Mettias v. United States of America

Filing 106

ORDER DENYING DEFENDANT'S MOTION TO DISMISS AS TO PLAINTIFFS' INFORMED CONSENT CLAIM re: 91 . Signed by JUDGE ALAN C KAY on 10/14/2014. [Written Order follows hearing held on 09/29/2014 on Motion to Dismiss. Minutes of hearing: doc no. 97 . (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
CHRISTINA METTIAS, Individually )
and as Next Friend of Her Minor )
)
Son, N.M.,
)
)
Plaintiffs,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)

Civ. No. 12-00527 ACK-KSC

ORDER DENYING DEFENDANT’S MOTION TO DISMISS AS TO PLAINTIFFS’
INFORMED CONSENT CLAIM
PROCEDURAL BACKGROUND
On September 24, 2012, Plaintiff Christina Mettias,
individually and as next friend of her minor son N.M.
(collectively “Plaintiffs”), filed a Complaint against Defendant
United States of America (“Government”) pursuant to the Federal
Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346 and 2671. (Doc. No.
1.)
On February 7, 2014, Plaintiffs filed a Motion for
Leave to Amend the Complaint, which was referred to Magistrate
Judge Chang. (Doc. No. 51.) On March 14, 2014, Magistrate Judge
Chang issued an Order Granting Plaintiffs’ Motion for Leave to
Amend the Complaint. (Doc. No. 63.)
On April 1, 2014, Plaintiffs filed the operative
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Amended Complaint. (Doc. No. 68.) The Amended Complaint contains
three claims for relief: (1) medical negligence; (2) negligent
infliction of emotional distress and loss of consortium; and (3)
failure to obtain informed consent. (Am. Compl. at 10-11.) With
respect to the informed consent claim, Plaintiffs specifically
allege that
[p]rior to proceeding with the Roux en Y
gastric bypass surgery, [the Government]
failed to provide Ms. Mettias with
information necessary for her to give
informed consent to the procedure, and
provided misleading and inappropriate
information, in violation of the standard of
care. A reasonable person in Ms. Mettias’
position would not have consented to the
procedure if properly informed.
(Id. ¶ 30.)
On June 27, 2014, the Government filed the instant
motion to dismiss for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1). (Doc. No.
91.) Although the Government’s motion seeks dismissal of the
entire Amended Complaint, its memorandum in support of the motion
(and its reply) only address whether Plaintiffs exhausted
administrative remedies as to their informed consent claim.
Accordingly, the Court construes the Government’s motion as only
seeking dismissal of Plaintiffs’ informed consent claim.
On July 31, 2014, Plaintiffs filed an opposition to the
Government’s motion. (Doc. No. 93.)
On September 17, 2014, the Government filed a reply to
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Plaintiffs’ opposition. (Doc. No. 95.)1/
The Court held a hearing regarding the Government’s
motion on September 29, 2014.
FACTUAL BACKGROUND2/
I.

Mettias Undergoes Gastric Bypass Surgery
On March 19, 2010, Mettias’s primary care physician

referred her to the Bariatric Surgery Program at Tripler Army
Medical Center (“Tripler”). (Am. Compl. ¶ 13.) Mettias followed
up on the referral and sought enrollment in Tripler’s LEAN
Healthy Lifestyles Program (“LEAN Program”), which provides
education, support, and behavioral counseling in connection with
the Bariatric Surgery Program. (Id.)
On March 30, 2010, Mettias attended an informational
meeting where Tripler documented that she weighed 221 pounds and
had a body mass index (“BMI”) of greater than 40. (Id. ¶ 14.)
After further evaluation, Tripler accepted Mettias into the LEAN
Program. (Id.)

