THE HONORABLE GREGORY J. FOURATT, UNITED STATES MAGISTRATE JUDGE.
THIS MATTER is before the Court on Defendant's "Motion to Dismiss Plaintiff's Claims Not Raised in her Tort Claims Notice for Lack of Jurisdiction" ("Motion") [ECF No. 20]. Therein, Defendant moves to dismiss all claims in Count 2 of the Complaint pertaining to allegations of "negligent hiring, credentialing, training, supervising and staffing." Def.'s Mot. to Dismiss Pl.'s Claims Not Raised in Her Tort Claims Notice for Lack of Jurisdiction 1, ECF No. 20 (hereinafter "Def.'s Mot. to Dismiss"). Having reviewed the briefs and relevant law, the Court will
This case concerns the medical treatment that Plaintiff, Ms. Denise Mark, received
Plaintiff filed her Tort Claim Notice with the United States Department of Health and Human Services ("DHHS") in August 2014. Id. In Section 8 of the notice, Plaintiff wrote:
Def.'s Mot. to Dismiss 2, ECF No. 20. DHHS denied Plaintiffs administrative claim on May 21, 2015, which gave her the right to file a lawsuit against the United States within six months from the date of the denial. Pl.'s Compl. 2, ECF No. 1. Plaintiff filed the instant action on September 24, 2015, in which she seeks relief exclusively under the Federal Tort Claims Act ("FTCA"). See id. at 1. Her complaint first alleged a claim for medical negligence arising from the conduct of First Choice staff, including Dr. Jeansonne and Ms. Molina (Count 1). Id. at 3. The complaint also alleged an omnibus claim for negligent hiring, credentialing, training, supervising, and staffing (Count 2). Id. at 4.
On April 7, 2016, the United States filed the instant Motion. ECF No. 20. Plaintiff filed her response on April 25, 2016, (ECF No. 25), and the United States replied on May 12, 2016. ECF No. 28. At the Court's direction, the parties have since filed supplemental briefs on the applicability of the recently-decided case Lopez v. United States, 823 F.3d 970 (10th Cir. 2016). ECF Nos. 35-36.
In its motion, the United States contends that the administrative notice that Plaintiff sent to DHHS lacked any facts supporting allegations of negligent hiring, credentialing, training, supervising, or staffing. Def.'s Mot. to Dismiss 2, ECF No. 20. Therefore, the United States argues, the claims made in Count 2 "are subject to dismissal because Plaintiff failed to exhaust such claims at the administrative level." Id. at 3. In her response, Plaintiff contends the narrative in her administrative claim "fairly described the foundation of [all of] her claims in this case ..." Pl.'s Resp. to Def.'s Mot. to Dismiss 5, ECF No. 25 (hereinafter "Pl.'s Resp."). "Those acts begin with hiring, credentialing, training, supervising, and staffing and end with medical negligence." Id. She further asserts that dismissing the claims in Count 2 would be contrary to the congressional intent underlying the notice requirement in the FTCA. Id.
"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 scope of their employment." United States v. Orleans, 425 U.S. 807, 813, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). A claim under the FTCA may be made
28 U.S.C. § 1346(b)(1). It bears repeating that the FTCA constitutes a limited waiver of the federal government's sovereign immunity from private suit. See 28 U.S.C. § 1346 (b). As such, "[t]his unequivocal waiver of immunity must be construed narrowly and the `limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.'" Miller v. United States, 463 F.3d 1122, 1123 (10th Cir. 2006) (quoting In re Franklin Savings Corp., 385 F.3d 1279, 1289-90 (10th Cir. 2004)). While reviewing any claim under the FTCA, courts must keep in mind the underlying purposes of the administrative claim presentation procedures, which are designed to "ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States." Bradley v. United States ex rel. Veterans Admin., 951 F.2d 268, 271 n.3 (10th Cir. 1991) (internal citation omitted).
