McNeill v. United States

• Decision Date: 24 June 1981
• Docket Number: Civ. A. No. 79-0970-3.
• Citation: 519 F. Supp. 283
• Parties: Bobby G. McNEILL, as Guardian ad Litem of Matthew A. McNeill, a Minor under the age of fourteen (14) years v. UNITED STATES of America.
• Court: U.S. District Court — District of South Carolina

519 F. Supp. 283

Bobby G. McNEILL, as Guardian ad Litem of Matthew A. McNeill, a Minor under the age of fourteen (14) years v. UNITED STATES of America.

Civ. A. No. 79-0970-3.

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

June 24, 1981.

Ellis I. Kahn, Charleston, S.C., and George W. Gregory, Cheraw, S.C., for plaintiff.

Cameron M. Currie, Asst. U. S. Atty., Columbia, S. C., for defendant.

ORDER

GEORGE ROSS ANDERSON, Jr., District Judge.

Plaintiff, Matthew A. McNeill, a minor born October 9, 1977, has instituted this action pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b), and all of the jurisdictional prerequisites have been met. He seeks money damages for alleged medical negligence on the part of employees of Defendant United States of America, acting within the scope and course of their employment, in administering medical care to him at the U. S. Air Force Base Hospital at Myrtle Beach, South Carolina, on August 27th and 28th, 1978. The parents had filed an administrative claim, but did not institute suit. The time during which the parents could file suit has expired.

Matthew McNeill had a relatively problem-free first ten months of life, with normal development, and he so appeared. (T-p. 275) Matthew's father, the Guardian ad Litem here, Bobby G. McNeill, was on active military duty at all times pertinent, and he and his family took leave some time in mid-August of 1978, returning to Myrtle Beach during the later part of August.

Mr. and Mrs. McNeill brought Matthew to the Emergency Room at Myrtle Beach Air Force Base Hospital on August 27, 1978, during the early evening hours, with complaints that his right hand was swollen, reddish on top with a bluish discoloration at the palmer (inner aspect) of the youngster's wrist. There was a rash on his chest. The youngster was lethargic and felt feverish, but Mr. and Mrs. McNeill did not know his temperature as they had no thermometer. They had given him baby aspirin for the fever. (T-pp. 32-33) Sgt. David Denton, a para-medic who was on active duty as part of his reserve commitment, first saw the McNeills when they entered the Emergency Room. He made inquiry as to the nature of the child's problems, and he instructed them to take Matthew into an examining room, to remove his clothing and they showed him the youngster's hand. (T-pp. 34-35) Sgt. Denton created a new chart on the youngster as he had not been a patient at the hospital before. (T-p. 35) The paramedic took the child's temperature, examined the hand and returned with the medical officer of the day who was manning the Emergency Room, Doctor Vincent DeAugustine, a Lieutenant Colonel in the Air Force. Doctor DeAugustine and Sgt. Denton talked, looked at the hand and left, but the physician did not closely examine the child. (T-p. 36) Doctor DeAugustine did not examine the youngster's ears and chest. He did not check his pulse, respirations, he did not move the hand or neck, and he literally did not touch the child. (T-pp. 197-198) As mentioned, the youngster's hand was puffy, with the margin at the wrist bluish, the hand was very sensitive, and the rash on the child's chest was easy to see. (T-pp. 38-39) Doctor DeAugustine indicated that he thought that Matthew had a bug bite on the hand (T-p. 40), but in fact there were no "bite marks" on the hand at all. (T-pp. 41, 201, 276) Doctor DeAugustine made a diagnosis of "cellulitis." (Cellulitis is an inflammation of soft supporting tissue under the skin.) Sgt. Denton brought back some antibiotic medication (Ampicillin) to be given orally, one teaspoon every six hours. (T-pp. 41-42) Instructions were given that the medication should be administered, the hand soaked in warm salt water three times a day for fifteen minutes, and the McNeills were told to bring Matthew back if he was not better. (T-p. 42) While in the Emergency Room, Mr. and Mrs. McNeill noted that the child's temperature on the digital readout thermometer was over 101°. (T-pp. 43, 74)

Mr. and Mrs. McNeill followed the prescribed regimen, but by the next morning, August 28th, Matthew still had fever, his hand had swollen more, and it felt warmer. There were still "splotches" on the youngster's chest. He was irritable and the affected hand with cellulitis continued to be sensitive. Mrs. McNeill called her husband at work from a neighbor's telephone, as they only had one car and lived in the country several miles from the Air Force Base. He drove home and they brought Matthew back to the Myrtle Beach Air Force Base Hospital Emergency Room. (T-pp. 43-44)

