Drew v. United States ( 2000 )

Rehearing en banc granted by order
filed 9/8/00; opinion issued 6/27/00
is vacated
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
STERLING DREW, a minor under the
age of thirteen years, by guardian
ad litem Martha Drew; MARTHA
DREW; JEBEDIAH DREW,
No. 99-1009
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CA-98-1817-3-19)
Argued: January 27, 2000
Decided: June 27, 2000
Before WILLIAMS, MICHAEL, and KING, Circuit Judges.
_________________________________________________________________
Vacated and remanded by published opinion. Judge King wrote the
opinion, in which Judge Michael joined. Judge Williams wrote a dis-
senting opinion.
_________________________________________________________________
COUNSEL
ARGUED: Mortimer Meyer Weinberg, III, WEINBERG &
BROWN, Sumter, South Carolina, for Appellants. Jon Rene Josey,
United States Attorney, Columbia, South Carolina, for Appellee. ON
BRIEF: Frances C. Trapp, Assistant United States Attorney, Colum-
bia, South Carolina; Major Eric S. Israel, Chief Medical Law Branch,
Tort Claims Litigation Division, AIR FORCE LEGAL SERVICES
AGENCY, Arlington, Virginia, for Appellee.
_________________________________________________________________
OPINION
KING, Circuit Judge:
The infant Sterling Drew ("Sterling") and his parents appeal the
dismissal of their action under the Federal Tort Claims Act ("FTCA")
for injuries allegedly caused by birth control medication administered
by medical personnel of the United States Air Force. The district
court decided that it lacked jurisdiction over the subject matter
because the claim had not been properly exhausted, as required by the
FTCA. More specifically, the court determined that the Drews'
administrative claim failed to provide the Air Force with sufficient
notice of its factual and legal bases. For the reasons explained below,
we vacate the dismissal and remand for further proceedings.
I.
A.
The plaintiffs filed suit against the Government, seeking damages
for prenatal injuries to Sterling. These injuries were allegedly caused
by the birth control drug Depo-Provera, which had been administered
to Sterling's mother, Martha Drew, by physicians at Shaw Air Force
Base in South Carolina. Mrs. Drew's husband, Jebediah, is an enlisted
serviceman on active duty with the Air Force, and the family lives on
the base.
In their initial complaint, the plaintiffs alleged that Mrs. Drew was
negligently given Depo-Provera while she was pregnant with Sterling.
The complaint alleged that, as a result, Sterling was born with physi-
cal malformations (including an imperforate anus and a ventricular
septal defect in his heart), and he will continue to suffer from various
other genetic and developmental disorders. The complaint sought
2
compensation for Sterling for his injuries, and it also sought recovery
by his parents of the expenses of Sterling's medical care.
In discovery, it developed that Mrs. Drew was not given Depo-
Provera while pregnant, but rather became pregnant after she had
been administered Depo-Provera, while the drug remained in her sys-
tem. The plaintiffs thus amended their complaint to conform to the
evidentiary record, asserting a cause of action for the negligent failure
of Air Force medical personnel to obtain Mrs. Drew's informed con-
sent prior to the administration of Depo-Provera.
Correspondingly, the Government moved to dismiss the amended
complaint, pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure. The Government contended that the district court lacked
subject matter jurisdiction to entertain the informed-consent claim,
asserting that it was not encompassed within the administrative claim
filed with the Air Force, as required by 28 U.S.C.§ 2675(a). The dis-
trict court, on December 1, 1998, granted the Government's motion
and dismissed the amended complaint with prejudice. It is from this
dismissal order that the plaintiffs appeal.
B.
Between 1992 and 1995, Mrs. Drew became pregnant on five occa-
sions while using traditional birth control medications. Of these five
pregnancies, three resulted in live births and two terminated in mis-
carriages. After her fourth pregnancy, Mrs. Drew sought birth control
counseling at Shaw Air Force Base. In the course of this counseling,
Mrs. Drew was encouraged by various medical personnel at Shaw to
use Depo-Provera as a means of birth control. According to her testi-
mony, Mrs. Drew was advised by the medical personnel that Depo-
Provera was one hundred percent effective in preventing live births.
She was further told there was a mere one chance in one thousand that
she might become pregnant while on Depo-Provera, and that if she
did, the pregnancy would spontaneously abort.
Pursuant to this advice, Mrs. Drew consented to Depo-Provera
therapy for birth control purposes. She received her first injection of
Depo-Provera on July 28, 1994; a second injection on October 24,
1994; and a third injection on or about February 1, 1995. Despite this
3
preventative regimen, Mrs. Drew again became pregnant, and she was
so diagnosed at Shaw on May 30, 1995. Contrary to the representa-
tions made by the Government's medical personnel, the pregnancy
did not spontaneously abort, but culminated in the birth of Sterling on
December 30, 1995. The plaintiffs maintain that Sterling's myriad
birth defects are the result of being exposed to Depo-Provera in utero.
On November 21, 1996, after Sterling was diagnosed with his mul-
tiple problems, the Drews filed a claim for damages with the Air
Force, pursuant to the FTCA. This administrative claim, submitted on
a Standard Form 95 ("SF-95"), alleged the following as its factual
predicate:
Spontaneous delivery of male infant with imperforate anus,
ventricular septal defect, left facial palsy, umbilical hernia
and inguinal hernia at Shaw Air Force Base Hospital. Depo-
Provera injection given to claimant in early pregnancy.
J.A. 94 (emphasis added). Over a year later, on December 23, 1997,
the claim was denied by the Air Force.
