825 F.2d 202 (9th Cir. 1987), 85-2200, Atkinson v. United States

Docket Nº:85-2200.
Citation:825 F.2d 202
Party Name:Joyce ATKINSON, Plaintiff/Appellant, v. UNITED STATES of America, Defendant/Appellee.
Case Date:August 13, 1987
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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825 F.2d 202 (9th Cir. 1987)

Joyce ATKINSON, Plaintiff/Appellant,

v.

UNITED STATES of America, Defendant/Appellee.

No. 85-2200.

United States Court of Appeals, Ninth Circuit

August 13, 1987

Argued and Submitted May 13, 1986.

Page 203

Allan S. Haley, Nevada City, Cal., for plaintiff-appellant.

Mark J. Bennett, Honolulu, Hawaii, for defendant-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before NELSON, CANBY and NOONAN, Circuit Judges.

NELSON, Circuit Judge:

The petition for rehearing is granted. In light of United States v. Johnson, --- U.S. ----, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987), the opinion published at 804 F.2d 561 (9th Cir.1986), modified, 813 F.2d 1006 (9th Cir.1987), is withdrawn and the following opinion is issued. The suggestion for rehearing en banc is moot.

Plaintiff-appellant Joyce Atkinson appeals from the district court's grant of summary judgment in favor of the defendant-appellee United States. Atkinson argues that the court erred in finding the United States immune from liability under the Federal Tort Claims Act for malpractice incident to pre-natal care she received from military personnel. We have jurisdiction under 28 U.S.C. Sec. 1291 (1982). We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

In March 1982, Joyce Atkinson was serving as a Specialist (4th Class) with the United States Army in Hawaii. On March 26, during the second trimester of her pregnancy, she reported to Tripler Army Medical Center ("Tripler"), complaining of blurred vision, hypertension, and edema. The staff at Tripler did not treat her and told her to go home. Three days later, Atkinson returned to Tripler, complaining of dizziness, nausea, and hypertension. Again, the Tripler staff merely told her to go home. Two weeks later, Atkinson returned to Tripler complaining of severe abdominal pain and hypertension. Finally, she was hospitalized for pre-eclampsia, a condition occurring in pregnancy that is life-threatening to both mother and fetus because of associated kidney failure, high blood pressure, stroke, and premature birth. She claims that as a result of this negligent medical treatment, she delivered a stillborn child and suffered physical and emotional injuries of her own.

Atkinson filed a malpractice suit against the government under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Sec. 2674 (1982), alleging that she "suffered great pain of body and mind and sustained serious and permanent bodily injuries as a result of the negligence of defendant's agents, employees and/or representatives in failing to properly diagnose her condition and hospitalize, treat, monitor and care for her." 1 The United States filed a motion to dismiss for failure to state a claim upon which relief may be granted, for judgment on the pleadings, and for summary judgment. The district court, finding that Atkinson was injured in the course of "activity incident to service," held that the United States was immune from malpractice liability. Thus, the district judge granted the motion for summary judgment in a judgment

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filed April 23, 1985, from which Atkinson filed this timely appeal. 2

II. DISCUSSION

Determination of the district court's subject matter jurisdiction is a question of law reviewable novo on appeal. Redding Ford v. California State Bd. of Equalization, 722 F.2d 496, 497 (9th Cir.1983), cert. denied, 469 U.S. 817, 105 S.Ct. 84, 83 L.Ed.2d 31 (1984).

The FTCA, passed by Congress in 1946, represents the culmination of a long effort to mitigate the unjust consequences of the common law sovereign immunity doctrine which protected the United States from tort liability. Feres v. United States, 340 U.S. 135, 139, 71 S.Ct. 153, 156, 95 L.Ed 152 (1950). Reacting against the notion that the sovereign could do no wrong, Congress provided in the FTCA that the United States is liable in tort "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. Sec. 2674 (1982). Congress did not exclude military personnel from FTCA coverage. The statute "provide[s] for District Court jurisdiction over any claim founded on negligence brought against the United States.... '[A]ny claim' [does not] mean[ ] 'any claim but that of servicemen.' " Brooks v. United States, 337 U.S. 49, 51, 69 S.Ct. 918, 919, 93 L.Ed. 1200 (1949).

Despite this "sweeping," legislatively established waiver of immunity, United States v. Yellow Cab Co., 340 U.S. 543, 547, 71 S.Ct. 399, 402, 95 L.Ed. 523 (1951), in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Supreme Court created a judicial exception to Congress's general rule of governmental liability. This exception, informally known as the Feres doctrine, immunizes the government from liability under the FTCA "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Id. at 146, 71 S.Ct. at 159. The three rationales later identified as the foundation for this doctrine were: (1) the distinctively federal nature of the relationship between the government and members of its armed forces, which argues against subjecting the government to liability based on the fortuity of the situs of the injury; (2) the availability of alternative compensation systems; and (3) the fear of damaging the military disciplinary structure. See Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 671-72, 97 S.Ct. 2054, 2057-58, 52 L.Ed.2d 665 (1977).

In our previously issued opinion, we noted that subsequent cases had stated that the third rationale of the three listed above is determinative. Chappell v. Wallace, 462 U.S. 296, 299-300, 304, 103 S.Ct. 2362, 2365, 2367, 76 L.Ed.2d 586 (1983) (stating that Feres is best explained by the military discipline rationale); Monaco v. United States, 661 F.2d 129, 132 (9th Cir.1981) (" '[T]he protection of military discipline ... serves largely if not exclusively as the predicate for the Feres doctrine.... Only this factor can truly explain the Feres doctrine and the crucial line it draws....' ") (quoting Hunt v. United States, 636 F.2d 580, 599 (D.C.Cir.1980)), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982); see also Johnson v. United States, 704 F.2d 1431, 1436 (9th Cir.1983) (stating that safeguarding military discipline is the fundamental rationale for immunity). 3 Indeed,

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we noted that in United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985), the Supreme Court specifically stated that the first two rationales are "no longer controlling." Id. at 58 n. 4, 105 S.Ct. at 3043 n. 4. We also noted Shearer's instruction that courts should take a case-by-case, rather than a per se, approach to claims of immunity. Id. at 57, 105 S.Ct. at 3043 ("The Feres doctrine cannot be reduced to a few bright-line rules; each case must be examined in light of the statute as it has been construed in Feres and subsequent cases."). Thus, in light of the novel situation posed by a pregnant service-woman, we asked whether "[t]he facts of this case, viewed in light of the Feres doctrine's underlying disciplinary rationale, lead us to conclude that the FTCA does permit [Atkinson's] cause of action." Johnson, 704 F.2d at 1436. We reasoned:

[W]e fail to see how Atkinson's suit for negligent care administered in a non-field military hospital incident to her pregnancy can possibly undermine "the need for unhesitating and decisive action by military officers and equally disciplined responses by enlisted personnel." Chappell v. Wallace, 462 U.S. 296, 304 [103 S.Ct. 2362, 2367, 76 L.Ed.2d 586] (1983). At the time Atkinson sought treatment, she was "not subject in any real way to the compulsion of military orders or performing any sort of military mission." Johnson, 704 F.2d at 1439. No command relationship exists between Atkinson and her attending physician. No military considerations govern the treatment in a non-field hospital of a woman who seeks to have a healthy baby. No military discipline applies to the care a conscientious physician will provide in this situation. Thus, in treating Atkinson for complications of her pregnancy, Atkinson's doctor was implementing decisions of military judgment only in the remotest sense....

Moreover, the circumstances of this...

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