410 F. Supp. 378 (1975) | Cited 0 times | D. Rhode Island | September 30, 1975

PETTINE, Chief Judge

This is a negligence action against the United States alleging tortious conduct in the administration of certain inoculations to the infant plaintiff Monique by army medical personnel at Custer Air Force Base, Battle Creek, Michigan.

At issue is the government's negligence and validity of its plea that the action is barred by the statutory period of limitation set forth in the Federal Tort Claims Act.

Jurisdiction is founded in 28 U.S.C. sec. 1346(b). There is no dispute that the provisions of 28 U.S.C. sec. 2675(a) have been fully satisfied.


On August 12, 1963, plaintiff, Annette R. Caron was in Michigan at Custer Air Force Base where her husband, Ernest Caron, then on active military duty, was stationed. On this day she took their healthy and normal four month old baby girl, Monique, to the base dispensary for immunization injections usually given to infants. At the dispensary, after signing a log and stating the purpose of her visit, she was referred to an airman. Without taking any history or making any inquiries, the airman administered to Monique "DPT" (a combination of three vaccines, Diphtheria, Pertussis, and Tetanus), typhoid injections, and oral polio vaccine. According to Mrs. Caron, whose uncontradicted testimony this Court accepts as entirely credible, the airman, after having given the injections, ". . . took a yellow pamphlet and on the first page wrote, 'DPT IV, Captain Merkle', . . . turned the page, wrote 'oral polio, Captain Merkle', . . . then on the last page . . . stamped 'Typhoid, 5 Mil., Captain Merkle.'" No Captain Merkle was present at the time. A copy of this record was given to Mrs. Caron, but she no longer knows where it is.

Approximately one hour later Monique's left arm started "jerking, twitching", and "she was burning with fever". Mrs. Caron immediately returned to the dispensary with Monique. In her presence, an army physician, Dr. Goulet, together with nurses undressed Monique and sponged her with towels. Mrs. Caron was then asked to leave the room. About an hour later a nurse told her they could not stop the convulsions and were going to send the baby to a civilian hospital. This, however, was not done. Another hour passed before Mrs. Caron was allowed to see her baby, who was no longer convulsing. Dr. Goulet, when asked the cause of Monique's convulsions by Mrs. Caron, stated he did not know and asked Mrs. Caron to find out if there was any history of convulsions in the family. Dr. Goulet placed Monique on phenobarbital and gave instructions to report to him the following week.

The dispensary record for this date reads in pertinent part:

"Patient convulsed in grand mal fashion for almost forty-five minutes . . .

Examination essentially negative, except for sluggish . . .

Presumed this is a febrile convulsion secondary to typhoid inoculation."

Despite the reference in the dispensary record suggesting the convulsion occurred in reaction to the typhoid inoculation, there is no evidence that this record was ever given, or its contents revealed, to Mrs. Caron. To the contrary, as appears in the ensuing narrative, this reference was equally ignored by army physicians who subsequently treated Monique and were at a loss to identify the cause of her convulsions.

Mrs. Caron returned to the dispensary on August 19 to see Dr. Merkle and report that an aunt and two cousins had suffered convulsions from fever.

Because Monique was irritable, not eating and constantly crying, Mrs. Caron again returned to the dispensary on August 21 and 29. On the latter date she was told by Dr. Goulet that her baby had been convulsing due to a high fever, but was going to be all right.

The dispensary record for August 29 reads:

"Mother quite hostile and blames change in child's eating behavior on recent convulsion episode . . ..

Mother reassured and advised. Belligerent mother 'wants record.'"

Mrs. Caron told Dr. Goulet she wanted the records because she intended to see a private pediatrician. She abandoned the idea when reassured by Dr. Goulet that there was no need for a private consultation.

A recitation of these sombre events as well as those which followed, is indispensable to a resolution of the legal issues presented herein, and the remainder shall be set forth seriatim :

November 7, 1963. Monique convulsed at home and was seen by Dr. Goulet at the dispensary. After an examination, he prescribed aspirin, stating that there was no sign of an infection and that everything was all right.

