FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 1, 2018
Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court
HELEN BENALLY,
Plaintiff - Appellant,
No. 16-2177
v. (D.C. No. 1:13-CV-00604-MV-SMV)
(D.N.M.)
UNITED STATES OF AMERICA,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before HOLMES, PHILLIPS, and MORITZ, Circuit Judges.
Following orthopedic surgery for a fractured femur at a federal medical
facility operated by the U.S. Department of Health and Human Services (“HHS”),
Helen Benally filed tort-claim notices with HHS—an initial form, followed by an
amended form—claiming that the facility “performed” the surgery “negligently”
and “below the standard of care.” HHS denied her administrative claim, and Ms.
Benally brought a medical-negligence suit for lack of informed consent, surgical
negligence, and negligent post-operative care. Asserting that Ms. Benally failed to
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
raise the issues of informed consent and post-operative negligence in her
administrative notices, the government moved to dismiss those claims under the
presentation requirement of the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 2675(a). The district court subsequently dismissed the informed-consent and
post-operative negligence claims for lack of subject-matter jurisdiction, and Ms.
Benally appeals.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district
court’s judgment dismissing Ms. Benally’s complaint for lack of subject-matter
jurisdiction.
I
A
On November 23, 2008, Ms. Benally had “open reduction/internal fixation”
surgery at Gallup Indian Medical Center (“GIMC”), a medical facility that HHS
operates through the Indian Health Service (“IHS”).1 Aplt.’s App. at 14 (Compl.,
filed June 28, 2013). The surgery aimed to repair Ms. Benally’s fractured femur
by using “a plate and screws to hold the bone fragments in place and [to] give
proper alignment to the upper femur.” Id. Although Ms. Benally’s “pain and
other symptoms improved somewhat” after discharge, her condition rapidly
deteriorated shortly thereafter, id., and she ultimately received a “total hip
1
As a tribal member of the Navajo Nation, Ms. Benally accessed
healthcare through the IHS.
2
replacement” from a different facility—the University of New Mexico Hospital
(“UNMH”), id. at 15.
During this period of deterioration, Ms. Benally had at least five follow-up
appointments with Dr. David Poe (“Dr. Poe”), the GIMC surgeon who performed
her operation. 2 At her first follow-up appointment on December 16, 2008, Dr. Poe
reported apparently normal findings. However, by her second appointment on
March 30, 2009, Ms. Benally was complaining of increased pain. 3 Ms. Benally
had x-rays taken of her hip and pelvis; they revealed “a possible problem with
[the] alignment of the femur fragments that had been secured with a plate and
screws.” Id. Rather than provide a definitive diagnosis, however, Dr. Poe
instructed Ms. Benally to return in about eight weeks.
After that, Ms. Benally received additional post-operative care from Dr. Poe
on three more occasions—August 8, 2009, March 18, 2010, and June 17, 2010.
Dr. Poe’s evaluative notes from these later appointments reference “failed
pinning” and “lots of pain,” but the notes contain no indication that Dr. Poe
discussed the need for further surgery. Id. at 116 (PCC Ambulatory Encounter
2
As detailed infra, Ms. Benally’s notices made no mention of Dr. Poe
or his role in her pre- or post-operative care.
3
Between these follow-up appointments, Ms. Benally raised additional
pain-related complaints to medical providers at Northern Navajo Medical Center
(“NNMC”), another facility that HHS operated. The record contains scant details
concerning these medical visits, but because Ms. Benally makes no claim about
NNMC’s care, her treatment at that facility has no impact on our disposition of
this appeal.
3
Record, dated June 17, 2010); accord id. at 103 (PCC Ambulatory Encounter
Record, dated Aug. 6, 2009); id. at 115 (PCC Ambulatory Encounter Record, dated
Mar. 18, 2010). Rather, Dr. Poe prescribed pain medication, directed Ms. Benally
to take Vitamin D supplements, and scheduled regular follow-up appointments at
three-month intervals. See id. at 112–13 (Aff. of Helen Benally, dated Jan. 19,
2015).
Nonetheless, the surgical hardware—a pin, a plate, and some screws—“had
[in fact] failed [completely], torn through the bone,” and ceased to “maintain[] a
proper alignment.” Id. at 15. And, due to that failure, Ms. Benally experienced “a
progressive movement of the two-large [femur] fragments from a fixed position to
a non-union condition.” Id. Consequently, after “approval from contract care,”
Ms. Benally received “a total left hip replacement” at UNMH on July 17, 2010.
Id. at 113. Although the hip-replacement operation proved successful, Ms.
Benally “continues to have problems related to the failed femur surgery.” Id. at
15.
