Harris-Reese v. United States
| Decision Date | 20 July 2022 |
| Docket Number | Civil Action TDC-19-1971 |
| Parties | TIMMEKA HARRIS-REESE, Individually and as Parent and Next Friend of ZR., and DOUGLAS M. REESE, JR., Individually and as Parent and Next Friend of Z.R., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of Maryland |
Plaintiffs TimMeka Harris-Reese (“Ms. Harris-Reese”) and Sergeant Douglas M. Reese, Jr. (“Sgt. Reese”) have filed suit against the United States of America (“the Government”) asserting claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C §§ 1346, 2671-80 (2018), based on allegedly negligent medical treatment and a lack of informed consent relating to a surgery performed on their minor child, Z.R at the Walter Reed National Military Medical Center (“WRNMMC”) in Bethesda, Maryland. After denying summary judgment to the Government on the issue of the employment status of the attending anesthesiologist for the surgery, the Court conducted an 11-day bench trial on liability and damages. Pursuant to Federal Rule of Civil Procedure 52(a), the Court now provides its findings of fact and conclusions of law. For the reasons set forth below, the Court finds that the Government is liable for medical negligence by physicians who provided medical care to Z.R. Accordingly, the Court will enter judgment for Plaintiffs and award damages as detailed in the accompanying Order.
On July 19, 2019, Plaintiffs initiated this FTCA action against the Government, seeking to recover damages for allegedly negligent medical care during and in relation to a routine Bilateral Myringotomy Tympanostomy and Tubes (“BMTT”) and adenoidectomy surgery performed on Z.R. at WRNMMC on September 13, 2016. In Count One of the Complaint, Plaintiffs allege that the surgical team assigned to Z.R.'s case, consisting of attending otolaryngologist (ear, nose, and throat physician, or “ENT”) Dr Scott Brietzke, resident ENT Dr. Thomas Townes, attending anesthesiologist Dr. Christine Gerbstadt, and resident anesthesiologist Dr. Peter Willett breached the applicable standards of care and thereby caused Z.R. to go into cardiac arrest and suffer an anoxic brain injury, which resulted in permanent brain damage. In Count Two, Plaintiffs allege that these same physicians breached the duty of informed consent by failing to disclose the material risks and consequences associated with the surgery in light of the fact that Z.R. was at heightened risk from being placed under anesthesia because he was a one-year-old child with both hemoglobin S.C. (“sickle cell”) disease and reactive airway disease. At the conclusion of the trial, Plaintiffs, the Government, and Intervenor Donald L. Mooney Enterprises, LLC submitted supplemental trial briefs, which the Court has reviewed and considered in formulating its findings of fact and conclusions of law.
During the course of the bench trial, which began on March 21, 2022 and ended on April 6, 2022, the following witnesses testified: (1) Plaintiffs Ms. Harris-Reese and Sgt. Reese (2) six current or former health care providers working at WRNMMC on the day of the surgery, consisting of Dr. Brietzke, Dr. Townes, Dr. Gerbstadt, Dr. Willett, WRNMMC Chief of Anesthesiology Dr. Kyle Berry, and Kevin Gutierrez, a circulating nurse who participated in the surgery; (3) Plaintiffs' medical expert witnesses, consisting of anesthesiologist Dr. William Greeley, Professor of Anesthesiology and Pediatrics at the Duke University School of Medicine, ENT Dr. Charles Myer, Professor of Pediatric Otolaryngology and Residency Program Director at the University of Cincinnati College of Medicine, and pediatric neurologist and epileptologist Dr. Stephen Nelson, Professor of Pediatrics, Neurology, Neurosurgery, and Psychiatry at the Tulane University School of Medicine; (4) the Government's medical expert witnesses, consisting of anesthesiologist Dr. Gregory Hammer, Professor of Anesthesiology and Pediatrics at the Stanford University School of Medicine, ENT Dr. Ken Kazahaya, Associate Professor of Clinical Otorhinolaryngology at the University of Pennsylvania School of Medicine, and neurologist Dr. Richard Katz, Professor of Clinical Neurology at the Washington University School of Medicine in St. Louis, Missouri; (6) Plaintiffs' life care planning expert witness Dr. Elizabeth Davis; (7) Plaintiffs' expert economist Dr. Thomas Borzilleri and Defendants' expert economist Chadwick Staller; (8) corporate designee Andrew Mooney of Donald L. Mooney Enterprises, LLC; and (9) two employees of the Defense Health Agency, consisting of Jeremy Schneider and Melissa Oliva. Based on the trial testimony, as well as the deposition testimony and exhibits admitted at trial, the Court finds the following facts.
