Phillips v. United States

• Citation: 575 F. Supp. 1309
• Decision Date: 21 June 1983
• Docket Number: Civ. A. No. 79-551-8,79-553-8.
• Court: U.S. District Court — District of South Carolina
• Parties: Dwight A. PHILLIPS and Kathleen E. Phillips, Plaintiffs, v. UNITED STATES of America, Defendant. William Randall PHILLIPS, by his Guardian ad Litem, Dwight A. PHILLIPS, Plaintiff, v. UNITED STATES of America, Defendant.

575 F. Supp. 1309

Dwight A. PHILLIPS and Kathleen E. Phillips, Plaintiffs, v. UNITED STATES of America, Defendant.

William Randall PHILLIPS, by his Guardian ad Litem, Dwight A. PHILLIPS, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. Nos. 79-551-8, 79-553-8.

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

June 21, 1983.

COPYRIGHT MATERIAL OMITTED

Ellis I. Kahn, Charleston, S.C., for plaintiffs.

Jack L. Marshall, Asst. U.S. Atty., Columbia, S.C., for defendant.

ORDER

BLATT, District Judge.

I. INTRODUCTION

This matter is before the court for final disposition of the issue of damages in plaintiffs' consolidated medical malpractice actions against the United States, which were brought pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-80. This court has previously addressed certain aspects of these claims in considerable detail.¹ In Phillips v. United States, 508 F.Supp. 537 (D.S.C.1980) (hereinafter Phillips I), the court granted defendant's motion for summary judgment of the filial claim for "wrongful life."² Shortly thereafter, in Phillips v. United States, 508 F.Supp. 544 (D.S.C.1981) (hereinafter Phillips II), the court denied defendant's motion for summary judgment of the parental claim for "wrongful birth." In Phillips v. United States, 566 F.Supp. 1 (D.S.C. 1981) (hereinafter Phillips III), the court found that the medical care provided by defendant did not conform to the applicable standard of care, id. at 25-27, finding for plaintiffs on the issue of liability and the wrongful birth claim.

Briefly, plaintiffs have shown that the staff of the Naval Regional Medical Center (NRMC) in Charleston, South Carolina, breached the applicable standards of medical care by failing to advise, counsel, and test the parents concerning the risk that their offspring would be afflicted with Down's syndrome, commonly known as mongolism, and by failing to diagnose and treat a cardiac disorder in the newborn child. This court has specifically found that

the failure of the staff of the NRMC to provide adequate genetic counseling and prenatal testing in light of Mrs. Phillips' positive family history of Down's syndrome and their failure to refer the child to a pediatric cardiologist at the first sign of congestive heart failure constituted deviations from the applicable standard of medical care and proximately caused some elements of damages to the respective plaintiffs.

Phillips III at 25. On February 22 and 23, 1982, testimony on the issue of damages was heard by this court. After thorough review of that testimony, as well as the numerous exhibits introduced by the parties, this court hereby renders its findings of fact and conclusions of law pursuant to Rules 52 and 58 of the Federal Rules of Civil Procedure.

II. FINDINGS OF FACT

A. Filial Claim for Neonatal Medical Malpractice

1. This court has previously found that "the pediatric care received by William Randall Phillips at the NRMC did not conform to the applicable standard of medical care." Phillips III at 21.

A pediatric or family practice specialist or resident should refer an infant patient to a pediatric cardiologist at the first sign of congestive heart failure. See Finding of Fact 32. Although Randy showed clear signs of congestive heart failure in December, 1977, see Finding of Fact 26; Pl.Ex. 7, he was not referred to Dr. Riopel until June 19, 1978. See Finding of Fact 27-28. This clearly constituted a breach of medical care ....

Id. at 21-22.

2. "During this period, Randy exhibited numerous signs and symptoms related to his heart condition. These included cyanosis, retarded growth, emesis, lack of muscle force, depressed body temperature and pale or clammy skin." Id. at 17. According to the testimony of his mother,

He did a lot of crying. He was real limp. He used to turn blue around the lips and just be splotchy blue. I'd have to sit up at night in a rocking chair holding him up to get him to sleep. I couldn't lay him down because when I laid him down he would start crying again. And like feeding him, his sucking the bottle, he would start turning blue; so I would have to take the bottle away from him every couple of sips. He would get mad and start crying. He would usually throw up three or four times a day at least because he would get so mad crying because I took the bottle away from him that he gagged himself and started throwing up. He was just a miserable little baby is what he was.

Transcript at 124-25.

3. On June 23, 1978, shortly after Dr. Riopel's diagnosis of plaintiff's cardiac problem, "Randy underwent a surgical ligation of the heart defect by Dr. Ashby Taylor ..." Phillips III at 19.

