Anderson et al v. United States of America

Filing 50

FINDINGS OF FACT AND CONCLUSIONS OF LAW; signed by Judge Ronald B. Leighton. (DN)

HON. RONALD LEIGHTON

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JOSHUA ANDERSON, as Guardian Ad
Litem of minor B.J.P.; ARMANI PORTER;
and TYLER PORTER,

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FINDINGS OF FACT AND
CONCLUSIONS OF LAW

Plaintiffs,

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No. 3:16-cv-05781-RBL

vs.
UNITED STATES OF AMERICA,
Defendant.

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THIS MATTER came before the Court on plaintiffs’ claims against the defendant,

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United States of America, arising from the negligence of defendant’s employees, medical care

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providers at Madigan Army Medical Center. Having reviewed the evidence, heard the testimony,

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and considered the arguments of counsel, the Court now enters these Findings of Fact and

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Conclusions of Law.

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FINDINGS OF FACT AND CONCLUSIONS OF
LAW -1.

I. FINDINGS OF FACT

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A. BACKGROUND FACTS

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1.

Tyler Porter (“Tyler”) was born on March 24, 1996 in Virginia.

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2.

According to mortality tables, the normal male life expectancy aged 23 years is
52.73 years.

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3.

Tyler will likely live another 52.73 years, the normal life of a man aged 23 years.

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4.

Armani Saunders (formerly Porter) (“Armani”) was born on August 1, 1996 in
Virginia.

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5.

22 years is 58.64 years.

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According to mortality tables, the normal female life expectancy of a woman age

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Armani will likely live another 58.64 years, the normal life of a female aged
22 years.

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7.

Tyler and Armani were married in Virginia on December 6, 2014.

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8.

B.J.P. was born on July 28, 2014 in Virginia.

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9.

According to mortality tables, the normal male life expectancy aged 4 years is
71.09 years.

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10.

B.J.P. will likely live another 71.09 years, the normal life of a male aged 4 years.

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11.

Tyler is B.J.P.’s father.

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12.

Armani is B.J.P.’s mother.

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13.

Tyler, Armani, and B.J.P. lived in Virginia after B.J.P.’s birth.

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14.

In January 2015, Tyler enlisted in the United States Army.

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15.

Tyler received orders to be stationed at Ft. Lewis Washington and Tyler, Armani,

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and B.J.P. moved to Washington on July 10, 2015.

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FINDINGS OF FACT AND CONCLUSIONS OF
LAW -2.

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B. B.J.P.’S SURGERY AND THE SURGICAL FIRE
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Madigan Army Medical Center is a federal military treatment facility at Joint Base
Lewis-McCord, Washington.

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Defendant United States of America operates Madigan Army Medical Center.

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18.

B.J.P. underwent surgery at Madigan Army Medical Center on September 2, 2015
(“the Surgery”).

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left eye.

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The care team involved in the Surgery consisted of active duty service members
and Department of Army civilian employees.

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The purpose of the Surgery was to remove a small, benign cyst from above B.J.P.’s

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The care team involved in the Surgery included Phillip Cuenca, M.D., John Horton,
M.D., and Benjamin Althuisius.

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22.

Dr. Cuenca was the anesthesiologist for the Surgery.

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23.

Dr. Horton was the pediatric surgeon who performed the Surgery.

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24.

At the time of the Surgery, Benjamin Althuisius had just finished his first year of
training to become a nurse anesthetist.

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25.

During the Surgery, Benjamin Althuisius was under the supervision of Dr. Cuenca.

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26.

Dr. Cuenca did not communicate with Dr. Horton the planned method of
administering anesthesia for the Surgery.

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Dr. Cuenca did not inform Dr. Horton that supplemental oxygen would be supplied

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at a concentration in excess of 30% using an open oxygen delivery system during

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the Surgery.

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28.

Dr. Horton did not communicate with Dr. Cuenca the planned method of excising
B.J.P.’s small cyst during the Surgery.

FINDINGS OF FACT AND CONCLUSIONS OF
LAW -3.

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electrocautery device to excise B.J.P.’s small cyst during the Surgery.

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Had Dr. Cuenca known that Dr. Horton intended to use an electrocautery device
during the Surgery, Dr. Cuenca would have administered anesthesia differently.

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Dr. Cuenca assumed that Dr. Horton would be using a scalpel to excise B.J.P.’s
small cyst during the Surgery.

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Dr. Cuenca did not believe that an electrocautery device would be used during the
Surgery.

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Dr. Horton did not inform Dr. Cuenca that Dr. Horton would be using an

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Had Dr. Cuenca known that Dr. Horton intended to use an electrocautery device

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during the Surgery, Dr. Cuenca would have administered concentrated oxygen at a

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lower level.

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34.

Surgical fires require the existence of an oxidizer, an ignition source, and a
fuel source.

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35.

When an environment lacks a sufficient quantity of an oxidizer, fire cannot occur.

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36.

When an environment lacks an ignition source, fire cannot occur.

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37.

When an environment lacks a fuel source, fire cannot occur.

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38.

Oxygen is an oxidizer.

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39.

Oxygen-enriched environments increases the likelihood of fire.

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An electrocautery device is an ignition source for fire.

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A fuel source for fire is any combustible material, including a surgical mask and
human skin.

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Surgical fires can have devastating consequences for patients.

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FINDINGS OF FACT AND CONCLUSIONS OF
LAW -4.

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through a mask, an open oxygen delivery system.

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Less than five minutes into the Surgery, Dr. Horton activated the electrocautery
device.

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No fire risk assessment or any other assessment of surgical fire risk was performed
by the treatment providers before proceeding with the Surgery.

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During the Surgery, combustible materials were located at or in the vicinity of
where Dr. Horton attempted to use the electrocautery device.

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Benjamin Althuisius was in charge of holding the mask on B.J.P.’s face and
ensuring that B.J.P.’s airway remained open during the Surgery.

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During the Surgery, B.J.P. was given inhaled anesthetic and concentrated oxygen

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Benjamin Althuisius did not inform Dr. Horton that Dr. Horton was about to

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activate the electrocautery device in proximity to the open oxygen source and in an

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oxygen enriched environment.

