Caron v. United States

• Decision Date: 09 February 1976
• Docket Number: Civ. A. No. 74-130.
• Citation: 410 F. Supp. 378
• Parties: Monique G. CARON et al. v. UNITED STATES of America.
• Court: U.S. District Court — District of Rhode Island

410 F. Supp. 378

Monique G. CARON et al. v. UNITED STATES of America.

Civ. A. No. 74-130.

United States District Court, D. Rhode Island.

September 30, 1975.

Supplemental Opinion February 9, 1976.

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John F. Dolan and Leonard A. Kiernan, Jr., Providence, R. I., for plaintiffs.

Lincoln C. Almond, U. S. Atty., Everett C. Sammartino, Asst. U. S. Atty., Providence, R. I., for defendant.

OPINION

PETTINE, Chief Judge.

This is a negligence action against the United States alleging tortious conduct in the administration of certain inoculations to the infant plaintiff Monique by army medical personnel at Custer Air Force Base, Battle Creek, Michigan.

At issue is the government's negligence and validity of its plea that the action is barred by the statutory period of limitation set forth in the Federal Tort Claims Act.

Jurisdiction is founded in 28 U.S.C. sec. 1346(b). There is no dispute that the provisions of 28 U.S.C. sec. 2675(a) have been fully satisfied.

FINDINGS OF FACT

On August 12, 1963, plaintiff, Annette R. Caron was in Michigan at Custer Air Force Base where her husband, Ernest Caron, then on active military duty, was stationed. On this day she took their healthy and normal four month old baby girl, Monique, to the base dispensary for immunization injections usually given to infants. At the dispensary, after signing a log and stating the purpose of her visit, she was referred to an airman. Without taking any history or making any inquiries, the airman administered to Monique "DPT" (a combination of three vaccines, Diphtheria, Pertussis, and Tetanus), typhoid injections, and oral polio vaccine. According to Mrs. Caron, whose uncontradicted testimony this Court accepts as entirely credible, the airman, after having given the injections, ". . . took a yellow pamphlet and on the first page wrote, `DPT IV, Captain Merkle', . . . turned the page, wrote `oral polio, Captain Merkle', . . . then on the last page . . . stamped `Typhoid, 5 Mil., Captain Merkle.'" No Captain Merkle was present at the time. A copy of this record was given to Mrs. Caron, but she no longer knows where it is.

Approximately one hour later Monique's left arm started "jerking, twitching", and "she was burning with fever". Mrs. Caron immediately returned to the dispensary with Monique. In her presence, an army physician, Dr. Goulet, together with nurses undressed Monique and sponged her with towels. Mrs. Caron was then asked to leave the room. About an hour later a nurse told her they could not stop the convulsions and were going to send the baby to a civilian hospital. This, however, was not done. Another hour passed before Mrs. Caron was allowed to see her baby, who was no longer convulsing. Dr. Goulet, when asked the cause of Monique's convulsions by Mrs. Caron, stated he did not know and asked Mrs. Caron to find out if there was any history of convulsions in the family. Dr. Goulet placed Monique on phenobarbital and gave instructions to report to him the following week.

The dispensary record for this date reads in pertinent part:

"Patient convulsed in grand mal fashion for almost forty-five minutes . . .

Examination essentially negative, except for sluggish . . .

Presumed this is a febrile convulsion secondary to typhoid inoculation."

Despite the reference in the dispensary record suggesting the convulsion occurred in reaction to the typhoid inoculation, there is no evidence that this record was ever given, or its contents revealed, to Mrs. Caron. To the contrary, as appears in the ensuing narrative, this reference was equally ignored by army physicians who subsequently treated Monique and were at a loss to identify the cause of her convulsions.

Mrs. Caron returned to the dispensary on August 19 to see Dr. Merkle and report that an aunt and two cousins had suffered convulsions from fever.

Because Monique was irritable, not eating and constantly crying, Mrs. Caron again returned to the dispensary on August 21 and 29. On the latter date she was told by Dr. Goulet that her baby had been convulsing due to a high fever, but was going to be all right.

The dispensary record for August 29 reads:

"Mother quite hostile and blames change in child's eating behavior on recent convulsion episode . . .

Mother reassured and advised. Belligerent mother `wants record.'"

Mrs. Caron told Dr. Goulet she wanted the records because she intended to see a private pediatrician. She abandoned the idea when reassured by Dr. Goulet that there was no need for a private consultation.

A recitation of these sombre events as well as those which followed, is indispensable to a resolution of the legal issues presented herein, and the remainder shall be set forth seriatim:

November 7, 1963. Monique convulsed at home and was seen by Dr. Goulet at the dispensary. After an examination, he prescribed aspirin, stating that there was no sign of an infection and that everything was all right.

