FSM SUPREME COURT
TRIAL DIVISION (Pon.)
Cite as Amor v. Pohnpei ,
3 FSM Intrm. 519 (Pon.1988)

[3 FSM Intrm. 519]

ANDONIO AMOR in his individual capacity and
 as personal representative of the Estate of     
AKILEUS AMOR: and ANDRICO AMOR,  
SANDREGO AMOR and DELLZA AMOR  
Plaintiffs,

v.

THE GOVERNMENT OF THE STATE OF
POHNPEI, and GEORGE FLEENOR,  
Defendants,

   v.

WELSIN OLTER
Third Party
Defendant.

FSM CIV. NO. 1987-024

OPINION
 
Before Edward C. King
Chief Justice
December 12, 1988

APPEARANCES:
      For the Plaintiffs:      Fredrick L. Ramp
                                         Attorney at Law
                                         Ramp & Michelsen
                                         P.O. Box 1480
                                         Kolonia, Pohnpei  96941
 
      For Defendants:       Randy Boyer
      (Pohnpei State         State Attorney
      Government, and      Office of State Attorney
      George Fleenor)      Kolonia, Pohnpei  96941

      For Third Party         Steven Skipton
      Defendant                 Attorney at Law
                                         Micronesian Legal Services Corporation                               
                                  Kolonia, Pohnpei  96941

[3 FSM Intrm. 520]

HEADNOTES
Health
      So long as a state retains its role as the primary provider of health care services in that state, it is legally obligated to make a reasonable effort to provide a health care system reasonably calculated to meet the needs of the people of the state, but the state may make decisions to limit the scope of medicines to be maintained, so long as the decisions are based upon sound medical judgment arrived at through consideration of the health needs and financial realities of the state.  Amor v. Pohnpei, 2 FSM Intrm. 519, 530-31 (Pon. 1988).

Health
      Once a state health services decision has been made that a particular medicine should be obtained for patients, the state health services staff and other responsible state officials are under a duty to take reasonable steps to obtain the medicine.  Amor v. Pohnpei, 3 FSM Intrm. 519, 531 (Pon. 1988).

Health
      Any liability of the state for suffering or death caused by defective health care provided by the state must be based upon theories of negligence, not strict liability.  Amor v. Pohnpei, 3 FSM Intrm. 519, 534 (Pon. 1988).

Health
      Any causative factors not within the exclusive control of the alleged negligent party render res ipsa loquitur doctrine inapplicable to an action for medical malpractice.  Amor v. Pohnpei, 3 FSM Intrm. 519, 534-35 (Pon. 1988).

Health
      Whether the relationship between U.S. National Health Service Corps doctors and the State of Pohnpei is such that the doctrine of respondeat superior may be applicable in an action for medical malpractice so that the state may be made to respond in damages for any negligence of the doctor has not been determined.  Amor v. Pohnpei, 3 FSM Intrm. 519, 536 (Pon. 1988).

Negligence
      Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances.  Amor v. Pohnpei, 3 FSM 519, 531 (Pon. 1988).
 
*    *    *    *

COURT'S OPINION
EDWARD C. KING, Chief Justice:
      In this wrongful death action the plaintiff seeks an award of damages for the death of Akileus Amor.

[3 FSM Intrm. 521]

      The representative of the decedent's estate1 asserts that the State of Pohnpei was negligent in failing, over an unreasonably extended period of time, to provide for Mr. Amor the medicine best suited for treatment of his asthma condition.  The estate claims that this failure eventually caused Mr. Amor's death.

      In the alternative, the estate asserts that Mr. Amor's attending physician, a United States Public Health service doctor assigned by that agency to work in Pohnpei, negligently failed to prescribe possible substitute medications which were available at the hospital and would have prevented Mr. Amor's death.

      This is the first medical malpractice case that has come to trial before this Court.  The facts and principles of law are therefore set out in somewhat more detail than might seem warranted for similar cases in the future.

      For the reasons set out in the opinion, the Court has concluded that the state may not be held liable under the facts of this case.

I.  Findings of Fact
      Prior to the trial, which was held on November 17 and 18, several depositions were taken by the parties.  These included the depositions of:  Steven Ostroff, M.D., taken on January 7, 1988; George Fleenor, one taken on July 20, 1987 and another on May 16, 1988; Thomas Vaughan, Jr. M.D., taken on September 9, 1988; and Fredrick Hesus, July 13, 1988.  All of these depositions were admitted into evidence, except for certain portions indicated in this Court's pretrial order entered on November 17, 1988.

      In addition, the parties jointly filed a pretrial statement, which included some 20 paragraphs of "admitted and agreed facts."  Finally, the pretrial statement listed numerous exhibits, all of which were admitted pursuant to stipulation of the parties except as otherwise noted in the pretrial order.

      Based upon these documents and the evidence adduced at trial, the Court makes the following findings of fact.

A.    The Decedent
      Akileus Amor, a citizen of the Federated States of Micronesia, resided in Madolenihmw Municipality with his wife and three children.  He lived near the Ponape Agriculture and Trade School ("PATS") and worked there as a mechanic.  Mr. Amor was a normal healthy person until he contracted asthma, which within a few years caused his death on November 28, 1985, at age 34.

