Teresa Wareing as Guardian ad Litem of Nathan Wareing v. United States of America
Published: Oct. 26, 1996 | Result Date: Jul. 16, 1996 | Filing Date: Jan. 1, 1900 |Case number: 936306CIV – $3,615,630
Court
USDC Florida
Attorneys
Plaintiff
Christian B. Nielsen
(Office of the San Jose City Attorney)
Defendant
Experts
Plaintiff
Kenneth Clarkson
(technical)
Lawrence S. Foreman
(technical)
Gary Oakes
(medical)
Dieter Enzmann
(medical)
Carol Abrahams
(medical)
Robert Cullen
(medical)
Barry Crown
(medical)
Ronald S. Coen
(medical)
Defendant
Cynthia L. Wilhelm
(technical)
Elias G. Chalhub
(medical)
Thomas Nadich
(medical)
Michael Duchowney
(medical)
Bridget Pallango
(technical)
Mary Pever
(technical)
Lawrence Wagner Kenny
(technical)
Bonnie E. Levin
(medical)
Facts
In 1985, the plaintiff's parents, Bruce and Teresa Wareing were members of U.S. Air Force, stationed on Guam. Teresa Wareing's pregnancy was three weeks post-dates when an ultrasound examination on May 1, 1985, revealed minimal amniotic fluid. Up to this point, Mrs. Wareing had been receiving regular prenatal care at the defendant naval hospital on Guam. The naval obstetrician who examined Mrs. Wareing on May 1,1985, noted minimal amniotic fluid, but sent her home. That evening, Mrs. Wareing went into labor. When her contractions were regular, on morning of May 2, 1985, she arrived at the defendant naval hospital. The plaintiff claimed that although the defendant's medical staff was aware of Mrs. Wareing post-term status and low amniotic fluid, they failed to provide the heightened level of monitoring and assesstment that her condition called for. The plaintiff claimed the medical staff also failed to respond to "unequivocal" signs of evolving fetal distress, which allegedly became apparent by 1 a.m. on May 3, 1985. The attending physician, a family doctor, ruptured Mrs. Wareing's amniotic sac at about 1 a.m., and observed thick meconium. He also noted poor beat-to-beat variability on the heart monitor. A few minutes later, a nurse noted significant heart rate decelerations again on the fetal heart monitor. Neither the nurse nor the attending physician notified the on-call obstetrician and took no other action to either expedite delivery, or to monitor the baby's condition. From 1 a.m. on, Mrs. Wareing's labor stalled and signs of fetal distress became progressively worse. The plaintiff claimed that for over four hours, the defendant's medical staff failed to respond to repeated and profound decelerations of the plaintiff baby's heart rate and worsening beat-to-beat variability which the plaintiff claimed were clearly evident on the heart monitor strips. There were no entries made in the medical records between 2:45 a.m. and approximately 4 a.m., when the plaintiff's father observed a sudden drop in the plaintiff baby's heart rate and ran into the hallway to summon help from the medical staff. The defendant family physician then notified the on-call obstetrician, who ordered a caesarian section. However, 90 minutes elapsed between the time the c-section was called and the time that the plaintiff child was delivered at 5:40 a.m. The plaintiff child, now 11 years old, brought this action against the defendants, the United States government, based on negligence and medical malpractice as well as respondeat superior and negligent hiring theories of recovery.
Settlement Discussions
The settlement discussions were not disclosed.
Specials in Evidence
$3.2 million $600,000
Injuries
The plaintiff child alleged he sustained hypoxic-ischemic injury to the brain, resulting in a reduced IQ, which has been tested between 70 and 75, and attention deficit disorder. He does not have any motor deficits or significant behavioral problems.
Other Information
The verdict was reached approximately three years and four months after the case was filed. Under the Federal Tort Claims Act, the case was governed by the law of Guam, the place where the injury occurred, even though the plaintiffs are residents of Florida. Under Florida law, the existence of free public services can be considered in awarding damages for personal injury. Guam, however, has not modified the common law "collateral source rule," which bars evidence of gratuitous benefits on the theory that they would represent a windfall to the wrongdoer. Guamanian Civil Code is based upon California law as enacted in the 1930's. The Guamanian legislature had enacted statutes designed to limit recovery in medical malpractice cases, but that statute was held to be unconstitutional. The law that was eventually applied in the case was the common law of California as it existed pre-MICRA (Medical Insurance Crisis Reform Act). Plaintiff's pediatric neurologist expert, Dr. Cullen, testified as to the nature and extent of the plaintiff's brain injuries and the cause thereof. The plaintiff's neuropsychology expert, Dr. Crown, testified about the plaintiff's IQ and the future level of achievement. Defendant expert, Elias Chalhub, M.D. testified that the plaintiff child sustained an injury to his brain prior to the 35th week of gestation. Defendant's experts Bonnie Levin, Ph.D., and Cynthia Wilhelm, testified the plaintiff had a low normal I.Q. and incurred either no future wage loss, or a loss of less than $200,000.
Length
25 days
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