Federal Tort Claims Act

Yesterday, the Supreme Court unanimously held in Millbrook v. United States that 28 U.S.C. § 2680(h) — the statute that permits lawsuits against “investigative or law enforcement officers of the United States Government” for claims arising “out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution” — means just what it says, reversing nearly thirty years of law in the Third Circuit. So why did the Supreme Court have to tell us that a statute meant what it obviously meant?

The case arose from a prisoner in the United States Penitentiary in Lewisburg, Pennsylvania, who alleged “that he was taken to the basement of the SMU and forced to perform oral sex on Correctional Officer Pealer while Correctional Officer Edinger held his neck and Correctional Officer Gimberling stood watch by the door.” “SMU” stands for “Special Management Unit”; if you’ve ever watched a movie or TV with a prison in it, you know SMU as “the hole.”

Millbrook alleged he was assaulted, battered, and falsely imprisoned by three law enforcement officers of the United States. Under § 2680(h), there’s not much more to ask about the case: his claim was exactly the sort of claim Congress sought to permit when it amended the Federal Tort Claims Act in 1974 in response to a disturbing rise in “no knock” raids that destroyed homes and even killed people — without even probable cause or a warrant, as required by the Fourth Amendment. (It’s a couple years old now, but this long report from Radley Balko on the rise of paramilitary raids by domestic law enforcement is essential reading — sadly, the problem has gotten much worse in the past 40 years.) The law means, quite simply, that the United States is liable when investigative or law enforcement officers of the United States Government commit those specific intentional torts in the scope of their employment.

In the years since the Act’s passage, the courts have been busy eviscerating it by granting the government and its employees an increasing amount of immunity. In 1986, the Third Circuit decided in Pooler v. United States, 787 F.2d 868, 872 that  § 2680(h) was limited to claims where the “investigative or law enforcement officers” were “executing a search, seizing evidence, or making an arrest.” The Third Circuit reasoned: 
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As recently as twenty years ago, large parts of the medical establishment believed that neonatal Group B Streptococcus was rare disease that couldn’t be prevented or treated. Unsurprisingly, the failure to treat Group B Strep remains one of the leading causes of malpractice in labor and delivery.

Group B Strep was, and remains, the leading cause of meningitis and sepsis in newborns, but the American College of Obstetricians and Gynecologists (ACOG) and the American Academy of Pediatrics (AAP) didn’t even have any documents, much less guidelines, on Group B Strep prevention until 1991. In 1993, the Centers for Disease Control (CDC) found that Group B Strep screening was cost-effective. In 1996, the CDC, ACOG, and AAP finally published their first consensus statement on Group B Strep prevention, leading to formal guidelines in 1997. The GBSA has a timeline of its efforts explaining the considerable effort it took to get us where we are today.

As late as 1998, an editorial in American Family Physician still had to convince obstetricians and pediatricians that GBS was a real problem, and explain to them how to prevent it:

First and foremost, we must not ignore the problem. Neonatal group B streptococcal infection is more prevalent than many of the other conditions we screen for in pregnancy, and the effects can be just as devastating. Based on the importance of group B streptococcal infection, there are two possible principles governing our obligation to inform and to care for patients: One is to adhere to the community standard and the other is to provide care that any reasonable patient would want.

Both of these principles can be addressed by two linked steps. First, each practice or care system can develop and document a standard (or reasonable choice of standards) that is supported by current literature or by authoritative clinical guidelines. The CDC consensus recommendations provide some latitude for this, as noted in this editorial and in the article by Keenan. Second, inform patients, document that the information has been provided and provide the opportunity for questions, additional information and choices, when choices are appropriate.

That was just five years before Christian Arroyo was born. As the Seventh Circuit recounted in the Arroyo v. United States opinion last Thursday:

On May 16, 2003, Solorzano Arroyo went into labor. She went to Northwestern Memorial Hospital and gave birth to her son, Christian Arroyo in the early morning hours of May 17, 2003. Because Christian’s birth was more than a month premature, Solorzano Arroyo had not undergone the battery of diagnostic tests, including a test for Group B Streptococcus (GBS), that women typically undergo in the month prior to delivery. These diagnostic tests are extremely important, as they indicate whether an infant will be at risk of contracting any diseases from his or her mother’s blood during birth and allow health care practitioners to take steps to reduce the risks that such incidents will harm the infant.

