Perez v. United States (883 F. Supp. 2d 1257, 2012)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

WILLIAM M. HOEVELER, Senior District Judge.

THIS CAUSE was tried before the undersigned without a jury on June 27-30, and July 1, 7, 8, 11-13, 2011. This is a wrongful death case brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., and 28 U.S.C. § 1346(b)(1). Maria Jose Perez filed this action against the United States after the death of her father, Francisco Perez (“Perez”), while he was receiving psychiatric and medical care from the Veterans Administration (‘VA”). Plaintiff alleges that the United States is directly and vicariously liable for the negligence of the VA health care providers, and claims damages of $1,505,701.20 ($1,500,-000 for the loss of her father, plus funeral expenses). The United States asserts that the damages were not proximately caused by negligent acts of its employees.

The Court has reviewed the file in this case, including the more than 4,000 pages of documents and photographs submitted as evidence, and has heard and considered the testimony of the witnesses and the arguments of the parties during the ten days of trial, and hereby enters the following findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). As an initial matter, the Court briefly states the controlling legal principles.

Controlling law

The United States is liable for the negligent conduct of its employees in the same manner and to the same extent as a private individual under like circumstances. 28 U.S.C. § 2674. Florida law governs the question of liability, as the relevant events of this case occurred in Florida.

In Florida, a duty to act — failing which may trigger liability for negligence — is established “when the acts of a defendant in a particular case create a foreseeable zone of risk.” Pate v. Threlkel, 661 So.2d 278, 280 (Fla.1995). It has long been recognized that physicians owe patients a duty to “ ‘use the ordinary skills, means and methods that are recognized as necessary and which are customarily followed in the particular type of case according to the standard of those who are qualified by training and experience to perform similar services in the community or in a similar community.’ ” Sweet v. Sheehan, 932 So.2d 365, 368 (Fla.Dist.Ct.App.2d 2006), quoting Brooks v. Serrano, 209 So.2d 279, 280 (Fla.Dist.Ct.App. 4th 1968). The testimony of witnesses qualified as medical experts assists the Court in discerning the relevant standard of care and whether it was breached, Pate, 661 So.2d at 281, guided by Fla. Stat. § 766.102(1): “the prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.” A breach of the standard of care must be proven by the greater weight of the evidence. Fla. Stat. § 766.102(1).

A plaintiff alleging medical negligence must not only produce evidence that the defendant breached the prevailing standard of care, but also must demonstrate that the damages were “proximately caused” by that breach. Fla. Stat. § 766.102(3)(b); see also, Turner ex rel. Turner v. United States, 514 F.3d 1194, 1203 (11th Cir.2008), citing Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla.1984). Medical negligence must be established to have been “more likely than not” or “probably” the cause of the injury. Cox v. St. Josephs Hospital, 71 So.3d 795, 799 (Fla.2011). In the context of psychiatric care, it has been observed that “the relevant inquiry is not whether [the psychiatrist] had a duty, but whether [he] breached that duty by failing to treat [the patient] in accordance with the standard of care required of him, and if so, whether this failure resulted in [the patient’s] injuries.” Sweet, 932 So.2d at 368.

The Court now turns to the evidence in this case.

FINDINGS OF FACT

In early 2006, Perez, a fifty-three year old veteran, began experiencing paranoid delusions that a religious cult (assisted by local law enforcement and his neighbors) was monitoring him and attempting to kill him and his wife and daughter. On February 13, 2006, Perez went to the VA medical center in Miami, Florida, and informed his primary care physician that he was suffering from extreme anxiety and “paranoia,” and he needed an urgent evaluation by a psychiatrist. Joint PreTrial Stipulation, Uncontested Facts (“Stip.”), ¶ ¶ 8-12. The physician, Dr. Gio Baracco, immediately requested an urgent, i.e., within 24 hours, consultation for Perez with the VA mental health department. Dr. Baracco’s urgent request — sent to Billie Haber of the Oakland Park Outpatient Clinic of the VA — was received approximately one hour later. The VA scheduled the requested appointment within minutes of receiving Dr. Baracco’s request; the appointment was set for February 22, nine days later, with Dr. Gregory Manov. MR 306.

First hospitalization for inpatient psychiatric care

Three days after seeing Dr. Baracco, and still six days before the psychiatric appointment scheduled by the VA, Perez and his wife went to the Emergency Department of the VA Hospital in Miami. Perez arrived at the Emergency Department stating that he was “paranoid” and needed to see a “ ‘eucu’ doctor.” Perez also complained of feeling depressed. MR 1172. Perez told the VA medical staff that he had discovered something about the Catholic church and, because of this discovery, he and his family were in danger. According to Perez, the church ordered his car and home to be bugged by the local police because he knew what was going on by the priests and schoolteachers. He also claimed that the Catholic school which his daughter attended was involved in the conspiracy. “They’re trying to kill me and my family.” Stip. ¶ ¶ 16-19, MR 1168.

Perez was admitted to the hospital that day (February 16) for inpatient psychiatric care and was closely monitored, with a person (referred to as a “1:1 sitter”) assigned to watch him continuously for suicide risk. Stip. ¶ ¶ 12-14, 26, MR 1147-1154. While Perez was hospitalized, several VA physicians noted the extent of Perez’s delusions about the Catholic church. Perez reported that he would give up his life before “they” take his family’s life (recorded by Lourdes Mendoza, MD), and also said that there were demons all around him and “there’s a strong chance that he will be killed” (noted by Heather A. Zacur, MD). Stip. ¶ ¶ 21, 23, MR 1148, 1166. Perez reportedly did not want to discuss the situation that brought him to the hospital because “if I talk my family is in danger” (recorded by Lina T. Ramos, MD), and he believed that he would be dead within the next few weeks, “killed by someone or self to prevent harm to family” (noted by Salim I. Dib, MD). Stip. ¶ ¶ 24, 25, MR 1142, MR 1158. Perez also exhibited “hopeless behavior,” with a restricted to blunted affect, and limited insight or judgment; for example, Perez reportedly denied that he felt hopeless, but stated: “I don’t want to be here they are going to kill me anyway” (recorded by Richard Douyon, MD). MR 1125-1126.

The VA records reveal that, in addition to his psychiatric care needs, Perez also had several ongoing medical issues for which he had been receiving care from the VA for many years. For example, Perez had been diagnosed in 1989 as HIV-positive, Trial Testimony of Sandra Perez (“Tr. (S. Perez)”), June 27, p. 104, and in the months prior to the start of his delusions, Perez reportedly was not compliant with his prescribed HIV-related medications.

