Wareing through Wareing v. U.S.

Decision Date16 July 1996
Docket NumberNo. 93-6306-Civ.,93-6306-Civ.
Citation943 F.Supp. 1504
PartiesNathan WAREING, Through His Guardian Ad Litem, Teresa WAREING, Plaintiff, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — Southern District of Florida

Christian B. Nielsen, San Jose, CA, for plaintiff.

Wendy A. Jacobus, Assistant United States Attorney, Southern District of Florida, Miami, FL, for defendant.


MARCUS, District Judge.

THIS MATTER was tried without a jury before this Court on October 20, 23-24, 1995, November 15-17, 20-22, 1995, February 23, 26-28, 1996, April 15-19, 22, and concluded with closing arguments on May 28, 1996. Plaintiff Nathan Wareing, through his Guardian Ad Litem Teresa Wareing ("Plaintiff") brings this action1 against Defendant United States of America ("Defendant") pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. Plaintiff alleges medical malpractice in connection with the birth of Nathan Wareing on May 3, 1985 at the U.S. Naval Hospital in Guam. More specifically, Plaintiff says that the medical treatment that Teresa Wareing received between May 1, 1985 and May 3, 1985 fell below the applicable standard of care, and that the Government's breach caused Nathan Wareing to sustain permanent neurological injuries including, among other things, low I.Q., language disorder, attention deficit disorder, as well as other neurological deficits.

Upon a thorough review of the evidence and materials presented at trial, we conclude that Plaintiff has met his burden of demonstrating that Defendant breached a duty owed to Plaintiff, that the Government's medical staff badly mishandled Teresa Wareing's high risk labor and delivery, that Defendant's conduct was the cause of Plaintiff's injuries, and that Plaintiff suffered extensive damages. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court makes the following Findings of Fact and Conclusions of Law.2

1. Plaintiff Nathan Wareing was born on May 3, 1985 at the U.S. Naval Hospital in

Guam. He is presently eleven years old and resides with his mother and Guardian ad litem Teresa Wareing and his father Bruce Wareing in Florida.

2. The United States of America is the Defendant in this action.

3. Bruce Wareing, Nathan's father, was stationed at Anderson Air Force Base in Guam on active duty with the United States Air Force in 1985. Trial Tr., Test. of Bruce Wareing, November 15, 1995, at 17-18. Teresa Wareing, Bruce Wareing's wife and Nathan Wareing's mother, was in the active reserve at this time, and was in Guam as Bruce Wareing's dependent. Trial Tr., Test. of Teresa Wareing, February 27, 1996, at 125-26.

4. Teresa Wareing learned that she was pregnant in August 1984. She received prenatal medical treatment at the United States Air Force clinic through her fortieth week, and thereafter from the United States Naval Medical Center. Id. at 126. Teresa Wareing's medical records reflect that she had regular prenatal appointments between August, 1984 and her admission to the United States Naval Hospital on May 2, 1985. Pl. Ex. 6, Medical Records, at 15-20. Teresa Wareing's pregnancy was uneventful, and she testified that she did not have any significant medical problems from August 1984 to May 1985. Trial Tr., Test. of Teresa Wareing, February 27, 1996, at 130. Her estimated due date was April 8, 1985. Id. at 126.

5. The evidence establishes, however, that from May 1, 1985 until the delivery of Nathan Wareing on May 3, 1985, the Plaintiff received substandard medical treatment at the United States Naval Hospital on Guam. Among other things, the Defendant failed to recognize risks attendant to Teresa Wareing's high risk labor and failed to timely deliver her child. At the outset Defendant's physicians and other health care providers failed to appreciate the warning signs of this high risk pregnancy. According to the testimony of Dr. Oakes, one of Plaintiff's expert witnesses, an obstetrician/gynecologist with a subcertification in maternal fetal medicine or perinatology, the major risks associated with post-term pregnancies are "perinatal asphyxia, meconium aspiration and fetal distress [and] birth trauma." Trial Tr., Test. of Gary K. Oakes, M.D., February 26, 1996, at 24. Oakes testified that the Defendant failed to establish an adequate pattern of monitoring and surveilling fetal well-being after Teresa reached her 42nd week. The warning signals were magnified in this case, when at a prenatal examination of Mrs. Wareing on May 1, 1985, an ultrasound test revealed minimal amniotic fluid. Pl.Ex. 17, Dep. of James Ray Beckham, M.D., at 17-19 ("as you scanned over the uterus and looked at the baby there was a subjective impression that the amniotic fluid was definitely decreased"), Pl.Ex. 6, Medical Records, at 15. Dr. Oakes, the director of perinatology and chairman of obstetrics and gynecology at Memorial Hospital Center in Savannah, testified specifically that the Defendant's health care providers failed to appreciate the high-risk nature of the Wareing pregnancy and failed to properly monitor it. Particularly after the ultrasound showed minimal amniotic fluid on May 1, 1985, Oakes opined that "she needed to be induced, not two days later as it was scheduled." That failure, he concluded, was a departure from the standard of care. Trial Tr., Test. of Gary K. Oakes, M.D., February 26, 1996, at 84. Nevertheless, Dr. Beckham, the Navy's obstetrician who examined Teresa Wareing on May 1, 1985 concluded that he had a window of some 48 to 72 hours for safe delivery and decided to send Mrs. Wareing home until May 3, when, if needed, he would induce delivery. Pl.Ex. 17, Dep. of James Ray Beckham, M.D., at 20. The Court specifically credits the testimony of Dr. Oakes.

