Wheeler Tarpeh-Doe v. United States

MEMORANDUM

Plaintiffs Linda Wheeler Tarpeh-Doe and Marilyn Wheeler seek relief for inju *430 ries suffered by Nyenpan Tarpeh-Doe pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) & 2671 et seq. 1 Tarpeh-Doe is the mother of Nyenpan, an eight year old boy who is blind and suffers from severe neurological damage. Nyenpan is a long term patient and resident at the Wheat Ridge Regional Center in Wheat Ridge, Colorado, where he receives constant and complete care. Marilyn Wheeler, a Colorado resident, is Nyenpan’s grandmother and legal guardian.

Linda Wheeler Tarpeh-Doe is employed by the United States Agency for International Development (“AID”). The State Department Office of Medical Services in Washington, D.C. has responsibility for the provision of health care worldwide to employees of the State Department, AID, and other government agencies. With respect to overall medical policy, the Uniform State/AID/USIA Regulations 2 provide that:

The general medical policy of the Department of State is to assist all American employees and their dependents in obtaining the best possible medical care. This includes personnel of the Department and all agencies participating in the medical program by agreement. This policy extends to the most remote parts of the world, so that no employee need hesitate to accept an assignment to a post where health conditions are hazardous, medical service poor, or transportation facilities limited. Principal and administrative officers, and their designees, and principal representatives of participating agencies are cautioned to be alert to any medical and health problems of employees and their dependents and to take appropriate action promptly.

3 Foreign Affairs Manual (“FAM”) § 681.-2.; Defendants’ Exhibit (“Defs. ex.”) 1 (emphasis supplied). The State Department, through its Office of Medical Services, provides and is responsible for overseeing Regional Medical Officers in areas of the world in which adequate local care is not available. Deposition of Jerome M. Korcak (“Korcak dep.”) at 10. Regional Medical Officers are physicians responsible for the provision of “medical care, counsel and examinations for American employees and their dependents within the framework of these regulations and the capability of the physician, considering the facilities and time available.” § 682.2-2(a)(l).

In 1981, AID assigned Tarpeh-Doe to a post in Monrovia, Liberia. At that time, Dr. Theodore E. Lefton was the Regional Medical Officer assigned to the embassy in Monrovia. Dr. Lefton had been stationed in Monrovia for four years (two two-year terms) and was scheduled to remain for an indefinite period. See Deposition of Theodore E. Lefton (“Lefton dep.”) at 150. However, in March, 1982, a routine State Department inspection at the Monrovian embassy revealed widespread dissatisfaction with Dr. Lefton’s attitude and lack of availability. See Depositions of Herbert W. Schulz (“Schulz dep.”) at 30 & 58 and John J. Crowley (“Crowley dep.”) at 50, 56, & 75. Following the inspection, William Swing, then U.S. Ambassador in Liberia, and Jerome M. Korcak, then Medical Director of the Office of Medical Services at the State Department in Washington, D.C., decided to curtail Dr. Lefton’s assignment to Monrovia because of his poor attitude and availability. Swing preferred curtailing Dr. Lefton’s assignment as early as possible. However, Dr. Korcak was reluc *431 tant to support that preference and was not overly concerned about Dr. Lefton’s provision, or more accurately, lack of provision of medical services. On May 17, 1982, following discussions in late April and early May, 1982 (including discussions with Dr. Lefton), Korcak and Swing came to an agreement to permit Dr. Lefton to remain at post until November 1, 1982. See Defs. exs. 2-4; see also infra, at 433-34. There is no evidence that Dr. Korcak gave any special instructions to Dr. Lefton or placed his service under heightened scrutiny, despite the deficiencies in his services which prompted the decision to terminate his assignment. Nor is there any evidence of any special effort by Dr. Korcak to expedite selection and assignment of either a temporary or permanent replacement for Dr. Lefton.

On May 18, 1982, while stationed with AID in Monrovia, Linda Wheeler TarpehDoe delivered Nyenpan. Within three weeks of birth, the baby contracted a bacterial infection that developed into what was ultimately diagnosed as spinal meningitis. On June 5, 1982, Tarpeh-Doe brought the baby to the health unit at the United States embassy in Monrovia. On Saturday, June 5,1982, Nyenpan was examined at the embassy health clinic by Dr. Lefton, who forthwith referred the mother and child to an American pediatrician, Dr. David E. Van Reken. Dr. Van Reken was employed by an American mission in Monrovia not affiliated with the embassy. The baby remained under Dr. Van Reken’s care at local hospitals for the next twelve days. On June 17, 1982, Nyenpan, his parents, and an embassy nurse were evacuated to the United States to enable the family to seek additional medical treatment for Nyenpan. By that time, however, he was beyond hope of recovery.