During this hospitalization, Perez was diagnosed by the VA with depression, psychosis, paranoid delusions, and suicidal thoughts. Stip. ¶ 13; MR 1126, 1166, 1168. The VA’s records from this hospital admission also noted Perez’s history of “paranoid schyzophrenia [sic].” MR 1154-57. Perez’s delusions were noted as likely related to HIV/AIDS or alcohol abuse, with the symptoms likely related to an underlying organic cause. MR 1151-1152. It was noted that Perez had a history of alcohol abuse and had been drinking twelve beers daily but recently reduced the quantity he was consuming because he wanted to be alert when “they come for him.” MR 1166. At the time of his discharge on February 19, 2006, hospital staff observed that Perez’s delusions were “less paranoid.” MR 1116.

When he was discharged, Perez was given a prescription for 100 mg of Seroquel (also known as Quetiapine), an antipsychotic medication, to be taken “at bedtime for nerves.” Plaintiffs Ex. 66: USA-70, MR 1117-1118. Perez was advised to be compliant with his medications, and to attend the appointment which had been scheduled previously with Dr. Manov; he also was told to report to the hospital if he had any suicidal thoughts. MR 1115-1118.

First appointment with Dr. Manov

On February 22, 2006, three days after Perez was discharged from inpatient care, Perez had his first appointment, as previously scheduled, with Dr. Manov, a staff psychiatrist working at the VA’s Oakland Park Outpatient Clinic in Broward County, Florida. MR 1108-1110. The record of this appointment prepared by Dr. Manov, found in the “Progress Notes” in the VA medical records, indicates that he saw Perez for fifty minutes for medication management and psychotherapy in treatment of his “delusional disorder.” MR 1108.

Sandra Perez attended this appointment with her husband, and testified at trial that they were “rushed in and rushed out” and Dr. Manov “didn’t seem very interested in what [Perez] had to say.” Tr. (S. Perez) June 27, pp. 111-112. The parties have stipulated that at this appointment Dr. Manov did not review Perez’s entire medical record from his recent VA hospital admission for inpatient psychiatric care. Stip. ¶ 28. At trial, Dr. Manov acknowledged that he could have reviewed Perez’s record on the VA computer system, as a patient’s medical and medication history “pops up” at his computer automatically after Dr. Manov requests the information. Tr. (Manov) June 29, pp. 40-41.

At this appointment, Dr. Manov concluded that Perez suffered from an elaborate delusional system; his delusions included, in Dr. Manov’s words: a “satanie sect in the roman catholic church, the teacher in his daughter’s school is a girl he new [sic] 25 years ago, he is followed in unmarked cars by the police, etc.” MR 1101. Dr. Manov noted that Perez “does not have any plans of hurting anybody, including himself, but very concerned they are after him.” Id. At trial, Dr. Manov testified that he diagnosed Perez with a delusional disorder instead of a schizoaffective disorder because Perez did not meet all the criteria of schizophrenia, as he “didn’t hear voices, [have] hallucinations [and] his affect was not blunted.” Tr. (Manov) June 29, p. 67. Although Dr. Manov diagnosed Perez with a delusional disorder, there is no indication that Dr. Manov made any diagnosis related to the onset of Perez’s delusions at the age of fifty-three without a prior history of mental illness.

After Perez had described his (delusional) concerns, Dr. Manov recommended that Perez view the film “Conspiracy Theory.” Tr. (S. Perez) June 27, p. 112; Tr. (Manov) June 28, p. 173, June 29, p. 75. Dr. Manov testified that it was therapeutic on his part to recommend that Perez watch the movie, in order to see how people develop a delusional system, although Dr. Manov testified that he himself “[didn’t] remember the movie [but knew that] the movie is called Conspiracy Theory, and that’s what the patient had, another conspiracy theory.” Tr. (Manov) June 29, pp. 76,133.

As noted above, during Perez’s recent hospitalization he had been prescribed 100 mg of Seroquel, an antipsychotic medication. Although Perez was a new patient of Dr. Manov, and Perez had only received his first prescription of Seroquel one week before his first appointment with Dr. Manov, the Progress Notes record that Dr. Manov “renewed” Perez’s medications. MR 1108. The VA’s “Medication Profile” as to Perez (a report which records the status of all prescriptions issued to Perez) reveals, however, that although Dr. Manov stated that he had “renewed” Perez’s medications, he did not renew the prescription for 100 mg of Seroquel which had been issued the week before, on February 19, 2006, by a VA hospital-based physician, and which had one refill remaining, but instead Dr. Manov issued a new prescription for 25 mg of Seroquel to be taken three times daily. MR 1108-1109.

In essence, Dr. Manov adopted the decision of the VA hospital-based physician whom had initially prescribed Seroquel to Perez, and then in addition to the existing prescription for 100 mg of Seroquel daily, Dr. Manov prescribed another dosage of 25 mg of Seroquel to be taken three times daily. Thus, when he left the VA on February 22 after this appointment with Dr. Manov, Perez had an active prescription for a total daily dosage of 175 mgs of Seroquel (25 mg three times daily plus 100 mg at bedtime), i.e., nearly double the amount of Seroquel which had been prescribed to him for the first time just the prior week.

Dr. Manov noted in the record that Perez was to return in one month; however, a follow-up appointment was scheduled for March 7, 2006, just two weeks later. The VA canceled that appointment, Stip. ¶ 33, and the record does not reveal that the VA rescheduled the appointment, nor made any attempt to do so, for at least several weeks. Plaintiffs Ex. 6. On March 7, 2006, instead of seeing Dr. Manov (since the VA had canceled that appointment), Perez attended a scheduled appointment with his VA primary care physician, who noted that Perez still had a very elaborated paranoid delusion. MR 1105. Perez then failed to attend his VA appointments on March 29 for a stress test and on April 5 with the radiology department. Plaintiffs Ex. 6.

Second hospitalization for inpatient psychiatric care

On April 7, 2006, approximately six weeks after seeing Dr. Manov and less than two months after being discharged from inpatient psychiatric care, Perez was again hospitalized for psychiatric care. Perez had called his wife at work that day to tell her goodbye because, as he told her, that was the day that he would be killed. Tr. (S. Perez) June 27, p. 113. She then called the police, and officers from the Police Department of the City of Davie, Florida, took Perez to Memorial Regional Hospital in Hollywood, Florida, where he was involuntarily committed pursuant to Fla. Stat. § 394.467 (the “Baker Act”) for psychiatric care in a “lock-down” unit. Stip. ¶ 34. At the time of this admission, Perez believed that his home was being monitored by listening devices and that the neighborhood cops were out to get him. Plaintiffs Ex. 1, MHW18, 89. According to the law enforcement report which initiated the involuntary hospitalization, Perez refused to be admitted voluntarily, and there was a substantial likelihood that without care or treatment he would cause serious bodily harm to himself or others. Perez reportedly said that he would be kidnapped by the cult and was going to die, and admitted that he had been drinking. Plaintiffs Ex. 1, MHW 119.

