ROMERO BY ROMERO v. US

• Citation: 806 F. Supp. 569
• Decision Date: 15 October 1992
• Docket Number: Civ. A. No. 90-867-A.
• Parties: Joshua ROMERO, a minor, by his father and next friend, Clifford A. ROMERO; Clifford A. Romero, and Roxanna A. Romero, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

806 F. Supp. 569

Joshua ROMERO, a minor, by his father and next friend, Clifford A. ROMERO; Clifford A. Romero, and Roxanna A. Romero, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. 90-867-A.

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

October 15, 1992.

Walter A. Oleniewski, Elizabeth N. Shomaker, Shulman, Rogers, Gandal, Pordy & Ecker, Rockville, Md., John W. Toothman, Shulman, Rogers, Gandal, Pordy & Ecker, Alexandria, Va., for plaintiffs.

Patricia J. Reedy, U.S. Dept. of Justice, Washington, D.C., Richard Cullen, U.S. Atty., E.D. Va., Dennis Szybala, Asst. U.S. Atty., Alexandria, Va., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HILTON, District Judge.

This case was tried before the Court, and upon evidence presented and argument of counsel, the Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. On January 30, 1977, at age 17, Ms. Roxanna Romero was hospitalized in Jacksonville, Florida, for right lower quadrant pain. She underwent surgery for the removal of her right ovary.

2. On October 5, 1978, Ms. Romero was seen at the clinic at Camp Pendleton in California. Examination by an obstetrician at the OB/GYN clinic on November 14, 1978, revealed a left adnexal cyst (an accessory sac on the left ovary). Ms. Romero was placed on birth control pills to control her irregular menstruation. She was instructed to return to the OB/GYN clinic in six (6) weeks for further evaluation of the adnexal cyst.

3. Ms. Romero returned to the clinic on January 4, 1979. The physician noted that the left adnexal mass was gone. She was instructed to continue taking birth control pills and to return to the clinic in six (6) months.

4. On May 21, 1980, Ms. Romero presented to the clinic with complaints of abdominal pain with dysuria (difficulty or pain in urination). She was diagnosed with hemorrhagic cystitis (blood and inflammation of the urinary bladder) and was placed on antibiotics. Ms. Romero returned to the clinic on May 30, 1980, complaining of burning and itching within the urethra, lower abdominal pain, and vaginal itching. She was evaluated by the OB/GYN clinic. The obstetrician noted that her history was consistent with a right ruptured corpus luteum cyst.

5. On October 8, 1980, Ms. Romero presented at the clinic with complaints of abdominal pain and vaginal bleeding for three days. Examination revealed a closed cervix, a pregnancy at 6-8 weeks gestation and moderate to severe tenderness on the left side. The obstetrician performed a culdocentesis, which is aspiration of the fluid from the rectouterine area. The culdocentesis was negative, producing only one (1) cc. of clear fluid from the rectouterine area. The obstetrician concluded that Ms. Romero was suffering from a threatened abortion or possible ectopic pregnancy. Consequently, she was instructed to return home and remain on bedrest for 48 hours. Moreover, she was instructed to return to the clinic if she experienced any signs or symptoms of increased bleeding, pain, dizziness, or tissue passage. Ms. Romero was also instructed to return to the clinic on October 14, 1980 for a follow-up appointment.

6. Ms. Romero returned to the clinic on October 10, 1980. She stated that she felt "much better but was still spotting." The physician instructed her to remain on bedrest until she was seen at the OB/GYN clinic on October 14, 1980.

7. On October 14, 1980, Ms. Romero reported that she was "feeling better" and that the "vaginal bleeding had stopped." However, she continued to have left lower quadrant "ache." A pelvic examination revealed that her cervix was closed. She was again instructed to return to the clinic if she experienced any signs or symptoms of heavy bleeding, dizziness, or sharp pain.

8. On October 21, 1980, Roxanna Romero presented to the Naval Hospital at Camp Pendleton with complaints of vaginal bleeding and cramping pain. Examination revealed a closed cervix, blood in the vagina, and a pregnancy at approximately eight (8) weeks gestation. Ms. Romero was admitted for observation, an ultrasound, and an obstetrical consultation. Her admitting diagnosis was "threatened abortion."

9. On October 22, 1980, it was noted that the "copious flow" of bleeding subsided, but she was still spotting. An ultrasound revealed an intact intrauterine pregnancy at eight (8) weeks gestation with a right adnexal cyst. Ms. Romero was discharged from the hospital. She was instructed to remain on bedrest until October 27, 1980, when she was to return for a follow-up examination.

10. Ms. Romero returned to the OB/ GYN clinic on October 27, 1980. No spotting or cramping was observed. Consequently, she was permitted to return to duty.