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Benjamin Althuisius did not inform Dr. Cuenca that Dr. Horton was about to

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activate the electrocautery device in proximity to the open oxygen source and in an

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oxygen enriched environment.

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fireball come over his right hand.

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51.

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When Benjamin Althuisius felt the fireball come over his right hand, Benjamin
Althuisius’ right hand was located on B.J.P.’s face.

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After Dr. Horton activated the electrocautery device, Benjamin Althuisius felt a

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After feeling the fireball come over his right hand, Benjamin Althuisius threw the
surgical drapes and mask into the air and away from his hand and B.J.P.’s body.

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FINDINGS OF FACT AND CONCLUSIONS OF
LAW -5.

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53.

When the treatment providers realized a fire had occurred, the treatment providers
aborted B.J.P.’s cyst excision.

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The treatment providers doused saline on B.J.P.’s face.

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55.

The surgical mask, which had fallen to the floor in flames, was extinguished
with water.

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Dr. Horton activating the electrocautery device during the Surgery.

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Dr. Cuenca was actively administering oxygen through an open delivery system in
an amount much greater than 30 percent at the time Dr. Horton activated the

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electrocautery device.

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The surgical team and Dr. Horton did not allow excess oxygen to dissipate prior to

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Dr. Cuenca estimates the level he was administering oxygen through an open
delivery system at the time of the surgical fire to be 90%.

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59.

The September 2, 2015 surgical fire occurred in an oxygen enriched environment.

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60.

The September 2, 2015 surgical fire would not have ignited if the environment had
not been oxygen enriched.

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61.

The September 2, 2015 surgical fire was caused by the use of an electrocautery

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device in an oxygen enriched environment in the presence of combustible fuel

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sources.

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62.

The September 2, 2015 surgical fire was preventable.

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63.

B.J.P. was asleep under anesthesia when the September 2, 2015 surgical fire

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erupted.

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FINDINGS OF FACT AND CONCLUSIONS OF
LAW -6.

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Defendant admits that it failed to exercise that degree of care, skill, and learning

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expected of a reasonably prudent health care provider at the time in the profession

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or class to which he or she belongs, in the state of Washington, acting in the same

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or similar circumstances and that this failure was the sole proximate cause of the

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September 2, 2015 surgical fire and the damages proven to result from the

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September 2, 2015 surgical fire.

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C. DAMAGES
B.J.P.’S DAMAGES
1. B.J.P.’S ACUTE RECOVERY AND ACUTE RECOVERY RELATED DAMAGES

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AND HARMS

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65.

Initial evaluation of B.J.P. immediately following the September 2, 2015 surgical

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fire noted obvious burns to B.J.P.’s face with the right side worse than the left. The

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size of the burned area was estimated up to 10% of B.J.P.’s total body surface area.

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66.

Harborview Medical Center Burn Center was contacted and immediate transport of

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B.J.P. to Harborview Medical center for further management and treatment of the

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injuries was recommended.

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Unit and awaited emergent airlift to Harborview Medical Center.

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68.

B.J.P. was transported by emergent airlift to Harborview Medical Center Burn Unit
on September 2, 2015.

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B.J.P. was moved to the Madigan Army Medical Center Pediatric Intensive Care

69.

On September 2, 2015, B.J.P. was admitted to Harborview Medical Center

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Pediatric Intensive Care Unit (PICU) pending stabilization and/or appropriate

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management of anesthesia, pain control, respiratory management, wound care, and

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fluid management.
FINDINGS OF FACT AND CONCLUSIONS OF
LAW -7.

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While in the PICU, B.J.P. was critically ill.

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While in the PICU, B.J.P. appeared restless and agitated.

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While in the PICU, B.J.P. remained intubated before eventually self-extubating.

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73.

While in the PICU, B.J.P. was diagnosed with acute respiratory failure.

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74.

While in the PICU, B.J.P. received medications, including narcotic pain
medications and sedation medications.

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While in the PICU, B.J.P. received wound care.

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76.

While in the PICU, B.J.P. experienced complications directly related to his burn
injuries, including bradycardia, tachycardia, hypertension, inadequate sedation,

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rapid oxygen desaturation, acute respiratory failure, and significant edema.

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77.

open his eyes for approximately three days following the fire.

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78.

79.

On September 9, 2015, B.J.P. was placed under general anesthesia and underwent
a facial debridement procedure.

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On September 5, 2015, B.J.P. was transferred from the PICU to acute care where
he received continued monitoring and wound care.

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As a direct result of the injuries sustained in the surgical fire, B.J.P. was unable to

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While in acute care, B.J.P. experienced complications with tachycardia and fever.

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At one point, the rapid response team was called due to B.J.P.’s decline, including

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a temperature of 40 degrees Celsius and heart rates up to 230s.

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On September 11, 2015, B.J.P. was transferred from acute care back to the PICU

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for closer monitoring due to ongoing tachycardia and fever and concern for

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systemic infection.

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82.

While in the PICU, B.J.P. was found to be positive for adenovirus.

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FINDINGS OF FACT AND CONCLUSIONS OF
LAW -8.

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83.

On September 16, 2015, B.J.P.’s vital signs stabilized, and he was returned from the
PICU to acute care where burn care observation and pain management continued.

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Tyler was present during his son’s hospitalization at Harborview Medical Center.

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Armani was present during her son’s hospitalization at Harborview Medical Center.

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Tyler participated in and was taught wound care and management of B.J.P.’s
wounds while B.J.P. was hospitalized at Harborview Medical Center.

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wounds while B.J.P. was hospitalized at Harborview Medical Center.

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88.

89.

B.J.P. continued to receive wound care management through the Harborview
Medical Center Burn Clinic.

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On September 24, 2015 B.J.P. was discharged from Harborview Medical Center
and returned to his home with his parents.

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Armani participated in and was taught wound care and management of B.J.P.’s

90.

