Federal Judge’s Findings Of Fact:
On April 6, 2020, Roy Palmer drove to the Togus VA Medical Center (“Togus VA”) with complaints of abdominal pain in the epigastric/peri-umbilical region. He was admitted to the Togus VA that day. On April 6, 2020, at 3:40 PM, a Togus VA hospitalist entered an order for Mr. Palmer to receive one milligram of intravenous (“IV”) hydromorphone, an opioid, every two hours as needed. As of April 6, 2020, Mr. Palmer had not been prescribed any opioids for at least two years.
On April 7, 2020, Mr. Palmer continued to report pain. On April 7, 2020, at 02:03 AM, a Togus VA hospitalist entered a new order for Mr. Palmer to receive an immediate dose of two milligrams of IV hydromorphone and then receive two milligrams of IV hydromorphone every two hours as needed. If administered every two hours per this order, Mr. Palmer would receive twenty-four milligrams of IV hydromorphone in one twenty-four-hour period. As such, this dosage of hydromorphone triggered an automatic “alert” in the electronic medical system that notified the Togus VA hospitalist that the order would result in Mr. Palmer receiving more than the sixteen-milligram maximum daily dosage for hydromorphone. The Togus VA hospitalist manually overrode the alert. On April 7, 2020, Mr. Palmer received a total of sixteen milligrams of IV hydromorphone.
On April 8, 2020, Mr. Palmer received a total of twenty milligrams of IV hydromorphone. On April 8, 2020, at 11:07 PM, a different Togus VA hospitalist ordered thirty milligrams of Oxazepam, a benzodiazepine. Hydromorphone and Oxazepam have box warnings (formerly known as Black Box Warnings) specifically warning that the use of benzodiazepines and opioids together may result in profound sedation, respiratory depression, coma, and death. Box warnings are the highest safety-related warning that the Food and Drug Administration assigns to medications. On April 9, 2020, at 12:12 AM, Mr. Palmer received thirty milligrams of Oxazepam.
On April 9, 2020, at 01:58 AM and again at 04:12 AM, Mr. Palmer received two additional doses of IV hydromorphone (two milligrams each). On April 9, 2020, at 12:10 AM, Mr. Palmer’s oxygen saturation level was 90%. After receiving both IV hydromorphone and Oxazepam early on April 9, 2020, Mr. Palmer’s blood pressure dropped: at 12:10 AM, it was 172/84; at 02:06 AM, it was 109/71; at 04:21 AM, it was 103/62. During the time he was treated at the Togus VA, Mr. Palmer was admitted to 4 South, a fourteen-bed overflow medical-surgical unit and did not have access to continuous vital sign monitoring.
On April 9, 2020, at 05:35 AM, Mr. Palmer was found not breathing and his heart was in asystole. The administered overdose of opioids (hydromorphone) in combination with a benzodiazepine (Oxazepam) caused Mr. Palmer to experience a respiratory driven cardiac arrest. His providers performed CPR until his pulse returned. Four minutes after his pulse returned, Mr. Palmer was intubated. After he was resuscitated, Mr. Palmer was transferred to Maine Medical Center (“MMC”) in Portland on April 9, 2020.
When he arrived at MMC, Mr. Palmer was diagnosed with “[c]ardiac arrest most likely secondary to hypoxia from respiratory arrest following receiving high doses of benzos/opiates [sic].” After Mr. Palmer was transferred from the Togus VA to MMC, medical providers at MMC induced therapeutic hypothermia to attempt to reduce brain cell damage. Because of COVID-19 restrictions, no family members, including Mrs. Palmer, were permitted to see Mr. Palmer on April 9, 2020, or any day thereafter with one exception.
As of April 28, 2020, Mr. Palmer’s cognitive state worsened as he was not able to follow commands and displayed only minimal withdrawal to painful stimuli. Because of this decline, Mrs. Palmer was permitted to see Mr. Palmer for the first time since he had been admitted to the Togus VA and subsequently MMC. She held his hand and talked to him. While she was at MMC, the attending physician met with Mrs. Palmer to discuss Mr. Palmer’s goals of care and explained that his “[c]hance of recovery seem[ed] poor given [the] lack of brainstem reflexes.”
On April 29, 2020, Mrs. Palmer consented to move Mr. Palmer to hospice. On April 30, 2020, Mrs. Palmer agreed to a Do Not Resuscitate order. On that same day, Mr. Palmer was transferred to Hospice of Southern Maine nursing care and passed away the same afternoon.
The federal judge stated in her April 23, 2025 Findings of Fact and Conclusions of Law, “The Government concedes liability and economic damages, leaving for decision only those damages for Mrs. Palmer’s loss of the society, comfort, and companionship of Mr. Palmer and Mr. Palmer’s conscious pain and suffering … While it is true that Mr. Palmer was treated with pain medication such that his physical pain was neither severe nor enduring, the concept of conscious suffering includes more than just physical pain but also the mental anguish that accompanies the realities of the injury. Prior to entering the Togus VA for abdominal pain and ultimately being rendered unconscious by the Government’s negligence, Mr. Palmer could walk, talk, eat, and engage in all his normal activities of daily life. The next time he regained consciousness, he was at an entirely different hospital, intubated and hooked up to machines in the ICU, and unable to communicate. Mr. Palmer was isolated from Mrs. Palmer and all other family and friends throughout the rest of his conscious life … After careful consideration, I will award Mr. Palmer, though [sic] his estate, $175,000.00 for his conscious pain, suffering and mental anguish.”
“The Government argues the damages award for Mrs. Palmer’s loss of the comfort, society, and companionship of Mr. Palmer should be far below the statutory cap. The Government argues that Mr. Palmer’s life expectancy of eleven more years should cabin the damages compared to a loss of consortium claim for the loss of a younger person. Mrs. Palmer argues limiting her damages because of her and her late husband’s advanced ages would constitute age discrimination and is unfounded on the record showing the couple enjoyed an intimate and companionate relationship. Like all noneconomic damages, loss of consortium damages are “notoriously difficult to quantify.” Havinga v. Crowley Towing & Transp. Co., 24 F.3d 1480, 1484 (1st Cir. 1994). Because of the Government’s negligence, Mrs. Palmer has been and will continue to be deprived of the companionship, comfort, and society of Mr. Palmer. The evidence established that, but for the Government’s negligence, the couple would have continued for eleven more years to enjoy their time together going on walks, taking day trips, celebrating holidays with family, and watching TV. I will award Mrs. Palmer $750,000 for her loss of consortium claim.”
“It is accordingly ORDERED that judgment is awarded to Plaintiff Janet Palmer as personal representative of the Estate of Roy C. Palmer in the amount of $1,380,414.82.”
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