Knowles v. US, Civ. 92-5030.

Citation829 F. Supp. 1147
Decision Date27 July 1993
Docket NumberNo. Civ. 92-5030.,Civ. 92-5030.
PartiesWilliam KNOWLES and Jane Knowles, on behalf of themselves and as guardians of their minor son, Kris Knowles, Plaintiffs, v. UNITED STATES of America, Defendant.
CourtUnited States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota


John J. Delaney, Wayne F. Gilbert, Johnson Huffman, Rapid City, SD, for plaintiffs.

Bonnie P. Ulrich, Craig P. Gaumer, Asst. U.S. Attys., Sioux Falls, SD, for defendant.


BATTEY, District Judge.

This is an action under the Federal Tort Claims Act ("FTCA") brought by William and Jane Knowles on behalf of themselves and their son, Kris Knowles. Kris was treated as a newborn at Ellsworth Air Force Base Hospital and suffered severe and permanent injuries as a result of the negligence of defendant.

Defendant has admitted liability on the basis of medical malpractice and has filed a motion for the entry of judgment against defendant in the sum of $1 million. The motion is predicated on South Dakota Codified Laws ("SDCL") 21-3-11 (medical malpractice damage cap statute) which limits damages in medical malpractice actions to $1 million.


1. Plaintiffs argue that SDCL 21-3-11 does not apply because:

(a) The statute does not apply to negligence actions founded upon claims against "medical service specialists."
(b) The statute applies separately to each cause of action; therefore, the total recovery is not limited to $1 million.
(c) The statute applies separately to each tortfeasor; therefore, the total judgment is not limited to $1 million.

If the statute applies to plaintiffs under the above situations, then the plaintiffs argue it is unconstitutional for four reasons:

(1) The statute violates the right to a jury trial guaranteed by South Dakota Constitution art. VI, sec. 6, subsection 2.
(2) The statute violates the equal protection and due process of law provisions of the South Dakota (art. VI, sections 18 and 6) and the United States Constitution (the fourteenth amendment).
(3) The statute violates the open court and a remedy for injury guaranteed by the South Dakota Constitution. Art. VI, section 20.
(4) The statute is special legislation prescribed by art. III, section 23.

SDCL 21-3-11 provides:

In any action for damages for personal injury or death alleging malpractice against any physician, chiropractor, dentist, hospital registered nurse, certified registered nurse anesthetist, licensed practical nurse or other practitioner of the healing arts under the laws of this state, whether taken through the court system or by binding arbitrations, the total damages which may be awarded may not exceed the sum of one million dollars.

Statutes are presumed to be constitutional. In the Matter of Certain Territorial Electric Boundaries, 281 N.W.2d 65, 69 (S.D.1979). The court must uphold the statute unless the challenger shows beyond a reasonable doubt, that the statute violates a state or federal constitutional provision. Id. The strong presumption of constitutionality is rebutted only "when it appears palpably and plainly ... that the statute violates some provision of the South Dakota Constitution." Id. Further, the Court cannot concern itself with the legislative wisdom behind the statute. Id.

The Court must avoid constitutional rulings whenever possible in a particular case. Baldwin v. First National Bank of Black Hills, 362 N.W.2d 85 (S.D.1985) (court must first ascertain whether construction of statute is fairly possible by which constitutional issue may be avoided). Therefore, the Court must first determine whether or not the statutory damages cap applies before passing on the constitutional question.

1. Does the statute apply to medical service specialists?

Plaintiffs assert that SDCL 21-3-11 does not apply to negligence actions founded on claims against medical service specialists. In this case medical service specialists measured and recorded body temperatures of newborn Kris Knowles. Plaintiffs allege that these specialists failed to advise attending nurses and physicians of abnormally low body temperatures and had the medical service specialists made the required reports, Kris's injuries would not have occurred. Therefore, the medical service specialists' negligence proximately caused Kris's injuries.1

Plaintiffs contend that under this scenario an action could be maintained against any or all of the tortfeasors (the medical service specialists, nurses, doctors). Because this is a federal tort claim the United States has waived sovereign immunity but its liability is limited "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674 (West Supp. 1993).