[3 FSM Intrm. 522]

      Mr. Amor began visiting the Pohnpei Hospital seeking treatment for his asthma.2  Sometime during 1985, Mr. Amor was referred to Dr. Steven Ostroff, a staff physician at the Pohnpei Hospital who arrived on Pohnpei during 1984.3

B.    Medicine for Asthma
      Early on in his treatment of Mr. Amor, Dr. Ostroff determined that a drug called alupent would be the preferred drug for treating Mr. Amor's asthma. Alupent is a brand or trade name for a kind of drug, known as a sympathomimetic, or adrenergic, bronchodilator, which may be inhaled by the patient through the use of a puffer, or a nebulizer.  These are devices which vaporize liquid so that the medicine may be inhaled by the patient in spray form.

      The depositions of Dr. Ostroff and of Thomas R. Vaughan, Jr. M.D., explain that an inhalable sympathomimetic bronchodilator is a preferred form of treatment of asthma patients, regardless of the severity of the asthmatic condition.  This is for several reasons.  First, asthma is shortness of breath caused primarily by constriction, inflammation and swelling of the bronchial tubes, accompanied by production of mucous.  An inhalable sympathomimetic bronchodilator, which relaxes bronchial muscles and dilates the tubes, addresses the primary cause of asthma.

      Second, since asthma is a troubled breathing condition, inhalation is the method best calculated to address the problem directly and immediately.  Third, while apparently all asthma medicines have some side effects, and  inhaled sympathomimetic bronchodilators can affect the heart rhythm, this medicine has fewer side effects or risks than the alternative forms of asthma treatment, especially for patients like Mr. Amor, who had no record of heart problems. Vaughan dep. 44-45.

[3 FSM Intrm. 523]

      Dr. Vaughan, a private practitioner in San Francisco, specializes in pulmonary disease.  He testified that an inhaled sympathomimetic bronchodilator, such as alupent, is now the preferred primary treatment for asthma in the United States.  He indicated that, under the generally accepted method of asthma treatment in the United States practice with which he is familiar, only this type of inhaled bronchodilator is employed as the first treatment.  If that proves inadequate, supplementary medicines would be added, one at a time.  Dr. Vaughan made clear however that in his view an inhaled sympathomimetic bronchodilator, like alupent, would be used, and would be the base or foundation medicine, at all stages of asthma treatment.

       When Dr. Ostroff arrived at the Pohnpei hospital, he was assigned to the medical ward, where he bore principal responsibility for treatment of all asthma patients in Pohnpei.  He found that neither alupent nor any other inhaled sympathomimetic bronchodilator was maintained at the hospital.  In the standard asthma treatment employed in Pohnpei at that time, primary reliance was placed on oral aminophylline and terbutaline, to be supplemented in more acute or emergency situations by injectable epinephrine or prednisone.

       At all times pertinent to Mr. Amor's treatment, the Pohnpei hospital did have a supply of epinephrine.  Indeed, before Dr. Ostroff arrived, a generally accepted practice in Pohnpei was to give asthma patients epinephrine for emergency use at their homes.  Although epinephrine can be administered through inhalation, the drug normally was given in Pohnpei by injection, whether at home or in the hospital.

       Dr. Ostroff requested the medicine supply department to obtain alupent. Sometime in February or March, 1985, Dr. Ostroff showed alupent liquid medicine and hand-held puffers to Welsin Olter, the medical supply officer, and requested Mr. Olter to order such items.  Ostroff dep. 20-22.  In the meantime, Dr. Ostroff had personally obtained some alupent from other sources, for his patients' use while he awaited the new supply ordered by the hospital.

C.     Mr. Amor's Treatment
       Dr. Ostroff did in fact provide Mr. Amor with alupent as long as his personally obtained supply held out.  However, the last time he was able to give Mr. Amor the medicine was in July.  Mr. Amor had used all of this last supply by sometime in early August.

       At almost exactly this time, and in great part because of the absence of alupent, Mr. Amor's condition took a definite turn for the worse.  In August he was, for the first time, admitted to the hospital for treatment of his asthma condition. He never recovered appreciably and was admitted to the hospital three more times during the next several months before his death.  Mr. Amor's hospitalization ended about one or two weeks before his death.

       After the alupent ran out, Dr. Ostroff prescribed for home use oral aminophylline and brethine, a terbutaline medicine, which also is to be taken orally.  Ostroff dep. 16.  However, during Mr. Amor's last hospitalization,

[3 FSM Intrm. 524]

the brethine supply also ran out and apparently was not replaced before he died. Id. at 18.  There is some suggestion that Dr. Ostroff may also have prescribed prednisone, a steroid medication used to treat people with acute asthma, but the Court makes no finding on this.  Id. at 17-18.  He also provided Cindy Skipper, a nurse at PATS, with epinephrine so that she could administer injections to Mr. Amor if necessary.4

       Dr. Ostroff testified that he was "fairly well convinced" that, during the last few months of his treatment, Mr. Amor was using the medications prescribed.  Based upon that testimony the Court concludes that Mr. Amor was in fact doing so.  This was a change from the earlier days of Mr. Amor's treatment, when Dr. Ostroff did not believe that Mr. Amor was fully complying with medication instructions.

       Ultimately, when Mr. Amor was released from the hospital for the last time, in mid-November, 1985, he was instructed by Dr. Ostroff to return to the hospital if he encountered difficulty.  Unfortunately, Mr. Amor did not follow that instruction nor avail himself of the arrangement whereby Cindy Skipper could have administered epinephrine to him at PATS.