Plaintiffs claim that the Department of State in Washington, D.C. violated its duty to provide Nyenpan, a dependent of its employee, with the “best possible medical care” and “to be alert to any medical and health problems of ... dependents and to take appropriate action promptly” as required by the Uniform State/AID/USIA Regulations. 3 FAM § 681.2. Specifically, plaintiffs allege that the following acts or omissions of defendants constituted negligence. First, plaintiffs assert that the State Department failed to inform TarpehDoe that her health benefits included the option to travel to Europe or the United States to deliver her child. Second, plaintiffs claim that the State Department and its Office of Medical Services acting concurrently with the Ambassador negligently retained Dr. Lefton even after it learned of the widespread dissatisfaction with the doctor’s attitude and availability. In addition, plaintiffs contend that the Office of Medical Services in Washington negligently failed to supervise Dr. Lefton adequately, especially once it was on notice of complaints about his attitude and availability and that his term had been curtailed at the time he treated Nyenpan. Third, plaintiffs allege that the State Department negligently failed to deliver to Monrovia a message from Dr. Schroeter, a neonatologist in Colorado who had been contacted by Marilyn Wheeler in preparation for evacuation, that he felt it was imperative that he speak with the treating physician in Liberia. Finally, plaintiffs claim that the Office of Medical Services in Washington negligently conducted the wrong test on a sample of spinal fluid sent to it from Monrovia for laboratory tests. Plaintiffs contend that defendants’ negligence proximately caused Nyenpan’s injuries. At a trial held on November 26—December 4, 1990, the parties produced through testimony and designated deposition transcripts the factual evidence summarized below.

I.

A. The Inspection

1.

The Inspector General’s office of the State Department routinely investigates embassies every three to five years. In February and March, 1982, a team of five or six inspectors from that office visited Monrovia, Liberia as part of an inspection tour that included visits to four embassies in West Africa. The inspection of the Liberian embassy took place from February 22 *432 to March 5. See Plaintiffs exhibit (“Pis. ex.”) 33. With respect to health services, the inspectors wrote in their final report:

The medical facility is totally inadequate. It is crowded, dingy, and anti-therapeutic, among other shortcomings....

The Medical Unit must also improve its image and responsiveness. The inspectors received numerous complaints about it. Health units should make a positive contribution to morale and welfare, and the unit in Monrovia does the opposite.

Complaints about the quality of official US health services have been so widespread that it may be the single most significant non-environmental negative factor affecting morale at this post.

Id., Inspection Memoranda 6.2f & 1.2 at 5. When the inspectors returned to Washington they met to report the results of the inspection with administrators of the Office of Medical Services, including Dr. Jerome Korcak, then Medical Director. In the debriefing, the inspectors explained to Dr. Korcak and others that employees on post had complained in particular about Dr. Lefton’s attitude and availability. On April 6, 1982, soon after returning from the inspection tour, Ambassador John J. Crowley, the leader of the inspection team, visited Dr. John Beahler, then Deputy Medical Director, because he felt on a personal and professional basis that he should inform Beahler of the situation. Crowley dep. at 71. Crowley told Beahler that “there is ‘widespread’ discontent with Dr. Lefton’s performance as RMO in Monrovia.” See Id. at 71; Korcak’s Memorandum to the File about Complaints regarding Dr. Lefton’s Performance, defs. ex. 3 at 1. On April 27, members of the inspection team met with Dr. Korcak. The team informed Dr. Korcak that “ ‘a majority of personnel’ in responses on questionnaires and in spontaneous oral complaints indicated their dissatisfaction with Dr. Lefton’s attitude and availability.” Id. at 3. They told him that “the magnitude and intensity of the complaints was unprecedented in their experience.” Id.

Ambassador Crowley believed that “there was a remarkable level of discontent with the medical officer at this post” compared with other inspections. Crowley dep. at 56 & 63. Crowley (who emphasized that the team was not qualified to evaluate Dr. Lefton’s medical competence from a technical standpoint) explained further that the general trend of complaints about Dr. Lefton were his “insensitivity, aloofness, lack of sympathy, lack of ... bedside manner, and also frequent unavailability.” Id. at 49. Herbert W. Schultz, a member of the inspection team, also stated that the intensity and magnitude of the complaints about Dr. Lefton’s attitude and availability were unprecedented. Schultz dep. at 58. Schultz believed that the problem was that Dr. Lefton did not care and was not available outside the hours of 8:00 a.m. to 5:00 p.m. Id. at 42.

Dr. Lefton was unavailable at times because he travelled out of Liberia for long vacation weekends. He was able to obtain free travel on Pan American Airlines because his wife worked as a flight attendant for Pan Am. Dr. Korcak was aware of these trips because following these weekends, on Monday mornings, Dr. Lefton would sometimes drop by Dr. Korcak’s office in Washington. Korcak dep. at 153. He did not approve of them. Id. at 154.

Moreover, Dr. Korcak and others in the Office of Medical Services were informed by the inspection team and embassy officials of several incidents illustrative of Dr. Lefton’s poor attitude and lack of availability that reveal an even more serious adverse effect on medical services. For example, in February or March of 1982, a U.S. Marine was injured in a car accident thirty to forty miles outside of Monrovia. Dr. Lefton was asked to go to the scene of the accident to administer medical care. He refused. Ambassador Swing felt that Dr. Lefton’s refusal was unreasonable and ordered Lefton to go to the scene of the accident. See Crowley dep. at 49-50; Swing dep. at 17. In addition, Dr. Lefton refused a request to make a house call to administer care to a sick child on at least one occasion. See Dustin dep. at 37. In *433 another incident, Dr. Lefton failed to accompany an American who suffered from burns to the airport to be evacuated. Ambassador Swing felt this was inappropriate and went to the airport himself to show support. Swing dep. at 18-19. In general, Dr. Lefton was unwilling to respond to urgent situations. Swing dep. at 20.

