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NEWBORN v. U.S.
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.
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 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 ...
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