Elliott v. United States

• Decision Date: 04 August 1971
• Docket Number: Civ. No. 10-88.
• Citation: 329 F. Supp. 621
• Parties: Kerri Lynn ELLIOTT, by her father and next friend, Thomas Elliott, Jr., et al., Plaintiffs, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Maine

329 F. Supp. 621

Kerri Lynn ELLIOTT, by her father and next friend, Thomas Elliott, Jr., et al., Plaintiffs, v. The UNITED STATES of America, Defendant.

Civ. No. 10-88.

United States District Court, D. Maine, S. D.

August 4, 1971.

Merle C. Rideout, Jr., Theodore Barris, Portland, Me., for plaintiffs.

Peter Mills, U. S. Atty., Portland, Me., Charles Kruse, Dept. of Justice, Washington, D. C., for defendant.

OPINION AND ORDER OF THE COURT

GIGNOUX, District Judge.

This is an action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, to recover damages for personal injuries sustained by the plaintiff Kerri Lynn Elliott as the result of the negligent care, diagnosis and treatment of Kerri Lynn, then an 18 months old baby girl, by United States Navy medical personnel at the U. S. Naval Dispensary at Norfolk, Virginia and the Portsmouth Naval Hospital at Portsmouth, Virginia, during the period June 27 to July 20, 1966. The case has been tried to the Court, without jury. The United States has conceded liability for any damages caused by such medical treatment, and the trial, which was held on February 24-26, 1971, was restricted to the damage issue.

At trial plaintiffs offered the testimony of Kerri Lynn's parents, grandmother, aunt and kindergarten teachers, together with the testimony and reports of a number of doctors and other professional persons who had either treated or examined Kerri Lynn. The latter included her pediatrician, Dr. Martin A. Barron of Portland; a psychologist, Dr. John S. Bishop of Portland; a neurologist, Dr. Cornelius A. Toner, formerly of Portland; and a psychiatrist, Dr. Peter W. Bowman, Superintendent of the Pineland Hospital and Training Center, Pownal, who had examined Kerri Lynn in November 1970 and January 1971. Defendant's evidence consisted of the testimony and reports of a medical team from the Boston Children's Hospital Medical Center Development Evaluation Clinic, which had examined and evaluated Kerri Lynn's condition in July 1970. Included in the team were the Director of the Clinic, Dr. Allen C. Crocker, a pediatrician; the senior psychologist at the Clinic, Dr. Richard Schnell; and the chief nurse, Miss Marie M. Cullinand.

Undisputed Facts

The undisputed evidence can be briefly summarized. On June 27, 1966, Kerri Lynn was a healthy, happy, normal baby, who had started walking and talking. On that date she became acutely ill with a high fever. She was taken to the Norfolk Naval Dispensary, where the examining doctor said she had an intestinal virus and prescribed some medication. On the following day, Kerri Lynn was still running a high fever and was taken back to the Dispensary, where the doctor said she had a kidney infection and sent her home with more medication. That evening she had a temperature of around 105-106°. She was taken back to the Dispensary and early in the morning of June 29 was admitted to the Portsmouth Naval Hospital. From 2:30 p. m. until midnight of June 29, she was convulsing and her stomach was bloated with substances which were eventually pumped out of her. Her convulsions were stopped by the use of general anesthesia. She was critically ill for several days thereafter and remained in the hospital until July 20. Her final diagnosis was a cellulitis with high fever. Upon her return from the hospital, she had regressed in her ability to walk and talk, was pale and listless, and had a poor appetite.

The consequences of her hospitalization were:

(1) She developed a seizure disorder and has had numerous convulsive episodes since July 1966. For control of these seizures, she is presently taking 50 milligrams of dilantin three times a day; 32 milligrams of mebaral twice a day; and 5 milligrams of dexedrine twice a day.

(2) She developed behavioral problems, manifested mainly by hyperactivity and an extremely short attention span. She is easily frustrated, becomes angry quickly, is hostile and uncooperative, and as a result is rejected by her peers and a disciplinary problem for her parents and teachers.

(3) She is not mentally retarded, but she has a learning difficulty and in the opinion of her kindergarten teachers will be unable, because of her emotional problems, to cope with work in the first grade of school.

Kerri Lynn was born in January 1965 and is presently six and one-half years old. She attended an eight-week "head-start" program in the summer of 1970, entered kindergarten in September 1970, and should enter the first grade this fall. Kerri Lynn's mother, plaintiff Keryl Lee Elliott, is a 29 year old housewife. Kerri Lynn's father, plaintiff Thomas Elliott, Jr., has 12 years service in the United States Navy. At the time of trial, he was an aviation mechanic, Grade E-4, stationed at the Brunswick Naval Air Station, Brunswick, Maine. He is presently in Vietnam. Barring some unforeseen contingency, he intends to, and undoubtedly will, remain in the Navy until August 1979, when he will have completed 20 years service and plans to retire on a pension. Most of Kerri Lynn's medical expenses to date and in the future have been and will be paid by the United States under the Uniformed Services Health Benefit Program for military personnel and their dependents ("CHAMPUS").