When Mr. and Mrs. McNeill returned to the Emergency Room they were seen again by Sgt. Denton who instructed them to take Matthew to the examining room. No instructions were given to undress the youngster, but they did show Sgt. Denton that the hand was more swollen. Doctor DeAugustine did not closely examine the child at all, he did no physical examination, but did ask why Matthew had been brought back. Mrs. McNeill responded to the effect that they had been instructed to bring him back in if he did not improve or if his condition worsened. As mentioned, Doctor DeAugustine made no examination, he did not instruct that the child be undressed, and he did not even direct that the youngster be placed on an examining table. Mrs. McNeill simply held Matthew in her arms, and Doctor DeAugustine stated, in effect, that the McNeills were abusing the Emergency Room, that they had not given the medicine sufficient time to work over a period of ten to fourteen days, and that the youngster should not have been brought back so soon. Mr. McNeill asked for a blood test of some type and Doctor DeAugustine informed him, in effect, that he was the doctor. Pointedly, no one examined or touched the child.¹ (T-pp. 45-47, 197-198)

The McNeills returned the youngster to their home where over the next few days there was no substantial change. The swelling on the hand went down some, but it stayed sore. The fever varied. (T-p. 202) The child was given the medication, although it appears that he did not receive a full dosage over the ten days to two weeks which ensued. This was attributable to the fact that the spoon was not filled up to the brim, and perhaps to the fact that the spoon itself was less than 5 ml. in volume. (T-pp. 47-48, 151)

Matthew did not eat well during this intervening time, he was irritable, and the hand stayed sore. The swelling on the hand did diminish somewhat, but the blue-grayish discoloration continued for a period of time. Finally, not wanting to go back to the facility where she considered that she and her husband were berated and her infant son not treated properly, Mrs. McNeill took Matthew to a local civilian physician, Doctor Arthur Collins on September 18th. The hand was still a little sore at that point and a small amount of the bluish-grayness remained. Matthew had an elevation in his temperature and was still showing some signs of lethargy and irritability which had persisted over the entire period in question. (T-pp. 49-50) Doctor Collins prescribed some medication and told the McNeills to call back if the child did not show some improvement. Improvement was manifested the next day (T-p. 52), but on the morning of September 20th, the youngster started getting "stiff." This occurred around 9:00 A.M. to 10:00 A.M., after Sgt. McNeill had gone to work. (T-p. 52) Matthew did not suffer from any convulsions (T-p. 110) but he was "stiff" and his eyes looked peculiar. He did not respond well when spoken to. As mentioned previously, Mrs. McNeill had to wait for a neighbor to return as there was no telephone for her to call her husband to come for them to go for medical care. She was finally able to reach Mr. McNeill around 11:30 A.M., at his lunch time, he arrived around noon, and they went straight to the Grand Strand Hospital. (T-pp. 53-54) A spinal tap was performed which revealed a very severe case of meningitis.² (T-p. 55) Matthew was then transported to Myrtle Beach Air Force Base Hospital and later transferred to the Charleston Naval Regional Medical Center. Matthew was comatose and was responsive only to the most painful stimulus. He stayed there approximately one week and while being transferred to the Medical University of South Carolina Hospital for evaluation and treatment he had a life threatening episode which required resuscitation. He remained at MUSC for approximately four to five weeks. He had some mild improvement, but the H-Flu meningitis has left him with brain damage and a crippled body. (T-pp. 55-58)

Matthew had additional hospitalizations and has been cared for by the parents and local medical personnel in Indiana where the parents returned after Mr. McNeill was discharged from the Air Force.

Matthew McNeill is profoundly retarded, although he was "normal" prior to the illness which befell him. His spine has become curved, and he exercises no effective control over his body. He is sent to therapy at a school for retarded children, but he must wear a diaper, and his vision and hearing is severely depressed as well. However, he does look at lights, his eyes follow people, he responds to music and to his mother's voice. This makes him "happy." Speech therapy seems to help a little, and the youngster continues to grow physically. (T-pp. 62-66, 209) Matthew feels pain, but may not "understand" it. (T-p. 474) The child had a normal work and life expectancy prior to his illness. (T-p. 469)

The child's need for medical care will not diminish throughout his lifetime (T-p. 193), and the better treatment and care he receives, the greater the chances that he will have greater longevity. (T-p. 153)

The issue to be decided is whether the treatment and care which Matthew McNeill was afforded on August 27th and 28th, 1978, at the Myrtle Beach Air Force Base Hospital conformed to the applicable standard of care, and if it did not, whether the departure therefrom was a proximate cause...