       The testimony of Mrs. Amor and the deposition of Mr. Hesus establish that Mr. Amor's condition did worsen on a continuing basis after his final release from the hospital.  During those last days he suffered chronic difficulty breathing, punctuated by severe attacks.  Mrs. Amor urged him to return to the hospital on several occasions but he refused to do so, saying that nothing could be done for him there.

       Ironically, alupent finally arrived at the hospital on November 25, three days before Mr. Amor's death.  He however was not advised of this fact.  At the same time, because Mr. Amor did not return to the hospital as his condition worsened, Dr. Ostroff and others at the hospital were unaware of the severe nature of his suffering.

       During the afternoon before Mr. Amor died, Fredrick Hesus, his co-worker and supervisor at PATS, observed that Mr. Amor "did not look too

[3 FSM Intrm. 525]

good" and offered to drive him to the hospital.5  Mr. Amor rejected this offer, assuring Mr.  Hesus that he "will be all right" and saying that maybe he could go to the hospital the next day.

       When Mr. Amor finally did realize how desperate his condition was, and the urgency of obtaining medical care, it was too late.  Although Fredrick Hesus was requested to drive the Amors to the hospital at 4:00 a.m. on November 28 and did so as rapidly as possible, Mr. Amor died en route.

D.     The Alupent Order
       No fixed procedure, in effect in 1985 for the ordering of medicines not previously used at the Pohnpei hospital, has been brought to the attention of this Court.  The Court concludes that no formal system did exist and that orders for new medicines generally were the product of informal contacts between physicians and staff of the medical supply office.
 
       In such a context the precise date of an internal decision to order a particular medicine is obscured.  This procedural haziness in turn increases the difficulty of determining whether there was undue delay by medical supply personnel in initiating paperwork for an order of new medicine.

       The original order for alupent was exemplary of this pattern.  Dr. Ostroff testified that "not long" after he arrived in Pohnpei in 1984 he "indicated to the person in charge of procurement" that he wanted alupent or some similar medication.  Ostroff dep. 22.  His testimony continued as follows:

A.   And we had discussed it on several occasions back in 1984; but I was fairly new and it took me a while to get into the routine of how things progressed from there, and I didn't want to try to incorporate too much too soon.  But when I obtained the box of medications that came from the mainland, I actually took both the hand-held puffers and liquid medication to the procurement officer and showed him I would like something like that.

[3 FSM Intrm. 526]

Q.     That was at the time that supply, that donated supply arrived sometime in early 1985; is that correct?

A.     That's correct.

Id.  Previous testimony of Dr. Ostroff establishes that he received the donated supply of medication sometime after January, 1985.  Id. at 20.

       The Court finds the evidence insufficient to establish that Dr. Ostroff "ordered" the medicine within the meaning of Pohnpei hospital internal procedures a substantial time before March 20, 1985, when the requisition order for alupent was issued by medical supply officer Welsin Olter.  The evidence does not establish undue delay by Welsin Olter in preparing the requisition order.

       Welsin Olter's preparation of the requisition was in no way defective.  There is no evidence to show that Dr. Ostroff or anybody else indicated an urgent need for the alupent.  In any event, Mr. Olter did attempt to assure quick delivery.  He typed on the face of the requisition a note to the state supply office and to state finance requesting "advanced payment for faster delivery services."

       The order was for "metaprel inhaler with mouthpiece" and "metaprel inhaler refill."  Nobody disputes that metaprel is a brand name product substantially equivalent to alupent.  Thus the order was correctly made.

       Mr. Olter's only decision concerning the requisition order that might be subject to question is his identification of Henry Schein Inc. ("Schein") as the recommended supplier of the medicine.  As it turned out, Schein ultimately refused to ship the medicine until earlier unpaid invoices were paid.  This caused several months delay.  There is, however, no showing that Welsin Olter or anybody else at the hospital knew or should have known that Schein had not been paid and would therefore refuse to ship the alupent order immediately.

       Moreover, neither Mr. Olter, or any other hospital official was dilatory after the requisition was issued.  Mr. Olter followed the ordering procedure carefully.  He first obtained the necessary approval of the requisition from the director of health services, Dr. Alex Panuelo.  After that, on March 26, 1985, he received the required certification from the state budget officer, Ihlen Joseph.

       The next destination was the state finance office for certification of availability of funds.  Finally, the requisition was routed to the state supply officer, where the purchase order, No. 50307, was issued on April 10, 1985.  There is no indication that Mr. Olter or any hospital officials had control over the timing of the state budget office, finance office and supply office activities.  Moreover, plaintiff has not specifically contended, nor does the Court find, that the time between March 20, when the requisition

[3 FSM Intrm. 527]

order was prepared, and April 10, when the purchase order was issued, was unreasonably long.

       The state's check, dated May 22, 1985, was sent to Schein at an unspecified time to pay for the medicines ordered in purchase order 50307.  The check was returned unpaid by the Bank of Hawaii because of insufficient funds in the state's account.  The check appears then to have been returned to the Bank of Hawaii, and honored, on June 20, 1985.  Despite this payment, Schein still refused to ship the medicine identified in PO 50307 because the state was delinquent in its payment for Schein's earlier shipments of medicine.  In response to the state supply officer's inquiry, dated July 1, 1985, Schein responded that, "All orders are being held pending payment of past due balance on invoices and purchase orders."

