Smith v. U.S., Civ.A. 9:97-3592-8.

• Decision Date: 05 June 2000
• Docket Number: No. Civ.A. 9:97-3592-8.,Civ.A. 9:97-3592-8.
• Citation: 119 F.Supp.2d 561
• Parties: Betty C. SMITH and Rudolph Smith, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of South Carolina

119 F.Supp.2d 561

Betty C. SMITH and Rudolph Smith, Plaintiffs, v. UNITED STATES of America, Defendant.

No. Civ.A. 9:97-3592-8.

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

June 5, 2000.

COPYRIGHT MATERIAL OMITTED

John E. Parker, Peters Murdaugh Parker Eltzroth and Detrick, Hampton, SC, for Plaintiffs.

John H. Douglas, U.S. Atty.'s Office, Charleston, SC, for Defendant.

ORDER

BLATT, District Judge.

INTRODUCTION

The Plaintiffs filed this action pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., against the Defendant based upon the alleged negligence of certain employees of the Beaufort Naval Hospital. The claim arose when Mrs. Betty Smith had a mammogram at the Beaufort Naval Hospital on May 5, 1994, which indicated an abnormality, but neither she nor the requesting physician were notified of that result until five months and twenty-seven days later, on November 1, 1994.

Mrs. Smith's negligence claims are based upon several alleged acts or omissions by the hospital employees. This Court summarizes her allegations as follows: (1) the hospital failed to have an adequate procedure in place for delivery of radiological reports during the transition phase from hand delivery to computers that would ensure that physicians ordering radiological reports would timely receive the results; (2) on April 18, 1994, when the radiology department began entering test results into the computer and discontinued a written multi-part form report, the hospital employees in charge of the transition did not inform Dr. Sherbert, the radiologist, that all physicians were not yet on the computer system; (3) the hospital should have required radiologists to keep a log of their phone calls to requesting physicians of abnormal test results; (4) the hospital employees failed to notice and correct the print-out failure that occurred on or around May 5, 1994, when Mrs. Smith's report was not printed in the Family Medicine Clinic; (5) the radiology technician should have coded Mrs. Smith's report as "abnormal," instead of "see report text," and during the transition phase the hospital procedure should have included periodically creating computer audit trail reports to determine which abnormal results in the computer had not been "opened and read;" and when that occurred hospital employees should have telephoned the requesting physicians to make sure they knew of those abnormal results; (6) the employees of the Radiology Department failed to manually print Mrs. Smith's May 5, 1994, test result and place it in the file kept in the Radiology Department; and (7) the radiology staff should not have informed Mrs. Smith that if she did not hear anything in three to four days she could assume her May 5, 1994, mammogram was normal, and the hospital should have had a procedure in place in 1994 to directly notify patients concerning their mammogram results. Mr. Smith's claim is for loss of consortium.

This case was tried non-jury by this Court on February 4 and 5, 1999. After reviewing the trial transcript, this Court determined that it would be helpful to have testimony from a hospital administrator, or some other knowledgeable person, on the issue of whether the hospital's procedure for relaying radiology test results to requesting physicians during the transition phase to computers was a deviation from standard hospital practice, and whether that procedure would have been utilized by a hospital using due care. There had been no testimony presented at the trial on those issues, and the parties had not developed any such evidence.

The Court gave the parties time to locate such witnesses and take their depositions, which was done. After the transcripts of the new evidence were prepared, the parties notified the Court that they had agreed to submit the depositions for the Court's review in lieu of the Court hearing live testimony from those witnesses. The new witnesses included Melissa Jarriel, Kimberly Stavrinakis, and Kathryn L. Brownlee. This Court has now reviewed the additional deposition testimony, the trial transcript, the transcript of oral argument, and the relevant legal authorities, and this action is now ready for disposition.

Pursuant to Federal Rule of Civil Procedure 52, this Court makes the following findings of fact and conclusions of law, and it ultimately concludes that the United States is entitled to judgment in its favor.

FINDINGS OF FACT

1. Betty Smith is the wife of Rudolph Smith, who retired from the military. Mrs. Smith was entitled to and did receive routine medical care, including mammograms, at the Beaufort Naval Hospital, Beaufort, South Carolina, which hospital is the responsibility of the United States of America.

2. Dr. George Gilbert, an employee of Military Partnerships, Inc., was Betty Smith's family physician, at the Family Medicine Clinic. Dr. Gilbert ordered a routine yearly mammogram for Mrs. Smith on January 31, 1994. Because the mammography equipment at the Beaufort Naval Hospital was not operational, the mammogram was not performed until May 5, 1994. Mrs. Smith's last mammogram had been performed in 1993, and it had been reported as normal.