Plaintiffs do not appear to challenge the statute's applicability to the doctors, nurses and hospital. In examining the statute it is clear that it applies to a medical malpractice tort claim against the United States.2 In an analogous case the Eighth Circuit upheld the district court's application of Nebraska's damage cap statute. Lozada v. United States, 974 F.2d 986 (8th Cir.1992).

In Lozada, a father brought an action against the United States under the FTCA seeking damages for injuries sustained by his son during birth at an Air Force Hospital. Id. at 987. The government admitted liability and a court trial was held as to damages. The court found damages in the amount of $1,292,738, but reduced the judgment to $1,000,000 in accordance with Nebraska Hospital-Medical Liability Act, Neb.Rev.Stat. § 44-2801 et seq. (1988). The Eighth Circuit affirmed holding that United States, when sued under the FTCA for medical malpractice occurring in Nebraska, was entitled to protection of the damage cap afforded to "qualified health care providers" in Nebraska. Id. at 989.

By its terms SDCL 21-3-11 applies to any malpractice action against:

... any physician, chiropractor, dentist, hospital, registered nurse, certified registered nurse, anesthetist, licensed practical nurse, or other practitioner of the healing arts under the laws of this state ... (emphasis added).

Essentially plaintiffs contend that medical service specialists do not fit any of the categories in the statute and the $1 million damages cap does not apply to this case because of the negligence of the medical service specialists. The question the Court must answer is whether the medical service specialists are "practitioners of the healing arts" within the meaning of this statute.

SDCL 36-2-1(3) defines healing art as:

(3) "Healing art," "healing," "art of healing," "practicing healing," "practicing of healing," any system, treatment, operation, diagnosis, prescription, or practice for the ascertainment, cure, relief, palliation, adjustment, or practice for the ascertainment, cure, relief, palliation, adjustment, or correction of any human disease, ailment, deformity, injury, unhealthy or abnormal physical or mental condition;

The duties of the medical service specialists included taking vital signs and administering custodial care such as giving bed baths, changing dressings and generally assisting the doctor and nurses. (Deposition of Charles Hicks, RN, Docket # 67, at p. 50).

Medical service specialists involved in this case constitute "practitioners of the healing arts" within the meaning of SDCL 21-3-11. This is a medical malpractice action, pure and simple. All the government agents involved were in some way administering care to Kris Knowles, including the medical service specialists.

Further, this is an action against the United States under the FTCA. There is only one named defendant. The United States can only be held liable to the same extent that a private party can be held liable in a state court action. See 28 U.S.C. § 2674. The medical service specialists are agents of the Air Force hospital. Any alleged negligence on the part of the agents during the course of their employment is the responsibility of the hospital under the doctrine of respondeat superior. See Simmons v. United States, 805 F.2d 1363, 1369 (9th Cir.1986) (liability of Government in FTCA case depends upon whether individual tortfeasors was acting within scope of employment).

In an apparent effort to avoid the damages cap, plaintiffs attempt to characterize and invite the Court to visualize this action as something other than professional negligence. The Court denies the invitation. As indicated this is a medical malpractice action, calling it something else does not make it so. See, e.g., Taylor v. United States, 821 F.2d 1428, 1431 (9th Cir.1987), cert. denied, 485 U.S. 992, 108 S.Ct. 1300, 99 L.Ed.2d 510 (1988). In Taylor, a wife brought action against United States for damages sustained by her husband when his ventilator became disconnected while a patient in a military hospital. Id. The court limited her recovery of non-economic damages under a California damages cap statute. Because there was little evidence on how the ventilator became disconnected, the wife attempted to characterize the action as one for ordinary negligence thereby circumventing the medical malpractice damages cap. The Ninth Circuit rejected this approach stating:

There is little evidence concerning the reason that Taylor's husband's ventilator became disconnected. However, Taylor's husband was under the care of government physicians at the time of the incident, the injury occurred in the hospital, and the injury was caused by removal of medical equipment integral to treatment ...
The government had a professional duty to prevent Taylor's husband from becoming separated from his ventilator, regardless of whether separation was caused by the ill-considered decision of a physician or the accidental bump of a janitor's broom. The damages cap statute applies to this case.

821 F.2d at 1432. Similarly, in this case the government had a professional duty to care for Kris Knowles, including identifying and treating his...

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