Opposition Brief — Tarpeh-Doe v. United States

In the Supreme Court of the United Sta:

OCTOBER TERM, 1990

LINDA WHEELER TARPEH-DOE,

INDIVIDUALLY AND AS MOTHER AND NEXT FRIEND

OF NYENPAN TARPEH-DOE, PETITIONERS

v.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

ROBERT S. GREENSPAN

WILLIAM G. COLE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

(a a Aa SS TEN

QUESTION PRESENTED

Whether the Secretary of State’s discretionary au-

thority to pay foreign tort claims in connection with

Department of State operations abroad creates a

property interest to which the Due Process Clause

applies.

(1)

TABLE OF CONTENTS

Page

i aia aarcaiinananncnstankaaniinietlinnnbiinnes 1

I kD a aneeiennaliinntnies 1

I hich hansiglemelbncniioeaeniiitth 2

ca caeeiieuinbiieatebiapieginens 10

ac al RS ae Se Ae ee ner ee 16

I aa 5 ks ean dis badiimiatiicniaiecteietansatiann la

TABLE OF AUTHORITIES

Cases:

Board of Regents v. Roth, 408 U.S. 564 (1972) .... 9

Cohen v. Beneficial Indus. Loan Corp., 337 U.S.

LEE SP Pai ea ce eo 9

Daniels v. Williams, 474 U.S. 327 (1986) ............... 1l

Davidson v. Cannon, 474 U.S. 344 (1986) .............. 11

Gregory Vv. Town of Pittsfield, 470 U.S. 1018

Ts etsin paleaibtiaibaiisaiienbe 13

Kentucky Dep’t of Corrections v. Thompson, 109

I a seeciieiguliaiinnane 9

Logan v. Zimmerman Brush Co., 455 U.S. 422

EE en a 13, 14

Lyng V. Payne, 476 U.S. 926 (1986) ...................... 13

Mullane v. Central Hanover Bank & Trust Co.,

a a niisvuunniptenenanticn 13

Olim v. Wakinekona, 461 U.S. 238 (1983) -............ 11

Constitution, statutes, and regulations:

U.S. Const. Amend. V (Due Process Clause) ...... 2, 8, 10,

11,14

Act of Aug. 1, 1956, ch. 841, § 2(f), 70 Stat. 890,

EE ae em 3, 4, 11

Federal Tort Claims Act, 28 U.S.C. 2671 et seq.:

a eediienibeennhivnl 3, 4, 5, 18

a ssicusidaneasnlipalion 3

dacs esenineeniuabahaitinth 4

es shnmenuandntinetes 8

EE A CCR 4,11

Regulations—Continued : Page

EERE aa aR Ne Se ey Bae 4

a 4

EAT ae Re RTT 3 4

a) a 4

EIRENE TRE cheer Cant 12

Miscellaneous:

H.R. Rep. No. 2508, 84th Cong., 2d Sess. (1956)... 14

In the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-745

LINDA WHEELER TARPEH-DOE,

INDIVIDUALLY AND AS MOTHER AND NEXT FRIEND

OF NYENPAN TARPEH-DOE, PETITIONERS

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals, Pet. App. la-

16a, is reported at 904 F.2d 719. The opinion of the

district court, Pet. App. 17a-25a, is reported at 712

F. Supp. 1.

JURISDICTION

Te judgment of the court of appeals was entered

on June 8, 1990. A petition for rehearing was de-

nied on August 13, 1990. Pet. App. 46a. The peti-

tion for a writ of certiorari was filed on November

9, 1990. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

Petitioner Linda Wheeler Tarpeh-Doe gave birth

in Liberia to a baby who contracted infections lead-

ing to permanent brain damage. Petitioners filed an

administrative tort claim in which they alleged that

the negligence of State Department employees

caused the baby’s injury. The State Department’s

investigation of petitioners’ claim determined that

the baby’s injuries were not the fault of any govern-

ment employee, and the Secretary of State’s designee

denied the claim. Petitioners filed suit charging that

the administrative claims process followed in their

case violated the Due Process Clause of the Fifth

Amendment. The district court agreed and on that

premise ordered the disclosure of certain information

and reconsideration of petitioners’ claim. On appeal,

the court of appeals reversed on the ground that no

statute or regulation gave petitioners a property in-

terest protected by the Due Process Clause.

1. According to the second amended complaint, pe-

titioner Linda Wheeler Tarpeh-Doe was an Interna-

tional Development Intern with the Agency for In-

ternational Development. In 1981, she was assigned

to the American Embassy in Monrovia, Liberia. On

May 18, 1982, she gave birth to Nyenpan Tarpeh-

Doe II. Less than three weeks later, the baby became

very ill, and an embassy physician ordered the baby

evacuated immediately to the United States. The

evacuation order was countermanded later that day,

however, after the embassy physician had the baby

examined by an American missionary doctor who

was in charge of the pediatric ward at John F. Ken-

nedy Hospital in Monrovia The pediatrician ordered

the child transfered to Kennedy Hospital because he

believed he could treat the baby. Mrs. Tarpeh-Doe

3

and her husband objected to the transfer and de-

manded that their baby be evacuated as originally

planned, but the embassy physician agreed with the

pediatrician and declined to order the evacuation.

On June 17, 1982—after 12 days during which the

baby’s condition showed no improvement—the baby

was evacuated to the United States. The child, who

is blind and has suffered permanent brain damage,

is currently institutionalized in Denver. C.A. App.

13-19.

2. In 1984, petitioners filed an administrative tort

claim with the Department of State alleging negli-

gence by the Department and its employees. C.A.

App. 23. The claim invoked the first paragraph of

28 U.S.C. 2672 of the Federal Tort Claims Act

(FTCA). That paragraph authorizes the head of

each federal agency to consider any claim for money

damages against the United States arising from the

negligence of any agency employee while acting in

the scope of his employment. Although the FTCA

itself does not apply to “[a]ny claim arising in a

foreign country,” 28 U.S.C. 2680(k), the Act of

August 1, 1955, ch. 841, § 2(f), 70 Stat. 890, pro-

vides:

[T]he Secretary of State may use funds ap-

propriated or otherwise available to the Secre-

tary to—

* * « « *

(f) pay tort claims, in the manner authorized

in the first paragraph of section 2672, as

amended, of title 28, when such claims arise in

foreign countries in connection with Department

of State operations abroad.

22 U.S.C. 2669(f).

Regulations promulgated under the Act of Aug-

ust 1, 1956, establish the procedures by which the

4

Secretary of State will exercise his discretionary au-

thority to pay foreign tort claims. See 22 C.F.R. Pt.

31. Section 31.6(a) states that the “Foreign Ser-

vice establishment” out of whose activities the claim

arose “‘shall make such investigations as may be nec-

essary or appropriate” and “thereafter shall forward

the claim, together with all pertinent material, and

a recommendation, based on the merits of the case,

with regard to allowance or disallowance of the

claim.” Section 31.7 states that “[c]laims will be

determined in accord with the applicable statute and

the applicable subpart of this part.” The applicable

statute {the Act of August 1, 1956) requires that

the claim satisfy the first paragraph of 28 U.S.C.

2672. See 22 U.S.C. 2669(f). The applicable sub-

parts of 22 C.F.R. Pt. 31 make further provision

with respect to adjustment or settlement of claims,

22 C.F.R. 31.8, payment of claims, 22 C.F.R. 31.9,

and denial of claims, 22 C.F.R. 31.10,’ but do not

require the payment of foreign tort claims merely

because payment is consistent with the governing

statute.

3. Upon receiving petitioners’ claim, a claims

attorney in the State Department began an investi-

gation. The attorney conducted interviews with per-

sons familiar with the case, consulted outside ex-

1 22 C.F.R. 31.10 provides in full as follows:

Final denial of an administrative claim shall be in

writing and sent to the claimant, his or her attorney,

or legal representative by certified or registered mail.