When a mother has not had these diagnostic tests, medical professionals protect infants by utilizing a two-pronged approach. First, at the delivery stage, doctors are required to observe the presence or absence of four risk factors. Second, after the baby is born, doctors are required to be vigilant in looking for signs indicating the presence or absence of neonatal sepsis (a bacterial infection of the baby’s bloodstream). If a medical professional finds any indications of infection, then she must immediately administer antibiotics to prevent the spread of infection. Because GBS is fairly benign in adult s, mothers can carry it asymptomatically during pregnancy. Newborns can contract the disease during birth and, unless it is treated immediately, it can cause severe and permanent brain injuries.

Shortly after birth, Christian exhibited several symptoms indicating that exposure to his mother’s blood had infected him with GBS. However, the obstetrician and pediatrician responsible for taking care of Solorzano Arroyo failed to detect the infection and treat Christian with antibiotics. Because of this failure, Christian suffered severe and permanent brain injuries. If the doctors had promptly treated Christian, it is likely that the damage done to Christian’s brain would have been significantly reduced.

(Names of physicians omitted.) Christian developed cerebral palsy and is a spastic quadriplegic, requiring substantial additional medical care.

It wasn’t negligent for the physicians not to test for GBS that early in her pregnancy. Nonetheless, because she wasn’t tested before going into labor, the standard of care demands the physicians presume she has GBS and that the baby has been infected until symptoms show otherwise, and to treat at any sign of infection. The failure to do so was classic medical malpractice; said his lawyer, “At one point or another, he pretty much had almost every sign of the infection; at one point, the baby was not even able to see, which was a really bad sign.” Still, he wasn’t treated. Cutting edge to do so ten years ago, malpractice not to do so today. That’s how the standard of care in medicine advances.

Medical causation was similarly indisputable. As the CDC states, “A pregnant woman who tests positive for group B strep and gets antibiotics during labor has only a 1 in 4,000 chance of delivering a baby with group B strep disease, compared to a 1 in 200 chance if she does not get antibiotics during labor.” And that’s just for the antibiotics during labor; antibiotics immediately after birth lower the odds even further.

Recall how, just five years earlier even many doctors didn’t understand the dangers of Group B strep, how to prevent it, or how to treat it. Solorzano Arroyo didn’t know it could be prevented, either, and none of her treating physicians bothered to tell her that. (Any guesses why not?) It wasn’t until she saw a personal injury lawyer’s television ad mentioning that Group B Strep infections that she suspected the possibility of malpractice. She hired a lawyer and sued.

Because the obstetrician and pediatrician worked at a federally-funded clinic, they were immune under the Federal Tort Claims Act, and the United States government was substituted as a defendant. At a bench trial, a federal judge found the United States liable for $29 million in medical care, economic damages, and pain and suffering.

The United States didn’t challenge the finding of medical negligence, nor the size of the damages — it is very difficult to get a federal appellate court to overturn the purely factual findings of a federal district court — but instead claimed that the lawsuit was filed outside the statute of limitations.

There are good policy reasons for having a statute of limitations that bars claims at some point down the road, but none of those policy reasons applied here: the malpractice occurred in May of 2003 and the lawsuit was filed in December of 2005. All witnesses were still living and of sound mind. The medical records were all available.

Most states recognize the particular circumstances of malpractice injuries to children, and so extend the statute of limitations at least a few years, sometimes until the injured child reaches adulthood. Illinois extends the statute of limitations for children to eight years, or until the child turns 22. That extended statute would have applied if this was a normal medical malpractice lawsuit, but, as noted above, this case was against federal employees, so the stricter Federal Tort Claims Act rule applied, and thus the case was governed by the state’s statute of limitations for general personal injuries, despite the child-specific statute. (Strange, I know; the Federal Tort Claims Act is a strange beast, a handful of sentences that opened up a can of worms inside Pandora’s Box.)

The question, then, was when did the statute of limitations begin to run? Under the Federal Tort Claims Act, a claim accrues when the plaintiff discovers or  a reasonable person in the plaintiff’s position would have discovered, that he has been injured by an act or omission attributable to the government. W

e know that Solorzano Arroyo didn’t “discover” the negligence until, at the earliest, she saw the personal injury ad on television, but the question is when “a reasonable person” in her position would have “discovered” the negligence.

