$22 Million Federal Judgment for Alaska Woman Whose Heart Infection Was Missed, Refusing the $400,000 Cap
After trial: Bench judgment under the Federal Tort Claims Act, entered October 27, 2017 and affirmed by the Ninth Circuit on August 28, 2018 (No. 17-36024).
Phyllis Rivers, pregnant, was treated at the Alaska Native Medical Center in Anchorage. Her doctors noted at least three indicators of infective endocarditis, rejected that diagnosis in favor of pregnancy-induced vasculitis, stopped her antibiotics after four days and sent her home. Untreated, the infection caused a stroke that left her paralyzed. After a bench trial under the Federal Tort Claims Act the court entered a $22,000,000 judgment against the United States and found the doctors reckless, which lifted Alaska's $400,000 malpractice cap. The Ninth Circuit affirmed in 2018.
What happened
Phyllis Rivers was pregnant when she was treated at the Alaska Native Medical Center in Anchorage, a federally funded hospital. Her doctors took her history and identified at least three of the minor Modified Duke Criteria, the indicators clinicians use to diagnose infective endocarditis, an infection of the heart's lining and valves.
They rejected that diagnosis. They concluded instead that she had pregnancy-induced vasculitis, stopped her antibiotics after four days, and discharged her.
Her infectious-disease expert, Dr. Hosea, testified at trial that there was no sound medical basis for that conclusion, and that untreated infective endocarditis inevitably causes catastrophic injury or death. It did. She suffered a stroke that left her paralyzed.
Because the hospital is federal, the case had to be brought against the United States under the Federal Tort Claims Act, which means no jury and no punitive damages. Phyllis Aguchak, as guardian of Rivers and of Rivers's two minor children, sued in the U.S. District Court for the District of Alaska, No. 3:15-cv-00105. The children are identified in the caption only by initials and are not named here.
After a bench trial the court entered judgment on October 27, 2017 for $22,000,000. It also found that the government's doctors had not merely been negligent but had acted recklessly.
That finding is the whole case in Alaska. AS 09.55.549 caps noneconomic damages in a medical malpractice action at $400,000, or $1,000,000 for severe permanent impairment, and subsections (e) and (f) lift the cap where the provider's conduct was reckless. The government appealed on exactly that point. On August 28, 2018 the Ninth Circuit, in No. 17-36024, held the recklessness finding was not clearly erroneous and that the district court did not err in refusing to cap the award at $400,000.
David Henderson of the Law Offices of David Henderson in Anchorage represented the family. Assistant U.S. Attorneys Richard L. Pomeroy and Edward Bryan Wilson III, with Rachel F. Homer and Mark B. Stern of the Department of Justice, defended.
It is the largest personal-injury judgment we have been able to verify in Alaska.
Sources
This account is drawn from contemporaneous public reporting and the court record.
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