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

• Decision Date: 03 January 1966
• Docket Number: Civ. A. No. 7646.
• 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.

248 F. Supp. 732

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.

January 3, 1966.

Gedney M. Howe, 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.

Negligence action against the United States under the Federal Tort Claims Act; minor plaintiff claims she suffers a severe and permanent disabling condition as a direct result of the government's negligence while she was a newborn infant in the United States Naval Hospital, Charleston, South Carolina. The government admits permanent injury and damage is not denied, contended is absence of negligence on its part, denies the sufficiency of any showing of its negligence as the proximate cause of the child's injuries.

The evidence presents minimal factual dispute. On November 14, 1961, Raquel Charlotte Kapuschinsky, dependent wife of Staff Sergeant Raymond Kapuschinsky, United States Air Force, gave birth prematurely to a daughter, Rayne Francine Kapuschinsky, at the United States Naval Hospital, Charleston, South Carolina. The child's weight at birth was approximately 2 pounds 15 ounces and upon examination she was found to be an immature premature child exhibiting many of the symptoms associated with prematurity. From the time of birth and for the entire period of relevance here, the child was in an isolette¹ in the Premature Nursery. This nursery was in a room separate from the Newborn Nursery in which full term infants were kept. The isolette in which the child was kept because of its weight and respiratory difficulty kept it separate from its outside surroundings and in a sense provided an artificial environment for the child designed to take care of its particular and urgent needs. Shortly after birth, hospital personnel noticed that the child was slightly jaundiced. The jaundice became gradually progressive and the child became increasingly lethargic. By November 18, her condition was such that she was placed on the critical list. Because of the progression of the jaundice, it became necessary to perform femoral taps (withdrawing blood from the femoral vein) for the purpose of bilirubin (a substance in the blood) determinations. Exact determinations of the bilirubin level in the blood was ruled essential since there is a known connection between high bilirubin levels and brain damage in newborn infants. The progressive jaundice made necessary 3 femoral taps over a 5 day period, namely November 17, 18, and 21. On November 22 these taps were discontinued because the jaundice was gradually clearing, and the child appeared to be easing toward recovery. Dr. John Finklea, the physician at the time in charge of the nursery, stated that on November 21st he noted that the umbilical cord was falling off, a completely normal process. He said that there was some redness around the cord but that there was no swelling, hardness, or increased warmth which would be signs associated with infection. A culture was taken from this area which grew out a common organism, proteus vulgaris, and at that time an antibiotic, bacitracin ointment, was applied.

He further testified as follows:

The nurses called my attention to the fact that the child had not been wiggling her legs as much as usual on the 25th. At that time I examined the child. To that time the child did not have limitation of motion in her hips, she had no swelling, she had no redness when she wasn't kicking. Again this is something that is seen in infants * * * On Sunday morning the 26th * * there was obvious swelling and warmth in the child's hips. She had fever. She had not had fever before, and it was apparently an infectious process. (transcript pp. 210-211.)

Doctor Finklea's conclusion that there had been no previous manifestation of fever, no previous manifestations of infectious process in the hips, and that the child had been improving up to the 26th is refuted by the hospital record in which these notations appear:

11/23/61 Baby still lethargic, not as much as couple days ago, also still jaundice. Cond. app. unchanged. * * * cries when disturbed. Lower extremities rigid — keeps legs & hips wide apart. Still jaundiced. Resp. fairly reg. also pulse. Temperature elevated to 99.6° at 1800. Condition poor.

11/24/61 No change (and yellow stools noted). * * *

11/25/61 No apparent change in condition. Legs rigid. Temp. 100°.

Removed from CL (critical list) * * * by Dr. Finklea. Dr. Finklea aware of baby's hips and legs. Lethargic (and yellow stools noted).

11/26/61 Temp. 101° at 0650. Cond. appears poor. Some swelling noted both hips. Placed on critical list by Dr. Finklea. * * *

The relevance of the foregoing disparity between the testimony and the hospital records will be discussed below where germane.