B
Following these events, Ms. Benally filed two, highly similar tort-claim,
administrative notices with HHS: an initial, handwritten form submitted on March
8, 2011, and an amended, typed form submitted on May 7, 2012. In the first
notice, filed pro se, Ms. Benally stated:
On November 23, or thereabouts, Helen Benally underwent
4
surgery at the Gallup Indian Medical Center in New Mexico. She
had a total hip replacement (left hip). The new hip failed after
some months passed. The hip replacement equipment gave way
& separated, causing severe pain and serious mobility problems.
The surgery at GIMC was performed negligently, below the
standard of care. Further surgery became necessary. Permanent
damage.
Id. at 271 (Form 95, signed Mar. 8, 2011). Ms. Benally’s attorney filed the second
(amended) notice, nearly fourteen months later. It described the basis for Ms.
Benally’s claim in similar terms, explaining:
On November 23, 2008, or thereabout, Helen Benally underwent
surgery on her left hip . . . at the Gallup Indian Medical Center in
New Mexico. Ms. Benally’s left hip surgery was mishandled
causing Ms. Benally severe pain and serious mobility programs.
[sic] The surgery at GIMC was performed negligently and below
the standard of care, causing permanent damage. Further surgery
became necessary.
Id. at 272 (Form 95, submitted May 7, 2012). 4 Whether taken together or read in
isolation, 5 Ms. Benally’s notices narrowly focused on one event: her November 23,
4
Ms. Benally’s initial notice described the surgery as “a total hip
replacement (left hip),” Aplt.’s App. at 271, while her amended notice described
only “her left hip surgery,” id. at 272. Ms. Benally’s subsequent civil complaint
identified the operation as “an open reduction/internal fixation.” Id. at 14.
5
The parties’ appellate briefing draws no legal distinction between Ms.
Benally’s initial and amended notices, nor explains the effect of the amendment on her
initial notice. Rather, the parties’ briefing tacitly assumes that the initial and amended
notices should be ready together—viz., it tacitly assumes that they are both proper
subjects of our review in discerning whether Ms. Benally has satisfied the FTCA’s
presentation requirement. Their briefing simply offers competing interpretations of both
notices. At oral argument, in response to a question from the panel, the government
indicated that, as a matter of law, the amended notice superseded the initial one, but
acknowledged that there was not a “huge difference” between them. Oral Arg. at
(continued...)
5
2008 surgery. Indeed, each notice explained that Ms. Benally had a hip operation
at GIMC that caused subsequent pain, and then asserted, based on that limited
factual universe, that “[t]he surgery was performed negligently” and “below the
standard of care.” Id. (emphasis added); accord id. at 271. Thus, despite Ms.
Benally’s extensive, nearly two-year treatment with GIMC, she made no mention
of pre-operative care, post-operative care, or Dr. Poe and his involvement in these
phases of her treatment. Rather, she expressed concerns only with the manner in
which GIMC performed her surgery. HHS reportedly denied Ms. Benally’s claim
by letter dated February 11, 2013. 6
C
Ms. Benally subsequently filed suit in federal court, and her civil complaint
painted a markedly different—and far broader—picture of her injuries and the
source of them. Ms. Benally’s complaint asserted a single count of negligence,
particularized by a lengthy series of allegedly “negligent actions and omissions”
by Dr. Poe—beginning with his pre-operative care and consultation, continuing to
his surgical techniques, and concluding with attacks on the scope of his post-
5
(...continued)
22:21–25. Given the shared approach of the parties’ briefing, we will assume without
deciding that our review properly extends in this case to both notices. The government’s
belated, oral-argument suggestion to the contrary does not persuade us to take a different
approach. See, e.g., Fed. Ins. Co. v. Tri-State Ins. Co., 157 F.3d 800, 805 (10th Cir. 1998)
(“Issues raised for the first time at oral argument are considered waived.”).
6
In their briefing, the parties agree on the date of the denial, but the parties
failed to include the denial letter as part of the record on appeal.
6
operative care. Id. at 16–17. These “negligent actions and omissions” specifically
included:
(a) failing to present alternative choices, i.e., a total hip
arthroplasty, to Ms. Benally prior to her surgery on
November 23, 2008; [7]
(b) failing to include in the informed consent for surgery that
the fixation device could cut out of the bone, resulting in a
failure to heal and a need for further surgery;
(c) failing to employ proper surgical techniques when
attempting a fixation of the left femur fracture;
(d) failing to inform Ms. Benally of the potential failure of the
fixation when she met with Dr. Poe on December 16, 2008;
(e) failing to have Ms. Benally return within a reasonable
period of time following surgery to determine whether or
not there would be further collapse;
(f) failing to explain to Ms. Benally on March 30, 2009, that
the pin was more displaced and that there was further bone
destruction;
7
The government claims that the district court’s July 15, 2015, order entering
partial summary judgment on Ms. Benally’s “medical malpractice” claim disposed of this
allegation. See Aplee.’s Response Br. at 7 n.6; see also Aplt.’s App. at 246–60 (Mem.
