The opinion of the court was delivered by: Orlofsky, District Judge
In this medical malpractice action brought under the Federal Tort Claims Act, the Third-Party Defendant, the United States of America ("the Government"), has moved to dismiss the Third Party Complaint for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1), or, in the alternative, for summary judgment, pursuant to Federal Rule of Civil Procedure 56(c), on the Third-Party Complaint of Third-Party Plaintiff, Arvind Saraf, M.D. ("Dr. Saraf"). The Government's motion requires this Court to apply the frequently criticized, but still legally binding Feres doctrine, see Feres v. United States, 340 U.S. 135 (1950), to the New Jersey state law causes of action for "wrongful birth" and "wrongful life."
In the underlying complaint, Plaintiffs, Yvonne and Willie Smith ("Mr. and Mrs. Smith"), have brought a medical malpractice suit against Dr. Saraf on behalf of themselves and their minor son, Elijah Smith ("Elijah"). Plaintiffs allege that as a result of Dr. Saraf's negligence in failing to ensure that Mrs. Smith received particular prenatal tests while pregnant with Elijah, Plaintiffs were prevented from discovering that Elijah would be born with a severe birth defect, and thereby deprived of the choice to terminate the pregnancy. Mr. and Mrs. Smith have asserted a claim against Dr. Saraf for "wrongful birth," which, under New Jersey law, is the parents' claim for the birth of a severely birth-defective child. See Procanik v. Cillo, 97 N.J. 339 (1984). Elijah has asserted a claim for "wrongful life," which, under New Jersey law, is a child's claim for his birth defects and is separate and distinct from the parents' wrongful birth claim. Id. Dr. Saraf has impleaded the United States of America, alleging that the Walson Army Hospital, where Mrs. Smith went to have the prenatal test done, negligently failed to complete and report the results of the test to Dr. Saraf.
At first blush, the resolution of this case would appear to require nothing more than a straightforward application of state tort law. This case is unfortunately complicated, however, by the fact that Mrs. Smith was a servicemember on active duty status with the United States Air Force at the time of the alleged medical malpractice. While Dr. Saraf is not an employee of the United States, the medical care Mrs. Smith received from Dr. Saraf was paid for by the United States. Furthermore, Mrs. Smith was required to use Walson Army Hospital for the prenatal tests which lie at the heart of this case. Active duty servicemembers are barred from recovering against the Government under the Federal Tort Claims Act ("FTCA") for injuries sustained "incident to service," pursuant to the Supreme Court's holding in Feres v. United States, 340 U.S. 135 (1950). See Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2672-2680. The Feres doctrine was adopted to restrain courts from reviewing military decisions, particularly those made under the stress of combat operations, and to avoid the detrimental effect that judicial review would have upon military discipline. The application of the Feres doctrine has, however, been extended to bar claims for injuries which, on their face, appear wholly unrelated to military service, causing Justice Scalia to remark: "Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received." United States v. Johnson, 481 U.S. 681, 700 (1987) (Scalia, J., dissenting)(citation omitted); see also Richards v. United States, 140 F.3d 564 (3d Cir. 1999)(Rendell, J., dissenting) (stating that "Feres represents more than a `bad estimation' of what Congress intended to do (but did not do) in the Federal Tort Claims Act, for it is also being employed by many courts on a regular basis to deny a military employee's recovery, and to prevent the government's accountability, for injuries sustained in connection with essentially civilian activities wholly unrelated to military service"); O'Neill v. United States, 140 F.3d 564, 566 (3d Cir. 1999) (Becker, C. J., dissenting)(criticizing the "harshness of the doctrine" and urging Supreme Court to reconsider Feres).
Because Mrs. Smith was undisputedly an active-duty service member at the time of the alleged malpractice, this Court must address the following questions: (1) whether the application of the Feres doctrine bars Mrs. Smith's claim for wrongful birth; (2) whether the application of the Feres doctrine bars the wrongful birth claim of Mr. Smith, Mrs. Smith's civilian husband and the father of Elijah Smith; and (3) whether the application of the Feres doctrine bars the claim of Mr. and Mrs. Smith's son, Elijah Smith, the civilian dependent of Mrs. Smith, for wrongful life, given that under New Jersey law, a child's claim for wrongful life is a separate claim which is not derivative of the parents' claim for wrongful birth.
For the reasons set forth below, I conclude that both Mrs. Smith's and Mr. Smith's claims for wrongful birth are barred by the Feres doctrine, but that Elijah Smith's claim for wrongful life is not so barred. Accordingly, I shall grant the Government's motion for summary judgment on Dr. Saraf's claim for indemnification and contribution for the claims of Yvonne Smith and Willie Smith for wrongful birth, and deny the Government's motion for summary judgment on Dr. Saraf's claim for indemnification and contribution on Elijah Smith's claim for wrongful life.
