Asan v Truk [1989] FMCSC 1; 4 FSM Intrm. 051 (Truk S. Ct. 1989) (12 May 1989)

4 FSM Intrm. 51 (Truk S. Ct. 1989)

TRUK STATE COURT
TRIAL DIVISION

TSC CIVIL ACTION NO. 59-86

SAICHY ASAN,
Personal Representative of MARSENINA ASAN, deceased,
on behalf of himself, his wife,
and NORENZO MANTY, only child of MARSENINA ASAN
Plaintiff

V

STATE OF TRUK
Defendant

BEFORE: The Honorable Keske S. Marar,Associate Justice, Truk State Court

APPEARANCES: For the Plaintiff: R. Barrie Michelsen; For the Defendant: Jeanne Rayphand, Attorney General

OPINION: May 12, 1989

HEADNOTES

Torts - Negligence
The standard of care for doctors at the Truk State hospital is that they are to exercise professional judgment in the attempt to diagnose the illness of the patient, and then, consistent with available facilities and supplies, act on that diagnosis. Asan v. Truk, 4 FSM Intrm. 51, 56 (Truk S. Ct. Tr. 1989).

Torts - Negligence
In a case where a patient died following the normal delivery of her child, where the evidence fails to show any demonstrable effort at diagnosis and no treatment as a result of diagnosis, the standard of care expected of a doctor at the Truk State Hospital was not met and the evidence proves negligence. Asan v. Truk, 4 FSM Intrm. 51, 56 (Truk S. Ct. Tr. 1989)

Torts - Damages
In a wrongful death claim in Truk State, where the total pecuniary estimated loss was $15,288 and where an infant child lost his mother, there should be a finding for the plaintiff in the maximum amount allowed by law, $50,000. Asan v. Truk, 4 FSM Intrm. 51, 56-57 (Truk S. Ct. Tr. 1989)

COURT'S OPINION

KESKE S. MARAR, Associate Justice:

Saichy Asan brought this wrongful death action pursuant to 6 TTC 202^[1] on behalf of himself, his wife, and his grandson. The allegation of the complaint are that Marsenina Asan, daughter of Mr. and Mrs. Asan, died as a result of the negligence of the attending physician after the normal and healthy birth of her son Norenzo Manty.

The evidence provided at trial proved that on March 16, 1986, Marsenina Asan, twenty seven years old, was admitted to the hospital in labor. She had a normal delivery, and her son (this was her first pregnancy) was born at six thirty in the evening. At approximately 8 p.m. it was discovered that she was bleeding. Nursing notes indicated that at 8:15 Dr. Larsen was notified and that the patient's blood pressure was 70/40. The nurse in attendance, Merced Rold, felt this blood pressure was "serious".

Dr. Larsen's doctor's orders can be summarized as follows: Sometime prior to 9:45 p.m., (most likely 8:45 if Nurse Rold's notes are correct), he ordered the patient on an intravenous solution ("an IV") with Pitocin. At 9:45 he ordered a blood cross-match done, with an order to give patient 3 units of blood as soon as possible. Fifteen minutes later, he wrote that her blood pressure had risen to 90/70 and that the bleeding had "stopped." His next entry was at 11:45 where he noted that the patient began bleeding again, was given more blood and more Pitocin, and expired at 11:40 p.m.

Testifying by deposition was Dr. R. L. Anderson. Dr. Anderson is currently a full-time member of the faculty of the University of California, San Francisco as an assistant clinical professor. He has spent the vast part of his career in the fields of obstetrics and gynecology. His experience includes being the only obstetrician at a small (15 beds) isolated hospital in the desert of Southern California, approximately 60 miles from Palm Springs, and also at the U.S. Naval Hospital in Naples, Italy. The hospital had about 70 beds. More complicated cases would have to be referred to Germany by air.