Except in the case of claims arising in foreign countries,

the notification of final denial shall contain a statement

that if the claimant is dissatisfied with the decision, he

may file suit in an appropriate U.S. District Court not

later than 6 months after the date of the notification.

5

perts, reviewed relevant documents, and met with

petitioners’ counsel. Pet. App. 3a.

In a detailed memorandum, App., infra, la-25a,

the claims attorney concluded that “most or all” of

the baby’s neurological damage was caused by an

“infection [that] had already occurred when the

child was brought in to the Embassy health clinic,

and that the treatment received was prompt and ef-

fective in eliminating the infection,” id. at 2la.° The

attorney found that the baby had been ill for at least

2 We reproduce the claims attorney’s memorandum because

amici American Foreign Service Ass’n et al. claim that it

constitutes an “impermissible secret law” and that it im-

properly applied Liberian law. Amici Br. 8-9. Amici also

promise that these issues “‘will be more particularly described

in Petitioner’s Renly to the Opposition to Petition for Cer-

tiorari.” Jd. at 9.

Review of the claims attorney’s memorandum reveals a

careful and comprehensive investigation of petitioners’ claim.

Despite the sinister connotations of amici’s reference to

“secret law,” the district court held only that the memoran-

dum “would, wnrless disclosed, be impermissible ‘secret law,’ ”

Tarpeh-Doe v. United States, No. 88-0270-LFO (D.D.C. Nov.

13, 1990), slip op. 10 (emph-sis added), because it consti-

tuted “the essence of the decision making process,” id. at 7.

The discovery dispute to which the district court decision

refers—whether the memorandum is privileged or otherwise

protected from disclosure—has absolutely no relevance to the

question presented here and casts no doubt on the propriety

of the State Department action in this case.

The choice of law question to which amici allude is like-

wise irrelevant to the proper disposition of this petition. But

we note that insofar as the memorandum looked to Liberian

law, it is consistent with the reference, in the first paragraph

of 28 U.S.C. 2672, to “the law of the place where the act or

omission occurred.” Moreover, in view of the analysis and

conclusions reached in the memorandum, it does not appear

that the source of applicable law was of controlling signifi-

cance.

6

three days before Mrs. Tarpeh-Doe brought him to

the embassy clinic, and that the baby’s infections had

not received medical attention even though a govern-

ment physician and nurse treated Mrs. Tarpeh-Doe

at her home for post-natal infections during this

period. Jd. at 3a, 13a. When Mrs. Tarpeh-Doe and

her husband finally brought the baby to the embassy

clinic, his situation was grave: he had large lesions

on his groin, buttocks, and legs and had suffered a

seizure earlier that morning. Jd. at 13a. The em-

bassy physician, alone except for the presence of a

clinical nurse, had to make a “clinical decision on

the spot” and decided to administer antibiotics to

counter the infection. Jd. at 14a. On the basis of

his interviews with medical professionals, the claims

attorney determined that the physician’s decision

was correct. Jd. at 14a-15a. The antibiotics that he

administered did not mask a salmonella infection;

the preexisting infection—not salmonella-—caused

the baby’s injuries: and the antibiotics were effective

against salmonella. /bid.*

3 Although petitioners alleged that the embassy physician

was negligent in not evacuating the baby to the United States

as originally planned, the claims attorney found that the

embassy physician and pediatrician “together determined

that the risk that the gravely ill child would not survive

evacuation to the United States outweighed the advantages

of the medical care available in the U.S.” App., infra, 15a;

see id. at 5a, 7a. Instead of evacuating the baby to the

United States, the attending physicians placed him in Ken-

nedy Hospital, where the pediatrician—“the best qualified

and most experienced physician in Liberia for treating

neonatal meningitis,” id. at 25a—could closely supervise his

care. Although the conditions of the hospital were ‘“de-

plorable” by U.S. standards, the baby was moved to a more

7

Based on his findings that the damage had occurred

before the baby was brought to the embassy clinic,

and that the doctors rendered proper care under the

circumstances, the claims attorney recommended that

petitioners’ claim be denied. App., infra, 25a. Be-

fore drafting his final recommendation, the claims

attorney met with petitioners’ counsel to discuss his

investigation. C.A. App. 92. At the meeting, the

claims attorney “addressed each element” of peti-

tioners’ claim and stated “the bases for [his] views

thereon.” Jbid. In particular, the claims attorney

stated that “the principal theory of the claim [that

the baby’s injuries were caused by a salmoneila in-

fection] was not substantiated based on the docu-

ments submitted to the [State] Department on behalf

of the claimant and confirmed by the experts with

whom [the attorney] consulted.” Jd. at 92-93. In

light of his discovery that the preexisting infec-

tion was responsible for the baby’s injuries, the

claims attorney noted the “serious problem of proxi-

mate cause created by the factual circumstances.”

Id. at 93. The claims attorney’s recommendation was

forwarded to the Assistant Legal Advisor for Inter-

distant hospital with ‘notably more sanitary” conditions the

next morning. Jd. at 5a-6a.

After 12 days of treatment, “the doctors determined that

because of the baby’s overall stable condition it would be

safe to medevac him.” App., infra, 7a. The doctors’ concern

about the stress of evacuation on the baby was borne out by

the event. The evacuation took more than 22 hours and

weakened the baby to the point where “[i]t was necessary

to give mouth-to-mouth breathing.” Jbid. Upon arrival in

the United States, the baby was admitted to the University

of Colorado hospital and released a little more than two

weeks later. Jd. at 8a. He is currently a full-time patient

at a Colorado facility at state expense. Ibid.

8

national Claims and Investment Disputes, who issued

a formal denial of petitioners’ claim in a letter sent

by certified mail.‘ Pet. App. 3la-32a. The letter did

not repeat the bases for denying petitioners’ claim.

Tbid.

4. Petitioners filed suit against the United States

and the Secretary of State under the FTCA. The

district court granted partial summary judgment for

petitioners.” The court held that the State Depart-

ment’s procedures for resolving foreign tort claims

violate the Fifth Amendment’s Due Process Clause

because they fail to require disclosure of the evidence

on which a claim has been denied. Pet. App. 23a-

24a. The district court remanded the case to the

State Department for reconsideration, and required

the Department to:

(1) disclose to plaintiffs the evidence relied upon

in the original denial of their claim and to be

relied upon in reconsideration of it, (2) afford

plaintiffs an adequate opportunity to comment

on and counter that evidence, and (3) make and

provide to plaintiffs findings of fact that address

the evidence relied upon by the decisionmaker in

the original decision and the reconsideration of

it, and any comment or counter submitted by

4 Petitioners assert that the Assistant Legal Advisor was

“not authorized” to act on petitioner’s claim. Pet. 6 n.5.

Petitioners_do not present that issue for this Court’s review,

and in fact, the Assistant Legal Advisor had authority, on

the basis of long-standing State Department practice, to deny

administrative tort claims. That practice now appears at

22 C.F.R. 31.2 (codified Nov. 11, 1987).

5 The balance of the case—which involves alleged negligent

acts or omissions in the United States—has since been tried

before the district judge. No judgment has been entered.

9

plaintiffs in response to evidence disclosed to

them.

Td. at 25a.

On appeal, the court of appeals reversed.’ Pet.

App. la-10a. It explained that this Court has re-

quired individuals asserting a constitutional right to

certain procedures to demonstrate that they have

been deprived of a pvotected liberty or property in-

terest. Jd. at 7a. Only interests that rest on a

“legitimate entitlement” as opposed to “an abstract

need or desire” are considered “protected interests.”

Ibid. (quoting Board of Regents v. Roth, 408 U.S. 564,

577 (1972)). Whether a given statutory scheme

gives rise to a protected interest depends on whether

the statutes or regulations making up that “scheme”

direct officials that if the “substantive predicates are

present, a particular outcome must follow.” Pet.

App. 7a (quoting Kentucky Dep’t of Corrections v.

