McNeese v. United States of America

Filing 70

MEMORANDUM OPINION AND ORDER by District Judge Kea W. Riggs Granting 42 Partial MOTION for Summary Judgment ; It Is Further ORDERED that the loss of consortium claim is DISMISSED WITHOUT PREJUDICE. (cmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
__________________
MARY F. McNEESE, as
Personal Representative and Spouse of
TINA MARIE McNEESE, Deceased,
Plaintiff,
vs.

1:17-cv-01164 KWR/KK

UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court upon Defendant’s Motion for Partial Summary
Judgment, filed April 26, 2019 (Doc. 42). Having reviewed the parties’ pleadings and applicable
law, the Court finds that Defendant’s motion is well-taken and therefore, is GRANTED.
BACKGROUND
This is a medical negligence and wrongful death case under the Federal Tort Claims Act.
Tina McNeese died from an embolic stroke caused by bacterial endocarditis. Plaintiff Mary
McNeese argues that the Veterans Administration (“VA) was negligent in failing to diagnose and
treat Tina McNeese’s bacterial infection.
The Government seeks summary judgment on the loss of consortium claim, arguing that
this Court lacks subject matter jurisdiction over that claim. Specifically, the Government argues
that Plaintiff failed to administratively exhaust her remedies because she did not include the loss
of consortium claim on her SF-95 claim form filed with the VA.

LEGAL STANDARD
A motion for summary judgment may be granted only when “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact. Munoz v. St. Mary Kirwan Hosp., 221 F.3d 1160, 1164 (10th Cir. 2000). When
applying this standard, the court examines the record and makes all reasonable inferences in the
light most favorable to the non-moving party. Id. The movant bears the initial burden of
establishing that no genuine issue exists as to any material fact. See Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157 (1970). Where the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat’l Bank of Arizona v. Cities Serv.
Co., 391 U.S. 253, 289 (1968)).
UNDISPUTED FACTS
Plaintiff Mary McNeese is the surviving spouse and appointed personal representative of
Tina McNeese, the decedent in this case. Plaintiff filed suit pursuant to the Federal Tort Claims
Act, claiming that the VA provided negligent medical care resulting in the death of Tina McNeese.
Tina McNeese died at UNM Hospital in Albuquerque, NM on December 1, 2015, after
suffering an embolic stroke the day prior at the Raymond G. Murphy Veterans Administration
Medical Center, located at 1501 San Pedro, S.E. in Albuquerque, NM, 87108.
In this suit, Plaintiff alleges the VA medical center was negligent in the medical care and
treatment of Tina McNeese because they failed to adhere to proper standards of medical care to
diagnose and treat her medical condition, known as mitral valve prolapse, which led to her death.

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Plaintiff filed her administrative claim for Damage, Injury, or Death, also known as the
“SF-95” form, with the VA on April 3, 2017. In her SF-95 form, Plaintiff alleged negligence by
the United States in June and July 2015 for “failure of primary care physician to diagnose bacterial
endocarditis by ordinary blood culture during primary care visits… in a patient with fever or,
fatigue, shortness of breath, sever (sic) dentation disease with a history of sever (sic) mitral
prolapse.” Doc. 42-1.
Plaintiff further alleged a “failure of the Veterans Administration system to grant dental
consult during 2015 despite two system referrals for medically necessary dental care. Failure to
treat bacterial endocarditis prophylactically and timely resulting in the patient’s death.” Id.
Plaintiff’s SF-95 form does not expressly mention a loss of consortium claim or loss of consortium
damages. Plaintiff only requested $5,000,000 in wrongful death damages and did not make a
separate request for personal injury damages or damages for loss of consortium.
Plaintiff now seeks to recover $5,000,000 in damages for loss of life and lost enjoyment of
life, pain and suffering of the deceased, funeral and burial expenses, and allowable costs incurred
and post-judgment interest. In the complaint, Plaintiff makes no claim for loss of consortium in
the prayer for relief or anywhere else in the complaint. Plaintiff informed Defendant that she was
intending to make a claim for loss of consortium damages in her responses to written discovery
and in her deposition.
DISCUSSION
I.

