King v. United States of America

Filing 13

OPINION AND ORDER by Judge John E Dowdell Defendant United States of America's Motion to Dismiss (Doc. 9) is denied. Defendant is directed to file its Answer on or before 5/22/2013 ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 5/22/2013); denying 9 Motion to Dismiss for Lack of Jurisdiction (Re: 2 Complaint ) (SAS, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
ARTHUR KENT KING,
Plaintiff,
v.
UNITED STATES OF AMERICA,

Defendant(s).

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Case No. 12-CV-616-JED-TLW

OPINION AND ORDER
The Court has for its consideration defendant, the United States of America’s, Motion to
Dismiss (Doc. 9), which is at issue (see Docs. 11 and 12). The United States moves to dismiss
plaintiff’s complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction.
I.

Background
Plaintiff brings the instant lawsuit under the Federal Tort Claims Act (“FTCA”), 28

U.S.C. §§ 1346(b) and 2671 et seq. for medical malpractice based upon treatment received at
Morton Comprehensive Health Services, Inc. (“MCHS”). MCHS is a federally supported health
care center which has FTCA medical malpractice coverage pursuant to the Federally Supported
Health Centers Assistance Act (42 U.S.C. § 233(g)-(n)). Plaintiff claims that in February of
2010, while a patient at MCHS, he was in renal failure and was not properly diagnosed for an
extended period of time, resulting in permanent kidney damage and the need for lifelong dialysis.
Plaintiff originally filed this litigation in state court on October 28, 2011. The case was
removed to federal court on January 27, 2012. On July 25, 2012, the Honorable Terence C.
Kern, to whom this case was initially assigned, dismissed the case for lack of subject matter

jurisdiction based upon a finding that plaintiff had not exhausted his administrative remedies by
submitting the claim to the appropriate agency – here, the Department of Health and Human
Services (“DHHS”) – as required by the FTCA. See King v. United States, Case No. 12-CV-33TCK-TLW.
On February 23, 2012, plaintiff submitted an administrative tort claim to DHHS. The
claim was submitted on a standard “Form 95,” which states in somewhat cursory fashion that
plaintiff was injured at MCHS. (See Doc. 9-2). On March 1, 2012, DHHS sent a letter to
plaintiff’s counsel acknowledging receipt of the claim and requesting additional documents,
which included the following:
1. Two copies of any and all private medical records, including duplicate copies
of diagnostic imaging, pertinent to your client’s alleged injuries and his present
condition (emphasis in original).
2. Itemized bills for medical expenses incurred by reason of the incident, or
itemized receipts of payments for such expenses.
3. A written report by your client’s attending physician setting forth the nature
and extent of the injuries, including nature and extent of treatment, any degree of
temporary or permanent disability, and the prognosis.
4. If the prognosis reveals the necessity for future treatment, a signed statement of
expected duration of and expenses for such treatment.
5. Any other evidence or information which may have a bearing on the
responsibility of the United States for the personal injury or the damages claimed.
6. Evidence of your authority to file a claim on behalf of Arthur Kent King.
(Doc. 9-3).
DHHS received nothing in response to this letter, so a second letter was sent on May 8,
2012, stating that the requested information had not been received, but was necessary to move
forward with the claim. On May 14, 2012, plaintiff submitted billing records from private health
care providers and a medical report from a physician regarding plaintiff’s current condition.
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Again, however, the remaining categories of materials requested were not submitted. Hence, on
June 26, 2012, DHHS sent a third letter to plaintiff acknowledging receipt of the materials and
stating that the other categories were still needed by the agency. Plaintiff did not submit any
further materials to DHHS and filed this lawsuit on November 2, 2012. On February 6, 2012,
the United States filed a motion to dismiss, arguing that plaintiff had yet again failed to exhaust
his administrative remedies.
II.