11. Ms. Romero returned to the clinic on December 3, 1980, with complaints of abdominal cramping and vaginal bleeding since early morning. A pelvic examination revealed a tender uterus at 16 weeks gestation and a closed cervix with no active bleeding. She was diagnosed with threatened abortion and instructed to remain on bedrest for 48 hours. Ms. Romero returned to the clinic the next day with complaints of continued vaginal bleeding. The physician advised her to remain on bedrest and return to the OB/GYN clinic on December 8, 1980, as scheduled.

12. On December 8, 1980, the obstetrician documented that Ms. Romero presented with a 17 weeks gestation, abdominal tenderness, a closed cervix, and no vaginal bleeding. Because of the possibility of spontaneous abortion, Ms. Romero was instructed to remain on bedrest for an additional 48 hours.

13. On December 10, 1980, Ms. Romero presented to the Naval Hospital with complaints of vaginal bleeding for four to five days and moderate to severe lower uterine cramping. She was admitted for "observation, repeat ultrasound to rule out placenta previa and possibly to subsist out as she was unable to continue her present job with the vaginal bleeding and cramping...." Examination revealed dark blood oozing from the external opening of the cervix.

14. Initially, the vaginal bleeding began to slow and the fetal heart tone remained strong. On December 11, 1980, Ms. Romero complained of increased vaginal bleeding with some clots. A pelvic examination revealed a closed cervix. On December 12, 1980, the bleeding and cramping stopped and Ms. Romero subsisted out. However, she returned that evening with increased vaginal bleeding and cramping which did not resolve with bedrest. By the evening of December 13, 1980, no fetal heart tones were palpable. Examination revealed a dead fetus which was contained in the amniotic sac. Consequently, the sac was ruptured and an intact dead fetus at approximately 16-18 weeks gestation was delivered. Ms. Romero was discharged to home on December 14, 1980, with a diagnosis of spontaneous abortion.

15. Ms. Romero had a spontaneous abortion with her 1980 pregnancy. Dr. Harger, defendant's expert obstetrician, Dr. Steven Richards, the treating obstetrician, and Dr. Steven Leviss, plaintiffs' expert obstetrician, agree that Ms. Romero had a spontaneous pregnancy loss in 1980 during her second trimester.

16. The (1) first trimester is defined as the first 13 weeks and two days gestation; (2) second trimester or midtrimester is defined as 13 weeks and three days gestation to 26 weeks and four days gestation; and, (3) third trimester is defined as 26 weeks and five days gestation to 40 weeks gestation.

17. An incompetent cervix is defined as painless dilation and effacement of the cervix with the resultant delivery of a premature pregnancy or loss of midtrimester pregnancy. One treatment for incompetent cervix is the placement of a cerclage or surgical suture around the cervix. The standard of care in California, in 1986, did not require the placement of a cerclage where an incompetent cervix is suspected.

18. The plaintiffs have failed to sustain their burden of proving that Ms. Romero's 1980 pregnancy loss was due to an incompetent cervix. It is Dr. Harger's opinion that Ms. Romero did not have an incompetent cervix with her 1980 pregnancy. Moreover, Dr. Leviss, plaintiffs' expert obstetrician, after reviewing all the records could not make such a diagnosis.

19. Ms. Romero presented to the clinic for a pregnancy test on November 4 and 23, 1982. Both tests were negative. On December 7, 1982, she reported that she had not experienced any menstruation for 11 weeks. She was diagnosed with amenorrhea and prescribed provera.

20. On September 26, 1982, Ms. Romero presented to the clinic with complaints of constant sharp pain to her right lower quadrant lasting one (1) week. A diagnosis of pelvic inflammatory disease was made and confirmed at the OB/GYN clinic. During an OB/GYN consult, on September 26, 1982, Ms. Romero reported that she and her husband had unsuccessfully attempted to conceive for the last 18 months. She was seen on December 14, 1982, and January 18, 1983 for continuing complaints of infertility. A laparoscopy was recommended. However, Ms. Romero declined to have such a procedure.

21. Ms. Romero presented to the clinic on March 2, 1984, with complaints of back pain since the night before. Examination revealed a normal cervix with a 5 cm. left adnexal mass.

22. On December 18, 1985, Ms. Romero presented to the emergency room at the Naval Hospital at Camp Pendleton, California, with complaints of severe abdominal pain. Specifically, Ms. Romero complained of a 10 day history of intermittent, sharp cramping, lower abdominal pain, poorly localized, first noticed while running. She also reported that she had an episode of spotting one week ago. However, she did not pass any tissue or blood.

23. Dr. Keefe, the emergency room physician, noted that Ms. Romero's last menstrual period was on November 9, 1985. Moreover, he noted that she had a history of a right ovarian cystectomy in 1977, and a miscarriage at four months in 1980. Upon examination, Dr. Keefe observed that Ms....