Case 1:21-cv-00334-CB Document1 Filed 12/02/21 Page 1 of 12
`Case 1:21-cv-00334-CB Document 1 Filed 12/02/21 Page 1 of 12
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF PENNSYLVANIA
`
`) ) )
`
`GERALD ANDERSON,
`Plaintiff
`
`CIVIL ACTION NO.1:21-cv-334
`
`v
`)
`.
`)
`AMERICA;
`OF
`STATES
`UNITED
` )
`UNITED STATES DEPARTMENT OF
`VETERANS AFFAIRS; DEPARTMENT)
`OF VETERANS AFFAIRS; VETERANS_)
`HEALTH ADMINISTRATION;and
`)
`ERIE VETERANS ADMINISTRATION _)
`MEDICAL CENTER,
`)
`Defendants
`)
`
`JURY TRIAL DEMANDED
`
`COMPLAINT
`
`AND NOW,comesPlaintiff, Gerald Anderson, by and through his counsel, Purchase
`
`George & Murphey, P.C., and files this complaint against Defendants United States of America;
`
`United States Department of Veterans Affairs; Department of Veterans Affairs; Veterans Health
`
`Administration; and Erie Veterans Affairs Medical Center:
`
`PARTIES
`
`1.
`
`Plaintiff Gerald Anderson (“Mr. Anderson”)
`
`is an adult citizen of the
`
`Commonwealth of Pennsylvania and a United States military veteran, residing and domiciled at
`
`1158 East 10" Street, Erie, Pennsylvania 16503.
`
`2.
`
`Defendant Erie Veterans Administration Medical Center (“Erie VA”)is a federally
`
`operated and funded medicaltreatmentfacility located at 135 East 38"Street, Erie, Pennsylvania
`
`16504, responsible for serving United States Military veterans, including Gerald Anderson.
`
`3.
`
`Defendants United States Department ofVeterans Affairs, Department ofVeterans
`
`Affairs, and/or Veterans Health Administration are cabinet-level executive branch departments of
`
`the United States federal government charged with providing healthcare services to military
`
`1:21-cv-334
`
`
`Case 1:21-cv-00334-CB Document 1 Filed 12/02/21 Page 1 of 12
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF PENNSYLVANIA
`
`) ) )
`
`GERALD ANDERSON,
`Plaintiff
`
`CIVIL ACTION NO.1:21-cv-334
`
`v
`)
`.
`)
`AMERICA;
`OF
`STATES
`UNITED
` )
`UNITED STATES DEPARTMENT OF
`VETERANS AFFAIRS; DEPARTMENT)
`OF VETERANS AFFAIRS; VETERANS_)
`HEALTH ADMINISTRATION;and
`)
`ERIE VETERANS ADMINISTRATION _)
`MEDICAL CENTER,
`)
`Defendants
`)
`
`JURY TRIAL DEMANDED
`
`COMPLAINT
`
`AND NOW,comesPlaintiff, Gerald Anderson, by and through his counsel, Purchase
`
`George & Murphey, P.C., and files this complaint against Defendants United States of America;
`
`United States Department of Veterans Affairs; Department of Veterans Affairs; Veterans Health
`
`Administration; and Erie Veterans Affairs Medical Center:
`
`PARTIES
`
`1.
`
`Plaintiff Gerald Anderson (“Mr. Anderson”)
`
`is an adult citizen of the
`
`Commonwealth of Pennsylvania and a United States military veteran, residing and domiciled at
`
`1158 East 10" Street, Erie, Pennsylvania 16503.
`
`2.
`
`Defendant Erie Veterans Administration Medical Center (“Erie VA”)is a federally
`
`operated and funded medicaltreatmentfacility located at 135 East 38"Street, Erie, Pennsylvania
`
`16504, responsible for serving United States Military veterans, including Gerald Anderson.
`
`3.