Federal Tort Claims Act (“FTCA”).
“The [FTCA] is a limited waiver of sovereign immunity, making the Federal Government

liable to the same extent as a private party for certain torts of federal employees acting within the

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scope of their employment.” United States v. Orleans, 425 U.S. 807, 813, 96 S.Ct. 1971, 48
L.Ed.2d 390 (1976), quoted in Lopez v. United States, 823 F.3d 970, 975–76 (10th Cir. 2016).
Because the FTCA constitutes a congressional waiver of the federal government’s
sovereign immunity, see Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852
(10th Cir. 2005), Congress has imposed certain conditions on actions brought under that
enactment. Plaintiff must provide notice to the United States before pursuing an FTCA action in
court. See Estate of Trentadue, 397 F.3d at 852. In particular, an FTCA action cannot be instituted
“unless the claimant shall have first presented the claim to the appropriate Federal agency and his
claim shall have been finally denied by the agency in writing.” 28 U.S.C. § 2675(a).
The notice and exhaustion requirements of § 2675(a) “must be strictly construed. The
requirements are jurisdictional and cannot be waived.” See Estate of Trentadue ex rel. Aguilar v.
United States, 397 F.3d 840, 852 (10th Cir. 2005); see also Nero v. Cherokee Nation of Okla., 892
F.2d 1457, 1463 (10th Cir. 1989) (“[B]ringing an administrative claim is a jurisdictional
prerequisite to suit, imposed by Congress, which the courts have no power to waive.” (citation
omitted)).
II.

Loss of Consortium Claim was not Sufficiently Noticed.
A.

FTCA Notice Law.

The Government argues that Plaintiff failed to sufficiently notify it of her loss of
consortium claim. “The jurisdictional statute, 28 U.S.C. § 2675(a), requires that claims for
damages against the government [first] be presented to the appropriate federal agency by filing (1)
a written statement sufficiently describing the injury to enable the agency to begin its own
investigation, and (2) a sum certain damages claim.” Estate of Trentadue, 397 F.3d at 852.
(citations omitted). The purpose of this requirement is “to give the agency notice of the claim, an

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opportunity to investigate, and a chance to settle the claim prior to litigation.” Lopez v. United
States, 823 F.3d 970, 977 (10th Cir. 2016).
“A claim is properly presented to an agency only if the language of the claim serves due
notice that the agency should investigate the possibility of particular (potentially tortious)
conduct.” Barnes v. United States, 707 Fed. Appx. 512, 516 (10th Cir. 2017) (internal quotation
omitted). However, the notice requirement “should not be interpreted inflexibly.” Trentadue, 397
F.3d at 852. “Several courts in this jurisdiction have ... interpreted the provision to require notice
of the facts and circumstances underlying a claim rather than the exact grounds upon which
plaintiff seeks to hold the government liable.” Id.
Moreover, “[n]o statement of legal theories is required… only facts plus a demand for
money.” Lopez, 823 F.3d at 977. The form must give notice “sufficient to warrant [government]
investigation of each claim.” Haceesa v. U.S., 309 F.3d 722, 734 (10th Cir. 2002). While this
standard is flexible, “it is not the government’s obligation to cast about in the wilderness for every
possible source of liability lurking in an administrative claim; rather, the language of the claim
itself must serve as a competent guide that, at very least, points the agency to the correct areas of
inquiry.” Benally v. United States, No. 13-CV-0604-MV-SMV, 2016 WL 3200125, at *4 (D.N.M.
May 20, 2016).
B.

Analysis.

Here, Plaintiff did not give sufficient notice to the Government to investigate a possible
loss of consortium claim. The form fails to set forth the facts underlying a loss of consortium
claim or the injury Plaintiff suffered. Box 10 of the SF-95 form instructs the claimant to “describe
the nature and extent of each injury or cause of death which forms the basis of the claim.” Doc.
42-1. Although Plaintiff described the medical negligence suffered by her wife, she did not

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describe her own injury. Rather, reading the notice, it appears that Plaintiff is only asserting a
wrongful death claim.
Moreover, Plaintiff failed to include a sum certain for personal injury damages relating to
a loss of consortium claim. Plaintiff asserted $5,000,000 in wrongful death damages, but no
personal injury damages. Since loss of consortium is a separate cause of action from wrongful
death and in the nature of personal injury damages, it appears that the claim form fails to request
a sum certain for Plaintiff’s injury. “Loss of consortium is a type of personal injury damage
because damages for consortium are damages for the plaintiff’s emotional distress due to the harm
to a sufficiently close relationship.” Thompson v. City of Albuquerque, 2017-NMSC-021, ¶ 8, 397
P.3d 1279 (internal quotation marks, and citations omitted). This includes the value of the loss of
the spouse’s “love, care, society, companionship, and the like.” State Farm Mut. Auto. Ins. Co. v.
Luebbers, 2005-NMCA-112, ¶ 42, 138 N.M. 289, 119 P.3d 169; Wachocki, 2011-NMSC-039, ¶
5. (“A loss-of-consortium claimant must demonstrate two elements in order to recover damages.”
The first element is that the claimant and the injured party shared a sufficiently close relationship.
. . . The second element is a duty of care.”). In other words, loss of consortium damages are
separate from wrongful death damages. See New Mexico Uniform Jury Instructions (2020) 131830 (use notes and committee commentary for Wrongful Death damages); 13-1810A (loss of
consortium claim instruction, use notes, and commentary), 13-1810B (loss of consortium damages
instruction). Loss of consortium damages may not be recovered in a wrongful death cause of
action, but must be sought in a separate claim. Id.
This Court has dismissed loss of consortium claims under similar or identical facts. Dukert
v. United States, No. CV 14-506 WJ/WPL, 2016 WL 10721258, at *5 (D.N.M. Jan. 5, 2016)
(Johnson, J.) (dismissing consortium claim where Plaintiff filed SF-95 form individually and as

