Jul 23, 2008 - 04:06:17 CDT
Two women who say they were switched at birth have lost an attempt to collect damages from the hospital where they were born almost 62 years ago.A federal appeals court on Tuesday affirmed the dismissal of a lawsuit filed by Rowena Madrigal and Beverly Bowker, concluding the women waited too long to sue after they began investigating the possibility they were sent home with the wrong parents.
"Witnesses have died or retired, memories have faded, personnel records have been destroyed, and medical records are unavailable," said the ruling by the three-judge panel of the 8th U.S. Circuit Court of Appeals. "We see no legal basis to permit these claims to proceed at such a late date."
Attorneys in the case could not be reached immediately for comment. A federal civil claim normally must be filed within two years of the suspected harm, court documents say.
Madrigal and Bowker were born less than three hours apart on July 27, 1946, at the Standing Rock Hospital at Fort Yates, N.D., court filings say. The hospital is on the Standing Rock Sioux Indian Reservation and is run by the federal Indian Health Service.
Bowker said she had heard rumors since she was in elementary school that the couple who raised her, Virgil and Susie Slow Bowker, were not her biological parents. The elder Bowkers have died, court records say.
In a deposition Beverly Bowker gave in the case, she said she met Madrigal at a hospital in Rapid City, S.D., and was struck by her resemblance to Bowker's older brother.
In the early 1970s, Bowker said, she went to visit Michael Ryan and Grace Medicine, whom she suspected were her biological parents. At the time, they had been divorced for more than 20 years.
Medicine, who lived in Wakpala, S.D., when Bowker was born, had been sent home from the hospital with Madrigal. At the time, Ryan was in Chicago, pursuing a professional boxing career, and he was not present at the birth, he said in a deposition he gave in the case.
Bowker kept in touch with Ryan and Medicine, and they both attended her graduation from Black Hills State College in Spearfish, S.D., in 1974, she said.
"I guess I always had this nagging question," Bowker said in her deposition. "If something happened at the hospital ... I really wanted to know."
Ryan suggested that he and Bowker have their DNA tested. Two tests, performed in July 2002 and January 2004, both showed Ryan to be Bowker's father, and concluded he was not the father of Madrigal. Ryan said he had not sought a blood test earlier because his sister, a nurse, had questioned whether it would be useful.
Ryan filed a negligence claim against the federal government in September 2002, while Madrigal and Bowker filed their own claims in January 2004, court records say. Medicine has never filed a claim and has said she does not want to take part in the court case, records say.
Karen Klein, a U.S. magistrate in Fargo, dismissed the lawsuit in February 2007, ruling that the claims were filed too late. The appeals court's decision on Tuesday upheld that finding.
"This case presents a series of events in the 1970s which demonstrate plaintiffs had more than a hunch or suspicion that an injury had occurred," Klein wrote in her dismissal order. "They did not act with reasonable diligence in pursuing their rights. The period of limitations expired well before plaintiffs filed their administrative claims."
BJB wrote on Jul 23, 2008 10:55 PM:
Dewdrop wrote on Jul 23, 2008 5:25 PM:
So, here it goes again. Why are these women trying to sue after this many years? It is over and done with. They 'heard rumors' when they were in elementary school but, didn't do anything about it after they got old enough? Their parents didn't do anything about it? Why? If there were rumors, there had to be some indication of something not right at the time! So, it is too little too late! I say, get on with your life, you now have 'extended famlies'! "
Not surprised... wrote on Jul 23, 2008 4:29 PM:
Al Gee wrote on Jul 23, 2008 1:41 PM:
Cindyloo wrote on Jul 23, 2008 1:25 PM:
Horrible Mistake Terrible Lies wrote on Jul 23, 2008 11:51 AM:
There needs to be punishment, to encourage hospitals and hospital personnel to avoid such mistakes. "
TrekGirl wrote on Jul 23, 2008 9:49 AM:
The idea that one's rights can "expire" after a certain amount of time is very disturbing. "
Wow wrote on Jul 23, 2008 8:43 AM:
Tommy wrote on Jul 23, 2008 8:41 AM:
MamaMia wrote on Jul 23, 2008 8:26 AM:
Comments are reviewed for taste, tone and language before posting.
Some comments may be used in the Tribune's print edition.
We value and respect your privacy, but The Bismarck Tribune might
disclose certain information to governmental entities if served with subpoena.