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Tate v. United States

United States District Court, D. Alaska

June 12, 2017

WILLIAM TATE, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER AND OPINION

          JOHN W. SEDWICK SENIOR JUDGE

         Findings of Fact and Conclusions of Law

         I. INTRODUCTION AND STATEMENT OF JURISDICTION

         This Federal Tort Claims Act medical malpractice action was tried to the court from May 8, 2017, through May 16, 2017, in Anchorage, Alaska. It is undisputed that the medical care, which is the subject of this action, was rendered by agents of the United States acting within the scope of their authority, and that the United States is responsible for their actions. A timely administrative claim was filed, and subsequently denied. This court has subject matter jurisdiction pursuant to 28 U.S.C. § 2671, et seq. and 28 U.S.C. § 1346(b)(1).

         Pursuant to Federal Rule of Civil Procedure 52, the court sets out its findings of fact and conclusions of law below.

         II. FINDINGS OF FACT

         1. Plaintiffs in this lawsuit are William Tate, individually, and William Tate and Susie Sours, as Co-Guardians of Cynthia Tate, and M.T., G.T., M.T., T.T. and M.T., who were minor children at the time litigation commenced. At the time of trial, one of the minors named as M.T. was a 21-year-old married adult living in Virginia, named Martha Hacker. The minor identified as G.T. was deceased at the time of trial.

         2. William Tate (“William”) is the husband of Cynthia Tate (“Cynthia”), and the father of her children named as plaintiffs in this action. At the time of trial, William was living in Kotzebue, Alaska. He has long been, and at the time of trial continued to be, employed as a merchant mariner spending about six months of each year away from his home.

         3. Susie Sours (“Susie”) is Cynthia's niece. Susie was raised by Cynthia in Kotzebue, Alaska. At the time of trial, Susie was a young adult living in Anchorage, Alaska, where she was taking care of Cynthia's children and Susie's own three children.

         4. On October 19, 2013, Cynthia was a 45-year-old Alaska Native woman living in Kotzebue, Alaska, with her husband William, her children, and Susie. At the time of trial, Cynthia was housed and cared for at the Sandra Baker intensive care nursing home in Glendale, Arizona (“Sandra Baker Home”). When Cynthia was moved to Arizona, Susie was living there.

         5. Defendant in this action is the United States of America (“United States”). The individuals for whose actions the United States is responsible in this lawsuit are Mark Hrinko, R. N. (“Hrinko”), Paul Moughamian, R.N. (“Moughamian”), and Mary M. Gwayi-Chore, M.D. (“Gwayi-Chore”).

         6. The events giving rise to this lawsuit occurred on October 19, 2013, at the Manilaq Medical Center in Kotzebue, Alaska (“MMC”).

         7. On October 19, 2013, MMC was converting from paper patient charts to electronic patient charts. Older records were still in paper format.

         8. Cynthia walked into the MMC emergency room at 5:36 PM, or 1736 hours (all times stated in the findings below reference the 24 hour clock). She checked in at the front desk. Cynthia signed a form consenting to medical treatment.

         9. Standard practice at MMC was to call for the patient's paper chart at the time of check in at the front desk.

         10. Cynthia complained of nausea, vomiting, and epigastric pain. She rated her pain as an 8 on a scale of 1 thru 10.

         11. Cynthia was triaged by Hrinko starting at 1750. The precise time triage was completed is not clear from the record, but triage should not have taken more than ten minutes. Certainly triage had been completed prior to 1832 when Gwayi-Chore began her exam of Cynthia.

         12. During triage, Hrinko took Cynthia's vital signs, all of which fell within normal ranges. He also found her airway to be clear, and her respiratory system to be within normal limits. His exam of Cynthia's cardiac and circulatory system showed no signs of problems. The results of Hrinko's exam of her neurologic and musculoskeletal systems yielded results within normal limits. Cynthia was oriented and conversed with the nurse. Hrinko knew that Cynthia rated her pain level at 8. At 1800 Hrinko noted that Cynthia was grimacing and teary. He also noted that she described the pain as similar to heartburn. He knew that she had been vomiting. He did not ask her when she last vomited. He did not inquire as to the contents of her emesis. He did not ask Cynthia when she last could retain fluids or food. He noted that the onset of pain was on October 18. Hrinko's triage notes indicate that Cynthia had not been consuming alcohol. Hrinko testified at trial that Cyhthia told him she had consumed a box of wine at some point prior to coming to MMC on October 19. He admitted that he left this out of the chart notes. Hrinko did not review MMC's paper chart on Cynthia.

         13. MMC's paper chart shows that Cynthia's last prior visit to the MMC emergency room was on Saturday, May 19, 2012, when she presented at 2035 complaining of throwing up since Thursday. She was triaged at level 3. The triage note shows normal vital signs, including a pulse of 89. The chart shows that an EKG was performed and that Cynthia was placed on cardiac monitoring (telemetry). The EKG results included an episode of slower than normal heart rate and episodes of a prolonged QT interval indicating an electrical abnormality in Cynthia's heart. The cardiac monitoring showed ventricular arrhythmias, including two runs of non-sustained ventricular tachycardia (an abnormally high heart beat while at rest). Ventricular tachycardia may precede ventricular fibrillation (a condition in which the heart beat is irregular and weak and the heart is no longer able to pump blood), which in turn may precede asystole (cardiac arrest). The results of the 2012 EKG and telemetry were in Cynthia's paper chart.

