U.S. Government trying to punish woman further

Judge asked to lower award
Government questioning future costs
Saturday, Dec. 13, 2008
BY JIM SUHR – Associated Press

EAST ST. LOUIS — The U.S. government is asking a federal judge to trim an $8.6 million judgment over an Air Force base doctor’s mistreatment of a case of flesh-eating bacteria that cost a woman use of an arm.

Federal prosecutors this week asked federal Magistrate Judge Philip Frazier to reconsider his ruling favoring Jean Phillips, an Air Force captain’s former wife, who the judge concluded was left with a right arm that’s been “withered, lifeless and useless” since 2002.

Frazier, after an August bench trial, found that Dr. Dan MacAlpine was stationed at Scott Air Force Base just east of St. Louis when he failed to notice or heed Phillips’ rash on her right arm in 2002, assuming she was an addict looking for prescription drugs. MacAlpine told her to go home and take Motrin, a popular over-the-counter pain medication.

But the rash turned out to be necrotizing fasciitis, commonly known as flesh-eating bacteria, that Frazier says eventually cost Phillips use of her right arm.

“This is a sad story,” Frazier wrote in his 13-page ruling Nov. 25. With a useless arm that causes her continuous, extreme pain and likely hooked on prescription drugs, the judge added, the now-divorced Phillips “faces the future with no reason to be optimistic that things will improve.”

Frazier awarded $2.5 million each for future pain and suffering and for future disability, as well as $1.5 million for past pain and suffering. The judge also said Phillips should get $500,000 apiece for past disability and disfigurement, $495,169 for past and future lost earnings, $421,581 for past medical costs and $215,040 for future ones.

Frazier credited the government for $110,748 in medical services already rendered.

“Granted, there are more dramatic injuries out there involving multiple amputations and the like,” Frazier wrote. “But (Phillips’) situation is about as bad as it gets when one considers the impact on her work and personal life.”

The judge acknowledged Phillips’ life already “was on a downward arc” when she contracted the flesh-eating bacteria, noting she had poor health including issues with abnormal uterine tissue growth called endometriosis, hypothyroidism, insomnia, headaches and anxiety. Frazier said she also had emotional troubles and perhaps drug addiction.

But “she had one other thing that she does not have today. She had a chance,” the judge wrote. “The cruel reality is that her life would probably improve if the arm were taken” — amputated to make way for a prosthetic arm she actually could use.

In its motion Wednesday, the U.S. government, which operates Scott Air Force Base through the Defense Department, asked Frazier to lower the damages he assessed for Phillips’ past and future medical expenses and her lost wages. Those damages total $1,131,790.

According to the government, Phillips’ future medical expenses beyond 10 years from now required speculation, perhaps making her eligible for $48,000 — not $215,040 as Frazier ruled. And “there is simply no evidence in the record that (Phillips) was willing or able to work even prior to her necrotizing fasciitis,” Wednesday’s motion read in questioning the woman’s eligibility for lost earnings.

Phillips’ attorney, Thomas Keefe Jr., was out of the office Friday and unavailable until next week, according to his office, which declined to disclose where Phillips now lives. A published telephone listing could not be found.

MacAlpine now lives in Iowa, where a woman who answered his home telephone Friday said the 39-year-old doctor had no comment. The AP left a message.

Randy Massey, a spokesman for Southern Illinois’ U.S. attorney’s office representing the federal government in the case, declined comment Friday.