Doe v. U.S.

• Decision Date: 27 August 2003
• Docket Number: No. 1:01CV00646.,1:01CV00646.
• Citation: 280 F.Supp.2d 459
• Parties: Jane DOE, John Doe, Baby Jane Doe, by her guardian, John Doe, Baby John Doe, by his guardian, John Doe, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Middle District of North Carolina

280 F.Supp.2d 459

Jane DOE, John Doe, Baby Jane Doe, by her guardian, John Doe, Baby John Doe, by his guardian, John Doe, Plaintiffs, v. UNITED STATES of America, Defendant.

No. 1:01CV00646.

United States District Court, M.D. North Carolina.

August 27, 2003.

Robinson O. Everett, Craig Myer Kabatchnick, Seth Allen Neyhart, Everett & Everett, Durham, NC, for Plaintiffs.

Gill P. Beck, Office of U.S. Attorney, Greensboro, NC, for Defendant.

MEMORANDUM OPINION

OSTEEN, District Judge.

Plaintiffs Jane Doe, John Doe, Baby Jane Doe, and Baby John Doe filed this action against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), et seq. Plaintiffs claim that members and civilian personnel of the United States Navy administered a blood transfusion to Jane Doe in 1983 negligently and without her informed consent. After a bench trial, the court issues the following findings of fact and conclusions of law.

I. FINDINGS OF FACT

Pregnant with her first child, Plaintiff Jane Doe arrived at the Navy Regional Medical Center in Millington, Tennessee ("NRMC Millington"), in the evening of July 7, 1983. She was 20 years old, receiving medical care as a dependent of her Marine husband, Plaintiff John Doe. It was not her first visit to NRMC Millington. Just eight days before, doctors at the facility tried to induce labor because she had carried her child 15 days beyond her due date. The inducement did not result in childbirth. Now she was three weeks past term, her amniotic fluid had been leaking for 20 hours, and she was in labor.

After an initial examination, Dr. Harold Short, a family physician, recognized that it was important for Jane Doe's labor to progress. Her ruptured membranes, which permitted amniotic fluid to leak, had caused an infection of the uterus evidenced by a low-grade fever. In addition, she had high blood pressure and an elevated heart rate. Dr. Short placed Jane Doe on antibiotics for the infection and oxytocin, a hormone that stimulates the uterus to contract, to induce childbirth. Recognizing that a Caesarean section was a possibility, he ordered that two units of red blood cells should be typed and cross-matched so Jane Doe could be transfused if necessary. Dr. Short consulted Dr. Romeo Perez, an obstetrician, who concurred with the course of treatment.

By 5:30 a.m., on July 8, Jane Doe's labor had stalled despite continued doses of oxytocin. Dr. Short noted the presence of thick meconium, material from the baby's bowel that is typically passed after birth. More alarmingly, the fetal heart monitor showed the baby's heart rate declining after each contraction. Together with the meconium, these "late decelerations" indicated fetal distress. Dr. Perez and Dr. Short decided to perform an emergency Caesarean section.

With Dr. Perez en route to the hospital, Dr. Short obtained Jane Doe's consent for the surgery, explaining that further induction posed high risks to the baby's health. Consistent with his standard practice at the time, he identified risks associated with a Caesarean section, including infection, injury to the baby, and risks associated with anesthesia. He discussed the risk of excessive bleeding, including the danger of bleeding so severe that would necessitate a transfusion, which itself carried the risk of a negative reaction. Jane Doe responded that she understood these risks and opted for general anesthesia rather than an epidural anesthetic. Jane Doe signed Standard Form 522 to consent to the procedure in the presence of Dr. Short and a nurse, who also signed the form.

Dr. Perez arrived at the hospital and met Jane Doe for the first time. In keeping with his standard practice, he introduced himself, explained his role as a specialist in obstetrics, and discussed why he believed a Caesarean section was appropriate. He identified alternatives to surgery, such as waiting, and their consequences. Like Dr. Short, Dr. Perez told Jane Doe that excessive bleeding during the procedure could make a blood transfusion necessary. He went on to explain that receiving a transfusion brought risks of hepatitis and negative reactions to the transfused blood. He concluded by giving Jane Doe the opportunity to ask questions. Jane Doe does not remember anyone mentioning the possibility of a transfusion before her surgery, nor does she remember any consultation with Dr. Short or Dr. Perez.

At 7:02 a.m., on July 8, Baby Jane Doe was born by Caesarean section. After the surgery, Jane Doe continued to receive oxytocin to control bleeding in the uterus. She had lost 450 to 800 cubic centimeters ("cc") of blood during the operation, and by 9:00 a.m. she had saturated three perineum pads with blood. Dr. Perez ordered a complete blood count to be performed six hours after the surgery and another one for the following morning. During the day of July 8, Jane Doe appeared to be recovering well. Her uterus was firm, her postpartum bleeding was moderate, and she visited the nursery in a wheelchair.

