.D. (“Dr. Shanbhag”). (Id. at ¶ 34). On June 30, 2015, Mr. Culhane had the
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`first of forty radiation treatments at CCS Oncology in Lockport, New York. (Id. at ¶ 35).
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`He was then driven to the Buffalo VAMC for the first of seven cycles of weekly
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`intravenous chemotherapy with Carboplatin AUC 2 and Paclitaxel (Taxol) 50 mg/m2.
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`(Id.). Thereafter, Mr. Culhane received an additional six cycles of chemotherapy between
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`July 6, 2015 and August 25, 2015. (Id.). Because he experienced severe side effects of the
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`chemoradiation, Mr. Culhane had treatment breaks in weeks four and seven of his
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`scheduled treatment regimen. (Id. at ¶ 36). His final radiation treatment was on September
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`10, 2015. (Id.).
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`On September 29, 2015, Mr. Culhane was seen by Oncology. (Id. at ¶ 37). Rose
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`M. Bell, Ph.D., Adult Nurse Practitioner (“ANP”), performed a physical examination
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`during which Mr. Culhane’s left mandibular neck mass was no longer palpable. (Id.). On
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`December 14, 2015, a PET/CT scan of Mr. Culhane’s body was performed at the Buffalo
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`VAMC. (Id. at ¶ 38). The study revealed:
`
`Marked interval decrease in left tonsillar hypermetabolic activity in area of
`known malignancy, and resolution of
`left cervical hypermetabolic
`lymphadenopathy. However, there is asymmetric increased uptake within
`the right tonsillar region with small area of calcification—malignancy in this
`area cannot be excluded—clinical correlation is recommended.
`
`
`(Id.).
`
`
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`Case 1:17-cv-00005-EAW-MJR Document 107 Filed 12/28/20 Page 14 of 70
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`On December 15, 2015, Mr. Culhane sought a second opinion from Dr. Wesley
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`Hicks (“Dr. Hicks”), a head and neck surgeon at Roswell Park Cancer Institute. (Id. at
`
`¶ 39). Dr. Hicks explained that based on the VA notes, Mr. Culhane was staged correctly.
`
`(Id.). He informed Mr. Culhane that altered taste is a common side effect of treatment and
`
`that over time he might have some sense of taste return, but some of it would be a
`
`permanent loss. (Id.). Based on a video-assisted nasopharynlaryngoscopy, Dr. Hicks noted
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`“normal post-treatment changes, no residual/recurrent masses or lesions.” (Id.).
`
`On December 21, 2015, Mr. Culhane returned to the VAMC ENT Clinic, where he
`
`was seen by Dr. Patterson. (Id. at ¶ 40). Dr. Patterson noted that Mr. Culhane “appears to
`
`be doing very well overall now just 3 months after completing concurrent chemoradiation
`
`therapy” and commented on the “moderately elevated hypermetabolic activity” noted in
`
`the right tonsil on the recent PET scan, observing: “No evidence of disease is noted on
`
`careful head and neck exam today including flexible laryngoscopy. Whereas second lesion
`
`is possible, SUV uptake in this range is often seen after treatment for head and neck cancer
`
`and is not highly specific for malignancy.” (Id.). At the visit on December 21, 2015, Dr.
`
`Patterson gave Mr. and Mrs. Culhane the names of two other physicians, one of whom was
`
`Dr. Thom Loree (“Dr. Loree”). (Id. at ¶ 41).
`
`On February 29, 2016, Mr. Culhane consulted with Dr. Loree, a head and neck
`
`surgeon at Erie County Medical Center (“ECMC”), for a third opinion on his tonsil cancer.
`
`(Id. at ¶ 42). Dr. Loree found no evidence of disease at that time. (Id.). He recommended
`
`that Mr. Culhane follow-up with him in May 2016, after a repeat surveillance CT scan was
`
`done of his neck and chest. (Id.). On April 25, 2016, a CT of Mr. Culhane’s neck with
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`Case 1:17-cv-00005-EAW-MJR Document 107 Filed 12/28/20 Page 15 of 70
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`and without contrast was done. (Id. at ¶ 43). On May 23, 2016, Mr. Culhane had a follow-
`
`up visit with Dr. Loree, who found no evidence of disease. (Id. at ¶ 44).
`
`On September 12, 2016, Mr. Culhane again followed up with Dr. Loree, who noted
`
`that Mr. Culhane “had a sore throat last week that has since subsided.” (Id. at ¶ 45). Mr.
`
`Culhane denied difficulty swallowing and difficulty chewing, continued to experience a
`
`dry mouth and did not have a sense of taste, and denied pain. (Id.). Dr. Loree reviewed
`
`the results of CT scans of the neck and thorax taken on August 19, 2016. (Id.). Clinically,
`
`Dr. Loree found no evidence of disease. (Id.). Dr. Loree planned to see Mr. Culhane back
`
`in the office in January 2017 after a repeat CT scan of the neck and thorax with contrast.
`
`(Id.). Dr. Loree advised Mr. Culhane that he should call the office if he had chronic sore
`
`throats or persistent bad breath, because those could be evidence of disease recurrence.
`
`(Id.).