Z.R. was born on September 1,2015 to Ms. Harris-Reese and Sgt. Reese. During his first year of life, Z.R. was diagnosed with sickle cell disease and reactive airway disease, which would be considered asthma after the age of one. He experienced a series of ear infections, upper respiratory infections, and a sickle cell pain crisis which required emergency room visits or treatment at several hospitals, including visits to Nemours Hospital for Children in November 2015 for vomiting over a three-day period and an upper respiratory infection, to Christiana Care Health System in January 2016 for a possible sickle cell pain crisis, and to the University of Maryland Baltimore Washington Medical Center in April 2016 for wheezing and coughing and an upper respiratory infection. Z.R. also had pneumonia on two occasions.
Z.R.'s pediatrician referred Z.R. to the WRNMMC Otolaryngology Clinic for an evaluation of the suitability of BMTT surgery to implant ear tubes in order to drain infected fluid from the middle ear and prevent future ear infections. On June 22, 2016, when Z.R. was nine months old, Dr. Brietzke evaluated Z.R. at WRNMMC. He noted that Z.R. had previously experienced two severe ear infections, one as recently as one month prior to the visit during which he had had “purulent ear drainage” and a fever of 103 degrees and which had been resolved with antibiotics. Trial Exhibit (“Ex.”) 226 at USA_Reese 1081-82. Dr. Brietzke also noted that Z.R. had constant “rhinorrhea,” or runny nose, and snoring or “noisy breathing” at night, but that there had been no known apneic episodes involving a cessation of breathing. Id. Dr. Brietzke's examination of Z.R's ears revealed “otitis media bilaterally” and “effusion,” or fluid in both ears, that Z.R. was breathing through his mouth, and that he was audibly wheezing. Id. at USA_Reese 1082-83. Dr. Brietzke was aware that Z.R. had sickle cell disease and reactive airway disease that would likely become asthma. Dr. Brietzke recommended that Z.R. receive a BMTT procedure to address the recurrent ear infections, as well as an adenoidectomy, or removal of the adenoid glands in the back of the mouth, to address the reported snoring and mouth-breathing issues. Id. at USA_Reese 1083, Dr. Brietzke considered both of these procedures to be elective in that they were medically optional. If Z.R.'s parents opted against the surgery, the conditions could still have been treated with medication. Based on Dr. Brietzke's recommendation, Z.R's recurring ear infections, and the fact that Z.R.'s older brother had previously undergone a BMTT procedure without issue, Z.R.'s parents decided to proceed with the surgery.
The surgery was scheduled for Tuesday, September 13, 2016, shortly after Z.R.'s first birthday and after his September 2,2016 one-year medical checkup. As of that examination, Z.R.'s sickle cell disease and reactive airway disease were stable, and Z.R. was experiencing neurologically normal development.
On Thursday, September 8, 2016, the week before Z.R.'s surgery, Dr. Brietzke reviewed Z.R.'s case as part of a planning meeting with surgical staff and residents for the following week's procedures. Dr. Brietzke and a resident called Z.R.'s hematologist, Dr. Kip Hartman, and asked for input on how the surgical team could best manage the risks of surgery in light of Z.R.'s sickle cell disease. Dr. Hartman recommended that Z.R. be admitted to the hospital following surgery but did not advise that Z.R. required admission before the surgery. Based on Dr. Hartman's recommendation, and because Dr. Brietzke considered Z.R. to be a complex patient due to his sickle cell disease, Dr. Brietzke scheduled Z.R. to be admitted for further treatment and observation following the surgery.
The day before the surgery, on Monday, September 12,2016, Dr Gerbstadt and Dr. Willett learned that they had been assigned to serve as the anesthesiologists for Z.R.'s surgery. After reviewing Z.R.'s medical records and noting his sickle cell disease and reactive airway disease, Dr. Gerbstadt expressed concern to other pediatric anesthesiologists at WRNMMC about the difficulty and risk of the case, and she even asked two of her colleagues to perform the procedure in her place, but they declined. Dr. Gerbstadt also voiced concerns about the surgery to her supervisor, pediatric anesthesiologist and WRNMMC Chief of Anesthesiology Services Dr. Kyle Berry, who told her that since she was assigned to Z.R.'s case, she was to complete it. Based on her review, Dr. Gerbstadt believed that Z.R. was at high risk for multiple complications from the anesthesia, including brain injury and death, based on his sickle cell disease, history of pneumonia and wheezing, and prior hospital visits, and she ultimately classified Z.R. as a high-risk patient classified at American Society of Anesthesiologists level three (“ASA III”)...
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