`
`Defendants United States Department ofVeterans Affairs, Department ofVeterans
`
`Affairs, and/or Veterans Health Administration are cabinet-level executive branch departments of
`
`the United States federal government charged with providing healthcare services to military
`
`1:21-cv-334
`
`
`
`Case 1:21-cv-00334-CB Document1 Filed 12/02/21 Page 2 of 12
`Case 1:21-cv-00334-CB Document 1 Filed 12/02/21 Page 2 of 12
`
`veterans,
`
`including Gerald Anderson,
`
`through veterans medical centers,
`
`including the Erie
`
`(Pennsylvania) Veterans Administration Medical Center.
`
`4.
`
`Defendant United States of America is subject to suit for personal injury caused by
`
`the negligent and wrongful acts and omissions of employees of the federal government while
`
`acting within the course and scopeoftheir office or employment, under the circumstances where
`
`the Defendant, if a private person, would be liable to the Plaintiff, pursuant to the Federal Tort
`
`Claims Act, 28 U.S.C. §2671 et seq.
`
`JURISDICTION AND VENUE
`
`5.
`
`This action arises under the Federal Tort Claims Act, 28 U.S.C. §1346(b)(1),
`
`§7316(a)(1), §7316(a)(2), §2671, et seg., and §1151(a), inter alia.
`
`6.
`
`This Court has original jurisdiction over the proceedings against all Defendants
`
`because Plaintiffsuffered injuries and damagesasa result ofthe medical negligence ofthe medical
`providers and staffofthe Erie VA, while said medical providers and staffwere employees, agents
`or ostensible agents ofsomeorall ofthe Defendants and were acting within thecourse and scope
`
`of their employmentor agency. The claims herein are for money damages as compensation for the
`
`personalinjuries and pecuniary losses caused by the negligent and wrongful acts and omissions of
`
`employees of the United States and/or other Defendants, while acting within the scope oftheir
`
`offices and employment, under circumstances where the Defendants, if private persons, would be
`
`liable to the Plaintiff in accordance with the laws of the Commonwealth of Pennsylvania.
`
`7,
`
`Underthe laws of the Commonwealth of Pennsylvania, the Defendants,jointly and
`
`severally, including the Erie VA Medical Center and its medical providers and staff, owed a duty
`
`to provide prompt and appropriate medical care to Mr. Anderson; the care provided to him
`
`
`
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`Case 1:21-cv-00334-CB Document 1 Filed 12/02/21 Page 3 of 12
`
`breached the standard of care; the breaches are the proximate cause of Mr. Anderson’s harm; and
`
`Mr. Andersonsuffered damagesasaresult of the Defendants’ breach.
`
`8.
`
`Venueis appropriate in this District pursuant to 28 U.S.C. §1391 (b)in that, atall
`
`times relevant hereto, the Plaintiff was a resident of Erie County, Pennsylvania and the defendant
`
`medical facility was located in Erie County, Pennsylvania. Furthermore, the events and/or
`
`omissions giving rise to this claim occurred in Erie County, Pennsylvania, which is within this
`
`judicial district.
`
`9.
`
`Plaintiff presented his claim via Registered Mail, Return Receipt Requested and
`
`regular first-class United States Mail, to Defendants pursuant to 28 U.S.C. §2675. Said claim
`
`contained a demand for money damages, and such demand was a sum certain in excess of the
`
`required jurisdictional amount. The claim was received by Defendants on June 1, 2021, as
`
`acknowledged byletter dated June 17, 2021 from the U.S. Department of Veterans Affairs, Office
`
`of General Counsel. Six months later, Defendants have not respondedto plaintiff's claim.
`10.
`Plaintiffhas compliedwith all administrative requirements to assert this action, and
`
`all administrative remedies have been exhausted. In compliance with 28 U.S.C. Section 2401(b)
`
`Plaintiff brings his cause of action within six months of the appropriate Federal agency’s failure
`
`to deny orsettle Plaintiff's claim for $3,000,000.
`
`FACTS
`
`11.
`
`Mr. Anderson established primary care at the Erie VA on or about December16,
`
`2016, during an initial medical visit and physical examination.
`
`12.
