Turner ex rel. Turner v. U.S.

• Decision Date: 28 January 2008
• Docket Number: No. 05-17035.,05-17035.
• Parties: Tracey T. TURNER, a minor by and through his parents and next friends, Tracy R. TURNER, mother, and Tracey Turner, father, and Tracey R. Turner, individually, and Tracey Turner, individually, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

514 F.3d 1194

Tracey T. TURNER, a minor by and through his parents and next friends, Tracy R. TURNER, mother, and Tracey Turner, father, and Tracey R. Turner, individually, and Tracey Turner, individually, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.

No. 05-17035.

United States Court of Appeals, Eleventh Circuit.

January 28, 2008.

William G. Cole, Dept. of Justice, Civ. App. Div., Washington, DC, Tamra Phipps, U.S. Atty., Tampa, FL, for U.S.

Tracy S. Carlin, Mills & Creed, P.A., Fred M. Abbott, Abbott Law Firm, PA., Jacksonville, FL, for Plaintiffs-Appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before BIRCH and BLACK, Circuit Judges, and MILLS,^* District Judge.

BIRCH, Circuit Judge:

In this appeal, we determine the proper standard of care in a case against the government under the Federal Tort Claims Act ("FTCA"), Title 28 U.S.C. §§ 2671-80, arising from emergency medical treatment provided at a military hospital in the state of Florida. The district court held that liability should be decided under an ordinary negligence standard of care, and not the "reckless disregard" standard codified in the Florida "Good Samaritan Act," Fla. Stat. § 768.13 ("GSA"). We also determine whether an administrative claim on behalf of a minor child satisfies the jurisdictional requirements of the FTCA as to his parents' claims, when the child's claim states that the parents have suffered damages, but neither lists the parents as claimants nor provides a sum certain for their claims. The district court held that the child's claim satisfied all statutory prerequisites for the parents' claims. We REVERSE IN PART, VACATE IN PART, AFFIRM IN PART, and REMAND this case to the district court for further proceedings consistent with this opinion.

I. BACKGROUND

On 27 August 2001, at 8:20 P.M., Tracey T. Turner ("Tracey"), then a nine year-old boy, presented to the emergency department of Naval Hospital Jacksonville ("NHJ") while having a severe asthma attack. Earlier that day, Tracey; his father, Tracey Turner ("Mr. Turner"), a Naval corpsman; and his mother, Tracy R. Turner ("Mrs. Turner"), a practical nurse, drove to Jacksonville from Alabama where they had been visiting relatives. Tracey had been suffering from the symptoms of asthma throughout most of the day, and he had made frequent use of his albuterol inhaler during the trip. When Tracey arrived at NHJ, he was able to see and to walk. Lieutenant Commander Shane Cline, M.D. ("Dr. Cline"), assessed Tracey's condition, found him to be "in extremis," and concluded that he was appropriately triaged as an "urgent case." Turner v. United States, No. 3:03-CV-709-J-25TEM, slip op. at 2, 2005 WL 2077297 (M.D.Fla. Aug. 26, 2005).

Dr. Cline ordered that Tracey receive the following treatments: Albuterol/Atrovent Nebulizer, Solumedrol, and Magnesium Sulfate. The district court found that at least half an hour elapsed before Tracey received Solumedrol, he never received the Magnesium Sulfate, and it is unclear if he received the Atrovent. The district court also found that "[t]he failure to administer these medicines as ordered by" Dr. Cline violated the standard of care. Id. The Albuterol/Atrovent Nebulizer treatment was not effective, and the parties agreed that Tracey needed to be intubated using Rapid Sequence Intubation ("RSI"). Experts for both the Turners and the government agreed that Tracey's need for RSI was apparent around 8:40 P.M. and Dr. Cline testified that RSI was indicated at 8:45 P.M., when Tracey's mental state deteriorated. At that time, Tracey became violent, grabbed his mother by the hair, and pulled out his IV. The district court found that RSI should have been accomplished within five minutes, of apparent need. Because of various complications, numerous attempts at RSI were unsuccessful, and Tracey was not intubated until 9:17 P.M. The district court found that the intervening events between the time RSI was indicated and the time. Tracey was actually intubated demonstrated that the Navy was "careless." Id. at 3.

Tracey survived his asthma attack, but he suffered brain damage and severe injuries resulting from oxygen deprivation. Tracey incurred cortical blindness, which has permanently reduced his vision to 20-400 in each eye, and is non-correctable. As a result of his blindness, he had to withdraw from regular public school and enroll in the Florida School for the Deaf and Blind. In addition, Tracey has suffered neuro-psychological problems, a loss of sensory function in his hands, and his performance in school has diminished from above-average to below-average.

