Kielwien v. U.S.

• Decision Date: 22 April 1976
• Docket Number: No. 74-1696,74-1696
• Citation: 540 F.2d 676
• Parties: Lizzie Ethel KIELWIEN, Appellee, v. UNITED STATES of America, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 676

540 F.2d 676

Lizzie Ethel KIELWIEN, Appellee, v. UNITED STATES of America, Appellant.

No. 74-1696.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 11, 1975.

Decided April 22, 1976.

Richard A. Olderman, Atty., Appellate Section, Civ. Div., U. S. Dept. of Justice, Washington, D. C. (Rex E. Lee, Asst. Atty. Gen., Mark W. Buyck, Jr., U. S. Atty., William Kanter, Atty., Appellate Section, Civ. Div., U. S. Dept. of Justice, Washington, D. C., on brief), for appellant.

Terrell L. Glenn, Columbia, S. C. (Richard L. Sullivan, Columbia, S. C., Moss, Carter, Branton & Bailey, Beaufort, S. C., Glenn, Porter & Sullivan, Columbia, S. C., on brief), for appellee.

Before BOREMAN, Senior Circuit Judge, RUSSELL and FIELD, Circuit Judges.

DONALD RUSSELL, Circuit Judge.

The issue in this appeal is whether the District Court, having found that the United States was liable under the Federal Tort Claims Act, ¹ was clearly erroneous in finding that there was an "intervening fact" permitting recovery by the plaintiff in excess of the amount fixed by her in her administrative claim as filed with the Government under the requirements of 28 U.S.C. § 2675(a) and (b). We conclude that such finding was clearly erroneous and accordingly remand the cause to the District Court with direction that the judgment awarded be corrected by limiting the recovery to the amount stated in plaintiff's claim as filed under § 2675(a), 28 U.S.C.

The plaintiff is the wife of a Marine Sergeant. At the time involved here, she lived near the Parris Island Marine base at Beaufort, South Carolina. On October 1, 1970, she was admitted to the United States Naval Hospital at Beaufort for the removal of a lump on her neck. Immediately after the operation, she noticed that she "couldn't get (her) left arm up" and that her left shoulder "seemed to be drooping." ^1a When she returned home after the operation, this condition continued; in fact, the "drooping" of her shoulder was such that she "couldn't keep (her) bra strap up." She visited the hospital a number of times to complain of these difficulties and to seek relief. It was suggested to her at first by the examining physician that her condition represented normal post-operative symptoms, which with time, should disappear. Because of the continuance of her problems, however, she was given further examinations in January, 1971, and was advised to take physical therapy. After about four or five treatments, the physical therapist sent her back to the surgeon who had operated on her and she was examined and advised that she had "either a nerve problem or a muscle problem." She was then referred to a neurologist, Dr. Feller, at the Charleston Naval Hospital for further examination.

On February 24, 1971, she was seen by Dr. Feller, who, at the completion of his examination, told her that her left spinal accessory nerve had been either severed or injured, presumably in the operation, and recommended exploratory surgery. She reported back to the surgeon in Beaufort who then referred her to Dr. Baird, a neurosurgeon at the Charleston Naval Hospital. After examination on March 30, 1971, Dr. Baird told her that he would not advise surgery, that she was "partially paralyzed," that such condition was permanent and that any attempt to repair the nerve would only mean she "could possibly come out more paralyzed." The same problems continued and she was referred to Dr. Herring, an orthopedist, who, on August 30, discussed with her the practical possibilities of an operation to reconstruct the back muscles, in the hope of "help(ing) with the movement of (her) arm and some of the pain." Dr. Herring brought a Dr. Barone, a private neurosurgeon, into consultation. Dr. Barone examined the plaintiff on September 7, 1971, after this examination, the plaintiff was told by Dr. Barone what Dr. Baird had previously told her, that "surgery on the nerve" was out of the question and when she saw Dr. Herring later, he told her that so far as any effort to improve her condition, through an operation to construct her back muscles, that operation would represent "major surgery," which he as an orthopedic surgeon had never attempted, and that there "was no guarantee at all that it would even be successful." The plaintiff testified that Dr. Barone told her at this time that she was "going to have to live with the pain." ² After receiving this advice, the plaintiff expressed no desire to have the muscle operation.

