Tate et al v. United States of America
FINDINGS OF FACT AND CONCLUSIONS OF LAW. See document for details.. Signed by Judge John W. Sedwick on 6/12/17. (GMM, CHAMBERS STAFF)
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
WILLIAM TATE, et al.,
UNITED STATES OF AMERICA,
ORDER AND OPINION
Findings of Fact and
Conclusions of Law
I. INTRODUCTION AND STATEMENT OF JURISDICTION
This Federal Tort Claims Act medical malpractice action was tried to the court
from May 8, 2017, through May 16, 2017, in Anchorage, Alaska. It is undisputed that
the medical care, which is the subject of this action, was rendered by agents of the
United States acting within the scope of their authority, and that the United States is
responsible for their actions. A timely administrative claim was filed, and subsequently
denied. This court has subject matter jurisdiction pursuant to 28 U.S.C. § 2671, et seq.
and 28 U.S.C. § 1346(b)(1).
Pursuant to Federal Rule of Civil Procedure 52, the court sets out its findings of
fact and conclusions of law below.
II. FINDINGS OF FACT
1. Plaintiffs in this lawsuit are William Tate, individually, and William Tate and
Susie Sours, as Co-Guardians of Cynthia Tate, and M.T., G.T., M.T., T.T. and M.T.,
who were minor children at the time litigation commenced. At the time of trial, one of
the minors named as M.T. was a 21-year-old married adult living in Virginia, named
Martha Hacker. The minor identified as G.T. was deceased at the time of trial.
2. William Tate (“William”) is the husband of Cynthia Tate (“Cynthia”), and the
father of her children named as plaintiffs in this action. At the time of trial, William was
living in Kotzebue, Alaska. He has long been, and at the time of trial continued to be,
employed as a merchant mariner spending about six months of each year away from
3. Susie Sours (“Susie”) is Cynthia’s niece. Susie was raised by Cynthia in
Kotzebue, Alaska. At the time of trial, Susie was a young adult living in Anchorage,
Alaska, where she was taking care of Cynthia’s children and Susie’s own three children.
4. On October 19, 2013, Cynthia was a 45-year-old Alaska Native woman living
in Kotzebue, Alaska, with her husband William, her children, and Susie. At the time of
trial, Cynthia was housed and cared for at the Sandra Baker intensive care nursing
home in Glendale, Arizona (“Sandra Baker Home”). When Cynthia was moved to
Arizona, Susie was living there.
5. Defendant in this action is the United States of America (“United States”).
The individuals for whose actions the United States is responsible in this lawsuit are
Mark Hrinko, R. N. (“Hrinko”), Paul Moughamian, R.N. (“Moughamian”), and Mary M.
Gwayi-Chore, M.D. (“Gwayi-Chore”).
6. The events giving rise to this lawsuit occurred on October 19, 2013, at the
Manilaq Medical Center in Kotzebue, Alaska (“MMC”).
7. On October 19, 2013, MMC was converting from paper patient charts to
electronic patient charts. Older records were still in paper format.
8. Cynthia walked into the MMC emergency room at 5:36 PM, or 1736 hours (all
times stated in the findings below reference the 24 hour clock). She checked in at the
front desk. Cynthia signed a form consenting to medical treatment.
9. Standard practice at MMC was to call for the patient’s paper chart at the time
of check in at the front desk.
10. Cynthia complained of nausea, vomiting, and epigastric pain. She rated her
pain as an 8 on a scale of 1 thru 10.
11. Cynthia was triaged by Hrinko starting at 1750. The precise time triage was
completed is not clear from the record, but triage should not have taken more than ten
minutes. Certainly triage had been completed prior to 1832 when Gwayi-Chore began
her exam of Cynthia.
12. During triage, Hrinko took Cynthia’s vital signs, all of which fell within normal
ranges. He also found her airway to be clear, and her respiratory system to be within
normal limits. His exam of Cynthia’s cardiac and circulatory system showed no signs of
problems. The results of Hrinko’s exam of her neurologic and musculoskeletal systems
yielded results within normal limits. Cynthia was oriented and conversed with the nurse.
Hrinko knew that Cynthia rated her pain level at 8. At 1800 Hrinko noted that Cynthia
was grimacing and teary. He also noted that she described the pain as sim ilar to
heartburn. He knew that she had been vomiting. He did not ask her when she last
vomited. He did not inquire as to the contents of her emesis. He did not ask Cynthia
when she last could retain fluids or food. He noted that the onset of pain was on
October 18. Hrinko’s triage notes indicate that Cynthia had not been consuming
alcohol. Hrinko testified at trial that Cyhthia told him she had consumed a box of wine
at some point prior to coming to MMC on October 19. He admitted that he left this out
of the chart notes. Hrinko did not review MMC’s paper chart on Cynthia.
