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Hardnick v. United States

June 25, 2009


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.


Plaintiff Laura Hardnick, as Special Administrator of the Estate of Britteny George, brought this action under the Federal Tort Claims Act ("FTCA") following the death of her 13-year old daughter, Britteny George. The complaint alleges that Britteny's death was caused by the negligence of a doctor practicing at the Lawndale Christian Health Center. The United States is the Defendant in this action because the doctor whose treatment is at issue, Dr. Ann Dominguez, worked at a health care facility operated by the United States, and thus, pursuant to the Federally Supported Health Centers Assistance Act, 42 U.S.C. § 233(g)-(n), Dr. Dominguez is deemed to be an employee of the United States Public Health Service for purposes of this lawsuit.

This case came before the Court for a three-day bench trial in December 2008. At trial, the Court heard the testimony of several witnesses, including Ms. Hardnick, Dr. Dominguez, and other Lawndale personnel. The Court also heard the testimony of four expert witnesses -- two per side -- on issues relating to the applicable standard of care and whether the alleged negligence proximately caused Britteny's death. The Court sets forth below its findings of fact and conclusions of law, as required under Federal Rule of Civil Procedure 52(a). The facts are drawn from the documentary record in the case and the evidence and testimony presented at trial.

I. Background

A. Events leading up to Britteny's October 26 visit to Mt. Sinai Hospital

Britteny George was born on September 19, 1990. The events leading to her death at the age of thirteen took place in late October and early November 2003.

On October 23, 2003, Britteny complained of a headache, took a pain reliever, and went to bed. Tr. 209. The next day, a Friday, Britteny felt well enough to go to school. Id. The following day, the headache returned, along with a runny nose. Tr. 210.

On Sunday, October 26, 2003, Britteny complained that she had a bad headache and that the light was hurting her eyes. Tr. 210-11. Britteny's mother, Laura Hardnick, drove Britteny to the emergency room at Mt. Sinai Hospital, where Britteny was examined by Naveed Hyderi, a physician's assistant. Tr. 160-62; PX 1. The notes taken during the examination at Mt. Sinai Hospital indicate that Britteny complained of a constant, throbbing, "frontal" headache of three days duration causing a pain level of 7 on a scale of 1-10. PX 1. The records from Mt. Sinai also reflect that the headache was worse when Britteny bent down, that she had a stuffy nose with yellow mucus, and that she had vomited once the prior night. Id. The physician's assistant diagnosed Britteny with a migraine headache and an upper respiratory infection, prescribed ibuprofen and Sudafed, advised Britteny and her mother to follow up with her primary care doctor in three days, and instructed them to return to the emergency room if Britteny developed a fever. Id.; see also Tr. 211-12.

B. Britteny's October 27 visit to Lawndale

After returning home from Mt. Sinai, Britteny took three doses of the pain medication without relief. Tr. 164-66, 170-71. The next morning, October 27, 2003, Ms. Hardnick took Britteny to the Lawndale Christian Health Center hoping to see Britteny's regular pediatrician, Dr. Jerome Umanos. Tr. 166, 168.

Because Dr. Umanos was not working that day, Britteny was examined by Dr. Ann Dominguez, a board certified family practice physician who was the obstetrical service line director at Lawndale. Tr. 168-72; PX 4. The "Walk-In Triage/History/Physical" chart of Britteny's October 27 visit to Lawndale -- completed in part by a registered nurse, Elizabeth Stipp, and in part by Dr. Dominguez -- noted that Britteny came to Lawndale as a follow-up to her visit to Mt. Sinai the night before and that Britteny was given ibuprofen and Sudafed without much relief. PX 4; see also Tr. 89-90. Britteny's chief complaints were rhinorrea, congestion, cough, headache, and sore throat for five days. PX 4; Tr. 50. It was noted on the chart that Britteny had a "sinus headache" and that she had " yellow PND" (PX 4), which Dr. Dominguez testified is a thick yellow mucus draining from the sinuses into the pharynx (Tr. 60-61). Dr. Dominguez observed during the examination that Britteny was tired and crying, but that she was otherwise alert and cooperative. PX 4; Tr. 53. Dr. Dominguez also noted that Britteny had full range of motion in her neck and that although her sinuses were boggy, there was no sinus tenderness. PX 4. During the examination, Ms. Hardnick told Dr. Dominguez that Britteny's headache had persisted for five days and that Britteny had not felt any relief from the pain even though she had taken several doses of pain reliever. Tr. 171-73. Although Dr. Dominguez understood that Britteny had an intense headache, Dr. Dominguez did not specifically ask Britteny to rate the severity of the headache pain on the 10-point pain scale provided on the chart. Tr. 106-07. Nor did Dr. Dominguez attempt to access any records from Britteny's visit the previous afternoon to Mt. Sinai Hospital (Tr. 63), despite the fact that Dr. Dominguez had privileges at Mt. Sinai and acknowledged that she likely would have received any such records as were available had she requested them (Tr. 66, 110).

