THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Leeruw v. FSM ,
4 FSM Intrm. 350 (Yap 1990)

[4 FSM Intrm. 350]

The ESTATE OF ESTHER LEERUW,
Represented by Ruth Laaken,
the Decedent's Mother,
Plaintiffs,

vs.

FSM GOVERNMENT,
DASUO HARRY and WILTON MACKWELUNG,
Defendants.

CIVIL ACTION NO. 1986-3016

OPINION AND ORDER

Before Edward C. King
Chief Justice
November 28, 1990

APPEARANCES:
For the Plaintiffs:          Mariano W. Carlos, Esq.
                                       Attorney-at-Law
                                       P.O. Box 91
                                       Colonia, Yap FM  96943

For the Defendants:     David Webster, Esq.
                                       Chief, Division of Litigation
                                       Federated States of Micronesia
                                       P.O. Box PS-105
                                       Palikir, Pohnpei FM  96941

*    *    *    *

[4 FSM Intrm. 351]

HEADNOTES
Conflict of Laws
     The FSM Supreme Court should apply FSM law to determine a claim brought in an FSM court pursuant to FSM statutory authorization by an FSM citizen asserting that FSM officials failed to fulfill the commitments of the FSM national government, and this is so even when key events at issue happened outside of the FSM.  Leeruw v. FSM, 4 FSM Intrm. 350, 357 (Yap 1990).

Torts - Negligence
     One person may be liable to another if the first negligently violates a duty owed to the other and thereby causes the other to suffer injury or loss.  Leeruw v. FSM, 4 FSM Intrm. 350, 357 (Yap 1990).

Torts - Negligence
     A volunteer who gratuitously offers to provide service or assistance to another, and causes that other to rely upon the offer rather than to seek alternative ways of responding to the need, owes a duty to perform the donated services with reasonable care.  Leeruw v. FSM, 4 FSM Intrm. 350, 357  (Yap 1990).

Torts - Negligence
     The FSM liaison officers generally owe a duty, established by statutory authorizations and administrative directives, to exercise reasonable care and diligence in providing timely transportation services to medically-referred citizens, and when the FSM liaison office personnel are aware of facts which reveal that a medically-referred citizen is in serious condition and that the timing of her travel for further medical attention is crucial, those officials have a duty to inquire how long the stabilization procedure will take, when it will be appropriate for the citizen to travel and what, if any flights are available for the injured person.  Leeruw v. FSM, 4 FSM Intrm. 350, 358 (Yap 1990).

Torts - Negligence
     What constitutes reasonable action or assistance must be determined in light of the surrounding circumstances.  Leeruw v. FSM, 4 FSM Intrm. 350, 358 (Yap 1990).

Torts - Negligence
     One who has acted negligently may be held liable only for the damages proximately caused by that negligence.  Leeruw v. FSM, 4 FSM Intrm. 350, 361  (Yap 1990).
 
Constitutional Law - Professional Services Clause;
Sovereign Immunity; Statutes - Construction
     Since the Constitution's Professional Services Clause is a promise that the national government will take every step "reasonable and necessary" to provide health care to its citizens, a court should not lightly accept a contention that 6 F.S.M.C. 702(4), which creates a $20,000 ceiling of governmental liability, shields the government against a claim that FSM

[4 FSM Intrm. 352]

government negligence prevented a person from receiving necessary health care.  Leeruw v. FSM, 4 FSM Intrm. 350, 362 (Yap 1990).

Statutes - Construction; Torts - Negligence
     A claim that the FSM liaison office did not fulfill its medical referral obligations as required by law falls within the embrace of 6 F.S.M.C. 702(2), which authorizes damage claims against the government for alleged improper administration of statutory laws or regulations.  Leeruw v. FSM, 4 FSM Intrm. 350, 363 (Yap 1990).

Torts - Negligence
     Where the national government, through the Guam liaison office, undertook to assist in transporting persons being medically referred to other locations and then failed to provide competent and reasonable assistance, the failure to fulfill the duty owed was a failure of the government liaison office and not of just one or two staff members of that office.  Leeruw v. FSM, 4 FSM Intrm. 350, 364 (Yap 1990).

Torts - Wrongful Death; Conflict of Law
     Although death, and all key events giving rise to the wrongful death claim, occurred in Guam, damages should be determined under FSM law when the claim is brought under 6 F.S.M.C. 503, the FSM wrongful death statute.  Leeruw v. FSM, 4 FSM Intrm. 350, 365 (Yap 1990).

Torts - Damages; Torts - Wrongful Death
     The term "pecuniary injury" as used in wrongful death statutes traditionally has been interpreted as including the probable support, services and other contributions that reasonably could have been expected by the beneficiaries had the decedent lived out her full life expectancy, all reduced to present worth.  Leeruw v. FSM, 4 FSM Intrm. 350, 365 (Yap 1990).

Custom and Tradition; Torts - Wrongful Death
     Since under Yapese custom a daughter in her adult years may be expected to provide certain services for her mother, the loss of such customary services should be considered in calculating the mother's pecuniary injury resulting from her daughter's death.  Leeruw v. FSM, 4 FSM Intrm. 350, 365 (Yap 1990).