Upon admission, Perez was diagnosed by David Flaherty, DO, as having a schizoaffective disorder and being alcohol dependent, Plaintiffs Ex. 1, MHW 20, and during this hospitalization Perez was diagnosed with a major depression disorder. Plaintiffs Ex. 1 MHW 13-14,19-21. When Perez was discharged from Memorial Regional Hospital on April 11, 2006, he was considered to have a schizoaffective illness with psychosis and alcohol dependence. Perez was sent home with a prescription for 10 mg daily of Abilify (also known as Aripiprazole), an atypical antidepressant used as an antipsychotic, and 150 mg daily of Wellbutrin XL (also known as Buproprion), an antidepressant; the hospital reeords state that medication management was to be continued with Dr. Manov at the VA. Plaintiffs Ex. 1, MWH 19-21.

Second and third appointments with Dr. Manov

On April 13, 2006, Dr. Manov saw Perez for a second appointment, scheduled at the request of Memorial Hospital upon his discharge two days earlier. At this appointment, Dr. Manov did not review Perez’s entire medical records from the two recent hospital admissions for psychiatric care. Stip. ¶ 36. According to Dr. Manov’s brief notes of this appointment — which are strikingly similar to the notes he recorded in February, he spent 25 minutes with Perez. MR 1102. The record of this appointment on April 13 includes the same typographical errors found in the February report, e.g., that Perez drank “twio beers last night,” and only adds a few words at the beginning of the report: Perez had been “Baker acted ... on abilify and wellbutrin, doing somewhat better.” MR 1102. Sandra Perez also attended this appointment with her husband and testified that it was “very much like the first [appointment with Dr. Manov], ten or 15 minutes in length,” that Dr. Manov did not appreciate what Perez was experiencing, and Dr. Manov’s treatment was “horrible.” Tr. (S. Perez) June 27, pp. 114,160.

As he had done at Perez’s first appointment, Dr. Manov again adopted the medication choices of the hospital-based physicians whom had recently treated Perez. Dr. Manov issued new prescriptions for Ability and Wellbutrin XL, and, although Perez had only received his first prescriptions of these medications several days earlier, Dr. Manov decided to double the dosage of Ability which had been prescribed at the hospital (from 10 mg daily, to 10 mg twice daily). There is no indication in the record as to the reason for this increase. Dr. Manov prescribed Wellbutrin XL at the same level that had been prescribed at the hospital the prior week, and also stated that he was renewing Perez’s other medications. MR 1102. The record reveals, however, that Dr. Manov only renewed the prescription for 25 mg of Seroquel (three times daily) that he had prescribed the prior month (which did not need to be renewed because refills remained), and did not renew the prescription for 100 mg of Seroquel (at bedtime). There is no statement in the record explaining this decision.

Perez apparently elected to refill the previous — and still active — prescription for 100 mg of Seroquel, and also filled the new prescription for 25 mg of Seroquel; therefore, Perez left the VA Clinic that day with a total of 175 mg of Seroquel — nearly double the amount he had been prescribed just one month earlier. As of this appointment, Perez had active prescriptions for an antidepressant (Wellbutrin XL), and two different antipsychotic medications (Seroquel and Ability).

Again, despite a note by Dr. Manov that Perez should return in one month, an appointment was scheduled for Perez to see Dr. Manov two weeks later, on April 28, 2006. Perez cancelled that appointment and scheduled an appointment for May 12, 2006, i.e., Perez scheduled an appointment for one month after the April 13 appointment.

At this next 25 minute appointment with Dr. Manov (Perez’s third appointment with Dr. Manov), Dr. Manov again recorded that Perez was “very concerned that they are after him” and that he didn’t want to return to Miami. Stip. ¶ 41. The majority of Dr. Manov’s recorded observations of this May 12 appointment are identical to his notes of the two prior appointments with Perez, e.g., he again reports that Perez is on Ability and Wellbutrin XL and “doing somewhat better.” MR1099-1100. He records that Perez has a clear elaborate coherent delusional system and adds a new observation: Perez’s “plan is to stay with the object of his erotomanic delusion after the, divorce and selling the house.” MR 1100. Despite Perez’s ongoing delusions, the Progress Notes relating to this appointment note that the patient was “assessed to be competent at medication administration and can self administer medications.” MR 1102.

Dr. Manov recorded that he renewed Perez’s prescriptions for Wellbutrin XL and Abilify — but instead of renewing the prescribed dosage of 10 mg of Abilify taken twice daily, Dr. Manov replaced that prescription with a new prescription at an increased dosage: 30 mg taken twice daily. The total daily amount of Abilify which was prescribed to Perez at this time was six times the amount which had been prescribed to him during his hospitalization the prior month. Dr. Manov noted that he had adjusted the medication upward at this appointment, MR 1099, although the record is silent as to why he did so. Perez left this appointment with active prescriptions for an antidepressant (Wellbutrin XL), and two different anti-psychotic medications (Seroquel and Abilify, and the Abilify was at a newly increased dosage).

This was Perez’s final appointment with Dr. Manov in 2006. Although Dr. Manov’s notes indicate — again, as at the prior two appointments — that Perez should return in one month, neither the VA nor Perez scheduled a follow-up appointment. Stip. ¶ ¶ 42-43. Indeed, Perez was not seen by Dr. Manov or any other psychiatrist or mental health professional at the VA for more than seven months after his May 12, 2006, appointment with Dr. Manov. Stip. ¶ 44. In essence, Perez was abandoned by the VA as to his psychiatric care and left to fend for himself despite his several relatively new prescriptions for psychotropic medications; this abandonment occurred despite Perez’s two recent admissions for inpatient psychiatric care (which included 1:1 care for suicide monitoring) as a result of diagnoses of: schizoaffective illness, psychosis, depression, paranoid delusions, suicidal thoughts, and alcohol dependence.

Third hospitalization for inpatient psychiatric care

On the night of December 30, 2006, Perez and his wife again went to the Emergency Department of the YA Hospital in Miami, where he was admitted for psychiatric care. Stip. ¶45, MR 1082-85. The VA assessed Perez’s condition at the time of this admission as: psychosis, psychosis secondary to HIV, psychosis secondary to substance abuse, and delusional disorder. MR 1081. During this hospitalization, VA staff observed that Perez had “chronic and elaborate suicide ideations which appeared to be overly detailed;” as an example, it was documented that his “plans appeared to involve extensive planning and detailed execution (attaching a knife to steering wheel and crashing vehicle into oncoming traffic so as to obviate safety of airbags).” Stip. ¶ 55, MR 1025. Soon after he was admitted to the hospital, Perez was given several medications to treat his anxiety and agitation, e.g., 15 mg of Olanzapine (also known as Zyprexa), 5 mg of Haldol, etc. MR 1078-1081.