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personal representative, but only included damages for wrongful death); Skeet v. United States,
No. CV 10-0107 RB/WDS, 2012 WL 12884644, at *3 (D.N.M. Jan. 23, 2012) (Brack, J.)
(concluding court lacked subject matter jurisdiction over loss of consortium claim where no
administrative claims mentioned loss of consortium or requested personal injury damages); see
also Wozniak v. United States, 701 F. Supp. 259, 263 (D. Mass. 1988) (although Plaintiff filed
claim individually and as administratrix, plaintiff failed to give facts underlying loss of consortium
claim), cited in Pipkin v. U.S. Postal Serv., 951 F.2d 272, 273 (10th Cir. 1991); Lopez v. United
States, 823 F.3d 970, 977 (10th Cir. 2016) (dismissing negligent credentialing claim against
hospital where plaintiff set forth facts showing that plaintiff was injured by negligent acts of
physician, but failed to set forth facts indicating that hospital was negligent in credentialing the
physician).
C.

Plaintiff’s Arguments are Unavailing.

Plaintiff argues that a loss of consortium claim was properly noticed because (1) she filed
the form both individually and as the representative of the wrongful death estate, and (2) she
indicated she was married under Box 5 (marital status) on the SF-95 form. Reading the notice as
a whole, however, the Government would not know that Plaintiff was asserting a loss of
consortium claim because she did not allege facts relevant to that claim. Moreover, because she
did not claim a sum certain for personal injury damages, the SF-95 form would not have put the
Government on notice to investigate any loss of consortium claim. Because she only sought
wrongful death damages, it appeared that Plaintiff was only asserting a wrongful death claim.
Plaintiff appears to argue that a loss of consortium claim is derivative of a wrongful death
claim, and therefore she need not set out in her notice facts underlying the loss of consortium
claim. The Court disagrees. “Loss of consortium is a separate cause of action from a Wrongful

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Death claim under New Mexico law.” Romero v. Byers, 117 N.M. 422, 429, 872 P.2d 840, 847
(1994) (stating “damages for loss of consortium may not be awarded under the [New Mexico
Wrongful Death] Act, but must be sued for by the spouse or the personal representative in an
individual capacity.”), quoted in Thompson v. City of Albuquerque, 2017-NMSC-021, ¶ 16, 397
P.3d 1279, 1284 (“Although claims for loss of consortium damages derive from injury to another,
the claimant has also suffered a direct injury for which he or she may seek recovery separately
from the underlying tort.”).
Finally, Plaintiff argues that insufficient notice does not deprive the Court of subject matter
jurisdiction, because she otherwise filed an SF-95 form. However, numerous cases cited above
treat insufficient notice as a jurisdictional issue even when an SF-95 form is filed. See, e.g.,
Benally v. United States, No. 13-CV-0604-MV-SMV, 2016 WL 3200125, at *4 (D.N.M. May 20,
2016) ) (lack of sufficient facts in SF-95 form giving notice of medical negligence in post-operative
care deprives court of subject matter jurisdiction), aff'd, 735 F. App'x 480 (10th Cir. 2018).
CONCLUSION
The Court concludes that Plaintiff failed to administratively exhaust her loss of consortium
claim because she failed to sufficiently notice the claim on her SF-95 form. Therefore, the Court
lacks subject matter jurisdiction over the loss of consortium claim. The medical negligence and
wrongful death claims remain.
IT IS THEREFORE ORDERED that Defendant’s Motion for Partial Summary
Judgment (Doc. 42) is hereby GRANTED for reasons described in this Memorandum Opinion
and Order.

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IT IS FURTHER ORDERED that the loss of consortium claim is DISMISSED
WITHOUT PREJUDICE.

__________________________________________
KEA W. RIGGS
United States District Judge

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