Op. & Order, filed July 15, 2015). The government, however, misreads the relevant
aspect of the district court’s opinion. Importantly, the district court found the government
“entitled to judgment as a matter of law that the selection of femur surgery that Dr. Poe
performed on Benally did not breach the standard of care,” id. at 255, not on the issue of
whether Dr. Poe adequately informed Ms. Benally of alternative choices to femur
surgery. Indeed, the district court specifically declined to enter summary judgment on the
issue of informed consent, because although Ms. “Benally may have consented to the
procedure that Dr. Poe performed,” the record created the impression that “she did so
without a discussion of the relevant array of surgical alternatives, such as a total hip
replacement.” Id. at 256.
7
(g) failing on March 30, 2009, to schedule Ms. Benally for
surgery, instead prescribing pain medication;
(h) failing on March 30, 2009, to schedule a return visit within
a reasonable amount of time to determine the further status
of the fixation failure and to decide upon a course of
action;
(i) failing on August 6, 2009, to refer Ms. Benally for a
second opinion at a facility better able to determine the
appropriate treatment for her nonunion and fixation failure;
[and]
(j) failing on March 18, 2010, to refer Ms. Benally for a
second opinion at a facility better able to determine the
appropriate treatment for her displaced bone fragments and
the bone destruction caused by the fixation device.
Id.
D
Following the district court’s entry of partial summary judgment in the
government’s favor on matters that are not currently before us,8 the government
filed motions to dismiss the informed-consent and post-operative-care aspects of
Ms. Benally’s complaint for failure to provide notice of these allegations as the
FTCA requires. Finding that Ms. Benally’s notices “d[id] not implicate the issue
of informed consent,” id. at 296 (Mem. Op. & Order, filed Oct. 22, 2015), and
8
On July 15, 2015, the district court found the government entitled to
summary judgment on Ms. Benally’s allegations “that the selection of femur
surgery . . . breach[ed] the standard of care,” Aplt.’s App. at 255, and that “Dr.
Poe employed [in]appropriate surgical techniques,” id. at 256 (capitalization
omitted). Ms. Benally mounts no challenge to these determination on appeal.
8
“fail[ed] to state any facts . . . regarding her postsurgical care,” id. at 339 (quoting
the record) (Mem. Op. & Order, filed May 20, 2016), the district court dismissed
the remainder of her complaint for lack of subject-matter jurisdiction. Ms.
Benally’s appeal followed: it challenges only the sufficiency of her notices under
the FTCA’s presentation requirement. We review the district court’s ruling on this
sufficiency question de novo. See, e.g., Staggs v. United States ex rel. Dep’t
Health & Human Servs., 425 F.3d 881, 884 (10th Cir. 2005) (noting that
sufficiency “presents a question of law subject to de novo review”).
II
The FTCA’s jurisdictional statute, 28 U.S.C. § 2675(a), requires a would-be
tort plaintiff to file “(1) a written statement sufficiently describing the injury to
enable the agency to begin its own investigation, and (2) a sum certain damages
claim.” Lopez v. United States, 823 F.3d 970, 976 (10th Cir. 2016) (quoting Estate
of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852 (10th Cir. 2005)).
The FTCA’s “eminently pragmatic” written, claim-presentation requirement
requires that the written statement provide “due notice that the agency should
investigate the possibility of particular (potentially tortious) conduct.” Trentadue,
397 F.3d at 852 (emphases added) (quoting Dynamic Image Techs., Inc. v. United
States, 221 F.3d 34, 40 (1st Cir. 2000)).
In other words, the notice must describe “the facts and circumstances
underlying a claim”—“rather than the exact grounds”—“upon which [the] plaintiff
9
seeks to hold the government liable.” Id. at 853. Thus, it “should give notice of
the underlying facts and circumstances” that will form the fabric of the subsequent
civil suit, Staggs, 425 F.3d at 884 (emphases added).
Reinforcing the facts-and-circumstances focus of the presentation
requirement, we recently endorsed a sibling circuit’s explanation that an FTCA
notice should be read to “encompass[] any cause of action fairly implicit in the
facts.” Lopez, 823 F.3d at 976 (emphasis added) (quoting Murrey v. United States,
73 F.3d 1448, 1452 (7th Cir. 1996)). Lopez underscores the long-held
understanding that courts should liberally construe the universe of facts that the
FTCA claimant provides. 9 That does not mean, however, that courts should
augment those facts to conform to the claimant’s subsequent civil complaint. See
Staggs, 425 F.3d at 885 (“We recognize the tragic circumstances of this case and
that our decision provides little solace . . . . However, the FTCA’s presentation
requirements are jurisdictional and cannot be waived.”).