1/

The Government’s reply was untimely filed, in violation of
the local rules. See D. Haw. Local Rule 7.4 (“Any reply in
support of a motion set for hearing shall be served and filed by
the moving party not less than fourteen (14) days prior to the
date of hearing.”). Nevertheless, the Court will consider the
Government’s reply because Plaintiffs expressed no opposition,
and the Court finds no prejudice to Plaintiffs.
2/

The facts as recited in this Order are for the purpose of
disposing of the current motion and are not to be construed as
findings of fact that the parties may rely on in future
proceedings.
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For the next five months, Mettias participated in the
LEAN Program. (Id. ¶ 15.) By incorporating exercise, dietary
changes, and behavioral modifications into her lifestyle, Mettias
lost more than 30 pounds. (Id.) Despite Mettias’s weight loss,
Tripler recommended in September 2010 that she undergo Roux en Y
gastric bypass (“RYGB”) surgery. (Id. ¶ 16.) RYGB surgery is a
form of bariatric surgery that reduces the size of the stomach by
creating a small gastric pouch attached directly to the small
intestine, leaving a larger gastric remnant. (Id.)
On September 27, 2010, Dr. John Payne, a Tripler
surgeon, performed laparoscopic RYGB surgery on Mettias. (Id. ¶
18.) At the time of surgery, Mettias weighed 189 pounds and had a
BMI of 33.59. (Id.) According to Mettias, she was an
inappropriate candidate for RYGB surgery because of her
successful loss of some 30 pounds and because national medical
standards dictate that RYGB surgery should be reserved for
patients with a BMI of no less than 40, or no less than 35 if the
patient has one or more weight-related diseases (e.g.,
hypertension, sleep apnea, or diabetes).
One week following her discharge from surgery, Mettias
began suffering severe abdominal and chest pain. (Id. ¶ 20.)
Mettias was readmitted to Tripler on October 11, 2010, and taken
into surgery for a diagnostic laparoscopy, lysis of adhesions,
and evacuation of a large intra-abdominal hematoma. (Id.)

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On October 24, 2010, Mettias was again admitted to
Tripler for left flank and shoulder pain, which was caused by
fluid accumulation in her upper abdomen. (Id. ¶ 21.) Mettias
underwent a procedure at Tripler to place a drainage tube in the
area of the fluid collection. (Id.)
On January 6, 2011, Mettias underwent surgery at
Tripler for a fourth time, after fluid reaccumulated in her
abdomen. (Id. ¶ 22.) A diagnostic laparoscopy revealed severe
adhesions in the abdomen, liver, diaphragm, gastric pouch, and
gastric remnant (where necrosis was also noted). (Id.) During the
procedure to repair the gastric pouch, Mettias’s esophagus and
diaphragm were punctured. (Id.) Following this surgery, Mettias
was admitted to Tripler’s Intensive Care Unit (“ICU”) after
suffering life-threatening conditions such as bowel perforation,
sepsis, and sub-hepatic abscess. (Id. ¶ 23.) Mettias remained in
the ICU until February 2, 2011. (Id.)
After her discharge from the ICU, Mettias was
transferred to Tripler’s general surgical ward. (Id.) Because she
continued to have complications related to the esophageal
perforation, Mettias was subsequently transferred on February 22,
2011, to Pali Momi Medical Center where a non-Tripler surgeon
placed a stent in her esophagus. (Id.) After the esophageal stent
placement surgery, Mettias remained in the hospital until she was
discharged on March 15, 2011. (Id.)

-5-

From March 2011 to September 2011, Mettias was
readmitted to Tripler numerous times for severe pain,
dehydration, nausea, vomiting, and diarrhea. (Id. ¶ 24.) Mettias
has experienced chronic nutritional deficiencies related to her
inability to swallow and, as a result, her weight has dropped to
as low as 103 pounds. (Id.) According to Mettias, she will
require additional surgical procedures to address issues with her
esophagus, as well as other complications stemming from the RYGB
surgery. (Id.)
II.

Plaintiffs File Administrative Claim
On November 3, 2011, Plaintiffs filed two SF-95

administrative claim forms, one for Mettias individually and one
on behalf of her minor son N.M., with Tripler. (Mot. Exs. A1 &
A2.) Both forms state that “negligent medical and surgical
procedures by John Payne, M.D., et al.” caused Mettias to suffer
a variety of medical complications. (Id.)
Plaintiffs attached three-page “supplements” to both
SF-95 claim forms. (Id.) In these supplements, Plaintiffs first
noted that Mettias had lost 30 pounds as recommended and, in
summary, alleged that “Tripler Army Medical Center, Dr. John
Payne and staff deviated from the standard of care [by]
[p]erforming Roux en Y surgery on a patient who failed to meet
medical guidelines for gastric bypass surgery (pre-operative
weight of 189 pounds, BMI of 34.3, and no comorbid conditions).”