6. Teresa Wareing began to have contractions at around 10:00 to 10:30 p.m. on the evening of May 1, 1985. Trial Tr., Test. of Teresa Wareing, February 27, 1996, at 140. Thereafter, as the contractions progressed, Mr. and Mrs. Wareing went to the United States Naval Hospital at around 11:00 a.m. on the morning of May 2, 1985. Id. at 142; Trial Tr., Test. of Bruce Wareing, November 15, 1995, at 26. Upon arrival at the hospital, Teresa Wareing was given an exam and was advised that she was only dilated to one centimeter and that she "should either go home and rest or go get some lunch, [because] it was going to be a long day...." Trial Tr., Test. of Bruce Wareing, November 15, 1995, at 26-27. Upon returning to the Naval hospital in the afternoon of May 2, 1985, Teresa Wareing was seen by Lieutenant Michael Murphy, M.D., an obstetrician on assignment with the United States Navy, and was admitted as a patient at 3:30 p.m. in the afternoon. Pl.Ex. 18, Dep. of Michael A. Murphy, M.D., January 31, 1994, at 25; Pl. Ex. 6, Medical Records, at 21. Dr. Murphy was the primary obstetric provider for Mrs. Wareing until his watch was changed at 4:30 p.m., when Lieutenant Commander John Keyes, M.D. assumed the watch. Pl.Ex. 18, Deposition of Michael A. Murphy, M.D., January 31, 1994, at 27. Dr. Keyes's specialty was family practice. Id. at 28. Dr. Murphy backed up the primary care physician, and, upon review of the medical records, he noted that he issued an order at 7:15 p.m. on the evening on May 2, 1985 which directed that "Patient to be monitored, q-2 hours, if ambulating. If no labor, let patient sleep on postpartum. Seconal, 100 milligrams, PO, before sleep if needed tonight." Id. at 31; Pl.Ex. 6, Medical Records, at 21.

Notably, Dr. Murphy agreed with Dr. Oakes' opinion that decreased amniotic fluid or "oligohydramnios" in connection with a post-date pregnancy "bears concern" and "bears watching" and generally calls for heightened vigilance. Pl.Ex. 18, Dep. of Michael A. Murphy, M.D., January 31, 1994, at 39. Dr. Keyes also testified in his deposition that a post-date pregnancy raises concern and noted that he watched Mrs. Wareing "very closely" as he "watched all of the ladies on the labor deck closely." Pl.Ex. 20, Dep. of John Judson Keyes, III, February 11, 1994, at 42, 50.

7. One of the medical providers to Mrs. Wareing at the Naval hospital, Lieutenant Louise M. Therriault, a staff nurse on the labor deck, testified that it was, among other things, part of her duty to monitor the patient's condition and "report any untoward or suspicious-looking findings to the physician on duty." Pl.Ex. 21, Dep. of Louise M. Therriault, April 25, 1994, at 27. However, Nurse Therriault observed that it was not her practice to give any more attention to a post-date pregnancy than a non-post-date pregnancy, nor was there any heightened degree of monitoring of a woman who was post-date. Id. at 61-62.

8. Dr. Oakes testified and the evidence supports the finding that the Defendant failed to adequately monitor the information transmitted through the fetal heart monitor. The fetal heart monitor strips were an important piece of evidence presented in the case. Fetal heart monitoring measures the fetal heart rate, and in particular, the variability in the fetal heart rate, that is, small regular changes in the lapse of time from beat-to-beat. Good beat-to-beat variability suggests normal neurological function. The deeper the heart rate drops and the longer the deceleration lasts, the greater the risk of possible neurological injury to the fetus. Dr. Oakes testified that careful monitoring of the fetal heart monitor strips was especially important in this case because of Mrs. Wareing's post-term status and the finding of minimal amniotic fluid. Nurse Therriault made a notation at 1:15 a.m. on the morning of May 3, 1985 indicating a deceleration on the fetal heart monitor strip, and additionally noted that Mrs. Wareing was lying on her right side. Id. at 98. Teresa Wareing was thereafter moved to her left side with Nurse Therriault's assistance. Id.; see also Pl.Ex. 6, Medical Records, at the fetal heart strips 54570-54571. Nurse...

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