Bradley v. U.S., 96-2569

• Citation: 161 F.3d 777
• Decision Date: 30 November 1998
• Docket Number: No. 96-2569,96-2569
• Parties: Kenneth David BRADLEY; Cecile Bradley, a minor child, by her next friend and father Kenneth Bradley; The Estate of Sharon Bradley, Deceased, by and through Kenneth Bradley, as personal representative, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee, v. SPECTRUM EMERGENCY CARE, INCORPORATED, d/b/a Synergon, Third Party Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 777

161 F.3d 777

Kenneth David BRADLEY; Cecile Bradley, a minor child, by

her next friend and father Kenneth Bradley; The Estate of

Sharon Bradley, Deceased, by and through Kenneth Bradley, as personal representative, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee, v. SPECTRUM EMERGENCY CARE, INCORPORATED, d/b/a Synergon, Third

Party Defendant.

No. 96-2569.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 28, 1998.

Decided Nov. 30, 1998.

ARGUED: James Leigh Capps, II, Law Offices of Dominick J. Salfi, Maitland, Florida, for Appellants. Donna Carol Sanger, Assistant United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Gerard E. Mitchell, Stein, Mitchell & Mezines, Washington, D.C., for Appellants. Lynne A.

Battaglia, United States Attorney, Baltimore, Maryland, for Appellee.

Before WIDENER and WILKINS, Circuit Judges, and ANDERSON, United States District Judge for the District of South Carolina, sitting by designation.

Reversed by published opinion. Judge WILKINS wrote the opinion, in which Judge WIDENER and Judge GEORGE ROSS ANDERSON, JR., joined.

OPINION

WILKINS, Circuit Judge:

Kenneth Bradley brought this action on behalf of the estate of his deceased wife Sharon Bradley (Bradley), himself, and his minor daughter ¹ under the Federal Tort Claims Act (FTCA), see 28 U.S.C.A. §§ 2671-80 (West 1994), claiming that Bradley's death was the result of medical malpractice by military personnel. The Estate now appeals a decision by the district court granting summary judgment in favor of the United States on the basis that Bradley's injuries were incident to service and hence that this action is barred by the exception to the waiver of sovereign immunity announced in Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950). We reverse.

I.

Bradley enlisted in the Navy in 1982 and served as a medical laboratory technician. In 1989, while on active duty, Bradley was accidentally punctured with an inoculator loop that was infected with Staphylococcus Aureus (Staph A) bacteria. Initially, Bradley suffered a Staph A infection in her left arm, and subsequently the Staph A infection reoccurred in her right foot. This latter complication required Bradley's hospitalization from December 1989 to January 1990. Although Bradley's right foot was determined to be free of the Staph A infection by the end of 1991, Bradley was by then wheelchair bound, able to walk only 15 minutes per day, and able to work only part-time. In November 1991, Bradley received a disability rating of 30 percent. She was removed from active-duty status and placed on the Navy's Temporary Disability Retirement List (TDRL).

In February 1992, Bradley had a scheduled appointment at the National Naval Medical Center (NNMC) in Bethesda, Maryland concerning bone grafting to her foot to repair damage caused by the Staph A infection. Bradley was flown to NNMC by military transport from her home in Orlando, Florida via Keesler Air Force Base in Mississippi. During this trip, on February 14, 1992, Bradley began to experience high fever and severe chest pain. She notified medical personnel during her overnight stay at Keesler about her condition. Military personnel there took no action and sent her on to NNMC. Once Bradley arrived at NNMC, she proceeded to the emergency room. Although Bradley made several trips to the emergency room, she was not admitted until the evening of February 19. Further, she was not treated with an antibiotic until February 20. Bradley's condition deteriorated quickly, and she died after an eight-day medically induced coma on March 2. An autopsy report indicated that she died as a result of a Staph A infection of the heart.

The Estate filed this action in federal district court in Texas alleging medical malpractice arising from the treatment Bradley received at Keesler and NNMC. Because litigation relating to this incident was already pending in Maryland and because the majority of the witnesses were located there, the Texas district court transferred the action to Maryland. Thereafter, the United States moved to dismiss on the basis of the Feres doctrine. See Fed.R.Civ.P. 12(b)(1), (6).

