786 F.3d 817 (10th Cir. 2015), 13-1500, Ortiz v. United States

Docket Nº:13-1500
Citation:786 F.3d 817
Opinion Judge:TYMKOVICH, Circuit Judge.
Party Name:JORGE ORTIZ, as next friend and parent of I.O., a minor, Plaintiff - Appellant, v. UNITED STATES OF AMERICA, by and through Evans Army Community Hospital, Defendant - Appellee
Attorney:Laurie M. Higginbotham, Whitehurst, Harkness, Brees, Cheng, Alsaffar & Higgonbotham, P.L.L.C., Austin, Texas (James E. Puga, Sean B. Leventhal, and Benjamin I. Sachs, Leventhal, Brown & Puga, P.C., Denver, Colorado, and Joseph F. Bennett, Cross & Bennett, L.L.C., Colorado Springs, Colorado, with ...
Judge Panel:Before TYMKOVICH, EBEL, and PHILLIPS, Circuit Judges. EBEL, J., concurring. EBEL, J., concurring.
Case Date:May 15, 2015
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
SUMMARY

Captain Heather Ortiz was an active-duty service member in the United States Air Force. In March 2009, Captain Ortiz was admitted to Evans Army Community Hospital for a scheduled Caesarean section. Complications caused by the medical staff’s administering of drugs in preparation for the surgery caused a precipitous drop in Captain Ortiz’s blood pressure, leading to hypotension. As a result of... (see full summary)

 
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786 F.3d 817 (10th Cir. 2015)

JORGE ORTIZ, as next friend and parent of I.O., a minor, Plaintiff - Appellant,

v.

UNITED STATES OF AMERICA, by and through Evans Army Community Hospital, Defendant - Appellee

No. 13-1500

United States Court of Appeals, Tenth Circuit

May 15, 2015

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. NO. 1:12-CV-01731-PAB-KMT).

Laurie M. Higginbotham, Whitehurst, Harkness, Brees, Cheng, Alsaffar & Higgonbotham, P.L.L.C., Austin, Texas (James E. Puga, Sean B. Leventhal, and Benjamin I. Sachs, Leventhal, Brown & Puga, P.C., Denver, Colorado, and Joseph F. Bennett, Cross & Bennett, L.L.C., Colorado Springs, Colorado, with her on the briefs) for Appellant.

Lowell V. Sturgill, Jr., Attorney (Stuart F. Delery, Assistant Attorney General, John F. Walsh, United States Attorney, and Marleigh D. Dover, Attorney, with him on the brief), Civil Division, Appellate Staff, Department of Justice, Washington, D.C., for Appellee.

Before TYMKOVICH, EBEL, and PHILLIPS, Circuit Judges. EBEL, J., concurring.

OPINION

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TYMKOVICH, Circuit Judge.

This case requires us to consider whether the federal government is immune from damages for injuries its agents caused to an active-duty servicewoman's baby during childbirth. Our resolution of the issues is controlled by the Supreme Court's decision in Feres v. United States, which found that military service members were barred from bringing claims against the government under the Federal Tort Claims Act (FTCA) for injuries incident to their military service. In the many decades since its inception, criticism of the so-called Feres doctrine has become endemic. That criticism is at its zenith in a case like this one--where a civilian third-party child is injured during childbirth, and suffers permanent disabilities.

Under the Feres doctrine, federal courts lose their subject matter jurisdiction over claims like this because we conclude the injured child's in utero injuries are unmistakably derivative of an injury to her mother, an active duty Air Force captain, who gave birth at a Fort Carson Army Base hospital. To be sure, the facts here exemplify the overbreadth (and unfairness) of the doctrine, but Feres is not ours to overrule. Applying controlling law, the government is not liable under the FTCA for the claims of negligence in this case.

Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court's decision.

I. Background

Captain Heather Ortiz was an active-duty service member in the United States Air Force. In March 2009, Captain Ortiz was admitted to Evans Army Community Hospital1 for a scheduled Caesarean section.

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Complications caused by the medical staff's administering of drugs in preparation for the surgery caused a precipitous drop in Captain Ortiz's blood pressure, leading to hypotension. As a result of Captain Ortiz's hypotension, her baby, " I.O.," was deprived of oxygen in utero, leading to severe injuries.

Plaintiff here is George Ortiz, Captain Ortiz's husband, who, as the parent of I.O., filed a lawsuit against the United States, seeking compensation for I.O.'s injuries, her long-term medical care, and her life-care needs. According to the complaint, in advance of the Caesarian section, one of the hospital's nurses gave Captain Ortiz the trade drug Zantac, which is commonly used to prevent aspiration of gastric acid during labor or surgery. But as was apparent in Captain Ortiz's hospital records, she was allergic to this drug and she suffered an allergic reaction to the provided dose soon after it was administered. To counteract the allergy, a doctor ordered that Captain Ortiz receive a dose of Benadryl. The Benadryl caused an immediate drop in Captain Ortiz's blood pressure, resulting in hypotension, an injury that occurs when blood flow is inadequate to perfuse the uterus and the placenta. Captain Ortiz's hypotension resulted in severe injuries to I.O., including brain trauma that caused cerebral palsy.

