United States District Court, D. Alaska
ORDER AND OPINION
W. SEDWICK SENIOR JUDGE
of Fact and Conclusions of Law
INTRODUCTION AND STATEMENT OF JURISDICTION
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).
to Federal Rule of Civil Procedure 52, the court sets out its
findings of fact and conclusions of law below.
FINDINGS OF FACT
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.
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.
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.
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
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,
events giving rise to this lawsuit occurred on October 19,
2013, at the Manilaq Medical Center in Kotzebue, Alaska
October 19, 2013, MMC was converting from paper patient
charts to electronic patient charts. Older records were still
in paper format.
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.
Standard practice at MMC was to call for the patient's
paper chart at the time of check in at the front desk.
Cynthia complained of nausea, vomiting, and epigastric pain.
She rated her pain as an 8 on a scale of 1 thru 10.
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.
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
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.
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
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
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.
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.
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.
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.
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.
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
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.
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
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
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.
progress note also reports that Cynthia said she had consumed
a small amount of wine before arriving at the ER.
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.
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.
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 ...