Campbell v. U.S., 91-8744

• Decision Date: 15 June 1992
• Docket Number: No. 91-8744,91-8744
• Citation: 962 F.2d 1579
• Parties: Patricia A. CAMPBELL, individually and as mother and natural guardian of Jennifer L. Campbell, a minor; Thomas Campbell, individually and as father and natural guardian of Jennifer L. Campbell, a minor and Jennifer L. Campbell, by her natural guardians and next friends, Patricia A. Campbell and Thomas Campbell, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1579

962 F.2d 1579

Patricia A. CAMPBELL, individually and as mother and natural guardian of Jennifer L. Campbell, a minor; Thomas Campbell individually and as father and natural guardian of Jennifer L. Campbell, a minor and Jennifer L. Campbell, by her natural guardians and next friends, Patricia A. Campbell and Thomas Campbell, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 91-8744.

United States Court of Appeals, Eleventh Circuit.

June 15, 1992.

Taylor W. Jones, Myles E. Eastwood, Atlanta, Ga., Reid G. Kennedy, Marietta, Ga., for plaintiffs-appellants.

Nina L. Hunt, Asst. U.S. Atty., Russell G. Vineyard, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before ANDERSON, Circuit Judge, HILL, Senior Circuit Judge, and YOUNG ^*, Senior District Judge.

HILL, Senior Circuit Judge:

Thomas and Patricia Campbell appeal from the district court's dismissal of their claim under the Federal Tort Claims Act (FTCA). The Campbells had brought a claim for wrongful birth, alleging that but for the failure of the doctor to diagnose her pregnancy and to administer an amniocentesis exam, the plaintiffs would have terminated the pregnancy, thus averting the birth of a severely mentally retarded and physically impaired child. Since plaintiffs may bring suits against the United States only if the laws of the state in which the injury occurs provides a claim or cause of action for such an incident and since Georgia does not recognize a cause of action for wrongful birth, the district court dismissed the claim. The Campbells argued that this nonrecognition of the wrongful birth cause of action violates their substantive due process and equal protection rights under the Fourteenth Amendment. The district court rejected these constitutional challenges, finding merely that plaintiffs had failed to state a claim under Georgia law. Plaintiffs appeal from this ruling.

Since this appeal is from a dismissal for failure to state a claim, we must accept the plaintiffs' allegations as true. Miller v. Stanmore, 636 F.2d 986 (5th Cir.1981). The district court's dismissal of a complaint is subject to de novo review. McDonald v. Hillsborough County School Board, 821 F.2d 1563, 1564 (11th Cir.1987). As the wife of Thomas Campbell, who was retired from the United States Air Force, Patricia Campbell obtained regular health care from the United States Army Health Clinic at Fort McPherson, Georgia. The clinic employed Dr. Yashasvini Desai in a civil service capacity. From December, 1984, until April, 1985, Mrs. Campbell went to the clinic and complained to Desai of symptoms that would indicate that she might be pregnant. Mrs. Campbell complained of diminished menses, tender breasts, and pain in her lower abdomen. She also indicated to Desai that she was afraid she might be pregnant. Desai told Mrs. Campbell that she was going through menopause. Plaintiffs allege that Desai deviated from the standard of care by failing to give Mrs. Campbell a conclusive pregnancy test on any of these occasions.

Finally, on April 15, 1985, Mrs. Campbell was given a pregnancy test that turned out positive. The Campbells allege that had the doctor not been negligent and instead had timely diagnosed pregnancy at either the December 1984 (first trimester) or March 1985 (second trimester) visit by Mrs. Campbell to the Fort McPherson Army Health clinic, then under the standard of care applicable to physicians similarly situated, Mrs. Campbell would have been provided genetic counseling and the opportunity for an amniocentesis exam. This exam would have detected the 10Q chromosome deletion that caused the child to be severely impaired. Since Desai had failed to diagnose her pregnancy in a timely manner, he negligently deprived the Campbells of an opportunity for this amniocentesis exam. The plaintiffs allege that if they had learned of the genetic defect before the end of the second trimester, they would have terminated the pregnancy.

