United States District Court, District of Columbia
December 2, 2002
KENNETH NEWBORN, ET AL., PLAINTIFFS,
UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: James Robertson, United States District Judge
It is ordered that the defendant's motion for summary judgment [#44] is
granted. An accompanying memorandum setting forth the reasons for the
order will be issued shortly.
SO ORDERED this 2nd day of December 2002.
Kenneth Ray Newborn II (Kenny) died on December 21, 1997 after
sickle cell crisis in an American military hospital in
Germany. His parents, who are noncommissioned U.S. Army officers,
brought this wrongful death and survival action under the Federal Tort
Claims Act alleging that a consulting physician at the Walter Reed Army
Medical Center failed to give appropriate advice to the treating
physicians in Germany. The government moved to dismiss or for summary
judgment, arguing that the Newborns did not establish the requisite
control and involvement of the physician at Walter Reed in Kenny's
treatment to make out a "headquarters claim," and that there was no
negligence on the part of the physician. The government's motion was
granted by an order issued December 2, 2002. This memorandum sets forth
the reasons for that order.
Kenny was diagnosed with sickle cell anemia when he was approximately
three years old. His parents received permission from the Army to take
him to Germany when they were posted there in 1996. Kenny received
routine outpatient care in Germany at the Würzburg Army Hospital
(WAH), where Dr. David Devenport was his primary care provider. Kenny
experienced no serious symptoms until a two-day hospitalization at WAH
for breathing problems on December 12, 1997. During this first
hospitalization at WAH, Dr. Ebena took part in Kenny's treatment and
reported that Kenny was "much improved," "very energetic" and "running
around" when he was released from the hospital. Def.'s Att. 7; Pl.'s Ex.
B at 91. On December 16, 1997 Kenny had a follow-up visit with Dr.
Devenport who reported that Kenny's oxygen saturation levels and
breathing had improved and that there were no signs of respiratory
distress. Pl.'s Ex. G (Devenport Decl. ¶ 8). On December 18, 1997,
however, Kenny was hospitalized again at WAH for abdominal pains. Dr.
Devenport treated Kenny on December 18, and then Dr. Klapprodt, the
on-call physician for December 19 and 20, attended to Kenny. On December
20, according to Dr. Klapprodt, Kenny appeared to be doing well in the
morning but took a turn for the worse later in the day. Dr. Klapprodt
then ordered a transfusion (given the next day) and transferred Kenny to
the pediatric intensive care unit at the University of Würzburg
Hospital, where he died.
Kenny's parents first filed an administrative claim asserting
negligence on the part of the doctors at WAH. After the Army rejected
that claim, they filed this suit, asserting for the first time that their
son's death was the result of negligent consultation provided to the
doctors in Germany by Dr. Margaret Merino, via telephone and e-mail, from
Walter Reed Army Medical Center in Washington, D.C.
It is undisputed that Dr. Merino provided consultation about Kenny's
treatment, but she was one of a number of doctors who were involved.
• On December 12, 1997, Dr. Devenport sent an email to Dr. Cooper,
an attending hematologist/oncologist at Walter Reed, briefly describing
the condition of a recently admitted patient with sickle cell disease
and focusing on the patient's abdominal pains and hypoxia despite
normal oxygen saturation levels. Dr. Devenport asked Dr. Cooper for
recommendations on treating the patient's "on and off pains at home."
Def.'s Att. 8.
• On December 14, Dr. Merino spoke with a doctor from WAH about home
pain medications for a child with sickle cell disease who was being
discharged. The caller from WAH mentioned that the child had low
oxygen saturations levels but said that the patient had been doing
well until recently, and that a transfer to Walter Reed was unnecessary.
Pl.'s Ex. M at 28, 45.
• On December 16, Dr. Merino answered Dr. Devenport's December 12
email, responding to Dr. Devenport's questions about Kenny's hypoxia
and what type of home medications would be appropriate for treating his
abdominal pains. Def.'s Att. 8.
• On December 17, Dr. Devenport thanked Dr. Merino by email for her
response and asked for recommendations on which military bases in the
U.S. would be best for sickle cell patients. Id. Dr. Merino also spoke
with Dr. Devenport on the telephone on December 17 or 18 about
eventually sending Kenny back to the United States. Pl.'s Ex. M at
• On December 18, Dr. Devenport transmitted a letter in support of
the Newborns' reassignment, asking that Kenny be sent to the United
States because his medical care was becoming increasingly difficult to
• On December 19, while Kenny was hospitalized, Dr. Devenport spoke
to Dr. Merino by telephone about managing Kenny's pain. Dr. Merino
recommended a PCA (Patient Controlled Analgesia) pump with Motrin, and
a transfusion as the next option if the pain did not improve. Id. at
58-73; Pl.'s Ex. G (Devenport Decl. ¶ 9-10). Dr. Merino asked
about the oxygen saturation levels and was told that there was no
evidence of lung disease on examination and that the child was looking
good. Pl.'s Ex. M at 64-67.
