Lucas v. U.S.

• Decision Date: 24 December 1986
• Docket Number: 84-1437,Nos. 84-1296,s. 84-1296
• Citation: 807 F.2d 414
• Parties: Richard LUCAS, et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant. Richard LUCAS, et al., Plaintiffs-Appellants Cross-Appellees, v. UNITED STATES of America, Defendant-Appellee Cross-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 414

807 F.2d 414

55 USLW 2399

Richard LUCAS, et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.

Richard LUCAS, et al., Plaintiffs-Appellants Cross-Appellees, v. UNITED STATES of America, Defendant-Appellee Cross-Appellant.

Nos. 84-1296, 84-1437.

United States Court of Appeals Fifth Circuit.

Dec. 24, 1986.

Irene M. Solet, Sandra Simon, Civil Rights Div., Appellate Staff, Dept. of Justice, Washington, D.C., for defendant-appellant.

Walter L. Boyaki, El Paso, Tex., for plaintiffs-appellees.

Walter L. Boyaki, El Paso, Tex., for plaintiffs-appellants cross-appellees.

Irene M. Solet, Appellate Staff, Robert S. Greenspan, Dept. of Justice, Civil Div., Bruce G. Forrest, Washington, D.C., for defendant-appellee cross-appellant.

Appeals from the United States District Court for the Western District of Texas.

Before POLITZ, HIGGINBOTHAM, and JONES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Christopher Lucas was rendered a paraplegic in October 1980 by an injection negligently administered in an Army hospital. The United States concedes liability under the Federal Tort Claims Act, but argues that the awarded damages were excessive. We are persuaded that the nonmedical damages awarded exceeded the statutory limit of recovery against a hospital under Texas law and that this cap is applicable. We reject the argument that the damage cap fails muster under the United States Constitution and certify to the Texas Supreme Court the question of its constitutionality under the Texas Constitution.

I

When fourteen-month-old Christopher Lucas developed a swollen neck and a fever after a family outing, his parents took him to the William Beaumont Army Medical Center near El Paso, Texas, for diagnosis and treatment. An army doctor determined that the child had a cyst in his thyroglossal duct and ordered an injection of 600,000 units of Bicillin LA, a penicillin product manufactured and packaged in its own syringe by Wyeth Laboratories.

A hospital nurse gave Christopher the shot in his right buttock with a 1 1/4"" needle that was fully inserted. Christopher's father testified that he saw a thin line of blood appear in the tube containing the medication when the nurse aspirated the plunger before injecting the medication into the baby. Blood appeared at the injection site, and within a few moments, Christopher's legs became mottled. The doctors were summoned. They concluded that the baby was having an allergic reaction to the antibiotic and gave injections to combat it.

Several hours later, Christopher's parents noticed that his legs were not moving as they usually did when he cried. Tests conducted during the next several days indicated paralysis. An operation to remove a tumor suspected to be pressing on the nerves controlling the child's legs determined that the paralysis was the result of blood starvation of the nerves caused by a blockage created when the Bicillin LA was injected directly into an artery. Tragically, the paralysis is permanent.

Christopher and his parents sued the United States under the Federal Tort Claims Act. The district court held that the injection was negligently administered and awarded the parents $498,628.72 as the present value of the past and future medical expenses they face in caring for Christopher until his majority. While the district court did not detail its calculation, the amount of the award is consistent with the total-offset method of discounting. The court also awarded to Christopher $350,000.00 as the present value of the future medical expenses he will have after his eighteenth birthday, and $600,000.00 as the present value of the impairment of his future earning capacity. Finally, the court awarded Christopher $1,500,000.00 for pain and suffering. The district court then reduced the award by the $400,000.00 paid by Weyth Labs to the Lucases in settlement of a state court suit.

The district court refused to apply Tex.Rev.Civ.Stat.Ann. art. 4590i (Vernon Supp.1986) to limit the nonmedical damages, stating that the provision did not apply to hospitals operated by the United States. In an amended judgment, the court ordered that interest on a judgment against the United States be paid only as it accrues after a claim is filed with the Comptroller General and not from the date of judgment. See 31 U.S.C. Sec. 1304(b)(1)(A). The court awarded no damages for the parents' separate claims for pain and suffering.

The United States appeals both the district court's refusal to apply Texas law limiting nonmedical damages and its present value calculations of the damages awards. Plaintiffs cross-appeal, contending that the district court incorrectly allowed interest only from the filing of the judgment with the Comptroller General and that it erred in offsetting its settlement with Wyeth Labs. Plaintiffs also argue that the district court should have awarded damages to the parents for pain and suffering.