III
Relying on the liberal construction of administrative claims,10 Ms. Benally
9
Ms. Benally points to United States v. Kwai Fun Wong, --- U.S. ----,
135 S. Ct. 1625 (2015) for the same general notion. See Aplt.’s Reply Br. at 10
(explaining that Ms. Benally “cited Wong for the proposition that overly narrow
construction of the FTCA is prohibited”). The parties, however, agree that the
principal, equitable-tolling holding of Wong has no relevance here.
10
Ms. Benally also underscores that we should consider “the small
amount of space” allotted on the government claim form to describe a
(continued...)
10
argues that her tort-claim notices sufficiently put the government (i.e., HHS) on
notice regarding her claims for negligent post-operative care and lack of informed
consent. We disagree. Accordingly, we uphold the district court’s dismissal of
these aspects of Ms. Benally’s complaint for lack of subject-matter jurisdiction.
A
Turning first to the issue of post-operative care, Ms. Benally raises two
arguments—one rooted in the substance of her notices, and the other based on her
view of the relevant legal landscape. More specifically, Ms. Benally first posits
that her description in the notices of “the hardware fail[ure] months after the
surgery[] clearly put[] the Government on notice and provid[ed] a factual basis”
for her post-operative care claim. Aplt.’s Opening Br. at 20; accord id. at 14;
Aplt.’s Reply Br. at 4. Second, Ms. Benally argues that, irrespective of whether
the notices explicitly detail a claim for post-operative care, “a medical negligence
claim” “encompasse[s],” as a matter of law, “both negligent surgery and negligent
aftercare.” Aplt.’s Reply Br. at 6 (emphasis added). The government argues, by
contrast, that Ms. “Benally failed to mention anything in her [tort-claim] forms
10
(...continued)
claim—labeling the form “skeletal”—and her initial pro se status. Aplt.’s Opening
Br. at 12; accord id. at 1 (discussing “the approximately 1.5 inch space provided
on the government form for the description of the basis of the claim”). However,
these fleeting assertions merit little response: the tort claim form plainly permits
claimants to “[u]se additional pages if necessary,” Aplt.’s App. at 271, and after
filing her initial notice, Ms. Benally has proceeded in this matter with counsel,
who filed an amended notice that we also consider here, along with the initial one.
11
about the post-operative care, and as such[,] . . . failed to exhaust those claims,
depriving the district court of subject matter jurisdiction.” Aplee.’s Response Br.
at 26. Rejecting each of Ms. Benally’s arguments, we conclude that her notices
failed to exhaust her claim of negligent post-operative care.
1
Reciting her statements that the hip hardware “gave way & separated”
“some months” after the surgery, and that the “fail[ure]” “caus[ed] severe pain and
serious mobility problems,” Aplt.’s App. at 271; see also Aplt.’s Reply Br. at 3,
Ms. Benally reasons that she “told [HHS] the starting point and ending point for
the investigation” and “clearly convey[ed] that the failure of the hardware during
the post-operative care period needed to be part of the investigation.” Aplt.’s
Opening Br. at 15. In other words, Ms. Benally claims that she “causally
connected the surgery and the injury months later,” id., making it “‘fairly implicit’
that [her] claim covered negligence in the post-operative period . . . [and also]
from the surgery,” Aplt.’s Reply Br. at 4. We disagree.
Ms. Benally’s position relies exclusively on her initial notice’s reference to
a “surgery and [then] injury months later,” Aplt.’s Opening Br. at 15, all while
ignoring the context—i.e., the facts and circumstances—surrounding that
assertion. Importantly, Ms. Benally’s notices emphasized only that GIMC
“performed” the “surgery” “negligently” and “below the standard of care,” Aplt.’s
App. at 271–72 (emphases added); it did not expressly convey that she intended to
12
challenge the post-operative care that she received—specifically, from Dr. Poe.
Her notices, for example, made no reference to post-operative care or Dr. Poe,
much less suggested negligent conduct by Dr. Poe during that post-operative
period. Similarly, the notices included no mention of the various follow-up
appointments she attacks in her complaint, nor did they indicate any objection to
the medical opinions that she received from Dr. Poe during those visits.
Nevertheless, Ms. Benally claims that her simple reference in her initial
notice to an equipment failure following her surgery gave the government ample
basis to divine that her administrative claim “covered negligence in the post-
operative period . . . [and also] from the surgery.” Aplt.’s Reply Br. at 4.
