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Phillips v. United States

November 25, 2008


The opinion of the court was delivered by: Philip M. Frazier, United States Magistrate Judge


This case was called for a bench trial on August 4, 2008, following written consents to a bench trial before the undersigned. It is a Federal Tort Claim, 28 U.S.C. §§ 1346(b), 2671-80, for money damages. Following are findings of fact and conclusions of law.*fn1


This is a sad story. Today, Jean Phillips (plaintiff) is 36 years old; divorced with two children who have their own serious mental and emotional health problems; she has a right arm which is withered, disfigured, useless, and causes her continuous and extreme pain; she is unable to maintain regular employment; and she is most likely a narcotics addict. She faces the future with no reason to be optimistic that things will improve. She attributes a great deal of her suffering to substandard medical care which resulted in a truly horrific condition known informally as "flesh-eating bacteria."

Plaintiff has a college degree with an unspecified major from Augusta College in Augusta, Georgia. Following her graduation, she met her future husband, an Air Force captain, and moved with him to Maryland. They married on June 14, 1997. She worked for a window repair service doing accounting and a number of other functions. There was no mention of her salary. Plaintiff and her husband later transferred to Scott Air Force Base (SFAB). Once there she was treated for several health problems including: endometriosis, hypothyroidism, insomnia, headaches, anxiety, and diffuse cellulitis. The endometriosis and cellulitis caused her pain for which she was prescribed a medicine chest full of drugs, many of which were habit forming opioids containing hyrdomorphone. She received drugs such as Ativan, a benzodiazepine which is habit forming, to deal with anxiety. During the month of December 2001, she was prescribed over 450 dosages of the types above-described. More on the relevance of that later.

Plaintiff's primary care physician during 2002 was Dr. Daniel Macalpine, an Air Force officer at SAFB where plaintiff's husband was stationed. The records indicate that plaintiff began seeing Dr. Macalpine in December 2001, although the doctor recalls treating her from July of 2001 for abdominal pain and other chronic pain issues for which Vicodin and Percocet were prescribed. He also treated her for chronic insomnia for which Restoril, another addictive drug, was prescribed.

Plaintiff was taking lots of potent medicine....potent, addictive medicine.

Plaintiff's arm problems started in March of 2002. As mentioned above, one of her many health problems was hypothyroidism. She was referred to Dr. Tse, an endocrinologist at St. Elizabeth's Hospital in Belleville, for testing. Her initial appointment for that purpose was March 15, 2002. Dr. Tse noticed that she had an infection evidenced by elevated temperature and skin lesions. She was referred to SAFB's emergency room for treatment of the infection, and she returned on April 15, 2002, when Dr. Tse placed an intravenous tube, also called a "PIC line"into her right arm to facilitate the repeated blood draws without several sticks. The puncture which was made for this purpose was inside her right elbow.

The crucial meeting between plaintiff and Dr. Macalpine happened on April 29, 2002. According to SAFB records, plaintiff appeared with complaints of vomiting, dehydration, and "the same symptoms I always have." Her temperature was 99 degrees, slightly elevated. The records indicate that she was initially examined by Captain Robert Toner, a physician's assistant, although neither plaintiff nor Toner have any independent recollection of seeing each other that day. Toner's notes of the exam note all the above complaints along with plaintiff's request for a refill on her Ativan/Dilaudid prescription. She claimed that either she or her husband had lost the bottle containing 60 pills.

Macalpine and Toner met privately, and then Macalpine saw plaintiff. At trial, Macalpine's only recollection of plaintiff's exam that day was his growing concern for her drug seeking behavior.

Indeed, the only entries he made on her chart that day reflected the lost drugs and that her husband, who was out of town, would contact him to explain what happened with the drugs she wanted replaced. Dr. Macalpine testified that persons such as plaintiff who take large quantities of habit forming narcotics may up the dosage several times to gain the desired effect. When asked whether persons other than the patient, persons like her husband, had ever been known to sell the narcotics, his response was, "It crossed our minds."

Macalpine cannot say with certainty that she did not complain of arm pain, but he does not believe that she did. The chart makes no mention at all of redness, swelling, or pain complaints from plaintiff, other than a generalized "YES" answer to the question on her chart, "ARE YOU IN PAIN," followed by "7/10" which I take to indicate that her pain was rated at 7 on a severity scale of 1 to 10. Macalpine recalls no mention by plaintiff concerning her arm or any problems with it.

Toner, again, has no memory of her visit and relies solely on the chart.

Plaintiff testified that the redness, heat, pain, and swelling began in her arm around April 25, and that she did, in fact, make complaints to both Macalpine and Toner. Plaintiff's former husband testified that he noticed spreading redness and swelling in her right arm during the days prior to April 29. His recollection ...

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