Phillips v. United States
Citation | 566 F. Supp. 1 |
Decision Date | 07 December 1981 |
Docket Number | Civ. A. No. 79-551-8,79-553-8. |
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. |
Court | U.S. District Court — District of South Carolina |
Ellis I. Kahn, Charleston, S.C., for plaintiffs.
Henry Dargan McMaster, U.S. Atty., Columbia, S.C., for defendant.
This matter is before the court for final disposition of the issue of liability in plaintiffs' consolidated medical malpractice actions against the United States, which were brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-80. This court has previously addressed certain aspects of these claims, denying defendant's motion for summary judgment of the parental claim for "wrongful birth," Phillips v. United States, 508 F.Supp. 544 (D.S.C.1981), and granting defendant's motion for summary judgment of the filial claim for "wrongful life,"1 Phillips v. United States, 508 F.Supp. 537 (D.S.C.1980). Briefly, plaintiffs contend that the staff of the Naval Regional Medical Center (NRMC) in Charleston, South Carolina, breached the applicable standard 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. Testimony on the various issues raised by plaintiffs' claims was heard by this court on December 15, 16, and 17, 1980. After a thorough review of this 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.
1. Kathleen D. Phillips was born on February 4, 1954, to Archie and Loretta May. Transcript at 4. Mrs. Phillips' older sister, Rhonda May, was afflicted with Down's syndrome.2 Id. at 8-9, 44-46, 157. In 1974, Mrs. Phillips married Dwight A. Phillips, id. at 5; at all times pertinent to the causes herein, Mr. Phillips was on active duty with the United States Navy stationed in Charleston, South Carolina. Id. at 7.
2. William Randall Phillips is the son of Dwight A. Phillips and Kathleen D. Phillips; he was born on September 23, 1977, at the NRMC. Id. at 18; Plaintiff's Exhibit 1. It was noted shortly after his birth that the child was afflicted with Down's syndrome, as well as a moderately loud heart murmur. Pl. Ex. 1; Pl. Ex. 2; Pl. Ex. 6; Pl. Ex. 7.
3. On August 9, 1976, during a previous pregnancy, Mrs. Phillips made her initial visit to the obstetrics clinic at the NRMC. In completing a prenatal questionnaire form at the clinic, she indicated, among other information, that she was twenty-two years of age, that she had not previously borne any children, and that her sister was "mentally retarded." Transcript at 7; Pl. Ex. 1. The clinical record form for that visit, completed by the attending physician, also reflects the patient's family history of mental retardation.3 Pl. Ex. 1; Pl. Ex. 3. No further information concerning the circumstances or ramifications of this family history was solicited from Mrs. Phillips by the clinical staff. Transcript at 10. On August 15, 1976, Mrs. Phillips returned to the NRMC complaining of cervical bleeding and abdominal cramps; while at the emergency room, Mrs. Phillips experienced an incomplete spontaneous abortion, for which she was hospitalized and treated with a therapeutic dilatation and curettage of the uterine cervix by Dr. Louis Weinstein. Transcript at 7; Pl. Ex. 1; Pl. Ex. 3; Pl. Ex. 19.
4. Mrs. Phillips became pregnant again in late December, 1976, and this pregnancy was confirmed by the Berkeley County Health Department toward the end of January, 1977. Transcript at 11. After experiencing some difficulty in obtaining an appointment at the NRMC, id. at 11-12, Mrs. Phillips returned to the obstetrics clinic on March 22, 1977. Id. at 12-14; Pl. Ex. 1. In responding to a section on the prenatal questionnaire form concerning any family history of mental retardation, it was again noted that Mrs. Phillips' sister was afflicted with Down's syndrome.4 Transcript at 13-14; Pl. Ex. 1. The prenatal questionnaire form also indicated that Mrs. Phillips' last menstrual period was December 14, 1976, and that she had previously experienced a miscarriage. Pl. Ex. 1. In addition to completing this form, Mrs. Phillips also gave blood and urine samples for preliminary lab work and watched some informational films on pregnancy, prenatal care, and childbirth. Transcript at 13-14, 47. No further inquiry concerning the patient's family history of Down's syndrome was made by the clinical staff during the March, 1977, appointment. Id. at 15.