Prior to filing suit in federal court, a plaintiff must present the tort claim to the responsible federal agency for settlement consideration. See 28 U.S.C. § 2675(a). Exhaustion of administrative remedies is a jurisdictional prerequisite to suit under the FTCA. Estate of Trentadue v. United States, 397 F.3d 840, 852 (10th Cir. 2005). The FTCA notice requirements are jurisdictional and cannot be waived. Lopez v. United States, 823 F.3d 970, 977 (10th Cir. 2016) (citing Bradley v. United States ex rel. Veterans Admin., 951 F.2d 268, 270 (10th Cir. 1991)).
Federal jurisdiction over damages suits against the United States is dependent upon a claimant presenting to the appropriate federal agency "(1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain damages claim." Staggs v. United States ex rel. Dept. of Health and Human Services, 425 F.3d 881, 884 (10th Cir. 2005) (citing Cizek v. United States, 953 F.2d 1232, 1233 (10th Cir. 1992)). The Tenth Circuit has recently emphasized that a "claim," as used in § 2675, must feature two components: "(1) a written statement describing the injury in sufficient detail to allow the agency to begin an investigation into the possibility of potentially tortious conduct, and (2) a request for a sum certain in damages." Lopez v. United States, 823 F.3d 970, 977 (10th Cir. 2016). "Thus, the `claim' asserted `encompasses any cause of action fairly implicit in the facts.'" Id. (quoting Murrey v. United States, 73 F.3d 1448, 1452 (7th Cir. 1996)).
The Tenth Circuit applies a pragmatic test to determine whether an administrative claim's language provides proper notice under the FTCA. Staggs, 425 F.3d at 884. It asks "whether the claim's language serves due notice that the agency should investigate the possibility of particular
Applying these principles to this case, the Court concludes that the terse facts alleged in Plaintiff's administrative claim were not sufficient to give the United States notice that her claims went beyond traditional breach-of-standard-of-care medical negligence to also encompass negligent hiring, credentialing, training, supervising, and staffing. Although Plaintiff asserts that these claims could be fairly deduced or inferred from her factual description, see Pl.'s Suppl. Br. Regarding Def.'s Mot. to Dismiss for "Claims Not Raised in Her Tort Claim Notice for Lack of Jurisdiction" 4, ECF No. 35, the Court is convinced that Tenth Circuit precedent and other persuasive authority compels a contrary conclusion.
Last month, the Tenth Circuit issued a published opinion that virtually decides the instant motion. See Lopez v. United States, 823 F.3d 970 (10th Cir. 2016). In Lopez, plaintiff filed suit under the FTCA for injuries stemming from lower back surgery at the Veterans Administration Medical Center in Denver. Id. at 971. He alleged in part that (1) the doctor was negligent in performing the surgery, and (2) the hospital was negligent in credentialing and privileging the supervising physician involved in the surgery. Id. The Tenth Circuit addressed the question of whether plaintiff's narration of facts in his administrative claim was sufficient to put the government on notice of the claim of negligent credentialing and privileging. Id. at 976.
The administrative claim filed by Lopez stated:
Lopez, 823 F.3d at 976. Although the district court reached the merits of, and denied, plaintiff's claims for negligent credentialing and privileging, the Tenth Circuit held that the district court lacked subject matter jurisdiction over those claims at all. Id. at 975. In holding that the plaintiff's administrative claim did not reasonably encompass his negligent credentialing and privileging claim, the Tenth Circuit explained: "Nothing in Lopez's administrative claim provided the government with notice that it needed to investigate whether the VA Hospital was negligent in credentialing and privileging Kindt, and it was in turn deprived of any opportunity to settle this potential claim without litigation." Id. at 977.