On June 22, 1998, the plaintiffs timely filed their complaint in the
district court, seeking compensation from the Government for birth
defects caused by Depo-Provera and asserting, in accordance with the
administrative claim, that Mrs. Drew was given Depo-Provera while
she was in fact pregnant with Sterling. Thereafter, on October 30,
1998, the plaintiffs amended the complaint to restate their claim for
medical negligence as one based upon lack of informed consent.
II.
The FTCA prohibits the filing of a civil action against the Govern-
ment unless the underlying claim is "first presented" to the appropri-
ate federal agency and subsequently denied. 28 U.S.C. § 2675(a).1
_________________________________________________________________
1 The pertinent portion of the statute at issue provides as follows:
An action shall not be instituted upon a claim against the United
States for money damages for injury or loss of property or per-
sonal injury or death caused by the negligent or wrongful act or
4
Where such a claim is not first presented to the appropriate agency,
the district court must, pursuant to Fed. R. Civ. P. 12(b)(1), dismiss
the action for want of subject matter jurisdiction. See McNeil v.
United States, 508 U.S. 106 (1993) (upholding dismissal of suit
against Government where plaintiff had not exhausted available
administrative remedies); see also Henderson v. United States, 785
F.2d 121, 123 (4th Cir. 1986) (exhaustion requirement is "jurisdic-
tional"). We review de novo the district court's determination that the
plaintiffs failed to properly exhaust their claim under the FTCA. Robb
v. United States, 80 F.3d 884, 887 (4th Cir. 1996).
III.
A.
1.
The plaintiffs rely on the principle that a district court is not
divested of jurisdiction under the FTCA where the claim presented in
court is "reasonably related" to the claim presented to the administra-
tive agency. See Harris v. United States, 797 F. Supp. 91 (D.P.R.
1992). Harris involved the alleged assault and battery of two third-
grade pupils by their teacher at an elementary school located on a
naval base. The plaintiffs asserted in their administrative claim that
the Government-run school was liable in a supervisory capacity for
the torts of its employee; before the district court, however, the plain-
tiffs shifted gears a bit, alleging in their complaint that the school had
breached an independent duty to protect its students.
In denying the Government's motion to dismiss, the district court
observed:
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omission of any employee of the Government while acting
within the scope of his office or employment, unless the claim-
ant shall have first presented the claim to the appropriate Fed-
eral agency and his claim shall have been finally denied by the
agency in writing and sent by certified or registered mail.
28 U.S.C. § 2675(a) (emphasis added).
5
Although a filing of an administrative claim pursuant to 28
U.S.C. § 2675(a) is a jurisdictional prerequisite to judicial
action, its purpose is essentially to give notice to the Gov-
ernment, to conduct a meaningful investigation to ade-
quately defend itself. It is not bound by the standards
applicable to court proceedings.
Id. at 93 (footnote omitted). The court noted further that "the legal
basis for relief need not be specified . . . and alternate theories of lia-
bility can be presented at judicial proceedings." Id. (citing Broudy v.
United States, 722 F.2d 566, 568-69 (9th Cir. 1983), for the former
proposition, and Johnson by Johnson v. United States, 788 F.2d 845,
849 (2d Cir. 1986), for the latter).2
2.
In response, the Government reminds us that, although the FTCA
is intended to waive the sovereign immunity of the United States,
Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999),
such a waiver "will be strictly construed, in terms of its scope, in
favor of the sovereign." Lane v. Pena, 518 U.S. 187, 192 (1996) (cit-
ing cases). According to the Government, a strict construction of the
FTCA behooves us to parse the plaintiffs' complaint to determine in
what respect, if any, it deviates from their prior administrative claim;
to the extent that the court pleadings arguably broaden the grounds for
relief beyond those previously stated, the Government urges that we
reject the corresponding claim as unexhausted.
_________________________________________________________________
2 In short, the essentials of a proper administrative claim are even less
exacting than the liberal notice-pleading standards applicable to federal
court complaints. Johnson, 788 F.2d at 848 ("[A]n administrative claim
need not meet formal pleading requirements . . . ."); Michels v. United
States, 815 F. Supp. 1244, 1257 n.16 (S.D. Iowa 1993) (citing Johnson);
Harris, 797 F. Supp. at 93 (quoting Johnson ).
6
Barb.
1.
We repudiate the notion that the validity of a judicial complaint
under the FTCA depends on it having been cloned from its predeces-
sor, the administrative claim. We instead agree with the Harris court
that the proper focus is on whether the administrative claim affords
the Government with adequate notice to properly investigate the
underlying incident so that it may either reasonably assess its liability
or competently defend itself. See Ahmed v. United States, 30 F.3d
514, 517 (4th Cir. 1994) ("Section 2675(a) of Title 28 and 28 C.F.R.
§ 14.2(a) require two elements for sufficient presentment of a claim
to an agency: 1) written notice sufficient to cause the agency to inves-
tigate, and 2) a sum-certain value on the claim.") (citation omitted).3
Under the initial prong of the presentment requirement, then, the
salient question is whether, in light of all the circumstances of a par-
ticular case, the notice afforded the Government by the claimant is
sufficient. In Richland-Lexington Airport Dist. v. Atlas Properties,
Inc., 854 F. Supp. 400 (D.S.C. 1994), our distinguished colleague
Judge Traxler accurately noted that "[t]he sufficiency of the notice
requirement under § 2675(a) ``is more than a question of technical
niceties.'" Id. at 409 (quoting Keene Corp. v. United States, 700 F.2d
836, 842 (2d Cir. 1983)). He elaborated:
[N]otice must do more than cause "the government to sift
through the record." Rather, notice must be sufficiently
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3 In enacting Section 2675, Congress sought "to ease court congestion
and avoid unnecessary litigation, while making it possible for the Gov-
ernment to expedite the fair settlement of tort claims asserted against the
United States." S. Rep. No. 1327, 89th Cong., 2d Sess. 2 (1966) ("S.