2.

Ambassador Swing was aware of problems with Dr. Lefton even before the inspectors’ visit. Either he or the Office of Medical Services had proposed curtailing Dr. Lefton’s assignment in Monrovia earlier than March, 1982. (Testimony of Perkins). Following the inspection, Ambassador Swing, Dr. Korcak, and Dr. Lefton entered into a series of discussions that led towards the termination of Dr. Lefton’s assignment in Monrovia. On April 6, following Beahler’s meeting at the Office of Medical Services in Washington with Crowley in which Crowley reported that the complaints about Dr. Lefton were unprecedented, Beahler called Dr. Lefton, who was also in Washington at the time for training. Beahler related to Dr. Lefton the complaints Crowley had reported to him. Beahler suggested that Dr. Lefton discuss the situation with Ambassador Swing when he returned to Liberia to try to resolve the problem. He did not instruct Dr. Lefton to make himself more available to his patients in Liberia nor did he establish reporting requirements to assure that the Office of Medical would be apprised of any serious problem there. See Memorandum to the File from Jerome M. Korcak on the subject of “Complaints regarding the Performance of Theodore E. Lefton, M.D., Regional Medical Officer, Monrovia” recording Korcak’s summary of meetings and telephone calls from April 6, 1982 to April 28, 1982, defs. ex. 3. On April 12, Dr. Lefton sent a letter to Swing acknowledging some of the problems and proposing certain remedies, including a reduction in the time patients were required to wait to be seen at the health unit and improved communications procedures to insure that Dr. Lefton received messages and that patients could locate him. Pis. ex. 51.

On April 16, Korcak in Washington received a telephone call from Swing and Dr. Lefton in Monrovia. See Memorandum to the File from Korcak, defs. ex. 3 at 1-2. First, Korcak was advised by Swing that he and Dr. Lefton had worked out a “gentleman’s agreement” that Lefton would be reassigned rather than continuing his assignment in Monrovia. Then Korcak informed Dr. Lefton (who took the phone) that he could be reassigned to Sanaa or Islamabad. Dr. Lefton requested leave without pay for a year. Korcak responded that he could not authorize leave without pay if Lefton had no other reason for it than that he did not want to work in the posts offered. Dr. Lefton said he would have to think about it. See id.

On April 26, Korcak met in Washington with Dr. Lefton (who accompanied an evacuee to the United States). At that time, Korcak was told by Dr. Lefton of his intention to resign because Pan Am did not fly to either of the available posts, so that his wife would not be able visit him if he accepted the assignments offered. Id. at 2. Korcak advised Dr. Lefton that if he (Lefton) could persuade Swing to permit him to stay in Monrovia until June, 1983, more opportunities for reassignment would be available. Id. Dr. Lefton then spoke in Washington to a Mr. Mandersheim. 3 Mr. Mandersheim called Ambassador Swing to urge a compromise. Id. On April 27, Korcak received a call from Swing who told him he had spoken with Mr. Mandersheim and that he understood that Dr. Lefton wanted to revise the “gentleman’s agreement.” Korcak told Swing that the assurances he had given Swing previously that the Office of Medical Services would replace Dr. Lefton promptly had been contingent on Dr. Lefton’s acceptance of another assignment. Since Dr. Lefton wanted to resign instead, Korcak did not believe a doctor could be located to replace Dr. Lefton in Monrovia until the following spring, a year away. Ambassador Swing told Korcak he would reconsider his decision. Id. *434 at 2-3. On the afternoon of April 27, Korcak met with members of the investigation team who informed him of the widespread complaints about Dr. Lefton. Id. at 3. On April 28, Korcak phoned Ambassador Swing and told him that the inspectors’ briefing had given him “a greater appreciation for the magnitude of the difficulties associated with Dr. Lefton’s tenure at post.” Id. Korcak suggested that Swing make Dr. Lefton’s continuing assignment contingent on resolution of the difficulties. He assured Swing, however, that if the circumstances continued, the Office of Medical Services would proceed “with all deliberate speed” to find a replacement. Swing responded that this proposal was “the most attractive available to him.” Id. However, on April 30, Ambassador Swing called Korcak again. He stated that, following another meeting with Dr. Lefton, he had “reached the conclusion that Dr. Lefton’s reputation at post is sufficiently tarnished that an extension of his tenure beyond September, 1982 would be neither in the interest of the post nor of Dr. Lefton.” Defs. ex. 2. He informed Korcak that he would permit Dr. Lefton to stay until September 1982 because he did not want the post to be without a physician and “because Dr. Lefton [had] requested this time so he could have a visit from his daughter.” Id. Swing further informed Korcak that he thought the post could tolerate being without a physician for two or three months thereafter.

