• Federal Tort Claims Act: Switched at Birth in '46, Too Late to Complain Now
  • October 29, 2008
  • Law Firm: Holland & Hart LLP - Denver Office
  • Rowena Madrigan and Beverly Bowker claimed that they were wrongfully switched at birth. They and Ms. Bowker's real father, Michael Ryan sued the United Stated under the Federal Tort Claims Act for negligence at Sanding Rock Hospital in Ft. Yates, North Dakota, in sending Ms. Bowker and Ms. Madrigan home with the wrong folks in 1946. The "girls" heard rumors throughout their lives that they had be switched at birth and when they met sometime before 1973 they noticed family resemblances in the other families. They discussed paternity blood tests in the 1970s but deferred allegedly because they were unreliable. The plaintiffs submitted to DNA tests in 2002 and again in 2004.The aggrieved parties filed administrative actions against the United States in 2003 and 2004. These were dismissed because of the running of the two year statute of limitations on federal tort claims.  In Ryan et al. v. United States of America No. 07-1994 (8th Cir., 2008), the Court of appeals affirmed despite claims by the Plaintiff that they didn't know for sure until the DNA testing.

    A mere suspicion, rumor, hint or hunch does not render a claim operative for the running of the statute of limitations, but there are duties of inquiry that surface when such things begin to circulate. Discussions of Paternity testing in the 1970s and DNA testing in the 1990s suggest the existence of reasonable avenues of inquiry. Even relatively unsophisticated people might consider speaking with an attorney or a physician or some other person who might assist in running the rumors to ground.  These switched babies are now in their 60s and while their lives might have been different, they might have not been better.  It does seem a little late to be asking the tax payers to compensate them for their alternative lives.