Rep."), reprinted in 1966 U.S.C.C.A.N. 2515, 2516. Section 2675's
requirement that a claim be filed before instituting suit is designed to
bring the claimants' allegations to the immediate attention of the relevant
agency. The purpose of this notice is "to protect the [Government] from
the expense of needless litigation, give it an opportunity for investiga-
tion, and allow it to adjust differences and settle claims without suit." S.
Rep. at 7; 1966 U.S.C.C.A.N. at 2517.
7
detailed so that the United States can "evaluate its exposure
as far as liability is concerned." Therefore, in addition to
requiring a sum certain, a claimant must provide a sufficient
factual predicate so that his claim can be investigated.
Atlas Properties, 854 F. Supp. at 412 (quoting Keene Corp., 700 F.2d
at 842).4
2.
a.
We turn now to evaluate the circumstances of the case before us.
We must determine whether the factual predicate alleged by the plain-
tiffs in their administrative claim afforded sufficient notice to the
Government to investigate the underlying conduct, such that it could
reasonably assess the extent of its liability vis-a-vis the complaint that
was subsequently filed.5
In performing our evaluation, we find it helpful to first consider a
hypothetical claim -- one very similar to the actual claim but with the
last three words of the factual predicate omitted:
Spontaneous delivery of male infant with imperforate anus,
ventricular septal defect, left facial palsy, umbilical hernia
and inguinal hernia at Shaw Air Force Base Hospital. Depo-
Provera injection given to claimant.
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4 Judge Traxler concluded that the sufficiency of the notice at issue (a
series of letters between the plaintiff and the Environmental Protection
Agency) was "a close question," but that the plaintiff's claim had not
been exhausted in any event because of the failure of the second prong
of the presentment requirement, i.e., the omission from the correspon-
dence of a demand for a sum certain as damages arising from the claim.
Atlas Properties, 854 F. Supp. at 413.
5 There is no question that the second prong of the presentment require-
ment was fulfilled here. The SF-95 filed by the Drews claims damages
for personal injury in the amount of $15 million.
8
The rationale for our approach is simple: if this hypothetical predicate
-- consisting solely of facts that we must presume to be true -- is
insufficient notice of an informed-consent claim, then the further
assertion that the injection occurred "in early pregnancy," demonstra-
bly incorrect, could not have remedied the deficiency. Only if the
hypothetical predicate passes legal muster will we be constrained to
examine whether the additional words "in early pregnancy" would
somehow render it insufficient.
In Frantz v. United States, 29 F.3d 222 (5th Cir. 1994), the court
of appeals addressed the district court's dismissal of an informed-
consent claim that was nowhere explicitly mentioned in the SF-95,
which merely alleged negligence in the care and treatment of the
plaintiff at a Veterans Administration hospital. The Fifth Circuit
nonetheless reversed, concluding that the notice afforded the Govern-
ment was sufficient:
The administrative claim provided the date, location, and
description of Mr. Frantz's injury . . . . Moreover, the claim
named "[a]ll medical personnel who cared for Chester
Frantz" as potential witnesses . . . . Furthermore, the Gov-
ernment's investigation of the administrative claim should
have revealed the possibility of an informed consent claim.
Under Texas law, a suit for the failure of a doctor to fully
inform a patient of the risks of surgery sounds in negligence
. . . . By its very nature, the informed consent claim is
included in the Frantzes' allegation of negligence in their
administrative claim. We therefore hold that the administra-
tive claim provided the Government with sufficient informa-
tion to conduct a full investigation and to put it on notice of
the possibility of the informed consent claim.
Id. at 224-25 (citations and footnotes omitted) (emphasis added). In
essence, the Fifth Circuit held in Frantz that there is an obligation on
the part of the Government to conduct a diligent investigation, once
it has been notified that it may be liable for the acts of its employees.
We would be hard-pressed to disagree. The presentment require-
ment of the FTCA confers upon the Government an advantage that
most prospective tort defendants lack: an opportunity for informal
9
fact-gathering and deliberate reflection. Once suit has been filed and
the battle joined, discovery proceeds within rigid parameters, and
pensiveness is a luxury not easily indulged.
In recognition of this freedom from litigation by ambush on which
Congress has conditioned the sovereign's waiver of immunity, it is
incumbent upon the courts to encourage the sovereign's agents to pro-
ceed as its lawmakers have evidently intended. Liability in a given sit-
uation cannot be thoroughly and thoughtfully assessed without
accurate and complete information; the Government must therefore be
charged with the duty to reasonably pursue the relevant facts, rather
than being permitted to fall back on a few typed sentences appearing
on a pre-printed form.
A diligent investigation of a medical negligence claim entails, at
the very least, a general review of the patient's records with especial
regard to the chain of events leading to the complained-of injury.
Included within that chain of events, as the Frantz court noted, are the
circumstances underlying the patient's decision to embark on the par-
ticular course of treatment. The overarching theme is the alleged neg-
ligence of the Government's employees, and it is of little moment that
the instrument of the patient's misfortune can be found in the initia-
tion, planning, or execution of her therapy; regardless of which link
proves defective, the chain of causation remains unbroken.
Hence, what might appear at first blush to be distinct claims are
actually little more than alternative legal theories applicable to the
same set of operative facts, akin to the situation in Harris, discussed
supra at Part III.A.1. This is the import of the Fifth Circuit's observa-
tion, set forth above, that "[b]y its very nature," an informed-consent
"claim" is included within a general allegation of negligent care and
treatment. The plaintiff in Frantz claimed"negligence in surgery," the
Texas courts had previously held that an informed-consent action
sounds in negligence, and the Fifth Circuit declined to limit the words
"in surgery" to the narrow procedure in which the treatment process
culminated. Frantz, 29 F.3d at 224 & nn. 6-7.