The government argued that, “from an objective standpoint, reasonably diligent persons are aware that infections can be prevented, particularly in hospital settings.” Did the Department of Justice take the time to review the history of GBS prevention and the scope of GBS educational efforts? Did they stop and consider that, if just five years earlier an editorial in a major medical journal was imploring doctors “not ignore the problem,” then maybe, just maybe, your average American might not know that the standard of care demanded Group B Strep be closely considered in all pre-delivery testing and, if found, treated with antibiotics?

Or did they just throw out whatever arguments they could, regardless of merit or justice?

Enter Judge Richard Posner.
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Walter Olson at Point of Law refers us to a proposal by a Democratic legislator in Maryland:

Primary-care providers who practice at federally qualified health centers do not need to purchase medical malpractice insurance. Why? The government promises to cover any claims against them under the Federal Tort Claims Act. If a patient has a

In a stunning display of judicial activism, two conservative judges on the United States Court of Appeals for the District of Columbia re-wrote several recent Department of Defense regulations, a sixty-year-old Act of Congress, a basic principle of federalism upheld by dozens of Supreme Court opinions, and millenia of common law to dismiss the Saleh v. Titan Corporation and Ibrahim v. Titan Corporation lawsuits brought by more than a dozen Iraqis who “were beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused by private contractors working as interpreters and interrogators at Abu Ghraib prison.” Dissent op., p.1. The United States was not a defendant, nor were the military officers. The lawsuit was solely against the private contractors.

You already know the “allegations” — you’ve probably already seen much of the evidence. There’s no doubt what happened. It was “abhorrent” and “[doesn’t] represent America” according to President Bush. Secretary Rumsfeld assured “[t]he people of the Middle East . . . that we will investigate fully, that we will find out the truth . . . and [that] justice will be served.” Dissent op., p. 2. Ilham Nassir Ibrahim isn’t around for justice; he was beaten to death while in captivity. His widow is one of the plaintiffs.

The prohibition on unauthorized violence, even against prisoners, is universal to civilization. Under the Code of Hammurabi, if a prisoner like Ibrahim died “from blows or maltreatment,” the responsible party’s son was put to death. These days, torture for fun and profit without even the pretense of government authorization violates a panolopy of laws, including the Torture Victim Protection Act, the Racketeer Influenced and Corrupt Organizations Act, numerous common law torts (assault and battery, wrongful death and survival, intentional infliction of emotional distress, and negligence), government contracting laws, and various international laws and agreements.

To cover their bases, the plaintiffs sued under all of them. Surely at least one such claim would survive under centuries-old Anglo-American legal maxim — reaffirmed by the most important Supreme Court decision in our history — that “where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded?”

The plaintiffs’ claims were strengthened by the absence of any Executive or Congressional action to stop them, despite numerous claims by the private contractors that the federal government had a substantial interest in the outcome of the case. The Bush and Obama administrations both declined to intervene in the case. Congress for a half-century now has authorized dozens of military actions which included the use of private contractors without passing a single law granting them immunity from suit.

The only related Congressional Act — the Federal Tort Claims Act — expressly says it “does not include any contractor with the United States.”  In fact, the only recent relevant action by either the Executive or Legislative branches is a regulation from the Bush-era Department of Defense stating that, for performance-based service contracts, “contractors [are] accountable for the negligent or willful actions of their employees, officers, and subcontractors.” Dissent op., p. 22. The DoD further explained that ““[i]nappropriate use of force could subject a contractor or its subcontractors or employees to prosecution or civil liability under the laws of the United States and the host nation.” Id at p. 21.

The Supreme Court, too, has made it quite clear that, when a government contractor breaches its agreement with the government and thereby causes a third party harm, that contractor is responsible for the harm. In Miree v. DeKalb County, 433 U. S. 25 (1977), the victims of an airplane crash sued a county airport because it “breached the FAA [flight permission] contracts by owning and maintaining a garbage dump adjacent to the airport, and that the cause of the crash was the ingestion of birds swarming from the dump into the jet engines of the aircraft.” After reiterating (consistent with prior law) that “the issue of whether to displace state law on an issue such as this is primarily a decision for Congress” and noting “Congress has chosen not to do so in this case,” the Supreme Court affirmed the victims’ right to sue. Keep that “primarily a decision for Congress” concept, a basic principle of federalism recently upheld in Wyeth v. Levine, in mind — we’ll come back to it later.