Torts - Wrongful Death
     That a plaintiff parent of a decedent child can be awarded damages to include mental pain and suffering for the loss of such child is an exception to the general rule that wrongful death actions exclude compensation for pain and suffering, medical expenses, emotional distress or sorrow, or loss of companionship or consortium.  Leeruw v. FSM, 4 FSM Intrm. 350, 366 (Yap 1990).

Custom and Tradition; Torts - Wrongful Death
     Given that a 19-year old daughter is considered a child under Yapese custom, that the decedent was a 19-year old daughter who up to the time of her death continued to live with her parents in Yap and to perform those household

[4 FSM Intrm. 353]

chores expected under custom of young female persons within families in Yap, and that the parents were accompanying their daughter en route to obtain medical services when she died, the daughter was a child within the meaning of 6 F.S.M.C. 503.  Leeruw v. FSM, 4 FSM Intrm. 350, 366 (Yap 1990).

*    *    *    *

COURT'S OPINION
EDWARD C. KING, Chief Justice:
     In this wrongful death action, the Court is required to consider the possible liability of the FSM national government for actions and omissions of the government liaison office and its staff in Guam, on grounds that the office failed to arrange for transportation of an incapacitated FSM citizen from Guam to Honolulu for medical treatment.

     The Court finds that the office in question failed to meet the standards required by its own policies and that those failures were causally related to the decedent's death.  The Court therefore holds the national government legally liable to the decedent's personal representatives.

     Prior to commencement of the trial, plaintiffs executed an agreement settling their claims against Yap State and its officials, including a Yap employee assigned to the FSM liaison office who was intimately connected with the pertinent events.  This agreement released those persons from any further liability in connection with plaintiffs' claims in this case.

     In addition, the Court finds no sufficient evidence about the actions of the two FSM liaison officials, Wilton Mackwelung and Dasuo Harry, to justify a finding of liability against them.  Accordingly, the claims against the individual defendants are dismissed.

I.  Findings of Fact
     The parties have stipulated that in addition to the exhibits and testimony introduced during the trial of this case in Yap on October 23 and 24, 1990, the Court shall consider as evidence all of the depositions, answers to interrogatories, and responses to requests for admissions filed in this case. Based upon its review of this evidence, and the parties' stipulated facts and evidence referred to in the pretrial order of October 22, the Court makes the following findings of fact.

     Esther Leeruw, in 1984, a 19-year-old resident of Yap, had in her early childhood sustained heart valve damage as a result of rheumatic fever.  In 1976, at age 11, she had been flown to Hawaii for an operation in which she had received an artificial heart valve.  A heart valve of the kind she received typically requires replacement every eight to ten years.

[4 FSM Intrm. 354]

Esther Leeruw led a normal active life until about mid-1984, when she began to experience difficulty while exercising.  Her condition gradually worsened during the next several months.  Late in October, 1984, she was seen at Yap Hospital by a visiting pediatric cardiologist, Dr. Sutherland.  Concerned about her worsening condition, Dr. Sutherland recommended that she be referred off-island for replacement of her valve, which by then was not functioning properly.

     On or about November 12, 1984, Ms. Leeruw became very ill and was brought to the Yap Hospital emergency room suffering from chest pain and shortness of breath.  She also was vomiting.  She was treated and released, but was told to return the next day for evaluation.

     During the night she again became very ill and at about 9:00 a.m. on November 13, she was returned to the hospital by ambulance.  She was then admitted to the hospital under the care of Dr. Joseph Flear.  Dr. Flear's subsequently written notes indicate that Ms. Leeruw was in "critical condition," that "death was expected at any moment" and that the "prognosis" was "poor." Yet, it is obvious that Dr. Flear felt she had a significant chance to live, for a plan was conceived whereby she was first to be sent to Guam for "stabilization," and then moved on to Honolulu for replacement of the prosthetic mitral heart valve.

     On Thursday, November 15, 1984, Ms. Leeruw was flown to Guam as a stretcher patient, accompanied by her parents, Ruth Laaken and Didacus Gapach, and by a nurse.  Met in Guam by two persons from the FSM liaison office, Ms. Leeruw was immediately taken by ambulance from the airport to Guam Memorial Hospital, and placed under the care of Dr. John Taitano.

     When she arrived in Guam, on Thursday afternoon, the patient was in grave condition with congestive heart failure and pulmonary edema.  However, she responded to treatment and her condition soon stabilized.  Had the necessary travel arrangements been made, Ms. Leeruw would have been sent to Honolulu on Saturday, November 17, or Sunday, November 18.1

[4 FSM Intrm. 355]

     Unfortunately however, arrangements for Ms. Leeruw's flight to Honolulu did not proceed apace.  A liaison office staff person, examining Ms. Leeruw's travel documents, learned on November 15, immediately after the plane arrived, that Yap State had issued a round-trip ticket between Yap and Guam, but that there was no ticket for the flight on to Honolulu.  At approximately this same time, according to the deposition of Christina Gapthey, the nurse who accompanied Ms. Leeruw from Yap to Guam, the doctor was saying he wanted Ms. Leeruw to go to Honolulu on the first available flight.