-6-

(Id.)
On November 22, 2011, Tripler sent a letter to
Plaintiffs’ counsel acknowledging receipt of the SF-95 claim
forms. (Opp. Ex. E.) That letter also requested Plaintiffs’
counsel to submit a written opinion of a qualified medical expert
addressing the following:
(a) . . . [A]llegation(s) of negligence in
the medical or surgical care of Christina
[Mettias] by Tripler Army Medical Center
personnel.
(b) Any and all other allegations of
negligence in the professional healthcare of
Christina [Mettias].
(Id.)
On February 14, 2012, Plaintiffs’ counsel sent an
opinion letter by Dr. Michael Leitman (dated January 9, 2012) to
Tripler. (Id. Ex. A.) This letter provides in relevant part:
Roux en Y gastric bypass surgery is a high-risk
surgery that can lead to extensive and
debilitating complications. It is reserved for
patients who, after a risk-benefit analysis is
conducted, are not likely to benefit from
alternative strategies but may benefit
substantially from invasive surgery. In 1991,
the National Institute of Health issued a
position statement, which was echoed by the
American Society of Bariatric Metabolic Surgery
in approximately 2002, identifying appropriate
candidates for gastric bypass surgery. Both
position papers, which were clearly the
standard in effect during the time of
Christina’s treatment at Tripler, dictate that
the Roux en Y gastric bypass surgery should be
reserved for patients with a BMI of no less
than 40, and no less than 35 if other weightrelated diseases (for example, hypertension,
-7-

sleep apnea, or diabetes) exist.
. . . In light of her BMI on the date of her
surgery, her consistent weight loss over a
period of five months, and her successful
adoption of a healthy lifestyle, Christina
was not an appropriate candidate for Roux en
Y gastric bypass surgery. . . . Because
Christina did not meet the criteria for
gastric bypass surgery, the decision to
perform a laparoscopic Roux en Y gastric
bypass surgery on Christina was a clear
breach of the standard of care.
(Id. at 5-6.)
On September 24, 2012, after Tripler failed to make a
final disposition of Plaintiffs’ administrative claims within six
months after the claims were filed, see 28 U.S.C. § 2675(a),
Plaintiffs filed their original Complaint in this Court.
STANDARD
A court’s subject matter jurisdiction may be challenged
under Federal Rule of Civil Procedure (“Rule”) 12(b)(1). Such
challenges may be either “facial” or “factual.” Wolfe v.
Strankman, 392 F.3d 358, 362 (9th Cir. 2004).
In a facial attack, “the challenger asserts that the
allegations contained in a complaint are insufficient on their
face to invoke federal jurisdiction.” Id. (quoting Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). When
opposing a facial attack on subject matter jurisdiction, the
nonmoving party is not required to provide evidence outside the
pleadings. Wolfe, 392 F.3d at 362; see Doe v. Holy See, 557 F.3d

-8-

1066, 1073 (9th Cir. 2009) (treating defendant’s challenge to
subject matter jurisdiction as facial because defendant
“introduced no evidence contesting any of the allegations” of the
complaint). In deciding a facial Rule 12(b)(1) motion, the court
must assume the plaintiff’s allegations in the complaint to be
true and draw all reasonable inferences in his favor. Wolfe, 392
F.3d at 362 (citations omitted).
By contrast, in a factual attack, “the challenger
disputes the truth of the allegations that, by themselves, would
otherwise invoke federal jurisdiction.” Id. at 362 (quoting Safe
Air, 373 F.3d at 1039). The moving party may bring a factual
challenge to the court’s subject matter jurisdiction by
submitting affidavits or any other evidence properly before the
court. The nonmoving party must then “present affidavits or any
other evidence necessary to satisfy its burden of establishing
that the court, in fact, possesses subject matter jurisdiction.”
Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112, 1121
(9th Cir. 2009) (citation omitted). In these circumstances, the
court may look beyond the complaint without having to convert the
motion into one for summary judgment. U.S. ex rel. Meyer v.
Horizon Health Corp., 565 F.3d 1195, 1200 n.2 (9th Cir. 2009).
When deciding a factual challenge to the court’s subject matter
jurisdiction, the court “need not presume the truthfulness of the
plaintiffs’ allegations.” Id.

