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McMullin v. United States

October 19, 2007


The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge


At the conclusion of the trial the Court made certain findings of fact and stated certain conclusions of law. Those findings and conclusions remain in effect unless changed or modified by the following supplementary findings and conclusions:


1. Garret McMullin was a child born with anatomic heart defects which required two shunt surgeries to properly fix the congenitally altered anatomy of his heart which was not capable, at birth, of properly pumping blood to his lungs. The first surgery was performed at age one week; the second at age thirteen months. A third surgery was also contemplated to deal with this problem. Garret's congenital heart defects and the corrective surgeries required to ameliorate same placed him at a much increased risk of bacterial endocarditis than the general pediatric population -- a circumstance well known by pediatricians. It was also well known to pediatricians that undiagnosed and untreated infective endocarditis can be fatal in a matter of days or weeks.

2. Dr. Buxton was made aware of the details of Garret McMullin's significant medical history through the Heart Book presented to him by Dawn McMullin. Dr. Buxton agreed to be Garret's primary care physician and to keep in touch with Arkansas Children's Hospital as needed.

3. On February 4, 2002, Garret McMullin was seen by Dr. Buxton with one day of nausea and vomiting and fever to 100.3 degrees for two days. Dr. Buxton did not order any laboratory testing or antibiotics, opining that Garret was suffering from a gastrointestinal virus.

4. Dawn McMullin made telephone calls on February 6, 2002, or February 8, 2002, or both, to Dr. Buxton's office nursing staff. The substance of those conversations was as Dawn McMullin described in her testimony. .

5. On February 8, 2002, the nurse made an appointment for Dawn McMullin to bring Garret in to see Dr. Buxton on February 11, 2002.

6. On February 11, 2002, Garret McMullin was again seen by Dr. Buxton. No blood work or other laboratory testing was done or ordered by Dr. Buxton.

7. On February 14, 2002, Dawn McMullin contacted Dr. Buxton's office staff seeking to come in for further evaluation and treatment for her very ill son, but was told by the nurse that it was not necessary.

8. On February 17, 2002, Garret McMullin was taken to the emergency room at Randolph County Medical Center, the staff of which concluded that he was in serious condition and should be immediately transferred by ambulance to Arkansas Children's Hospital. He arrived at Arkansas Children's Hospital in the early morning hours of February 18, 2002, and was promptly examined, tested and evaluated.

9. On February 19, 2002, a large vegetative growing on the tricuspid valve of the heart was removed by open heart surgery. This vegetation threw off infective emboli into the blood stream some of which lodged in the middle cerebral artery causing a mycotic aneurysm which was discovered by a CT scan of the brain.

10. On February 20, 2002, Garret McMullin regained consciousness after surgery and appeared to be recovering nicely. Later in the day the mycotic aneurysm began to bleed and Garret suffered a seizure and lost consciousness. He never recovered consciousness.

11. The early morning of February 25, 2002, the aneurysm ruptured causing massive cerebral bleeding. Upon medical advice, the decision was made to remove life support. Garret McMullin died in the arms of his grandmother.

12. The parties have stipulated that the medical bills amount to $102,193.85. The parties have also stipulated that the amount billed by Medicaid was $19,045.92


The Court finds that the standard of care in this case would have required Dr. Buxton, when presented with a child with the history and medical condition of Garret McMullin, to order laboratory tests, including a blood culture, at least by the time of the visit on February 11, 2002. The blood culture, among other testing, would have indicated endocarditis, whereupon, Dr. Buxton should have promptly transferred Garret to Arkansas Children's Hospital. After comparing the clinical notes dated February 4th and 11th, the Court finds that on February 11th, Dr. Buxton had no credible basis for finding that the child was "getting better." Garret's fever had worsened (even with Tylenol), his respiratory rate and pulse had increased, and he had developed redness in his throat. There was no justification for not ordering lab work, particularly a blood culture. Furthermore, the Court finds that the standard of care would have required Dr. Buxton's office nurse to instruct Dawn McMullin to bring Garret McMullin in to see Dr. Buxton when she called the office on either February 6th or 8th describing Garret's symptoms and condition.

The Court credits the testimony of Dr. Shore as to the standard of care. Indeed, Defendant offered no expert or other opinion challenging this standard. Dr. Shore testified that if the phone calls on February 6th and 8th took place, as the Plaintiffs describe, there was a violation of the standard of care. Additionally, Dr. Shore testified that Dr. Buxton's actions on February 11, 2002, fell below both the acceptable national standard of care, and the acceptable standard of care in Pocahontas, Arkansas, as applied to a child presenting with the medical history and condition of Garret McMullin.


