MUENSTERMANN BY MUENSTERMANN v. US, Civ. No. N-89-427.

• Decision Date: 20 February 1992
• Docket Number: Civ. No. N-89-427.
• Parties: Jonathan E. MUENSTERMANN, A Minor, by his mother and next friend, Margaret A. Muenstermann and Margaret A. Muenstermann, Plaintiffs, v. UNITED STATES of America Defendant.
• Court: U.S. District Court — District of Maryland

787 F. Supp. 499

Jonathan E. MUENSTERMANN, A Minor, by his mother and next friend, Margaret A. Muenstermann and Margaret A. Muenstermann, Plaintiffs, v. UNITED STATES of America Defendant.

Civ. No. N-89-427.

United States District Court, D. Maryland.

February 20, 1992.

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Gerard E. Mitchell, Christopher Mitchell, and Stein, Mitchell & Mezines, Washington, D.C., for plaintiffs.

Dale P. Kelberman, Beth P. Gesner, and U.S. Atty., D. of Md., for defendant.

MEMORANDUM OPINION

NORTHROP, Senior District Judge.

I. INTRODUCTION

Plaintiffs, Jonathan Muenstermann, a minor, and his mother Margaret Muenstermann, both as mother and next friend, bring this suit against the Government under the Federal Tort Claims Act ("FTCA"). 28 U.S.C. § 1346(b), 2671-2680. Gerard E. Mitchell and Christopher Mitchell represented the Plaintiffs. Counsel for the government were Dale Kelberman and Beth P. Gesner. The case was well presented by all the attorneys for both parties.

Jonathan Muenstermann was born on March 16, 1986. At birth, no one knew that Jonathan suffered a severe stroke during labor. The stroke crippled over half of the right side of his brain and caused significant damage on the left side as well. During Mrs. Muenstermann's pregnancy, a series of sonographic examinations revealed that Mrs. Muenstermann suffered at least a partial placenta previa, a condition which precludes even attempting a vaginal delivery. Mrs. Muenstermann was admitted to Malcolm Grove Medical Center on February 25, 1986 for observation. Although the sonograms indicated a partial placenta previa, Mrs. Muenstermann's doctors did not make that diagnosis.

As an additional complicating factor, Mrs. Muenstermann tested positive for anti-kell antibodies and anti-E antibodies during her pregnancy. Because of the risk of blood type incompatibility between the mother and child, Mr. Muenstermann's blood was also tested. As the Government freely admits, Mr. Muenstermann was given the wrong blood test. The right blood test would have revealed Jonathan's blood incompatibility with his mother. Upon admission to Malcolm Grove, Mrs. Muenstermann's pregnancy had two separate problems, the first, at least a partial placenta previa and the second, the blood incompatibility between mother and fetus.

On March 11, 1986, while Mrs. Muenstermann was at Malcolm Grove, her doctors attempted to induce labor. Medical records indicate that Mrs. Muenstermann's doctors attempted to induce labor beginning around 9:15 a.m. They suspended their efforts about ten hours later as the monitoring of Jonathan's heart disclosed certain irregularities. These irregularities should have alerted Mrs. Muenstermann's doctors to the fact that vaginal delivery should not have been attempted. But they did not. Five days later, on March 16, 1986, at 4:00 a.m., Mrs. Muenstermann went into active labor. The Medical records indicate that heart monitoring once again revealed certain irregularities that once again should have alerted the doctors that the fetus was in trouble. In the face of these warning signs, Mrs. Muenstermann's doctors artificially ruptured the fetal membrane twelve hours after Mrs. Muenstermann's labor began. Immediately after the artificial rupture of the membranes, Jonathan's heart rate severely dropped. A crash caesarean section was performed at 4:25 p.m., resulting in the delivery of Jonathan Muenstermann.

At birth, Jonathan was almost ten pounds. Examination revealed that Jonathan was in trouble. So, shortly after his delivery, Jonathan was transferred to Walter Reed Army Medical Center for treatment of hemologic disorders secondary to the anti-kell antibodies and anti-E antibodies. Jonathan remained at Walter Reed for ten days and was discharged on March 26, 1986. At his discharge, Jonathan was described as a healthy appearing male infant with a slight yellow-green tint to the skin. He was considered a problem baby in that he had to be checked for platelet counts, hematocrit checks and bilirubin checks. There were no signs of Jonathan's main problem, the stroke he suffered at birth.

Following Jonathan's discharge from Walter Reed, Mrs. Muenstermann understood that the blood disorder condition had been completely resolved. Neither Mrs. Muenstermann nor anyone else knew that Jonathan suffered an injury due to acts at Malcolm Grove Hospital.

