Michelle Colleen by Her Guardian Ad Litem Ronald Dearing, Ronald Dearing and Marcia Dearing v. United States

Michelle Dearing and her parents sued the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346 (b), 2674, for negligent medical treatment at the time of Michelle’s birth. The government contends that the Dearings’ claim is barred by the statute of limitations and that the award of damages is excessive. We affirm in part, vacate in part, and remand for further proceedings.

I FACTS AND PROCEEDINGS BELOW

On November 4, 1978, Michelle Dearing was born at Fairchild Air Force Base Hospital. It is undisputed that the hospital’s negligence in failing to provide an anesthesiologist promptly and in performing the delivery, deprived Michelle of oxygen during birth and caused permanent brain damage. At trial the magistrate found, and the government does not dispute, that the delivering physician and the anesthesiologist told Mr. Dearing that they had delivered Michelle in time and that she was going to be fine.

Two hours after birth, Michelle began to have seizures and was transferred to Sacred Heart Medical Center. At Sacred Heart, the Dearings were told that the seizures were the result of Michelle’s “rough birth.” The Dearings were also told that Michelle’s…