Standards
The United States, as a sovereign entity, is immune from suit unless it has consented to

be sued, “‘and the terms of its consent to be sued in any court define that court's jurisdiction to
entertain the suit.’” United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v.
Sherwood, 312 U.S. 584, 586 (1941)). Through the FTCA, the United States has provided a
limited waiver of the federal government's sovereign immunity from private suit. See 28 U.S.C.
§ 1346(b); Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852 (10th Cir.
2005). The prerequisite for liability under the FTCA is a “negligent or wrongful act or omission
of any employee of the Government while acting within the scope of his office or employment,
under circumstances where the United States, if a private person, would be liable to the claimant
in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. §
1346(b).
“Because the FTCA constitutes a waiver of the government's sovereign immunity [the
FTCA requires notice to the government, and] the notice requirements established by the FTCA
must be strictly construed.” Trentadue, 397 F.3d at 852 (10th Cir. 2005); see also 28 U.S.C. §
2675. “The [notice] requirements are jurisdictional and cannot be waived.” Bradley v. United
States ex rel. Veterans Admin., 951 F.2d 268, 270 (10th Cir. 1991). Section 2675 “requires that

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claims for damages against the government 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.’” Trentadue, 397 F.3d at 852 (quoting
Bradley, 951 F.2d at 270).
The question presented by the United States’ motion to dismiss is whether plaintiff
provided sufficient notice of his claim to have exhausted these administrative requirements.
III.

Analysis
The United States urges the Court to dismiss plaintiff’s lawsuit for failure to exhaust

administrative remedies under the FTCA. Specifically, the United States maintains that, absent
the detailed information sought by its three letters to plaintiff, it was impossible for DHHS to
conduct an investigation into the merits of plaintiff’s claim. Plaintiff responds that the Form 95
submitted and subsequent documentation (namely, the billing records and the physician’s
medical report) contained sufficient information to put the agency on notice and permit it to
begin an investigation of its own into the matter.
The purpose of the FTCA and its presentment requirement found in 28 U.S.C. § 2675 is
to facilitate the settlement of claims by the agencies to which they are presented and ease
congestion of federal court dockets. Staggs v. U.S. ex rel. Dep't of Health & Human Servs., 425
F.3d 881, 885 (10th Cir. 2005) (citing Bradley, 951 F.2d at 271 n. 3). To help achieve this
purpose, the presentment requirement of § 2675 must be satisfied as a predicate to federal
jurisdiction over a claim under the FTCA. See Bradley, 951 F.2d at 270. When § 2675 was
enacted, Congress also enacted § 2672, which gives agencies the authority to settle a claim and
directs them to promulgate regulations which facilitate the prompt settlement of claims. See 28

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U.S.C. § 2672. One such regulation, 28 C.F.R. § 14.4(b), allows an agency to request the
following information:
In support of a claim for personal injury, including pain and suffering, the
claimant may be required to submit the following evidence or information:
(1) A written report by his attending physician or dentist setting forth the nature
and extent of the injury, nature and extent of treatment, any degree of temporary
or permanent disability, the prognosis, period of hospitalization, and any
diminished earning capacity. In addition, the claimant may be required to submit
to a physical or mental examination by a physician employed by the agency or
another Federal agency. A copy of the report of the examining physician shall be
made available to the claimant upon the claimant's written request provided that
he has, upon request, furnished the report referred to in the first sentence of this
paragraph and has made or agrees to make available to the agency any other
physician's reports previously or thereafter made of the physical or mental
condition which is the subject matter of his claim.
(2) Itemized bills for medical, dental, and hospital expenses incurred, or itemized
receipts of payment for such expenses.
(3) If the prognosis reveals the necessity for future treatment, a statement of
expected expenses for such treatment.
(4) If a claim is made for loss of time from employment, a written statement from
his employer showing actual time lost from employment, whether he is a full or
part-time employee, and wages or salary actually lost.
(5) If a claim is made for loss of income and the claimant is self-employed,
documentary evidence showing the amounts of earnings actually lost.
(6) Any other evidence or information which may have a bearing on either the
responsibility of the United States for the personal injury or the damages claimed.
28 C.F.R. § 14.4(b).

DHHS’ initial request for further information following plaintiff’s

submission of his Form 95 largely mirrors the categories of information which may be requested
pursuant to § 14.4(b).
Courts have disagreed as to whether compliance with regulations such as § 14.4(b) –
which are promulgated under § 2672 for settlement purposes, not under § 2675 – should be part
of the jurisdictional presentment requirement of § 2675. The Tenth Circuit has not expressed an
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opinion on this point, but the majority of circuits to do so have concluded that the jurisdictional
presentment requirement under § 2675 is separate and distinct from the procedures established
under § 2672 to facilitate settlements. See, e.g., G.A.F. Corp. v. United States, 818 F.2d 901, 919
(D.C. Cir. 1987) (“To conflate the mandatory presentment requirement of Section 2675(a) with
the settlement procedures of Section 2672, and require claimants to substantiate claims for
settlement purposes as a prerequisite for filing suit, is to compel compliance with settlement
procedures contrary to congressional intent.”) (footnote omitted).

