Lopez-de-Robinson v. United States ( 1997 )

[Not For Publication]
United States Court of Appeals
For the First Circuit
No. 96-1702
MARIA M. LOPEZ-DE ROBINSON,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Raul Barrera Morales with whom Jesus Hernandez Sanchez and
Hernandez Sanchez Law Firm were on brief, for appellant.
Fidel A. Sevillano Del Rio, Assistant United States Attorney,
with whom Guillermo Gil, United States Attorney, was on brief for
appellee.
MAY 13, 1997
Per Curiam. Plaintiff, a widow, appeals from the
Per Curiam.
district court's award of $50 thousand under the Federal Tort
Claims Act (FTCA), 28 U.S.C. 2671 et seq., to compensate
her for pain and suffering due to the failure of the Veterans
Administration Hospital in San Juan to admit her ill husband
a few days prior to his death. She seeks additional damages,
arguing that several of the district court's factual findings
are clearly erroneous. She takes particular issue with the
court's finding that prompt hospitalization would not have
saved her husband's life. She also argues that the court
erred in concluding that her late husband's estate was not
entitled to any recovery because it was not properly a party
to the suit.
I
We recite the facts as found by the district court
after the three-day bench trial. In May 1989, Vance Robinson,
a 64-year-old veteran, visited Dr. Luis Marrero, who ordered
laboratory tests. The tests suggested that Robinson had
liver cancer.
On Friday, July 7, 1989, Robinson went to the VA
Hospital in San Juan complaining of a host of symptoms,
including a grossly enlarged abdomen (ascites) and acute
stomach pains. The intake physician, Dr. Sylvia Fuertes,
diagnosed Robinson as having ascites and an occult neoplasm,
but did not note the ascites on his medical record. She did
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not believe that Robinson's case was an emergency, but she
recommended that he be admitted immediately as an elective
admission. There were no available beds, however, and so she
told Robinson to return on Monday.
Robinson went to the admissions office of the
hospital on Monday at 9:00 a.m. He was not re-examined. He
waited there all day, but was told there were no beds
available. The same thing happened on Tuesday. That evening,
Robinson was taken to the emergency room at San Pablo
Hospital, where he was admitted as a patient. The diagnosis
was ascites, suspected liver cancer, anemia and hepato-renal
syndrome. A CT scan revealed an enlarged liver due to
lesions suggestive of metastatic cancer.
On July 18, Robinson discharged himself from the
hospital. He died the next day. No biopsy was ever
performed to confirm the diagnosis of suspected liver cancer,
and no autopsy was performed at the time of death. Liver
cancer was listed as the cause of death on the death
certificate.
Robinson's widow, the plaintiff here, filed an
administrative claim in her name against the United States
with the Department of Veterans Affairs. The claim was
denied, and she filed a complaint in federal court within six
months.
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Over two years after Robinson's death, plaintiff
had the body exhumed so that Dr. Yocasta Brugel could prepare
a forensic report. Dr. Brugel indicated that she found no
evidence of liver cancer and that Robinson had died of
myocarditis, a rare heart ailment which seldom leads to
death. The autopsy was admitted into evidence without
objection. However, Dr. Brugel did not appear at trial to
testify. The district court found that either the autopsy
report was totally unreliable, or, in the alternative, that
the autopsy had been performed on someone other than
Robinson. The court also found that the slides of the liver
on which the report was based were not those of Robinson's
liver.
The district court concluded that the hospital's
failure to admit Robinson on Friday evening did not violate
acceptable medical standards. However, it found that
Robinson should have been re-examined when he returned to the
hospital on Monday, to ensure that his condition had not
deteriorated to emergency status, and concluded that this
omission did violate acceptable medical standards and caused
pain and suffering to Robinson and his wife. The court also
found that admitting Robinson to the hospital on Friday,
Monday or Tuesday would not have saved his life but would
have permitted palliative treatment to ease his pain and
suffering.
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The court awarded plaintiff $50 thousand for her
pain and suffering as she watched her husband's condition
deteriorate during the three days before he was finally
admitted to a hospital. The district court also indicated
that it would have awarded an additional $50 thousand for
Robinson's pain and suffering if his estate had been named as
a plaintiff.