Perez explained that he had not been taking his prescribed medications regularly because he doubted their efficacy. MR 1025. According to Perez, he had attempted to receive his prescribed 25 mg dosage of Seroquel but was given a “lower dosage” that was not working for him. MR 1079. Perez stated that he was at the hospital only because “my wife thinks I am crazy.” MR 1079. VA staff recorded that Perez had a disorganized thought process with paranoid (religious, persecutory) content, and poor insight and judgment; staff also noted that Perez planned to divorce his wife (to whom he had been married for eighteen years) because he wanted to pursue another woman he believed he had been meant to be with, according to a prophecy written by his “god father” that he read a long time ago. Mrs. Perez testified at trial that Perez’s delusion about this woman (whom apparently did not exist) compelled him to spray-paint giant hearts on the lawn of their backyard because he believed that the woman flew over the house and could see them from the air. Tr. (S. Perez) June 27, pp. 119— 120.

Similar to his earlier psychiatric hospitalization at the VA, several staff members noted the specific, extent of Perez’s persecutory delusions during this hospitalization. Perez said that he was being followed by a cult that he had only been aware of for the past three years (reported to Lester P. Hartswick, MD), MR 1063, and that the “cult is after me” and wants “to kill me” (noted by Helia Ibarra-Pereira, MD), Stip. ¶ ¶ 46, 47, MR 1079. Perez was depressed and felt that things were coming to a conclusion when they would come for him and his family, Stip. ¶ 49, MR 1064, and that his family “was being set up to be killed” (noted by Astra M. Remy-Calixte, MSW), Stip. ¶ 50. He expressed concern and said that he would “take [the cult] out before they harm my family” (as reported to Richard M. Dreize, MD). Stip. ¶ 57, MR 1005. Mrs. Perez and her daughter (the Plaintiff) had been interviewed at the hospital and reported that Perez had told them “I will kill you myself so that you don’t suffer” (recorded by Helia Ibarra-Pereira, MD). MR 1079. Perez confirmed some of the details reported by his family, MR 1064, and said that he thought it would be best to kill his family to save them from the cult, but that he did not have the “guts” to do it (noted by Lester P. Hartswick, MD), Stip. ¶ 52, MR 1052.

Approximately one week after being admitted to the hospital, Moraima Trujillo, MD, noted that Perez was still psychotic but he did not have a current suicidal or homicidal intent or plan; he reportedly “ruminates about how he could do those things, but has no plans to carry them out.” MR 1024. Despite being given several psychotropic medications during the first week of this hospitalization, Perez continued to experience paranoid delusions, Stip. ¶ 58, MR 969-72, reporting that he felt safe at the hospital but vulnerable when he was at home, Stip. ¶ 53. He continued to worry about his family and what the cult could do to them. Stip. ¶ ¶ 56, 58. After two weeks in the hospital, Perez was still worried about the cult, noting that he did not trust his neighbor (purportedly a member of the cult), and also that he was being “spied upon” by government agents. Stip. ¶ ¶ 63, 65, MR 970, 983. Despite Perez’s repeated denial of any suicidal or homicidal ideations, VA hospital-based psychiatrists continued to conclude, until January 16, that Perez required 24-hour nursing care in a secured, locked unit, and that he could not be safely treated in a less restrictive environment. MR 952-954.

According to the hospital records, on January 16, Perez had been prescribed two antipsychotic medications: 20 mg of Olanzapine (also known as Zyprexa) and two dosages of Risperidone (a 1 mg tablet, half of which to be taken twice daily, and a 25 mg long-acting injection to be taken every 2 weeks — the next injection was scheduled for January 30); an anti-anxiety medication: 1 mg of Clonazepam (also known as Klonopin), and an antidepressant: 150 mg of Wellbutrin XL (150 mg). MR 936-937. Each of these was issued with only a single month’s dosage, which was distributed before Perez’s discharge, so there were no refills available when he left the hospital. Shortly before Perez was to be discharged, Dr. Trujillo also issued to Perez a prescription for a 25 mg injection of a long-acting form of Risperidone, with three refills available, so that Perez “will not decompensate due to noncompliance with oral medications.” MR 954-955. The VA’s Medication Profile also reveals that, at the time he was discharged, Perez still had an active prescription for Ability (30 mg dosage, taken twice daily) and Wellbutrin XL — both prescriptions had refills available. Plaintiffs Ex. 66: USA-45-46.

When he was discharged on January 18, his diagnosis was depression and psychosis. The Final Discharge Note, dated January 18, states that “outpatient treatment will be arranged to continue to manage” Perez’s condition, and an appointment was scheduled for February 6 with Dr. Manov. MR 931-936.

While Perez was hospitalized, the VA accepted Perez into its Mental Health Intensive Case Management (“MHICM”) program and assigned a social worker, William Scheer, to be Perez’s MHICM ease manager upon his discharge from the hospital. Stip. ¶ ¶ 66-67. Mr. Scheer began visiting with Perez in the hospital on January 16, 2007, and drove Perez home two days later. MR 926, 947-948.

Fourth and final appointment with Dr. Manov

At Perez’s appointment on February 6, 2007 — his first appointment with Dr. Manov since May 12, 2006, and what would be his only appointment in 2007 — Dr. Manov noted that Perez was still delusional, had an inappropriate affect, little insight, and poor judgment. MR 914. Although Perez had just been released less than three weeks earlier from his third in-patient psychiatric admission in ten months, Dr. Manov saw Perez for only 25 minutes, then dismissed him with instructions to return for an appointment in six months. Dr. Manov testified that he recommended that Perez did not need to be seen for six months because “[ajccording to [Perez], everything was going okay” and a monthly appointment was not needed because it would not be “logical for me to see a man that everybody was satisfied with what he’s doing.” Tr. (Manov) June 28, pp. 185-187. At trial, Dr. Manov acknowledged that Perez’s elaborate suicide plan discussed during his recent hospitalization — which Dr. Manov claimed he was not aware of — was certainly a “classic red flag of being suicidal” at that time. Tr. (Manov) June 28, p. 183.

