Opposition Brief — Starns v. United States

FILED |

JU_ 1 199)

Jn the Supreme Court of the Bniteds Siete THE CLERK

OCTOBER TERM, 1991

JOHN F. STARNS, ET AL., PETITIONERS

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

ROBERT S. GREENSPAN

RICHARD OLDERMAN

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether the Virginia Medical Malpractice Act, which

imposes a ceiling on the amount recoverable in a medical

malpractice action, limits the damages that may be

recovered from the United States in an action under the

Federal Tort Claims Act.

(I)

———————e eS - A TCA A LL ee ea a Neen encccnece cece ae rl ——————————_-

TABLE OF CONTENTS

EES a es

i

De Geek Ws gees Oseents sve edsass

re ee es o's bw iweb 6 Wo.0 0's 60.60.09.

SR re

re eee busses a cessaees

TABLE OF AUTHORITIES

Cases:

Bulala v. Boyd, 239 Va. 218, 389 S.E.2d 670

ee i ee a bien es

Gallea v. United States, 779 F.2d 1403 (9th Cir.

ee ee ee on a is pekkaeicees

ee a kee ga enacss

Indian Towing Co. v. United States, 350 U.S. 61

ee cee eea ners

LaBarge v. County of Mariposa, 798 F.2d 364 (9th

Cir. 1986), cert. denied, 481 U.S. 1014 (1987) ...

Lucas v. United States, 807 F.2d 414 (Sth Cir.

ee ek ke cn ge 60450 e5000 8008 ©

eee inc ko6c eG ne bac daraecnees

Molzof v. United States, cert. granted, No. 90-838

ES eg TRE ee

Proud v. United States, 723 F.2d 705 (9th Cir.),

cert. denied, 467 U.S. 1252 (1984) .............

Rayonier v. United States, 352 U.S. 315 (1957) ....

Reilly v. United States, 863 F.2d 149 (ist Cir.

ee a ce dau whe baa wh bees

Roelofs v. United States, 501 F.2d 87 (Sth Cir.

1974), cert. denied, 423 U.S. 830 (1975) ........

Scheib v. Florida Sanitarium & Benevolent Ass’n,

peo et _. \

(III)

Pe

10

IV

Cases — Continued: Page

Simpson v. United States, 652 F.2d 831 (9th Cir.

re prey pre ey ie ee 8

Taylor v. United States, 821 F.2d 1428 (9th Cir.

1987), cert. denied, 485 U.S. 992 (1988) ........ y

Thomas v. Calavar Corp., 679 F.2d 416 (Sth Cir.

SE nt 54b0uns cone acesehdeued caw nAsw ewes 8

Wisniewski v. United States, 353 U.S. 901 (1957) .. 10

Statutes:

Federal Tort Claims Act:

I ck cece an adeeeewatne 2,7

cae cca cuueseesda sue 2, 4, 6, 7, 10

Virginia Medical Malpractice Act, Va. Code Ann.

(1950):

ML, cna kcteheaevhssdedesescnes 2

SL eRe area SNR NR yey oOo 2

Miscellaneous:

L. Jayson, Handling Federal Tort Claims (1991) . . 7

Jn the Supreme Court of the Anited States

OCTOBER TERM, 1991

No. 90-1677

JOHN F. STARNS, ET AL., PETITIONERS

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-18) is

reported at 923 F.2d 34. The decision of the district court

(Pet. App. Under Seal 1-38) is not reported.

JURISDICTION

The judgment of the court of appeals was entered on

January 9, 1991. A petition for rehearing was denied on

February |, 1991 (Pet. App. 19-20). The petition for a writ

of certiorari was filed on May 1, 1991. This Court’s juris-

diction is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

This case presents the question whether a Virginia

statute that limits the amount that may be awarded in a

medical malpractice action is applicable in an action

brought against the United States under the Federal Tort

Claims Act.