4. Following this procedure, plaintiff's condition improved markedly. Transcript at 126-27. According to the testimony of plaintiff's pediatric witness, Dr. Robert F. Marion, Jr., defendant's failure to promptly diagnose plaintiff's cardiac condition will have no lasting physical effect; "there should be no sequelae related to this." Transcript at 8. This conclusion is also buttressed by the previous testimony of Dr. Riopel. See Phillips III at 19.

5. After a careful and circumspect review of the evidence, this court finds that plaintiff William Randall Phillips is entitled to damages for his pain and suffering and loss of enjoyment of life during the six-month period between the first indication of congestive heart failure in December, 1977, and his eventual referral to Dr. Riopel in June, 1978.

B. Parental Claim for Wrongful Birth

6. Plaintiffs presented expert testimony from Dr. Robert F. Marion, Jr., a pediatrician, see Transcript at 5-82, Lucia T. Horowitz, Ph.D., a psychologist, see id. at 83-122; Pl.Ex. 1, and Oliver G. Wood, Jr., Ph.D., an economist, see id. at 156-89, on the issue of damages in the wrongful birth claim; additionally, both of the plaintiffs testified in their own behalf. See id. at 123-55, 189-205. Defendant presented expert testimony from Victor J. Malatesta, Jr., Ph.D., a psychologist, see Transcript (Vol. II) at 6-36; Def.Ex. 2, and James M. Kirby, an official with the South Carolina Department of Mental Retardation, see Transcript at 37-79.

7. Dr. Marion testified that, based on his examination of plaintiffs' child, as well as his review of the clinical history and pertinent medical literature, Randy had a life expectancy of approximately 50 years. Transcript at 19, 48, 53. Defendant's attempt to discount this figure through the testimony of Dr. Malatesta was somewhat persuasive. See Transcript (Vol. II) at 6-19, 31-34.

8. The expert medical testimony of Dr. Marion, which was uncontradicted, establishes that "Randy is going to need twenty-four hour care and supervision." Transcript at 21. See also id. at 40-44. Moreover, Randy will require physical therapy, id. at 22, hearing and speech therapy, id. at 23-25, and extensive medical services, including ongoing pediatric, ENT, orthopedic, neurological, ophthamological, and dental care, id. at 26-36, as well as frequent medication and periodic hospitalization.³ Id. at 29, 34-36.

9. Dr. Marion referred plaintiffs' child to Dr. Horowitz for psychological testing and evaluation. The various tests she administered, including the Stanford-Binet Intelligence Scale, indicated that Randy had an I.Q. of fifty-six, which is in the bottom of the mildly retarded range, id. at 86-87, that "his language skills were somewhat depressed," id. at 87, see id. at 87-89, particularly his receptive language skills, id. at 88-89, 91-95, and that he had the "most difficulty in areas of responsibility and ideation". Id. at 93. Dr. Horowitz states that Randy's test results indicated a current mental age of approximately two to three years⁴, id. at 86-88, and that his mental age was never expected to exceed seven years. Id. at 101.

10. Dr. Horowitz also testified that Randy needs special schooling, commencing immediately, id. at 96-98, but that he could eventually be placed in a special public school class. Id. at 98. She reiterated that he would not be able to care for himself and, at best, could be expected to enter a group home with vocational training or a sheltered workshop sometime between the ages of eighteen and twenty-one. Id. at 100-08.

11. As previously indicated, defendant attempted to discredit the testimony of Dr. Marion and Dr. Horowitz through the testimony of Dr. Malatesta. Although Dr. Malatesta heard the testimony of plaintiffs' experts and reviewed certain medical literature, Transcript (Vol. II) at 8, 11-12, he did not examine Randy. Id. at 25-26. Without reaching the question of whether Dr. Malatesta is competent to proffer a medical opinion, see id. at 34, this court concurs in his concession that Dr. Horowitz's personal examination and testing of Randy put her in a much better position to make a psychological evaluation.⁵ Id. at 25-26.

12. Predicated on the testimony of Dr. Marion and Dr. Horowitz, plaintiffs presented the testimony of Oliver G. Wood, Jr., Ph.D., concerning "the cost of certain maintenance items, medical items and certain care costs over the rest of the life of the boy." Transcript at 157. The government admitted that Dr. Wood is a well qualified economist. Id. at 156.

13. After thoroughly reviewing the historical rise in medical and maintenance costs, id. at 160-163; Pl.Ex. 4-7, Dr. Wood testified extensively concerning the costs attributable to Randy's condition.

Because of the child's condition, the child will need the following care: A, twenty-four hours per day care for life. B, therapy in the form of, one, physical therapy, thirty-five dollars per visit, current cost, two times per week for one month, one time per week for the following month, one time per month for the next three years. With respect to speech therapy, current cost is thirty-six dollars an hour. It's needed for one-half hour, five days a week to age seven. Two times per week to age nine. One time per week to age twelve. With

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