-9-

In this case, the Government brings a factual challenge
to the Court’s subject matter jurisdiction, and attaches two
declarations and eight exhibits to the instant motion.
DISCUSSION
The issue presented by the instant motion is whether
the Court lacks subject matter jurisdiction over Plaintiffs’
informed consent claim because, in the Government’s view, that
claim was not presented to Tripler during the administrative
claims process and, therefore, Plaintiffs failed to exhaust
administrative remedies.
“In a claim for damages against the United States, an
independent cause of action must first be submitted for
administrative review before that claim can be filed in federal
court.” Goodman v. U.S., 298 F.3d 1048, 1054 (9th Cir. 2002)
(citing 28 U.S.C. § 2675(a)). “Where such a claim is not first
presented to the appropriate agency, the district court, pursuant
to Federal Rule of Civil Procedure 12(b)(1), must dismiss the
action for lack of subject matter jurisdiction.” Id. at 1054-55
(citing McNeil v. U.S., 508 U.S. 106 (1993)).
The administrative claim requirement is not burdensome:
. . . [T]he person injured, or his or her
personal representative, need only file a
brief notice or statement with the relevant
federal agency containing a general
description of the time, place, cause and
general nature of the injury and the amounts
of compensation demanded. See Warren v. U.S.
Dep’t. of Interior Bureau of Land Mgmt., 724
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F.2d 776, 779 (9th Cir. 1984); Avery v. U.S.,
680 F.2d 608, 610 (9th Cir. 1982) (“[A]
skeletal claim form, containing only the bare
elements of notice of accident and injury and
a sum certain representing damages, suffices
to overcome an argument that jurisdiction is
lacking.”).
Id. at 1055.
“Furthermore, the notice requirement under section 2675
is minimal, and a plaintiff’s administrative claims are
sufficient even if a separate basis of liability arising out of
the same incident is pled in federal court.” Id.; see also Broudy
v. U.S., 722 F.2d 566, 568-69 (9th Cir. 1983) (“We see nothing in
section 2675(a) or the regulations which require the claimant to
state with great specificity the legal theories to be asserted in
the eventual FTCA action.”); Rooney v. U.S., 634 F.2d 1238, 1242
(9th Cir. 1980) (“The Government would have us also require a
claimant to state his legal theory for recovery. This we cannot
do.”); and Burchfield v. U.S., 168 F.3d 1252, 1255 (11th Cir.
1999) (“We do not require the claimant to provide the agency with
a preview of his or her lawsuit by reciting every possible theory
of recovery, or every factual detail that might be relevant. In
short, the amount of information required is ‘minimal.’”)
(internal citations omitted).
In Goodman, the Ninth Circuit was faced with the issue
of “whether an administrative claim that alleges negligent care
and treatment by hospital personnel necessarily presents an

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informed consent claim for purposes of satisfying the notice
requirements of section 2675(a).” Goodman, 298 F.3d at 1055. The
Goodman court noted that “[t]he majority of circuits that have
addressed the issue have held that to adequately exhaust
administrative remedies with respect to an informed consent
claim, a medical malpractice claim is not necessarily sufficient;
instead, ‘the administrative claim must narrate facts from which
a legally trained reader would infer a failure to obtain informed
consent.’” Id. (citing Murrey v. U.S., 73 F.3d 1448, 1453 (7th
Cir. 1996) and Bush v. U.S., 703 F.2d 491, 495 (11th Cir. 1983));
see also Staggs v. U.S. ex rel. Dep’t. of Health and Human
Servs., 425 F.3d 881, 884-85 (rejecting the “view that an
administrative claim for medical negligence necessarily includes
[a claim for] lack of informed consent” and holding that
“[n]othing in [plaintiff’s] administrative claim suggests that
[she] consented to a course of treatment or remained on such a
course without being informed of her options and the risks”).3/
In Murrey, the Seventh Circuit held that an informed

