The opinion of the court was delivered by: James Robertson, United States District Judge
Kenneth Ray Newborn II (Kenny) died on December 21, 1997 after treatment for 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.
ù 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.
ù 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.
ù 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.
ù 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 56-57.
ù 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 handle overseas.
ù 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 saturation levels.
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 ...