Thompson, 109 8. Ct. 1904, 1910 (1989)). Applying

those principles, the court ruled that:

[t]he plain language of § 2669(f) does not give

a claimant the right to demand either payment

of tort claims or procedures for the consideration

of such claims.

Pet. App. 8a. The court of appeals also held that the

regulations promulgated to implement the Act of

August 1, 1956, entitled a claimant only to an in-

vestigation and to the decision maker’s opportunity

to review the claim and the results of the investiga-

® Petitioners moved to dismiss the appeal for lack of juris-

diction. By order issued November 9, 1989, the court of

appeals denied the motion, ruling that the district court’s

decision was an appealable collateral order under Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).

10

tion. Zbid. Thus, neither the statute nor the regula-

tions “provide[d] a sufficient basis for the district

court’s conclusion that the administrative scheme for

handling tort claims arising abroad implicates the

due process clause.” Jd. at 9a.

Chief Judge Wald dissented. Pet. App. 1la-l6a.

She concluded that ‘the Regulations do explicitly

and implicitly assume that an administrative claim,

foreign or domestic, will be decided on the same legal

and equitable principles that govern court determina-

tions.” Jd. at 15a.

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or

any other court of appeals. Further review is not

warranted.

1. Analysis of the question presented—whether

petitioners have a liberty or property interest pro-

tected by the Fifth Amendment’s Due Process Clause

—requires identification of the interests they seek to

protect. Petitioners claim that this case involves

“denial of a claim for congressionally-authorized

benefits.” Pet. 14. Those “benefits” appear to be

financial compensation “to Mrs. Tarpeh-Doe and her

son to assist their recovery from injury,” Pet. 15,

and “a merit-based decision pursuant to the criteria

set forth in the Department’s regulations,” Pet. 16.

a. Petitioners’ understandable desire for financial

compensation is not a property interest protected by

the Due Process Clause. It is well settled that the

Clause “is not implicated by the lack of due care of

an official causing unintended injury to life, liberty,

or property. In other words, where a government

offivial is merely negligent in causing the injury, no

anaemia earn iaiel

11

procedure for compensation is constitutionally re-

quired.” Davidson v. Cannon, 474 U.S. 344, 347

(1986); see Daniels v. Williams, 474 U.S. 327, 333

(1986). Petitioners’ complaint alleges at most negli-

gent conduct by the embassy physician in rendering

professional care. C.A. App. 19-30. The interest in

compensation for injury negligently inflicted by gov-

ernment agents is not by itself sufficient to invoke the

Due Process Clause.

b. Petitioners’ claimed property interest in a

“merit-based decision” is not supported by either the

governing statute or applicable regulations, and is

not protected by the Due Process Clause.

The Act of August 1, 1956, creates no entitlement

to a merit-based decision because the language of the

Act (“[t]he Secretary of State may use funds” (em-

phasis added) ) is entirely discretionary. 22 U.S.C.

2669(f). As this Court held in Olim v. Wakinekona,

461 U.S. 238 (1983) :

Process is not an end in itself. Its constitutional

purpose is to protect a substantive interest to

which the individual has a legitimate claim of

entitlement.

Id. at 250. If no entitlement exists, as in this case

where the decisionmakers’ discretion is unfettered,

due process protection does not attach. Jd. at 250

n.10.

Nor is such an entitlement created by the Secre-

tary of State’s regulations. As explained at p. 4,

supra, the regulations require only that the responsi-

ble foreign service establishment conduct an investi-

gation and that the claim and results of the investiga-

tion be submitted to the ultimate decisionmaker for

review. 22 C.F.R. 31.6(a). As the court of appeals

12

correctly observed, ‘‘this is where the chain necessary

to [petitioners’] claim of entitlement ends”:

As noted, the Regulations nowhere provide that

the decisionmaker must comply with the recom-

mendation prepared by the officer investigating

the claim’s validity or, alternatively, that the

decisionmaker must provide a statement of rea-

sons for not following the investigator’s recom-

mendation. We cannot say, therefore, that the

Secretary has erred in construing his own Reg-

ulations not to require the Department to pay

claims even if the investigator determines that

the claim is valid and recommends payment.

Pet. App. 8a-9a.

In her dissent, Chief Judge Wald relied entirely

on what she regarded as a “crucial sentence” in 22

C.F.R. 31.18. Pet. App. 14a. That provision, which

constitutes all of Subpart C - the regulations, reads

in its entirety:

The act of August 1, 1956 (5 U.S.C. 170g)

authorizes the Secretary of State, when funds are

appropriated therefor, to pay tort claims in the

manner authorized in the first paragraph of 28

U.S.C. 2672, as amended, when such claims arise

in foreign countries in connection with Depart-

ment of State operations abroad. Consequently,

the Federal Tort Claims Act and Subpart B of

this part are applicable to claims filed under the

act of August 1, 1956, except that no provision

has been made in that act for the institution of

suit if a claim is denied.

Judge Wald read into the second sentence of the

provision a requirement that the Secretary “pay

meritorious claims.” Pet. App. 14a. But neither the

sentence in itself nor the provision of which it is a

13

part can bear such an extraordinary weight. On the

contrary, the provision simply echoes the congres-

sional extension, to foreign tort claims, of the au-

thorization in the first paragraph of 28 U.S.C. 2672,

and the consequent extension to those claims of the

administrative procedures of Subpart B of the Sec-

retary’s regulations.

2. Petitioners offer a variety of reasons for this

Court’s review. None of them has merit.

a. First, petitioners contend that the court of ap-

peals’ decision creates a “conflict with the majority of

the circuits,” Pet. 12, 14, which find property inter-

ests when “the state creates an entitlement to general

assistance,” Pet. 14 (citing Gregory v. Town of Pitts-

field, 470 U.S. 1018, 1021-1022 (1985) (O’Connor,

J.. dissenting from denial of certiorari)). But

whether or not those decisions are correct,’ this is not

an entitlement case. The governing statute and reg-

ulations, examined above, establish that petitioners

have no entitlement to compensation for torts com-

mitted by government agents outside the United

States.

b. Second, petitioners argue that the court of ap-

peals’ decision conflicts with this Court’s decision in

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982).

Pet. 17. In Logan, this Court reaffirmed the holding

in Mullane v. Central Hanover Bank & Trust Co., 339

U.S. 306, 311-315 (1950), that “a cause of action is

a species of property protected by the Fourteenth

Amendment’s Due Process Clause.” 455 U.S. at 428.

7Cf. Lyng v. Payne, 476 U.S. 926, 942 (1986) (“We have

never held that applicants for benefits, as distinct from those

already receiving them, have a legitimate claim of entitle-

ment protected by the Due Process Clause of the Fifth or

Fourteenth Amendment.’’).

14

In Logan and Mullane, the claimant’s “right to re-

dress [wa]s guaranteed by the State, with the ade-

quacy of his claim assessed under what [wa]s, in

essence, a ‘for cause’ standard.” 455 U.S. at 431;

see id. at 430 (“The hallmark of property * * * is an

individual entitlement * * * which cannot be removed

except ‘for cause.’”’). In this case, by contrast, peti-

tioners have no right to redress. Congress’s authori-

zation to pay foreign tort claims is merely permissive.

Although the State Department’s regulations require

the observance of certain procedural steps, they do not

establish a cause of action such as would create a

property right protected by the Due Process Clause.

ce. Third, petitioners claim that the decision below

“encourages arbitrary treatment of claimants.” Pet.

19. They find it “difficult to conceive of any rational

reason why the Department should be free to deny

meritorious claims.”’ Pet. 27.