1. The Federal Tort Claims Act makes the United

States liable in tort “in the same manner and to the same

extent as a private individual under like circumstances.” 28

U.S.C. 2674. Liability is determined “in accordance with

the law of the place where the act or omission occurred.”

28 U.S.C. 1346(b).

The Commonwealth of Virginia has enacted a statutory

cap on the amount that can be recovered in an action for

medical malpractice. At the pertinent time, the Virginia

Medical Malpractice Act, Va. Code Ann. § 8.01-581.15,

limited the damages recoverable in an action against a

“health care provider” to $750,000:

In any verdict returned against a health care provider

in an action for malpractice * * * which is tried by a

jury or in any judgment entered against a health care

provider in such an action which is tried without a

jury, the total amount recoverable for any injury to,

or death of, a patient shall not exceed seven hundred

fifty thousand dollars. [']

The statute defines the term “health care provider” as “a

person, corporation, facility or institution licensed by this

Commonwealth to provide health care or professional

services.” Va. Code Ann. § 8.01-581.1(1).

' Virginia has since amended the statute to provide a $1,000,000

ceiling for malpractice occurring on or after October 1, 1983. Because

the injury at issue occurred in 1982, the $750,000 cap is applicable to

this case.

3

2. a. Petitioners are John and Beverly Starns and

their son, Jeffrey. In 1982, Jeffrey was delivered at the

DeWitt Army Hospital in Ft. Belvoir, Virginia. The

delivery was normal, but thereafter the medical staff failed

to diagnose and treat an intracranial hemorrhage. A day

after his discharge, Jeffrey was admitted to the Army’s

Walter Reed Hospital and underwent surgery to correct

the hemorrhage. Despite surgery, he suffered severe and

permanent mental and physical injuries. Pet. App. 5-6.

After administrative claims filed with the Army were

denied, each petitioner filed a separate action for damages

under the Federal Tort Claims Act. Each complaint al-

leged that Jeffrey’s injuries were caused by his negligent

treatment at the DeWitt Army Hospital. The three actions

were consolidated. The United States conceded liability,

but contested the amount of damages. Pet. App. 6-7.

b. The district court certified several questions to the

Virginia Supreme Court: whether Virginia’s medical mal-

practice cap violated the Virginia Constitution; whether

the cap violated the federal Constitution; whether a single

cap was applicable to all three plaintiffs or whether each

could recover up to the statutory maximum; and whether

the statute applied in this case “given that the DeWitt

Army Community Hospital is federally operated and is

not licensed by the Commonwealth of Virginia.” Pet.

App. A&g.

In an unpublished per curiam opinion, the Virginia

Supreme Court held that the statute was constitutional

under both the state and federal constitutions and that the

statute did not apply, as a matter of state law, to federally

operated hospitals not licensed by the Commonwealth.

Pet. App. Under Seal 43. In view of its determination that

the statute did not apply, the court reserved judgment on

whether petitioners were subject to a single cap. /bid.

4

In a subsequent opinion, the Virginia Supreme Court

concluded that the question it had left open was moot as a

matter of state law. The court added that its rulings “ex-

presse[d] no opinion concerning the effect of the several

federal statutes and decisions cited by the Defendant, the

United States of America, upon the applicability of the

Virginia medical malpractice cap to a multiple-plaintiff

malpractice award.” App., infra, la.

c. After receiving the Virginia court’s responses to the

certified questions, the district court conducted a trial

limited to the issue of damages. The court found that the

evidence would support an award to the child of more

than $4,625,000, for future medical expenses, lost earning

capacity, education, housing, and pain and suffering; an

award to the mother of $270,000 for the value of her serv-

ices to the child; an award to the father of $13,771 for lost

wages; and an award to both parents of $12,009 for

hospital and medical expenses incurred on their child’s

behalf. Pet. App. Under Seal 6, 37-38.