On or around October 26, 2015 the wounds caused from the September 2, 2015

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surgical fire had closed and acute treatment and management of the wounds had

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concluded. B.J.P was left with significant scarring and disfigurement to his face.

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91.

During the acute period of recovery, B.J.P. suffered significant damage and harm

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due to the nature and extent of the injuries he received from the September 2, 2015

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surgical fire.

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result of injuries he received from the September 2, 2015 surgical fire.

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During the acute period of recovery, B.J.P. suffered significant disfigurement as a

93.

During the acute period of recovery, B.J.P. suffered significant disability as a result
of injuries he received from the September 2, 2015 surgical fire.

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FINDINGS OF FACT AND CONCLUSIONS OF
LAW -9.

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of life as a result of injuries he received from the September 2, 2015 surgical fire.

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During the acute period of recovery, B.J.P. suffered significant loss of enjoyment

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During the acute period of recovery, B.J.P. suffered significant physical pain and

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suffering as a result of injuries he received from the September 2, 2015 surgical

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fire.

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96.

During the acute period of recovery, B.J.P. suffered significant mental pain

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and suffering as a result of injuries he received from the September 2, 2015

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surgical fire.

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2. B.J.P.’S TREATMENT AND TREATMENT RELATED DAMAGES AND

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HARMS (POST-ACUTE RECOVERY)

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97.

B.J.P. has received post-acute recovery medical treatment and has undergone post-

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acute recovery medical procedures, including surgery, as a result of the injuries he

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suffered from the September 2, 2015 surgical fire.

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98.

B.J.P. will require and/or receive necessary medical care, treatment, and services

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in the future as a result of the injuries he suffered from the September 2, 2015

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surgical fire.

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99.

On December 14, 2015 B.J.P. underwent surgery at Harborview Medical Center.

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The preoperative diagnosis was “severe hypertrophic burn scar contractures of face

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including nose, right upper and lower eyelids, forehead, cheek, and lips,

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predominantly right-sided, with severe right upper eyelid ectropion.”

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following procedures were performed:

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FINDINGS OF FACT AND CONCLUSIONS OF
LAW -10.

The

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1) Release burn scar contractures and severe burn scar ectropion right, upper

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eyelid, right lower eyelid, and nose with sheet split-thickness skin graft

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16 sq. cm, approximately 2% body surface area.
2) Release burn scar contracture right cheek with sheet split-thickness skin

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graft 4 sq. cm, approximately 1% body surface area.

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3) Local tissue rearrangement Y to V flap after release burn scar contracture

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right cheek, nose, and upper lip, 6 sq. cm.

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4) Local tissue rearrangement right lower eyelid Z-plasty/modified jumping

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man flap 1 sq. cm.

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5) Right medial canthopexy.

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6) Right lateral tarsorrhaphy.

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7) A 22 modifier for sheet graft placement requiring three times more

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intraoperative time as well as much more intensive postoperative

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monitoring.

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The post-operative diagnosis following the December 14, 2015 surgery was “severe

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hypertrophic burn scar contractures of face including nose, right upper and lower

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eyelids, forehead, cheek, and lips, predominantly right-sided, with severe right

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upper eyelid ectropion.”

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100.

December 18, 2015.

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B.J.P. remained hospitalized at Harborview Medical Center until his discharge on

101.

Tyler was present with B.J.P. during B.J.P.’s hospitalization from December 14,
2015 through December 18, 2015.

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FINDINGS OF FACT AND CONCLUSIONS OF
LAW -11.

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102.

In December 2015, Tyler and Armani separated. Armani moved to Virginia near her

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family. Tyler continued his military service and remained stationed at

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Ft. Lewis, Washington, pursuant to his orders. B.J.P. returned to Virginia with Armani.

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103.

and further treatment.

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In January 2015, B.J.P. returned to Washington for post-surgical follow, evaluation,

104.

On January 29, 2015 B.J.P. underwent surgery at Harborview Medical Center. The

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preoperative diagnosis was: “1. Right-sided facial scarring, 2. Occlusion

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amblyopia.” The surgery performed was, “opening permanent tarsorrhaphy, right

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side.” The surgery was performed under general anesthesia. The postoperative
diagnoses were: “1. Right-sided facial scarring, 2. Occlusion amblyopia.”

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105.

care with providers located in Virginia.

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Following the January 29, 2015 surgery, B.J.P. returned to Virginia and established

106.

On March 29, 2017 B.J.P. underwent surgery at the Naval Medical Center

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Portsmouth. The surgery consisted of right medial eyelid scar revision (Z-plasty to

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release constriction at right medial canthal region), facial scar needling/steroid

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injection with CO2 laser burn scar revision, lacrimal duct exploration, and left

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lateral periorbital dermoid cyst excision. The surgery was performed under general

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anesthesia.

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107.

On June 1, 2017 B.J.P. underwent surgery at the Naval Medical Center Portsmouth.

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The surgery consisted of CO2 laser treatment. The surgery was performed under

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general anesthesia.

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FINDINGS OF FACT AND CONCLUSIONS OF
LAW -12.

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108.

In addition to surgical procedures, B.J.P. has received treatment and medical care

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as a result of the injuries he suffered from the September 2, 2015 surgical fire

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including debridement, ophthalmology evaluations, speech evaluations, scar

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stretching, scar massage, cream applications, and eye drops.

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109.

As a result of the September 2, 2015 surgical fire, B.J.P. will likely require and/or

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receive the following evaluations and therapeutic modalities in the future:

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Psychological diagnostic evaluation with a child psychologist or similar

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specialist to assess the impact of the of the burn injury and to assess the

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treatment needs to help cope with problems including difficulty sleeping. The

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frequency of the treatment will likely be annually from B.J.P.’s current age until

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age 18 or beyond.

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Psychotherapy with a child psychologist or similar specialist to help B.J.P. with

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self-esteem, anger, and learn coping skills due to significant scarring and

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disfigurement. The frequency of treatment will likely be 1-2 times monthly for

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a minimum of 1-2 years at some time from B.J.P.’s current age to age 18

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or beyond.

