maria please the court your honor my name is andrew hoyle with all of our law firm we represent the daniel family if i may i'd like to reserve about four minutes for reporting during most of human history it is unfortunate  it was not uncommon for women to bleed to death after childbirth but by march nine twenty fourteen with the advances of modern science and modern health care this is something that should never ever happen when it does happen the health care providers involved can be called to account for their actions or inactions in medical malpractise cases straight to the point i hated the faeries doctrine when i was in forcing it is a federal u s attorney it makes no sense to me and i agree entirely with what the late antonin scalia said about it but how do we get around the supreme court has never reversed faeries they continue to support it and on top of that our atkinson decision or a panel of our court first said we're going to carve an exception to the to fairies and then the supreme court came down with embracing all three factors kind of test and they granted rehearing wouldn't we be required to either reverse the u s supreme court which we clearly cannot do or to reverse in extant decision of a panel of this court which we're not allowed to do your honor i am fully aware of the constraints this court under as specially a three judge panel i've looked at the law what we are proposing though is an argument that has not been made as far as i can tell in any of the published decisions which is it's the argument involving t made the decision that it hinged on an interpretation of parallel private i believe what the court said was if there was no governmental liability in a particular situation beforehand then there was no cause of action and therefore the f t c a did not create a new cause of action and if you look at page one forty one forty two of faeries you'll see where they lay that out in about eight or nine sentences and it is the decision you're describing pre or post johnson pre and i wasn't onsen change the analysis i don't think so because one is johnson simply said those rationales still appl three rationales the people we're talking about are it's actually it was military discipline which had not been one of the earlier rationales and farrah's johnson and this is what i want to get you johnson did not address medical malpractise and in fact the supreme argument i'll just you know i want to give you a chance to respond to this ordinarily we're bound by a holding of our court regardless of the reasoning whether there is no reasoning good reasoning bad reasoning or incomplete reasoning so to say well this part of the opinion left out a step or i can think of another argument that wasn't reached or or the rationale doesn't apply it to me is not helpful when we have atkinson on the books that applies fairness to the medical malpractise context your honor and i understand that i have looked at the law the circuit cases and i'm aware of what the holdings are and that is the argument they were coming with but we the court may indicate to the however that works in terms of the court communications the opinion that this is an issue which can and should be addressed because it has all really you're reading us is a way station you want  to read redo or to the supreme court i would put it that way but i had to come through there were i did i had to take all the train stops on the way to where i'm going and but i think that this court can address this issue even if it ultimate it's constrained not to go that route because let me be sure i understand too that you are not arguing that the fairness doctrine doesn't otherwise apply that is  with i do i want to say that's fair it should be narrowed and that this is ninth circuit has the power to change and you're not arguing that she wasn't an active duty service measure or just there was somehow a private hospital involved or anything like that right she was not contesting that she was on active duty she also was not engaged in any duty at the time she was simply a patient at the military hospital but she was a patient the military has in the case of anybody that's  victim of medical malpractise in a military hospital of the moment they're not performing any other military duty there a victim of medical malpractise in the hospital your honor that is why we're asking the court to change at least that aspect of farrah's in terms of the interpretation and what i'm suggesting in terms of what the supreme court has done is that the supreme court originally said we don't allow this because there are no suits against you know we don't have suits against the military that's a new cause of action they followed up with a dell a high case and that's nine hundred fifty three and i'm not sure it's in the brief but that said firefighters could not be sued a common law therefore you can't bring an f t c action involving situations but then in the indian toing case which was a five four decision involving white house owners operators who also there was no cause of action and the court changed its course it said you can bring this action against under the f t c eight even though you might not be able to sue them it common law you can bring it now and the dissent said what about fairies you know they threw up there they they were very upset about it and then eight what we're suggesting is the courts never decided whether the medical malpractise cases that were issued and fair is should be changed because of the sea change in the way of thinking about it it has never come up and so we're we're actually trying to bring that case up because what we get from the government in and they settle the long list of cases on page eight and nine and i think they may have left out a couple of i'm talking about how the it's nice circuit doesn't allow these department of defense itself distinguishes and let me just to the reference there is a reference to a study of military hospitals in our complaint it was done in two twenty thirteen they distinguish between combat and non combat care i mean that's the fundamental distinction not between military and civilian they are not going to treat a woman a service woman who is pregnant any differently than the civilian woman who is pregnant that and in this case that the government hasn't suggested there was a single military consideration which involved in her treatment which is unlike the mash kind of situation or sometimes the courts sort of course when talked about it have tried to say well what about field hospitals or things like that that may well not be that may well be part because if there are military considerations you know we're talking fair as you know is it work to make an overall attack but that's not what i'm talking about here there are distinctions