Irvin v. U.S., 87-5630

• Decision Date: 27 April 1988
• Docket Number: No. 87-5630,87-5630
• Parties: Mildred IRVIN and Silas Irvin, individually and as parents and next friends of Quintessa Irvin, deceased, Plaintiffs-Appellants, v. UNITED STATES of America and the Department of the Army, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 126

845 F.2d 126

Mildred IRVIN and Silas Irvin, individually and as parents and next friends of Quintessa Irvin, deceased, Plaintiffs-Appellants, v. UNITED STATES of America and the Department of the Army,

Defendants-Appellees.

No. 87-5630.

United States Court of Appeals, Sixth Circuit.

Argued March 18, 1988.

Decided April 27, 1988.

Jeff A. Crow, Jr. (argued), Memphis, Tenn., for plaintiffs-appellants.

W. Hickman Ewing, U.S. Atty., Memphis, Tenn., Robert M. Williams, Jr. (argued), for defendants-appellees.

Before JONES and GUY, Circuit Judges, and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Mildred Irvin and Silas Irvin, individually and as parents and next friends of decedent Quintessa Irvin, appeal from the district court's order granting appellees' motion to dismiss. For the following reasons, we affirm the district court's judgment.

I.

Mildred Irvin became pregnant in early 1984 while on active duty in the United States Army. The United States Army provided her prenatal care. Decedent Quintessa Irvin was born on August 26, 1984 and died on August 29, 1984, at the age of four days. At the time of Quintessa Irvin's death, Mildred Irvin was enlisted in the United States Army.

On July 25, 1986, appellants filed this action in district court against the United States and the Department of the Army jointly and severally. The complaint contains two counts. Count one is brought pursuant to the Federal Tort Claims Act (FTCA). Count two is brought pursuant to 42 U.S.C. Sec. 1983. ¹ Count one alleges that this cause of action arises out of negligent medical care and treatment rendered Mildred Irvin and the deceased Quintessa Irvin by the agents, servants and employees of the United States and the Department of the Army. Specifically, the complaint alleges that appellees were negligent in the following ways:

A. In prescribing contraindicated medication;

B. In failing to aggressively treat, evaluate and properly diagnose the pregnancy condition;

C. In classifying and treating Mildred Irvin as a routine patient despite her medical history and condition;

D. In failing to have Mildred Irvin examined and treated by qualified medical personnel;

E. In failing to reclassify Mildred Irvin's medical condition as urgent; and

F. In generally failing to adhere to recognized acceptable medical standards of care.

Count two alleges that appellees' actions constituted a deprivation of the rights, privileges and immunities secured by the Constitution and laws of the United States in violation of section 1983.

On May 6, 1987, the district court filed an order which dismissed the case for lack of subject matter jurisdiction. The court reasoned that Mildred Irvin's claim falls squarely into the incident to service test as currently defined by this circuit. Further, the court reasoned that the " 'treatment accorded [the] mother is inherently inseparable from the treatment accorded ... a fetus in [the] mother's body.' " Irvin v. United States, No. 86-2563-MA, Slip op. at 2 (W.D.Tenn. May 6, 1987) (quoting Scales v. United States, 685 F.2d 970, 974 (5th Cir.1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1772, 76 L.Ed.2d 344 (1983)). Thus, the district court held that the Feres doctrine bars both the claims of the parents and the child arising from the alleged negligent prenatal care Mildred Irvin suffered in a military hospital while she was on active duty.

Appellants filed this timely appeal on May 29, 1987. This court must decide whether the Feres doctrine, United States v. Feres, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), bars an action brought by a former active duty servicewoman for negligent prenatal care given during her enlistment. Additionally, we must decide whether the Feres doctrine bars an action brought by a former active duty servicewoman and her husband as parents and next friends of a deceased infant for negligent prenatal care given to the servicewoman, to her deceased infant while in utero, or to both during the servicewoman's enlistment.

II.