However, Ms. Benally’s initial notice—even under the most generous
reading—described only the consequences of the negligent surgery that formed the
basis of her claim; it did not express a distinct concern regarding the nature or
adequacy of her post-operative care. The text of her initial notice confirms this
conclusion. Ms. Benally’s notice included the following narrative: that she
“underwent [hip] surgery,” that “[t]he new hip failed after some months passed,”
and that “[t]he hip replacement equipment gave way & separated, causing severe
pain and serious mobility problems.” Aplt.’s App. at 271. Conspicuously absent
from this account is any mention of Dr. Poe or, more generally, any conduct
amounting to post-operative negligence committed by anyone. Significantly, there
is no assertion that post-operative negligence caused any of the alleged adverse
13
events (e.g., the equipment failure or the mobility problems). Rather, Ms. Benally
simply offered in her initial administrative notice the assertion that “[t]he surgery .
. . was performed negligently, below the standard of care.” Id. (emphasis added).
Moreover, her amended notice did nothing to alter the foundation for her
claim. It omitted any indication of the subsequent equipment failure, stressing
instead only that GIMC “mishandled” and “negligently” “performed” Ms.
Benally’s “surgery,” causing “permanent damage.” Id. at 272. That omission
further underscores the fact that Ms. Benally’s notices reflected a laser-like focus
on how GIMC performed her surgery. Against this backdrop, we discern no basis
to conclude that Ms. Benally’s notices—explicitly or implicitly—presented to the
government any concerns related to her post-operative care. And, given the
absence of these allegations, the government reasonably could have concluded that
Ms. Benally did not intend to assert a claim of negligent post-operative care and
that, consequently, no investigation into post-operative matters was necessary.
Ms. Benally resists this result, asserting that her position is supported by our
decision in Trentadue. Ms. Benally, however, misreads Trentadue, and then
overstates the force of Trentadue’s application here. We first introduce Trentadue,
and then explain our reasoning.
In Trentadue, Mr. Trentadue’s “estate filed an administrative claim with the
DOJ,” after his death in the Federal Transfer Center in Oklahoma City, Oklahoma.
Trentadue, 397 F.3d at 851. “The claim generally was based on the belief that
14
prison guards had murdered [Mr.] Trentadue, and included a claim for damages for
intentional infliction of emotional distress based on prison officials’ attempt to
conceal the manner of his death.” Id. After the DOJ denied the administrative
claim, Mr. Trentadue’s estate brought, inter alia, “a claim against the government
under the FTCA for intentional infliction of emotional distress.” Id. The matter
proceeded to trial, and the district court ultimately “entered judgment against the
government for intentional infliction of emotional distress, and awarded plaintiffs
$1.1 million in damages.” Id.
The government appealed, arguing that “the [administrative] claim was
insufficient [for notice purposes] in that it was based on a theory that prison
officials had murdered Trentadue and did not discuss the specific grounds relied
on by the district court in awarding damages, namely, the government’s treatment
of the Trentadue family in the aftermath of his death and its actions in conducting
an autopsy after claiming that no autopsy would be performed without prior
approval.” Id. at 852. We disagreed.
Addressing the government’s notice analysis, we emphasized “that the
FTCA’s notice requirement should not be interpreted inflexibly,” and interpreted
that “provision to require notice of the facts and circumstances underlying a claim
rather than the exact grounds upon which [the] plaintiff seeks to hold the
government liable.” Id. at 853. We then stated that the “administrative claim in
th[at] case included an intentional infliction of emotional distress claim[,]
15
specified the damages sought,” id. at 852, and “was based on the same underlying
conduct that supported the[] amended [i.e., operative] complaint,” id. at 853.
Given those circumstances, we concluded that the administrative claim in
Trentadue was sufficient to provide the government with adequate, statutory
notice. See id.
Notably, the administrative claim in Trentadue was based on both
antemortem and postmortem facts. And, significantly, some of the latter facts
related to the emotional-distress claim—that is, they related to “a claim for
damages for intentional infliction of emotional distress based on prison officials’
attempt to conceal the manner of [Mr. Trentadue’s] death.” Id. at 851. Thus, the
court in Trentadue essentially held that, though the operative complaint did not
replicate the same theory of emotional distress found in the administrative claim,
that claim provided the government with adequate notice that it should investigate
postmortem agency conduct that arguably could give rise to emotional distress.
More specifically, the court tacitly reasoned that the administrative claim gave the
government adequate notice that it should investigate a universe of causes of the
alleged postmortem emotional distress that included matters that the operative
complaint generally referenced and the district court relied on. See id. at 853. In
this case, by contrast, Ms. Benally never identified post-operative agency conduct
as the basis for her claimed injury. Rather, she only referenced a post-operative
matter—i.e., equipment failure—that was a consequence of her initial operation.
16
Thus, a government investigator would have had no basis to inquire into the
quality of her post-operative care.
