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Jennifer Afcan, Individually and On Behalf of Her Minor Child, J.A v. United States of America

March 2, 2011

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

I. INTRODUCTION AND RULING ON RESERVED MOTIONS

This Federal Tort Claims Act medical malpractice action was tried to the court from February 22, 2011, through February 28, 2011. In its Answer to the Complaint, the United States admitted that the St. Mary's Subregional Clinic and the Yukon Kuskokwim Health Corporation ("YKHC") should be treated as being within the United States Public Health Service and that their employees were acting within the scope of their employment at all times relevant to this litigation. Pursuant to Federal Rule of Civil Procedure 52, the court sets out its findings of fact and conclusions of law below.

For reasons which will become apparent upon reading the findings and conclusions, the oral motions made at trial by defendant to dismiss plaintiff's claim for subsistence loss damages and for wage loss damages are DENIED as moot.

II. FINDINGS OF FACT

The parties stipulated to and the court relies on the following facts which are quoted from docket 89. The court has divided the quoted material into numerous short paragraphs and numbered each paragraph but has made no other changes.

1. On Thursday, January 4, 2007, Jennifer Afcan took her 14-month-old son, J.A., to the St. Mary's Subregional Clinic because he had an approximate one-week history of a painful abscess on his buttock, and she also complained that he had a fever.

2. Ken Johnson, the physician assistant assigned to the clinic, examined J.A. at 2:43 p.m. The vitals were recorded as a temperature of 100.8, a pulse of 147, and a respiratory rate of 28.

3. Mr. Johnson noted that J.A. was "cranky" and had a 6 by 6 cm. area of redness on his right buttock, with a 1-2 cm. area of central induration and a pain assessment of 6 out of 10. No exudate was noted at the time.

4. J.A. was sent home on antibiotics (cotrimoxazole) (known as Septra) with an instruction to apply warm compresses "to promote drainage."

5. Mr. Johnson noted that he hoped antibiotics and warm compresses would be curative, but he told Ms. Afcan that the abscess would "most likely require I & D (incision and drainage). He instructed Ms. Afcan to "f/u [follow-up] with the next provider."

6. Ms. Afcan returned J.A. to the clinic later the same day at 9:02 p.m., and J.A. was again seen by Ken Johnson. At this visit the pain assessment was 10 out of 10, the vitals were recorded as a temperature of 105.6, a pulse of 206, and a respiratory rate of 64.

7. Under "chief complaint" it was noted "Rx Motrin and sponge bath, was seen earlier today for boil Rx Septra, mouth red, unconsolable (sic) sometimes."

8. In the repeat assessment, J.A. was noted to be "miserable-crying," the right ear was "red, bulged cloudy and not mobile and the left ear pink grey retracted clear/cloudy [questionable] mobility" and "bottom with abscess." The temperature was noted to decrease to 102.9 by 9:45 p.m. and to 101.0 by 10:30 p.m.

9. J.A. was sent home with Motrin and Tylenol, and instructions to continue the Septra. The clinic's medical record notes that Ms. Afcan should "f/u tomorrow." She was not given a copy of the record.

10. From Friday through Sunday, J.A. slept more and cried only when awake. He ate very little and took fluids only through a syringe. During this time period, the abscess grew in size and no longer had a shape or center.

11. On Monday, 01/08/07, Ms. Afcan returned with J.A. to the clinic. His vitals were a temperature of 99.8, a pulse of 170, and a respiratory rate of 28. John Moore, the new physician assistant, examined J.A. and contacted Dr. Mosely, a Yukon Kuskokwim Health Corporation (YKHC) physician, at 3:15 p.m.

12. Ms. Afcan and J.A. were transported to Bethel on a commercial flight which was held for them.

13. Once at the YKHC hospital, J.A. was triaged, and at 5:45 p.m. his vital signs were recorded as a temperature of 99.2, a pulse of 146, a respiratory rate of 56, and blood pressure at 119/64. He was given IV fluids and IV antibiotic, Vancomycin, Tylenol, and Morphine.

14. An aeromed was ordered. The aeromed arrived at the emergency room at 12:10 a.m. in the morning. The aeromed arrived in Anchorage at 4:20 a.m. and at the Alaska Native Medical Center (ANMC) at 5:03 a.m.

15. Upon arrival at ANMC on January 9, 2007, J.A. was somewhat alert, but within an hour he became less responsive. His blood pressure had fallen to 70/40 and his pulse was 190. J.A. was found to be in septic shock.

16. J.A. was intubated due to respiratory failure and placed on a ventilator. Intravenous fluids and medications were administered to treat poor perfusion (flow of blood through the vessels of the body).

17. Surgery was performed at the bedside to incise and drain the abscess on his right buttock.

18. J.A. was admitted to the Pediatric Critical Care Unit at ANMC with the following diagnoses:

* Cellulitis/abscess - right buttock/thigh * Septic shock * Cardiovascular failure insufficiency that developed ...


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