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110.

As a result of the September 2, 2015 surgical fire, B.J.P. will likely require and/or

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receive the following medical care in the future:

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

Annual eye exams by a pediatric ophthalmologist due to the fact that severe

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injury to the periocular region can affect vision and function, B.J.P.’s eyelids

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do not blink normally, and B.J.P.’s eyelids are scarred and do not adequately

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FINDINGS OF FACT AND CONCLUSIONS OF
LAW -13.

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protect his eye. The frequency of the treatment will likely be annually (or more

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if any ophthalmological or vision issues arise) from B.J.P.’s current age to age

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18 with continued follow through adulthood if issues are detected.


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Surgery physician visits for oculofacial plastic surgery and plastic

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reconstructive surgery with specialists experienced in the team approach of

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caring for severely burned patients for evaluation and management of

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mechanical right upper lid ptosis, diminished right blinking, loss of upper lid

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crease and transition zone between pre-septal and pretarsal regions, medial

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canthal tethering and scar banding, loss of right eyebrow, soft tissue atrophy,

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and diminished volume of right periocular region.

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treatment will likely be 2 times annually from B.J.P.’s current age until age 18.

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111.

The frequency of the

As a result of the September 2, 2015 surgical fire, B.J.P. will likely require and/or

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receive the following surgeries in the future:

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

Right upper eyelid reconstruction: repair blepharoptosis levator resection. The

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purpose of the surgery is for correction of mechanical ptosis and recreation of

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right upper eyelid crease and transition zone from pre-septal and pretarsal

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regions.

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

Right upper eyelid reconstruction blepharoplasty upper eyelid / revision eyelid.

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The purpose of the surgery is for correction of mechanical ptosis and recreation

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of right upper eyelid crease and transition zone from pre-septal and pretarsal

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regions.

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FINDINGS OF FACT AND CONCLUSIONS OF
LAW -14.

1



Skin grafting: full thickness, free, with direct closure nose, eyelids, and lips.

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The purpose of the surgery is for correction of mechanical ptosis and recreation

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of right upper eyelid crease and transition zone from pre-septal and pretarsal

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regions.

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

Skin grafting: forehead, cheeks, mouth. The purpose of the surgery to for

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correction of mechanical ptosis and recreation of right upper eyelid crease and

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transition zone from pre-septal and pretarsal regions.

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

Medial canthal reconstruction with multiple Z-plasties: medial canthoplasty.

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The purpose of the surgery is for correction of scarring which caused tethering

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and banding of the normal anatomically concave region creating tension and

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deformity and serial release to improve thickness of scar and relieve some of

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the distorting visible tension lines.

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

Adjacent tissue transfers and rearrangement, eyelids, nose, and lips. The

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purpose of the surgery is for correction of scarring which caused tethering and

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banding of the normal anatomically concave region creating tension and

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deformity and serial release to improve thickness of scar and relieve some of

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the distorting visible tension lines.

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

Adjacent tissue transfers and rearrangement, forehead, cheeks, and mouth. The

19

purpose of the surgery is for correction of scarring which caused tethering and

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banding of the normal anatomically concave region creating tension and

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deformity and serial release to improve thickness of scar and relieve some of

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the distorting visible tension lines.

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FINDINGS OF FACT AND CONCLUSIONS OF
LAW -15.

1



Second adjacent tissue transfers and rearrangement, eyelids, nose and lips or

2

forehead, cheeks, and mouth. The purpose of the surgery is for correction of

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scarring which caused tethering and banding of the normal anatomically

4

concave region creating tension and deformity and serial release to improve

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thickness of scar and relieve some of the distorting visible tension lines.

6



Two or more autologous fat grafting surgeries. The purpose of the surgery is

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for correction of loss of volume superior periocular soft tissue resulting in loss

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of facial and eyelid volume with flattened appearance.

9



Two or more eyebrow reconstruction surgeries: hair-bearing grafts, micro or

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single follicle hair transplantation: punch graft hair transplant > 15. The

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purpose of the surgery is to correct and improve appearance due to complete

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loss of right eyebrow.

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

Two or more tattooing procedures: intradermal introduction of insoluble

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opaque pigments to correct colored defects in skin, correct skin color,

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6.0 cm ≤, multiple. The purpose of the procedures is to correct and improve

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appearance due to complete loss of right eyebrow.

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

Two to three tissue expansion surgeries: insertion tissue expander including

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subsequent expansion. The purpose of the surgery is to correct/improve the

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appearance of hypertrophic scarring, tissue discoloration and noticeable

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blending of graft interfaces including hyperpigmented patch over lateral aspect

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of right upper eyelid.

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FINDINGS OF FACT AND CONCLUSIONS OF
LAW -16.



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Two to three removal surgeries for removal of tissue expander without insertion

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of prothesis. The purpose of the surgery is to correct/improve the appearance

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of hypertrophic scarring, tissue discoloration and noticeable blending of graft

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interfaces including hyperpigmented patch over lateral aspect of right upper

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eyelid.

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

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8

Three or more cutaneous therapy with lasers, bleaching or laser therapy:
dermabrasion, segmental, face, intralesional injections, triamcinolone acetonide.

112.

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As a result of the September 2, 2015 surgical fire, B.J.P. will likely require and/or
receive the following orthotics and prosthetics:

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

Oral appliance post-operative.

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

Compression garment (face) that is a computer-generated see-through mask

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that may be lined with silicone sheeting or pads to maintain and expand opening

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of mouth post-operatively.

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113.

As a result of the September 2, 2015 surgical fire, B.J.P. will likely require and/or

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receive the following medications and supplies:

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

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18

Cosmetics to help improve the appearance of scarred, irregular, and discolored
skin. The specific quantity depends on the need for and desire for use.



Skin bleaching products (Kojic acid or hydroquinone) for adjunctive benefit to

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help improve appearance of irregularly pigmented injury sites. The specific

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quantity depends on maturity, precautionary measures, and anatomy.

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22



Sunscreen for protected bleached skin. The specific quantity depends on
maturity, precautionary measures, and anatomy.

