Federal Court Enters $500,000 Judgment Against U.S. for Missed Cauda Equina Syndrome at IHS Hospital

William Owen, an enrolled member of the Sisseton-Wahpeton Sioux Tribe and a tribal law enforcement officer, went to the Indian Health Service hospital in Sisseton, South Dakota, on July 22, 2001, with back pain, leg numbness and difficulty lifting his right foot. The emergency physician, Dr. Donald Weiffenbach, recorded weak flexion and weak dorsiflexion of the foot, diagnosed a lumbosacral strain, prescribed pain medication and muscle relaxants, and sent him home for a week.

Owen came back four more times over the next ten days. On July 27 a request for an MRI was written, but no scan was done. On the evening of August 1, after he had lost control of his bladder that morning, he returned and was told to come back the next day to sort out paperwork for a neurology referral. Dr. Weiffenbach did not examine him that night. A second hospital in Sisseton examined him, found no rectal sensation, and drained more than a liter of urine from his bladder. He was taken by ambulance to Fargo, North Dakota, where a myelogram showed a blocked spinal canal at L4-5 and a neurosurgeon diagnosed cauda equina syndrome. Surgery to relieve the pressure began the afternoon of August 2.

Owen sued the United States under the Federal Tort Claims Act. Scott G. Hoy of Hoy Trial Lawyers in Sioux Falls represented him. Chief Judge Karen E. Schreier heard the case without a jury over two days in the District of South Dakota and ruled on July 31, 2009.

The court found that Dr. Weiffenbach should have recognized on July 22 that weakness in two separate movements pointed to a central disc herniation and a risk of cauda equina syndrome, and that he should have ordered imaging or referred Owen to a neurologist that day. Relying on the testimony of neurologist Dr. Sabow, the judge found it more likely than not that a myelogram on July 22 would have led to surgery within a day, before any loss of bladder or bowel function. The delay of about ten days, she held, was a significant factor in producing Owen's permanent injuries. The court gave no weight to Dr. Weiffenbach's own account, noting that he could not recall Owen or identify the affected nerve roots. It also rejected the government's argument that Owen was contributorily negligent for waiting until the evening of August 1 to return.

The injuries were lasting. Owen remained numb from the waist down apart from two toes on his right foot. He lost normal bladder, bowel and sexual function, and he passes urine and stool by bearing down with his abdominal muscles rather than through normal sensation. He self-catheterized and had accidents on duty for roughly six months after surgery. The court found he was likely to develop kidney and bowel complications later. He and his fiancee later reconciled after a separation.

Because the injury was a medical negligence claim, South Dakota's statutory limit on general damages in malpractice cases applied through the Tort Claims Act, and Owen sought only general damages. The court awarded $300,000 for permanent disability and disfigurement and $200,000 for past and future pain, suffering and loss of enjoyment of life, a total of $500,000. It refused the government's request to reduce the award by Veterans Affairs benefits, finding no evidence those benefits compensated him for these losses.