In fact, it appears that Congress’s primary pur-

pose in vesting the Secretary with discretion was to

reduce the volume of private bills. As petitioners ac-

knowledge in their chronology of the FTCA, Pet. 21,

Congress retained sovereign immunity from foreign

tort claims when it enacted the FTCA in 1946. For

the next decade, Congress continued the practice of

entertaining private bills to compensate the victims

of tortious conduct committed by government agents

abroad. Congress enacted the Act of August 1, 1956,

to give the Secretary the authority, “in the event of

an automobile accident or some other tort claims

abroad,” to settle those claims “without a great deal

of red tape.” H.R. Rep. No. 2508, 84th Cong., 2d

Sess. 9 (1956). This description of the purpose of

the 1956 Act suggests that it was primarily intended

to transfer the discretionary compensation function

15

from Congress (which could act only by private bill)

to the Secretary of State (who could establish an in-

formal administrative process “without a great deal

of red tape”). The process adopted by the State De-

partment is entirely in keeping with that objective.

Of course, Congress could have reduced the volume

of private bills simply by removing the FTCA exemp-

tion for foreign torts. That Congress instead author-

ized discretionary payments of foreign tort claims sug-

gests an additional purpose: to give the Secretary of

State flexibility in compensating claims for tortious

conduct originating in the territory of another sov-

ereign. As attested by the Assistant Legal Advisor,

“t]he discretionary structure of 22 U.S.C. § 2669(f)

and its implementing regulations permits the Depart-

ment to take foreign policy interests into account in

the disposition of foreign tort claims.” C.A. App. 97-

98. The question whether to pay in a given case is

affected by a variety of factors in the foreign policy

context. These factors include whether intelligence

or confidential activities are involved and whether a

foreign government may take offense. Because the for-

eign policy interests of the United States might re-

quire denial of a claim in an appropriate case, Con-

gress may well have found it important that the sys-

tem for compensating foreign torts be informal as

well as discretionary. A holding that Congress must

provide a formal, adversary compensation system if it

provides an administrative claims process at all might

force it to return to the practice of entertaining pri-

vate bills. Such a reversion would benefit neither

claimants nor the Congress.

16

CONCLUSION

The petition for a writ of certiorari should be de-

nied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

ROBERT S. GREENSPAN

WILLIAM G. COLE

Attorneys

JANUARY 1991

APPENDIX

[Seal]

United States Department of State

Washington, D.C. 20520

October 2, 1987

MEMORANDUM

TO: L/CID—Mr. Bettauer

FROM: L/CID—H. Rowan Gaither

SUBJECT: FTCA Claim of Linda Wheeler

Tarpeh-Doe

I. STATEMENT OF FACTS

On December 29, 1980, Linda Wheeler entered on

duty with the Agency for International Development

(AID). On that date she also began an orientation

session, a portion of which was dedicated to maternity

rights for those posted abroad. Miss Wheeler com-

pleted the course and is presumed to have attended

the portion on maternity rights.

Miss Wheeler was assigned to Monrovia, Liberia,

in May of 1981. Shortly after she arrived she met

Nyenpan Tarpeh-Doe, a former Liberian police of-

ficer. They were married in December 1981. On May

18, 1982, a baby, Nyenpan Tarpeh-Doe II was born.

The delivery was performed by a Liberian physician,

C. Archibald Johnson, M.D., who specialized in Ob-

stetrics and General Practice. Mrs. Tarpeh-Doe did

not consult the health unit of the U.S. Embassy in

Monrovia in connection with her pregnancy. Mrs.

Tarpeh-Doe, however, had been advised on a personal

(la)

2a

basis by the Embassy laboratery technician and other

friends to have delivery of the baby outside of Li-

beria, but she decided to have the delivery in country.

After the baby’s birth, probably during the second

week, Mrs. Tarpeh-Doe developed severe bilateral mas-

titis (an infection in both her breasts) and tempor-

arily stopped breast feeding the baby; in addition, she

had an infected episiotomy (the incision made in her

vulva to facilitate childbirth). She was given am-

picillin by local health care providers for these infec-

tions. She was also receiving treatment for malaria.

Cultures later taken from Mrs. Tarpeh-Doe’s milk

at the Embassy health clinic (on June 7) grew gram-

positive staphylococcus bacteria.

The records show that on June 2, the baby devel-

oped a rash on his perineum (the pelvic region). On

the evening of June 3, a U.S. Government doctor, Dr.

Feir, and nurse, Billie Clement, R.N., visited Mrs.

Tarpeh-Doe at her residence to examine her for her

post-natal infections. Mr. Tarpeh-Doe, baby Nyen-

pan, and several other adults and children were also

present. The residence was described as clean and

neat. Mrs. Tarpeh-Doe’s temperature was 104 de-

grees. Neither Mrs. Tarpeh-Doe nor Mr. Tarpeh-Doe

mentioned the baby’s condition, nor did they request

that he be examined. Mr. Tarpeh-Doe was observed

attempting to give the baby water. Mrs. Tarpeh-Doe

was told to go to the Embassy clinic the next day.

Sometime that evening the baby began to show ad-

ditional signs of illness. He stopped eating, and slept

through the night. In the morning Mrs. Tarpeh-Doe

went to the Embassy clinic for the requested follow-

up examination, which was performed by Dr. Theo-

dore Lefton, M.D., the physician in charge of the

unit. She did not take the baby with her. That day

3a

the baby stopped crying, developed a fever, and slept

continuously. The parents took him to two local clin-

ics that afternoon and evening, where he was given

an electrolyte solution and oral ampicillin. That night

he continued to be lethargic and have spiking fevers.

He did not wet his diaper all night. He had not

passed stool in six days. At 6.00 AM on June 5, a

Saturday, the parents noticed a stiffening of the child,

later diagnosed as a seizure. They decided to take

the baby to Dr. Johnson that morning, and ran into

the Embassy nurse, Billie Clement on her way home

from the Embassy clinic at 10:29 AM. They were

very upset and asked if she could help them, that they

didn’t know what was wrong with their baby. Nurse

Clement could see that the baby was very ill, and she

advised the parents to go to the Embassy clinic. They

agreed, and she accompanied them there. Nurse Clem-

ent then called Dr. Lefton from the clinic.

Dr. Lefton arrived at the health unit at 10:30 AM.

This was the first time he had seen the child. He saw

immediately that the baby was gravely ill, and deter-

mined that the child required more treatment than the

clinic could provide. Accordingly, he sent the medical

technologist, Mary Awantang, out to locate Dr. David

Van Reken, an American missionary physician in

charge of the pediatric ward at John F. Kennedy hos-

pital in Monrovia, and to bring him back to examine

the baby. Because telephones in the city were not

working, however, Dr. Lefton could not be sure until

Ms. Awantang returned whether Dr. Van Reken

would be available.

Dr. Lefton examined the baby, noted pustular

lesions and blisters over the entire buttocks, scrotum

and penis, and extending down the legs and up to the

umbilicus, noted a rectal temperature of 101.8 de-

4a

grees, and made a diagnosis of sepsis and probably

meningitis. Dr. Lefton made a qualified statement

to the parents, noted in the medical record, that if

he could not contact Dr. Van Reken to treat the baby

he would have the baby airlifted to a hospital in the

United States by medevac that evening. He admin-

istered procaine penicillin 150,000 units I.M. and 8

milligrams of Gentamicin I.M. The baby subse-

quently had a seizure, and Dr. Lefton administered

15 mg. phenobarbitol I.M. at 10:50 AM.

Dr. Van Reken arrived at 11:30 AM. The baby’s

rectal temperature was 102.2 degrees and he had had

several seizures since being brought to the Embassy

clinic. Dr. Van Reken administered 3 mg. valium

I.M. to control the seizures. Dr. Lefton, Dr. Van

Reken, and Nurse Clement then discussed the con-

tinued feasibility of a medevac and agreed that the

child was now too critical to survive a medevac. A

spinal tap was done with the assistance of Ms.

