Stewart J. Smith v. United States

USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 1 of 58

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 20-11365
________________________

D.C. Docket No. 5:18-cv-00277-TES

STEWART J. SMITH,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Middle District of Georgia
________________________

(July 29, 2021)

Before WILSON, ROSENBAUM and HULL, Circuit Judges.

HULL, Circuit Judge:

In 2018, Mr. Smith, a veteran, initiated this lawsuit in federal district court

against the United States, proceeding under the Federal Tort Claims Act
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(“FTCA”), 28 U.S.C. § 1346(b). Mr. Smith claimed, in part, that various medical

professionals working for the Department of Veterans Affairs (the “VA”) breached

their legal duty to exercise ordinary medical care and negligently failed to diagnose

his throat cancer and immediately treat it. The district court granted the

government’s motion to dismiss Smith’s complaint for lack of subject matter

jurisdiction. The district court concluded that its judicial review of his claims was

precluded by the Veterans’ Judicial Review Act (“VJRA”), 38 U.S.C. § 511(a),

which restricts judicial review of “questions of law and fact necessary to a

decision by the Secretary under a law that affects the provision of benefits by the

Secretary to veterans.” 38 U.S.C. § 511(a).

After review, and with the benefit of oral argument, we conclude that the

district court did lack jurisdiction over some of Mr. Smith’s claims, but that it had

jurisdiction over his tort claims alleging medical negligence or malpractice. We

thus affirm in part and reverse in part the dismissal of Mr. Smith’s complaint.

I. SUBJECT MATTER JURISDICTION

All agree that the government’s attack on the district court’s subject matter

jurisdiction is a factual—as opposed to a facial—one. The parties submitted, and

the district court properly considered, evidence relevant to the court’s jurisdictional

inquiry. See Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003)

(“In resolving a factual attack, the district court may consider extrinsic evidence

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such as testimony and affidavits.” (citation omitted)). Therefore, in recounting the

basic facts, we rely on material outside the operative complaint, including

depositions, affidavits, and medical records.

II. VETERANS’ HEALTH CARE

The VA provides medical care to veterans through the Veterans Health

Administration (“VHA”). The Secretary of Veterans Affairs (the “Secretary”)

manages the provision of health benefits to eligible veterans. See Veterans Health

Administration, About VHA, https://www.va.gov/health/aboutvha.asp (last

accessed July 29, 2021). Dr. Robert Ferris, an expert witness retained by Mr.

Smith, testified that the standard of care for medical treatment received through the

VA is no different from the standard of medical care that applies throughout the

United States. 1 See Anestis v. United States, 749 F.3d 520, 527 (6th Cir. 2014)

(noting a veteran’s widow’s claims of malpractice by VA hospital staff were

“based on standards of care that govern medical professionals” generally).

The VA provides medical care to veterans by two means: (1) by providing

care directly through the VA’s own medical professionals and their supporting

personnel; and (2) by paying medical-care providers in the local community

outside the VA when veterans need care that cannot be provided within the VA

1
As part of the limited initial discovery in this case, Mr. Smith had expert reports
prepared by a physician, Dr. Ferris, and a nurse, Karen Rose. The United States deposed both
experts prior to filing its motion to dismiss the complaint.

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system. See Community Care, Veterans Overview, https://www.va.gov/

communitycare/programs/veterans/index.asp (last accessed July 29, 2021).

As to outside treatment, the medical care is arranged through a purchased-

care model where the VA must authorize the outside treatment in advance. See 38

U.S.C. § 1703. The VA’s approval process for outside care has two components:

(1) administrative review; and (2) clinical review. The process begins when a VA

provider (such as a doctor) completes, signs, and submits a non-VA care referral

through the VA’s Computerized Patient Record System. Members of the VA’s

Care Coordination Team then perform an administrative eligibility review to

determine whether to approve the outside care. The administrative review involves

determining whether the patient is eligible as a veteran to receive VA benefits.