The blood count results showed that Jane Doe had experienced significant blood loss. The two most direct measures were her levels of hemoglobin and hematocrit; the former is the part of red blood cells which carry oxygen, and the latter is the ratio of red blood cells to total blood volume, expressed as a percentage. Jane Doe's hemoglobin count had fallen from 12.8 grams per 100 milliliters of blood at admission, to 10.1 in the afternoon of July 8, to 8.9 on the morning of July 9. Her hematocrit had fallen from 35.5 at admission to 29.1 on July 8 to 25.6 on the morning of July 9. By 3:00 p.m., on July 9, when Dr. Perez learned the results of that morning's tests, Jane Doe's heart rate had risen from 96 beats per minute when she was admitted to 116 beats per minute, indicating that her heart was working harder to supply oxygen to her body. Her temperature was 100 degrees. By 3:30 p.m., Jane Doe passed what she recalls as one blood clot. The medical record explicitly describes several "large" clots, each understood by obstetricians to mean the size of a fist. At 4:00 p.m., a nurse called Dr. Perez to inform him about the clots, which suggested further loss of blood.

Based on this information, but without going to Jane Doe's bedside for a clinical evaluation or additional consent, Dr. Perez ordered a transfusion of two units of packed red blood cells. The blood came from a blood bank operated by the Navy, and everyone involved in collecting and transfusing the blood was a federal employee or agent. After the transfusion, Jane Doe's vital signs improved; her hemoglobin, for example, increased to 10.7, a two-point rise consistent with the administration of two units of red blood cells. She went home three days later, on July 12.

Three years later, in 1986, Jane Doe gave birth to her second child, Baby John Doe. She nursed both children.

Starting in 1991, Jane Doe developed myriad health problems. She endured swollen glands, gall bladder problems, sore throat with fevers of unknown origin, unexplained rashes, thrush, and shingles, among other ailments. In June 1995, her hair started falling out. In July, she was diagnosed with a severe yeast infection of her esophagus, a condition typically found only in terminally ill patients.

On July 18, 1995, Jane Doe tested positive for HIV. The test was performed by Dr. Terry Daniel, Jane Doe's family physician. Dr. Daniel explained to Jane Doe that although another test would be necessary to verify the diagnosis, the preliminary results meant she probably had Acquired Immune Deficiency Syndrome ("AIDS"). On July 24, 1995, Jane Doe learned that subsequent testing had confirmed the diagnosis. Not only did she test positive for HIV antibodies, but her extremely low CD-4 lymphocyte count suggested that her condition was very advanced. On July 31, 1995, Jane Doe learned that she had full-blown AIDS. Dr. Timothy Lane, an infectious disease specialist, took over her medical care.

Jane Doe and her doctors immediately began searching for the cause of her infection. On July 31, 1995, the day she received the conclusive diagnosis, Jane Doe and her husband completed an adult HIV Confidential Case Report. The report shortened the list of possible risk factors to two: "sex with male" and "transfusion of blood/blood components." (Gov't Ex. B-21.) Jane Doe had no sexual partners other than her husband. She initially suspected an affair by her husband, three years earlier, as the source of her HIV infection. John Doe, however, had twice tested negative for HIV.

A blood transfusion remained the other potential cause of infection. On the HIV Confidential Case Report, Jane Doe listed two occasions when she had received blood transfusions: the Caesarean birth of Baby Jane Doe at NRMC Millington in 1983, and her delivery of Baby John Doe in 1986. Because blood donations have been screened for HIV antibodies since 1985, Dr. Daniel considered the 1983 transfusion the probable cause of Jane Doe's infection.¹ When Mr. and Mrs. Doe took their children to Dr. Wilma Lim for HIV testing on August 31, 1995, they told her that Jane Doe had contracted AIDS from a blood transfusion in 1983.

After seeing Jane Doe twice in August and September 1995, Dr. Lane noted in the medical record his intention to trace the 1983 blood transfusion. Jane Doe authorized this "look back" to identify the donors of the transferred blood, and Dr. Lane telephoned NRMC Millington on October 27, 1995.² He followed up with a written request on October 31 for records concerning the transfusion and an investigation into the donors' HIV status. The Navy's response to the request arrived on October 4, 1996, nearly a year later, in the form of a faxed copy of an internal memorandum from the Navy's Bureau of Medicine and Surgery to the commanding officer of NRMC Millington. Blood donor number M466896, who contributed one of the units of blood administered to Jane Doe, had died of AIDS.³ The duration of the...