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FINDINGS OF FACT AND CONCLUSIONS OF
LAW -17.

1

114.

As a result of the September 2, 2015 surgical fire, B.J.P. will likely require and/or

2

receive the following social/recreational needs:

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

Burn Camp: Little Heroes Preschool Burn Camp, Sacramento, California. The

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purpose of the burn camp is to help families understand and cope with physical

5

and emotional challenges associated with burn recovery. The frequency of the

6

burn camp is annually until age 6.

7



Central Virginia Burn Camp, Charlottesville, Virginia. The purpose of the burn

8

camp is to enjoy summer activities with others who have gone through similar

9

experiences and to help foster a sense of self-confidence, boost self-esteem and

10

allow children to realize that they are not alone with their burn scars. The

11

frequency of the burn camp is annually between ages 7-17.

12

115.

The present value of the evaluations and therapeutic modalities, medical care,

13

surgeries, orthotics and prosthetics, medications and supplies, and social/

14

recreational needs he will likely be required and/or received by B.J.P. as a result of

15

the September 2, 2015 totals $303,162.00.

16

116.

Defendant admits that B.J.P. is entitled to economic damages for future medical

17

care in the amount of $303,162.00. This amount covers the costs of Plaintiffs’ life

18

care plan as valued by their expert economist, William Brandt.

19

117.

B.J.P. has suffered significant damage and harm due to the nature and extent of the

20

injuries he received from the September 2, 2015 surgical fire specifically with

21

respect to treatment and medical procedures received post-acute recovery as a result

22

of those injuries.

23
24
FINDINGS OF FACT AND CONCLUSIONS OF
LAW -18.

1

118.

B.J.P. will suffer significant damage and harm due to the nature and extent of the

2

injuries he received from the September 2, 2015 surgical fire specifically with

3

respect to treatment and medical procedures he will receive as a result of

4

those injuries.

5

119.

B.J.P. has suffered significant disability from medical treatment and medical

6

procedures received post-acute recovery as a result of the injuries he suffered from

7

the September 2, 2015 surgical fire.

8

120.

procedures he will receive as a result of the injuries he suffered from the

9

September 2, 2015 surgical fire.

10
11

B.J.P. will suffer significant disability from medical treatment and medical

121.

B.J.P. has suffered significant disfigurement from medical treatment and medical

12

procedures received post-acute recovery as a result of the injuries he suffered from

13

the September 2, 2015 surgical fire.

14

122.

B.J.P. will suffer significant disfigurement from future medical care, treatment, and

15

services needed as a result of the injuries he suffered from the September 2, 2015

16

surgical fire.

17

123.

B.J.P. has suffered significant loss of enjoyment of life from medical treatment and

18

medical procedures received post-acute recovery as a result of the injuries he

19

suffered from the September 2, 2015 surgical fire.

20

124.

B.J.P. will suffer significant loss of enjoyment of life from future medical care,

21

treatment, and services needed as a result of the injuries he suffered from the

22

September 2, 2015 surgical fire.

23
24
FINDINGS OF FACT AND CONCLUSIONS OF
LAW -19.

1

125.

B.J.P. has suffered significant physical pain and suffering from medical treatment

2

and medical procedures received post-acute recovery as a result of the injuries he

3

suffered from the September 2, 2015 surgical fire.

4

126.

B.J.P. will suffer significant physical pain and suffering from future medical care,

5

treatment, and services needed as a result of the injuries he suffered from the

6

September 2, 2015 surgical fire.

7

127.

B.J.P. has suffered significant mental pain and suffering from medical treatment

8

and medical procedures received post-acute recovery as a result of the injuries he

9

suffered from the September 2, 2015 surgical fire.

10

128.

B.J.P. will suffer significant mental pain and suffering from future medical care,

11

treatment, and services needed as a result of the injuries he suffered from the

12

September 2, 2015 surgical fire.

13

3. B.J.P.’S DISFIGUREMENTS, DEFORMITIES, AND PHYSIOLOGICAL

14

DAMAGES AND HARMS

15

129.

permanent physical disfigurements, deformities, and physiological changes.

16
17

As a result of the September 2, 2015 surgical fire, B.J.P. has significant and

130.

B.J.P. has suffered significant damage and harm due to the nature and extent of the

18

permanent physical disfigurements, deformities, and physiological changes as a

19

result of the September 2, 2015 surgical fire.

20

131.

B.J.P. will suffer significant damage and harm due to the nature and extent of the

21

permanent physical disfigurements, deformities, and physiological changes as a

22

result of the September 2, 2015 surgical fire.

23
24
FINDINGS OF FACT AND CONCLUSIONS OF
LAW -20.

1

132.

B.J.P.’s significant and permanent physical disfigurements, deformities, and

2

physiological changes as a result of the September 2, 2015 surgical fire include:

3



Extensive hypertrophic scarring and discoloration of the right forehead.

4



Extensive hypertrophic scarring and discoloration of the right upper and

5

lower eyelids.

6



Extensive hypertrophic scarring and discoloration of the right glabellar region.

7



Extensive hypertrophic scarring and discoloration of the right medial and

8

lateral canthi.

9



Extensive hypertrophic scarring and discoloration of the right cheek.

10



Extensive hypertrophic scarring and discoloration of the upper lip.

11



Extensive hypertrophic scarring and discoloration of the chin.

12



Extensive hypertrophic scarring and discoloration of the jaw line.



Hypertrophic scarring and discoloration of the left lower lid and malar region.



Large plaque like distribution of raised and discolored scarring on left check.



Thick, dense, and irregularly pigmented scars predominantly involving the right

13
14
15
16
17
18

hemiforehead.


Mechanical right upper lid ptosis.



Loss of right upper lid crease and transition zone between preseptal and

19
20
21

pretarsal regions.


Medial canthal tethering and scar banding.



Thick scar band contractures/webbing particularly to the right medial canthal

22
23

region, nose, lips and perioral regions with notable symmetric deviation.


Complete loss of right eyebrow.