`
`At that first medical visit, Mr. Anderson told the nurse practitioner that his parents
`
`had a history of cancer, and he was concerned abouthisrisk of prostate cancer because his brother
`
`had recently died from complications of prostate cancer.
`
`
`
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`Case 1:21-cv-00334-CB Document 1 Filed 12/02/21 Page 4 of 12
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`13.
`
`At that first medical visit, Mr. Anderson informedthe nursepractitionerthathis last
`
`physical exam was seven (7) to eight (8) years priorto that visit.
`
`14.
`
`At that first medical visit, Mr. Anderson was askedhis “level of interest in learning
`
`aboutillness and/or health promotion.” Mr. Anderson’s response was“great interest”.
`
`15.
`
`Despite Mr. Anderson’s concerns pertainingto his family history of cancer andhis
`
`brother’s death of prostate cancer, Mr. Anderson was not advised aboutthe benefits and risks of
`
`prostate screening, nor was he given any other information regarding prostate cancer screening or
`
`the possibility of prostate cancer screening at his December 2016 medical visit at the Erie VA.
`
`16.
`
`No genitourinary exam or PSA testing were performed at the December 2016
`
`medical visit.
`
`17.
`
`Almost a year later, on August 29, 2017, Mr. Anderson returned for another
`
`physical examination at which time there was again no documentation showing that Mr. Anderson
`
`was advised aboutthe possibility ofprostate cancer screening.
`18.
`On June 29, 2018, Mr. Anderson returned again to the primary careclinic at the
`
`Erie VA. He expressed concern for potential prostate abnormalities. He mentioned he was getting
`
`up from sleep to urinate two to three times a night and did not feel that his bladder was emptying.
`
`19.
`
`The June 29, 2018 medical records fail to record these symptoms under “review of
`
`systems”.
`
`20.
`
`21.
`
`No prostate exam was conducted.
`
`A serum prostate specific antigen (PSA) test was ordered and conducted. A bladder
`
`ultrasound wasordered and conducted. An alpha-blocking medication wasdiscussedto potentially
`
`relieve the urinary symptoms.
`
`
`
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`Case 1:21-cv-00334-CB Document 1 Filed 12/02/21 Page 5 of 12
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`22.
`
`A urology consultation was to be considered pending the results of the PSAtest
`
`and bladderultrasound.
`
`23.
`
`On July 2, 2018, Mr. Anderson’s PSA test came back highly elevated and grossly
`
`abnormalat 46.986 ng/mL. (A normal PSArangeis less than or equal to 4 ng/mL.)
`
`24.|Mr. Anderson was not notified regarding his severely elevated PSA level as
`
`revealed by the July 2, 2018 PSAtest result.
`
`25.
`
`There is no documentation in the medical records indicating that Mr. Anderson’s
`
`doctors, physician’s assistant, nurse, nurse practitioner, or any of his medical care providers or
`
`staff at the Erie VA ever reviewed Mr. Anderson’s highly elevated PSAtest result of July 2, 2018.
`
`26.
`
`There is no documentation that Mr. Anderson’s doctors, physician’s assistant,
`
`nurse, nurse practitioner, or any of his medical care providers or staff at the Erie VA ever inquired
`
`into the results of Mr. Anderson’s 2018 PSAtest results.
`
`The bladder ultrasound was performed on July 26, 2018 and revealeda mildly
`27.
`enlarged prostate gland (volume 41 mL) and a moderate post-void residual in the bladder at 38 mL
`
`indicating that the bladder was not completely emptying.
`
`28.
`
`Together, the 2018 PSAresult, enlarged prostate gland, and bladdertest results
`
`were very concerning for prostate malignancy and should have prompted an urgentreferral to a
`
`urologist for additional evaluation and work-up.
`
`29.
`
`Despite these red flags, no further treatmentor testing was ordered or performed to
`
`diagnose Mr. Anderson’s prostate cancer until almost one yearlater.
`
`30.
`
`On June 28, 2019, Mr. Anderson returned to the Erie VA primary clinic with
`
`complaints of numbnessandtingling in his feet, as well as continuing dysuria.