South Carolina, like Texas, recognizes a cause of action for negli-
gence where a physician fails to "inform a patient of the material risks
inherent in a proposed treatment or procedure." Hook v. Rothstein,
10
316 S.E.2d 690, 698 (S.C. Ct. App.), cert. denied, 320 S.E.2d 35(1984).6 And South Carolina, in the context of discussing the evi-
dence that the plaintiff must adduce to prevail on an informed-consent
claim, has acknowledged the relatedness between the various actions
that might arise from the course of a patient's treatment:
An informed consent action is no different from any other
action for professional malpractice. Underlying every medi-
cal malpractice action is the basic principle that the physi-
cian departed from a standard of reasonable care . .. .
Because the question of whether the physician has acted
unreasonably often involves the exercise of medical judg-
ment, we feel that, in most cases, expert medical testimony
is just as necessary to establish negligence in failing ade-
quately to disclose as it is to prove negligence in failing to
treat or diagnose properly.
Hook, 316 S.E.2d at 696-97. From this discussion by the Court of
Appeals of South Carolina in Hook, it is apparent that, in South Caro-
lina, an informed-consent claim is a specific subset of the larger uni-
verse of "medical malpractice actions."
In our view, the hypothetical predicate gives notice of a "medical
malpractice action," which includes the possibility of an informed-
consent claim. As was the case in Frantz, the hypothetical claim
describes the claimant's injuries and, elsewhere in the SF-95, speci-
fies the date and place of their occurrence. Moreover, the hypothetical
claim names as potential witnesses "[a]ll medical personnel related to
this specific case," in a fashion nearly identical to the claim at issue
in Frantz.
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6 The FTCA authorizes federal agency heads and the Attorney General
(or her designee) to settle claims against the Government for money
damages "under circumstances where the United States, if a private per-
son, would be liable to the claimant in accordance with the law of the
place where the act or omission occurred[.]" 28 U.S.C. § 2672. Section
2674 confirms that "[t]he United States shall be liable, respecting the
provisions of this title relating to tort claims, in the same manner and to
the same extent as a private individual under like circumstances . . . ."
An examination of the relevant state law, if any, is therefore necessary
to determine the extent of the Government's liability in a particular case.
11
In light of the similarity of the hypothetical claim to the one at
issue in Frantz, it should come as no surprise that our conclusion with
respect to the former is the same as the Fifth Circuit's concerning the
latter: the information contained within sufficed to compel the Gov-
ernment to thoroughly investigate the possibility that some or all of
the claimant's injuries were attributable to an employee's breach of
his duty to obtain the patient's informed consent.
b.
Of course, we are not dealing with a hypothetical claim in this case.
We must therefore decide whether the additional, incorrect informa-
tion actually alleged -- that Mrs. Drew was administered Depo-
Provera "in early pregnancy" -- so narrowed the scope of a reason-
able investigation that the Government may be said to have been
without notice, and thus excused from failing to discover the essence
of the plaintiffs' claim.
Although we can imagine a situation where a misstatement in an
SF-95 could affirmatively mislead the Government such that an other-
wise sufficient notice would be nullified, this is not one of those situa-
tions. The Government had complete access to Mrs. Drew's medical
file at Shaw Air Force Base; those records reflected that Mrs. Drew
had received her last injection of Depo-Provera weeks or months prior
to Sterling's conception.7
Indeed, the Government was fully aware that Mrs. Drew could not
have been given Depo-Provera during her pregnancy, as illustrated by
the letter denying her administrative claim:
There are several reasons for my denial. You allege that
Mrs. Drew received an injection of Depo-Provera early in
_________________________________________________________________
7 According to Mrs. Drew's deposition testimony, she received a subse-
quent injection of Depo-Provera from the Shaw medical staff on or about
February 1, 1995, see Part I-B, supra, but this instance is not documented
in the hospital records. Assuming that Mrs. Drew's recollection is accu-
rate, she still would have received her final treatment well before the
onset of her pregnancy, which is acknowledged to have occurred in mid-
to-late April.
12
her pregnancy with Sterling Drew, which caused Sterling's
birth defects. Sterling Drew was born on 29 December 1995
[sic]. The record clearly demonstrates that the last docu-
mented injection was given on 24 October 1994, more than
14 months prior to Sterling's birth. Even if we accept that
the final injection was given on or about 1 February 1995,
as Mrs. Drew asserts, that is still 11 months prior to Ster-
ling's birth. It does not appear possible that Mrs. Drew
could have received an injection of Depo-Provera while she
was pregnant with Sterling.
Injections of Depo-Provera are effective for contraception
for at least 12 weeks. This makes it highly unlikely that Mrs.
Drew received an injection on 1 or 2 February, as she
claims. However, it is certainly possible, as with any contra-
ceptive method, for the Depo-Provera to have failed to pre-
vent pregnancy. This hardly amounts to evidence of
negligence. It is also possible that if the Depo-Provera had
been injected in early February, Sterling Drew may have
been exposed to progesterone pre-natally. However, there is
no scientific basis for attributing any of his developmental
anomalies to intra-uterine hormone exposure. Thus, not only
is there no evidence of negligence in the care rendered to
Mrs. Drew, there is no evidence that any act or omission rel-
ative to her OB/GYN care causally contributed to Sterling's
unfortunate conditions.