13. MMC’s paper chart shows that Cynthia’s last prior visit to the MMC
emergency room was on Saturday, May 19, 2012, when she presented at 2035
complaining of throwing up since Thursday. She was triaged at level 3. The triage note
shows normal vital signs, including a pulse of 89. The chart shows that an EKG was
performed and that Cynthia was placed on cardiac monitoring (telemetry). The EKG
results included an episode of slower than normal heart rate and episodes of a
prolonged QT interval indicating an electrical abnormality in Cynthia’s heart. The
cardiac monitoring showed ventricular arrhythmias, including two runs of non-sustained
ventricular tachycardia (an abnormally high heart beat while at rest). Ventricular
tachycardia may precede ventricular fibrillation (a condition in which the heart beat is
irregular and weak and the heart is no longer able to pump blood), which in turn may
precede asystole (cardiac arrest). The results of the 2012 EKG and telemetry were in
Cynthia’s paper chart.
14. On October 19, 2013, Hrinko rated Cynthia at acuity level 4 on the 5 level
acuity scale used at MMC, a scale commonly used at medical facilities in the United
States. On that scale a patient rated at level 1 requires immediate life saving
intervention. A patient rated at level 2 requires monitoring every 15 to 30 minutes. A
patient rated at a level 4 requires monitoring at least every two hours. MMC’s policy
states that a level 2 acuity level should be assigned to a patient perceived as high risk,
or seen to be confused, lethargic or disoriented, or in severe pain. Severe pain is pain
at level 7 or higher as rated by “clinical observation and/or patient rating.” (Exhibit 9)
Hrinko should have rated Cynthia at acuity level 2 based on all of the circumstances of
her presentation and including the information in her paper chart.
15. During triage, Hrinko took Cynthia’s vital signs, all of which were within
normal limits. Cynthia’s vital signs were not measured thereafter. Hrinko did not
connect Cynthia to any electronic monitoring. Hrinko finished his shift and left MMC
prior to the time that Cynthia was found unresponsive.
16. Cynthia was the only patient in the MMC emergency room while she was
there. After triage, Cynthia was placed in Treatment Room B located immediately
across the hall from the nurses’ station. At MMC, the doors to the treatment rooms
close automatically. Treatment Room B was equipped with a pulse oximeter, a blood
pressure monitor, and a cardiac monitor, all of which were linked to displays at the
nurses’ station. If a monitor were being used on a patient, an alarm would sound if the
monitor’s reading moved outside the appropriate range.
17. Moughamian was also on duty when Cynthia arrived at MMC. After GwayiChore examined Cynthia, she ordered that Cynthia be placed on an intravenous fluid
and that she be given Protonix, an anti-reflux drug, and Zofran, a nausea medication.
Moughamian was the nurse who connected the intravenous line and administered the
medications. He placed the IV line at about 1900. He g ave her Protonix at 1908 and
Zofran was at 1910. The IV profusion of lactate ringers (“LR”) began at 1922.
18. Cynthia was not connected to pulse oximetry, blood monitoring or cardiac
monitoring when Moughamian went into her room, and he did not connect her to any of
the monitors. Cynthia did not object to connection of the IV or administration of the
drugs. A blood sample could have been drawn easily and quickly when the IV line was
being connected to the patient, but no blood was drawn.
19. Moughamian last observed Cynthia about 1922 and noted that she was
resting in bed, breathing easily with no labored breath and that she was fully oriented.
Moughamian reported what he saw to the night shift nurses.
20. Gwayi-Chore, who was born and received much of her education in Kenya,
was licensed to practice medicine in Alaska in 2010. She is board certified in family
21. Gwayi-Chore began her examination of Cynthia about 1832. Before doing
so, she looked at the triage sheet and the electronic patient chart. She did not look at
Cynthia’s paper chart.
22. Gwayi-Chore took Cynthia’s history. She noted that Cynthia was
complaining of epigastric pain with an onset around 0200 with nausea and vomiting
since then. Cynthia denied having diarrhea or constipation. Cynthia denied having
chest pain. Cynthia reported her last consumption of alcohol was three days earlier.
