Murphy v. US, Civ. A. No. 2:92cv1309.

• Decision Date: 06 October 1993
• Docket Number: Civ. A. No. 2:92cv1309.
• Citation: 833 F. Supp. 1199
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Diane V. MURPHY, Plaintiff, v. UNITED STATES of America, Defendant.

833 F. Supp. 1199

Diane V. MURPHY, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 2:92cv1309.

United States District Court, E.D. Virginia, Norfolk Division.

October 6, 1993.

Malcolm Bernard Higgins, II, Virginia Beach, VA, Linda S. Laibstain, Hofheimer, Nusbaum, McPhaul & Samuels, Norfolk, VA, for plaintiff.

Anita K. Henry, Asst. U.S. Atty., Norfolk, VA, for defendant.

ORDER AND OPINION

MORGAN, District Judge.

I. STATEMENT OF FACTS AND DESCRIPTION OF PLAINTIFF'S INJURIES AND DAMAGES

On August 17, 1990, Diane V. Murphy was severely injured when the automobile she was driving collided with a Navy vehicle. Because the United States has admitted liability for the aforementioned accident under the Federal Tort Claims Act (FTCA), the sole task of this Court is to determine the appropriate damage award to which the Plaintiff is entitled. Immediately after the collision, Mrs. Murphy was taken to Virginia Beach General Hospital (VBGH) and treated in the emergency room for a concussion, loss of consciousness, left-side jaw fracture, a fracture of the right knee, and numerous lacerations, hematomas, and muscular sprains and strains. She was thereafter admitted to the intensive care unit at VBGH.

Upon learning of his wife's accident, Lt. Terrence Murphy returned home from the Persian Gulf, where he was stationed aboard the USS Saratoga during Operation Desert Storm. Diane Murphy was released from VBGH roughly nine (9) days after the accident. When she arrived at her home, she was still encumbered with a device which wired her jaw shut and a cast on her right knee. In addition, she was charged with the care of her then four year old daughter, Kristen, who was in a full body cast, and her two young sons, ages 2 years and nine months respectively. Lt. Murphy was compelled to return to the Saratoga on September 4, 1990.

During the next several weeks, as Diane Murphy attempted to care for the couple's three young children, the true severity of her cognitive deficits began to emerge. She had total amnesia with respect to the accident itself, little short-term memory, a short attention span, was highly emotional, and became fatigued by even the simplest household chores. Mrs. Murphy even had no recollection of the birth of her youngest child, T.J.

The Plaintiff's condition forced Lt. Murphy to return home from the Saratoga on emergency leave again on October 5, 1990. At this point, Lt. Murphy became increasingly concerned over his wife's prognosis, since many of the deficits which the doctors thought would improve over time had either continued or worsened. As a result, she was evaluated by Head Trauma Rehabilitation of Hampton Roads (HTR) in November of 1990. Based upon a neurological evaluation performed by Dr. John Lavach, the Plaintiff was advised to undergo rehabilitation therapy five (5) days per week.¹ Due to the length of the drive from the Murphys' home in Virginia Beach to the rehabilitation facility in Newport News, coupled with the Plaintiff's inability to drive, she was only able to attend HTR three (3) days per week.

Diane Murphy continued her rehabilitation at HTR through March of 1992. During this period, she made modest improvement; she learned various "compensatory strategies" which served as a substitute for her lack of memory. Her organizational skills and ability to plan also showed progress. However, the Plaintiff's memory loss limited her treatment. Due to her almost complete short term memory loss, her doctors and therapists were forced to rely upon second-hand information from Lt. Murphy when attempting to diagnose and treat her. Moreover, her attention deficit, chronic fatigue, and pain still prevented her from performing most of the household tasks and childrearing duties. Although Mrs. Murphy routinely sleeps for 10 or 11 hours per day, she is constantly fatigued during the day and must take periodic naps in order to make it through her waking hours.

In addition to rehabilitation for her cognitive deficits, the Plaintiff has also undergone numerous follow-up treatments for her physical injuries. She continues to experience pain of varying degrees in her right knee, neck, back, and the Temporal Mandibular Joint of her jaw (TMJ). Her physicians have not been able to estimate whether these conditions will be permanent, but the conditions have persisted for a period in excess of three (3) years after the accident. In addition, the Plaintiff suffered some scarring to her face which may be improved, albeit not eliminated, by plastic surgery.

