Warren v. United States
| Decision Date | 17 April 2023 |
| Docket Number | Civ. 19-00232 JMS-WRP |
| Parties | JOHN DAVID WARREN, JR., AND LAURA WARREN, Individually, and as Guardians Ad Litem and Next Friends of Their Minor Children, D.G.W, A.J.W., J.D.W. III, and A.A.W., Plaintiffs, v. UNITED STATES OF AMERICA; HAWAII PACIFIC HEALTH, a Domestic Nonprofit Corporation; HAWAII PACIFIC HEALTH PARTNERS, INC., a Domestic Nonprofit Corporation; KAPIOLANI MEDICAL SPECIALISTS, a Domestic Tax Exempt Organization; and DEVIN PUAPONG, M.D., Defendants. |
| Court | U.S. District Court — District of Hawaii |
PRELIMINARY FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court conducted a non-jury trial from August 2-12, 2022, in this medical malpractice action brought under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-80, by Plaintiffs John David Warren, Jr., and Laura Warren, individually and as guardians ad litem and next friends of their minor children, D.G.W., A.J.W., J.D.W. III, and A.A.W (collectively, “Plaintiffs”). After a period for preparation of trial transcripts, the parties filed post-trial proposed Findings of Fact and Conclusions of Law (“FOFCOLs” or “Findings and Conclusions”). See ECF Nos. 440, 441. The court has reviewed those submissions and has analyzed and given considerable thought to the extensive evidentiary record and trial testimony, and now issues these Preliminary Findings and Conclusions under Federal Rule of Civil Procedure 52(a).[1]
The Findings and Conclusions are “preliminary” only to the degree that additional submissions are necessary-as was discussed with the parties during trial-as to calculations for the present value of amounts of damages found by the court, and for lost earning capacity. After considering those supplemental filings, the court will issue final Findings and Conclusions and direct the entry of judgment.
As detailed to follow, by a preponderance of the evidence, the court finds and concludes that the United States of America (“United States” or “Defendant”) is liable under Hawaii law applicable under the FTCA. As for D.G.W.,[2] the court finds general (non-economic) damages of $5,375,000.00 and special (economic) damages totaling $18,572,104.71. As for Laura Warren, the court finds general (non-economic) damages of $1,000,000.00, and special (economic) damages totaling $2,047,650.00 for past skilled care (whether provided by Laura or John Warren).[3] The court will also supplement these figures with additional damages for lost earning capacity, ranging from approximately $1.3 million to $3 million, depending on further Findings after new submissions. These figures are subject to application of Hawaii Revised Statutes (“HRS”) § 663-15.5, and supplemental briefing (and perhaps testimony) regarding present value and D.G.W.'s lost earning capacity.
Shortly after 5:00 p.m. on September 22, 2016, the parents of onemonth old D.G.W. brought her to the emergency department at Tripler Army Medical Center (“Tripler”) in critical condition. She had a distended, acute abdomen, and her parents described her color sometime in the prior three hours as yellow from the waist up and blue from the waist down. See, e.g., Exhibit (“Exh.”) J-1 at USA000052 and USA000059;[4] Tr. V.6-158. The attending emergency room (“ER”) physician, Dr. James Fitch, later described her as one of the most critically ill infants he has treated in nearly 20 years of experience as an ER physician. See ECF No. 416-1 at PageID.7371.
D.G.W. “coded” shortly after arriving at Tripler-she stopped breathing and her heart rate slowed to 82 beats per minute (dangerously low for an infant).[5] Id. at PageID.7370; Tr. V.6-163. After life-saving measures were performed, D.G.W.'s breathing and heart rate stabilized in about half an hour, but Dr. Fitch “remained concerned for continuing high risk of death because there was no definitive diagnosis of the cause of the code.” ECF No. 416-1 at PageID.7370.
No prior bilious vomiting was noted, but approximately 285 milliliters of brownish fluid was removed from D.G.W.'s stomach through an orogastric tube. Tr. V.1-121; Tr. V.6-100. According to Dr. Fitch, D.G.W.'s differential diagnosis-which basically is a working list of possible conditions that could be causing symptoms[6]-included “[m]alrotation with volvulus, abdominal compartment syndrome, severe inflammatory reaction to nutrition, overwhelming infection causing severe sepsis, bowel ischemia/necrosis with perforation, and trauma.” ECF No. 416-1 at PageID.7370. When she was officially or administratively transferred from the emergency department to Tripler's pediatric intensive care unit (“PICU”) at about 7:55 p.m. that evening, Dr. Fitch's “clinical impression” of D.G.W. was documented as:
Exh. J-1 at USA000056.
