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Abdallah v. Callender

filed: June 7, 1993; As Corrected June 9, 1993.

RAYYA ABDALLAH; DAVID ABDALLAH, AS NEXT OF KIN OF BABY BOY ABDALLAH, AND ON THEIR OWN PERSONAL BEHALF, APPELLANTS
v.
WILBUR CALLENDER, M.D.; GOVERNMENT OF THE VIRGIN ISLANDS



On Appeal from the District Court of the Virgin Islands (Division of St. Thomas and St. John). (D.C. Civil No. 88-246).

Before: Greenberg, Scirica, and Garth, Circuit Judges.

Author: Greenberg

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.*fn1 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. Abdallah for 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.*fn2 As a result of this procedure Mrs. Abdallah is sterile.*fn3

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 the baby 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 ...


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