`
`
`
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`Case 1:21-cv-00334-CB Document 1 Filed 12/02/21 Page 6 of 12
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`31.
`
`Once again, Mr. Anderson’s symptom of dysuria is not documented in the
`
`“systems” section of his medical records, although it is documented in another section of the
`
`medical record.
`
`No prostate exam was performedatthis visit.
`
`Another PSAtest was ordered and performed on June 28, 2019.
`
`The June 28, 2019 PSA test returned an abnormal and highly elevated result at
`
`32.
`
`33.
`
`34.
`
`65.037 ng/mL.
`
`35.
`
`A VA nurse practitioner sent Mr. Andersona letter informing him ofhis 2019 PSA
`
`test result and that his PSA level was elevated. Theletter also instructed Mr. Anderson to be sure
`
`to attend a urology consultation.
`
`36.
`
` OnJuly 12,2019, Mr. Anderson’s urologist recommended a biopsy which was then
`
`performed on August2, 2019.
`
`37.
`
`The biopsy revealed that Mr. Anderson had advanced (Stage IV) prostate
`
`adenocarcinoma.
`
`38.
`
`On August 9, 2019, a bone scan and other tests revealed bony metastatic lesions in
`
`the T6 vertebra andin the pelvis.
`
`39.
`
`ACT scan of the abdomen/pelvis with and without contrast showed the presence
`
`of multiple sclerotic lesions at multiple levels of the spine. Shotty and enlarged lymph nodes were
`
`also noted.
`
`40.
`
`Mr. Anderson was referred to oncology and hematology where he received
`
`chemotherapy and androgen deprivation therapyto treat his metastatic prostate adenocarcinoma.
`
`41.
`
`Despite ongoing treatment, Mr. Anderson’s prognosisis poor.
`
`
`
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`Case 1:21-cv-00334-CB Document 1 Filed 12/02/21 Page 7 of 12
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`42,
`
`Defendants’ significant delay in diagnosing or treating Mr. Anderson’s prostate
`
`cancer has resulted in a poorer prognosis for recovery than had he been diagnosed andtreated
`
`earlier and has increased his risk of early mortality. Moreover, Mr. Anderson has had to undergo
`
`longer, more aggressive, and more painful and debilitating treatment in an attempt to cure his
`
`prostate cancer, than had he been diagnosedearlier.
`
`43.
`
`As a direct and proximal result of the negligence of the Defendants and/or
`
`Defendants’ agents, apparent agents, ostensible agents,
`
`servants,
`
`representatives, and/or
`
`employees, Mr. Anderson now mustsuffer significantly more aggressive, painful, and debilitating
`
`treatmentfor a longer period of time and hesuffers from a significantly poorer prognosis than had
`
`he received a timely diagnosis of prostate cancer.
`
`44,
`
`The care and treatment provided to Gerald Anderson by the Erie VA and/orits
`
`employees, agents and/or ostensible agents was negligent and deviated from the standard of care
`
`in the following respects:
`| a. Failing to timely diagnose and/or effectively treat Mr. Anderson’s prostate
`
`cancer;
`
`b. Failing to appropriately respond and/or failing to respond in a timely manner
`
`to Mr. Anderson’sarticulated concerns about his family history of mortality as
`
`a result of cancer and prostate cancer, and about his own potential for
`
`developing prostate cancer;
`
`c. Failing to advise (including the advising of risks and benefits), suggest, offer
`
`or otherwise discuss prostate cancer screening at Mr. Anderson’s December
`
`16, 2016 initial encounter at the Erie VA,in light of Mr. Anderson’s family
`
`history and specific concerns about prostate cancer;
`
`
`
`Case 1:21-cv-00334-CB Document1 Filed 12/02/21 Page 8 of 12
`Case 1:21-cv-00334-CB Document 1 Filed 12/02/21 Page 8 of 12
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`d. Failing to advise (including the advising of risks and benefits), suggest, offer
`
`or otherwise discuss prostate cancer screening at any time between Mr.