Dr. Anderson, as the expert for the plaintiff, felt the record in this case showed negligence that lead to the death of the patient. He explained that Pitocin "is a hormone which acts directly on the uterine muscles to cause it to contract, and in an attempt to control bleeding, that is essentially the first step that should be taken." Deposition at 17. However he also stated the next step would be;

“To second, look at the cervix to see if there were lacerations of the cervix which might be accounting for the bleeding. I also previously stated that I doubt lacerations of the cervix would have been found, but at least should be checked for. The uterine cavity should be explored with a gloved hand, if possible, or with a curette, if it's contracted down too much, to attempt to find any retained fragments of placenta which might be accounting for the tendency toward uterine atony. This essentially -- patient was treated in a -- what you might call a shotgun manner with some standard treatments without any attempt being made to find out what the etiology was for her problem.”

By 9:00, according to the nursing notes, the patient was "pale and moving around in bed moaning."

Dr. Anderson said that:

“Moaning and thrashing around or moving around the bed is just the body's response, trying to activate or get more blood back into the system. It's more of a borderline end stage type reaction.”

Q. “End stage?”

A. “Well, the next step after that is where they become comatose or unresponsive.”

Deposition at 21-22.

Dr. Anderson commented on Dr. Larsen's 9:45 orders for a cross-match and three unites of blood by stating that:

“I think that as far as orders, they are adequate. But in a patient that's going into shock, you have got to actively look for what is the source of bleeding. Or if you can't do that, if you don't know how to do that, you ask for help, for someone to come help you. And if you are surgically oriented, as I believe this doctor was,^[2] you call for the anesthesia people to come in because surgical exploration is one of the solutions that may be required. But you can't wait until after it's all over

to decide to call people in when you have an isolated place with nobody in the hospital. So I think more is needed to be done than just writing orders for blood.”

Deposition at 26-27.

Based upon these finds of deficiencies, an examination of the standard to which doctors at the Truk State hospital are to be measured must be undertaken. Dr. Anderson commented on this issue as follows:

“I think no matter where this patient is, that any physician has got to do something to try to stop the bleeding. And to be able to stop the bleeding, you've got to find out what's causing the bleeding.

So first, [the] standard of care for any physician, anywhere, in any hospital, with any degree of specialization or any training much beyond the second or third year of medical school, would be to, one, diagnose what's the problem; two, what can be done about the problem. And do something about the problem, or call somebody who can if you can't. And not just stand there for a period of three hours and watch a patient desanguinate.”

Q. “Do these nursing notes or doctor's notes indicate to you that any diagnosis was undertaken at all regarding the bleeding?”

A. “There is nothing here to imply that was ever thought of or any definite diagnosis was ever made except that she was bleeding.”

Q. “What would have been the appropriate management of this hemorrhage in 1985?”

A. “Standard management of hemorrhage at any time in any place is to, one, find out what the cause is.”

“As I mentioned before, that means you've got to examine the patient. You need to look inside the vagina. You have got to make sure there is not a vaginal or cervical laceration which are possible, but unlikely in this patient. You then have to do something to evaluate the uterus as the site of the bleeding. That may be dong a curettage, may be doing an intrauterine exploration with your hand, if possible. You've got to do something to find out where the bleeding is coming from. If the bleeding is coming from inside the uterus, and you can't do anything from below to either confirm that or correct it, then you've got to do something to stop the bleeding. And that can be done in several ways. The simplest, as I said before, would be to do a manual attempt at removing anything that might be retained.

If you can't do that, the next thing which works, and I've had to do this a number of times when I was out in isolated places, is to do what is called packing the uterus. And this is just taking a roll of any kind of gauze, preferably sterile, but infection's the least of this lady's problem, and packing inside of the uterus with this gauze as tightly as possible to give the uterus something to squeeze down on which will act as an obstruction to bleeding.

At the same time you do that, you call for all of your backup facilities you have, meaning anesthesia, additional nursing, additional physicians, laboratory technicians, all of the support facilities which hospitals are supposed to offer patients in order to mobilize those people and to do something. If you do pack it and it doesn't work, or you can't pack or you have nothing to pack with, then you need to do a surgical exploration of the abdomen.