The Court finds that Dr. Buxton's failure to perform to the appropriate standard of care constituted medical malpractice and was a proximate cause of the death of Garret McMullin. Dr. Shore testified that Dr. Buxton's medical malpractice caused the death of Garret McMullin. Dr. Shore also testified that had proper therapy been commenced even as late as February 11th and continued through the 13th, Garret McMullin would more likely than not recovered. The Court agrees.


The Wrongful Death Claims

The Defendant argues that the Arkansas Medical Malpractice Act prevents Garret's parents, the Plaintiffs here, from recovering the benefits ordinarily available under Arkansas' Wrongful Death Statute. More particularly Defendant argues:

Arkansas' Medical Malpractice Act provides for compensation for the decedent. It does not provide compensation for others who suffered loss as a result of any death which resulted from the malpractice. Plaintiffs allege losses under the Wrongful Death Statute for their pain and suffering resulting from defendant's violation of the Arkansas Medical Malpractice Act. The Medical Malpractice Act makes no provision for recovery for any party other than the party injured as a result of the malpractice. T precluded from receiving any damages for their suffering.

In Davis v. Parham, 362 Ark. 352, 361-362, 208 S.W.3d 162, 168 (2005)[,] the Arkansas Supreme Court reiterated earlier cases which, in the context of resolving statute of limitations issues, addressed a basic principle regarding the interplay between the Medical Malpractice Act and the Wrongful Death Act. The Court, quoting an earlier case, stated:

"Furthermore, we stated in Scarlett, supra:

We recognized in Ruffins that the Medical Malpractice Act was enacted long after the wrongful death statute was enacted, and that it expressly states that it applies to all causes of action for medical injury and that it supersedes any inconsistent provision of law. We have consistently applied this reasoning in the cases following Ruffins. We adhere to this position, and decline to overrule these cases.

Scarlett, 328 Ark. At 675, 944 S.W.2d at 547."

Defendant recognizes that the issue [of] whether the damages provision of the Medical Malpractice Act vitiates the Wrongful Death Statute has been presented to various circuit courts in Arkansas and to federal district courts in Arkansas.

Rulings in the Arkansas circuit courts have been inconsistent. The Arkansas Supreme Court has not ruled on the issue.

Defendants' Brief, pp. 3-4.

The Court agrees that there has been some inconsistency in the rulings of the state circuit courts on this issue. However, as noted by Plaintiffs, federal district court decisions in both the Eastern and Western Districts are in agreement in squarely holding that damages recoverable by beneficiaries under the Wrongful Death Act are not "inconsistent" with the Medical Malpractice Act which has been held to supercede only "any inconsistent provision of law." See Judge Bill Wilson's decision in Meredith v. Buchanan, 101 F. Supp. 2d 764 (E.D. Ark. 2000) and Judge Franklin Waters' decision in Foncannon v. Phico Insurance Co., 104 F. Supp. 2d 1091 (W.D. Ark. 2000).

The Court agrees with Judge Wilson's statement in Meredith that, "Repeal by implication is not a favored device in our interpretation of statutes . . ." and with his holding in that case:

The Court is persuaded beyond per adventure that none of those involved in the enactment of the Medical Malpractice Act ever had any notion that it would deprive widows, widowers, and orphans of their claims under the Wrongful Death Act. Once one reaches this conclusion, the question becomes whether the General Assembly repealed those damages in such clear language that we cannot look to other precedent, or rely upon common sense, to determine legislative intent-or, more precisely, lack of intent. This Court doesn't think so.

This Court believes that the Arkansas Supreme Court would find that the damage provisions of the Medical Malpractice Act and the Wrongful Death Act damages for beneficiaries are consistent and complementary. Therefore, Defendants' motions for partial summary judgment denied. 101 F. Supp.2d at 769.

Judge Waters agreed with the conclusion reached by Judge Wilson "in his lucid and well-reasoned opinion." Foncannon, 104 F. Supp. 2d at 1096 n.4. He also noted the Arkansas Supreme Court's decision in HCA Health Services of Midwest, Inc. v. National Bank of Commerce, 294 Ark. 525, 745 S.W. 2d 120 (1998) which dismissed a similar argument that, because of the Medical Malpractice Act, punitive damages should not be recoverable since such damages are not included in the damages section of that Act. Foncannon, 104 F. Supp. 2d at 1096. Judge Waters further observed:

As plaintiffs accurately point out, adopting defendants' argument would produce truly absurd results. The Arkansas Wrongful Death Act would allow recovery of damages by the specified beneficiaries in all cases of wrongful death except those involved a wrongful death resulting from a medical injury.

We cannot imagine that the legislature would intend such absurd results or that the Arkansas courts would construe the Medical ...

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