Indeed, Ms. Benally’s notices raised only surgical concerns, and her
challenges to her post-operative care came to light only in her subsequent civil
complaint. Thus, Trentadue offers little succor to Ms. Benally, because, unlike
that case, her administrative notices simply failed to provide the facts and
circumstances underpinning her subsequent federal-court claim.11
For all of the foregoing reasons, we reject the notion that Ms. Benally’s
11
Notably, in Trentadue, we contrasted the administrative claim filed by
Mr. Trentadue’s estate with the claim deemed insufficient by our sibling circuit in
Dynamic Image Technologies, Inc. v. United States, 221 F.3d 34 (1st Cir. 2000).
In Dynamic Image, the “plaintiff filed an administrative claim for damages with
the United States Postal Service following his forcible removal from a postal
service trade show.” Trentadue, 397 F.3d at 853. The plaintiff’s administrative
claim alleged “negligent misrepresentation, libel, slander, intentional interference
with contractual relations, and discrimination under 42 U.S.C. § 1983,” id.
(quoting Dynamic Image, 221 F.3d at 36), while his later civil suit “brought claims
under the FTCA for false arrest, intentional infliction of emotional distress and
negligent supervision,” id. “Because those causes of action were based on an
incident not mentioned in plaintiff’s administrative claim, the First Circuit held
that the agency was not put on notice that it should investigate the potentially
tortious conduct, and dismissed the complaint for lack of subject matter
jurisdiction.” Id. In contrast, we explained, “the plaintiffs’ administrative claim
[in Trentadue] specifically included a claim for intentional infliction of emotional
distress and was based on the same underlying conduct that supported their
amended complaint.” Id. We conclude that Ms. Benally’s case closely resembles
Dynamic Image, because as there, Ms. Benally’s subsequent civil complaint
asserted a claim (negligent post-operative care) nowhere mentioned in her
administrative notices (which focused only on the way in which GIMC performed
the surgery). Accordingly, as with the plaintiff in Dynamic Image, Ms. Benally’s
case is distinguishable from Trentadue; that case does not avail her.
17
administrative notices were sufficient to satisfy the FTCA’s presentation
requirement with respect to her civil claim of negligent post-operative care.
Therefore, we conclude that Ms. Benally’s first argument related to such care is
without merit.
2
Turning then to Ms. Benally’s alternative argument, she claims that “[t]he
standard of reasonable care in the medical profession treats the surgery and the
post-operative care period as a unified whole necessary to a successful surgery.”
Aplt.’s Opening Br. at 22. Ms. Benally thus theorizes that a “medical negligence
claim” inherently consists of “negligence during surgery and negligence during the
post-operative period.” Aplt.’s Reply Br. at 5 (emphasis added). Ms. Benally,
however, cites no authority to support her view under the substantive law of New
Mexico, which is controlling here. See, e.g., In re Franklin Savings Corp., 385
F.3d 1279, 1288 (10th Cir. 2004) (explaining that “state law determines whether
there is substantive liability under the FTCA”). And the few authorities from
other jurisdictions upon which she relies are unpersuasive. 12 Accordingly, because
12
Specifically, Ms. Benally relies on three non-binding and easily
distinguishable federal district court decisions. See Aplt.’s Opening Br. at 16–17.
She first focuses on Hartmann v. United States, No. 10-4012, 2011 WL 1542102
(W.D. Mo. Apr. 22, 2011) (unpublished). There, the court referenced the
dictionary definition of “surgery,” and found that the administrative claim
provided adequate notice to support civil claims of negligent surgical performance
and post-operative care. See id. at *11. The Hartmann court’s determination,
however, relied on the plaintiff’s identification of his post-operative providers on
(continued...)
18
it lacks legal substance, we reject Ms. Benally’s second argument.
***********************
In sum, given the clear laser-like focus of Ms. Benally’s administrative
notices on the allegedly negligent performance of her surgery, we conclude that
Ms. Benally’s notices lacked the facts and circumstances sufficient to raise the
possibility of a claim for negligent post-operative care. Accordingly, we affirm
the district court’s dismissal of her claim for negligent post-operative care.
B
(...continued)
the face of his FTCA claim and his reference to specific post-operative treatment.
See id. We find no such references here in Ms. Benally’s administrative notices.
In particular, Ms. Benally’s notices are silent regarding the role of Dr. Poe in
providing care to her. Next, Ms. Benally seeks support from Mejia v. United
States, No. 13-1789, 2016 WL 4579084 (S.D.N.Y. Aug. 31, 2016) (unpublished).
There, a district court stated that “a general medical malpractice allegation
includes the hospital’s and/or treating physician’s whole response to the medical
issue, including care prior to and after the specific treatment alleged,” id. at *5,
and found adequate notice for claims concerning the plaintiffs’ “entire course of
treatment,” id. As in Hartmann, however, the Mejia court predicated its ultimate
finding (at least in part) on the plaintiffs’ specific reference in her administrative
claim to “continuing care” after the initial operation. Id. Ms. Benally included no
similar mention of her post-operative care in her initial and amended
administrative notices. Finally, Ms. Benally casts her gaze toward Coffey v.
