Piecemeal Settlement for Army Clinic Mishap OK

(CN) - After an infant treated at an Army hospital lost his kidney to infection, the U.S. government need not pay a $5 million settlement in one lump sum, the 5th Circuit ruled.

Nearly a decade has passed since Angelia Lee took her newborn C.L. to the pediatric clinic at Randolph Air Force Base in greater San Antonio for his vaccinations.

Because the clinic gave the boy only two of the required four doses of the pneumonia-preventing Prevnar vaccine, C.L. soon developed a fever and labored breathing. X-rays at the Brooke Army Medical Center in San Antonio showed he had pneumonia.

Despite the diagnosis C.L.'s nurse practitioner sent him home and downplayed Angelia's concerns about her son's greenish-yellow eyes, telling her it was just a side effect of his medication.

Angelia opted not to wait until C.L.'s next appointment and took him to the medical center's emergency room. Doctors gave him antibiotics and transferred him the next day to a local hospital where he was diagnosed with pneumonia in both lungs.

The pneumonia forced doctors to put C.L. in a coma and administer dialysis treatment, but the infection was too advanced and C.L. ended up getting a kidney transplant from his father.

The Lees sued the U.S. government for medical malpractice in July 2008.

U.S. District Judge Orlando Garcia in San Antonio sided with the family and awarded them $4.8 million for C.L.'s future medical needs and $250,000 for his past pain and suffering.

Garcia ordered the feds to pay the settlement in one lump sum, prompting the government to appeal to the 5th Circuit in New Orleans.

Federal attorneys argued Garcia erred by not applying the Texas law that requires medical damages "be paid in whole or in part in periodic payments rather than by a lump-sum payment" at the request of the defendant physician or hospital.

Because the feds did not mention their preference for settlement payments until after the trial, the Lees claimed the parties had an understanding that damages would be awarded in one lump sum.

The Lees also argued that it would burden the trial court to have it keep track of the funds were the government to make periodic payments into a trust.

A three-judge panel with the 5th Circuit brushed off the Lees' contentions Thursday.

"We hold that the District Court erred by not applying the Texas statutory scheme...it should have structured the damage award in a manner resembling the periodic payment scheme," Chief Judge Carl Stewart wrote for the court in New Orleans.

The panel remanded the case and also found that Garcia had mistakenly awarded postjudgment interest from the judgment date, rather than from the date the judgment transcript was filed with the U.S. treasury secretary.

The Lees' attorney Jamal Alsaffar with Whitehurst, Harkness, Brees, Cheng, Alsaffar & Higginbotham of Austin was not immediately available for comment.

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