Kock v. Government of Virgin Islands

• Decision Date: 28 September 1984
• Docket Number: 83-3269 and 83-3277,Nos. 83-3124,83-3154,s. 83-3124
• Citation: 744 F.2d 997
• Parties: Mario KOCK, Administrator of the Estate of Mercedes Maria Figaroa Tromp, Deceased, Appellant and Cross-Appellee, v. GOVERNMENT OF the VIRGIN ISLANDS, Appellee and Cross-Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 997

744 F.2d 997

Mario KOCK, Administrator of the Estate of Mercedes Maria Figaroa Tromp, Deceased, Appellant and Cross-Appellee, v. GOVERNMENT OF the VIRGIN ISLANDS, Appellee and Cross-Appellant.

Nos. 83-3124, 83-3154, 83-3269 and 83-3277.

United States Court of Appeals Third Circuit.

Argued April 23, 1984.

Decided Sept. 28, 1984.

James E. Beasley (argued), Frederick W. Klepp, Beasley, Hewson, Casey Colleran,

Erbstein & Thistle, Philadelphia, Pa., for appellant and cross-appellee.

Richard H. Hunter (argued), Isherwood, Hunter & Colianni, Christiansted, St. Croix, V.I., for appellee and cross-appellant.

Before SEITZ, GARTH, and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

SEITZ, Circuit Judge.

I.

Mario Kock, plaintiff, appeals from the district court's order denying his motion to amend the judgment entered against the Government of the Virgin Islands in his wrongful death action. The Government of the Virgin Islands cross-appeals the order of the district court entering judgment.

The parties filed their first notices of appeal in this action after the district court announced its judgment from the bench but before the court issued the "separate document" required by Fed.R.Civ. P. 58. These appeals were docketed in this court as No. 83-3124 and No. 83-3154. After the district court issued its order entering judgment, plaintiff filed a motion to amend under Fed.R.Civ. P. 59(c), thereby nullifying the original notices of appeal. Fed.R.App. P. 4(a)(4)(iii). We will therefore dismiss the appeals docketed as No. 83-3124 and No. 83-3154. Within thirty days of the district court's order denying plaintiff's motion to amend, plaintiff filed a second notice of appeal. The Government's notice of cross-appeal followed within fourteen days. These appeals were docketed in this court as No. 83-3269 and No. 83-3277, respectively. We have jurisdiction to decide these appeals under 28 U.S.C. Sec. 1291.

II.

Plaintiff in this action is the administrator of the estate of Mercedes Maria Figaroa Tromp. Ms. Tromp, a resident of Antigua, was visiting the island of St. Croix when she developed a severe headache. Her husband took her to the Charles Harwood Memorial Hospital, one of two hospitals owned and operated by the Government of the Virgin Islands. There she was examined by a Government-employed doctor ¹ who prescribed some medication and instructed that she be taken home. Ms. Tromp died several hours later of a cerebral hemorrhage. The parties do not dispute in this appeal that her death was the result of the doctor's negligence.

Plaintiff filed this action against the Government of the Virgin Islands in the district court in 1979. In 1982 the court ruled that plaintiff's right to recover, if proved, would not be subject to 33 V.I.C. Sec. 3411(c) (Equity Supp.1983), which limits damages against the Government to $25,000 for the wrongs of its employees. Instead, the court ruled that the Government would be liable for damages up to the amount of medical malpractice insurance it had purchased pursuant to the medical malpractice statute in the Virgin Islands. In this case the Government's insurance coverage was $100,000, the minimum coverage required under the statute.

In 1983, after a one-day trial, the district court ruled that the Government was liable for the death of Ms. Tromp and must pay $100,000 in damages. Plaintiff moved to amend the judgment to include damages in excess of $100,000, and this motion was denied. Plaintiff appeals from the order denying his motion, and the Government appeals from the judgment to the extent it awards damages in excess of $25,000.

III.

The issue in both the appeal and the cross-appeal is the amount of damages recoverable against the Government of the Virgin Islands in an action for wrongful death based on medical malpractice. The Government's primary contention is that plaintiff's recovery is limited by the language of the Tort Claims Act, which states that "[n]o judgment shall be awarded against the Government of the Virgin Islands in excess of $25,000." 33 V.I.C. Sec. 3411(c). Plaintiff responds that the Virgin Islands Health Care Providers Malpractice Act, 27 V.I.C. Sec. 166e(b) (Equity Supp.1983) ("the Medical Malpractice Act") expands this waiver of liability beyond $25,000.

