Abdallah v. Callender

28 V.I. 416

RAYYA ABDALLAH; DAVID ABDALLAH, as next of kin of BABYBOY ABDALLAH, and on their own personal behalf, Appellants v. WILBUR CALLENDER, M.D.; GOVERNMENT of the VIRGIN ISLANDS

No. 92-7275

United States Court of Appeals for the Third Circuit

June 7, 1993

[1 F.3d 141]

Parents of stillbirth victim appealed trial court grant of summary judgment on five-count damages complaint, in which court held that all counts were barred for jurisdictional and procedural reasons or were derivative of counts so barred. The Third Circuit, Greenberg, J., vacated district court's order in part and remanded, finding summary judgment on some of the claims inappropriate.

[Headnotes Classified to Virgin Islands Digest]

[COPY RIGHT MATERIAL OMITTED]

RICHARD H. HUNTER (Argued) (HUNTER, COLIANNI, COLE & TURNER), Christiansted, St. Croix, V.I.; MARK L. MLLLLGAN, Christiansted, St. Croix, V.I., for appellants

JUDITH A. CONTE (Argued); WILFREDO GEIGEL, Christiansted, St. Croix, V.I., for appellees

BEFORE: GREENBERG, SCIRICA, and GARTH, Circuit Judges

OPINION OF THE COURT

GREENBERG, Circuit Judge

I. BACKGROUND

Rayya and David Abdallah appeal from a May 15, 1992 order of the district court granting summary judgment to the defendants, Dr. Wilbur Callender and the Government of the Virgin Islands. The Abdallahs had filed a five-count complaint seeking damages for physical and emotional injuries relating to the stillbirth of their son in January 1987. The district court did not grant the summary judgment on the ground that the Abdallahs could not establish that there had been malpractice. Indeed, the defendants did not move for summary judgment on that basis. Rather, the court held that all the counts were barred for jurisdictional and procedural reasons or were derivative of counts so barred. We will vacate the district court's order in part and will remand the matter for further proceedings.

A. Factual Background

Mrs. Abdallah, who was almost 37 years old and was pregnant in January 1987, previously had given birth to five children, two by Cesarean section.¹ She desired a vaginal delivery and phoned Dr. Callender to see if this were possible. Dr. Callender said that it was and, after meeting with the Abdallahs, scheduled Mrs. Abdallahfor a vaginal delivery. Mrs. Abdallah's expected delivery date was January 22, 1987.

In the evening of January 19, 1987, Mrs. Abdallah was admitted to the St. Thomas Community Hospital because she was having contractions. This hospital is owned and operated by the Government of the Virgin Islands. At 11:35 p.m. on January 20th, Mrs. Abdallah went into labor. Dr. Callender was called at midnight and arrived about 90 minutes later. After Mrs. Abdallah had been in labor for about four hours, Dr. Callender performed a low-segment C-section and a bilateral tubal ligation and transection.

The Abdallahs' baby boy was stillborn. Mrs. Abdallah's uterine wall had torn near a previous scar, and a large amount of blood had gone into her lower abdominal cavity. Mrs. Abdallah suffered from a morbid postoperative course secondary to anemia, but otherwise recovered well. The Abdallahs contend that the bilateral tubal ligation and transection, though properly done, was performed without Mrs. Abdallah's informed consent.² As a result of this procedure Mrs. Abdallah is sterile.³

B. Procedural Background

The Abdallahs filed their five-count complaint on July 15, 1988, in the district court. Count I alleged that Dr. Callender negligently caused Mrs. Abdallah to suffer a ruptured uterus and her son to be stillborn, which in turn caused both parents to suffer severe emotional and mental distress. Count II asserted that Dr. Callender performed a bilateral tubal ligation and transection on Mrs. Abdallah without her informed consent. This count alleged that as a result of Dr. Callender's "negligence and/or assault and battery" Mrs. Abdallah is now sterile. Count III alleged that the Government of the Virgin Islands, as the owner and operator of the St. Thomas Community Hospital, negligently caused the stillbirth and caused both parents to suffer severe emotional and mental distress. Count IV asserted a wrongful death claim by reason of the stillbirth of thebaby boy. Count V was a claim by Mr. Abdallah for loss of consortium based on injuries to his wife.

