Phillips v. United States, Civ. A. No. 79-551-8.

• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina
• Writing for the Court: Jack L. Marshall, Columbia, S. C., for defendant United States
• Citation: 508 F. Supp. 544
• Parties: Dwight A. PHILLIPS and Kathleen D. Phillips, Plaintiffs, v. UNITED STATES of America, Defendant.
• Docket Number: Civ. A. No. 79-551-8.
• Decision Date: 19 January 1981

508 F. Supp. 544

Dwight A. PHILLIPS and Kathleen D. Phillips, Plaintiffs,
v.
UNITED STATES of America, Defendant.

Civ. A. No. 79-551-8.

United States District Court, D. South Carolina, Charleston Division.

January 19, 1981.

508 F. Supp. 545

Ellis I. Kahn, Charleston, S. C., for plaintiffs Dwight A. Phillips and Kathleen D. Phillips.

Jack L. Marshall, Columbia, S. C., for defendant United States.

ORDER

BLATT, District Judge.

This matter is before the court on defendant's motion for summary judgment pursuant to Rule 12(b) and Rule 56(b) of the Federal Rules of Civil Procedure. The action was brought under the Federal Tort Claims Act, and jurisdiction is predicated on 28 U.S.C. § 1346(b). Defendant's motion asserts, inter alia, that any failure by defendant's employees in advising, counseling, and testing plaintiff Kathleen Phillips during her pregnancy concerning the risks of Down's Syndrome would not constitute actionable negligence; that an allegation of "wrongful birth"¹ does not state a claim upon which relief can be granted; that plaintiffs have not suffered any damage cognizable at law; that plaintiffs do not have standing to maintain this cause of

508 F. Supp. 546

action; and that plaintiffs' claim is barred by the misrepresentation exclusion of the Federal Tort Claims Act, 28 U.S.C. § 2680(h). While numerous other jurisdictions have been confronted with claims of this nature,² the case is one of first impression in South Carolina. Therefore, this court is once again³ faced with the formidable task of anticipating the decision that the South Carolina Supreme Court would reach if presented with the issue—a task which can be accomplished only by a prudent and assiduous review of both the factual circumstances and legal precedents

FINDINGS OF FACT

1. Plaintiffs, Dwight A. Phillips and Kathleen D. Phillips, are the parents of William Randall Phillips. He was born on September 23, 1977, at the Charleston Naval Regional Medical Center (CNRMC) in Charleston, South Carolina, where his father was on active duty with the United States Navy. The child was noted at birth to be afflicted with Down's Syndrome,⁴ commonly known as mongolism, as well as a moderately loud heart murmur.

2. On August 9, 1976, during a previous pregnancy, plaintiff, Kathleen D. Phillips,

508 F. Supp. 547

made her initial visit to the obstetrics clinic at CNRMC. At that time, Mrs. Phillips was in her twelfth week of pregnancy. In completing a prenatal questionnaire, she indicated, among other information, that she was twenty-two years of age, that she had not previously borne any children, and that her sister was "mentally retarded." Less than a week later, she experienced an apparent spontaneous abortion, for which she was hospitalized and treated with a therapeutic uterine cervix dilation and curettage

3. On March 22, 1977, during a subsequent pregnancy, Mrs. Phillips again visited the obstetrics clinic at CNRMC. In responding to a section on the prenatal questionnaire concerning any family history of mental retardation, Mrs. Phillips noted that her sister was afflicted with Down's Syndrome. She also indicated that her last menstrual period was December 14, 1976; therefore, at the time of this visit, Mrs. Phillips was approximately fourteen weeks pregnant. She returned to CNRMC on April 17, 1977, and saw Dr. Robert K. Sadler, a second year obstetrics resident, who noted that she was in her seventeenth or eighteenth week of gestation and that she reported a family history which included a "sister with Down's Syndrome." Mrs. Phillips was given no further counseling or genetic testing based on this information.⁵ The pregnancy culminated with the birth of William Randall Phillips on September 23, 1977.

CONCLUSIONS OF LAW

A. Applicability of Misrepresentation Exclusion of Federal Tort Claims Act

Defendant asserts that plaintiffs' claims are barred by the misrepresentation exclusion contained in the Federal Tort Claims Act, 28 U.S.C. § 2680(h). While the Act provides for liability against the United States under certain circumstances, that section specifically excepts "any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." Id. (emphasis added). Of course, questions concerning the import of this exclusionary language are governed by federal law. See Stepp v. United States, 207 F.2d 909, 911 (4th Cir. 1953). The Supreme Court has interpreted this section as evidencing a legislative intent to preclude the "traditional and commonly understood" torts of negligent misrepresentation and common-law deceit. United States v. Neustadt, 366 U.S. 696, 705-08, 711 n.26, 81 S.Ct. 1294, 1299-1301, 1302-1303 n.26, 6 L.Ed.2d 614 (1961). The Court went on to note that

many familiar forms of negligent conduct may be said to involve an element of "misrepresentation", in the generic sense of the word, but "so far as misrepresentation has been treated as giving rise in and of itself for a distinct cause of action in tort, it has been identified with the common law action of deceit," and has been confined "very largely to the invasions of interests of a financial or commercial character, in the course of business dealings."