Awantang, and a heel prick was done to obtain a

blood test sample. The spinal tap produced a clear

spinal fluid, and a gram stain showed rare gram-

positive cocci. Cultures, however, showed no growth

at 24, 36, or 48 hours. A gram stain of a skin pus-

tule was obtained, and small gram-positive cocci

were found. A culture was also taken and it pro-

duced a heavy zrowth of gram-positive cocci, subse-

quently shown to be staphylococcus aureas. These

bacteria were shown to be resistant to penicillin and

ampicillin, and sensitive to methicillin, erythroycin,

and chloramphenocol. They were the same bacteria

grown earlier from cultures of the mother’s breast

milk. The baby pased a stool, and cultures, including

a salmonella-shigella agar culture, were done. These

cultures showed growths of staphylococcus aureas

identical to those cultured from the skin pustules and

5a

from the mother’s breast milk. No salmonella bac-

teria were grown. Malaria tests from the blood sam-

ple were negative.

Dr. Van Reken then recommended that the baby

be admitted to John F. Kennedy Medical Center in

Monrovia where he could be under his care. Dr. Van

Reken worked at this hospital and was of the view

that if the child were there he could more closely ob-

serve him. The alternative, the ELWA Hospital,

was across town. The parents objected because of

the hospital’s reputation for uncleanliness, and re-

quested that the baby be evacuated by airlift to the

U.S. Dr. Van Reken and Dr. Lefton refused to give

permission to evacuate the baby, however, based on

their determination that the baby could not be safely

airlifted until his condition stabilized. Apparently,

the basis of the doctors’ decision was either not

clearly communicated or not clearly understood by

Mrs. Tarpeh-Doe.

Dr. Lefton agreed that the baby should go to JFK

hospital and be under Dr. Van Reken’s care, and the

baby was taken by ambulance to the JFK hospital

despite the parents’ protests, where a course of treat-

ment including I.V. penicillin, chloramphenacol, and

phenobarbitol was begun. The baby continued to re-

cord rectal temperatures to 102-103 degrees, and had

seizures lasting 20-30 seconds every hour through-

out the night.

The conditions of the hospital were deplorable by

U.S. standards. That night Mrs. Tarpeh-Doe, who

was herself still ill, saw cockroaches in the baby’s

isolette, some even crawling over the baby’s skin

(which had open lesions), and saw rats present in

the room. The parents insisted that the baby be

moved the next morning. A room in the ELWA hos-

pital, Monrovia, was found, and he was taken there

6a

by ambulance. Dr. Van Reken continued to manage

the baby, along with the help of Dr. Lefton and the

physicians at ELWA. The conditions at ELWA

were notably more sanitary than at JFK.

The previous day, Saturday, a friend of Mrs.

Tarpeh-Doe had contacted her mother in Colorado,

who subsequently notified the Department in Wash-

ington that she had made arrangements for the

child to be received at the University of Colorado

Hospital when it would be evacuated.

The baby’s seizures ceased on June 6, the first day

in ELWA hospital, and he began to sleep. On June

8, the baby became afebrile, and on occasion became

hypothermic, whereupon his temperature was stabil-

ized in a warm isolette with blankets. On June 9 his

temperature rose again several times to 101.4 de-

grees. A spinal tap was performed, which produced

clear spinal fluid, and blood was drawn. Gram stains

and acid-fast stains of both blood and fluid showed

no bacteria. All the cultures done on June 5 were

repeated, and showed no growth of bacteria. Sam-

ples were also sent by diplomatic pouch to Washing-

ton for a counter-immuno-electrophoresis test, but an

error was made in the instructions by the Depart-

ment to the laboratory and this test was never done.

Results of the test actually done, an immuno-

electrophoresis test, were never sent to the Embassy

in Liberia for use by Dr. Van Reken.

From June 10 the baby’s fever subsided, and he

remained afebrile through June 15. The phenobar-

bitol was also discontinued, and during the period

from June 10 through June 15 he became progres-

sively more awake and alert, each day doing some-

thing he could not do the day before: spontaneous

arm movements, swallowing saliva, blinking eyes to

noises, opening eyes when stimulated, opening eyes

7a

spontaneously, yawning, stretching, sucking and cry-

ing. Periodically the baby’s scalp would accumulate

I.V. fluid, and on June 13 antibiotics were begun by

N.G. tube (through the nose). Feeding had been by

N.G. tube since June 10. On June 15, the 11th day

hospitalized, the baby began sucking electrolyte solu-

tion from a bottle. But that night his temperature

went up to 103 degrees and he had a seizure, for

which phenobarbitol was recommended. The baby’s

head circumference did not increase. On June 16,

the baby’s highest rectal temperature was 102 de-

grees and the doctors determined that because of the

baby’s overall stable condition it would be safe to

medevac him the next evening.

The parents had several times over the previous

twelve days demanded evacuation to the United

States, but Dr. Van Reken, together with Dr. Lefton

and the nursing staff determined it was not safe to

transport the baby until his condition was stable.

The baby was flown with his parents and Nurse

Clement to the University of Colorado Hospital. The

flight was very long and difficult, and the entire trip

lasted more than 22 hours. On board, Nurse Clement

had care of the baby, including feeding and admin-

istration of antibiotics and other drugs. At the be-

ginning of the flight the baby was afebrile, and she

gave it formula by bottle. At some point his tem-

perature rose to 101.4, but there was no seizure.

Tylenol was given to reduce the temperature. The

baby became progressively weaker, the sucking tir-

ing him out. Nurse Clement then switched to feed-

ing the baby by N.G. tube. His temperature rose

again, and was reduced by Tylenol. The baby be-

came progressively more lethargic and had _ periods

of apnea (cessation of breathing). It was necessary

to give mouth-to-mouth breathing.

8a

The baby was admitted to the University of Colo-

rado Hospital with a temperature of 37.6 degrees

Celsius (99.7 degrees Fahrenheit). A spinal tap and

blood sample were taken, and tests and cultures

done. One blood culture grew salmonella type B bac-

teria, resistant to ampicillin, chloramphenicol, bac-

trim and keflex. No other bacteria were grown. The

baby was given moxalactam and gentamicin, and by

the second day was afebrile. However, he had sev-

eral episodes of wide swings in temperature from

hypo- to hyper-thermic. These were controlled by

blankets and baths.

The baby was discharged on July 3, 1982, into the

care of his parents. The University of Colorado Hos-

pital discharge statement listed the hospital’s diag-

nosis of the baby’s condition upon admission as fol-

lows:

1) Salmonella sepsis

2) Status post gram-positive cocci meningitis

3) Severe neurological deficit secondary to +2

4) Monilial thrush infection

The discharge summary also stated that “[b]oth

EEG and CT [exams] were consistent with a severe

neurologic deficit which was a sequella from the

prior meningitis.”’

The baby is blind and has severe brain damage.

The baby has little hope of substantial development

and will probably be hospitalized for the remainder

of his life. His future is grim. and his life span is

shortened. At present the child has been adopted by

his grandmother, Mrs. Tarpeh-Doe’s mother, and is

a full time patient at the Wheat Ridge Regional

Center, a Colorado State facility, at state expense.

9a

II. LIABILITY

A. Negligence

Claimant alleges that her child was entitled to the

“best possible medical care” from Dr. Lefton at the

Embassy health clinic in Monrovia, and states that

an internal Department regulation establishes this

level of care. Claimant alleges that certain acts and

omissions of Doctors Lefton and Van Reken in

Liberia and of Department employees in the United

States fell below this standard of care and constitute

negligence. Claimant alleges that it was negligent:

(1) for Dr. Lefton to give the child antibiotics before

obtaining cultures of the child’s blood and spinal

fluid; (2) for Dr. Lefton to fail to evacuate the child

immediately upon diagnosing sepsis and meningitis

but instead to permit the child to be admitted to a

deplorably unsanitary hospital; (3) for Department

of State employees in the United States to fail to en-

sure that the evacuation was immediately carried out

by Dr. Lefton; (4) for Department of State employ-

ees in the United States to fail to perform the correct

laboratory tests on fluid samples sent from Liberia

for analysis, and to fail promptly to inform Dr.