Virgin Islands law establishes certain procedural prerequisites before tort actions may be brought against the Government of the Virgin Islands and before medical malpractice actions may be brought against health care providers. Under the Virgin Islands Tort Claims Act a plaintiff, prior to bringing a tort action against the Government, must file a claim or a written notice of intention to file a claim within 90 days after the accrual of the cause of action. A claimant filing a notice of intention must file the claim itself within two years of its actual accrual. V.I. Code Ann. tit. 33, § 3409 (Supp. 1990). While the Abdallahs did file a timely notice of claim on March 25, 1987, the record does not reveal whether they filed a later claim.

Under the Virgin Islands Health Care Providers Malpractice Act as a prerequisite to bringing a medical malpractice action against any health care provider, including the Government of the Virgin Islands, a plaintiff first must file a proposed complaint with the Medical Malpractice Action Review Committee. V.I. Code Ann. tit. 27, § 166i(b) (Supp. 1990). To meet this requirement, the Abdallahs filed a proposed complaint with the Review Committee on December 17, 1987. However, the proposed complaint, unlike the complaint they later filed in the district court, did not include the assault and battery claim.

On October 8, 1991, the defendants filed a motion for partial summary judgment raising three points of law which they thought should be resolved before trial:

1) whether the Abdallahs' action brought as Counts I, II, and V is barred as a result of not being included in the notice of claim pursuant to the Tort Claims Act, V.I. Code Ann. tit. 33, § 3409;

2) whether the Abdallahs' cause of action brought in Count II is barred by the failure to include the same in the proposed complaint as mandated by the Malpractice Act, V.I. Code Ann. tit. 27, § 166i(b); and

3) whether the defendants are liable to the Abdallahs, assuming they can prevail, for any amounts in excess of $75,000 in view of the limitation expounded in the Malpractice Act, V.I. Code Ann. tit. 27, § 166b(c).

At a hearing on the motion on February 19, 1992, the defendants' counsel raised the additional contention that Count IV, the wrong-ful death claim, should be dismissed because it had not been brought by the baby's personal representative as required by V.I. Code Ann. tit. 5, § 76(d) (Supp. 1990). In response, counsel for the Abdallahs withdrew Count IV, which the district court then dismissed without prejudice.⁴

On May 15, 1992, the district court entered a four-page order granting the defendants summary judgment on the entire complaint. The court first noted that the Abdallahs' wrongful death claim had been withdrawn. It then concluded that Count II, which charged that Dr. Callender performed the bilateral tubal ligation and transection without Mrs. Abdallah's informed consent, was barred jurisdictionally because the Abdallahs had not included this count in their proposed complaint filed with the Review Committee. Finally, the court dismissed the Abdallahs' other claims, believing them to be derivative of the battery claim in Count II and the wrongful death claim in Count IV.⁵

II. DISCUSSION

The Abdallahs seek to have the order of May 15, 1992, reversed only insofar as it granted summary judgment on Counts I, II, III, and V. Inasmuch as they do not ask us to reinstate Count IV, which they withdrew in the district court, we do not address this claim on the merits. We also do not discuss the third issue raised in the defendants' motion for summary judgment, relating to the possible limitation on damages, as the district court never reached this issue and neither party has raised it on appeal. Our review of the district court's grant of summary judgment is plenary.

A. The Battery Claim—Count II

[1] As we have indicated, in Count II of their complaint the Abdallahs allege that Dr. Callender committed a battery by performing a bilateral tubal ligation and transection on Mrs. Abdallah without her informed consent. Yet, the Abdallahs concede that they did not include this count in their proposed complaint submitted to the Review Committee pursuant to V.I. Code Ann. tit. 27, § 166i. Therefore, as the district court correctly held, it did not have jurisdiction to hear this claim.

Section 166i(b) states in relevant part:

No action against a health care provider may be commenced in court before the claimant's proposed complaint has been filed with the Committee and the Committee has received the expert opinion as required by this section . . . .

Clearly, Dr. Callender is a "health care provider" as defined by the statute. See V.I. Code Ann. tit. 27, § 166(c). Thus, the only real question raised by the appeal on this issue is whether the Malpractice Act requires the submission of all proposed tort actions against a health care provider acting in that capacity or whether it only applies to professional negligence actions.

The district court did not directly address this issue. Rather, it held the battery count barred, on the authority of cases establishing that a claim not listed in a proposed complaint submitted to the Review Committee is barred jurisdictionally. For example, in Berry v. Curreri, 837 F.2d 623 (3d Cir. 1988), the plaintiffs filed a proposed complaint with the Review Committee which did not include any reference to a misdiagnosis or negligent performance of the surgery but asserted only that there had been negligent postoperative treatment. Nevertheless, when the plaintiffs filed their complaint in the district court, they included claims for both misdiagnosis and negligent performance of...