The Plaintiff also required substantial dental work due to the accident, and her inability to keep her mouth open for long periods of time due to intense TMJ pain prolonged the length of her treatment sessions. Moreover, her allergic reaction to the normal anaesthetic forced the dentist, Dr. Wernick, to make many additional injections. She has been required to take pain medication and permanently adjust her diet and speech due to difficulties arising from the continued use of her jaw. She is still undergoing dental treatment, and the problems caused to her permanent teeth by the accident will continue to a substantial degree throughout her lifetime.

In the months shortly after the accident, the Plaintiff refused to accept the fact that she was disabled in any way and told various health care providers that she would be all right as soon as she could drive. Diane Murphy's primary motivation while at HTR was to obtain a new driver's license so that she might regain some of her independence. In September of 1992, however, she failed the Sentara Norfolk General Hospital driving evaluation test. As a result of this failure, she became extremely depressed and withdrew from therapy for several months. In January of 1992, the Plaintiff returned to HTR. She passed her second driving test and received a restricted license. After several trips with Lt. Murphy, however, it became obvious that Mrs. Murphy was not capable of making the split-second decisions required of all drivers; she became easily disoriented and confused. In addition, the onset of her myoclonus or seizure-like disorder (discussed below) will effectively prevent her from ever resuming driving, since her physicians are of the unanimous opinion that these events are permanent and will never be completely controlled through medication.

In late 1990, roughly four (4) to six (6) months after the accident, Mrs. Murphy began experiencing seizure-like episodes.² These episodes usually lasted only one to two seconds and involved a jerking of the left arm and the head, rather than the convulsions and complete loss of consciousness traditionally associated with complex seizures. Dr. Robert I. Solomon, the Director of HTR, diagnosed these episodes as "myoclonic jerks" in December of 1990 and prescribed a low dose of the anti-convulsant Depakote to help control these spasms, which initially occurred as many as twenty (20) times per day. Dr. Solomon also noted that the Plaintiff often experienced confusion and strange smells and tastes in association with these episodes.

By March of 1992, the Murphys had exhausted their financial resources, and Diane Murphy was forced to stop her rehabilitation at HTR. Sharon Powell Reavis, the life-care planner with whom the Murphys had been working, subsequently referred her to Dr. Nathan Zasler, a Richmond physiatrist. Dr. Zasler first examined Mrs. Murphy on July 8, 1992, and immediately diagnosed her seizure-like disorder as post-traumatic epilepsy. He also opined that the Depakote prescribed by Dr. Solomon was not achieving optimal results, and Dr. Zasler changed the Plaintiff's medication to Tegretol, which he stated has limited the number of seizure episodes to several per month.

As a result of his wife's cognitive deficits, Lt. Murphy has been forced to assume most of the homemaking functions, while performing his full-time job as a pilot on active duty in the naval reserve. He often returns home during the afternoon to check on his wife and children. Lt. Murphy has had to resign his regular Navy commission and accept reserve status so that he would not have to leave his family for long periods of time when deployed overseas. Although there is overwhelming evidence that Lt. Murphy has made tremendous efforts to accommodate his wife's problems, several health care providers testified that their marriage is at risk. The true extent of this risk is readily apparent from the testimony of the Murphys themselves: the Plaintiff described herself as a child within an adult body, and Lt. Murphy even said that she was often more like a fourth child than his wife.

Diane Murphy's brain injury has also adversely affected her relationships with her children and friends. The Murphys have been forced to hire a series of housekeepers to help care for the children since the accident. When Susan Kaplan was employed in the home the Plaintiff's youngest child, T.J., referred to Mrs. Kaplan, in the Plaintiff's presence, as "Mama". Moreover, when one of the children gives Mrs. Murphy a hug she often stiffens in pain. Her need for sleep during the day prevents her from properly supervising the children, and on occasion her husband has found her asleep with his young children in or out of the home unattended. The Plaintiff sleeps so soundly at night that almost no outcry from a child will awaken her. Lt. Murphy and a number of health care providers, as well as friends, have indicated that they are concerned about Mrs. Murphy's and the children's safety while she is alone with them.

The Plaintiff's impaired memory, combined with her own reduced self esteem, has caused her to withdraw from participation in community and social activities. She was formerly characterized as gregarious and outgoing, with a good sense of humor. Mrs. Murphy also participated in a number of activities, including the Navy Wives Association, regular physical workouts at a health spa, playing...