In response to Tracey's injuries, the Turners filed three separate Standard Form 95s ("SF-95") with the Navy on behalf of three individual claimants: Tracey, Mr. Turner, and Mrs. Turner. The first claim was filed on 21 January 2003¹, naming as the claimant "Tracey T. Turner, by and through his mother and next friend, Tracy R. Turner." R1-15 at Ex A-1. The basis for the claim was described as follows:

1) Tracey T. Turner suffered severe and permanent injury to his eye sight and to his ability for gross motor movement as well as disfigurement, pain and suffering and other intangible losses. 2) Mr. and Mrs. Turner suffered tangible damages, including medical expenses past and future, as well as intangible damages consistent with a loss of consortium under Florida law.

Id. The "Amount of Claim" was stated as $6,000,000. Id. On 23 January 2003, an attorney for the Navy wrote to the Turners' trial counsel, acknowledging receipt of the first SF-95 and requesting further information regarding Mr. and Mrs. Turner's "intent to seek damages individually (on their own behalf)." R1-15 at Ex. B-1. On 26 February 2003, the Navy received two more SF-95s, naming Mr. Turner and Mrs. Turner as the claimants, respectively, containing the same description of the claim as provided in the original claim, and stating $3,000,000 as the amount of each claim. After receiving the parents' claims, the Navy believed that the Turners intended to divide the $6,000,000 sum certain stated in the original 21 January 2003 claim equally between their newly filed claims. An attorney for the Navy wrote to the Turners' trial counsel, confirming that belief. The Turners' trial counsel responded by letter and explained that:

there are three (3) claims filed in this matter rather than two (2) as indicated in your letter. The first claim was filed on December 13, 2002, on behalf of [Tracey] ... This claim is for $6,000,000 ... the last two claims were presented and filed on February 24, 2003, on behalf of [Mrs. Turner] for $3,000,000.00 and [Mr. Turner] for $3,000,000.00, a total of three (3) filed claims, totaling $12,000,000.00.

R1-15 at Ex. H-1.

On 21 August 2003, after six months had passed from the filing date of the first S95, but less than six months from the filing date of the two subsequent SF-95.s, the Turners filed their original three-count complaint.² Count I is a negligence claim on behalf of Tracey; Count II is a loss of consortium claim on behalf of Mrs. Turner, and Count III is a loss of consortium claim on behalf of Mr. Turner. Consistent with their administrative claims, the Turners sought a total of $12,000,000 in damages; $6,000,000 for Tracey's claim, and $3,000,000 each for Mr. and Mrs. Turner's claims. On 8 September 2003, after receiving the Turners' original complaint, the Navy denied the Turners' administrative claims.

The government filed a motion to dismiss with prejudice for lack of subject matter jurisdiction, or in the alternative, a motion for summary judgment. The government argued that the district court lacked subject matter jurisdiction over Mr. and Mrs. Turner's claims because the complaint was filed less than six months after their administrative claims were filed with the Navy. The district court treated the government's motion as a motion for partial summary judgment, having reviewed the additional material provided by the government in support of its motion. The district court held that the "mention of [Mr. and Mrs.] Turner's claims" in the original SF-95 "was sufficient to place the Navy on notice" of their claims for loss of consortium. Turner v. United States, No. 3:03-CV-709-J-25TEM, slip op. at 8, 2005 WL 1027498 (M.D.Fla. Apr. 1, 2005). Since the Turners' suit was initiated more than six months from the filing date of that claim, the district court held that it had jurisdiction over all three of the Turners' claims and denied the government's motion.

The case was tried before the district court on counts I, II, and III of the Turners' amended complaint. The government argued that liability should be assessed under the "reckless disregard" standard of care codified in the GSA, rather than a simple negligence standard of care. The government also contended that Mr. and Mrs. Turner were comparatively negligent for failing to seek medical care for Tracey earlier in the day. The district court filed its judgment on 26 August 2005. Initially, the district court held that the 2001 version of the GSA would be operative in this case, if it were applicable to NHJ.³ However, since NHJ is not a hospital licensed under chapter 395 of the Florida Code, the district court held that the 2001 version of the GSA does not apply to NHJ. Then, in determining liability under an ordinary negligence standard, the district court concluded that the doctors and nurses at NHJ were negligent in their treatment of Tracey, proximately causing his injuries. Finally, the district court held that there was no legal or factual basis for holding Mr. and Mrs. Turner. comparatively negligent for failing to seek medical attention for Tracey sooner than they did. The Turners sought an aggregate maximum recovery of $12,000,000 for their three claims. The district court awarded both economic and non-economic damages, totaling $5,982,445, consisting of...