The Newborns' suit focused on this last call, and specifically on Dr.
Merino's recommendation of pain medication rather than an immediate
transfusion. The claim was that Dr. Merino's recommendation was
negligent because it did not adequately take into account Kenny's oxygen
The government argued, first, that the Newborns' case must be dismissed
because Dr. Merino lacked the "close management and control" of Kenny's
case necessary to maintain a "headquarters claim" under the FTCA.
Alternatively, the government argued, Dr. Merino owed no duty of care to
Kenny and, even if she did, plaintiffs could not establish a prima facie
case that a breach of that duty was the proximate cause of Kenny's
I. Headquarters claim
The FTCA's waiver of sovereign immunity does not apply to claims
"arising in a foreign country." 28 U.S.C. § 2680(k). Domestic acts
having operative effects in other countries are nevertheless addressable
under the FTCA, under a "headquarters theory," because the FTCA focuses
on the place of the government employee's act or omission rather than the
place of injury. Sami v. United States, 617 F.2d 755, 761-62 (D.C. Cir.
1979); Orlikow v. United States, 682 F. Supp. 77, 87 (D.D.C. 1988).
The government submits that this case should be dismissed for want of
FTCA jurisdiction because Dr. Merino's role in Kenny's treatment will not
support a headquarters claim. There is language in a decision of one
judge of this Court to the effect that a claim brought under the
headquarters theory must allege "close management and control" by an
official in the United States. See MacCaskill v. United States,
834 F. Supp. 14, 17 (D.D.C. 1993). Most courts, however, have assigned a
lower threshold to headquarters claims, recognizing them if the act of
negligence is alleged to have occurred in the United States. E.g., Sami,
617 F.2d at 761-62; Nurse v. United States, 226 F.3d 996, 1003 (9th Cir.
2000); Donahue v. U.S.
Dep't of Justice, 751 F. Supp. 45, 49-50
(S.D.N.Y. 1990). Here, plaintiffs' allegation that Dr. Merino's acts or
omissions within the United States caused Kenny's death was a sufficient
basis for the assertion of subject matter jurisdiction under the FTCA.
II. Duty of care/standard of care
The questions of whether Dr. Merino owed any duty of care to Kenny,
and, if so, what the appropriate standard of care was, appear to have
merged — or, perhaps, blurred — into a single question in the
District of Columbia. See In re Sealed Case, 67 F.3d 965, 968 (D.C. Cir.
1995), and the authorities cited therein.*fn1 There is some confusion
in the case law, moreover, as to whether the single, merged question is
one of law for the court, id.("The existence of . . . a legal duty owed
by the defendant to the plaintiff, is a question of law, to be determined
by the court.") (citing Zhou v. Jennifer Mall Restaurant, 534 A.2d 1268,
1274 (D.C. 1987); Restatement (Second) of Torts § 328B(b), (c)
(1963)), or one of fact for the jury, Washington v. Washington Hosp.
Ctr., 579 A.2d 177, 181-82 (D.C. 1990) (expert testimony required to
establish standard of care; proof was sufficient to create issue for the
jury). The government's first dispositive motion on the duty of care
question was denied because it was not clear beyond doubt that plaintiffs
could prove no set of facts that would entitle them to relief. Memorandum
of Feb. 26, 2002, at 7. After discovery and fuller briefing, however, it
became clear that the "precise circumstances," In re Sealed Case, 67
F.3d at 969, of Dr. Merino's role in Kenny Newborn's care neither
conferred nor imposed upon her the duty of deciding whether, and when, to
administer the blood transfusion that plaintiffs maintain would have
saved Kenny's life.
The existence vel non of a consulting doctor's duty to a patient and
the nature of that duty depends upon the degree and frequency of her
involvement with the patient's treatment. Substantial or frequent
consultation that amounts to virtual supervision of a patient's treatment
tends to give rise to a duty, whereas informal or occasional consultation
does not. Compare Sawh v. Schoen, 627 N.Y.S.2d 7, 9 (App.Div. 1995) (no
liability for consulting doctor who only participated in meetings to
discuss plaintiff's case and offered no advice on treatment), and Hill
v. Kokowsky, 463 N.W.2d 265, 267 (Mich. 1990) (no duty owed by consulting
doctor who did not have any contact with patient, did not see records
relating to the case, and did not know patient's name), with Gilinksy v.
