dissenting:
I dissent because I believe the majority has erred in its treatment of appellant’s constitutional claims.
The quibron that caused Cara’s brain damage and resultant seizures and behavioral problems was prescribed for the treatment of her mother’s asthma. On the morning of March 30, 1973, when Cara swallowed the quibron, Jennie Landreth had left her unsupervised and had also left the quibron within her reach. Under New York law,1 Cara could have had an action for negligence against her mother. See Gelbman v. Gelbman, 23 N.Y.2d 434, 245 N.E.2d 192, 297 N.Y.S.2d 529 (1961) (eliminating defense of intrafamilial immunity for nonwillful torts).2 Moreover, in any *536malpractice action brought on Cara’s behalf, Jennie could have been subject to a counterclaim or to indemnification. See Goedkoop v. Ward Pavement Corp., 51 A.D.2d 542, 378 N.Y.S.2d 417 (1976) (action for injuries sustained by infant as result of blasting cap explosion; court allowed counterclaim against infant’s father for indemnification, alleging father negligently maintained blasting caps in basement).
Appellant argues that her parents had a conflict of interest because of their own potential liability and that, as a result, the statute of limitations on her FTCA claim could not begin to run until a neutral guardian ad litem was appointed for her. She contends that to let the statute run while the power to assert her claim lay solely with her parents deprives her of her due process and equal protection rights. These are important constitutional claims; yet the majority disposes of them unnecessarily and without meaningful consideration.
The majority relies exclusively on our holding in Pittman v. United States, 341 F.2d 739 (9th Cir.1965). Pittman involved an accident which occurred on a Navy installation. The victim, nine-year-old Mark, argued on constitutional grounds that minority should toll the FTCA statute of limitations; we rejected that argument. Id. at 741. Mark further argued that his father, a Navy lieutenant commander, had a conflict of interest “because he feared litigation involving his own branch of the service might prejudice his advancement,” and that he therefore delayed filing the action on Mark's behalf. Id. We disposed of that argument in two sentences, noting simply that “Congress just did not want stale [FTCA] claims lying around.” Id. at 741-42.
There is no indication in Pittman that Mark’s conflict of interest argument was based on constitutional grounds, or that we rejected it on those grounds. For that reason alone, the majority errs in relying on that case. But even if we read Pittman as a constitutional holding on the conflict of interest question, it would be distinguishable. Mark’s father allegedly delayed bringing suit because he feared prejudice to his naval career. There is a difference, however, between speculation about possible damage to career goals and direct financial liability. The former may be a practical reason for avoiding litigation, but not all practical concerns rise to the level of a conflict of interest. When the possibility of harm is as remote and tenuous as it was in the case of Mark’s father, it is not sufficiently serious to constitute a conflict— and, thus, to overcome the policy favoring prompt disposition of FTCA claims. Here, by contrast, Cara’s mother faced the prospect of direct financial liability were she to file a claim on Cara’s behalf. Thus the difficult constitutional issues Cara raises cannot be considered settled by Pittman.
The existence of a direct conflict of interest on her mother’s part may, as a matter of law, have precluded Cara from having a fair opportunity — the opportunity an adult in her circumstances would have — to file an action against the allegedly negligent medical personnel who treated her. Thus, Cara may have been deprived of her due process and equal protection rights. However, we need not, and should not, resolve these constitutional issues here. The Supreme Court has directed us to avoid deciding such questions before it is necessary to do so. Kolender v. Lawson, 461 U.S. 352, 361, 103 S.Ct. 1855, 1860, 75 L.Ed.2d 903 n. 10 (1983); Mills v. Rogers, 457 U.S. 291, 305, 102 S.Ct. 2442, 2451, 73 L.Ed.2d 16 (1982). In this case, there remain factual and legal questions, the answers to which may make it unnecessary for us to decide Cara’s conflict of interest claim. Specifically, the government argues that even if Jennie was potentially liable for Cara’s injury, Cara’s father Terry Landreth was not, and that he could have brought the action on Cara’s behalf. We cannot judge the validity of this argument without know*537ing whether, under New York law, Terry was financially liable for Jennie’s negligence; when Terry and Jennie were divorced; and whether Terry had the authority to file an action on behalf of Cara subsequent to the divorce. The majority proceeds to reject Cara’s constitutional claims without waiting for this information. Because it may be that Cara’s claims can be disposed of on narrower grounds, the majority’s decision violates an established tenet of judicial review. Cara’s action should be remanded to allow the district court to make the factual and legal determinations that would have permitted a resolution of the government’s non-constitutional argument.
Cara suffers from permanent brain damage which may be traceable to one or both of two causes: her mother’s negligence and the negligence of the Air Force medical personnel who treated her. Despite the potential liability of her parents, the majority relies on them to vindicate Cara’s claim and, in effect, holds Cara responsible for their failure to do so. As a consequence, Cara may be deprived of her due process and equal protection right — a result that cannot be justified by invoking Congress’ desire to resolve FTCA claims promptly. The majority not only decides Cara’s constitutional claims prematurely; it also brushes over the fundamental constitutional questions by relying on a case in which no cognizable conflict of interest existed, and a holding that was not based on constitutional grounds. I would remand Cara’s action for resolution of the factual and legal issues described above. I therefore respectfully dissent.
. Since the Landreths were residents of New York at the time of Cara’s injury, the allegedly negligent acts occurred in New York, and the medical personnel practiced in New York, New York law governs this case. Washington v. United States, 769 F.2d 1436, 1438 (9th Cir.1985).
. New York does not recognize a cause of action for negligent parental supervision. Holodook v. Spencer, 36 N.Y.2d 35, 324 N.E.2d 338, 364 N.Y. *536S.2d 859 (1974). However, an action against Cara’s mother alleging that she negligently left the medication within Cara’s reach would have been allowed. See Goedkoop v. Ward Pavement Corp., 51 A.D.2d 542, 378 N.Y.S.2d 417 (1976) (allowing action against injured infant's father for negligently maintaining explosives).