Filed: Mar. 02, 1999
Latest Update: Feb. 21, 2020
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED - U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 98-2024 3/02/99 - THOMAS K. KAHN D. C. Docket No. 96-1653-CIV-T-26B CLERK BOYD BURCHFIELD, Plaintiff-Appellant, versus UNITED STATES OF AMERICA, DEPARTMENT OF VETERAN AFFAIRS, Defendants-Appellees. - Appeal from the United States District Court for the Middle District of Florida - (March 2, 1999) Before HATCHETT, Chief Judge, MARCUS, Circuit Judge, and KRAVITCH, Senior Circui
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED - U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 98-2024 3/02/99 - THOMAS K. KAHN D. C. Docket No. 96-1653-CIV-T-26B CLERK BOYD BURCHFIELD, Plaintiff-Appellant, versus UNITED STATES OF AMERICA, DEPARTMENT OF VETERAN AFFAIRS, Defendants-Appellees. - Appeal from the United States District Court for the Middle District of Florida - (March 2, 1999) Before HATCHETT, Chief Judge, MARCUS, Circuit Judge, and KRAVITCH, Senior Circuit..
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PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
----------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 98-2024 3/02/99
----------------------- THOMAS K. KAHN
D. C. Docket No. 96-1653-CIV-T-26B CLERK
BOYD BURCHFIELD,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
DEPARTMENT OF VETERAN AFFAIRS,
Defendants-Appellees.
------------------------
Appeal from the United States District Court
for the Middle District of Florida
-------------------------
(March 2, 1999)
Before HATCHETT, Chief Judge, MARCUS, Circuit Judge, and KRAVITCH,
Senior Circuit Judge.
KRAVITCH, Senior Circuit Judge:
A plaintiff who sues under the Federal Tort Claims Act, 28 U.S.C. §§ 2671
et seq., must first present his or her claim to the appropriate federal agency. 28
U.S.C. § 2675(a). This case requires us to determine the amount of information
that this claim must contain. Appellant Boyd Burchfield (“Burchfield”) sued the
United States pursuant to the FTCA, alleging that the negligence of employees of
the Department of Veterans Affairs (“VA”) led to his severe osteoporosis. The
district court held that it lacked subject matter jurisdiction over the complaint
because the claim that Burchfield had presented to the VA did not satisfy 28
U.S.C. § 2675(a). We conclude that Burchfield’s claim contained sufficient
information to meet the presentment requirements of section 2675(a), and therefore
reverse and remand for further proceedings.
I.
While on active duty with the United States Army in 1968, Burchfield
developed a tumor of the pituitary gland. Army doctors operated to remove the tumor,
but it reoccurred in 1986 and Burchfield underwent five additional surgeries, the last
in 1990. As a result of the surgeries, Burchfield developed panhypopituitarism (non-
functioning of the pituitary gland), which caused his body to stop producing cortisone,
thyroid hormone, and testosterone. To replace some of these natural hormones his
2
doctors, VA employees, prescribed a corticosteroid, Prednisone. As far as the record
before us shows, Burchfield’s doctors did not accompany this prescription with a
program of dietary supplements to combat osteoporosis, such as Vitamin D, calcium
or calcitonin. The doctors also prescribed injectable testosterone, which can help to
restore sexual function and prevent osteoporosis. After a short time Burchfield
discontinued the testosterone treatments, telling his doctors that he disliked their side
effects and that he was not interested in regaining sexual function. It is not clear
whether Burchfield’s doctors informed him that injectable testosterone treatments
could help prevent osteoporosis.
Beginning as early as 1988, Burchfield developed osteoporosis, which had
become severe by 1996. As a result, he suffered various injuries, including rib and
sternal fractures and collapsed vertebrae, and is at risk of further injury.
Pursuant to the requirements of 28 U.S.C. § 2675(a),1 Burchfield filed an
administrative claim on Standard Form 95 with the VA on January 17, 1996. The
claim stated:
1
Section 2675(a) states, in relevant part:
An action shall not be instituted upon a claim against the United States for money
damages . . . unless the claimant shall have first presented the claim to the
appropriate Federal agency and his claim shall have been finally denied by the
agency in writing . . . . The failure of an agency to make final disposition of a
claim within six months after it is filed shall, at the option of the claimant any
time thereafter, be deemed a final denial of the claim for purposes of this section.