24
FINDINGS OF FACT AND CONCLUSIONS OF
LAW -21.

1



Destruction of portions of nose.

2



Soft tissue atrophy and diminished volume of right periocular region (including

3

brow, forehead, eyelids, and upper cheek regions)

4



Deviation of the ipsilateral nars and columella, scarred irregularity of upper lip

5

centrally and laterally, was well as band-like constriction, narrowing the oral

6

aperture and obscuring on the right commissure.

7



Tearing and crusting of right eye.

8



Diminished right blinking.

9



Distortion of mouth and restriction of use and expression.

10



Loss of sweat glands in burned areas.

11



Loss of facial expression and distortion of facial expression.



Sensitivity to sunlight.



Loss of scalp skin.

12
13
14
15
16

4. B.J.P. LOSS OF A NORMAL LIFE (SUSTAINED AND PERCEPTIVE
DAMAGES AND HARMS)
133.

17
18
19
20
21

B.J.P. has and will suffer sustained and perceptive damages and harms as a result
of the injuries he received from the September 2, 2015 surgical fire.

134.

In addition to those damages during B.J.P.’s acute period of recovery and those
damages associated with treatment and medical procedures, B.J.P. has suffered
significant damage and harm due to the nature and extent of the injuries he received
from the September 2, 2015 surgical fire.

22
23
24
FINDINGS OF FACT AND CONCLUSIONS OF
LAW -22.

1

135.

In addition to those damages associated with future treatment and medical

2

procedures, B.J.P. will suffer significant damage and harm due to the nature and

3

extent of the injuries he received from the September 2, 2015 surgical fire.

4

136.

In addition to those damages during B.J.P.’s acute period of recovery and those

5

damages associated with treatment and medical procedures, B.P.J. has suffered

6

significant disability as a result of injuries he received from the September 2, 2015

7

surgical fire.

8

137.

procedures, B.J.P. will suffer significant disability as a result of injuries he received

9

from the September 2, 2015 surgical fire.

10
11

In addition to those damages associated with future treatment and medical

138.

In addition to those damages during B.J.P.’s acute period of recovery and those

12

damages associated with treatment and medical procedures, B.J.P. has suffered

13

significant loss of enjoyment of life as a result of injuries he received from the

14

September 2, 2015 surgical fire.

15

139.

In addition to those damages associated with future treatment and medical

16

procedures, B.J.P. will suffer significant loss of enjoyment of life as a result of

17

injuries he received from the September 2, 2015 surgical fire.

18

140.

In addition to those damages during B.J.P.’s acute period of recovery and those

19

damages associated with treatment and medical procedures, B.J.P. has suffered

20

significant physical pain and suffering as a result of injuries he received from the

21

September 2, 2015 surgical fire.

22
23
24
FINDINGS OF FACT AND CONCLUSIONS OF
LAW -23.

1

141.

In addition to those damages associated with future treatment and medical

2

procedures, B.J.P. will suffer significant physical pain and suffering as a result of

3

injuries he received from the September 2, 2015 surgical fire.

4

142.

In addition to those damages during B.J.P.’s acute period of recovery and those

5

damages associated with treatment and medical procedures, B.J.P. has suffered

6

significant mental pain and suffering as a result of injuries he received from the

7

September 2, 2015 surgical fire.

8

143.

procedures, B.J.P. will suffer significant mental pain and suffering as a result of

9

injuries he received from the September 2, 2015 surgical fire.

10
11

In addition to those damages associated with future treatment and medical

B.J.P.’S MOTHER AND FATHER’S DAMAGES AND HARM

12

1. ARMANI’S DAMAGES AND HARMS

13

144.

Armani has regularly contributed to the support of B.J.P. Armani has had

14

significant involvement in B.J.P.’s life, including but not limited to, emotional,

15

psychological, and financial support.

16

145.

17
18

loss of love and companionship with B.J.P.
146.

19
20

23

As a result of the September 2, 2015 surgical fire, Armani will suffer significant
loss of love and companionship with B.J.P.

147.

21
22

As a result of the September 2, 2015 surgical fire, Armani has suffered significant

As a result of the September 2, 2015 surgical fire, Armani has experienced injury
to the parent-child relationship.

148.

As a result of the September 2, 2015 surgical fire, Armani will experience injury to
the parent-child relationship.

24
FINDINGS OF FACT AND CONCLUSIONS OF
LAW -24.

1

149.

destruction of the parent-child relationship.

2
3

150.

151.

152.

153.

154.

155.

156.

157.

As a result of the September 2, 2015 surgical fire, Armani has suffered significant
emotional stress.

18
19

As a result of the September 2, 2015 surgical fire, Armani will experience
significant suffering.

16
17

As a result of the September 2, 2015 surgical fire, Armani has experienced
significant suffering.

14
15

As a result of the September 2, 2015 surgical fire, Armani will suffer significant
parental grief.

12
13

As a result of the September 2, 2015 surgical fire, Armani has suffered significant
parental grief.

10
11

As a result of the September 2, 2015 surgical fire, Armani will suffer significant
mental anguish.

8
9

As a result of the September 2, 2015 surgical fire, Armani has suffered significant
mental anguish.

6
7

As a result of the September 2, 2015 surgical fire, Armani will experience
destruction of the parent-child relationship.

4
5

As a result of the September 2, 2015 surgical fire, Armani has experienced

158.

As a result of the September 2, 2015 surgical fire, Armani will suffer significant
emotional stress.

20
21

2. TYLER’S DAMAGES AND HARMS

22

159.

Tyler has regularly contributed to the support of B.J.P.

23
24
FINDINGS OF FACT AND CONCLUSIONS OF
LAW -25.

1

160.

emotional, psychological, and financial support.

2
3

161.

162.

163.

164.

165.

166.

167.

168.

169.

22

As a result of the September 2, 2015 surgical fire, Tyler has suffered significant
parental grief.

20
21

As a result of the September 2, 2015 surgical fire, Tyler will suffer significant
mental anguish.

18
19

As a result of the September 2, 2015 surgical fire, Tyler has suffered significant
mental anguish.