`
`On December 12, 2016, Mr. Culhane followed up at the Buffalo VAMC with Dr.
`
`Patterson, whom he told about a “burning sensation” in his mouth. (Id. at ¶ 46). His weight
`
`and appetite had been stable. (Id.). Dr. Patterson performed a flexible laryngoscopy that
`
`he noted was within normal limits. (Id.). Dr. Patterson’s head and neck examination
`
`revealed no evidence of disease. (Id.). He told Mr. Culhane to follow up with him in three
`
`to four months. (Id.).
`
`The next day, on December 13, 2016, Mr. Culhane visited his primary care
`
`physician, Sarah Thompson, M.D. (“Dr. Thompson”), for a routine follow-up. (Id. at ¶ 47).
`
`Dr. Thompson noted:
`
`
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`Case 1:17-cv-00005-EAW-MJR Document 107 Filed 12/28/20 Page 16 of 70
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`He’s recently seen ENT and tonsillar cancer appears to remain in remission.
`But his mouth feels like it “is on fire” X 6-8 weeks. States cannot tolerate
`hot or cold food. Did have some bouts of thrush that has resolved.
`Toothpaste burns.
`
`As he continues to heal from radiation therapy, he’s developed burning
`mouth syndrome.
`
`
`(Id.).
`
`A VAMC Nursing Note by Renee Cookfair, RN, from January 5, 2017, reads: “Dr.
`
`Loree’s office called requesting a new CT exam for this pt. Please order.” (Id. at ¶ 48).
`
`On January 9, 2017, Mr. Culhane had a follow-up visit with Dr. Loree. (Id. at ¶ 49). Dr.
`
`Loree noted that his last CT scan was in August 2016 and wrote:
`
`He has not had a CT scan as the Veterans Administration would not cover it,
`did not feel it was necessary. He complains of burning tongue sensation and
`burning sensation of the lower lip which is short term and no significant pain.
`He is concerned that he has an ulcer of the left posterior oral tongue near the
`last molar. No radiating pain. No ear pain. He is tolerating a regular diet.
`
`(Id.). Dr. Loree’s clinical examination of Mr. Culhane revealed no evidence of disease.
`
`(Id.). Dr. Loree requested that Mr. Culhane get a surveillance CT scan of the neck and
`
`chest and then return to his office. (Id.).
`
`In a January 10, 2017 addendum to Dr. Patterson’s December 12, 2016 ENT note,
`
`Russell C. Talma, Physician’s Assistant (“PA”), wrote that he spoke with Dr. Loree, who
`
`requested a repeat CT scan to follow the hilar node and “also due to a complaint of new
`
`burning in the throat and taste change to evaluate for occult recurrence.” (Id. at ¶ 50). In
`
`a January 10, 2017 addendum to RN Cookfair’s January 5, 2017 Nursing Note, PA Talma
`
`wrote that the CT scans for Mr. Culhane had been ordered and could be scheduled. (Id. at
`
`¶ 51).
`
`
`
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`Case 1:17-cv-00005-EAW-MJR Document 107 Filed 12/28/20 Page 17 of 70
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`On January 24, 2017, a CT scan of Mr. Culhane’s neck and chest was done at the
`
`Buffalo VAMC. (Id. at ¶ 52). The CT scan revealed the presence of “a heterogeneously
`
`enhancing mass-appearing focus of approximately 11.1 x 12.9 millimeters at the left
`
`palatine tonsil, question for local recurrence.” (Id.). Mr. Culhane also had a slightly
`
`enlarged left level IIa lymph node. (Id. at ¶ 53). In a January 27, 2017 addendum to Dr.
`
`Patterson’s December 12, 2016 ENT note, PA Talma wrote that a CT scan of the neck and
`
`thorax had been obtained and revealed a left tonsil mass. (Id.). A PET scan was ordered,
`
`and the CT scan results and recommendation for PET were discussed with Mr. Culhane.
`
`(Id.).
`
`A PET/CT scan performed on Mr. Culhane on February 1, 2017, revealed intense
`
`tracer uptake at the left palatine tonsil and scattered lymph nodes in the left neck. (Id. at
`
`¶ 54). In a February 1, 2017 addendum to Dr. Patterson’s December 12, 2016 ENT note,
`
`PA Talma wrote that Mr. Culhane was called and told about the PET scan results, and that
`
`he should keep his follow-up appointment with Dr. Loree. (Id. at ¶ 55). On February 6,
`
`2017, Mr. Culhane had a visit with Dr. Loree, who wrote: “The patient recently was
`
`recommended to have a follow-up CT scan performed through the Veterans Administration
`
`Hospital; however that institution did not cover it. They did not feel it was necessary.”
`
`(Id. at ¶ 56). Mr. Culhane continued to complain of a burning tongue sensation and a
`
`burning sensation of the lower lip. (Id.). He was also concerned with some ulceration of
`
`the left posterior oral tongue near the last molar. (Id.). He did not have any radiating pain,
`
`he denied ear pain, and he said he could tolerate a regular diet. (Id.). Imaging from
`
`February 1, 2017, was reviewed and revealed a “hypermetabolic lesion on the left pal