Burton v. U.S.

Citation668 F.Supp.2d 86
Decision Date09 November 2009
Docket NumberNo. 05-CV-2214 (RCL).,05-CV-2214 (RCL).
PartiesDoshia Daniels BURTON, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — District of Columbia

Allen T. Eaton, III, The Eaton Law Firm, PLLC, Patrick A. Malone, Patrick Malone & Associates, Washington, DC, for Plaintiffs.

Kathryn Ann Donnelly, Christian Alexander Natiello, Dan Dalrymple, U.S. Attorney's

Office for the District of Columbia, Washington, DC, for Defendant.




On February 20, 2003, Samuel E. Burton, a retired United States Coast Guard captain who had recently had his leg placed in a cast at the Walter Reed Army Medical Center to treat a rupture of his Achilles tendon, died from a massive pulmonary embolism. He was convalescing on his living-room couch when a blood clot moved from his leg to his lungs and blocked both arteries, cutting off his blood circulation. Alone in his home, Capt. Burton rose to his feet, staggered toward his front door in search of aid, and collapsed on the floor, dead, after only two or three steps.

Family members later learned that Capt. Burton had developed deep venous thrombosis—a blood clot in the deep veins of his leg—as a consequence of casting. They also learned, much too late, that Capt. Burton had suffered tell-tale warning signs of deep venous thrombosis—chest pain and short-windedness—and that if immediate medical attention had been sought, Capt. Burton would likely be alive and well today.

Capt. Burton's death was an unnecessary tragedy. His doctors never warned him that deep venous thrombosis and pulmonary embolus could result from casting. They never told him what the warning signs were that such thrombosis might be developing and leading to a deadly pulmonary embolism if medical attention was not quickly sought. If only Capt. Burton had known what to watch for—if only his doctors had warned him—his wife would have her husband and his son would have his father. As discussed below, the United States is therefore liable for medical malpractice based on its failure to warn Capt. Burton of the risks and warning signs of deep venous thrombus and pulmonary embolus.

A. Medical Terminology.

Venous thromboembolism ("VTE") is a term used to describe both pulmonary embolus ("PE") and deep venous thrombosis ("DVT"). See A.D.A.M. MEDICAL ENCYCLOPEDIA, Deep Venous Thrombosis, http://www.nlm.nih.gov/medlineplus/ency/ article/000156.htm (last visited Nov. 9, 2009) [hereinafter Deep Venous Thrombosis]; A.D.A.M. MEDICAL ENCYCLOPEDIA, Pulmonary Embolus, http://www.nlm. nih.gov/medlineplus/ency/article/000132. htm (last visited Nov. 9, 2009) [hereinafter Pulmonary Embolus]; (Trial Tr. vol. 2, 35:17-:25, Mar. 10, 2009).

DVT is the formation of "a blood clot in one of the deep veins of the legs." Pulmonary Embolus, supra; see also Deep Venous Thrombosis, supra. A proximal DVT is one that occurs above the knee; a distal DVT is one that occurs below. (Trial Tr. vol. 1, 109:5-:11, Mar. 9, 2009.)

PE is "a blockage of an artery in the lungs by," inter alia, "a blood clot," the most common type of which is a clot associated with DVT. Pulmonary Embolism, supra.

B. Facts.

On January 10, 2003, Captain Samuel Burton, a retired officer of the United States Coast Guard, ruptured his Achilles tendon while playing basketball. His wife, Doshia Daniels Burton, took Capt. Burton to the emergency room at the Walter Reed Army Medical Center (WRAMC) in the District of Columbia for treatment of his injury. Capt. Burton received an orthopedic consultation with Benjamin Kyle Potter, M.D., who presented Captain Burton with two treatment options: surgical repair, which involved suturing the tendon back together, or casting of the leg, which would allow the tendon to heal itself. (Trial Tr. vol. 1, 38:7-:21.) Capt. Burton elected the casting option. (Id. at 40:18-41:3.) The plan was to first place a soft splint on the leg, to allow the initial swelling from the injury to subside, and then after a few days to place the lower leg in a hard cast starting just below the knee and ending just above the toes. With both the splint and the cast, the leg was initially immobilized in a "gravity equinus" position, that is, with the toes pointing down. This was intended to shorten the calf muscles as much as possible to allow the ruptured portions of the Achilles tendon to begin to heal themselves. The plan was to keep the leg casted for a total of about eight weeks, changing the cast periodically to gradually bring the toes up from the toedown position. (Id. at 38:7-:21.)

