Wheeler Tarpeh-Doe v. US, Civ. A. No. 88-0270-LFO.

• Decision Date: 24 July 1991
• Docket Number: Civ. A. No. 88-0270-LFO.
• Citation: 771 F. Supp. 427
• Parties: Linda WHEELER TARPEH-DOE, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Columbia

771 F. Supp. 427

Linda WHEELER TARPEH-DOE, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.

Civ. A. No. 88-0270-LFO.

United States District Court, District of Columbia.

July 24, 1991.

COPYRIGHT MATERIAL OMITTED

Madelyn E. Johnson, Asst. U.S. Atty., Sally M. Rider, Washington, D.C. (H. Rowan Gaither, Attorney Advisor, Office of Intern. Claims & Inv. Disputes, Office of the Legal Advisor, U.S. Dept. of State, Washington, D.C., of counsel), for U.S.

Randall Hunt Norton, John Jude O'Donnell, Thompson McGrail O'Donnell & Harding, Washington, D.C., for Wheeler Tarpeh-Doe.

MEMORANDUM

OBERDORFER, District Judge.

Plaintiffs Linda Wheeler Tarpeh-Doe and Marilyn Wheeler seek relief for injuries suffered by Nyenpan Tarpeh-Doe pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) & 2671 et seq.¹ Tarpeh-Doe is the mother of Nyenpan, an eight year old boy who is blind and suffers from severe neurological damage. Nyenpan is a long term patient and resident at the Wheat Ridge Regional Center in Wheat Ridge, Colorado, where he receives constant and complete care. Marilyn Wheeler, a Colorado resident, is Nyenpan's grandmother and legal guardian.

Linda Wheeler Tarpeh-Doe is employed by the United States Agency for International Development ("AID"). The State Department Office of Medical Services in Washington, D.C. has responsibility for the provision of health care worldwide to employees of the State Department, AID, and other government agencies. With respect to overall medical policy, the Uniform State/AID/USIA Regulations² provide that:

The general medical policy of the Department of State is to assist all American employees and their dependents in obtaining the best possible medical care. This includes personnel of the Department and all agencies participating in the medical program by agreement. This policy extends to the most remote parts of the world, so that no employee need hesitate to accept an assignment to a post where health conditions are hazardous, medical service poor, or transportation facilities limited. Principal and administrative officers, and their designees, and principal representatives of participating agencies are cautioned to be alert to any medical and health problems of employees and their dependents and to take appropriate action promptly.

3 Foreign Affairs Manual ("FAM") § 681.2.; Defendants' Exhibit ("Defs. ex.") 1 (emphasis supplied). The State Department, through its Office of Medical Services, provides and is responsible for overseeing Regional Medical Officers in areas of the world in which adequate local care is not available. Deposition of Jerome M. Korcak ("Korcak dep.") at 10. Regional Medical Officers are physicians responsible for the provision of "medical care, counsel and examinations for American employees and their dependents within the framework of these regulations and the capability of the physician, considering the facilities and time available." § 682.2-2(a)(1).

In 1981, AID assigned Tarpeh-Doe to a post in Monrovia, Liberia. At that time, Dr. Theodore E. Lefton was the Regional Medical Officer assigned to the embassy in Monrovia. Dr. Lefton had been stationed in Monrovia for four years (two two-year terms) and was scheduled to remain for an indefinite period. See Deposition of Theodore E. Lefton ("Lefton dep.") at 150. However, in March, 1982, a routine State Department inspection at the Monrovian embassy revealed widespread dissatisfaction with Dr. Lefton's attitude and lack of availability. See Depositions of Herbert W. Schulz ("Schulz dep.") at 30 & 58 and John J. Crowley ("Crowley dep.") at 50, 56, & 75. Following the inspection, William Swing, then U.S. Ambassador in Liberia, and Jerome M. Korcak, then Medical Director of the Office of Medical Services at the State Department in Washington, D.C., decided to curtail Dr. Lefton's assignment to Monrovia because of his poor attitude and availability. Swing preferred curtailing Dr. Lefton's assignment as early as possible. However, Dr. Korcak was reluctant to support that preference and was not overly concerned about Dr. Lefton's provision, or more accurately, lack of provision of medical services. On May 17, 1982, following discussions in late April and early May, 1982 (including discussions with Dr. Lefton), Korcak and Swing came to an agreement to permit Dr. Lefton to remain at post until November 1, 1982. See Defs. exs. 2-4; see also infra, at 433-34. There is no evidence that Dr. Korcak gave any special instructions to Dr. Lefton or placed his service under heightened scrutiny, despite the deficiencies in his services which prompted the decision to terminate his assignment. Nor is there any evidence of any special effort by Dr. Korcak to expedite selection and assignment of either a temporary or permanent replacement for Dr. Lefton.

