Karen Scott and David Scott, Husband and Wife and H. Frank Stubbs, as Guardian Ad Litem for Johnathan Scott v. United States

884 F.2d 1280, 1989 U.S. App. LEXIS 13663, 1989 WL 102174
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 8, 1989
Docket86-4017, 86-4112
StatusPublished
Cited by17 cases

This text of 884 F.2d 1280 (Karen Scott and David Scott, Husband and Wife and H. Frank Stubbs, as Guardian Ad Litem for Johnathan Scott v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Karen Scott and David Scott, Husband and Wife and H. Frank Stubbs, as Guardian Ad Litem for Johnathan Scott v. United States, 884 F.2d 1280, 1989 U.S. App. LEXIS 13663, 1989 WL 102174 (9th Cir. 1989).

Opinion

BRUNETTI, Circuit Judge:

This is a medical malpractice action brought by Karen and David Scott on behalf of themselves and their son Johnathan for injury sustained to Johnathan Scott during his birth at a military hospital. The action is based on the Federal Tort Claims Act (FTCA). 28 U.S.C. § 1346(b). A bench trial was held to determine liability and damages to be awarded.

I

BACKGROUND

Johnathan Scott is a severely deformed individual. He was born at the Elmendorf Air Force Base Hospital in Anchorage, Alaska to his mother, Karen Scott, on February 27, 1982. The district court found that the military medical personnel were negligent in their treatment of Johnathan prior to and during delivery, and that because of their negligent treatment he suffers from spastic quadriplegia, a form of cerebral palsy.

The district court also found that because of the spastic quadriplegia Johnathan has abnormal speech and eye movements. He will not walk and will be wheelchair bound, is social and aware of his environment, will not have sufficient intelligible speech to rely on that method of communication and will need computer assisted non-vocal communication. He will never fully feed himself and will not be able to independently care for himself. Johnathan is capable of feeling pain and can perceive the fact that he is disabled.

*1282 In light of these findings, the court awarded Johnathan $8,751,212 for future economic losses reduced to present value. This award was to provide for loss of future income, lifetime attendant care and medical services, medications, supplies and special equipment. Johnathan was also awarded $1 million for past and future pain and suffering, and $1 million for past and future physical impairment. Karen and David Scott were awarded $350,000 for loss of companionship of their child and for destruction of the parent-child relationship.

The government appeals the awards, contending that both the noneconomic damages and the economic damages awarded to Johnathan were excessive, that awarding noneconomic damages to the parents was error, and that the present value calculation is incorrect.

II

DISCUSSION

A. Noneconomic damage award to the parents.

Karen and David Scott’s award for the loss of love and companionship of Johnathan and for the injury to the parent-child relationship was $300,000 and $50,000 respectively. Neither statute nor court decision in Alaska provides for such an award, although none denies it. Accordingly, in determining whether Alaska law would allow a parent to recover for loss of parent-child relationship, “the district court must make a reasonable determination, based upon such recognized sources as statutes, treatises, restatements and published opinions, as to the result that the highest state court would reach if it were deciding the case.” Molsbergen v. United States, 757 F.2d 1016, 1020 (9th Cir.), cert. dismissed, 473 U.S. 934, 106 S.Ct. 30, 87 L.Ed.2d 706 (1985). We review the district court’s determination that parental recovery for loss of the parent-child relationship would be permitted under Alaska law de novo. Id. at 1020.

The government argues that this court, in Early v. United States, 474 F.2d 756 (9th Cir.1973), rejected a common law claim by children under Alaska law for the loss of a parent’s society. Therefore, the claim for damages by the parents for injury to the parent-child relationship in this case should be rejected.

In Hibpshman v. Prudhoe Bay Supply, Inc., the Alaska Supreme Court declined to follow though not expressly our holding in Early and recognized an independent cause of action for minor children for loss of parental consortium resulting from injuries tortiously inflicted on their parents by third persons. 734 P.2d 991, 994-95 (Alaska 1987). According to the Hibpshman court, this result was foreshadowed in part by its prior decision in Schreiner v. Fruit, 519 P.2d 462, 465-66 (Alaska 1974), which held that a wife or husband has a right to sue for loss of consortium caused by negligently inflicted injury to his or her spouse, and by the Alaska wrongful death statute, which authorizes recovery for loss of consortium when a parent or child dies. Hibpshman v. Prudhoe, 734 P.2d at 993-94; Alaska Stat. 09.55.580(c)(4) (1988). The Hibpshman court found that the claim for loss of parental consortium by a minor child was indistinguishable from either spousal consortium claims in injury cases or children’s consortium claims in death eases, and rejected the arguments that damage to the parent-child relationship is intangible, difficult to measure, and imposes a threat of doubled recovery. The “calculation of damages for a child’s loss of parental consortium [is no] more speculative or difficult than that necessary in other consortium, wrongful death, emotional distress, or pain and suffering actions.” Hibpshman, 734 P.2d at 996.

Even though we did not recognize a common law claim for minor children in Early, following Alaska law and based on the reasoning of the Hibpshman case, the district court could reasonably have concluded that a parent’s claim for damage to the parent-child relationship is not sufficiently distinguishable from spousal or children’s consortium claims to warrant nonrecognition.

*1283 B. Physical impairment and pain and suffering damages.

The district court awarded $1 million for Johnathan’s past and future pain and suffering and $1 million for his past and future physical impairment. The government contends that physical impairment is not a traditional damage category under Alaska law and results in a duplicative award to Johnathan.

In Patrick v. Sedwick, 413 P.2d 169 (Alaska 1966), the Supreme Court of Alaska reviewed an award of $21,000 for past and future physical impairment and $10,-500 for past and future mental suffering. In reviewing the amount of the damage award for error, the Supreme Court of Alaska did not consider the categories to be duplicative. See Id. at 172-73.

In Early v. United States, 474 F.2d at 758, we reviewed the amount of a damage award and did not find an award for pain and suffering and an award for loss of senses, loss of enjoyment of sex and psychotic conditions (physical impairment) to be duplicative. Accordingly, under Alaska law an award is not duplicative.

C. Nonpecuniary award.

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884 F.2d 1280, 1989 U.S. App. LEXIS 13663, 1989 WL 102174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/karen-scott-and-david-scott-husband-and-wife-and-h-frank-stubbs-as-ca9-1989.