Dobbs v. United States

Full title: CRAIG DOBBS and EILEEN DOBBS PLAINTIFFS v. UNITED STATES OF AMERICA…

Court: United States District Court, Eastern District of Arkansas

Date published: Dec 5, 2023

4:20-cv-01192-LPR (E.D. Ark. Dec. 5, 2023)

Opinion

4:20-cv-01192-LPR

12-05-2023

CRAIG DOBBS and EILEEN DOBBS PLAINTIFFS v. UNITED STATES OF AMERICA DEFENDANT

LEE P. RUDOFSKY, UNITED STATES DISTRICT JUDGE

MEMORANDUM OF DECISION

LEE P. RUDOFSKY, UNITED STATES DISTRICT JUDGE

On October 7, 2020, Plaintiffs Craig and Eileen Dobbs filed a Complaint against the United States of America under the Federal Tort Claims Act, alleging that Mr. Dobbs suffered a brain hemorrhage as a result of negligent medical care by Dr. Diaa Bahgat.¹ More specifically, the Complaint alleges that: (1) during the laminectomy surgery performed by Dr. Bahgat, Mr. Dobbs suffered a dural tear; and (2) Dr. Bahgat's subsequent medical treatment of Mr. Dobbs- particularly the placement of a drain near the dural tear site-was below the standard of care in Arkansas and caused Mr. Dobbs to suffer a brain hemorrhage.²

1 See Compl. (Doc. 1) ¶¶ 6.1-7.2.

2 See id. At trial, the witnesses used the terms “dural tear” and “durotomy” interchangeably. For consistency, the Court will refer to the tear as a “dural tear.”

The Court held a bench trial from November 29, 2022, through December 2, 2022.³ At this trial, Plaintiffs pressed their right to monetary relief for the following categories of damages: (1) Mr. Dobbs's past and future physical pain and suffering; (2) his past and future mental pain and anguish; (3) his past and future permanent physical impairment; (4) his past and future mental impairment; (5) his past and future physical disfigurement; (6) his past and future medical, health care, and attendant care expenses; (7) his out-of-pocket expenses; (8) his past and future loss of enjoyment of life; (9) the loss of consortium with his wife; and (10) Mrs. Dobbs's loss of consortium with her husband.⁴

3 See Clerk's Minutes (Docs. 37-39, 41).

4 See Compl. (Doc. 1) ¶¶ 8.1, 8.2. At the start of the trial, Mr. Dobbs withdrew his claim for loss of earning capacity. See Tr. of Bench Trial (Doc. 45) at 20:15-20. And Mrs. Dobbs withdrew her claims for negligent infliction of emotional distress and for loss of household services. See id. at 20:21-21:7.

After the Plaintiffs rested, the Government made a Motion for Judgment on Partial Findings under Federal Rule of Civil Procedure 52(c).⁵ Parts of that Motion were easy to address. For example, the Government argued that the Plaintiffs had failed to introduce any evidence that Dr. Bahgat (1) negligently caused the dural tear, and (2) negligently repaired the dural tear.⁶Plaintiffs' counsel effectively conceded the points. She explained that Plaintiffs were not making a claim that Dr. Bahgat was negligent in making the dural tear.⁷ She also explained that they were not alleging that the dural-tear repair itself was negligent, except to the extent that Dr. Bahgat “negligently left a drain in place in the absence of a complete repair.”⁸ Accordingly, and without objection, the Court granted the Government's Motion for Judgment on Partial Findings on the two very specific issues raised by the Government.⁹

5 See Tr. of Bench Trial (Doc. 47) at 652:20-22.

6 See id. at 658:7-659:19. The Government made a Motion for Judgment on Partial Findings with respect to a third issue as well: that there was no evidence Dr. Bahgat had improperly delayed taking Mr. Dobbs for a re-exploration surgery. See id. But the Government withdrew this part of its Motion when Plaintiffs' counsel explained that Plaintiffs were not making any claim for relief related to the delay in the re-exploration surgery. See id. at 662:11-22, 663:6- 15. Instead, this was merely a fact pled, not an independent allegation of wrongdoing. See id.

7 See Tr. of Bench Trial (Doc. 47) at 659:23-24.

8 Compl. (Doc. 1) ¶ 6.12. See also Tr. of Bench Trial (Doc. 47) at 660:3-8.

9 See Tr. of Bench Trial (Doc. 47) at 662:9-10.

Other parts of the Government's Motion for Judgment on Partial Findings were not so easy. For example, with respect to Plaintiffs' claims concerning the placement of a drain, the Government argued that there had been no evidence to suggest that the use of a drain in the circumstances of this case fell below the standard of care in Arkansas.¹⁰ The Government also argued that there was not enough evidence to prove that the use of the drain was a “but-for” and proximate cause of the brain hemorrhage.¹¹ The Court denied those parts of the Motion because the Court had heard evidence that could ultimately lead to the conclusion that Plaintiffs had proved Dr. Bahgat's decision to place the drain fell below the standard of care in Arkansas and caused the injury at issue.¹² At the conclusion of the trial, the Government again moved for Judgment on the Findings on these issues.¹³ And the Court again denied the Government's Motion.¹⁴

10 See Tr. of Bench Trial (Doc. 47) at 654:8-657:7.

11 See id.

12 See id. at 657:8-10.

13 See Tr. of Bench Trial (Doc. 48) at 885:6-11.

14 See id. at 885:17-18.

On December 19, 2022, the parties submitted post-trial proposed findings of fact and conclusions of law. In accordance with Federal Rule of Civil Procedure 52(a), and after reviewing the entire trial record, the Court makes the following findings of fact and conclusions of law as set out below. As a threshold matter, however, the Court wishes to note several global points. First, the Court makes all findings of fact in this case subject to the preponderance-of-the-evidence standard.¹⁵ And Plaintiffs bear the burden of proof with respect to all findings. Second, the Court notes that sometimes-but not always-it expressly discusses the evidence in the trial record that is contrary to the Court's ultimate finding. Whether or not the Court expressly discusses conflicting or contrary evidence, the Court's findings should be taken to imply that any such conflicting evidence was overcome by the evidence supporting the particular fact found. Third, to the extent the Court has erroneously designated any findings of fact as conclusions of law, they should be deemed findings of fact.¹⁶ And any conclusions of law erroneously designated by the Court as findings of fact shall be likewise deemed conclusions of law.¹⁷ Fourth, and finally, some of the findings of fact (and maybe conclusions of law) in the liability section are relevant to the issue of damages as well. The particular section of this Memorandum of Decision in which a finding is made, or conclusion is drawn, does not affect the substance of this Memorandum of Decision.

15 Although the Court may not always expressly state it, all medical opinions were given to a reasonable degree of medical certainty. The terms “certainty” and “probability” were used interchangeably at trial, but either term is appropriate and sufficient under Arkansas law. See Williamson v. Elrod, 348 Ark. 307, 311, 72 S.W.3d 489, 492 (2002).

16 See Ridings v. Maurice, 444 F.Supp.3d 973, 981 n.5 (W.D. Mo. 2020).

17 See id.

FINDINGS OF FACT - LIABILITY

1. During the bench trial, 11 witnesses provided testimony. Plaintiffs called Dr. Christopher Taylor,¹⁸ Dr. Diaa Bahgat,¹⁹ Dr. Paul Moore,²⁰ Dr. Arthur Joyce,²¹ Dr. Carl Hubbard,²² Victoria Powell,²³ Dave Hussey,²⁴ and Eileen Dobbs.²⁵ The Government called Dr. John Day²⁶ and Dr. Margaret Tremwel.²⁷

18 Dr. Taylor is the Vice Chairman of Clinical Outreach for UT Southwestern Medical Center's Department of Neurosurgery. See Pls.' Trial Ex. 28 at 1. He was called by the Plaintiffs to provide expert testimony about the neurosurgical standard of care and the cause of Mr. Dobbs's brain injury. See generally Tr. of Bench Trial (Doc. 45) at 47:25-134:22.

19 Dr. Bahgat was a staff neurosurgeon for the Central Arkansas Veterans Healthcare System from December 2015 until October 2019. See Def.'s Trial Ex. 4 at 2. Dr. Bahgat was the surgeon who performed Mr. Dobbs's October 9, 2018 laminectomy and his re-exploration repair surgery on October 15, 2018. See Tr. of Bench Trial (Doc. 45) at 164:3-12. Plaintiffs' counsel treated Dr. Bahgat as an adverse party, and the Government did its direct examination of Dr. Bahgat as cross-examination. See id. at 162:21-163:2. Under the Arkansas Medical Malpractice Act, “[n]o medical care provider shall be required to give expert opinion testimony against himself or herself as to any” standard of care or proximate cause opinions “at a trial.” Ark. Code Ann. § 16-114-207(3).

20 Dr. Moore is the Medical Director for Somnologix, Limited and specializes in neurology and sleep medicine. See Pls.' Trial Ex. 26 at 1; Tr. of Bench Trial (Doc. 46) at 366:1-6. Dr. Moore was called by the Plaintiffs to provide expert testimony about Mr. Dobbs's injury and how the injury affected Mr. Dobbs. See Tr. of Bench Trial (Doc. 46) at 330:1-364:4. Dr. Moore is not a neurosurgeon, and he testified that he is not qualified to render neurosurgical standard-of-care opinions. See id. at 365:12-16.

21 Dr. Joyce is a neuropsychologist in private practice. See Pls.' Trial Ex. 25 at 2. Dr. Joyce was called by the Plaintiffs to give expert testimony about a neuropsychological evaluation he gave to Mr. Dobbs and the type of care Mr. Dobbs would need throughout his life as a result of the brain hemorrhage. See generally Tr. of Bench Trial (Doc. 46) at 386:14-419:15.

22 Dr. Hubbard is an economist and retired business professor. See Pls.' Trial Ex. 24 at 1. Dr. Hubbard was called by the Plaintiffs to provide expert testimony about the cost of a life care plan for Mr. Dobbs. See generally Tr. of Bench Trial (Doc. 46) at 432:5-438:19.

23 Ms. Powell is a nurse and certified life care planner. Pls.' Trial Ex. 27 at 1. Ms. Powell was called by the Plaintiffs to provide expert testimony about a proposed life care plan she created for Mr. Dobbs. See generally Tr. of Bench Trial (Doc. 47) at 485:1-535:21.

24 Mr. Hussey lives next door to Mr. and Mrs. Dobbs in Cotter, Arkansas. See Tr. of Bench Trial (Doc. 47) at 561:11- 12. Mr. Hussey has known Mr. and Mrs. Dobbs since they moved next door to him in 2015. See id. at 561:14-15.

25 Mrs. Dobbs is the wife of Mr. Dobbs and is a Plaintiff in this case. See Tr. of Bench Trial (Doc. 47) at 574:20; Compl. (Doc. 1) ¶ 8.2.

26 Dr. Day is a professor and Chairman of the Department of Neurosurgery at the University of Arkansas for Medical Sciences. See Def.'s Trial Ex. 2 at 1. Dr. Day was called by the Government to offer expert testimony about the neurological standard of care and cause of Mr. Dobbs's brain hemorrhage. See generally Tr. of Bench Trial (Doc. 47) at 668:24-718:17.

27 Dr. Tremwel is a neurologist and Medical Director of the Comprehensive Stroke Center at Washington Regional Medical Center in Fayetteville, Arkansas. See Def.'s Trial Ex. 3 at 1; Tr. of Bench Trial (Doc. 48) at 821:14-19. Dr. Tremwel was called by the Government to provide expert testimony about Mr. Dobbs's physical and neurological state post-hemorrhage. See generally Tr. of Bench Trial (Doc. 48) at 822:17-859:4. She also examined Mr. Dobbs and provided expert testimony about the results of that examination. See generally id.

2. For purposes of liability, our story begins on October 9, 2018. That is when Mr. Dobbs (a 61-year-old, retired United States Marine²⁸) arrived at the Central Arkansas Veterans Healthcare System for a scheduled laminectomy with Dr. Bahgat.²⁹ Mr. Dobbs's laminectomy was “an L2 to S1 fusion and decompression.”³⁰ In layman's terms, Mr. Dobbs was getting spinal surgery.

28 See Tr. of Bench Trial (Doc. 45) at 54:11-12; Tr. of Bench Trial (Doc. 47) at 576:22.

29 See Pls.' Trial Ex. 1 at 1578-79. Although the medical records typically refer to the surgery as some variation of an “L2-S1 decompression and fusion” surgery, multiple witnesses at trial referred to the procedure as a “laminectomy” or “laminectomy and fusion.” See, e.g., Tr. of Bench Trial (Doc. 45) at 164:9-12. Thus, the Court will simply refer to Mr. Dobbs's procedure as either a laminectomy or a surgery throughout this Memorandum of Decision.

30 See Tr. of Bench Trial (Doc. 45) at 138:19-22.

3. Once Mr. Dobbs was admitted to the hospital, Dr. Bahgat met with Mr. Dobbs to examine and evaluate him.³¹ In what looks and reads like a boilerplate paragraph, Dr. Bahgat's pre-surgery notes reflect that “[t]he patient and/or family representative have been presented with the risks, benefits, potential complications and alternatives to planned surgery and agree with the planned procedure.”³² In these same notes, Dr. Bahgat also recorded that a history and physical exam of Mr. Dobbs was performed on September 27, 2018, and, having “reviewed and assessed the patient[,]” Dr. Bahgat determined “[t]here [had] been NO CHANGES since that exam.”³³ The Court finds Dr. Bahgat's notes to be an accurate representation of his post-admission encounter with Mr. Dobbs.

31 See Pls.' Trial Ex. 1 at 1575-79.

32 Id. at 1579. This was not the first time Mr. Dobbs had been presented with such information. At a July 2018 appointment, Dr. Bahgat discussed with Mr. Dobbs the potential risks of the surgery, as well as the potential success. See id. at 1614; Tr. of Bench Trial (Doc. 45) at 176:12-179:7. According to Dr. Bahgat's July 2018 notes, he informed Mr. Dobbs that “[r]isks include but [are] not limited to weakness, paralysis, infection, hemorrhage, pulmonary embolism, increased pain, bowel and bladder problems[,] . . . injury to surrounding neurovascular structures, durotomy with [cerebrospinal fluid] leak . . . .” Pls.' Trial Ex. 1 at 1614. But Dr. Bahgat testified at trial that he did not remember whether he specifically informed Mr. Dobbs about the risk of a brain hemorrhage. See Tr. of Bench Trial (Doc. 45) at 178:19-179:7. At first, Dr. Bahgat testified that he only told Mr. Dobbs about the risk of “stroke and bleeding in general.” Id. Dr. Bahgat later clarified at trial that he did not actually remember the specific conversation with Mr. Dobbs about the risks of the surgery. See Tr. of Bench Trial (Doc. 46) at 259:9-260:3. Instead, his recollection was “based on what [he] normally would do . . . .” Id. at 259:18.

33 Pls.' Trial Ex. 1 at 1575.

4. Dr. Bahgat testified at trial that he remembered having another “case to do” before Mr. Dobbs's laminectomy on October 9, 2018.³⁴ Dr. Bahgat admitted that his memory of finishing the earlier case and of seeing Mr. Dobbs before his laminectomy was “very vague.”³⁵ Dr. Bahgat could not remember what the earlier case was about.³⁶ He could not remember what he had for breakfast that morning.³⁷ He could not remember the specifics of his drive to work.³⁸ He could not remember giving the consent forms to Mr. Dobbs or getting them back from him.³⁹ As a general matter, the Court finds that Dr. Bahgat did not remember that day-which was more than four years prior to trial-very well.

34 Tr. of Bench Trial (Doc. 46) at 270:23.

35 Id. at 270:25.

36 See id. at 271:3-7.

37 See id. at 271:8-10.

38 See id. at 271:11-14.

39 See id. at 271:15-17. This was the second set of consent forms obtained from Mr. Dobbs. Because the original consent forms-which Mr. Dobbs had signed on an earlier date-were only valid for 30 days, Dr. Bahgat had to again obtain Mr. Dobbs's consent to proceed with the laminectomy on the morning of the procedure. See id. at 269:22- 270:4.

I. The Surgery and the Dural Tear

5. Mr. Dobbs's laminectomy began at 11:42 on October 9, 2018, and finished at 16:19 the same day.⁴⁰ Other people were in the room with Dr. Bahgat during the surgery (or portions of the surgery), including an anesthesiologist (or anesthetist).⁴¹ However, none of these people were called to testify by either party. Accordingly, the only three sources of direct evidence concerning what occurred during the surgery are: (1) Dr. Bahgat's post-operative report, (2) Dr. Bahgat's trial testimony, and (3) the anesthesiologist's (or anesthetist's) notes. And, as the Court will explain below, the Court discounts a great deal of Dr. Bahgat's trial testimony-when it is in tension with Dr. Bahgat's medical notes-because the Court finds that Dr. Bahgat's memory of the day in question is, at best, hazy.

40 See Pls.' Trial Ex. 1 at 1563. The records also show Mr. Dobbs's anesthesia care began shortly before his surgery at 10:51 and ended at 16:38. See id.

41 See id. at 1987.

6. Dr. Bahgat authored his post-operative report very shortly after he finished Mr. Dobbs's surgery.⁴² The post-operative report has several sections, including sections titled Indication, Operative Findings, Adverse Events, and Procedure.⁴³

42 See id. at 1984-86. The record reflects that the post-operative report was entered at 16:33 on October 9, 2018, and signed by Dr. Bahgat at 18:17 the same day. See id. See also Tr. of Bench Trial (Doc. 45) at 188:20-22.

43 See Pls.' Trial Ex. 1 at 1984-86.

7. In the Indication section, Dr. Bahgat recounted Mr. Dobbs's medical history and the reasons for surgery.⁴⁴ Then, in the Operative Findings section, Dr. Bahgat explained that:

44 See id. at 1984-85. The report incorrectly states that Mr. Dobbs was 55 years old at the time of the surgery. See id. at 1984. As the Court explained above, Mr. Dobbs was 61 years old at the time of the surgery. See, e.g., Tr. of Bench Trial (Doc. 45) at 54:11-12.

Intraoperative navigation with the use of the O arm was used for placement of L2, L3[,] ¶ 4, L5, S1 pedicle screws as well as interbody cage[] at L2-3. Pre and postplacement spin was used to confirm adequate positioning of the implants. That was significant lateral recess stenosis and facet arthropathy and foraminal stenosis at L4-L5.⁴⁵

45 See Pls.' Trial Ex. 1 at 1985.

8. In the Adverse Events section of Dr. Bahgat's post-operative report, Dr. Bahgat provided the following details about Mr. Dobbs's dural tear:

Dural tear at right L2-3 t closed with onlay muscle and Duraseal

EBL: 500 mL

Counts: Complete at the end of the procedure

Anesthesia: Gen. prone position

Implants: Medtronic Solera system (L2: Right side 5.5 x 45, left side splint 5 x 45, L3 bilateral 6.5 x 45, L4 6.5 x 45 mm screws, L5 6.5 x 45 right side 6.5 x 50 mm screws, S1 4.5x40mm screws

-7 mm elevate cage at ¶ 2-3 and 10 mL of MAP3 putty.⁴⁶

46 See id.

This is the entirety of Dr. Bahgat's notes in the Adverse Events section of the post-operative report.⁴⁷

47 See id.

9. In the Procedure section of the post-operative report, Dr. Bahgat detailed how he performed Mr. Dobbs's laminectomy.⁴⁸ These details included everything from identifying Mr. Dobbs as the correct patient and marking the site for the incision, to “hand[ing]” Mr. Dobbs “to anesthesia for extubation and recovery.”⁴⁹ This section also included further reflections by Dr. Bahgat about Mr. Dobbs's dural tear.⁵⁰ Dr. Bahgat's notes recounted that:

48 See id. at 1985-86.

49 Id.

50 See id. at 1986.

[During] the cage placements [a] dural tear at the axilla was identified. This tear was not amenable to primary [repair] so a muscle graft was placed on top of which a thin piece of Gelfoam was placed.⁵¹Along with the discussion in the Adverse Events section, this description is the extent of

51 Id. At trial, Dr. Bahgat testified that he cannot pronounce the letter “R” correctly when dictating his notes, “[s]o during is often put in [as] doing.” Tr. of Bench Trial (Doc. 45) at 189:13-16. The Court finds this is one of those instances where “doing” should read “during.”

Dr. Bahgat's notes about Mr. Dobbs's dural tear and the efforts taken to repair it.⁵²

52 See Pls.' Trial Ex. 1 at 1984-86.

10. A dural tear is a tear in the dura mater, which is a “covering that encases the brain and the spinal cord and contains spinal fluid[,]” specifically cerebrospinal fluid (CSF).⁵³ A dural tear is a known complication of spine surgery.⁵⁴ As even the Plaintiffs' expert witness (Dr. Taylor) admits, the fact that a dural tear occurs during surgery does not mean the surgeon did something wrong.⁵⁵ Approximately five to seven percent of patients who undergo lumbar surgeries experience dural tears.⁵⁶ But only 1 in 10,000 spinal surgeries (or about 0.03 percent) result in the patient experiencing an intracranial hemorrhage.⁵⁷

53 See Tr. of Bench Trial (Doc. 45) at 55:8-9.

54 See id. at 141:6-8.

55 See id. at 141:12-14.

56 See id. at 129:1-5.

57 See id. at 53:25-54:4; Tr. of Bench Trial (Doc. 47) at 712:21-713:2. The testimonial evidence is conflicting as to whether the 1 in 10,000 figure means one brain hemorrhage in 10,000 surgeries or one brain hemorrhage in 10,000 dural tears. This is not a conflict that requires resolution. In either scenario, the agreed consensus is that the vast majority of dural tears do not lead to a brain hemorrhage.

11. The Court finds that Mr. Dobbs's intraoperative dural tear occurred when Dr. Bahgat “took out the disc material and then put the cage in.”⁵⁸ The cage, which was “thick and metal[,]” had to be hammered in.⁵⁹ Mr. Dobbs suffered a dural tear when Dr. Bahgat was hammering the cage in.⁶⁰

58 Tr. of Bench Trial (Doc. 46) at 276:18.

59 Id. at 276:19.

60 See id. at 276:22-23.

12. When a patient loses CSF, the loss can cause his brain to “sag.”⁶¹ That's because one role of CSF is to help the brain float.⁶² The sag can cause veins in the brain to stretch and occlude, which in turn can cause a brain hemorrhage.⁶³

61 See Tr. of Bench Trial (Doc. 45) at 93:11-12.

62 See Tr. of Bench Trial (Doc. 46) at 331:20-22.

63 See, e.g., Tr. of Bench Trial (Doc. 45) at 93:8-14.

13. But not all losses of CSF cause brain sag. For brain sag to occur, a patient has to lose enough CSF to cross some unknown threshold. As a rough and general matter, and holding all things equal, the larger and more sudden the loss of CSF, the more likely it is to cause brain sag (and, consequently, a brain hemorrhage).⁶⁴ Conversely, a smaller and less sudden loss of CSF is less likely to cause brain sag.

64 See, e.g., id. at 209:11-18; Tr. of Bench Trial (Doc. 47) at 697:1-3. Dr. Day testified that, “[b]ecause of the initial gush of spinal fluid . . . [t]hat's when the large, immediate loss occurs, sagging of the cerebellum, compromise of the veins bridging there and then also happened up above in this gentleman's case, unfortunately.” Id. at 709:18-22. To the Court, this testimony suggests that an average loss of CSF at the time of an intraoperative dural tear (i.e., not a large gush) would likely not cause brain sag. Furthermore, the trial record reveals that the body contains approximately 300 milliliters of CSF and reproduces CSF at a rate of about 20 milliliters per hour. See Tr. of Bench Trial (Doc. 45) at 55:24-56:6, 56:23-57:2. Considering both of these things, the Court finds that an average loss of CSF from an intraoperative dural tear is unlikely to be enough to cause the brain to sag. That is consistent with the fact that only 1 in 10,000 spinal surgeries result in a brain hemorrhage even though far more result in dural tears. See, e.g., id. at 129:5-8.

14. In this case, the Government contends that there was a large and immediate loss of CSF associated with the intraoperative dural tear.⁶⁵ The Government's point is that this large loss of CSF caused the brain to sag (and the consequent brain hemorrhage) on its own. If this is true, then any loss of CSF associated with the placement of subfascial drains would not be a but-for or proximate cause of Mr. Dobbs's brain sag (and consequent brain hemorrhage). So, it is important to determine whether the evidence shows a large and immediate loss of CSF associated with the intraoperative dural tear.

65 See, e.g., Tr. of Bench Trial (Doc. 45) at 41:1-2. Throughout trial, the “gush” was variously qualified as “big,” “large,” or “sudden.” See, e.g., id. at 128:18-19, 191:6-7, 192:8.

15. The evidence in favor of a large gush of CSF during the surgery comes principally from Dr. Bahgat's testimony. Dr. Bahgat testified that “the cut would have produced a lot of fluid, a sudden gush.”⁶⁶ He also testified that “there was definitely a gush.”⁶⁷ And he testified that he “vividly remember[ed] the tear” and the fact that “it gushed.”⁶⁸

66 Id. at 192:7-8.

67 Id. at 192:24-25.

68 Tr. of Bench Trial (Doc. 46) at 284:9-12.

16. But Dr. Bahgat didn't know how much CSF leaked from the dural tear.⁶⁹ Indeed, Dr. Bahgat testified that there was no way to specifically measure the CSF that leaks when there's a dural tear.⁷⁰ And there was no way for him to reasonably guess how much came out.⁷¹

69 See Tr. of Bench Trial (Doc. 45) at 192:7-25.

70 See Tr. of Bench Trial (Doc. 46) at 290:24-25.

71 See id. at 291:1-6.

17. Dr. Bahgat also conceded at trial that he did not note the quantity of CSF in the post-operative report.⁷² And he concedes that he never mentioned in his post-operative report (or to Mrs. Dobbs after surgery) that there was a big, large, or otherwise abnormal amount of CSF that leaked from the intraoperative dural tear.⁷³ Concerning the absence of any reference to a gush of CSF in the post-operative report, Dr. Bahgat testified that his notes were “not to describe, you know, an event as a movie and give, you know, the surrounding atmosphere about what happened[,]” and “it wouldn't occur to [him] to describe like how much fluid there was or the intensity at the time T [sic] didn't seem like a big deal, because it happens all the time.”⁷⁴

72 See Tr. of Bench Trial (Doc. 45) at 193:20-194:8.

73 See id. at 193:20-194:1; Tr. of Bench Trial (Doc. 47) at 588:18-20. Based on this testimony, the Court finds that the “EBL: 500 mL” notation in the post-operative report is not about this supposed “gush” of CSF. Pls.' Trial Ex. 1 at 1985.

