William Knowles and Jane Knowles, on Behalf of Themselves and as Guardians of Their Minor Son, Kris Knowles v. United States , 91 F.3d 1147 ( 1996 )

RICHARD S. ARNOLD, Chief Judge.

When this ease was initially submitted to this Court, we held that its disposition involved novel questions of state law. Thus, we certified four questions to the Supreme Court of South Dakota. Knowles v. United States, 29 F.3d 1261 (8th Cir.1994) (Knowles I). We have received answers to those questions and the parties’ briefs in response to those answers, and are prepared to dispose of this case without further argument.

I.

The plaintiffs, William and Jane Knowles, brought this ease under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), on behalf of their son, Kris. They allege that Kris was permanently injured by negligent treatment he received at the Ellsworth Air Force Base Hospital. They also sued in their own right, asserting a cause of action for emotional distress and loss of consortium.

Twelve-day-old Kris Knowles was admitted to the Ellsworth Air Force Base Hospital on July 17, 1989, for treatment of a fever. His condition improved over the next three days. However, during the night preceding Kris’s discharge, his temperature began to fall. In fact, by 6:00 a.m., it was only 95.3 degrees. Nevertheless, Kris was discharged on July 20,1989.

Among those persons caring for Kris in the hospital were medical services specialists. These enlisted persons are roughly the equivalent of civilian nurse’s aides and are charged with tasks such as taking vital signs and providing patient services. It was the responsibility of the medical services specialists on duty to take and record Kris’s temperature, which they did. They were also to report any abnormally high or low temperatures to the nursing staff or to the attending physician. The Knowleses allege that the medical services specialists failed to perform this duty the night before Kris’s discharge.

Following Kris’s release, he was taken to the Ellsworth AFB Pediatrics Clinic for a blood test. There it was discovered that Kris’s temperature had fallen to 92.9 degrees. He was immediately readmitted to the hospital for warming and other treatment for hypothermia. This treatment notwithstanding, Kris developed hypoglycemia and suffered respiratory arrest, resulting in severe and irreversible brain damage.

The Knowleses then filed this lawsuit, alleging' medical negligence against the hospital and its employees. The United States admitted liability, but moved for damages to be limited to $1 million pursuant to South Dakota’s malpractice-damages cap. S.D.C.L. 21-3-11. The District Court, in granting that motion, held that the cap applied to medical services specialists and did not violate the South Dakota Constitution. Moreover, it held that the cap did not apply separately to each cause of action, plaintiff, or tortfeasor. Finally, the District Court held that the Knowleses had no cause of action for emotional distress or loss of consortium due to injury of a child under South Dakota law, and dismissed that count.

The Knowleses appealed that ruling to this Court. Noting that this ease turned on several novel questions of state law, we certified four specific questions to the South Dakota Supreme Court. We have received answers to those certified questions, and will now address the issues remaining in this case.

II.

The first question certified to the South Dakota Supreme Court was whether the $1 million damages cap in S.D.C.L. 21-3-11 violated the South Dakota Constitution. Knowles I, 29 F.3d at 1265. That Court held that the cap did, indeed, violate the Due Process Clause of the South Dakota Constitution. Knowles v. United States, 544 N.W.2d 183, 195 (S.D.1996) (opinion of Gilbertson, J.) (Knowles II). We therefore reverse that portion of the District Court’s order limiting damages in this case to $1 million.

That is not the end of the limitation-of-damages question, however. Because the statute containing the $1 million cap, is “wholly unconstitutional,” Knowles II, 544 N.W.2d at 204, a predecessor statute, the Supreme Court of South Dakota held, a statute that the invalid statute purported to repeal, is revived, and “remains in full force and effect.” Ibid. Under that predecessor statute, 1985. S.D.Sess.Laws ch. 167, non-economic or general damages are capped at $500,000, while economic or special damages have no cap. If a cap applies in this case, it is the cap established by this revived statute. Where the negligence of the. doctors, nurses, and hospital are concerned, the cap indisputably applies. The medical services specialists are a different story.

Among those medical professionals protected by the $1 million cap were “practitioners of the healing arts.” Whether medical services specialists were encompassed by this term was the second question certified to the South Dakota Supreme Court. Knowles I, 29 F.3d at 1266. This question was crucial because, as is the case with the revived statute, all of the other actors who could feasibly be responsible for Kris’s injuries were unquestionably subject to the $1 million cap, id. at 1265, assuming its validity.

The South Dakota Supreme Court held that this question was made moot by its disposition of the first question. Knowles II, 544 N.W.2d at 192 (opinion of Sabers, J.). The revived statute does not include the language at issue. It lists hospitals, doctors, and nurses as beneficiaries of the cap, but does not go on to use the general phrase, “practitioners of the healing arts.” The United States, nevertheless, argues that the $500,000 cap on general damages still applies. It reasons that, because hospitals are covered, and the medical services specialists are hospital employees whose negligence will be charged to the hospital, the statute should be construed to limit the liability of medical services specialists. We reject this argument for the samé reason that we rejected the Knowleses’ argument that the United States was not protected by the original cap in our first opinion. Under the FTCA, the United States will be held liable to the same extent as a private party. It is “standing in the shoes of ... the [medical service specialists]. Therefore, the United States shares in the protection [of the statute] to the same extent the individuals would if they were sued directly.” Knowles I, 29 F.3d at 1265. It follows, then, that if medical services specialists, individually, are not protected by the statute, neither is the United States shielded from the consequences of their negligence.