In addition, the complaint alleges that personnel at the hospital were negligent in failing to scrutinize the fetal monitoring strips following Captain Ortiz's allergic reaction and the attendant consequences. Fetal monitoring strips refer to the graphical representation of the fetus's heart rate during labor. Captain Ortiz alleges that had the hospital personnel timely reviewed the monitoring strips, they could have prevented I.O.'s injuries.

Finally, the complaint alleges that the hospital staff members were " negligent with regard to their care and treatment of Heather Ortiz and I.O." See App. at 19; see also id. at 19 ¶ 65 (" The medical care providers . . . did not appropriately provide care and treatment concerning Heather Ortiz's blood pressure problem." ); id. at 21 ¶ 77 (" These Defendants deviated from the standard of care and were negligent in . . . failing to properly monitor and treat I.O. [sic] condition." ); id. at 19 ¶ 71 (" These providers . . . were negligent with regard to their care and treatment of Heather Ortiz and I.O." ).

The government filed a motion to dismiss for lack of subject matter jurisdiction, raising the bar to claims under the FTCA first established in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The government also moved to stay discovery pending the district court's decision on the motion to dismiss the complaint because the Feres doctrine is classified as jurisdictional and thus a ruling could dispose of the case without any discovery.

The district court agreed with the government that plaintiff's claims were precluded by Feres. In doing so, the district court recognized limited authority with respect to handling third-party Feres claims, especially those related to fetal injuries. Nevertheless, applying each of the several standards adopted in other circuits, and reaching the same result regardless of which it applied, the district court found that Feres barred plaintiff's claims related to both the negligent dispensation of the Zantac and the Benadryl, and the observation of the fetal monitoring strips.

II. Analysis

We address first whether the district court correctly found that it lacked subject

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matter jurisdiction over plaintiff's claims because of the Feres doctrine. We find that the district court did not err, and, over the course of evaluating this jurisdictional question, we further explain this circuit's case law on the Feres doctrine, particularly as it applies to third-party claims brought by civilians.

A. Subject Matter Jurisdiction

Because the question of subject matter jurisdiction is partially intertwined with an aspect of the merits of plaintiff's claims here, we proceed under a summary-judgment standard. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Thus, our review is de novo, and plaintiff " must present . . . evidence sufficient to establish the court's subject matter jurisdiction by a preponderance of the evidence." Robinson v. Union Pac. R.R., 245 F.3d 1188, 1191 (10th Cir. 2001) (quoting United States ex rel. Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 n.5 (10th Cir. 1999)). We can only affirm if there is no genuinely disputed issue of material fact concerning jurisdiction. See Pringle v. United States, 208 F.3d 1220, 1223 (10th Cir. 2000).

The question of whether sovereign immunity exists " is jurisdictional in nature." FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). " Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." Id. Although the FTCA constituted an expansive waiver of the federal government's sovereign immunity for torts committed by government actors, several exemptions apply. Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 218, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008). When an exemption applies, we revert to the baseline application of the government's sovereign immunity, which deprives the federal courts of jurisdiction. See Garcia v. U.S. Air Force, 533 F.3d 1170, 1175 (10th Cir. 2008). The Feres doctrine is one such exemption.

1. The Feres Doctrine

Since 1950, courts have analyzed tort lawsuits brought by service members against the government under the standards set forth in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). In that case, the Supreme Court considered several lawsuits seeking recovery for injuries or deaths of servicemen caused by the negligence of fellow military employees acting on behalf of the government. Each serviceman-plaintiff contended that the broad waiver of sovereign immunity under the FTCA provided their recourse toward recovery, even though the injuries were sustained during activities associated with their service. Id. at 137.

The Supreme Court, however, found the FTCA does not apply in such cases. Instead, the Court crafted a limited judicial exception to the federal government's broad waiver of sovereign immunity under the FTCA. Id. at 146. In particular, the Court exempted from the scope of that statute " injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Id. (emphasis added). This limitation is now known as the Feres doctrine.

In these cases, the crucial question involved in examining whether a service member is barred from recovery under the FTCA is resolving whether the injury was " incident to service." The incident-to-service test applies " consistently to bar all suits on behalf of service members against the Government based upon service-related injuries." United States v. Johnson, 481 U.S. 681, 687-88, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987). The incident-to-service test, however, is neither self-defining

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nor readily discernible from the language of Feres or Johnson.

In our application of Feres, we have explained that, regardless of its precise contours, the...

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