     Inexplicably, no liaison official took any immediate action to obtain a ticket for Ms. Leeruw's flight on to Honolulu.  A special Air Micronesia flight from Yap to Guam on Saturday morning, November 17, presumably could have brought a ticket from Yap to Guam.  However, the Guam liaison office did not contact Yap officials about the need for a ticket to Honolulu until Sunday, November 18.  The other possibility for prompt action would have been for liaison officials to seek permission to draw on a fund held by the office, in the approximate amount of $8,000.00, to purchase a ticket immediately.  This also was not done, despite the urging of Dr. Taitano.
  
     Yap officials did authorize the purchase of the ticket on Sunday, November 18, but no reservation for the flight that night was made and Ms. Leeruw therefore was not able to go to Honolulu that night.

     The record also gives rise to the inference, and the Court finds, that liaison office personnel made no effort from November 15 through November 18 to ascertain the schedule of flights to Honolulu.  See, e.g., Rama Dep. at 21-27. Answers of liaison office personnel to interrogatories assert that liaison staff called both Aloha Airlines and Continental but were told that there were no flights on November 17 or 18.  Ans. to Int. No. 5 of plaintiffs' Third Set of Interrogatories to L. Rama.  There was also an assertion that reservations were made for Ms. Leeruw to fly to Honolulu on Aloha on Monday, November 19.  Id.  These statements cannot be given credence in light of the stipulation of the parties, and conclusive evidence, that Aloha and Continental had flights scheduled for Saturday, November 17 and Sunday, November 18, respectively, and that Aloha had no flight on November 19.  When Continental finally was contacted on Monday, November 19, the liaison office learned that only the "island-hopper" flight was going to Honolulu that day.  This flight would have been much less desirable and more dangerous for Ms. Leeruw than a direct flight because of the island-hopper's greater duration, and repeated landings and takeoffs.

[4 FSM Intrm. 356]

Unfortunately, no reservations were made for Ms. Leeruw and the window of opportunity closed.  She remained in the hospital in Guam, where her condition began to deteriorate rapidly on Tuesday morning, shortly after midnight.  She died at about 10:45 p.m. on Tuesday evening, November 20, still in the Guam Memorial Hospital.

II.  Legal Analysis
A.  Law To Be Applied
     There is at the outset a question as to where the Court should look to find the law applicable to this case.

     The government points to the sovereign immunity statute whereby the national government accepts limited liability for negligence of wrongful acts or omissions of national government employees "under circumstances where the National Government, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."  6 F.S.M.C. 702(4) (emphasis added).

     Based upon the emphasized language, and the fact that the pertinent activities all occurred on Guam, the government contends that the Court's decision as to liability must be determined by reference to the law of Guam.  As is explained in this opinion, the Court has concluded that 6 F.S.M.C. 702(4) does not apply in this case.  Nonetheless, since all of the critical events occurred in Guam the Court has considered the possibility that Guam law should be applied to determine liability.

     For purposes of liability in this case, the question of which law to apply seems to be of greater theoretical than practical significance.  The threshold issue is whether policies and regulation of the government amount to the assumption of a duty to provide transportation services.  This the Court regards to be a matter of FSM domestic law.

     Once that question is resolved, the remaining issues of liability are basic questions of tort law, especially the law of negligence.

     It has often been pointed out that within the field of tort law, and specifically as regards the law of negligence, there is a worldwide "sense of community" as to basic doctrine.  See Semens v. Continental Air Lines, Inc., 2 FSM Intrm. 131, 142 n.4 (Pon. 1985); T. Honor, Responsibility and Luck, 104 Law Q. Rev. 530, 532 (1988) ("The objective theory of negligence, which is orthodox in the leading systems of law, requires people to display the same competence as a hypothetical model person"); Note, General Principles of Law in International Commercial Arbitration, 101 Harv. L. Rev. 1816 (1988).

     In this case there has been no showing that Guam law as to the existence of liability for negligence is different from law within the Federated States of Micronesia.  Under these circumstances, even if it were thought that Guam law should be applied, the Court would decline to embark upon a unilateral

[4 FSM Intrm. 357]

quest for the minute details of the Guam law of negligence but instead would presume that Guam law concerning liability for negligence would be the same as law within the Federated States of Micronesia.

     Here however, it seems clear that the law of the Federated States of Micronesia should determine the outcome of the case.  The basic questions are of a quintessentially domestic nature requiring decisions as to the obligations of the FSM national government to its citizens.  It would be anomalous in such a case as this, brought in an FSM court, pursuant to FSM statutory authorization, by an FSM citizen asserting that FSM officials failed to fulfill the commitments of the FSM national government, for the Court to attempt to resolve the case through application of Guam law.

     As a subsequent portion of this opinion explains, the Court has determined that 6 F.S.M.C. 702(2) rather than section 702(4) authorizes this lawsuit against the national government.  That provision contemplates application of FSM law to test the legality of governmental conduct.  For these reasons, the court will determine liability on the basis of general doctrines of tort as they are applicable in the Federated States of Micronesia.