The district court concluded, however, that the damages

recoverable from the United States were subject to the cap

prescribed by the Virginia malpractice statute. The court

acknowledged that the Virginia Supreme Court had deter-

mined, as a matter of state law, that the statutory cap did

not apply to federal hospitals, since they are not licensed

by the Commonwealth of Virginia. But, the district court

continued, “[t}he Virginia legislature’s intent is not deter-

minative in a suit involving the FTCA.” Pet. App. Under

Seal 28. The court explained that under the FTCA, the

United States is liable for tort claims “in the same manner

and to the same extent as a private individual under like

circumstances.” 28 U.S.C. 2674. Thus, the court reasoned,

because the medical malpractice statute would have been

applicable to the DeWitt Army Hospital! if it had been a

private institution, Congress’s waiver of sovereign im-

munity was limited to the amount of the cap. Any other

conclusion, the court stated, “ ‘would contravene Con-

gress’ directive’ that the United States be held liable to the

Same extent as a private party under similar

circumstances.” Pet. App. Under Seal 29-30. The district

court found support for this conclusion in decisions by

several courts of appeals. Jd. at 30-32.

The district court construed the Virginia statute to pro-

vide two statutory caps for the damages recovered in this

action—one for Jeffrey and one covering both parents.

Accordingly, it entered judgment for Jeffrey in the

amount of $750,000 and for the parents in the amount of

approximately $295,000. Pet. App. 4.

3. The court of appeals affirmed the district court’s

determination that petitioners’ recoveries were limited by

the Virginia statute, but it held that a single cap was appli-

cable to all of their claims. Pet. App. 1-18.

The court rejected petitioners’ contention that the statu-

tory cap was inapplicable by virtue of the fact that the

DeWitt Army Hospital was not a “health care provider”

within the meaning of state law, i.e., a hospital licensed by

the Commonwealth (Pet. App. 12-14):

This argument * * * overlooks the fact that the

{source] of the government’s liability is the FTCA and

not the [Virginia statute’s] cap. * * * In a suit under

the FTCA, a plaintiff may only recover against the

government to the extent the government has waived

‘ts sovereign immunity. While Virginia law informs us

on how a private party would be treated, it is in-

capable of telling us to what extent the federal

government has waived its sovereign immunity. * * *

The FTCA provides that the government “shall be

liable * * * in the same manner and to the same extent

6

as a private individual under like circumstances.” 28

U.S.C. § 2674 (1988). The FTCA assures the federal

government of that treatment accorded private par-

ties. * * * Accordingly, Virginia law, as applied to

private parties in “like circumstances,” determines the

extent of the government’s liability in this case. Since

private health care providers in Virginia would in

“like circumstances” be entitled to the benefit of Sec-

tion 8.01-581.15, so, too, is a federally operated

hospital in that state.

“Other circuits,” the court added, “have agreed that limi-

tations similar to the one involved here, which purport to

apply only to state-licensed health care providers, apply to

the United States.” Pet. App. 14.

While this case was pending on appeal, the Virginia

Supreme Court held, in Bulala v. Boyd, 239 Va. 218, 389

S.E.2d 670, 676 (1990), that a single cap is applicable to

the damages recoverable by a patient who has been injured

by malpractice and to all other “derivative” claims. Under

that interpretation, the court of appeals held, “ail claims

arising out of Jeffrey’s injuries are subject to one statutory

cap,” and “the limit for all damages in this case is

$750,000.” Pet. App. 15. The petition does not seek fur-

ther review of that determination.

ARGUMENT

The court of appeals correctly applied the plain lan-

guage of the Federal Torts Claims Act. There is no conflict

between its decision and any decision of this Court or of

another court of appeals. Further review is not warranted.