`
`Anderson’s December 16, 2016 initial encounter at the Erie VA and the time
`
`of his first PSA test ordered on or about June 29, 2018, in light of Mr.
`
`Anderson’s family history and specific concerns about prostate cancer, and his
`
`emerging symptomsofprostate cancer;
`
`e. Failing to accurately document Mr. Anderson’s reported symptomsin his
`medical records;
`
`f. Failing to provide an appropriate or timely medical response to Mr.
`
`Anderson’s symptoms, and/ortest results indicative of potential prostate
`
`cancer;
`
`g. Failure of the VA laboratory to convey the 2018 PSAtest results to the VA
`
`doctors or health care providers;
`h. Failure ofthe VAdoctors or other treatment providers to seekthe results of
`
`Mr. Anderson’s July 2, 2018 PSAtest results from the laboratory;
`
`1. Failing to review Mr. Anderson’s markedly elevated July 2, 2018 PSA test
`
`results;
`
`j. Failing to convey Mr. Anderson’s markedly elevated July 2, 2018 PSA test
`
`results to Mr. Anderson;
`
`k. Failure to urgently refer Mr. Anderson to a urologist for further evaluation and
`
`work-upafter the July 2, 2018 PSA test results revealed a markedly elevated
`
`PSA,and/or after the July bladder ultrasound revealed an enlarged prostate
`
`and insufficiently emptying bladder; and
`
`
`
`Case 1:21-cv-00334-CB Document1 Filed 12/02/21 Page 9 of 12
`Case 1:21-cv-00334-CB Document 1 Filed 12/02/21 Page 9 of 12
`
`|. Failure to ensure that ordered bloodwork testing was completed by Mr.
`
`Anderson andthe results reviewed in a timely and appropriate manner by Mr.
`
`Anderson’s medical care providers.
`
`45.
`
`As the result of Defendants’ failure to promptly diagnose and properly treat Mr.
`
`Anderson’s prostate cancer he has suffered the following injuries, including, but not limited to:
`
`a.
`
`an increased risk of early mortality as a result of prostate cancer or
`
`complications from prostate cancer;
`
`b. Having to undergo more aggressive, painful, debilitating, and longer treatment
`
`in an attempt to cure his prostate cancer; and
`
`c.
`
`Increased anxiety and depression abouthis prognosis for recovery.
`
`46.
`
`Mr. Anderson’s damages include, but are not limited to:
`
`a.
`
`b.
`c.
`
`d.
`
`Increased medical expenses;
`
`Increased pain and suffering;
`Increased embarrassinent and humiliation; and
`
`Increasedloss ofability to enjoy the pleasuresoflife.
`
`47,|Mr. Anderson’s injuries continue to cause him loss and harm and he expectsall
`
`those damageslisted above to continue.
`
`48.
`
`Defendants’ negligence was the direct and proximate cause of Mr. Anderson’s
`
`injuries resulting in damages.
`
`COUNT I —- NEGLIGENCE
`
`49.
`
`Plaintiff incorporates the averments of this complaint as if set forth more fully
`
`herein.
`
`A.
`
`Corporate Negligence/Negligent Supervision
`
`
`
`Case 1:21-cv-00334-CB Document1 Filed 12/02/21 Page 10 of 12
`Case 1:21-cv-00334-CB Document 1 Filed 12/02/21 Page 10 of 12
`
`50.