23. Gwayi-Chore’s examination found Cynthia to be alert and not in acute
distress. The abdominal exam disclosed normal bowel sounds. The abdomen was not
distended, and it was soft. Gwayi-Chore found epigastric tenderness, but without any
guarding or rebound tenderness. Stethescopic respiratory exam showed clear
breathing and no abnormal sounds. Stethescopic cardiac exam disclosed normal heart
sounds with no murmers, gallops or rubs. Gwayi-Chore made no diagnosis of Cynthia’s
24. Gwayi-Chore testified that she advised Cynthia that she wanted to do some
testing to include an EKG, urine testing, and blood testing. Gwayi-Chore testified that
Cynthia declined to have those tests done because she wanted to go home.
25. Gwayi-Chore did not mention Cynthia’s declination of testing in her chart
note. Neither did she mention Cynthia’s declination in her lengthy progress note dated
October 19, and signed by Gwayi-Chore on October 21. The progress note does
indicate that Cynthia wanted to go home to be with her three-year-old child.
26. The progress note also reports that Cynthia said she had consumed a small
amount of wine before arriving at the ER.
27. Several witnesses used some variant of the word “Code” in their testimony.
The word is used when a patient’s condition suddenly deteriorates to the point that life
saving intervention is needed immediately. The word may be either a noun–as in “a
Code was called”–or a verb–as in “the patient Coded.”
28. Sheryl Snyder, RN, who had come on duty at 1900, entered Cynthia’s room
at 1950, found Cynthia unresponsive, and called the Code.
29. Shortly after the Code was called, Dr. Chowdary, who had just come on
duty, relieved Gwayi-Chore of responsibility for the Code and Cynthia’s care.
30. Had an EKG been ordered and perf ormed, it would have provided a
snapshot of Cynthia’s heart function at the time the EKG was performed. The failure to
perform an EKG is not a factor here, because Gwayi-Chore’s stethoscopic cardiac
exam provided a snapshot of Cynthia’s heart function, and it disclosed nothing
abnormal. There is insufficient evidence to support a conclusion that an EKG taken at
the earliest reasonable time would have yielded a result different from the result of the
stethoscopic exam. The court therefore finds that not ordering an EKG did not affect
31. From the evidence the court finds that the earliest Gwayi-Chore could have
ordered urine and blood tests would have been at the time she ordered the Protonix,
Zofran, and the LR. Had she done so, it is reasonable to conclude f rom the evidence,
and the court finds that the blood would have been drawn as the IV line was placed at
about 1900 and the urine sample would have been obtained before Moughamian left
Cynthia’s room at 1922. It is also reasonable to conclude f rom the evidence, and the
court finds that Moughamian would have taken or sent the blood and urine samples to
the MMC laboratory after 1922 when he commenced the LR and then left Cynthia’s
32. There is insufficient evidence to support a conclusion that the results of the
urine and blood tests would have been obtained, returned to the ER, and reviewed prior
to 1950 when the Code was called. The court therefore finds that not ordering blood
and urine tests did not affect Cynthia’s outcome.
33. Given the findings of fact in paragraphs 30 and 32, the court finds it
unnecessary to determine whether Cynthia declined an EKG, blood testing, and urine
34. Diane Sixsmith, M. D. (“Sixsmith”) is board certified in emergency room
medicine and internal medicine. Sixsmith was retained by plaintiffs who tendered
Sixsmith as an expert in emergency medicine and internal medicine. The court found
on the record without objection by defendant that Sixsmith is qualified to offer opinion
testimony in emergency medicine and internal medicine.
35. Sixsmith was also tendered as an expert with respect to the standards of
care applicable to nurses working in emergency rooms. Defendant did not object, and
the court found Sixsmith qualified to offer opinion testimony in that field.
36. Gaylene Soniak-Tays, M.D.(“Tays”) is board certified in family practice
medicine. She has also worked as an emergency room physician since 1985. At times
she worked full time as an emergency room physician, but for most of her career her
emergency room work was part time. Over plaintiffs’ objection, the court found on the
record that Tays is qualified to offer opinion testimony in emergency medicine.
37. Sixsmith testified, and the court finds, that the standards for emergency
room care applicable to MMC are national standards of care.
38. Sixsmith testified, and the court finds, that an ER doctor is required by the
applicable standard of care to make a differential diagnosis when examining a patient.
The differential diagnosis need not be written down, but it must be undertaken by the
39. A differential diagnosis is a list of conditions that may apply to the patient
based on the ER physician’s assessment of various risk factors. The risk factors
include the patient’s medical history; the patient’s presenting complaints, signs and
symptoms; the patient’s current vital signs and other current observations of the patient
by nurses and the physician; the patient’s age; the patient’s gender; and sometimes the
40. A differential diagnosis should always take into account and attempt to rule
out the worst condition consistent with the patient’s presenting complaints, signs, and
symptoms. The worst condition in a differential diagnosis is not the worst condition
imaginable which is consistent with the complaints, signs, and symptoms. It is the
worst condition consistent with the presenting complaints, signs, and symptoms viewed
in light of all the risk factors.
