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June 12, 1990


The opinion of the court was delivered by: McCURN, Chief Judge.


Plaintiffs bring this action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), ("F.T.C.A.") alleging that the United States ("the defendant" or "the government") failed to obtain plaintiff Brigiatta Avakian's ("Mrs. Avakian's") informed consent prior to the performance of a myelogram at the Plattsburgh Air Force Base Hospital in Plattsburgh, New York. Plaintiffs further allege that the defendant was negligent in the care and treatment it afforded Mrs. Avakian while an inpatient at the hospital. Mrs. Avakian's husband, Robert Avakian ("Mr. Avakian"), has also sued the defendant in a claim based upon loss of consortium. For the reasons stated below, this court finds for the defendant on all those counts of plaintiffs' complaint asserted against the government.*fn1

Findings of Fact

Brigiatta Avakian was born in Trier, West Germany, on May 31, 1951. As a child, the plaintiff suffered from a variety of childhood diseases, including measles, chicken pox, mumps and rubella fever. From time to time, the plaintiff also suffered back pain, which she helped alleviate by applying heat to the affected area. At the age of sixteen, she became an apprentice in an organization which designed and manufactured ladies clothing, and after approximately three year's training, received a diploma roughly equivalent to a two-year business associate's degree in this country.

In December of 1969, while still working at the garment store, Brigiatta met plaintiff Robert Avakian, a member of the United States Air Force. On August 4, 1972 Brigiatta and Robert were married in Wiesbaden, West Germany. Mrs. Avakian began working at a nearby bank after their marriage, and continued to work there until she had her first and only child, Nichole, on February 25, 1976. Soon after the birth of their daughter, Robert was transferred back to the United States and the plaintiffs moved to Columbus, Mississippi, where Mrs. Avakian worked as a part-time sales clerk.

In 1982, Mr. Avakian was transferred to the United States Air Force Base in Plattsburgh, New York. The plaintiffs and their daughter took up residence in base housing and Mrs. Avakian became employed as a part-time school lunch monitor while her daughter attended a nearby elementary school.

Towards the end of February of 1984, Mrs. Avakian, while bowling, felt a pain in her back and had difficulty standing up. She went home and applied heat to the affected area. Soon after this episode she once again experienced sharp pains in her back while shoveling snow. These pains were severe enough to convince Mrs. Avakian that professional help was required, and she accordingly went to the Plattsburgh Air Force Base Hospital ("PAFBH" or "base hospital").

Upon arriving at the PAFBH, Mrs. Avakian came in contact with Frederick C. Hunt ("Hunt"), a physician's assistant ("P.A.") at the base hospital.*fn2 A clinical examination of the plaintiff performed by Hunt demonstrated that she was suffering from neurological deficits, muscle weakness and a tingling sensation in her legs. After consulting with Dr. Donald Anderson ("Dr. Anderson"), a board certified family practitioner at the PAFBH, Hunt arranged for Mrs. Avakian's admission into the base hospital on March 2, 1984. The plaintiff was admitted into the PAFBH with a diagnosis of a herniated nucleus pulposus ("HNP"), i.e., a herniated disc.

P.A. Hunt and Dr. Anderson began a conservative treatment program for Mrs. Avakian which consisted of bed rest with heat. In order to lessen the pain she was experiencing, Anderson also prescribed the muscle relaxer Valium for the plaintiff.*fn3

On the date of her admission, Mrs. Avakian underwent lumbar spine x-rays. Upon reviewing these x-rays and having determined that they were inconclusive, Dr. Anderson arranged to have plaintiff undergo a CT-scan on March 7, 1984. This examination, which was to be performed on the L4-L5 and L5-S1 areas of plaintiff's back, was ordered as a supplemental diagnostic aid.

As was his custom, Hunt met with all of his patients, including the plaintiff, at least two times a day as he followed their progress and determined whether the medications they were given were having the desired effect. On March 4, 1984, Hunt noted that Dr. Anderson had decreased the amount of Valium the patient was to be given after Dr. Anderson was informed by a nurse that the Valium had been making the plaintiff feel drowsy. On March 6th, Dr. Anderson, after determining that the patient was not responding as expected to the Valium, discontinued the use of this drug completely, and prescribed Robaxin, another muscle relaxer, for the patient.