`
`Theinjuries, pain and suffering, damages and losses sustained by Mr. Anderson,
`
`as set forth above and for which he seeks recovery, were the direct and proximateresult of the
`
`negligence, gross negligence, carelessness and malpractice of the Erie VA asset forth herein and
`
`in any or all of the following respects:
`
`a. Failing and neglecting in its duty to train, supervise and/or oversee all persons
`
`whopractice nursing and/or medicine and other agents, servants and/or
`
`employees, so as to properly and promptly advise, inform, evaluate, diagnose,
`
`or treat patients in need of treatment for potential prostate cancer or prostate
`
`cancer;
`
`b. Failing to have in place properrules, procedures, protocols, training and
`
`standardsorif enacted and promulgated,failing to enforce or perform
`
`pursuantto sufficient rules regarding the proper and promptadvice,
`
`evaluation, and treatmentof patients presenting with a family history of
`prostate cancer, concerns about prostate cancer, urologic symptoms such as
`
`dysuria or an enlarged prostate gland, suggestive of prostate cancer or other
`
`disease;
`
`c. Failing to have in place properrules, procedures, protocols, training and
`
`standards orif enacted and promulgated, failing to enforce or perform
`
`pursuantto sufficient rules requiring laboratory personnel to convey test
`
`results to medical providers, requiring medical providers to seek laboratory
`
`results from tests ordered, requiring medical providers to convey laboratory
`
`results to patients, requiring medical providers to promptly and properly
`
`10
`
`
`
`Case 1:21-cv-00334-CB Document1 Filed 12/02/21 Page 11 of 12
`Case 1:21-cv-00334-CB Document 1 Filed 12/02/21 Page 11 of 12
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`follow up abnormaltest results with appropriate and timely evaluation and
`
`treatment;
`
`d. Failing to have in place properrules, procedures, protocols, training and
`
`standardsor if enacted and promulgated,failing to enforce or perform
`
`pursuantto sufficient rules regarding advising patients of the risks and
`
`benefits of PSA testing, prostate examination, or other prostate screening tools
`
`available to patients presenting with a family history of prostate cancer,
`
`concemsabout prostate cancer, urologic symptoms such as dysuria or an
`
`enlarged prostate gland;
`
`e. Failing to have in place properrules, procedures, protocols, training and
`
`standardsorif enacted and promulgated,in failing to enforce or perform
`
`pursuantto such rules to ensure effective communication between
`
`departments and their personnel, including communication between the
`laboratory and the primary care physicians and other primary care treatment
`
`providers, to ensure coordination and/or continuity of care and specific to this
`
`case, to ensure follow-uptesting to rule out prostate cancer;
`
`f. Failing in its duty to select, employ, hire and retain only competent
`
`physicians, surgeons, nurses, nurse practitioners, laboratory personnel and/or
`
`other agents, servants, and/or employees with adequate experience,
`
`qualifications, skills, education, and knowledge to advise, evaluate and treat
`
`patients with symptomsofprostate cancer; and
`
`g. Failing in its duty to provide adequate patient care, including but not limited
`
`to diagnosis, evaluation, testing and treatment of Gerald Anderson.
`
`11
`
`
`
`Case 1:21-cv-00334-CB Document1 Filed 12/02/21 Page 12 of 12
`Case 1:21-cv-00334-CB Document 1 Filed 12/02/21 Page 12 of 12
`
`B.
`
`Vicarious Negligence
`
`51.
`
`All of the doctors, nurses, nurse practitioners, and other medical providers and/or
`
`staff of the Erie VA who were involved in the negligent care, treatment, evaluation and/or
`
`diagnosis of Mr. Anderson, were, at all times relevant, employees, agents, representatives,
`
`apparent agents, and/or ostensible agents of the Erie VA and/or all other named Defendants and
`
`were acting in the course and scope oftheir duties as such and, consequently, Defendants are
`
`vicariously liable for the harm caused Mr. Andersonasaresult of their negligence.
`
`WHEREFORE,Plaintiff, Gerald Anderson, requests judgment against Defendants in an
`
`amount in excess of the limits of arbitration, plus interest, costs and whatever further relief this
`
`Court deemsproperor that justice requires.
`
`JURY TRIAL DEMANDED
`
`Respectfully submitted,
`
`Purchase, George & Murphey, P.C.
`
`By:
`
`__/s/ Eric J. Purchase
`Eric J. Purchase
`Attorney I.D. 63517
`2525 West 26th Street, Suite 200
`Erie, PA 16506
`(814) 833-7100
`eric@purchasegeorge.com
`
`Attorney for Plaintiff
`
`12
`
`
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