In further telephone conversations, Swing and Korcak reached a compromise permitting Dr. Lefton to remain in Monrovia until November 1, 1982. Swing confirmed this agreement in writing in a letter to Korcak dated May 17,1982. Defs. ex. 4. Swing explained that the rationale for this decision was “(a) to give M/MED a reasonable period in which to find a replacement for Dr. Lefton; (b) to meet some of Dr. Lefton’s concerns including a visit this summer by one of his children to Liberia; and (c) to provide Monrovia and the other posts in his area of jurisdiction adequate coverage until a replacement can be located and placed.” Id. In addition, Swing expressed concern in light of Dr. Lefton’s forthcoming departure about additional responsibilities that had been given to Dr. Lefton to provide emergency coverage to Dakar and areas around it when another doctor would be on leave in August. Id. On June 15, 1982, Korcak wrote a letter to Dr. Lefton in which he again raised the issue of reassignment. See Defs. ex. 5 (partially illegible copy). On June 16, Korcak wrote to Ambassador Swing and informed him of the letter to Dr. Lefton. He added, in response to Swing’s concern about the decision to add coverage of Dakar to Dr. Lefton’s responsibilities, that he did not believe that Dr. Lefton’s planned departure constituted reason to reconsider that decision. Defs. ex. 6; Pis. ex. 53 (partially illegible copy). Korcak further noted that he was under a recent “modified hiring freeze,” raising additional concerns about approval of a replacement. Id.

Korcak made several attempts to reassign Dr. Lefton rather than accept his resignation. At no time did Dr. Korcak instruct Dr. Lefton to make himself more available to his patients, to attend more closely to his patients’ medical needs, or to, immediately report any serious medical situation in Monrovia to the Office of Medical Services. This was true despite the fact that Korcak had “learned over the years that [problems with medical officers] rarely involved medical competence ... but when we did have problems, it involved physicians’ attitudes, what was expected of them.” Korcak dep. at 157. Korcak’s uncritical response to the inspectors’ reports of complaints about Dr. Lefton and to Ambassador Swing’s dissatisfaction with Lefton’s performance is possibly explained by Korcak’s otherwise high impression of Dr. Lefton. Throughout the period of discussions, he viewed Dr. Lefton as “very positive and upbeat.” Id. at 160. When Korcak first received complaints, he was not overly concerned because he knew Dr. Lefton as a “bright young physician who was astute and competent.” Id. at 170-71. He had “admired his acumen” in annual medical meetings. Id. at 171. Korcak thought many of the complaints at post about Dr. Lefton following Dr. Lefton’s difficult di *435 vorce and remarriage came from persons at post who were sympathetic to Lefton’s first wife. Id. at 161-62. As a result of considerations such as these, it did not occur to Koreak or others in the Office of Medical Services to reprimand Dr. Lefton or to establish a plan for additional medical advice, support, and supervision in the event of a serious medical situation that might (and was more likely to) occur given Dr. Lefton’s poor attitude and lack of availability.

B. The Injury

In September, 1980, Linda Wheeler Tarpeh-Doe (then Linda Wheeler) became a Certified Public Accountant. Her parents were also CPAs. She was then 28 years old. She applied for and was awarded a position as an accountant with AID. AID assigned her, for her first overseas station, to Monrovia, Liberia. On December 29, 1980, in preparation for her assignment, she began approximately five months of training in Washington, D.C. See Pis. ex. 28.

On May 26, 1980, Linda Wheeler left the United States. She arrived in Monrovia on May 27. The next day, she began her first day of work at the Comptroller’s Officer of the AID mission there. See Pis. ex. 26A. In July, 1981, she developed gynecological problems. On the morning of July 7, 1981, she visited the health unit at the embassy. Either Dr. Lefton or Billie Clement, the State Department nurse stationed at the embassy health unit, told her that the embassy health unit did not treat gynecological conditions and referred her for treatment to Dr. Johnson, a local obstetrician and gynecologist. (Testimony of TarpehDoe). 4 Clement called Dr. Johnson and arranged an appointment for Wheeler later that morning. Linda Wheeler visited Dr. Johnson on July 7 and 8, and again on August 1 and 20, and on September 2, 1981. See Pis. ex. 26A. On September 9, 1981, she visited Dr. Kassas, another local doctor, to obtain a pregnancy test. The results were positive.

She had been referred to Dr. Kassas by Nyenpan (Ben) Tarpeh-Doe, an employee of the Liberian Ministry of Justice, whom she had met on her first day in Monrovia. She visited with Ben almost daily thereafter for several months. See TarpehDoe’s daily calendar, Pis. ex. 26A. On July 12, Ben had asked her to marry him. Id. On September 16 and 21, Ben and Linda visited the embassy health unit so that Ben could receive a physical examination and other tests required for their marriage. On January 16, 1982, Linda Wheeler and Ben Tarpeh-Doe were married. During one of the September visits to the embassy health clinic, Linda told Dr. Lefton that she was pregnant. Dr. Lefton normally referred patients to other doctors for prenatal care but would also see a pregnant woman periodically to assure himself that things were well. Lefton dep. at 136-38. However, he scheduled no such subsequent visit for Tarpeh-Doe and did not see her again until June 4, 1982, after she had delivered her baby. See Embassy health records, Defs. ex. 23.

