We just wanted to get the best care'
Family blames Navy for birth defects, seeks $70 million
By William H. McMichael
Times staff writer
BEAUFORT, S.C. - At first glance, Andrew Waters seems completely normal - a cute, hazel-eyed 7-month-old.
But those eyes don't see anything. He doesn't make a sound. He has no feeling in any of his limbs. He's fed through a tube in his stomach because he can't swallow. He's mentally retarded. The defects are expected to be permanent.
"If we could just get a smile out of him, that'd be great," said Jennifer Phillips, Andrew's mother and the wife of Marine Corps Staff Sgt. Jeff Waters.
Andrew was delivered Aug. 27, 2005, by Beaufort Naval Hospital doctors at nearby Beaufort Memorial Hospital - much to the parents' chagrin. They say they'd begged her primary care physician to transfer the birth and subsequent care of Andrew to neonatal intensive care specialists in Savannah, Ga. Those Navy-approved specialists had already detected a probable bowel obstruction in the unborn boy and communicated same to a Beaufort Naval Hospital-based Navy doctor - on five occasions.
"We just wanted to get the best care we could," Phillips said.
At the last minute, the Navy referred Andrew to the specialists for the birth, Phillips claims. But a day before the scheduled delivery, Andrew's small intestine burst in Jennifer's womb, he went into fetal distress and was born, by Caesarean section, without a heartbeat. He was revived but had to be transferred to a civilian hospital for emergency surgery to repair the bowel, she said.
Now, Phillips and Waters have filed a $70 million claim against the government. If the claim is not settled and they are ultimately awarded that amount in a subsequent lawsuit, it would be one of the largest judgments ever levied against the government under the Federal Tort Claims Act. On Nov. 23, a Navy family was awarded $60.9 million - the largest judgment to date - for the botched delivery of their son at Jacksonville Naval Hospital, Fla. The government is appealing that verdict.
A Beaufort hospital spokeswoman said she couldn't address the claim, filed Feb. 1.
"Since the case is in litigation, I really can't comment on any of the specifics of the case," said spokeswoman Patricia Binns. Under the FTCA, if the Navy does not respond or settle within six months, the family is free to file suit.
Phillips and Waters, a clothing supply specialist at Parris Island Marine Corps Recruit Depot, S.C., argue that the possibility of a problematic birth had been both foreseen and communicated to the Navy. Phillips' Navy doctor, Capt. (Dr.) Clinton J. Butler, had referred her to high-risk pregnancy specialists Savannah Perinatology Associates in nearby Georgia immediately after she became pregnant in December 2004. He did so because both she and Waters carry the gene for cystic fibrosis, both parents say. A genetic test confirmed that Andrew was carrying the gene and would likely be affected by it, according to the claim the couple filed with the government, citing a report they say was faxed April 19 from the Savannah group to the Navy.
The Savannah group's specialists conducted five targeted ultrasounds in the ensuing months, according to the couple's claim. In each one, according to the claim, the neonatal specialists detected an abnormality in the small intestine, and in the final two tests, a growing dilation of the bowel. Between 6 percent and 20 percent of newborns with CF develop an obstruction in the small intestine, according to medical literature. And such blockages are the earliest clinical manifestation of CF, said Pamela Zeitlin, a physician and professor of pediatrics at the Johns Hopkins School of Medicine.
During their third visit to the Savannah clinic, the couple was told by perinatologist Anthony B. Royek that a new ultrasound test confirmed a slight dilation in Andrew's bowel. On the report subsequently faxed to the Navy, he noted that he discussed with the couple the possibility of the bowel rupturing, according to their legal claim. He recommended that the Navy transfer Phillips to a center with pediatric surgery capability "given the potential need for neonatal surgical intervention."
In the days after the fax was sent, Phillips said she kept calling the Savannah group "to ask if they had received my transfer request" from the Navy, she said. But Phillips was told it hadn't been sent, so Phillips and Waters asked Butler for the transfer. She said he declined to do so.