The district court considered materials outside the pleadings that were submitted by both parties, treating the motion as one for summary judgment, and ruled in favor of the United States. See Fed. R.Civ. P. 56. For purposes of summary judgment, the district court accepted that the evidence was sufficient to raise a genuine issue of material fact concerning whether Bradley's condition was related to her prior Staph A infection. ² Assuming that Bradley's infection "was an independent medical problem that arose only after she left active duty status" and was placed on TDRL status, the court reasoned that the dispositive question was whether Bradley's condition was "incident to service." J.A. 473 (internal quotation marks omitted). The district court recognized that under a line of Fifth Circuit authority " 'a member of the armed forces carried on the Temporary Disability Retired List is not, as a consequence of that status, prevented by the Feres exception from bringing an action under the Federal Tort Claims Act.' " J.A. 474 (quoting Cortez v. United States, 854 F.2d 723, 727 (5th Cir.1988)). Nevertheless, the district court reasoned that a decision of this court, Kendrick v. United States, 877 F.2d 1201(4th Cir.1989), dictated a different result. The district court also rejected Bradley's argument that because the case had been transferred from Texas, the law of the Fifth Circuit should apply.

II.

The Estate contends that the district court erred in concluding that the Feres doctrine bars this action. In order to apply the Feres doctrine properly, it is necessary to understand its development.

In Brooks v. United States, 337 U.S. 49, 52-54, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), the Supreme Court held that servicemen on leave from active duty could sue under the FTCA to recover for injuries sustained on a public highway inflicted by a government employee driving a truck belonging to the United States at least when the injuries were not incident to or caused by military service. Subsequently, in Feres, another decision addressing whether active-duty servicemen could maintain an FTCA action, the Supreme Court distinguished Brooks and held "that the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152(1950). ³

In United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954), the Supreme Court applied these cases in an action by a discharged veteran who alleged medical malpractice at a veterans' hospital. The Court wrote:

The present case is, in our view, governed by Brooks, not by Feres. The injury for which suit was brought was not incurred while [Brown] was on active duty or subject to military discipline. The injury occurred after his discharge, while he enjoyed a civilian status. The damages resulted from a defective tourniquet applied in a veterans' hospital. [Brown] was there, of course, because he had been in the service and because he had received an injury in the service. And the causal relation of the injury to the service was sufficient to bring the claim under the Veterans Act. But, unlike the claims in the Feres case, this one is not foreign to the broad pattern of liability which the United States undertook by the Tort Claims Act.

Id. at 112, 75 S.Ct. 141.

In Kendrick v. United States, 877 F.2d 1201 (4th Cir.1989), a panel of this court addressed whether the Feres doctrine barred an FTCA action brought by an individual on TDRL. In that case, an active-duty serviceman began having seizures, and military physicians prescribed Dilantin, a potentially toxic drug. After the serviceman was placed on TDRL because his disability rendered him unfit for duty, he began to experience memory loss, difficulty in walking,and other symptoms consistent with Dilantin toxicity. He was examined by military physicians who continued him on the same dosage of Dilantin and allegedly did not properly monitor the level of Dilantin in his blood. He brought suit, alleging that the post-TDRL failure of the doctors to monitor his blood level constituted a post-service act of malpractice and that consequently his action was not barred by the Feres doctrine. This court disagreed, writing:

We are unpersuaded that [Brooks and Brown ] govern the case at bar. First, the focus of Feres is not upon when the injury occurs or when the claim becomes actionable, rather it is concerned with when and under what circumstances the negligent act occurs. The alleged negligent act of prescribing Dilantin without monitoring the patient's blood level commenced while Kendrick was on active duty under the care of military physicians. All of Kendrick's medical treatment arose out of an activity incident to service. Second, the Court in Brown placed great emphasis on Brown's "civilian status" as one of the distinguishing features between his claim and that of the plaintiffs in Feres. Unlike Brown, Kendrick was not a civilian when the alleged negligent act occurred, and he has remained subject to military discipline throughout his continuing course of medical treatment.

Kendrick, 877 F.2d at 1203-04 (citations omitted). Importantly, in an accompanying footnote, the panel specifically distinguished the Fifth Circuit decision in Cortez v. United States, 854 F.2d 723 (5th Cir.1988), which held that the Feres doctrine did not bar a post-service medical malpractice suit by an individual on TDRL status at the time of the complained of actions. See Kendrick, 877 F.2d at 1204 n. 2. In Cortez, the court held that a claim for damages arising from the death of an individual on TDRL status who committed suicide by jumping...