       The past due account apparently was cleared up to Schein's satisfaction late in August.  Notices received by the state from Schein indicated that the metaprel refill was shipped by mail from Port Washington, New York sometime from August 28 to August 30, 1985.

       For reasons unexplained in the record, the medicine did not reach the Pohnpei hospital until November 25, 1985.  It is the undisputed testimony of Welsin Olter, and the Court finds, that when the metaprel did arrive the medical supply office immediately delivered a supply of the medicine to the hospital pharmacy.6

       Throughout the period from April 10 to November 25, 1985, hospital
 
[3 FSM Intrm. 528]

authorities continued  their efforts to expedite delivery of the alupent order. Welsin Olter testified that he made several inquiries of the state supply office and he speculated that these gave rise to the several supply office inquiries to Schein during that period.  In addition, he testified that during the "summer" of 1985 he called Atkins Kroll, a supplier of medical equipment and drugs in Guam, in an effort to obtain alupent but was told that none was then available.  This testimony also was unchallenged in any way, and the Court therefore accepts it as true.

II.  Legal Analysis
A.     The Claims
       The estate originally relied exclusively upon the alleged negligent failures of the Pohnpei state hospital itself, and of the health services administrator, George Fleenor, to keep and maintain proper and adequate medicines for the treatment of Mr. Amor's asthma.  Specifically, the failure to obtain alupent in timely fashion was the basis for the estate's claim.  However, after Doctors Greg Dever and Aminis David testified that there were on Pohnpei at all times during Mr. Amor's treatment in 1985 alternative medicines, particularly epinephrine and prednisone, which could have been used in an emergency to treat acute attacks, the estate moved to amend the complaint.

       Amendment of the complaint was permitted by the Court during the trial over the objections of the state.  The amendment added a claim against the state based upon alleged negligence of Dr. Ostroff for his failure to prescribe those alternative medicines.  Thus, the estate's claims against the state are now as follows:

       1.  The negligence of the Pohnpei state hospital administrator, George Fleenor, in failing to obtain and maintain an alupent-type medicine caused the suffering and death of Akileus Amor and this failure may be imputed to the state under the doctrine that the master, or employer, is responsible for the negligent wrongdoing of the employee.

       2.  The failure of the state's health care system to obtain alupent within an eight month period after the decision to obtain it was made was such a gross failure that liability should follow automatically, either because the state was under an absolute duty to obtain the medicine in timely fashion, or because no such delay could have occurred without the negligence of the state or its employees.

       3.  The negligence of a Pohnpei hospital staff physician, Dr. Ostroff, in failing to prescribe available alternative medicines for emergency care needs, caused added suffering and the death of Akileus Amor.

B.     The law to be applied
       The decedent in this case and his family resided in Pohnpei and relied upon the Pohnpei health care system for medical assistance.  The primary
 
[3 FSM Intrm. 529]

defendant is the Pohnpei state government.  The state provides health care services to its citizens through the hospital pursuant to direction by the Pohnpei State Constitution and state law.  See Panuelo v. Pohnpei, 3 FSM Intrm. 76 (Pon. S. Ct. App. 1987).  The additional defendant, George Fleenor, the Pohnpei health services administrator; and the third party defendant, medical supply officer Welsin Olter; both were Pohnpei state employees when the actions relevant to this matter took place.  When the events related here occurred, all of the key actors, including Dr. Steven Ostroff, resided in Pohnpei.  For these reasons, the law applicable within Pohnpei should be applied to determine whether defendants may be held liable in this case.

       The claims of the plaintiffs are based upon the Pohnpei wrongful death statute, 6 F.S.M.C. 501-503, and are grounded in the law of tort, an area of the law which this Court has recognized falls within state powers.  See Edwards v. Pohnpei, 3 FSM Intrm. 350 (Pon. 1988).  Thus, Pohnpei state law applies and it is the task of this Court to attempt to determine what that law is.  This Court should strive to apply the same rule that would be applied by the highest state court. Edwards, 3 FSM Intrm. at 362.

       The Pohnpei Supreme Court trial division has held that it is consistent with "the Pohnpeian concept of civil wrong" to impose liability upon persons who fail to exercise reasonable care in carrying out their work.  Koike v. Ponape Rock Products, Inc. (I), 3 FSM Intrm. 57, 62 (Pon. S. Ct. Tr. 1988)(Santos, C.J.). "Negligence" for purposes of Pohnpei law, has been defined as the "failure to use such care as a reasonably prudent and careful person would use under similar circumstances."  Koike, 3 FSM Intrm. at 66, quoting with approval, H. Black, Black's Law Dictionary 930-31 (5th ed. 1979).  Either an act or an omission may constitute negligence.  The claims of liability in this case are based upon the failures of staff members, and of the Pohnpei health care system itself to produce alupent in timely fashion, and the failure of Dr. Ostroff to prescribe alternative medicines for Mr. Amor.

       The Koike decision establishes the general principle that if individuals carrying out their work fail to do what reasonable persons in their positions would do, and thereby cause the suffering or death of others, they may be required to respond in monetary damages calculated to compensate the injured parties for their losses.  3 FSM Intrm. at 70-75.  Koike also makes clear that the longstanding common law doctrine of respondeat superior7 applies in Pohnpei so that an employer may be held liable for the negligent performance of an employee's duties.  Thus, the question raised by each claim is whether the defendants omitted doing something which a reasonable person, "guided by those ordinary considerations which ordinarily regulate human affairs, would do." Id.