3
Beginning August of 1990 and in subsequent years, physicians
employed by the Department of Veterans Affairs prescribed a
medication for Mr. Burchfield, prednisone. Mr. Burchfield’s use
of this medicine caused him to develop osteoporosis, resulting in
severe and continuing maladies and injuries, including but not
limited to the collapse or fracture of several vertebrae and ribs . .
. . These injuries resulted from negligence of the Department’s
agents.2
The claim listed thirteen doctors who had treated Burchfield. After six months, during
which the VA failed to make a final disposition of the claim, Burchfield filed suit in
district court. His complaint alleged, inter alia, that osteoporosis was a “known and
anticipated effect[] of corticosteroid therapy”3 and that his doctors were negligent in
failing to initially diagnose osteoporosis, to monitor him for the condition during his
treatment, and to administer a bone strengthening regimen.4 At the bench trial,
Burchfield’s medical expert, Dr. Thomas Zizic, stated that prescribing the
corticosteroid Prednisone did not in itself deviate from the standard of care.5 He
testified, however, that Burchfield’s doctors deviated from the standard of care by
treating him with Prednisone without taking certain other steps, such as performing
2
R1-37 at 5. Burchfield also claimed that the VA employees’ negligence caused
“avascular right hip necrosis, and the replacement of his right hip with a prosthetic,” id., but he
did not pursue this claim at trial.
3
Compl., R1-1 at 3, ¶ 9(c).
4
Id. at 2-3, ¶¶ 8-9.
5
Trial Tr., R2-43 at 99.
4
initial baseline tests for osteoporosis and prescribing such supplements as calcium and
Vitamin D to counteract the treatment’s effects.6
After Dr. Zizic testified, the district court addressed the issue of its jurisdiction
under the FTCA. It found that Burchfield’s administrative claim had alleged only that
the VA’s doctors were negligent in prescribing Prednisone, while at trial Burchfield
had raised a “significant[ly] different claim[]” that the VA had “caus[ed] or
contribut[ed] to the exacerbation of osteoporosis by failing to diagnose it properly and
by failing to treat it properly.”7 On the basis of this distinction, the district court held
that Burchfield had failed to meet the requirements of section 2675(a) by putting the
VA on notice of his allegations, and that it therefore lacked subject matter jurisdiction
over Burchfield’s claim. The court entered judgment as a matter of law in favor of the
United States.
II.
We review a district court’s grant of judgment as a matter of law de novo.
Morris v. Crow, 117 F.3d 449, 455 (11th Cir. 1997).
A plaintiff bringing a claim against the United States under the FTCA must first
present the claim to the appropriate federal agency and wait for the agency to finally
deny it. An agency’s failure to dispose of a claim within six months is deemed to be
6
Id. at 52-60, 99.
7
Trial Tr., R2-43 at 146.
5
a final denial. See 28 U.S.C. § 2675(a). A district court only has jurisdiction over an
FTCA action if the plaintiff has met section 2675(a)'s requirements. See Bush v.
United States, 703 F.2d 491, 494 (11th Cir. 1983).
To satisfy section 2675(a), a claimant must do two things: “(1) give[] the
[appropriate] agency written notice of his or her claim sufficient to enable the agency
to investigate and (2) place[] a value on his or her claim.” Adams v. United States,
615 F.2d 284, 289 (5th Cir.), decision clarified on denial of reh’g,
622 F.2d 197 (5th
Cir. 1980).8 Because Burchfield’s administrative claim placed a dollar value on his
alleged damages,9 the only issue before us is whether his claim gave notice of the
allegations he made at trial. We must determine whether the administrative claim’s
statement that Burchfield’s “use of [Prednisone]” caused his injuries, along with its
list of medical providers, was sufficient to put the VA on notice that Burchfield could
allege negligence in matters closely related to the Prednisone prescription, such the
doctors’ failure to prescribe supplements to counteract the Prednisone’s effects. We
hold that Burchfield’s administrative claim did put the VA on notice of such
allegations. The legislative history of section 2675(a) and our own precedents guide
our inquiry.