Our Brother Beam would have us hold that this conclusion is foreclosed by the Westfall Act, 28 U.S.C. § 2679(b)(1), (d)(2), and the Gonzalez Act, 10 U.S.C. § 1089. He reasons that, because medical services specialists are immune from suit under these acts, liability for the United States attaches only by way of the Hospital. Given that hospitals are included in the revived statute, the cap must apply. Notably, the United States did not raise this argument before us in either its briefs or its oral argument.

Employees of the United States, as the dissent points out, may not be sued for torts they commit while acting within the scope of their employment. United States v. Smith, 499 U.S. 160, 165, 111 S.Ct. 1180, 1184, 113 L.Ed.2d 134 (1991). Rather, a plaintiff’s “remedy provided by the [FTCA] ... is exclusive.” 28 U.S.C. § 2679(b)(1); 10 U.S.C. § 1089. The United States, under the FTCA, “shall be liable ... in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. The effect of these provisions taken together is quite clear. When someone is injured by a tort committed by an employee of the United States who is acting within the scope of his employment, that employee cannot be sued. Rather, the injured person must sue the United States which is liable in its employee’s stead.

That is what we mean by saying that the United States stands in the shoes of the medical services specialists. It has, through the FTCA and the Westfall and Gonzalez Acts, removed liability from its employees and placed it on itself. It is liable to the same extent the employee would have been absent immunity from suit. If an employee would not have had the benefit of a particular defense, a damages cap for example, neither does the United States. Medical services specialists do not enjoy the cap’s protection. Thus, neither does the United States when it is sued in place of a medical services specialist.

The Seventh Circuit case, Ezekiel v. Michel, 66 F.3d 894 (7th Cir.1995), cited by the dissent does not support its position. There, the plaintiff, a government employee, was injured by another government employee, a doctor. The plaintiff attempted to sue the doctor, but could not because the Federal Employees’ Compensation Act (FECA), 5 U.S.C. §§ 8101, et seq., provided the plaintiffs exclusive remedy. FECA supplants liability that,would otherwise exist under the FTCA for on-the-job injuries suffered by government employees. Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193-94, 103 S.Ct. 1033, 1036-37, 74 L.Ed.2d 911 (1983).

Here, on the other hand, nothing supplants the liability imposed by state law and the FTCÁ. To the contrary, both the Westfall and the Gonzalez Acts reinforce the fact that the FTCA’s provisions placing liability on the United States are exclusive. That liability is the same liability that the employees, medical services specialists, would have borne absent immunity from suit.

There has, however, been no finding of negligence on the part of the medical services specialists. The United States merely admitted liability generally and then moved for damages to be limited to $1 million under the statute that has now been held invalid. We must, as a result, remand this case to the District Court for a trial on the issue of whether any medical services specialist was negligent. If so, there will be no limit on damages recoverable against the United States. On the other hand, if no medical services specialists were negligent, damages will be limited in accordance with the revived statute: a $500,000 limit on general or non-eeonomic damages, no limit on special or economic damages.

Our third certified question was whether South Dakota law recognized a separate cause of action for loss of consortium and emotional distress for injuries to a minor child. That State’s Supreme Court held that no such cause of action exists. Knowles II, 544 N.W.2d at 193. We affirm the portion of the District Court’s order that dismissed this claim.

The South Dakota Supreme Court did. hold, however, that the Knowleses could assert a cause of action for loss of services and for recovery of medical expenses in their own right. Ibid. Any damages awarded under this cause of action will be special damages subject to no cap. The Knowleses have not pleaded such a cause of action, but may move for leave to amend their complaint and assert this claim on remand.

Our last certified question, whether the damages cap applies separately to each plaintiff, Knowles I, 29 F.3d at 1266, is now irrelevant. While Kris’s cause of action may be subject to a cap depending on whether any medical services specialists were negligent, his parents’ cause of action is not. Only special damages may be awarded under their theory of recovery, and special damages are not limited under the revived statute. The two causes of action are, however, “linked in regard to liability,” .so that the parents may not recover unless the child recovers. Knowles II, 544 N.W.2d at 195.

III.

This case is remanded to the District Court for proceedings consistent with this opinion. That Court should make a finding regarding whether negligence on the part of any medical services specialist caused Kris’s injuries. If this finding is in the affirmative, no cap will apply. If it is in the negative, the District Court should separately find the amounts of general and special damages. If a motion to amend their complaint is made by Mr. and Mrs. Knowles to assert a claim for loss of services and for medical expenses for which they are liable under state law, the District Court will exercise its discretion to grant or-deny the motion. There can be, in any event, no duplicate recovery for medical expenses.

It is so ordered.