Bush v. U.S., No. 81-6106

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Before HENDERSON and CLARK, Circuit Judges, and JONES; ALBERT J. HENDERSON
• Citation: 703 F.2d 491
• Parties: Frances J. BUSH, as surviving spouse and personal representative of the Estate of Walton R. Bush, deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Docket Number: No. 81-6106
• Decision Date: 01 April 1983

Page 491

703 F.2d 491 Frances J. BUSH, as surviving spouse and personal
representative of the Estate of Walton R. Bush,
deceased, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee. No. 81-6106. United States Court of Appeals,
Eleventh Circuit. April 1, 1983.

Page 492

Charles E. Bergmann, Yado, Keel, Nelson, Casper, Bergmann & Newcomer, P.A., Tampa, Fla., for plaintiff-appellant.

Gary J. Takacs, Asst. U.S. Atty., Tampa, Fla., for defendant-appellee.

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

Page 493

Before HENDERSON and CLARK, Circuit Judges, and JONES, Senior Circuit judge.

ALBERT J. HENDERSON, Circuit Judge:

Mrs. Walton R. Bush, the plaintiff-appellant, filed this medical malpractice suit against the United States pursuant to the provisions of the Federal Tort Claims Act, 28 U.S.C. Sec. 2675 (1976), alleging that her husband's death resulted from the negligence of the medical staff at the Veteran's Administration (V.A.) Hospital in Tampa, Florida. The district court found that it lacked jurisdiction to consider some of her contentions, but held that the VA was not liable for medical malpractice in performing cancer surgery on the decedent. Mrs. Bush appeals from that adverse judgment. We affirm in part and reverse in part.

Walton Bush was admitted to Tampa's VA Hospital on March 1, 1976 with a three day history of lost appetite, nausea, jaundice and excretion of dark urine. Extensive tests were performed and, on March 17, 1976, he underwent exploratory surgery. The pre-operative diagnosis was obstructive jaundice, but some of the preliminary reports had also indicated that Bush might have pancreatic cancer.

During the eleven-hour operation, Dr. Juan Bolivar, the surgeon, removed a stone that was obstructing the common duct, possibly causing the jaundice and discomfort. Not satisfied that he had located the real source of Bush's ailment, Dr. Bolivar conducted further exploratory surgery, including seven biopsies. All tests for cancer on the biopsied tissue were negative. Nonetheless, the doctor decided to perform a Whipple Procedure because the head of Bush's pancreas felt enlarged and grainy upon palpation. A cholangiogram also revealed that the biliary ducts were filled and dilated, and that irregularities in the common duct "may represent [a] tumor of the biliary duct or head of the pancreas ..." Record at 152-53. The Whipple Procedure, a massive cancer operation, involved removal of the head of Bush's pancreas, forty percent of his stomach, his gall bladder, the common duct, and the duodenum. Record, Vol. 4 at 124, Appendix A. Immediately after the surgery, Bush hemorrhaged and went into shock.

Almost twenty-four hours elapsed before doctors re-operated on Bush to stop the internal bleeding. He suffered multiple complications, and on March 25, 1976, was again taken into surgery with a diagnosis of "status post Whipple operation, pulmonary insufficiency." Doctors performed a tracheostomy. Record at 110, Pre-Trial Stipulations. Bush's health continued to decline, and he remained hospitalized until he died on May 5, 1976. The death certificate listed the causes of death as pulmonary embolus, pancreatitis and intro-abdominal sepsis. The autopsy report indicates that death was caused by rupture of the spleen and subsequent shock due to hemorrhaging. Record at 110. The clinical evidence revealed that Bush did not have cancer.

Bush's surviving spouse filed an administrative claim with the Veterans Administration for wrongful death. It was denied by the agency. In her subsequent suit, brought under the Federal Tort Claims Act, she raised three bases of liability against the V.A.: 1) negligence in performing unnecessary cancer surgery, 2) failure to obtain the decedent's informed consent prior to the operation and 3) negligent post-operative care. The district court held that it lacked jurisdiction over the second and third issues because they were not initially presented in her administrative claim to the V.A., as required by 28 U.S.C. Sec. 2675(a) (1976).

Mrs. Bush urges on appeal that it was error for the district court to review the contents of her V.A. claim because it was not admitted into evidence during the trial. The contentions contained in the claim were brought to the attention of the district court as an attachment to the government's post-trial memorandum. The appellant further argues that there was no need to ascertain the precise issues raised in that claim because the parties stipulated to

Page 494

jurisdiction. ¹ Only those claims presented initially to the appropriate administrative agency are cognizable in a tort action against the United States. The claims procedure under 28 U.S.C. Sec. 2675(a) is jurisdictional. Rise v. United States, 630 F.2d 1068, 1071 (5th Cir.1981), citing Molinar v. United States, 515 F.2d 246 (5th Cir.1975).

The mere fact that the parties stipulated to jurisdiction does not automatically vest authority in the district court to adjudicate all the issues presented, for subject matter jurisdiction cannot be assumed by the court nor can it be waived by the parties. Fed.R.Civ.P. 12(h)(3); Jackson v. Seaboard Coast Line, 678 F.2d 992 (11th Cir.1982).

The district court concluded that it had no jurisdiction over the questions of lack of informed consent and negligent post-operative care. In so ruling, the court erroneously relied on the defendant's overly restrictive reading of Rise, i.e. that the administrative claim must specifically delineate each potential basis for relief. Actually, Rise expressly rejected the government's narrow view. If the claim "fairly apprises the government of the facts leading to the claimant's injury, new theories of why those facts constitute tortious conduct can be included in a federal court complaint." Rise at 1071. Neither this court nor the former Fifth Circuit Court of Appeals ² has ever held that a claimant must affirmatively plead each theory of liability in the administrative claim. In Adams v. United States, 615 F.2d 284, 289 (5th Cir.1980), the court stated:

An individual with a claim against...