Lefton of the results of the tests actually carried out;

(5) for Dr. Lefton and Dr. Van Reken to fail to

diagnose and treat the alleged true cause of the

child’s sepsis and meningitis—salmonella bacteria;

(6) for Dr. Lefton and Dr. Van Reken to fail to use

the chocolate. agar culture medium to detect bacteria

present; (7) for the Department to fail properly to

hire, train and supervise Dr. Lefton; and (8) for the

Department and Dr. Lefton and Dr. Van Reken to

fail to consult a neonatologist contacted by the child’s

grandmother in Colorado.

etiam

10a

1. Applicable standard of care.

The Foreign Affairs Manual of the Department of

State states as follows:

The general medical policy of the Department of

State is to assist all American employees and

their dependents in obtaining the best possible

medical care. This includes personnel of the De-

partment and all agencies participating in the

medical program by agreement. This policy ex-

tends to the most remote parts of the world, so

that no employee need hesitate to accept an as-

signment to a post where health conditions

are hazardous, medical service poor, or transpor-

tation facilities limited. Principal and adminis-

trative officers and their designees, and principal

representatives of participating agencies are cau-

tioned to be alert to any medical and health prob-

lems of employees and their dependents and to

take appropriate action promptly. 3 Foreign Af-

fairs Manual 681.2

Claimant asserts that this directive obligates the De-

partment to provide literally the ‘best possible” medi-

cal care to its employees. Federal safety and proce-

dure manuals, however, do not create an actionable

duty on which tort liability may be based. Zabala

Clemente v. United States, 567 F.2d 1140, 1144 (1st

Cir. 1977), cert. denied, 435 U.S. 1006 (1978). They

are only internal operational guidelines. FTCA lia-

bility will attach only if the law of the place in which

the act occurred would impose liability for the same

conduct required in the manual. Le Seur v. United

States, 617 F.2d 1197, 1200 (5th Cir. 1980). Fur-

thermore, despite its rather open-ended language, the

directive cited by claimant does not establish that the

ae

lla

Department is committed to providing medical facili-

ties at every diplomatic post equal to the best medical

facilities in the world. The Department’s goal is to

provide the best care reasonably possible under the

circumstances.

Claimant alleges negligence that occurred in the

health clinic of the American Embassy in Monrovia,

in two private hospitals in Monrovia, and in State

Department offices in Washington, D.C. Thus, under

22 U.S.C. § 6669(f), the tort law applicable to this

claim, depending on the particular allegation of negli-

gence, is the law of the District of Columbia and

Liberia. This otfice researched D.C. law; local counsel

was retained in Monrovia to advise us on Liberian

law.

(a) District of Columbia

Under the law of the District of Columbia, to sus-

tain an action in negligence, the burden is on the

plaintiff to show that there was (1) a duty of the

defendant to the plaintiff that was breached, Abbey

v. Jackson, 483 A.2d 330 (D.C. 1984), and (2) that

the breach caused the injury suffered by the defend-

ant. Vintch v. Furr, 482 A.2d 811 (D.C. 1984).

With regard to breach of duty in an action for medi-

cal malpractice, plaintiff must show that defendant

did not exercise “that degree of care and skill ordi-

narily exercised by the profession in his own or simi-

lar localities.” Quick v. Thurston, 290 F.2d 360, 362

(D.C. Cir. 1961); Rodgers v. Lawson, 170 F.2d 157,

158 (D.C. Cir. 1948). With regard to causation, the

defendant’s negligent conduct is a legal cause of harm

to plaintiff if his conduct is a substantial factor in

bringing about the harm. Graham vy. Roberts, 441

F.2d 995 (D.C. Cir. 1970) (citing Restatement

(Second) of Torts § 431 (1965) ).

12a

(b) Liberia

The Liberian Private Wrongs Act of 1976 does not

contain a specific cause of action for medical mal-

practice, nor is there any previous case law on the

subject matter decided by the Supreme Court of

Liberia. The Civil Procedure Law of 1972, however,

identifies medical malpractice as one type of personal

injury suit. Further, the Constitution of Liberia and

several Supreme Court cases state that every person

who is injured shall have a remedy for injuries suf-

fered. Consequently it appears that Liberian law

does allow a cause of action for medical malpractice,

primarily based on common law principles of mal-

feasance.

The standard of care for medical services in Liberia

requires that degree of care and skill which is ordi-

narily employed by the medical profession in Liberia

under similar conditions and like surrounding circum-

stances. To be free of negligence, a doctor must have

exercised the same reasonable and ordinary care,

skill, and diligence as a physician in good standing

in Liberia would have exercised in the same general

line of practice and with the same facilities and

equipment in a like case. The particular circum-

stances considered include the existing state of medi-

cal knowledge in Liberia and the established mode of

practice, as well as limitations attending to the prac-

tice of medicine or the particular branch of medicine.

This standard is breached when the physician de-

viates from the standard. Although a physician is

normally answerable where he is guilty of negligence

in the actual treatment of the patient, liability may

also be based on fraudulent concealment, such as the

withholding of information, practicing without a li-

cense, or treating the patient without his consent or

13a

beyond the scope of his consent. Damages are then

assessed for injuries that result from the breach

which are a natural and probable consequence of the

wrongful act or omission. Damages may be for bodily

suffering, for mental suffering accompanying bodily

injury, for permanent impairment of the ability to

earn money, disfigurement and its attendant discom-

fort, and expenses incurred in treating the wrong.

2. Administration of antibiotics before ob-

taining culture.

Claimant alleges that it was negligent for Dr.

Lefton to give the baby Tarpeh-Doe antibiotics before

taking samples of the child’s body fluids for cultur-

ing. Administering the antibiotics masked the infec-

tion without eliminating it, alleges claimant, and

caused the cultures when finally taken to be falsely

negative for salmonella bacteria—the “true” cause of

the child’s illness.

Under the existing situation and considering the

condition of the child, it was not negligent for Dr.

Lefton to administer antibiotics to the child before

taking culture samples. Under ordinary hospital con-

ditions in the United States blood and spinal fluid

samples are generally drawn for culturing before

antibiotics are given, but Dr. Lefton was not working

under ordinary conditions. Except for the clinic

nurse, Dr. Lefton was alone. The child when finally

brought in to the Embassy health unit had been ill

for almost three days, had large pustular lesions on

its buttocks and groin, extending down its legs and

up to its umbilicus, and had had at least one seizure

earlier that morning. Dr. Lefton properly diagnosed

the child as suffering from severe sepsis and prob-

ably meningitis, and sent the clinic medical techni-

l4a

cian, Mary Awantang, to locate Dr. Van Reken, a

local American pediatrician with considerable experi-

ence with meningitis. Because in cases of meningitis

the time involved in treating the cause of the infec-

tion and halting it before it affects the brain is cru-

cial in preventing permanent brain damage, it would

have been inappropriate for Dr. Lefton to wait for

Dr. Van Reken to arrive before beginning antibiotic

treatment. There was no way to contact Dr. Van

Reken by telephone, and Dr. Lefton could not be cer-

tain how long it would take Ms. Awantang to locate

him, if at all. Lefton was also aware that the earliest

the child could be placed on an airplane fer medical

evacuation was in eight hours. In such a situation,

a doctor must make a clinical decision on the spot.

It was not a breach of that degree of care and skill

which is ordinarily employed by a physician in good

standing in Liberia under similar conditions to decide

to treat the cause of the illness threatening the child’s

neurological functions before taking culture samples.

Furthermore, Dr. Van Reken arrived, and withdrew

fluid samples for culture within an hour of Dr.

Lefton’s administration of antibiotics to the child. It

cannot be determined definitely that the one hour was

sufficient time for the antibiotics to mask a salmonella

infection in all his body fluids.