November 9, 1963. Monique suffered her third convulsion; the baby had a slight temperature. Dr. Goulet prescribed aspirin and phenobarbital, stating that Monique would be on phenobarbital for a year or two. Dr. Goulet told Mrs. Caron that he did not know what caused the convulsions.

December 5, 1963. Having convulsed two days before, Monique was again seen by Dr. Goulet. He advised Mrs. Caron, who was coming to Rhode Island, to consult a local doctor.

December 21, 1963. In Rhode Island, Mrs. Caron saw Dr. Julius Stoll, a neurosurgeon. Dr. Stoll advised mother he could not state the cause of Monique's convulsions.

At the trial, Dr. Stoll testified that on this visit the neurological examination was completely within normal limits. He did not really have an opinion as to the cause of the convulsions, but felt "that it was a seizure or convulsion problem that should be treated at that time as it was with anti-convulsant medication, then at a later date . . . further tests should be performed to clarify the cause . . ."

Some time thereafter Mrs. Caron returned to Custer Air Force Base.

February 1, 1964. Sometime between 9:00 and 10:00 a.m., Mrs. Caron found Monique unconscious in a pool of saliva; Monique was examined at the dispensary by Dr. Merkle. Monique apparently stopped convulsing; mother advised to take her baby home and watch her. Mrs. Caron asked if the child could be hospitalized, but Dr. Merkle responded, "Just take her home and watch her."

February 2, 1964. At 4:00 a.m. Monique was found convulsing in her crib. Dr. Merkle had the parents bring the child to Leila Post Hospital, a private non-government hospital about five miles from the dispensary. The Army arranged for the baby to be seen by a Dr. Levy. Apparently the convulsions stopped in transit to the hospital; however, at the hospital they started again and Monique was placed under oxygen. A neurosurgeon, Dr. Griffith, who was then in surgery, was called, but did not appear until four hours later. During this time Monique was convulsing, i.e., "she was hot, she was jerking her whole body."

Dr. Griffith "put her on a mattress, a special mattress to control her temperature" and injected her with different medications. Monique stopped convulsing. Dr. Griffith told Mrs. Caron that Monique would never be the same again; when asked, he stated he did not know what caused the convulsions.

Monique remained at the hospital for a week under Dr. Griffith's care. On discharge Dr. Griffith stated he wanted to see the child again. Mrs. Caron asked Dr. Merkle for authorization to make such a visit so that the Army would pay for it. Dr. Merkle stated the Army would not assume this expense as they did not "find it necessary".

April -- August 1964. Mrs. Caron and Monique were in Rhode Island.

June 1964. Mrs. Caron consulted a Dr. Lancaster who referred her to the Boston Children's Hospital.

June 1964. The baby was seen by doctors at Boston Children's Hospital. They stated that Monique had low resistance to fever and this caused the convulsions. Mrs. Caron was further advised that she was "lucky to have Monique, she was a happy, healthy, chubby baby and to look around, look at other children, and I had nothing to worry about, and they told me Monique was apparently teething, and this was causing fever".

April 1965. With Mr. Caron discharged from military service, the family returned to Rhode Island.

May 1965. Dr. F. Edward Yazbak, a local practitioner, was consulted and referred the case to a neurologist, Dr. Taft, who hospitalized Monique for tests. At the conclusion of the hospitalization, Dr. Taft stated he did not know what was causing the convulsions.

March 1966. The Carons consulted Dr. Eric Denhoff, a licensed practitioner in Rhode Island and a specialist in pediatric neurology and neuro developmental pediatrics. He stated the child's condition was "bad" and hospitalized her to see how she might be treated "more effectively". A number of tests and studies were conducted to "try to control the convulsions". From March 1966 to 1970 Monique remained under his care. Her condition became progressively worse; during this period there were eleven hospitalizations to try to control the convulsions. Because of persistent brain wave patterns in the temporal lobe, a temporal lobotomy was performed. "[The] results were nebulous." At this time Dr. Denhoff had no opinion as to the cause of the convulsions; he was more "concerned with trying to control the convulsions than formulating an opinion as to possible cause . . . except to rule out a brain tumor or progressive neurological disease . . ."

