The opinion of the court was delivered by: OLIVER GASCH
Jacqueline Randall alleges malpractice and an absence of informed consent in the care and treatment during the pregnancy and birth of her daughter, Kimberly Randall.
Kimberly Randall was born on January 19, 1987, at Walter Reed Army Hospital ("Walter Reed"). Ms. Randall was treated at Walter Reed as a dependent of James Randall, her husband, who was then an active member of the United States Army. This Court has jurisdiction under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671, et seq. After a bench trial on December 14-17, 1993, this Court instructed both parties to file proposed findings of fact and conclusions of law. This memorandum is issued stating the Court's findings of fact and conclusions of law.
1. Ms. Randall was an enlisted soldier in the Army. Trial Transcript ("Tr.") at 26. Ms. Randall became pregnant with Kimberly Randall in April, 1986. Tr. at 30. As a result of her pregnancy, Ms. Randall applied for and was granted a discharge from the Army on July 18, 1986. Tr. at 27. The discharge process for a female soldier includes a pap smear test which was administered to Ms. Randall. Tr. at 31.
2. Ms. Randall testified that she was informed by a clerk, and not medical personnel from the obstetrics-gynecology ("OB-GYN") clinic, that her pap smear had come back "positive." Tr. at 31. The pap smear results indicated Cervical Intraepithelial Neoplasia-1 ("CIN-1").
As a result of working on the OB-GYN ward at Walter Reed, Ms. Randall had some knowledge of the complaints made and care received by patients treated on the OB-GYN ward. Tr. at 69-70. Ms. Randall testified that she was "distraught" because she believed CIN-1 to be the first stage of cancer. Tr. at 31-32.
3. On July 31, 1986, a colposcopic examination
was performed to follow up the results of the pap smear. Tr. at 32. The exam was administered in the colposcopy clinic at Walter Reed. Ms. Randall stated that Dr. Purcell, the physician who performed the exam, said he saw a mole-like growth. Id. Ms. Randall testified she was not informed of the results of the colposcopic examination until sometime in 1987. Tr. at 33. Ms. Randall offered no testimony that she attempted to learn the results of the exam despite her distraught nature and belief that she had a pre-cancerous condition. Id.
4. The medical records for the July 31, 1986, colposcopic exam reflect: "Few mildly dysplastic
cells (CIN-1)." Joint ex. 1, at 4. Dr. Donald Levitt, expert medical witness for plaintiff, testified that there are reasons for dysplasia other than the Human Papilloma Virus ("HPV").
6. Dr. Cheryl Conetsco performed the October 3rd colposopic exam of Ms. Randall. Tr. at 497. Dr. Conetsco testified that she observed white epithelium on Ms. Randall's cervix which was noted in the medical records. Joint ex. 1, at 10. Tr. at 498. Dr. Conetsco stated that the white epithelium could represent "low grade dysplasia, it may represent HPV, it may represent immature metaplasia." Tr. at 498.
7. Dr. Conetsco asserted that the reason a biopsy was not performed on the cervix was because Ms. Randall was pregnant. Tr. at 499. Dr. Conetsco testified that she would have noted any condyloma or any growths appearing on a patient's genitalia. Tr. at 500. Ms. Randall testified that near the time of the October colposcopic exam, small pink growths or bumps began to appear on her genitalia. Tr. at 36.
8. In the colposcopy clinic at Walter Reed, a group of doctors review the results of colposcopic exams and recommend treatment. Tr. at 472-73, 501-02. Dr. Philippe Girerd testified that the recommended treatment of the physicians who reviewed the results of Ms. Randall's second colposcopy was to return three months postpartum for a follow-up exam. Joint ex. 1, at 10. Tr. at 473. Dr. Girerd stated that the reasoning for the recommendation was that the low grade CIN-1 did not appear as if it was about to become cancerous. Tr. at 473. Dr. Girerd asserted that this treatment was standard medical practice. Tr. at 474. Dr. Levitt admitted that koilocytes can be caused by things other than condyloma. Tr. at 289.
9. Ms. Randall testified that while pregnant with Kimberly she was seen by several different interns and residents during her visits to the OB clinic at Walter Reed. Tr. at 35. Ms. Randall did not have a regular OB physician. Id. At the Walter Reed OB clinic, patients were attended to by the doctor who was on duty at the date and time of their visits. Tr. at 34-35. Most of the prenatal visits were "tummy checks" which did not include a full exam of the genital area.
