Adams v. U.S., 79-1008

• Citation: 615 F.2d 284
• Decision Date: 09 April 1980
• Docket Number: No. 79-1008,79-1008
• Parties: Gary L. ADAMS et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. Summary Calendar. *
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 284

615 F.2d 284

Gary L. ADAMS et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 79-1008

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

April 9, 1980.

Louis K. Rosenbloum, Pensacola, Fla., for plaintiffs-appellants.

Thomas G. Banjanin, Asst. U.S. Atty., Pensacola, Fla., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before CHARLES CLARK, VANCE and SAM D. JOHNSON, Circuit Judges.

VANCE, Circuit Judge:

The Adams appeal the dismissal of their tort action brought under 28 U.S.C. §§ 1346(b), 2401(b), 2671-80 against the United States. The district court dismissed their suit because, in presenting their administrative claim, the Adams had not fully complied with the regulations governing the elements of a proper claim, 28 C.F.R. §§ 14.1-14.11, and, hence, had failed to satisfy the statutory prerequisite under 28 U.S.C. § 2675 to institution of a suit against the United States. We reverse and remand.

I.

Jason Lee Adams was born at Eglin Air Force Base on July 25, 1976. Within 24 hours of his birth, the Air Force arranged for the child to be sent to Sacred Heart Hospital in Pensacola, Florida, for special treatment and evaluation. The Air Force then had him returned for care to Eglin.

The test results disclosed that the child had cerebral palsy secondary to hypoxic encephalopathy with spastic quadriplegia and microcephaly. The evaluation indicated that the child's condition was caused by brain damage resulting from a lack of oxygen to the brain, and that the child's prognosis was very poor. It is unlikely that his condition will ever improve or that he will have a very meaningful life. Jason will always require total care.

Gary L. Adams and Deborah A. Adams filed a claim with the Air Force against the United States on behalf of themselves and their son Jason pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-80. They alleged that the Air Force physicians who delivered Jason and provided Mrs. Adams with prenatal care negligently caused Jason to suffer permanent brain damage. In accordance with 28 C.F.R. § 14.2 the Adams submitted their claim on a completed standard Form 95 to an Air Force claims officer at Eglin Air Force Base, Florida. Their claim, which alleged improper medical care by the Air Force, was filed on March 23, 1978, by their attorney, and was not answered within the six-month administrative review period.

The claims officer responded on March 31, requesting, under authority of 28 C.F.R. § 14.4(b), written reports by any attending physicians who were not government employees, itemized bills and expenses, a statement of future expenses and a signed medical authorization. The Adams' attorney wrote the claims officer on April 12, stating, "In my opinion, you have at your disposal all the necessary records to properly evaluate this claim." He added,

We will fully develop this claim with respect to the private physicians and the necessary future expenses, and when you have had an opportunity to fully investigate everything at your disposal, we will be more than happy to exchange information in full.

In an April 18 letter, the claims officer stated that the requested information was "necessary to evaluate this claim and (was) required by this agency." He added that Jason had been transferred to Sacred Heart without a diagnosis; the Air Force physicians had been unable to determine the cause of the child's problems. The claims officer also stated,

I assume that from your conversations with me you do not evaluate cases without having all the facts and also would not expect us to evaluate this case without having all the facts. In addition, your failure to cooperate and supply us with the necessary information could result in a denial of your claim on that basis and prejudice your rights to proceed in federal court.

On June 12, appellants replied, "I hope you understand that we are in no way refusing to cooperate with your office and will furnish to you all of the items requested in your earlier letters as soon as we have received them ourselves." The Adams' executed medical authorizations were forwarded to the claims officer on July 5.

The claims officer wrote on July 19, asking that x-rays picked up by Mrs. Adams be returned as soon as possible "in order for me to complete the investigation of this claim." Responding on July 24, the Adams offered to return the x-rays, if the Air Force would promise to return them within ten days after receipt. On July 26, the claims officer insisted on the return of the x-rays, emphasizing that they were crucial to the evaluation of the claim and that without them the claim's merits could not be determined. They were returned on August 15.

