Kapuschinsky v. United States, Civ. A. No. 7646.

• Decision Date: 04 October 1966
• Docket Number: Civ. A. No. 7646.
• Citation: 259 F. Supp. 1
• Court: U.S. District Court — District of South Carolina
• Parties: Rayne Francine KAPUSCHINSKY, a Minor, by her Guardian ad Litem, Raymond S. Kapuschinsky, Plaintiff, v. UNITED STATES of America, Defendant.

259 F. Supp. 1

Rayne Francine KAPUSCHINSKY, a Minor, by her Guardian ad Litem, Raymond S. Kapuschinsky, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 7646.

United States District Court D. South Carolina, Charleston Division.

October 4, 1966.

COPYRIGHT MATERIAL OMITTED

Gedney M. Howe, Jr., Arthur G. Howe and Joseph W. Cabaniss, Charleston, S. C., for plaintiff.

Terrell L. Glenn, U. S. Atty., Columbia, S. C., and Thomas P. Simpson, Asst. U. S. Atty., Charleston, S. C., for defendant.

HEMPHILL, District Judge.

Before the court is the remaining issue of damages; if due, in what compensatory amount; if not due, the reasons therefor. Previous findings favored plaintiff on the issue of liability. Kapuschinsky v. United States, 248 F. Supp. 732 (D.S.C.1966).

Feeling the necessity of supplementing the evidence previously admitted at trial this court directed further examination and additional arguments on the issue of damages.

It was developed that plaintiff had undergone three additional operations and it was agreed that she would be reexamined and testimony was taken on April 21, 1966, from Dr. Oscar S. Reeder, an orthopedist who examined the child on behalf of the plaintiff, from the child's mother, Mrs. Raquel Kapuschinsky, and from Dr. Seymour Zimbler, a Lieutenant Commander in the Naval Medical Corps, who testified for the government. The child was also exhibited to the court and her gait and appearance noted. Since the April hearing no other testimony has been offered, or is expected.

From the accumulation of credible evidence this court finds, in detail, the following consequences of the negligence of defendant:

LEFT ELBOW

Testimony revealed an infection of the left elbow which has resulted in a 15 or 20 degree limitation of extension as reported by Dr. J. M. Flowers, Jr., a physician who examined the child on behalf of the plaintiff. Dr. Flowers testified that this was a permanent condition. Dr. J. A. Siegling, who made an examination at the request of the defendant, found a 30 degree limitation of extension in the left arm. Dr. Zimbler found approximately 20 degrees limitation of extension and Dr. Reeder 10 degrees in extension and 10 degrees in supination. In their opinion this condition is permanent and can result later in traumatic arthritis of the joint.

RIGHT ARM

Dr. R. I. Sorenson, the Navy orthopedist originally attending the child, found a 45 degree limitation of extension of the right arm as the result of infection and a pathologic fracture due to the disease process. Dr. Siegling also found a 45 degree limitation of extension of the right arm, and Dr. Zimbler a 60 degree limitation. Dr. Siegling also found a 15 degree lack of supination which would grow less with the passage of time. Dr. Flowers also found a 45 degree limitation of motion and felt that this condition was probably permanent.

LEFT HIP

Dr. Sorenson originally examined the child on November 26, 1961, and found a bulging in the area of both hip joints. He made a tentative diagnosis of aseptic biarthrosis of the hip joint and made an incision under local anesthetic removing one or two ounces of grossly purulent material from each hip and thereafter inserted drainage tubes. In June of 1963 he found the left hip clinically normal, but x-rays showed residual damage from the infection.

Dr. Siegling examined the child on December 31, 1963, and found some limitation of motion of the left hip in external rotation. He also reviewed x-rays taken of the child and testified "as far as the left hip is concerned there is evidence that there has been a destructive process in the joint and while the hip is not dislocated I believe, with the passage of time there would be pain in the hip later on in life."

On March 19, 1965, Dr. Zimbler performed an operation on the left hip for a subluxation of the left hip and a contracture of the adductor muscles. The adductor brevis muscle and the adductor longus tendon were sectioned or cut. Doctor Reeder found a 30 degree limitation of flexion in the left hip at present and noted that "in view of incongruities of the joint surfaces and the component parts of the hip, a traumatic arthritis could develope in early adulthood or later."

RIGHT HIP

Both Dr. Sorenson and Dr. Siegling found an instability and telescoping of the right leg at the right hip joint.

