Appeal from the District court of the Virgin Islands, Division of St. Thomas and St. John.
Seitz, Garth, and Higginbotham, Circuit Judges.
The Government of the Virgin Islands, the Knud Hansen Memorial Hospital,*fn1 and Jill Kooiker, a registered nurse, all defendants in this wrongful death action, appeal the order of the district court granting judgment for the plaintiff, Alice C. Richardson, and awarding damages in the amount of $225,000. We have jurisdiction under 28 U.S.C. § 1291.
Almando Felix, a two-year old boy, checked into the Knud Hansen Memorial Hospital for minor elective surgery on his neck. Knud Hansen is one of two hospitals owned and operated by the Government of the Virgin Islands. Almando was not expected to stay more than one day. The surgery was performed on October 17, 1978. As a result of Nurse Kooiker's negligence, Almando lapsed into a coma and died on October 26, 1978.
Alice C. Richardson, Almando's representative, filed this wrongful death action on October 20, 1980. The court found the defendants jointly and severally liable and awarded damages of $225,000 to Richardson for the mental pain and suffering of Sonia Forbes, Almando's mother.
We first consider the Government's argument that plaintiff has failed to comply with various requirements of the Virgin Islands Tort Claims Act, 33 V.I.C. § 3401 et seq. (Equity 1967 & Supp. 1983). That Act states that the Government of the Virgin Islands waives its immunity from tort liability and "consents to have its liability determined in accordance with the same rules of law as applied to actions in the courts of the Virgin Islands against individuals and corporations: Provided, That the claimant complies with the provisions of this chapter." 33 V.I.C. § 3408 (emphasis added).
Sections 3409 and 3410 of the Act set forth the claim filing requirements that a plaintiff in a wrongful death action must satisfy as preconditions to recovery against the Government. The decedent's executor or administrator must file a "claim" or "notice of intention to file a claim" within ninety days of the executor's appointment. If the executor files a notice of intention, he has two years from the date of the decedent's death to file the claim. In no event, however, shall the claim be filed more than two years after the date of death. Id. § 3409(b).
An executor who fails to file either a claim or notice of intention within ninety days of his appointment may file a motion with the court no more than two years after the decedent's death seeking permission to file a late claim. An affidavit and copy of the proposed claim must accompany the motion. The affidavit must establish that the claimant had a "reasonable excuse" for failing to comply, and that the Government had actual knowledge of the underlying facts of the claim within the original ninety day time period. Id. at 3409. The court may, in its discretion, grant the motion unless it finds that the Government had been "substantially prejudiced" by the untimely filing. Id.
Section 3410 states that the claim or notice of intention must be filed with the Office of the Governor, and a copy served upon the Attorney General. A notice of intention must state the time and place of the alleged tort and the nature of the claim to be asserted. A claim must set forth the same information as the notice, plus "items of damage or injuries claimed to have been sustained and the total sum claimed." Both the notice and the claim must be verified. Id. § 3410.
The Government in this case argues that plaintiff failed to comply with the requirements of the Tort Claims Act in four respects: (1) plaintiff failed to file a claim or notice of intention in a timely fashion: (2) plaintiff failed to file a claim or notice of intention with the Office of the Governor, and failed to serve a copy on the Attorney General; (3) plaintiff failed to provide the ...