II

Texas has limited the amount of nonmedical damages recoverable from a health care provider such as a doctor or hospital in a medical malpractice action. Tex.Rev.Civ.Stat.Ann. art. 4590i, Sec. 11.02(a) (Vernon Supp.1986) states: "In an action on a health care liability claim where final judgment is rendered against a physician or health care provider, the limit of civil liability for damages of the physician or health care provider shall be limited to an amount not to exceed $500,000." The next subsection specifies that this limitation does not apply to damages awarded for "the expenses of necessary medical, hospital, and custodial care received before judgment or required in the future." Id. Sec. 11.02(b). The limit is adjustable according to an increase or decrease in the consumer price index, id. Sec. 11.04, a limit assertedly now near $850,000.00.

A

Plaintiffs first argue, and they persuaded the district court, that because the definitions of "health care provider" and "hospital" supplied in the statutes do not include federally operated institutions, see Tex.Rev.Civ.Stat.Ann. arts. 4590i Sec. 1.03(a)(3), .03(a)(5), 4437f Sec. 2(b)(1) (Vernon 1976 & Supp.1986), section 4590i does not apply to the federal government in this case. This argument forgets that the source of the government's liability here is the Federal Tort Claims Act, not the Texas liability limit provision.

In a suit under the Federal Tort Claims Act, a plaintiff may recover only to the extent the federal government has waived its sovereign immunity. Congress has determined that the federal government shall be liable for tort claims "in the same manner and to the same extent as a private individual under like circumstances. " 28 U.S.C. Sec. 2674 (emphasis added). The law of the state in which the suit arises measures the liability of a similarly situated private party. See 28 U.S.C. Sec. 1346(b).

Texas law informs how a private party would be treated; it does not tell us, indeed it cannot, the extent to which the federal government has waived its sovereign immunity. By excluding federally operated institutions from coverage under Sec. 11.02, the Texas legislature simply acknowledged the limit of its power. The Federal Tort Claims Act assures the federal government of that treatment accorded private parties in Texas. Hospitals and health care providers licensed in Texas are subject to the Sec. 11.02 liability limit. Therefore, Sec. 11.02 also applies to a federally operated hospital under the Federal Tort Claims Act.

B

The plaintiffs urge that the government waived its argument under Sec. 11.02 when it failed to plead this section as an affirmative defense under Fed.R.Civ.P. 8(c). Whether Sec. 11.02 creates an affirmative defense within the meaning of Rule 8(c) is determined by looking to the substantive law of Texas. See Funding Systems Leasing Corp. v. Pugh, 530 F.2d 91, 95 (5th Cir.1976). The plaintiffs cite a recent Texas Court of Civil Appeals case holding that art. 4590i, Sec. 11.02(a) "is an affirmative defense and must be pled." Wun-Yi Tsai v. Wells, No. 13-86-124-CV at 9 (Tex.App.--Corpus Christi Nov. 26, 1986) (not yet published). The plaintiffs thus conclude that because the Sec. 11.02(a) issue was first raised during the trial, the government waived the defense. But this court has noted that although "state law defines the nature of defenses, ... the Federal Rules of Civil Procedure provide the manner and time in which defenses are raised and when waiver occurs." Morgan Guaranty Trust Co. v. Blum, 649 F.2d 342, 345 (5th Cir.1981).

Fed.R.Civ.P. 8(c) requires that an affirmative defense be set forth in a defendant's responsive pleading. Failure to comply with this rule, usually results in a waiver. Starcraft Co. v. C.J. Heck Co., 748 F.2d 982, 990 n. 11 (5th Cir.1984). "Where the matter is raised in the trial court in a manner that does not result in unfair surprise, however, technical failure to comply precisely with Rule 8(c) is not fatal." Allied Chemical Corp. v. Mackay, 695 F.2d 854, 855-56 (5th Cir.1983). That is, the defendant does not waive an affirmative defense if "[h]e raised the issue at a pragmatically sufficient time, and [the plaintiff] was not prejudiced in its ability to respond." Id. at 856.

In the present case, although the government did not affirmatively plead the Sec. 11.02(a) issue, it did raise the issue at a "pragmatically sufficient time," and the plaintiffs were not prejudiced in their ability to respond. The issue was raised at trial immediately following testimony of the economist regarding the present value of Christopher's damages. Moreover, the applicability of the Texas statutory cap on malpractice damages is purely a legal issue which can be resolved without the need for factual proof. The statute does not affect the plaintiffs' proof of damages, but simply limits the dollar amount of recovery on the damages the plaintiff is able to prove. In addition, the judge made separate findings for the medical and...