         14. On October 19, 2013, Hrinko rated Cynthia at acuity level 4 on the 5 level acuity scale used at MMC, a scale commonly used at medical facilities in the United States. On that scale a patient rated at level 1 requires immediate life saving intervention. A patient rated at level 2 requires monitoring every 15 to 30 minutes. A patient rated at a level 4 requires monitoring at least every two hours. MMC's policy states that a level 2 acuity level should be assigned to a patient perceived as high risk, or seen to be confused, lethargic or disoriented, or in severe pain. Severe pain is pain at level 7 or higher as rated by “clinical observation and/or patient rating.” (Exhibit 9) Hrinko should have rated Cynthia at acuity level 2 based on all of the circumstances of her presentation and including the information in her paper chart.

         15. During triage, Hrinko took Cynthia's vital signs, all of which were within normal limits. Cynthia's vital signs were not measured thereafter. Hrinko did not connect Cynthia to any electronic monitoring. Hrinko finished his shift and left MMC prior to the time that Cynthia was found unresponsive.

         16. Cynthia was the only patient in the MMC emergency room while she was there. After triage, Cynthia was placed in Treatment Room B located immediately across the hall from the nurses' station. At MMC, the doors to the treatment rooms close automatically. Treatment Room B was equipped with a pulse oximeter, a blood pressure monitor, and a cardiac monitor, all of which were linked to displays at the nurses' station. If a monitor were being used on a patient, an alarm would sound if the monitor's reading moved outside the appropriate range.

         17. Moughamian was also on duty when Cynthia arrived at MMC. After Gwayi-Chore examined Cynthia, she ordered that Cynthia be placed on an intravenous fluid and that she be given Protonix, an anti-reflux drug, and Zofran, a nausea medication. Moughamian was the nurse who connected the intravenous line and administered the medications. He placed the IV line at about 1900. He gave her Protonix at 1908 and Zofran was at 1910. The IV profusion of lactate ringers (“LR”) began at 1922.

         18. Cynthia was not connected to pulse oximetry, blood monitoring or cardiac monitoring when Moughamian went into her room, and he did not connect her to any of the monitors. Cynthia did not object to connection of the IV or administration of the drugs. A blood sample could have been drawn easily and quickly when the IV line was being connected to the patient, but no blood was drawn.

         19. Moughamian last observed Cynthia about 1922 and noted that she was resting in bed, breathing easily with no labored breath and that she was fully oriented. Moughamian reported what he saw to the night shift nurses.

         20. Gwayi-Chore, who was born and received much of her education in Kenya, was licensed to practice medicine in Alaska in 2010. She is board certified in family practice medicine.

         21. Gwayi-Chore began her examination of Cynthia about 1832. Before doing so, she looked at the triage sheet and the electronic patient chart. She did not look at Cynthia's paper chart.

         22. Gwayi-Chore took Cynthia's history. She noted that Cynthia was complaining of epigastric pain with an onset around 0200 with nausea and vomiting since then. Cynthia denied having diarrhea or constipation. Cynthia denied having chest pain. Cynthia reported her last consumption of alcohol was three days earlier.

         23. Gwayi-Chore's examination found Cynthia to be alert and not in acute distress. The abdominal exam disclosed normal bowel sounds. The abdomen was not distended, and it was soft. Gwayi-Chore found epigastric tenderness, but without any guarding or rebound tenderness. Stethescopic respiratory exam showed clear breathing and no abnormal sounds. Stethescopic cardiac exam disclosed normal heart sounds with no murmers, gallops or rubs. Gwayi-Chore made no diagnosis of Cynthia's condition.

         24. Gwayi-Chore testified that she advised Cynthia that she wanted to do some testing to include an EKG, urine testing, and blood testing. Gwayi-Chore testified that Cynthia declined to have those tests done because she wanted to go home.

         25. Gwayi-Chore did not mention Cynthia's declination of testing in her chart note. Neither did she mention Cynthia's declination in her lengthy progress note dated October 19, and signed by Gwayi-Chore on October 21. The progress note does indicate that Cynthia wanted to go home to be with her three-year-old child.

         26. The progress note also reports that Cynthia said she had consumed a small amount of wine before arriving at the ER.

         27. Several witnesses used some variant of the word “Code” in their testimony. The word is used when a patient's condition suddenly deteriorates to the point that life saving intervention is needed immediately. The word may be either a noun-as in “a Code was called”-or a verb-as in “the patient Coded.” 28. Sheryl Snyder, RN, who had come on duty at 1900, entered Cynthia's room at 1950, found Cynthia unresponsive, and called the Code.

         29. Shortly after the Code was called, Dr. Chowdary, who had just come on duty, relieved Gwayi-Chore of responsibility for the Code and Cynthia's care.

         30. Had an EKG been ordered and performed, it would have provided a snapshot of Cynthia's heart function at the time the EKG was performed. The failure to perform an EKG is not a factor here, because Gwayi-Chore's stethoscopic cardiac exam provided a snapshot of Cynthia's heart function, and it disclosed nothing abnormal. There is insufficient evidence to support a conclusion that an EKG taken at the earliest reasonable time would have yielded a result different ...


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