74 See Tr. of Bench Trial (Doc. 45) at 191:9-17.

18. When asked by Plaintiffs' counsel (in the context of Dr. Bahgat's prior evaluations of Mr. Dobbs and the corresponding medical records) whether, “if there were anything unusual, you would note it in the medical record[,]” Dr. Bahgat responded, “If it was something that was, you know, clearly, you know, a problem, yeah, we would have [sic] at least have to address it.”⁷⁵

75 See id. at 171:1-5.

19. One of the Plaintiffs' expert witnesses, Dr. Taylor, testified that, if there was a large CSF leak at the time of the dural tear, he (Dr. Taylor) would have documented it.⁷⁶ One of the Government's expert witnesses, Dr. Day, testified that, despite no record of a “large gush” of CSF in Dr. Bahgat's post-operative report, Dr. Day believed there was a “large gush” at the time of the dural tear because he has “seen it in surgery.”⁷⁷ Dr. Day did not attempt quantify or otherwise explain the possible volume of the gush.⁷⁸

76 See id. at 128:18-24.

77 Tr. of Bench Trial (Doc. 47) at 725:20-726:4.

78 See id.

20. Considering paragraphs 12-19 above, the Court finds it more likely than not that only an average amount of CSF immediately leaked from Mr. Dobbs's intraoperative dural tear. Dr. Bahgat couldn't quantify the amount. Moreover, given his hazy recollections of other specifics on that day, the Court does not believe Dr. Bahgat could accurately remember whether the immediate leak was small, average, or large.⁷⁹ And the mere fact that Dr. Day has seen large gushes occur in other operations is not a basis to speculate that one occurred here. On the other side of the ledger is the omission of any reference to a “gush” or an otherwise large amount of CSF leakage in the post-operative report.⁸⁰ And there is also the fact that Mrs. Dobbs was told right after the surgery that everything went well; she was not told anything about a serious CSF leak.⁸¹

79 See supra ¶ 4.

80 See Pls.' Trial Ex. 1 at 1984-86.

81 See Tr. of Bench Trial (Doc. 47) at 588:18-20.

21. The Court understands Dr. Bahgat's testimony that the post-operative report is not a movie script. But if the dural tear resulted in an abnormally big or large gush of CSF, the Court finds that Dr. Bahgat would have made note of that in the post-operative report that he authored very shortly after Mr. Dobbs's surgery concluded. This finding is consistent with Dr. Bahgat's comment that, if there was anything unusual or problematic, it would be documented in the medical records.⁸² It is also consistent with Dr. Taylor's expert testimony that, if there was a large CSF leak at the time of the dural tear, Dr. Taylor would have documented such an occurrence.⁸³ Taking all the foregoing into account, Plaintiffs have proved that it is more likely than not that the intraoperative CSF leak that immediately followed the dural tear was not large, but rather no more than an average leak of CSF that would occur from the average dural tear.⁸⁴

82 See Tr. of Bench Trial (Doc. 45) at 171:1-5.

83 See id. at 128:18-24.

84 The Court understands that the implication of its finding is that Dr. Bahgat's testimony on the stand was inaccurate. But the Court wishes to emphasize two points. First, this does not mean that Dr. Bahgat was lying. It only means that there is a greater than 50 percent likelihood that he was remembering things incorrectly. Second, because the Court is only finding facts on a more-likely-than-not standard, there is a fair (but less than 50 percent) chance that Dr. Bahgat was actually testifying accurately.

II. The Secondary Repair

22. When there is a dural tear, there are two methods by which a surgeon can repair it.⁸⁵ The first method is a primary repair.⁸⁶ As Dr. Taylor explained, a primary repair entails using a “suture” and “sewing the opening closed so that it is watertight.”⁸⁷ When the dural tear is not amenable to a primary repair, the surgeon must attempt a secondary repair.⁸⁸ As Dr. Taylor explained, a secondary repair generally consists of using muscle, fascia, Gelfoam, or dural sealants to “cover the hole . . . long enough for the dura to heal.”⁸⁹ A secondary repair is weaker than a primary repair.⁹⁰ This is because, among other reasons, the tear is not sutured closed.⁹¹ As Dr. Taylor and Dr. Day agree, there can be a CSF leak after either type of repair.⁹² Logic, of course, suggests that there is greater risk of a CSF leak with the secondary repair as opposed to the primary repair. And there was credible testimony to support this finding.⁹³ Nonetheless, a secondary repair can be considered watertight if the seal passes one of the tests described below.⁹⁴

85 See Tr. of Bench Trial (Doc. 45) at 62:24-63:2, 64:13-65:1.

86 Id. at 63:3-5.

87 See id. at 62:24-63:2.

88 See id. at 62:24-63:2, 64:13-65:14.

89 See id. at 64:13-65:1.

90 See id. at 65:12-14.

91 See id. at 62:22-65:20.

92 See id. at 144:20-22; Tr. of Bench Trial (Doc. 47) at 684:2-21.

93 See Tr. of Bench Trial (Doc. 45) at 74:22-75:13, 196:14-23.

94 See Tr. of Bench Trial (Doc. 47) at 683:24-684:1.

23. Because of the location of Mr. Dobbs's dural tear, Dr. Bahgat was unable to do a primary repair.⁹⁵ As a result, Dr. Bahgat attempted a secondary repair “with onlay muscle and Duraseal”-more specifically, “a muscle graft was placed on top of which a thin piece of Gelfoam was placed.”⁹⁶

95 See Pls.' Trial Ex. 1 at 1986; Tr. of Bench Trial (Doc. 46) at 278:25-279:19.

96 Pls.' Trial Ex. 1 at 1985, 1986.

24. After a surgeon has repaired a dural tear-whether by a primary or secondary repair-the surgeon must confirm the seal is closed.⁹⁷ The standard of care in Arkansas requires such confirmation.⁹⁸ And such confirmation can be accomplished in two ways.⁹⁹

97 See Tr. of Bench Trial (Doc. 45) at 62:22-63:2, 63:25-64:2, 66:3-20; Tr. of Bench Trial (Doc. 47) at 764:7-17.

98 See Tr. of Bench Trial (Doc. 45) at 144:2-19. The standard of care for laminectomies does not vary from one locality to another. See id. at 50:9-12. The literature is the same throughout the United States, and none of the literature is unique to Arkansas or another region. See id. at 50:3-12. As Dr. Taylor testified, following the repair of an intraoperative dural tear, it is within the standard of care to perform a Valsalva maneuver to check and see if there is a persistent leak. See id. at 144:2-15. And if Dr. Bahgat had performed the Valsalva maneuver (or otherwise checked the sufficiency of the secondary repair's seal), that would have been within the standard of care. See id. at 144:12-19. As Dr. Day similarly testified, if Dr. Bahgat had checked the sufficiency of the secondary repair's seal, Dr. Bahgat's surgical actions would have been within the standard of care. See Tr. of Bench Trial (Doc. 47) at 687:2- 8.

99 See Tr. of Bench Trial (Doc. 45) at 66:5.

25. First, a surgeon can use the Valsalva maneuver.¹⁰⁰ The Valsalva maneuver is done by having the anesthesiologist (or anesthetist) “stop respiration and increase intrathoracic pressure.”¹⁰¹ This “increase[s] the spinal fluid pressure, which is continuous, with the lumbar spinal pressure.”¹⁰² When the pressure increases, CSF will come out of the tear if the seal is not closed.¹⁰³

100 See id. at 66:5-6.

101 Id. at 66:6-7.

102 Id. at 66:8-9.

103 See id. at 66:10-11.

26. The other way to determine whether a seal is closed is to elevate the patient's head, which also “increase[s] the pressure of the fluid in the lumbar spine . . . .”¹⁰⁴ This is known as a reverse Trendelenburg position.¹⁰⁵

104 See id. at 66:12-17.

105 See id. at 66:15.

27. The post-operative report does not show that Dr. Bahgat used either method to check whether the secondary repair was sufficiently sealed.¹⁰⁶ The Government does not contend that Dr. Bahgat used the reverse Trendelenburg position to determine whether the secondary repair was sealed. Thus, a principal fact question in dispute is whether Dr. Bahgat performed the Valsalva maneuver to test the sufficiency of the secondary repair's seal.

106 See Pls.' Trial Ex. 1 at 1984-86. Nor do the anesthesiologist's (or anesthetist's) post-operative or intraoperative reports document that the Valsalva maneuver was performed. See id. at 44-65; Tr. of Bench Trial (Doc. 45) at 203:11- 204:2.

28. At trial, Dr. Bahgat testified multiple times that he performed the Valsalva maneuver after completing the secondary repair.¹⁰⁷ In one instance, Dr. Bahgat and the Plaintiffs' counsel engaged in the following colloquy:

107 See Tr. of Bench Trial (Doc. 45) at 202:9-204:2; Tr. of Bench Trial (Doc. 46) at 279:23-280:3.

Q: In the October 9th surgery, you do not document at all confirming that that tear was sealed, right?

A: Yes. But, again, this is-I'm describing one part of a big procedure. If and when I say, “this tear was not amiable to primary tear, so a muscle graft was placed on top, of which a thin piece of Gelfoam was placed,” it's not like I just dumped it on there and went, oh, no. I actually did do at least the first part of the second procedure, because I have to tuck it around and make sure it's secured in place, and then I have to put the Gelfoam on it in that location, make sure it's tight, and I have to do a Valsalva to make sure it's not leaking, because I'm not there to cheat on myself. I have no reason to cut corners and not do that stuff. And then at the end-

Q: Dr. Bahgat, let me stop you there. All I'm asking is whether in the first surgery operative note, you note that you looked for a leak. And you don't note that, do you?

A: I don't note it, but it happened.

Q: And you also-you mentioned the Valsalva maneuver. You say, you testified in deposition that you did a Valsalva maneuver. You remember that?

A: I did.

Q: But in the operative note on October 9th, 2018, nowhere in there does the word “Valsalva maneuver” or phrase “Valsalva maneuver” appear, right?

A: Correct.

Q: And we talked about earlier in this trial how a Valsalva maneuver is done with the help of an anesthesiologist, right?

A: Yes.

Q: And that's because the patient is unconscious. He can't bear up/down, right?

A: Correct.

Q: And we have the anesthesiology notes in this case, right?

A: I assume so.

Q: And you didn't find any note from your anesthesiologist that he helped you perform a Valsalva maneuver, right?

A: I don't know if they ever document that. This is a 15-, 20-second thing that we just ask them, okay, hold his breath, do a Valsalva maneuver. When the pressure reach 30, let me know. They control the bag, elevate the patient's pressure in his lung, we count to 10, I keep looking, there is no CSF, we release it, okay, let him breathe again.

Q: Well, Doctor-

A: I don't know if they ever have documented it.

Q: What we can agree on is neither you, in your operative note, nor the anesthesiologist, in the anesthesiology notes, document a Valsalva maneuver, right?

A: I haven't reviewed the anesthesiology notes, but if you say so.¹⁰⁸

108 Tr. of Bench Trial (Doc. 45) at 202:3-204:2.

At another point in his testimony, Dr. Bahgat testified that “we . . . did the Valsalva, even though I didn't document it, because I have to make sure that he's not leaking. . . . So at that point I was satisfied that it wasn't leaking . . . .”¹⁰⁹

109 Tr. of Bench Trial (Doc. 46) at 279:23-280:3.

29. When asked about his memory of performing the Valsalva maneuver, Dr. Bahgat testified that:

I remember [asking] anesthesia to perform a Valsalva and make sure that it wasn't leaking. It's just a reflex thing we ask for. Like, let's say when I do brain surgery. After I finish, I tell them do Valsalva to make sure that it doesn't bleed at the surgical bed. When I do, like, neck surgeries, after I put the retractors, I ask them to deflate and inflate the cuff. I've never thought about dictating it, but it's just a routine thing. I mean, I have no reason to, again-[.]¹¹⁰

110 Id. at 288:4-12.

30. Dr. Bahgat also testified that:

I remember doing it. I remember. Again, I only remember the vivid time of the tear, the repair and how tedious I tried to do it, and then was glad that when I put the muscle and the Gelfoam and did the Valsalva, that it wasn't leaking. Because if it was leaking, it's just more time, and then at some point you run out of options. You keep packing stuff, and then you don't know what to do. . . . So I remember looking at it, asking if he do Valsalva, are you up to 30, or whatever number I said, 10 seconds. The dura started to pulsate, but I didn't see spinal fluid coming out for the most part. . . . I mean, I don't remember what number they said, if it was for 10 seconds or 15 seconds. But I remember looking at it. You know, you have this, like, snapshot memory of something pulsating, the muscle patch, the white Gelfoam on it and nothing coming out of it.¹¹¹

111 Id. at 288:15-21, 289:1-10.

31. The Court again discredits Dr. Bahgat's testimony based on his hazy memories of other parts of that day.¹¹² There is no support in the evidence for why the performance of the Valsalva maneuver would stand out in Dr. Bahgat's memory. And the absence of it from his post-operative report is significant evidence that it did not occur.

112 See id. at 259:24-260:3, 270:10-271:17. See also supra ¶ 4.

32. The Government's standard-of-care expert, Dr. Day, testified that it was standard practice for a surgeon to record the use of the Valsalva maneuver in his notes in the post-operative report.¹¹³ The Court credits this testimony. Dr. Day qualified his testimony about this standard practice by explaining that “[k]ind of in every day [sic] reality have I seen where people didn't do it? Sure. Is it possible that I've forgotten to do that myself a time or two in my orientation? Yeah, I'm not infallible with that. . . . [But] I think most of the time it should-it should be in there, yeah.”¹¹⁴ When asked by Plaintiffs' counsel: “if Dr. Bahgat had done a Valsalva maneuver, you'd expect it to be documented,” Dr. Day responded, “I would hope so.”¹¹⁵ But Dr. Day also testified that, while surgeons are expected to document relevant procedures undertaken in the operation, “unfortunately there's a difference between expectations and reality sometimes.”¹¹⁶

113 See Tr. of Bench Trial (Doc. 47) at 685:2-20.

114 Id. at 685:9-13, 19-20.

115 Id. at 731:22-24.

116 See id. at 733:23-734:1.

33. Dr. Day's qualifications to his testimony do not help Dr. Bahgat much at all, given the applicable preponderance-of-the-evidence standard. While it is possible that Dr. Bahgat performed the Valsalva maneuver without documenting it, the Court finds that it is more likely than not that Dr. Bahgat would have documented such a procedure had he performed it.

34. At trial, it came to light that Dr. Bahgat was once one of Dr. Day's residents at the University of Arkansas for Medical Sciences.¹¹⁷ Plaintiffs' counsel elicited testimony from Dr. Day about whether he teaches his residents to document performing a Valsalva maneuver.¹¹⁸Dr. Day testified that he teaches his residents to document when they do a Valsalva maneuver, but he could not specifically remember whether he had ever told Dr. Bahgat to do so.¹¹⁹ Based on this testimony, the Court finds that it is more likely than not that Dr. Day did teach Dr. Bahgat to document the use of the Valsalva maneuver. And this strengthens the Court's foregoing finding that Dr. Bahgat would have documented the maneuver if he had done it.

117 See id. at 721:15-20. Dr. Day testified that he “hardly see[s]” Dr. Bahgat since Dr. Bahgat left residency. Id. at 721:24-25. The Court does not find that Dr. Day's past relationship with Dr. Bahgat undermines Dr. Day's credibility in any way.

118 See id. at 729:19-21.

119 See id. at 729:19-24.

35. For the reasons explained in Paragraphs 27-34 above, the Court finds that Plaintiffs have proved that it is more likely than not that Dr. Bahgat did not perform the Valsalva maneuver or otherwise test the sufficiency of the secondary repair's seal.¹²⁰

120 The Court's two observations made in note 84, supra, apply here as well.

III. The Use of a Drain

36. The post-operative report and Dr. Bahgat's testimony reveal that Dr. Bahgat installed a subfascial drain in Mr. Dobbs near the end of Mr. Dobbs's laminectomy.¹²¹ There appears, however, to be some confusion in the medical records about the precise type of drain used.¹²² For example, in the post-operative report, Dr. Bahgat documents that he installed a Jackson-Pratt (JP) drain.¹²³ The use of a JP drain is also reflected in the nurse's Progress Notes from the day after surgery.¹²⁴ But the Post Anesthesia Care Unit (“PACU”) records reflect, in part, that the drain was a “Hemovac” drain.¹²⁵ The PACU records also refer to the drain as a “[b]ulb drain” in one instance.¹²⁶

121 See Pls.' Trial Ex. 1 at 1986; Tr. of Bench Trial (Doc. 45) at 195:20-196:1. The Progress Notes refer to multiple drains. See, e.g., Pls.' Trial Ex. 1 at 1560. However, the testimony suggests that only one drain was installed. See, e.g., Tr. of Bench Trial (Doc. 46) at 282:17, 287:7-8. The Court understands the medical records and testimony to mean that there was one drain, but there were two compartments into which the drain emptied. See, e.g., Pls.' Trial Ex. 1 at 49. Ultimately, the number of drains doesn't matter. As discussed below, placing any drain without ensuring a watertight seal of the dural tear falls below the standard of care in Arkansas.

122 Compare Pls.' Trial Ex. 1 at 1545, 1986, with Pls.' Trial Ex. 1 at 48, 49.

123 See id. at 1986.

124 See id. at 1545.

125 Id. at 48, 49.

126 Id. at 47.

37. Testimony at trial went some way to clearing up the seemingly conflicting documentary descriptions of the drain. At trial, Dr. Bahgat referred to the drain as a JP drain multiple times.¹²⁷ He also described Mr. Dobbs's drain as “a hand bulb . . . .”¹²⁸ When asked if “[t]here was a JP lumbar drain that was a Hemovac drain installed in the lumbar region of Mr. Dobbs,” Dr. Taylor testified that:

127 See Tr. of Bench Trial (Doc. 45) at 212:6; Tr. of Bench Trial (Doc. 46) at 282:22.

128 Tr. of Bench Trial (Doc. 46) at 293:6.

JP and Hemovac are both-are two different types of drains that are used in surgery, and I think both of those words are used in the medical record. So it was one or the other. It's irrelevant in terms of the function and in terms of the issues of this case, I think.¹²⁹

129 Tr. of Bench Trial (Doc. 45) at 58:23-59:4.

Later in his examination, Dr. Taylor again testified that a JP drain and Hemovac drain are essentially the same thing.¹³⁰ Like Dr. Bahgat, Dr. Taylor refers to Mr. Dobbs's drain as a bulb.¹³¹ Dr. Day similarly testified that “I don't use the ones that are called Hemovacs, which a lot of people-you know, people will use that word even for a bulb. They're just using it like a general term, but it's not accurate.”¹³² He further explained that:

130 Id. at 110:9-15.

131 See, e.g., id. at 69:23-70:4.

132 Tr. of Bench Trial (Doc. 47) at 692:4-7.

[U]nfortunately in the hospital, there are other examples of this where a-like a trade name of something is used kinda broadly, but it's not-it's not correct. So they could have written Hemovac, but it was the little bulb suction. So that doesn't mean it was a Hemovac on suction. It means that somebody's using that as a general term for the drain, wrongly unfortunately, but then they put that in the chart. Then it creates confusion.¹³³

133 Id. at 765:19-766:1.

Considering all this testimony and the evidence admitted at trial, the Court finds that the drain installed in Mr. Dobbs at the end of his surgery was, more likely than not, a JP drain with a bulb suction function-not a high suction Hemovac drain. The one stray reference to the Hemovac drain in the PACU records was, more likely than not, made in error.

38. It is still unclear from the trial record, however, whether the drain used was only gravity-based, or also had a negative suction feature that could either be turned on or manually employed. The Court need not resolve this factual dispute because the Court finds that it is below the standard of care in Arkansas to use either type of drain when the sufficiency of the seal of the dural tear has not been confirmed by way of the Valsalva maneuver of reverse Trendelenburg position.¹³⁴ The use of any drain near a dural-tear site without confirmation of a watertight seal of the dural tear is below the standard of care because it allows, encourages, or promotes additional leakage of CSF if the repaired dural tear is not sufficiently sealed.¹³⁵

134 See, e.g., id. at 729:25-730:11, 764:7-13.

135 See, e.g., id. See also Tr. of Bench Trial (Doc. 45) at 160:23-24 (“The drain makes its [sic] more likely that the patch is going to fail.”); id. at 97:18-20 (“It is not safe [to use a drain] when there has been a durotomy, and the durotomy has not been closed in a watertight fashion.”).

39. Dr. Bahgat testified that, near the end of surgery, he installed a JP drain in Mr. Dobbs to remove excess blood and tissue fluid from the cavity around Mr. Dobbs's spine.¹³⁶Dr. Bahgat testified that the build-up of excess blood and tissue fluid in this cavity could lead to increased pressure in the cavity, which could cause pain, paralysis, blood clots, or numerous other problems.¹³⁷ The Court accepts this portion of Dr. Bahgat's testimony as fact.

136 See Tr. of Bench Trial (Doc. 45) at 195:23-196:1; Tr. of Bench Trial (Doc. 46) at 280:20-283:24.

137 See Tr. of Bench Trial (Doc. 46) at 282:11-23, 283:8-23.

40. Dr. Bahgat testified that, when deciding to install the drain, he “put into consideration” the fact that Mr. Dobbs had suffered a dural tear.¹³⁸ Dr. Bahgat also testified that he was “fully aware” that the dural tear “could leak again.”¹³⁹ At one point, Dr. Bahgat suggested that he weighed the risk of a rare complication, e.g., a remote cerebral brain hemorrhage, with other more common complications.¹⁴⁰ But after being questioned about his memory of the decision-making process, Dr. Bahgat testified that, while he “vividly remember[ed] the tear,” he “[wouldn't] lie and say [he] was focusing on the cerebral hemorrhage. . . . [He] didn't think about it.”¹⁴¹ When asked whether he was “really thinking about at that moment, should I put this drain in or should I not[,]” Dr. Bahgat testified, “One hundred percent, yes.”¹⁴²

138 Id. at 282:24-25.

139 Id. at 283:2-3.

140 See id. at 283:17-23 (“The remote cerebral hemorrhage is one in 10,000, you know, again, give or take the literature. So this is where being rare puts into the consideration. I can either not put the drain and avoid potentially causing that, or not put it and then get a clot, and then he can have bowel and bladder problems where he has to catheterize himself, or he has more pain or more weakness.”).

141 Id. at 284:11, 22-24.

142 Id. at 285:6-9.

41. Although there is some internal conflict in Dr. Bahgat's testimony in the preceding paragraph, the Court need not resolve the conflict. Whatever Dr. Bahgat's reasoning for placing the drain, it is clear that doing so without confirming a watertight seal of the dural tear was below the standard of care in Arkansas.

IV. Post-Laminectomy Events

42. The Court finds that Plaintiffs have proved that it is more likely than not that, after Dr. Bahgat performed the secondary repair and finished the surgery, CSF continued to leak out of the dural-tear site. The reasons for this finding are set out below, but generally consist of evidence that (1) a significant amount of fluid was collected over many hours by the drain, and (2) CSF leakage from the dural-tear site was found during a second surgery six days later.

43. After surgery, Mr. Dobbs was taken to the PACU to recover from his anesthesia.¹⁴³The PACU records show that at 17:29-an hour and ten minutes after Mr. Dobbs's surgery ended-the right side of the drain had collected a total of 25 milliliters of fluid, and the left side of the drain had collected 75 milliliters of “all serous sanguinous [sic]” fluid.¹⁴⁴ Dr. Taylor testified that serosanguineous means “blood-tinged fluid[,]” and Dr. Day testified that it means “that there is blood in fluid.”¹⁴⁵ The 17:29 notes also show that Mr. Dobbs was alert, awake, and following commands, but he was moaning.¹⁴⁶

143 See Pls.' Trial Ex. 1 at 1986.

144 Id. at 48.

145 Tr. of Bench Trial (Doc. 45) at 106:23; Tr. of Bench Trial (Doc. 47) at 755:2-3.

146 See Pls.' Trial Ex. 1 at 48.

44. At 18:35, the PACU record shows that Mr. Dobbs's right side of the drain now contained an additional 150 milliliters of fluid, and the left side of the drain had an additional 100 milliliters of fluid.¹⁴⁷ A 19:04 check-up shows that Mr. Dobbs was still alert, awake, and following commands.¹⁴⁸ At 19:08, the fluid collected in the drains still measured 150 milliliters in the right side of the drain and 100 milliliters in the left side of the drain.¹⁴⁹ The fluid was again described as serosanguinous.¹⁵⁰

147 See id. at 49.

148 See id. There was no longer any indication that Mr. Dobbs was moaning.

149 See id.

150 See id.

45. Mr. Dobbs's next check-up was at 20:30.¹⁵¹ In a record labeled “Progress Notes[,]” Mr. Dobbs's neurological assessment revealed that he was alert, oriented to person, place, and time, and able to respond to verbal commands and answer questions appropriately.¹⁵² He did not exhibit any signs of weakness, numbness, tingling, inattention, disorganized thinking, or visual or hearing impairments.¹⁵³ At this time, he spoke clearly and could move all extremities.¹⁵⁴ Another check-up at 00:30 on October 10th revealed that Mr. Dobbs's neurological assessment was essentially unchanged.¹⁵⁵

151 See id. at 1549.

152 See id. at 1550.

153 See id.

154 See id.

155 See id. at 1551-52.

46. Mr. Dobbs's next check-up was four-and-a-half hours later at 05:00.¹⁵⁶ This time, the nurse noted that Mr. Dobbs had “poor verbal expression[.]”¹⁵⁷ Dr. Taylor testified that this was a “nonspecific comment that the person doing the evaluation thought that [Mr. Dobbs's] speech was not normal for him.”¹⁵⁸ But otherwise, the nurse's observations were unchanged from the 20:30 and 00:30 check-ups.¹⁵⁹

156 See id. at 1552. There is no record of any check-ups between 00:30 and 05:00 on October 10th. However, Mrs. Dobbs testified that on the night of October 9th and in the early morning of October 10th, Mr. Dobbs was repeatedly vomiting and “would roll back and forth in his bed, back and forth, back and forth, because he said his head was hurting so badly.” Tr. of Bench Trial (Doc. 47) at 590:21-591:3. Mrs. Dobbs also testified that she “felt like [Mr. Dobbs's talking] was normal, you know, but, I mean, obviously he wasn't talking too much because all that other stuff was kinda going on. So, I mean, but I didn't think to myself, wow, he's not responding normally or looking at me normally. It seemed all fine to me.” Id. at 594:7-12. Moreover, Mrs. Dobbs testified that Mr. Dobbs continued to vomit at least until he was taken for his MRI, but it is unclear which trip to the MRI she is referring to. See id. at 594:19-595:3. Of course, Mrs. Dobbs is likely not a particularly reliable witness here. That night, she passed out and hit her head. See id. at 591:4-15. As Mrs. Dobbs testified, she “was knocked out cold.” Id. at 591:14-15. The Court accepts the general tenor of her testimony but cannot accept the specifics because of the head injury.

157 Pls.' Trial Ex. 1 at 1552.

158 Tr. of Bench Trial (Doc. 45) at 110:2-5.

159 See Pls.' Trial Ex. 1 at 1552-53.

47. At 05:06, the records show that an additional 200 milliliters of fluid had collected in Mr. Dobbs's drain.¹⁶⁰ At 07:06, there was an additional 225 milliliters collected in the drain.¹⁶¹

160 See id. at 1545.

161 See id.

48. By this point, Mr. Dobbs had lost approximately 775 milliliters of fluid since Dr. Bahgat installed the drain fourteen hours earlier.¹⁶²

162 See Tr. of Bench Trial (Doc. 45) at 113:13-17.

49. Drs. Taylor, Bahgat, and Day all testified that there was no way to know exactly how much of the drained fluid was CSF.¹⁶³ Dr. Taylor testified that the average person has approximately 300 milliliters of CSF in his body at one time.¹⁶⁴ Dr. Taylor also testified that the average person produces about 20 milliliters of CSF per hour.¹⁶⁵

163 See id. at 112:7-9; Tr. of Bench Trial (Doc. 46) at 306:4-11; Tr. of Bench Trial (Doc. 47) at 715:2-6.

164 See Tr. of Bench Trial (Doc. 45) at 56:23-57:2. Specifically, Dr. Taylor said the average person could have anywhere from 150 to 400 milliliters of CSF in his body, with an average of 300 milliliters. See id.

165 See id. at 55:24-56:6. Under normal circumstances (i.e., when there is no dural tear), CSF is recycled into the bloodstream. See id. at 56:8-20. Dr. Day agreed with Dr. Taylor's estimate. See Tr. of Bench Trial (Doc. 47) at 708:1-6.