8
Decisions by the former Fifth Circuit issued before October 1, 1981 are binding
precedent in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th
Cir. 1981) (en banc).
9
See R1-37 at 2, 3.
6
Congress had a dual purpose in enacting section 2675(a): to encourage prompt
settlement of claims and to ensure fairness to FTCA litigants. The Senate reported
that the law was intended to “provid[e] for more fair and equitable treatment of private
individuals and claimants when they deal with the Government or are involved in
litigation with their Government.” S. Rep. No. 89-1327, at 2 (1966), reprinted in 1966
U.S.C.C.A.N. 2515, 2515-16 (quoting House report). It further stated that the
administrative claim requirement, by giving agencies an opportunity to settle suits
before litigation commenced, would “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.” Id. at 2, reprinted in 1966
U.S.C.C.A.N. 2515, 2516 (quoting House report); see also McNeil v. United States,
508 U.S. 106, 111-12,
113 S. Ct. 1980, 1983 (1993) (stating that purpose of section
2675(a) is to give federal agencies “a fair opportunity to investigate and possibly settle
. . . claim[s]”);
Adams, 615 F.2d at 288 (noting legislative history evidencing statute’s
purpose). Congress, therefore, enacted section 2675(a) not to place procedural hurdles
before potential litigants, but to facilitate early disposition of claims. See, e.g., Lopez
v. United States,
758 F.2d 806, 809 (1st Cir. 1985) (“[I]ndividuals wishing to sue the
government must comply with the details of [section 2675], but . . . the law was not
intended to put up a barrier of technicalities to defeat their claims.”).
7
We keep section 2675(a)’s underlying 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
possibility of settlement. Adams, 615 F.2d at 292. We do not require the claimant to
provide the agency with a preview of his or her lawsuit by reciting every possible
theory of recovery, see Brown v. United States,
838 F.2d 1157, 1160-61 (11th Cir.
1988), or every factual detail that might be relevant, see
Adams, 615 F.2d at 291-92.
In short, the amount of information required is “minimal.”
Id. at 289.
An administrative agency is deemed to be on notice not only of the theories of
recovery stated in the claim, but of the theories of recovery that its reasonable
investigation of the specific allegations of the claim should reveal. In Rise v. United
States, 630 F.2d 1068 (5th Cir. 1980), the plaintiff presented an administrative claim
that Army physicians failed to diagnose and treat his wife’s aneurysm. After bringing
suit on that assertion, he amended his complaint to allege that the Army also was
negligent in referring his wife to a civilian hospital and failing to supervise her
treatment there. We stated that “if the Government’s investigation of Rise’s claim
should have revealed theories of liability other than those specifically enumerated
therein, those theories can properly be considered part of the claim.”
Id. at 1071.
8
The district court in this case noted Rise’s holding that an administrative claim
does not need specifically to enumerate all possible theories of liability. It nonetheless
found that Burchfield’s claim could not give notice of the issues raised in his lawsuit;
this was not because Burchfield had failed to lay out all of his legal theories, but
because he had not drawn the VA’s attention to certain facts, such as his doctors’
failure to diagnose osteoporosis, perform initial tests, and prescribe Vitamin D or
calcium.10 We conclude that the court interpreted Rise too narrowly. An
administrative claim can put an agency on notice of theories of liability not spelled out
therein. All that is required is that the theory put forward in the complaint filed in the
district court be based on the facts that are stated in the administrative claim.
In this case, it is hard to imagine what facts Burchfield could have included in
his administrative claim that would have allowed the VA to conduct a more thorough
investigation of the claim. The claim stated all the essential aspects of Burchfield’s
case—the time period, the fact that his doctors had prescribed Prednisone, the causal
link between his use of the Prednisone and his osteoporosis, and the assertion that the
VA’s agents were negligent—although it did not contain every factual detail that he
later introduced at trial. These other details, such as his doctors’ failure to prescribe
dietary supplements and to monitor his condition, were so closely related to the
10
Trial Tr., R2-43 at 140-46.
