Rise v. U.S., No. 78-1082

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore GEE, TJOFLAT and ANDERSON; TJOFLAT
Citation630 F.2d 1068
Decision Date19 November 1980
Docket NumberNo. 78-1082
PartiesRichard RISE, Ind., etc., et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Third Party Plaintiff-Appellant, v. Floyd R. COOPER and South Fulton Hospital, Third-Party Defendants.

Page 1068

630 F.2d 1068
Richard RISE, Ind., etc., et al., Plaintiffs-Appellees,
v.
UNITED STATES of America, Defendant-Third Party Plaintiff-Appellant,
v.
Floyd R. COOPER and South Fulton Hospital, Third-Party Defendants.
No. 78-1082.
United States Court of Appeals,
Fifth Circuit.
Nov. 19, 1980.

Page 1069

Ronald R. Glancz, Susan A. Ehrlich, Atty., Appellate Sec., Civ. Div., Dept. of Justice, Washington, D. C., for defendant-third party plaintiff-appellant.

Henry Angel, Atlanta, Ga., for plaintiffs-appellees.

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

Before GEE, TJOFLAT and ANDERSON, Circuit Judges.

TJOFLAT, Circuit Judge:

This Federal Tort Claims Act case stems from the death of Johanna Rise on May 23, 1973. The district court granted summary judgment in favor of her surviving spouse, Richard Rise, and the Government appealed. Because we think the district judge inappropriately resolved certain factual issues on the motion for summary judgment, we reverse and remand the case for a trial on the merits.

I

The facts relevant to this case are simple. In late 1972, following a series of fainting spells, Mrs. Rise sought medical treatment. As the wife of a retired Army officer she was entitled to certain medical benefits under 10 U.S.C. §§ 1076, 1077 (amended 1978). On December 7, 1972, she was admitted to Fort McPherson Army Hospital in Atlanta, Georgia. Mrs. Rise was given a battery of diagnostic tests, but when she was discharged on January 5, 1973, no definitive diagnosis had been reached.

On May 4, 1973, Mrs. Rise collapsed at her job and was again admitted to Fort McPherson Hospital. This time, however, testing revealed internal bleeding and the attending Army physician, Dr. Robert Weed, felt he could not provide adequate treatment or diagnostic services and referred her to Dr. Arthur Koenig, a staff physician at South Fulton Hospital, a nearby

Page 1070

civilian facility. At South Fulton, Mrs. Rise was given a carotid arteriogram test, which indicated the presence of a carotid aneurysm. On May 21, 1973, a South Fulton surgeon attempted corrective surgery, and on May 23, 1973, Mrs. Rise died. Later that same year, her husband decided to seek relief under the Federal Tort Claims Act.

An action under the Federal Tort Claims Act is initiated by "present(ing) the claim to the appropriate Federal agency...." 28 U.S.C. § 2675 (1976). Mr. Rise complied with this requirement by filing a claim with the United States Army Claims Service on August 8, 1973. According to the claim, the negligence of Army physicians in failing to diagnose and treat Mrs. Rise in December 1972 and January 1973 caused her death, and, therefore, Mr. Rise was entitled to monetary compensation from the government.

After six months had elapsed without the Army offering to settle the claim, Rise brought suit in federal district court. The complaint alleged that the general negligence of Army physicians at Fort McPherson Hospital, and the specific negligence of the doctors who failed to diagnose and treat Mrs. Rise's condition between December 1972 and January 1973, proximately caused Mrs. Rise's death. The Government responded by denying these allegations, and by filing a third-party complaint against South Fulton Hospital and its staff surgeon who performed the aneurysm surgery.

Shortly after the Army filed the third-party action, Rise amended his complaint. The new complaint included as additional theories of liability that the Army's referral of Mrs. Rise to South Fulton Hospital and that its subsequent failure to supervise her treatment there were actionable negligence. Rise promptly moved for summary judgment on these new theories of liability. According to Rise, the pretrial deposition of the Government's expert witness showed that South Fulton Hospital was ill-equipped to perform the aneurysm surgery and, thus, that the Army's referral of Mrs. Rise to that facility was negligent. Moreover, Rise argued, evidence showing that the Army took no supervisory or advisory role in Mrs. Rise's treatment at South Fulton was factually uncontraverted, and constituted a clear breach of its duty to Mrs. Rise.

The Government responded to the motion by arguing that the court was without jurisdiction to consider Rise's new theories of liability because they were not presented to the Army Claims Service in his administrative complaint. In the alternative, the Government argued that the new theories failed to state a claim against the Army because (1) the United States could not be found liable for the actions of South Fulton Hospital, a third-party contractor; and (2) Dr. Weed's referral of Mrs. Rise to South Fulton Hospital was the exercise of a discretionary function, not actionable under the Federal Tort Claims Act. 28 U.S.C. § 2680(a) (1976).

