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KERNALL v. UNITED STATES

December 15, 1982

ALFRED J. KERNALL, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant


Sifton, District Judge.


The opinion of the court was delivered by: SIFTON

MEMORANDUM DECISION AND ORDER

SIFTON, District Judge.

 This is an action brought by plaintiff, Alfred J. Kernall, pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., seeking to recover damages for injuries alleged to have been caused by the negligence of medical personnel at the Veterans Administration Medical Center in Brooklyn, New York, in the period December 28, 1979, through January 4, 1980, when plaintiff was a patient at the facility.

 Jurisdiction exists under 28 U.S.C. § 1346(b) since plaintiff has complied with the prerequisites to suit set forth in 28 U.S.C. § 2671 et seq.

 The case was tried before the undersigned, sitting without a jury, in August and September, 1982. Based on the evidence introduced at the trial I conclude that plaintiff sustained injury as a result of negligence on the part of medical personnel at the VA hospital. In brief summary, plaintiff, who is a victim of an incurable and progressive neurological disorder known as syringomyelia, was negligently allowed to develop a severe infection, while in the care of the Medical Center. The infection necessitated a series of radical surgical procedures involving the amputation of one finger and the excision of tendons and muscles in the plaintiff's right arm. The defendant's negligence caused plaintiff severe emotional distress for a brief period in early January, 1980, until he was able to secure competent medical care, as well as distress and discomfort of a less extreme sort associated with the prolonged hospital stay and series of operations which were necessary in order to deal with the infection. In addition, plaintiff suffered an acceleration in the loss of use of the fingers of plaintiff's right hand by a number of years, as a result of defendant's misconduct. Because plaintiff's disease was of such a nature as to deprive him almost totally of sensations of pain he does not claim damages for injury in that form. Nor, because of the disabling effects of his neurological disorder, has he suffered any lost wages as a result of defendant's negligence. In sum, plaintiff appears entitled to damages in the amount of $28,209.65 on account of his emotional distress, discomfort, and the accelerated loss of use of the fingers of his right hand. What follows sets forth the findings of fact and conclusions of law on which these determinations are based as required by Rule 52(a) of the Federal Rules of Civil Procedure.

 Plaintiff is a 54 year old male who resides in this District with his wife. He has suffered since his late twenties from syringomyelia, a progressively disabling neurological disorder characterized by loss of sensation in the extremities, loss of balance and chronic back pain. In the early 1970's plaintiff retired because of his disability from the Post Office where he had worked as a driver, and he has been physically incapacitated from working since that time. The symptoms of syringomyelia include loss of sensation to such a degree that plaintiff was, at the time of his hospitalization in late 1979, almost incapable of feeling pain in his extremities and was insensitive to changes in his body temperature.

 Plaintiff was admitted, at around 2 P.M., on December 28, 1979, to the Veterans Administration Medical Center in Brooklyn complaining of low back pain and difficulty in urinating, both associated with his neurological condition. Upon admission he was perceived to have an open wound on the inside of his right hand which appeared to the admitting nurse to be oozing. His temperature was above normal and a blood analysis showed an abnormal white blood corpuscle count of 10,100 as well as other signs of infection.

 Despite these signs of infection, nothing appears to have been done for plaintiff on December 29, 1979, the day following his admission apart from administering Motrin and recording his temperature which remained above normal. No progress notes are recorded indicating any attention to the patient. Nor do there appear to be any doctor's orders recorded.

 On the next day, December 30, 1979, plaintiff's infection appears to have attracted the attention of a nurse who noted that the patient "has open deep wound in the 2nd and 3rd joint of finger on right hand. Wound is draining thick yellowish foul smelling drainages. Hand was soaked in Betadine and warm H[2]0 then flushed out with H[2]0[2], providone. Iodine was applied." No doctor's order appears directing this treatment. *fn1"

 A note for December 31, 1979, records that the same surface treatment for infection was administered on that date and that plaintiff was sent for an X-ray of his hand. This X-ray was not produced as part of the file produced by the hospital. The only radiologist's report in the file was apparently not transcribed until January 7, 1980. A single undated document entitled "On service note" records that an "X-ray of the hand showed no signs of osteomyelitis. However, there appears to be a metallic foreign body at the base of the 3rd digit. Case was discussed with the dermatologist who suggested soaking the hand in H[2]0[2], Betadine and [left blank in original]. No antibiotics needed." This document raises more questions than it answers. Not only was osteomyelitis discovered on surgical intervention, a few days later, but the location of the metallic object recorded in the note is different from the location from which it was eventually removed and at which it was eventually described as being located in the radiologist's report.

 Also on December 31, 1979, a request was made for a dermatological consultation, an account of "marked swelling and pain [sic] of his finger on the right hand. He also has purulent discharge from this area." The provisional diagnosis reads "(1) syringomyelia (2) Rule out osteomyelitis of fingers." A response to the request for consultation was asked for "today."

 No response was given to his request on December 31, 1979, or the next day. In fact on New Year's day plaintiff appears to have been virtually unattended; not even his temperature and respiration were recorded. Instead, an almost illegible reply from a dermatologist was prepared January 2, 1980, which stated among other things: "a deep ulcer in flex or crease of right middle finger exposing tendon, x-ray showed a metallic foreign body there (according to progress note). Please get orthopedic [emphasis in original] consultation, until then, H[2]0[2] cleansing and sterile dressing with Betadine soaks should be used. Get Bacterial cultures and give antibiotics accordingly."

 A document entitled "On [the handwritten word "off" is crossed out] service note" dated "1/2/80" records, among other things, "exposure of tendon on (R) 3rd finger. No infection [sic]. X-ray showed osteosclerosis on the 3rd phalange . . . ulcer on the (R) 3rd finger from trophic change or initiated by poor sensation caused trauma, osteomyelitis should be ruled out. Plan: (1) Consult orthopedics (2) local antiseptic (H[2]0[2]), Betadine and ointment) with dressing change. (3) No systemic antibiotics indicated at this moment of time."

 Another briefer note by the "attending" [doctor] also dated 1/2/80, notes simply "middle aged Black with history of syringomyelia. Admitted with low back pain infected [sic] digital ...


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