Foskey v. United States

• Decision Date: 18 March 1980
• Docket Number: Civ. A. No. 74-278.
• Citation: 490 F. Supp. 1047
• Parties: Yulonda E. FOSKEY, Karla Foskey p. p. a. Yulanda E. Foskey v. UNITED STATES of America.
• Court: U.S. District Court — District of Rhode Island

490 F. Supp. 1047

Yulonda E. FOSKEY, Karla Foskey p. p. a. Yulanda E. Foskey v. UNITED STATES of America.

Civ. A. No. 74-278.

United States District Court, D. Rhode Island.

June 15, 1979.

Supplemental Memorandum Opinion March 18, 1980.

COPYRIGHT MATERIAL OMITTED

Leonard Decof and Mark S. Mandell, Providence, R.I., for plaintiffs.

Paul F. Murray, U.S. Atty., Everett C. Sammartino, Asst. U.S. Atty., Providence, R.I., for defendant.

OPINION

PETTINE, Chief Judge.

This medical malpractice case alleges tortious conduct in the treatment and diagnosis of a seizure disorder suffered by the minor plaintiff, Karla Foskey, born of the plaintiffs, Yulonda Foskey, now O'Neil, and Preston Lee Foskey, an officer in the United States Coast Guard.

Jurisdiction is founded in 28 U.S.C. §§ 1346, 2671-2680.

Though the alleged period of negligence was between February 14 and mid-July 1972, an understanding of the respective positions of the litigants requires a factual development commencing on July 26, 1971, when Karla was 10 weeks old and was treated for acute bronchitis. The tragedy that has befallen this unfortunate child followed this episode of bronchitis during which she had temperatures ranging between 103° and 106°. About two months after her recovery, the mother noticed impairment of the baby's hearing coupled with a slow progress of development. In January or early February of 1972 she also noticed Karla manifested unusual motor activity such as back arching, staring, or eye fixation.

On February 9, 1972 Mrs. O'Neil took Karla to the local Coast Guard dispensary for treatment of a cold, not related to this action. During this visit Karla made one of her back arching movements, and the mother told the attending physician of Karla's other behavior, whereupon he suggested the child be taken to the Philadelphia Naval Hospital for a neurological work up. On February 14, 1972 the parents did this. There she was examined by Dr. Harvey Danits, a staff pediatrician who was at the time in the United States Navy.

According to the plaintiffs, at this initial meeting Dr. Danits was told about the bronchitis episode, back arching, hearing loss, and pattern fixation, and also was told that they wanted him to refer their child for neurological services. In addition to Karla's history, the plaintiffs claim they also informed Dr. Danits that during pregnancy Mrs. O'Neil had taken, as approved by her doctor, antihistamines, on one occasion one half of an amphetamine tablet as prescribed and antibiotics for a sore throat and fever, and had been in an automobile accident in the eighth month of pregnancy.

Dr. Danits' reply to all this was that the back arching and pattern fixation were habits; that Karla had a growth and development problem; and that a neurological work up or an electroencephalogram should be deferred in order to, as he stated, "let us check her over, let us follow some paths, let us decide whether or not she needs a neurological work up," because he wanted to do tests to rule out basic medical, amino acid and genetic problems. However, he did perform some tests at this visit, and from February 14 through June 20, 1972, he saw Karla on a number of occasions. Sequentially the visits were as follows:

1) February 22, 1972—Mrs. O'Neil testified on this visit Dr. Danits saw Karla arch her back; he again told the parents it was habit.

2) From February 22, 1972 and for approximately two months thereafter Dr. Danits continued to see Karla. Mrs. O'Neil testified that, "On every visit we discussed with Dr. Danits that she was still doing this back arching bit, that I was concerned about on the initial visit; on the second visit we told him not only was she now fixating on the mesh of the playpen, but she was also fixating her eyes, locking her eyes, is the way I described it, on the picture on the wall in our living room." Mrs. O'Neil further testified that she made it very clear on each visit that they wanted a neurological work up.

3) Between April 10, 1972 and early June, Karla was not taken to the hospital per instructions from Dr. Danits, who said there was no need to do so as she only had a growth and development problem, and that he wanted to wait for the results of various tests he had ordered before seeing Karla again.

4) June 4, 1972—Karla experienced respiratory problems. She was taken to a hospital other than the Philadelphia Naval Hospital, where her condition was diagnosed as croup. After three days she was discharged. Dr. Danits was advised of this illness by Mrs. O'Neil who went on to tell him that she thought Karla had a seizure which had affected her respiration.