The VA’s Care Coordination Team also performs a clinical review. That

clinical review—which cannot occur unless the patient is administratively

eligible—concerns whether, for example, the services are available within the VA

and whether the outside services are medically necessary. While the eligibility

review may be conducted by someone acting in a solely administrative role, the

clinical review is conducted often by a nurse, sometimes with the oversight of a

doctor. The “referral review process” is complete once the referral is approved or

denied.

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Here, both the administrative and clinical review were performed by Nurse

Nkechi Ekwueme (“Nurse Ekwueme”), who was the VA’s Care Coordinator for

Mr. Smith. After the outside medical care is approved, another VA employee

schedules the appointment with an appropriate outside care provider.

The VA’s Care Coordinator has another substantive role in a veteran’s

medical care. Nurse Karen Rose (“Nurse Rose”), another expert witness retained

by Mr. Smith, testified about the functions of a VA nurse care coordinator and

whether Nurse Ekwueme acted “within the standard of care for nursing care

coordination” throughout Mr. Smith’s care. 2 In particular, Nurse Rose, a

registered nurse with VA work experience, opined that one of the primary

functions of a VA care coordinator was to “[t]rack and monitor” the patient’s

medical care and treatments throughout the time he is receiving outside VA care.

According to Nurse Rose, Nurse Ekwueme was responsible for, among other

duties, managing, coordinating, and monitoring the medical consultation and

2
Nurse Rose’s past employment included positions as a “Nurse Case Manager” at Fort
Bliss, Texas, a case manager for high-risk patients within the VA, and an “Alternate Traveling
Veteran Care Coordinator.” In these positions, Nurse Rose was involved in coordinating care for
soldiers and veterans, including “facilitating care . . . with outside facilities.” Nurse Rose based
her opinions in part on the “Case Management Society of America Standards of Practice” (which
lays out “standards of practice for all case managers who coordinate care”) as well as her
education and work experience.

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treatment Mr. Smith received from an outside ear, nose, and throat (“ENT”)

specialist, Dr. Sanford Duke. 3 We now detail Mr. Smith’s medical care.

III. MR. SMITH’S CANCER

Mr. Smith is a veteran of the U.S. Army who served during the Vietnam era.

In 1972, he was honorably discharged, and, since then, he has received medical

care through the VA. Since 2004, Mr. Smith has received medical care at the Carl

Vinson VA Medical Center in Dublin, Georgia (the “VA Medical Center”). At the

relevant time, Mr. Smith’s primary care physician was Dr. Neelima Puppala, an

inside VA care provider.

A. October 2013: Emergency Room

On October 24, 2013, Mr. Smith called the nurse triage line at the VA

Medical Center and reported severe pain in the right side of his head, particularly

behind his ear and eye, accompanied by tongue swelling that caused his speech to

be slurred. A VA nurse relayed a message to Dr. Puppala and directed Mr. Smith

to the emergency room. That day, Mr. Smith sought care at the Coliseum Medical

Center Emergency Department (“ER”) in Macon, Georgia. The ER physician,

3
According to the VA’s “Process Guide” for Non-VA Care Coordination, “Non-VA Care
Coordination activities . . . continue through the episode of non-VA care.” During this time, it
may be necessary for the Care Coordinator to generate progress notes to “coordinate, facilitate,
and document support services required by the Veteran.”

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believing Mr. Smith’s symptoms were an adverse reaction to Neurontin, instructed

him to stop taking Neurontin and to follow up with his VA physician.

The very next day, October 25, 2013, Mr. Smith contacted Dr. Puppala’s

office, but he was unable to secure a VA appointment with Dr. Puppala until

December 16, 2013—nearly two months later.

B. December 2013–January 2014: Diagnosis and CT Scans

At the December 16 appointment, Mr. Smith reported to Dr. Puppala, his

VA doctor, that his tongue had remained dry and swollen since the October 24 ER

visit and that the right side of his neck had begun to swell in the weeks prior to this

appointment. Dr. Puppala noted the ER evaluation, examined Mr. Smith, and

confirmed the right “submandibular gland swelling.” Dr. Puppala ordered CT

scans without contrast of Mr. Smith’s neck. The VA scans, however, did not occur

until over a month later, on January 14, 2014.