Plaintiff contends first that the amount of his recovery against the Government is limited only by 27 V.I.C. Sec. 166b, which states that "[t]he total amount recoverable for any injury of a patient may not exceed two hundred and fifty thousand dollars ...." We read this language as imposing an ultimate limit of $250,000 on medical malpractice recoveries. We are convinced, however, that the language does not foreclose the possibility that lower limits may apply in actions against particular defendants. We are therefore free to look elsewhere in the Medical Malpractice Act or other legislation to determine what limits, if any, apply in malpractice actions against the Government. ²

In the alternative, plaintiff contends that he may recover against the Government to the extent that the Medical Malpractice Act requires the Government to purchase malpractice insurance. The Act states that the Virgin Islands Commissioner of Health is "authorized and directed" to purchase a malpractice liability insurance policy for all "health care providers" required to be licensed in the Virgin Islands. 27 V.I.C. Secs. 166e(a), 166(c). "Health care providers" include, inter alia, physicians, nurses, "para-medical personnel," and public and private hospitals. Id. Sec. 166(c), (d). The insurance policy must provide minimum coverage of $100,000 for each injured patient. Id. Sec. 166e(b). The Government pays the premiums for this insurance for providers "exclusively employed by the Government of the Virgin Islands on a full-time basis ..." id. Sec. 166e(a)(1).

We agree with plaintiff that the Virgin Islands legislature, by enacting this statute, intended to expand the waiver of governmental immunity set forth in section 3411(c) of the Tort Claims Act. We can think of no other reasonable explanation for the legislature's inclusion of "public hospitals" within the definition of "health care providers" required to have insurance protection. If "public hospitals" may never be liable for $100,000 in damages, the insurance requirement is meaningless. We are not free to ignore the requirement, or to construe it in such a way as to give it no meaningful effect.

The Government points out, however, that plaintiff has not sued a public hospital; instead, he has sued the Government, which is not defined as a "health care provider" under the Medical Malpractice Act. Any argument based on the insurance requirement is therefore irrelevant, according to the Government, and recovery must be limited to $25,000 under the Tort Claims Act. We disagree, because we do not believe that the legislature, in drafting the Act, intended to draw a distinction between the "Government" and "public hospitals". As the Government concedes, the two public hospitals in the Virgin Islands are mere instrumentalities of the Government operated by the Department of Health. ³ The mandatory malpractice insurance for the hospital is, in effect, insurance protection for the Government when it is doing business as a health care provider. ⁴

Other considerations do not require us to treat the Government and its public hospitals as distinct entities. We do not deprive the Government of any defenses it would have if it were sued in the guise of the hospital. ⁵ Neither does our decision increase the Government's ultimate exposure to liability under the Act, since plaintiff's recovery will be from Government-purchased insurance in any event.

The Government refers us to the rule of statutory construction that "limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957). We decline to apply this rule in the present case, however. Instead we look to section 2(b) of the Revised Organic Act of 1954, 48 U.S.C. Sec. 1541(b), for the proper rule of statutory construction. That section states that "no tort action shall be brought against the government of the Virgin Islands ... without the consent of the legislature ...." The statute by its terms does not require express consent. ⁶ In the present case, we find sufficient indications of legislative consent in the mandatory insurance provisions for public hospitals discussed above. Cf. Silverlight v. Huggins, 488 F.2d 107, 110 (3d Cir.1973) (construing Tort Claims Act to apply retroactively).

We recognize that when a court infers legislative consent to be sued, it must proceed cautiously and with due respect for the government's sovereignty. The Maryland Court of Appeals, in a case similar to our own, has required a "necessary and compelling implication" by the legislature that immunity has been waived. Jackson v. Housing Opportunities Commission, 289 Md. 118, 422 A.2d 376, 378 (1980). Applying that test to the case before us, we find the inference of an expanded waiver to be "necessary and compelling" because, as stated above, we would otherwise be required to conclude that the Virgin Islands legislature had included meaningless language in the Medical Malpractice Act.

The legislative history of the Medical Malpractice Act, when considered in its entirety, is consistent with our holding that the Virgin Islands legislature, in enacting the Malpractice Act, consented to expand the Government's liability for the medical malpractice of its employees. Admittedly, some remarks during the debate suggest that the bill's sponsor considered employees of a Government hospital to be covered by the damages limitation of the Tort Claims Act. Leg. Debate on Bill 6773, 11th Leg. Sess. of V.I., Oct. 29, 1974, at 11. The debate also establishes, however, the...