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Chickaway v. United States

United States District Court, S.D. Mississippi, Eastern Division

December 20, 2013

WENDY CHICKAWAY, INDIVIDUALLY, AND AS ADMINISTRATOR and PERSONAL REPRESENTATIVE OF THE ESTATE OF BRANDON PHILLIPS, A MINOR, AND ON BEHALF OF ALL WRONGFUL DEATH BENEFICIARIES OF BRANDON PHILLIPS, DECEASED, PLAINTIFF
v.
UNITED STATES OF AMERICA, DEFENDANT

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[Copyrighted Material Omitted]

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For Wendy Chickaway, Individually and as administrator and personal representative of the estate of Brandon Phillips, a minor, and on behalf of all wrongful death beneficiaries of Brandon Phillips, Deceased, Plaintiff: Matthew W. Kitchens, LEAD ATTORNEY, KITCHENS LAW FIRM, PA, Crystal Springs, MS; Laurie M. Higginbotham - PHV, Tom Jacob - PHV, PRO HAC VICE, ARCHULETA, ALSAFFAR & HIGGINBOTHAM, Austin, TX.

For United States of America, Defendant: Mitzi Dease Paige, LEAD ATTORNEY, David H. Fulcher, U.S. ATTORNEY'S OFFICE - Jackson, Jackson, MS.

OPINION

Carlton W. Reeves, UNITED STATES DISTRICT JUDGE.

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MEMORANDUM OPINION AND ORDER

From August 13 through 16, 2012, this Court held a bench trial on Plaintiff Wendy Chickaway's claims of medical negligence and wrongful death against the United States of America arising under the Federal Tort Claims Act (" FTCA" ). Plaintiff has brought this suit as the personal representative of her son, Brandon Phillips, and on behalf of his wrongful death beneficiaries. Brandon, a twelve year-old little boy, died of sepsis on June 12, 2007. Having considered the evidence at trial, oral argument, submissions of the parties, and the applicable law, the Court

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now issues its findings of fact and conclusions of law. The Court finds that judgment should be entered in favor of the Plaintiff.

I. Findings of Fact

A. Events of April 5, 2007

On Thursday, April 5, 2007, Brandon was in class at Neshoba Central Middle School. He had his head down on his desk and complained that he did not feel well. The teacher sent him to the school nurse, who took his temperature; it registered at 98.2 ° F. The nurse asked him what signs or symptoms of illness did he have, and he could only articulate that he did not feel well. Recognizing that he was ill, the nurse called his mother, Wendy Chickaway, to come and pick him up. Chickaway testified that she gave him " some Tylenol" that was in their truck and Brandon rested. Later that day, she took Brandon to the Choctaw Health Center (" CHC" ) in Choctaw, Mississippi, where he was seen by Nurse Practitioner Michelle Atkinson. According to medical records, Brandon's chief complaint was " [Left] groin pain since Tuesday." Ex. P-1, at 95.

He characterized the pain as a 3 on a scale of 1-10. The medical records note that he had tenderness to palpitation of his left thigh, muscle tenseness, but no bruising. His blood pressure was 135/68, which is within the normal range. Brandon was diagnosed with a muscle strain. He was given a Toradol injection (for pain relief) and was told to take an anti-inflammatory medication, specifically Motrin, rest for two to three days, and apply ice to the area. He was then discharged.

The next day, Brandon stayed home from school resting in bed. His mother and sister helped him with his activities of daily living. He was able to walk to the bathroom by himself with a slight limp, but he did not walk around for most of the day. Chickaway had the prescription for Motrin filled. Brandon, however, had a difficult time swallowing the pills. Chickaway then decided to give him a liquid form of Tylenol. She called CHC to confirm the amount that she should give him and she followed their instructions. Because the family had a funeral to attend the next morning, Brandon was taken to his father's house that Friday night. Sadly, it would not be the last funeral the family would have to attend.

B. Events of April 7, 2007

While Chickaway was at the funeral, on Saturday, April 7, 2007, she was notified that Brandon's condition had worsened and that his father, Edward Phillips, had taken him to the emergency room at CHC. Brandon and his father arrived at CHC at 12:40 p.m. He was triaged at 12:45 p.m., placed in an evaluation room at 1:16 p.m. and was seen at 1:40 p.m. Brandon's chief complaint was pain to his left hip for the last four days. According to medical records, it was indicated that he had been injured playing basketball on Tuesday. [1] The records also indicated that he had been evaluated in the emergency room on Thursday and had been prescribed Motrin.

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Nurse Angela McDonald treated Brandon that day. McDonald is a certified family nurse practitioner and has worked at CHC since 2001. She has served at a variety of levels of the nursing profession, including as a nurse's aide, a licensed practical nurse, and a registered nurse. McDonald performed an initial physical examination. Her notes show that Brandon reported that his pain level was 10 out of 10. She then requested X-rays to ensure that there were no broken or fractured bones. She did not identify any problems in the X-ray results. Next, McDonald requested laboratory testing. Medical records indicate that Brandon's white blood cell count was 6.1, within the normal range of 4.5-13.5. His sedimentation (" SED" or " sed" ) rate [2] was elevated at 18, outside of the normal range of 3-9 mm/hr. The percentage of granulocytes [3] were elevated at 95.1, outside of the normal ...


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