Predictably, the January 14 CT scans showed a tumor in Mr. Smith’s throat

at the base of his tongue. At that point, the tumor had spread to three lymph nodes

in his right neck. According to the VA radiologist’s report, the CT scans showed

“an enlarged mass or lymph node” in Mr. Smith’s right neck, “abnormally

enlarged and irregular appearing lymph nodes” also in his right neck, and

“[q]uestionable increased soft tissue density in the right base of [his] tongue.”

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Dr. Ferris testified that, given the extent of the swelling in Mr. Smith’s neck

and the undisputed presence of a mass in his neck, there was a “joint duty on the

part of the [VA] physician and radiology” teams to get Mr. Smith in for CT scans

“[w]ithin days, a week at the most” of his December 16 visit and to then assess the

results quickly to arrive at a diagnosis. According to Dr. Ferris, the urgency of Mr.

Smith’s condition ought to have been apparent, since “a neck mass in an adult is

cancer until proven otherwise.”4

Dr. Ferris opined that “Mr. Smith had initial symptoms of tongue

malignancy in October 2013 and there were obvious findings of his tongue cancer

on the CT scans on January 14, 2014.” Dr. Ferris also testified, based on his

review of the January 14 CT scans, that Mr. Smith “appeared to be clinical stage

IV,” given that there were “two or more metastatic lymph nodes” and also “a large

tumor at the primary site.” Even the VA radiologist noted that the January 14

scans were “worrisome for underlying head and neck malignancy”—cancer.

Despite all this, the VA radiologist, Dr. Matthew Dobbs, only recommended

an outside “ENT consultation and visual inspection and possible PET/CT for

biopsy of these nodes.” Dr. Ferris opined that, “[h]ad Mr. Smith’s malignancy

4
Dr. Ferris is a medical doctor licensed to practice medicine in the State of Pennsylvania.
He holds a medical degree from the Johns Hopkins Medical School, and is board certified in
otolaryngology. Since at least 2002, Dr. Ferris had been regularly engaged in the active practice
and teaching of otolaryngology, immunology, and head and neck oncologic surgery.

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been diagnosed in January 2014, as it should have been, it is more likely than not

that the malignancy could have been resectable at the time.”

Upon receiving the CT scans on January 16, 2014, Dr. Puppala informed VA

personnel that Mr. Smith needed another appointment with Dr. Puppala “ASAP” to

discuss the results. Receiving this ASAP direction from Dr. Puppala, VA

personnel promptly scheduled Mr. Smith for an appointment a week later, on

January 22, 2014, with Dr. Puppala. Apparently, when the VA doctor orders it,

VA personnel can act and schedule quickly.

Even before seeing Mr. Smith for the January 22 follow-up, Dr. Puppala,

like the VA radiologist, recommended and ordered a “non-VA consult” for Mr.

Smith with an ENT specialist and entered a “Non-VA Care Coordination Note”

into Mr. Smith’s treatment record requesting the outside ENT consult. Although

there were “obvious findings of [Mr. Smith’s] tongue cancer on the CT scan[s]

[on] January 14, 2014,” no medical person on Mr. Smith’s medical team ordered,

requested, or tried to facilitate an immediate or expedited consult.

At the January 22 follow-up appointment, Dr. Puppala discussed the CT

scans with Mr. Smith. Although the primary purpose of the visit was to discuss the

scans, Dr. Puppala noted that Mr. Smith still had swelling on the right side of his

neck and that the swelling was now causing pain in his right ear. Given Mr.

Smith’s continued symptoms and the “worrisome” findings of “head and neck

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malignancy” on the CT scans, Dr. Puppala entered another Care Coordination Note

ordering an outside ENT consult.

