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$3.8 million for Krislyn doesn’t fix crisis

by Thomas Scheffey
The Connecticut Law Tribune, an American Lawyer Media Publication

March 19, 2001

The doctors at the Indian Health Service hospital in Eagle Butte, South Dakota didn't think there was a high risk of childbirth complications for Annette (Katie) Ducheneaux. They didn't send her to a hospital where an emergency cesarean could be performed, if necessary.

A handful of Indian hospitals, unlike all other licensed hospitals in the U.S., are not required to have that option, says Michael P. Koskoff, Connecticut's leading big-verdict plaintiff's lawyer.

When a c-section is needed but not available, he notes, "either the mother dies, or the baby dies, or the baby is born severely brain damaged."

When complications arose in the delivery of Ducheneaux' daughter Krislyn in February 1996, a cesarean was not an option at the Eagle Butte Indian Health Service hospital.

But according to Krislyn's lawyers, inadequate physician training was also a serious contributing factor at the birth. The doctor performing the delivery was not an obstetrician or gynecologist, but rather an internist, with minimal training in births. During Ducheneaux' labor, the doctor misread the fetal monitor's signs of distress, Koskoff says, so the mother "continued to labor and labor and ultimately gave birth to a profoundly brain damaged baby."

Krislyn was born blind, severely mentally retarded and unable to use her limbs. They are weak and uncontrollable. She exists in a coma-like state.

In a $3.8 million settlement Koskoff recently reached with the U.S. Government under the Federal Tort Claims Act, Ducheneaux is to receive $7,500 a month to pay for the child's care. The $3.8 million award is believed to be the largest Federal Tort Claims Act settlement in South Dakota history.

"In Connecticut, the case might have been worth $10 million," said Koskoff, who is currently preparing to retry a $12 million verdict in a doctor's HIV needle-sticking incident, and has a $29 million hospital malpractice under appeal.

For Annette Ducheneaux and her daughter, the help lawyers can bring afterwards with dollar awards isn't nearly as powerful as what doctors can do beforehand, with proper training and tools. And this child's chances, because of a policy anomaly for a handful of Indian hospitals, were worse than normal from the start.

"The U.S. government is operating hospitals for Indians to deliver babies not equipped to terminate labors when they have to be," said Koskoff.

"It's an outrage," he said. "The basic rule in every hospital in the country that's accredited is that the facility must have the capacity to perform a cesarean section within 30 minutes from decision to incision. The time from the decision to have the cesarean to the incision on the mother's belly should not take more than 30 minutes."

The original South Dakota attorney for the injured chills was Krislyn's aunt, Rochelle Ducheneaux. She moved to Connecticut last month to serve as chief judge of the Mashantucket Pequot tribe, which owns the Foxwoods Casino.

The infant mortality and birth injury rates at Indian Health Service hospitals are sharply higher than national averages, Rochelle Ducheneaux noted in an interview: "We have too many babies with injuries, too many babies that are dead."

The hospital where Krislyn was born has 10,000 patient visits a year. In recent years, it was delivering 90 to 100 babies annually. That represents only half the pregnancies for the Cheyenne River Sioux tribe the hospital serves. Pregnancies identified as high risk are sent to a larger hospital in Rapid City, with c-section capability. But, Koskoff said, pre-selection is always imperfect; the need for about half of all cesarean operations arise unexpectedly.

In Krislyn's case, the doctor attending had received a crash course in birth procedures. "Although an excellent internist, he was not trained adequately in the delivery of babies," Koskoff said.

Rochelle Ducheneaux says that too much of the federal budget for Native American healthcare is spent on off-reservation contracts with physicians' groups. And not only are reservation-based physicians poorly paid, the lack of modern hospital facilities and amenities also makes reservation work less popular. "It's considered to be, and in some ways it is, like being in a third-world country," Ducheneaux said.

Assistant U.S. attorney Dianna Ryan represented the Indian Health Service, and referred calls through the Justice Department in Washington, D.C. to the Indian Health Service. Dr. Katherine Ciacco-Palantianos, a risk-management consultant for the HIS in Rockville, MD, has analyzed the Krislyn Ducheneaux case. She said the decision whether to provide a birthing facility at Eagle Butte has been hotly debated in recent years. The small hospital lacks surgical facilities, and has not been used for even low-risk births since Sept. 2000. Before then, all high-risk birth candidates were assigned to hospitals hours away in urban centers, which can provide surgical services.

The Eagle Butte hospital, like other remote Indian Health Service facilities, has been chronically difficult to staff. An HIS Web site challenges medical professionals to "Give us two years…for an unforgettable experience."

Desolation and crushing need makes Eagle Butte a daunting assignment. Winter temperatures can hit 20 below zero there. The nearest supermarket is a three-hour drive away. Annually budgeted resources, like the $1.5 million line item for psychiatric drugs and services allocated to Indians in North and South Dakota, are typically used up in the first sic months of the fiscal year, an HIS physician noted. "There's no such thing as a 'Golden Hour' for trauma and emergency cases," said Ciacco-Palantianos. Sometimes just the logistics of getting an ambulance to a full-service emergency room can take several hours.

Doctors' pay ranges from $49,000 to $135,000, with an isolation hardship bonus, and many posts remain unfilled. The shortages place additional pressure on the limited staff. When there's only one doctor to perform births in a hospital, that person must be on call 24 hours a day, seven days a week. In addition, HIS facilities are modestly equipped and considerably older than national averages, Ciacco-Palantianos confirmed.

If better facilities were built, would better medical talent be attracted? Ducheneaux, the child's original lawyer, compared the reservations' experience with new community college facilities. She says yes, "If they build it, they will come."

Even thought the $3.8 million award is believed to be the largest tort claims act settlement in the state, Ducheneaux says she doubts it will trigger reform in the system. While losses due to inferior or inadequate medical care weigh heavily on Native American families, malpractice cases have been rare. The federal government has not lost enough money to need to pay much attention to the problem, she says.

In addition, potential claimants "just walk away," convinced they could not fight and win in the courts.

Far from being and admirable stoicism, Ducheneaux says her people's reluctance to assert legal claims is a resignation borne of relentless historic setbacks. She calls it a learned pessimism, or "learned ignorance- If there is such a thing."

Reprinted by permission, Connecticut Law Tribune.