Harrington v. United States, 4-00-CV-90486 (S.D. Iowa 8/28/2002), 4-00-CV-90486.
| Decision Date | 28 August 2002 |
| Docket Number | 4-00-CV-90486. |
| Parties | BROOKE HARRINGTON, as Personal Representative of the Estate of Gaylord William Thayer, Deceased, Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Southern District of Iowa |
On August 29, 2000, Brooke Harrington, as Personal Representative of the Estate of Gaylord William Thayer, deceased, filed a Complaint against the United States and employees of the Veterans Administration pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b) and 2674. Upon filing by the government of its Notice of Substitution and Certification of Scope of Employment regarding the individual defendants, the Court substituted the United States and dismissed the individual defendants as parties.
Trial on the contested factual and legal issues between the parties was held on May 28-31 and June 3-4, 2002. At the close of the evidence, the Court ordered that a transcript be prepared and that the parties submit proposed Findings of Fact and Conclusions of Law after the trial transcript was available. The Court subsequently ordered the parties to submit post-trial documents by July 22, 2002. Upon motion by the government, this date was extended by the Court to July 31, 2002. Both parties have now submitted proposed Findings of Fact and Conclusions of Law. The Court considers this matter submitted.
1. Stipulation. Prior to trial, the Court approved the Stipulation of the parties as to facts which are true and undisputed:
A. Gaylord William ("Bill") Thayer was born on June 7, 1947.
B. Bill Thayer died in the secured psychiatric unit, Ward 85B, of the Veterans Administration ("VA") Hospital in Knoxville, Iowa in the evening of June 2, 1999.
C. Bill Thayer voluntarily admitted himself into the VA Hospital on June 1, 1999, after being admitted on "emergency hold" on May 29, 1999.
D. Bill Thayer was hospitalized nine times at the Veterans Affairs hospital in Knoxville, Iowa between 1970 and his last admission on May 29, 1999.
E. All alleged acts or omissions of VA personnel concerning the care of Bill Thayer prior to his death were taken within the scope of their employment as employees of the VA and ultimately as employees of the United States government.
F. Parties making claims in this matter are the Estate of Bill Thayer and Bill Thayer's daughters. The daughters are Brooke Harrington, born October 13, 1975, Holly Thayer, born December 19, 1977 and Marissa Thayer, born January 9, 1980.
G. Bill Thayer was a decorated, totally-disabled Vietnam combat veteran. The reason for his disability was schizophrenia related to combat. At his death, his disability earnings were $1,989.00 a month.
H. Bill Thayer's burial expenses were $5,829.11.
2. Gaylord William Thayer (referred to by his family and others at trial as "Bill Thayer"), served his country as a soldier in Vietnam. On March 13, 1968, during a combat assignment, he stepped on a land mine. During his lengthy hospitalization and rehabilitation, he was diagnosed by U.S. Army physicians as suffering from schizophrenia. His mental illness was exacerbated by a "mental breakdown" during an artillery demonstration after he returned to duty.
3. Following his discharge from the U.S. Army, Mr. Thayer worked at various jobs including the VA Hospital in Knoxville, Iowa. In 1991, he was determined to have a 100% service-connected disability and he retained this VA status to the time of his death.
4. Mr. Thayer was married to Judy Thayer (now Judy Winterbottom) from February 17, 1974 to May, 1999, a few weeks before Mr. Thayer's death. Mr. Thayer had three daughters and, at the time of his death, he had five grandchildren. Marissa Thayer was pregnant at the time of his death.
5. At the time of trial each of the daughters had two children: Marissa Thayer (Sammy, age 7, and Brandon, age 2), Holly Thayer (Haley, age 8 and Trey, age 4) and Brooke Harrington (Celine, age 7 and Gannon, age 5).
6. Both Brooke Harrington and Holly Thayer have significant health problems. Mrs. Harrington is being treated for kidney disease and is unable to work due to her health. Holly Thayer is taking medication for asthma (Accolate, 2 inhalers and Nebulizer), gastric reflux (Nexium) and depression. Her treatment for depression started after and is related to her father's death.
7. When Mr. Thayer's children had children, he developed close relationships with them as well and assisted his children with their care. Two of his daughters were mothers at an early age and he would take them to school and take care of grandchildren during school hours. The father of Marissa Thayer's son, Sammy, was a truck driver and was away from home for extended periods of time. Mr. Thayer spent more time with Sammy than his father. Holly Thayer's children did not have a father living with them and she testified that Mr. Thayer served as a father-figure.