The G.A.F. decision is

considered to be the leading case relevant to this analysis, and it is supported by several other
circuit decisions. See id.; Charlton v. United States, 743 F.2d 557 (7th Cir. 1984); Warren v.
United States Dep't of Interior Bur. of Land Management, 724 F.2d 776 (9th Cir. 1984) (en
banc); Tucker v. United States Postal Service, 676 F.2d 954 (3rd Cir. 1982); Douglas v. United
States, 658 F.2d 445 (6th Cir. 1981); Adams v. United States, 615 F.2d 284 (5th Cir. 1980).1 In
short, the majority position is that a plaintiff is not necessarily required to comply with the
regulations promulgated under § 2672, such as the § 14.4(b) regulation cited above, for her claim
to be exhausted, thereby rendering jurisdiction proper in federal court.2
This Court finds – consistent with the majority position – that plaintiff was not, as a
matter of law, required to provide the information requested by DHHS’ letters (and also found in
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But see Kanar v. United States, 118 F.3d 527, 528-29 (7th Cir. 1997) (holding that a plaintiff
must comply with each of the regulatory requirements found in 28 C.F.R. § 14.2); Mader v.
United States, 654 F.3d 794, 803-04 (8th Cir. 2011) (requiring plaintiffs to include evidence of a
representative’s authority to act on behalf of the claim’s beneficiary (as required under § 14.2),
but declining to interpret § 2675 as requiring compliance with regulations promulgated under §
2672).
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While the Tenth Circuit has not adopted this position, it has noted that the test for presentment
should be a “pragmatic one” and “should not be interpreted inflexibly.” Trentadue, 397 F.3d at
853. These observations are consistent with this Court’s reliance upon the five circuits which
have squarely concluded that § 2675’s jurisdictional presentment requirement is distinct from the
procedures intended to facilitate settlements under § 2672.
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the instructions portion of the Form 95) in order to meet the notice requirement of § 2675.
However, it remains to be determined whether the information provided by plaintiff was
sufficient “to enable the agency to begin its own investigation.” Trentadue, 397 F.3d at 852
(internal quotation omitted).
Plaintiff’s Form 95 does not provide a great deal of information about the basis for his
claim. The form provides the date of the “accident,” the nature of the injury, the amount of the
claim, and states some basic information about MCHS and how plaintiff’s injury came about.
As noted, plaintiff provided more information to DHHS in response to its second letter.
Specifically, plaintiff provided his medical bills and an expert report which described the injuries
sustained by plaintiff and his long-term prognosis. (Doc. 9-3; Doc. 11, at 1). The Court finds
that this information, when viewed in its totality, was sufficient to put DHHS on notice of
plaintiff’s claim and permit it to conduct an investigation into the claim. See, e.g., Douglas, 658
F.2d at 448 (holding notice was sufficient where plaintiff submitted completed Form 95, medical
bills, and two medical reports, but failed to submit other reports and records requested by
agency); Koziol v. United States, 507 F. Supp. 87, 89-91 (N.D. Ill. 1981) (notice sufficient where
plaintiff provided physician’s report and medical bills with incomplete Form 95, but ignored
requests by agency to submit materials with second completed Form 95); Reynoso v. United
States, 537 F. Supp. 978, 979 (N.D. Cal. 1982) (notice sufficient where plaintiff gave written
notice, placed a value on claim, and government had access to majority of medical information).
The United States has argued that plaintiff’s medical records were in the sole possession
and custody of plaintiff, however it has provided no explanation as to why it could not conduct
some type of investigation with the information it did have. As the Court has noted, the
jurisdictional presentment requirement does not specifically require the provision of a plaintiff’s

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medical records to the relevant agency prior to filing a lawsuit. The agency knew when, where,
and how the alleged injury took place, and could have acted on that information.3 That is
sufficient to trigger the jurisdiction of this Court under § 2675.
IT IS THEREFORE ORDERED that defendant’s motion to dismiss (Doc. 9) is denied.
Defendant is directed to file its Answer on or before May 22, 2013.
SO ORDERED this 2nd day of May, 2013.

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In this respect, the Court notes that, when MCHS was deemed eligible for FTCA malpractice
coverage, it was required to provide assurances that it would “cooperat[e] with the Department
of Justice (DOJ) in the defense of claims and actions to prevent claims in the future.” (Doc. 9-1).
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