Letter from Major Eric S. Israel, Chief, Medical Law Branch, Tort
Claims and Litigation Division, Air Force Legal Services Agency, to
M.M. Weinberg, III, Attorney for the Drews (Dec. 23, 1997) (empha-
sis added).8
_________________________________________________________________
8 This letter was, rather inexplicably, omitted from the record below. At
our request, counsel for the parties have provided us with a copy.
Although our dissenting colleague chides us for taking note of the letter,
post at 23, we refer to it primarily to demonstrate how far afield the Gov-
ernment's inquiry was from the crux of the claim ultimately asserted, a
point on which there appears no dispute. We instead part ways with the
dissent over the likely reason for the miscue: while we take Judge Wil-
liams to argue that the Government was affirmatively misled by the alle-
gations of the administrative complaint, we believe that the Government
simply failed at the threshold to undertake an adequate investigation. See
infra Part III.B.2.c.
13
The denial letter is interesting in several respects. First, there is no
mention of any investigation concerning whether Mrs. Drew was
properly informed of the risks of Depo-Provera therapy. Second, even
if such an investigation had been undertaken, it is plain that the Gov-
ernment's position regarding its liability would not have been differ-
ent, inasmuch as the letter contends that Sterling's injuries were not
caused by exposure to Depo-Provera. Lastly, if Mrs. Drew's account
of what she was told by the Shaw medical staff is believed, i.e., that
Depo-Provera was one hundred percent effective in preventing live
births, the admissions contained in the last-quoted paragraph (not to
mention Sterling's very existence) belie the reasonableness of that
advice.
c.
We accordingly conclude that the administrative claim filed in this
case provided the Government with notice sufficient to evaluate its
liability for damages. The Air Force was notified that a child suffering
from numerous physical defects had been born in one of its base hos-
pitals, and that these defects had allegedly resulted from the dispens-
ing of Depo-Provera by one of its employees. At this point, it was up
to the Government to fully investigate the matter and fill in the details
by asking the right questions, beginning with "Were the risks of
selecting Depo-Provera as a contraceptive reasonably and accurately
explained to Sterling's mother before we embarked on that course of
treatment?" That the claim form contained a minor factual inaccuracy
should not have deterred the Government from acting reasonably by
dotting its "i"s and crossing its "t"s. 9
_________________________________________________________________
9 The dissent, post at 23, is quick to point out that (1) the complaint ini-
tially filed in the district court did not plead the specifics of the
informed-consent claim, inasmuch as its existence was not made plain
until Mrs. Drew was deposed by the Government, see supra at 3; and (2)
Mrs. Drew agreed to continue Depo-Provera therapy in February 1996,
about six weeks after Sterling was born. Neither of these circumstances
persuade us that we should reach a different result in this case.
Of course, anything that counsel for the Drews may (or may not) have
known about the details of his clients' claims prior to filing suit is of sec-
ondary importance to what the Government was obliged to ascertain
14
3.
We recognize that our decision today may be in some tension with
that in Murrey v. United States, 73 F.3d 1448 (7th Cir. 1996). In Mur-
rey, as in Frantz and this case, the Government argued for the dis-
missal of the plaintiff's informed-consent claim on the ground that it
had not been alleged in the SF-95. Judge Posner began his analysis
as follows:
[T]o base a suit on lack of informed consent Murrey's estate
was required to include, or at least to allude to, the issue of
informed consent in the administrative claim. The statute
requires a plaintiff to file his or her "claim" with the relevant
agency . . . in layman's terms a legal basis for suit. The
plaintiff has two such bases. The main one . . . is negligence
in the treatment of Mr. Murrey when, on the morning fol-
lowing the operation, he began to hemorrhage internally.
The subordinate one is the failure to obtain his informed
consent to the operation. They are therefore separate claims
within the meaning of the civil rules.
_________________________________________________________________
under the FTCA. Indeed, we daresay that had the Government asked
Mrs. Drew the same questions in its initial investigation as it did during
her deposition, there would have been little need to litigate the question
of notice.
As for Mrs. Drew's continued use of Depo-Provera, the record does
not reveal when she began to suspect that the drug may have caused Ster-
ling's birth defects (though we can surmise that it was prior to her seek-
ing the advice of counsel in August 1996, see J.A. 61). Any significance
that might be ascribed to Mrs. Drew's actions in this regard, however,
relates strictly to the merits of her informed-consent claim; it is wholly
irrelevant to the discrete issue before us, i.e. , whether the claim may be
properly alleged to begin with. In fact, although the dissent interprets
Mrs. Drew's post-event use of Depo-Provera as evidence that she
accepted the risks associated with the drug (thus relieving the Govern-
ment of its burden to investigate this aspect of its treatment), it seems to
us just as likely that her actions evidenced a misapprehension of the mag-
nitude of those risks.
15
Murrey, 73 F.3d at 1451. Judge Posner acknowledged, however, that
"the fact that failing to file a timely administrative claim has such a
fell consequence argues for greater liberality in determining whether
the administrative claim is adequate," id. at 1452, observing that "the
claim encompasses any cause of action fairly implicit in the facts." Id.
Judge Posner continued:
We do not go so far as the Fifth Circuit, which in Frantz v.
United States . . . held that a claim of failure to obtain
informed consent is implicit when the administrative claim
alleges medical negligence and investigation would turn up
the facts showing that failure. We agree rather . . . that the
administrative claim must narrate facts from which a legally
trained reader would infer a failure to obtain informed con-
sent.
