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Media Alerts - Ortiz v. United States - Tenth Circuit
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May 25, 2015
  Ortiz v. United States - Tenth Circuit
Headline: Tenth Circuit Holds Government Not Liable for Negligently Causing Significant Injuries to a Service Woman's Child During Birth

Area of Law: Tort, Government Immunity

Issue Presented: Is the government immune from damages under the Federal Tort Claims Act ("FTCA") when serious injuries were incurred by an active-duty service woman's baby during child birth at a military operated hospital?

Brief Summary:

A pregnant Ortiz was admitted to a military run hospital in March 2009. As a result of negligent conduct by hospital staff her baby sustained significant brain injuries. The majority concluded that the Feres doctrine barred Ortiz's claim for damages under the FTCA because the injuries were incident to service. The injuries to the child were barred from recovery because they were derivative of Ortiz's injuries. The majority expressed displeasure with applying this doctrine, but indicated it is still the governing precedent when it comes to injuries incurred by service members because of the negligent actions of other military personnel.

Extended Summary:

In March 2009, Captain Heather Ortiz was admitted to Evans Army Community Hospital for a scheduled Caesarean section. Captain Ortiz was administered Zantac by a hospital nurse to prevent aspiration of gastric acid during labor. It was evident in Captain Ortiz's hospital records that she was allergic to Zantac. As a result of the dose she suffered an allergic reaction which was further treated with Benadryl. The Benadryl caused a drop in Captain Ortiz's blood pressure resulting in hypotension and serious brain trauma in the child including cerebral palsy.

The father of the child, Jorge Ortiz, brought this lawsuit seeking damages for medical care as a result of the child's injuries. Ortiz argued that the government was not immune from liability because the FTCA is applicable. The FTCA is a legislative exception that waives government immunity in certain circumstances and Ortiz argued this instance was one of those circumstances. The United States argued that the Feres doctrine applied and the government was, in fact, immune from suit.

The majority began by highlighting the fact that this was a threshold issue concerning subject matter jurisdiction. If the United States possessed governmental immunity, then federal courts lacked jurisdiction to hear the case. The FTCA is a broad exception to government immunity, but is superseded by several exceptions. One of these exceptions the United States Supreme Court articulated in Feres v. United States. 340 U.S. 135 (1950).

In Feres, the Supreme Court tackled the issue as to whether or not the families of deceased service personnel could recover damages for the negligent actions of other military employees. The Supreme Court found that the FTCA did not apply as injuries that arise out of or are in the course of activity incident to service are exempted from the statute. This is what is known as the Feres doctrine. From this doctrine courts have developed the incident-to-service test which bars recovery by service members for injuries that were "incident to service." The purpose of this test is to protect military discipline.

The majority expressed concern that the Feres doctrine lacks clarity. The doctrine has received criticism from other circuits as well as in passionate dissents in the Supreme Court.

Despite these concerns, the majority indicated that it was required to enforce the Feres doctrine because it is still the governing precedent from the highest court in the country. They noted that this issue was more complex than a typical Feres inquiry because the injury occurred to an unborn baby who is a third party civilian.

The majority found the framework for this type of analysis in Stencel Aero Engineering Corp. v. United States. 431 U.S. 666 (1977). In that case a service member sued the manufacturer of an ejection seat for damages. The manufacturer cross-claimed against the United States for indemnity. The Supreme Court held that this third party indemnity action was the same as Feres and thus barred. The majority indicated that it has used this rule and applied it to cases concerning derivative claims by family members for injuries sustained in war and claims by a wife for her husband's negligent vasectomy.

Courts have developed the "genesis test" from the holding in Stencel Aero. The test concerns third party civilian plaintiffs and asks whether their injury has it origin in an incident-to-service injury to a service member. The injury to the service member needs to be the "but for" cause of the injury to the third party civilian. If the injury meets this criterion, then the claim is barred.

The Court utilized both Feres and Stencel Aero to develop a two-step analysis for this case. The majority indicated it first would need to apply Feres to determine if the injury to Captain Ortiz was an incident-to-service injury. Next it would need to apply Stencel Aero to determine whether the injury to the baby was derivative in nature. The majority considered this an injury focused approach.

The majority concluded that the injuries to the baby could not overcome this analytical framework. The majority found that the baby's injuries were derivative of the injury to the mother. Ortiz did not indicate in his complaint if the mother was uninjured. Further, Ortiz also indicated that the mother had an allergic reaction, blood pressure problems, and hypotension. These facts would indicate that the mother was, in fact, injured during the medical episode.

The majority could not see how the injuries sustained by the mother were separate from the injuries sustained by the child. The child's brain injury was caused by a lack of oxygen which was caused by the negligent administration of Benadryl to the mother. The majority found further support for this in the testimony of Ortiz's own expert who conceded this very fact.

The Court concluded that Captain Ortiz was injured incident to service. The injuries suffered by the child were derivative of this injury. Therefore, Ortiz's claim was barred.

Judge Ebel issued a concurring opinion disagreeing with the approach the majority took in analyzing claims by third party civilians for in utero injuries sustained because of negligent actions by military personnel. The concurrence would utilize Feres in a different fashion and take a conduct approach rather than an injury approach. This approach would simply ask if the in utero injuries sustained by the child were a direct result of the negligent conduct taken by service personnel towards the mother. If so, then Feres bars the recovery.

To read the full opinion, please visit:

Panel: Phillips, Ebel, Tymkovich

Date of Issued Opinion: May 15, 2015

Docket Number: No. 13-1500

Decided: Affirmed the decision of the trial court granting summary judgment in favor of the United States.

Case Alert Author: Leland Churan


Laurie M. Higginbotham, Whitehurst, Harkness, Brees, Cheng, Alsaffar &
Higgonbotham, P.L.L.C., Austin, Texas (James E. Puga, Sean B. Leventhal, and
Benjamin I. Sachs, Leventhal, Brown & Puga, P.C., Denver, Colorado, and Joseph
F. Bennett, Cross & Bennett, L.L.C., Colorado Springs, Colorado, with her on the
briefs) for Appellant.

Lowell V. Sturgill, Jr., Attorney (Stuart F. Delery, Assistant Attorney General,
John F. Walsh, United States Attorney, and Marleigh D. Dover, Attorney, with
him on the brief), Civil Division, Appellate Staff, Department of Justice,
Washington, D.C., for Appellee.

Author of Opinion: Hon. Timothy M. Tymkovich

Case Alert Circuit Supervisor: Barbara Bergman

Edited: 05/26/2015 at 08:09 PM by Dawinder Sidhu

    Posted By: Dawinder Sidhu @ 05/25/2015 12:52 AM     10th Circuit  

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