50. By 07:20, Mr. Dobbs had begun to exhibit signs of expressive aphasia, which is the inability to speak.¹⁶⁶ Dr. Bahgat was informed of this development, and an urgent brain MRI was ordered.¹⁶⁷ Mr. Dobbs, however, did not have an MRI until later that afternoon.¹⁶⁸ In the intervening hours, nurses performed two neurological checks at 08:00 and 13:00.¹⁶⁹ At both checks, Mr. Dobbs was alert and able to follow commands, but he was still unable to speak.¹⁷⁰

166 See Pls.' Trial Ex. 1 at 1540; Tr. of Bench Trial (Doc. 45) at 114:1-2.

167 See Pls.' Trial Ex. 1 at 1540; Tr. of Bench Trial (Doc. 45) at 206:1-4.

168 See Pls.' Trial Ex. 1 at 1530. Mr. Dobbs's MRI was delayed because he had a metal Foley catheter with a temperature probe, which needed to be removed before he could have an MRI. See id. at 1529, 1539.

169 See id. at 1524, 1527.

170 See id.

51. Mr. Dobbs's MRI revealed that he had three brain bleeds.¹⁷¹ The neuroradiologist's notes explain that:

171 See id. at 644-45, 1521; Tr. of Bench Trial (Doc. 45) at 206:10-15.

The cerebral venous sinuses appear widely patent on 3D postcontrast imaging. Diffuse mildly thickened dural enhancement consistent with the given history of recent dural tear. Favor transient intracranial hypotension that resulted in brain sagging and mechanical obstruction of cingulate and superior cerebellar veins. This likely resulted in venous ischemia/infarction with subsequent hemorrhage.¹⁷²

172 Pls.' Trial Ex. 1 at 645.

When asked about the neuroradiologist's findings at trial, Dr. Bahgat said it would be fair to conclude that the most likely cause of the brain bleeds was CSF draining through the dural tear, which would have resulted in the brain sagging.¹⁷³ In turn, the brain sag would have stretched and torn veins in Mr. Dobbs's brain.¹⁷⁴

173 See Tr. of Bench Trial (Doc. 45) at 211:19-23.

174 See id.

52. At 15:55, Mr. Dobbs was transferred to the Surgical Intensive Care Unit (“SICU”).¹⁷⁵ Dr. Bahgat's post-MRI notes show that he ordered the drains to stay in Mr. Dobbs.¹⁷⁶At 17:00, Mr. Dobbs was able to follow some commands, such as squeezing a nurse's hands, but he could not hold up two fingers when asked.¹⁷⁷ By 19:00, Mr. Dobbs was “becoming increasingly more apneic and less responsive to following commands.”¹⁷⁸

175 See Pls.' Trial Ex. 1 at 1516, 1521. When asked at trial whether he considered taking the drain out after the MRI, Dr. Bahgat testified:

Probably. I mean, I don't remember vividly, but definitely I think logic would dictate I would have thought about taking it out. But I believe it was solid, looked at the drainage, and then again assessed whether was [sic] coming out of it was blood more or exudate more or spinal fluid, and decided that to keep it to prevent other issues with not-with taking it out, like you get a clot or a hematoma. That would be my guess of why I kept it. I don't remember vividly, but that would be-definitely had to consider it, because I remember looking at it, remember reviewing the output of it.

Tr. of Bench Trial (Doc. 46) at 300:14-24.

176 See Pls.' Trial Ex. 1 at 1457, 1521; Tr. of Bench Trial (Doc. 45) at 206:16-207:4.

177 See Pls.' Trial Ex. 1 at 1493.

178 See id.

53. A CT scan of Mr. Dobbs's head was performed at 20:12.¹⁷⁹ The CT scan revealed that Mr. Dobbs's “ventricles were bigger. They looked enlarged.”¹⁸⁰ Based on the CT results, Dr. Bahgat's concern was, “maybe the blood or the shift in the brain had blocked any of these outflows, and it was building enough that these cavities were now expanding[,]” which could “just squeeze the brain tissue against the walls of the skull, and then it can cause more damage.”¹⁸¹ As a result, an external ventricular drain (“EVD”) was placed at 22:20.¹⁸² Dr. Bahgat testified that an EVD was necessary to measure the pressure of the brain and drain fluid to reduce the pressure, if necessary.¹⁸³

179 See id.

180 Tr. of Bench Trial (Doc. 46) at 302:8-9.

181 Id. at 302:9-15. See also Pls.' Trial Ex. 1 at 1492 (“CT shows enlarging ventricle with loss of CSF space and sylvian [fissure] tightness”).

182 See Pls.' Trial Ex. 1 at 1493.

183 See Tr. of Bench Trial (Doc. 46) at 302:19-21.

54. Mr. Dobbs had another CT scan the next morning (October 11th), which showed that the “stability of the bleed . . . was the same.”¹⁸⁴ At this point, Mr. Dobbs's drain output over the previous twenty-four hours was 300 milliliters, which, according to Dr. Bahgat, was “within what you would expect.”¹⁸⁵ The Progress Notes from 08:00 on October 11th reflect that Mr. Dobbs “does not follow commands but will withdraw to painful stimuli. Occasional blinking of eyes noted but [Mr. Dobbs] does not open eyes to command or track around room.”¹⁸⁶ At 10:34, a check-up of Mr. Dobbs showed the “EVD working well with very low pressure. CSF is clear. . . . Continue surgical drains which have thin output serosanginous [sic].”¹⁸⁷

184 Id. at 303:8-11.

185 Id. at 303:18-20. See also Pls.' Trial Ex. 1 at 1458.

186 Pls.' Trial Ex. 1 at 1461.

187 Id. at 1456-57.

55. On the morning of October 12th, Mr. Dobbs underwent an electroencephalography (“EEG”) to determine whether he was having seizures.¹⁸⁸ The impressions of the EEG showed that the EEG was “[a]bnormal . . . because of generalized slowing of teh [sic] EEG activity and frequent bifrontal epileptiform discharges. This [is] indicative of moderate-severe generalized cerebral [dysfunction] with bifrontal potential epileptogenicity.”¹⁸⁹

188 See id. at 1401; Tr. of Bench Trial (Doc. 46) at 307:3-8.

189 Pls.' Trial Ex. 1 at 1401-02.

56. Because of “worsening mentation since yesterday[,]” Mr. Dobbs had another CT scan on October 12th.¹⁹⁰ This scan revealed “[t]hat everything [was] stable.”¹⁹¹ (Dr. Bahgat testified that, when the bleeds are stable, it simply means they have not worsened.¹⁹²) However, Mr. Dobbs's “EVD and lumbar JP drains” were “pulled” at this time.¹⁹³ Dr. Bahgat testified that he decided to remove the drains at this time because:

190 Id. at 1399.

191 See Tr. of Bench Trial (Doc. 46) at 307:13.

192 See id. at 317:8-12.

193 Pls.' Trial Ex. 1 at 1426.

[T]he EVD was, the pressure was not high, the ICPs were controlled. We didn't need to drain anything out of it. We got a repeat CT scan. The ventricles weren't enlarged, were appropriate size, so they had no function. We had closed them that morning and then got a scan later in the day, make sure that it doesn't expand. So we took them out, the JP drain. That time the flow coming out of it had gone down. The odds of having a hemorrhage or anything concerning that I needed to drain was not needed, so I pulled them out. They did the function that I wanted them to do.¹⁹⁴

194 Tr. of Bench Trial (Doc. 46) at 308:7-18.

57. On October 13th, Mr. Dobbs's consciousness level was not improving, so another MRI was done.¹⁹⁵ Dr. Bahgat testified that “[f]or the most part [the findings of the MRI were] stable. . . . [T]he ventricles were a little bit larger, but there was air in them probably from taking out the EVD . . . .”¹⁹⁶ When Dr. Bahgat checked on Mr. Dobbs after his most recent MRI, Dr. Bahgat observed that Mr. Dobbs had a “[s]table neuroexam, slight improved flexation on left [upper extremity], flex both [lower extremity] to minimal stimulation, [o]pen eye to stimuli once . . . .”¹⁹⁷ Dr. Bahgat testified that these observations indicated that Mr. Dobbs “was stable” and “[n]othing had changed.”¹⁹⁸

195 See id. at 309:4-17; Pls.' Trial Ex. 1 at 1329-30.

196 Tr. of Bench Trial (Doc. 46) at 309:14-16. See also Pls.' Trial Ex. 1 at 1328.

197 Pls.' Trial Ex. 1 at 1328.

198 Tr. of Bench Trial (Doc. 46) at 309:25.

58. Dr. Bahgat's next interaction with Mr. Dobbs was the following day (October 14th) around noon. Dr. Bahgat's notes and testimony reveal that nothing happened to Mr. Dobbs overnight, and that Mr. Dobbs was “showing subtle improvement in neurological function.”¹⁹⁹

199 Pls.' Trial Ex. 1 at 1290. See also Tr. of Bench Trial (Doc. 46) at 310:11-14 (“So seems to be he's opening his eyes, had more consistent responses. So maybe somewhat better, but really nothing major worse or better, just some very subtle improvement I would say.”).

59. Despite subtle improvement, Dr. Bahgat decided on October 15th that Mr. Dobbs would need a second surgery.²⁰⁰ In deciding that a second surgery was necessary to determine whether there was a CSF leak, Dr. Bahgat testified:

200 See Pls.' Trial Ex. 1 at 1238-41.

So the thought process was that he hadn't gotten any better. There's no significant change. We got repeat scans that for the most part were stable. Other than keep watching, there's nothing active we can do. The only thing surgical I could offer is to say, okay, maybe he does have a leak in his back, maybe it was still leaking some. There was nothing leaking out of the incision. The incision wasn't puffed, wasn't leaking to the outside, wasn't soft, wasn't . . . no clear clinical indication that would say he definitely had a leak. It was just an assumption that, okay, if he was having a leak, why not to go in. The risk of going in again is low; and look at it. If there is a leak we can fix it, give him a better chance. And I explained to the family as best as I could this is what we're thinking. It may end up being a helpful surgery, maybe not, but the risk is low, and the potential benefit could be worth it.²⁰¹

201 Tr. of Bench Trial (Doc. 46) at 311:3-19 (ellipsis in original).

Because Mr. Dobbs was unable to give consent, Dr. Bahgat “believe[s]” he obtained consent from Mrs. Dobbs to perform the re-exploration surgery.²⁰² Again, while there were other people in the operating room with Dr. Bahgat for the re-exploration surgery, including an anesthesiologist (or anesthetist), neither party called any of those other people to testify at trial.²⁰³

202 Id. at 311:20-23.

203 See Pls.' Trial Ex. 1 at 1981.

60. The October 15th re-exploration surgery revealed that, after “the paraspinal muscles were separated with a cerebellar retractor[,]” Dr. Bahgat “could see fluid within the epidural space.”²⁰⁴ “The fluid was suctioned out . . . to inspect the site of the dural tear[,]” and “[t]he prior muscle graft and Gelfoam was removed and the tear was identified.”²⁰⁵ The Operative Findings in the post-operative report state that “[t]he site of the prior dural tear was explored[,] [and] CSF could be seen coming from the tear but was not aggressive.”²⁰⁶

204 Id. at 1980.

205 Id.

206 Id. at 1979.

61. At one point, Dr. Bahgat testified that, “[t]heoretically, [Mr. Dobbs] could have been not leaking at the time . . . [a]nd once [Dr. Bahgat] opened it the pressure is less and it could start to leak.”²⁰⁷ He also testified that he saw “some fluid coming out of the edges of the repair[,]” but doesn't “remember if it was when [he] manipulated it or before [he] even touched it . . . .”²⁰⁸Dr. Bahgat testified that the leak was “nothing that was like a gush of fluid.”²⁰⁹ Instead, according to Dr. Bahgat, it was “[j]ust like a small trickle.”²¹⁰ Dr. Bahgat testified that it could have been “a combination of blood, normal tissue fluid, and in this case it could be CSF.”²¹¹ Dr. Bahgat could not remember “exactly how much [fluid] it was.”²¹²

207 Tr. of Bench Trial (Doc. 46) at 312:25-313:4.

208 Id. at 313:5-7.

209 Id. at 313:7-8.

210 Id. at 313:8. Dr. Bahgat testified that it was possible that the re-exploration surgery could have caused the leak. See id. at 315:24-316:4. But he also testified that Mr. Dobbs could have had an active leak on October 15th. See Tr. of Bench Trial (Doc. 45) at 199:16-18.

211 Tr. of Bench Trial (Doc. 45) at 199:6-8.

212 Tr. of Bench Trial (Doc. 46) at 313:8-9.

62. At this point, “a large muscle graft was obtained and gently tucked and wrapped around the tear.”²¹³ Dr. Bahgat then “placed another piece of muscle graft to hold it in place after which an onlay Gelfoam was placed soaked in blood.”²¹⁴ Dr. Bahgat “sprayed DuraSeal after which another muscle layer was placed and a Gelfoam.”²¹⁵ “These were secured and held in place with a crossing stitch after which we inspected the rest of the surgical cavity for sites of other leaks or tears.”²¹⁶ No other leaks or tears were identified.²¹⁷

213 Pls.' Trial Ex. 1 at 1980.

214 Id.

215 Id.

216 Id.

217 See id.

63. After Mr. Dobbs's “skin was closed with a stapler[,]” he “was flipped to a supine position . . . and an EVD catheter was placed advanced to about 6-7 cm.”²¹⁸ Dr. Bahgat's post-operative report for the re-exploration surgery explains that on “[t]he first pass we could not obtain any CSF so a second pass was attempted this point we could see CSF coming back but at a very low pressure.”²¹⁹ This time, Dr. Bahgat did not install a JP drain.²²⁰ A post-surgery CT scan revealed that Mr. Dobbs's brain bleeds were “stable, but there was more air just from putting the catheter in, that air just got in, filled up the ventricles.”²²¹

218 Id.

219 Id.

220 See Tr. of Bench Trial (Doc. 45) at 133:4-6.

221 See Tr. of Bench Trial (Doc. 46) at 316:13-23.

64. The Court finds that the re-exploration surgery revealed a CSF leak from the original dural-tear site. It is sheer speculation to suggest that this leak only began at the time the re-exploration surgery was conducted. Based on the chain of events and testimony discussed above, it is far more likely that the CSF discovered during the re-exploration surgery on October 15th was from an ongoing CSF leak from Mr. Dobbs's original dural tear during the October 9th laminectomy. Given Dr. Bahgat's failure to confirm the sufficiency of the seal of the dural tear in the first surgery, the subsequent placement of a drain, and the significant amount of drainage noted between the first surgery and the second surgery, it is more likely that CSF began to leak shortly after the first surgery was completed.²²² While no one can know how much of the fluid collected in the drains was CSF compared to other fluids, it is very likely that some portion of it was CSF. The Court finds that Plaintiffs have proved this by a preponderance of the evidence.

222 The Court cannot determine with any accuracy how much of the drainage between the two surgeries was CSF. However, the Court can and does find that some significant portion of the drainage was CSF. See Tr. of Bench Trial (Doc. 45) at 129:20-22 (“I think that his injury occurred following surgery, as there was CSF drained out, and a large volume of CSF drained out the morning after surgery.”). That finding follows-at least given the preponderance-of-the-evidence-standard-from the fact that the seal of the dural tear in the first surgery was not confirmed and that CSF was found leaking from the same place during the re-exploration surgery. In sum, the overarching story told by the Plaintiffs-a dural tear not confirmed to be sealed, followed by post-operative leakage of CSF into the drain, eventual brain hemorrhage from the continuous post-operative loss of CSF, and discovery of the leakage during a second surgery-is far more persuasive than the one told by the Government-a dural tear properly closed, no CSF in the drains at all, CSF only found in the second surgery because that surgery somehow opened the original dural-tear site, and a delayed brain hemorrhage arising many hours after the initial intraoperative dural tear. The Court cannot definitively say the Government's version of events is wrong. But the Court can definitively say that the Government's version of events is less likely than Plaintiffs' version of events. Plaintiffs' version of the events is more likely than not what happened.

65. The Court also finds that Plaintiffs have proved that it is more likely than not that the drain promoted the CSF leak after the end of the October 9th surgery. Dr. Taylor explained that a “negative pressure drain draws fluid out of the space and would promote CSF leakage from the dura.”²²³ He also testified that “[t]he drain makes its [sic] more likely that the [secondary repair] is going to fail.”²²⁴ For his part, Dr. Bahgat agreed with the Plaintiffs' counsel's assertion that “a subfascial drain in that secondary closure setting promotes the movement of fluid from inside the body to out . . . .”²²⁵ Even gravity drains encourage such leakage by creating an easy path for the CSF to take.²²⁶ That is consistent with Dr. Day's fervor about not placing a drain without confirming a watertight seal. When asked whether he had ever placed a drain in such circumstances, Dr. Day testified, “if I couldn't fix it with suture or with a graft and then prove that nothing's coming with a Valsalva maneuver, then, no, that's not something that anybody would do.”²²⁷ According to Dr. Day, no neurosurgeon in his right mind would place a drain in that situation.²²⁸ The reasonable inference from this is that a drain-whether a gravity, negative pressure, or suction drain-would promote or exacerbate a CSF leak.

223 Id. at 100:4-6.

224 Id. at 160:23-24.

225 Id. at 209:1-4.

226 See id. See also id. at 160:23-24.

227 Tr. of Bench Trial (Doc. 47) at 764:7-13.

228 See id. at 764:14-17.

V. The Cause of the Brain Sag and Hemorrhage

66. The Court finds that Plaintiffs have proved that it is more likely than not that the immediate, intraoperative CSF leak from the dural tear did not-on its own-cause Mr. Dobbs's brain sag. Correspondingly, the Court finds that the Plaintiffs have proved that it is more likely than not that the continuous CSF leak caused by the placement of the drain was a but-for cause and proximate cause of the brain sag. That is, whether or not the immediate loss of CSF during the October 9th surgery contributed to the brain sag, it is more likely than not that the brain sag would not have occurred without the post-operative CSF leak caused by the placement of the drain. The Court finds that Plaintiffs have proved this by a preponderance of the evidence for the following reasons.

67. Dr. Taylor testified that he believed, within a reasonable degree of medical certainty, that the drain caused Mr. Dobbs's brain bleeds.²²⁹ He opined that Mr. Dobbs's “injury occurred following surgery, as there was CSF drained out, and a large volume of CSF drained out the morning after surgery.”²³⁰ Dr. Taylor based this opinion “on the understanding of the mechanism of injury, that symptoms of brain injury from intracranial hypotension and brain shift and compressed veins and ischemia, those are all things that occur fairly quickly.”²³¹ Quoting an article titled Symptomatic Intracranial Hemorrhage After Dural Tear in Spinal Surgery-A Series of 10 Cases and Review of the Literature (“the Allouch Article”), Dr. Taylor testified that when a patient loses CSF, “‘brain sagging may take place and possibly promote intra cerebral hemorrhaging as a result of stretching of cortical bridging veins.'”²³² According to Dr. Taylor, the symptoms of the insult to the brain that Mr. Dobbs suffered “occur immediately or within minutes or an hour or two[]” of the brain sag, “not a half a day later or 16 hours later.”²³³ The point being, if the symptoms occur fairly quickly after the brain sag, then the timeline is far more consistent with a brain sag occurring hours after the surgery as opposed to a brain sag occurring during or right after surgery.

229 See Tr. of Bench Trial (Doc. 45) at 130:9-12.

230 Id. at 129:20-22.

231 Id. at 129:24-130:2.

232 Id. at 86:14-17, 93:11-14.

233 Id. at 129:24-130:4.

68. Dr. Day's testimony generally supports Dr. Taylor's testimony that the loss of CSF can lead to a brain hemorrhage.²³⁴ Dr. Day testified that:

234 See Tr. of Bench Trial (Doc. 47) at 723:19-724:9.

[W]hen you get a loss, a sudden loss of spinal fluid, and you get this so-called cerebellar sag, then it stretches those veins and pulls on them. These veins are fragile. The same thing can happen up top along the cerebrum, especially near the midline. That's where most of our big bridging veins are, above the tentorium. Those veins are very fragile. When they stretch, they close down. So, you know, if it's loose, then it's, you know, it has the volume like that. But as it stretches, it goes like this. And some of them will tear. So whether they're stretched and flattened and not flowing or they actually tear, the result is the same. You've interrupted the normal outflow of venous blood from that brain tissue.²³⁵

235 Id. at 697:1-13.

The stretching of the veins, Dr. Day concluded, could lead to a brain hemorrhage.²³⁶

236 See id. at 700:5-7, 12-13. (“And it's because it's the loss at the time of the big drainage of CSF is when the sag occurs and you have the problem . . . You get the sag, the veins break, stretch, occlude, and then things go from there.”).

69. But Dr. Day testified that the cause of Mr. Dobbs's brain sag-and, therefore, the cause of the brain hemorrhage-was the loss of a large amount of CSF at the time of the dural tear.²³⁷ In support of this theory, the Dr. Day testified that Mr. Dobbs brain sagged sometime before 16:30 on October 9th.²³⁸ That is, the brain sagged during surgery or immediately thereafter.²³⁹

237 See, e.g., id. at 700:11-12, 725:20-22, 726:5-7.

238 See id. at 726:24-727:2.

239 See id.

70. Dr. Day acknowledged that Mr. Dobbs had normal neurological checks in the 15 hours following his first surgery.²⁴⁰ But Dr. Day suggested this was not inconsistent with his timeline of when the brain sag occurred. According to Dr. Day:

240 See id. at 727:3-6.

[When y]ou occlude a vein, patient's doing pretty well, and then usually about 12-ish hours later things start to change. And things get worse and worse, and then you end up getting a scan somewhere between 12 and 38 hours, and there's the hemorrhage, it's in the tissue. So, you know, when a vein busts initially from that sag, you could have some hemorrhage then, but that hemorrhage is outside the brain tissue. It's not in the tissue like you see on Mr. Dobbs'[s] scan. That's hemorrhage in the tissue.²⁴¹

241 Id. at 699:6-14. See also id. at 728:4-6 (“We know that it occurs somewhere between 12 and up to 48 hours later, when the scans are done, when we see the hemorrhage.”).

As the Court best understands Dr. Day's testimony, it is his opinion that the initial dural tear resulted in a “big gush” of CSF, which caused the brain to immediately sag. But the sag did not immediately cause the brain hemorrhage. Instead, it caused some veins to “break, stretch, occlude, and then things go from there.”²⁴² Dr. Day described the things going from there as a “cascade of events[,]” with the manifestation of the insult taking place “somewhere between 12 and 38 hours” later.²⁴³ According to Dr. Day, the ultimate manifestation is a bleed in the brain tissue (i.e., the hemorrhage) no sooner than 12 hours after the sag, which immediately followed the significant loss of CSF.²⁴⁴

242 Id. at 700:12-13.

243 Id. at 698:14-699:15.

244 See id. at 699:11-25.

71. Based on this theory, Dr. Day testified that, because of the significant loss of CSF at the time of the dural tear, Mr. Dobbs's brain hemorrhage would have occurred regardless of Dr. Bahgat's decision to install a drain.²⁴⁵ And the hemorrhage would've been just as severe.²⁴⁶

245 See id. at 710:8-17.

246 See id. at 710:12-17.

72. The Court finds that Dr. Taylor's theory of the injury here is more likely than Dr. Day's theory. First, Dr. Day's theory is premised on a fact that the Court has already concluded did not occur-namely, an unusually large and immediate loss of CSF at the time of the intraoperative dural tear. Dr. Day does not suggest an average release of CSF from an intraoperative dural tear would cause the brain to immediately sag. And, given the statistics the Court has already credited concerning the frequency of intraoperative dural tears and the infrequency of resulting brain hemorrhages, something more than an average loss of CSF during the surgery would be necessary to support Dr. Day's theory.

73. Second, Dr. Taylor testified that “symptoms of brain injury from intracranial hypotension and brain shift and compressed veins and ischemia, those are all things that occur fairly quickly. They occur immediately or within minutes or an hour or two, not a half a day later or 16 hours later.”²⁴⁷ So this really is a true battle of the experts on the timeline from CSF loss to brain sag to brain hemorrhage. After listening to the dueling expert testimony, the Court finds Dr. Taylor's testimony about the usual timeline of the brain bleed more credible than Dr. Day's testimony.²⁴⁸ It is not that Dr. Day's scenario is impossible. Rather, the Court believes the Dr. Day's scenario is more of an outlier than Dr. Taylor's scenario.²⁴⁹

247 Tr. of Bench Trial (Doc. 45) at 129:25-130:4.

248 See Kaplan v. Mayo Clinic, 847 F.3d 988, 991 (8th Cir. 2017) (the Court of Appeals “‘give[s] due regard to the opportunity of the district court to judge the credibility of the witnesses'” (quoting Tadlock v. Powell, 291 F.3d 541, 546 (8th Cir. 2002)).

249 See supra note 222.

74. The facts in this case line up better with the more compressed timeline testified to by Dr. Taylor. Put another way, Dr. Taylor's testimony concerning the likely chain of events seems to be consistent with, and accounts for, all the facts found by the Court so far in this case- especially the absence of a large and immediate “gush” of CSF during the October 9th surgery. And given the compressed timeline between the CSF loss, brain sag, and hemorrhage, it is far less likely that the brain sag occurred during or immediately after the surgery than several hours later. This, in turn, means that the brain sag must have occurred because of the post-operative CSF leak into the drain (either alone or in combination with the original CSF leak during surgery), which eventually caused the loss of so much CSF that the remaining CSF could no longer keep that part of the brain afloat.

CONCLUSIONS OF LAW - LIABILITY

The Dobbses brought their claim against the United States under the Federal Tort Claims Act.²⁵⁰ When analyzing a claim brought under the Federal Tort Claims Act, courts apply the substantive law of the state where the events giving rise to the complaint occurred.²⁵¹ Because the alleged medical malpractice occurred in Arkansas, Arkansas law applies.²⁵² The Arkansas Medical Malpractice Act governs claims of medical negligence.²⁵³

250 See Compl. (Doc. 1) ¶ 1.4.

251 See Day v. United States, 865 F.3d 1082, 1086 (8th Cir. 2017).

252 See id.

253 See Ark. Code Ann. § 16-114-201 et seq.

“[W]hen the asserted negligence does not lie within the jury's comprehension as a matter of common knowledge,” Arkansas statute provides that a plaintiff has the burden of proving:

(1) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant, the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he or she practices or in a similar locality;

(2) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant that the medical care provider failed to act in accordance with that standard; and

(3) By means of expert testimony provided only by a qualified medical expert that as a proximate result thereof the injured person suffered injuries that would not otherwise have occurred.²⁵⁴

254 Ark. Code Ann. § 16-114-206(a)(1)-(3).

But there is an important tweak to this standard. In Broussard v. St. Edward Mercy Health System, Inc., the Supreme Court of Arkansas held unconstitutional the requirement that standard-of-care opinions must be given by a doctor of the same specialty as the defendant.²⁵⁵ In short, given this gloss on the statute, Plaintiffs must prove by competent medical expert testimony: (1) the applicable standard of care, (2) that Dr. Bahgat failed to act in accordance with that standard, and (3) that this failure was a proximate cause of Mr. Dobbs's injuries.²⁵⁶ Plaintiffs must only prove these by a preponderance of the evidence.²⁵⁷

255 2012 Ark. 14, at 6, 386 S.W.3d 385, 389. Even though the Court is not required to make the “same specialty” finding, the Court finds that Dr. Taylor and Dr. Day were of the same specialty as Dr. Bahgat-neurosurgery.