The district court granted Rise's motion. Relying on a pre-trial deposition of the Army's expert witness, the court found that the Army had referred Mrs. Rise to a hospital lacking the equipment normally considered necessary for aneurysm surgery, and that after making the referral, took no responsibility for her continuing treatment. Since applicable Army regulations require the Army to retain jurisdiction over a patient referred to a civilian medical facility, the district court reasoned that the referral and the Army's complete failure to supervise Mrs. Rise's case made it "liable for the improper surgery performed on the patient at South Fulton Hospital." Record at 231.

The government now appeals, arguing that the district court erred in four ways: (1) by considering the theories of liability complained of in the amended complaint; (2) by holding the United States liable for its referral of Mrs. Rise to South Fulton Hospital, a third-party contractor; (3) by finding that the United States had a continuing duty to supervise Mrs. Rise's case after her referral to South Fulton; and (4) by holding the discretionary function defense unavailable. Moreover, the Government argues that even if plaintiff's new theories of liability were properly before the court, and

Page 1071

even if they stated a cause of action, the court erred in granting the motion for summary judgment because whether the referral to South Fulton and the failure to...

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99 practice notes
  • White v. Franklin, No. DC85-34-NB-O.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
    • May 27, 1986
    ...under 28 U.S.C. § 2675(a) (Supp.1986) prior to filing suit for money damages against the United States. See Rise v. United States, 630 F.2d 1068, 1071 (5th Cir.1981) (exhaustion of administrative remedies a jurisdictional prerequisite to tort suit for money damages against United States). T......
  • Alejandro Garcia De La Paz v. U.S. Custom & Border Prot. Officers Jason Coy & Mario Vega & the United States, CV. No. SA–12–CV–00957–DAE.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • June 21, 2013
    ...other than those specifically enumerated therein, those theories can properly be considered part of the claim.Rise v. United States, 630 F.2d 1068, 1071 (5th Cir.1980). Accordingly, as long as Plaintiff's administrative claim provided the government with enough information to conduct an inv......
  • Johnson by Johnson v. U.S., No. 939
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 8, 1986
    ...to the agency's knowledge, or lack of knowledge, of any prior sexual misconduct by its employee Ojeda. See Rise v. United States, 630 F.2d 1068 (5th Cir.1980) (administrative claim alleging negligent failure to diagnose and treat illness sufficient to maintain action for negligent referral ......
  • Beins v. U.S., No. 81-1978
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 7, 1982
    ...v. United States, 365 F.2d 844, 845-846 (3d Cir.1966) (examination by Veterans Administration medical officer); Rise v. United States, 630 F.2d 1068, 1072 (5th Cir.1980) (decision by Army physician to refer patient to private hospital); Underwood v. United States, 356 F.2d 92, 98 (5th Cir.1......
  • Request a trial to view additional results
99 cases
  • White v. Franklin, No. DC85-34-NB-O.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
    • May 27, 1986
    ...under 28 U.S.C. § 2675(a) (Supp.1986) prior to filing suit for money damages against the United States. See Rise v. United States, 630 F.2d 1068, 1071 (5th Cir.1981) (exhaustion of administrative remedies a jurisdictional prerequisite to tort suit for money damages against United States). T......
  • Alejandro Garcia De La Paz v. U.S. Custom & Border Prot. Officers Jason Coy & Mario Vega & the United States, CV. No. SA–12–CV–00957–DAE.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • June 21, 2013
    ...other than those specifically enumerated therein, those theories can properly be considered part of the claim.Rise v. United States, 630 F.2d 1068, 1071 (5th Cir.1980). Accordingly, as long as Plaintiff's administrative claim provided the government with enough information to conduct an inv......
  • Johnson by Johnson v. U.S., No. 939
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 8, 1986
    ...to the agency's knowledge, or lack of knowledge, of any prior sexual misconduct by its employee Ojeda. See Rise v. United States, 630 F.2d 1068 (5th Cir.1980) (administrative claim alleging negligent failure to diagnose and treat illness sufficient to maintain action for negligent referral ......
  • Beins v. U.S., No. 81-1978
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 7, 1982
    ...v. United States, 365 F.2d 844, 845-846 (3d Cir.1966) (examination by Veterans Administration medical officer); Rise v. United States, 630 F.2d 1068, 1072 (5th Cir.1980) (decision by Army physician to refer patient to private hospital); Underwood v. United States, 356 F.2d 92, 98 (5th Cir.1......
  • Request a trial to view additional results

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