Liebsack v. United States, No. 11-35158 (9th Cir. 2013)
Annotate this CasePlaintiff, guardian to Madlyn Liebsack, filed suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671 et seq., after Madlyn was left in a permanent vegetative state when she was treated with an elevated level of lithium to treat her schizoaffective disorder. Plaintiff contended that federal healthcare providers negligently failed to monitor Madlyn's lithium levels and the government's primary defense was that an advanced nurse practitioner who was responsible for Madlyn's psychiatric care was at fault. On appeal, plaintiff challenged the district court's liability and damages rulings and the government challenged the damages ruling. The court held that Alaska Statute 09.20.185 was a state rule of "witness competency" that applied to this action under Federal Rule of Evidence 601, as well as part of Alaska's substantive law, making it applicable to FTCA actions under section 2674; none of the government's evidence regarding the nurse's negligence complied with section 09.20.185; and the error was not harmless. Accordingly, the court reversed and remanded.
Court Description: Federal Tort Claims Act / Alaskan Law. The panel reversed the district court’s judgment in favor of the federal government in an action, brought pursuant to the Federal Tort Claims Act, alleging that federal healthcare providers negligently failed to monitor lithium levels on a patient. Plaintiffs alleged that none of the government’s evidence about the treating nurse practitioner conformed with an Alaska statute requiring specialized expert testimony in medical malpractice actions. The panel held that Alaska Statute § 09.20.185 was a state rule of “witness competency” that applied to this action under Federal Rules of Evidence 601, as well as part of Alaska’s substantive law, thereby making it applicable to Federal Tort Claims Act actions under 28 U.S.C. § 2674. The panel concluded that none of the government’s evidence regarding the nurse practitioner’s negligence complied with § 09.20.185. The panel concluded that the error could not have been harmless, and remanded for a new trial.
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