United States, 906 F. Supp. 2d 1114 (D.N.M. 2012), to buttress her theory that
courts “routinely treat claims for negligent aftercare as part of a negligent surgery
claim.” Aplt.’s Opening Br. at 16. But Coffey did not involve a surgical or post-
operative care claim, and as in Hartmann and Mejia, the Coffey court premised its
finding (at least in part) on the plaintiff’s inclusion of specific facts related to each
of the subsequent civil claims. See Coffey, 906 F. Supp. 2d at 1154–56. There is
no such inclusion of specific, relevant facts in Ms. Benally’s administrative
notices. In sum, Ms. Benally’s notices—which contain no reference to any post-
operative care or provider—hardly resemble those deemed sufficient in Hartmann,
Mejia, and Coffey. Thus, Ms. Benally’s reliance on these cases is unavailing.
19
Finally, we turn to the issue of informed consent. Ms. Benally submits that
“New Mexico [law] treats a claim [for] lack of informed consent in connection
with medical care as part of a medical negligence claim.” Aplt.’s Opening Br. at
25–26; accord Aplt.’s Reply Br. at 8 (“[U]nder the New Mexico state law defining
the parameters of a medical negligence claim, which is the applicable law in this
case, lack of informed consent is considered part of a negligent surgery claim.”).
From that premise, Ms. Benally argues that the district court erred in its dismissal,
because her notices “‘allude[d]’ to lack of informed consent” by “describing an
alleged negligent surgery below the standard of care and failed hip hardware.”
Aplt.’s Reply Br. at 9–10. The government retorts that Ms. “Benally’s
administrative claims failed to articulate any claim based upon lack of informed
consent,” Aplee.’s Response Br. at 19, and notes that, in Staggs, we squarely
addressed—and rejected—the notion “that an administrative claim for medical
negligence necessarily includes lack of informed consent when the underlying
state law treats lack of informed consent as negligence.” 425 F.3d at 885. The
government’s response is thus sound. We conclude that Ms. Benally’s
administrative notices failed to adequately present her informed-consent claim to
the government (i.e., HHS).
As a preliminary matter, we observe that the plain text of Ms. Benally’s
notices contained no indication that her claim of surgical negligence involved a
lack of informed consent. Nothing in Ms. Benally’s notices suggested, for
20
example, that GIMC left her unaware or misinformed on the direction, scope, or
potential consequences of her operation, or that GIMC proceeded to surgery
without informing Ms. Benally of alternate options. Indeed, Ms. Benally
described her injury—i.e., stemming from her negligently performed
surgery—without mentioning“consent,” her pre-operative consultations at GIMC,
or any alleged deficiency in the nature or quality of the consent that Dr. Poe
obtained. No aspect of her notices could reasonably have prompted the
government to investigate a negligence claim based upon lack of informed
consent. See Lopez, 823 F.3d at 976–77 (noting that a tort claim notice must
“describ[e] the injury in sufficient detail to allow the agency to begin an
investigation into the possibility of potentially tortious conduct,” and concluding
that the plaintiff’s “administrative claim did not reasonably encompass his
negligent credentialing and privileging claim”).
Now, cutting to the heart of the issue, we conclude that Ms. Benally cannot
escape the inexorable force of our Staggs decision, which fatally undermines her
contention that references in her administrative notices to negligently performed
surgery and medical-equipment failure sufficiently presented (or even alluded to) a
claim for lack of informed consent. In Staggs, the plaintiff filed an administrative
claim accusing an HHS medical facility of a “substantial departure from the
standard of care” and the “negligent management of [the plaintiff’s wife’s]
pregnancy [and] labor.” 425 F.3d at 884. The plaintiff “assert[ed] that failure to
21
obtain informed consent was inherent in this language and other language
indicating that during [the wife’s] care, a decision had to be made about changing
the course of treatment.” Id. We disagreed. In doing so, we first noted that
“[n]othing in [the] administrative claim suggest[ed] that [the plaintiff’s wife]
consented to a course of treatment or remained on such a course without being
informed of her options and the risks,” id., or that she received misinformation
concerning the nature of her treatment, see id. at 885. In light of this, we
concluded “that [the plaintiff’s] administrative claim lack[ed] facts and
circumstances sufficient to raise the possibility of lack of informed consent.” Id.
We then explicitly rejected “the Fifth Circuit’s view that an administrative
claim for medical negligence necessarily includes lack of informed consent when
the underlying state law treats lack of informed consent as negligence.” Id.
Rather, we reiterated that the sufficiency of a tort claim notice must be
“examined” on a “case-by-case” basis, according to the facts-and-circumstances
analysis that we espoused in Trentadue and its progeny. Id.