B.  Negligence
     The general principle of the law of negligence, "roughly stated" is that "one person may be liable...to another...if the first...negligently violates a duty owed to the other," and thereby causes the other to suffer injury or loss.  Semens (I), 2 FSM Intrm. at 142.  This formula requires the Court in this wrongful death action to ask whether the liaison office, and hence the national government, owed a duty to Ms. Leeruw, whether that duty was breached and, if so, whether the breach caused her death.

     1.  Duty - There can be no question that the liaison office owed a duty to Ms. Leeruw.  Acting pursuant to statutory authorizations and administrative directives, the national government has caused the FSM liaison offices to assume responsibility for providing medical referral assistance to FSM citizens.  In reliance upon this liaison office policy, Yap state officials sent Ms. Leeruw to Guam, thus rendering her dependent upon the assistance of the liaison office.

     Even a volunteer who gratuitously offers to provide service or assistance to another, and causes that other to rely upon the offer rather than to seek alternative ways of responding to the need, owes a duty to perform the donated services with reasonable care.  See Amor v. Pohnpei, 3 FSM Intrm. 519, 530 (Pon. 1988); W. Keeton D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on Torts 56 (5th ed. 1984).  The Court concludes therefore that under national government policies in effect at that time, the liaison offices generally owed a duty to medically referred citizens, and the Guam office specifically owed a duty to Ms. Leeruw, to exercise reasonable care and diligence in providing timely transportation services.

     2.  Violation - We must next determine whether that duty was violated.  Courts within the Federated States of Micronesia are in agreement that what

[4 FSM Intrm. 358]

constitutes reasonable action or assistance must be determined in light of the surrounding circumstances.  Amor v. Pohnpei, 3 FSM Intrm. 519 (Pon. 1988); Koike v. Ponape Rock Products, Inc. (I), 3 FSM Intrm. 57, 62 (Pon. S. Ct. Tr. 1988); Suka v. Truk, 4 FSM Intrm. 123, 129 (Chk. S. Ct. Tr. 1989); Asan v. Truk, 4 FSM Intrm. 51, 55 (Chk. S. Ct. 1989).

     It is apparent that the liaison office staff members were concerned about Ms. Leeruw's well being, and wanted to help her and her family.  Notes in the hospital records, and testimony, indicate that liaison staff members, particularly Louis Rama, visited the hospital every day and on several occasions called the hospital to discuss Ms. Leeruw's situation with hospital staff.

     Yet, whether because of lack of training or direction or for other reasons, the liaison office personnel involved in this matter failed to take the steps reasonably necessary to assure that Ms. Leeruw would be transferred to Hawaii at the time consistent with her medical needs.  The office's failures took several forms:

     a.  Failure to inquire - Liaison office personnel had been told that Ms. Leeruw was being sent to Guam for "stabilization" prior to being sent on to Honolulu for the heart valve replacement operation.  When they met her at the airport, she was on a stretcher, wearing an oxygen mask.  Rama Dep., 15. These facts, taken together, were sufficient to reveal to the liaison staff that Ms. Leeruw's condition was serious and that the timing of her travel to Honolulu might be crucial.

     This information placed upon the liaison officials a duty to inquire of medical personnel how long the stabilization procedures would take.  Obviously, this information was crucial to enable liaison personnel to determine what arrangements were to be made for the travel to Honolulu.  The urgency of obtaining the information immediately was compounded by the knowledge that no plane ticket had come from Yap for the travel to Honolulu.

     Yet it does not appear that the liaison staff made any inquiry as to how long it might take for Ms. Leeruw's condition to become "stabilized," or as to the appropriate timing of her travel to Honolulu.  The office seems instead simply to have awaited contact, and further instructions, from Dr. Taitano.

     The office also failed to take immediate steps to obtain information concerning the schedule of flights for the next few days after Ms. Leeruw's arrival in Guam.
 
      As Dr. Taitano said in his deposition, the responsible persons were "sitting on a bag of dynamite in a case like this, especially someone so young and someone salvageable."  Taitano Dep. at 18, lines 20-23.  Plainly, it was the urgent task of the liaison office immediately to ascertain the flight schedules of Aloha Airlines and Continental, the only airlines then flying between Guam and Honolulu.  Had this been done, liaison staff would have learned that Continental had direct flights scheduled, from Guam to Honolulu, for the evenings of Friday, November 16 and Sunday, November 18, and that

[4 FSM Intrm. 359]

Aloha had direct flights set for Saturday, November 17 and Tuesday, November 20.  Most importantly, they would have learned that Monday, November 19, would be the only day within the cluster during which there would be no direct flight, but only the Continental "island-hopper," from Guam to Honolulu.

     b.  Failure to convey information - As corollaries to these failures to obtain information, the liaison office also failed to convey crucial information to others in timely fashion.  Each such failure reduced the possibility that Ms. Leeruw's journey to Hawaii could be completed.