16
17

As a result of the September 2, 2015 surgical fire, Tyler will experience destruction
of the parent-child relationship.

14
15

As a result of the September 2, 2015 surgical fire, Tyler has experienced destruction
of the parent-child relationship.

12
13

As a result of the September 2, 2015 surgical fire, Tyler will experience injury to
the parent-child relationship.

10
11

As a result of the September 2, 2015 surgical fire, Tyler has experienced injury to
the parent-child relationship.

8
9

As a result of the September 2, 2015 surgical fire, Tyler will suffer significant loss
of love and companionship with B.J.P.

6
7

As a result of the September 2, 2015 surgical fire, Tyler has suffered significant
loss of love and companionship with B.J.P.

4
5

Tyler has had significant involvement in B.J.P.’s life, including but not limited to,

170.

As a result of the September 2, 2015 surgical fire, Tyler will suffer significant
parental grief.

23
24
FINDINGS OF FACT AND CONCLUSIONS OF
LAW -26.

1

171.

suffering.

2
3

172.

173.

As a result of the September 2, 2015 surgical fire, Tyler has suffered significant
emotional stress.

6
7

As a result of the September 2, 2015 surgical fire, Tyler will experience significant
suffering.

4
5

As a result of the September 2, 2015 surgical fire, Tyler has experienced significant

174.

As a result of the September 2, 2015 surgical fire, Tyler will suffer significant
emotional stress.

8

II. CONCLUSIONS OF LAW

9
10

A. LIABILITY

11

1.

Plaintiffs’ claims are brought against the United States of America under the

12

Federal Tort Claims Act (“FTCA”) (28 U.S.C. § 267, et seq.) and 28 U.S.C. §

13

1346(b)(1). The Court has jurisdiction over the matter.

14

2.

of their employment with the United States of America caused damage to plaintiffs.

15
16

3.

Under the Federal Tort Claims Act, liability and damages are determined according
to the law of the place where the act or omission occurred.

17
18

Plaintiffs allege that the negligence of health care providers acting within the course

4.

The conduct at issues concerns the acts or omissions of health care providers acting

19

within the course of their employment with the United States of America with

20

respect to B.J.P.’s September 2, 2015 surgery at Madigan Army Medical Center, a

21

federal military treatment facility at Joint Base, Lewis-McCord, Washington. The

22

law to be applied in this case is the substantive law of Washington.

23
24
FINDINGS OF FACT AND CONCLUSIONS OF
LAW -27.

1

5.

RCW 7.70.030 provides, in part:

2

No award shall be made in any action or arbitration for damages for injury

3

as a result of health care which is provided after June 25, 1976, unless the

4

plaintiff establishes one or more of the following propositions:

5

(1) That injury resulted from the failure of a health care provider to follow
the accepted standard of care: . . .

6
7

6.

RCW 7.70.040 provides:

8

The following shall be the necessary elements of proof that injury resulted

9

from the failure of the health care provider to follow the accepted standard
of care:

10
11

(1) The health care provider failed to exercise that degree of care, skill, and

12

learning expected of a reasonably prudent health care provider at the

13

time in the profession or class to which he or she belongs, in the state

14

of Washington, acting in the same or similar circumstances;

15

(2) Such failure was a proximate cause of the injury complained of.

16

7.

The United States of America admits and the Court concludes that the United

17

States of America, through the health care providers acting within the course of

18

their employment with the United States of America, failed to exercise the degree

19

of care, skill, and learning expected of a reasonably prudent health care provider at

20

the time in the profession or class to which he or she belongs, in the state of

21

Washington, acting in the same or similar circumstances and that this failure was

22

the sole proximate cause of the September 2, 2015 surgical fire and the damages

23

proven as a result of the September 2, 2015 surgical fire.

24
FINDINGS OF FACT AND CONCLUSIONS OF
LAW -28.

1

B. DAMAGES
B.J.P.’S DAMAGES

2
3

8.

Under Washington law, the Court must determine the amount of money that will

4

reasonably and fairly compensate B.J.P. for such damage proximately caused by

5

the negligence of the United States of America.

6

1. B.J.P.’S ACUTE RECOVERY AND ACUTE RECOVERY RELATED DAMAGES

7

AND HARMS

8

9.

The Court concludes that the United States of America’s negligence proximately

9

caused B.J.P. general (noneconomic) damages during B.J.P.’s acute recovery from

10

the injuries sustained in the September 2, 2015 surgical fire. The Court considered

11

the following noneconomic damages elements: the nature and extent of the injuries,

12

the disability, the disfigurement, the loss and enjoyment of life experienced and

13

with reasonable probability to be experienced in the future, physical pain and

14

suffering experienced and with reasonable probability to be experienced in the

15

future, and mental pain and suffering and with reasonable probability to be

16

experienced in the future.

17

(noneconomic) damages for the period of B.J.P.’s acute recovery from injuries

18

sustained in the September 2, surgical fire in the amount of:

The Court concludes and awards B.J.P. general

19
20

$2,000,000.00__________________________________________.
\\\\

21
\\\
22
\\
23
\
24
FINDINGS OF FACT AND CONCLUSIONS OF
LAW -29.

1

2. B.J.P.’S TREATMENT AND TREATMENT RELATED DAMAGES AND

2

HARMS (POST ACUTE RECOVERY)

3

10.

The Court concludes that as a proximate cause of the United States of America’s

4

negligence, B.J.P. has received reasonable post-acute recovery medical treatment and

5

has undergone reasonable post-acute recovery medical procedures including surgery

6

as a result of the injuries he suffered from the September 2, 2015 surgical fire.

7

11.

The Court concludes that as a proximate cause of the United States of America’s

8

negligence, B.J.P. will require and/or receive necessary medical care, treatment,

9

and services in the future as a result of the injuries he suffered from the
September 2, 2015 surgical fire.

10
11

12.