5) June 12, 1972—Karla was taken to Dr. Danits who now agreed to schedule an EEG. On this visit, he also reviewed the results of the various tests he had taken and stated that in his opinion Karla was progressing and that she appeared to be catching up.

6) July 10, 1972—The parents met with Dr. Danits to discuss the results of the EEG taken on June 20, 1972. He told them the EEG was abnormal but not to worry; that there was nothing specific about it; and that it did not show any evidence of seizure activity. He did not prescribe at this time or at any other time any anticonvulsant medication.

The government argued that Dr. Danits never saw the EEG as this was Karla's last visit due to Mr. Foskey's transfer to the Boston area. Mrs. O'Neil was given all of Karla's medical records including the EEG to take with her. The government contends that Mrs. O'Neil is not correct in saying Dr. Danits gave her the records because the hospital records show the last visit was July 10 and the records were withdrawn on July 12. It states that this substantiates its position that Dr. Danits never saw the EEG before Karla left his care. The Court is not impressed by this argument, and there was evidence that disproved the government's position. I do not feel a long factual analysis on this point is warranted. It seems strange to this Court to claim that a doctor who finally concluded an EEG was necessary and ordered one to be taken would display such insouciance as not even to look at it before the patient leaves him.

Following the transfer, Mrs. O'Neil, on July 31, 1972, had Karla examined by Dr. Gary Velat, a pediatrician from the Chelsea Naval Hospital. After reviewing the records from the Philadelphia Naval Hospital and receiving Karla's history from Mrs. O'Neil, he made immediate arrangements for Karla's admission to the Chelsea Naval Hospital for a complete neurological work up. On August 2, 1972, before such admission materialized, Mrs. O'Neil witnessed the seizure which is at the heart of this controversy. While in her playpen Karla gasped; Mrs. O'Neil, thinking she had aspirated something, felt her throat; she could find nothing. Karla started to twitch violently, became quite blue and stopped breathing. Mrs. O'Neil applied mouth to mouth resuscitation which started Karla breathing again. She was taken to the South Weymouth Dispensary where she was examined, x-rayed, placed under an oxygen mask and then transferred to the Chelsea Naval Hospital where she remained for several days. There, the medical staff found the child had an abnormal EEG, and had suffered a grand mal seizure. Among other things they placed her on anticonvulsant medication.

It is significant to note that though this baby was impaired by the bronchitis incident she experienced on July 26, 1971, Mrs. O'Neil testified she did continue to progress albeit at 50%-60% rate. After the August 2, 1972 seizure her hearing acuity was reduced, muscle tone deteriorated, alertness decreased and seizures became progressively worse.

From August 2, 1972 on there were a series of hospitalizations for various reasons including institutionalization at the Hospital for the Mentally Retarded in Delaware from April 1, 1974 to December 1, 1975. Mrs. O'Neil also testified that from December of 1975 to August of 1977 Karla was treated through the Institutes for the Achievement of Human Potential in Philadelphia, a non-profit institution which specializes in training uninjured brain cells. It appears nothing much could be done for this child.

Dr. Gary Velat, now Chief of Pediatrics at the Naval Submarine Medical Center in Groton, Conn., who appeared and testified by special permission from his superior officers, saw Karla both before and after the August 2, 1972 incident while at the Chelsea Naval Hospital.

There is no doubt that Dr. Velat is a highly qualified pediatrician, properly regarded as an expert in his specialty. As previously stated, on July 31, 1972, he received a history from the mother and also made a fast review of Karla's medical records. He opined that the baby was in fact having seizures and that on August 2 she suffered a major motor seizure—"a grand mal type of seizure." This he attributed to the failure of Dr. Danits to have a neurological work up and an electroencephalogram when Karla was first seen by him. The sum and substance of his testimony is that when Dr. Danits first saw Karla, and at least after the second or third visit, he should have engaged in a neurological study of the baby. He comes to this conclusion on the very record made by Dr. Danits himself. In other words, apart from what Mrs. O'Neil claims she told Dr. Danits, his own notations of slow development, small child, metabolic and endocrine problems for psychomotor retardation, hypotomia, and hearing loss reflect his negligence. As Dr. Velat stated, all these things "may have had a component of etiology of the central nervous system—a neurological work up would have been one of the basic things to do." Dr. Velat went on to say

Besides the examination one would have expected basically neuroskull series, x-rays of the skull looking for many things actually and an EEG, not necessarily just to show seizure disorder, but to show a symmetry tumor, cerebral atrophy, any of the many conditions. In other words, even...