[3 FSM Intrm. 530]

C.     Duty to obtain alupent
       A threshold issue is whether there ever is any duty owing by the State of Pohnpei to obtain medicine for any of its citizens.  The Pohnpei Constitution speaks of a governmental duty to "provide health care services for the public." Pon. Const. art. 7, 4.  That language has been interpreted as merely directory, empowering the government to undertake responsibilities for the health needs of the people, but not creating a duty enforceable in the courts.  Panuelo v. Pohnpei, 3 FSM Intrm. 76, 81-82 (Pon. S. Ct. App. 1987).

       The fact remains however that the state has undertaken to provide health care services.  A general principle in the common law is that even one who owes no duty and seeks no reward but voluntarily or gratuitously carries out a task nonetheless owes a duty to perform those donated services with reasonable care.  W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on Torts 32 (5th ed. 1984)("by undertaking to render medical services, even though gratuitously, a doctor will ordinarily be understood to hold himself out as having standard professional skill and knowledge.")  This generally is thought to be a proper principle because the volunteered efforts themselves cause the beneficiary to refrain from seeking alternative providers of the services and to rely upon the services or product produced by the volunteer as reasonably safe and reliable.  Union Carbide & Carbon Corp. v. Stapleton, 237 F.2d 229 (6th Cir. 1956); Restatement (Second) of Torts 323 (1979).

       The Koike decision supports the principle that one who performs work is under a duty to exercise reasonable care to avoid causing harm to others.  For these reasons this Court concludes that so long as the state of Pohnpei retains its role as the primary, if not indeed exclusive provider of health care services in Pohnpei, it is legally obligated to make a reasonable effort to provide a health care system reasonably calculated to meet the needs of the people of Pohnpei.

       The next question then is whether the state, by virtue of having undertaken operation of a health care system, was under a duty to obtain and maintain for asthma patients in Pohnpei, including Mr. Amor, a supply of alupent or some similar bronchodilator.

       Although Dr. Vaughan testified that such a medicine is the preferred primary treatment for asthma in the United States, it is clear that, prior to Dr. Ostroff's arrival, alupent was never included within the supply of medicines maintained at the Pohnpei hospital.  Testimony of Dr. Dever and Dr. David confirmed the obvious fact that Pohnpei cannot be expected to have available for use at all times every medicine ever shown to be useful for treatment of any affliction. Pohnpei, like every place else in the world, has limited resources.  Panuelo, 3 FSM Intrm. at 81.  There can be no doubt that the state retains the right to make reasonable decisions to limit the scope of medical supplies to be maintained at the hospital.

       It is not, however, sufficient to argue, as the state seems to have

[3 FSM Intrm. 531]

been doing in this case, that the lack of sufficient funds justifies any and all absences of medicine from the Pohnpei health care system.  Lack of funds may require cutting back on medicines and it is surely the right of the state to make the decision as to which medicines to discontinue.  However, such cutbacks must themselves reflect reasonable care.  They should be based upon sound medical judgment arrived at through consideration of the health needs of the people of Pohnpei as well as financial realities.

       The Court is not faced here with the question of whether a decision not to provide alupent for Mr. Amor or other Pohnpei residents was reasonably made. In truth, the only decision made was Dr. Ostroff's decision that alupent should be obtained.  As a Pohnpei hospital staff physician, Dr. Ostroff apparently had the authority to decide upon new medicines to be obtained.  There has been no evidence or suggestion to the contrary.  Dr. Ostroff communicated his decision to the medical supply officer and the decision was not opposed or countermanded in any way.

       The Court concludes then that the request for alupent by Dr. Ostroff made shortly before March 20, 1985 constituted a Pohnpei health services decision that alupent was needed for patients of the Pohnpei hospital, including Mr. Amor. That decision having been made, the state and its staff members bearing responsibilities for obtaining medicines were under a duty to take reasonable steps to implement that health care decision and obtain alupent or some similar bronchodilator.

D.     Defendant Fleenor
       As already indicated, the estate claims that defendant George Fleenor was negligent in failing to obtain alupent before November, 1985 and that the state is liable for his negligence under the doctrine of respondeat superior.  George Fleenor did not assume his duties as Pohnpei health services administrator until August, 1985, some five months after the alupent requisition order was issued. At about the same time the state finally made those payments necessary to persuade Schein to ship the alupent.  Thus, he can not be held responsible either for delay within the state in issuing the purchase order or for delay occasioned by failure of the state to make timely payment.

       When he began work at the hospital, Mr. Fleenor was immediately besieged with complaints from doctors about poor medical supply.  He quickly took steps to address the problem.  On August 25, 1985, he wrote to the director of health services recommending that Welsin Olter be removed from the medical supply section and "replaced with someone who can and will do the job."  The response from the director of health services, Itor Harris, was that he too wanted to remove Olter but that it would take time because of personnel regulations.  Although the evidence in this case by no means establishes that Welsin Olter was the primary cause of the medical supply problem, there was no showing that Mr. Fleenor's quick conclusion was unreasonable.