The Court concludes that the United States of America’s negligence proximately

12

caused B.J.P. general (noneconomic) damages resulting from B.J.P.’s post-acute

13

recovery medical treatment to date and, with reasonable certainty, medical

14

treatment that will be received in the future. The Court concludes that the United

15

States of America’s negligence proximately caused B.J.P. general (noneconomic)

16

damages resulting from B.J.P.’s post-acute recovery medical procedures including

17

surgery received to date and, with reasonable certainty, medical procedures

18

including surgery that will be received in the future. The Court considered the

19

following noneconomic damages elements: the nature and extent of the injuries, the

20

disability, the disfigurement, the loss and enjoyment of life experienced and with

21

reasonable probability to be experienced in the future, physical pain and suffering

22

experienced and with reasonable probability to be experienced in the future, and

23

mental pain and suffering and with reasonable probability to be experienced in the

24
FINDINGS OF FACT AND CONCLUSIONS OF
LAW -30.

1

future. The Court concludes and awards B.J.P. general (noneconomic) damages

2

for B.J.P.’s post-acute recovery medical treatment and post-acute recovery medical

3

procedures including surgery in the amount of:

4
$3,000,000.00________________________________________.

5
6
7

13.

The United States of America admits that B.J.P. is entitled to economic damages

8

for future medical care in the amount of $303,162.00 and that this amount covers

9

the costs of B.J.P.’s life care plan as valued by plaintiffs’ expert economist,

10

William Brandt. The Court concludes and awards B.J.P. economic damages for

11

future medical care in the amount of: $303,162.00.

12

3. B.J.P.’S DISFIGUREMENTS, DEFORMITIES, AND PHYSIOLOGICAL

13

DAMAGES AND HARMS

14

14.

The Court concludes that as a proximate cause of the United States of America’s

15

negligence, B.J.P. has suffered permanent physical disfigurements, deformities,

16

and physiological changes.

17

15.

The Court concludes that as a proximate cause of the United States of America’s

18

negligence, B.J.P. has and will continue to suffer general (noneconomic) damages

19

for B.J.P.’s physical disfigurements, deformities, and physiological changes that

20

have existed following B.J.P.’s post-acute recovery and are in addition to any

21

damages specifically resulting from B.J.P.’s recovery from any treatment or

22

medical procedure. The Court considered the following noneconomic damages

23

elements: the disfigurements and the nature and extent of the disfigurements. The

24
FINDINGS OF FACT AND CONCLUSIONS OF
LAW -31.

1

Court concludes and awards B.J.P. general (noneconomic) damages for B.J.P.’s

2

physical disfigurements, deformities, and physiological changes that have existed

3

following B.J.P.’s post-acute recovery and are in addition to any damages

4

specifically resulting from B.J.P.’s recovery from any treatment or medical

5

procedure in the amount of:

6
7

$2,000,000.00________________________________________.

8
4. B.J.P. LOSS OF A NORMAL LIFE (SUSTAINED AND PERCEPTIVE
9
DAMAGES AND HARMS)
10
16. The Court concludes that as a proximate cause of the United States of America’s
11
negligence, B.J.P. has suffered and will suffer sustained and perceptive damages and
12
harms. These general (noneconomic) damages are in addition to any damage suffered
13
during B.J.P.’s acute recovery; any damages from B.J.P.’s treatment and medical
14
procedures; and any physical disfigurement, deformity, or physiological changes.
15
The Court considered the following noneconomic damages elements: the nature and
16
extent of the injuries, the disability, the loss of enjoyment of life, the physical pain
17
and suffering, and the mental pain and suffering. The Court concludes and awards
18
B.J.P. general (noneconomic) damages for B.J.P.’s sustained and perceptive damages
19
in addition to any damage suffered during B.J.P.’s acute recovery; any damages from
20
B.J.P.’s treatment and medical procedures; and any physical disfigurement,
21
deformity, or physiological changes in the amount of:
22
23
$2,000,000.00__________________________________.
24
FINDINGS OF FACT AND CONCLUSIONS OF
LAW -32.

1

B.J.P.’S MOTHER AND FATHER’S DAMAGES

2

17.

RCW 4.24.010 provides, in part:

3

A mother or father, or both, who has regularly contributed to the support of

4

his or her minor child, and the mother or father, or both, of a child on whom

5

either, or both, are dependent upon for support may maintain or join as a party

6

an action as plaintiff for the injury or death of the child.

7

***

8

In such an action, in addition to damages for medical, hospital, medication

9

expenses, and loss of services and support, damages may be recovered for the

10

loss of love and companionship of the child and for injury to the destruction of

11

the parent-child relationship in such amounts as, under all the circumstances of

12

the case, may be just.

13

Washington law recognizes that in an action by a mother or father brought under

14

RCW 4.24.010, the mother or father’s damages also include parental grief, mental

15

anguish, and suffering.

16
17

1. B.J.P.’S MOTHER’S DAMAGE (ARMANI SAUNDERS)
18.

18
19

The Court concludes that Armani Saunders (formerly Porter), has contributed to
the support of B.J.P. and may recover damages pursuant to RCW 4.24.010.

19.

The Court concludes that the United States of America’s negligence proximately

20

caused damage to Armani Saunders recoverable under RCW 4.24.010 and

21

concludes and awards Armani Saunders damages in the amount of:

22
23

$1,500,000.00____________________________________.

24
FINDINGS OF FACT AND CONCLUSIONS OF
LAW -33.

1
2

2. B.J.P.’S FATHER’S DAMAGE (TYLER PORTER)
20.

support of B.J.P. and may recover damages pursuant to RCW 4.24.010.

3
4

The Court concludes that Tyler Porter, father of B.J.P., has contributed to the

21.

The Court concludes that the United States of America’s negligence proximately

5

caused damage to Tyler Porter recoverable under RCW 4.24.010 and concludes

6

and awards Tyler Porter damages in the amount of:

7
8
9

$1,500,000.00_________________________________.
DATED this 18th day of June, 2019.

A

10
11

Ronald B. Leighton
United States District Judge

12

14

15

13

16
17
18
19
20
21
22
23
24
FINDINGS OF FACT AND CONCLUSIONS OF
LAW -34.