United States District Court, W.D. Oklahoma
L. RUSSELL, UNITED STATES DISTRICT JUDGE
the Court is the Motion to Dismiss (Doc. No. 20) filed by
Defendant, the United States of America. Therein Defendant
asserts that Plaintiff cannot proceed on certain of his
claims related to the alleged medical malpractice at the
Oklahoma City VA Hospital, because Plaintiff failed to
exhaust his administrative remedies as required by the
Federal Tort Claims Act (“FTCA”). Plaintiff
contends that his “Claim for Damage, Injury, or
Death” (SF-95) was sufficient to apprise the Government
as to the basis of his claims, and that dismissal is
therefore improper. Having considered the parties'
submissions, the Court finds as follows.
Complaint alleges the following:
On or about the 27th of November 2015, Plaintiff
presented to defendant for his medical care and treatment,
specifically to address redness, swelling and pain in his
right ankle. Defendant's employees, acting within the
scope of their employment, failed to diagnose a bacterial
infection instead treating for gout with one or more
medications which exacerbated the untreated infection.
Defendants (sic) negligence includes failing to follow up or
communicate the importance of returning upon any change in
his condition, unreasonable and unnecessary delay in
treating, and failure to manage the treatment of his
infection and diabetes related ulcer. Defendant and
Defendant's employees have a duty to provide medical
treatment in accordance with the applicable standard of care
for such procedures and for which a duty is ow[ ]ed. In
operating the Veterans Administration Hospital, Defendant
owed a duty to Plaintiff to hire, train and supervise
personnel in order to provide reasonable medical care to him
at all times. As a direct result of Defendant's
negligence, Plaintiff's condition turned to the worse to
such an extent he later had no choice but to undergo surgical
amputation of his right foot and lower leg in addition to
other severe, permanent injuries and damages.
¶¶ 9-14 (paragraph numbers omitted). Plaintiff
seeks relief pursuant to the FTCA, 28 U.S.C. § 2675(a),
which required that he first comply with certain procedural
requirements necessary for waiver of the federal
government's sovereign immunity.
FTCA constitutes a limited waiver of the federal
government's sovereign immunity from private suit.
Trentadue v. United States, 397 F.3d 840, 852 (10th
Cir. 2005). A plaintiff who sues under the FTCA must comply
with the statute's notice requirements, which are
jurisdictional, cannot be waived, and must be strictly
construed. Id. (citation omitted). “The
jurisdictional statute, 28 U.S.C. § 2675(a), requires
that claims for damages against the government [first] be
presented to the appropriate federal agency by filing (1) a
written statement sufficiently describing the injury to
enable the agency to begin its own investigation, and (2) a
sum certain damages claim.” Id. (citations
omitted). The purpose of the notice requirement is to
“‘allow the agency to expedite the claims
procedure and avoid unnecessary litigation by providing a
relatively informal nonjudicial resolution of the
claim.'” Id. (quoting Mellor v. United
States, 484 F.Supp. 641, 642 (D. Utah 1978)). “A
claim is properly presented to an agency only if the language
of the claim ‘serves due notice that the agency should
investigate the possibility of particular (potentially
tortious) conduct.'” Barnes v. United
States, 707 Fed.Appx. 512, 516 (10th Cir. 2017)
(quoting Staggs v. United States, 425 F.3d 881, 884
(10th Cir. 2005).
Plaintiff's FTCA claim form stated the following as the
“Basis of Claim Agents of VA Hospital in Oklahoma City,
OK diagnosed claimant's diabetic ulcer as gout and
discharged him from the Emergency Department. Claimant
subsequently had below knee amputation.
the form requested the nature and extent of each injury,
Claimant had below knee amputation on December 11, 2015 as a
result of agents of VA Hospital's negligence in failing
to properly diagnose Claimant's diabetic ulcer on
November 27, 2015.
Doc. No. 1-1. Defendant concedes Plaintiff's claim
was sufficient to apprise the Government of his first claim,
that he was misdiagnosed by the VA on November 27, 2015.
United States contends, however, that his remaining theories
of liability were not sufficiently alleged in his Claim for
Damage, Injury or Death, except to the extent Plaintiff
relies on that same date to support his contentions that
Defendant delayed his treatment.
Court first finds that Plaintiff's negligence claims are
limited to the alleged negligent diagnosis and treatment on
November 27, 2015. See Barnes v. United States, 17
Fed.Appx. 184, 187-88 (10th Cir. 2005) (limiting
claims for negligent medical care of an inmate to the dates
specifically identified in his FTCA claim). Additionally,
Plaintiff failed to exhaust any claim related to the alleged
negligent hiring, training, or supervision of the medical
personnel that treated him on November 27, 2015. Because Mr.
Wilson's administrative claim “included no mention
of any possibility that [his] injuries were caused by
negligent training and supervision, ” Barnes,
707 Fed.Appx. at 516, he cannot rely on these theories in
support of the instant action. See also Lopez v. United
States, 823 F.3d 970, 976-77 (10th Cir. 2016)
(“Nothing in Lopez's administrative claim
provided the government with notice that it needed to
investigate whether the VA Hospital was negligent in
credentialing and privileging Kindt.”).
notes that the United States requested and conducted a
voluntary interview with Plaintiff prior to denying his
administrative claim and argues, without citation to any
authority, that this interview gave the United States the
opportunity to discover the full breadth of his
administrative claim. The Court is without any information
regarding what transpired during the interview, and Plaintiff
points to no law that would permit him to expand the nature
of his administrative claim in the manner he suggests.
Accordingly, the Court rejects Plaintiffs attempt to do so.
reasons set forth herein, Defendant's Partial Motion for
Dismissal is GRANTED in that the Court lacks jurisdiction
over any claim not related to the alleged misdiagnosis,
mistreatment and delay of treatment on ...