Jennings v. U.S., C.A. No. 9:04-1192-PMD.
| Decision Date | 20 December 2006 |
| Docket Number | C.A. No. 9:04-1192-PMD. |
| Citation | 487 F.Supp.2d 644 |
| Court | U.S. District Court — District of South Carolina |
| Parties | Britney Michelle JENNINGS and Christine Johnson, Plaintiffs, v. UNITED STATES of America, Defendant. |
Samuel L. Svalina, Samuel S. Svalina, Svalina Law Firm, Beaufort, SC, for Plaintiffs.
John H. Douglas, U.S. Attorneys Office, Charleston, SC, for Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
After hearing and reviewing the testimony and evidence presented during the three-day bench trial of this case from September 26, 2006, through September 28, 2006, and considering the deposition transcripts filed with the court and the stipulations of the Parties, this court makes the following Findings of Fact:
FINDINGS OF FACT
1. Plaintiff Christine Johnson (hereinafter, "Mrs. Johnson") was, at all times material hereto, the natural mother and legal guardian of Plaintiff Britney Jennings (hereinafter, "Britney"). On December 23, 1997, Mrs. Johnson and Britney were both dependents of Sergeant Herschel Johnson, an enlisted United States Marine stationed in Meridian, Mississippi.
2. Plaintiff Britney Jennings ("Britney") was 11 years old at the time she sustained an injury at her home on December 23, 1997, at the Naval Air Station near Meridian, Mississippi. She was crawling around on shag carpeting when she accidentally impaled a toothpick through the skin over the front of her left kneecap.
3. Mrs. Johnson immediately took Britney to the Branch Medical Clinic at Meridian Naval Air Station (hereinafter "BMC"). Defendant United States of America was the official owner and manager of the United States BMC in Meridian, Mississippi, and had complete control over the operation and administration of BMC on December 23, 1997.
4. On December 23, 1997, BMC was a medical clinic limited to providing diagnosis, care, and treatment to active duty military personnel who presented with minor, non-invasive, medical problems that required minor first aid medical care. BMC was not an emergency medical facility or an emergency department and, therefore, was not managed, equipped, or staffed to provide emergency medical care to patients requiring invasive medical or surgical diagnosis and treatment. BMC was equipped with a conventional x-ray, but was not staffed with a radiology technologist to perform an underpenetrated, soft tissue x-ray procedure of Britney's injured left knee or a radiologist to interpret said x-ray.
5. On December 23, 1997, BMC was not equipped or staffed to perform a CT, ultrasound, MRI, or other diagnostic imaging procedures.
6. Britney received treatment from then-LT Collette Scheurer, MC, USNR. Dr. Scheurer has since divorced, been remarried and, been promoted, so she is currently LCDR Collette Ehnow. For clarity, she will be referred to here only by her name at the time she treated Britney in 1997: Dr. Collette Scheurer.
7. Dr. Scheurer began serving as a flight surgeon at the BMC in May of 1997. In that capacity, she was providing primary medical care to Navy and Marine personnel and their dependents. The BMC was a small clinic, staffed by five to six doctors. On December 23, 1997, Dr. Schuerer was the duty doctor.
8. Britney arrived at the BMC Acute Care Clinic at 11:30 am. The BMC was closing at noon on that day in recognition of the Christmas holiday.
9. Mrs. Johnson advised Dr. Scheurer that Britney had been crawling on the floor and had impaled a dirty old toothpick in her knee. Neither Britney nor her mother knew whether Britney had been injured by a complete toothpick or just a fragment.
10. It is common knowledge that an entire standard, wooden toothpick has two sharply pointed ends and is approximately 2.5 inches (or 6.5 centimeters) in length.
11. When Dr. Scheurer examined Britney, she saw about half of a toothpick protruding from the skin over' Britney's kneecap. The toothpick was loose in the wound and Dr. Scheurer removed the protruding portion of toothpick by hand without resistance. The piece of protruding toothpick removed by Dr. Scheurer had one pointed end and one frayed and/or broken end and was not an entire, standard length toothpick. Dr. Scheurer noted in her record of medical care, "object removed → only ½ toothpick obtained ? of remaining toothpick in knee."
12. Because Dr. Scheurer was the only treating physician who saw the size, angle, point of penetration, and the condition of the protruding piece of toothpick, she was the only treating physician who had the best opportunity to remove the entire toothpick from Britney's left knee.
