Bush v. U.S.

• Decision Date: 01 April 1983
• Docket Number: No. 81-6106,81-6106
• 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.
• Court: U.S. Court of Appeals — Eleventh Circuit

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.

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.

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 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 the United States, therefore, satisfies section 2675's requirement that "the claimant shall have first presented the claim to the appropriate Federal agency" if the claimant (1) gives the agency written notice of his or her claim sufficient to enable the agency to investigate and (2) places a value on his or her claim.

Mrs. Bush claimed damages in the amount of $300,000.00, thereby satisfying the second requirement. It is in evaluating the first criterion that we differ with the district court.

The district court held that the issue of negligent post-operative care was not properly presented to the V.A. and thus could not be litigated in federal court. We find, however, that the administrative claim was sufficient to put the government on notice that the post-operative treatment was part of Mrs. Bush's complaint. The date of the injury was listed as March 1, 1976 to May 6, 1976, the time period from the initial surgery to the date of death. Additionally, in the blank space on the claim form for "Description of Accident", Mrs. Bush wrote, "See Attached Hospital Summary, Autopsy Report, and Independent Medical Evaluation." The government admits that the medical report "makes reference to the 'post operative bleeding' complication and suggests that the V.A. physicians should have reoperated sooner than they did." Brief of Appellee at 8. In spite of this concession, the V.A. contends, and the district court agreed, that the post-operative care was eliminated as a theory for liability because the medical report concluded that the later treatment resulted in no harm to the decedent. The finding of no harm was but one of the many conflicting medical opinions that should have been weighed by the trier of fact. The claim may ultimately fail in a trial, but that does not deprive the court of jurisdiction to consider it. Our threshold inquiry is simply whether the claim was addressed administratively, and because it was, it can be asserted in the federal suit. ³ We therefore reverse the district court's finding of no jurisdiction over the post-operative care charge, and must remand for consideration of this issue. ⁴

In dealing with the lack of informed consent, the district court stated that "there was no submission of this claim to the V.A. nor was it stated in p 9 of the complaint as a basis for a cause of action." The record supports that determination. Neither the claim nor the attached medical evaluation contained any challenge to the consent form ⁵ signed by Mr. Bush prior to the surgery. There was no allegation that the doctors failed to disclose the risks involved in the medical procedures. ⁶ Thus, the V.A. was not properly apprised of its potential liability on this ground, and had no opportunity to investigate the claim. Because the appellant failed to comply with the statutory requirement of Sec. 2675 mandating presentation of the claim to the agency, we agree with the district court that it lacked jurisdiction over this specification of liability.

The appellant next challenges the district court's finding that she failed to prove by a preponderance of the evidence that the V.A. surgeons negligently performed unnecessary surgery on her deceased husband. The district court correctly noted that although the plaintiff-appellant bore the burden of proving the physicians' negligence, she failed to define the applicable standard of care. In a Federal Tort Claims Act action, "the United States' liability is to be...