which the department of defense itself makes because there has been not only a sea change in terms of the law but particularly a sea change in terms of the kind of people who are treated military hospitals in the military dependent care act wasn't passed in one thousand nine hundred fifty six was very unclear what kind of rights that dependence had but what happens now is these are full service hospitals they are doing all the work of any other kind of hospital and inthe and that makes a difference in how you would treat these cases i would also point out that among the fourteen exceptions to the f t c a waiver you have it doesn't apply outside the united states so if somebody is you know injured in iraq flown to germany for treatment or whatever it's not going to apply period also it doesn't apply to injuries occurring and out of combat knopper ations so you have those kinds of situations as well you're not going to get and you know frankly i think that the military would have a good argument in the terms of sense of if you do have some sort of situation where you do have a military consideration that may override there isn't anything like that in most cases and that can be handled and it's not a simple you know you should not be throwing out all of these nevertheless for the reasons the district court gave the f t c a case is clearly barred by the fairness doctrine the court's most recent medical malpractise cases the whip case decided in two thousand and eleven and the court in wit put it this way we've consistently held that claims for medical malpractise and military facilities are barred by fares and there's a list of other cases that came before which say the same thing this morning counsel says that you should ignore that because  the one of the bases for affairs as allegedly been eroded that is the private parallel person analogy that is actually not a new point justice scalia made the same argument in his johnson dissent and did not move the majority so it is in fact not a new argument and not a ground that you can ignore not only the circuses but also of course fairness itself which involved three consolidated cases two of which were medical malpractise cases and in the macalister case from this court this court said that the fact that fairs itself involved three men to medical malpractise cases was sufficient without more to reach the conclusion that fair is does bar those kinds of cases at consent of course also confirms this and was a prenatal care case so it is also very close to the facts of this case and in the sonnenberg case this court confirmed that the best way to apply the fair's doctrine is by comparing fact patterns from the cases and trying to find the most factually analogous cases so clearly atkinson which are the closest factually analogous cases finally i would suggest that that people in the situation of service members who are suffering medical malpractise and their families are not left without a remedy the remedies here to which the tenet daniel survivors are entitled are set out in the mall in their road declaration in the supplemental excerpts of record and just to briefly identify those she was entitled to one hundred thousand dollars death gratuity her children and husband get a dependency and indemnity compensation monthly payment the substantial children get free health care and military facilities up to age twenty one plus medical benefits and these kinds of benefits are provided without fault to provide quickly and if you look at the supplemental excerpts of record at page one hundred one documents when these benefits were paid and made available and they were made available quickly and without the necessity of having to prove fault which of course a civilian who's injured in a military hospital has to prove in order to get anything i believe that that about covers what i would want to because it was an f a a controller but what happened in the facts and what was determinative of the of the majority opinion other than it did affirm pharaoh's overall it did not go into any of the issues that i read but he did affirm fair as overall but what you had was a situation which it was unquestionably it was upright a pilot who's playing career is helicopter crash during a sea rescue and that was his job and he was doing his military job and the courts understandably are not going to get into specific military issues and that is what i think drives that case but the particular case what justice scalia was doing he went over the whole history but he was you know he noted the kind of argument that i make him but he wasn't making that argument he was just saying this should not be extended further but the argument wasn't this was not something that was pressed there and i don't think that the supreme court can still have the opportunity to say given what we've done does this really apply to me does fair is really apply to medical malpractise cases where there are no military considerations whatsoever where physicians and health care providers are for that matter subject to suit depending upon who their patient is and in terms of you know i know it's a difference when it's a service member but remember these the suits brought by civilians there there's suits from family members so if europe if europe service member and you on factor to the availability of alternative compensation system well in the cases that this court has has ruled that there is is a recovery like and schoenfeld is the one i'm thinking of is the guardrail case were the court allowed the procedure the claim yet the person got a benefit there is not been any case that said this is controlling and in fact this court has subsequent to johnson has said the third factor military discipline is still the most important only in akron soon to has the court said there is no military discipline but we're we're going to say well ok it's the benefits and it's the unique federal relationship but that that is not i don't think that that's sufficient any any collateral source like that can be taken care of after you determine the verdict because what the damages are are going to are going to vary from case to case we have a little girl who lost her mother never has never known or that's not something that's really reflected in that in that reward they've got this is something that we want to look at and sometimes those benefits may be sufficient sometimes they may be it may not be we have cases involving you know the circle genesis role where you have babies that are profoundly injured and you know there are there is you know that calls for a compensation from a court not from an insurance policy point on counsel exceeded your time thank you having me understand your position i think thank you very much appreciate that helpful arguments from both counsel