3/

Only the Fifth Circuit has found that “[b]y its very
nature, the informed consent claim is included in the
[plaintiff’s] allegation of [medical] negligence in their
administrative claim.” Frantz v. U.S., 29 F.3d 222, 224 (5th Cir.
1994). Although a three-judge panel on the Fourth Circuit adopted
the Frantz holding, see Drew v. U.S., 217 F.3d 193 (4th Cir.
2000), the Fourth Circuit subsequently vacated the three-judge
panel’s opinion upon granting en banc consideration, and
summarily affirmed the district court’s dismissal for lack of
jurisdiction. Drew ex rel. Drew v. U.S., 231 F.3d 927 (4th Cir.
2000) (en banc).
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consent claim is separate and independent from a general medical
negligence claim and that “to base a suit on lack of informed
consent [a plaintiff] was required to include, or at least allude
to, the issue of informed consent in the administrative claim.”
Murrey, 73 F.3d at 1451.
Under Hawaii’s informed consent statute,4/ a health
care provider must supply the following information to a patient
before obtaining that patient’s consent to a proposed medical
treatment or procedure:
(1) The condition to be treated;
(2) A description of the proposed treatment
or procedure;
(3) The intended and anticipated results of
the proposed treatment or procedure;
(4) The recognized alternative treatments or
procedures, including the option of not
providing these treatments or procedures;
(5) The recognized material risks of serious
complications or mortality associated with:
(A) The proposed treatment or procedure;
(B) The recognized alternative
treatments or procedures; and
(C) Not undergoing any treatment or
procedure; and
(6) The recognized benefits of the recognized
alternative treatments or procedures.
H.R.S. § 671-3(b). The Hawaii Supreme Court has supplemented
§ 671-3 by “adopt[ing] the patient-oriented standard for
determining whether particular information must be disclosed to a

4/

The Ninth Circuit has held that “[i]n assessing the United
States’ liability under the FTCA, [courts] are required to apply
the law of the state in which the alleged tort occurred.” Conrad
v. U.S., 447 F.3d 760, 767 (9th Cir. 2006).
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patient.” Ray v. Kapiolani Medical Specialists, 125 Haw. 253, 267
(Haw. 2011). The Ray court explained that the
dispositive inquiry regarding the physician’s
duty to disclose in an informed consent case,
therefore, is not what the physician believes
his or her patient needs to hear in order for
the patient to make an informed and
intelligent decision; the focus should be on
what a reasonable person objectively needs to
hear from his or her physician to allow the
patient to make an informed and intelligent
decision regarding proposed medical
treatment.
Id. (quoting Carr v. Strode, 79 Haw. 475, 485-86 (Haw. 1995)).5/
Consistent with Hawaii law on the informed consent
doctrine, as well as Goodman and the cases cited favorably
therein, this Court concludes that Plaintiffs, during the
administrative claims process, put the Government on notice of
their informed consent claim and thus exhausted their
administrative remedies as to that claim.
In this case, as noted, Plaintiffs alleged in the
supplements attached to their SF-95 administrative claim forms
that “Tripler Army Medical Center, Dr. John Payne and staff
deviated from the standard of care [by] [p]erforming Roux en Y
surgery on a patient who failed to meet medical guidelines for