3. Dr. Gilbert was not an employee or agent of the United States, nor were the staff employees who worked in the Family Medicine Clinic.

4. Mrs. Smith stated that on May 5, 1994, "they" told her that they would send the results of the mammogram to her physician and if she did not hear anything within three to four days she could assume it was normal.

5. On May 5, 1994, Mrs. Smith's mammogram film was interpreted by Dr. T. Ray Sherbert, a radiologist, as showing a "suspicious mass" in the nine o'clock position in her right breast. Dr. Sherbert dictated a report of these results, and it was transcribed into the hospital's new computerized Composite Health Care System ("CHCS") at 12:07 p.m. on the day of the mammogram. The report of Mrs Smith's mammogram results was approved by Dr. Sherbert at 12:10 p.m. on May 5, 1994, as shown in the CHCS records. Dr. Sherbert testified that he felt fairly certain that he would have personally verified Mrs. Smith's May 5, 1994, mammography report because it was a major abnormality, and he stated that it was his responsibility to dictate the text of the report and the result code, not the radiology technicians' responsibility. He further testified that Mrs. Smith's report was coded "see report text," but he does not know why it was coded in that manner because it should have been coded "abnormal," and that he could not say for sure that he told the transcriptionist to code it "abnormal."

6. Dr. Sherbert was employed by Beaufort Radiology Services; he was not an employee or agent of the United States; however, the radiology technicians and transcriptionists were employees or agents of the United States.

7. Beaufort Naval Hospital Instruction 6510.3D reads "(a)ny abnormal findings by the Radiologist will be phoned to the ordering provider by the Radiologist or staff technologist." This Instruction was in place in May of 1994. As originally issued, this Instruction contained a requirement that "[t]he abnormal finding and phone call shall be logged at the time it is given to the requesting provider." However, the requirement for the radiologist to log the abnormal finding and phone call had been eliminated by a change to the Instruction prior to May of 1994. Dr. Sherbert was required by Beaufort Naval Hospital to comply with hospital instructions.

8. Mrs. Smith did not hear further about the May 5, 1994, mammogram and she thought the mammogram was normal. In October, 1994, while doing a self-examination of her breast she discovered a lump there. She called and made an appointment to see Dr. Gilbert, and she saw him on November 1, 1994.

9. On November 1, 1994, Dr. Gilbert, after examining Mrs. Smith and finding the lump in Mrs. Smith's breast, told her that he had not heard anything from the results of the mammogram he had ordered in January, 1994, and which she had completed on May 5, 1994. In Mrs. Smith's presence, Dr. Gilbert located the May 5, 1994, mammogram report on his computer terminal. The May 5, 1994, mammogram report stated: "Comparison with exam of 3/2/93 nodular density with irregular borders has developed at breast in 9 o'clock position (1.5 × 1.2 cm's). Rec. needle localization and biopsy." Mrs. Smith felt devastated, and her immediate thought was that she was going to die. She became hysterical and her husband traveled to Beaufort to comfort her. According to Dr. Gilbert, he had never received the May 5, 1994, abnormal mammogram report or heard anything about it until he found it himself on the computer terminal on November 1, 1994.

10. Dr. Gilbert ordered another mammogram on November 1, 1994, and it was read that "the lesion has irregular borders and measures approximately 2 cm in greatest diameter and is highly suspicious for carcinoma." Needle localization and biopsy were again recommended.

11. Dr. Tim Pearce, a surgeon, performed the biopsy and after examination of the two lesions removed during surgery, a pathologist concluded the tumors were ductal infiltrating carcinoma. Dr. Pearce recommended a modified radical mastectomy but because Mrs. Smith was interested in breast conservation, he referred her to Dr. Dent Purcell, a radiation oncologist. Dr. Purcell concluded that Mrs. Smith could be treated with a lumpectomy, chemotherapy, and radiation treatment.

12. On November 22, 1994, Mrs. Smith had the lumpectomy and had the lymph nodes of the arm pit removed. Of twelve lymph nodes removed, four of the deep axillar nodes contained cancerous tumors which had metastasized from the breast tumor.

13. Mrs. Smith completed the chemotherapy and radiation therapy and had not been diagnosed with a recurrence of the cancer when all the evidence was submitted to the Court.

14. Dr. Sherbert testified that upon reading the abnormal mammogram on May 5, 1994, he called Dr....