Yvonne Smith, her husband Willie Smith, and their minor child, Elijah Smith, are all Plaintiffs in the underlying cause of action. Mrs. Smith was an active duty member of the United States Air Force from August 14, 1992 through November 13, 1997, when she received an honorable discharge. Gov't.'s Exh. A. Pursuant to 10 U.S.C. § 1074(a), Mrs. Smith was eligible for health care paid for by the Air Force while she was on active duty.
In February, 1996, Mrs. Smith became pregnant. In April, 1996, Mrs. Smith commenced prenatal care with the Third-Party Plaintiff, Dr. Saraf. See Gov't.'s Appendix, Letter of Barbara Burton, M.D. Dr. Saraf is an obstetrician who has been in private practice since 1976. Gov't.'s Statement of Undisputed Facts at ¶ 4. He is not an employee of the United States. Id. It is undisputed, however, that the Government "provided payment for [Mrs. Smith's] medical care by private physicians, but required that she obtain medical testing at the Walson Army Hospital at Fort Dix." Gov.'t.'s Br. at 2.
According to Mrs. Smith's medical chart, on May 6, 1996, she had "routine prenatal blood tests" performed. See Gov't.'s App., Letter of Barbara Burton, M.D. She was examined by Dr. Saraf on May 14, 1996, at which point her fetus was at fourteen weeks' gestation, and again on June 11, 1996, when her fetus was at eighteen weeks' gestation. There is a note on her chart, dated June 11, 1996, in which Dr. Saraf indicated: "Plaintiff did not do prenatal lab tests yet. Today she is given triple screen to be done. I also asked her to have prenatal tests to be done [sic]." Gov't.'s App., Letter of Barbara Burton, M.D. Despite this note, no report of a triple screen test appears in Mrs. Smith's chart. Id.
Mrs. Smith was seen again on July 9, 1996, and on July 30, 1996. Gov't.'s App., Letter of Barbara Burton, M.D. There is no notation on either date concerning the triple screen test. Mrs. Smith continued regular prenatal visits. Id. On October 11, 1996, an examination indicated that Mrs. Smith's fetus was breech, and an ultrasound to confirm the breech presentation was scheduled. On October 31, 1996, at 38 weeks' gestation, the ultrasound confirmed the breech presentation. Id. The ultrasound also revealed "a large fetal defect consistent with a neural tube defect as well as hydrocephalus." Id.
According to the entries on Mrs. Smith's chart, the ultrasound results were discussed with Dr. Saraf. Gov't.'s App., Letter of Barbara Burton, M.D. Dr. Saraf then called the laboratory to get Mrs. Smith's alpha-fetoprotein test results and was informed that the laboratory had no record that either the alpha-fetoprotein test or the triple-screen test had ever been performed. Id. There is a notation in her chart that no blood work had been done on Mrs. Smith since the routine prenatal blood tests which were completed on May 6, 1996. Id. Finally, there is a notation by Dr. Saraf in Mrs. Smith's chart indicating that he remembered giving Mrs. Smith "a second slip for serum triple screen when the first lab report on triple screen was messed up by the lab." Id.
Elijah Smith was born on November 5, 1996 with a large and "very severe" open neural tube defect. Id. This defect, also known as "spina bifida cystica," is characterized by an opening at the base of the spine through which the spinal cord and membranes protrude. See Dorland's Illustrated Medical Dictionary 1557 (28th ed. 1994). Surgery is normally performed within twenty-four hours of birth to close the opening and prevent infection, but the damage to the spinal cord itself is irreparable and may result in paralysis, bowel and bladder incontinence, leg and foot deformities, and learning disabilities. Plaintiffs allege that Elijah Smith will be permanently paraplegic and incontinent of bowel and bladder. See Compl. at Count I, ¶ 2. According to Plaintiffs' expert, 90-95% of patients who are confronted with a diagnosis of fetal spina bifida during the second trimester choose to terminate their pregnancies. Gov't.'s App., Letter of Barbara Burton, M.D.
Plaintiffs have sued Dr. Saraf, alleging that Dr. Saraf was negligent and deviated from the standard of care in failing to advise Mrs. Smith of testing which would have led to the prenatal diagnosis of spina bifida. Compl. at Count I, ¶¶ 8 and 9. Plaintiffs allege that, as a result of Dr. Saraf's negligence, they were deprived of the opportunity to make an informed decision as to whether or not to terminate the pregnancy, and have and will continue to suffer emotional distress with respect to parenting a child with a severe birth defect. Finally, Plaintiffs allege that Elijah's "spina bifida and all related medical conditions have and will result in extraordinary medical expenses" throughout Elijah's life. Compl. at Count I, ¶¶ 11-13. Plaintiffs are seeking unspecified damages.