There are certain things. Anybody who knows the anatomy in the pelvic area can go and find what's called hypogastric arteries. Right where it comes off, just below the bifurcation of the aorta, and this can be tied off, hypogastric artery ligation, which would be a standard procedure of any trained surgeon.

If, one, you can't do that or, two, it doesn't work, then doing a hysterectomy as a means of stopping the bleeding from the uterus would be the last method that could be attempted.”

Q. “Do you have an opinion as to a reasonable medical certainty as to the result of failing to take the steps that you just outlined for us?”

A. “I think in any patient whose hemorrhaging after delivery and then goes into shock, who you can get nothing back into the system as far as blood and you do nothing to stop the hemorrhaging, post-partum hemorrhage unless treated and stopped is going to be fatal.”

The state's position was that the fact that nurse Rold's notes only reflected three visits by Dr. Larsen to this patient does not mean that the doctor did not visit at other time. Furthermore, the state has pointed out that a blood bank cannot be maintained at the hospital because of the difficulty of storing and the relatively small size of the hospital. Both statements are true. However, the evidence presented is not that the patient died because of inattention or lack of blood bank capabilities. The patient died because of the failure to take what seems to be rather elemental steps to attempt to diagnose, and then treat, the problem that nurse Rold considered "serious" as early as 8:00 p.m.

The standard of care for doctors at the Truk State hospital is that they are to exercise professional judgment in the attempt to diagnose the illness of the patient, and then, consistent with available facilities and supplies, act on that diagnosis. The evidence in this case indicates the absence of any diagnosis; it fails to show any attempt at treatment of the problem rather than some preliminary treatment of the symptoms. Because there was not demonstrable effort at diagnosis, and no treatment as a result of diagnosis, the standard care expected of a doctor at the Truk State hospital was not met. The evidence proves negligence.

The next issue is damages. The plaintiff had $1500 out-of-pocket expenses. He also stated that he provided the sole support of his orphaned grandchild, and that this support amounted to $30 per week. While such a figure might be reasonable in some contexts, it is not here. Mr. Asan testified that his salary is $125 bi-weekly, and he supports 9 people, including his wife and himself on that income. It cannot be possible that such a large percentage of income would be spent on the youngest resident of the household. A more realistic, if rough figure, is to say that currently one-ninth of the income, or $26, is spent on Norenzo bi-weekly, every five years, as the older people move out, and the child's needs become greater, this figure will increase, so the following figures seem fair to adopt: age 0-5, $26 bi-weekly, or $3380; age 6-10, $31 bi-weekly or $4030; age 11-15, $36 bi-weekly or $4680; age 16-18, $41 bi-weekly or $3198. This is a total pecuniary estimated loss of $15,288.

The most important loss is that to Norenzo. He has not just untimely lost his mother, he never will know her. As Chief Justice Burnett pointed out in the case of a death of a mother, "[r]eal damages are impossible to assess" in such a case. Wilson v. McCarthy, (Tr. Saipan CA no. 48-75 1980). The court here, too, reaches the conclusion that there should be a finding for the plaintiff in the maximum amount allowed by law.

IT IS THEREFORE ORDERED AND ADJUDGED:

That plaintiff have and recover judgment against the State of Truk for $50,000, with interest thereon at the legal rate from this date.

Dated the 12th day of May, 1989.

ENDNOTES:

¹"Every action for wrongful death must be brought in the name of the personal representative of the deceased, but shall be for the exclusive benefit of the surviving spouse, the children and other next of kin, if any, of the decedent as the court may direct."

²Nurse Rold testified that Dr. Larsen did perform surgery at the hospital.

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^[1]"Every action for wrongful death must be brought in the name of the personal representative of the deceased, but shall be for the exclusive benefit of the surviving spouse, the children and other next of kin, if any, of the decedent as the court may direct."

^[2]Nurse Rold testified that Dr. Larsen did perform surgery at the hospital.