8. All three of Mr. Thayer's children now live in the Des Moines, Iowa area. Brooke Harrington lived in Texas from 1992 to 1995, from May 1999 to June 1999 and from August 1999 to February 2002. While in Texas, she maintained regular contact with her parents. Marissa Thayer lived in Allerton, Iowa and Mr. and Mrs. Thayer moved to southern Iowa to be closer to her. In early 2002 she moved to Altoona, Iowa. Mr. Thayer would see his daughters living in Iowa at least 2-3 times a week. After he separated from his wife in 1997, he visited them even more frequently.
9. Mr. Thayer provided financial support to his daughters up to the time of his death. He paid bills for car insurance, utilities, rent and car repairs; bought clothing, groceries and necessities; guaranteed educational expenses and made cash gifts.
10. Financial support would vary from month to month and Mr. Thayer attempted to equalize his assistance between the children. During the twelve (12) months before his death, Mr. Thayer provided approximately $10,000 in financial support. This amount includes a car purchase. Mrs. Winterbottom estimated that Mr. Thayer would spend $600 — $700 a month on the children when none of them were living with him.
11. The Thayer children have had and continue to have financial needs. All of them are single mothers with children. (Brooke Harrington is married, but separated). While Marissa Thayer is working regularly as a certified nurse assistant, she is living paycheck to paycheck. She is separated from the father of her children. Holly Thayer has in the past worked as a cashier and a housekeeper and has started a job, but has had long periods of unemployment and has had difficulty staying employed. Until she started her new job, which pays $7.50 an hour, she was living on $426.00 in government assistance. Brooke Harrington has had some twenty-one (21) different jobs in the last 10-11 years and is currently unable to work. The Thayer daughters will have a continuing need for financial support in the future.
12. Mr. Thayer was hospitalized multiple times during his life at the Department of Veteran Affairs Hospital (hereinafter "VA Hospital") in Knoxville, Iowa. Mr. Thayer was hospitalized at various times over 30 years at the VA Hospital. Mr. Thayer was never observed during his hospitalizations to be violent towards himself, patients, or VA Hospital staff.
13. Between November 12, 1997, and December 1, 1997, Mr. Thayer was hospitalized under Dr. David Bethel's care. When Mr. Thayer was discharged in 1997, he was placed on 5 milligrams of Olanzapine a day, 50 milligrams of Trazodone at bedtime, and 2 milligrams of Artane a day.
14. Mr. Thayer discontinued his medications as early as March 1998 when Dr. Bruce Sieleni saw him as an outpatient. Dr. Sielem tried to convince Mr. Thayer to resume taking his medications and to undergo regular psychiatric treatment. It was reported that Mr. Thayer was becoming more paranoid and preoccupied with matters during this time. Mr. Thayer decided not to continue his treatment at the VA Hospital.
15. Mr. Thayer was a cigarette smoker. When he was off of his medication and he became symptomatic, his smoking would increase significantly.
16. Dr. Kim saw Mr. Thayer on March 24, 1999, as a walk-in patient. Mr. Thayer was excitable, marginally cooperative, had pressured speech, and an unkempt appearance. His speech was disorganized, incoherent, and he had loose personal associations. He was not on medication.
17. Mr. Thayer was hospitalized at the VA Hospital in Knoxvillle, Iowa from 3:22 a.m. on May 29, 1999 until his death there on the evening of June 2, 1999. The admitting diagnosis was chronic paranoid schizophrenia, acute exacerbation. Although his admission was technically involuntary (later changed to voluntary), he was found on the grounds of the hospital by VA police. The part of the VA hospital where Mr. Thayer spent his last hospitalization was the secured psychiatric unit Ward 85B.
18. The admission notes indicate that Mr. Thayer stated he had heard babies moaning because they were being drowned by "them". He further said that if he had to, he would get a gun and kill "them."
19. On the day of his admission, Mr. Thayer became loud and abusive, knocked food off his tray and refused to take offered anti-psychotic medications. The VA police had to be called to gain his cooperation.
20. Mr. Thayer was restarted on medications which had been prescribed for him during his previous hospitalization on November 12 to December 1, 1997. Mr. Thayer was prescribed 1 milligram of Ativan PRN as needed for agitation, anxiety; 5 milligrams of Haldol PRN for paranoia; 5 milligrams of Olanzapine at bedtime; 2 milligrams of Artane at bedtime; and 50 milligrams of Trazadone at bedtime.
21. On Mr. Thayer's admission to Ward 85B, his cigarettes...
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