41. A differential diagnosis is used to make decisions on testing and treatment
to rule out various conditions and eventually to reach a final diagnosis of the patient’s
42. Gwayi-Chore did not do a differential diagnosis, and did not reach a final
diagnosis of Cynthia’s condition.
43. Sixsmith testified that Cyhnthia’s complaint of severe epigastric pain
described as heartburn coupled with nausea and vomiting taken in light of Cynthia’s
medical history reflected in the paper chart established that a diagnosis of acute
coronary syndrome should have been considered.
44. Tays testified that a diagnosis of acute coronary syndrome should not have
been considered. Her opinion was based in part on the fact that Cynthia denied chest
pain. However, the court finds from all the evidence that women with acute coronary
syndrome sometimes present with no complaint of chest pain.
45. Tays also testified that another basis for her opinion was that a patient
suffering severe pain for 15 hours would not likely be on the verge of a cardiac event.
However, the evidence does not show how long before Cynthia went to MMC that her
pain became severe.
46. On cross-examination, Tays testified that nausea, vomiting, heartburn, and
severe epigastric pain are all symptoms of acute coronary syndrome.
47 Sixsmith’s opinion is more persuasive than Tays’ opinion. Gwayi-Chore
should have considered a diagnosis of acute coronary syndrome for Cynthia.
48. Sixsmith testified that given Cynthia’s presentation and the medical history in
the paper chart, the applicable standard of care required that Cynthia be placed on the
available monitoring equipment, and it was a breach of the standard of care not to put
Cynthia on a cardiac monitor, a pulse oximetry monitor, and a blood pressure monitor.
Tays’ opinion was that such monitoring was not called for in Cythia’s case. However,
Tays testified on cross-examination that if she had a patient who presented with
symptoms she believed were symptoms of acute coronary syndrome, then she would
place the patient on the monitors.
49. Sixsmith’s opinion is more persuasive than Tays’ opinion regarding the need
for monitoring. Gwayi-Chore breached the applicable standard of care by failing to
order cardiac monitoring, pulse-oximetry, and blood pressure monitoring for Cynthia.
50. Once an ER patient is placed on autom atic monitoring devices, they are left
on the patient until the patient is taken f rom the treatment room and discharged.
51. Had Cyhthia been on automatic monitoring, ER personnel would have
received a warning as soon as any of the monitors detected a reading outside the
ranges set for the monitoring device. This means that ER personnel would have
responded to Cynthia sooner than 1950 when the Code was called.
52. After the Code was called, there was no violation of any applicable standard
of care. Significantly, the prompt use of the defibrilator on the crash cart managed to
restore Cynthia’s heart to normal functioning after she had entered asystole.
53. Sixsmith opined that had ER personnel responded im mediately upon receipt
of a warning from the monitoring devices, their treatment would have prevented
Cynthia’s decline into asystole and that Cynthia would not have suffered an anoxic
54. The court accepts Sixsmith’s opinions and finds that with automatic
monitoring, there would have been an earlier response to the deterioration in Cynthia’s
condition, Cynthia would have been promptly shocked with the defibrilator on the crash
cart, the shock would have restored Cynthia’s heart activity to a normal state, Cynthia
would not have entered asystole, and Cynthia would not have suffered an anoxic brain
55. In addition to offering Sixsmith’s opinions on the standard of care applicable
to nurses working in emergency rooms, plaintiffs offered the testimony of Susan Smith,
DPN (“Smith”). The court found on the record and without objection from defendant
that Smith is qualified to offer opinion testimony on the standard of care applicable to
nurses working in emergency rooms.
56. Defendant also called an expert in nursing practices, Sandra Mobley
(“Mobley”). The court found on the record and without objection from plaintiffs that
Mobley is qualified to offer opinion testimony on the standard of care applicable to
nurses working in emergency rooms.
57. Sixsmith testified that with Cynthia’s presentation and medical history she
should have been placed on cardiac monitoring, blood pressure monitoring, and pulse
oximetry. She further testified that Hrinko and Moughamian’s failure to place Cynthia
on the monitors was a cause of the harm to Cynthia. Smith testified that the applicable
standard of care required that Cynthia be placed on the available monitoring equipment
and that it was a breach of the nursing standard of care not to place Cynthia on
automatic monitoring. Mobley testified that the nurses met the applicable standard of
care in their assessment and care for Cynthia.
