Kasongo v. U.S.

• Decision Date: 16 July 2007
• Docket Number: No. 04 C 4901.,04 C 4901.
• Citation: 523 F.Supp.2d 759
• Parties: Innocent Likonga KASONGO, Individually and as Special Administrator of the Estate of Jacqueline Makombe, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Illinois

523 F.Supp.2d 759

Innocent Likonga KASONGO, Individually and as Special Administrator of the Estate of Jacqueline Makombe, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.

No. 04 C 4901.

United States District Court, N.D. Illinois, Eastern Division.

July 16, 2007.

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COPYRIGHT MATERIAL OMITTED

John Stewart W. Muir, David James Pritchard, Salvi, Schostok, Pritchard, Chicago, IL, for Plaintiff.

Gina Elizabeth Brock, United States Attorney's Office (NDIL), Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

REBECCA R. PALLMEYER, District Judge.

Jacqueline Makombe, her husband Innocent Kasongo, and their three children emigrated to the United States after enduring civil war and ethnic strife in central Africa. Raped by soldiers in 1998 during the Second Congo War, Ms. Makombe contracted HIV and subsequently developed AIDS. After arriving in Chicago in July 2000, Ms. Makombe received treatment at Chicago Health Outreach Clinic (the "Clinic"), a federally-funded clinic that provides medical care and social services to HIV-positive refugees and their families. Ms. Makombe's treatment included the AIDS drug Zerit. A rare but known side effect of Zerit is the often-fatal condition lactic acidosis. Although Ms. Makombe developed symptoms of lactic acidosis beginning in August 2001, medical staff at the Clinic did not diagnose the condition until October 22, 2001. By that time, the lactic acidosis was irreversible, and on October 24, 2001, Ms. Makombe died.

Mr. Kasongo, individually and on behalf of his children and his wife's estate, brings this action against the Clinic pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1), asserting claims for negligence under the Illinois wrongful death statute, 740 ILCS 180/1 et seq., and under the Illinois survival statute, 755 ILCS 5/27-6. Plaintiff contends that the Clinic and its employees breached the applicable standard of care by failing to timely diagnose lactic acidosis, and that that failure proximately caused Ms. Makombe's death. The court conducted a bench trial in December 2006 and, for the reasons set forth below, now finds in Plaintiff's favor. The court awards Plaintiff $3.5 million in damages for the wrongful death claim, and $1 million in survival damages.

BACKGROUND¹

The basic facts of this case are undisputed. Beginning on July 24, 2000, Ms. Makombe received treatment for HIV and AIDS at the Clinic. (¶ 4.) That treatment included the antiretroviral drug Zerit, which is the brand name for stavudine. (Id. ¶¶ 22-23.) On October 22, 2001, the Clinic referred Ms. Makombe to Weiss Memorial Hospital ("Weiss"), where she was diagnosed with lactic acidosis. (Id. ¶¶ 25-26.) It is undisputed that the lactic acidosis was caused by Zerit, and that she died as a result of lactic acidosis on October 24, 2001. (Id. ¶¶ 27-28.) The dispositive issue in this case, for purposes of liability, is whether the standard of care required the Clinic to have diagnosed lactic acidosis prior to October 22, 2001.

Plaintiff Innocent Kasongo, Ms. Makombe's surviving spouse, is the appointed, qualified and acting personal representative of Ms. Makombe's estate, and has been authorized by Illinois courts to bring this action on behalf of their children Moises Kasongo, Ange Kasongo, and Sara Kasongo. (Id. ¶¶ 7-8.) The federally-funded Clinic, and all its employees who provided care and treatment to Ms. Makombe, have been deemed by the Department of Health and Human Services ("DHHS") to be employees of the United States for purposes of the Federal Tort Claims Act, 28 U.S.C § 1346(b)(1). (UF ¶¶ 5-6, 9-12.)

Clinic care providers and employees. Dr. Marcia Katz, Mary Tornabene, Tamara Falk, Celine Boers, Mary Lynn Everson, and Heidi Nelson testified as adverse witnesses during Plaintiffs case-in-chief. Mr. Kasongo testified as well. Dr. Larry Rumans, Dr. Richard Novak, and Sheldon Fields testified as medical experts for Plaintiff, and Gerald Richard testified as an expert in the area of document examination. Dr. Harold Kessler and Bradford Farrington testified as medical experts on behalf of the United States.

A. The Parties

1. Jacqueline Makombe and Her Family

Ms. Makombe was born in what is now known as the Democratic Republic of the Congo on April 24, 1962. Although she was raised Congolese, her parents, who had emigrated from Rwanda in 1959, were of Tutsi descent. Mr. Kasongo was also born in the Congo and is Congolese. Mr. Kasongo and Ms. Makombe were married in 1987 in a folk ceremony, and renewed their vows in a civil ceremony in 1994. They settled in Kinshasa, the capital of the Congo, in 1989. Their three children are Moises, who was born on April 13, 1991; Ange, born on November 19, 1993; and Sara, born on May 22, 1996. (Kasongo 12/13/06.)