Tarpeh-Doe visited Dr. Johnson for prenatal care throughout her pregnancy, which was easy and without complications. On May 18, 1982, Tarpeh-Doe delivered Nyenpan. Her delivery, attended by Dr. Johnson at Cooper’s Clinic (a local health facility unassociated with the embassy), was also complication-free. On May 21, she was released from the clinic to return to her home in Monrovia. She visited Dr. Johnson on May 23 when the baby’s umbilical cord dropped and again on May 24 because the baby had thrush. On May 25, Dr. Johnson examined Tarpeh-Doe and found her to be well. On May 29, Dr. Johnson examined Nyenpan and found him to be well also. On the morning of Wednesday, June 2, Dr. Johnson again examined both mother and child. He found no sign of problems. That evening, however, according to Tarpeh-Doe’s calendar notation, she became “sick with malaria.” See Pis. ex. 26B.

*436 The next day, Thursday, June 3, she still did not feel well. She was visited by Kate Jones Petrone. Petrone was a friend who lived in the same building. She was also employed by AID, and had begun her first assignment overseas in May, 1981, at the same time as Tarpeh-Doe. That evening, Petrone called the embassy health unit to ask that someone be sent to examine Tarpeh-Doe. In response, a Dr. Feir came to the Tarpeh-Does’ apartment at approximately 10:00 p.m. He was the State Department psychiatrist assigned to the Liberian embassy (but did not live at the embassy). Nurse Billie Clement also came because Dr. Feir wanted a woman to be present. Dr. Lefton (who lived at the embassy) was unavailable; Clement could not recall why. (Testimony of Clement).

Clement found Linda in bed and Ben holding the child. Petrone recalled that Clement looked at the baby and said that she didn’t think the baby looked right. Petrone Dep. at 10-11. However, Clement did not recall examining the child. (Testimony of Clement). Dr. Feir gave Linda a limited examination without being able to fully examine, diagnose and treat her. He suggested that she try to find Dr. Johnson that night and come to see Dr. Lefton at the embassy health unit the next morning. Ben located Dr. Johnson, who visited the apartment at about 1:00 a.m. on Friday, June 4. Dr. Johnson examined Linda and treated her for malaria, staph infection, and mastitis. He did not examine the baby, who was sleeping.

Later that Friday morning, Tarpeh-Doe visited the embassy health unit. There is a conflict of testimony as to whether she brought the baby with her. 5 Dr. Lefton treated her with ampicillin for mastitis. See Defs. ex. 23. Tarpeh-Doe had not been breast feeding while she was ill. Nevertheless, Dr. Lefton advised her to resume breast feeding. Id. Dr. Lefton was not aware at that time that Feir and Clement had visited Tarpeh-Doe the night before but had not examined the baby. Lefton dep. at 64. There is no indication that he inquired into the condition of the baby or offered to see him.

Later that Friday, the baby was lethargic and was not feeding. At 5:00 p.m. that Friday evening, his parents took him to an emergency facility at Cooper’s Clinic, where Dr. Tirad, a local physician, treated him with ampicillin for skin rash and fever. The baby did not improve, however. At 8:00 p.m. the same evening, his parents took him to the emergency room at the Catholic Hospital in Monrovia. There two local doctors examined him and treated him with an electrolyte solution for dehydration. He was not admitted at either facility and returned home with his parents. He slept through the night, which he had never done before.

At 9:00 a.m. on Saturday morning, June 5, Tarpeh-Doe woke Nyenpan to try to feed him. The baby “became rigid” in her arms for one to two seconds, and the Tarpeh-Does left to take him to see Dr. Johnson in his office. On their way to Dr. Johnson’s office, they passed Clement. Clement expressed surprise that TarpehDoe was not home in bed due to her own illness. When she heard that the baby was ill and that the parents were proceeding on their way to Dr. Johnson’s office, Clement advised them to accompany her to the embassy health unit instead. (Testimony of Tarpeh-Doe). The four of them arrived at the embassy health unit at about 10:30 a.m. On the way, Nyenpan suffered a second period of rigidity, or seizure. Once there, Clement went to find Dr. Lefton. Within five minutes, Dr. Lefton arrived. He examined the baby, who experienced a third seizure at the clinic. Dr. Lefton administered gentamicin and procaine penicillin. He informed the parents that the child could be evacuated on a Pan Am flight scheduled to leave that evening at 11:00 p.m. Then, Dr. Lefton sent Mary Awantang, the State Department lab technician assigned to the Liberian embassy health unit, to find Dr. Van Reken, a pediatrician, and bring him to the clinic to examine the baby. Dr. Lefton had never referred a *437 patient to Dr. Van Reken previously. Lefton Dep. at 58. A pediatrician to whom he had referred patients in the past was out of town on June 5.