58. Of the three expert opinions offered with respect to the nurses, the court
finds Smith’s the most persuasive by virtue of her more than 40 years of experience in
emergency room nursing and her advanced educational qualifications. It is also
significant that Smith’s opinion is bolstered by Sixsmith’s opinion.
59. Had the nurses placed Cynthia on cardiac monitoring, blood monitoring,
and pulse oximetry, there would have been an earlier response to the deterioration in
her condition, Cynthia would have been promptly shocked with the defibrilator on the
crash cart, the shock would have restored Cynthia’s heart activity to a normal state,
Cynthia would not have entered asystole, and Cynthia would not have suffered an
anoxic brain injury.
60. The court finds that the violation of the applicable standards of care by
Gwayi-Chore and the nurses does not rise to the level of reckless conduct as that term
is used in AS 09.55.549(f). Had they actually read (instead of negligently not reading)
the paper chart and then failed to place Cynthia on monitoring, that would have been
61. Plaintiff presented testimony by Michael Freeman (“Freeman”) with respect
to Cynthia’s life expectancy. The court found on the record, without objection from
defendant, that Freeman is qualified to offer opinion testimony concerning life
expectancy. Freeman opined that Cynthia had a life expectancy of at least 20 years at
the time of trial.
62. Defendant presented testimony by Robert Shavelle (“Shavelle”) with respect
to Cynthia’s life expectancy. The court found on the record, without objection from
plaintiffs, that Shavelle is qualified to offer opinion testimony concerning life expectancy.
Shavelle opined that Cynthia had a life expectancy of 9 years at the time of trial. That
opinion did not rely on the fact that Cynthia was recently put on a ventilator, which
could increase her risk of infection and possibly lower her life expectancy.
63. The court finds Shavelle’s opinion much more persuasive than Freeman’s
opinion. Freeman’s opinion largely rests on a single study of a population dissimilar to
Cynthia, which found a life expectancy of 11 years. Freeman added a minimum of 9
years to that life expectancy for reasons that were not convincing. Shavelle’s testimony
explained in considerable detail why Freeman’s addition of 9 years is misguided.
Shavelle relied on a larger array of studies than Freeman. Shavelle’s methodology was
clearly explained in his testimony. Shavelle’s opinion is more consistent with the
medical literature. Shavelle’s opinion is less speculative than Freeman’s opinion.
Plaintiffs’ argument about lack of data preservation by Shavelle is a red herring. The
data Shavelle relied upon generally was taken from publicly maintained data bases.
64. The court finds that Cynthia’s life expectancy at the time of trial was 9 years.
65. Plaintiffs presented the testimony of Edgar Franklin Livingstone, M. D.
(“Livingstone”). Livingstone is board certified in the field of physical and rehabilitative
medicine. The court found on the record, without objection from defendant, that
Livingstone is qualified to offer opinion testimony in physical and rehabilitative medicine.
66. In addition to reviewing Cynthia’s medical records and photos and the
videos taken by Cynthia’s family members when visiting Cynthia at the Sandra Baker
Home, Livingstone examined Cynthia on March 28, 2016, at the Sandra Baker Hom e.
Livingstone observed no voluntary movement by Cynthia. Livingstone testified on direct
that Cynthia may be in a minimally conscious state rather than a persistent vegetative
state, but said that opinion fell into a gray area. He acknowledged on crossexamination that the neurologist who had examined Cynthia found her to be in a
persistent vegetative state. He also testified that he was unaware of anyone improving
from a persistent vegetative state to a minimally conscious state.
67. Livingstone testified that the quality of Cynthia’s care at the Sandra Baker
Home was good and that keeping her at that facility would be a good option.
68. Defendant presented the testimony of Deborah Lynne Doherty, M.D.
(“Doherty”). Doherty is board certified in the field of physical and rehabilitative
medicine. The court found on the record, without objection from plaintiffs, that Doherty
is qualified to offer opinion testimony in the field of physical and rehabilitative medicine.
69. Doherty reviewed Cynthia’s medical records and photos and the videos
taken by Cynthia’s family members. Doherty examined Cynthia twice at the Sandra
Baker Home. Her most recent examination was on January 23, 2017. Defendant
presented a video of Doherty examining Cynthia, which Doherty explained on the
record. Doherty found that Cynthia is blind. She testified that Cynthia is in a persistent
vegetative state. Doherty testified that the reactions which Cynthia’s family members
interpreted as indications that Cynthia was aware of and responded to their presence
were random behaviors exhibited by patients in a persistent vegetative state.
70. Doherty’s testimony was very convincing. The court finds that Cynthia is in a
persistent vegetative state and incapable of any voluntary response to her
surroundings. What Cynthia’s family members interpreted as responses to their
presence was random involuntary behavior.