1. The FTCA »rovides that the United States is liable

in tort actions “in the same manner and to the same extent

as a private individual under like circumstances,” 28

U.S.C. 2674, and that liability is determined “in accord-

7

ance with the law of the place where the act or omission

occurred,” 28 U.S.C. 1346(b). As this Court noted in

Rayonier v. United States, 352 U.S. 315, 319 (1957), “the

test * * * for determining the United States’ liability is

whether a private person would be responsible for similar

negligence under the laws of the State where the acts oc-

curred.” The same standard applies to both liability and

damages. See L. Jayson, Handling Federal Tort Claims

§ 226 (1991) (“Just as the law of the state where the mis-

conduct occurred governs the substantive tort liability, so

does it govern the nature and measure of damages to be

awarded. * * * [R]eference must be made to state law to

determine whether there is any ceiling imposed on the

amount of recovery.”).

There is no dispute that the law of Virginia is applicable

to this case. The Commonwealth has placed a limit on the

amount that may be recovered from private health care in-

stitutions —for purposes of this case, $750,000. Had this

action been brought against such a private institution

“under like circumstances,” 28 U.S.C. 2674, petitioners’

recovery would have been limited to that sum. Under the

plain language of the FTCA, therefore, the United States’

is liable only “to the same extent.” bid.

2 The fact that a federal hospital is not identical to a private institu-

tion--in particular, that it is not subject to state licensing —does not

make it any less appropriate to draw the analogy required by the

statute. As this Court held in Indian Towing Co. v. United States, 350

U.S. 61, 64 (1955), the statutory language refers not to private persons

under “the same circumstances,” but to those under similar circum-

stances. See Proud v. United States, 723 F.2d 705 (9th Cir.) (United

States can claim protection of Hawaii recreational use statute even

though statute explicitly excludes land owned by the government, for

“the United States’ liability under the FTCA is that of a private in-

dividual, regardless of what a state intends that liability to be”), cert.

denied, 467 U.S. 1252 (1984); Lucas v. United States, 807 F.2d 414,

417 (Sth Cir. 1986) (“Texas law informs how a private party would be

8

Petitioners’ fundamental submission is that the Virginia

malpractice statute is immaterial because the Virginia

Supreme Court held, in its initial decision, that the Dewitt

Army Hospital is not a “health care provider” within the

meaning of the statute. However, in its subsequent deci-

sion, the Virginia Supreme Court acknowledged that its

ruling was not dispositive of the question presented here,

saying that it had “expresse[d] no opinion concerning the

effect of the several federal statutes and decisions cited by

the Defendant, the United States of America, upon the ap-

plicability of the Virginia medical malpractice cap.” App.,

treated; it does not tell us, indeed it cannot, the extent to which the

federal government has waived its sovereign immunity. By excluding

federally operated institutions from coverage under [the cap provi-

sion], the Texas legisiature simply acknowledged the limit of its

power.”); Reilly v. United States, 863 F.2d 149, 162 (ist Cir. 1988)

(“[t]he intent of the Rhode Island General Assembly is, in a very real

sense, irrelevant to the extent of the federal government’s liability in

an FTCA suit”); Scheib v. Florida Sanitarium & Benevolent Ass’n, 759

F.2d 859, 861 (1ith Cir. 1985) (applying a Florida collateral source

statute to the United States in an FTCA suit); Simpson v. Untied

States, 652 F.2d 831 (9th Cir. 1981) (regardless of whether California’s

recreational use statute was intended to apply to public as well as

private landowners, it must be applied to limit the United States’

liability in an FTCA action for injuries to a user of a national forest

recreation area); Mandel v. United States, 719 F.2d 963 (8th Cir. 1983)

(similar result under Arkansas’ recreational use statute); Roelofs v.

United States, 501 F.2d 87 (Sth Cir. 1974) (applying the exclusive

remedy provisions 0i Louisiana’s workmen’s compensation law to bar

a tort action against the government for an on-the-job injury to an

employee of a government contractor despite the fact that the United

States’ sovereign immunity prevents the State from requiring the

government to compensate injured workers under the statutory

scheme), cert. denied, 423 U.S. 830 (1975); Thomas v. Calavar Corp.,

679 F.2d 416 (Sth Cir. 1982) (same); Griffin v. United States, 644 F.2d

846 (10th Cir. 1981) (same result under Kansas Workmen’s Compen-

sation Act); LaBarge v. County of Mariposa, 798 F.2d 364 (9th Cir.