On May 18, 1982, while stationed with AID in Monrovia, Linda Wheeler Tarpeh-Doe delivered Nyenpan. Within three weeks of birth, the baby contracted a bacterial infection that developed into what was ultimately diagnosed as spinal meningitis. On June 5, 1982, Tarpeh-Doe brought the baby to the health unit at the United States embassy in Monrovia. On Saturday, June 5, 1982, Nyenpan was examined at the embassy health clinic by Dr. Lefton, who forthwith referred the mother and child to an American pediatrician, Dr. David E. Van Reken. Dr. Van Reken was employed by an American mission in Monrovia not affiliated with the embassy. The baby remained under Dr. Van Reken's care at local hospitals for the next twelve days. On June 17, 1982, Nyenpan, his parents, and an embassy nurse were evacuated to the United States to enable the family to seek additional medical treatment for Nyenpan. By that time, however, he was beyond hope of recovery.

Plaintiffs claim that the Department of State in Washington, D.C. violated its duty to provide Nyenpan, a dependent of its employee, with the "best possible medical care" and "to be alert to any medical and health problems of ... dependents and to take appropriate action promptly" as required by the Uniform State/AID/USIA Regulations. 3 FAM § 681.2. Specifically, plaintiffs allege that the following acts or omissions of defendants constituted negligence. First, plaintiffs assert that the State Department failed to inform Tarpeh-Doe that her health benefits included the option to travel to Europe or the United States to deliver her child. Second, plaintiffs claim that the State Department and its Office of Medical Services acting concurrently with the Ambassador negligently retained Dr. Lefton even after it learned of the widespread dissatisfaction with the doctor's attitude and availability. In addition, plaintiffs contend that the Office of Medical Services in Washington negligently failed to supervise Dr. Lefton adequately, especially once it was on notice of complaints about his attitude and availability and that his term had been curtailed at the time he treated Nyenpan. Third, plaintiffs allege that the State Department negligently failed to deliver to Monrovia a message from Dr. Schroeter, a neonatologist in Colorado who had been contacted by Marilyn Wheeler in preparation for evacuation, that he felt it was imperative that he speak with the treating physician in Liberia. Finally, plaintiffs claim that the Office of Medical Services in Washington negligently conducted the wrong test on a sample of spinal fluid sent to it from Monrovia for laboratory tests. Plaintiffs contend that defendants' negligence proximately caused Nyenpan's injuries. At a trial held on November 26 — December 4, 1990, the parties produced through testimony and designated deposition transcripts the factual evidence summarized below.

I.

A. The Inspection

1.

The Inspector General's office of the State Department routinely investigates embassies every three to five years. In February and March, 1982, a team of five or six inspectors from that office visited Monrovia, Liberia as part of an inspection tour that included visits to four embassies in West Africa. The inspection of the Liberian embassy took place from February 22 to March 5. See Plaintiffs exhibit ("Pls. ex.") 33. With respect to health services, the inspectors wrote in their final report:

The medical facility is totally inadequate. It is crowded, dingy, and anti-therapeutic, among other shortcomings....

The Medical Unit must also improve its image and responsiveness. The inspectors received numerous complaints about it. Health units should make a positive contribution to morale and welfare, and the unit in Monrovia does the opposite.

. . . . .

Complaints about the quality of official US health services have been so widespread that it may be the single most significant non-environmental negative factor affecting morale at this post.

Id., Inspection Memoranda 6.2f & 1.2 at 5. When the inspectors returned to Washington they met to report the results of the inspection with administrators of the Office of Medical Services, including Dr. Jerome Korcak, then Medical Director. In the debriefing, the inspectors explained to Dr. Korcak and others that employees on post had complained in particular about Dr. Lefton's attitude and availability. On April 6, 1982, soon after returning from the inspection tour, Ambassador John J. Crowley, the leader of the inspection team, visited Dr. John Beahler, then Deputy Medical Director, because he felt on a personal and professional basis that he should inform Beahler of the situation. Crowley dep. at 71. Crowley told Beahler that "there is `widespread' discontent with Dr. Lefton's performance as RMO in Monrovia." See Id. at 71; Korcak's Memorandum to the File about Complaints regarding Dr. Lefton's Performance, defs. ex. 3 at 1. On April 27, members of the inspection team met with Dr. Korcak. The team informed Dr. Korcak that "`a majority of personnel' in responses on questionnaires and in spontaneous oral complaints indicated their...