New FTCA Case Involving Spina Bifida

Timothy Brown sued the United States  alleging that his daughter Melody developed spinal bifida as a result of a military doctor recommending to Deborah Brown (Melody’s mother and a member of the military) than she  (Deborah) stop taking prenatal vitamins during a critical period in his development in utero.  The vitamins contained folic acid, which the Tommy alleged  is intended solely to prevent  neural tube defects in a developing fetus. Neural tube defects can cause serious spinal cord and  brain injury during the first 28 days of gestation, after which the fetal neural tube closes. Deborah Brown sustained no physical injury whatever from the effects of the negligent prenatal treatment, from her pregnancy, or from Melody’s birth.

The United States moved to dismiss, alleging that it was immune from suit under Feres v. United States, 340 U.S. 135 (1950).  Feres held that  the government “is not liable under [the Act] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.”   Id. at 146.  Plaintiff argued that the  Feres  doctrine was inapplicable because Melody’s injury was not derivative of any injury to her mother but was, rather, the result of negligence affecting Melody directly(albeit in utero). 

The district court (Judge McCalla in Memphis) dismissed the case, saying the case was controlled by a prior decision of the Sixth Circuit in Irvin v. United States, 845 F.2d 126 (1988), which held that "the treatment accorded to a pregnant member of the military on active duty is inherently inseparable from that accorded to the fetus and that such a claim would therefore force a judge to  question the propriety of decisions or conduct of fellow members of the military."

Judge Daughtery wrote the opinion for the Sixth Circuit Court.  She said that Irvin was distinguishable because it sought damages for the death of an injured child as a consquence to injuries caused to the plaintiff mother.  Here, the mother had no injury, and therefore the Court held that "that the Federal Tort Claims Act does not  preclude recovery for negligent prenatal injuries to the child of a military service person that are independent of any injury to the child’s parent."  The Court expressed limited Irwin to its facts.

Judge Graham dissented. saying that the result was controlled by Irvin.

The case is Brown v. United States of America, No. 04-5171 (6th Cir. September 8, 2006). Read the entire decision here.