     Although liaison staff knew on November 15 that Yap State had not provided ticketing for the travel from Guam to Honolulu, no effort was made to tell Yap officials about the missing ticket until November 18, whereupon Yap provided immediate authorization to acquire the ticket.  In the meantime, the opportunity to have the ticket sent on the special flight from Yap to Guam on Saturday, November 17, had been lost.  The liaison office failed to alert airline officials of the emergency, thereby reducing still further the possibility that transportation would be provided to Ms. Leeruw during that brief time when it could be useful to her.  Tentative reservations surely could and should have been made for both November 17 and 18 so that she could travel to Honolulu on either of those days if her condition was then stabilized, as we now know it was.

     Hospital officials were not advised that there would be no direct Guam-to-Honolulu flight on Monday, November 19 and therefore made no special effort to have Ms. Leeruw on board the November 17 or 18 flights.

     c.  Failure to serve as liaison - An active liaison effort was required.  There was an urgent need for communication and coordination among Yap and national government officials, hospital personnel and the airlines.  This kind of communication and coordination, the very essence of liaison work, was crucial to the medical care of Ms. Leeruw.  Ms. Leeruw and her family were entitled to, and did, rely on the liaison office to carry out its communication and coordination responsibilities in reasonable and competent fashion.  The office's failure to do so was a breach of the duties it owed to Ms. Leeruw.2

[4 FSM Intrm. 360]

     3.  Foreseeability - There is no difficulty here in concluding that liaison officials knew or should have known that if they failed to arrange for timely transportation of Ms. Leeruw to Hawaii this might lead to her death.

     It is true, as counsel for the government argues, that the hospital records and Taitano deposition, read alone, do not convey a pressing sense of urgency on the part of hospital officials to have Ms. Leeruw transported to Honolulu. However, these documents do not stand alone in the record, and other items confirm that the nature of the emergency was understood by medical personnel and conveyed to liaison officials.  Mr. Rama acknowledges that Dr. Taitano called him on November 17 asking that the necessary ticketing be purchased. During that conversation, Dr. Taitano overrode Mr. Rama's suggestion that they would wait for a ticket to come from Yap, instead insisting that the liaison office itself purchase a ticket immediately.  The conversation ended with Dr. Taitano asking Mr. Rama to get a ticket and requesting him to call Dr. Taitano back as soon as that had been accomplished.  These are not the requests of a placid, relaxed person, but instead must have conveyed to Mr. Rama Dr. Taitano's sense of urgency.  Finally, any suggestion that liaison officials were unaware that this was a medical emergency cannot be reconciled with Mr. Rama's statement that he told airline officials that Ms. Leeruw was a "very sick stretcher patient that must go to Honolulu on November 17 or 18."  No. 8, Plaintiffs' Third Interrogs. to L. Rama.

     Moreover, liaison officers must be expected to realize that people would not be flown thousands of miles for medical purposes unless there are quite substantial medical reasons for doing so.  This understanding, imputed to the office and its staff as a matter of law, is enough to alert the office to the fact that the timing of transportation might be crucial for any patient.  To carry out the liaison and transportation roles properly, liaison staff must acquaint themselves with the nature of the patient's physical condition insofar as that is known to, and reasonably available from, medical personnel.

     In this case, the office knew, or should have known, that there was an urgent need for an operation to replace Ms. Leeruw's mitral heart valve, that

[4 FSM Intrm. 361]

this operation could not be performed in Guam but that her condition was such that, despite the pressing need for the operation, she had to stay in Guam briefly, so that her condition could be stabilized to enable her to withstand the flight to Honolulu.  With these facts in mind, the liaison staff should have foreseen that if they did not properly carry out their duties concerning transportation of Ms. Leeruw, this might cause her death.

     4.  Causation - One who has acted negligently may be held liable only for the damages proximately caused by the  negligence.  Amor v. Panuelo, 3 FSM Intrm. at 534-36.  The question here then is whether the defendants' failures actually affected  Ms. Leeruw's treatment and travel plans, and her possibilities of survival.  In other words, if the liaison officials had carried out their duties properly, would Ms. Leeruw have been sent to Hawaii earlier so that the valve operation could have been carried out while she remained in stable condition, and would she have then survived?

     The Court has already concluded, in its findings of fact, that Ms. Leeruw would have been sent to Honolulu on November 17 or 18 if liaison officials had fulfilled their responsibilities.  In retrospect, it is clear, and the government does not dispute, that Ms. Leeruw's condition was most stable on November 17 and 18, and that she should have been aboard a flight to Honolulu on one of those dates. Dr. Taitano testified that if Ms. Leeruw had been sent to Honolulu in timely fashion, she would have had a "darn good chance" of surviving.  Taitano Dep. at 14.

     The Court finds that if the liaison office had properly fulfilled its duties, Ms. Leeruw would have been sent to Honolulu on or before November 18, and, more likely than not, would have survived the operation, thereafter to live a normal life. See Taitano Dep. 20.

C.  Defenses
     The government raises several arguments which it contends either limit government liability in this case, or bar it altogether.