10. Ms. Randall said that her routine OB visits included only two vaginal exams; one at six months and another during the last trimester. Tr. at 35-36. These vaginal OB exams are distinct from the two colposcopic exams which were administered in the GYN clinic. The GYN and OB clinics at Walter Reed are physically separate and keep separate records. Tr. at 342-45.
11. In October 1986, Ms. Randall asserts that small pink stems or growths began to appear on her genital area. Tr. at 36. Ms. Randall testified that these growths were irritated from friction with her underwear and caused pain during intercourse. Tr. at 37. Ms. Randall stated that in late October, "one very large" growth started coming out of her vagina causing her to end sexual intercourse with her husband because of the pain. Id.
12. After complaining to Dorothy Jarry, her grandmother and a retired practical nurse, Ms. Randall testified that she was examined by her grandmother in late October. Tr. at 38-40, 75. Mrs. Jarry testified that in the middle of October she examined her granddaughter's vagina and saw several raised places which formed a cluster. Tr. at 307-308. Mrs. Jarry stated that she was concerned for the baby because these areas appeared malignant. Tr. at 308-09. Mrs. Jarry also testified that her granddaughter informed the Army doctors of these growths. Tr. at 309.
13. Mr. James Randall, Kimberly's father, testified that the warts appeared on Ms. Randall in early October, 1986. Tr. at 168. Mr. Randall also stated that Ms. Randall complained of pain during intercourse. Tr. at 170-71. Mr. Randall stated that he continued to have sexual relations with Ms. Randall despite the presence of dime-size warts on Ms. Randall's vagina and entire genital region. Tr. at 171-72. The examination of Ms. Randall by her grandmother is corroborated by Mr. Randall's testimony. Tr. at 173. Mr. Randall is separated but not divorced from Ms. Randall. Tr. at 166. The Court finds Mr. Randall's testimony less than completely credible.
14. In late October, Ms. Randall contends that she informed Dr. Brian O'Connor about these growths.
Tr. at 38. Ms. Randall asserts that Dr. O'Connor said that she should be seen in the colposcopy clinic and that Ms. Randall responded that she was not supposed to go back until after the birth of her child. Id. Ms. Randall testified that Dr. O'Connor said: "Well just do what they tell you." Id.
15. Ms. Randall's obstetrical records show that Dr. O'Connor saw Ms. Randall for a routine obstetrical visit on November 10, 1986. Joint ex. 1, at 12. Dr. O'Connor performed a "tummy check" which does not include an examination of the genital area. Tr. at 525. Dr. O'Connor replied that if Ms. Randall had complained of wart-like growths, he would have examined her and noted this exam on the OB records. Tr. at 525.
16. Dr. O'Connor admitted, on being questioned by Ms. Randall's counsel, that he had no personal memory of any statements Ms. Randall may have made but he also repeated that he would have noted any complaints in the medical records. Tr. at 553. Dr. O'Connor denied that he would have instructed a patient "to do whatever the colpo clinic told her" if a patient were complaining of genital growths. Tr. at 526. Dr. O'Connor testified that he could recognize diagnose and treat condyloma. Tr. at 538. Dr. O'Connor treated Ms. Randall in the GYN clinic for condyloma with podophyllin on July 22, July 29 and August 5, 1987. Joint ex. 1, at 101-03. Tr. at 539-40.
17. Dr. Harry Collins testified that he attended Ms. Randall on November 24, 1986, for an obstetrical visit. Tr. at 518. This visit did not include an examination of the genital area. Tr. at 519. The medical record of the visit states "all well" and reflects no evidence of condyloma. Joint ex. 1, at 15. Dr. Collins contends that he would have examined Ms. Randall if she were complaining of lesions in her vagina. Tr. at 520.
19. Ms. Randall experienced a false labor on December 31, 1986. Tr. at 40. Ms. Randall again was attended by Dr. Puckett. Tr. at 321. Dr. Puckett was resident in OB-GYN at Walter Reed when Ms. Randall presented for false labor. Id. Ms. Randall contends she was asked by Dr. Puckett, who appeared to be a young doctor, what these "bumps" were. Tr. at 40. Dr. Puckett directly refuted asking such a question. Tr. at 335-36. Dr. Puckett testified that he was able to diagnose condyloma. Tr. at 336. Dr. Puckett said that he had treated "a lot" of sailors with genital condyloma during his fourth year dermatology rotation at ...