5/

The “patient-oriented” standard is an alternative to the
“physician-oriented” standard. The Hawaii Supreme Court has
stated that the physician-oriented standard looks at “what a
reasonable physician believes should be disclosed to a patient
prior to treatment in order for the patient to make an informed
and intelligent decision regarding a course of treatment or
surgery.” Carr, 79 Haw. at 498.
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gastric bypass surgery (pre-operative weight of 189 pounds, BMI
of 34.3, and no comorbid conditions).” (Mot. Exs. A1 & A2.) Dr.
Leitman’s opinion letter (dated January 9, 2012), which Tripler
specifically requested as part of the administrative claims
process, expounds upon this allegation:
Roux en Y gastric bypass surgery is a highrisk surgery that can lead to extensive and
debilitating complications. It is reserved
for patients who, after a risk-benefit
analysis is conducted, are not likely to
benefit from alternative strategies but may
benefit substantially from invasive surgery.
In 1991, the National Institute of Health
issued a position statement, which was echoed
by the American Society of Bariatric
Metabolic Surgery in approximately 2002,
identifying appropriate candidates for
gastric bypass surgery. Both position papers,
which were clearly the standard in effect
during the time of Christina’s treatment at
Tripler, dictate that the Roux en Y gastric
bypass surgery should be reserved for
patients with a BMI of no less than 40, and
no less than 35 if other weight-related
diseases (for example, hypertension, sleep
apnea, or diabetes) exist.
In this case, Christina clearly was
benefitting from the non-surgical
interventions offered through Tripler’s LEAN
program. . . . In short, the LEAN program
operated through Tripler’s weight loss clinic
was helping her to lose weight and to adopt a
healthy lifestyle that would allow her to
maintain the weight loss. At the time of her
pre-operative visit with Dr. Payne, which was
ten days before her scheduled surgery,
Christina’s BMI was 34.35. She did not suffer
from any co-morbid conditions and therefore
did not meet any of the criteria for gastric
bypass surgery. Three days prior to surgery,
Christina had another pre-operative visit
with an anesthesiologist at Tripler, at which
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time her BMI was documented to be 33.59. Not
only was her BMI again noted to be well below
the nationally-recognized baseline, her BMI
was consistently dropping through her
successful, non-surgical interventions. On
the day of surgery, the pre-operative nurse
and the anesthesiologist recorded Christina’s
BMI to be 33.59. In light of her BMI on the
date of her surgery, her consistent weight
loss over a period of five months, and her
successful adoption of a healthy lifestyle,
Christina was not an appropriate candidate
for Roux en Y gastric bypass surgery. . . .
Because Christina did not meet the criteria
for gastric bypass surgery, the decision to
perform a laparoscopic Roux en Y gastric
bypass surgery on Christina was a clear
breach of the standard of care.
(Opp. Ex. A at 5-6.)
This letter provides sufficient factual information to
put the Government on notice of an informed consent claim.
The Ninth Circuit proclaimed in Goodman: “. . . [T]he
notice requirement under section 2675 is minimal, and a
plaintiff’s administrative claims are sufficient even if a
separate basis of liability arising out of the same incident is
pled in federal court.” Goodman, 298 F.3d at 1055. The Ninth
Circuit further held that “[t]he majority of circuits . . . have
held that to adequately exhaust administrative remedies with
respect to an informed consent claim, a medical malpractice claim
is not necessarily sufficient; instead, ‘the administrative claim
must narrate facts from which a legally trained reader would
infer a failure to obtain informed consent.’” Id. (citing Murrey,
73 F.3d at 1453 and Bush, 703 F.2d at 495).
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As discussed, the Hawaii Supreme Court has held that,
when “determining whether particular information must be
disclosed to a patient,” the focus is “on what a reasonable
person objectively needs to hear from his or her physician to
allow the patient to make an informed and intelligent decision
regarding proposed medical treatment.” Ray, 125 Haw. at 267. Dr.
Leitman, through his January 9, 2012 letter, provides his
professional opinion as to the factors a reasonable person would
need to consider before consenting to a RYGB surgery. At the
hearing regarding the instant motion, the Government stated that
Tripler doctors disagreed with Dr. Leitman’s assessment as to the
appropriate standard for proceeding with RYGB surgery and,
consequently, did not disclose such information to Mettias. The
discrepancy between the facts Dr. Leitman infers were necessary
to Mettias’s informed decision to have the surgery and those
facts the Tripler doctors believed were necessary should have put
the Government on notice that Plaintiffs were raising a claim
that Mettias was not provided adequate information upon which to
give her consent to the RYGB surgery.
Thus it was clear that Plaintiffs asserted or inferred
certain information should have been provided to Mettias with
which Tripler doctors disagreed and concededly did not give to
her. Indeed, Dr. Payne testified during his deposition that the
patient eligibility standards endorsed by Dr. Leitman were mere

