Cara Lyn Landreth, a Minor, by and Through Her Guardian Ad Litem, Joseph Y. Ore v. United States

850 F.2d 532 Cara Lyn LANDRETH, a minor, By and Through her Guardian Ad Litem, Joseph Y. ORE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 86-5732. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 7, 1988. Decided June 23, 1988. 1 H.G. Robert Fong, Ku & Fong, Los Angeles, Cal., for plaintiff-appellant. 2 Shari Silver, Asst. U.S. Atty., Los Angeles, Cal., for defendant-appellee. 3 Appeal from the United States District Court for the Central District of California. 4 Before FARRIS and REINHARDT, Circuit Judges, and McKIBBEN, * District Judge. McKIBBEN, District Judge: 5 Plaintiff, Cara Lyn Landreth, by her guardian ad litem, appeals from a judgment dismissing her action against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346 (b), 2671 et seq. We affirm.I. FACTS AND PROCEDURAL POSTURE 6 During the morning of March 30, 1973 Cara Lyn Landreth, who was then eleven months old, swallowed a portion of her mother's quibron medication. Her mother, Jennie Landreth, and her father, William Terry Landreth, who was a member of the United States Air Force rushed her to the Plattsburgh Air Force Base…

Plaintiff, Cara Lyn Landreth, by her guardian ad litem, appeals from a judgment dismissing her action against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346 (b), 2671 et seq. We affirm.

*533 I. FACTS AND PROCEDURAL POSTURE

During the morning of March 30, 1973 Cara Lyn Landreth, who was then eleven months old, swallowed a portion of her mother’s quibron medication. Her mother, Jennie Landreth, and her father, William Terry Landreth, who was a member of the United States Air Force rushed her to the Plattsburgh Air Force Base Hospital. No physician examined Cara at the emergency room. Jennie Landreth heard a physician instruct an orderly to give Cara 15 cc. of ipecac and then send her home. The ipecac was administered and the Landreths returned home. That evening Jennie noticed Cara’s eyes had rolled back and she was convulsing. Cara was immediately taken back to the Plattsburgh hospital by her parents. She was then transferred to the Montreal Children’s Hospital where she remained hospitalized for six days. The medical personnel at the Montreal hospital told the Landreths that Cara’s seizures were due to the quibron ingestion and that her stomach…

dissenting:

I dissent because I believe the majority has erred in its treatment of appellant’s constitutional claims.

The quibron that caused Cara’s brain damage and resultant seizures and behavioral problems was prescribed for the treatment of her mother’s asthma. On the morning of March 30, 1973, when Cara swallowed the quibron, Jennie Landreth had left her unsupervised and had also left the quibron within her reach. Under New York law, 1 Cara could have had an action for negligence against her mother. See Gelbman v. Gelbman, 23 N.Y.2d 434 , 245 N.E.2d 192 , 297 N.Y.S.2d 529 (1961) (eliminating defense of intrafamilial immunity for nonwillful torts). 2 Moreover, in any *536 malpractice action brought on Cara’s behalf, Jennie could have been subject to a counterclaim or to indemnification. See Goedkoop v. Ward Pavement Corp., 51 A.D.2d 542 , 378 N.Y.S.2d 417 (1976) (action for injuries sustained by infant as result of blasting cap explosion; court allowed counterclaim against infant’s father for indemnification, alleging father negligently maintained blasting caps in basement).

Appellant argues that her parents had a conflict of interest because of their own potential…