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Wiltshire by Wiltshire v. Government of Virgin Islands

filed: January 12, 1990.


Appeal from the District Court of the Virgin Islands, Division of St. Thomas, Civil No. 84-145

Gibbons, Chief Judge, Mansmann and Nygaard, Circuit Judges.

Author: Mansmann


MANSMANN, Circuit Judge.

This matter comes to us on appeal from a final order of the district court for the District of the Virgin Islands limiting a minor's recovery in a medical malpractice action to $250,000. The district court's order also denied consideration of the minor's parents' related claim for loss of services due to lack of subject matter jurisdiction.

We agree with the district court that it could not exercise subject matter jurisdiction over the parents' derivative claim. The parents failed to give prior notice of their claim to the Virgin Islands Medical Malpractice Action Review Committee (the "Committee") as required by § 166i of the Health Care Provider Malpractice Act, 27 V.I.C. §§ 166 et seq. (Equity Supp. 1989). Their later untimely attempt to send notice to the Committee does not alter this result.

We, however, hold that the district court erred as a matter of law in its construction of the applicable insurance contract. The policy established the extent of liability of the defendant in this action, the government of the Virgin Islands. Inferentially, the insurance contract also describes the boundary of the waiver of sovereign immunity of the government. The district court decided that although the minor was the victim of three separate occurrences of medical malpractice, the policy's language confined her to a "per person" recovery cap of $250,000. We conclude instead that since the minor suffered three separate incidents of medical malpractice, the maximum recovery allowed under the policy consists of three separate awards of $250,000, one for each of the malpractice occurrences, for a total of $750,000. More importantly, the dictates of the relevant statute under which the government consents to be sued in such actions, the Health Care Provider Malpractice Act, permits three individual recoveries for the minor.

We will therefore affirm the district court with respect to the parents' claim, but reverse its decision concerning the language of the insurance contract. The order granting damages in the amount of $250,000 will be vacated and judgment will be entered against the defendant in the amount of $750,000.


The following material facts underlying this action are not in dispute:

On February 13, 1983, Candida A. Wiltshire was born prematurely to Camaleta and Randolph Wiltshire at the St. Thomas Community Hospital, a facility owned and operated by the government of the Virgin Islands in St. Thomas. At birth Candida weighed four pounds, three and one-half ounces -- a weight appropriate for her gestational age of 34-35 weeks. Candida was in relatively good health immediately after her birth.

To provide Candida with nutrients and liquids, the treating physicians, employees of the government, arranged to feed her through an umbilical venous catheter (UVC) and a nasogastric (NG) tube. The UVC was additionally used to draw blood from and administer blood to Candida. With extended use of a UVC (greater than 24-48 hours) there is a danger of contracting a serious infection; nonetheless, the UVC remained in place for seven days through February 20, 1983. By this date, Candida began to decline in health. Her physicians described Candida as mildly lethargic with some vomiting and an episode of staring. One physician noted that "infection must be looked for." On February 23, 1983, another doctor wrote: "toxic appearance now last 4-5 days, probably staph aureus or epidermitis [secondary] to UVC."

On February 24, 1983, Candida's condition deteriorated rapidly. She experienced an episode of bradycardia (slow pulse rate) and apnea (cessation of breathing). When Candida began gasping for air, the nurses and technicians on duty administered cardiopulmonary resuscitation ("CPR" or "bagging"). A physician noted: "infant apneic probably secondary to blood out -- 14 cc and sepsis. Bagging being done before my arrival ineffective and probably more destructive to breathing." Blood gas readings taken at this time to evaluate Candida's status indicated a severe infection.

Upon the discontinuation of the UVC, the physicians met Candida's nutritional needs by placing a feeding line in her scalp. The solution leaked from the feeding line and the seepage resulted in a disfiguring scar on Candida's forehead and face.

Candida was discharged from the hospital on April 5, 1983.

The Wiltshires allege that as a result of her treatment, Candida is severely retarded in the development of her mental, motor and speech activities. At five years old, Candida was unable to walk and was incontinent. She had only rudimentary speaking skills and there is a possibility that she is hearing impaired. Candida has been diagnosed as suffering from spastic quadriparesis and a seizure disorder. In addition, Candida has a permanent disfiguring scar on her forehead.

Candida and her parents proceeded to institute a medical malpractice action against the individual treating physicians, certain other of the hospital's employees and the government of the Virgin Islands. As required by § 3409(c) of the Virgin Islands Tort Claims Act, 33 V.I.C. §§ 3401 et seq. (Equity Supp. 1989), the Wiltshires filed a notice of tort claim detailing the alleged improper care of Candida after her birth. Then, on July 11, 1983, the Wiltshires filed a proposed complaint with the Review Committee as required by § 166i of the Malpractice Act -- a prerequisite to commencing a medical malpractice suit in court. The proposed complaint forwarded to the Committee stated a claim arising out of Candida's facial disfigurement and the emotional distress associated with ...

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