       For reasons unclear in the record, it took three months for the alupent

[3 FSM Intrm. 532]

which Schein claims to have shipped from Port Washington, New York on August 9, 1985 to arrive at the Pohnpei hospital on November 25, 1985.
 
       Plaintiff argues that Mr. Fleenor's memo of the January 13, 1986 establishes that he could have obtained the alupent at any time simply by making a telephone call to Guam.  Supra, at 527-28 & note 6.  However, the record suggests that it is not always so easy to obtain medicine by phone as it was for Mr. Fleenor on January 13.  The uncontested testimony of Mr. Olter was that he called the same supplier during the summer of 1985 seeking alupent and was told that none was then available.  Moreover, although numerous doctors apparently were complaining to Mr. Fleenor about the absence of various kinds of medicines, there is no evidence that he was made aware, or should have understood on his own, that alupent was so critically important that he should have departed from normal procedures in order to have it obtained immediately.

       Even if Mr. Fleenor had focused on the immediate need for alupent, the Schein response to the state supply officer's September 16, 1985 inquiry indicating that the medicine had been shipped on August 29 could reasonably have led him to believe that the alupent would be arriving any day.

       There has been no showing as to the amount of time ordinarily required for shipments from Henry Schein, Inc.  There is no evidence establishing whether Mr. Fleenor should have been aware of the possibility that some three months would elapse from the time Schein shipped the medicine until it arrived in Pohnpei. Thus, Mr. Fleenor did not fall below the standard of reasonable conduct for a health services administrator in failing to make a telephone to Guam for the medicine.

E.     The Pohnpei system
       There is a general consensus that the Pohnpei medical supply system was not working satisfactorily in 1985.8  On December 17, 1984, the Pohnpei hospital administrator, Valerio Hallens, signed a memorandum identifying causes of the problems.  These included, among other causes, an inadequate inventory system, inadequate specification of the duties of medical supply personnel, slow and unreliable shipping of medicine due to the fact that the primary shipper, Air Micronesia, gives only fourth priority to medical supplies,9 and failure of the state finance office to pay suppliers in timely fashion.10

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      Although the Hallens memorandum set out recommendations for solving these problems, it is not clear that any of the recommendations ever was implemented.

       During the period from September 28 to October 12, 1985, less than one year after the Hallens memorandum, Mercy International Health Services, working under contract with the state, reviewed the health care system in Pohnpei.  Mercy's report listed essentially the same medical supply problems as did the Hallens memorandum.

       Moreover, during October, 1985, one month before Mr. Amor died, a four-person team sponsored by the United States Department of the Interior visited hospital facilities throughout the former Trust Territory of the Pacific Islands, American Samoa and Guam.  The report issued by this group in March, 1986 found that numerous medical supply problems were endemic throughout the United States affiliated Pacific hospitals.  This report also specifically found that the Pohnpei hospital medical supply inventory system was inadequate, that more than half of the drugs then in the medical supply department were outdated, yet there was no policy of returning outdated drugs to suppliers for credit, and that on a continuing basis the medical supply office was out of approximately one-fourth of those drugs that the Pohnpei health care system intended to keep on hand.

       Based upon these indications that the medical supply system was generally inadequate, and on the fact that Dr. Ostroff was not able to obtain alupent for at least eight months after he requested it, the decedent's estate maintains that, even if no specific negligence concerning the unavailability of alupent can be shown, the Pohnpei health care system itself nonetheless should be held liable for Mr. Amor's death.

       In closing argument, counsel for the estate characterized his theory as

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one of negligence per se.  There are two possible modes of analysis which might qualify as negligence per se theories.  One approach would be to impose a rule of strict liability, whereby the state government would be regarded as an insurer of health care, or at least of the medical supply system.  Under this approach the state would be held liable for damages flowing from any defective health care, especially the unavailability of needed medicines.

       The estate has offered no rationale for imposition of such a rule of strict liability and the Court sees none.  In tort cases under the common law, liability traditionally has been imposed on actors who have unintentionally  caused loss to others, only if it is shown the actions which caused the harm constituted negligence.  Only in a few limited kinds of cases has tort liability been imposed upon persons who were not negligent and who did not intentionally cause harm. Such imposition of liability without regard to  intent or fault is known in the common law as strict liability.  Strict liability is imposed when the defendant has introduced an unusual risk of harm to an area, for example, through working with explosives, owning wild and dangerous animals, or engaging in ultrahazardous activities.  W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on Torts, 78 (5th ed. 1984).  Hospitals and pharmacies attempt to assist others in alleviating suffering.  They respond to health care problems rather than create new hazards.  So far as the Court is aware, neither government-run nor privately operated hospitals or pharmacies have ever been held liable on the basis of strict liability theories.  Any liability of the state of Pohnpei for suffering or death as a result of defective or inadequate health care services must be based on a showing of negligence, not a theory of strict liability.

       Another doctrine which is sometimes thought of as a negligence per se rule is actually a procedural or evidentiary rule known as the principle of res ipsa loquitur,11 which has been described as follows:
 
     There must be reasonable evidence of negligence;but where the thing is shown to be under the managementof the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use propercare, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arosefrom want of care.

Prosser and Keeton, supra, at 244, quoting In Scott v. London & St. Katherine Docks Co., 3 H. & G. 569, 159 Eng. Rep. 665 (1865).