256 See e.g., Webb v. Bouton, 350 Ark. 254, 264, 85 S.W.3d 885, 891 (2002).

257 See id., at 261-62, 85 S.W.3d at 889.

I. Standard of Care

Plaintiffs called Dr. Taylor as their standard-of-care expert.²⁵⁸ Dr. Taylor testified that he was familiar with the standard of care for neurosurgeons.²⁵⁹ At the time of trial, Dr. Taylor had performed laminectomies at least hundreds of times.²⁶⁰ He testified that the standard of care for laminectomies and dural tears does not change from one locality to another; for example, it is the same in Dallas, Texas, as it is in Little Rock, Arkansas.²⁶¹

258 Supra note 18. Dr. Taylor was accepted as an expert witness without objection. See Tr. of Bench Trial (Doc. 45) at 51:7-15.

259 See Tr. of Bench Trial (Doc. 45) at 47:25-48:2.

260 See id. at 48:3-7.

261 See id. at 49:6-13, 50:4-23.

Dr. Taylor did not criticize Dr. Bahgat for causing a dural tear, and Dr. Taylor agreed that the fact a dural tear occurred does not alone mean that Dr. Bahgat was negligent.²⁶² Moreover, it was Dr. Taylor's opinion that, to a reasonable degree of medical certainty, Dr. Bahgat's secondary repair of Mr. Dobbs's dural tear (as well as Dr. Bahgat's inability to do a primary repair) was within the standard of care.²⁶³

262 See id. at 141:12-21.

263 See id. at 143:12-144:1.

The meat of Dr. Taylor's standard-of-care testimony centered on Dr. Bahgat's failure to perform a Valsalva maneuver and his use of a JP drain. Quoting Treatment of Dural Tears Associated with Spinal Surgeries (“the Eismont Article”), Dr. Taylor testified that when repairing a dural tear, “‘[a]ll repairs should be tested by using the reverse Trendelenburg position and Valsalva maneuvers to increase intrathecal pressure. Any persistent leaks should be repaired.'”²⁶⁴Still quoting the Eismont Article, Dr. Taylor testified that “‘[t]here is no evidence that simply placing Gelfoam or muscle over a dural leak is effective. This use of Gelfoam and muscle has been associated with failure of closure of the dura in other series.'”²⁶⁵ Furthermore, Dr. Taylor testified that the Eismont Article clearly stood for the proposition that, “in closing around the dura when there's been a spinal fluid leak, no drain should be used.”²⁶⁶

264 Id. at 76:11-17, 79:15-18.

265 Id. at 80:12-15.

266 Id. at 81:19-20.

Another article Dr. Taylor relied on was Incidental Durotomy in Spine Surgery (“the Cammisa Article”).²⁶⁷ This article reviewed a study of 2,144 patients, 74 of whom had dural tears.²⁶⁸ None of these 74 patients with dural tears suffered brain hemorrhages.²⁶⁹ And all 74 dural tears “‘were deemed watertight to Valsalva maneuver before closure of the facie and skin.'”²⁷⁰Quoting the Cammisa Article (which in turn cited the Eismont Article), Dr. Taylor testified that the “‘Valsalva maneuver was recommended to check for the completeness of repair. Finally, they advised against placement of subfascial drains in deference to the possibility of formation of duro-cutaneous fistula.'”²⁷¹

267 See id. at 82:22-25.

268 See id. at 83:8-11.

269 See id. at 83:12-16.

270 Id. at 84:13-15.

271 Id. at 85:7-11.

According to Dr. Taylor, the Cammisa Article also referenced another study: the Wang Study.²⁷² In the Wang Study, 87 of the 88 patients had primary repairs, while only one patient had a secondary repair.²⁷³ There, “‘[a] substantial closed suction drain was used for all patients and remained in place for an average of 2.1 days.'”²⁷⁴ Considering this study, the Cammisa Article concluded that “‘[c]losed suction wound drainage does not seem to aggravate the leak and can be used safely in the presence of a dural repair.'”²⁷⁵ Dr. Taylor testified that the Cammisa Article and the studies cited within the article instruct doctors “[t]hat in general, drains should be avoided, but they can be used safely if there's been a suture watertight closure.'”²⁷⁶

272 See id. at 85:15-17.

273 See id. at 85:22-25, 151:22-152:10.

274 Id. at 152:11-15.

275 Id. at 152:20-22.

276 Id. at 86:2-6.

Dr. Taylor testified that it was not his position that a neurosurgeon should never use a drain.²⁷⁷ Instead, according to Dr. Taylor, a neurosurgeon should not use a drain when there has been a dural tear, and the dural tear was not “closed in a watertight fashion.”²⁷⁸ He based this testimony on an article titled Intracranial Hemorrhage After Spine Surgery (“the Kaloostian Article”), which, provided, in part, that “‘drain placement and continued suction at the site of dural repair have also been proposed as a mechanism for sustained cerebral hypotension.'”²⁷⁹ The Kaloostian Article further explained that “‘[r]ecent reports reflect a growing concern over the placement of drains at the surgical site, which has emerged as one of the most consistently confirmed variables in patients with intracranial hemorrhage after spine surgery.'”²⁸⁰ As Dr. Taylor explained, the Kaloostian Article concluded that based on the eight patients studied, “‘the presence of interoperative CSF leak and the use of drains postoperatively, with aforementioned moderate outputs, were all common factors shared among [the] patients. This does not indicate a causal relationship because of the lack of statistical validation, but merely that these are factors that show an association.'”²⁸¹

277 See id. at 97:15-17.

278 Id. at 97:18-20.

279 Id. at 94:21-95:1, 96:3-5.

280 Id. at 96:18-21.

281 Id. at 97:1-7.

Dr. Taylor also testified about the Allouch Article, which the Court introduced earlier.²⁸²The Allouch Article found that, in a survey of 12,185 patients who underwent spinal surgery, eight of them suffered intracranial hemorrhages.²⁸³ Quoting the Allouch Article, Dr. Taylor testified that the risk of post-operative CSF loss following an intraoperative dural tear “‘is especially increased by suction drains[,] [which] seem to be risk factors for intracranial hemorrhage, complicating the spinal surgery.'”²⁸⁴ According to the Allouch Article, “‘[i]n every case in our series, CSF loss was enhanced through use of drains in the subfascial space. In cases of observed durotomy, we used gravity-driven drains, whereas in the four patients with occult dural tears, drains with negative pressure were used, according to our usual practice in our department.'”²⁸⁵

282 See generally id. at 86:14-94:3.

283 See id. at 88:3-6.

284 Id. at 88:14-17.

285 Id. at 89:10-15. Dr. Taylor explained that an occult dural tear is one where the doctors are unaware of it at the time of the surgery. Id. at 89:17-19.

Importantly, the Allouch Article explained that:

In cases of intra operative durotomy and [sic] intra operative repair in a watertight fashion should be attempted. Intraoperative assessment of sealing the dural tear may be controlled by visual inspection under the Valsalva maneuver for 10 seconds or longer. In complex defects, lumbar drainage should be considered. Minimization of CSF loss during spinal surgery through the immediate closure of a dural tear and head-down positioning of the patient is suggested.

***

In cases of intracranial hemorrhage after spinal surgery, drains should be removed, and patients should be advised to stay in bed rest. Some investigators advocate resting in the Trendelenburg position. We perform MRI of the spinal index region to exclude persistent CSF leakage. In these patients, we consider revision surgery with dural repair to reduce CSF loss if the general condition of the patient allows it.

***

An intentional or inadvertent opening of the dura during spinal surgery should be managed by a watertight closure. Whenever possible, drains should be avoided or, if necessary, placed without negative pressure.²⁸⁶

286 Id. at 91:7-14, 92:19-93:1, 93:19-22.

Finally, Dr. Taylor considered Remote Cerebellar Hemorrhage as a Complication of Lumbar Spine Surgery (“the Lim Article”).²⁸⁷ In doing so, Dr. Taylor testified that drains are an associated risk for brain hemorrhages.²⁸⁸

287 See generally id. at 97:21-100:18.

288 See id. at 97:23-25. The Lim Article explained that “‘[t]he presence of a subfascial drain was observed in 42 percent, suggesting that a prolonged postoperative CSF leak may be riskier than an intraoperative leak, which would have been promptly repaired.'” Id. at 98:18-21.

Considering the medical records, the relevant medical literature, and his own experience, Dr. Taylor concluded, to a reasonable degree of medical certainty, that Dr. Bahgat failed to act in accordance with the standard of care in Arkansas by installing a drain after a secondary repair.²⁸⁹Dr. Taylor testified that this was a failure to act in accordance with the standard of care, even if the Valsalva maneuver was done or the seal of the secondary repair was otherwise confirmed to be sufficient.²⁹⁰

289 Id. at 51:4-6, 102:8-14, 134:20-22.

290 Id. at 102:8-19.

The Government called Dr. Day as its standard-of-care expert.²⁹¹ To establish the standard of care, Dr. Day testified about some of the same articles Dr. Taylor relied on, while also considering a few additional articles.²⁹² Like Dr. Taylor, Dr. Day testified that it was within the standard of care for Dr. Bahgat to attempt a secondary repair of the dural tear when he was unable to do a primary repair.²⁹³ Dr. Day also testified that the simple failure to document the Valsalva maneuver in the post-operative report was within the standard of care, so long as Dr. Bahgat did, in fact, perform the Valsalva maneuver.²⁹⁴

291 See generally Tr. of Bench Trial (Doc. 47) at 668:24-718:17. Dr. Day was accepted as an expert witness without objection. See id. at 668:17-22.

292 One of the additional articles Dr. Day testified about was titled Cerebellar Hemorrhage After Spinal Surgery: Case Report and Review of Literature (“the Konya Article”). See generally Tr. of Bench Trial (Doc. 47) at 710:23-712:8. But in this article, the patient had a dural tear that was closed with a primary repair, and the doctor didn't see any more leakage of CSF. See id. at 711:16-712:8. This is quite distinguishable from Dr. Bahgat's repair of Mr. Dobbs's dural tear. The other article was Cerebellar Hemorrhage After Spinal Surgery, Report Two of Cases and Literature Review (“the Friedman Article”). See id. at 757:10-12. The Friedman Article discussed two patients who suffered dural tears. See id. at 757:13-17. One patient had a drain, and the other didn't. See id. at 757:16-17. The article does not discuss how each patient's dural tear was repaired, but the patient who had a drain suffered a brain hemorrhage. See id. at 757:13-15, 22-24. Dr. Day's testimony about the Friedman Article seems to support the Plaintiffs' theory that a drain can increase the risk of a brain hemorrhage.

293 See id. at 680:13-681:15.

294 See id. at 687:2-8.

When asked about the use of a drain after a spinal surgery, Dr. Day testified that “if you didn't use a drain you'd be criticized . . . .”²⁹⁵ Dr. Day explained that this is because excess tissue fluid and blood from the surgery could collect and cause inflammation and swelling.²⁹⁶Furthermore, Dr. Day testified that “when you look at the bulk of people that have been reported [to] have had [a brain hemorrhage], the presence of a drain is not a common factor. A CSF leak is a common factor.”²⁹⁷ According to Dr. Day's testimony, there are “just as many people that had a spinal fluid leak and had no drain placed that ended up with a delayed hemorrhage in those cases, as those who had a leak and then there was a drain. So what that tells me is the drains don't make a difference.”²⁹⁸

295 Id. at 687:13-14. Despite this assertion, Dr. Day later testified that he did not criticize Dr. Bahgat's decision to not install a drain after the re-exploration surgery. See id. at 751:5-11. Dr. Day maintained this assertion, even though the repair of the dural tear in the re-exploration surgery consisted of many more layers than the first repair (as well as a suture). See id. at 751:12-14. Dr. Day later agreed with the Government's assertion that one reason Dr. Bahgat would not have used a drain in the second surgery is “because the fluids had gone down and the drains had done their job . . . .” Id. at 766:5-11.

296 See id. at 688:2-689:10.

297 Id. at 716:15-17.

298 Id. at 716:20-24.

But during cross-examination, Dr. Day agreed that it is important for a doctor to do the Valsalva maneuver so he can know whether the dural tear is sufficiently sealed.²⁹⁹ Dr. Day went on to testify that, “[i]f you have an active leak, you're not going to use a drain . . . you're not going to put a drain in and continue to suck out spinal fluid.”³⁰⁰ Furthermore, when asked whether he had ever placed a drain in a situation where he did not achieve a sufficient closure of the dural tear, Dr. Day testified: “No. If there's-if I couldn't fix-if I couldn't fix it with suture or with a graft and then prove that nothing's coming with a Valsalva maneuver, then, no, that's not something that anybody would do.”³⁰¹ Again, according to Dr. Day, no neurosurgeon in his right mind would place a drain in that situation.³⁰² This opinion was clearly given to a reasonable degree of medical certainty.

299 Id. at 729:25-730:4.

300 Id. at 730:4-5, 10-11.

301 Id. at 764:7-13.

302 See id. at 764:14-17.

Considering Dr. Taylor's and Dr. Day's expert testimony (to a reasonable degree of medical certainty) about the use of the Valsalva maneuver and the placement of a drain after a dural tear, Plaintiffs have proved by a preponderance of the evidence that the standard of care requires a doctor to (1) check-either by way of the Valsalva maneuver or reverse Trendelenburg position-that the repair of a dural tear is sufficiently sealed, and (2) not place a drain-whether gravity, negative pressure, or high suction-if the doctor cannot determine that the repair of the dural tear is sufficiently sealed.

II. Deviation From the Standard of Care

Plaintiffs must also prove by a preponderance of the evidence that Dr. Bahgat “failed to act in accordance with” the applicable standard of care-i.e., that Dr. Bahgat did not test the sufficiency of the secondary repair's seal, but he nevertheless installed a drain.³⁰³ Because the Court has found that Dr. Bahgat did not perform the Valsalva maneuver or otherwise test the sufficiency of the secondary repair's seal, Plaintiffs have proved by a preponderance of the evidence that Dr. Bahgat failed to act in accordance with the applicable standard of care by placing a JP drain.³⁰⁴

303 Ark. Code Ann. § 16-114-206(a)(2).

304 The Government all but conceded during closing arguments that, if the Court finds that Dr. Bahgat did not perform the Valsalva maneuver or otherwise check the sufficiency of the secondary repair's seal, the Government loses on the standard-of-care and breach issues. See Tr. of Bench Trial (Doc. 48) at 968:1-970:14.

Both Dr. Taylor and Dr. Day testified that, to a reasonable degree of medical certainty, the installation of a drain after a secondary repair falls below the standard of care when the seal of the secondary repair has not been tested to see whether the seal was sufficient. These opinions were clearly made to a reasonable degree of medical certainty. And even though Dr. Day testified that physician judgment is a part of neurosurgery-particularly in the context of weighing the risks of surgery and the likelihood of more common complications versus less common complications- he did not testify that physician judgment allows a surgeon to place a drain in the absence of a confirmed watertight seal of a dural tear.³⁰⁵ Considering this, Plaintiffs have proved by a preponderance of the evidence that Dr. Bahgat failed to meet the standard of care by installing a drain (whether a gravity drain or other type of drain) without first performing the Valsalva maneuver to confirm a watertight seal of the dural tear.

305 See Tr. of Bench Trial (Doc. 47) at 713:12-22. Again, a watertight seal is possible even with a secondary repair. See, e.g., Tr. of Bench Trial (Doc. 45) at 196:9-23. When the Valsalva maneuver is used, and no CSF leaks, a watertight seal is confirmed. See id. at 66:3-11.

III. Proximate Cause

Finally, Plaintiffs must prove (by a preponderance of the evidence) that, “as a proximate result” of Dr. Bahgat's failure to act in accordance with the applicable standard of care, Mr. Dobbs “suffered injuries that would not otherwise have occurred.”³⁰⁶ “[I]t is not enough for an expert to opine that there was negligence that was the proximate cause of the alleged damages.”³⁰⁷ “The opinion must be stated within a reasonable degree of medical certainty or probability.”³⁰⁸ That standard has been satisfied here.

306 Ark. Code Ann. § 16-114-206(a)(3).

307 Williamson, 348 Ark. at 311, 72 S.W.3d at 492.

308 Id.

Under Arkansas law, for a cause to be considered a proximate cause of injury, the cause must be a but-for cause of the injury.³⁰⁹ However, while that is necessary, it is not sufficient.³¹⁰In addition, there must be a sufficiently tight, legally cognizable nexus between the cause and the injury.³¹¹ In short, a “[p]roximate cause is ‘that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.'”³¹² That is, Plaintiffs must prove “causation in fact and legal causation.”³¹³

309 See Ford v. St. Paul Fire & Marine Ins. Co., 339 Ark. 434, 437, 5 S.W.3d 460, 462-63 (1999) (explaining that the Arkansas Medical Malpractice Act “implements the traditional tort standard of requiring proof that but for the tortfeasor's negligence, the plaintiff's injury or death would not have occurred[]” (internal quotation marks omitted)).

310 See Ark. Code Ann. § 16-114-206(a)(3).

311 See id.

312 Dodson v. Charter Behav. Health Sys. of Nw. Ark., Inc., 335 Ark. 96, 105, 983 S.W.2d 98, 103 (1998) (quoting Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 181, 952 S.W.2d 658, 662 (1997)).

313 Id.

The Court has already found above-based on the expert medical testimony given to a reasonable degree of medical certainty-that Mr. Dobbs's brain hemorrhage was a direct result of the continuous, post-operative CSF leak, which occurred because of the use of a drain without confirmation of a watertight seal of the intraoperative dural tear. The Court's findings above already satisfy but-for (factual) causation. Without the continuous post-operative CSF leak, there would have been no brain sag and no brain hemorrhage. Legal causation is also satisfied by the Court's previous factual findings. The line from using a drain in the absence of a confirmed watertight seal of the dural tear, to the continuous post-operative CSF leak, to the brain sag, to the brain hemorrhage, is short, direct, and unbroken by any intervening cause. The trial testimony shows this to a reasonable degree of medical certainty. The Court now turns to damages.

FINDINGS OF FACT - DAMAGES

1. When Mr. Dobbs suffered the brain hemorrhage, he was 61 years old.³¹⁴

314 See Tr. of Bench Trial (Doc. 45) at 54:11-12.

2. Mr. Dobbs is a retired United States Marine.³¹⁵ He served in the Marines for 32 years.³¹⁶

315 See, e.g., Tr. of Bench Trial (Doc. 47) at 576:22.

316 See id.

3. While in the Marines, Mr. Dobbs completed multiple combat tours.³¹⁷ He also served as a drill instructor and aircraft structures mechanic.³¹⁸

317 See id. at 577:6-13.

318 See Tr. of Bench Trial (Doc. 48) at 880:19-24.

4. Mr. Dobbs is married to Eileen Dobbs, and they have been married since June 2015.³¹⁹

319 See Tr. of Bench Trial (Doc. 47) at 574:19-24.

5. Mr. Dobbs first saw Dr. Bahgat about neck and arm pain in June of 2017.³²⁰Dr. Bahgat ordered physical therapy and a regimen of steroid injections.³²¹ Mr. Dobbs returned for a follow-up appointment with Dr. Bahgat in September of 2017 and reported that his neck pain had improved.³²² But Mr. Dobbs now complained about lower back pain, so Dr. Bahgat ordered imaging and more physical therapy.³²³

320 See Pls.' Trial Ex. 1 at 1709; Tr. of Bench Trial (Doc. 46) at 248:17-24.

321 See Pls.' Trial Ex. 1 at 1709 (“[W]ill order PT and and [sic] ESI and will FU in 3 months . . . .”).

322 See Tr. of Bench Trial (Doc. 46) at 250:14-20.

323 See id. at 250:20-25; Pls.' Trial Ex. 1 at 1671.

6. As reflected in Dr. Bahgat's September 2017 notes, Mr. Dobbs “ha[d] noweakness [sic], no bowel or bladder problems[.]”³²⁴ Dr. Bahgat's physical exam of Mr. Dobbs showed that Mr. Dobbs was “[a]lert and oriented to person, place” and had “[f]luent comprehensive speech.”³²⁵ Mr. Dobbs had “[n]o dysarthria, no dysphasia[,] CN II-XII grossly intact.”³²⁶ Dr. Bahgat also observed that Mr. Dobbs's “[f]ace [was] symmetric with no mouth droop.”³²⁷ Concerning Mr. Dobbs's motor power and strength, Dr. Bahgat noted that “Right UE 5/5, LE 5/5[,] [l]eft UE 5/5, LE 5/5[,] [n]ormal tone and bulk bilaterally[,] [c]erebellar function with finger-to-nose testing normal[,] [s]ensation to light touch and pin prick is normal[,] [r]eflex are normal, [n]egative Babinski sign[,] [g]ait normal, [and] kyphotic posture.”³²⁸ Dr. Bahgat also noted that Mr. Dobbs had an earlier “lumbar decompression” surgery in August 2016.³²⁹ Dr. Bahgat's assessment of Mr. Dobbs in September 2017 provided:

324 Pls.' Trial Ex. 1 at 1669.

325 Id. at 1670.

326 Id.

327 Id.

328 Id. at 1670-71.

329 Id. at 1669.

X-ray shows L3-4 laminectomy[,] patient has kyphotic posture, will order [a] long spine x-ray to assess his sagital [sic] balance[,] will start PT to help with his muscle stifness [sic] and range of motion since with effort he is able to stnad [sic] up stright [sic] and if needed will order an ESI. If these maesures [sic] fail will need an MRI to better assess his spinal condition but will wait for now.³³⁰

330 Id. at 1671.

The Court finds all these notes to be an accurate reflection of the facts.

7. Mr. Dobbs returned to Dr. Bahgat in February 2018 for another follow-up appointment.³³¹ At that visit, Mr. Dobbs “complain[ed] of constant aching lower lumbar pain in the midline that increases with sitting and relieved partially with standing.”³³² Mr. Dobbs also complained to Dr. Bahgat that the pain sometimes radiated to his inner thigh and groin.³³³ Despite chiropractic adjustments and steroid injections, Mr. Dobbs complained that “[h]is pain ha[d] become increasingly intense[,]” which “affected his day-to-day living and ability to bend[,] sits [sic] and even sleep comfortably.”³³⁴

331 See id. at 1628.

332 Id.

333 Id.

334 Id. Dr. Bahgat's observations of Mr. Dobbs's neurological and motor strength characteristics were unchanged from the September 2017 examination, except that Dr. Bahgat now characterized Mr. Dobbs's kyphotic posture as “slight[.]” Compare id., with id. at 1670-71.

8. Based on this, Dr. Bahgat's assessment of, and plan for, Mr. Dobbs was as follows:

Patient's MRI shows multilevel degenerative disc disease with spondylosis and a right L2-3 disc collapse with root compression. His standing MRI shows a positive sagittal balance of 4-5 cm.

Patient has back pain with significant spondylosis Modic changes at multiple levels. I explained to the patient if his main problem is his leg pain and an L2-3 decompression would help with his radicular pain. The patient states that his main problem is his back in this case he would require a multilevel fusion. The patient has not had any recent physical therapy and and [sic] would like to try that prior to having an extensive procedure.

Will plan for physical therapy if that fails then the patient may require an L2-S1 fusion either from a combined anterior and posterior approach O just posterior approach. Patient will follow up according to his progression with physical therapy.³³⁵

335 Id. at 1628.

Mr. Dobbs followed Dr. Bahgat's direction and went to physical therapy.³³⁶

336 See Tr. of Bench Trial (Doc. 45) at 174:7-17; Pls.' Trial Ex. 1 at 1614.

9. Mr. Dobbs again saw Dr. Bahgat in July 2018.³³⁷ By this point, Mr. Dobbs had “tried physical therapy and injections but his pain ha[d] continued to progress.”³³⁸ As the July 2018 medical records reflect, Mr. Dobbs's “pain [was] a constant aching pain in his low lumbar region” that radiated into his legs and “affect[ed] his walking standing up all all [sic] activity.”³³⁹But Mr. Dobbs “ha[d] no weakness and no focal deficits.”³⁴⁰

337 See Pls.' Trial Ex. 1 at 1614.

338 Id.

339 Id.

340 Id.

10. Mr. Dobbs's pre-surgery “MRI showed multilevel degenerative disc disease with spondylosis and Modic changes at the L2-3 and also extensive changes at ¶ 3-4 L4-5 and L5-S1.”³⁴¹

341 See id. at 1985.

11. Based on the foregoing, before the brain hemorrhage, Mr. Dobbs suffered from some chronic back pain, but otherwise had normal cognitive and neurological functions. The back pain made some daily activities more difficult and painful, but it did not appear to prevent him from doing the normal activities of daily life.

12. After the brain hemorrhage, Mr. Dobbs's physical and cognitive abilities were severely diminished. For example, he had expressive aphasia-i.e., the inability to speak-on the morning after the surgery.³⁴² A little over a week later, on October 18th, Mr. Dobbs had spontaneous, non-purposeful movement.³⁴³ Mr. Dobbs was able to “[f]urrow[] [his] brow to noxious stimuli.”³⁴⁴ But he did not obey commands.³⁴⁵ Mr. Dobbs could not grip with either hand.³⁴⁶ His right hand was curled tight, and his left hand was flaccid.³⁴⁷ As the medical notes say, Mr. Dobbs had a “[n]eurologial impairment due to CVA[.]”³⁴⁸

342 See id. at 1540; Tr. of Bench Trial (Doc. 45) at 113:25-114:2.

343 See Pls.' Trial Ex. 1 at 1065, 1076, 1082.

344 See id.

345 See id.

346 See id. at 1055, 1065, 1076, 1082.

347 See id.

348 Id. at 1065, 1076, 1082. “CVA” is a cerebrovascular accident.

13. On October 19th, Mr. Dobbs had “some neurological improvement although it [was] fluctuating[.]”³⁴⁹ Mr. Dobbs was able to wiggle his toes on command and, in one instance, was able to give a thumbs-up.³⁵⁰

349 Id. at 1017.

350 See id.

14. On October 20th, Mr. Dobbs was transferred via helicopter to Houston Methodist Hospital, where he was admitted to the neuro-intensive care unit (“NICU”).³⁵¹

351 See id. at 953; Pls.' Trial Ex. 6 at 1, 495.

15. Upon admission to Houston Methodist Hospital, it was determined that Mr. Dobbs had suffered a frontal intracranial hemorrhage and a bilateral cerebellar intracranial hemorrhage and had acute respiratory failure.³⁵² He was in a coma and had to be put on a ventilator.³⁵³ On October 22nd, doctors at Houston Methodist determined it was necessary to place a feeding tube and perform a tracheotomy.³⁵⁴ Although the Court cannot determine from the Houston Methodist medical records when Mr. Dobbs awoke from his coma, the reasonable inference from the evidence is that he awoke well before November 20th.

352 See Pls.' Trial Ex. 6 at 4, 16, 24, 26.

353 See id. at 16; Pls.' Trial Ex. 1 at 971, 1054. While at Houston Methodist, Mr. Dobbs developed several additional complications, including a urinary tract infection, a pulmonary embolism, and deep vein thrombosis. See Pls.' Trial Ex. 6 at 474.

