Reluctant 10th Circuit Finds for United States

     DENVER (CN) – Three 10th Circuit judges reluctantly concluded that the United States is not liable for brain injuries a baby suffered from an alleged string of negligence at an Army hospital.
     The mother, active-duty Air Force Capt. Heather Ortiz, and her husband claimed the Evans Army Community Hospital provided inadequate care to their baby in utero and during a Caesarean section.
     Judge Timothy Tymkovich wrote for the panel that its ruling was controlled by the U.S. Supreme Court decision in Feres v. United States (1950), which found that military service members are barred from suing the government under the Federal Tort Claims Act for injuries resulting from their military service.
     “To be sure, the facts here exemplify the overbreadth (and unfairness) of the doctrine, but Feres is not ours to overrule. Applying controlling law, the government is not liable under the FTCA for the claims of negligence in this case.” (Parentheses in ruling.)
     The lawsuit, brought by Capt. Ortiz’s husband, Jorge Ortiz, claims the hospital on Fort Carson Army base in Colorado Springs failed Capt. Ortiz and her baby in a number of ways.
     Tymkovich wrote for the court that during Ortiz’s stay in hospital, she was given Zantac, to which her medical records stated she was allergic.
     To counteract her allergic reaction, she was given Benadryl, which created “an immediate drop” in her blood pressure, leading to hypotension.
     The hypotension deprived infant I.O. of oxygen in utero, which caused the brain trauma that eventually manifested in cerebral palsy.
     Ortiz also claims that during labor the hospital did not monitor her infant’s fetal monitoring strips to track the baby’s heart rate, which could have contributed to I.O.’s condition.
     Though only Jorge Ortiz and I.O. were listed as plaintiffs, Tymkovich found that because the infant was being carried by Capt. Ortiz, an active service member, the United States is not liable under the Federal Tort Claims Act and the Feres doctrine.
     “The Supreme Court and lower courts alike have consistently wrestled with the mechanics of its application to particular facts,” Tymkovich wrote in the 53-page ruling, issued Friday.
     “Plaintiff has difficulty escaping the fact that he alleged in the complaint that Captain Ortiz suffered from hypotension and related blood-pressure problems as a result of the government employees’ alleged negligence. Even in the light most favorable to plaintiff, those allegations outline an injury to Captain Ortiz, which ultimately resulted in the harm to I.O.”
     Judge David Ebel concurred.
     “When determining whether a particular defendant is entitled to absolute immunity or qualified immunity, this court’s inquiry focuses on the nature of the defendant’s allegedly wrongful conduct, rather than on the often unknowable consequences of this conduct,” Ebel wrote in concurrence. He noted that in none of the previous cases involving the issue had immunity been established by “the nature of the resulting injury or the identity of the injured person.”
     The judges made it clear that they ruled with heavy hearts.
     “Although harsh in its result, this conduct-focused approach has two noteworthy advantages,” Judge Ebel wrote. “First, by tethering the military’s Feres-immunity to its service-related conduct toward pregnant servicemembers, the conduct-focused approach is consistent with the fundamental purpose of Feres, to protect the ‘peculiar and special’ relationship between the military and its servicemembers. Second, by zeroing in on the nature of the military’s conduct, rather than the consequences of such conduct, a conduct-focused approach comports with this court’s front-loaded immunity inquiry in other contexts.
     “As long as Feres remains the law, we are tasked with upholding it.”

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