Keir v. U.S.

• Decision Date: 08 September 1988
• Docket Number: No. 87-5586,87-5586
• Citation: 853 F.2d 398
• Parties: Karen KEIR and Mary Keir, Individually, and as Next Friend and Mother of Karen Keir, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 398

853 F.2d 398

Karen KEIR and Mary Keir, Individually, and as Next Friend and Mother of Karen Keir, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 87-5586.

United States Court of Appeals, Sixth Circuit.

Argued March 14, 1988.

Decided July 22, 1988.

Rehearing Denied Sept. 8, 1988.

C.J. Gideon, Jr. (argued), North & Gideon, Nashville, Tenn., for plaintiffs-appellants.

Joe B. Brown, U.S. Atty., Nashville, Tenn., Douglas Thoreson (argued), for defendant-appellee.

Before MILBURN and BOGGS, Circuit Judges, and ALDRICH, District Judge ^*.

MILBURN, Circuit Judge.

Plaintiffs Karen and Mary Keir appeal from the judgment of the district court in favor of defendant United States of America in this medical malpractice action under the Federal Tort Claims Act ("FTCA"). For the reasons that follow, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion.

I.

This litigation arises out of a course of events ending in plaintiff Karen Keir's loss of the sight of her left eye. A premature, low birth weight infant, Karen was born on March 9, 1975, suffering from hyaline membrane disease. Karen underwent oxygen therapy shortly after birth, and received close ophthalmological follow-up to guard against the development of retrolental fibroplasia, an ophthalmological disorder which often follows intensive oxygen therapy. By the age of two, the risk of development of this disorder becomes nonexistent. Consequently, there remains no need for subsequent retinal examinations to rule out this disorder after a child passes beyond that age.

On September 30, 1977, when Karen was two and one-half years of age, her father, a drill sergeant in the United States Army, was stationed at Fort Campbell, Kentucky. On that date, Karen's parents took her to the military optometry clinic at Fort Campbell because Karen's left eye had begun turning in intermittently, a condition known as strabismus or accommodative esotropia. Karen was again examined at the Fort Campbell Optometry Clinic on November 28, 1977. Major Richardson, who examined Karen on this visit, noted that her left eye continued to turn inward on occasion even when she was wearing her glasses. J.A. 123.

In early 1978, Karen's father was transferred to Korea, and Karen and her mother moved to Nashville, Tennessee. Dr. Willard Tirrill, a Nashville ophthalmologist, treated Karen from January 26, 1978, until February 6, 1979. On Karen's second visit, February 27, 1978, Dr. Tirrill performed a dilated examination. He concluded that Karen suffered farsightedness and accommodative esotropia, treated her with glasses, and believed that this therapy was effective.

Although Dr. Tirrill's records reflect that he dilated Karen's eyes during the February 27, 1978, examination, his records do not reflect whether he used a direct or an indirect ophthalmoscope. The difference between the two is of crucial significance in this case. A direct ophthalmoscope is primarily utilized to examine the retina's posterior segment. An indirect ophthalmoscope is utilized to visualize a greater part of the retina. Use of an indirect ophthalmoscope may permit visualization to the equator of the eye and perhaps slightly anterior thereto, depending upon the cooperation of the patient. In any event, this examination did not result in the detection of pathology. Dr. Tirrill dilated Karen's eyes again on February 6, 1979, and once again the examination was negative for pathology.

Dr. Tirrill testified that he was unable to determine Karen's visual acuities during the period in which he treated her. The reason for this is that small children are unable to communicate effectively, and thus the ability to determine the quality of the child's vision is impeded. He testified that, when Karen left his care, he did not have any clinical basis to suspect that Karen suffered any abnormality other than accommodative esotropia.

Subsequent to February 6, 1979, the Keir family was transferred to Fort Dix, New Jersey. Mrs. Mary Keir contacted the central medical appointment desk at Fort Dix and requested an appointment with an ophthalmologist. Mary Keir was told that hospital policy required her to see an optometrist first, and that after this initial evaluation, she would be referred to an ophthalmologist.

Mary Keir scheduled an appointment for July 20, 1979. At that time, she and Karen reported to the optometry clinic at Fort Dix. Mary Keir testified that upon their arrival, "a man called us back and checked her glasses and did a little eye test on her and told me to wait in the waiting room, that we would see Dr. Channing." J.A. at 140. "Dr. Channing" is Major, now Lieutenant Colonel, Eugene Channing, an Army optometrist.