354 See Pls.' Trial Ex. 6 at 15.

16. In any event, Mr. Dobbs underwent a month of treatment at Houston Methodist's NICU before doctors concluded that “admission to inpatient rehabilitation [was] medically necessary.”³⁵⁵ On November 20th, Mr. Dobbs was discharged from the NICU and entered inpatient rehabilitation.³⁵⁶ His discharge notes showed that Mr. Dobbs had “gradually improved . . . .”³⁵⁷

355 Id. at 474.

356 See id.

357 Id. at 149.

17. Among the goals of Mr. Dobbs's admission to the in-patient rehabilitation program were to “improve functional independence and decrease caregiver burden[.]”³⁵⁸ To accomplish these goals, Mr. Dobbs would need:

358 Id. at 487.

24 hour rehabilitation nursing for management of bowel, bladder, skin integrity, medication management, safety measures and preventing risk factors and complications . . . [and] will require a minimum of 15 hours every 7 days throughout the hospitalization, including at least the following: 1-2 hours Physical Therapy, 1-2 hours Occupational Therapy and 1 hour Speech-Language pathology, Neuropsychology. These disciplines will be needed in order to improve [Mr. Dobbs's] impairments in mobility, transfers, activities of daily living, swallowing and cognition and evaluation of durable medical equipment if needed at discharge.³⁵⁹

359 Id. at 488.

18. On December 12, 2018, Mr. Dobbs was discharged from Houston Methodist's in-patient rehabilitation and returned to his home in Cotter, Arkansas.³⁶⁰ As the discharge notes showed, Mr. Dobbs was “referred to [r]ehab for extensive therapy services and for further medical management & close monitoring of his medical condition.”³⁶¹

360 Id. at 519.

361 Id. at 513.

I. Personal Observations of Mr. Dobbs's Post-Hemorrhage Changes

19. Mrs. Dobbs testified that, before the brain hemorrhage, Mr. Dobbs was “very strong” and “very physically fit.”³⁶² Now he is “weaker and very unstable.”³⁶³ The Court credits this testimony and finds it as fact.

362 Tr. of Bench Trial (Doc. 47) at 635:9-13.

363 Id. at 635:14-16.

20. However, that is not the whole picture. Despite Mrs. Dobbs's description of her husband's diminished physical abilities, he still suffered from some physical deficits before his brain hemorrhage. Mr. Dobbs had chronic back pain (the underlying reason for the laminectomy).³⁶⁴ He also suffered from lumbar spondylosis, osteoarthritis, degenerative joint disorder, cervical disc disorder, hypertension, and gastroesophageal reflux disease (“GERD”), and he had problems with neck pain that radiated to his shoulder.³⁶⁵ Mrs. Dobbs testified that Mr. Dobbs “had trouble with his hands” before the brain hemorrhage.³⁶⁶ He also had problems with his gait, and he was diagnosed with neuropathy before the brain hemorrhage.³⁶⁷ As a result, he had some balance issues and problems with falling before he suffered the brain hemorrhage.³⁶⁸He also (at least in 2016) had difficulty walking barefoot and experienced dizziness and light- headedness when standing.³⁶⁹ And on top of all that, he suffered from general high levels of pain.³⁷⁰ Again, all of this was before the brain hemorrhage.

364 See, e.g., Tr. of Bench Trial (Doc. 46) at 367:8-10; Tr. of Bench Trial (Doc. 47) at 639:5-17, 670:18-21; Tr. of Bench Trial (Doc. 48) at 824:24-825:1.

365 See, e.g., Tr. of Bench Trial (Doc. 45) at 249:20-24; Tr. of Bench Trial (Doc. 46) at 367:11-24; Tr. of Bench Trial (Doc. 48) at 825:2-10.

366 Tr. of Bench Trial (Doc. 47) at 568:13-14.

367 See, e.g., Tr. of Bench Trial (Doc. 46) at 368:3-4; Tr. of Bench Trial (Doc. 47) at 568:12; Tr. of Bench Trial (Doc. 48) at 825:11-12.

368 See, e.g., Tr. of Bench Trial (Doc. 46) at 368:5-7; Tr. of Bench Trial (Doc. 48) at 825:13-15; Pls.' Trial Ex. 1 at 1805.

369 See Pls.' Trial Ex. 1 at 1821-22.

370 See, e.g., Tr. of Bench Trial (Doc. 46) at 368:8-10; Tr. of Bench Trial (Doc. 48) at 825:16-17. Mr. Dobbs also had an earlier back surgery and knee replacement in 2016, and an arthroscopy of his right shoulder in 2017. Tr. of Bench Trial (Doc. 47) at 586:14-22; Tr. of Bench Trial (Doc. 48) at 826:19-827:2.

21. As Mrs. Dobbs testified, Mr. Dobbs likes to fish, and the two of them used to go out on their boat together every week.³⁷¹ They would also hike through the woods on their property and ride four-wheelers around the neighboring properties.³⁷²

371 See Tr. of Bench Trial (Doc. 47) at 580:15-581:5.

372 See id. at 584:22-585:5, 635:17-25.

22. After the brain hemorrhage, Mr. Dobbs can no longer fish or go out on his boat.³⁷³The one instance when Mr. Dobbs tried to take his boat out after his brain hemorrhage “turned into a disaster[,]” and Mr. Dobbs's daughter's boyfriend had to “jump into the driver's seat . . . .”³⁷⁴Mr. Dobbs has not attempted to drive the boat since this incident because Mrs. Dobbs “won't let him.”³⁷⁵

373 See id. at 581:17-582:1.

374 Id. at 582:4-10.

375 Id. at 582:18-22.

23. Nor can Mr. and Mrs. Dobbs go on walks or hikes around their property anymore.³⁷⁶Mrs. Dobbs credibly testified that, after the brain hemorrhage, Mr. Dobbs “can't do it anymore [because] [h]e doesn't have the balance . . . [and] [their] land is not flat . . . .”³⁷⁷ Mrs. Dobbs credibly explained that “even if there's a rock on the road, [Mr. Dobbs] can trip over that.”³⁷⁸

376 Id. at 636:7-9.

377 Id. at 636:11-13.

378 Id. at 636:14-15.

24. Mr. Dobbs has stopped driving his tractor around his nine-acre property since his brain hemorrhage.³⁷⁹ While he has been able to drive his four-wheeler “down to get the mail and drive it back up[,]” he does not drive the four-wheeler around their property (or any of the neighboring property) like he used to do.³⁸⁰ He has, however, visited his neighbor “once in a while on his four-wheeler . . . .”³⁸¹

379 See id. at 584:21-22. Mrs. Dobbs testified that Mr. Dobbs “loves his tractor[,]” and it's his “favorite little toy.” Id. at 584:10-11.

380 Id. at 584:22-585:5. The Court finds that any gait issues or pain Mr. Dobbs had prior to the brain hemorrhage did not prevent him from taking such walks or hikes.

381 Id. at 572:5.

25. A neurologist signed off on Mr. Dobbs driving a car.³⁸² But Mrs. Dobbs testified that she doesn't believe Mr. Dobbs is capable of driving safely.³⁸³ She explained at trial that:

382 See id. at 648:23-25.

383 See id. at 649:1-9.

You need to be able to do several different things as you're driving, and his focus is not clear, and I think, you know, I mean, you're holding a steering wheel, you're looking out the window, you're looking in all your mirrors, brake, you know, all that. I think that's really difficult for him to handle.³⁸⁴

384 Id. at 649:4-9.

Mrs. Dobbs's concerns notwithstanding, Mr. Dobbs still drives alone maybe once or twice a week.³⁸⁵ Typically, Mr. Dobbs drives “[j]ust to town and back, about 12 miles on a back road, country road.”³⁸⁶

385 See id. at 650:20-25.

386 Id. at 651:1-3.

26. Since the brain hemorrhage, Mrs. Dobbs has ridden in a vehicle with Mr. Dobbs while he was driving.³⁸⁷ She testified that the experience was “[s]cary” because “he kinda swerves a little bit here and there . . . drives a little too fast . . . [and] [she's] always worried whether or not he's going to hit the brake in time.”³⁸⁸ The Court finds that, for now, Mr. Dobbs can drive a car. But the Court also finds that he does so less frequently, less safely, and less enjoyably than he did before the brain hemorrhage.³⁸⁹

387 See id. at 649:10-12.

388 Id. at 649:14-19.

389 The Court also finds that any medical problems present before the brain hemorrhage did not affect Mr. Dobbs's ability to drive any vehicle normally or safely.

27. Based on these facts, the Court finds that Mr. Dobbs can physically drive several types of vehicles, but it is far more difficult and dangerous for him to do so than it was before the brain hemorrhage. This is the reason he limits his use of the vehicles.

28. As Mrs. Dobbs testified, Mr. Dobbs loves gardening, and it is one of his favorite things to do.³⁹⁰ Before the brain hemorrhage, Mr. Dobbs had planted trees and a garden on the Dobbs' property, and “he took care of it immaculately.”³⁹¹ Before the brain hemorrhage, Mr. Dobbs and his neighbor Mr. Hussey felled trees, worked in each other's yards, and split wood together.³⁹² They also “moved a bunch of boulders around and made a big fire pit.”³⁹³

390 See id. at 578:23-579:1.

391 See id. at 571:13-14.

392 Id. at 564:17-18, 569:9-11.

393 Id. at 564:20. Again, whatever gait issues or pain Mr. Dobbs had before the brain hemorrhage, they did not interfere with his ability to garden or work outdoors. See, e.g., id. at 571:13-14.

29. Mrs. Dobbs testified, and the Court finds as fact, that gardening has become “dangerous” for Mr. Dobbs since the brain hemorrhage.³⁹⁴ It is now “more of a trip hazard than enjoyable.”³⁹⁵ Mrs. Dobbs credibly recounted one instance when Mrs. Dobbs found Mr. Dobbs in the garden “literally laying facedown with his arms stuck behind his back, with the hose right in his face.”³⁹⁶ Since that incident, “[h]e's not allowed to go anywhere near the hose, because . . . it's just hazardous for him.”³⁹⁷

394 Id. at 579:4-5.

395 Id. at 579:5-7.

396 Id. at 579:21-23.

397 Id. at 580:8-10.

30. Mr. Hussey hasn't split any wood with Mr. Dobbs since Mr. Dobbs returned from the hospital.³⁹⁸ Indeed, as of the time of the trial, Mr. Hussey and another neighbor have had to do some of the yardwork for the Dobbses that Mr. Dobbs would have done in the past.³⁹⁹

398 Id. at 569:12-17.

399 Id. at 568:23-569:8.

31. Before he suffered the brain hemorrhage, Mr. Dobbs had taken up the hobby of woodworking.⁴⁰⁰ Some of the fruits of his woodworking hobby were birdhouses, a chicken coop, and decorations for his home.⁴⁰¹

400 See id. at 630:14-631:4.

401 See id. at 630:22-631:4.

32. Mr. Dobbs has attempted to do some woodworking since the brain hemorrhage, but that endeavor resulted in him cutting his hand open with the saw.⁴⁰² He has not tried to do any woodworking since he cut his hand because Mrs. Dobbs “won't let him.”⁴⁰³

402 See id. at 631:7-19.

403 Id. at 631:20-24.

33. As Mr. Hussey credibly testified, he and Mr. Dobbs joined a group called the Crosstrail Outfitters several years before Mr. Dobbs's brain hemorrhage.⁴⁰⁴ The group worked with young boys and girls, and Mr. Dobbs used his military experience to teach them about firearm safety.⁴⁰⁵ Additionally, Mr. Hussey also credibly testified that before Mr. Dobbs suffered the brain injury, he and Mr. Dobbs would go on hog hunts, fishing trips, and camping outings together.⁴⁰⁶There's no suggestion in the record that Mr. Hussey does any of these things with Mr. Dobbs now. And there's no suggestion in the record that Mr. Dobbs does any of these things now on his own or with others-certainly not to the extent he did before the brain hemorrhage. To be complete, there's nothing in the record to suggest that Mr. Dobbs doesn't do any of these things now. But, that is a reasonable inference from the rest of the evidence. In any event, Mr. Hussey's credible testimony concerning what he and Mr. Dobbs did together before the brain hemorrhage is helpful evidence to round out the picture of who Mr. Dobbs was and how he socialized before the brain hemorrhage.

404 See id. at 564:20-25.

405 See id. at 564:20-565:5.

406 See id. at 565:11-21.

34. As Mr. Hussey credibly testified, Mr. Dobbs was very structured and organized.⁴⁰⁷This was reinforced by Mrs. Dobbs, who credibly testified that “[e]verything” with her husband was “neat and tidy, meticulous.”⁴⁰⁸ When asked how Mr. Dobbs was at managing multi-tasking before his brain hemorrhage, Mrs. Dobbs credibly testified that “[h]e could pretty much do just about anything. He could . . . do a whole bunch of different things all at once.”⁴⁰⁹ She credibly testified that he was a self-sufficient man.⁴¹⁰ The Court finds all this as fact.

407 See id. at 573:12-14.

408 Id. at 624:6-7.

409 Id. at 624:19-22.

410 See id. at 631:25-632:2.

35. Things have been different since the brain hemorrhage. Now, Mr. Dobbs “leaves everything kinda messy[,]” and Mrs. Dobbs has to pick up after him.⁴¹¹ Before the brain hemorrhage, Mr. Dobbs would shower every day and sometimes twice a day.⁴¹² Now, he usually only showers once a week.⁴¹³ When Mr. Dobbs has tried to do laundry, he has been unable to turn the dryer on.⁴¹⁴ Relatedly, even though Mr. Dobbs was once “the griller of the house[,]” there have been several instances since the brain hemorrhage when he has forgotten to turn the heat off after he has cooked something.⁴¹⁵

411 Id. at 625:16-21.

412 See id. at 624:9-11.

413 See id. at 624:12-18.

414 See id. at 633:13-25.

415 Id. at 634:13-635:8.

36. Since the brain hemorrhage, Mrs. Dobbs must help her husband get dressed in the morning because “he has a really hard time putting socks and shoes on and putting his feet, like, into pants and stuff like that.”⁴¹⁶

416 Id. at 626:24-627:2. As noted in paragraph 75, infra, one of the expert witnesses testified that Mr. Dobbs could dress himself with the exception of being able to put on his socks or shoes. See Tr. of Bench Trial (Doc. 48) at 830:6- 10. There is no real conflict between this testimony and Mrs. Dobbs's testimony. Both the expert witness and Mrs. Dobbs say that Mr. Dobbs can't put on his socks and shoes by himself. See Tr. of Bench Trial (Doc. 47) at 626:24- 627:2; Tr. of Bench Trial (Doc. 48) at 830:6-10. And while Mr. Dobbs may be physically able to put on his pants, that does not mean it is not a difficult task for him-one for which he often seeks help from Mrs. Dobbs. See Tr. of Bench Trial (Doc. 47) at 626:24-627:2.

37. In the same vein, Mrs. Dobbs credibly testified that she now has to be careful with her husband everywhere they go.⁴¹⁷ She credibly explained that, “if [they] go to the grocery store, to keep him in check, he's the one that's pushing the cart. And sometimes he can stay in the aisle, and sometimes he'll just, like, sway over, you know, and I kinda hold the front of it and kinda guide it along sometimes.”⁴¹⁸ There is no suggestion that similar caution was required before the brain hemorrhage.

417 See Tr. of Bench Trial (Doc. 47) at 636:15-19.

418 Id. at 636:22-637:1.

38. Whenever the Dobbses leave their home, Mrs. Dobbs is “always scoping out where [they're] going, where [they're] walking, if there's steps, if there's something to hold on to [sic], if there's any kind of trip thing that [Mr. Dobbs] might trip on.”⁴¹⁹ And “sitting is a big thing.”⁴²⁰Mr. Dobbs must always have a stable chair to sit in.⁴²¹ The chair can't roll or be too light, and it must have arms so he can get himself up.⁴²²

419 Id. at 627:19-22.

420 Id. at 627:22.

421 See id. at 627:22-23.

422 See id. at 627:23-628:1.

39. Mrs. Dobbs also credibly testified that, before the brain hemorrhage, her husband was “brilliant at math.”⁴²³ It's not clear what brilliant means in her testimony, but the Court finds that Mr. Dobbs was competent in math before the brain hemorrhage. After the brain hemorrhage, Mr. Dobbs “can barely add or subtract . . . .”⁴²⁴ Nor can he make any financial decisions.⁴²⁵

423 Id. at 625:9.

424 See id. at 625:11.

425 See id. at 634:5-7.

40. Mrs. Dobbs testified that he used to be “very outgoing and loved to talk with people” and “very much” liked to spend time with his friends and family.⁴²⁶ While the record suggests that might be a bit of an overstatement, the Court does find that Mr. Dobbs was able to socialize (within normal limits) before the brain hemorrhage.⁴²⁷ Since the brain hemorrhage, Mr. Dobbs keeps to himself, and “it's very hard for him to follow along in a conversation and to participate . . . in what we're talking about.”⁴²⁸ Combined with the findings of fact made in Paragraph 33 above, the Court finds Mrs. Dobbs's observations of how her husband has changed socially to be credible.

426 Id. at 625:22-626:1.

427 As Mr. Hussey credibly testified, he and Mr. Dobbs had “been in each other's face” before the brain hemorrhage. Id. at 570:20-21. Also, there is some evidence of mood problems in Mr. Dobbs's pre-brain-hemorrhage history. See, e.g., Tr. of Bench Trial (Doc. 46) at 375:2-11.

428 Tr. of Bench Trial (Doc. 47) at 626:3-7.

41. Before the brain hemorrhage, Mr. and Mrs. Dobbs had an intimate sexual relationship on a regular basis.⁴²⁹ But since his brain hemorrhage, the Dobbses have not been able to enjoy that type of relationship.⁴³⁰ Mrs. Dobbs testified that, despite attempts to do so, it's very difficult for them and “just doesn't work.”⁴³¹ The Court finds this as a fact-specifically, that the Dobbs' intimate sexual relationship has significantly suffered (if not entirely ended) since the brain hemorrhage.

429 See id. at 629:25-630:4.

430 See id. at 630:5-7.

431 See id. at 630:8-12.

42. Mr. Hussey credibly testified that Mr. Dobbs is “180-degree[s] different . . . he's not the same person.”⁴³² Mr. Hussey credibly testified that Mr. Dobbs “remembers things, but not like with the clarity that he did before. And his emotions are-he's more-he was kinda combative before because of his military experiences . . . [a]nd now it's, he's just not the same person. It's a personality change for me, you know.⁴³³ According to Mr. Hussey, Mr. Dobbs was “a strong[,] opinionated guy” before the brain hemorrhage, but “[n]ot so much now.”⁴³⁴ The Court finds all this as fact.

432 Id. at 569:22-570:1.

433 Id. at 570:1-8.

434 Id. at 570:21-22.

43. Mrs. Dobbs's testimony about Mr. Dobbs's emotional capacity after his hemorrhage was similar. For example, she credibly testified that Mr. Dobbs no longer has an identity.⁴³⁵ He wonders what he is good for and why he is here.⁴³⁶ Mr. Dobbs used to never stop working from the time he woke up until it was time for dinner.⁴³⁷ “[He] was always busy and active and doing something physical.”⁴³⁸ But now, “he watches TV a lot during the day.”⁴³⁹ She credibly testified that she believes “he's kind of almost given up . . . .”⁴⁴⁰ Nevertheless, Mr. Dobbs is still able to help around the house some.⁴⁴¹ For example, he can still fill the bird feeders, and he can retrieve the mail.⁴⁴² The Court finds all this as fact. The Court acknowledges that there is evidence that Mr. Dobbs had some mood and emotional problems before the brain hemorrhage. But the evidence does not suggest those problems ever caused him to act in the way he has acted since the brain hemorrhage, as described in this paragraph and the preceding paragraph.

435 See id. at 637:23.

436 See id. at 637:25.

437 See id. at 637:12-21.

438 Id. at 637:20-21.

439 See id. at 632:8-9.

440 Id. at 632:7-8.

441 See id. at 632:9.

442 See id. at 584:22-23, 632:9-11.

II. Expert Opinions Concerning Mr. Dobbs's Post-Hemorrhage Changes

44. Dr. Moore was called by Plaintiffs as an expert witness to explain the effects of Mr. Dobbs's brain hemorrhage and to consider Mr. Dobbs's neurological status pre- and post-hemorrhage.⁴⁴³

443 See generally Tr. of Bench Trial (Doc. 46) at 330:1-384:1. Dr. Moore was accepted as an expert in neurology without objection. See id. at 329:19-24. Because Dr. Moore is not a neurosurgeon, he did not render standard-of-care opinions. See id. at 365:12-16.

45. In reviewing Mr. Dobbs's pre-hemorrhage medical records, Dr. Moore testified that Mr. Dobbs suffered from no cognitive impairments before his brain hemorrhage.⁴⁴⁴ The Court finds Dr. Moore's testimony on this point highly credible and accepts it as fact. Among other things, this is consistent with Dr. Bahgat's pre-hemorrhage impressions of Mr. Dobbs, Mrs. Dobbs's pre-hemorrhage impressions of Mr. Dobbs, Mr. Hussey's pre-hemorrhage impressions of Mr. Dobbs, and Mr. Dobbs's pre-hemorrhage medical records as a whole.

444 See id. at 330:1-4.

46. Dr. Moore did acknowledge that pre-hemorrhage medical records suggested that Mr. Dobbs suffered from PTSD, mood disorders, opioid addiction, suspected bipolar disorder (otherwise known as manic depressive disorder), irritability, emotional outbursts, cluster B disorder, and difficulty concentrating.⁴⁴⁵ It does not appear to the Court that Mr. Dobbs was ever formally diagnosed with ADHD (despite receiving an on-and-off prescription for Adderall before the hemorrhage).⁴⁴⁶ Nor was he formally diagnosed with PTSD.⁴⁴⁷ The formal diagnosis and treatment of the other suggested disorders is also unclear.⁴⁴⁸ Given the state of the record- including the absence of formal diagnoses-the Court does not find that Mr. Dobbs had specific disorders like PTSD, ADHD, or bipolar disorder prior to (or after) the hemorrhage. But the Court can and does find that Mr. Dobbs had some unspecified behavioral and emotional issues before the hemorrhage. The Court further finds those issues were serious enough to be observable, but not so bad as to significantly interfere with Mr. Dobbs's daily life.

445 See id. at 368:17-378:6. The records do note that Mr. Dobbs was “not agreeable” to taking psychiatric medication. See id. at 375:12-15; Pls.' Trial Ex. 1 at 1959.

446 See Tr. of Bench Trial (Doc. 46) at 381:10-383:17; Tr. of Bench Trial (Doc. 48) at 866:3-5, 868:5-21; Pls.' Trial Ex. 1 at 1959-62.

447 See Tr. of Bench Trial (Doc. 48) at 866:5-6, 869:2-874:14; Pls.' Trial Ex. 1 at 1951-54.

448 See generally Tr. of Bench Trial (Doc. 46) at 368:17-383:17; Tr. of Bench Trial (Doc. 48) at 869:2-874:14; Pls.' Trial Ex. 1 at 1951-56, 1958-62.

47. Dr. Moore conducted an in-person physical examination of Mr. Dobbs in November 2021.⁴⁴⁹ At the time of the examination, Mr. Dobbs's “gait was a bit unsteady[]” and “[h]e wasn't that talkative.”⁴⁵⁰ Additionally, Mr. Dobbs “had some short-term memory deficit[,]” as well as “some asymmetry of his reflexes on the right compared to the left.”⁴⁵¹ And he (and his wife) complained to Dr. Moore of balance issues that had gotten worse since the hemorrhage.⁴⁵²Dr. Moore credibly opined that all of the foregoing was consistent with the hemorrhagic injury Mr. Dobbs suffered.⁴⁵³ The Court finds this testimony highly credible and accepts it as fact.⁴⁵⁴

449 See Tr. of Bench Trial (Doc. 46) at 355:12-18.

450 Id. at 355:19-22.

451 Id. at 356:15-16.

452 The Court does not use this testimony for the truth of the matter asserted, but rather as information Dr. Moore relied on in forming his expert opinions.

453 See id. at 358:12-359:24.

454 Dr. Moore acknowledged that Mr. Dobbs had neuropathy and had fallen on several occasions before the hemorrhage. See id. at 359:3-12. However, Dr. Moore credibly opined that, whatever small balance issues there might have been prior to the hemorrhage, the hemorrhage was the culprit of the more serious balance issues Mr. Dobbs has now. See id. at 359:13-19.

48. In forming his opinions, Dr. Moore also reviewed a report prepared by another of Plaintiffs' experts, Dr. Joyce. Dr. Joyce's report will be discussed in more detail below, but essentially the report provides evaluation and testing showing that Mr. Dobbs's post-hemorrhage intellectual functioning is quite low. Dr. Moore credibly opined that Dr. Joyce's report “tied things together nicely, based on what we saw on his neuroimaging, what his family reported, and then what Dr. Joyce found.”⁴⁵⁵ Dr. Moore credibly opined that the IQ scores on Dr. Joyce's reports would be entirely incompatible with Mr. Dobbs's academic history and military career.⁴⁵⁶Dr. Moore further credibly opined that Mr. Dobbs's cognitive and intellectual decline was due to the brain hemorrhage.⁴⁵⁷

455 See id. at 360:6-8.

456 See id. at 360:9-16.

457 See id. at 361:4-6.

49. Dr. Moore also credibly opined that Mr. Dobbs's intellectual and cognitive impairments affect his quality of life and activities of daily living.⁴⁵⁸ According to Dr. Moore, as a result of the brain hemorrhage (and to a reasonable degree of medical certainty), Mr. Dobbs is not able to live independently, make complex financial decisions, or handle tasks like grocery shopping or meal preparation without assistance.⁴⁵⁹ The Court finds this credible and accepts it as fact.

458 See id. at 361:7-10.

459 See id. at 361:11-25.

50. In light of these deficits, Dr. Moore testified that Mr. Dobbs would potentially benefit from ongoing therapy and cognitive rehabilitation.⁴⁶⁰ But Dr. Moore also testified that, to a reasonable degree of medical certainty, Mr. Dobbs's “ability to improve is limited.”⁴⁶¹Accordingly, Mr. Dobbs will more likely than not need lifelong assistance with activities of daily living.⁴⁶² The Court finds this credible and accepts it as fact.

460 Id. at 362:1-7, 363:13-18.

461 Id. at 363:19-21.

462 See id. at 363:25-364:4.

51. Dr. Joyce was called as an expert witness by Plaintiffs to testify about the neuropsychological evaluation he conducted over the course of two days in January 2022.⁴⁶³ The evaluation lasted about five hours on the first day and three hours on the second day, but there were multiple breaks for Mr. Dobbs to “recharge in between the testing.”⁴⁶⁴ The evaluation consisted of 12 tests, with many of these tests having multiple subtests.⁴⁶⁵ These tests are objective, standardized tests.⁴⁶⁶ They have been peer reviewed and have undergone validity and reliability studies.⁴⁶⁷ Broadly, they test a subject's intellectual functioning, learning and memory, attention, and executive functioning.⁴⁶⁸

463 See generally id. at 385:1-419:15. The Court accepted Dr. Joyce as an expert witness without objection. See id. at 386:7-11. By his own admission, he was not qualified to testify about the neurosurgical standard of care or medical causation. See id. at 421:4-10.

464 See Tr. of Bench Trial (Doc. 46) at 388:5-10.

465 Id. at 387:25-388:2. The Government objected to the admission of a summary of these test results as evidence, which this Court sustained in part. See id. at 389:5-392:20. Dr. Joyce was allowed to use the summary as a demonstrative, but the Court did not admit the document itself as evidence. See id. at 392:14-20.

466 See id. at 388:25.

467 See id. at 388:14-20.

468 See id. at 393:2-9.

52. The first evaluation that Dr. Joyce testified about was the Wechsler Adult Intelligence Scale.⁴⁶⁹ This test evaluates verbal comprehension, perceptual reasoning, working memory, and processing speed.⁴⁷⁰ These four categories are measured by index scores, which are reflected by percentages-or, more specifically, percentiles in comparison to similar individuals in Mr. Dobbs's age group.⁴⁷¹ Mr. Dobbs scored in the eighth percentile in the IQ test-i.e., “he performed better than only eight percent of the individuals in the normal sample.”⁴⁷² His “full-scale IQ” was 79, while his verbal comprehension IQ, perceptional reasoning, working memory index, and processing speed index scores were 89, 82, 86, and 74, respectively.⁴⁷³

469 See id. at 393:14-15.

470 See id. at 393:14-18.

471 See id. at 393:14-394:10.

472 Id. at 394:11-15.

473 Id. at 395:20-396:3.

53. Dr. Joyce testified that:

Knowing what I know about [Mr. Dobbs] and his background, having obtained bachelor's degrees, his work history is all consistent with an individual that has a much higher IQ than that. It's consistent with somebody that has an IQ certainly within the average range. So this is significantly below what would be expected.⁴⁷⁴

474 Id. at 394:16-22.

The Court finds this portion of Dr. Joyce's opinion credible and accepts it as fact.