November 9, 1963. Monique suffered her third convulsion; the baby had a slight temperature. Dr. Goulet prescribed aspirin and phenobarbital, stating that Monique would be on phenobarbital for a year or two. Dr. Goulet told Mrs. Caron that he did not know what caused the convulsions.

December 5, 1963. Having convulsed two days before, Monique was again seen by Dr. Goulet. He advised Mrs. Caron, who was coming to Rhode Island, to consult a local doctor.

December 21, 1963. In Rhode Island, Mrs. Caron saw Dr. Julius Stoll, a neurosurgeon. Dr. Stoll advised mother he could not state the cause of Monique's convulsions.

At the trial, Dr. Stoll testified that on this visit the neurological examination was completely within normal limits. He did not really have an opinion as to the cause of the convulsions, but felt "that it was a seizure or convulsion problem that should be treated at that time as it was with anti-convulsant medication, then at a later date . . . further tests should be performed to clarify the cause . . ."

Some time thereafter Mrs. Caron returned to Custer Air Force Base.

February 1, 1964. Sometime between 9:00 and 10:00 a. m., Mrs. Caron found Monique unconscious in a pool of saliva; Monique was examined at the dispensary by Dr. Merkle. Monique apparently stopped convulsing; mother advised to take her baby home and watch her. Mrs. Caron asked if the child could be hospitalized, but Dr. Merkle responded, "Just take her home and watch her."

February 2, 1964. At 4:00 a. m. Monique was found convulsing in her crib.

Dr. Merkle had the parents bring the child to Leila Post Hospital, a private non-government hospital about five miles from the dispensary. The Army arranged for the baby to be seen by a Dr. Levy. Apparently the convulsions stopped in transit to the hospital; however, at the hospital they started again and Monique was placed under oxygen. A neurosurgeon, Dr. Griffith, who was then in surgery, was called, but did not appear until four hours later. During this time Monique was convulsing, i. e. "She was hot, she was jerking her whole body."

Dr. Griffith "put her on a mattress, a special mattress to control her temperature" and injected her with different medications. Monique stopped convulsing. Dr. Griffith told Mrs. Caron that Monique would never be the same again; when asked, he stated he did not know what caused the convulsions.

Monique remained at the hospital for a week under Dr. Griffith's care. On discharge Dr. Griffith stated he wanted to see the child again. Mrs. Caron asked Dr. Merkle for authorization to make such a visit so that the Army would pay for it. Dr. Merkle stated the Army would not assume this expense as they did not "find it necessary".

April—August 1964. Mrs. Caron and Monique were in Rhode Island.

June 1964. Mrs. Caron consulted a Dr. Lancaster who referred her to the Boston Children's Hospital.

June 1964. The baby was seen by doctors at Boston Children's Hospital. They stated that Monique had low resistance to fever and this caused the convulsions. Mrs. Caron was further advised that she was "lucky to have Monique, she was a happy, healthy, chubby baby and to look around, look at other children, and I had nothing to worry about, and they told me Monique was apparently teething, and this was causing fever".

April 1965. With Mr. Caron discharged from military service, the family returned to Rhode Island.

May 1965. Dr. F. Edward Yazbak, a local practitioner, was consulted and referred the case to a neurologist, Dr. Taft, who hospitalized Monique for tests. At the conclusion of the hospitalization, Dr. Taft stated he did not know what was causing the convulsions.

March 1966. The Carons consulted Dr. Eric Denhoff, a licensed practitioner in Rhode Island and a specialist in pediatric neurology and neuro developmental pediatrics. He stated the child's condition was "bad" and hospitalized her to see how she might be treated "more effectively". A number of tests and studies were conducted to "try to control the convulsions". From March 1966 to 1970 Monique remained under his care. Her condition became progressively worse; during this period there were eleven hospitalizations to try to control the convulsions. Because of persistent brain wave patterns in the temporal lobe, a temporal lobotomy was performed. "The results were nebulous." At this time Dr. Denhoff had no opinion as to the cause of the convulsions; he was more "concerned with trying to control the convulsions than formulating an opinion as to possible cause . . . except to rule out a brain tumor or progressive neurological disease . . ."

1970. The Carons, not being able to cope with Monique, went to New York and placed her in a special school. The same problems continued to exist. On recommendation of Dr. Denhoff, a Dr. Preston Robb in Montreal, Canada was consulted. Dr. Denhoff stated that he considers Dr. Robb to be "one of the outstanding pediatric neurologists in the world". After...