71. Doherty considered the quality of Cynthia’s care at the Sandra Baker Home
to be very good.
72. Plaintiffs presented three possible options for Cynthia’s continuing care.
The option preferred by plaintiffs is to house her in Susie’s home in Anchorage. A
second option–placing Cynthia in an intensive care facility in Anchorage–was ruled out
by the evidence at trial which showed that there is only one such facility in Anchorage,
that it has no bed available for Cynthia, and that it is unknown when a bed might
become available. The third option is to continue Cynthia’s care at the Sandra Baker
73. Cynthia’s family members testified that they would be willing to have Cynthia
cared for in Susie’s home where all but William and Martha Hacker reside. Wherever
Cynthia is cared for, she will need 24 hour services from two nurses. Thus, in addition
to moving Cynthia into Susie’s home, where Susie and several minor children reside,
room would have to be made for two nurses to be present. This would have a
substantial impact on the privacy of the residents.
74. Livingstone testified that it would require a major commitment from Cynthia’s
family to have Cynthia housed with her family. The court does not question the
sincerety of the wish by Susie and Cynthia’s minor children to have Cynthia in their
home. The court does question the wisdom of that wish. Cynthia is in a persistent
vegetative state. She has no ability to respond to her family members’ presence. Minor
children will grow and change and make increasing demands on Susie’s time and
energy. Susie, herself, is still quite young. Her own interests and needs will change
75. The court finds that it is inappropriate to care for Cynthia in Susie’s home.
The court finds that the appropriate place in which to care for Cynthia is the Sandra
76. Plaintiffs presented testimony from Jill Friedman (“Friedman”), a nurse who
has worked in the field of rehabilitative nursing since 1980. She was tendered as an
expert in life care planning. The court found on the record, with no objection from
defendant, that Friedman is qualified to give opinion testimony in the field of life care
planning. Friedman offered three life care plans: one for Cynthia’s care in Susie’s
home, another for Cynthia’s care in a critical care home in Anchorage, and one for
Cynthia’s care in the Sandra Baker Home.
77. Defendant presented testimony from Carl Gann (“Gann”) who has worked as
a rehabilitation counselor and life care planner for 39 years. Gann was tendered as an
expert in life care planning. The court found on the record, with no objection from
plaintiffs, that Gann is qualified to give opinion testimony in the field of life care
planning. Gann provided three life care plans: one for Cynthia’s care in Susie’s home,
one for Cynthia’s care in an Anchorage critical care facility, and one for Cynthia’s care
at the Sandra Baker Home.
78. Friedman worked with Livingstone in developing her life care plans.
Friedman assumed the minimum twenty year life expectancy determined by Freeman.
79. Gann worked with Doherty in developing his life care plans. Gann assumed
the nine year life expectancy determined by Shavelle, which has now been accepted as
correct by the court.
80. The plans offered by Friedman and Gann can be adjusted to fit a life
expectancy different from the life expectancy assumed by the authors.
81. After hearing the testimony from Friedman and Gann and evaluating their
respective plans relating to care at the Sandra Baker Home, the court finds Gann’s plan
provides a better basis for assessing Cynthia’s care needs for the remainder of her life.
Gann’s plan accepts some of Friedman’s price estimates and some of her annual
quantity determinations. Where Gann’s plan differs from Friedman’s plan, Gann’s plan
generally provides information explaining the difference. The court accepts Gann’s life
care plan which provides for Cynthia’s care at the Sandra Baker Home.
82. Gann did not include sales taxes on the cost of goods needed for Cynthia’s
care. There was no testimony about whether Friedman included sales taxes in her
plan. If she did, then in those cases where Gann accepted Friedman’s prices, sales
taxes are included. There was no testimony that sales taxes would be levied on
services provided to Cynthia. It is reasonable to assume that sales taxes will be paid
on some goods required for Cynthia’s care, but no party presented any evidence from
which the court can determine which goods will be subject to sales taxes, the rates at
which sales taxes would be calculated, and whether sales taxes are included in those
items for which Gann accepted Friedman’s prices. In this evidentiary vacuum, the court
cannot add an amount for sales taxes.
83. Plaintiffs presented the testimony of Hugh Richards (“Richards”), a forensic
economist with a masters degree in economics. The court found on the record with no
objection from defendant that Richards is qualified to offer opinion testimony in the field
of forensic economics. Richards testified about the net present value of Cynthia’s life
care plan, the net present value of Cynthia’s future economic losses, and her economic
losses prior to the time of trial.