     1.  Limited waiver of sovereign immunity - The national government asserts that as a sovereign government it is immune from claims of its citizens against it except to the extent that immunity is waived.  Both parties agree that the applicable statute is 6 F.S.M.C. 702(4), which authorizes the following kinds of actions against the Federated States of Micronesia:

     Claims for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of an employee of the National Government while acting within the scope of his office or employment, under circumstances where the National Government, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.  Recovery on an individual claim as set out in this subsection shall not exceed $20,000.00.

[4 FSM Intrm. 362]

     The Court cannot accept the shared view of both counsel that 6 F.S.M.C. 702(4), with its limitation of liability to $20,000 on an individual claim, is the proper provision in this case.  The Court's reluctance is prompted by two factors.

     The first is a matter of constitutional law, as it bears upon statutory interpretation.  In the Professional Services Clause of the Constitution, the national government recognizes the "right of the people" to "health care" and pledges that it "shall take every step reasonable and necessary" to provide such service.  FSM Const. art. XIII, 1.  The clause surely demands consideration in a case such as this where plaintiffs claim, in essence, that the national government did not take the "reasonable and necessary" steps for Ms. Leeruw's medical referral and that she was thereby deprived of her "right...to...health care."  For the government to respond to this claim pertaining to health care with an assertion of limited liability, based upon an underlying assumption that sovereign immunity is available against such a claim, seems profoundly inconsistent with the promise of the Professional Services Clause.

     Put another way, there is a serious question as to whether the Constitution's Professional Services Clause is a governmental waiver of sovereign immunity as to claims pertaining to the kinds of professional services mentioned in the clause.  If so, an attempt by the government to limit its liability for claims concerning services of the kind identified in the Professional Services Clause presumably would be unconstitutional.

     Courts should not readily embrace an interpretation of a statute which would pose serious questions as to the statute's constitutionality.  Carlos v. FSM, 4 FSM Intrm. 17, 30 (App. 1989) (interpreting the Foreign Investment Act as inapplicable to attorneys in order to avoid potential conflict between that Act and the Professional Services Clause).  Thus, we should not here assume that Congress was attempting to establish a limit on governmental liability for claims related to the kinds of services described in the Professional Services Clause, but instead whether there is another provision which might be applied to claims pertaining to health care and the other professional services named in the clause.

     The second troubling factor contributing to the Court's reluctance to accept the parties' assumption that 6 F.S.M.C. 702(4) should be applied in this case is the sheer difficulty in applying that section to this case.  This difficulty has three aspects.  First, section 702(4) bases governmental liability upon whether the alleged injury was "caused by the negligent or wrongful act or omission of an employee of the National Government."  The claim of the plaintiffs here, that the Government failed to provide promised services, is one which calls for assessment of the efforts of the office, as measured against its responsibilities, rather than of the acts or omissions of individual staff persons.

[4 FSM Intrm. 363]

     Second, 6 F.S.M.C. 702(4) instructs the Court to ask whether a "private person" under similar circumstances would be held liable.  Here too, it is somewhat difficult to posit the liability of a private person, other than perhaps a travel agent, who might be responsible for arranging transportation services.  In most such cases, liability of the private person typically would hinge upon the nature of that person's undertaking, which in turn probably would arise from some kind of contractual arrangement.  In the context of this case, our search for the circumstances in which liability should be found causes us to look to governmental policies rather than to the duty of a hypothetical "private person."

     Third, as has already been discussed in this opinion, it seems singularly inappropriate to attempt to determine the liability of the FSM national government for alleged failure of the liaison office to meet its policy commitments, through reference to the "law of the place where the act or omission occurred," as section 702(4) would require.  At issue is a fundamental question concerning the relationship between the FSM national government and its citizens, and the Court would be loath to assume that the Congress intends that foreign law would control that decision.

     The Court recognizes that other courts have had to come to terms with these kinds of problems under statutes similar to 6 F.S.M.C. 702(4) in other jurisdictions.3  However those jurisdictions did not have available to them any statutory alternative better suited for such cases.  Plaintiffs' claim, that the liaison office did not fulfill its medical referral obligations, is in essence a challenge to that office's administration of national government policy.  As such the claim falls easily within the embrace of 6 F.S.M.C. 702(2), which authorizes damage claims against the government for "alleged improper administration of statutory laws...or any regulations."4

     The Court therefore concludes that these claims fall within the authorization of 6 F.S.M.C. 702(2) rather than that of 6 F.S.M.C. 702(4).

     2.  Status of involved employee - The national government also maintains

[4 FSM Intrm. 364]

that it should not be held liable because, it contends, one of the key staff persons responsible for assisting Ms. Leeruw was an employee of Yap State rather than the national government.  Louis Rama was originally selected and hired by Yap State.  Mr. Rama, who continued to be paid by Yap State rather than by the national government, was then assigned by the state to the FSM liaison office in Guam with instructions that he should give first priority to serving the people of Yap.

     In addition, the government argues that even if it would have been possible otherwise to have held the government liable for Mr. Rama's actions or inactions, that possibility has now been erased because plaintiffs have released Mr. Rama from liability as part of their settlement with Yap State.