As detailed above, once Dr. Puppala ordered the outside ENT consult, a VA

Clinical Care Coordinator, here Nurse Ekwueme, was responsible for conducting

an administrative and clinical review of Dr. Puppala’s ENT consult order to

determine Mr. Smith’s eligibility and approve the ENT consult. Mr. Smith’s

treatment record indicates that on January 24, 2014, two days after Dr. Puppala

entered the second Care Coordination Note, Nurse Ekwueme approved the ENT

consult. Specifically, Nurse Ekwueme made a note in Mr. Smith’s treatment

record that the ENT consult Dr. Puppala ordered was “authorized by Fee,” and the

consult was given to the Fee PSA (Program Support Assistant) for processing. On

the same day, the Fee PSA acknowledged receipt of Nurse Ekwueme’s

authorization note.

In short, as of January 24, 2014, the VA had completed its administrative

and clinical review and determined that Mr. Smith was eligible for an outside ENT

consult and that the consult was medically necessary. There was no benefits issue

as to the outside ENT consult then or at any time.

C. January 24–March 11, 2014: No Medical Follow Up on Outside ENT
Care

Despite the obvious findings of tongue cancer shown in the January 14 CT

scans and the urgency of Mr. Smith’s cancer condition, the VA’s medical staff

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took no further action for almost a month. There is no indication in the record of

any management, coordination, monitoring, or follow-up as to Mr. Smith’s

medical care by any of his VA medical professionals or their supporting personnel.

It took until February 21, 2014, for the VA to even send information to the

ENT Center of Central Georgia, an outside private medical group. This one-month

delay was not due to any dispute about whether Mr. Smith was entitled to benefits.

To the contrary, once Nurse Ekwueme indicated in the treatment record on January

24 that Mr. Smith’s outside ENT care was approved, there were no concerns with

whether Mr. Smith was eligible for the outside medical care ordered by Dr.

Puppala or whether that outside medical care was medically necessary.

Meanwhile, the private clinic, the ENT Center of Central Georgia, informed

Mr. Smith that they were still awaiting notice of the VA’s approval for his visit. It

appears that despite the indications in the VA record that the outside care was

already approved, the ENT Center had not yet received anything from the VA.

Again, from January 24 to March 6, there appears to have been no medical follow

up or care coordination by any VA medical professionals or their supporting

personnel. So, on March 6, 2014, Mr. Smith contacted the VA Medical Center

about his outside ENT consult.

In response, VA Nurse Ekwueme, as Care Coordinator, intervened the

following day. On March 7, Nurse Ekwueme faxed an authorization to the private

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ENT Center and scheduled an appointment for March 11, 2014, almost two months

after the January 14 CT scans and almost three months after Dr. Puppala examined

Mr. Smith on December 16. The private ENT Center saw Mr. Smith promptly on

March 11. In fact, once the VA faxed the authorization on March 6, the ENT

specialist saw Mr. Smith a mere five days later (March 11). If anything, this again

demonstrates how the VA’s medical personnel are able to get a VA patient with

serious cancer seen immediately and are able to manage and coordinate medical

care.

At the March 11 appointment, Dr. Sanford Duke, the private ENT, examined

Mr. Smith and confirmed he had a palpable mass on his right neck and the base of

his tongue. Mr. Smith again presented with symptoms including dysphagia

(difficulty swallowing), dry mouth, mucous after drinking, and affected speech.

After reviewing the January 14 CT scans, Dr. Duke immediately performed a fine

needle aspiration of the mass for pathological examination. Predictably, the

pathology results indicated “Malignant Cells present, poorly differentiated

carcinoma”—cancer.

Two days later, on March 13, 2014, Dr. Duke saw Mr. Smith again, at which

point he advised Mr. Smith that he needed immediate surgery for his cancer.

Dr. Duke noted the need for a set of scans with contrast and a PET scan before he

could surgically remove Mr. Smith’s tumor. VA policies and procedures,

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however, required that the scans be performed back at a VA facility. Again, there

is no dispute that Mr. Smith was eligible for these scans and that they were

medically necessary.

D. March 13–April 24, 2014: No Medical Follow-Up on PET Scan

Despite the urgency and seriousness of Mr. Smith’s cancer diagnosis and the

need for immediate surgery on March 13, the VA medical team did not manage,

coordinate, monitor, or follow-up as to Mr. Smith’s medical care. Rather, it took

weeks to do the new scans. The CT scans with contrast were not performed until

March 28, 2014, over two weeks after they were ordered, and the PET scan was

not done until April 7, 2014, over three weeks after it was ordered.