In an affidavit dated November 14, the Adams' attorney stated that prior to filing the administrative claim, he had discussed Jason's condition with Air Force pediatrician Dr. Harlan W. Sindell. He stated further that he was told that Dr. Sindell had the "benefit of the medical information" obtained by Sacred Heart. Dr. Sindell's affidavit denies this fact. The claims officer's affidavit states that he never received this information or damage information. In short, there is a factual controversy as to what information was available to Air Force physicians. The Adams' attorney contends that he read the claims officer's letters as narrowing his requests, whereas the claims officer contends that his requests were cumulative.

After more than six months had passed without the settlement of their claim, the Adams brought this action in federal district court. They alleged that Jason's severe and permanent disabilities resulted from the negligent prenatal and delivery care provided by Air Force physicians. The district court found that the Adams had failed to make a proper claim with the Air Force. The court held that, even if the Air Force had the information needed to process their claim, the Adams were obligated both to state that they had not incurred any medical expenses of which the Air Force was not informed and to provide the Air Force with information regarding necessary future medical expenses. On this basis, their action was dismissed. The court did not reach the statute of limitations issue raised by the United States.

II.

Title 28 U.S.C. § 2675(a) establishes that as a prerequisite to maintaining a suit against the United States under 28 U.S.C. § 1346(b) a plaintiff must present notice of his or her claim to the appropriate federal agency. Mack v. Alexander, 575 F.2d 488, 489 (5th Cir. 1978). Only after the claim has been denied or six months have passed may a plaintiff bring suit in federal court on the claim. 28 U.S.C. § 2675(a).

Under 28 U.S.C. § 2672, administrative agencies may settle claims presented to them. The Department of Justice promulgated 28 C.F.R. §§ 14.1-14.11 pursuant to section 2672. These regulations describe the settlement procedures to be followed by agencies and claimants.

The parties to this appeal dispute whether the Adams gave the Air Force sufficient notice to enable them to maintain this action. The United States argues that the Adams failed to provide the Air Force Claims Officer with all of the information that he requested as necessary to evaluate their claim. Specifically, the Adams failed to comply with the 28 C.F.R. § 14.4(b) ¹ requirement that claimants provide the Air Force with written reports by nongovernmental attending physicians, with itemized bills and expenses, and with a statement of expected future medical expenses. The United States asserts, therefore, that because, in presenting their administrative claim, the Adams did not comply with the regulations governing the elements of a proper claim, 28 C.F.R. §§ 14.1-14.11, the district court properly dismissed their action. ² The Adams contend that their failure to submit this information resulted from a mutual misunderstanding, which does not warrant dismissal of their suit, and that, in any event, the Air Force did not need the information to evaluate their claim because it already possessed the information.

The Air Force, therefore, basically argues that the Adams' failure to comply with 28 C.F.R. § 14.4(b) denies them the jurisdiction of a federal court. It is apparently of no consequence that the Air Force already possessed, or had ready access to, most of the information demanded, such as pertinent medical records and itemized bills or expenses. All relevant medical records were prepared either by the Air Force's own physicians or by the physicians at Sacred Heart Hospital, where the Air Force's doctors arranged for various tests to be run on Jason Adams. Likewise, the Air Force, which covered all expenses for the child's care, had access to itemized bills and expenses. The record does not indicate that the Adams' past medical expenses included any expense not covered by these bills. According to the Air Force, the inefficiency and inequity of demanding that a claimant produce information already in the Air Force's possession are immaterial. Section 14.2, it assumes, draws a line between an agency's claims officer and its personnel who allegedly negligently caused a particular injury. It is also apparently of no consequence that the remaining information sought by the Air Force was inherently speculative. Even when, as here, future medical expenses are exceedingly difficult to ascertain, the Air Force believes that it may condition federal court jurisdiction on the ability of claimants in a medical malpractice case to provide a definite statement of expected future medical expenses. In other words claimants may be required to prepare the government's case or to prove their cases to a government claims officer before trial.

III.

The argument of the Air Force fails for two reasons. First, it erroneously assumes that the notice requirements of 28 U.S.C. § 2675 must be read in...