     These assertions surely would give pause if the government's liability here were based upon a theory of respondeat superior.  However, as already explained, the government's liability is not based upon a conclusion that any particular person or employee wrongfully acted, or failed to act.  Instead, liability is grounded upon the fact that the national government, through the Guam liaison office, undertook to assist in transporting persons being medically referred to other locations, and then failed to provide competent and reasonable assistance.

     Once undertaken, this was a direct non-delegable duty of the national government.  The duty cannot be lifted from the shoulders of the government simply by assigning to some individual the actual task of providing the transportation services.  Thus, the failure to fulfill the duty was a failure of the government liaison office, not of just one or two staff persons.

     Similarly, because the liability of the government does not derive from specific wrongs of particular persons, the release of Louis Rama from liability has no impact upon the government's liability for failing to carry out its obligations.

III.  Damages
     The wrongful death provisions of the Code of the Federated States of Micronesia, 6 F.S.M.C. 501-03, are similar to those which appear in most jurisdictions which trace their legal origins to common law traditions.  Luda v. Maeda Road Constr. Co., 2 FSM Intrm. 107, 110 (Pon. 1985).  These FSM provisions are based upon the English model, commonly known as Lord Campbell's Act, and provide that a death action may be brought by the personal representative of decedent for the exclusive benefit of the designated
 
[4 FSM Intrm. 365]

persons, including such next of kin as the court may direct.  6 F.S.M.C. 502.

A.  Pecuniary Injury
     The FSM statute provides for "such damages, not exceeding the sum of $100,000.00, as [the court] may think proportioned to the pecuniary injury resulting from such death, to the persons, respectively, for whose benefit the action was brought...."  6 F.S.M.C. 503.5  The term, "pecuniary injury," as used in wrongful death statutes, traditionally has been interpreted as including the probable support, services and other contributions that reasonably could have been expected by the beneficiaries had the decedent lived out her full life expectancy, all reduced to present worth.  W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on Torts 948 (5th ed. 1984).

     Plaintiffs have submitted an economic analysis estimating "the economic loss resulting from the death of Ms. Esther Leeruw."6  p. 1.  Testimony at the trial indicated that Esther Leeruw carried out such household chores as gardening, laundry, cleaning the house, working in the taro patch, washing dishes and feeding pigs and chickens.  The economic analysis adds, and the Court accepts, that Ms. Leeruw also was helpful in the training and nurturance of other children in the family.  The economic analysis calculates that the value of these services are approximately $2,000.00 per year and that the value of the goods and services consumed by Ms. Leeruw were approximately $1,180 for a loss of some $820 for each of the years that Ms. Leeruw could have been expected to perform such chores.  The Court estimates that Ms. Leeruw could have been expected to have continued to do this work for the household for about five more years, and therefore finds an aggregate loss of $4100 in household services.

     Also, testimony at the trial revealed additional services expected as a matter of custom to be performed by Ms. Leeruw for her mother during later years, even after Ms. Leeruw reached adulthood.  The Court estimates these additional services, now lost to Ruth Laaken, as having a present value of $10,000.

[4 FSM Intrm. 366]

     Testimony also indicates that Ruth Laaken necessarily incurred substantial expenses in connection with the funeral of her daughter.  For this, the Court shall award $2,500.00.  Thus the Court finds total pecuniary injury of $16,600.

B.  Mental Pain and Suffering
     The nature of a wrongful death action is generally thought to exclude compensation for pain and suffering, medical expenses, emotional distress or sorrow, loss of companionship or consortium.  Thus, awards for the wrongful deaths of minors and young persons historically have been of low amounts.

     The statute applicable within the Federated States of Micronesia, however, contains special provision for awards where the decedent was a "child".  In such a case, the statute provides that the damages awardable to a plaintiff who is a parent shall include "mental pain and suffering for the loss of such child without regard to provable pecuniary damages."  6 F.S.M.C. 503.

     Testimony in this case reveals that Esther Leeruw was 19 years of age at the time of her death.  There is no indication that at the time of her death, she had any plans to begin living more independently, as an adult.  She continued to live with her parents and to perform those household chores expected by custom of young female persons within the family.  She was accompanied to Guam and would have been accompanied to Honolulu by her parents.

     All of these factors, bolstered by testimony that as a matter of custom a young person of Ms. Leeruw's age still is considered a child in Yap, persuade the Court that Esther Leeruw was a child within the meaning of 6 F.S.M.C. 503 at the time of her death and that the compensable damages here should include an award for the pain and suffering of her mother for the loss of Esther Leeruw.

     It is clear from the testimony of Ruth Laaken that she suffered great anguish in Guam as she witnessed the ordeal and shared with her daughter the realization that arrangements were not being made in time to enable Esther to receive the necessary medical care.  In addition, she also obviously suffered great anguish as a result of Esther Leeruw's death.  For this mental pain and suffering, the Court shall award $20,000.00.

IV.  Conclusion
     All claims against the individual defendants are dismissed.  Judgment shall be awarded for pecuniary injuries of Ruth Laaken, the mother of Esther Leeruw, and for her mental pain and suffering, against the FSM national government in the amount of $36,600.00.
  