The CT scans with contrast showed enlarged nodes in the right neck and a

questionable soft tissue density in the base of the tongue. But, as of April 14, 2014

(a month after the scans were ordered), Mr. Smith still did not have the results

from the PET scan, so he called the VA Medical Center.

On April 24, 2014, Mr. Smith emailed Dr. Puppala about his “serious

malignancy,” stating that he had not received the results of the April 7 PET scan:

I am very concerned about the cancer on my neck and tongue that you
and the radiologist diagnosed in January 2014. I had experienced
symptoms of ear pressure, headache, and problems with movement of
my tongue since about October 2013. It is now almost May, and I have
not been contacted by . . . [the VA Medical Center] . . . with an
interpretation of my PET scan results . . . . And since Dr. Dukes’ [sic]
office has informed me that VA has not authorized him to provide
further care (presumably surgery and radiation), I have a serious

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malignancy but do not yet have a plan of care from any medical
professional at VA. Am I missing something here, or is treatment of
my cancer not an urgent matter?

E. April 25, 2014: PET Scan Results

On April 25, 2014, apparently in response to Mr. Smith’s email, Dr. Puppala

noted the findings of Mr. Smith’s PET scan and stated that Mr. Smith needed to

“follow up with [his] ENT . . . who requested the PET scan.” Consistent with the

January 14 CT scans, the PET scan showed evidence of a primary malignancy of

the tongue, as well as evidence of right cervical lymph node metastases.

That very same day, Dr. Puppala also called and emailed the VA’s fee

department to gain approval for Mr. Smith’s follow-up care—including surgery to

remove his throat tumor—with Dr. Duke. According to the notes in Mr. Smith’s

patient record, Dr. Puppala was unsure why Mr. Smith’s follow-up with Dr. Duke

needed approval, since “[u]sually the consutls [sic] we submit are approved for a

year.” Dr. Puppala herself stated that the VA (specifically the “fee dep[artmen]t”

where Nurse Ekwueme worked) should have been coordinating with the private

ENT center to set up Mr. Smith’s follow-up appointments with Dr. Duke.

Unfortunately for Mr. Smith, this apparently did not occur between March 13 and

May 13.

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F. May 19, 2014: Surgery

It was not until Mr. Smith obtained legal counsel who contacted

Congressman John Barrow, who in turn contacted the VA on May 12, 2014, that

Mr. Smith’s surgery and other follow-up care was approved on May 13, 2014. The

treatment record reflects that on May 13, 2014, the VA’s Acting Chief of Staff,

Dr. Shauna S. Kincheloe-Zaren, entered a note in response to Congressman

Barrow’s letter stating that “[a] new consult [order] was required to evaluate and

treat the patient and it was placed on 5/12/201[4],” and that “the appointment [was]

scheduled with the ENT on 5/13/2014.” Apparently, this VA doctor knew how to

order, or have someone enter an order for, an immediate ENT consult and have it

occur the next day.

By the time Mr. Smith’s surgery was approved on May 13, 2014, it had

been five months since he saw Dr. Puppala on December 16, 2013, with symptoms

and swelling that Dr. Ferris says indicated adult cancer, and four months since the

January 14, 2014 CT scans had confirmed the malignant mass in Mr. Smith’s

throat. Once the VA’s Dr. Kincheloe-Zaren intervened, Dr. Duke was able to

perform the surgery six days later.

On May 19, 2014, Mr. Smith underwent surgery to remove the tumor mass

in his neck. By that time (five months after his December 16 visit) the tumor had

grown, and, because it now involved Mr. Smith’s carotid artery, Dr. Duke was

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unable to remove the entire mass through surgery. As a result, Mr. Smith was

required to undergo a more intensive chemotherapy and radiation regimen, thereby

reducing his chances of survival.