On March 9, 1984, Dr. Patel performed a clinical examination on the plaintiff. After reviewing the results of this exam, as well as plaintiff's past history concerning her back problems, Dr. Patel recommended that Mrs. Avakian undergo the diagnostic procedure known as a myelogram. At this time, Dr. Patel briefly explained to the plaintiff the mechanics of the procedure: after anesthetizing the appropriate part of the plaintiff's back, a needle would be inserted into her spine and some of its fluid would be withdrawn. This fluid would be replaced by a dye, in this case Amipaque, a brand name of the contrast medium Metrizamide. Once this dye was in the plaintiff's spinal canal, x-rays of the spine would be taken and a herniated disc could be more easily identified and if present, localized.

After discussing with Dr. Patel the results of his clinical examination and his recommended course of action concerning Mrs. Avakian, both Dr. Anderson and P.A. Hunt concurred in Dr. Patel's recommendation that the plaintiff undergo a myelogram on Monday, March 12, 1984.*fn6

Dr. Alfred Bedford ("Dr. Bedford"), an Air Force radiologist, was the physician designated to perform the myelogram on Mrs. Avakian. Dr. Bedford testified that, as was his custom, he saw the plaintiff the night before the myelogram, and explained to her in detail the mechanics of the procedure. He told her about the common risks associated with the myelogram, and also about the less common hazards of the procedure, among them being transient paresis or even death. After asking Mrs. Avakian if she had any questions, the plaintiff responded that she wanted the hospital to go ahead with the preparations for the myelogram, but that she would not sign the consent form until the following day.*fn7

While in the hallway, Mr. Avakian reassured his wife, who appeared to him to be scared, that she should not be concerned about undergoing the myelogram. As he was talking with her, Dr. Bedford gave Mrs. Avakian the consent form and asked her to sign it. Her husband showed her where to sign the form, she signed it and was brought into the x-ray room.*fn8

Once in the x-ray room, Dr. Bedford anesthetized the appropriate portion of Mrs. Avakian's back with Xylocane by way of a small needle approximately 1.5 cm. in length. Upon being assured by the plaintiff that the anesthesia had had its desired effect, Dr. Bedford slowly inserted the spinal needle, which would be used to both withdraw the spinal fluid and inject the Amipaque into her spinal column, between the L4 and L5 regions of Mrs. Avakian's back.*fn9

At some point after the Amipaque was injected into the plaintiff's spine, Mrs. Avakian stated, in words or substance, that she wondered if her legs were in the air, because she could not feel them.*fn10 Dr. Bedford apparently ignored this statement, and continued on with the procedure. After the myelogram was completed, the plaintiff was assisted off of the operating table, onto a gurney, and taken out of the x-ray room. As she left, she told Dr. Bedford that he had done a good job, and that she couldn't feel a thing. Dr. Bedford jokingly retorted that that was why the PAFBH gave him big bonuses. Mrs. Avakian was then brought back to her room, where she was told to remain stationary for a period of eight hours. Later that evening, P.A. Hunt visited the plaintiff and discovered for the first time that she was having trouble feeling her legs. He then related this problem to Dr. Anderson.

Hunt saw the plaintiff the following day, March 13th, and afterwards noted in her progress notes that she was experiencing a weakness in both legs, a tingling sensation in both feet and was unable to stand or void. The plaintiff was then catheterized because she was unable to pass her urine.

On March 15th, Hunt met with Dr. Patel to discuss the plaintiff's condition. Dr. Patel performed various clinical tests on Mrs. Avakian, which tests confirmed P.A. Hunt's beliefs that the plaintiff's neurological symptoms were confusing and at times contradictory, making a definite diagnosis of the plaintiff's condition difficult. However, since she was still experiencing partial paralysis of her lower extremities, Drs. Anderson and Patel, as well as P.A. Hunt, arranged to have ...

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