       The "accident" here was the failure of the alupent to arrive until more than eight months after it had been ordered by Dr. Ostroff.  It surely would be possible to conclude in a proper case that such an extended delay would not

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occur "in the ordinary course of things" if "those who have the management use proper care."

       It should also be understood that factors such as bouncing checks, delays in shipments due to failure of the state to make timely payments to suppliers of medicines, and internal delays in issuing purchase orders due to an inefficient, unresponsive or ill-designed bureaucracy, will not suffice as explanations demonstrating lack of negligence on the part of the state.  Quite the contrary. Each of these factors suggests, rather than negates, negligence.

       Here, however, the res ipsa principle is not applicable because a basic requirement of the doctrine has not been met.  The timing of the shipment was by no means within the exclusive control of the state.  Indeed, during the critical period when Dr. Ostroff's personally obtained supply had become depleted and Mr. Amor was without alupent, the state had no apparent control over the timing of delivery.

       Despite the self-serving statements of Schein in its notices to the state, the evidence is inconclusive as to whether Schein was justified in delaying shipment until the end of August.  There is no evidence showing whether Schein's demand for payment of earlier invoices as a condition to the shipment of the alupent was justified.  More to the point, the date upon which the state paid Schein for any overdue invoices is not revealed.  The Court can not conclude on this record that the state of Pohnpei had exclusive control even over the date upon which the medicine was shipped by Schein.

       Moreover, almost three months elapsed between the time that Schein said it shipped the alupent and the time that the medicine actually arrived in Pohnpei.  It is unclear whether this delay was caused by Schein, by postal services of the United States or the Federated States of Micronesia, or by Air Micronesia.  What is clear is that there is no basis for finding that the state of Pohnpei was in exclusive control of the timing of delivery to the Pohnpei hospital.

       The circumstantial evidence here does not "speak for itself."  A conclusion from this evidence that the state of Pohnpei must necessarily have caused this tragic failure of the medicine to arrive before Mr. Amor's death is not justified.

F.     Dr. Ostroff
       The estate's final theory is that Dr. Steven Ostroff caused the death of Mr. Amor by failing to prescribe alternatives to alupent, available at that time in Pohnpei, which could have been used by Mr. Amor in an emergency.  Dr. Ostroff is not a defendant in this case.  It is the theory of the plaintiff that if Dr. Ostroff is shown to have been negligent, his negligence will be imputed to the state under the respondeat superior doctrine recognized in Koike.

       There are questions as to whether the relationship between Dr. Ostroff,

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a United States National Health Services Corps doctor, and the state of Pohnpei was such that the state should be made to respond in damages for any negligence of Dr. Ostroff.  We need not here address those questions because the evidence in this case is insufficient to establish that Dr. Ostroff made unreasonable or improper decisions which led to the death of Mr. Amor.

       There is ample evidence to establish that Dr. Ostroff was correct in believing that alupent should have been provided for Mr. Amor.  Both Dr. Vaughan and Dr. Ostroff furnished persuasive reasons why this is so.

       Doctors Dever and David each indicated that they would have prescribed epinephrine for Mr. Amor to be taken at home by injection in the event of an emergency.  The testimony of Dr. Vaughan was similar.  Vaughan dep. 47. However, both Dr. Vaughan and Dr. Dever, in stating their views, also said they would have explored whether the nurse at PATS, Cindy Skipper, could have administered the injections.  Both apparently considered this a better alternative than home injections.  As already indicated, Dr. Ostroff testified, and this Court has found, that he did make arrangements for Cindy Skipper to administer epinephrine injections to Mr. Amor at PATS.  Thus, Dr. Ostroff's actions conformed to an alternative suggested by the doctors who testified.

       Even without a finding that Dr. Ostroff had arranged for Cindy Skipper to administer epinephrine injections for Mr. Amor, the evidence here would have been insufficient to support a finding that Dr. Ostroff was negligent in his care for Mr. Amor.

       Dr. Ostroff considered the practice of dispensing epinephrine for use through injections at home to be unsafe.  He and Dr. Vaughan gave sufficient reasons for that belief to indicate that, if alupent and epinephrine are both available, home use of alupent generally should be pursued before prescribing epinephrine for home injections.  However, when Mr. Amor was released there was no alupent and no brethine available.

       Although other members of the medical community in Pohnpei obviously considered it acceptable to provide epinephrine for home use by injection in the absence of alupent, there is no testimony or evidence sufficient to enable the Court, as trier of fact, to assess how safe or dangerous that practice is.

       On the other side of the equation, the evidence is not sufficient to enable the Court to determine whether Dr. Ostroff knew, or should have known, that there was a significant risk that a life-threatening emergency might occur and cause Mr. Amor's death if he had no epinephrine immediately available.

       Specifically, there is nothing to show whether it was reasonable of Dr. Ostroff, given the absence of alupent and brethine, and Mr. Amor's condition, to refrain from giving epinephrine for home use and instead simply to tell Mr. Amor that in the event of an acute asthma attack he should return to the hospital.  The estate has failed to carry its burden of proving, by a

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preponderance of the evidence, that there was negligence in the treatment of Mr. Amor.  These failures of proof are fatal to the estate's case.