The child, Jennifer, will have the maximum mental development of an eight-year old. In addition to her mental impairment, Jennifer requires constant medical care. Mrs. Campbell must feed Jennifer through a syringe and tube inserted in a stoma on her abdomen. At night, Jennifer is fed through a long tube inserted in the stoma. The child has also had corrective surgery for a clubbed foot, crossed eyes, and her esophageal sphincter. The Campbells seek to recover for the extraordinary expenditures they will need to make during the child's lifetime. ¹

Under the Gonzalez Amendment, 10 U.S.C. § 1089(a), medical malpractice claims are precluded against physicians employed by the Department of Defense. Thus, if the Campbells are to recover at all, they must recover against the United States, as the doctor's employer, under the FTCA. "The United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769-70, 85 L.Ed. 1058 (1941). The federal government's waiver of sovereign immunity under the FTCA extends only to those torts committed by government employees "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b), 2674. Thus, "an action under FTCA exists only if the State in which the alleged misconduct occurred would permit a cause of action for that misconduct to go forward." Carlson v. green, 446 U.S. 14, 23, 100 S.Ct. 1468, 1474, 64 L.Ed.2d 15 (1980).

The district court dismissed the plaintiffs' claim under the FTCA because Georgia does not recognize a cause of action for wrongful birth. Atlanta Obstetrics & Gynecology Group v. Abelson, 260 Ga. 711, 398 S.E.2d 557 (1990). Since a private person in Georgia would not be liable, then the United States is not liable. Carlson, 446 U.S. at 23, 100 S.Ct. at 1474.

The plaintiffs argue that the decision by the Georgia Supreme Court that Georgia law does not provide recovery for wrongful birth violates their Fourteenth Amendment rights to due process and equal protection. The threshold question, then, is how has the doctor violated their rights? The plaintiffs are bringing a tort action for the doctor's failure to provide care to Campbell. The plaintiffs are not bringing a § 1983 claim for deprivation of a constitutional right.

The appellants argue that their tort claim obtains constitutional dimensions, because if they are not permitted to recover, their Fourteenth Amendment rights will be violated. A woman has a protected liberty interest in deciding whether to terminate a pregnancy. Harris v. McRae, 448 U.S. 297, 312, 100 S.Ct. 2671, 2685-86, 65 L.Ed.2d 784, reh'g denied, 448 U.S. 917, 101 S.Ct. 39, 65 L.Ed.2d 1180 (1980). In making her decision, the woman has the right to be free of affirmative governmental interference. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). The appellants contend that the doctor's negligence interfered with Patricia Campbell's right to make a choice whether to continue her pregnancy. The state of Georgia is involved, the appellants claim, because Georgia's nonrecognition of the cause of action of wrongful birth will encourage doctors to fail to give women all the information they need in exercising their constitutionally protected choice. ² The question, then, is whether Georgia's nonrecognition of a cause of action is state action that has brought the doctor's conduct within the purview of the Fourteenth Amendment, requiring the doctor's employer to pay money damages for some type of constitutional violation. ³

The Fourteenth Amendment acts as a shield against only the government. Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948). The constitution does not affect the relations between private parties, "however discriminatory or wrongful." Id. However, private conduct may be treated as state action for purposes of the Fourteenth Amendment if the conduct has received the imprimatur of the state. Blum v. Yaretsky, 457 U.S. 991, 1003, 102 S.Ct. 2777, 2785, 73 L.Ed.2d 534 (1982). The United States Supreme Court wrote,

Our precedents indicate that a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt of covert, that the choice must in law be deemed to be that of the state.... Mere approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible for those initiatives under the Fourteenth Amendment.

Blum, 457 U.S. at 1004-1005, 102 S.Ct. at 2786. See also Carlin Communication, Inc. v. Southern Bell, 802 F.2d 1352, 1357 (11th Cir.1986). In Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), the electric company was required to file a tariff with the Public Utility Commission ("PUC") which would become effective after sixty day unless the PUC rejected it. In its tariff, Edison included a provision which permitted it to terminate a customer's service for nonpayment. 419 U.S. at 354, 95 S.Ct. at 455. The Court held that the PUC's approval of the tariff did not transmute the practice into state action. 419 U.S. at 357, 95 S.Ct. at 456-457.

In this circuit, as well, we have held that the mere approval of a utility company's tariff is not sufficient to transform the utility into a public actor. Carlin, 802 F.2d at 1357. Southern Bell had made a corporate decision to exclude messages with sexual innuendos from its Dial-It tariff. The PUC's approval merely indicated that this decision was an appropriate one for a private corporation to make. This acquiescence did not constitute state action in...