ERIE – A man and the U.S. government have reached an agreement to prevent the disclosure of personal identifying information in his litigation against the Department of Veterans Affairs and other entities, brought over allegations they failed to diagnose his prostate cancer.
Gerald Anderson of Erie first filed suit in the U.S. District Court for the Western District of Pennsylvania on Dec. 2 versus the United States of America, the United States Department of Veterans Affairs and the Veterans Health Administration of Washington, D.C., plus the Erie Veterans Administration Medical Center, of Erie.
“Anderson established primary care at the Erie VA on or about Dec. 16, 2016, during an initial visit and medical examination. At that first medical visit, Anderson told the nurse practitioner that his parents had a history of cancer, and he was concerned about his risk of prostate cancer because his brother had recently died from complications of prostate cancer,” the suit said.
“At that first medical visit, Anderson informed the nurse practitioner that his last physical exam was seven to eight years prior to that visit and Anderson was asked his ‘level of interest in learning about illness and/or health promotion’. Anderson’s response was, ‘Great interest.”
Despite this open interest, the suit said Anderson was not provided the benefits and risks of prostate screening, nor was he given any other information regarding that process at the December 2016 visit.
In subsequent visits in 2017 and 2018, Anderson did not receive prostate cancer screening, despite expressing prostate and urinary difficulties at the latter visit.
A bladder ultrasound revealed a mildly-enlarged prostate gland and results which indicated his bladder wasn’t fully emptying during urination, but despite these red flags, no further treatment or testing was ordered for another year.
It wasn’t until August 2019 that a biopsy showed that Anderson had Stage IV prostate cancer. Despite ongoing treatment, the plaintiff said his prognosis is poor.
“Defendants’ significant delay in diagnosing or treating Anderson’s prostate cancer has resulted in a poorer prognosis for recovery than had he been diagnosed and treated earlier and has increased his risk of early mortality. Moreover, 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 diagnosed earlier,” the suit stated.
“As a direct and proximal result of the negligence of the defendants and/or defendants’ agents, servants, representatives and/or employees, Anderson now must suffer significantly more aggressive, painful and debilitating treatment for a longer period of time and he suffers from a significantly poorer prognosis than had he received a timely diagnosis of prostate cancer.”
Through their counsel in the U.S. Attorney’s Office, the defendants answered the lawsuit on Feb. 7, where they denied Anderson’s claims in their entirety.
The defendants further put forth 20 separate affirmative defenses against the claims in the suit.
“Plaintiff has failed to state a claim upon which relief can be granted. This Court lacks subject-matter jurisdiction over plaintiff’s complaint. Plaintiff’s own negligence is the sole and/or contributory cause of the occurrence set forth in the complaint. Plaintiff is therefore barred from recovery. The alleged injuries and damages of plaintiff were not proximately caused by a negligent, careless, or wrongful act or omission of the defendants. Pursuant to 28 U.S.C. Section 2675(b), plaintiff is prohibited from seeking an amount over the amount asserted in his administrative claim,” the answer’s defenses stated, in part.
“Plaintiff is not entitled to a jury trial against the United States in an FTCA action. Plaintiff has failed to mitigate any alleged damages and is therefore barred from recovery. The concurrent acts of others, and not of the defendants, were the proximate cause of the occurrence set forth in plaintiff’s complaint. Plaintiff is therefore barred from recovery. The acts of others, and not defendants, were the sole and proximate intervening and/or superseding cause of the occurrence set forth in plaintiff’s complaint. Plaintiff is therefore barred from recovery. Plaintiff’s damages against the defendants are limited to the damages recoverable under the Federal Tort Claims Act. Attorney’s fees are governed by the statute.”
A March 1 filing in the case from counsel for all parties stipulated that the case would go before a federal magistrate judge.
“In accordance with the provisions of Section 636(c)(1) of Title 28, United States Code, we voluntarily consent to have a United States Magistrate Judge conduct any and all further proceedings in the case, including trial and entry of a final judgment, with direct review by the United States Court of Appeals for the Third Circuit, if an appeal is filed,” the stipulation read.
U.S. District Court for the Western District of Pennsylvania Judge Cathy Bissoon approved the stipulation, while U.S. Magistrate Judge Richard Lanzillo was assigned the case, also on March 1.
UPDATE
Counsel for the U.S. government defendants filed a consent motion for a protective order on April 6, to protect the privacy of the defendants or any individual whose name or other identifiable information is contained in confidential documents, while being able to release certain information and documents without violating the Privacy Act of 1974.
“During the course of discovery in this case, plaintiff will seek the disclosure of certain information from the United States Department of Veterans Affairs, Department of Veterans Affairs, Veterans Health Administration, and Erie Veterans Administration Medical Center investigative files and/or other records of the United States Department of Veterans Affairs, Department of Veterans Affairs, Veterans Health Administration, and Erie Veterans Administration Medical Center that may contain identifying data and other personal information. The production of said information is prohibited by the Privacy Act, 5 U.S.C. Section 552a, absent an order from the Court limiting the release of such information,” the motion stated.
“As a result, defendants request an order from this Honorable Court barring plaintiff, Gerald Anderson, and any of his representatives, from disclosing any information released under the order except in connection with this proceeding and as is necessary in connection with this litigation. Defendants respectfully request that this motion and order apply to any documents/information produced by the United States Department of Veterans Affairs, Department of Veterans Affairs, Veterans Health Administration, and Erie Veterans Administration Medical Center at any time during the litigation of this matter. Counsel for plaintiff has been consulted regarding the within motion and has no objection to entry of the proposed order.”
For one count of negligence (encompassing corporate negligence, negligent supervision and vicarious negligence), the plaintiff is seeking damages in excess of the arbitration limits, plus interest, costs and possible other further relief the Court deems proper.
The plaintiff is represented by Eric J. Purchase of Purchase George & Murphey, in Erie.
The defendants are represented by Kezia Taylor of the U.S. Attorney’s Office, in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 1:21-cv-00334
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com