Court Awards $13.69 Million to Child With Spina Bifida After Navy Clinic Skipped Folic Acid Advice
After trial: The judgment was set aside on October 9, 2008, on the parties' joint motion after the government's Sixth Circuit appeal (No. 08-5699) was remanded for a compromise settlement; it was not reversed on the merits.
Won by Archuleta, Alsaffar & Higginbotham and National Trial Law.
After a bench trial in November 2007, a federal court found that a Navy clinic physician in Millington, Tennessee, breached the standard of care by not recommending prenatal vitamins to a patient planning a pregnancy, and held that the lapse caused her daughter's spina bifida. The court entered a $13,690,648.17 judgment on March 31, 2008. The government appealed, and the judgment was set aside on October 9, 2008, when the parties' compromise settlement and a trust for the child were approved.
What happened
In June 2000, a Navy lieutenant commander who was planning a pregnancy went to the Branch Medical Clinic at Naval Support Activity Mid-South in Millington, Tennessee, for a routine exam. She had already been told to take prenatal vitamins by another clinic physician. At the follow-up visit on June 22, her paperwork showed she was no longer taking them and that she intended to become pregnant. The clinic physician did not discuss folic acid or recommend the vitamins. He later called his failure to read that part of her paperwork an 'unfortunate oversight.'
The couple's daughter was born with spina bifida, a gap in the spine that forms in the first weeks of pregnancy. A portion of her spinal cord protruded through an opening in her back between the fourth and fifth lumbar vertebrae, and surgeons closed it in her first days of life. She went on to need a shunt for hydrocephalus and has a Type II Chiari malformation, weakness in her legs, a neurogenic bladder that requires catheterization four times a day, and bowel dysfunction. At trial she walked with crutches. A pediatric neurologist testified that she would almost certainly use a wheelchair as a young adult.
Her father sued the United States under the Federal Tort Claims Act in April 2003, individually and on her behalf. Jamal Alsaffar and Michael Archuleta tried the case for the family before Chief Judge Jon P. McCalla of the Western District of Tennessee, without a jury, over three days in November 2007. The government's lawyers were William Siler and Harriett Halmon. Both sides called physicians on whether folic acid supplements in the weeks after conception would have prevented the defect.
In an opinion dated March 31, 2008, the court found that the clinic physician breached the Memphis-area standard of care on June 22, 2000, by failing to discuss and recommend prenatal vitamins with a patient he knew was trying to conceive. The court did not need to decide a dispute over whether he had told her to stop taking them at the earlier visit. On causation, it noted that the experts agreed the mother had no other risk factor for the defect, and it credited the testimony that daily folic acid cuts the risk substantially. It found the missed prescription was the proximate cause of the spina bifida.
Chief Judge McCalla awarded $13,690,648.17. For the daughter, that was $1,115,685 for lost earning capacity, $2.45 million for physical impairment, disfigurement and pain, $3.65 million for mental impairment and lost enjoyment of life, and $6,468,752.17 for future medical and attendant care, adjusted to present value and reduced for TRICARE benefits and federal special-education obligations. Her father received $6,211 for his past expenses.
The government appealed to the Sixth Circuit. The appeal was remanded in September 2008 on the parties' joint motion, and a stipulation for compromise settlement was filed. On October 9, 2008, the district court granted the joint motion to set aside the judgment and approved the creation of a trust for the child. The settlement terms are not public in the court records.
Sources
This account is drawn from contemporaneous public reporting and the court record.
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