At this final appointment, Dr. Manov noted the psychotropic medications currently prescribed to Perez: Risperidone, Olanzapine, Clonazepam, and Wellbutrin XL. MR 913. Dr. Manov again adopted the decisions of the hospital-based physicians regarding the medications to prescribed to Perez, and issued new prescriptions to Perez for Risperidone, Olanzapine, and Clonazepam, in the dosages prescribed at the hospital the prior month, and added these to Perez’s existing medications. Dr. Manov renew the prescription for Wellbutrin XL, but he did not renew the prescription for 30 mg of Abilify twice daily (Perez had not filled that prescription since the day it was prescribed, May 12, 2006). Dr. Manov also again reported that “patient is assessed to be competent at medication administration and can self administer medications” and noted that Perez was “[flaking his meds with no side effects.” MR 914-915.

At the conclusion of this appointment, Perez had active prescriptions for an antidepressant, a newly prescribed anti-anxiety medication (Clonazepam), and three antipsychotic medications (including a newly prescribed 20 mg of Olanzapine twice daily). Dr. Manov told Perez that he did not need to return for six months, even though Dr. Manov’s notes indicate that he considered the efficacy of the prescribed medications to be only “fair.” MR 913-915. Ultimately, Dr. Manov did not see Perez for the next fourteen months. Perez again was left alone to manage his own psychiatric care despite having a diagnosis of delusional disorder with paranoia and depression, and having been prescribed multiple psychotropic medications — including three medications that were recently added (Risperidone, Olanzapine, and Clonazepam).

Mental Health Intensive Case Management (“MHICM”) program

As noted above, Perez was admitted to the MHICM Program during his January 2007 hospitalization, and William Mr. Scheer was assigned as Perez’s case manager. Stip. ¶ 66-68. Prior to providing care to Perez, Mr. Scheer did not review Perez’s entire medical record from his three prior mental health hospitalizations, nor did Mr. Scheer review those records at any time while Perez was in the MHICM program. Stip. ¶ 70. Mr. Scheer did not know about Perez’s suicidal ideations, his delusions about the Catholic church, or his belief that neighbors were spying on him, and Mr. Scheer also never spoke to Dr. Manov about Perez during the time that Perez was in the MHICM program. Tr. (Scheer) June 28, pp. 39-42. (Although the MHICM program had an assigned psychiatrist, there is no evidence that Perez’s care was switched from Dr. Manov to a MHICM psychiatrist. Tr. (Scheer) June 28, pp. 42-43, 86, 137.) Mr. Scheer admitted at trial that there were several warning signs that he would have seen in the recorded notes of Perez’s history, if he had reviewed those notes, including a prior suicide plan as a clear sign of risk, and other possible signs of risk including alcohol abuse, a chronic illness (HIV), and mental illness. Tr. (Scheer) June 28, pp. 135-137.

The VA’s records reveal that Mr. Scheer visited Perez at his home a total of approximately seventeen times, with the majority of visits occurring during the two months immediately after Perez was discharged from the hospital in January 2007. Plaintiffs Exs. 73, 77, 78, 79. Mr. Scheer testified at trial that he did not believe that Perez was abusing alcohol while he was being cared for in the MHICM program, and on only one visit to his home did Mr. Scheer witness Perez drinking a beer. Tr. (Scheer) June 28, p. 133. Mr. Scheer also testified, consistent with his recorded notes from January through April 2007, that Perez generally was compliant with his medications while in the MHICM program. Tr. (Scheer) June 28, pp. 25, 64. Mr. Scheer stated that he did not only rely on Perez’s self-reporting that he was taking his medications, but would also review the VA’s computerized medication records and if he noticed that the person was not obtaining their refills he would talk to them and encourage them to take their medications. Tr. (Scheer) June 28, pp. 54-55. According to Mr. Scheer’s notes of a discussion on February 14, 2007, Perez inquired about receiving a long-acting injection of antipsychotic medication, as an alternative to his other medications; Mr. Scheer also noted, on other occasions, that Sandra Perez had inquired about such an injection being administered to her husband. Tr. (Scheer) June 28, pp. 74, 86. (Perez had received his first such injection on January 17, 2007, while he was hospitalized, and was to have had another injection two weeks thereafter. Several refills of this prescribed injection were available to Perez while he was in the MHICM program. Plaintiffs Ex. 66: USA-71.)

Mr. Scheer testified that, on one occasion, Perez said that he did not need to see a psychiatrist and he no longer needed the MHICM program, but none of Mr. Scheer’s later records report that Perez refused to see a psychiatrist; moreover, the notes of Mr. Scheer’s meetings and conversations with Perez reveal a ongoing need for psychiatric care for Perez’s recurring delusions. There is some evidence that Perez was not enthusiastic about remaining in the MHICM program, e.g., Mr. Scheer noted in March 2007 that Perez felt he would no longer need to remain in the MHICM program after he divorced his wife, Tr. (Scheer) June 28, p. 89, and in April 2007 Perez again said he would not be needing the help of the MHICM program, Tr. (Scheer) June 28, p. 92, but the evidence does not establish that Perez withdrew from the program on his own. The VA continued to include Perez in the MHICM program, visiting him at home approximately monthly in April, May, and June.

In July 2007, Perez was hospitalized for surgery to remove a tumor on his lung; during that hospitalization, Perez required psychiatric care for delusions, hallucinations, and violent behavior. See infra. Perez continued to see Mr. Scheer during that hospitalization, and after Perez was released from the hospital in August; Mr. Scheer visited Perez twice before the VA discontinued Perez’s participation in the MHICM program. During one of those visits, Perez requested a renewal of Clonazepam to help him to sleep. Tr. (Scheer) June 28, pp. 109, 141. Mr. Scheer’s final visit with Perez, on August 30, 2007, marked the end of seven months that Perez had been in the MHICM program. Stip. ¶ ¶ 69, 72, 78.

The decision to discharge Perez from the MHICM program was made despite Mr. Scheer’s update to Perez’s treatment plan, dated August 8, which indicated that Perez’s problems had not been resolved and he needed to continue with weekly monitoring visits. Stip. ¶ 71, MR 911-913. Moreover, as noted above, Perez had received hospital-based psychiatric care for delusions and violent behavior as recently as one month prior to being discharged from the MHICM program.

Mr. Scheer did not do a discharge summary; in fact, no discharge papers were recorded when Perez was discharged from the MCHIM program, Stip. ¶ 73; Mr. Scheer testified that he sent a handwritten document to Connecticut (the document is not part of the record), and that he wanted to keep the door open for Perez to return to the program. Tr. (Scheer) June 28, pp. 14-15. The evidence established that the VA made the decision to terminate Perez’s participation in the program, and not that Perez himself withdrew from the program. No ongoing care was scheduled for Perez by the VA after discharging Perez from the MHICM program.

Surgery at VA

Perez was admitted to the VA Hospital in Miami on July 9, 2007, for surgery to remove a tumor on his lung, which resulted in the removal of the right lower lobe of his lung (a pulmonectomy). MR 207. During this hospitalization, Perez had hallucinations, delirium, and delusions — reportedly related to-the pain medications. VA physicians noted Perez’s delusional disorder, MR 420, and reported that an underlying psychiatric disease affected Perez’s threshold for delirium, MR 651.