Murrey, 73 F.3d at 1453.10
It is fair to say, based on Judge Posner's opinion in Murrey, that
the Seventh Circuit, if faced with the question before us, would likely
conclude that the notice submitted in this case was insufficient to con-
fer jurisdiction on the district court over the Drews' informed-consent
claim. To the extent that our sister circuit would require a more
detailed exposition than we approve today, we respectfully disagree
that such is necessary. We instead align ourselves with the view of the
Fifth Circuit as set forth in Frantz, in agreement with the Eleventh
Circuit's most recent pronouncement on the matter:
Congress . . . enacted section 2675(a) not to place proce-
_________________________________________________________________
10 Judge Posner ultimately concluded that the required threshold had
been met, noting that the document filed with the Department of Veter-
ans Affairs included the following statement:
On November 15, 1989, Tom [Murrey] entered the Veterans
Hospital in North Chicago to undergo a radical prostatectomy.
He was extremely fearful of this surgery. However, V.A. physi-
cians assured him and his family that surgery was the only avail-
able therapy, and that it would extend his life by 15 years.
Murrey, 73 F.3d at 1452 (brackets in original).
16
dural hurdles before potential litigants, but to facilitate early
disposition of claims . . . . We keep section 2675(a)'s under-
lying purpose in mind when considering the amount of
information it requires from a potential litigant. We have
held that a claimant must give an administrative agency only
enough information to allow the agency to "begin its own
investigation" of the alleged events and explore the possibil-
ity of settlement . . . . We do not require the claimant to pro-
vide the agency with a preview of his or her lawsuit by
reciting every possible theory of recovery . . . or every fac-
tual detail that might be relevant . . . . In short, the amount
of information required is "minimal."
Burchfield v. United States, 168 F.3d 1252, 1255 (11th Cir. 1999)
(citations omitted). Mindful, however, that our decision today not be
construed to effectively vitiate the notice prong of the FTCA's pre-
sentment requirement, we issue the same caveat as did the Eleventh
Circuit:
Our holding does not mean that agency investigations must
go beyond the scope of the matters alleged in administrative
claims. Section 2675(a) does not require an agency to under-
take an independent search for injuries or theories of liabil-
ity that are not closely related to the matters described in the
claim . . . . Nor does our interpretation of the statute mean
that an agency will be on notice of all the facts contained in
voluminous records presented by a claimant, if the claimant
has not pointed to specific sources of injury . . . . Finally,
a claim may be so vague or lacking in detail that the agency
cannot be expected to initiate any investigation at all.
Id. at 1256-57 (citations omitted).
The Government in this case was neither compelled by the plain-
tiffs' administrative claim to peruse "voluminous records," nor forced
to engage in a scavenger hunt for bases of liability far afield from that
easily gleaned from the factual predicate. The Government was, how-
ever, required to familiarize itself with the available records and con-
duct a reasonable investigation -- one of adequate depth to ascertain
17
the likely sources of its liability, if any. That it failed to do so in this
case does not deprive the plaintiffs of a federal remedy.
IV.
For the foregoing reasons, the judgment of the district court is
vacated, and the case is remanded for further proceedings consistent
with this opinion.
VACATED AND REMANDED
WILLIAMS, Circuit Judge, dissenting:
"Depo-Provera injection given to claimant in early pregnancy."
The last three words of this statement clearly set forth the nature of
the claimed injury -- medical negligence arising from the injection
of Depo-Provera during early pregnancy. This statement is notable
because of what it says, as well as what it does not say. Nowhere does
it forecast a claim of informed consent arising from actions occurring
well before conception. Indeed, the words "in early pregnancy" form
the logical time frame for a reasonable investigation of the Drews'
administrative claim, particularly once the investigation revealed the
impossibility of the facts alleged in that claim.
Today, however, the majority fashions a rule under which an
administrative claim constitutes sufficient notice under the FTCA
even though it is only slightly related to -- and, indeed, offers a
wholly different factual predicate than -- the actual claim asserted
before the district court. The majority's rule is overly broad and inap-
propriate, both on the facts of this case and in its far-reaching implica-
tions. This rule also places an unreasonable burden of investigation
upon the Government and encourages fishing expeditions for claim-
ants to recover from the federal fisc. For these reasons, as well as
those discussed below, I respectfully dissent.
I.
The starting point of the analysis is the claim itself, which, as noted
above, contains three very important words: "in early pregnancy." The
18
majority, as part of its analysis, hypothesizes that were it not for these
three words, which it characterizes as "a minor factual inaccuracy,"
ante at 14, the administrative claim certainly would constitute suffi-
cient notice to the Government of a potential informed consent claim.
We need not deal with hypotheticals in this case, however, because
the Drews' administrative claim speaks for itself.
Although an administrative claim need not enumerate each legal
theory, it must, at least, provide sufficient information to enable the
agency to conduct its own investigation. See Ahmed v. United States,
30 F.3d 514, 516-17 (4th Cir. 1994). Thus, "a claimant must . . . pro-
vide a sufficient factual predicate so that his claim can be investi-
gated." Richland-Lexington Airport Dist. v. Atlas Properties, Inc., 854
F. Supp. 400, 412 (D.S.C. 1994) (Traxler, J.). In the present case, the
Drews' administrative claim specifically alleged that Mrs. Drew was
given Depo-Provera while she was pregnant. Consistent with their
administrative claim, the Drews' initial complaint in district court
alleged that "Depo-Provera injections were administered to the Plain-
tiff, Martha Drew . . . when [she] was in fact pregnant." (J.A. at 7
(emphasis added).) Indeed, all of the allegations in the Drews' initial
complaint relate specifically to the Government's alleged negligence
in injecting Mrs. Drew with Depo-Provera during her pregnancy. In
amending their complaint to focus upon conduct that occurred well
before pregnancy, the Drews did not simply assert a different legal
theory based upon facts already alleged in the administrative com-
plaint. Instead, they created, essentially from thin air, a factual predi-
cate entirely different than that originally asserted and investigated.
