ARVAYO BY AND THROUGH ARVAYO v. United States
| Decision Date | 23 February 1984 |
| Docket Number | No. 82-1611.,82-1611. |
| Citation | 580 F. Supp. 753 |
| Parties | Jose M. ARVAYO, a Minor, By and Through Jose L. ARVAYO and Tina D. Arvayo, Parents and Natural Guardians of Jose M. Arvayo, a Minor, Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Kansas |
Mark B. Hutton, Michaud, Cordry, Michaud, Hutton & Hutton, Wichita, Kan., for plaintiffs.
Aileen S. Castellani, Asst. U.S. Atty., Topeka, Kan., for defendant.
This medical malpractice case has now been fully tried before the Court consistent with the procedures under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), § 2671 et seq. It is alleged that on January 30, 1979, Jose M. Arvayo, then five months of age, sustained severe physical and mental retardation after he contracted bacterial meningitis, as a result of the negligence of the defendant's employee, Dr. Joseph H. DePoe, a family practice physician at McConnell Air Force Base. The government has no objection with regard to the venue or propriety of the parties.
It is apparent that the plaintiff is the victim of the ravages of bacterial meningitis, an inflammation of the meninges. The disease is a medical emergency, and delay in its diagnosis or treatment invites neurological disability or death. While it is not in issue that the plaintiff has suffered significant brain damage, is permanently and totally disabled, and has an IQ of less than 20, some discussion of the disease is necessary. We are dealing here with hemophilis influenzae meningitis. For the purpose of this decision, the disease is simply referred to as bacterial meningitis. Bacterial meningitis is amenable to cure only through the timely use of antibiotics, providing, of course, a proper diagnosis is made. Any delay may permit brain damage, causing death or serious sequelae (after effects), including extensive central nervous system damage and mental retardation.
The classic symptoms of meningitis are fever, headache, vomiting, irritability, anorexia (loss of appetite), and drowsiness progressing to lethargy. Infants between three months and two years of age rarely, however, develop the classic picture of meningitis. Most importantly, the highest incidence of meningitis occurs in infants between three months and two years of age. Further, boys are more susceptible to disease than girls, and there is a higher incidence of the disease in the winter than in other seasons. Consequently, standard medical practice requires that any unexplained febrile illness in an infant should make one suspect bacterial meningitis. Further, because symptoms and signs are less predictable in infants between three months and two years of age, standard medical practice indicates the performance of any combination of diagnostic procedures, including blood tests, chest x-rays, urinalysis, and lumbar puncture, when a patient presents any clinical sign or history of unexplained fever.
A definitive diagnosis of spinal meningitis can be made only by examination of the cerebral spinal fluid (lumbar puncture). Early and accurate diagnosis followed by appropriate therapy has a profound effect on the outcome; consequently, it is best to do the puncture which yields a normal cerebral spinal fluid rather than to miss a diagnosis of meningitis. Any unnecessary delay may make the difference between life and death, or between a brain-damaged or a normal individual. A delay in the initiation of therapy or inadequate treatment can profoundly affect the prognosis—it may change drastically from very good to very poor, with the likelihood of death or serious sequelae.
The plaintiffs claim that the government doctor deviated from standard medical practice and breached the duty of care by failing to diagnose the infant's illness as bacterial meningitis and by failing to timely treat the disease. Plaintiffs contend that the untimely delay in the diagnosis and treatment caused the child's brain damage. For reasons stated and found here, the Court concurs.
The government has raised several substantive defenses, each of which shall be addressed in the course of this decision.
First and paramount, it insists that the treating physician, a competent family practitioner on duty at McConnell Air Force Base in Wichita, Kansas, who received the child for care and treatment, exercised requisite care in all respects. In this, based upon his history taken from the mother, his observations, and findings from physical examinations administered by him, his diagnosis and treatment for an upper respiratory infection (URI) was warranted. This diagnosis, an option taken in his clinical judgment, absolves the physician, and thus the government, as a consequence of the disease process (which incidentally fully erupts within 24 hours of this visit).