The record reveals that Perez was violently combative and had to be placed in restraints after he tore drapes and threw a cell phone at a nurse; for his safety, Perez was assigned a 1:1 sitter, whom he subsequently hit and threatened to kill (i.e., he had a homicidal intent). MR 626-628, 653-659. He remained in the hospital for another three weeks after these episodes of violence, receiving psychiatric care — the sitter remained assigned to him for several days until he was no longer agitated, along with medical care, and finally was discharged on August 6, 2007.

During this hospitalization, Perez was given Olanzapine and Risperidone, among other medications, and it was noted that the VA would “follow up with primary psychiatrist for evaluation of medication effect and possible dose adjustments,” but there is no record that such action took place. MR 626-628. According to the Discharge Instructions, which the Court presumes were given to Perez at the time, Perez was told that appointments needed to be scheduled with the cardiothoracic surgery clinic and that he needed to continue taking his Coumadin and see his “primary care provider,” Nurse Heitman for blood testing. MR 206-209, MR 419-420. The notes are silent, however, as to any appointments for psychiatric care, despite the fact that the Discharge Note from the pharmacy indicates that Perez was being sent home with prescriptions for two antipsychotic medications: 10 mg of Olanzapine twice daily (a reduction from the 20 mg of Olanzapine twice daily prescribed by Dr. Manov the prior year), and Risperidone (1 mg tablets, half of which to be taken twice daily), — both of these prescriptions were provided with one refill; he already had a prescribed antidepressant (150 mg of Wellbutrin XL daily). MR 41H12.

Scheduling of VA appointments

Defendant urged this Court to find that Perez was noncompliant with scheduled appointments for psychiatric care at the VA, but the record does not support such a finding. Indeed, the VA itself cancelled Perez’s first follow-up appointment (for March 7, 2006) and made no effort to reschedule the appointment that Dr. Manov had indicated should have been set for one month after the initial appointment in February. Perez was hospitalized on April 7, and after his discharge, he saw Dr. Manov at an appointment on April 13. When an appointment was scheduled for shortly after this second session with Dr. Manov, Perez rescheduled the appointment — in compliance with Dr. Manov’s recommendation that Perez be seen for a follow up appointment in one month, i.e., Perez was next seen at an appointment on May 12. After May 12, the VA failed to schedule any appointment or make any attempt to do so, despite Dr. Manov’s indication that a follow-up take place in one month. The record reveals that Perez did not initiate the scheduling of an appointment at this time, but this single incident is not evidence that Perez generally was non-compliant with scheduled appointments.

In 2007, Perez saw Dr. Manov on February 6, shortly after Perez was discharged from the VA hospital (where he had been receiving intensive psychiatric care for three weeks). Dr. Manov told Perez to return in six months, and the VA placed Perez into a “recall” status, according to which the VA would contact the patient by letter as the sixth month approached, and ask the patient to call the VA to schedule an appointment. Tr. (Haber) July 1, p. 129. According to the Defendant, two letters were sent to Perez requesting him to schedule an appointment with Dr. Manov; the letters reportedly were sent on July 4 and August 13, 2007, but copies were not produced as evidence. A notation in the record states that the letters were sent and that a phone call was made to Perez on September 7; the record also reveals that Dr. Manov was notified of this non-response from Perez, and he admitted at trial that he received this notice. MR 368, Tr. (Manov) June 29, p. 100. Despite the VA’s claimed difficulty in locating Perez, VA records reveal that Perez was hospitalized at the VA from July 9 through August 6, 2007 (for lung surgery) and also was seen by other departments of the VA for medical care on at least eight occasions over the next two months (August 9, 13, 16, 23, 28, 30, September 6, 20). Plaintiffs Ex. 6.

When Perez was discharged from the hospital on August 6, he was sent home with prescriptions for two psychotropic medications; however, the VA failed to schedule an appointment for Perez to see Dr. Manov for medication management or psychiatric care — despite a notation that the VA would do so. Perez continued to be seen by Mr. Scheer, in the MHICM program, for three more weeks after Perez left the hospital, until the end of August 2007, and upon his discharge from the MHICM program the VA did not schedule any appointments for Perez to receive psychiatric care with Dr. Manov — or anyone else. There also was no evidence that Perez was ever told by the staff of the MHICM program that he should schedule an appointment with Dr. Manov.

From September 2007 through January 2008, on at least a monthly basis, Perez continued to keep appointments with other medical departments of the VA, including at a clinic he regularly visited regarding his HIV — related medications. The Court finds that Perez’s willingness to attend to other medical needs and to keep appointments with other departments of the VA medical system indicates, at a minimum, that Perez might have been willing to attend properly scheduled appointments for mental health care.

Other care provided to Perez

Brenda Heitman, an Advanced Registered Nurse Practitioner (ARNP), was employed by the VA at the Oakland Park Outpatient Clinic (“Clinic”) during the time that Perez was receiving care at the Clinic. Her primary duty was to treat patients with HIV or AIDS; for example, she assisted patients, including Perez, with their HIV — related medications. Tr. (Heitman) July 7, pp. 4, 9-10, 13-15, 65. According to Nurse Heitman, Perez regularly appeared for his appointments at the Clinic to have his blood tested and also spoke with the pharmacist frequently, as the pharmacist was responsible for monitoring his blood clotting factors while he was taking a prescription blood thinner after his lung surgery in July 2007. Tr. (Heitman) July 7, pp. 16, 72, 87-88.

Nurse Heitman met with Perez at least monthly after his discharge from the MHICM program in August 2007 and continuing until January 2008. On two of those occasions when Perez saw Nurse Heitman during this period, on August 30 and October 4, 2007, Perez was given a screening test for depression, which revealed that he was depressed. MR 386, MR 364, Tr. (Heitman) July 7, pp. 32-33.

On August 30, Perez was not only depressed, but also appears to have demonstrated some insight or awareness of his mental illness — unlike other occasions when it was noted that he did not feel that he needed psychiatric care; for example, he requested a renewal of his psychotropic medications when he saw Nurse Heitman (he apparently did not have the required form in order to request a renewal). MR 380, Tr. (Heitman) July 7, p. 28. At that appointment, she recorded that Perez was on Risperidone, Wellbutrin, and Olanzapine, and was being “[tjreated by psychiatry” and “currently on medication for depression.” MR 381, 386. (Apparently Nurse Heitman did not know that the VA was terminating Perez’s participation in the MHICM program at this same time, nor did she check the records to see that Perez had only sporadically been receiving his antidepressant.) The VA’s record is silent as to why the requested renewals were never ordered. Plaintiffs Ex. 66. At trial, Nurse Heitman testified that Perez “knew” the process for seeking renewals, and that he knew that he could see Dr. Manov to get a renewal, or he could go to the pharmacist and ask the pharmacist to talk to Dr. Manov to order a renewal, Tr. (Heitman) July 7, pp. 29-30, but that day Perez, who was observed to be depressed, had specifically asked Nurse Heitman for assistance with his renewals and she did not document that she provided any assistance. At trial, she said that she told Perez to see the pharmacist. Tr. (Heitman) July 7, p. 28.