In Feres, the Supreme Court held that the government is not liable under the FTCA for injuries to servicemen when the injuries arise out of or are in the course of activity incident to service. United States v. Feres, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950). The Supreme Court has recently reaffirmed the Feres doctrine in United States v. Johnson, --- U.S. ----, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987). Although the specific question in Johnson concerned whether the Feres doctrine bars an action under the FTCA on behalf of a service member killed during the course of activity incident to service when the complaint alleges negligence on the part of civilian employees of the federal government, the Court reconsidered the Feres doctrine and the policy behind it at length.

In Johnson, the Court identified three factors which underlie the Feres doctrine:

'First, the relationship between the Government and members of its Armed Forces is " 'distinctively federal in character,' "; it would make little sense to have the Government's liability to members of the Armed Services dependent on the fortuity of where the soldier happened to be stationed at the time of the injury. Second, the Veterans' Benefits Act establishes as a substitute for tort liability, a statutory 'no fault' compensation scheme which provides generous pensions to injured servicemen, without regard to any negligence attributable to the Government. A third factor ... [is] '[t]he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty....'

Johnson, 107 S.Ct. at 2065 n. 2 (quoting Stencel v. Aero Engineering Corp. v. United States, 431 U.S. 666, 671-72, 97 S.Ct. 2054, 2058, 52 L.Ed.2d 665 (1977)) (citations omitted). The Court "reaffirm[ed] the holding of Feres that 'the Government is not liable under the [FTCA] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.' " Johnson, 107 S.Ct. at 2069. In Johnson, the Feres doctrine barred the action despite the non-military status of the alleged tortfeasor.

Prior to Johnson, in Stencel v. Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977), the Supreme Court considered whether the United States is liable under the FTCA to indemnify a third party for damages paid by it to a member of the armed forces injured in the course of military service. In Stencel, a private military manufacturer-supplier and the United States had been sued for injuries sustained by a serviceman which arose out of or in the course of activity incident to service. The private military manufacturer-supplier cross-claimed against the United States for indemnity. The serviceman's suit against the United States had been dismissed pursuant to Feres and was not before the Court. The Court reviewed only the private military manufacturer-supplier's claim for indemnity.

The Court considered the three factors underlying the Feres doctrine when evaluating the claim. The Court reasoned as follows:

Clearly, the first factor considered in Feres operates with equal force in this case. The relationship between the Government and its suppliers of ordnance is certainly no less 'distinctively federal in character' than the relationship between the Government and its soldiers.... If, as the Court held in Feres, it makes no sense to permit the fortuity of the situs of the alleged negligence to affect the liability of the Government to a serviceman who sustains service-connected injuries, it makes equally little sense to permit that situs to affect the Government's liability to a Government contractor for the identical injury.

The second factor considered by Feres is somewhat more difficult to apply....

... [However, g]iven the broad exposure of the Government, and the great variability in the potentially applicable tort law, the military compensation scheme provides an upper limit of liability for the Government as to service-connected injuries. To permit petitioner's claim would circumvent this limitation, thereby frustrating one of the essential features of the Veterans' Benefits Act....

Turning to the third factor, it seems quite clear that where the case concerns an injury sustained by a soldier while on duty, the effect of the action upon military discipline is identical whether the suit is brought by the soldier directly or by a third party. The litigation would take virtually the identical form in either case, and at issue would be the degree of fault, if any, on the part of the Government's agents and the effect upon the serviceman's safety. The trial would, in either case, involve second-guessing military orders, and would often require members of the Armed Services to testify in court as to each other's decisions and actions. This factor, too, weighs against permitting any recovery by petitioner against the United States.

Stencel, 431 U.S. at 672-73, 97 S.Ct. at 2058-59 (citations omitted).

With Supreme Court precedent in mind, we turn to a discussion of the specific issues involved in the instant case.

A.

Appellants rely heavily on the Ninth Circuit case of Atkinson v. United States, 804 F.2d 561, opinion withdrawn, 825 F.2d 202 (9th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1288, 99 L.Ed.2d 499 (1988), to support Ms. Irvin's individual claim. In Atkinson, a woman who was serving in the United States Army during the course of her pregnancy and delivery sued the United States alleging that as the result of negligent medical treatment she delivered a stillborn child and suffered physical and emotional injuries of her own. 825 F.2d at 203. In its original opinion, the Ninth Circuit evaluated Atkinson's claim in...