Simon v. United States, 77-102-Civ-CA.
| Decision Date | 27 September 1977 |
| Docket Number | No. 77-102-Civ-CA.,77-102-Civ-CA. |
| Citation | 438 F. Supp. 759 |
| Parties | Gary P. SIMON, as personal representative of the Estate of Jessica Marie Pope, Deceased, and on Behalf of and for the Use and Benefit of Michele Pope and James Pope, as the surviving natural parents of Jessica Marie Pope, Deceased, Michele Pope, Individually, and James Pope, a derivative claimant, Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Donald R. Boswell, Asst. U. S. Atty., Miami, Fla., for defendant.
This action is brought under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., alleging medical malpractice by government hospital personnel at Homestead Air Force Base, Homestead, Florida, in connection with the pregnancy of plaintiff, Michele Pope, resulting in the stillbirth of her unborn child, Jessica Marie Pope.
The United States has moved to dismiss Counts I, II and III of the complaint, brought by the personal representative of the Estate of Jessica Marie Pope, on the ground that the Florida Wrongful Death Act, F.S. §§ 768.16 et seq. does not allow a cause of action for the death of a stillborn fetus.
Liability of the United States under the Federal Tort Claims Act turns on whether a private individual would be liable in like circumstances under state law, in this case the law of Florida. 28 U.S.C. § 2674; United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963); Standefer v. United States, 511 F.2d 101 (5th Cir. 1975). The law of Florida on this point is clear. In the recent case of Stern v. Miller, 348 So.2d 303 (Fla.1977), the Supreme Court of Florida determined that a stillborn fetus is not a "person" within the meaning of the Florida Wrongful Death Act; therefore, no cause of action for wrongful death exists in the stillborn child's personal representative.
As discussed in Stern, all jurisdictions now allow an action for wrongful death caused by prenatal injuries where the death occurs subsequent to a live birth, and a majority of states allow a cause of action where the child is stillborn as a result of the injuries. See also W. Prosser, Torts 335-338 (4th Ed. 1971). I am sympathetic to the compelling arguments in favor of recovery, and cognizant of the inequities inherent in allowing a tortfeasor who so severely injures a fetus that it dies before birth to escape the liability which would have been imposed had the child survived birth, however briefly. This Court, however, is not free to weigh these considerations but is bound to apply the law of Florida, as enunciated in Stern.1
The plaintiffs also argue that an unborn, viable child is a "person" under the Federal Constitution and, therefore, its exclusion from the Florida Wrongful Death Act violates equal protection and renders that statute unconstitutional.2 Plaintiffs cited no cases in support of this proposition, choosing instead to rely on a general unsupported assertion that recent Supreme Court rulings on abortion recognize an unborn, viable child as a person. This argument is entirely without merit. It is patently clear that plaintiff has failed to read those decisions to which it alludes, in light of the express holding in Roe v. Wade that "the word `person' as used in the Fourteenth Amendment does not include the unborn." 410 U.S. 113, 158, 93 S.Ct. 705, 729, 35 L.Ed.2d 147 (1973) emphasis added.
Lastly, plaintiffs argue that the application of state law to actions brought under the Federal Tort Claims Act denies them equal protection in that it inequitably deprives them recovery which could have been had if the alleged malpractice had occurred in another state. Here again, plaintiffs have been unable to cite any case in support of this argument, and it too must fail. The constitutionality of applying state law in wrongful death actions brought under the Federal Tort Claims Act was upheld in Hess v. United States, 361 U.S. 314, 80 S.Ct. 341, 4 L.Ed.2d 305 (1960). The choice of law is not affected by the fact that the claim arose on federal property, such as a military installation, within a state. Orr v. United States, 486 F.2d 270 (5th Cir. 1973).
The Court having determined that Counts I, II and III of the complaint fail to state a claim upon which relief can be granted, said counts are hereby dismissed with prejudice.
This cause came before the Court for trial, non-jury, and the Court having heard the testimony introduced by the parties, reviewed exhibits introduced into evidence during the course of trial, and having heard the arguments of counsel, now makes the following findings of fact and conclusions of law:
NATURE OF ACTION
Plaintiffs brought this action under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., alleging medical malpractice by government hospital personnel at Homestead Air Force Base, Homestead, Florida, in connection with the treatment of the pregnancy of plaintiff, Michele Pope, resulting in the stillbirth of her unborn child, Jessica Marie Pope.
1. At the time of the acts giving rise to this action, the plaintiffs, Michele Pope and James Michael Pope, were husband and wife. James Pope was a serviceman in the United States Army, assigned to Homestead Air Force Base.
2. During the course of her pregnancy from January, 1975, to October 17, 1975, Michele Pope was under the exclusive care and treatment of the agents, servants and employees of defendant, United States of America, at Homestead Air Force Base.
4. It has been further stipulated, based on a reasonable degree of medical probability, that had Michele Pope received proper care and treatment the baby would have been born alive.
5. At the time of her pregnancy Michele Pope was thirty-one years old. This was her first pregnancy. For several years prior to her pregnancy she had attempted to become pregnant but had been unable to conceive. She underwent medical treatment, including an operation, to assist her in becoming pregnant.
6. As a direct and proximate result of the negligence of the government personnel, Michele Pope underwent physical pain and suffering. In addition, she has suffered intense grief and mental anguish which is continuing in nature.
7. Plaintiff, James Pope, suffered loss of consortium and of his wife's companionship, from the time of the acts of malpractice to the time of his separation from his wife in February, 1976. James Pope suffered and continues to suffer grief and mental anguish as a result of the stillbirth of his child.
1. The Court has jurisdiction over this claim pursuant to 28 U.S.C. § 1346(b) and the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.
2. Michele Pope is entitled to recover damages for her physical and mental pain and anguish occasioned by the malpractice upon her and by the stillbirth of her child. See Stokes v. Liberty Mutual Insurance Company, 213 So.2d 695 (Fla. 1968); Occhipinti v. Rheem Manufacturing Co., 252 Miss. 172, 172 So.2d 186 (1965).
3....
To continue reading
Request your trial
-
Singleton v. Ranz
...Stern v. Miller, 348 So.2d 303 (Fla.1977).2 Stokes v. Liberty Mutual Insurance Co., 213 So.2d 695, 700 (Fla.1968); Simon v. United States, 438 F.Supp. 759 (S.D.Fla.1977); Occhipinti v. Rheem Manufacturing Co., 252 Miss. 172, 172 So.2d 186 (1965); Snow v. Allen, 227 Ala. 615, 151 So. 468 (19......