Following the initiation of Plaintiffs' suit against him, Dr. Saraf moved for leave to implead the United States of America as a Third-Party Defendant. On September 15, 1999, the Court entered an Order granting Dr. Saraf's motion, and on September 24, 1999, Dr. Saraf filed a Third Party Complaint. See Order, September 15, 1999.
In the Third-Party Complaint, Dr. Saraf alleges that he twice recommended to Mrs. Smith that she have the triple screen maternal serum alpha fetaprotein test performed. Third Party Compl. at Count III, ¶7. Dr. Saraf further alleges that following his recommendation, Mrs. Smith twice presented herself at Walson Army Hospital to have the test performed. Id. at ¶8. Dr. Saraf alleges that he was never provided with the results of this test.
Dr. Saraf alleges that the United States of America or its agents were negligent in failing to perform Mrs. Smith's test and/or to report the results of the test to Dr. Saraf in a timely manner. On the basis of these allegations, Dr. Saraf contends that the United States is liable to him for contribution and indemnification for any judgment Plaintiffs may obtain against him.
The Government has moved to dismiss the Third-Party Complaint for lack of subject matter jurisdiction, or, in the alternative, for summary judgment. To support its contention that the motion should be considered as a motion to dismiss for lack of subject matter jurisdiction, the Government relies on the Ninth Circuit's decision in Jackson v. United States, 110 F.3d 1484 (9th Cir. 1997). In Jackson, the Ninth Circuit held that "[a] motion to dismiss pursuant to the Feres doctrine, even if raised after the answer to the complaint, should be treated as a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) rather than as a motion for summary judgment." Id. at 1486; see also Dreir v. United States, 106 F.3d 844, 846 (9th Cir. 1997).
The Tenth Circuit Court of Appeals, however, reached a different result in Pringle v. United States, 208 F.3d 1220, 1222 (10th Cir. 2000). Pringle involved an FTCA claim brought by a service member who was injured after being ejected from a military social club. The District Court, finding that the service member's action was barred by the Feres doctrine, dismissed for lack of subject matter jurisdiction. The Tenth Circuit held that a "Rule 12(b)(1) motion to dismiss must be converted into a Rule 12(b)(6) motion or a Rule 56 summary judgment motion when resolution of the jurisdictional question is intertwined with the merits of the case. The jurisdictional question is intertwined with the merits of the case if subject matter jurisdiction is dependent on the same statute which provides the substantive claim in the case." Pringle, 208 F.3d at 1222. The Tenth Circuit concluded that the Feres doctrine, which arguably barred subject matter jurisdiction, is dependent on the Federal Tort Claims Act ("FTCA"), which provided the substantive basis for the claim. Id. at 1223. Based on this conclusion, the Court determined that the jurisdictional question was so intertwined with the merits of the case as to require the Court to treat the Government's motion as one for summary judgment, as opposed to dismissal.
Like Pringle, the jurisdictional question presented in this case is intertwined with the substantive claim, insofar as both implicate the Feres doctrine. Therefore, I shall adopt the Tenth Circuit's reasoning in Pringle, and consider the Government's motion as a motion for summary judgment on the Third-Party Complaint.
The Third Circuit has held that "[o]n a motion for summary judgment, the court must determine whether the evidence shows that `there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999) (citing Fed. R. Civ. P. 56(c)). "Any factual dispute invoked by the nonmoving party to resist summary judgment must be both material in the sense of bearing on an essential element of the plaintiff's claim and genuine in the sense that a reasonable jury could find in favor of the nonmoving party." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-251 (1986)). "In opposing summary judgment, a party `must do more than simply show that there is some metaphysical doubt as to material facts,' Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), but a court should not prevent a case from reaching a jury simply because the court favors one of several reasonable views of the evidence." Abraham, 183 F.3d at 287. "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249; see also Abraham, 183 F.3d at 287. "Thus, while the nonmoving party must present enough evidence to demonstrate a dispute is genuine, all inferences in interpreting the evidence presented by the parties should be drawn in favor of the nonmoving party." Abraham, 183 F.3d at 287 (citing Boyle v. County of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998)). "Cases that turn crucially on the credibility of witnesses' testimony in particular should not be resolved on summary judgment." Id.
If the nonmoving party fails to oppose the motion by written objection, memorandum, affidavits and other evidence, the Court "will accept as true all material facts set forth by the moving party with appropriate record support." Anchorage Assocs. v. Virgin Islands Bd. of Tax Rev., 922 F.2d 168, 175 (3d Cir. 1990) (quoting Jaroma v. Massey, 873 F.2d 17, 21 (1st Cir. 1989)). Even where the non-moving party has failed to establish a triable issue of fact, summary judgment will not be granted unless "appropriate." Fed. R. Civ. P. 56(e); see Anchorage Assocs., 922 F.2d at 175. Rule 56(e) of the Federal Rules of Civil Procedure requires that the case be evaluated ...