The most crucial fact in the Drews' administrative complaint -- that
Air Force medical personnel took the affirmative act of injecting
Drew with Depo-Provera while she was already pregnant -- was
entirely incorrect. Likewise, the most crucial fact in the Drews'
informed consent claim -- that medical personnel negligently omitted
to inform or misinformed her of the risks relating to future pregnancy
while under Depo-Provera -- is not suggested, raised or alluded to in
the administrative claim at all. As the Seventh Circuit noted in
Deloria v. Veterans Admin., 927 F.2d 1009 (7th Cir. 1991), "a plain-
tiff cannot present one claim to the agency and then maintain suit on
the basis of a different set of facts." Id. at 1012 (internal quotation
marks omitted).
19
II.
Adopting the broad rule of Frantz v. United States, 29 F.3d 222(5th Cir. 1994), the majority appears to conclude that by asserting a
claim of medical negligence, the Drews necessarily placed the Gov-
ernment on notice of an informed consent claim because informed
consent is a subset of medical negligence under South Carolina law.1
I cannot agree with the majority's reliance upon Frantz, which itself
relies upon a questionable premise. It is true that under South Caro-
lina law, similar to Texas law, a claim of informed consent is recog-
nized as a subset of medical negligence theory. See Hook v. Rothstein,
316 S.E.2d 690, 696-97 (S.C. Ct. App. 1984). It does not follow,
however, that every claim of medical negligence automatically
includes or gives notice of an informed consent claim. Cf. Baxley v.
Rosenblum, 400 S.E.2d 502, 508 (S.C. Ct. App. 1991) (affirming trial
court's refusal to allow Baxley to amend his pleadings to include an
informed consent claim at the close of evidence at trial where Baxley
only offered evidence and expert testimony relating to Dr. Rosen-
blum's alleged failure properly to diagnose and treat Baxley's can-
cer).
Instead, I am convinced that Murrey v. United States, 73 F.3d 1448(7th Cir. 1996), provides the better rule. In Murrey, Judge Posner
addressed whether an administrative claim asserting medical negli-
_________________________________________________________________
1 In Frantz v. United States , 29 F.3d 222 (5th Cir. 1994), the Fifth Cir-
cuit addressed whether the Frantzes had sufficiently put the Government
on notice of an informed consent claim that arose from negligent eye sur-
gery. The Frantzes' administrative claim had asserted "negligence in sur-
gery causing blindness" and "negligence in nasal surgery on husband
causing him to be blind." Id. at 224. The court concluded that the
Frantzes' claim provided sufficient facts because it"provided the date,
location, and description of Mr. Frantz's injury," and listed as potential
witnesses "[a]ll medical personnel who cared for" Mr. Frantz. Id. The
court further reasoned that the Government's investigation of the negli-
gence claim should have revealed the possibility of an informed consent
claim because under Texas law, "a suit for the failure of a doctor to fully
inform a patient of the risks of surgery sounds in negligence." Id. The
court concluded, therefore, that "[b]y its very nature, the informed con-
sent claim is included in the Frantzes' allegation of negligence in their
administrative claim." Id.
20
gence during surgery gave sufficient notice of an informed consent
claim. Even though the Murrey court recognized that informed con-
sent is a species of negligence, it nevertheless observed that "to base
a suit on lack of informed consent Murrey's estate was required to
include, or at least to allude to, the issue of informed consent in the
administrative claim." Id. at 1451. And, although the Murrey court
concluded that the administrative claim provided sufficient facts to
notify the Government of the informed consent claim, 2 it explicitly
rejected Frantz, stating that "the administrative claim must narrate
facts from which a legally trained reader would infer a failure to
obtain informed consent." Id. at 1453; see also Bush v. United States,
703 F.2d 491, 495 (11th Cir. 1983) (concluding that the district court
lacked jurisdiction to consider informed consent claim because
"[n]either the claim nor the attached medical evaluation contained any
challenge to the consent form . . . . There was no allegation that the
doctors failed to disclose the risks involved in the medical procedures.
Thus, the V.A. was not properly apprised of its potential liability on
this ground, and had no opportunity to investigate the claim." (foot-
note omitted)).3
_________________________________________________________________
2 In Murrey v. United States , 73 F.3d 1448 (7th Cir. 1996), unlike the
present case, the administrative complaint gave clear notice of the
informed consent claim. The administrative complaint in Murrey
included an attachment that stated that Murrey was fearful of the surgery
and that the doctors "assured him and his family that surgery was the
only available therapy, and that it would extend his life by 15 years." Id.
at 1452.
3 The majority cites the Eleventh Circuit's more recent decision in Bur-
chfield v. United States, 168 F.3d 1252 (11th Cir. 1999), in which the
court stated that "[w]e 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.'" Id. at 1255 (internal cita-
tions omitted). Notably, the Burchfield court cited Bush v. United States,
703 F.2d 491 (11th Cir. 1983), among other cases, for the proposition
that "[s]ection 2675(a) does not require an agency to undertake an inde-
pendent search for injuries or theories of liability that are not closely
related to the matters described in the claim." Id. at 1256 (emphasis
added).
21
Here, unlike Murrey, there is absolutely no indication in the admin-
istrative complaint that Drew was asserting an informed consent claim.4
Indeed, the facts as alleged in the administrative complaint are incon-
sistent with such a claim because the duty of informed consent, as
now alleged, would have arisen months before Mrs. Drew's preg-
nancy. There is no doubt that faced with these facts, the Murrey court
would reach the opposite conclusion.5
_________________________________________________________________
4 Richland-Lexington Airport Dist. v. Atlas Properties, Inc., 854 F.
Supp. 400 (D.S.C. 1994), an opinion written by then-district Judge Trax-
ler, also sets forth standards that are inconsistent with the majority's
decision. In Atlas Properties, Judge Traxler stated that § 2675(a)'s notice
requirement "is more than a question of technical niceties." Id. at 409
(internal quotation marks omitted). He also clarified that
notice must do more than cause "the government to sift through
the record." Rather, notice must be sufficiently detailed so that
the United States can "evaluate its exposure as far as liability is
concerned." Therefore, in addition to requiring a sum certain, a
claimant must also provide a sufficient factual predicate so that
his claim can be investigated.