When Perez was seen at the Clinic on October 4, 2007, he reported to Nurse Heitman that he felt “down, depressed or hopeless” and had little interest or pleasure in doing activities on more than half of the days. MR 364. Nurse Heitman did not refer Perez for a psychiatric consult on this date, and instead simply noted that Perez “is currently being followed in a Mental Health clinic for depression,” MR 364, even though Perez had been discharged from the MHICM program six weeks earlier, and had not seen Dr. Manov in the past eight months — which was evident from the records.

The notes of this visit include the computer-generated list of “Active and Recently Expired Outpatient Medications,” which reveals that there were two refills remaining of Wellbutrin XL, only one refill available for Risperidone tablets, and no refills remaining for Olanzapine 10 mg; the list also reveals that Perez had not received the long-acting injection of Risperidone since February 6, 2007 (eleven refills remained). MR 358-364, Tr. (Heitman) July 7, p. 43. The prescriptions for all other psychotropic medications which at one time had been prescribed to Perez (Abilify, Seroquel, Clonazepam, and Olanzapine in 20 mg dosage), had expired, been discontinued, or had no refills remaining. Plaintiffs Ex. 66. At this appointment in October, Nurse Heitman knew or should have known that the only psychotropic medications prescribed to Perez were Wellbutrin XL and Risperidone. This record demonstrates the VA’s knowledge that Perez was not receiving his psychotropic medications through late 2007 and early 2008; at that time, the VA failed to either issue new prescriptions or renew existing prescriptions (Perez had no refills remaining for Olanzapine 10 mg).

Nurse Heitman admitted that she could have requested a psychiatric consult for Perez at any time if she had realized that Perez was not regularly refilling his prescriptions for psychotropic medications, but claimed that she did not see a need to do so because he had a prior psychiatric consult and they originally had prescribed the medications (and, presumably, were monitoring his care). She also testified (although nothing relevant is recorded in the Progress Notes she prepared on those dates) that she decided not to seek a psychology consult for Perez in either August or October 2007, nor did she decide to contact Dr. Manov, because she believed that Perez was only depressed because he was having trouble breathing and not getting his strength back quickly after his lung surgery. Tr. (Heitman) July 7, pp. 32-33, 43-44, 116. None of Nurse Heitman’s notes of September 6, 2007 (MR 370-375), October 4, 2007 (MR 358-364), and January 17, 2008 (MR 337-343) — the only times he was seen by her after his discharge from the MHICM program in August 2007 and before his visit to the Clinic in April 2008 — record any observations as to Perez’s mental competency.

Nurse Heitman asserted at trial that even if she had requested a consult it did not mean that Perez would have been willing to see the psychiatrist, Tr. (Heitman) July 7, pp. 111-113; however, throughout 2006 and 2007 Nurse Heitman never documented that Perez did not want to see a psychiatrist or take his psychotropic medications, Tr. (Heitman) July 7, p. 21 — indeed Perez himself had requested a refill of those medications from Nurse Heitman in August 2007, but the requested refill was never ordered, nor were any new prescriptions of psychotropic medications ever again issued for Perez. Plaintiffs Ex. 66.

Nurse Heitman saw Perez on January 17, 2008, and noted that Perez was in good spirits and had enjoyed his daughter’s visit over the holidays. MR 337-338. Perez requested a renewal of Temazepam, MR 338, which was issued the following day. Nurse Heitman notes that Perez’s delusional disorder is “Treated by psychiatry, respiradone [sic], bupropium, [sic] olanzapine.” MR 338.

Perez did not visit the VA at all — not even for general medical care — for approximately eight weeks, from January 29 to March 27, 2008. This deviation from his normal pattern of regular visits was also evident the prior year, when Perez absented himself from any care at the VA for twelve weeks immediately prior to his hospitalization for psychiatric care on December 30, 2006. No one from the VA appears to have noticed these absences or taken any steps to ensure that Perez was contacted during those times in an effort to monitor his mental health.

In summary, after Perez was discharged from the MHICM program at the end of August 2007, most of his prescriptions for psychotropic medications expired and were not renewed by the VA, even though Perez visited Nurse Heitman approximately twice per month and, on at least one occasion, requested renewals of his prescriptions. During the last eight months of his life Perez received no antipsychotic medications, and only received three refills of his antidepressant medication before that prescription expired. The VA “treatment” plan for Perez at this time included no appointments scheduled for psychiatric care, no monitoring of his prescriptions for antipsychotic medications, a limited prescription for an antidepressant (the prescription expired, without the VA taking any action, after Perez received his final refill on January 4, 2008), a limited prescription for an antipsychotic (the prescription for the long-acting injection of Risperidone expired in February 2008, without the VA taking any action), no group counseling, no participation in the MHICM program, and no attempt to seek family assistance. When Perez was seen for general medical care by Nurse Heitman and others, no members of the VA staff addressed this lack of psychiatric treatment and care. Without a referral to psychiatric care, Perez was not going to receive any new prescriptions for psychotropic medications nor any renewals of his existing prescriptions for psychotropic medications.

Outpatient Clinic visit on April 3, 2008

On April 3, 2008, Perez made an unscheduled visit to the Clinic. Tr. (Heitman) July 7, pp. 94-95. According to Nurse Heitman, Perez arrived on April 8 with concerns about bruising and bleeding on his arms and also to request medications for erectile dysfunction. Tr. (Heitman) July 7, pp. 38, 99, 103, 119. Perez reported to Nurse Heitman that the cult which had been pursuing him had now infiltrated his home and stolen all of his identification papers, and the FBI was not helping him. Stip. ¶¶ 82-83, MR 330-331. Perez told her that he was worried that the cult also had infiltrated the VA lab and he was not taking his medications because he did not trust the lab results nor the medications he had received by mail, and because he believed that the medications were causing his skin to bleed. MR 320, 329-330. Nurse Heitman recorded that Perez “does not want to be seen by psychiatry or social work and says will walk out if they are contacted.” MR 331.

