Campbell v. US

• Decision Date: 05 April 1990
• Docket Number: Civ. A. No. 1:88-CV-2951-JOF.
• Citation: 795 F. Supp. 1118
• Parties: Patricia A. CAMPBELL, Individually and as mother and natural Guardian of Thomas Campbell, Individually and as father and natural Guardian of Jennifer L. Campbell, by her natural Guardians and next friends, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Georgia

795 F. Supp. 1118

Patricia A. CAMPBELL, Individually and as mother and natural Guardian of Thomas Campbell, Individually and as father and natural Guardian of Jennifer L. Campbell, by her natural Guardians and next friends, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. 1:88-CV-2951-JOF.

United States District Court, N.D. Georgia, Atlanta Division.

April 5, 1990.

Myles Eric Eastwood, Taylor Webb Jones, Jones, Brown, Brennan & Eastwood, Atlanta, Ga., Reid George Kennedy, Reid W. Kennedy, Kennedy & Kennedy, Marietta, Ga., for plaintiffs.

Nina Loree Hunt, Office of U.S. Atty., N.D. Ga., Atlanta, Ga., for defendant.

ORDER

FORRESTER, District Judge.

This matter is before the court on defendant's motion to dismiss or, in the alternative, to certify a question to the state court. Plaintiffs are Patricia and Thomas Campbell, individually and as natural guardians of plaintiff Jennifer Campbell. All three seek recovery under the Federal Tort Claims Act (FTCA) for the alleged negligence of a doctor employed at the Ft. McPherson Army Health Clinic in failing to diagnose Patricia Campbell's pregnancy. They allege that had the pregnancy been timely diagnosed, an amniocentesis test could have been performed and would have revealed that Jennifer Campbell suffers from a serious genetic defect. Had they known of this defect, the parents would have aborted the child. The government raises two grounds in support of its motion to dismiss. The first is that only Patricia Campbell submitted a proper claim to the Army prior to filing suit as is required under the FTCA. The second is that Georgia law does not recognize the causes of action brought here, wrongful life and wrongful birth.

I. ADMINISTRATIVE CLAIM.

The plaintiffs presented their claim to the Army on a Standard Form 95. Exhibit A to Complaint. In the section of the form marked for name and address of claimant, it was typed Patricia Campbell with her address and an asterisk after her name. At the bottom of the form on that same page was typed "*Sgt. Campbell — Baby girl Campbell." The form was signed by Patricia Campbell. An attachment was provided which explained her claim. The focus of the four page attachment was on the events that occurred to Mrs. Campbell in visiting the clinic and in the course of her pregnancy. It briefly described the genetic defect and consequent abnormalities suffered by Jennifer Campbell. The last paragraph stated,

It is Mrs. Campbell's position that Dr. Desai was professionally negligent in failing to diagnose the pregnancy, and as a result, Mrs. Campbell was deprived of her right to choose to terminate her pregnancy. Having no right of choice proved most tragic in this case due to the detectable genetic disease of the child. Accordingly, Mrs. Campbell and Sergeant Campbell must raise this child and bear all the expenses and demands upon them that such an undertaking entails. Lastly, the child herself, must live with this genetic defect.

The claim was made for $5,000,000.

The Army proceeded to negotiate with the Campbells, and developed a settlement agreement. See Exhibit D to Complaint. The first paragraph of the agreement states that it is between the United States and Thomas Campbell and Patricia Campbell, both individually and as parents and natural guardians of Jennifer Campbell. They are referred to as "claimants" in both paragraph I and paragraph V. The settlement agreement provided a trust for Jennifer Campbell, that an annuity would be purchased for Jennifer Campbell, and that money would be paid to Thomas Campbell and Patricia Campbell both individually and as guardians of Jennifer Campbell. The parents signed an acknowledgement that they both accepted the terms of the settlement agreement. Exhibit E to Complaint.

The claim and proposed settlement were rejected by the Attorney General. Exhibit G to Complaint.¹ In a subsequent communication, the Army clarified that Thomas Campbell and Jennifer Campbell were included in the denial. Exhibit H to Complaint.

II. FAILURE TO PRESENT ADMINISTRATIVE CLAIM.

The government argues that Thomas Campbell and Jennifer Campbell are not proper claimants because they did not file a separate administrative claim, and that the claim presented did not include a sum certain.

