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Afcan v. United States

August 6, 2010

JENNIFER AFCAN, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, J.A., PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: John W. Sedwick United States District Judge

ORDER AND OPINION

[Dkt. 44, 45, 46, 47, 48, 49, 50, 51, 62, 63, 64, 69, 77, and 79]

I. MOTIONS PRESENTED

At docket 44, the government moves in limine to establish the measure of past damages as the amount paid by Medicaid, as opposed to the actual amount of medical care billed. At docket 52, plaintiff Jennifer Afcan filed a non-opposition to the motion.

At docket 45, the government moves in limine to dismiss recovery of more than one damage cap for all plaintiffs per AS § 09.55.549. At docket 54, Afcan opposes the motion. At docket 61, the government replies and, at docket 62, moves for leave to file additional factual materials in support of its reply. At docket 63, Afcan moves for oral argument on this motion.

At docket 46, the government moves in limine to dismiss recovery of lost wages on Afcan's loss of society and loss of consortium claims. At docket 53, Afcan filed a non-opposition to the motion.

At docket 47, the government moves in limine to preclude the use of peer review and quality assurance documents and witnesses who participated in the review. At docket 55, Afcan opposes the motion. The government replies at docket 71. At docket 64, Afcan moves for oral argument on this motion.

At docket 48, Afcan moves to exclude late-disclosed evidence, produced after the discovery deadline. At docket 60, the government opposes the motion. Afcan replies at docket 66.

At docket 49, Afcan moves to strike the expert report and testimony of Ronald Keller. At docket 59, the government opposes the motion. Afcan replies at docket 67.

At docket 50, Afcan moves to strike the expert report and testimony of Thomas Koch. At docket 57, the government opposes the motion. Afcan replies at docket 68 and, at docket 69, moves for leave to file additional materials in support of her reply.

At docket 51, Afcan moves for a protective order precluding any assertion of comparative negligence at trial. At docket 58, the government opposes the motion. Afcan replies at docket 65.

At docket 77, Afcan moves to strike the expert rebuttal report and exclude related testimony of Dr. Jerrold Milstein. At docket 78, the government opposes the motion and, at docket 79, cross-moves to strike the testimony of Dr. Bernard McNamara exceeding the scope of his initial report. Afcan opposes the motion at docket 83.

II. BACKGROUND

On January 4, 2007, Afcan took J.A., her then fourteen-month-old son, to St. Mary's Subregional Clinic for treatment of an abscess and a fever. Ken Johnson, the physician's assistant on duty, examined J.A., observing that he had a temperature of 100.8, a pulse of 147, respiration of 28, and a 6 cm by 6 cm area of redness on his right buttock. Johnson sent J.A. home with an antibiotic and an instruction to apply a warm compress to "promote drainage." Believing that J.A.'s condition had worsened later that day, Afcan returned to the clinic. The second examination revealed that J.A.'s temperature had risen to 105.6, that his pulse was 206, and his respiratory rate was 64. Johnson instructed a health aide to place J.A. in a cool bath. Johnson also drew a small sample of blood, and analysis of J.A.'s white blood cell count revealed leukocytosis. After J.A.'s fever decreased to 101, Johnson sent him home with Motrin and Tylenol, with instructions to continue the antibiotic. Afcan claims she was instructed not to return to the clinic unless J.A.'s fever went back up.

On January 8, 2007, Afcan returned with J.A. to the clinic to be seen by a different medical provider. That provider found an "unresolved gluteal abscess, fever, and possible sepsis." J.A. was transported to the Yukon Kuskokwim Delta Regional Hospital ("YKDRH") in Bethel and, after purportedly waiting two hours to be treated, was finally treated and subsequently transported to the Alaska Native Medical Center ("ANMC"). At the ANMC, J.A. was found to be suffering from MRSA-related sepsis and end organ failure. He was intubated for the first 12 days of his month-long hospitalization and has now been found to suffer from neuro-developmental and behavioral disabilities.

III. DISCUSSION

A. Motions for Oral Argument at Dockets 63 and 64

Afcan's requests for oral argument at dockets 63 and 64 are denied. Oral argument would not assist the court in ...


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