     SO ORDERED the 28th day of November 1990.

*    *    *    *
 
Footnotes:
 
1.  This finding, a crucial one, is based upon several factors.  First, the answers of a liaison staff member, Louis Rama, to the third set of interrogatories served upon him acknowledge that Dr. Taitano called him on November 17, urging that immediate steps be taken to evacuate Ms. Leeruw.  Ans. Nos. 4 and 5.  In the deposition taken of him subsequently, Mr. Rama confirmed his recollection of that conversation during the November 17 call from Dr. Taitano.  See Rama Dep. at 23-24.  Mr. Rama also said in responses to interrogatories that he told airlines officials that Ms. Leeruw "must go" on November 17 or 18.  Interrog. No. 8, Third Interrogs. to L. Rama.
 
      In addition, hospital record notes on both November 17 and 18 indicate that Ms. Leeruw's condition had stabilized and that her medical caretakers were ready for her to go on to Honolulu on those days.  For example, a notation in the hospital record for November 17, shown as made at 6:35 a.m., speaks of "possible air evacuation to Queen's Hospital today or tomorrow if patient continues to be stable."  Ex. 4, page 66.  There is a similar entry for 6 a.m. on Sunday, November 18.  Id. at 56A.  See also the Taitano deposition, 11-12.
 
     Finally, Esther Leeruw's mother, Ruth Laaken, testified at the trial that Dr. Taitano told them on both November 17 and November 18 that they should be prepared to go to Honolulu on each of those days.
 
2.  Although the Court makes no finding to this effect, there are disturbing indications in the record that even after the liaison office did finally, on Monday, November 19, determine the flight schedule for the next few days, the staff person involved may have intentionally misled the medical officials by failing to tell them of one of the available flights.
 
    Although the record is now clear that an Aloha flight was scheduled for Tuesday, November 20, hospital record notes show that medical people were told that there would be no flight between Continental's November 19 island-hopper and Continental's November 21 direct flight.
 
    In answers to interrogatories and in his deposition, a liaison staff person has said that he was told by Ms. Leeruw's father that he did not want them to go on Aloha because he could use travel bank miles on Continental, and also that they should wait until Wednesday, November 21 to go, so that a relative of Ms. Leeruw could accompany them as nurse.
 
    Of course, liaison officials should be sympathetic and helpful to those who accompany patients, but for this accommodation to extend to the point of hiding important flight information from medical personnel would be an intolerable breach of duty to the patient.  The primary concern of the liaison officer providing transportation services for a medically-referred patient must be the medical needs of the patient, not the convenience, or even other legitimate wishes, of other family members.  To carry out such medically-related responsibilities, liaison officers must cooperate fully with medical personnel, providing the fullest possible information, and array of options, to them.
 
3.  Except for the $20,000 ceiling on potential liability for "any individual claim", 6 F.S.M.C. 702(4) is nearly identical with the comparable part of the former Trust Territory statute, 6 F.S.M.C. 601(1).  Both are progeny of the United States Federal Tort Claims Act, 28 U.S.C. 1346(b).
 
4.  The FSM liaison office, part of the FSM Department of External Affairs, is a creature of statute and regulation.  The Department of External Affairs is authorized by a statute providing for executive organization of the government.  2 F.S.M.C. 203 (1)(c).  The President then is authorized to establish the duties of the department by administrative directive.  2 F.S.M.C. 206; see also 10 F.S.M.C. 503(1)(d), as amended by Pub. L. No. 6-51 (6th Cong., 2nd Spec. Sess.)  Under this statutory authorization, the Office of the President has issued Presidential Order No. 1 assigning to the Department of External Affairs, Division of United States Relations, responsibility for supervising and directing the liaison offices.  On February 1, 1983, President Nakayama issued Administrative Directive No. 33, effective January 1, 1983, setting out policies concerning the various FSM liaison offices, including the one in Guam.  This policy directive contains the following broad statement of responsibility:  "The Liaison Officer is responsible to make sure that proper action is carried out on a timely basis by the appropriate employee on any assignment or task requested by the States or by the National Government."
 
5.  In light of the fact that Ms. Leeruw died in Guam and all of the key events occurred there, the Court has considered the possibility that the damages should be fixed by the Guam wrongful death statute.  However, this action is authorized by the FSM wrongful death statute.  It follows that the statute's provisions as to the measure of damages must control.
 
6.  Much of the loss pointed to in the analysis is beyond awardable damages in an action such as this one.  As already noted, damages for a wrongful death action do not extend to the entire loss of income resulting from the death of the decedent, but instead are limited to the pecuniary injury suffered by the beneficiaries for whom the action is brought.
 
    In this case, there were originally two beneficiaries, Esther's mother, Ruth Laaken, and her father, Didacus Gapach.  Subsequent to the filing of the lawsuit, Didacus Gapach died and the Court now sees no theory under which either he or his estate could receive an award for damages.  Thus, the sole beneficiary now is Esther Leeruw's mother, Ruth Laaken.
                                                                                                                                                                                                                                                                                                           
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