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Liebsack v. United States

September 2, 2010

EDWARD LIEBSACK, AS GUARDIAN FOR MADLYN LIEBSACK, PLAINTIFF,
v.
UNITED STATES OF AMERICA; ANCHORAGE COMMUNITY MENTAL HEALTH SERVICES, INC.; RED OAKS ASSISTED LIVING, INC.; JOHN CASTILLO AND JULIET CASTILLO D.B.A. LAKEVIEW ASSISTED LIVING HOME I; ALASKA CARE CONNECTIONS, INC.; AND JOHN DOE I AND JOHN DOE II, DEFENDANT.



The opinion of the court was delivered by: Ralph R. Beistline United States District Judge

*** INITIAL ***

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Before the Court is a Complaint against the United States of America for malpractice pursuant to 28 U.S.C. § 2675 filed by Edward Liebsack, as Guardian for Madlyn Liebsack (Madlyn), against the remaining Defendant, the United States of America, acting on behalf of Anchorage Neighborhood Health Center (ANHC).

Plaintiff asserts that ANHC is liable based on two separate breaches of the applicable standard of care:

1. ANHC laboratory acted below the standard of care by failing to obtain a lithium level result; and

2. Dr. Grant acted below the standard of care by failing to determine the reason for Madlyn's October 16, 2002, appointment.

The Government denies these assertions and asserts that regardless of Defendant's conduct, the damages sustained by Plaintiff were unrelated, i.e. that Madlyn's elevated lithium level on November 10, 2002, was unrelated to and wholly separate from her condition in mid-October of 2002. Defendant further asserts that even if ANHC was responsible in some way for Madlyn's injuries, Madlyn's damages should be apportioned between several other tortfeasors pursuant to A.S. 09.17.080.

The Court sets forth below its Initial Findings of Fact and Conclusions of Law. A Final Order and Judgment will be entered once the supplemental briefing requested has been received.

I. TRIAL

Trial began on March 30, 2010, and continued intermittently until April 26, 2010. The testimony presented was largely technical and the quality of experts on both sides of the dispute was high. The Court took detailed notes throughout the trial but will not recount them here. In entering this Order, however, the Court studied the notes thoroughly and again reviewed portions of the trial testimony. Suffice it to say that Madlyn's injuries and consequential damages were caused, in whole or in part, by a combination of unfortunate events and circumstances that were due to a difficult patient to manage, a busy and arguably overworked medical delivery system, communication errors, negligence, and bad luck.

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Causation

The Court, after weighing the testimony and evidence presented, concludes that although close, it is more likely than not that Madlyn's lithium level on October 14, 2002, when her blood test was taken, was elevated and unsafe and that treatment during this critical period of time would have likely led to a lithium adjustment that would have likely prevented the cardiac arrest of November 10/11, 2002. In reaching this conclusion the Court is not overlooking testimony suggesting a reduction of symptoms between mid-October and November 10, 2002, but accepts the testimony from Plaintiff's experts and, in particular, Dr. Nosrati's testimony that such symptoms can wax and wane even when the lithium level is elevated and that the lithium level can be increasing even in the absence of overt symptoms. This conclusion is further buttressed by the rebuttable presumption against ANHC occasioned by ...


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