The Federal Tort Claims Act provides that an action cannot be instituted in court under the Act "unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency...." 28 U.S.C. § 2675. This requirement is jurisdictional and cannot be waived. Employees Welfare Committee v. Daws, 599 F.2d 1375 (5th Cir.1979). This requisite minimal notice informs the agency of the circumstances of the accident so it can investigate and respond either by settlement or defense. Adams v. United States, 615 F.2d 284 (5th Cir.1980). The purpose of the notice is to ease court congestion and to avoid unnecessary litigation, while making it possible for the government to expedite a fair settlement. Brown v. United States, 838 F.2d 1157, 1160 (11th Cir.1988). The notice requirement is met if the claimant (1) gives the agency written notice sufficient to enable the agency to investigate the claim, and (2) places a value on the claim. Id.; Adams, 615 F.2d at 289.

These requirements have been met in this case. All three plaintiffs were listed as claimants on the Standard Form 95. Moreover, all the information necessary to investigating the claim was provided in the claim form. Even more importantly, the government throughout the settlement process treated all three as claimants. The government denied their claim on the merits, and for reasons other than any technical non-compliance with the notice requirements. It does not appear that the government raised the question of the inadequacy of their claim at any time during the settlement process. This case is especially like Reilly v. United States, 665 F.Supp. 976 (D.R.I.1987), rev'd in part on other grounds, 863 F.2d 149 (1st Cir.1988). In that case, parents and their child were seeking damages for negligent delivery of the child. The court found that the three were joint claimants and were not required to submit separate forms. Though the parents and child did not separately identify their injuries, it was clear that all three were joint claimants.

The situation is also similar to Del Valle Rivera v. United States, 626 F.Supp. 347 (D.P.R.1986), and Champagne v. United States, 573 F.Supp. 488 (E.D.La.1983). In Del Valle Rivera, the government requested the names of all survivors of the decedent, and was fully informed of the number and identities of persons who were making claims against the government. The court held that the government could not argue that the claim was inadequate, and could not stand on technicalities to attack a claim in the judicial action once it has been fully investigated. In Champagne, the minors were listed on the claim, but not their mother's authority to act for them. The court found that the government was aware of all the claims. The agency processed and denied the claim without mentioning the defect in the claim or any problems that would arise from it. That court also held that there was no requirement that a separate form be filed for each claimant, and that the key factor in whether a claim filed was sufficient notice under the act is whether the agency was given adequate notice of the claim so that it can settle and investigate the claim. Similarly, in this case, the government was aware of all information necessary to investigate and settle the claim, it treated all three parties as claimants, and denied the claims on the merits. The purposes behind the statute were met in this case, as the agency was able to investigate the incident and attempt to settle it.

The case relied on by the government, Walker v. United States, 471 F.Supp. 38 (M.D.Fla.1978), aff'd, 597 F.2d 770 (5th Cir. 1979), is inapposite. In that case, the wife was not named on her husband's claim, and she did not sign the claim form. There was no mention of her injuries on the form. The court held that a person cannot presume that their claim is raised in the administrative claim of his or her spouse. However, in the present situation, Thomas Campbell was named as a claimant on the face of the claim form, and the attachment described his claim, the costs of raising the child. Further, the government treated him as a claimant throughout the settlement process, and cannot now urge that the claim was defective merely because he failed to sign the form.

The claim form had a single figure of $5,000,000 in the space provided for value of the claim. The requirement that a claim be presented to the agency has been construed to mean that a claim for a "sum certain" must be presented. Molinar v. United States, 515 F.2d 246 (5th Cir.1975). However, this circuit has taken a somewhat lenient approach to the sum certain requirement. Tidd v. United States, 786 F.2d 1565, 1567 n. 6 (11th Cir.1986). For example, in Molinar, repair bills included with the claim form were found to be sufficient to satisfy the sum certain requirement. 515 F.2d at 246. The government urges that the single dollar amount is inadequate in the present case as there are multiple claimants, and it would not have been able to divide up the amounts properly during settlement. However, as the course of settlement clearly shows, the government had sufficient information to be able to structure a complex settlement and trust agreement. This case involves complex damages issues, and one cannot expect the claimants to itemize their damages totally. Therefore, the sum certain requirement was met.

The Campbells met the jurisdictional notice requirement of the Federal Tort Claims Act under 28 U.S.C. § 2675. Therefore, their claims have been properly presented to this court, and the defendant's motion to dismiss on this ground must be DENIED.

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