"He told me it wasn't necessary," Phillips said. "He told me that babies born with cystic fibrosis commonly don't have a problem. And that's true, most of the time."
At this point, Phillips said, "I pleaded with him." Waters chimed in but said he held his tongue out of respect for the doctor's rank.
"I've never disrespected any of my superiors," said Waters, a 19-year Marine. Besides, he said, "What else could we do? He wasn't giving us another option."
Butler declined to comment on the family's claim over Andrew's birth. "He feels that it would be inappropriate at this time," Binns said.
The officer in charge of Waters' unit acknowledged the difficult position the family found itself in. Waters and Phillips "have been unbelievably professional about this," said Maj. Vince Williams. "They never lost their cool."
All along, Butler had told Phillips he wanted to induce labor in the 38th week of her pregnancy, she said. But when that couldn't be arranged at the start of that week, Aug. 22, Phillips and Waters pushed Butler harder to transfer care.
"We told him, 'If you don't have the authority to do this, please send us to someone who can help,'" Phillips said. After previously declining to do so, she said, his reply was surprisingly compliant: "OK, if that's what you want to do," she recalled him saying. They then contacted the Savannah clinic, but the first available delivery date was in five days.
On the fourth day, a Friday, Phillips, concerned that the normally active Andrew wasn't moving in her womb as much as he normally did, went to the Beaufort Memorial Hospital emergency room (Beaufort Naval Hospital does not perform deliveries), where a 10:10 p.m. ultrasound confirmed the fetus was in distress and had suffered a ruptured colon. According to family attorney George Hanko, the Navy called the Savannah clinic to ask whether Phillips could be transferred but was told it was too late because the delivery needed to be performed immediately.
The exact details of what happened next and why remain to be discovered, but Hanko said the Navy then contacted the Medical University of South Carolina in Charleston - - which could perform emergency surgery on the boy's small intestine after his C-section birth - to send a team to retrieve Andrew. But the delivery did not take place until 1:49 a.m., when Andrew was born without a pulse and had to be resuscitated.
"When the doc said, 'Get that tube over here' and stuck [a ventilator] tube down his throat, I knew it was really bad," Phillips said.
Hanko said the Navy waited to deliver Andrew until the Charleston team called to say it was 10 minutes away. It was this more than 3½-hour delay, the family and Hanko charge, that caused his "profound mental retardation" and other handicaps.
Phillips and Waters still have difficulty believing Andrew's birth played out as it did.
"In short, this was the scenario that the perinatologist warned about," Phillips said.
Hanko agrees. "Everything could have been prevented if they'd just sent them to the expert," he said March 14.
The family knows that all too well. In addition to their 4-year-old daughter, Allyson, Phillips and Waters each have 12-year-olds from prior marriages, and Waters' son Cameron also has CF. While he and his ex-wife didn't know they carried the gene, Waters said the Navy recognized that Cameron had a bowel obstruction at birth - it hadn't burst - and flew him to the same Charleston hospital to have a portion of the bowel removed and repaired. A bright and friendly young man, Cameron is active in sports and seems no different from any other 12-year-old kid.
Phillips has had to give up her job as a lance corporal in the Beaufort County Sheriff's Department. Her life is now consumed with caring for Andrew, who recently had his fourth surgery, all connected to his birth defects.
He spends 20 hours a day on the feeding tube and can't leave the house. Phillips is there when the occupational therapist visits on Tuesdays and Thursdays, when the physical therapist comes on Wednesdays, and when the speech therapist arrives on Fridays. While experts have told the family that Andrew will probably never speak, the speech therapist helps Andrew learn to swallow.
"I'm kind of bound to the house," Phillips said. "I can't leave. We can't do the family things we used to - go to the movies, go to the beach."
But, she added, "We'll never give up on him."
This article has been edited from what appeared in the April 17 issue to correct a factual error.