The government next suggests, however unfortunate, the child's disease, being sudden and wholly unanticipated, literally FULMINATES to fruition. They are, of course, not responsible in such an event.
Next the government contends that in the course of the child's early care, the treating physicians of St. Joseph Hospital, wherein the child was admitted for care on January 31, 1979, the day following Dr. DePoe's examination and diagnosis, negligently treated the child in that they failed to timely engage the lumbar puncture or to timely treat him with appropriate antibiotics. They further suggest that these physicians negligently occasioned an excess of liquids to be administered in the course of the child's care, which contributed to his cerebral edema and other complications. In this, if the government is in any way at fault, which they deny, they insist an apportionment of fault as relates to the child's ultimate condition and damages must be ascertained under the comparative fault laws of Kansas.
In the course of trial, the government counsel have also urged upon the Court certain statistical data, the substance of which known mortality (10%) or morbidity (30%) in any event is anticipated. The relevancy of any of these statistics escapes the Court, save to remind the practitioner as he receives any infant child for treatment and care, certainly under the circumstances found here, that it is of the utmost importance that the practitioner take care to "rule out" the likelihood of bacterial meningitis. The lesson learned in this case is that the treating physician, here or similarly situated, on receiving such a child for history and care, again similarly situated, is to engage a high level or "index" of suspicion, be it in his history (typically from the mother), his own perception and observation, his examination and findings, all in the interest of ruling out this suspicion. This is the standard of care applicable to this case. Indeed, every physician who testified in this case, including Dr. DePoe, seemingly confirm this standard of care which this Court has imposed upon the government. In the course of these proceedings, being in the nature of the physician's approach to a differential diagnosis, it is agreed that only a lumbar puncture establishes with certainty the presence of the bacterial process. Each of the physicians seemingly concur that, if in the course of the physician's examination he "suspects bacterial meningitis and thinks `tap' — do it!" This axiom is reported only to confirm this Court's appreciation of the necessity of the physicians' understanding of the responsibilities incumbent upon them in the course of an examination of any infant child under the circumstances known in this case.
Returning briefly to the government's reference to certain statistics, it is to note that, given application of the requisite standards by the treating physician, the statistical residuals will be substantially reduced. Beyond this, the data is not persuasive and has been disregarded outright.
Next, the government contends that inasmuch as the plaintiffs failed to timely file their claim, the requisites of the statute of limitations have run, and this case should be dismissed. It appears that the administrative claim per FTCA was mailed by plaintiffs on December 11, 1981, and received by officers at McConnell Air Force Base on December 16, 1981. The Court has previously denied defendant's motion for summary judgment on this issue (Dkt. 18), again took up the government's motion for rehearing, and in the course of that hearing reiterated its findings, overruling the motion as of then awaiting evidence in this case. Now, on hearing the evidence, and hearing none which the Court considers relevant here, the Court again denies defendant's motion with regard to the statute of limitations issue, and in doing so finds that in all respects the plaintiffs' claim was timely filed. A detailed resume of findings and the basis for the Court's conclusions are found in this decision in Section III.
Lastly, the plaintiffs' claim for damages was in the amount of five million dollars. In the course of the discovery process, the plaintiffs amended their claim to the sum of ten million dollars (PTO). The government now complains that plaintiffs are not entitled to amend and are bound by the amount initially claimed. This circumstance was actually brought to the Court's attention at the outset of trial, at which time the issue was reserved pending review of the evidence and receipt of briefs from counsel on the applicable law and/or regulations. In light of the damages assessed in this case, as reviewed and found in Section IV, the issue is moot, and unlike every other issue raised in this most provocative case, is saved for another day!
The mother of the infant plaintiff presented the baby to the military base hospital on January 30, 1979, complaining of a 9-day fever and crankiness. The government physician is perceived by the Court as a well-trained, busy, perhaps too busy, family practitioner who, on January...
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