During one of the subsequent neonatal visits, one of Mrs. Muenstermann's doctors stated to her and her husband that a miscommunication between her doctors resulted in Mr. Muenstermann receiving the wrong blood test. There was no indication from the doctor that either the management or the delivery would have been done any differently than what the doctors had attempted. It was not until that fall that Mrs. Muenstermann noticed that Jonathan was not using his left arm as much as his right. After several visits with the doctor, on December 30, 1986, Jonathan Muenstermann had a CT Scan performed. The CT Scan revealed severe damage to the right side of Jonathan's brain indicating that Jonathan had suffered a stroke at birth.

After learning of her child's brain damage Mrs. Muenstermann sought legal advice in February of 1987. The Government received an administrative claim on April 14, 1988, less than two years after the Muenstermanns learned of the stroke that their son had suffered at birth.

The Government contends that Mrs. Muenstermann's claim is barred by the statute of limitations. According to the Government, the neonatal consultation on April 15, 1986 should have alerted the Muenstermanns to both the cause and injury that Jonathan suffered. The Government also contends that there was no placenta previa. Finally, the Government argues that if there were a placenta previa, it was not reasonably foreseeable that Mrs. Muenstermann's doctors should have diagnosed it.

There is virtually no dispute about the existence or the severity of Jonathan's injuries. The destruction of the right side of the child's brain is indisputable, and in fact, discovered by Defendants' own employees when they took the CT Scan. No development since the injury warrants any conclusion other than severe, permanent brain damage.

A five day non-jury trial was held beginning on November 18, 1991. Testifying for the Plaintiff were both Mr. and Mrs. Muenstermann, the child's parents, Mrs. Ruth Moorer who runs a day care center where the Muenstermann children, including Jonathan, attend, and Doctor David Owen, Jonathan's pediatric neurologist. Plaintiffs' expert witnesses included Doctors Joel M. Palmer, and James A. O'Leary, two obstetrician-gynecologists and Doctors Sherwin Kevy, a pediatrician and pediatric hematologist and Robert Clancy, a pediatric neurologist. Plaintiffs' expert witnesses also included Doctor Raphael Minsky a rehabilitation psychologist and Mr. Phillip Bussey a rehabilitation counselor. Finally, Plaintiff had Mr. Richard Lurito testify as Plaintiffs' Expert Economist.

For the Defendant, Doctor Judith Gurdian, the gynecologist who delivered Jonathan, testified. Defendant also had Mr. John Scarbrough testify as Defendants' Expert Economist.

II. LEGAL ANALYSIS

A. Findings of Fact

1. Statute of Limitations

Jonathan's birth on March 16, 1986 at the Malcolm Grove Medical Center was accomplished by a "crash" caesarean section. The infant experienced bradycardia or decreased fetal heart rate which resulted from the efforts of Mrs. Muenstermann's doctor to induce labor. Jonathan was found at birth to have problems related to a blood disorder caused by his mother's production of anti-kell and anti-E antibodies. The antibodies from the mother's blood caused a destruction of the red blood cells in the fetus. In an effort to defend itself, the fetus releases immature red blood cells or "erythroblasts" into the fetal circulation system. This creates bilirubin, which is normally eliminated through the mother's system. After birth, however, the bilirubin builds up in the newborn's system.

Rated as seriously ill, Jonathan was transferred to Walter Reed Army Medical Center where he could receive transfusions and neonatal intensive care. The problems from Jonathan's blood disorder were effectively treated with a double volume exchange transfusion with packed red blood cells, platelet transfusions, and oxygen. Throughout his stay at Walter Reed, Jonathan's brain damage, which both parties and all testifying experts agree occurred at birth, was not discovered. According to Dr. Clancy, a pediatric neurologist, the Walter Reed Hospital records revealed that Jonathan was described as neurologically normal. Upon his release from Walter Reed, Mrs. Muenstermann was told that Jonathan only needed additional monitoring for platelet counts, hematocrit checks and bilirubin checks. Mrs. Muenstermann testified that it was her understanding that there were no other disorders or injuries.

Nevertheless, on April 10, 1986, Dr. Rouse, Mrs. Muenstermann's family practitioner, informed the Muenstermanns of a miscommunication between him and the obstetrician who delivered Jonathan, Dr. Gurdian. As a result of the miscommunication, Mr. Muenstermann was given the wrong blood test to determine if Jonathan was in jeopardy, because of Mrs. Muenstermann's abnormal anti-kell antibody. According to Dr. Kevy, who specializes in both children's diseases and children's blood diseases, the government physicians treating Mrs. Muenstermann during her pregnancy breached the standard of care when they did not test Mr. Muenstermann to determine if his red blood cells contained the kell antigen.¹ Instead, Mr. Muenstermann's serum was tested for the kell antibody.

At the April 10, 1986 meeting, Dr. Rouse revealed that the administration of the wrong blood test lead the doctors to conclude that the fetus was out of danger. If the proper test had been given,...