84. Defendant presented the testimony of William Brandt (“Brandt”), a forensic
economist and certified public accountant with a masters degree in business
administration. The court found on the record with no objection from plaintiffs that
Brandt is qualified to offer opinion testimony in the field of forensic economics. Brandt
testified about the net present value of Cynthia’s life care plan, the net present value of
Cynthia’s economic losses, and her economic losses prior to time of trial.
85. Richards and Brandt employed different discount rates to calculate net
present values. Brandt used long term rates for United States government securities.
Richards used short term rates. Brandt testified that he used the long term rates in
order to comply with AS 09.17.040(b). In pertinent part, that statute prov ides: “The fact
finder shall reduce future economic damages to present value. In computing the
portion of a lump-sum award that is attributable to future economic loss, the fact finder
shall determine the present amount that, if invested at long-term future interest rates in
the best and safest investment, will produce . . . the amount necessary to compensate
the injured party . . . .” (Emphasis added) The court finds it proper to use long-term
United States securities rates.
86. Brandt calculated the net present value of Gann’s life care plan for the
Sandra Baker Home option to be $2,116,504. The court finds that this is the lump sum
amount needed to provide for Cynthia’s care for the rest of her life.
87. Richards and Brandt both relied on a f ederal government statistical
compilation, the Dollar Value of a Day 2012 (“Value of a Day”), in making their
calculations of Cynthia’s economic losses. However, the assumptions made by
Richards and Brandt in order to calculate Cynthia’s economic losses included several
88. With respect to lost wages, Richards assumed that Cynthia would enter the
job market seeking full time work when her youngest child entered first grade. Brandt
assumed that Cynthia would enter the job market seeking only part time work until the
youngest child was 17 years old at which time she would seek full time work. The
evidence shows that Cynthia was a loving, caring mother who enjoyed cooking for her
family and very much enjoyed spending time with her children. That taken together with
the fact that William’s job keeps him away from home for half of the year persuades the
court that Brandt’s assumption is more reasonable than Richards’ assumption.
89. Richards assumed that Cynthia was a high school graduate, but the
evidence shows that at most she had a G.E.D. Brandt assumed Cynthia had a G.E.D.
but did not graduate from high school. According to one survey relied upon by Brandt,
persons who do not graduate high school but obtain a G.E.D. earn about 6 percent less
than high school graduates. It is reasonable to reduce Cynthia’s earning capacity to
reflect her educational status.
90. In calculating Cynthia’s economic losses, Richards included the value of
social security benefits she could accumulate from her own work. Brandt did not. He
testified that Cynthia’s earnings would not yield benefits as high as half of the benefits
based on William’s earnings. Cynthia would therefore elect to receive the higher
benefits derived from and dependent on W illiam’s earnings. The court finds this to be
91. Richards included compensation for loss of Cynthia’s subsistence harvests
of fish and berries. Brandt did not. He testified that he did not, because the Value of a
Day allocates every hour to one category or another, and it includes an allocation of
time to “subsistence like” activities such as planting, gardening, and harvesting
vegetables and fruits. Thus, to include anything for subsistence would be double
counting. The court recognizes that the role of subsistence in the lives of Native
Alaskans is significant, not just economically, but also culturally. Thus, some award for
the cultural loss to Cynthia is appropriate, but it must be included in Cynthia’s noneconomic damages rather than in the calculation of her economic losses which would
amount to double counting.
92. Richards and Brandt calculated approximately the same amount for loss of
household services. The total loss calculated by Richards (i.e., both past and
discounted future) is $630,888. Brandt’s corresponding number is $624,479. The court
will award $630,000.
93. Because the court finds that Brandt’s calculation of earnings losses is based
on more reasonable assumptions than Richards’ calculation, the court accepts Brandt’s
calculation of $96,811 for the loss of wages and employer provided benefits (past loss
net of past tax paid plus discounted value of future loss).
94. Defendant contends that a portion of plaintiffs’ damages should be
apportioned to Snyder and Chapman. The only witness questioned about the possible
liability of Snyder and Chapman was Smith. She opined that Snyder and Chapman
breached the standard of care when they failed to look in on Cynthia sometime
between 1900 when they came on shift and the time of the Code at 1950. She testified
that they could have placed Cynthia on monitoring had they believed she needed
monitoring. However, Smith had no opinion on whether Snyder or Chapman
contributed to Cynthia’s injury. There is insufficient evidence in the record to apportion
some of the damages to Snyder or Chapman under AS 09.17.080.