1970. The Carons, not being able to cope with Monique, went to New York and placed her in a special school. The same problems continued to exist. On recommendation of Dr. Denhoff, a Dr. Preston Robb in Montreal, Canada was consulted. Dr. Denhoff stated that he considers Dr. Robb to be "one of the outstanding pediatric neurologists in the world". After hospitalization and testing, Dr. Robb advised the parents he could not help Monique with her convulsions; he also stated he did not know what caused them.

1972. Monique was placed in the Ladd School for handicapped children in Rhode Island, and Mrs. Caron again consulted Dr. Yazbak. At this point all the medical records were requested from the Leila Post Hospital by Dr. Yazbak.

October 1972. After reviewing the medical records, Dr. Yazbak stated that it was his opinion Monique's condition was due to the injections she received on August 12, 1963, at Custer Air Force Base.

This was the first time that Mrs. Caron and her husband were told that the cause of Monique's condition was the injections administered in 1963.

December 1972. The Carons consulted their attorney.

It should be added here that in her consultations with the various doctors, Mrs. Caron told each of them about the injections Monique had received.

Dr. Yazbak testified that in 1963 it was universally known that there was a definite risk in using pertussis vaccine in children who have family history of convulsive disorders and that "DPT", which has pertussis vaccine as part of the combination, should not be administered without first taking a detailed history and doing a complete physical. He further stated that a typhoid inoculation should be given only if the family is going to or is living in an area endemic to typhoid; and that the term "5 Mil." represents.5 milliliters, a dosage recommended for an adult, which should not be given to a child. He concluded that in his opinion the combination of "DPT" and "typhoid", as administered to Monique, was the "precipitating cause" of her convulsions, with complicating sequelae in "the line of brain damage . . ., mental retardation or hyperactive behavior to follow." Dr. Yazbak further testified that "under no circumstances would he give a typhoid injection to a baby", and that though he had administered such injections to children in Egypt, he had never given "half a cc [as injected in this case] to a four month old baby . . . [that a] 250-pound male will get half a cc."

Dr. George Peter, a certified pediatrician specializing in infectious diseases and with training in immunology, holds the position of assistant professor in pediatrics in the Brown University medical program. He testified that a.5 milliliter injection of typhoid vaccine should not be given to a child of four months and that, in his opinion, the combination of "DPT" and typhoid injections as given to Monique were "very likely . . . implicated in the subsequent convulsions". His opinion was based on the degree of diligence and skill universally possessed by the medical profession in 1963. On cross-examination he further stated:

"With respect to the DPT which the child received in the normal dosage, I would say there was no obvious negligence, however, in the case of typhoid I think this was gross negligence to have administered five times the dose that you would give if you would have to give that vaccine to a child at that age."

I note here that the doctors agreed that "5 mil." as Mrs. Caron saw recorded by the airman on August 12, 1963 is subject to no other interpretation than ".5 milliliters."

Dr. Stoll, whose vita of honorary positions, writings, specializations, and teaching as professor at Brown University need not be detailed, after reviewing all the medical records together with his own examination and treatment of Monique, concluded that the seizures experienced by Monique on August 12, 1963, constituted an "adequate" cause to damage the brain sufficiently to cause future seizures; that there was a direct causal relation between the injections received by Monique on August 12, 1963 and the convulsions she suffered; that there is reasonable certainty such convulsions, by interfering with the oxygen supply to the brain, caused fixed brain damage. He further stated that in his opinion "the background history of febrile seizures lasting . . . at least an hour have all contributed to having an accumulated effect on Monique Caron as we see her today, a mentally defective, not mentally retarded child who still has uncontrolled seizures, who has disturbed behavior and has a very guarded outlook for the rest of her life."

Dr. Denhoff was of the same opinion as the other doctors. Nevertheless, I feel it is appropriate to record the following significant testimony he gave: "the standard procedure was [in 1963] as always had [been:] . . . [to do] a history of whether or not there is any evidence of convulsions in the family . . . [A.5 milliliter dosage of typhoid vaccine is] almost sub-lethal for a child of four months . . . The standard [of care as to typhoid injections] as of 1963 was no different than it is today or different than when I went into practice in 1948."