At bottom, then, we directly confronted and rejected in Staggs a position
virtually identical to the one that Ms. Benally advances here—namely, that a
state’s purported treatment under its law of a claim for lack of informed consent as
part and parcel of a medical-negligence claim obviates the need for a plaintiff to
adequately present in the text of its medical-negligence administrative claim facts
and circumstances regarding a lack of informed consent. Consequently, as in
22
Staggs, we reject Ms. Benally’s position. To be sure, Ms. Benally attempts to
distinguish Staggs, but her arguments are unpersuasive. Ms. Benally argues that
“Staggs does not control” because “Staggs involved Oklahoma law, not New
Mexico law.” Aplt.’s Reply Br. at 9. However, the unique contours of Oklahoma
law had no bearing on our Staggs holding. Rather, we generally rejected the idea
“that an administrative claim for medical negligence necessarily includes lack of
informed consent when the underlying state law treats lack of informed consent as
negligence.” 425 F.3d at 885 (emphasis added). Therefore, Staggs’s holding
governs regardless of the source of the underlying state substantive law. 13
13
To bolster her informed-consent argument, Ms. Benally also relies on the
Ninth Circuit’s decision in Goodman v. United States, 298 F.3d 1048 (9th Cir. 2002),
which she tells us “explains the circumstances when an informed consent claim is part of
a medical negligence claim, as was true here.” Aplt.’s Opening Br. at 29. In Goodman,
the Ninth Circuit found that an administrative notice’s allegations that “‘things . . .
were overlooked in [a] procedure’ and [that claimant’s] wife ‘should not have
died,’” fairly “impl[ied] that the claimant’s wife agreed to a procedure involving a
greater standard of care than what she received,” id. at 1056–57—viz., fairly
implied an informed-consent claim. In finding these allegations sufficient for
presentation purposes, the Ninth Circuit noted that it had “strong reason to think
the government well understood the general scope of [the plaintiff’s] claim”
because HHS’s denial of the administrative claim “expressly addressed the issue of
informed consent.” Id. Based partially on the indicium of notice in the HHS’s
denial, the Ninth Circuit “conclude[d] that the government was fairly on notice
that the informed consent claim was before it.” Id. at 1057. In concluding that
Goodman does not aid Ms. Benally, we begin with the obvious: coming out of the
Ninth Circuit, it is not controlling precedent. Furthermore, at the very least, the
reasoning of Goodman appears to be in tension with our precedent because, as in
Staggs, the plain terms of the administrative claim there appeared to have “no
allegations . . . that [the plaintiff] was unaware or misinformed as to the direction,
scope or potential consequences” of her treatment, 425 F.3d at 884–85, and
(continued...)
23
Thus, under Staggs, Ms. Benally’s legal contentions regarding the nature of
medical-negligence claims under New Mexico law cannot save her informed-
consent claim. That claim is doomed because, as noted, Ms. Benally’s
administrative notices failed to raise the possibility that she would pursue such a
claim. We thus uphold the district court’s dismissal of Ms. Benally’s informed-
consent claim.
IV
13
(...continued)
seemingly did not “describ[e] the injury in sufficient detail to allow the agency to
begin an investigation into the possibility of potentially tortious conduct,” Lopez,
823 F.3d at 976. Lastly, even if we found the reasoning of Goodman persuasive,
our record would not permit us to meaningfully apply it here. That is because
HHS’s February 11 denial is not part of the record on appeal; accordingly, unlike
Goodman, we cannot discern whether HHS divined an informed-consent
contention among the facts and circumstances of Ms. Benally’s administrative
notices. Any adverse consequence of this record deficiency must fall squarely on
the shoulders of Ms. Benally. See Travelers Indem. Co. v. Accurate Autobody,
Inc., 340 F.3d 1118, 1120 (10th Cir. 2003) (“We are unwilling to reverse the
decision of the district court based on a guess . . . . The party appealing a district
court ruling has the burden to relieve us of such guesswork by providing the
necessary documents.”); Rios v. Bigler, 67 F.3d 1543, 1553 (10th Cir. 1995) (“It is
not this court’s burden to hunt down the pertinent materials. Rather, it is
Plaintiff’s responsibility as the appellant to provide us with a proper record on
appeal.”); see also Burnett v. S.W. Bell Tel., L.P., 555 F.3d 906, 908 (10th Cir.
2009) (collecting cases). In any event, tellingly, neither in her Goodman-based
argument nor elsewhere does Ms. Benally contend that the HHS’s denial letter
evinced an understanding that she was alleging lack of informed consent in her
initial or amended administrative notices. Accordingly, for the foregoing reasons,
Goodman offers Ms. Benally no aid.
24
Based on the foregoing, we AFFIRM the district court’s judgment
dismissing Ms. Benally’s complaint for lack of subject-matter jurisdiction.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
25