According to Dr. Ferris, Mr. Smith’s medical expert, “there is a standard of

care for an adult with a mass in the neck,” regardless of whether the medical care is

within or outside the VA. Dr. Ferris opined that, given the symptoms Mr. Smith

presented with during his December VA appointment, a reasonable timeframe

from when he “walk[ed] in the door” to “getting on the OR table” would have been

a “two-to-three month timeframe.” Dr. Ferris added that Mr. Smith’s care was

“below the standard of [medical] care.”

Additionally, Nurse Rose opined, based on her experience as an RN and a

VA care manager, her education, and her professional knowledge on the standards

of care for nurse care managers, that “Mr. Smith’s care was mismanaged from the

beginning” and that, “had Mr. Smith’s medical condition been properly managed

and [his] care coordinated early on and through his illness, his outcome” would

have been better.

G. Subsequent Developments

On May 29, 2014, Dr. Duke, along with Mr. Smith’s oncologists, confirmed

a plan of care, which was to begin a few days later on June 3. It was only after

Mr. Smith and his counsel held a press conference that the VA finally started his

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treatments on June 25. Mr. Smith then underwent chemotherapy and radiation

treatments.

By early 2015, Mr. Smith’s doctors believed his cancer was in remission,

and for the next two and a half years, Dr. Duke continued to see and monitor

Mr. Smith. A routine PET scan in September 2017 revealed a nodule on

Mr. Smith’s lung, which was the same type of cancer as in his throat. In May

2018, Mr. Smith had surgery to remove the new tumor and a portion of his left

lung.

IV. PROCEDURAL HISTORY OF FTCA CLAIM

A. Exhaustion of FTCA Claim

Prior to filing this lawsuit, Mr. Smith had to exhaust his FTCA claim

through the VA. Specifically, Mr. Smith filed a “tort claim” under the FTCA,

alleging that his “VA healthcare providers negligently failed to timely diagnose

and treat [his] tongue cancer.”

In a December 2015 letter, the VA’s Office of Regional Counsel denied

Mr. Smith’s claim. The Regional Counsel’s letter stated that the VA had

“thoroughly investigated the facts and circumstances surrounding [Mr. Smith’s]

administrative tort claim” and concluded “there was no negligent or wrongful act

on the part of” any VA employee. The VA, at least at that point, seemingly

conceded that medical negligence or malpractice was the proper lens through

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which to view Mr. Smith’s claims.5 That same letter informed Mr. Smith that if he

were “dissatisfied,” he could “file a request for reconsideration of [his] claim with

the VA General Counsel.”6 Mr. Smith did that.

In a February 2018 letter, the VA’s Office of the General Counsel responded

that it had reconsidered Mr. Smith’s FTCA claim. The General Counsel “found no

evidence of any negligent or wrongful act or omission on the part of a [VA]

employee acting within the scope of his or her employment that caused or

contributed to any injury to Mr. Smith.” The General Counsel’s letter informed

Mr. Smith that if he wished to pursue his claim further, he could file suit in a

federal court.

B. District Court Proceedings

Mr. Smith then filed this suit against the United States (“the government”),

pursuant to the FTCA, 28 U.S.C. § 1346(b). He alleged, inter alia, that “various

personnel at the VA[] were negligent in regards to the care and treatment of” his

5
The letter acknowledged that Mr. Smith had framed his grievance as an FTCA
negligence claim:
The Federal Tort Claims Act (FTCA), . . . under which you filed your claim,
provides for monetary compensation when a Government employee, acting within
the scope of employment, injures another by a negligent or wrongful act or
omission. Medical negligence means there was a breach in the standard of care and
that breach proximately caused an injury. The standard of care is the level at which
similarly qualified medical professionals, including doctors and nurses, would have
managed the care under the same or similar circumstances.
6
The letter also informed Mr. Smith that, alternatively, he could “file suit directly under
the FTCA.”

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cancer by “[f]ailing to timely act in the face of Smith’s concerning symptoms and

test results, resulting in inexcusable delay in the diagnosis, at a time when his

cancer was treatable and curable,” and thereby failed to meet the applicable and

appropriate medical standard of care. Compl. ¶ 38.

