The U.S. Attorney’s Office has filed notice that it may appeal a $12.3 million verdict stemming from a 2015 operating room fire at Madigan Army Medical Center that severely disfigured a 13-month-old child, potentially preventing the family from accessing money needed for the child’s treatment, according to court documents and attorneys.
The Army admitted it was negligent and responsible for the fire in court documents. U.S. District Judge Ronald Leighton announced the verdict in June following a four-day bench trial in which he determined the surgeon and anesthesiologist treating the child at the hospital at Joint Base Lewis-McChord near Tacoma were negligent and failed to communicate with one another about the fire risks posed by the operation.
The notice of appeal means that the money agreed upon for medical expenses, along with the damages awarded by the judge for pain and suffering, psychological damages and loss of companionship, will be withheld while lawyers at the Department of Justice’s civil division and the U.S. Solicitor General’s office decide whether to challenge the award at the 9th Circuit Court of Appeals.
“This has been extremely frustrating. It’s very disappointing,” said Jeremy Johnston, one of the attorneys representing the child. “He needs treatment, some of it urgent, and this is going to delay it.” Johnston said the government filed the notice on day 57 of a 60-day deadline for the appeal.
The child is identified in court documents by the initials B.J.P. His father, Tyler Porter, is an active-duty member of the military. His mother, Armani, lives in Newport News, Virginia. The couple divorced after the incident.
“He can’t get done what needs to be done until all of this is resolved,” Johnston said.
The boy, who is now 5, has undergone several facial-reconstruction surgeries for deep scars that cover almost half his face.
Emily Langlie, a spokeswoman for the U.S. Attorney’s Office in Seattle, which handled the defense for Madigan and the doctors involved, described the notice of appeal as “protective,” meaning the government is keeping its options open while the award is reviewed by the solicitor general. She said attorneys who handled the case for the Seattle office have made a recommendation, but declined to say what it is.
“Ultimately, it might not go forward,” she said of the appeal. The government has until Nov. 20 to decide.
The boy had been scheduled for the removal of a benign cyst on his forehead. However, his face was engulfed in a fireball when a surgeon activated an electrocautery device — a sort of electric scalpel — while an anesthesiologist administered concentrated oxygen through a face mask, leaving the boy with severe burns on one side of his face and his nose, according to court documents. The child was rushed to the Harborview Medical Center burn unit, where he spent 22 days in intensive care. He will require numerous additional surgeries and facial reconstruction throughout his life due to the scarring, the court record indicates.
Leighton found that Army pediatric surgeon Dr. John Horton and Army anesthesiologist Dr. Phillip Cuenca were negligent when they did not communicate with each other about fire risk before or during the surgery.
“The United States deeply regrets that it negligently caused the September 2, 2015, operating room fire that resulted in B.J.P.’s physical injuries and sincerely apologized for the pain and suffering that resulted from this very unfortunate injury,” wrote Assistant U.S. Attorney Whitney Passmore in a brief submitted before trial.
Before trial, the government acknowledged in court documents that the family was entitled to $303,162 in future medical expenses. However, government lawyers argued at trial the family deserved roughly $3 million in damages.
Leighton, in his findings, concluded that the doctors “failed to exercise the degree of care, skill and learning expected of a reasonably prudent health care provider … and that this failure was the sole proximate cause” of the fire.
The documents say the team was initially unaware of the fire because the boy’s face was covered in surgical drapings, and learned of it only after a nurse anesthetist-in-training was burned himself. Photographs and testimony provided during the bench trial revealed that plastic material used to secure the drapes and keep the boy’s eyes closed had melted to his face.
Leighton broke the damages down to include $2 million for B.J.P.s “acute recovery;” $3 million for his treatment and “post-acute” recovery; $2 million for his “disfigurements, deformities and physiological damages and harms;” $2 million for his “loss of a normal life,” and $303,162 for future medical expenses. Each of the parents was awarded $1.5 million for loss of love, companionship and “parental grief, mental anguish and suffering.”