I stumbled across a just brutal 9th Circuit opinion in S.H. v. United States earlier this year. This case reversed a $10 million verdict in a birth injury case, finding that the foreign country exception bars plaintiffs’ Federal Tort Claims Act (“FTCA”) malpractice claims against the military doctors who treated the mother and child.
A U.S. Air Force Master Sergeant is transferred to Spain. I don’t know if he wanted to go to Spain, but it does not really matter, right? He was ordered to go to Spain. Before leaving for Spain, they go to Andrews Air Force Base so the military can verify that the family is medically suitable to travel overseas. At Andrews, he and his wife learn they are pregnant with their third child. She had experienced two prior preterm deliveries and a miscarriage in the past.
They went back to their home in California and his wife was examined to determine if she was fit to travel considering her history of premature deliveries and a previous miscarriage. The doctor cleared her for overseas travel. But she experienced preterm labor and delivered her daughter at 31-weeks. She has cerebral palsy.
Most birth injury cases are about choices made just before and during delivery. The case’s focus was the negligent approval of the mother’s travel to Spain.
This sounds like a tough case to on causation, linking the trip and living in Spain to the child’s cerebral palsy. But I did not sit in that jury box and neither did the 9th Circuit. The folks that sat in that box awarded the parents and the child over $10 million.
The 9th Circuit found that the Supreme Court’s holding in Sosa v. Alvarez-Machain is controlling in the case. Sosa was an extraordinary case that I just read this morning involving the kidnapping and murder of a DEA agent. Alvarez-Machain was a Mexican physician who was a suspect in the crime. DEA agents grabbed the defendant at his office in Guadalajara, Mexico, and took him to the United States to face charges in the death. The doctor prevailed at trial. After his acquittal, he filed a civil lawsuit under the Federal Tort Claim Act for the abduction. The U.S. Supreme Court ruled that the foreign country exception to the FTCA “bars all claims based on any injury suffered in a foreign country.”
Understanding that this law was controlling, the plaintiff’s malpractice lawyers took a different path, arguing that under California law, the cerebral palsy occurred in California because the parents did not know their child had cerebral palsy until they came to South Carolina after her birth. But, even I have to admit, that reed is slender. Besides, the issue of how to interpret the FTCA is the exclusive domain of federal law, as they should be.
While admitted sympathetic to the victim — who could you not be? – the 9th Circuit applied that same logic to this birth injury case. The court coldly pointed out that in determining “where a claim arises under the foreign country exception . . . we are not concerned with the possibility of a blameless plaintiff losing a claim through delay. . . . We ask only where ‘the last act necessary to establish liability occurred.'” Because the girl’s brain injury was clearly suffered in Spain, the reasoning in Sosa must apply to this case.
How many bipartisan issues do we still have in the country? We can’t agree on anything. One exception is our veterans. Everyone wants what is best for our military personnel who are sacrificing for all of us. Is anyone in Congress going to vote against a military exemption to the torts on foreign soil rule? The answer is no. But the problem is getting it to a vote in the first place.