and Levitt testified that there was an obligation to acquaint Ms. Randall with all the risks associated with each mode of delivery and to provide options. Dr. Kashima, although not an obstetrician, stated that a Caesarean section should have been performed to prevent the risk of JLP. Tr. at 365. Dr. Kashima treats patients with JLP and knows the risk and causation associated with HPV and JLP better than any of the other expert witnesses who testified. Even the defendant's expert witness, Dr. Bruce Patsner, concedes that the connection between HPV and JLP was being reported in the medical literature in 1986. Tr. at 655. Dr. Patsner goes on to say that "there was no accepted standard for the way to counsel a patient with HPV at that point in time." Id. The absence of a standard method of treatment or procedure, however, does not relieve Walter Reed of an obligation to counsel Ms. Randall of the possible risks associated with HPV. While the Court determined that the plaintiff had not met her burden of proof as to whether a medical standard of obstetrical care existed in January 1987 in treating a pregnant woman with HPV, the Court does conclude that plaintiff has shown an obligation on behalf of Walter Reed to inform Ms. Randall as to the risks associated with a vaginal delivery.
With informed consent cases, causation occurs when the disclosure of significant risks, incidental to treatment, would have resulted in a decision against the proposed approach. This is an objective standard determined "in terms of what a prudent person in the patient's position would have decided if suitably informed of all perils bearing significance." Canterbury, 464 F.2d at 790-791. Dr. Kashima stated that, in his opinion as an expert witness, had a Caesarean section been performed, Kimberly Randall would not suffer from JLP. Tr. at 365. The Court heard testimony as to the nature and severity of JLP from Dr. Kashima. The Court learned that Kimberly Randall, only age seven, already has undergone 25 procedures to relieve the symptoms of JLP. A reasonable prudent person, in Ms. Randall's position, having been made aware of the risk and severity of JLP in an infant, would have decided in favor of Caesarean delivery. The Court also accepts Ms. Randall's testimony that she would have had a Caesarean section had she known of the risk of JLP to her child.
The Court awards reasonable medical costs in the amount of $ 78,720.63 which have been incurred. Pl. ex. 1. Recovery for future consequences is allowed in the District of Columbia if it is "reasonably certain" they will be incurred. Wilson v. Johns-Manville Sales Corp., 221 U.S. App. D.C. 337, 684 F.2d 111, 119 (D.C. Cir. 1982). The Court of Appeals had defined "reasonably certain" as "requiring plaintiffs to prove that it is more likely than not (a greater than 50% chance) that the projected consequence will occur." Id. Recovery of speculative damages for future consequences is not permitted. Id. Dr. Kashima testified that Kimberly Randall will require continued treatment to remove the lesions in her throat at least until early adolescence. Tr. at 375. After a person with JLP reaches puberty, the need for continued procedures diminishes. Dr. Kashima asserted that there could be several explanations for a reduction in the need for treatments. Dr. Kashima stated that the growth of the airway when a patient reaches puberty reduces the risk of blockage of the passage by the lesions. Tr. at 376. Dr. Kashima also added that teenage patients appear unwilling to continue treatment when the need and benefits of the procedure does not appear to outweigh the discomfort. Id. Kimberly Randall is seven years old. The Court finds that $ 24,000 in foreseeable medical expenses will be incurred this year, and for the next seven years. Pl. ex. 1.; Plaintiff's Findings of Fact and Conclusions of Law at 31-32, P 71; Tr. at 376-377 (Eight years at $ 24,000 per annum for a total of $ 192,000). While Dr. Kashima testified that JLP is an incurable disease, Dr. Kashima stated that Kimberly Randall might suffer from continued hoarseness and require more procedures but noted that it is "difficult to predict." Tr. at 370-77. Any damages for medical expenses after Kimberly Randall reaches the age of fourteen would be speculative in nature. Wilson, 684 F.2d at 119.
The Court finds that damages for the pain and suffering of Kimberly Randall are appropriate in the amount of $ 500,000. The procedure to treat the growths in Kimberly Randall's throat is an operation which requires general anesthesia. Tr. at 367. The laser surgery is performed through the oral cavity to remove the growths on the larynx. Id. The rate of Kimberly Randall's surgeries is every two months. Tr. at 370. JLP is an incurable disease despite the reduced risk of obstruction after the patient reaches puberty. Tr. at 372.
Aug. 2 1994
Wherefore, upon the evidence adduced at trial, the proposed findings of fact and conclusions of law submitted by the parties' counsel, and the entire record herein, and for the reasons set forth in the accompanying Memorandum-Opinion of this same date, it is by the Court this 2 day of August, 1994,
ORDERED that judgment be, and hereby is, entered for the plaintiff, Kimberly Randall; and it is further
ORDERED that the defendant tender to the plaintiff the sum of $ 770,720.63 in compensatory damages; and it is further
ORDERED that the award, after the payment of legal fees associated with this trial and the $ 78,720.63 for medical expenses already incurred, be, and hereby is, held in trust for the medical expenses of Kimberly Randall until she reaches the age of twenty-one years when the remainder of the trust shall be relinquished to Kimberly Randall; and it is further
ORDERED that J. Gordon Forester, Esq. of Greenstein, DeLorme & Luchs, 1620 L Street N.W., Suite 900, Washington, D.C. 20036 be, and hereby is, appointed as trustee of the trust.