Dr. Goulet was the only witness for the government. His testimony in no respect undermined the plaintiffs' case. The court concludes, as will be discussed further, infra, that the plaintiffs have more than sustained their burden of proof to establish the government's negligence.

To this tragic tale of suffering, that presents the spectre of Monique's destroyed mind, the government interposes the defense of the statute of limitations. I do not quarrel with the rationale underlying a statute which prescribes the time limit within which a defendant must be sued. There is, of course, merit to the argument that "[essential] justice requires prevention of the imposition of liability upon physicians who, because of the passage of time, have become disempowered to present meritorious defenses . . ." Ashley v. United States, 413 F.2d 490, 493 (9th Cir. 1969). However, where there are no facts to indicate that, because of the passage of time, the government has been disempowered to present a genuine defense to its own negligent conduct, the government's role as the representative of all the people would seem to require it to take a broad approach in seeking to apply, where there is an arguable choice, that interpretation of the law and facts which best serves justice. 1"


Under the Federal Tort Claims Act, "[the] United States shall be liable . . in the same manner and to the same extent as a private individual under like circumstances", 28 U.S.C. sec. 2674, on claims against the government for personal injury "caused by the negligent or wrongful act . . . [of its employees] while acting within the scope [of their employment] . . ., under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. sec. 1346(b). Any such action must be asserted "against the United States . . . within two years after such claim accrues". 28 U.S.C. sec. 2401(b). Exclusive jurisdiction to hear these actions is conferred upon the federal district courts. 28 U.S.C. sec. 1346(b).

Over the years problems have arisen over the interpretation of the Federal Tort Claims Act. There is a divergence of opinion as to whether state or federal law applies to determine when the plaintiff's claim accrued. Since 1962 the federal courts addressing the issue have espoused a bifurcation of concepts, establishing that federal law shall determine the accrual point while the lex loci shall control the substantive rights of the parties. 2" These federal cases uniformly hold that, under the federal rule, a malpractice action against the government, accrues when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice, and thus refuse to apply the more rigid, and often unfair, rules of some states as discussed in note 4, infra. Application of a federal rule, it is argued, provides greater uniformity in the administration of the Federal Tort Claims Act and "[eliminates] discrimination among claimants caused by differences in the law of the states". 3" However, I need not engage in an extended legal analysis of the merits of this position because the First Circuit Court of Appeals has ruled unequivocally that state law under the lex loci rule, determines when a claim accrues under Section 2401(b). 4"

In Tessier v. United States, 269 F.2d 305 (1st Cir. 1959), the court did not bifurcate concepts, but stated that:

"[Under] the Tort Claims Act, . .. Congress merely waived the sovereign immunity of the government, as a defense to litigation enforcing state-created substantive rights. The statute provides simply that '[the] United States shall be liable * * * in the same manner and to the same extent as a private individual under like circumstances '. 28 USC § 2674. Thus a 'claim accrues' when a private person similarly situated would become suable under the law of the state." Id. at 309 (citations omitted).

In this case it is clear the tort occurred in Michigan on August 12, 1963 and thus, under Tessier, the law of Michigan determines when plaintiffs' claim accrued.

The Law of Michigan

In January 1963 the limitation statute in Michigan applicable to malpractice cases did not embody the "discovery rule". The pertinent sections read:

"Sec. 5805. No person may bring or maintain any action to recover damages for injuries to persons . . . unless, after the claim first accrued . . . he commences the action within the periods of time prescribed by this section.

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"(3) The period of limitations is 2 years for actions charging malpractice.:

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"Sec. 5838. A claim based on the malpractice of a person who is, or holds himself out to be, a member of a state licensed profession accrues at the time that person discontinues treating or otherwise serving the plaintiff in a professional or pseudo-professional capacity as to the matters out of which the claim for malpractice arose."