The government moved to dismiss Mr. Smith’s complaint for lack of subject

matter jurisdiction under the VJRA, 38 U.S.C. § 511, which precludes judicial

review of VA benefits decisions. The government acknowledged that Mr. Smith

framed his FTCA claim as sounding in medical negligence but argued that his

claims actually turned on the fact that his medical care was delayed and thus “he

was denied benefits.”

The district court agreed and dismissed Mr. Smith’s complaint without

prejudice. This appeal followed.

V. STANDARD OF REVIEW

We review de novo the dismissal of a complaint for lack of subject matter

jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Hall v. U.S.

Dep’t of Veterans’ Affairs, 85 F.3d 532, 533 (11th Cir. 1996); see also

McElmurray v. Consol. Gov’t of Augusta-Richmond Cnty., 501 F.3d 1244, 1250

(11th Cir. 2007).

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VI. VETERANS’ MEDICAL NEGLIGENCE CLAIMS

Before discussing the VJRA, we review how Congress has provided two

separate mechanisms by which a veteran may recover for the VA’s medical

negligence: (1) filing a tort suit for money damages against the United States

pursuant to the FTCA; and (2) filing a disability benefits claim with the VA itself.

A. The FTCA: Damages Caused by Medical Negligence of VA Personnel

Veterans injured by the negligence of the VA’s medical professionals and

their supporting personnel can bring suit against the United States in federal

district court for medical negligence under the FTCA, 28 U.S.C. § 1346(b)(1). See

United States v. Brown, 348 U.S. 110, 110–13, 75 S. Ct. 141, 142–44 (1954)

(concluding that a veteran’s lawsuit for medical negligence at a VA hospital, which

was authorized by the FTCA, was not barred by the Feres doctrine); McCullough

v. United States, 607 F.3d 1355, 1358 (11th Cir. 2010); see also 38 U.S.C.

§ 515(a)(1) (“[T]he Secretary may settle a claim for money damages against the

United States cognizable under section 1346(b) . . . of title 28 . . . .”).

The FTCA provides, in relevant part, that district courts “shall have

exclusive jurisdiction of civil actions on claims against the United States for

money damages . . . for . . . personal injury or death caused by the negligent or

wrongful act or omission of any employee of the Government” under certain

circumstances. 28 U.S.C. § 1346(b)(1). Further, as to tort claims related to

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negligence by VA personnel specifically, § 7316(a)(1) of Title 38 provides that

the FTCA will provide the remedy for “damages for personal injury, including

death, allegedly arising from malpractice or negligence of a health care employee

of the [VA] in furnishing health care treatment,” a remedy that is “exclusive of

any other civil action or proceeding by reason of the same subject matter.” 38

U.S.C. § 7316(a)(1) (emphasis added). Section 7316(a)(2) goes on to define

“health care employee” to mean a “physician, dentist, podiatrist, chiropractor,

optometrist, nurse, physician assistant, expanded-function dental auxiliary,

pharmacist, or paramedical (such as medical and dental technicians, nursing

assistants, and therapists), or other supporting personnel.” Id. § 7316(a)(2). The

standards of care that govern medical professionals (which are set forth in the tort

law of each state) are incorporated into the FTCA. See Anestis, 749 F.3d at 527.

Before filing an FTCA lawsuit, an individual must “have first presented the

claim to the appropriate Federal agency and his claim shall have been finally

denied by the agency in writing.” 28 U.S.C. § 2675(a); see also 28 C.F.R. § 14.9.

This is what Mr. Smith did. He filed what the VA referred to as an

“Administrative Tort Claim” in order to exhaust his FTCA claim. And after his

claim was denied, the VA’s General Counsel wrote him that if he wished to pursue

his claim further, he should file suit “in Federal district court within six months”

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and “should name the United States as the defendant.” This is what Mr. Smith also

timely did.

