713 F.Supp. 341 (D.N.D. 1989), Civ. A2-86-160, Osborn v. United States

Docket Nº:Civ. A2-86-160
Citation:713 F.Supp. 341
Party Name:Osborn v. United States
Case Date:May 24, 1989
Court:United States District Courts, 8th Circuit, District of North Dakota
 
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Page 341

713 F.Supp. 341 (D.N.D. 1989)

Joseph OSBORN and Pamela Osborn, as father and mother and guardians ad litem of Shawna Osborn, Plaintiff,

v.

UNITED STATES of America, Defendant.

Civ. No. A2-86-160.

United States District Court, North Dakota

May 24, 1989

Lembhard G. Howell, Seattle, Wash., Ambrose E. Stanley, Fairfield, Cal., for plaintiff.

Mary McElroy Leach, Trial Atty., Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., Lynn E. Crooks, Asst. U.S. Atty., Gail K. Johnson, Trial Atty., Torts Branch, Civ. Div., U.S. Dept of Justice, Fargo, N.D., for defendant.

MEMORANDUM AND ORDER

BENSON, Senior District Judge.

This is a medical malpractice action against the United States, brought under the Federal Tort Claims Act. See 28 U.S.C. §§ 2671-2680. The minor plaintiff, Shawna Osborn, allegedly sustained severe injuries resulting from the administration of a diptheria, pertussis, and tetanus (DPT) 1 vaccination. The United States is a defendant because Shawna received the vaccination at a United States Air Force immunization clinic in Grand Forks, North Dakota.

The United States has filed a motion to dismiss 2 the case for lack of subject matter jurisdiction on the basis that the plaintiff failed to present a claim to the appropriate federal agency within two years of the accrual of the claim, as required by statute:

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after

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such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

28 U.S.C. § 2401(b). The plaintiff presented the claim to the United States Air Force on October 15, 1985. The vaccine was administered on December 7, 1982.

FACTS

For purpose of the motion, the court assumes the truth of the following facts. Shawna was born March 18, 1981. 3 On June 22, 1981, she received the first of four DPT shots. The second and third shots were administered on August 24, 1981, and October 28, 1981.

On August 7, 1982, Shawna experienced a seizure episode and was seen at Grand Forks Air Force Base (GFAFB) hospital. Shawna had another seizure on September 14, 1982, and was admitted to the GFAFB hospital. On September 15, 1982, a GFAFB hospital nurse witnessed a third seizure. At that point, Shawna was diagnosed as having complex febrile seizures. 4 On October 12, 1982, Shawna underwent an EEG study by Dr. Ross E. Pettit, a private neurologist. The report was normal. On November 1, 1982, Shawna experienced two more febrile seizures and was again hospitalized.

On December 7, 1982, Shawna received a fourth DPT shot at the GFAFB immunization clinic. The shot was administered between 10:00 and 10:30 a.m. Between 11:00 and 11:30 a.m., Shawna experienced a non-febrile seizure. Her mother took Shawna to the GFAFB emergency room and was referred from there to the family practice. There the doctor found that she had apparently recovered from the seizure. Shawna was then taken home. At 12:00 noon, Shawna experienced a grand mal seizure.

In deposition Shawna's mother (Pamela Ann Osborn) described the seizure:

At about 12:00 o'clock she was lying on the couch asleep. She had a, what they call a full-blown grand mal where she arches her back, raises her arms, her face distorts, her eyes roll back in her head. She turns gray, and she proceeds to jerk and jump and make noises as she seizes.

[My husband] grabs her up, and we go back to the emergency room. We see somebody, I don't remember who. They can find nothing wrong, no ear infections, no fever, no fever with either seizure, no fever. Nothing.

Deposition of Pamela Ann Osborn, Vol. I at 126.

At about 7:00 p.m. that same day Shawna experienced a third seizure. Again, her mother described the seizure:

Early in the evening, about 7:00 P.M., Shawna and her dad are playing horsey in the hallway. She collapses to the floor in a seizure. We take her back to the emergency room. They put her in what they call the trauma room. She's on the examination table. She lies there, and she goes into what they call a petit mal seizure, at which time Dr. Billman witnesses the seizure.

She has no fever. They can find nothing else wrong with her. Dr. Erickstad checks her, fills out the emergency room report. We go home later. Those were the first seizures Shawna had with no fever. 5

Id .

Following her non-febrile seizure on December 7, 1982, Shawna was seen by several physicians and was hospitalized on February 16-17, 1983; April 19-20, 1983; and June 20-29, 1983. On January 12, 1983, under the supervision of Dr. Pettit, she was given another EEG study and evaluation.

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This time the report was abnormal. On May 6, 1983, Dr. Bruce Oskol advised Shawna's mother that Shawna was not to get any more DPT vaccine. Dr. Oskol's May 6, 1983 entry on the admission record reads: "Seizure Disorder Not to get any more DPT Vaccine (No pertussis)." Shawna's mother was provided with a copy of the immunization record. A subsequent EEG study and evaluation by Dr. Merle Teetzen on August 16, 1983, again disclosed an abnormality.

Shawna's mother has testified by deposition that she observed a drastic change in Shawna after December 7, 1982. Counsel for the United States asked if she had noticed a change in Shawna's intelligence level:

A (Mrs. Osborn) I first observed her changing around her second birthday, a drastic change in Shawna.

Q (Counsel for the United States) When you mean a drastic change, what are you referring to?

A Prior to December 7th, she could speak four to six word sentences, was, I would consider almost potty trained, you could reason with her, tell her not...

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