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“guidelines,” or “suggested criteria that an individual patient
might consider in consultation with their physician in choosing a
course of treatment.” (Opp. Ex. C at 40-41.)6/ Again, under the
patient-oriented standard adopted by the Hawaii Supreme Court,
physicians are required to disclose information that “a
reasonable person objectively needs to hear . . . to allow the
patient to make an informed and intelligent decision regarding
proposed medical treatment.” Ray, 125 Haw. at 267. Importantly,
by Dr. Payne’s own statement, the patient eligibility
requirements discussed by Dr. Leitman is information a reasonable
person “might consider” when deciding whether to undergo a RYGB
surgery.
In accordance with Goodman, factual assertions in Dr.
Leitman’s letter inferred that Mettias received inadequate
information regarding the RYGB surgery, and his letter asserted

6/

Based on the portions of the deposition transcript
attached to the parties’ briefs, it appears that Dr. Payne did
not expressly testify that he did not inform Mettias of the
patient eligibility standards discussed by Dr. Leitman in his
January 9 opinion letter. However, at the September 29, 2014
hearing, the Government stated that Tripler doctors did not
inform Mettias that (according to Dr. Leitman) national medical
standards dictated that she not undergo a RYGB surgery because
her BMI was below 35 and because she was losing weight through
non-surgical interventions. Further, the Court stated at the
hearing that, at this time, it was not going to make a ruling on
what constituted the correct standard, but that it did appear
that Plaintiffs and Dr. Leitman inferred that Tripler doctors did
not give Mettias sufficient information to make an informed
consent which Plaintiffs claimed, rightly or wrongly, should have
been given.
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the type of information which a physician should provide to a
patient as required under Hawaii’s informed consent statute.
Accordingly, the Government was on notice Plaintiffs were making
an informed consent claim. Dr. Leitman’s letter inferred that
Tripler doctors did not inform Mettias just prior to her surgery
that the risks of RYGB surgery outweighed the benefits if a
patient has a BMI below 35 and has been losing significant weight
through non-surgical programs. To the contrary, as Dr. Leitman
pointed out in his subsequent letter dated May 6, 2014, Dr. Payne
testified in his deposition that since Mettias met the BMI
eligibility standard at the time she was admitted into the
Bariatric Surgery Program in March of 2010, the national standard
was not relevant in September, and consequently there was no need
to raise the issue during the pre-operative appointments. (Opp.
Ex. B at 41) (see also Mot. Ex. D at 96.)7/
In essence, Dr. Leitman’s initial letter inferred that
Tripler doctors failed to provide Mettias with adequate
information concerning the risks associated with the “proposed
procedure,” “recognized alternative treatments or procedures,”
and “[n]ot undergoing any treatment or procedure,” as well as the

7/

The Court notes that Dr. Payne testified in his deposition
that at the “last visit” he conducted an informed consent
discussion with Mettias and that “I know we talked about the
risks and the benefits and the complications and all the aspects
of what she had to look forward to and the alternatives of doing
nothing.” (Mot. Ex. D at 97.)
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“benefits of the recognized alternative treatments or
procedures.” H.R.S. § 671-3(b);8/ see also Ray, 125 Haw. at 267
(holding that, under the patient-oriented standard, a physician
is required to disclose information that “a reasonable person
objectively needs to hear” in order for that person to consent to
a medical procedure). The Court reiterates Dr. Payne’s admission
that Dr. Leitman’s assertion of the patient eligibility standards
of the National Institute of Health was “suggested criteria that
an individual patient might consider in consultation with their
physician in choosing a course of treatment.” (Opp. Ex. C at 4041) (emphasis added.)
Further, as in Goodman, Plaintiffs were “not required
to provide [Tripler] with a preview of the details of [their]
federal complaint, nor required to describe in more than minimal
detail the factual predicate for [their] claim.”9/ Goodman, 298