Id. at 412 (quoting Keene Corp. v. United States, 700 F.2d 836, 842 (2d
Cir. 1983)) (internal citations omitted). Although the majority cites the
standards set forth in Atlas Properties, it apparently finds no guidance in
them because it fails to apply these standards to the present case. Had the
majority applied these standards, its rationale would fail. The majority's
decision effectively imposes upon the Government a duty to "sift through
the record" in the face of an evolving factual predicate in order to antici-
pate facts that a plaintiff might have alleged, but did not. The majority's
approach places too much of a burden upon the Government and gives
too great a reward to a chameleon-like claimant.
5 The majority characterizes the factual discrepancy between the
administrative complaint and the Drews' informed consent claim as "a
minor factual inaccuracy." Ante at 14. This characterization might be true
if the proper standard of measurement for the level of inaccuracy is the
number of words rather than the meaning of those words. To the con-
trary, "a minor factual inaccuracy" might be alleging that a car is blue
when in fact it is teal. The inaccuracy in this case, however, goes to the
very factual basis upon which the Drews' newly asserted legal theory
rests. Surely, there is more than a "minor" difference between an allega-
tion that a doctor injected a contraceptive during pregnancy -- an affir-
mative act that, on its face, may be inappropriate and that itself suggests
22
The rule of Murrey, and its emphasis on the legally trained reader,
is particularly apt to the present facts. I find it particularly notable that
the Drews' counsel, an experienced litigator in medical negligence
law, was apparently unaware of the possibility that the Drews might
have an informed consent claim based upon the facts as alleged in
their administrative complaint. Only after discovery did Mrs. Drew
completely change her version of the facts from those contained in the
administrative complaint, prompting counsel to move in district court
to amend the Drews' complaint to include the informed consent
claim. Yet, the majority would inexplicably place the burden upon the
Government to anticipate facts and theories that the Drews' own
counsel could not.
Moreover, although the majority notes that "[t]he Government had
complete access to Mrs. Drew's medical file at Shaw Air Force
Base," ante at 12, these records contain an important fact that would
have further deterred the Government from anticipating an informed
consent claim from the administrative complaint-- Mrs. Drew took
additional doses of Depo-Provera after her child was born with a defect.6
If the idea behind informed consent is that the injured party would not
have taken the drug had she known about its risks, how can we expect
the Government to forecast an informed consent claim in light of
records that clearly show that Mrs. Drew continued to take the drug
even after becoming aware of those risks?
III.
The majority also relies upon a letter from Major Eric S. Israel to
the Drews' counsel denying the Drews' administrative claim. At the
outset, I question the propriety of relying upon a letter that was never
raised before the district court. (See Letter from the Drews' counsel
_________________________________________________________________
the basis of liability -- and an injection of a contraceptive months before
pregnancy, when use of a contraceptive is generally appropriate, and
where the basis of liability is not the use of the drug itself, but rather an
omission that accompanies its injection.
6 Sterling Drew was born on December 30, 1995. On February 15,
1996, Mrs. Drew signed an informed consent form to receive additional
injections of Depo-Provera.
23
to this Court of 2/1/00 supplying copy of the denial letter and stating
that "[u]pon review of this matter and conferring with opposing coun-
sel, it appears that [this letter] was not presented at the lower Court
level, either on its own or as an Exhibit to any document that was
filed which appears on the docket sheet"). I am unaware of any other
instances where we have considered evidence on appeal that was not
presented below. See, e.g., United States v. Hastings, 126 F.3d 310,
316 (4th Cir. 1997) (stating that the court of appeals should not con-
sider evidence that was not presented to the district court). But, even
ignoring the irregularity of considering this evidence, the denial letter
does little to support the Drews' position. The letter does not disclose
that the Government had any idea that informed consent would be an
issue in this case. To the contrary, the denial letter is more reasonably
read as showing that the Government, quite sensibly, examined the
records and concluded that the facts as alleged by the Drews in their
administrative complaint could not be reconciled with reality, and,
therefore, that the Drews' claim as alleged was meritless. (See Letter
from Israel to the Drews of 12/23/97, at 1 ("It does not appear possi-
ble that Mrs. Drew could have received an injection of Depo-Provera
while she was pregnant with Sterling.").) It is simply untenable to
require the Government, in the face of wholly meritless assertions of
fact, to envision unasserted facts under which a claimant could
recover if the administrative claim were written differently.
IV.
In conclusion, although the majority asserts that its decision should
not be read to "effectively vitiate the notice prong of the FTCA's pre-
sentment requirement," ante at 17, this is exactly the effect of the rule
that the majority adopts. The majority's approach to this case places
an undue burden upon the Government to anticipate facts that a
chameleon-like claimant might assert once the original set of facts
becomes unsuitable. Because the facts underlying the Drews'
informed consent claim are only slightly implicated by the facts as
alleged in their administrative complaint, because even experienced
medical malpractice counsel could not forecast an informed consent
claim from the facts contained in the administrative complaint,
because the better rule articulated in Murrey mandates the opposite
result, and because the majority's decision, in effect, creates an
exception to the notice requirement that wholly eviscerates the rule,
24
I cannot agree with the majority's decision. For these reasons, I
respectfully dissent.
25