One of Plaintiffs' expert witnesses, Dr. Carlos Maggi, credibly explained that “[i]n layman's terms, [volvulus is] basically the intestine rotating on its own axis and producing an obstruction of the bowel, obstruction of the vessels that nourish the intestinal tract.” Tr. V.1-32. According to Dr. Maggi, “volvulus is considered the most critical and the most . . . significant catastrophic intraabdominal event . . . in a newborn's life . . . [b]ecause if it's not treated appropriately, if it's not ruled out appropriately and [on] a timely basis, the child is going to . . . either die, or . . . survive with [a] significant amount of handicaps, including the need to resect [a] significant amount of bowel.” Tr. V.1-36 to 37.[7]
As it turns out, D.G.W. indeed had a midgut volvulus. But the volvulus was “not treated . . . [on] a timely basis.” Id. at 37. Although D.G.W. survived, she now has “a significant amount of handicaps” after losing a “significant amount of bowel.” Id. Much of the trial centered on the circumstances of the untimely diagnosis and treatment of D.G.W.'s midgut volvulus.
Radiologic or imaging tests-ultrasound, X-ray, and a computerized tomography (“CT”) scan without IV contrast-were performed on D.G.W. while she was admitted to the Tripler ER in an attempt, among other things, to rule out or to confirm “malrotation with volvulus,” which remained on her differential diagnosis. But an upper gastrointestinal (“UGI”) study was never done. See, e.g., Tr. V.1-41, 68. Expert witnesses from both sides agreed that a UGI study is the “gold standard” radiologic test to diagnose or rule out volvulus. See, e.g., Tr. V.1-40 to 41; Tr. V.3-23; Tr. V.7-60. The omission of a UGI study, and reasons for the omission, were also central themes at trial.
Proper treatment of a volvulus requires prompt surgery. See, e.g., Tr. V.1-175; Tr. V.7-35. Tripler did not have an in-house fully-qualified pediatric surgeon available, but it had contracted with Kapiolani Medical Specialists for services of on-call pediatric surgeons, as there are (or were at that time) only three fully-qualified pediatric surgeons in Hawaii. See ECF No. 379-1 at 9 to 13, PageID.6678 to 6681; Tr. V.5-170; Exh. J-4. Sometime after D.G.W. was admitted to the ER, the designated pediatric surgeon from Kapiolani Medical Specialists-Dr. Devin Puapong-was called to Tripler by then-resident physician, Dr. Margaret Gallagher (nee Clark). See ECF No. 420-1 at PageID.7415. Tripler staff had notified the anesthesia department of D.G.W.'s status at 6:35 p.m., presumably to prepare for surgery. See Exh. J-1 at USA000062. Dr. Puapong participated in evaluating D.G.W. when she was under care of the ER, but he decided not to perform surgery at that time. The circumstances involved in that decision not to perform surgery were also major themes at trial.
After Dr. Puapong left Tripler, D.G.W. remained at the Tripler PICU throughout the night of September 22nd and into the early-morning of September 23rd under the primary care of the Tripler PICU's attending physician, pediatric intensivist Dr. Christopher Naun, who had been part of the team examining D.G.W. while in the ER. Dr. Naun is a civilian employee of Tripler. D.G.W. was transferred from Tripler to Kapiolani Medical Center for Women and Children (“KMCWC”) mid-morning on September 23rd. According to Dr. Naun, D.G.W. was transferred to KMCWC ostensibly for dialysis (treatment unavailable at Tripler) as her kidneys were failing. See, e.g., Tr. V.5-196, Tr. V.6-39 to 40. After her arrival at KMCWC, Dr. Puapong-the same surgeon who had decided not to perform surgery at Tripler the day before-performed emergency exploratory surgery at D.G.W.'s bedside in KMCWC's PICU at about 12:30 p.m. (approximately 19 hours after she had first arrived at Tripler). E.g., Tr. V.1-164; Tr. V.5-39 to 40; ECF No. 395 at PageID.7158. A “[m]alrotation with partial midgut volvulus” was discovered and surgically treated with a Ladd's procedure and silo placement. E.g., Exh. J-13 at 1; Tr. V.1-108. Much of the trial concerned D.G.W.'s condition throughout the night and early-morning while at Tripler, and the actions or omissions of Dr. Naun and other physicians before her transfer to KMCWC on September 23, 2016.
Following several additional surgeries, primarily by Dr. Puapong, at KMCWC through November of 2016, D.G.W. lost 70 to 95 percent of her small intestinal tract after resections of necrotic tissue. Exh. J-13. She also lost her ileocecal valve, the loss of which interferes with absorption of nutrients and has other side effects. Tr. V.1-191. At age three months, her small intestines measured only five inches compared to about eight feet for a normal three-month old (although none of her large intestine was removed). Tr. V.2-142 to 143. She will likely forever have short or...
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