At trial, Nurse Heitman said Perez’s drop-in visit to the Clinic on April 3 was unique, as she had never previously experienced Perez’s mental health as questionable during any of her visits or communication with him. Tr. (Heitman) July 7, p. 33. She noted that Perez had not followed up with psychiatry and was not taking his “medications ordered,” MR 330-331, Tr. (Heitman), July 7, p. 36, but at trial she admitted that she did not check the notes that day and therefore did not know that Perez had not been seen by Dr. Manov for fourteen months, or that Perez had not been receiving any anti-anxiety or antipsychotic medications and only had received three monthly refills of his antidepressant medication in the past eight months; she also did not know about the delusional girlfriend or, importantly, that Perez had expressed suicidal or homicidal ideations during his four hospitalizations in the prior two years (including a hospitalization only eight months prior to the date of this Clinic visit). Tr. (Heitman) July 7, pp. 36-39. Had she checked the VA’s computer system, she would have seen that all but one of the prescriptions for psychotropic medications had expired several months earlier and had not been renewed by the VA; the only medication currently prescribed to Perez was for Risperidone tablets, and only one month’s refill remained available since he last received the medication in August 2007.

Nurse Heitman called another nurse into the examining room with Perez. Carmina Fogarty, RN, was asked to see if Dr. Manov would come to the clinic to see Perez since he was unwilling to go to the mental health area. Although Perez appeared calm at the time, Nurse Fogarty was not sure what might happen, and called for a VA police security officer. Tr. (Fogarty) July 8, p. 16. Nurse Heitman testified that Dr. Manov was summoned to the clinic to see Perez because Heitman was concerned that Perez wasn’t taking his HIV medications, Tr. (Heitman) July 7, p. 34; however, the records reflect that Nurse Heitman requested an urgent mental health evaluation of Perez because he was “not on psychotropic medications; stopped himself; with delusions of a cult after him.” MR 216-217. Again, the Court notes that at this time Perez only had one prescription which remained active (1 mg Risperidone tablets) and that prescription only had one refill available, so the notation that he had “stopped himself’ is somewhat misleading.

Dr. Manov’s office was approximately 100 feet from Nurse Heitman’s office. Dr. Manov came to the clinic, and then walked back to his office with Perez before escorting Perez down the hallway to the pharmacy. Tr. (Manov) June 29, pp. 104, 126. Dr. Manov later recorded, under the topic “Current Psych Meds” in the VA’s progress note of that psychiatry consultation, that Perez had not been taking any medications “since he believes that the meds are switched by the gang, and the meds cause bleeding in his skin.” Stip. ¶ 84, MR 327. According to his trial testimony, Dr. Manov’s purpose when he was called by Nurse Heitman to see Perez was to help Perez “be compliant with the [HIV] medication.” Tr. (Manov) June 29, pp. 103-104. The Court finds that neither Nurse Heitman nor Dr. Manov were credible when they testified that the primary reason for Dr. Manov to be summoned to the Clinic was because Perez was not taking his HIV medications. Nurse Heitman admitted that prior to that day, she had never seen Perez when he was delusional; she had witnessed him “down” but had attributed that to his difficulty breathing post-surgery on his lung. Tr. (Heitman) July 7, pp. 86-87. Clearly, his appearance and demeanor that day had caused Nurse Heitman to have concerns about his mental health such that she requested an urgent evaluation by the psychiatrist assigned by the VA to care for Perez.

Dr. Manov testified that he spoke with Perez for thirty minutes on April 3, Tr. (Manov) June 29, p. 121, and that Perez had an inappropriate affect, poor insight, poor judgment, and was still convinced of his delusions that a gang was pursuing him. Despite the fourteen months which had passed since Dr. Manov had evaluated Perez, Dr. Manov adopted the same diagnosis as in the past, i.e., that his patient, Perez, was suffering from a delusional disorder. Dr. Manov testified that Perez “didn’t like seeing psychiatrists or social workers due to his paranoid system, but he knew me. He has known me for a long time, so he didn’t mind talking to me on this date.” Tr. (Manov) June 29, p. 105. Dr. Manov clearly considered himself to be Perez’s treating psychiatrist and it is undisputed that the VA was the sole provider of psychiatric treatment for Perez during the final two years of his life.

Dr. Manov noted in the medical record that Perez denied that he would take his own life or that of someone else, Stip. ¶ 87, Tr. (Manov) June 29, pp. 111-112; he asked Perez a set of questions, a “depression screening” required by the VA, to evaluate his mental status and Dr. Manov was satisfied with the results, MR 327-330, Tr. (Manov) June 29, pp. Ill, 120-121. At trial, Dr. Manov asserted that although Perez was not happy about his life, he was not suicidal and he wasn’t “depressed in the sense that he should be grabbed and prevent him from suicide, Baker Act him for eternity.” Tr. (Manov) June 29, p. 121. Dr. Manov recorded that Perez’s current psychotropic medications were Risperidone, Olanzapine, Clonazepam, and Wellbutrin, and that “[n]o changes were made to active outpatient medications.” MR 327, 330. He recorded “n/a” as to the efficacy of current medications and therapy, MR 326-327, and made no changes to Perez’s only active prescription, for Risperidone tablets. MR 330. Dr. Manov noted that he “renewed” the prescription for Risperidone, but he doubted that Perez would take the medication. MR 327-328. (Indeed, the VA’s Medication Profile reveals that Dr. Manov did not issue a new prescription for 1 mg of Risperidone nor did he renew the existing prescription which had been issued while Perez remained in the hospital, and distributed on the same date of issue, August 6, 2007; the prescription had only one refill remaining. Plaintiffs Ex. 66: USA-70.) At trial, Dr. Manov claimed that there was no basis to switch Perez’s medications, or to give him a long-acting injection of antipsychotic medication at that time, as “[ejverything was going the way it was supposed to go.” Tr. (Manov) June 29, pp. 122-123.

Despite Dr. Manov’s assessment that everything was proceeding with Perez’s treatment “the way it was supposed to go,” the record reveals that Perez had no psychotropic medications available to him other than one month’s supply of Risperidone tablets, and he also was reported to have been drinking heavily. Dr. Manov escorted Perez to the pharmacy in an effort to assure Perez that the medication was safe and had not been poisoned by a cult, but did not remain there long enough to discover whether Perez filled or refilled his prescription for Risperidone that day. Tr. (Manov) June 29, pp. 55, 126. Nurse Heitman’s notes indicate that Perez would be on a “drug holiday” and would not take his medications until he returned to the Clinic the following week for his already scheduled immunology appointment. MR 331.

At the end of his consultation with Perez, Dr. Manov concluded that Perez was “[a]lready receiving needed treatment,” MR 330, and Perez was not admitted for inpatient care on that day, Stip. ¶4. Instead, Dr. Manov told Perez to return