54. Dr. Joyce also testified that he was able to gauge what Mr. Dobbs's pre-hemorrhage IQ was by testing Mr. Dobbs's premorbid functioning.⁴⁷⁵ This test “involves using a person's ability to pronounce unfamiliar words.”⁴⁷⁶ Mr. Dobbs's premorbid functioning test results revealed a range of 99 to 101 in the various index areas.⁴⁷⁷ The Court is far less certain of the propriety, effectiveness, and reliability of this test. The Court found Dr. Joyce's explanation of this backward-looking test confusing, unpersuasive, and somewhat unsupported. Accordingly, the Court finds that it does not know a specific pre-hemorrhage IQ (or even a specific range) for Mr. Dobbs. Nonetheless, the Court finds that it is more likely than not-given Mr. Dobbs's academic history and military career, as well as the impressions conveyed by those who knew him before his brain hemorrhage-that Mr. Dobbs's pre-hemorrhage IQ was significantly higher than it was after the brain hemorrhage.

475 See id. at 394:23-395:3.

476 Id. at 395:14-15. As part of the premorbid functioning test, the subject is given a set of 50 different words, which he's asked to pronounce. See id. at 397:3-5. Unless there is a “catastrophic injury,” a person's ability to pronounce words is one of the last skills he will lose. Id. at 397:25-398:2. This is because pronunciation is both overlearned and learned very early in life. See id. at 398:2-4. As Dr. Joyce testified, this makes the ability to pronounce words a good way to gauge someone's earlier functioning. See id. at 398:4-6.

477 See id. at 396:9-10.

55. To reiterate, Dr. Joyce did not base his gauge of Mr. Dobbs's pre-hemorrhage cognitive capacity on IQ alone.⁴⁷⁸ As alluded to above, he considered Mr. Dobbs's educational and vocational background.⁴⁷⁹ And Dr. Joyce also considered the fact that no mental health professionals had identified any significant neurocognitive problems with Mr. Dobbs before he suffered the brain hemorrhage.⁴⁸⁰ The Court finds this portion of the opinion highly credible and adopts it as fact.

478 See id. at 398:12-16.

479 See id. at 398:18-399:11.

480 See id. at 399:12-21, 401:2-8.

56. The next test Dr. Joyce administered was the California Verbal Learning Test.⁴⁸¹This test is a measure of “word list learning, and it provides an overall measure of learning, as well as measures of memory recall and memory recognition.”⁴⁸² Mr. Dobbs's overall learning score was in the second percentile compared to individuals of a similar age.⁴⁸³ Dr. Joyce testified that this score “is much, much lower than we would expect based on [Mr. Dobbs's] background.”⁴⁸⁴The Court finds this highly credible and adopts it as fact.

481 See id. at 401:12-13.

482 Id. at 401:13-16.

483 See id. at 401:19-21.

484 Id. at 401:21-22.

57. The California Verbal Learning Test also showed that Mr. Dobbs was in the 16th percentile for short delay free recall, which is a measure of a person's immediate verbal memory.⁴⁸⁵This score was “somewhat lower than [Mr. Dobbs's] peers,” but “wasn't a terrible score by any means.”⁴⁸⁶ The Court finds this highly credible and adopts it as fact.

485 See id. at 401:24-402:2.

486 Id. at 401:25-402:2.

58. The next sub-score was for long delay free recall, in which Mr. Dobbs scored in the eighth percentile.⁴⁸⁷ According to Dr. Joyce, this indicated that Mr. Dobbs had “lost significant amounts of information” over a period of about 25 minutes.⁴⁸⁸ Simply put, Mr. Dobbs “was not able to efficiently recall the information.”⁴⁸⁹ The Court finds this highly credible and adopts it as fact.

487 See id. at 402:3.

488 Id. at 402:4-6.

489 Id. at 402:6-7.

59. On the final part of the California Verbal Learning Test-the forced choice recognition score-Mr. Dobbs scored 100 percent.⁴⁹⁰ In this test, a person is required to identify two words that he previously saw on a list of words.⁴⁹¹ Dr. Joyce explained that the 100-percent score meant that Mr. Dobbs does not have any primary memory deficit.⁴⁹² Instead, Mr. Dobbs's “problem is much more consistent with source memory deficits associated with frontal systems damage.”⁴⁹³ The Court finds this highly credible and adopts it as fact. The Court also notes that Mr. Dobbs's brain bleed occurred in or around his frontal lobe.⁴⁹⁴

490 See id. at 402:10-11. This score measures Mr. Dobbs's ability to “recogniz[e] a word he previously saw.” Id. at 402:11-12.

491 See id. at 402:11-14.

492 See id. at 402:15-19.

493 Id. at 402:20-403:1.

494 See id. at 330:12-16, 343:17-20, 402:20-403:1, 409:10-16; Tr. of Bench Trial (Doc. 48) at 845:10-12.

60. Dr. Joyce credibly testified that these scores from the Wechsler Adult Intelligence Scale and California Verbal Learning Test show that Mr. Dobbs is “not going to be able to easily learn new things.”⁴⁹⁵ And for those things he has been previously exposed to, he is liable to forget them.⁴⁹⁶ Dr. Joyce credibly explained that this can be a safety issue for Mr. Dobbs, insofar as he can forget what he is doing-e.g., leaving propane on-and he can lose track of things he needs to do-e.g., going to appointments.⁴⁹⁷ The Court finds this highly credible and adopts it as fact.

495 Tr. of Bench Trial (Doc. 46) at 403:2-19.

496 See id. at 403:20-21.

497 See id. at 403:22-404:4.

61. Dr. Joyce also tested several aspects of Mr. Dobbs's attention.⁴⁹⁸ First, Dr. Joyce tested Mr. Dobbs's ability to complete timed tasks with speed and accuracy.⁴⁹⁹ When Mr. Dobbs didn't make errors on any of the tasks, he performed much slower than the control group.⁵⁰⁰Conversely, when Mr. Dobbs completed the timed tasks at the same speed as his peers in the control group, “he had an incredibly high number of errors.”⁵⁰¹ Dr. Joyce determined that these scores were not attributable to any pre-existing attention deficit issues that Mr. Dobbs may have had.⁵⁰² The Court finds this highly credible and adopts it as fact.

498 See id. at 404:11.

499 See id. at 404:11-16.

500 See id. at 404:16-18.

501 Id. at 404:22-24. Mr. Dobbs's scores were in the second percentile, which shows that “he had a bunch of errors, bunch of mistakes on those tests.” Id. at 404:25-405:3.

502 See id. at 405:14-25. For example, as Dr. Joyce testified, although people with ADHD score less than one standard deviation lower than the control group, Mr. Dobbs scored “well over one and a half or even two standard deviations lower than you would expect.” Id. at 405:20-25. Similarly, while Dr. Joyce acknowledged that there is some research that supports the theory that untreated depression can affect attention (as well as other aspects of the testing that Dr. Joyce did), the Court finds that, as Dr. Joyce testified, there is also research that supports a contrary conclusion. See id. at 425:8-426:2. Thus, this is an open question. See id. Given this, the Court finds that it is more likely than not that any emotional or behavioral problems Mr. Dobbs may have had before the brain hemorrhage-such as PTSD, ADHD, bipolar disorder, depression, etc.-did not meaningfully affect his scores on Dr. Joyce's testing. Any effect was more likely than not negligible. The only exception is for the short-term memory testing. There, Dr. Joyce acknowledged clearly that untreated depression can negatively affect short-term memory. See id. at 425:25-426:2. Still, in light of all the other evidence in the record, it is more likely than not that any pre-hemorrhage depression was not the main culprit of Mr. Dobbs's short-term-memory-related deficits. It is more likely than not that any depression-related effect to short-term memory testing was slight (if it was more than negligible).

62. As with the intelligence test results, Dr. Joyce credibly explained that these poor test results raise safety concerns for Mr. Dobbs. For example, in an emergency situation, Mr. Dobbs is going to do one of two things: either he will fail to respond quickly enough, or he will respond in the wrong way.⁵⁰³

503 See id. at 405:4-13.

63. The next test Dr. Joyce administered was the executive function test.⁵⁰⁴ This test evaluated Mr. Dobbs's working memory, which is the ability to retain information for a very brief period of time-usually 30 seconds or less.⁵⁰⁵ The test is comprised of several subtests.

504 See id. at 406:2-3.

505 See id. at 406:7-9.

64. The first subtest of the executive function test evaluated Mr. Dobbs's ability to remember a sequence of numbers, both backwards and forwards.⁵⁰⁶ Mr. Dobbs “had mild deficit scores in those areas.”⁵⁰⁷ The Court finds this highly credible and adopts it as fact.

506 See id. at 406:11-14.

507 Id. at 406:14.

65. The second subtest-the auditory consonant trigrams test-“measures real world-type working memory.”⁵⁰⁸ In other words, it measures how well the subject can remember something when getting interrupted by something else.⁵⁰⁹ Mr. Dobbs scored “from the third percentile to well below the first percentile at various timeframes[,]” which were measured at 9, 18, and 36 seconds.⁵¹⁰ Dr. Joyce credibly testified that this “indicates a very severe working memory deficit.”⁵¹¹ The Court finds this highly credible and adopts it as fact.

508 Id. at 406:18-20.

509 See id. at 406:20-23.

510 Id. at 406:24-407:2.

511 Id. at 407:2-3.

66. A third subtest evaluated Mr. Dobbs's verbal fluency-i.e., whether Mr. Dobbs can spontaneously produce verbal information.⁵¹² He initially scored a mild deficit, but “[w]ith added complexity,” Mr. Dobbs's scores fell below the first percentile.⁵¹³ The Court finds this highly credible and adopts it as fact.

512 See id. at 407:9-11, 20-22.

513 Id. at 407:22-408:2.

67. The Tower of London Test-which tested whether Mr. Dobbs could solve a planning problem-returned “okay” scores for Mr. Dobbs.⁵¹⁴ But “he required more time than 99 percent of the people in his age group.”⁵¹⁵ Dr. Joyce credibly opined that this meant Mr. Dobbs “could solve a planning problem, but it just took him an incredibly long time.”⁵¹⁶ The Court finds this highly credible and adopts it as fact.

514 See id. at 407:14-19.

515 Id. at 407:17-18.

516 See id. at 407:18-19.

68. Here again, Dr. Joyce credibly testified that these scores have safety implications for Mr. Dobbs.⁵¹⁷ As Dr. Joyce testified, in an unexpected emergency situation, Mr. Dobbs is “much more at risk to not initially know what to do.”⁵¹⁸ It may take him ten minutes to figure out what to do, at which point it could be too late to appropriately respond.⁵¹⁹

517 See id. at 408:4-18.

518 Id. at 408:13-16.

519 Id. at 408:16-17.

69. As Dr. Joyce also testified, Mr. Dobbs's executive learning and working memory deficits can result in daily inconveniences, such as losing different items repeatedly and having difficulty carrying on a conversation.⁵²⁰

520 See id. at 408:19-409:5.

70. Dr. Joyce credibly testified that, to a reasonable degree of neuropsychological certainty, “[t]hese results are consistent in multiple ways with the primary areas of damage [Mr. Dobbs] had from the hemorrhages . . . .”⁵²¹ And, as explained above, as Dr. Joyce testified and as the rest of the record reveals, these results were not in any meaningful way attributable to any of Mr. Dobbs's pre-existing conditions.⁵²² Instead, the Court finds that “these deficits are very likely directly related to the hemorrhages and brain injuries [Mr. Dobbs] had in 2018 . . . [and] the deficits that he has are likely to be permanent in nature.”⁵²³

521 Id. at 409:6-14.

522 See id. at 409:17-410:20, 414:11-15, 425:8-426:5.

523 Id. at 411:1-9.

71. The Government called Dr. Tremwel as an expert witness to testify about Mr. Dobbs's post-hemorrhage cognitive and physical abilities.⁵²⁴ Like Dr. Joyce, she too evaluated Mr. Dobbs and administered a battery of tests to evaluate his cognitive and physical functioning in January 2022.⁵²⁵ But unlike Dr. Joyce's two-day evaluation, Dr. Tremwel only evaluated Mr. Dobbs for one hour.⁵²⁶

524 See Tr. of Bench Trial (Doc. 48) at 817:23-818:2. The Court accepted Dr. Tremwel as an expert witness in neurology without objection. See id. at 822:11-15.

525 See id. at 827:9-11, 23-24.

526 Compare Tr. of Bench Trial (Doc. 46) at 388:5-6, with Tr. of Bench Trial (Doc. 48) at 860:10-11.

72. Dr. Tremwel testified that the number of tests Dr. Joyce performed was unusual because only one or two tests for each area of the brain is sufficient to determine whether the subject has a deficit.⁵²⁷ She explained that repeat testing can make the patient fatigued.⁵²⁸ She also took issue with the number of tests Dr. Joyce performed by testifying that “it implies that there's more areas of [the] brain that are affected, but it's multiple tests pointing to the same area of the brain.”⁵²⁹

527 See Tr. of Bench Trial (Doc. 48) at 846:24-847:7.

528 See id. at 847:6-7.

529 Id. at 849:3-5. Dr. Tremwel also testified that people with ADHD perform poorly on IQ tests. See id. at 849:11- 18. The absence of any formal diagnosis of ADHD notwithstanding, Dr. Joyce acknowledged that someone with ADHD would perform worse on the IQ test than the control group. See Tr. of Bench Trial (Doc. 46) at 405:18-25. But Dr. Joyce also credibly explained that the standard person with ADHD would perform far less poorly than Mr. Dobbs performed. See id. It is more likely than not that ADHD played a negligible role (if any) in the test scores.

73. The Court understands, but does not agree with, Dr. Tremwel's criticisms. Dr. Joyce's test was not a non-stop, two-day evaluation. The evaluation lasted a total of five hours on the first day, and three hours on the second day.⁵³⁰ There were multiple breaks each day, which allowed Mr. Dobbs to rest.⁵³¹ Considering this, the Court finds that the results of Dr. Joyce's testing were not in any way attributable to patient fatigue. And the greater scope of testing performed by Dr. Joyce does not suggest the type of overreach Dr. Tremwel alleged. Instead, it only adds to the reliability of Dr. Joyce's findings. Indeed, for those reasons, the Court finds that Dr. Joyce's evaluation was more reliable and persuasive than Dr. Tremwel's evaluation.

530 See Tr. of Bench Trial (Doc. 46) at 388:5-6.

531 See id. at 388:8-10.

74. Dr. Tremwel memorialized her findings in an expert opinion report in February 2022.⁵³² She formulated a supplemental opinion in April 2022 after reviewing Dr. Joyce's deposition.⁵³³ As part of her evaluation, Dr. Tremwel interviewed the Dobbses.⁵³⁴ They told Dr. Tremwel that while Mr. Dobbs had initially required assistance with all of his activities of daily living, he had significantly improved over the last two years.⁵³⁵ However, Mr. Dobbs was still walking with a cane, and he could only walk about half a block before growing fatigued.⁵³⁶He also still had problems with his balance, which caused him to fall and made him unable to do the outdoor activities he wanted to do.⁵³⁷ The Court finds as a fact that the Dobbses made these statements to Dr. Tremwel. And the Court finds the statements to be an accurate reflection of reality. Of course, significant improvement is relative; it does not mean serious problems don't persist. And improvements may be permanent or temporary.

532 See Tr. of Bench Trial (Doc. 48) at 827:14-16.

533 See id. at 827:17-19.

534 See id. at 827:25-828:10.

535 See id. at 829:12-17.

536 See id. at 829:17-19.

537 See id. at 829:20-22.

75. While Mr. Dobbs once had trouble swallowing and controlling his bladder after the brain hemorrhage, those problems had since resolved (at least at the time Dr. Tremwel examined him).⁵³⁸ Mr. Dobbs had a good appetite, was sleeping well, could bathe independently, and could dress himself, with the exception of being able to put on his own shoes and socks.⁵³⁹ The Court finds as a fact that the Dobbses made these statements to Dr. Tremwel. And the Court finds the statements to be an accurate reflection of reality. Of course, as explained above, the fact that Mr. Dobbs can physically complete a task does not suggest how easy or difficult it is for him to do it on his own. And it does not suggest whether he will be able to continue doing it on his own.

538 See id. at 829:23-830:1.

539 See id. at 830:1-10.

76. During Dr. Tremwel's evaluation, Mr. Dobbs told her that he was neither depressed nor anxious, and he felt like his cognition had improved since he returned home from Houston Methodist more than two years before.⁵⁴⁰ Mr. Dobbs was not participating in any therapy at the time, and he was on two medications-one for GERD, and the other for an enlarged prostate.⁵⁴¹ The Court finds as a fact that Mr. Dobbs made these statements to Dr. Tremwel. And the Court finds the statements to be an accurate reflection of reality.

540 See id. at 830:11-19.

541 See id. at 830:20-831:2.

77. Other than difficulty bending at the knees, Dr. Tremwel's physical exam of Mr. Dobbs was unremarkable.⁵⁴² Dr. Tremwel also performed a neurological exam of Mr. Dobbs, which he scored well on.⁵⁴³ As part of the neurological exam, she “checked a Thurstone[,]” which tests to see how many words a subject can name within a minute that start with the same letter.⁵⁴⁴Although Dr. Tremwel testified that Mr. Dobbs “performed it well,” she acknowledged that “it's been shown that on average, that a person should be able to name 11 words in a minute, and he only named six.”⁵⁴⁵

542 See id. at 831:3-14. Dr. Tremwel also checked Mr. Dobbs's cranial nerves, extremities, fine motor movement, pronator drift, sensation, and temperature. See id. at 832:17-833:17. Other than Mr. Dobbs having “some sensory normal hearing loss,” the results for these exams were also unremarkable. See id. at 832:22. This indicated some improvement of pronator drift since Dr. Moore's examination of Mr. Dobbs. See id. at 836:12-20.

543 See id. at 831:15-24.

544 Id. at 831:25-832:3.

545 Id. at 832:4-6.

78. Dr. Tremwel also evaluated Mr. Dobbs's short-term memory.⁵⁴⁶ This evaluation entailed giving Mr. Dobbs three words to remember and having him repeat them two or three times.⁵⁴⁷ After five minutes (and other intermittent testing), she would see if he could remember the three words.⁵⁴⁸ Mr. Dobbs remembered none of the words.⁵⁴⁹ Mr. Dobbs was, however, able to spell the word “world” both forwards and backwards.⁵⁵⁰

546 See id. at 832:7.

547 See id. at 832:7-9.

548 See id. at 832:9-10.

549 See id. at 832:11.

550 See id. at 832:13-15. Dr. Tremwel described this as “a very basic attention kind of test . . . .” Id. at 832:14.

79. When Dr. Tremwel tested Mr. Dobbs's vibratory sense with a tuning fork, he could not sense it at his ankles but could at his knees.⁵⁵¹ A test of Mr. Dobbs's reflexes showed that he had bicep reflexes, but he did not have any reflexes in his triceps or lower extremities.⁵⁵²Dr. Tremwel testified that these sensory and reflex issues were consistent with Mr. Dobbs's pre-hemorrhage neuropathy.⁵⁵³ While the Court understands Dr. Tremwel's point, the Court believes the rest of the evidence in this case proves that it is more likely that the sensory and reflex deficiencies Dr. Tremwel observed were, in part, caused by and, in part, significantly exacerbated by, the brain hemorrhage. In this vein, the Court specifically notes that Dr. Bahgat's pre-hemorrhage examinations and observations revealed no problems with Mr. Dobbs's reflexes.⁵⁵⁴

551 See id. at 833:17-19.

552 See id. at 833:20-23.

553 See id. at 835:7-836:5, 837:3-14.

554 See supra ¶ 6 of Findings of Fact - Damages.

80. When Dr. Tremwel had Mr. Dobbs walk, he walked with a wide base and “had a fairly decent stride with that and he ambulated with a cane.”⁵⁵⁵

555 See Tr. of Bench Trial (Doc. 48) at 833:24-834:2. When Dr. Tremwel remarked during the evaluation that Mr. Dobbs had a wide-based gait, he responded that he had had that since before the brain hemorrhage. See id. at 838:19-21. Dr. Tremwel testified that this was related to Mr. Dobbs's neuropathy. See id. at 838:22-23. Specifically, she explained that “the gait problem is more than 50% due to the neuropathy[]” but conceded this was “not a scientific calculation . . . .” Id. at 839:13-14.

81. Mr. Dobbs had intact verbal fluency, which meant that he was able to respond to a question with a full sentence, including a noun, verb, and object.⁵⁵⁶ In the evaluation, Mr. Dobbs “was not lacking for words.”⁵⁵⁷ He could also understand the various commands Dr. Tremwel gave him and did not seem confused by them.⁵⁵⁸

556 See id. at 834:12-17.

557 See id. at 834:16-17.

558 See id. at 834:20-23.

82. Based on the evaluation and other records examined, Dr. Tremwel determined that Mr. Dobbs's executive functioning was impaired.⁵⁵⁹

559 See id. at 835:4-6.

83. Dr. Tremwel also performed a cerebellar exam.⁵⁶⁰ This consisted of two tests: (1) Mr. Dobbs bringing his finger to his nose, and (2) Mr. Dobbs bringing his heel to his shin.⁵⁶¹Mr. Dobbs was able to do both normally, which evidenced improvement since Dr. Moore's same examination two months earlier.⁵⁶² Again, the Court notes that improvement is a relative term and does not necessarily suggest permanency of improvement.

560 See id. at 837:15-16.

561 See id. at 837:18-838:5.

562 See id. at 838:6-14.

84. Dr. Tremwel testified that Mr. Dobbs had “mild cognitive impairment.”⁵⁶³ She classified Mr. Dobbs's cognitive impairment as mild “[b]ecause he's able to function . . . [e]ssentially independently.”⁵⁶⁴ The Court believes this understates Mr. Dobbs's condition. Essentially, the Court finds that (1) Dr. Joyce's testing was more reliable and revealed greater impairments, and (2) Dr. Joyce's testing fits more consistently with the post-hemorrhage observations of Mr. Dobbs by his wife, kids, neighbors, and Dr. Moore.

563 Id. at 839:25.

564 Id. at 840:2-4.

85. Ultimately, Dr. Tremwel agreed with Dr. Joyce's conclusion that Mr. Dobbs “has frontal lobe dysfunction.”⁵⁶⁵ But Dr. Tremwel attributed some of Mr. Dobbs's cognitive problems to pre-existing conditions.⁵⁶⁶ Frankly acknowledging that her attribution “is not a scientific calculation,” Dr. Tremwel suggested that “maybe 50 percent” of Mr. Dobbs's cognitive deficits are attributable to pre-existing conditions.⁵⁶⁷ More specifically, Dr. Tremwel testified that ADHD, PTSD, and other “personality traits were quite remarkable before the surgery . . . .”⁵⁶⁸ The Court is unpersuaded by Dr. Tremwel's testimony here. First, the 50-percent figure does not appear to have any scientific, medical, or rational basis. It seems like a number picked out of thin air. Second, as discussed above, it is not clear that Mr. Dobbs had received a formal diagnosis of ADHD, PTSD, or any other emotional or behavioral issues before (or after) the hemorrhage. Third, all the testimony concerning pre-hemorrhage observations of Mr. Dobbs suggest that any emotional or behavioral issues had no significant effect on his daily life or his cognitive functioning. Considering the entire record, as well as the testimony of the Plaintiffs' and the Government's expert witnesses, the Court finds that, even though Mr. Dobbs had some preexisting behavioral and emotional deficits, these deficits, on their own, were not the cause of any of the cognitive impairment seen in Mr. Dobbs's post-hemorrhage testing.

565 Id. at 848:17-23.

566 See id. at 839:7-846:14.

567 Id. at 839:7-20.

568 Id. at 839:16-20. On cross-examination, Dr. Tremwel acknowledged that Mr. Dobbs was never formally diagnosed with ADHD or PTSD. See id. at 866:3-6.

86. In light of the foregoing-to a reasonable degree of medical certainty, and using the preponderance-of-the-evidence standard-the Court finds that Mr. Dobbs's post-hemorrhage physical and cognitive deficits are directly attributable to the brain hemorrhage Mr. Dobbs suffered. In many instances, the hemorrhage is the sole cause of his deficits. In a few instances, the hemorrhage greatly exacerbated pre-existing issues that, on their own, would have never caused the life-altering consequences Mr. Dobbs has suffered since the hemorrhage.

III. Mr. Dobbs's Future Care and Treatment

87. Based on their findings, Dr. Joyce and Dr. Tremwel made competing recommendations about what care and treatment would be necessary for Mr. Dobbs. Dr. Joyce testified that Mr. Dobbs would need to see a neurologist on a long-term basis.⁵⁶⁹ Dr. Joyce determined that a neurologist would be ideal to monitor Mr. Dobbs and make sure he's getting the interventions he needs.⁵⁷⁰ Dr. Joyce explained that, because of Mr. Dobbs's brain hemorrhage, Mr. Dobbs is at a higher risk to develop dementia earlier than his peers, and a neurologist could help treat this condition.⁵⁷¹ Dr. Joyce also recommended psychiatry care due to Mr. Dobbs's significant personality changes as a result of the brain hemorrhage.⁵⁷² And Dr. Joyce recommended monthly meetings with a psychiatrist for the first six months, followed by quarterly meetings thereafter.⁵⁷³

569 See Tr. of Bench Trial (Doc. 46) at 412:13-16.

570 See id. at 412:13-16.

571 See id. at 412:17-21.

572 See id. at 412:22-413:7.

573 See id. at 413:9-10.

88. He also recommended that Mr. Dobbs have follow-up neuropsychological evaluations to help identify any new neurocognitive symptoms that arise.⁵⁷⁴ These follow-up evaluations would be every five years.⁵⁷⁵ And Dr. Joyce recommended that Mr. Dobbs see a psychologist or licensed social worker because of his emotional state.⁵⁷⁶ Dr. Joyce testified that these meetings could start out at one to two times a week for six months, and shift to every other week for the next six months.⁵⁷⁷ From there, the frequency would depend on how Mr. Dobbs was doing.⁵⁷⁸

574 See id. at 413:14-18.

575 See id.

576 See id. at 413:19-414:5. Dr. Joyce testified that Mr. Dobbs was tearful during the evaluation and made extremely negative comments about himself. See id. at 413:23-414:5.