Why, then were the Abu Ghraib cases dismissed? Judicial activism, plain and simple: having no act of Congress, no Executive decision (in fact, regulations to the contrary), and no applicable Supreme Court precedent to support their preferred policy outcome, two conservative judges invented an entirely new judicial doctrine.

The judges didn’t say that, of course. They claimed to be applying existing law.

A bit of background is required to see why that’s not true. Though Miree is the general rule for lawsuits brought by third parties injuried by government contractors who breach their contracts, an exception for government manufacturers who perform their contracts properly was created by Boyle v. United Technologies Corp., 487 U.S. 500 (1988), where a United States Marine helicopter copilot was killed when his CH-53D helicopter crashed off the coast of Virginia Beach and he drowned. His family brought a lawsuit against the manufacturer of the CH-53D, alleging that the helicopter was defective because escape hatch opened out instead of inward, and thus was impossible to open underwater.

The Supreme Court held the family could not recover against the manufacturer because that design had been specifically required by the government, and thus the federal procurement specification “preempted” any claims of negligence, rendering the contractor immune from suit for following those specifications. Make no mistake: as the Supreme Court later described Boyle, preemption and immunity for government contractors applies only in the “special circumstance” where the “government has directed a contractor to do the very thing that is the subject of the claim.” Correctional Services Corp. v. Malesko, 534 U.S. 61, 74 n.6 (2001)(applying the old Miree rule)

It’s a sensible rule, even though one not enacted by Congress (as Miree and long-standing law said it should be). But it’s also a very limited rule: as Justice Scalia wrote for the Supreme Court, it applies where “the asserted basis of the contractor’s liability (specifically, the duty to equip helicopters with the sort of escape-hatch mechanism petitioner claims was necessary) is precisely contrary to the duty imposed by the Government contract (the duty to manufacture and deliver helicopters with the sort of escape-hatch mechanism shown by the specifications).”

Note those words: “precisely contrary.” Scalia even gave an example of where it would not apply, such as where a government merely purchased air-conditioning units without any requirement contrary to a specific safety feature. As Scalia wrote, “no one suggests that state law would generally be preempted” if someone injured by the lack of that safety feature filed a lawsuit. Of course, absolutely no one suggested that a government contractor who breached their contract would be immune. As Scalia wrote, “conflict there must be” between the federal contract requirements and the lawsuit.

Compare “precisely contrary” and “conflict there must be” to Abu Ghraib, where the contractors intentionally breached their contracts through criminal conduct. Such is even less a case for preemption and immunity than Miree, where the breach was negligent, and which was reaffirmed by Boyle. Yet, Boyle is what the conservative judges claimed they were applying:

The nature of the conflict in this case is somewhat different from that in Boyle–a sharp example of discrete conflict in which satisfying both state and federal duties (i.e., by designing a helicopter hatch that opens both inward and outward) was impossible. In the context of the combatant activities exception, the relevant question is not so much whether the substance of the federal duty is inconsistent with a hypothetical duty imposed by the state or foreign sovereign. Rather, it is the imposition per se of the state or foreign tort law that conflicts with the FTCA’s policy of eliminating tort concepts from the battlefield. The very purposes of tort law are in conflict with the pursuit of warfare. Thus, the instant case presents us with a more general conflict preemption, to coin a term, “battle-field preemption”: the federal government occupies the field when it comes to warfare, and its interest in combat is always “precisely contrary” to the imposition of a non-federal tort duty. Boyle, 487 U.S. at 500.

Slip op., p 13.

Did you catch all of that? The conservative judges took a twenty-year-old Supreme Court case admittedly involving the “special circumstance” where a plaintiff sued alleging a government manufacturer should have done the exact opposite of what the government told them to do, then, by way of a federal statute that expressly says it does not apply to contractors (the FTCA), the conservative judges applied that “special circumstances” to immunitize every private contractor in any “battle-field” — which Abu Ghraib certainly wasn’t — who tortures and kills people without even the pretense of governmental authority.

In order to do that, the conservative judges also ran roughshod over the millenia-old prohibition on abusing prisoners, the centuries-old maxim that every right has a remedy, decades of precedent holding that Congress — not the Courts — is responsible for creating immunities, and recent crystal-clear Department of Defense regulations affirming that private contractors remain responsible for their wrongful conduct.

Judicial activism at its finest. Read the opinion yourself, if you dare. I recommend you start with the fine dissent by Judge Garland.


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