After the child was placed on the critical list on November 26th, she was immediately transferred from the Premature Nursery to the Pediatric Department where various diagnostic studies were conducted. These studies included x-rays and a general examination of the child. Based upon the findings of Doctor Finklea, Doctor R. I. Sorenson, the hospital orthopedist, was called in to examine the child. Doctor Sorenson found bulging in the area of both hip joints and joined in the other findings made by Doctor Finklea. Based upon these findings, Doctor Sorenson had the child removed from the isolette and incised both hips and drained them sterilely. As the result of this procedure, approximately 1 or 2 ounces of grossly purulent, i. e., infected, material was removed from the hip areas.

At that time, the child was started on antibiotics and the incisions in both hips were irrigated by means of an irrigation drain. After the institution of such treatment, plaintiff began to recover and the hospital records reflect that she continued to progress and gain weight in spite of the infection. X-ray studies before the Court in defendant's Exhibit 5 confirmed the initial diagnosis of osteomyelitis involving both right and left femurs, pelvic girdle, and some involvement of the right humerus.

The material drained from plaintiff's hips was sent to the hospital laboratory for culture and sensitivity studies. These studies determined that the material from the left hip contained Staphylococcus Aureus Coagulase Positive, sensitive² to the drugs Chloromycetin and Furadantin. The material from the right hip was found to contain the organism pseudomonas. It was suspected that this was an overgrowth and that this material actually also contained Staphylococcus Aureus Coagulase Positive. As the result of these laboratory findings, nose and throat cultures were taken from all personnel in the nursery, and it was found that one Corps Wave, Karen Greb (Derteen), had a positive nose culture which showed Staphylococcus Aureus, sensitive to the drugs Aureomycin, Chloromycetin, Terramycin, Tetracyclin, and Furadantin.

Corps Wave Karen Greb (Derteen) entered the Navy March 28, 1961, shortly after completing her high school education. She requested and was assigned to Hospital Corps School after completing a ten week course at Bainbridge, Maryland. Hospital Corps School was conducted at the Great Lakes Naval Center and lasted approximately four months. Mrs. Derteen departed from Great Lakes on October 20, 1961, after the completion of her training and reported to the Charleston Naval Hospital for duty on October 23, 1961, at which time she was assigned to the Newborn Nursery. She was given a physical examination a few days prior to leaving Great Lakes Naval Training Center, was not reexamined upon reporting for duty at Charleston. From October 23, 1961, to November 28, 1961, when the positive cultures were discovered, she experienced no signs or symptoms of any type of illness.

As the result of the child's general physical condition, resulting from prematurity as well as the osteomyelitis described above, the child remained in the hospital some 4 to 5 months before being allowed to go home. During the course of this time she continued to improve and the infection was controlled by the treatment instituted at the hospital. Although the infection was eventually arrested, it is clear that certain permanent residual injuries resulted.

On December 31, 1963, the plaintiff was examined by an orthopedist, Doctor John Arthur Siegling. He found that the child had limitation of motion in the elbow which was minimal and for practical purposes not interfering with function. He found that the right hip was permanently dislocated and that there had been a destructive process in the joint of the left hip which most probably would cause pain in later life. It was his opinion that as a result of damage to the epiphysial (growth) end of the left femur there will be approximately 2 inches difference in the length of the left leg as compared to the right when the child is fully grown. Plaintiff now walks with a severe "sway" and a limp, is required to wear a special orthopedic brace which causes considerable pain.

It is undisputed that there is considerable and serious permanent damage to this child; defendant says simply "no liability." The action is for negligence, not malpractice, as was conceded in an oral argument.

The annotation in 96 A.L.R.2d 1205, 1207, discusses the liability of a hospital to a patient:

A hospital may, under the proper circumstances, be held liable for the negligence or other tortious misconduct of its employees, and * * where this is the case the ordinary rules of tort law apply. Most of the cases herein involve actions based on negligence, and the traditional elements of actionable negligence, namely, the existence of a duty on the part of one person to protect another from

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