577 See id. at 415:10-15.

578 See id. at 415:15.

89. Dr. Joyce next recommended that Mr. Dobbs would need rehabilitation case management and cognitive rehabilitation.⁵⁷⁹ The rehabilitation case management would entail a case manager meeting with Mr. Dobbs in his home a couple of hours per week “to pick him up and get him moving towards doing some things that are more active than he's been doing.”⁵⁸⁰ The frequency of the case management tasks would depend on Mr. Dobbs's progress, but Dr. Joyce recommended meeting twice per week.⁵⁸¹ As for the cognitive rehabilitation, which is specifically focused on helping people with brain injuries, Dr. Joyce testified that this would help develop strategies for Mr. Dobbs to manage his cognitive deficits.⁵⁸² The frequency of the cognitive rehabilitation would vary depending on how Mr. Dobbs was doing.⁵⁸³

579 See id. at 414:18-415:9.

580 Id. at 414:18-23.

581 See id. at 415:20-22.

582 See id. at 415:1-9.

583 See id. at 415:23-24.

90. Finally, Dr. Joyce recommended attendant care for Mr. Dobbs.⁵⁸⁴ Dr. Joyce credibly testified that, because of Mr. Dobbs's difficulties with managing his activities of daily living (including, for example, cooking, getting dressed, getting from place to place, and keeping track of his medical appointments), Mr. Dobbs would need somebody (other than his wife) to be with him at least four hours a day, seven days a week, to help with these things.⁵⁸⁵ Dr. Joyce credibly testified that attendant care would help mitigate some of the safety concerns for Mr. Dobbs.⁵⁸⁶ According to Dr. Joyce, Mr. Dobbs cannot rely solely on his wife to take care of these things.⁵⁸⁷

584 See id. at 416:1-3.

585 See id. at 416:4-417:14.

586 See id. at 417:5-14.

587 See id. at 417:10-418:7. The Court overruled the Government's objection to Dr. Joyce's testimony about caregiving being stressful for Mrs. Dobbs. See id. at 418:12-17.

91. Dr. Tremwel did not affirmatively dispute the need for Mr. Dobbs to see a neurologist, psychiatrist, psychologist or social worker, or to have further neuropsychological evaluations.⁵⁸⁸ The Court finds that Dr. Joyce's undisputed recommendation is necessary for Mr. Dobbs's future medical care and treatment.

588 See Tr. of Bench Trial (Doc. 48) at 850:19-876:18.

92. Dr. Tremwel did testify that it was not medically necessary for Mr. Dobbs to have, in the Government's words, “a paid friend or paid safety friend.”⁵⁸⁹ Dr. Tremwel explained that Mr. Dobbs would instead benefit from goal-directed therapy that he could then continue on his own.⁵⁹⁰ But her testimony was not persuasive on this point, especially given her concession on cross-examination that Mr. Dobbs still needs supervision and assistance.⁵⁹¹ This is at least generally consistent with Dr. Joyce's opinion. The Court finds the need for supervision and assistance as a fact.

589 Id. at 850:19-851:1. Dr. Joyce did not recommend that Mr. Dobbs need a “paid safety friend[,]” but the Court construes Dr. Tremwel's present testimony as referring to Dr. Joyce's recommendation for attendant care. At this point in trial, Plaintiffs' counsel objected to Dr. Tremwel's testimony about what care Mr. Dobbs would need because it was not disclosed in her Rule 26 reports. See id. at 853:11-15. The Court overruled the objection because this was discussed in Dr. Tremwel's deposition, and Plaintiffs' counsel did not seek leave from the Court to tender a rebuttal report. See id. at 853:11-858:9.

590 See id. at 851:6-853:3.

591 See id. at 876:6-7.

93. Dr. Tremwel also testified that cognitive rehabilitation counseling for the remainder of Mr. Dobbs's life would not be medically beneficial.⁵⁹² She explained that:

592 See id. at 858:13-18.

[W]hat has been shown to be the most helpful is the patient taking the initiative, the family working with the patient, that having outside forces to come in and make a plan, you know, one visit where-and usually it's physical, speech and occupational therapist make a plan for the patient, but from there, the patient owns their own rehab, and that is what has shown to have the best success.⁵⁹³

593 Id. at 858:20-859:1.

Because of this, Dr. Tremwel has never prescribed anything like cognitive rehabilitation therapy.⁵⁹⁴ The Court finds Dr. Tremwel's explanation unpersuasive and finds Dr. Joyce's opinion on this point far more persuasive. Accordingly, the Court finds that Mr. Dobbs's need for cognitive rehabilitation therapy is medically necessary in the circumstances of this case and a direct result of the brain hemorrhage.

594 See id. at 858:18.

94. Plaintiffs called Victoria Powell-a nurse consultant and certified life care planner-as an expert witness to testify about the kind and extent of care that Mr. Dobbs would need as a result of his brain hemorrhage.⁵⁹⁵ Life care planning is the practice of creating a care plan for a person over the course of his life expectancy.⁵⁹⁶ As Ms. Powell explained, this spans the spectrum of care-it's everything from home modifications to Band-Aids.⁵⁹⁷ The life care planning process begins with reviewing the patient's medical records and recommendations made within.⁵⁹⁸ Then there's an independent assessment of the patient.⁵⁹⁹ A life care planner consults with physicians and conducts medical and financial research.⁶⁰⁰

595 See generally Tr. of Bench Trial (Doc. 47) at 480:8-535:21. The Court accepted Ms. Powell as an expert witness without objection. See id. at 484:19-24. However, her expert qualifications were limited to the life care plan. See id. at 504:13-505:19. She was not qualified as a nursing expert. See id. at 505:2-19. The Court has not considered Ms. Powell's testimony as any form of medical diagnosis. See id. at 505:15-18.

596 See id. at 480:24-25.

597 See id. at 480:25-481:3.

598 See id. at 485:6-9.

599 See id. at 485:24-25.

600 See id. at 486:19-23.

95. In preparation for Mr. Dobbs's life care plan, Ms. Powell met with him and his wife in their home.⁶⁰¹ Like Dr. Joyce and Dr. Tremwel, Ms. Powell evaluated Mr. Dobbs by administering several surveys and tests.⁶⁰² These included an “activities[,] balance[,] and confidence survey[,]” the PHQ9 (which screens for depression), the GAD7 (which screens for anxiety), and a fatigue assessment scale.⁶⁰³

601 See id. at 486:24-25. Ms. Powell's assessment of Mr. Dobbs was conducted in September 2021. See id. at 490:18- 19.

602 See id. at 487:13-17.

603 See id. at 487:20-21, 488:18, 22, 24.

96. The activities, balance, and confidence survey measures the subject's confidence in doing different activities.⁶⁰⁴ Mr. Dobbs reported a lack of confidence in most activities and scored a 23 percent.⁶⁰⁵ According to Ms. Powell, any score below 80 percent is an indication that the person needs additional physical therapy.⁶⁰⁶ Mr. Dobbs's PHQ9 score was a 19.⁶⁰⁷ As Ms. Powell testified, this showed that he had moderately severe depression, which warranted treatment.⁶⁰⁸ The GAD7 test did not show that Mr. Dobbs suffered from anxiety.⁶⁰⁹ On the fatigue assessment scale, Mr. Dobbs scored a 44 out of 50, which indicated high levels of fatigue.⁶¹⁰

604 See id. at 487:21-488:2.

605 See id. at 488:13-14.

606 See id. at 488:15-17.

607 See id. at 488:18-19.

608 See id. at 488:19-21.

609 See id. at 488:22-23.

610 See id. at 488:24-25.

97. Ms. Powell's assessment of Mr. Dobbs also revealed that “[h]is right hand is essentially nonfunctional.”⁶¹¹ She found that “he was not independent in self-care[,]” and she described his bathing as “setup and supervision.”⁶¹² Ms. Powell explained that, while Mr. Dobbs did not require someone else to bathe him, it was unsafe for him to be in the shower with no one at home due to his risk of falling.⁶¹³ Ms. Powell also testified that he needed help with “setup,” such as “getting his clothes out, things of that nature.”⁶¹⁴ And she testified that Mr. Dobbs was unable to reach into the kitchen cabinets-low or high-without falling or holding onto something.⁶¹⁵ And, as Ms. Powell testified, when she asked Mr. Dobbs to do three things, he would forget to do one or two of the three.⁶¹⁶ The Court finds this all as fact.

611 Id. at 491:4-5.

612 Id. at 491:5-7. Despite this, Ms. Powell also testified that Mrs. Dobbs told her she could give her husband a knife and some carrots, and he would be able to cut them. See id. at 494:7-9. However, he wouldn't know what the next step would be, such as putting the carrots into a bowl. See id. at 494:10-11.

613 See id. at 491:10-12.

614 Id. at 491:16-17.

615 See id. at 491:21-24.

616 See id. at 491:25-492:1.

98. Ms. Powell also testified that Mr. Dobbs had problems with dizziness.⁶¹⁷ His dizziness is worse in the morning and lasts about half or two-thirds of the day.⁶¹⁸ But because Ms. Powell was not qualified to testify about the cause of this dizziness (and because Mr. Dobbs's guess that his dizziness stemmed from the holes drilled in his skull after the surgery is unsupported), the Court finds that Mr. Dobbs's dizziness was not proximately caused by his brain hemorrhage. No other expert witness testified that dizziness was a symptom of a brain hemorrhage.⁶¹⁹

617 See id. at 498:24-499:5.

618 See id. at 499:1-5.

619 Dr. Moore testified that neuropathy could cause dizziness. See Tr. of Bench Trial (Doc. 46) at 372:8-9, 18-20.

99. Ms. Powell determined that Mr. Dobbs had problems with his vision, smell, taste, and hearing since his brain hemorrhage.⁶²⁰ But as with dizziness, no other doctor attributed these problems to Mr. Dobbs's brain hemorrhage.⁶²¹ Because there is no expert testimony to support these inhibitions as proximately caused by the brain hemorrhage, the Court finds Mr. Dobbs's problems with vision, smell, taste, and hearing are not a result of the brain hemorrhage.

620 See Tr. of Bench Trial (Doc. 47) at 499:6-20.

621 See id. at 558:10-23. Because Ms. Powell could not “connect the dots” herself, she did not include treatment for these problems in her life care plan. See id. at 558:21-23.

100. Ms. Powell also testified that Mr. Dobbs had problems with his speech.⁶²²Specifically, he was unable to project his voice, his voice was raspy, and the volume of his speech tended to decline as the conversation went on.⁶²³ The Court finds all this as fact, and notes that it is not inconsistent with anything observed by the doctors who evaluated Mr. Dobbs or reported by his friends and family. It is more likely true than not.

622 See id. at 499:21-500:3.

623 See id.

101. Like the other expert witnesses who evaluated Mr. Dobbs, Ms. Powell observed that, while you could ask him a question, and he could answer the question, he could not remember the conversation later.⁶²⁴ When that happened, “he became emotional and would be tearful.”⁶²⁵

624 See id. at 500:7-10.

625 See id. at 500:10-11.

102. Additionally, Ms. Powell determined that Mr. Dobbs has bowel and bladder problems, which includes incontinence and urge frequency.⁶²⁶ As a result, Mr. Dobbs has started to wear adult diapers at night, and his wife must always ensure there is a bathroom nearby.⁶²⁷Ms. Powell testified that Mr. Dobbs “should not move quickly and cannot move quickly[,]” but “he doesn't have the judgment to know that he move slowly.”⁶²⁸ Despite this, “he wants to move quickly,” which causes more problems like tripping or falling.⁶²⁹ The Court finds that this was a fact at the time of Ms. Powell's evaluation. However, as noted above, the Court finds that the bladder issues improved between Ms. Powell's evaluation and Dr. Tremwel's evaluation.

626 See id. at 500:12-501:12.

627 See id. at 501:7-12.

628 Id. at 501:16-18.

629 Id. at 501:18-23.

103. As Ms. Powell (and other expert witnesses) testified, Mr. Dobbs has fine motor problems.⁶³⁰ His hands are moving all the time, and he rolls his fingers and rubs his pants constantly.⁶³¹ He also has gross motor problems.⁶³² He does not have full range of motion in his right shoulder, arm, or hand.⁶³³ Mr. Dobbs also has limited strength and reported to Ms. Powell that he can no longer lift anything over 20 pounds.⁶³⁴ The Court finds all this as fact.

630 See id. at 501:24-502:2.

631 See id. at 501:24-502:2.

632 See id. at 502:7-11.

633 See id. at 502:7-17.

634 See id. at 503:9-19.

104. In evaluating Mr. Dobbs, Ms. Powell observed that he had lost interest in most things, was often sad, had difficulty concentrating, was unable to plan things, and had limited ability to engage with others socially.⁶³⁵ For example, before the brain hemorrhage, Mr. Dobbs oversaw his and his wife's plans.⁶³⁶ But now, his wife must do all the planning.⁶³⁷ The Court finds all this as fact.

635 See id. at 503:22-504:12, 505:25-508:3.

636 See id. at 507:14-17.

637 See id. at 507:17-21.

105. In determining the length of the life care plan, Ms. Powell relied on official United States Government life tables.⁶³⁸ These included CDC tables and the National Vital Statistics Report.⁶³⁹ These tables are upDated: least once a year (and sometimes multiple times a year) and project an individual's life expectancy based on sex and race.⁶⁴⁰ They do not, however, segregate life expectancy based on comorbidities; instead, all healthy and unhealthy people are lumped together.⁶⁴¹ Based on these tables, Ms. Powell determined that Mr. Dobbs's life expectancy (as of the fall of 2021) was 18.8 years.⁶⁴² The Court finds these life tables authoritative and reliable.

638 See id. at 495:21-24; Pls.' Trial Exs. 29-33. Before trial, the Government filed a Motion in Limine to, in part, exclude these life tables. See Def.'s Mot. in Limine (Doc. 29) ¶ 3; Br. in Supp. of Def.'s Mot. in Limine (Doc. 30) at 4-5. The Court denied this part of the Motion without prejudice to being re-raised at trial. See Order (Doc. 36); Tr. of Bench Trial (Doc. 45) at 12:4-15:5. The Government raised this objection again during Ms. Powell's direct examination, and the Court overruled the Government's objection. See Tr. of Bench Trial (Doc. 47) at 497:25-498:8. The life tables were admitted as evidence. See Tr. of Bench Trial (Doc. 47) at 498:9; Pls.' Trial Exs. 29-33. They are relevant. They are a proper subject of judicial notice. At the pre-trial conference, the Government noted it had no objection to the taking of judicial notice as to the life tables themselves. See Tr. of Bench Trial (Doc. 45) at 14:14- 15:5. The Court takes judicial notice of them.

639 See Tr. of Bench Trial (Doc. 47) at 495:25-496:1. Ms. Powell used Volume 69, Number 12 of the report, which was dated November 17, 2021. See id. at 496:1-3.

640 See id. at 496:22-23, 497:12-14. Ms. Powell used the life expectancy for a non-Hispanic, white male in making her findings. See id. at 496:5-6.

641 See id. at 539:9-11.

642 See Pls.' Trial Ex. 34 at 1.

106. Considering her evaluation of Mr. Dobbs, Ms. Powell prepared a 12-page life care plan that detailed the expected care (and cost thereof) that Mr. Dobbs would need because of his brain hemorrhage.⁶⁴³ As Ms. Powell testified, the life care plan recommendations are directly related to Mr. Dobbs's brain injury.⁶⁴⁴ She clarified, however, that she takes the patient as he comes, and he may have additional issues that are compounded by the brain injury.⁶⁴⁵ But, for example, if the patient already had a wheelchair before the relevant injury, she would not include a second wheelchair in the life care plan.⁶⁴⁶

643 See id. at 1-12; Tr. of Bench Trial (Doc. 47) at 508:10-535:21.

644 See Tr. of Bench Trial (Doc. 47) at 516:12-21; id. at 547:20-23 (“I don't believe that anything in my plan is not related to the incident.”).

645 See id. at 516:17-19.

646 See id. at 516:19-21.

107. First, Ms. Powell determined that Mr. Dobbs would need to meet with his primary care physician above and beyond what a normal person would-an additional one to two times a year.⁶⁴⁷ Like Dr. Joyce, she also recommended that Mr. Dobbs see a neurologist every six months because of his balance and cognitive issues.⁶⁴⁸ Ms. Powell also recommended urology and gastroenterology appointments because of Mr. Dobbs's bladder and bowel incontinence.⁶⁴⁹Additionally, the life care plan includes recommendations for physiatry and psychiatry consultations.⁶⁵⁰ Ms. Powell testified that the physiatrist would serve as a “gatekeeper to all of the other recommendations,” while the psychiatrist would be a one-time evaluation to assess Mr. Dobbs's situation and provide recommendations with monthly follow-ups for six months, followed by quarterly follow-ups for three years.⁶⁵¹

647 See id. at 508:20-509:4.

648 See id. at 509:5-12.

649 See id. at 509:13-20; Pls.' Trial Ex. 34 at 7. The urology visits would be four times a year, and the gastroenterology visits would be twice a year. See Pls.' Trial Ex. 34 at 1. Even though Dr. Tremwel testified that the bladder incontinence had resolved by the time she evaluated him, there was no testimony that this resolution was permanent. See Tr. of Bench Trial (Doc. 48) at 829:23-830:1. Other expert witnesses testified that Mr. Dobbs suffered from bladder and bowel incontinence. See, e.g., Tr. of Bench Trial (Doc. 47) at 500:14-25. Moreover, Dr. Joyce testified that Mr. Dobbs's deficits are likely permanent. See Tr. of Bench Trial (Doc. 46) at 411:1-9. The Court thus finds that despite the (perhaps) temporary resolution of Mr. Dobbs's bladder incontinence when Dr. Tremwel evaluated him, it is more likely than not that this deficit, too, will be permanent. That is especially so given the continuation of Mr. Dobbs's bowel problems.

650 See Tr. of Bench Trial (Doc. 47) at 509:21-510:3.

651 Id. at 509:21-511:10. Ms. Powell clarified at trial that the years are mislabeled for follow-up psychiatry visits in the life care plan. See id. at 510:21-511:10. Because the follow-up visits are only for two years, it should read 2021- 2023, not 2021-2040. See id.; Pls.' Trial Ex. 34 at 1.

108. Another medical care recommendation Ms. Powell made for Mr. Dobbs in his life care plan was for nutritional consulting five times over the course of his remaining life expectancy.⁶⁵² This would be for weight management and to help with Mr. Dobbs's incontinence.⁶⁵³ Like Dr. Joyce, she recommended neuropsychiatric evaluations to continue to assess Mr. Dobbs's cognitive functioning.⁶⁵⁴ This would entail an initial evaluation and follow-ups every five years.⁶⁵⁵

652 See Tr. of Bench Trial (Doc. 47) at 512:4-8; Pls.' Trial Ex. 34 at 1.

653 See Tr. of Bench Trial (Doc. 47) at 512:4-8.

654 See id. at 512:9-10.

655 See id. at 512:10-11.

109. Beyond the medical care portion of the life care plan, the plan also includes recommendations for therapeutic evaluation modalities.⁶⁵⁶ This includes physical therapy, occupational therapy, speech therapy, and inpatient rehabilitation.⁶⁵⁷ Ms. Powell testified that the physical and occupational therapy would help Mr. Dobbs work on his balance, gait, and physical functioning.⁶⁵⁸ The speech therapy would not focus on his speech, but instead would be a means to help Mr. Dobbs's executive functioning.⁶⁵⁹ Based on Dr. Joyce's recommendation that Mr. Dobbs needed further inpatient rehabilitation, Mr. Dobbs's life plan includes the average cost for a one-time visit to one of four possible inpatient rehabilitation facilities.⁶⁶⁰ The Court finds that the need for these therapies-both in-patient and out-patient-are a direct and necessary result of Mr. Dobbs's brain hemorrhage and the deficits that stem from it.

656 See Pls.' Trial Ex. 34 at 3.

657 See id.; Tr. of Bench Trial (Doc. 47) at 512:22-514:13.

658 See Tr. of Bench Trial (Doc. 47) at 513:7-10.

659 See id. at 513:12-14. This would be a one-time evaluation. See id.; Pls.' Trial Ex. 34 at 3.

660 See Tr. of Bench Trial (Doc. 47) at 513:15-514:7; Pls.' Trial Ex. 34 at 3.

110. The next section of Mr. Dobbs's life care plan is for diagnostic studies and lab work.⁶⁶¹ These include an annual comprehensive health panel, a CT of the brain every five to seven years, and an EEG every two to three years.⁶⁶² Ms. Powell testified that the comprehensive health panel would be for kidney and liver function studies that are necessary for someone who is on long-term medications-medications that Mr. Dobbs would not otherwise be on absent the brain injury.⁶⁶³ The need for comprehensive health panels, CTs, and EEGs is a direct result of Mr. Dobbs's brain hemorrhage (and the related treatment of the brain hemorrhage), and the Court finds that the comprehensive health panels, CTs, and EEGs are medically necessary for Mr. Dobbs's future treatment and care.

661 See Pls.' Trial Ex. 34 at 4.

662 See id.

663 See Tr. of Bench Trial (Doc. 47) at 514:17-23, 515:16-516:9, 644:6-8.

111. Next is medications.⁶⁶⁴ The life care plan includes monthly prescriptions for Gabapentin (for neuropathy), Naproxen (for pain), Trazodone Hydrochloride (for sleep), Oxybutynin Chloride and Tamsulosin Hydrochloride (both for urinary issues), and Omeprazole (for GERD).⁶⁶⁵ The Court finds that the prescription for Gabapentin does not directly result from Mr. Dobbs's brain hemorrhage. As repeatedly noted throughout the trial and in medical records, Mr. Dobbs suffered from neuropathy before his brain hemorrhage. The same goes for the Omeprazole and Trazodone Hydrochloride prescriptions. Mr. Dobbs suffered from GERD before his brain hemorrhage.⁶⁶⁶ And Mr. Dobbs was on sleep medication before the brain hemorrhage and reported to Dr. Tremwel that he was sleeping well at night when she evaluated him.⁶⁶⁷

664 See Pls.' Trial Ex. 34 at 5.

665 See id.

666 See Tr. of Bench Trial (Doc. 46) at 249:23-24.

667 See Tr. of Bench Trial (Doc. 48) at 830:1-2.

112. Nevertheless, the Court finds the need for the other prescription medications is directly related to, and is medically necessary because of, the brain hemorrhage. Even though Mr. Dobbs suffered from high general levels of pain before his brain hemorrhage, the Court finds that, based on the expert testimony at trial, it is more likely than not that the brain hemorrhage aggravated and increased Mr. Dobbs's pain and has significantly contributed to his bowel and bladder incontinence.

113. The life care plan also provides for mobility aids, durable medical equipment, and aids for independent function.⁶⁶⁸ The mobility aids include a scooter (to be replaced every five years), annual scooter maintenance, scooter accessories (to be replaced every three to five years), a HurryCane (to be replaced every three years), and a rolling walker with a seat (to be replaced every five years).⁶⁶⁹ These will all help Mr. Dobbs with his mobility and mitigate his risk of falling.⁶⁷⁰ To Ms. Powell's knowledge, Mr. Dobbs did not require any of these mobility aids before his brain hemorrhage.⁶⁷¹ The Court finds that Mr. Dobbs's need for these mobility aids is medically necessary and a direct result of his brain hemorrhage.

668 See Pls.' Trial Ex. 34 at 6-7.

669 See id. at 6.

670 See id.

671 See Tr. of Bench Trial (Doc. 47) at 525:1-3.

114. The durable medical equipment and aids for independent function range from a sock puller to a urinal.⁶⁷² Ms. Powell testified that these would help with Mr. Dobbs's functioning and independence.⁶⁷³ Because Mr. Dobbs cannot put his socks or shoes on by himself, she recommended a sock puller and shoehorn to assist with these tasks.⁶⁷⁴ Ms. Powell also recommended a handheld showerhead to better facilitate Mr. Dobbs's bathing.⁶⁷⁵ Further recommendations include toilet rails, a safety bath mat, and indoor and outdoor interlocking grip tiles, which are all aimed at reducing Mr. Dobbs's risk of falling.⁶⁷⁶ Next, she recommended a urinal to allow him to use the bathroom more quickly.⁶⁷⁷ And finally, she recommended an allowance for various memory aids like recording devices, calendars, Post-It notes, batteries, and medication organizers.⁶⁷⁸ The Court finds that Mr. Dobbs's need for all these aids is medically necessary and a direct result of his brain hemorrhage.⁶⁷⁹

672 See Pls.' Trial Ex. 34 at 7.

673 See Tr. of Bench Trial (Doc. 47) at 526:5-7.

674 See id. at 526:8-12, 17-19.

675 See id. at 526:13-16; Pls.' Trial Ex. 34 at 7.

676 See Tr. of Bench Trial (Doc. 47) at 526:20-527:4; Pls.' Trial Ex. 34 at 7.

677 See Tr. of Bench Trial (Doc. 47) at 527:5-7; Pls.' Trial Ex. 34 at 7.

678 See Tr. of Bench Trial (Doc. 47) at 527:8-19; Pls.' Trial Ex. 34 at 7. Ms. Powell testified that she did not include an assistive technology specialist in this recommendation but believes Mr. Dobbs would benefit from a one-time evaluation by one. See Tr. of Bench Trial (Doc. 47) at 527:8-16. Ms. Powell explained that an assistive technology specialist helps someone with a brain injury determine what kind of cueing, apps, and reminders may be helpful. See id. at 527:11-15. The Court finds that these additional benefits are sufficiently encompassed by the services of the other above-discussed (and soon-to-be-discussed) medical providers. Because the assistive technology specialist was not included in Mr. Dobbs's proposed life care plan, no reduction for this is necessary. See Pls.' Trial Ex. 34 at 1-12.

679 Even though Ms. Powell observed that Mr. Dobbs is able to bathe himself, the Court finds that a handheld shower head would better facilitate Mr. Dobbs's ability to bathe on his own and help lessen his risk of falling in the shower and is therefore medically necessary as a direct result of his brain hemorrhage.

115. Next, the life care plan recommends home and attendant care.⁶⁸⁰ Ms. Powell testified that while Mr. Dobbs does not need a babysitter, he needs a “paid safety friend.”⁶⁸¹ As Ms. Powell explained, this is someone who could “assist [Mr. Dobbs] with his activities of daily living and the heavy housekeeping, home maintenance, [and] the things that he used to want to do.”⁶⁸² The plan provides for this care for four hours a day, seven days a week through 2031.⁶⁸³In 2032, the recommendation increases to eight hours a day, seven days a week.⁶⁸⁴ Ms. Powell explained that this would help unburden Mrs. Dobbs and provide the necessary care her husband needs.⁶⁸⁵

680 See Pls.' Trial Ex. 34 at 8.

681 Tr. of Bench Trial (Doc. 47) at 528:13-14.

682 Id. at 528:14-17.

683 See Pls.' Trial Ex. 34 at 8.

684 See id.

685 See Tr. of Bench Trial (Doc. 47) at 529:22-530:2.

116. The Court finds that attendant and home care is medically necessary for Mr. Dobbs as a direct result of his brain hemorrhage. As detailed earlier in this Memorandum of Decision, Mr. Dobbs's cognitive and physical capabilities are significantly diminished as a direct and proximate result of his brain hemorrhage.⁶⁸⁶ Consequently, he is mostly unable to independently complete (or even attempt) many ordinary activities of daily life. Although Ms. Powell testified that it would be appropriate for this care to total more than four hours a day right off the bat, the Court believes-based on both her and Dr. Joyce's testimony-that four hours of daily home and attendant care seven days a week is sufficient through 2031. As Mr. Dobbs ages (and, as a direct result of his brain hemorrhage, his brain will age more quickly), eight hours of daily home and attendant care will be necessary for Mr. Dobbs beginning in 2032, and through the remainder of his life.⁶⁸⁷

686 Dr. Tremwel testified that attendant and home care, or a paid safety friend, is not medically necessary for Mr. Dobbs. See Tr. of Bench Trial (Doc. 48) at 850:19-851:1. However, she agreed that Mr. Dobbs needs supervision and assistance. See id. at 876:6-7. The Court finds that attendant and home care is important to ensure that Mr. Dobbs has the supervision and assistance that is medically necessary as a direct result of the brain hemorrhage.

687 See Tr. of Bench Trial (Doc. 46) at 415:1-9; Tr. of Bench Trial (Doc. 47) at 530:16-531:4. Based on Ms. Powell's calculation of Mr. Dobbs's life expectancy, this would be from the time of trial until 2040. See Tr. of Bench Trial (Doc. 47) at 539:9-11.