5. On April 17, 1977, Mrs. Phillips returned to the obstetrics clinic for an appointment; she was examined by Dr. Robert K. Sadler, who was at that time a second year resident in obstetrics and gynecology at the Medical University of South Carolina (MUSC) on a three month rotation at the NRMC. Transcript at 15, 231-33; Pl. Ex. 1. According to Dr. Sadler, the purpose of that appointment "was ... primarily to receive both a history and physical examination ...." Id. at 233. The clinical record form, which was completed and signed by Dr. Sadler during that visit, indicated that the patient's family history included a sister with Down's syndrome. Transcript at 15, 234, 241-42; Pl. Ex. 1. Despite his awareness of this aspect of Mrs. Phillips' family history, Dr. Sadler made no further inquiry concerning the sister's affliction and, more importantly, he made no attempt to explain to Mrs. Phillips the possible implications of this history to her offspring or to advise her of the availability of prenatal testing procedures, particularly amniocentesis.5 Transcript at 15, 234-35.
6. Between April and September, 1977, Mrs. Phillips returned to the NRMC approximately eleven times, mostly for routine appointments. Transcript at 16; Pl. Ex. 1. The only problems noted on the clinical record form concern hypertension and nausea. Pl. Ex. 1. There is some evidence that Mrs. Phillips again mentioned her family history of Down's syndrome during a visit to the obstetrics clinic in May, 1977. Transcript at 16, 31. During this period, Mrs. Phillips did not receive any counseling concerning the genetic basis of Down's syndrome, the increased possibility that the defect could appear in her offspring, or the availability of prenatal testing procedures to determine whether the fetus was so afflicted. Transcript at 15-17. See Pl. Ex. 1.
7. Mrs. Phillips was admitted to the NRMC by Dr. Wayne R. Kaniewski on September 22, 1977, and she gave birth to her son, William Randall Phillips, the next day. Pl. Ex. 1; Pl. Ex. 4; Pl. Ex. 21 at 4-5. During delivery, "the patient began to reveal severe fetal distress and it was felt that a caesarean section was indicated ... and the same was done ..." by Dr. R.L. Anderson and Dr. William F. James, Jr. Pl. Ex. 4. Shortly after the child's birth, it was noted that he was apparently suffering from both Down's syndrome and a cardiac defect. Pl. Ex. 1; Pl. Ex. 2; Pl. Ex. 6; Pl. Ex. 7. The preliminary diagnosis of Down's syndrome was later confirmed by karyotypic analysis of the child's chromosomes by Dr. Ronald J. Jorgenson and John Felix Rogers. Pl. Ex. 2. Mrs. Phillips was notified of her child's condition by Dr. Anderson, who exhibited certain objective indicia of embarrassment when she informed him that her sister was similarly afflicted.6 Transcript at 18-19.
8. Subsequent to Randy's birth, both Mrs. Phillips and her son were under the care of Dr. Robert R. Bass, a family practice resident at the NRMC. Transcript at 19-20, 69. In October and November, 1977, Dr. Bass ordered blood karyotypes of both Mrs. Phillips and Randy; these tests, performed by Dr. Jorgenson and Mr. Rogers at MUSC, revealed that the child suffered from the translocational variety of Down's syndrome7 and that Mrs. Phillips was a carrier of this chromosomal translocation. Transcript at 75; Pl. Ex. 2. Dr. Bass' explanation of these tests was the first indication given to Mrs. Phillips that Down's syndrome could be an inheritable defect and that she could transmit the defect to her offspring. Transcript at 20-21, 75. See Finding of Fact 10. When questioned by Mr. Phillips concerning the failure of the NRMC to administer those tests earlier, Dr. Bass responded that the tests were expensive and could not be performed in every pregnancy. Transcript at 21-22, 56-57, 78.
9. On May 31, 1978, Mrs. Phillips was admitted to the NRMC for a tubal ligation, which was performed by Dr. David L. Williams. Transcript at 35-37, 76-77, 213-16; Pl. Ex. 5. The primary reason for this procedure was Mrs. Phillips' desire to avoid conceiving another child afflicted with Down's syndrome. Transcript at 36, 76-77, 214-15; Pl. Ex. 5.
10. Mrs. Phillips testified that, although she had known her sister's mental retardation was a result of Down's syndrome "for about five years" prior to Randy's birth, Transcript at 9, she was not aware that Down's syndrome could be an inheritable disorder or that she could be a carrier of the defect. Id. at 9-10. This was corroborated by Mr. Phillips, id. at 54, and by Mrs. May, who had been informed that the disorder was the result of "a misplaced chromosome ... and that it was a freak accident ... which would never happen again." Id. at 46. See id. at 10. The evidence clearly established that neither Mr. Phillips nor Mrs. Phillips were aware of translocational Down's syndrome or the possibility that Mrs. Phillips could be a carrier of the defect; during the course of her prenatal care at the NRMC, they...
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