When Awantang located Dr. Van Reken, he was lecturing to medical students. He left the lecture and came to the embassy, arriving at approximately 11:30 a.m. Dr. Van Reken, Dr. Lefton and the other medical personnel took Nyenpan into an examining room. After examining the baby, the doctors informed the Tarpeh-Does that their son had spinal meningitis. Dr. Van Reken said that he could “make the baby well.” The Tarpeh-Does expressed their preference for evacuation to the United States. In an attempt to dissuade them, Dr. Van Reken told them of an Indian family whose child had contracted spinal meningitis. That family had flown to India for treatment. However, upon returning, they informed Van Reken of the treatment given there. It was the same treatment Van Reken would have provided in Liberia, had they stayed. The Tarpeh-Does still preferred evacuation. There is no indication that Drs. Lefton and Van Reken determined that evacuation would have been more risky than treatment in Monrovia. Nonetheless, Dr. Lefton decided not to permit the parents to evacuate. Instead, he transferred the care of the child to Dr. Van Reken. Dr. Van Reken was the head of the pediatric ward at John F. Kennedy (JFK) Hospital in Monrovia and told the Tarpeh-Does that he wanted to admit the child there. Dr. Lefton had never sent a patient to JFK and was not familiar with its facilities or conditions. Lefton dep at 59. However, Ben Tarpeh-Doe, in his reporting work for a newspaper issued by the Liberian Ministry of Justice, had researched conditions at various Monrovian hospitals. The Tarpeh-Does informed the doctors that Ben had found that the conditions at JFK were appalling. The TarpehDoes vehemently opposed placement of their child in JFK, noting to the doctors that the hospital was known popularly as “Just For Killing.”

Over the parents’ objections, and with the knowledge and concurrence of Dr. Lefton, the baby was taken to JFK by the parents, accompanied by Dr. Van Reken and Clement. They arrived at about 12:00 noon. The hospital did not place him in a room until 1:30 p.m. During that hour and a half, the parents continued to express to Dr. Van Reken their objections to admitting their child to JFK. Once the baby was given a room, Dr. Van Reken left the hospital to deliver a speech. Clement also left after the baby was admitted to a room. On Dr. Van Reken’s instructions, Ben TarpehDoe went to a local pharmacy to purchase certain prescriptions not available at the hospital. At 4:00 p.m., Dr. Van Reken returned and left instructions for administration of care during the night, such as when to administer various medications. Tarpeh-Doe stayed through the night accompanied by several friends, including Petrone, Charlene Fergusen, a nurse, and Welma Witten, a doctor. Fergusen and Dr. Witten’s spouses were on contract with or employed by AID. The conditions at JFK were unsanitary. There were small cockroaches inside the baby’s incubator that came out in large numbers when the heating unit in the incubator was turned on. There were also large cockroaches in the room and rats present both inside and outside of the room. (Testimony of Tarpeh-Doe); Petrone dep. at 14.

During the night of June 5-6, neither Dr. Van Reken nor Dr. Lefton visited the baby at JFK. Moreover, no hospital doctor could be located at crucial times during the night. Medical records from JFK indicate that the infant was treated by a Dr. Waiwaiku at 7:30 p.m., 9:00 p.m., and 6:30 a.m. Pis. ex. 2. Dr. Lefton did not know Dr. Waiwaiku, nor whether he was a resident or an intern. Lefton dep. at 161. When the times came during the night to administer medicine as specified earlier by Dr. Van Reken, Tarpeh-Doe and her friends could not find any doctor in the hospital nor any other person authorized to administer the medicines. During the night, Nyenpan developed a fever and suffered more seizures. Dr. Witten felt that he should be on oxygen. Tarpeh-Doe and her friends asked the hospital employees for oxygen but they were informed that the hospital *438 had only one unit and that that unit was in use. They called the embassy to ask to use an oxygen unit. Someone there informed them that the embassy had no oxygen unit. When Tarpeh-Doe and her friends were unable to locate any other doctor or a nurse during the night, Dr. Witten, concerned about a particularly bad seizure, administered valium.

Late the next morning, Sunday, June 6, Dr. Van Reken arrived at JFK. TarpehDoe and her friends told Dr. Van Reken that they wanted Nyenpan transferred to another hospital. Dr. Van Reken at first refused. However, at the insistence of Tarpeh-Doe and her friends, especially Dr. Witten and Fergusen, he ultimately relented. But he asked the Tarpeh-Does not to put anything in writing about the conditions at JFK. He also requested that they leave at the hospital the prescriptions they had purchased the previous evening and not used. Early that afternoon, Nyenpan was transferred to the ELWA hospital.

The conditions at ELWA were better than those at JFK. The facilities were cleaner and the nurses were more attentive. The hospital had access to more medications. A private nurse was hired to attend the baby every night from 10:00 p.m. to 6:00 a.m. While Nyenpan was a patient at ELWA, Dr. Van Reken visited him daily. In addition, Ben Tarpeh-Doe was acquainted with a doctor at ELWA who was able to help them at times when they could not find other doctors. Dr. Lefton finally visited Tarpeh-Doe and Nyenpan at ELWA, but only once. He examined the mother but not the baby. Ambassador Swing also visited them.

Nyenpan did not improve at ELWA. He continued to suffer periodically from seizures. His temperature did not remain constant. The doctors altered the dosage and mix of medications several times. The Tarpeh-Does discussed Nyenpan’s condition with Dr. Van Reken, only to be informed that he did not know what was wrong or what was causing the meningitis. The Tarpeh-Does continually asserted their preference for evacuation, and offered to pay the cost of evacuation if necessary. After a few days at ELWA, Dr. Van Reken agreed that the child should be evacuated and offered to accompany the child if necessary. Nonetheless, the evacuation was not authorized until June 17. On June 17, Nyenpan, the Tarpeh-Does and Clement flew from Liberia to Colorado, by way of Dakar and New York. On arrival in Colorado, Nyenpan was admitted into the University of Colorado hospital.