After completing the examination, Dr. Dominguez diagnosed Britteny with an upper respiratory infection and prescribed an increased dosage of Motrin and a nasal spray called Flonase. PX 4. She further advised Britteny to drink a mix of fluids, including soup and juice, and to return if she felt worse or did not improve within ten to fourteen days. Id.

C. Events following the visit to Lawndale

No change in Britteny' s condition was detected for the rest of the day on October 27 or during the next day. Tr. 354. However, on October 29, Ms. Hardnick received a call at work informing her that Britteny' s eye was swelling. Id. at 355. When Ms. Hardnick returned home, Britteny was complaining of double vision. Id.

That afternoon, Ms. Hardnick took Britteny back to the emergency room at Mt. Sinai. Tr. 186. At that time, Britteny was suffering from facial swelling, protosis of the eye, and had difficulty walking. Id. at 185-88; PX 2, at 6, 10. Britteny was admitted to the hospital's pediatric intensive care unit and administered empiric antibiotics. DX B, at 30. A CT scan of her head revealed complete opacification of the ethnoid and sphenoid sinuses bilaterally, and an MRI was suspicious for meningitis and possible bilateral retro-orbital fluid on the right side. Id. at 9-10. A lumbar puncture showed a white cell count 1300 with predominantly polymorphonuclear leukocytes consistent with a diagnosis of bacterial meningitis. Id. at 18, 30.

On October 30, the surgeons at Mt. Sinai determined that Britteny needed a surgical drainage of her retrobulbar or retro-orbital spaces and arranged for Britteny to be transferred to University of Illinois at Chicago Hospital ("UIC"), where the surgery could be performed. PX 2, at 15-16, 23. At UIC Hospital, Britteny was diagnosed with acute sphenoid sinusitis, ethmoid sinusitis, meningitis, and bilateral orbital cellulitis and treated with intravenous antibiotics. PX 5, at 35-38; Tr. 193, 274. At approximately midnight on October 30, Britteny underwent surgery for bilateral ethmoidectomy and bilateral endoscopic sphenoid sinusotomy. Id. On November 1, Britteny underwent a second surgery at UIC Hospital for sinus debridement. PX 5, at 39-41; Tr. 193.

Despite the surgeries and the administration of large quantities of antibiotics, an EEG performed on Britteny on November 3 showed that she had no brain activity. PX 5, at 11-12, 244; Tr. 194. Accordingly, Britteny was removed from life support and pronounced dead on November 3, 2003. DX C, at 327-28. She was survived by her mother, Laura Hardnick, her father, Henry George, Jr., and her brother, Brandon George, who was nine years old at the time of his sister' s death. An autopsy performed on Britteny identified the cause of her death as acute and chronic sinusitis, retro orbital and parasellar abscess formation, meningitis and cerebritis consistent with ascending infections process, brain edema, and changes consistent with nonperfused brain. PX 5, at 200-03; DX C, at 320-23.

D. Expert Testimony

1. Plaintiff's Experts

a. Dr. Correa

At trial, Plaintiff presented the expert testimony of Dr. Armando Correa, an Assistant Professor of Pediatrics at Baylor College of Medicine who is board-certified in Pediatrics and Pediatric Infectious Diseases and has published widely in those fields. PX 19, at 1 & Ex. 1; Tr. 221-309. In his expert report, Dr. Correa opined that the constellation of symptoms that Britteny reported -- namely, severe "frontal" headache pain that worsened as she bent down, pain lasting for five days without relief from medication, nasal congestion, boggy nasal passages, yellow discharge, yellow post-nasal drip -- required further evaluation beyond the prescription of additional pain medication, but that no further evaluation was undertaken at the time of Britteny's examination at Lawndale. PX 19, at 1-3. In addition to his analysis of the records of Britteny's October 26 and 27 examinations, Dr. Correa' s opinions rest on his assertions that (i) intracranial complications of sinusitis are more common in teenagers than in younger children because of the more advanced anatomy and increased surface area of the frontal and sphenoid sinuses by age 13 (id. at 4-6; see also Tr. 281-82) and (ii) the increased pain that Britteny reported when she bent forward was associated with inflammation and increased pressure in the sinuses associated with sinusitis (id. at 4-5; see also Tr. 253-54).

Dr. Correa opined that the headache pain that Britteny reported on October 26 and 27 was not consistent with a diagnosis of a migraine or an upper respiratory infection, but rather was the result of sinusitis. PX 19, at 3. Among other things, Dr. Correa stated his view that the severity and persistence of the headache, despite the administration of ibuprofen, is not what a doctor would expect to see with an upper respiratory infection. Tr. 259. He believes that Britteny had sinusitis when she was examined at Lawndale on October 27, but that she did not develop bacterial meningitis until later. PX 19, at 4. Dr. Correa explained at trial that when he uses the term "sinusitis," he is talking about bacterial sinusitis, not viral sinusitis. Tr. 233.

Dr. Correa opined that Dr. Dominguez' s treatment of Britteny was not in conformity with the applicable standard of care in several respects:

 Dr. Dominguez did not evaluate the etiology of Britteny's very severe headache pain which persisted ...

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