Indelicato, 894 F. Supp. 86, 90-95 (E.D.N.Y. 1995) (consulting doctor who
served as a mentor to calling doctor and provided continuous and
substantial assistance practically serving as the ultimate decisionmaker
owed duty to patient), and Fernandez v. Admirand, 843 P.2d 354, 356, 361
(Nev. 1992) (consulting doctor had duty to patient because he saw and
treated patient and conducted exams of patient relied upon by other
Dr. Merino's involvement in Kenny's treatment falls somewhere close to
the informal advice end of that spectrum. Dr. Merino did not provide the
continuous type of consultation that made her practically
the ultimate decisionmaker in Kenny's treatment. The doctors at WAH
retained control over Kenny's treatment and did not look to Dr. Merino
for supervision. Walter Reed doctors had no supervisory role vis-a-vis
WAH doctors. There was no policy or protocol requiring WAH doctors to
consult with Walter Reed doctors. Dr. Smith explained that WAH doctors
regularly contact other doctors either at local German hospitals or U.S.
military hospitals for general advice, but that there is no written or
informal agreement for them to do so. Def.'s Att. 4 (Smith Decl. ¶
Dr. Merino stated that she did not "take over" Kenny's case; that Dr.
Devenport exercised independent judgment in treating Kenny; and that she
believed that he could handle treatment of a patient experiencing sickle
cell crisis. Pl.'s Ex. P (Merino Decl. ¶ 13); Ex. M at 60-61. Dr.
Devenport stated that his call to Dr. Merino on December 19 was to get a
second opinion, not to be directed on how to treat Kenny. Pl.'s Ex. B at
102-03. Dr. Merino spoke to Dr. Devenport only intermittently during
Kenny's hospitalization at WAH. Other WAH doctors were involved in
Kenny's treatment, and they did not look to Dr. Merino for guidance.
Def.'s Att. 3 (Ebena Decl. ¶ 3-5); Pl.'s Ex. J (Klapprodt Decl.
¶ 7). Dr. Klapprodt, the on-call physician from December 19 to
December 20 who was in charge of Kenny's treatment immediately before his
death, did not find it necessary to consult with Dr. Merino or any other
doctor at Walter Reed. Pl.'s Ex. J (Klapprodt Decl. ¶ 7).
All of these facts were undisputed. Plaintiffs nonetheless seized upon
Dr. Devenport's statement that he would have ordered a transfusion on
December 19 if Dr. Merino had recommended it. That statement does not
mean or suggest that Dr. Devenport had turned over control of his
patient's treatment to Dr. Merino. The context of the statement makes it
clear that Dr. Devenport was looking for a second opinion because he was
"plus or minus" on whether a transfusion was necessary. Pl.'s Ex. B at
36, 39-40, 102-03; Ex. G (Devenport Decl. ¶ 12). But Dr.
Devenport's uncertainty, or his willingness to accept a suggestion, did
not impose on Dr. Merino the duty to decide whether and when to order a
transfusion on Kenny. If it did, no specialist would undertake to advise
a primary care physician who is uncertain about how to deal with a
crisis, regardless of how impartial or unofficial her professional
relationship with the primary care physician was and regardless of how
infrequent or insubstantial the advice. Plaintiffs have cited no cases
supporting such a theory, and there appears to be none — perhaps
because other judges presented with such a theory have been as disturbed
as I was by its public policy implications.
III. Proximate cause
Even if Dr. Merino did have a duty to decide whether and when to
transfuse Kenny, plaintiffs neither adduced nor pointed to any admissible
evidence that her suggestion to medicate before transfusing was the
proximate cause of Kenny's death. There was no autopsy. Plaintiffs'
expert Dr. Gee opined that the failure to transfuse on December 19 was
more likely than not the cause of Kenny's death, but she also
acknowledged that, without an autopsy, her opinion was conjecture. Pl.'s
Ex. D at 4. And, like Dr. Merino, Dr. Gee offered alternative
explanations for Kenny's death, such as the discontinuation of the
medication prednisone on December 19 or 20, Pl.'s Ex. D at 4; Ex. K at
49-50; Ex. M at 85. Dr. Klapprodt assessed Kenny on the morning of
December 20 and decided at that time not to administer a
immediately, because Kenny looked well. Pl.'s Ex. J (Klapprodt Decl.
¶ 6). That undisputed fact also undercuts plaintiffs' assertion that
Dr. Merino's conduct was the proximate cause of Kenny's death, especially
considering Dr. Gee's opinion that Kenny "may have gotten better if [the
transfusion] was given earlier in the day." Pl.'s Ex. K at 51.