Missed Appendicitis Diagnosis at Albuquerque Clinic Leads to $6.8 Million Federal Settlement

On December 30, 2015, a 14-year-old Albuquerque boy was taken to the South Valley clinic of First Choice Community Healthcare with four days of stomach pain, a fever, decreased appetite and shaking. The physician who saw him recorded abdominal tenderness that worsened when the boy was moved between sitting and lying flat, and a heart rate of 126, more than double the rate recorded at his two earlier clinic visits that year. He diagnosed stomach pain, ordered no blood work, urinalysis, ultrasound, x-ray or CT scan, and sent the boy home with instructions to his mother to watch him and take him to an emergency room only if the pain became intense. The clinic note puts the visit at about five minutes.

Two days later, on January 1, 2016, his mother took him to the University of New Mexico Hospital emergency department. A CT scan showed a likely perforated appendix with an abscess in the right lower abdomen. The infection moved from bacteremia to septic shock, which starved his brain of oxygen. He stayed in the hospital for eight months, until September 2, 2016, and came out permanently disabled. The complaint describes a global hypoxic brain injury with neurological and cognitive deficits, seizures and incomplete quadriplegia, plus acute kidney injury, in a boy who had started that school year as an eighth grader with no physical, learning or cognitive impairments.

Because First Choice Community Healthcare is a federally funded community health center, its providers are treated as federal employees for malpractice purposes, so a claim over their care has to be brought against the United States under the Federal Tort Claims Act rather than against the clinic. The family served administrative claims on the Department of Health and Human Services in December 2017, and when six months passed without a determination they filed suit in the U.S. District Court for the District of New Mexico on August 28, 2018, docketed as JLG-G v. United States, No. 1:18-cv-00820. The boy sued through Raynard Struck, the guardian ad litem a state district court had appointed for him in June 2017; his mother sued in her own right for loss of consortium. The complaint was signed by Will Ferguson & Associates, through Robert C. Gutierrez, and by Eaton & Eaton Law PC, through Kathryn L. Eaton, as attorneys of record for both plaintiffs. Gutierrez filed the complaint and the amended complaint on the plaintiffs' behalf.

The United States answered in October 2018 and the case went through roughly a year and a half of discovery. It settled at a court settlement conference on April 1, 2020, and the parties filed an amended complaint the following week. Because one plaintiff was a minor, the settlement required court approval: the magistrate judge set a fairness hearing for May 15, 2020, entered an order approving the settlement on May 21, 2020, and approved a revised settlement on August 13, 2020.

The settlement totaled $6.8 million. The government did not admit fault. Most of the money went into a fund that pays out for the boy's future medical expenses rather than being handed over as a lump sum, according to KFF Health News, which reviewed the settlement records; the docket shows the court approving a substitution of the trustee in November 2020.

Because the defendant was the United States, the settlement was paid from federal funds rather than a private insurance policy. The parties filed a stipulation of dismissal on November 23, 2020, and the court closed the case the next day. No appeal followed.