The federal government may appeal a $12.3 million verdict they were ordered to pay to the family of a young boy whose face was severely burned four years ago in a botched surgery at Madigan Army Medical Center on Joint Base Lewis-McChord, Washington.
The government filed a “protective notice of appeal” in the 9th Circuit Court of Appeals on Wednesday, taking issue with the large payout.
The appeal means that the money expected to be awarded to the family for medical costs will be withheld for the time being, said Gemma Zanowski, an attorney at Evergreen Personal Injury Counsel who represents the family of the child.
The boy, identified in court documents as BJP, is the son of an active-duty soldier. In 2015, the boy spent 22 days in an intensive care and burn unit after the botched surgery ignited a fireball that left second- and third-degree burns across his face and neck, according to court records.
BJP must still undergo treatment for the burns, including a reconstructive procedure that would insert a balloon under the skin in order to stretch it slowly over a period of months.
“They don’t face any penalties for filing a frivolous appeal and having months pass where this child can’t get the money for the very specialized care he needs,” Zanowski said.
Whether the appeal will go forward is based on “consideration in D.C.," said Emily Langlie, a spokeswoman for the U.S. Attorney’s Office in Seattle.
“Any appeal has to ultimately go to the solicitor general to decide whether it will go forward,” she said. “In order to have the timeframe to do that, we’ve filed a notice of appeal."
Langlie said that the notice of appeal is standard in this situation.
“In any litigation there’s always a time lag between when there’s a verdict and when the funds are able to flow," she added.
However, the federal government already had 60 days to consider whether or not to appeal, according to Zanowski.
“They apparently needed more than that to run this up the flag pole,” she said.
BJP was undergoing surgery to remove a benign cyst from near his left eye.
During the surgery, the Army pediatric surgeon and Army anesthesiologist failed to communicate with each other about the oxygen levels being administered as well as the use of an electrocautery device, rather than a scalpel, to remove the cyst tissue, court documents stated.
After activating the device, the enriched oxygen environment was ignited, causing a surgical fire. The surgical team should have allowed the excess oxygen to dissipate prior to using the electrocautery device, and should have better communicated with one another, according to the court findings.
Since the incident, BJP has been in and out of hospitals for various surgeries and other treatments related to the fire. Even after his wounds fully closed and his condition stabilized, the boy underwent four surgical procedures in a two-year period.
U.S. District Court Judge Ronald Leighton hit the government with the large payout after the court concluded that the doctors “failed to exercise the degree of care, skill and learning expected of a reasonably prudent health care provider."
The judge wrote that “the surgical fire was preventable.”
He awarded the $12 million payout to account for recovery, post-care treatment, disfigurement and trauma, loss of a normal life and ongoing medical costs. An additional $3 million in damages was also split between the parents.
While the government admitted it was negligent and responsible for the fire, U.S. attorneys are disputing the large sum based on two main issues.
“First, the district court allowed two expert witnesses to testify about examinations they performed the day before they testified. These examinations were not disclosed in pretrial discovery,” the attorneys wrote in court filings submitted Wednesday.
The government is arguing that the additional examinations of BJP weren’t disclosed in a timely manner. But Zanowski said that those exams, one of which was performed by an ocular surgeon, didn’t result in the attorneys claiming any more medical damages.
“The evidentiary rulings regarding the witness testimony that the judge made are discretionary, which are awarded wide deference on appeal,” Zanowski said. “This case was not tried to a jury, but to Judge Leighton as the fact-finder. A bench trial to a judge is required when suing the USA. You do not get a jury of your peers.”
The appeal is also arguing that the size of the damages awarded is out of line compared to similar injuries.
"The district court’s explanation for the various categories of damages awarded — including the 1.5 million dollars awarded to each parent, even though the record shows that the two parents have different roles in BJP’s life — is inadequate,” the appeal filing reads.
Zanowski said that the U.S. attorneys’ focus on the parental roles was an attempt to frame the active-duty soldier as an absentee father. He is stationed at JBLM while his child and ex-wife live on the East Coast.