Mr. Kasongo holds a diploma in economics and finance, and also received a diploma in "expert detective work" to assist with an accounting practice in which he investigated money laundering. His native language is French, and although he is able to communicate in English, he testified at trial through an interpreter. (Id.)

At trial, Mr. Kasongo told a harrowing tale of his family's experiences in Africa during what are known as the First and Second Congo Wars. He explained that in 1996, the Tutsi Rwandan government funded a rebellion, led by Laurent Kabila, to overthrow Mobuto Sese Seko, the longtime ruler of the Congo (then known as Zaire). The war lasted six months. Because Ms. Makombe was Tutsi, she was in danger; Mr. Kasongo testified that in Kinshasa, Tutsi civilians were burned alive in the streets. He contacted the International Red Cross, which evacuated the family to Brazzaville, across the Congo River in the neighboring Republic of the Congo. Mr. Kasongo then brought the family to Rwanda, whose government had offered asylum to Congolese Tutsi. In Rwanda, however, Mr. Kasongo experienced difficulties because his physical experience led people to believe he was Hutu.² After Kabila prevailed, ending the First Congo War, the family returned to Kinshasa, where Mr. Kasongo opened a grocery store and established businesses in transportation and construction to assist with rebuilding the country's infrastructure. (Id.)

In August 1998, the Second Congo War began with a rebellion against Kabila. Mr. Kasongo described a scene in Kinshasa of massacres and generalized killings. One week after the war began, Mr. Kasongo received a phone call at work, informing him that soldiers had come to his house and taken his wife. A maid reported that thirteen or fourteen soldiers had come to the house, and that four had gone into Ms. Makombe's bedroom, beaten her, and raped her. After learning that his wife was being held in a detention camp for Tutsi and Rwandans, Mr. Kasongo persuaded the camp's commanding officer to allow him to take her. Because she was Tutsi, it was not safe to take her to a hospital; his cousin's wife, however, was a medical student who helped care for her. (Id.)

The family hid in the house for the next fourteen months. Although Mr. Kasongo approached both the International Red Cross and Catholic Charities, they were unable to help the family escape Kinshasa because the borders were closed. Eventually, with the assistance of the United States government, the family was evacuated to a refugee center and ultimately to a transient camp in Cameroon. There, Ms. Makombe was diagnosed with HIV. According to Mr. Kasongo, she never knew how she had contracted the virus; in fact, he had been advised not to tell his wife that she had been raped during the soldiers' assault, because the knowledge might prove too traumatic.³ (Id.)

In July 2000, the family came to Chicago and moved into a small one-bedroom apartment in the Uptown neighborhood. Ms. Makombe immediately began receiving treatment at the Clinic. (Id.)

2. The Clinic

The Clinic, which has been known since 2003 as Heartland Health Outreach, is a wholly owned subsidiary of Heartland Alliance for. Human Needs and Human Rights ("Heartland"). (Nelson 12/12/06.) Heartland provides a number of programs and services, including primary medical care, mental health and addiction services, housing and homeless outreach services, and refugee resettlement programs. (Id.; see http://www.heartlandalliance.org/index. html.) The Clinic operates a community health center for the homeless and working poor, and an HIV/AIDS program that serves approximately 300 un- and underinsured patients. (Nelson 12/12/06; Tornabene 12/11/06.) The Clinic receives approximately two-thirds of its funding from the federal government. (Nelson 12/12/06.)

In 1999, Heartland and the Clinic instituted a program specifically for HIV-positive refugees. (Tornabene 12/11/06.) The Clinic's Executive Director, Heidi Nelson, explained that in the late 1990s, the Clinton administration created a waiver program as an exception to a federal law that precludes individuals with communicable diseases from entering the United States. The waiver allowed HIV-positive refugees to apply for resettlement in the United States if a healthcare provider and refugee resettlement agency could provide care for them. Because Heartland already provided separate HIV primary care and refugee resettlement services, the Clinic was able to quickly set up the program. According to Nelson, the program has been successful at achieving dramatic medical improvements in HIV-positive refugees, and serves as a model for similar programs throughout the country. (Nelson 12/12/06.) In 2001, the program treated approximately 80 HIV-positive refugees and their families.⁴ (Tornabene 12/11/06.)

As of October 2001, the Clinic as a whole employed three doctors, five or six nurse practitioners, eight or nine registered nurses, and two midwives. (Tornabene 12/11/06.) At the times relevant to this lawsuit, Nelson was the Executive Director of the Clinic, and Mary Lynn Everson was the managing director; neither is a...