Contentions

Plaintiffs contend that Kerri Lynn's convulsive disorders and behavioral difficulties are caused by organic brain damage and, as such, are permanent conditions as a result of which she will never be normal and will require special care and treatment for the remainder of her life. With respect to the convulsive disorders, defendant contends that the evidence establishes that: (1) at worst, Kerri Lynn will be able to control the problem with drug therapy, living a relatively normal life, excluded from only the most extreme activities and suffering no loss of wages or other economic loss; and (2) based upon medical probability, the child can be withdrawn from drug maintenance within the next few years and thereafter lead a normal life with no limitations or adverse effects. With respect to Kerri Lynn's behavioral problems, defendant contends that their basis is emotional rather than organic and, as such, they are treatable and curable, so that after several years of therapy, the child can lead a normal life.

Applicable Law

The parties agree that the law of Virginia, the place where the act in question occurred, is the law applicable in this case. 28 U.S.C. § 1346(b). Hatahley v. United States, 351 U.S. 173, 182, 76 S.Ct. 745, 100 L.Ed. 1065 (1956); Roman v. Velarde, 428 F.2d 129, 132 n. 5 (1st Cir. 1970); Haginikitos v. United States, 412 F.2d 219, 220 (3rd Cir. 1969); Gowdy v. United States, 412 F.2d 525, 527 (6th Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 437, 24 L.Ed.2d 425 (1969). The parties further agree that the law of Virginia, as of most other jurisdictions, provides that a tortfeasor is liable in damages for all injuries that naturally and necessarily follow from the tortious act. Watford v. Morse, 202 Va. 605, 608, 118 S. E.2d 681, 683 (1961); Safety Motor Transit Corp. v. Cunningham, 161 Va. 356, 366, 171 S.E. 432, 435 (1933); Virginia Ry. and Power Co. v. Hubbard, 120 Va. 664, 668-669, 91 S.E. 618, 619 (1917); cf. Raven Red Ash Coal Co. v. Herron, 114 Va. 103, 75 S.E. 752, 756 (1912). The Virginia law also clearly establishes that the plaintiff has the burden to prove by a preponderance of the evidence the injuries sustained as a result of the tortious act. Diggs v. Lail, 201 Va. 871, 876, 114 S.E.2d 743, 747 (1960); Smith v. Wright, 207 Va. 482, 151 S.E.2d 359, 362 (1966). In Virginia, as elsewhere, damage awards cannot be based upon surmise, speculation or conjecture, but must be based upon reasonable probability. Smith v. Wright, supra; Hailes v. Gonzales, 207 Va. 612, 614, 151 S.E.2d 388, 390 (1966); Barnes v. Graham Virginia Quarries, Inc., 204 Va. 414, 419, 132 S.E.2d 395, 397-398 (1963); cf. Stevens v. Abbott, Proctor & Paine, 288 F.Supp. 836, 849 (E.D.Va. 1968). "Proof with mathematical precision is not required, but there must be at least sufficient evidence to permit an intelligent and probable estimate of the amount of damage." Hailes v. Gonzales, supra.

The Seizure Disorder

Upon analysis, it is apparent that there are two basic elements to plaintiffs' damage claims: Kerri Lynn's convulsive seizures and her behavioral problems. Turning first to the matter of her convulsive seizures, there is no doubt that the child had violent convulsions while hospitalized in June-July 1966. It is also undisputed that since 1966, the child has had several convulsive episodes, which have been variously described as "petit mal," "grand mal" or "acanetic" seizures.¹ Because of this history of seizures, the child has been receiving anti-convulsive medication and is currently taking dilantin, mebaral and dexedrine. All the doctors agree, however, that Kerri Lynn's seizures can be controlled by medication. The doctors further agree that although the future cannot be predicted with certainty, it is as likely as not that she can be withdrawn from medication within the next few years and remain seizure-free. In this respect, Dr. Crocker testified: "It would seem most likely on the basis of experience over the last year or two of her's that eventual lifting of medication control would be possible. * * * In childhood seizures, in the majority, time is an asset rather than a liability in terms of the magnitude of the seizure problem. The statement is often made that nearly half of the children who in earlier mental childhood require seizure control medication will eventually be able to abandon that. * * * It is likely that her anti-convulsive medication needs will diminish rather than intensify, and in many individuals, they diminish to the point of total freedom from the use of drugs. * * * Certainly when as much as a year or so goes by with no seizures recorded, the time is fully at hand to begin to try lightening the anti-convulsive...