However, these sections were interpreted by the Michigan Supreme Court in Dyke v. Richard, 390 Mich. 739, 213 N.W.2d 185 (1973), wherein the court, after analyzing the legislative comment accompanying the statute and prior Michigan decisional law, stated that the legislature did not intend to preclude the question of discovery. Accordingly it interpreted the statute to require that, as an alternative to the language of section 5838, actions for malpractice must be brought "within two years of the time when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the asserted malpractice, whichever is later." Id. at 747. 5" A review of the facts underlying Dyke, supra (negligent act performed in 1965) and Cates v. Bald Estate, 54 Mich. App. 717, 221 N.W.2d 474 (1974) (negligent act performed in 1949) makes it clear the rule enunciated in Dyke applies at least as to all malpractice actions commenced after the Dyke opinion was rendered notwithstanding the time when the negligent act occurred. Thus, the discovery rule applies to the case at bar.

Application of the Discovery Rule

The government claims that the Carons knew well before January 1972 that the inoculations precipitated and caused Monique's convulsions. It cites in support thereof the proximity of the convulsions to the inoculations and the Carons' inquiry of each of the doctors as to whether or not the injections were the proximate cause of her ills; it quotes from Portis v. United States, supra at 672, that, "one who knows that an injurious tort has been committed against him may not delay the filing of his suit until the time, however long, when he learns the precise extent of the damage resulting from the tort", and from Brown v. United States, 353 F.2d 578, 580 (9th Cir. 1965), that:

"[The] trial court's determination that, under the facts, the parents were obliged to investigate as to possible negligence must be upheld . . . 'To expect a doctor, voluntarily, absent an inquiry and absent special situations not existent here, to affirmatively advise a patient that he has been negligently treated is unrealistic and no cases have ever so held.'"

The government also urges, and I do not disagree, that:

"[A] claim cannot be sustained against the United States unless a private physician under the circumstances of this case would be liable under the Michigan law. United States v. Muniz, 374 U.S. 150, 10 L. Ed. 2d 805, 83 S. Ct. 1850; Richards v. United States, 369 U.S. 1, 7 L. Ed. 2d 492, 82 S. Ct. 585; Gowdy v. United States, 412 F.2d 525 (C.A. Mich. 1969).

* * *

". . . [For] a plaintiff to sustain the burden of proof that a physician has been 'guilty' of malpractice, he must prove that the physician did not use the degree of diligence and skill ordinarily exercised by the average physician in the same locality and that an injury resulted from the treatment or non-treatment rendered by the physician [citations omitted]." Defendant's brief at 16.

Finally, the government contends, and the court accepts, that due consideration must be given to the state of the profession at the time that the alleged malpractice took place and that expert medical testimony is a prerequisite to plaintiffs' recovery.

Applying the discovery rule, the court concludes that the government's sole defense of substance, the limitations period, is without merit.

To begin with, until 1972 the Carons never knew what caused Monique's condition. The record is overwhelming in its facts detailing the constant inquiries they made of all the doctors including the doctors at the Boston Children's Hospital and Dr. Robb, a world renowned specialist. Though the Carons called to the attention of each of these doctors the inoculations given to Monique and the convulsions which followed shortly thereafter, not one of them even suggested as a possibility, let alone probability, a causal connection between the injections and Monique's convulsions. To the contrary, the Army repeatedly told Mrs. Caron her baby would be all right; the doctors at Children's Hospital advised her to consider herself lucky to have a healthy normal baby. All of the doctors simply said they did not know what was causing the convulsions. It was not until 1972 that the Carons were told by Dr. Yazbak that the administration of a combination of DPT and typhoid vaccine was the cause of Monique's affliction. This opinion was subsequently confirmed by Doctors Stoll, Peter and Denhoff, each of whom is an outstanding expert in the field.

I find unpersuasive the defendant's argument that a reasonable person would have concluded there was a causal link between the inoculations and the onset of the convulsions. The government loses sight of the fact that the Carons were plagued by this thought and presented it to every doctor they consulted only to have it bypassed by each physician's medical opinion that he did not know the cause. The defendant can hardly contend that it would be reasonable to have expected the Carons to discredit the expert statements of all these learned men of medicine. Furthermore, the Carons cannot be charged with delay in filing this action when it must be noted, as the defendant itself contends, that they could not proceed without expert testimony. Such testimony was simply not available until Dr. Yazbak gave them his opinion in 1972. Under a reasonable man standard, how can we require more of lay people such as the Carons than the medical profession was willing to assume?