Finally, as will be elaborated below, salmonella

bacteria was not the cause of the child’s sepsis and

meningitis. The antibiotic treatment administered by

Dr. Lefton was effective against both staphylococcus

bacteria and the salmonella bacteria later cultured by

the Colorado hospital. We know, however, that it did

not mask the staphylococcus infection to the point

that "Dr. Van Reken was prevented from properly

diagnosing and treating it. Cultures for salmonella

were taken several times over the course of the child’s

15a

hospitalization in Liberia, and were negative. On the

basis of the negative results of these tests, the diag-

nosis of the University of Colorado hospital, and our

total investigation of the claim, we conclude that the

salmonella infection later diagnosed by the Colorado

hospital was a superinfection.

3. Failure of Dr. Lefton to evacuate child

immediately, and admission to a sub-

standard hospital.

Claimant alleges that Dr. Lefton was negligent in

failing immediately to medevac the gravely ill child

to a hospital in the United States. Claimant fails to

establish that Dr. Lefton acted below the standard of

eare and skill ordinarily employed by physicians in

good standing in Liberia under similar conditions and

like surrounding circumstances. Because he had lit-

tle experience in treating meningitis, Dr. Lefton

made a qualified decision to evacuate the child unless

Dr. Van Reken, a specialist in pediatric meningitis,

could be located. Dr. Lefton had a standing arrange-

ment with Pan Am for evacuations to be carried out

on little notice. However, Dr. Van Reken did arrive,

felt he could treat the child, and Dr. Lefton and Dr.

Van Reken together determined that the risk that the

gravely ill child would not survive evacution to the

United States outweighed the advantages of the medi-

cal care available in the U.S. The child had seized

once before Dr. Van Reken arrived, and once more

after he arrived, as well as at least once that morn-

ing before being sought to the clinic. Seizures are

evidence that the illness is affecting the brain. The

two physicians decided that the best course was to

treat the child in Liberia until its condition could be

stabilized, and then evacuate it to the United States.

l6a

Although evacuation to a closer American hospital in

West Germany was also available, the parents of the

child insisted that evacuation be made to the United

States. The decision on when to evacuate the child is

one properly made by the physician on the spot, and

was not a breach of the standard of care and skill

required of physicians in Liberia.

Claimant alleges that Dr. Lefton was negligent in

permitting Dr. Van Reken to admit the child to JFK

Hospital over the objections of the family. JFK was

known among a number of members of the Embassy

Community for its unsanitary conditions. Although

Dr. Van Reken acted as a contract physician, he was

not an employee of the Department, and the Depart-

ment is consequently not liable for his actions under

the FTCA. I find, however, that Dr. Lefton main-

tained substantial supervision and control over the

care given to the child and retained some responsibil-

ity for the child’s care. This is especially true with

regard to the decision to admit the child to JFK hos-

pital. I find that Dr. Lefton was equally responsible

with Dr. Van Reken for that decision.

Based on Liberian law, admitting the child to the

JFK Hospital did not constitute negligence. The de-

cision was made for valid medical reasons—the loca-

tion of Dr. Van Reken at the hospital—and it was one

of the two hospitals in the city. Admission of the

child did not fall below the standard of care and

skill ordinarily employed by physicians in good stand-

ing in Liberia since JFK was a facility to which Li-

berian doctors were regularly referring their patients.

17a

4. Failure of State Department employees

in Washington to ensure that evacuation

was carried out by Dr. Lefton

Claimant alleges that when State Department em-

ployees in Washington were notified that medical

evacuation was contemplated, and had taken steps to

make evacuation available, they should have followed

up with Dr. Lefton and ensured that evacuation was

actually made on June 4. This allegation has no

merit. A determination to evacuate a gravely ill, seiz-

ing neonate is one that must be made by the physicians

treating the child, not by the Department thousands

of miles away. Department officials have no legal duty

to make such a decision, The decision to evacuate the

child was properly in the hands of the attending

physicians, and was properly made when the child’s

condition had stabilized enough for them to be satis-

fied that the child could survive the long trip.

5. Failure of State Department employees

in Washington to perform laboratory

tests requested, and failure to inform

Dr. Lefton promptly of the results of the

tests actually performed.

Claimant alleges that serious errors were made in

Washington with respect to the administration of a

laboratory diagnostic test, and the reporting of the

results obtained to Dr. Lefton in Liberia, and infers

without stating that the proper administration of this

test would have diagnosed salmonella as the cause of

the child’s sepsis and meningitis. Our investigation

leads us to conclude that there is no merit to this

allegation. We understand that the test requested, a

counter-immuno electrophoresis (CIE) of the child’s

18a

spinal fluid, would not have detected the presence of

salmonella bacteria even if it had been carried out.

We also understand that the test erroneously carried

out in Washington, an immuno electrophoresis, also

would not detect the presence of salmonella bacteria

allegedly the cause of the child’s sepsis and menin-

gitis. Neither test would have affected the diagnosis

of the actual infection. Thus, even assuming that

mistakes such as those alleved were made, the mis-

takes did not prevent Dr. Lefton and Dr. Van Reken

from diagnosing and treating the cause of the child’s

sepsis and meningitis. Improper testing when treat-

ing a patient does not constitute negligence unless

the injuries arose from the wrongful treatment and

not from the original condition. Central Dispensary

& Emergency Hospital Inc. v. Harbaugh, 174 F.2d

507 (D.C. Cir. 1949).

6. Failure correctly to diagnose and treat

the salmonella bacteria that allegedly

caused baby Tarpeh-Doe’s infection and

consequent neurological damage.

Claimant alleges that baby Tarpeh-Doe did not re-

ceive adequate care in Liberia from Dr. Lefton and

Dr. Van Reken, and that proper diagnosis was not

made and proper care was not given until the baby

arrived at the University of Colorado Hospital. “By

preventing a correct diagnosis of the cause of the

baby’s meningitis and by failing to make available

prompt and proper care,” alleges claimant, “the De

partment of State’s health care providers effectively

terminated the baby’s chances of an injury-free re-

covery from the illness.” There was a “substantial

possibility of such a recovery,” alleges claimant.

19a

The Department is not liable under the FTCA for

actions of Dr. Van Reken, who was only treating the

child under contract. Although Dr. Lefton main-

tained a certain amount of supervision and control

over the child’s care, particularly with regard to the

decision to admit the child to JFK hospital, I will not

reach the issue of whether Dr. Lefton retained con-

trol over the entire course of the child’s treatment.

Even assuming that the Department is liable for all

of Dr. Van Reken’s actions—which it is not—claim-

ant has failed to demonstrate any of those actions

amounted to negligence.

Claimant does not dispute that Dr. Van Reken

diagnosed and properly treated baby Tarpeh-Doe for

a staphylococcus infection, and that the staph bac-

teria was found in cultures of the child’s spinal fluid,

blood and stools, as well as in cultures of the

mother’s breast milk. Claimant’s allegation is that

it was a salmonella bacteria infection and not a

staphylococcus bacteria infection that was the real

cause of the child’s sepsis and meningitis and conse-

quent neurological damage, and that Dr. Lefton and

Dr. Van Reken failed to diagnose and treat this sal-

monella infection. Claimant’s only evidence that it

was a salmonella infection that caused the sepsis and

meningitis is that the child was still ill when ad-

mitted to the Colorado University hospital two weeks

after treatment began in Liberia, and that the hos-

pital diagnosed a salmonella infection.

