Wiltshire by Wiltshire v. Government of Virgin Islands

• Decision Date: 16 February 1990
• Docket Number: No. 89-3164,89-3164
• Citation: 893 F.2d 629
• Parties: Candida A. WILTSHIRE, a minor by Camaleta WILTSHIRE and Randolph Wiltshire, her Parents and Next of Friends and Camaleta Wiltshire and Randolph Wiltshire, Ind., Appellants, v. GOVERNMENT OF The VIRGIN ISLANDS, Several Unknown Persons.
• Court: U.S. Court of Appeals — Third Circuit

Page 629

893 F.2d 629

Candida A. WILTSHIRE, a minor by Camaleta WILTSHIRE and

Randolph Wiltshire, her Parents and Next of

Friends and Camaleta Wiltshire and Randolph Wiltshire, Ind., Appellants, v. GOVERNMENT OF The VIRGIN ISLANDS, Several Unknown Persons.

No. 89-3164.

United States Court of Appeals, Third Circuit.

Argued Dec. 5, 1989.

Decided Jan. 12, 1990.

Rehearing and Rehearing In Banc Denied Feb. 16, 1990.

Frank M. McClellan (argued), Eaton, McClellan & Allen, Philadelphia, Pa., W. David Allen, Allen T. Eaton, David T. Smorodin, Eaton, McClellan & Allen, Washington, D.C., for appellants.

R. Eric Moore (argued), Law Offices of R. Eric Moore, Christiansted, St. Croix, U.S. Virgin Islands, for appellee.

Before GIBBONS, Chief Judge, MANSMANN and NYGAARD, Circuit Judges.

OPINION OF THE COURT

MANSMANN, Circuit Judge.

This matter comes to us on appeal from a final order of the district court for the District of the Virgin Islands limiting a minor's recovery in a medical malpractice action to $250,000. The district court's order also denied consideration of the minor's parents' related claim for loss of services due to lack of subject matter jurisdiction.

We agree with the district court that it could not exercise subject matter jurisdiction over the parents' derivative claim. The parents failed to give prior notice of their claim to the Virgin Islands Medical Malpractice Action Review Committee (the "Committee") as required by Sec. 166i of the Health Care Provider Malpractice Act, 27 V.I.C. Secs. 166 et seq. (Equity Supp.1989). Their later untimely attempt to send notice to the Committee does not alter this result.

We, however, hold that the district court erred as a matter of law in its construction of the applicable insurance contract. The policy established the extent of liability of the defendant in this action, the government of the Virgin Islands. Inferentially, the insurance contract also describes the boundary of the waiver of sovereign immunity of the government. The district court decided that although the minor was the victim of three separate occurrences of medical malpractice, the policy's language confined her to a "per person" recovery We will therefore affirm the district court with respect to the parents' claim, but reverse its decision concerning the language of the insurance contract. The order granting damages in the amount of $250,000 will be vacated and judgment will be entered against the defendant in the amount of $750,000.

cap of $250,000. We conclude instead that since the minor suffered three separate incidents of medical malpractice, the maximum recovery allowed under the policy consists of three separate awards of $250,000, one for each of the malpractice occurrences, for a total of $750,000. More importantly, the dictates of the relevant statute under which the government consents to be sued in such actions, the Health Care Provider Malpractice Act, permits three individual recoveries for the minor.

I.

The following material facts underlying this action are not in dispute:

On February 13, 1983, Candida A. Wiltshire was born prematurely to Camaleta and Randolph Wiltshire at the St. Thomas Community Hospital, a facility owned and operated by the government of the Virgin Islands in St. Thomas. At birth Candida weighed four pounds, three and one-half ounces--a weight appropriate for her gestational age of 34-35 weeks. Candida was in relatively good health immediately after her birth.

To provide Candida with nutrients and liquids, the treating physicians, employees of the government, arranged to feed her through an umbilical venous catheter (UVC) and a nasogastric (NG) tube. The UVC was additionally used to draw blood from and administer blood to Candida. With extended use of a UVC (greater than 24-48 hours) there is a danger of contracting a serious infection; nonetheless, the UVC remained in place for seven days through February 20, 1983. By this date, Candida began to decline in health. Her physicians described Candida as mildly lethargic with some vomiting and an episode of staring. One physician noted that "infection must be looked for." On February 23, 1983, another doctor wrote: "toxic appearance now last 4-5 days, probably staph aureus or epidermitis [secondary] to UVC."

