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Madigan Army Medical Center withdraws appeal, sets stage for payout of $12.3M to child burned during surgery

By MIKE CARTER | The Seattle Times | Published: October 26, 2019

SEATTLE (Tribune News Service) — The Army has withdrawn plans to appeal a $12.3 million verdict awarded to the family of a child who was seriously burned and disfigured in an operating-room fire at Madigan Army Medical Center in 2015, clearing the way to release money the child needs for additional surgeries and rehabilitation, according to court documents.

The decision came more than two months after the Army, after admitting responsibility for the fire in court documents, announced it would take the verdict to the 9th Circuit Court of Appeals for possible review after damages came in nearly four times the amount government attorneys had recommended the child and his parents be paid.

The damages were determined by U.S. District Judge Ronald Leighton in Tacoma following an extensive hearing about the challenges the child must overcome. The child’s attorneys argued the delay caused by an appeal would delay additional surgeries and treatments the now 5-year-old boy requires.

The boy, whose father was an active-duty soldier at Joint Base Lewis-McChord, had been admitted to Madigan for a minor surgery in 2015 to remove a benign cyst from his forehead. However, the 13-month-old boy’s 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.

The incident left the boy, identified in court documents by the initials B.J.P., with severe burns on one side of his face and his nose, according to court documents. He spent 22 days in intensive care and the burn unit at Harborview Medical Center in Seattle, and will require numerous surgeries and facial reconstruction throughout his life for the resulting scars, the court record indicates.

Leighton found that an Army pediatric surgeon, Dr. John Horton, and an Army anesthesiologist, Dr. Phillip Cuenca, were negligent when they did not communicate with one another about fire risk before or during the Sept. 2, 2015, surgery. According to court documents, Cuenca was administering concentrated oxygen to the child via a face mask at levels approaching 90% — well above room-air oxygen levels of 21% — when Horton activated the electrocautery device and ignited the fire.

Leighton, in his findings, concluded 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 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 trial brief submitted in August.

Emily Langlie, a spokeswoman for U.S. Attorney Brian Moran, whose office defended the doctors and the hospital, said the Department of Justice appeal process is “complete and the decision has been made that there should be no appeal.

“We are hopeful this child can get the medical care he needs to recover from this tragedy and we wish the best for him and his family,” Langlie said in an emailed comment on Friday.

Court documents say the team was initially unaware of the fire because the boy’s face was covered in surgical drapes, and learned of it only after a nurse anesthetist-in-training was burned. 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 parent was awarded $1.5 million for loss of love, companionship and “parental grief, mental anguish and suffering.”

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