9
essential material contained in the claim that they would have come to light during the
VA’s reasonable investigation of the claim. An agency cannot use an overly technical
reading of the language of a claim as a reason to turn a blind eye to facts that become
obvious when it investigates the alleged events.
In Rise, we held that because the plaintiff’s administrative claim mentioned a
patient’s transfer to a civilian hospital, “the Army’s investigation of the death should
have produced . . . evidence that [the civilian hospital’s] facilities may have been
inadequate . . . and, consequently, that referring Mrs. Rise there might have been
negligence.” Rise, 630 F.2d at 1071. The Second Circuit similarly has held that an
administrative claim can put an agency on notice of facts it should discover during its
investigation of the claim. In Johnson by Johnson v. United States,
788 F.2d 845,
848-49 (2d Cir. 1986), it found that an administrative claim, which alleged that a
government employee had attacked a minor but did not mention facts suggesting that
anyone other than the employee was at fault, gave the government sufficient notice
of the plaintiff’s negligent supervision claim. “Although the claim supplied no facts
evidencing negligent supervision and did not allege all the factual elements of such
a theory of liability, a reasonably thorough investigation of the incident should have
uncovered any pertinent information in the government’s possession relating to the
10
agency’s knowledge, or lack of knowledge, of any prior sexual misconduct by its
employee . . . .” Id. at 849 (citing Rise).
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 undertake an independent search for injuries or theories of liability that are
not closely related to the matters described in the claim. See Orlando Helicopter
Airways v. United States, 75 F.3d 622, 626 (11th Cir. 1996) (holding that contract
readjustment claim alleging misconduct by a whistleblower did not give notice of
allegations of misconduct by government officials);
Bush, 703 F.2d at 495 (holding
that administrative claim alleging medical malpractice that contained no challenge to
consent form or disclosure of risks did not give notice of claim based on lack of the
patient’s informed consent); see also Deloria v. Veterans Admin.,
927 F.2d 1009,
1012 (7th Cir. 1991) (holding that investigation of charge that officials altered medical
records would not give notice of malpractice charges that involved “wholly distinct
incidents”). 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. See Bembenista v. United
States,
866 F.2d 493, 498-99 (D.C. Cir. 1989) (holding that plaintiff did not satisfy
notice requirement when the few facts at issue were buried in “more than 400 pages
11
of medical records, transcripts, and Army documents”); Deloria, 927 F.2d at 1012
(citing Bembenista). Finally, a claim may be so vague or lacking in detail that the
agency cannot be expected to initiate any investigation at all. See Tidd v. United
States,
786 F.2d 1565, 1568 (11th Cir. 1986) (“For an agency to be able to initiate an
investigation into a tort claim . . . it must be apprised of the location and approximate
date of the incident.”); see also Romulus v. United States,
160 F.3d 131, 132 (2d Cir.
1998) (“A claimant must provide more than conclusory statements which afford the
agency involved no reasonable opportunity to investigate.”).
Here, Burchfield’s administrative claim stated that his doctors prescribed
Prednisone and that his “use of” the Prednisone caused osteoporosis. It gave the VA
sufficient information, including the dates of his treatment and the names of his
doctors, to allow the VA to refer to the medical records in its possession to investigate
Burchfield’s use of the medication and the surrounding circumstances. Burchfield
presented evidence, in the form of Dr. Zizic’s testimony, that a doctor who prescribed
Prednisone to a patient in Burchfield’s condition had a duty to monitor, and take steps
to prevent, the medication’s side effects. A person with reasonable expertise in
medicine, investigating Burchfield’s claim that his use of Prednisone caused
osteoporosis, would therefore have asked whether the doctors who prescribed the
Prednisone also undertook the closely related tasks of prescribing appropriate
12
accompanying medication, such as calcium and Vitamin D, and monitoring the drug’s
effects, and would have discovered that they did not. Thus, Burchfield’s
administrative claim satisfied the requirements of section 2675(a) by giving the VA
notice of the claims that he raised at trial, and the district court erred in finding that
it lacked subject matter jurisdiction.
III.
Accordingly, we REVERSE the decision of the district court and REMAND the
case for further proceedings in accordance with this opinion.
13