13. Prior to pulling out the piece of protruding toothpick from Britney's left knee, with her fingers, Dr. Scheurer did not know the length of the toothpick and did not order any diagnostic imaging studies to be performed; further, Dr. Scheurer did not suggest that Britney be taken to any one of the three hospitals in Meridian, fifteen miles away, that were equipped to perform a CT, ultrasound, MRI, or any other diagnostic imaging procedure.
14. Immediately after removing the protruding fragment of toothpick, Dr. Scheurer suspected but did not know if any toothpick remained in Britney's knee. Dr. Scheurer should have reasonably believed, or known, there was a high likelihood that a piece of toothpick remained in Britney's left knee because when she pulled out the protruding end point of the toothpick, the other end of that toothpick did not have a point and was jagged.
15. Wood, if left within the human body, is a highly inflammatory and infectious foreign body. If wood remains in a wound, antibiotics are ineffective in preventing an infection; complete removal of the wooden foreign body is necessary to lessen the likelihood of infection.
16. Wooden foreign objects cannot be seen on conventional x-rays because wood has the same density as the surrounding tissue, but the point of entry of a toothpick impaled into a knee can be seen and localized on a conventional x-ray. Wooden foreign objects can be seen in soft tissue using an x-ray technique that is underpenetrated. This technique may show gas around the foreign object and, because the soft tissue is underpenetrated by x-rays, it may show the contrast between wood and tissue.
17. At the time of the initial injury, a CT, ultrasound, or MRI most probably would have shown any retained wooden foreign bodies within Britney's soft tissue. After the wooden foreign body has remained in the soft tissue and has become saturated with bodily fluids, it becomes less likely that it will be visible in any of these types of imaging. As such, the best time to determine if a wooden foreign object was retained in Britney's soft tissue was at the time of initial injury.
18. Because she had removed only half of a standard sized toothpick, Dr. Scheurer was concerned that there might be additional toothpick fragments in the wound and obtained consent to explore the wound. Dr. Scheurer performed a local wound exploration through an approximately one-centimeter incision using local anesthesia. No more toothpick was found. Because Dr. Scheurer did not find any remaining toothpick in Britney's left knee, she assumed, concluded, and/or noted in her medical record, "object removed." Dr. Scheurer then irrigated the wound to clean it out and closed it with sutures. Britney was released to her mother with a prescribed antibiotic, and with instructions to return for a wound check in twenty-four hours and for removal of her stitches. in 5 to 7 days.
19. After Dr. Scheurer advised Mrs. Johnson to return with Britney the next morning for a wound check, Mrs. Johnson told Dr. Scheurer that they were going to Beaufort, South Carolina, the following day for the holidays and asked if they could instead go to the Beaufort Naval Hospital ("BNH") for the wound check. Dr. Scheurer told them that would be acceptable. The corpsman assisting Dr. Scheurer entered a note in the Acute Care Clinic log that Britney was
20. It is now undisputed that Dr. Scheurer did not remove all of the toothpick that was in Britney's knee. As a result of the wooden foreign body remaining in her knee, Britney suffered severe infections and inflammation, in that area. Over the next two years, Britney underwent four additional surgeries before all remaining portions of toothpick were finally successfully removed and the resulting infections were addressed. Following Dr. Scheurer's failure to remove the toothpick fragments, Britney's medical history as it relates to her knee is as follows:
21. Britney did not go for the wound check the following day as directed, either in Beaufort or in Meridian. Britney went to the Emergency Medicine Department at BNH five days later on December 28, 1997, with complaints of pain and swelling in her left knee. Britney was evaluated and treated by Dr. William T. Robinson, a civilian contract emergency medicine physician. Dr. Robinson was not a federal employee. Dr. Robinson ordered a two-view x-ray series of Britney's knee to rule out any retained foreign body in Britney's knee, which the radiologist interpreted as remarkable only for fluid around the knee joint. No foreign body was seen. Following consultation with the orthopedic surgeon on call, Dr. Thor R. Rhodin, Dr. Robinson removed the sutures. No drainage, was noted. A sterile dressing was applied. Britney was treated with Motrin, a knee immobilizer, and crutches. She was advised to continue taking the antibiotic and to follow-up in the Orthopedics Clinic at BNH the following day (December 29, 1997).
22. Britney went to BNH Orthopedics on the afternoon of December 29, 1997, and saw Dr. Meade Luby, a contract orthopedic surgeon. Neither Dr. Luby nor Dr. Rhodin (the orthopedic surgeon who had been consulted the day before) were federal employees.
23. Although Britney was seen by Dr. Luby on December 29, 1997...
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