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Cerebral Palsy Lawsuit Appeal Denied for Military Family

doctor examining baby

The appeal of the husband of an Air Force Captain who filed a cerebral palsy lawsuit against a Colorado hospital has been denied. His wife arrived at the medical facility on March 16, 2009 to give birth to their daughter by a scheduled cesarean section.

The birth process went smoothly until the mother was given Zantac, a common heartburn medication, to combat gastrointestinal issues she was experiencing that could lead to surgical complications. However, she is allergic to the drug and this is noted in her medical records.

She was given Benadryl to counteract the impact of the Zantac, but this caused a quick drop in her blood pressure. This situation would not have long-term implications for the mother, but proved disastrous for the baby. The combination of hypotension, an erratic heartbeat and the lack of attention the attending staff was paying to the baby’s vital signs deprived the baby girl of oxygen for an extended period of time. This resulted in brain damage and severe disabilities, including cerebral palsy, according to court documents.

Cerebral palsy lawsuit

As a result of her traumatic birth, the baby now requires 24/7 care and will likely need this level of supervision for the rest of her life. The mother’s husband and father of the baby sued the government on behalf of the infant, seeking financial support to help fund her care.

The birth injury lawsuit was initially dismissed by a district court, citing the Feres doctrine — a law preventing active-duty service members from suing the government for injuries incurred in the line of duty. The father appealed the case and on May 15, the 10th Circuit Court of Appeals ruled in favor of the federal government.

Since the child’s injuries were related to an injury caused to an active-duty captain, the government can’t be held accountable, wrote the circuit court judges with some reluctance in their decision.

“Under [Feres], federal courts lose their subject matter jurisdiction over claims like this because we conclude the injured child’s in utero injuries are unmistakably derivative of an injury to her mother,” wrote Judge Timothy Tymkovich. “To be sure, the facts here exemplify the overbreadth (and unfairness) of the doctrine, but Feres is not ours to overrule.”

Lawsuit headed to the Supreme Court

If the father was the active-duty service member and his wife a military dependent delivering their child in a military hospital, they likely would have won the case or received a settlement, said their attorney.

However, the mother’s active-duty status and the judges’ decision to apply the “genesis test” for Feres — asking whether a civilian injury is related to an injury to a service member — resulted in a ruling that their attorney plans to appeal to the U.S. Supreme Court.

According to court documents, the judges determined that because the mother didn’t suffer long-term consequences of the drop in blood pressure she suffered, it was an injury that led to her baby’s permanent and severe disabilities.

“At bottom, the source of (Infant Ortiz’s) ultimate injury was her servicewoman mother’s blood pressure problems,” wrote the judges.

The Pentagon released a review of the military health system last year revealing the average rate of injuries to babies during delivery in military hospitals from 2010 to 2013 was twice the national average.

  1. Military Times, Birth Injury Lawsuit Revives Feres Debate

  2. The United States Court of Appeals for the Tenth Circuit, Jorge Ortiz vs. United States of America