Nyenpan was treated at the University of Colorado hospital for approximately two weeks. Doctors informed the Tarpeh-Does that their child had suffered severe brain damage. See Hospital Records, Pis. ex. 5. Towards the end of Nyenpan’s stay at the University of Colorado hospital, the doctors asked the Tarpeh-Does whether they wanted the hospital to remove life support systems. The doctors believed that the child would die within twenty four hours without life support. Nyenpan’s parents agreed to the removal of life support, and feeding and other tubes were removed. Defying the doctors’ predictions, Nyenpan survived. (Testimony of Tarpeh-Doe); see also Pis. ex. 5 (e.g., entry for June 30 stating “do not resuscitate”). Three or four days later, on July 3, 1982, the Tarpeh-Does took Nyenpan to Marilyn Wheeler’s home.

On July 25, 1982, AID assigned TarpehDoe to work in its Washington, D.C. office. Nyenpan lived with her in Washington. He received daily therapy at the Hospital for Sick Children and was admitted at times to Children’s Hospital. He continued to suffer from seizures. Dr. Adrian Smith, a neurologist who treated Nyenpan at Children’s Hospital during that time, described his condition as spastic and non-communicative. She also stated that he was incapable of meaningful motor movements and unable to feed himself. She believed that he was blind but that there was some brain stem motion with respect to hearing. She testified that the damage was permanent, and that she was doubtful that there would be any improvement. (Testimony of Smith).

After Tarpeh-Doe had worked in Washington for more than a year, AID informed her that she would have to take another *439 overseas assignment. To work overseas, an employee and dependents must be granted medical clearance, i.e. examined and found medically qualified, for a post. See Pis. exs. 35 & 59, 3 FAM 681.6(i). Nyenpan was not granted medical clearance. The family made arrangements for him to be admitted in December, 1983, to the Wheat Ridge Regional Center in Colorado. To provide assistance for Nyenpan, the State of Colorado required that he have a resident guardian. Just before he was admitted to Wheat Ridge, Marilyn Wheeler became his legal guardian. (Testimony of Marilyn Wheeler). On April 1, 1984, Linda Wheeler Tarpeh-Doe accepted an assignment with AID in Jamaica.

At Wheat Ridge, where Nyenpan remains, and will remain for the foreseeable future, he receives extensive care. He has no independent skills. See Deposition of Joseph William Thompson at 22. He has no functional control over his arms and legs, though he can move them. Id. at 22-23. He is blind. He continues to have ten to twelve seizures a year. Id. at 21. Care providers feed and dress him. Id. at 22. They also turn him every hour or two to prevent skin breakdown. Id. at 18. In addition, they sometimes give him baths or massages, read him stories, or take him outside in a wheelchair. Deposition of Deborah Jean Azuero at 15. He does not communicate in any meaningful way but responds positively to the care providers who are familiar to him. Thompson dep. at 23.

C. The Treatment

Plaintiffs allege that Drs. Lefton and Van Reken misdiagnosed and mistreated Nyenpan’s illness in Monrovia. Specifically, they claim that Dr. Lefton’s administration of antibiotics at the embassy health clinic on June 5, prior to any testing, masked accurate results in subsequent tests. They also argue that Nyenpan could have been evacuated immediately and that he should have been evacuated sooner than June 17. Defendants argue that the doctors’ actions did not fall below the standard of care. At trial, the parties produced extensive evidence in support of their positions. This evidence, summarized below, is relevant only to the degree that it relates to the issue of whether there was a causal link between the State Department’s acts and omissions in Washington, D.C. and Nyenpan’s injuries.

1.

The medical experts who testified at trial agreed that Nyenpan’s brain damage was caused by spinal meningitis, an infection of the meninges covering the spinal cord and brain. They suspected bacterial, rather than viral, meningitis. Bacterial meningitis can have a devastating effect very quickly in neonates (as it apparently did in Nyenpan’s case). To identify the bacterial agent, the cerebrospinal fluid (CSF) of a patient, obtained by spinal tap or lumbar puncture, is cultured. Cultures of other samples can also aid in diagnosis.

However, neither Nyenpan’s doctors nor the expert witnesses could identify with certainty the bacterial agent causing his meningitis—despite three CSF cultures, cultures of blood and other body fluids, and examination of other indicators such as white blood cells, glucose, potassium and sodium analyses, and temperature levels. Using the diagnoses of the various treating physicians and lab reports, the experts identified three possible agents: staphylococcus (staph), streptococcus (strep), and salmonella, all of which are endemic to Western Africa. Staph and strep are “Gram positive” bacteria, i.e. they react in a particular way to a “Gram’s stain.” Salmonella, on the other hand, is a “Gram negative” bacteria. Gram positive and Gram negative bacteria are treated with different antibiotics.

On June 5, when Nyenpan was first brought to the embassy health unit, Drs. Lefton and Van Reken, assisted by Clement and Awantang, took blood and stool cultures and a culture of fluid from skin lesions. In addition, Dr. Van Reken performed a lumbar puncture to obtain a CSF sample for testing. A smear of the CSF performed that morning revealed white blood cells (WBCs) and two rare Gram positive cocci on the stain of the CSF sample. See Defs. ex. 27; Awantang dep. at 118. *440 That result was unusual and left the medical personnel uncomfortable, since, if the baby had meningitis, the stain should have evidenced numerous bacteria. Id. However, the presence of WBCs indicated meningitis even without strong evidence of a bacterial agent. (Testimony of Smith). A Gram’s stain of the skin fluid showed “few gram positive cocci and many WBC’s,” Defs. ex. 27.