117. Relatedly (and in agreement with Dr. Joyce), the life care plan recommends a rehabilitation counselor and case manager.⁶⁸⁸ As Ms. Powell and Dr. Joyce testified, a rehabilitation counselor would help Mr. Dobbs learn to function with his numerous cognitive and physical deficits.⁶⁸⁹ The Court agrees and finds that a cognitive rehabilitation counselor is medically necessary as a direct result of Mr. Dobbs's brain hemorrhage.⁶⁹⁰ The Court finds that Dr. Joyce's recommendation that this rehabilitation occur weekly for two hours a week is, more likely than not, medically necessary considering Mr. Dobbs's numerous deficits.⁶⁹¹ However, the Court finds that the recommendation for a case manager is not medically necessary, considering the number of providers who will be working with Mr. Dobbs. As Ms. Powell explained, this is more of a gap-filler role, in case anything falls through with the other providers.⁶⁹²

688 See Pls.' Trial Ex. 34 at 10, 11.

689 See Tr. of Bench Trial (Doc. 47) at 533:3-11.

690 Even though Dr. Tremwel testified that it would be better for Mr. Dobbs to work with his family to resolve these issues, the Court finds that is still possible in addition to the cognitive rehabilitation. See Tr. of Bench Trial (Doc. 48) at 858:20-859:1. In addition to the other forms of therapy that the Court has found to be medically necessary as a direct result of Mr. Dobbs's brain hemorrhage, the Court finds that Mr. Dobbs's need for cognitive rehabilitation is medically necessary and a direct result of Mr. Dobbs's brain hemorrhage.

691 See Tr. of Bench Trial (Doc. 47) at 534:4-21.

692 See id. at 535:2-14.

118. Finally, the life plan provides for mileage reimbursement for the various medical appointments that Mr. Dobbs must attend as a direct result of his brain hemorrhage.⁶⁹³ The life care plan determined the round-trip mileage for these appointments and multiplied those totals by the IRS's mileage-reimbursement rate.⁶⁹⁴ Absent Mr. Dobbs's brain hemorrhage, he would not have to travel to these numerous and relatively frequent medical appointments. The Court therefore finds that the incurred mileage is a direct result of Mr. Dobbs's brain hemorrhage and properly included in Mr. Dobbs's life care plan.

693 See Pls.' Trial Ex. 34 at 9.

694 See id.

119. Regarding the cost of Mr. Dobbs's life care plan, the Court also heard testimony from Dr. Hubbard.⁶⁹⁵ Dr. Hubbard testified that when considering a life care plan, “the numbers have already been given to [him], and [his] job there is simply to do the financial mathematics on it . . . .”⁶⁹⁶ In this case, Ms. Powell provided the proposed life care plan for Mr. Dobbs, and Dr. Hubbard calculated the present value of the future expenses using the appropriate inflation and discount rates.⁶⁹⁷ Specifically, Dr. Hubbard used an inflation-adjusted discount rate approach in calculating the cost of Mr. Dobbs's life care plan.⁶⁹⁸ Using these calculations, Dr. Hubbard concluded that, to a reasonable degree of economic certainty, the present value of Mr. Dobbs's proposed life care plan is $638,373.00.⁶⁹⁹ The Court finds that Dr. Hubbard's methods are authoritative, and his calculations are reliable.

695 See generally Tr. of Bench Trial (Doc. 46) at 428:1-441:21.

696 See id. at 430:18-21.

697 See id. at 432:8-10, 22-25.

698 See id. at 433:14-18.

699 See Pls.' Trial Ex. 34 at 12; Tr. of Bench Trial (Doc. 46) at 438:9-16. This total includes a geographic area factor (“GAF”), which adjusts the costs upward or downward based on where Mr. Dobbs would obtain his various medical services. See Tr. of Bench Trial (Doc. 47) at 511:12-18. The GAF in Mr. Dobbs's life care plan varied downward for every applicable item. See Pls.' Trial Ex. 34 at 1-4.

CONCLUSIONS OF LAW - DAMAGES

As with liability, damages are determined according to Arkansas law.⁷⁰⁰ The Arkansas Medical Malpractice Act provides that “damages awarded may include compensation for actual economic losses recognized by law suffered by the injured person by reason of medical injury, including, but not limited to, the cost of reasonable and necessary medical services, rehabilitation services, custodial care, loss of services, and loss of earnings or earning capacity.”⁷⁰¹ The awarded damages may also “include compensation for pain and suffering and other noneconomic loss recognized by law.”⁷⁰² Like liability, “it is not enough for an expert to opine that there was negligence that was the proximate cause of the alleged damages.”⁷⁰³ “The opinion must be stated within a reasonable degree of medical certainty or probability.”⁷⁰⁴

700 See Wilkinson v. United States, 564 F.3d 927, 933 (8th Cir. 2009).

701 Ark. Code Ann. § 16-114-208(a)(1)(A).

702 Id. § 16-114-208(a)(2).

703 Williamson, 348 Ark. at 311, 72 S.W.3d at 492.

704 Id.

At trial, the Government argued (at least implicitly) that Mr. Dobbs's damages award should be reduced to account for pre-existing conditions.⁷⁰⁵ But under Arkansas law, a fact-finder “is allowed to consider the full extent of any injury sustained, even though the degree of injury proximately resulted from the aggravation of a pre-existing condition.”⁷⁰⁶ This is more commonly known as the “eggshell plaintiff rule,” which “embraces the principles that a tortfeasor must accept a plaintiff as he finds him and may not escape or reduce damages by highlighting the injured party's susceptibility to injury.”⁷⁰⁷ Of course, “the physician found guilty of malpractice is not chargeable for pain, suffering or anguish that arose because of the original ailment, but is chargeable only for the pain, suffering, anguish and expenses that naturally follow from the malpractice.”⁷⁰⁸ This caveat is consistent with the Arkansas Medical Malpractice Act's requirement that “the injured person suffered injuries that would not otherwise have occurred.”⁷⁰⁹

705 See Tr. of Bench Trial (Doc. 48) at 976:14-980:9.

706 Clawson v. Rye, 281 Ark. 8, 11, 661 S.W.2d 354, 357 (1983).

707 Primm v. U.S. Fid. & Guar. Ins. Corp., 324 Ark. 409, 414, 922 S.W.2d 319, 321 (1996).

708 Bockman v. Butler, 226 Ark. 159, 163, 288 S.W.2d 597, 599 (1956).

709 Ark. Code Ann. § 16-114-206(a)(3).

Generally, a plaintiff can prove the damages owed for past medical bills with exact certainty.⁷¹⁰ This is usually done simply by providing the medical bills.⁷¹¹ Here, Mr. Dobbs has proved his past medical bills with exact certainty. He submitted as evidence medical bills from: (1) Houston Methodist⁷¹² for $28,979.55; (2) Metropolitan Emergency Medical Services⁷¹³ for $696.15; (3) AirMed⁷¹⁴ for $13,968.00; (4) Baxter Regional Urology Clinic⁷¹⁵ for $1,089.01; (5) Baxter Regional Neurology and Spine Clinic⁷¹⁶ for $879.00; (6) Baxter Regional Medical Center⁷¹⁷ for $11,834.77; (7) Mountain Home Radiology⁷¹⁸ for $376.00; (8) Lincoln Paden Medical Group⁷¹⁹ for $2,476.95, and (9) Ozark Physical Therapy⁷²⁰ for $13,714.10. Thus, Mr. Dobbs's past medical bills total $74,013.53. The Court awards $74,013.53 to Mr. Dobbs for past medical bills.

710 See, e.g., Bill Davis Trucking, Inc. v. Prysock, 301 Ark. 387, 391, 784 S.W.2d 755, 757 (1990).

711 See id. at 392, 784 S.W.2d at 758. The provision of the Arkansas Medical Malpractice Act that did away with the collateral-source rule was found unconstitutional in Johnson v. Rockwell Automation, Inc. See 2009 Ark. 241, at 10, 308 S.W.3d 135, 142. Therefore, Mr. Dobbs is allowed to recover the full value of his past medical bills. See id.

712 See Pls.' Trial Ex. 7 at 1, 19-24; Pls.' Trial Ex. 16 at 2; Pls.' Trial Ex. 19 at 2. This includes Mr. Dobbs's bills from Houston Radiology and separate bill from Dr. David Ho. See Pls.' Trial Ex. 16 at 2; Pls.' Trial Ex. 19 at 2.

713 See Pls.' Trial Ex. 18 at 2.

714 See Pls.' Trial Ex. 10 at 2.

715 See Pls.' Trial Ex. 13 at 2.

716 See Pls.' Trial Ex. 14 at 2, 9.

717 See Pls.' Trial Ex. 15 at 2.

718 See Pls.' Trial Ex. 17 at 2.

719 See Pls.' Trial Ex. 3 at 2.

720 See Pls.' Trial Ex. 5 at 1, 15. The Plaintiffs made two separate requests for these medical records-one in March 2019, and the other in June 2022. See id. at 1, 14-18. As a result, it appears to the Court that there were some duplicative charges between the two records. See id. at 10-13, 19-22. The Court has excluded these duplicative charges-a total of $7,272.47-from the total of Mr. Dobbs's past medical expenses from Ozark Physical Therapy. See id. The Court does not award damages for past medical bills Mr. Dobbs incurred at Ozark Physical Therapy before his brain hemorrhage.

“Future medical expenses do not require the same degree of certainty as past medical expenses.”⁷²¹ “It is not speculative or conjectural to calculate future medical expenses where there is a history of medical expenses that have accrued as of the date of trial, particularly where there is also a degree of medical certainty as to the need for future medication.”⁷²² With (1) the exception of a nutritionist, a case manager, and prescriptions for Gabapentin, Omeprazole, and Trazodone Hydrochloride, and (2) the recalculation of one part of the life care plan, in which Ms. Powell made some accounting errors, the Court concludes that the life care plan prepared by Ms. Powell is consistent with the expert medical testimony given at trial and reflective of the reasonable and necessary future medical care and medical expenses that Mr. Dobbs will incur as a direct result of his brain injury.⁷²³ Excluding the items just referenced, the total future value of Ms. Powell's life care plan is $504,740.00. The necessary recalculation of the accounting error just referenced adds another $785,160.00 to that value. Accordingly, factoring in all these changes (and applying the spirit of Dr. Hubbard's discount rate), the Court awards $1,417,844.56 to Mr. Dobbs for future care and medical expenses.⁷²⁴

721 Matthews v. Rodgers, 279 Ark. 328, 335, 651 S.W.2d 453, 457 (1983) (“The doctor testified that the appellee might need future medical procedures. The appellee testified he still had pain in the area. This was sufficient for the court to consider this element of damages.”).

722 Prysock, 301 Ark. at 392, 784 S.W.2d at 757-58.

723 A fact-finder may award reasonable mileage when calculating future medical and care expenses. See AMI Civ. 2204 (“The reasonable expense of any necessary medical care, treatment and services received, [including (transportation)(and)(board)(and)(lodging) expenses necessarily incurred in securing such care, treatment, or services] [and the present value of such expense reasonably certain to be required in the future].”) (alterations and emphases in original).

724 The Court needs to make two additional findings here. First, Ms. Powell's life care plan incorrectly calculated the total amount necessary to support her attendant care recommendations. See Pls.' Trial Ex. 34 at 8. Specifically, Ms. Powell miscalculated the frequency of the attendant care in column seven (titled FREQ) of rows one and two- the frequency should represent days, not weeks. See id. The Court has reworked the math on the recommendations. For the first ten years of attendant care, the math is as follows: 3,652 days multiplied by four hours a day, multiplied by $22.50 an hour equals $328,680.00. For the next 8.8 years, the math is as follows: 3,212 days, multiplied by eight hours a day, multiplied by $22.50 an hour equals $578,160.00. The sum of those two figures is $906,840.00. That's $785,160.00 more than the $121,680.00 figure that Ms. Powell's life care plan (mis)calculated. So, the Court has added $785,160.00 to the $504,740.00 that it calculated by excluding from the life care plan's calculated costs the categories that the Court found not medically necessary and unreasonable. That equals $1,289,900.00, which represents the total future value of the proposed life care plan as altered by the Court. Second, as already explained, the Court excluded from future expenses several items of medical care, medications, and case management. And, as just explained, the Court altered the calculation of one item, namely future attendant care. Dr. Hubbard's net discount rates for these categories are -1.0380 percent (medical care), -1.3233 percent (medications), -0.9515 percent (case management), and -0.9558 percent (attendant care). See Pls.' Trial Ex. 34 at 12. But even after reviewing Dr. Hubbard's testimony about the mathematical formula he applied, the Court is unsure how to exactly calculate the total present value of Mr. Dobbs's future care and medical expenses (excluding those items the Court found were not medically necessary and altering the one item the Court found was miscalculated) using these exact rates. Accordingly, the Court has used a work-around that it believes will roughly but fairly approximate what the correct calculated amount would have been using the more intricate category-by-category formula set forth by Dr. Hubbard. The Court calculated the present value of Mr. Dobbs's future care and medical expenses in the following way:

$580,767 total future value of proposed life care plan) = $1,289,900 (total future value of proposed life care plan as altered by Court)

__________________________________________________________________________________________________________

$638,373 (total present value of proposed life care plan) X (total present value of proposed life care plan as altered by Court)

Put another way, the rough formula would be $1,289,900.00 multiplied by $638,373.00, divided by $580,767.00. And that equals $1,417,844.56.

The Court can award damages for pain and suffering that Mr. Dobbs has experienced since the hemorrhage. Damages for past pain and suffering-that is, pain and suffering after the triggering event but before the trial-are awardable.⁷²⁵ As to likely pain and suffering after the trial, “[e]vidence of future pain and suffering and permanent disability must be established with reasonable certainty and must not be left up to speculation or conjecture on the part of the fact-finder.”⁷²⁶ But the caselaw is clear that the fact-finder may infer pain and suffering from the serious nature of the injury.⁷²⁷ And “changes in lifestyle will also support an award for pain and suffering.”⁷²⁸ At bottom, “[t]here is no definite and satisfactory rule to measure compensation for pain and suffering and the amount of damages must depend on the circumstances of each particular case.”⁷²⁹ Still, the fact-finder may only award damages for future pain and suffering if it is “reasonably certain to be experienced by [Mr. Dobbs] in the future.”⁷³⁰

725 See Garrison v. Hodge, 2018 Ark.App. 556, at 14, 17, 565 S.W.3d 107, 117, 118 (affirming a jury verdict that awarded, in part, damages for past and future pain and suffering).

726 MCSA, LLC v. Thurmon, 2014 Ark.App. 540, at 7-8, 444 S.W.3d 428, 433.

727 Garrison, 2018 Ark.App. 556, at 14, 565 S.W.3d at 117.

728 Id. at 15, 565 S.W.3d at 117.

729 Id. at 14, 565 S.W.3d at 117.

730 Bailey v. Bradford, 244 Ark. 8, 9, 423 S.W.2d 565, 566 (1968) (internal quotation marks and citations omitted). Testimony that there “is a good possibility” that the plaintiff may endure future pain and suffering is not enough. Id., 423 S.W.2d at 567. When asked whether Mr. Dobbs's deficits are permanent to a reasonable degree of neuropsychological certainty, Dr. Joyce testified “[y]es[,] [g]iven that it's been well over a year since [Mr. Dobbs] had these injuries, the deficits that he has are likely to be permanent in nature.” Tr. of Bench Trial (Doc. 46) at 411:4- 9.

Over the course of trial, the Court heard a significant amount of credible testimony (as explained in the findings of fact above) that Mr. Dobbs was not the same man he was before he suffered the brain hemorrhage. And the Court heard credible testimony (also explained above) about the nightmare he endured during and after the brain hemorrhage. By way of example and not limitation, consider the following few lowlights. He spent over two months in the hospital as a result of Dr. Bahgat's malpractice. Of those two months, he was in intensive care (first at the Central Arkansas Veterans Healthcare System and then at Houston Methodist) for more than a month. He was in a coma for an unspecified period of time. When he left intensive care, he went to inpatient rehabilitation, where he needed nearly continuous care and had to work to relearn basic functions like swallowing. He also had significant bladder and bowel control problems, eventually necessitating an adult diaper for some period of time. This was all directly and proximately caused by the hemorrhage-and the testimony on this point from one or more experts was made to a reasonable degree of medical certainty.

Mr. Dobbs now suffers from numerous cognitive and physical deficits, which are directly and proximately attributable to the brain hemorrhage. Again, this conclusion is based on testimony made to a reasonable degree of medical certainty. And these deficits are likely to be permanent.⁷³¹They are wide-ranging, affect most facets of his life, and make it impossible for him to live life in any way close to the way he used to. The Court will not repeat here all the findings it made above concerning the extent and effect of those deficits. It incorporates them by reference here. Based on expert medical testimony, to a reasonable degree of medical certainty and by a preponderance of the evidence, Mr. Dobbs will suffer the consequences (and accompanying pain) of these deficits for the rest of his life. Simply put, Mr. Dobbs is unable to live life as he once did. And he will never be able to do so again. His pain and suffering will be constantly with him, as it has been since the brain hemorrhage.

731 See Wheeler v. Bennett, 312 Ark. 411, 417, 849 S.W.2d 952, 955 (1993) (“A permanent injury is one that deprives the plaintiff of his right to live his life in comfort and ease without added inconvenience or diminution of physical vigor.”).

Considering the thousands of pages of medical records and multiple days of trial testimony from both expert witnesses and those who are personally familiar with Mr. Dobbs's pain and suffering, and based on all the findings of fact made above, and noting the 18-plus-year life expectancy of Mr. Dobbs, the Court awards Mr. Dobbs $1,000,000.00 for past and future pain and suffering directly and proximately caused by the hemorrhage.⁷³² The link between the brain hemorrhage and the pain and suffering is short, direct, and unbroken by any intervening cause. None of this pain and suffering would have taken place in absence of the hemorrhage.

732 This award also encompasses Mr. Dobbs's physical and mental impairment as a direct result of the brain hemorrhage. Mr. Dobbs also sought damages for disfigurement and scarring. See Compl. (Doc. 1) ¶ 8.1. Damages for disfigurement and scars are “separate and apart from mere embarrassment and the mental anguish they may cause.” Matthews, 279 Ark. at 336, 651 S.W.2d at 458. But Plaintiffs presented no evidence at trial about Mr. Dobbs scarring or physical disfigurement. Therefore, the Court does not award any damages for Mr. Dobbs's disfigurement or scars. Moreover, insofar as Mr. Dobbs seeks damages for his loss of enjoyment of life pre-death, these damages have not been specifically recognized in Arkansas. See Howard W. Brill, Arkansas Law of Damages § 34:3. Finally, as the injured party, Mr. Dobbs cannot recover for loss of consortium with his wife. See Hisaw v. State Farm Mut. Auto. Ins. Co., 353 Ark. 668, 685, 122 S.W.3d 1, 10 (2003) (describing a loss of consortium claim as “derivative” to the claim of the injured party).

Mrs. Dobbs also seeks damages for loss of consortium.⁷³³ Arkansas courts have defined consortium as the “[c]onjugal fellowship of husband and wife, and the right of each to the company, co-operation, affection, and aid of the other in every conjugal relationship.”⁷³⁴ “[T]he loss of consortium is something difficult to measure in dollars and cents, but the recovery for loss of consortium should be dictated by reason and justice.”⁷³⁵

733 See Compl. (Doc. 1) ¶ 8.2; Tr. of Bench Trial (Doc. 48) at 943:14-19.

734 White v. Mitchell, 263 Ark. 787, 807, 568 S.W.2d 216, 225 (1978) (internal quotation marks and citations omitted).

735 Id. at 807-08, 568 S.W.2d at 225.

As noted above, Mrs. Dobbs and her husband had a regular and intimate sexual relationship before his brain hemorrhage. Despite trying to maintain an intimate sexual relationship since the brain injury, they have been unable to do so. As further noted above, Mrs. Dobbs has also been largely unable to enjoy her husband's cooperation, companionship, affection, fellowship, and aid since the brain hemorrhage.⁷³⁶ The change in the relationship has been vast, as Mrs. Dobbs has had to largely transition from the role of wife to a more motherly role.⁷³⁷ Mrs. Dobbs married a physically-fit, outdoors-loving, adventure-seeking, retired marine a little more than three years before the brain injury. Although the Court is certain Mrs. Dobbs is dedicated to her husband now, Mr. Dobbs is (through no fault of his own) a completely different person and their marriage is of a completely different character. Mrs. Dobbs deserves compensation for the loss, which was directly and proximately caused by the brain hemorrhage. The link between the hemorrhage and the losses the Court discusses here is short, direct, and unbroken by any intervening cause. And such losses would not have occurred absent the hemorrhage. Accordingly, based on all the findings of fact in this Memorandum of Decision, and noting Mr. Dobbs's 18-plus-year life expectancy, the Court awards Mrs. Dobbs $500,000.00 for the loss of consortium with her husband.

736 See Missouri Pac. Transp. Co. v. Miller, 227 Ark. 351, 359-60, 299 S.W.2d 41, 46 (1957) (“Mrs. Miller has suffered the complete loss of consortium; Miller is not able to furnish any companionship; it does not appear that he has sufficient mental attainments that would enable him to be an enjoyable companion notwithstanding his present pain and mental anguish and his physical disabilities. Prior to Mr. Miller's injuries, Mrs. Miller led a happy life, enjoyed her husband, his companionship and marital relation. And now, instead of a mate with whom she can mutually enjoy life, she has a burden to bear by the loss of consortium. Undoubtedly, she has been damaged heavily.”).

737 See Tr. of Bench Trial (Doc. 47) at 650:6-7 (“I feel like a mother and a caretaker.”).

Finally, Plaintiffs also seek damages for past and future caretaking expenses.⁷³⁸ An injured plaintiff is entitled to reimbursement for past and future caretaking expenses.⁷³⁹ This is true whether the caretaking is provided by his wife or a professional.⁷⁴⁰ Future caretaking expenses, however, have already been awarded as part of the future medical care damages. Because the Court is providing damages for professional attendant care for the rest of Mr. Dobbs's life, the Court does not believe it appropriate to also pay Mrs. Dobbs for the performance of attendant care. Such double-dipping would not be appropriate in the circumstances of this case.⁷⁴¹

738 See Compl. (Doc. 1) ¶ 8.2 (“Eileen Dobbs brings this suit to recover all damages cognizable under the law resulting from the injuries to Craig Dobbs and to herself as a result of the occurrence in question.”).

739 See Gross & Janes Co. v. Brooks, 2012 Ark.App. 702, at 9-10, 425 S.W.3d 795, 801.

740 See Jackson v. United States, 526 F.Supp. 1149, 1154 (E.D. Ark. 1981) (“We are in agreement that plaintiff is entitled to a substantial award for caretaking expense, even though these services are now provided by his wife who undoubtedly took a marriage vow to care for him in sickness and in health.”).

741 If Ms. Powell had believed it was medically necessary and reasonable to provide Mr. Dobbs round-the-clock attendant care (or even, say, twelve hours of attendant care a day), Ms. Powell would have put that in the proposed life care plan. She didn't, which leads the Court to believe that Mr. Dobbs does not need attendant care over and above what was suggested by Ms. Powell's plan. The Court understands that Dr. Joyce and Ms. Powell testified that additional attendant care hours might be appropriate, but finds this testimony incredible and unpersuasive given the proposed life care plan. Additional hours might be nice, but they are not medically necessary and reasonable.

However, considering Mrs. Dobbs's unavoidable and time-consuming efforts to take care of her husband in nearly every aspect of his life over the four years leading up to trial, the Court finds that Mrs. Dobbs is entitled to past caretaking expenses. Ms. Powell's proposed life care plan for Mr. Dobbs valued such care at $22.50 an hour.⁷⁴² The Court finds that this rate is reasonable. While Mrs. Dobbs did not keep a timesheet of the hours she spent caring for her husband, the absence of such evidence does not preclude recovery for past caretaking damages.⁷⁴³ Based on Mrs. Dobbs's testimony at trial, the Court concludes that it was reasonably and medically necessary for Mrs. Dobbs to spend (on average) four hours a day taking care of her husband. The Court reaches this conclusion because (1) the need for attendant care in the long term is limited to four hours a day until 2031, and (2) Mrs. Dobbs's own testimony suggests that Mr. Dobbs spends time alone during the day without her. Mrs. Dobbs spends at least four waking hours per day attending to Mr. Dobbs's needs that are directly attributable to the brain injury.

742 See Pls.' Trial Ex. 34 at 8.

743 See Carr v. Nance, 2010 Ark. 497, at 28, 370 S.W.3d 826, 842 (“[I]n those instances where damages simply cannot be proven with exactness, when the cause and existence of damages have been established by the evidence, recovery will not be denied merely because the damages cannot be determined with exactness.”).

Mrs. Dobbs took care of Mr. Dobbs over the course of at least 1,452 days.⁷⁴⁴ The Court finds the need for this care was a direct and proximate result of the brain hemorrhage. There would be no such need without the brain hemorrhage, and the link between the brain hemorrhage and the need for past caretaking is short, direct, and unbroken by an intervening cause. Considering the time and effort Mrs. Dobbs has spent taking care of her husband as a direct and proximate result of the brain hemorrhage, the Court awards $130,680.00 in past caretaking damages to Mrs. Dobbs.

744 This represents the time that passed from the day Mr. Dobbs was released from Houston Methodist Rehabilitation (December 21, 2018) to the end of the bench trial in this case (December 2, 2022).

Although Plaintiffs are not entitled to pre-judgment interest under the Federal Tort Claims Act, the Court may order post-judgment interest.⁷⁴⁵ The Court will do so here.⁷⁴⁶ Under federal law, post-judgment interest is calculated “at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve system, for the calendar week preceding the day of judgment.”⁷⁴⁷ Here, that's 5.16 percent.

745 See 28 U.S.C. § 2674; 31 U.S.C. § 1304(b)(1).

746 Post-judgment interest is allowed “only from the date of filing of the transcript of the judgment with the Secretary of the Treasury through the day before the date of the mandate of affirmance . . . .” 31 U.S.C. § 1304(b)(1)(A).

747 28 U.S.C. § 1961 (cleaned up).

Finally, Plaintiffs seek attorney fees equal to 25 percent of the judgment.⁷⁴⁸ The Court does not grant those fees as part of this judgment. However, the Court will entertain (as it does in every other case) a post-judgment motion for attorney fees. That motion must address whether attorney fees are appropriate at all, given that the Arkansas Medical Malpractice Act does not explicitly provide for attorney fees.⁷⁴⁹ (In Arkansas, attorney fees are generally not recoverable absent specific statutory authorization.⁷⁵⁰) Additionally, the Court requests information necessary to determine whether a 25-percent fee would be reasonable, including information necessary for the Court to roughly make a lodestar calculation.

748 A plaintiff may recover attorney fees in a Federal Tort Claims Act case “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Id. § 1346(b)(1). See also id. § 2674 (“The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.”); Tri-State Hosp. Supply Corp. v. United States, 341 F.3d 571, 572 (D.C. Cir. 2003) (holding that attorney fees are only recoverable under the Federal Tort Claims Act if the law of the state where the tortious act occurred provides for them).

749 See generally Ark. Code Ann. § 16-114-208.

750 See, e.g., Gibson v. Buonauito, 2022 Ark. 206, at 11, 655 S.W.3d 59, 66 (“Arkansas follows the American rule, which requires every litigant to bear his or her attorney[] fees, absent a state statute to the contrary.”).

CONCLUSION

In accordance with the above Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that Judgment shall be entered in FAVOR of Plaintiffs Craig Dobbs and Eileen Dobbs and AGAINST Defendant United States of America for damages in the amount of $3,122,538.09. Judgment will be entered accordingly. The Judgment will accrue at an interest rate of 5.16 percent.

IT IS SO ORDERED.