The defendant's remaining arguments as to the degree of skill to be possessed by the physician and the state of the profession at the time of the negligent act have no merit. An inquiry into the state of the medical profession in 1963 is simply not warranted under the facts of this case. With all respect, this position is frivolous. Certain facts of this case are ineluctable and no argument can gloss them with even a semblance of doubt. It stands uncontradicted on this record that the Carons were relentless in investigating what actually caused Monique's illness; a physician in Michigan in 1963, 1948 or today would be liable because it was textbook medicine throughout the country, if not internationally, that it was gross negligence to give an infant a.5 milliliter injection of typhoid; such a dosage was "sub-lethal" to a baby; it was basic to the practice of medicine anywhere that a history and complete physical must be performed before such injections are given to a child and then only in proper amounts and only if the area is endemic to typhoid. The negligence is clear as well as the causal connection as testified to by all the doctors. The record stands uncontradicted as to these matters.

I find the government liable.


The question of damages has not been adequately briefed by the plaintiffs nor addressed at all by the defendant. Accordingly, the plaintiffs will in two weeks submit a supplemental memorandum fully briefing all pertinent authorities supporting their position as to the method to be used by this court in determining and computing damages for each of them. The defendant will file an answering memorandum one week thereafter. Further, should additional testimony be required on this issue, this court will reopen the case for this purpose either sua sponte or at the request of either party.

At the mutual election of the parties this court will either stay entry of judgment on the question of liability until such time as it determines the issue of damages or in the alternative enter judgment for the plaintiffs as to liability and reserve the issue of damages pending completion of appellate review.

Raymond J. Pettine / Chief Judge

September 30, 1975

SUPPLEMENTAL OPINION of February 9, 1976

(On the issue of damages)

PETTINE, Chief Judge. On September 30, 1975, I found the government liable in this negligence action which alleges medical malpractice by Army medical personnel at Custer Air Force Base, Battle Creek, Michigan. The question of damages was reserved pending further briefs and additional testimony, all of which was accomplished on December 19, 1975.

Applying the applicable Michigan law, I find that the plaintiff, Monique Caron, is entitled to recover for loss of earning capacity, past and future pain and suffering, past and future medical expenses, and such other damages as resulted directly from the defendant's wrongful act. Remote, contingent, or speculative damages cannot, of course, be considered. Woodyard v. Barnett, 335 Mich. 352, 56 N.W.2d 214 (1953); Brown v. Oestman, 362 Mich. 614, 107 N.W.2d 837 (1961); Canning v. Hannaford, 373 Mich. 41, 127 N.W.2d 851 (1964).

The plaintiffs, Ernest A. and Annette R. Caron, seek an award for those expenses they will incur for the care of Monique at a specialized home to age 18, as well as expenses for medication, neurological treatments, and medical and dental care for the same period of time.

In the case of Monique Caron, an award is sought for care expenses at the specialized nursing home from 18 to 21 years of age, and thereafter to age 50 at a pediatric nursing home; and additionally, those expenses which will be incurred from age 21 to 50 years for medication, neurological care, laboratory, general medical and dental care, loss of earnings from age 18 to 65, and pain and suffering from the date of malpractice to age 50. There is no dispute that Monique Caron would have had a life expectancy to age 65, except for the impairment which reduces it to 50 years.

The government concedes that, if it is liable, then, as to a number of the claims, the damages as alleged by the plaintiffs are correct. In the interest of brevity and clarity, the amounts claimed and the position of the government is set forth in the following chart: Claim of Ernest A. and Annette R. Caron as the parents of Monique Caron, to age 18 years (Plaintiffs' memorandum pp. 15-16) 1. Specialized home care (Crystal Spring School) $10,200 per year -- commencing April 1976 (13th birthday of Monique Caron) -- 5 years /-- $51,000 2. Medication for control of seizures -- $360 per year -- 5 years /-- $ 1,800 3. Neurological care -- $200 per year -- 5 years /-- $ 1,000 4. Medical and dental expenses -- $400 per year -- 5 years /-- $ 2,000 5. Psychiatric treatment and counseling at $620 per year for 4 years /-- $ 2,480 6. Laboratory and EEG for 5 years at $200 per year $ 1,000 TOTAL $59,280

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