       Finally, the Court concludes there can be no wrongful death liability in this case in any event because the decedent failed to follow the medical instructions to return to the hospital if a severe attack occurred.  The estate does not contend that Dr. Ostroff failed to tell Mr. Amor of any risks involved in failing to follow these instructions.  When severe attacks did occur, both Mrs. Amor and Mr. Hesus recommended that he return to the hospital as he had been instructed by Dr. Ostroff.  The testimony shows that if Mr. Amor had done so, he almost surely would have survived, either because of epinephrine injections or because the alupent had arrived.  Mr. Amor's refusal to return to the hospital until it was too late was the primary cause of his death.

Conclusion
       There has been no sufficient showing of negligence on the part of the state of Pohnpei, or its agents or employees, that caused the suffering or death of Mr. Amor.  Instead, Mr. Amor's failure to return to the hospital in timely fashion was the primary cause of his death.

       Accordingly, the claims against the defendants and the third-party defendant are dismissed.
 

Footnotes:

1. Plaintiff is the representative of the decedent's heirs and beneficiaries and will be referred to as the decedent's estate throughout this opinion.
 
2. The parties have advised the Court that the medical records of Mr. Amor maintained by the Pohnpei Department of Health Services at the Pohnpei Hospital have been lost and at no time were made available to any of the parties in this litigation.  Thus some information, normally reflected in medical records, has not been established conclusively.  This includes the timing of Mr. Amor's outpatient visits to the hospital for consultation concerning asthma and his several hospitalizations for that condition during the last months of his life. Findings set out in this opinion concerning such matters are based upon testimonial evidence and the balance of the record referred to above.

3. Dr. Ostroff, a physician with the United States National Health Service Corps, was assigned to Pohnpei by the United States Public Health Service in accordance with a memorandum of agreement between the United States Secretary of Health and Human Services and the national government of the Federated States of Micronesia.

4. Dr. Ostroff's arrangements with Cindy Skipper are unclear.  He testified that he recalled having contacted her concerning Mr. Amor and that he provided her with epinephrine.  Ostroff dep. 26.  Yet Mrs. Amor said there had been no dealings between Ms. Skipper and Mr. Amor concerning epinephrine.  There is nothing in the record to permit the Court to determine whether Dr. Ostroff was misstating the facts concerning Ms. Skipper, whether Mr. Amor simply failed to cooperate with the arrangements for Ms. Skipper to provide him with epinephrine injections, or whether there is some other explanation of these inconsistencies.  Counsel for the estate elicited, and did not challenge, the statement from Dr. Ostroff concerning Ms. Skipper.  The Court therefore accepts the testimony as true.

5. Mr. Amor, a mechanic at PATS, did not himself have an automobile.  The record reveals Mr. Amor as a quiet, self-effacing man who did not want to trouble others.  This surely played a significant part in his decision not to accept the offer of Mr. Hesus to drive him to the hospital during the evening of November 27. One suspects that had Mr. Amor owned his own vehicle or had access to some form of public transportation, he would have gone to the hospital before it was too late.
 
       There is nothing in the record to show that Dr. Ostroff was aware of these factors, which might have alerted him that Mr. Amor might not likely return to the hospital at the onset of an attack.

6. These two findings concerning the arrival of the alupent in Pohnpei  and its immediate delivery to the pharmacy are accepted by the Court principally because no party has contested them.  Yet, they are difficult to reconcile with memoranda of Dr. Ostroff and Mr. Fleenor prepared after Mr. Amor's death.

       A December 2, 1985 memorandum from Dr. Ostroff to Mr. Fleenor complains that the alupent-type medicine was then "still not on island."  On January 13, 1986, Mr. Fleenor wrote a memo to the director of health services stating that the medicine still had not come by the preceding week, that Mr. Fleenor himself had then called Guam on Friday afternoon, and that the alupent he ordered by telephone had arrived the very next day.

       These memoranda are at the very least potent indications of a dangerous lack of communication within the hospital.  Plaintiff does not dispute that the alupent did arrive at the hospital on November 25, 1985.  Accepting this to be so, the tragedy of the delay in the medicine's arrival was compounded by the fact that two very interested persons, Dr. Ostroff and Mr. Fleenor, still did not know of its presence well after it was available at the hospital.

7. This Latin phrase means "let the worker's superior respond" or "let the master answer."  H. Black, Black's Law Dictionary 1179 (5th ed. 1979).

8. All who testified on the point during trial agreed that the system is considerably worse today then it was in 1985.

9. According to the memorandum, Air Micronesia was giving higher priority to mail, luggage and passengers.

10. The bona fides of the hospital administration's concern is subject to serious question.  During March, 1985, just three months after writing the memorandum placing the blame for many medical supply problems upon the medical supply office itself, hospital administrator Hallens signed a personnel action form requesting that the medical supply officer, Welsin Olter, be given a merit increase.  This was based on a memorandum from Governor Resio Moses and thus may not have been reflective of the thinking of hospital administrators.  Even so, the action points to another apparent health services problem, political intrusion into matters of medical administration.
 
       It is interesting also to note that the merit increase for Mr. Olter was not signed by the state budget officer or the state administrator until September, 1985.  Thus the merit increase for Mr. Olter actually was put into effect on September 15, 1985, some 20 days after the health services administrator's August 25, 1985 memorandum to Health Services Director Itor Harris, seeking removal of Mr. Olter as medical supply officer.

11. This Latin phrase, long recognized in the common law, means, "the thing speaks for itself." H. Black, Black's Law Dictionary 1173 (5th ed. 1979).