About this time the plaintiff engaged counsel to prosecute a claim against the defendant. Prior to this, all physicians, who had treated the plaintiff or had been consulted by her, had been either in the naval service or engaged by the Government to examine and treat the plaintiff. Her counsel, however, determined to have her examined by a private neurosurgeon in Charleston, Dr. Luther Martin. The plaintiff saw Dr. Martin on September 10, 1971. She gave him the same symptoms that she had previously given the other physicians. After examining her, Dr. Martin told her that her injuries were permanent but indicated that two operative procedures might be attempted. Neither, however, in his opinion would give relief. ³ The first would be an operation whereby the suturing of the severed nerve would be accomplished, an operation that he would not favor ⁴ and the other was the possible restructuring of the back muscles. Dr. Martin, however, said that he was "very skeptical about" this second operation, that he didn't think it "a very practical procedure" and that, in his opinion, there was "unlikelihood of success" in such an operation. Dr. Martin provided a written opinion to this effect to the plaintiff's counsel on September 23, 1971. In this letter, he repeated that he did not "know of any treatment which would benefit the patient other than the possible exploration of the left side of the neck with an attempt to suture the nerves" or the "possibility (of) * * * some type of reconstructive surgery to the left shoulder muscle." He expressed, however, "doubt that either of these procedures would be of very much benefit to the patient." ⁵

On the basis of Dr. Martin's report and the advice received by her from the other doctors who had seen her, the plaintiff filed her administrative claim with the Department of Navy, under date of October 1, 1971, for personal injury, fixing the amount of her claim as $25,000. In this claim she described her injury as arising out of an operation, in the course of which her "spinal accessory nerve was severed leaving drooping left shoulder and permanent disability to the left arm." ⁶ When no action was taken on her claim, plaintiff filed this action on August 24, 1972. In her complaint the plaintiff alleged that her injuries resulted from the negligence of the physicians who operated on the plaintiff and who owed the duty to treat her after the operation. She made no reference to the administrative claim she had filed other than an averment that she had exhausted administrative remedies under § 2675, 28 U.S.C.

After a trial, the District Court found as a fact (1) that the plaintiff's injuries were caused by the negligence of the Government's agents; ⁷ (2) that the plaintiff was not limited in her right to the maximum amount stated in her claim because of "intervening facts relating to the amount of the claim" and the extent and permanency of her injuries; ^7a and (3) that the plaintiff was entitled to judgment in the sum of $123,578.90. The District Court did find that the extent and permanency of plaintiff's injuries were not based "upon newly discovered evidence not reasonably discoverable at the time of presenting the claim" to the Government.

The Government has appealed. It does not challenge the finding of negligence; its appeal raises the single issue whether the District Court committed clear error in finding that the plaintiff both alleged and proved "intervening facts" justifying under § 2675(b), 28 U.S.C., a recovery by the plaintiff in excess of the maximum amount set forth in the claim she filed with the Government.

The right to sue the Government exists wholly by consent as expressed in § 2675, 28 U.S.C., which fixes the terms and conditions on which suit may be instituted. The first requirement is the filing of a claim. That requirement is jurisdictional and is not waivable. Provancial v. United States (8th Cir. 1972) 454 F.2d 72, 74; Driggers v. United States (D.S.C.1970) 309 F.Supp. 1377, 1379-80; Hlavac v. United States (D.Ill.1972) 356 F.Supp. 1274, 1276; Robinson v. United States Navy (E.D.Pa.1972) 342 F.Supp. 381, 382-3; Goodman v. United States (M.D.Fla.1971) 324 F.Supp. 167, 170, aff'd 455 F.2d 607. The statute further provides that no action shall be instituted "for any sum in excess of the amount of the claim presented to the federal agency." The statute, however, includes an escape clause with reference to this ad damnum limitation. It adds that a plaintiff may sue for a sum greater than that stated in his or her claim if "the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim." The burden of establishing such "newly discovered evidence" or "intervening fact," it has been held, rests on the claimant-plaintiff. Smith v. United States (D.Md.1965) 239 F.Supp. 152, 154. The District Court found, and there is no appeal from such finding, that the plaintiff, though failing to sustain the burden of establishing that the "increased amount" claimed by the plaintiff was "not reasonably discoverable at the time" she presented her claim, had sustained her burden in establishing "intervening facts relating to the amount of the claim," entitling her to judgment in excess of the amount stated in her claim. It is this latter finding which is challenged. We are of the opinion that the...