1986), cert. denied, 481 U.S. 1014 (1987).

9

infra, 1a. Under the plain terms of the FTCA, moreover,

it is completely irrelevant what obligations state law im-

poses on the federal government as such; the material

question is how state law treats a similarly situated private

party. The court of appeals’ decision is true to the answer

state law provides to that question. There is no merit what-

ever to petitioner’s repeated contentions that the court of

appeals improperly disregarded state law.

2. All other courts of appeals that have addressed the

question presented have reached the same conclusion as

the court of appeals in this case. Lucas v. United States,

807 F.2d 414 (Sth Cir. 1986); Taylor v. United States, 821

F.2d 1428 (9th Cir. 1987), cert. denied, 485 U.S. 992

(1988). Lucas was an FTCA action in which the govern-

ment sought the benefit of the Texas statutory cap on

medical malpractice damages. The Texas statute, like the

Virginia law, limited damages recoverable from “health

care providers” and defined that term to include only en-

tities licensed by the state. The Fifth Circuit rejected the

contention, indistinguishable from petitioner’s here, that

the statute was inapplicable, pointing out that “[t]his argu-

ment forgets that the source of the government’s liability

here is the Federal Tort Claims Act, not the Texas liability

limit provision.” 807 F.2d at 417. In Taylor, the Ninth Cir-

cuit reached the same result under another similar state

Statute. 821 F.2d at 1432.3

3 The district court suggested that there was a possible conflict be-

tween Taylor and Gallea v. United States, 779 F.2d 1403 (9th Cir.

1986). Pet. App. Under Seal 32. We do not agree; the Ninth Circuit

concluded in Gallea, which involved the application of a state dram

shop law, that “we cannot say that a private person in circumstances

similar to the [federal] Club would be liable.” 779 F.2d at 1406. In any

event, Taylor is the more recent of the two cases and the one on all

fours with this case, since it involved a cap on the damages available

from health care providers. Moreover, an intra-circuit conflict does

10

3. This case should not be held for Molzof v. United

States, cert. granted, No. 90-838 (Mar. 18, 1991). The

question presented in Molzof is whether 28 U.S.C. 2674,

which provides that the United States “shall not be liable

* * * for punitive damages,” forecloses certain forms of

damages sought in that case. Petitioners were not denied

any relief on the basis of the punitive damages provision,

and Molzof does not involve a state cap on damages com-

parable to the one at issue here.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

ROBERT S. GREENSPAN

RICHARD OLDERMAN

Altorneys

JULY 1991

not warrant this Court’s review. Wisniewski v. United States, 353 U.S.

901 (1957). :

APPENDIX

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond on Wednesday

the 28th day of June, 1989.

JEFFREY A. STARNS, BY AND THROUGH His NEXT FRIENDS

AND GUARDIANS, JOHN F. AND BEVERLY J. STARNS:

JOHN F. STARNS; AND BEVERLY J. STARNS, PLAINTIFFS

against Record No. 881289

UNITED STATES OF AMERICA, DEFENDANT

Upon further consideration of the order of certification

entered by the United States District Court for the Eastern

District of Virginia, Alexandria Division, and of the letter

briefs submitted by the parties upon the question whether

the third certified question is now moot, this Court is of

opinion that the said question is now moot as a matter of

state law. In reaching this conclusion, the Court expresses

no opinion concerning the effect of the several federal

statutes and decisions cited by the Defendant, the United

States of America, upon the applicability of the Virginia

medical malpractice cap to a multiple-plaintiff malpractice

award.

A Copy,

Teste:

David B. BEACH, Clerk

By: /s/ Patricia Ista

Deputy Clerk

(la)

ss US. GOVERNMENT PRINTING OFFICE: 1990— 282-06 1/20612