This Court further concludes that the rule of law repeated and clarified in Lopez compels a similar fate for Plaintiff's claims of negligent training, supervising, and staffing. When an executive branch agency is presented with an administrative claim that — fairly read — centers entirely around the specific medical care rendered by specific personnel to a specific patient, Lopez forecloses the argument that such a claim implicitly encompasses ancillary claims having to do with how and why their employer hired, credentialed, trained, supervised, or staffed its personnel. Factual narrations like those in Lopez and in the instant case reasonably prompt the government to investigate only the precise events that occurred during the claimant's course of care that may have led to the result of which the claimant complains. Lopez makes clear that factual narrations that are limited to a description of the particular course of care rendered to a single claimant do not reasonably spur the government to investigate how the agency that employed the health care providers managed itself, supervised its employees, or made hiring, credentialing, or staffing decisions. To alert the government that it also needs to investigate those ancillary and tangential aspects, more facts are required than those set forth here or in Lopez.
Even if Lopez did not squarely control the issue, however, there is ample other case law that would have led this Court to the same result. For example, in Staggs v. United States ex rel. Dept. of Health and Human Services, the plaintiff filed an administrative claim
Similarly persuasive is Kikumura v. Osagie, in which a federal prisoner sued the United States and certain prison officials under the FTCA, alleging inadequate medical treatment and other claims. Kikumura v. Osagie, 461 F.3d 1269, 1273 (10th Cir. 2006) overruled on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). After his administrative claim
As still another example, in Bethel v. United States, ex rel. Veterans Admin. Medical Center of Denver, Colorado, plaintiffs brought an FTCA suit against the Veterans Administration for injuries arising out of a surgical procedure. Bethel v. United States, ex rel. Veterans Admin. Medical Center of Denver, Colorado, 495 F.Supp.2d 1121, 1122 (D. Colo. 2007). The original claim was for medical negligence against one of the treating anesthesiologists, but upon dismissal of that defendant, plaintiffs sought to amend their complaint to add a claim against the government for negligent credentialing and privileging. Id. at 1122-23. The court reviewed the plaintiffs' administrative claim
The same principles regarding the factual sufficiency of the administrative notice relied upon in Lopez, Staggs, Kikumura, and Bethel are applicable in this case. As implicitly conceded by the government, Plaintiff's narration of facts was patently sufficient to put the government on notice to investigate potential medical negligence in the care rendered to her. But even under the most expansive reading permitted by Tenth Circuit case law, Plaintiffs factual basis in the administrative claim lacked sufficient detail to trigger the government to investigate any of the claims alleged in Count 2. Just as the plaintiff in Staggs failed to articulate facts that would suggest a concept related to consent, Plaintiff similarly fails to connect her brief factual narration to the disparate supervisory negligence claims later alleged in Count 2 of her complaint.
Ms. Mark's administrative notice is silent as to any facts relating to the administrative workings or supervisory processes of First Choice. She made no mention of facts that would have caused the government to investigate the hiring and personnel policies, training and supervising practices, or staffing levels at First Choice. In the absence of such facts, the government failed to receive notice that Ms. Mark might eventually raise the claims she made in Count 2 of the complaint. As a result, the government was not reasonably prompted to investigate such claims and was stripped of the ability to consider settling those particular claims prior to the filing of her lawsuit. In the final analysis, permitting Plaintiff's claims in Count 2 to proceed would violate the principle that the government's waiver of sovereign immunity is to be construed narrowly.
For the foregoing reasons, Defendant's Motion is hereby
Staggs v. United States ex rel. Dept. of Health and Human Services, 425 F.3d 881, 883 (10th Cir. 2005).
Bethel at 1123-24.
Id. The government sought to dismiss the post-op negligence claims for lack of subject matter jurisdiction, arguing that "because Plaintiff failed to exhaust such claims at the administrative level, [all] allegations of negligence regarding Plaintiff's post-surgical care are subject to dismissal." Id. The court agreed, finding that "even a charitable reading of the documents submitted to HHS do not implicate the issue of post-operative care, such that any claims predicated on such a theory of recovery must now be dismissed." Id. (internal quotation marks omitted). In so holding, the court reasoned that "[n]owhere in Plaintiff's two submissions to HHS does she mention anything about the quality of the post-operative care that she received, nor does she aver any facts from which the United States could have concluded that Plaintiff believed that the post-operative care provided to her contributed to her injuries." Id. at *3.