95. Cynthia’s injury is a severe permanent physical impairment. The result is
that the limitation on plaintiffs‘ recovery of non-economic damages is the limit set in AS
09.17.10(c), which is the higher of $1,000,000 or the product of the person’s life
expectancy multiplied by $25,000. Cynthia’s life expectancy for this purpose is her life
expectancy had there been no brain injury. There is insufficient evidence in the record
to support a conclusion that absent the brain injury Cynthia would have lived more than
40 years beyond October 19, 2013 (40 x $25,000 = $1,000,000). The court finds that
the statutory limit is $1,000,000.
96. The court finds that the evidence of Cynthia’s non-economic damages plus
the substantial losses of consortium suffered by William and Cynthia’s four surviving
children who were deprived of many years of care from and companionship of a
cheerful, hardworking and loving spouse and parent are so substantial that an aw ard
equivalent to the applicable limit of $1,000,000 is appropriate.
97. In his closing argument, plaintiffs’ counsel asked for a $2 million dollar award
for Cynthia’s non-economic damages, $200,000 for William and $100,000 for each of
the four children. The court cannot award more than the $1 million limit, because the
court has found that defendants did not engage in reckless conduct. However, the
court finds no reason to depart from the allocation inherent in the amounts requested by
plaintiffs’ lawyer. Using that allocation, Cynthia has $769,000 in non-economic
damages, William has $77,000 in non-economic damages, and each of the four
children has $38,500 in non-economic damages.
98. Based on the findings in paragraphs 86, 92, 93, and 97, Cynthia is awarded
$3,612,315. Based on the findings in paragraph 97, William is awarded $77,000, and
each of the four children is awarded $38,500.
III. CONCLUSIONS OF LAW
1. The substantive law which applies is the law of the State of Alaska where the
events took place. 28 U.S.C. § 2674 (United States liable in sam e manner and to same
extent as private litigant in same circumstances).
2. Under Alaska law, to recover damages on a medical malpractice claim a
plaintiff must prove by a preponderance of the evidence the degree of care ordinarily
exercised by the health care provider in the field in which the defendant health care
provider is practicing (the standard of care), that the defendant failed to exercise that
degree of care (breached the standard of care), and that the failure proximately caused
injuries which would not otherwise have been incurred. AS 09.55.540.
3. Plaintiffs proved by a preponderance of the evidence the standard of care
applicable to Gwayi-Chore who was a doctor practicing in the field of emergency room
medicine and that Gwayi-Chore breached the standard of care.
4. Plaintiffs proved by a preponderance of the evidence the standard of care
applicable to Hrinko and Moughamian who were practicing in the field of emergency
room nursing and that each of them breached the standard of care.
5. Plaintiffs proved by a preponderance of the evidence that the breaches by
Gwayi-Chore, Hrinko and Moughamian proximately caused injuries that would not
otherwise have been incurred.
6. Plaintiffs proved by a preponderance of the evidence that the net present
value of life care for Cynthia is $2,116,504.
7. Plaintiffs proved by a preponderance of the evidence that the past and net
present value of Cynthia’s economic damages for lost household services is $630,000.
8. Plaintiffs proved by a preponderance of the evidence that the past and net
present value of Cynthia’s economic damages for lost income and benefits is $96,811.
9. Plaintiffs proved by a preponderance of the evidence that the value of
Cynthia’s non-economic damages is $769,000.
10. Plaintiffs proved by a preponderance of the evidence that the value of
William’s non-economic damages is $77,000.
11. Plaintiffs proved by a preponderance of the evidence that the value of
Martha Hacker’s non-economic damages is $38,500.
12. Plaintiffs proved by a preponderance of the evidence that the value of minor
child M.T.’s non-economic damages is $38,500; that the value of the first minor child
T.T.’s non-economic damages is $38,500; and that the value of the second minor child
T.T.’s non-economic damages is $38,500.
13. Plaintiffs may not recover costs or attorneys’ fees. Anderson v. United
States, 127 F.3d 1190, 1191-92 (9th Cir. 1997). Plaintif fs may not recover prejudgment interest. 28 U.S.C. § 2674.
IV. DIRECTION FOR ENTRY OF JUDGMENT
The Clerk of Court is directed to enter judgment against defendant United States
of America such that William Tate and Susie Sours as Co-Guardians of Cynthia Tate
recover $3,612,315; that W illiam Tate and Susie Sours as Co-Guardians of the minor
M.T. recover $38,500, that William Tate and Susie Sours as Co-Guardians of the first
minor identified as T.T. recover $38,500; that William Tate and Susie Sours as CoGuardians of the second minor identified as T.T. recover $38,500; that William Tate
individually recover $77,000; and that Martha Hacker recover $38,500.
Dated this 12th day of June 2017.
/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT
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