8/

With respect to the latter two Hawaii statutory required
considerations, Dr. Leitman’s letter asserted that the subject
surgery “is reserved for patients who, after a risk-benefit
analysis is conducted, are not likely to benefit from alternative
strategies but may benefit substantially from invasive surgery”
and that “[i]n this case, [Mettias] clearly was benefitting from
the non-surgical interventions offered through Tripler’s LEAN
program.” (Opp. Ex. A at 5.)
9/

This Court recognizes that two factors distinguish Goodman
from the instant case. First, the Goodman court gave latitude to
the plaintiff, who was proceeding pro se during the
administrative claims process, in the presentation of his claims.
See Goodman, 298 F.3d at 1056. Second, in concluding “that the
government was fairly on notice that the informed consent claim
was before it,” the Goodman court noted that the administrative
(continued...)
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F.3d at 1056; see also Murrey, 73 F.3d at 1452 (“But as no
statement of legal theories is required, only facts plus demand
for money, the claim encompasses any cause of action fairly
implicit in the facts.”) and Burchfield, 168 F.3d at 1255
(holding that “[a]n administrative agency is deemed to be on
notice not only of the theories of recovery stated in the claim,
but of the theories of recovery that its reasonable investigation
of the specific allegations of the claim should reveal”).
Additionally, this Court’s finding that the Government
was on notice of Plaintiffs’ allegation that Mettias was not
adequately informed about the RYGB surgery is consistent with
pre-Goodman Ninth Circuit precedent, which supports a liberal
interpretation of § 2675's notice requirement. See Rooney, 634

9/

(...continued)
agency filed a response explicitly addressing the issue of
informed consent. Id. at 1057. In this case, however, Plaintiffs
were represented by an experienced personal injury law firm
during the administrative claims process, and the Government has
not filed a response directly acknowledging that informed consent
is at issue.
Nevertheless, Goodman, in accordance with prior Ninth
Circuit precedent, held as a matter of law that “the notice
requirement under section 2675 is minimal, and a plaintiff’s
administrative claims are sufficient even if a separate basis of
liability arising out of the same incident is pled in federal
court.” Goodman, 298 F.3d. at 1055. Goodman further held that
“[t]he majority of circuits . . . have held that to adequately
exhaust administrative remedies with respect to an informed
consent claim, a medical malpractice claim is not necessarily
sufficient; instead; ‘the administrative claim must narrate facts
from which a legally trained reader would infer a failure to
obtain informed consent.’” Id. (citing Murrey, 73 F.3d at 1453
and Bush, 703 F.2d at 495).
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F.2d at 1241-42 (rejecting the government’s argument that
plaintiff’s administrative claim alleging medical negligence did
not encompass any claim for liability from the fall and holding
that the administrative claim more broadly put the government on
notice for claims arising from injuries sustained as a result of
the fall”); and Broudy, 722 F.3d at 568-59 (holding plaintiff’s
administrative complaint alleging negligent exposure to radiation
established subject matter jurisdiction for plaintiff’s claim
alleging failure to warn of radiation exposure).
In sum, the Court concludes that Plaintiffs, during the
administrative claims process, put the Government on notice of
their informed consent claim and, therefore, exhausted
administrative remedies as to that claim. Accordingly, the Court
has subject-matter jurisdiction over Plaintiffs’ informed consent
claim.
CONCLUSION
For the foregoing reasons, the Court DENIES Defendant’s
Motion to Dismiss as to Plaintiffs’ informed consent claim.
IT IS SO ORDERED.
DATED:

Honolulu, Hawai#i, October 14, 2014.

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________________________________
Alan C. Kay
Senior United States District Judge

Mettias v. U.S., Civ. No. 12-00527 ACK-KSC: ORDER DENYING DEFENDANT’S MOTION
TO DISMISS AS TO PLAINTIFFS’ INFORMED CONSENT CLAIM

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