After overnight culture, the CSF sample taken at the embassy health clinic on June 5 was sterile, though it had revealed two rare Gram positive cocci on smear the day before. See Defs. ex. 27. In contrast, fluid taken from the skin lesions, after culture overnight, demonstrated heavy growth of Gram positive cocci, which was later revealed to be staph. Id. Stool cultures revealed a similar form of staph. Id. No malarial parasites were found. Dr. Van Reken diagnosed and treated Nyenpan for “Group B” strep, a Gram positive meningitis. Pis. ex. 3.

On June 10, blood and CSF tests were repeated at ELWA. Cultures of those tests were also sterile. Id. and Pis. ex. 2. Dr. Van Reken requested that Mary Awantang send a portion of the CSF sample obtained on June 10 to the State Department Office of Medical Services to obtain a counter immuno-electrophoresis (CIE) test. See Defs. ex. 27 at 2. This test reveals specific antibodies and could have aided the doctors in detecting salmonella, were that bacteria present. See Pis. ex. 43; Lefton dep. at 99-100. However, instead of conducting a CIE test, the State Department in error sent the sample to a laboratory in Washington, D.C. accompanied by a request for an immuno-electrophoresis test, which is used to detect multiple sclerosis. See Pis. exs. 43 & 39 (cable dated June 21, 1982). When Nyenpan reached the University of Colorado hospital, blood, urine, and CSF cultures were repeated for a third time. The blood tests revealed salmonella. The other cultures were sterile. Accordingly, Nyenpan was treated in Colorado for salmonella sepsis, a blood infection. See Pis. ex. 5; (testimony of Dr. Wientzen).

Dr. Adrian Smith and Dr. Edward Gross, plaintiffs’ experts, expressed the opinion that Nyenpan suffered from salmonella meningitis that Drs. Lefton and Van Reken failed to diagnose and treat. (Testimony of Dr. Smith, Dr. Gross). In support, they noted that a bacterial agent causing sepsis can cross the “blood/brain barrier” and lead to meningitis more readily than a bacterial agent causing a skin infection. (Testimony of Dr. Smith); see also Defs. ex. 34 at 965. Drs. Raoul L. Wientzen and Marianne Schuelein, defendants’ experts, believed that Nyenpan’s meningitis was caused by a Gram positive bacteria. (Testimony of Dr. Wientzen, Dr. Schuelein). Like Dr. Van Reken, Drs. Wientzen and Schuelein believed that the causative bacteria was Group B strep, even though strep was never cultured from any sample and skin and stool cultures had revealed staph. '

2.

a.

Defendants contend that Dr. Lefton was not responsible for Nyenpan’s injuries because the child was already devastated and beyond hope of recovery when his parents brought him to the embassy health unit on June 5. Dr. Lefton believed to the contrary that when the child was brought to the embassy health unit on June 5 he was neurologically and physiologically intact. See Pis. ex. IB; Lefton dep. at 70. The experts offered conflicting views on the question of when Nyenpan was beyond hope of recovery. Dr. Wientzen, whose expert testimony overall was highly persuasive, offered two answers to this question. When first asked whether Nyenpan was beyond hope of recovery at the embassy health clinic, Dr. Wientzen testified that he was beyond hope sometime during the middle of the first hospital day, i.e., June 6. When asked again, though, he changed his opinion and stated that he believed the baby was beyond hope on June 5. However, he also testified that many people with the symptoms Nyenpan had on June 5 recovered to lead a normal life. (Testimony of Wientzen). Dr. Gross believed that when Nyenpan was brought to the clinic, there was no permanent structural damage *441 to the brain. He testified that, more likely than not, had the baby been treated aggressively for Gram negative meningitis, he would have recovered. He believed the baby became devastated some time between June 5 and June 17, and he was not sure when. (Testimony of Gross). Dr. Schuelein believed that Nyenpan was devastated by the time he arrived at the embassy health unit. (Testimony of Schuelein). The experts’ conflicting opinions on this point suggest that it is very difficult if not impossible to pinpoint with certainty the earliest time at which Nyenpan was beyond hope of recovery. Nevertheless, appraisal of the testimony indicates that it is more likely than not likely that Nyenpan was beyond hope of recovery at least by the time or shortly after his transfer to ELWA on June 6. Therefore, the critical time period for administering proper care was between June 3 and June 6.

b.

On June 5, 1982, when Dr. Lefton first examined Nyenpan and before Dr. Van Reken arrived, Lefton promptly administered procaine penicillin and gentamicin before taking any samples for culture, such as blood, skin pustule, or urine or stool samples. Dr. Lefton also did not record any pulse or respiratory readings prior to administering antibiotics. Plaintiffs contend that the antibiotics took effect so quickly that the samples obtained by Dr. Van Reken one hour later were sterile. The experts agreed that it would be below the standard of care not to obtain body fluid and other samples prior to the administration of antibio