Dr. Potter placed Capt. Burton's left leg in a splint on January 10, which was replaced with a hard cast on January 15. (Trial Tr. vol. 3, 20:9-:19, Mar. 11, 2009.) On February 7, 2003, Captain Burton returned for his three-week follow-up appointment, where he was given a new cast. Capt. Burton complained of swelling at night, which Dr. Potter indicated was normal. Dr. Potter also checked Capt. Burton's leg for swelling, tenderness, or popliteal cords, all of which would signify the presence of DVT; none were found. Dr. Potter also noted that Capt. Burton had normal sensation, pulse, and capillary refill in his lower leg, and that Capt. Burton's peri-ankle swelling was in a normal range. (Trial Tr. vol. 1, at 47:7-:17, 49:3-:17, 50:10-:14, 51:1-:6, 106:19-107:15, 107:21-108:3, 108:13-:23.) Mrs. Burton was present at all three visits. (Id. at 41:10-:15; Trial Tr. vol. 2, 217:5-217:10; 224:18-225:15.) There are no records of warnings having been given to the Burtons regarding VTE during these visits. (Trial Tr. vol. 1, 30:13-:24.)

On February 9, one day after he had walked some distance through snow on crutches, Capt. Burton experienced pain in his chest and became "absolutely winded" after walking up seven steps in his home; he rested and "breathed a great sign of relief," saying: "That was scary." (Trial Tr. vol. 3, 21:11-:25.) He and Mrs. Burton attributed these symptoms to his physical exertion on crutches and relieved the pain with ibuprofen. (Id. at 12:19-:24, 21:11-:25.) On February 20, Capt. Burton "got on his knees and pulled a box out of a cubbyhole in the closet. He again became winded." (Id. at 22:1-:8.) The Burtons "again related it to the fact that he had been virtually inactive for eight weeks." (Id.) Later that day, Capt. Burton suffered a massive PE and died. (Id. at 20:21.)

A. Jurisdiction Is Proper.

The defendant defends (without detail) that the plaintiffs' claims are "barred for lack of jurisdiction." (Answer 6.) The defendant also, however, makes the more specific jurisdictional defense that the "[p]laintiffs failed to exhaust their administrative remedies." (Id.) Although the defendant has not pressed these defenses at trial, the Court considers them as averred in the defendant's Answer. Both defenses fail.

1. The Court Has Personal Jurisdiction Over the United States.

The general standard for determining whether a court has personal jurisdiction over a defendant is whether "maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Where the United States is the defendant, such notions are not offended so long as the United States is properly served with notice of suit. See, e.g., Lathrop v. Unidentified, Wrecked & Abandoned Vessel, 817 F.Supp. 953, 961 (1993) (noting that the court "lacks in personam jurisdiction over the United States" but that such defect would be remedied "in the event that the United States has been properly served"); In re McDougald, 1991 WL 635259, at *1 (S.D.Ga. Apr. 25, 1991) (noting that the court has personal jurisdiction where "the United States has received adequate notice of the pendency of [an] action and will [therefore] not be prejudiced in maintaining its defense on the merits").

To properly serve the Unites States, a potential plaintiff must, within 120 days, (1) "deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought," (2) "send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office," and (3) "send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C." FED.R.CIV.P. 4(i)(1)(A)-(B). In this case, the United States has not pleaded that it did not receive notice or that it received defective notice and the Court has no reason to suspect that such notice was not received or was defective. The Court therefore finds that the plaintiffs did indeed satisfy the aforementioned requisites of proper service and that it has personal jurisdiction over the United States.

2. The Court Has Subject-Matter Jurisdiction.

The Federal Tort Claims Act (FTCA)1 waives sovereign immunity in this case, granting the Court subject-matter jurisdiction, which is not otherwise stripped by the Feres doctrine. Furthermore, the plaintiffs have exhausted their administrative remedies, satisfying the jurisdictional prerequisite of administrative-remedy exhaustion. The Court therefore has subject-matter jurisdiction over this case.

a. The FTCA Waives Sovereign Immunity in This Case.

It is a well-recognized principle of sovereign immunity that "the United States may not be sued without its consent." 14 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3654 (3d ed. 1998). The FTCA, however, partially grants such consent:

[T]he district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for ... personal injury or death caused by the negligent or wrongful act or omission of any employee...

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