Plaintiff appeals on several grounds. She argues
that the district court's finding that the VA Hospital's
failure to admit Robinson was not the cause of death is
clearly erroneous, as was the district court's finding that
the autopsy report was totally unreliable. She also argues
that the court erred in refusing to award pain and suffering
damages to the decedent's estate: she contends that under
Puerto Rico law, when a man dies intestate (as did Robinson)
his widow and children are his heirs. She concludes that she
and her sons should have received the $50 thousand the
district court indicated it would have awarded for Robinson's
pain and suffering.
II
Factual Findings
We review the district court's findings of fact for
clear error. Irving v. United States, 49 F.3d 830, 835 (1st
Cir. 1995); see also Fed. R. Civ. P. 52(a). In this case,
there is a significant amount of support in the record for
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the district court's factual determinations, which therefore
are not clearly erroneous.
The district court's finding that the hospital's
failure to admit Robinson was not the cause of his death is
supported by the testimony of Dr. Figueroa, the government
expert in cardiology. He testified that, in his opinion, at
the time Robinson went to the VA Hospital on July 7, there
was nothing that could have been done to prevent Robinson's
death on the 18th; at that point the hospital could have done
nothing more than to have made him comfortable.
There is also evidence in support of the district
court's conclusion that the autopsy report was not based on
an examination of Robinson's liver. The liver from which the
slides were taken was of normal size, while Robinson's liver
had been enlarged. The slides of the liver showed no
evidence of severe liver disease such as metastatic cancer.
Instead, they indicated a fatty liver, a much less serious
condition. However, all of the clinical data indicated that
Robinson was suffering from severe liver disease at the time
he died. The testimony of Dr. Marrero indicates that
Robinson likely had severe liver disease as early as May
1989. Dr. Ramirez, the government expert in pathology,
testified that there was ample clinical, radiological and
laboratory evidence that Robinson suffered from severe liver
disease, but that there was no indication of this in the
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autopsy slides. Furthermore, Dr. Ramirez testified that
descriptions in the autopsy report of other organs were not
what one would have expected given Robinson's medical
history. For example, Robinson had dilated veins in his
esophagus butthere wasno mention ofthis in theautopsy report.
Exhaustion of Administrative Remedies
The district court held that it could not award
damages for Robinson's pain and suffering because his estate
did not present a claim to the proper administrative agency
and therefore did not exhaust its administrative remedies.
Review of this legal conclusion is de novo. Roche v. Royal
Bank of Canada, 109 F.3d 820, 827 (1st Cir. 1997).
The Federal Tort Claims Act provides that "no
action shall be instituted upon a claim against the United
States . . . unless the claimant shall have first presented
the claim to the appropriate Federal agency and his claim
shall have been finally denied . . . ." 28 U.S.C. 2675(a).
In this case the appropriate agency is the Veterans Affairs
Department.
The determination of when a claim is deemed
presented is made pursuant to federal regulations, which
require the submission of written notification of the
incident and a claim for money damages in a specific sum. 28
C.F.R. 14.2(a). The purpose is to encourage settlement:
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if the agency knows exactly what the claimant seeks, there is
more likely to be a settlement.
Plaintiff filed an administrative claim with the
Department of Veterans Affairs in which she identified
herself but not her late husband's estate as claimant.1 She
now argues that this satisfied the exhaustion requirement
with respect to both her claims and those of the estate. A
similar argument was rejected in Estate of Santos v. United
States, 525 F. Supp. 982, 986 (D.P.R. 1981). The court there
held that each person seeking personal damages under the FTCA
must file an individual claim, and that a claim must put the
agency on notice of who was actually pursuing the claim and
the amount of the claim. Id.; see also Adames Mendez v.
United States, 652 F. Supp. 356, 358 (D.P.R. 1987), aff'd,
873 F.2d 1432 (1st Cir. 1989) (tbl.); Del Valle Rivera v.
United States, 626 F. Supp. 347, 348-49 (D.P.R. 1986).
We agree. Allowing one claimant's exhaustion of
her administrative remedies to satisfy the exhaustion
requirement for other possible claimants would make it
extremely difficult for the agency to know the value of the
suit, thus making settlement less likely. Del Valle Rivera,
626 F. Supp. at 348-49.
The decision of the district court is affirmed.
1. The administrative claim was not included in the
appellate record, but counsel conceded at oral argument that
Robinson's estate was not named as a claimant.
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