Id. at 711 n.26, 81 S.Ct. at 1302-1303 n.26, quoting W. PROSSER, LAW OF TORTS, § 85 (1941 ed.).

While Neustadt interpreted § 2680(h) in the context of the National Housing Act, 12 U.S.C. §§ 1701 et seq., a number of lower courts have examined the misrepresentation exclusion in a medical malpractice setting. In Hungerford v. United States, 307 F.2d 99 (9th Cir. 1962) and DeLange v. United States, 372 F.2d 134 (9th Cir. 1967), the Ninth Circuit Court of Appeals apparently held that the communicated diagnosis of a physical condition was a representation within the meaning of § 2680(h), but this position was convincingly repudiated in a subsequent en banc decision, Ramirez v. United States, 567 F.2d 854 (9th Cir. 1977). In Ramirez, the court explicitly overruled Hungerford and DeLange, and held that "the creation of strained distinctions to

508 F. Supp. 548

encompass aspects of ordinary medical malpractice within the misrepresentation exception of section 2680(h) is not justified by the language of the statute, by its history, or by Neustadt." Id. at 857. The court also discerned in the legislative history of the Federal Tort Claims Act a "policy of ... allowing actions for medical malpractice." Id.; e. g., S.Rep.No.211, 72d Cong., 1st Sess. (1931); H.R.Rep.No.5065, 72d Cong., 1st Sess. (1932), noted in 1 L. Jayson, Handling Federal Tort Claims, § 59.08 (Matthew Bender 1980). See United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963). Although one court has suggested that there may be a limited class of medical situations, involving solely a failure to inform, to which § 2680(h) would be relevant, as, for example, "where there is a breach of a duty to correctly inform a patient concerning the nature and consequences of an operation, but the operation is medically indicated and performed in accordance with the applicable standards of medical care," Herring v. Knab, 458 F.Supp. 359, 362-63 (S.D.Ohio 1978), most medical situations involve "a dual duty in ascertaining the patient's condition —i. e., a duty to advise him what the condition is, and a duty to render proper care and treatment for that condition— and breach of the latter duty is actionable even though the former is not." 2 L. JAYSON, supra, at § 260.053c. "Where the gravamen of the complaint is the negligent performance of operational tasks, rather than misrepresentation, the government may not rely on § 2680(h) to absolve itself of liability." Ingham v. Eastern Air Lines, Inc., 373 F.2d 227, 239 (2d Cir. 1967). In the case at hand, the complaint alleges a failure to properly advise, counsel, and test Mrs. Phillips with respect to certain genetic risks; such a medical malpractice claim is not precluded by § 2680(h) of the Federal Tort Claims Act. E. g., Ramirez v. United States, 567 F.2d 854 (9th Cir. 1977); Hicks v. United States, 511 F.2d 407 (D.C.Cir. 1975); Beech v. United States, 345 F.2d 872 (5th Cir. 1965); Diaz Castro v. United States, 451 F.Supp. 959 (D. Puerto Rico 1978); Herring v. Knab, 458 F.Supp. 359 (S.D.Ohio 1978); Green v. United States, 385 F.Supp. 641 (S.D.Cal.1974). See Hicks v. United States, 368 F.2d 626 (4th Cir. 1966). Since

the government physicians, apart from any duty to disclose pertinent medical facts, have the affirmative obligation to render proper care in the treatment of maladies ..., ... the failure to perform this latter duty ... takes these cases out of the ambit of the misrepresentation exclusion where such failure is properly pleaded.

Diaz Castro v. United States, 451 F.Supp. 959, 961 (D. Puerto Rico 1978). Thus, this court has concluded that plaintiffs' "wrongful birth" claim, predicated on an alleged failure to advise, counsel, and test Mrs. Phillips, is not barred by the misrepresentation exclusion contained in § 2680(h) of the Federal Tort Claims Act.

B. Validity of "Wrongful Birth" Claim

Counsel for the respective parties agree that there is no controlling decision in South Carolina governing the novel issues raised by plaintiffs' "wrongful birth" claim. Under the Federal Tort Claims Act, this court is bound to follow "the law of the place where the act or omission occurred," 28 U.S.C. § 1346(b); e. g., Long v. United States, 241 F.Supp. 286 (W.D.S.C.1966); however, in the absence of such controlling law, this court must attempt to predict the determination that the state supreme court would reach on the question. Quinones v. United States, 492 F.2d 1269 (3rd Cir. 1974). A particularly appropriate example of this process, albeit in a diversity context, is provided by Todd v. Sandidge Construction Co., 341 F.2d 75 (4th Cir. 1964), a case arising in the District...