Dr. Siegling did not feel that anything could be done to cure the injury to the right hip although it would be possible to perform an arthrodesis which would result in making the hip permanently stiff.

Dr. Zimbler, however, performed an operation on the right hip similar to that performed on the left hip on March 19, 1965, and sectioned the adductor longus muscles. This did not stabilize the hip, and on April 29, 1965, another operation was performed at which time an incision was made into the capsule of the hip joint and the hip joint opened. The capsule was markedly thickened being a half inch thick in several areas with considerable scar tissue within the hip joint. There was no true acetabulum or socket and the major portion of the femoral head, or the ball of the thigh bone which fits into the hip socket, was reduced to a "very small nubbin."

A transverse cut was made with a Gigli saw over the place where the acetabulum was supposed to be, and a two-by-one-inch bone graft was placed in this cut and fastened with wire. The child was placed in a solid hip spica cast and later on June 14, 1965, there was another operation for the removal of the wire.

Dr. Zimbler noted that osteoarthritis would probably manifest itself in both hip joints between the ages of thirty and fifty which might well require surgical procedures in one or both hips. This was confirmed by Dr. Reeder.

RIGHT LEG

In addition to the damage to the femoral head referred to above there was also damage to the right femoral capital epiphysis and epiphyseal plate. This is the growth area of the bone in the upper part of the thigh and as a result Dr. Siegling felt that the right leg would be two inches or more shorter than the left. Dr. Sorenson on his examination in June 1963 found that the right leg was one inch shorter than the left at that time, and Dr. Flowers also found a one-inch shortening of the right leg. Dr. Siegling found only a one-quarter inch shortening of the leg but stated "as a result of the damage to the head of the femur and to the epiphysis * * * as the child grows with the dislocated hip there might be as much as two or perhaps a little more inches of shortening when the child is grown." He recommended that an operation be performed on the left leg to slow down its growth in order to equalize the legs and testified that this operation would require ten days' hospitalization and that it would consist of making "an incision on either side of the bone taking out a block of bone and placing a graft across the bone effectively stopping the growth of that area." He estimated that the cost of this procedure and hospitalization would not exceed Two Thousand ($2,000.00) Dollars. Dr. Zimbler found that the right femoral capital epiphysis had reappeared but was unable to estimate how much it might contribute to future growth. Dr. Reeder estimated the eventual discrepancy as one to one and a half inches.

By postponing the issue of damages the court was able to fully review the testimony originally presented; additional information was sought and studied as a result of the April hearing; the progress of the child was noted, and the opportunity of another observation of the walk, disfigurement, and attendant difficulties assured the court of the benefit of comparison, first, to the testimony: secondly, to the physical condition and/or progress as a result of the passage of time.

THE WHOLE PERSON

This court has detailed specific injuries separately to record their extent and the various prognoses¹ as to the direction and impact of her difficulties. As of this time she has a life expectancy, at age four, of 65.10 years² during which she may expect the plaguing, diminishing or increasing results as the doctors have described and the court from their testimony, and that of others, may envision. She presently suffers limitation of motion in both arms, and walks with a noticeable "sway back" and drags the right leg. In the normal course of growth the right leg will be shorter than the left. This can possibly be corrected by an operation, but granting a completely successful operation, there will be a resulting decrease in stature and a disproportion in the bodily measurements.

There is considerable probability of traumatic arthritis in both hip joints, testimony that this will result in pain which will increase progressively as the plaintiff becomes older.

Plaintiff will be confronted with the fact that she is permanently crippled and cannot engage in games, sports and other activities that are open to friends and contemporaries. Psychological damage is much more likely to occur to a child than to an injured adult whose character and personality have formed.

Plaintiff will be barred from many types of work and due to the hip involvements may even be handicapped in sedentary occupations.

While the majority of the doctors feel the limitation of motion in the arms will not greatly change, the testimony with regard to the injury to the hips and legs establishes that these conditions will most probably become worse. She now walks with a sway back and a dragging of the right leg. The right foot is turned out approximately forty-five degrees. There is no operative procedure available which will improve this, and Dr. Zimbler and Dr. Reeder recommended continued physiotherapy.

The physicians agree on the probability of increased pain from arthritic changes in the damaged joints as the plaintiff becomes older.

The operations recommended by Dr. Reeder and Dr. Zimbler would probably be performed after the age of thirty and the plaintiff would no longer be...