Claimant has failed to establish that Dr. Lefton

and Dr. Van Reken were unable to diagnose and suc-

cessfully treat the actual cause of the child’s sepsis

and meningitis. The first cultures taken by Dr. Van

Reken showed staphylococcus bacteria and identified

antibiotics effective avainst the bacteria which were

immediately given in adequate dosages. Further-

20a

more, gram stains made of the child’s spinal fluid

showed gram positive cocci, not salmonella bacteria

present. The staphylococcus bacteria found in the

cultures and gram stains were the same as those

causing the severe mastitis of the mother, and the

reasonable inference is that the infections were re-

lated. Cultures taken at various times throughout

the hospitalization of the child in Liberia would have

diagnosed salmonella if it had been present, but did

not. The diagnosis of the Colorado University hos-

pital was that the child’s severe neurological damage

was caused by “gram positive cocci meningitis,” and

that the salmonella infection was a separate infec-

tion. There is nothing in the course of the child’s

illness in Liberia to indicate otherwise. After the

single dose of gentamicin administered by Dr. Lefton

before Dr. Van Reken arrived to take over respons-

ibility for the treatment, no antibiotics were admin-

istered to treat the staph infection that would have

been effective against the salmonella bacteria cul-

tured in the Colorado University hospital. Thus, if

a salmonella infection had actually been present and

the child given the single dose of gentamicin, as

claimant alleges, it would have been found in the

spinal fluid, blood, or stool cultures taken at differ-

ent times during the subsequent course of the child’s

treatment in Liberia. About mid-point in the child’s

hospitalization, his condition began to improve

markedly, and cultures showed he was free of bac-

teria! infection. It was only the day before the deci-

sion to evacuate him to the United States, that the

child again became febrile and began seizing. This

history is consistent with the diagnosis of a super-

infection.

Based on my investigation of this case, I conclude

that the salmonella superinfection, the onset of

oe

Zia

which was late, which was never cultured or found

in the child’s spinal fluid, and which was quickly

diagnosed and treated, could have caused only minor

additional neurological damage to the infant, if at

all. The investigation has also led me to conclude

that most or all of the severe neurological damage

caused by the staphylococcus infection had already

occurred when the child was brought in to the Em-

bassy health clinic, and that the treatment received

was prompt and effective in eliminating the infec-

tion. While it is possible that some neurological

damage occurred while treatment to fight the infec-

tion was underway, I also note that Dr. Van Reken’s

treatment was effective as much as possible in re-

ducing the effects of the staphylococcus infection.

7. Failure to use a chocolate agar culture

medium.

Claimant also alleges that failure to have chocolate

agar as a culture medium had an adverse impact on

the diagnosis of the organisms causing the child’s

meningitis. This allegation has no merit. The use

of chocolate agar is to detect hemophylus influenza

bacteria and the nisseria group of organisms.

Neither is alleged to be involved in the child’s menin-

gitis.

8. Improper Hiring, Training, and Sup-

ervision of Dr. Lefton

Claimant alleges that she has “received second-

hand information that Dr. Lefton ... may not have

been properly hired, trained or supervised,” by the

Department. Claimant does not elaborate, however,

nor does she allege how this allegedly improper hir-

ing, training or supervision proximately caused the

22a

injuries to claimant’s child. Furthermore, the deci-

sion not to transfer a doctor to another location is a

discretionery function of the government on which

an FTCA claim cannot be based. 28 U.S.C. § 2680

(a); Beins v. United States, 695 F.2d 591 (D.C. Cir.

1982). With regard to improper hiring or training

by the government, insufficient evidence on this issue

prevents recovery by a plaintiff. District of Colum-

bia v. White, 442 A.2d 159 (D.C. 1982); see also

Miller vy. District of Columbia, 479 A.2d 329 (D.C.

1984).

9. Failure of the Department to Consult

a Neonatologist contacted by the child’s

grandmother in Colorado.

Claimant alleges that the Department and Dr.

Lefton were negligent in not consulting with a

neonatologist, Dr. Gerhart Schrater, contacted by the

child’s grandmother in: Colorado. This allegation is

without merit. The child was placed under the care

of an experienced doctor in Liberia. Under the cir-

cumstances, it would not have been generally accepted

practice in Liberia or the United States for a treating

physician to consult by telephone or cable with an-

other physician. Furthermore, claimant has not even

established that Dr. Schrater would have been willing

or able to add anything to the diagnosis and treat-

ment made in Liberia.

B. “Negligence” and Breach of Contract

Claimant alleges that when baby Tarpeh-Doe’s

mother became pregnant in 1981 in Liberia, that the

Department of State or AID had a legal obligation or

duty to inform her that she had an option to have her

baby in the United States. Claimant alleges that this

23a

option was never explained to Mrs. Tarpeh-Doe and

that this failure was both negligent and a breach of

contract. Claimant asserts that had Mrs. Tarpeh-Doe

been aware of her option she would have elected to

have her baby in the United States where he would

not have contracted meningitis as a result of exposure

to salmonella bacteria.

As a preliminary matter, claimant cannot make a

contract claim under the Federal Tort Claims Act.

Thus, only claimant’s allegation that it was negligent

to fail to inform her of her option to have the baby

in the United States is presented here. Furthermore,

it has already been determined above that salmonella

did not cause the meningitis and subsequent neuro-

logical injuries to the child, so claimant does not al-

lege negligence that proximately caused any injury.

However, even assuming that claimant also alleges

that the staphylococcus infection would not have oc-

curred in the United States, and that failure to in-

form her of a contractual benefit gives rise to a cause

of action in negligence under Liberian law, claimant’s

allegations of negligence fail because Mrs. Tarpeh-

Doe was in fact informed that under her contract

with the Agency for International Development she

had the option of returning to the United States for

the birth of her child, or of going to a designated

military hospital in West Germany. This informa-

tion was given during the orientation sessions she

attended for new AID employees in Washington be-

fore leaving for her post in Liberia. Ms. Awantang,

the Embassy medical technician, also informally

counseled Mrs. Tarpeh-Doe while she was pregnant

to have her baby outside of Liberia. It is not for the

Department to speculate why Mrs. Tarpeh-Doe chose

to have her baby in Liberia, but the decision was cer-

tainly made with the knowledge that other options

24a

were available. Significantly, Mrs. Tarpeh-Doe did

not come to the Embassy health clinic for any pre-

natal care, and never informed Dr. Lefton that she

was pregnant. The baby’s father was Liberian, and

Mrs. Tarpeh-Doe elected to have all her obstetrical

eare, inelvding delivery, done by a local physician.

Even after the child became ill Mrs. Tarpeh-Doe did

not have him examined by the Embassy health clinic

personnel. It was only by chance that the parents

met Nurse Clement on the street as they searched for

their local physician, and that therefore she recom-

mended they bring the child to the Embassy clinic.

Under all the circumstances, I do not find credible

Mrs. Tarpeh-Doe’s allegations that she was never in-

formed of her options and was unaware of them.

C. Breach of Warranty

Claimant alleges that Dr. Van Reken made an ex-

press warranty to the claimant and her husband that

he could cure the baby, and that based on this war-

ranty the family agreed to permit Dr. Van Reken to

treat the baby and Dr. Lefton reversed his decision

to evacuate the child by airplane to the United States

for treatment. Claimant can not bring a breach of

warranty claim, which is fundamentally one based on

contract, under the Federal Torts Claims Act. Never-

theless, even assuming that the claim could be brought

under the Federal Tort Claims Act against the De-

partment, the Department does not find claimant’s

allegations that Dr. Van Peken gave such a “war-

ranty” to be credible. Dr. Van Reken denies giving

such a warranty, and the written medical record sup-

ports-Dr. Lefton’s recollection that he never gave an

unqualified promise to medevac the child that was

later reversed based on Dr. Van Reken’s representa-

25a

rained es gots ined

tions. Dr. Van Reken was the best qualified and most

experienced physician in Liberia for treating neonatal

meningitis, and given the critical condition of the

child when he was finally brought in to the Embassy

clinic, Dr. Van Reken’s care was the obvious choice.

Sk a he LNT eaten Aa Mle Mt nds VE

III. CONCLUSION

Based on the total investigation of this claim, I am

led to conclude that there was one instance of negli-

gence by Department employees in this case: the

failure to perform the correct laboratory test in

Washington. I also conclude that the negligence did

not cause any damages. In an effort to avoid litiga-

tion expenses, a settlement of this claim for $50,000

in the form of a structured settlement was offered

and rejected by the claimant. There is no basis to

increase that offer.

I recommend that this claim now be denied.

WoW. S. GOVERNMENT PRINTING OFFICE; 1991 282061 20299