On February 24, 1983, Candida's condition deteriorated rapidly. She experienced an episode of bradycardia (slow pulse rate) and apnea (cessation of breathing). When Candida began gasping for air, the nurses and technicians on duty administered cardiopulmonary resuscitation ("CPR" or "bagging"). A physician noted: "infant apneic probably secondary to blood out--14 cc and sepsis. Bagging being done before my arrival ineffective and probably more destructive to breathing." Blood gas readings taken at this time to evaluate Candida's status indicated a severe infection.

Upon the discontinuation of the UVC, the physicians met Candida's nutritional needs by placing a feeding line in her scalp. The solution leaked from the feeding line and the seepage resulted in a disfiguring scar on Candida's forehead and face.

Candida was discharged from the hospital on April 5, 1983.

The Wiltshires allege that as a result of her treatment, Candida is severely retarded in the development of her mental, motor and speech activities. At five years old, Candida was unable to walk and was incontinent. She had only rudimentary speaking skills and there is a possibility that she is hearing impaired. Candida has been diagnosed as suffering from spastic quadriparesis and a seizure disorder. In addition, Candida has a permanent disfiguring scar on her forehead.

Candida and her parents proceeded to institute a medical malpractice action against the individual treating physicians, certain other of the hospital's employees and the government of the Virgin Islands. As required by Sec. 3409(c) of the Virgin Islands Tort Claims Act, 33 V.I.C. Secs. 3401 et seq. (Equity Supp.1989), the Wiltshires filed a notice of tort claim detailing the alleged improper care of Candida after her birth. Then, on July 11, 1983, the Wiltshires filed a proposed complaint with the Review Committee as required by Sec. 166i of the Malpractice Act--a prerequisite to commencing Three and one-half years later, on December 22, 1987, the Wiltshires moved to amend their original complaint. The amended complaint included, for the first time, two claims for neurological damage to Candida and an additional parents' loss of services claim stemming from the neurological injury incurred by Candida. The district court permitted the amended complaint to be filed. The government filed an amended answer and, also, on May 17, 1988, moved to dismiss the amended complaint. This motion asserted that the amended complaint, alleging neurological damage and describing a parent's claim for loss of services, was invalid as it was never served upon the Committee as required by Sec. 166i of the Malpractice Act. On May 22, 1988, the Wiltshires mailed a copy of the amended complaint to the Committee.

a medical malpractice suit in court. The proposed complaint forwarded to the Committee stated a claim arising out of Candida's facial disfigurement and the emotional distress associated with such scarring. Candida's parents advanced a related claim on their own behalf for loss of Candida's services. The Wiltshires then filed a similar complaint with the district court on April 16, 1984.

On the day that trial was scheduled to commence (October 11, 1988), with the motion to dismiss still outstanding, the parties agreed to settle the dispute. The Wiltshires agreed to resolve Candida's case against the government for the maximum insurance coverage available under the government's medical malpractice insurance policy. Although the parties agreed that the minimum coverage available under the policy was thus $250,000 because of Candida's enormous damages, there was no similar concession as to the upper limit of the amount recoverable. The parties therefore agreed to submit the question of the meaning of the policy to the district court. ¹ Also at the settlement conference, the government made clear its position that the parents had no compensable claim. ²

The district court found that three separate occurrences of malpractice were inflicted upon Candida; namely, (1) the negligent placement of the UVC (the seven day duration was unnecessarily lengthy); (2) negligent "bagging"; and (3) negligent placement of the IV in Candida's forehead. Nonetheless, based upon its construction of the relevant policy language, the district court limited Candida's recovery to $250,000. The Wiltshires appealed.

There are three issues to be decided. Two of them, the extent to which the government has waived its sovereign immunity in medical malpractice actions and the subject matter jurisdiction of the district court over the Wiltshires' loss of services claim, are issues of statutory construction over which we exercise plenary review.

The extent of our review of the third issue, concerning the impact of the language of the insurance contract, involves our construction of a contract. In Ram Construction Company, Inc. v. American States Insurance Company, 749 F.2d 1049 (3d Cir.1984), we determined that in assessing whether a district court was construing a contract, "the focus is whether the court is deciding the legal effect of an agreement on an event not foreseen by the parties." Id. at 1053, citing, 3 CORBIN ON CONTRACTS Sec. 534 (1960). See also STV Engineers, Inc. v. Greiner Engineering, Inc., 861 F.2d 784 (3d Cir.1988) (determining We are challenged here by the fact that the parties in this matter are not the contracting parties, yet we believe this immaterial concerning our scope of review. This somewhat unusual situation where the parties to the action, who are not the identical parties to the writing under scrutiny, comes about because of the way in which the Wiltshires and the government...