Mellor v. United States, C 77-0351.

• Decision Date: 07 March 1978
• Docket Number: No. C 77-0351.,C 77-0351.
• Citation: 484 F. Supp. 641
• Parties: Leland N. MELLOR, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Utah

484 F. Supp. 641

Leland N. MELLOR, Plaintiff, v. UNITED STATES of America, Defendant.

No. C 77-0351.

United States District Court, D. Utah, C. D.

March 7, 1978.

W. Eugene Hansen, Salt Lake City, Utah, for plaintiff.

Ronald L. Rencher, U.S. Atty., Salt Lake City, Utah, for defendant.

ORDER DENYING DEFENDANT'S MOTION TO STRIKE

ALDON J. ANDERSON, District Judge.

On October 28, 1977, plaintiff filed a complaint containing two causes of action. The first cause of action is based upon the alleged negligence of the staff physicians and employees of the Long Beach Veterans Administration Hospital in the administering of medical treatment to the plaintiff. The second cause is founded upon the theory of informed consent and it is alleged that "defendant's staff physicians, agents and employees negligently failed to inform plaintiff of the material hazards and risks associated with the said medical care and treatment."

Prior to the institution of this action, plaintiff properly presented an administrative claim to the United States Veterans Administration pursuant to 28 U.S.C. § 2675(a) which requires a claimant to present his "claim" to the appropriate federal agency so that that agency is able to choose whether to act upon the claim and provide the relief requested. Plaintiff submitted his administrative claim on the Standard Form 95 and notified the agency of the "incident" allegedly giving rise to plaintiff's injury as required by the appropriate regulation. See 28 C.F.R. § 14.2(a) (1976). The pertinent instructions of Standard Form 95 require the claimant to state "in detail, all known facts and circumstances attending the damage, injury, or death identifying persons and property involved and the cause thereof." In response to these instructions plaintiff stated that he "was negligently placed on Kamamycin." Elsewhere in the form and in response to the instruction to state the "nature and extent of injury which forms the basis of this claim," plaintiff stated that he had received "negligent care and treatment by medical and hospital personnel resulting in damage to plaintiff."

On January 5, 1978, defendant filed a motion to strike from the complaint the second count based upon lack of informed consent. The ground urged in support of the motion is that although plaintiff has exhausted his administrative remedies with respect to the first count based on negligence, he has not done so with regard to the second count based upon lack of informed consent. Thus, it is defendant's position that the second cause of action is an additional "claim" never presented to the appropriate federal agency and therefore is not properly before this court. The court disagrees.

The position taken by defendant does not appear to be consistent with the requirements and purpose of the above statute and regulation, and is overly technical. Plaintiff has put defendant on notice of the "incident" out of which this action arises, has informed defendant of the "facts and circumstances" underlying the claim and has presented a "claim" for a sum certain to the appropriate federal agency. This is all that is required by the applicable law. The purpose of the administrative claim procedure is to...