Mary Keir testified that when she and Karen went into Dr. Channing's office, she observed that it looked like the other offices in which Karen had been treated. She further testified that she believed Dr. Channing was an ophthalmologist. J.A. 142.

Dr. Channing testified that the standard of care required him to take a medical history from the patient upon her initial visit. J.A. 191. Instead of writing on Karen's chart that she developed strabismus at age two and had been under the care of an ophthalmologist since birth, he described her ocular history as negative. He elaborated on the statement by noting on the chart that she had a left esotropia. Dr. Channing explained his failure to record this medical history by noting that the information was available in other medical records. J.A. 192. However, when answering interrogatories, he stated that Mary Keir did not inform him of Karen's complete ocular history until her last visit on August 11, 1980. When confronted with this discrepancy, Dr. Channing stated that the answer to the interrogatory was incorrect. J.A. 263.

At Karen's initial visit on July 20, 1979, Dr. Channing measured Karen's glasses with a lensometer and took her visual acuities in order to determine whether her prescription was correct. He examined the external structure of Karen's eyes and noted no swelling, infection or lesions. He then utilized a direct ophthalmoscope to evaluate the internal structure of Karen's eyes. He testified that the use of a direct ophthalmoscope was consistent with the standard of practice in the state of New Jersey at the time. In the course of this undilated examination with a direct ophthalmoscope, Dr. Channing was able to visualize the fovea of the eye, the optic disc, the optic nerve, the visual axis, the macula, and the media. Dr. Channing detected no pathology at this time. J.A. 231-38.

During the initial visit, Dr. Channing learned that Karen had been under ophthalmological care, and he asked Mrs. Keir to provide him with a letter from Karen's former ophthalmologist. Dr. Tirrill sent such a letter, setting forth his general findings and evaluation. The letter also stated that Karen was to be examined in four months by an ophthalmologist in New Jersey.

At all times relevant to this dispute, a standard operating procedure ("SOP") in effect at Walston Army Hospital at Fort Dix provided that "[a]ll patients with strabismus, amblyopia and dyslexia are to be referred to the ophthalmologist with their prescribed glasses, if any. The ophthalmologist will then discuss the disorder and treatments to be prescribed." J.A. 66. Despite the existence of this SOP and Dr. Tirrill's statement that Karen should be seen by an ophthalmologist, Dr. Channing continued to treat her.

When Mary Keir gave the letter from Dr. Tirrill to Dr. Channing on September 25, 1979, Dr. Channing read it and put it in Karen's file. He indicated that Dr. Tirrill's findings with regard to Karen's farsightedness were similar to his. Because there was no mention of pathology, and only an indication of a refractive problem, Dr. Channing believed that he as an optometrist could handle Karen's condition through the use of glasses, patching, and possibly training. J.A. 241-46.

During the September 25, 1979, examination, Dr. Channing performed a retinoscopy for purposes of measuring refractive error. The retinoscope allows the examiner to determine that the area of central vision, the macula, is clear and functioning. No visual acuities were taken during that examination. J.A. 246-49.

Karen returned on October 3, 1979, for the purpose of evaluation under cycloplegia, a drug that causes the eye muscles to relax. The results of this examination indicated once again that Karen was farsighted. At that time, Karen's aided far visual acuity was 20/30? in the right eye and 20/40? in the left eye. The discrepancy in visual acuities is characteristic of amblyopia. Accordingly, Dr. Channing advised Karen's mother to pursue alternate patching in an attempt to make the left eye as strong as the right eye, and he instructed her to return with Karen in three months. J.A. 249-53.

Karen returned for a follow-up examination on February 12, 1980. During that examination, Dr. Channing noted that the patching procedure had not been effective because the patch was sliding off Karen's eye and that Karen could not see when the right eye was covered. Mary Keir informed Dr. Channing that Karen did not like the patch, and she was having a difficult time convincing Karen to keep it on her eye. Aided far visual acuities at that time were determined to be 20/30 in the right eye and 20/30 in the left eye. This represented a slight improvement over the visual acuities taken on October 3, 1979. J.A. 211, 256.

Dr. Channing changed Karen's prescription because her lenses were scratched, and he also performed a retinoscopy which showed results similar to those achieved on the previous visit. Dr. Channing observed no redness or inflammation in Karen's eye, indicated that there was no evidence of pathology, and decided to continue the patching procedure for three more months. J.A. 256-58.

Although Mary Keir was instructed to return...