B. Section 1151(a): Disability Benefits Resulting from Medical Negligence

Separate from seeking money damages for negligence under the FTCA,

there is another, independent track for recovery that veterans can pursue

simultaneously. A veteran may also seek “[b]enefits” under 38 U.S.C. § 1151(a)

for disability or death resulting from negligence on the part of VA medical

professionals or occurring in a VA facility. 38 U.S.C. § 1151(a)(1). Section

1151(a)(1) provides, in relevant part, that “[c]ompensation” will be awarded for

disability or death “if the disability or death was not the result of the veteran’s

willful misconduct” and

(1) the disability or death was caused by hospital care, medical or
surgical treatment, or examination furnished the veteran . . . and the
proximate cause of the disability or death was—

(A) carelessness, negligence, lack of proper skill, error in judgment,
or similar instance of fault on the part of the Department in
furnishing the hospital care, medical or surgical treatment, or
examination . . . .

38 U.S.C. § 1151(a)(1); see also Viegas v. Shinseki, 705 F.3d 1374, 1378 (Fed.

Cir. 2013). Any disability or death benefits received pursuant to § 1151(a) must be

offset against any money damages a veteran might receive via an FTCA tort suit.

38 U.S.C. § 1151(b). We now turn to the VJRA.

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VII. THE VJRA

A. History Before 38 U.S.C. § 511(a)

Initially, the limitation on judicial review of VA benefits decisions was

located in former 38 U.S.C. § 211(a). Section 211(a) precluded judicial review of

the VA Administrator’s decisions under “any law administered by the [VA]

providing benefits for veterans,” as follows:

[T]he decisions of the Administrator on any question of law or fact
under any law administered by the Veterans’ Administration providing
benefits for veterans and their dependents or survivors shall be final and
conclusive and no other official or any court of the United States shall
have power or jurisdiction to review any such decision by an action in
the nature of mandamus or otherwise.

See 38 U.S.C. § 211(a) (1982) (emphasis added).

Then, in 1988, the Supreme Court in Traynor v. Turnage held that a district

court properly exercised jurisdiction over two veterans’ suits challenging the VA’s

decision that they were ineligible for out-of-time educational-assistance benefits

under the GI Bill. 485 U.S. 535, 538–39, 108 S. Ct. 1372, 1376–77 (1988). The

GI Bill allowed veterans to obtain an extension of the 10-year eligibility period for

educational assistance “if they were prevented from using their benefits earlier by

‘a physical or mental disability which was not the result of [their] own willful

misconduct.’” Id. at 538, 108 S. Ct. at 1376 (quoting former 38 U.S.C. § 1661

(alteration in original)). The VA denied the veterans educational benefits,

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determining their alcoholism disability was the result of their own willful

misconduct. Id.

Filing suit in federal court, the veterans claimed, inter alia, that the VA’s

educational-benefits denial violated § 504 of the Rehabilitation Act of 1973, 29

U.S.C. § 794, which bars discrimination against handicapped individuals solely

because of their handicap. Id. at 537, 539. In Traynor, the Supreme Court held

that § 211(a) did not preclude judicial review of the VA’s educational-benefits

decision. The Supreme Court reasoned that, while the veterans’ entitlement to

educational benefits under the GI Bill was a question of law or fact “under any law

administered by the [VA],” the case also “involve[d] the issue whether the law

sought to be administered is valid in light of a subsequent statute whose

enforcement is not the exclusive domain of the Veterans’ Administration”—

namely, the Rehabilitation Act. Id. at 543–45, 108 S. Ct. at 1379–80.

B. Text of § 511(a)

In response to Traynor and other decisions by lower courts, Congress

amended § 211 via the VJRA, and the relevant provision was later relocated to

§ 511(a). See Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 101, 102

Stat. 4105, 4105 (1988); Dep’t of Veterans Affairs Codification Act, Pub. L. No.

102-83, § 2, 105 Stat. 378, 388–89 (1991). The limitation on judicial review of

benefits decisions, located in § 511(a), now reads:

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The Secretary shall decide all questions of law and fact necessary to a
decision by the Secretary under a law that affects the provision of
benefits by the Secretary to veterans or the dependents or survivors of
veterans. . . . [T]he decision of the Secretary as to any such question
shall be final and conclusive and may not be reviewed by any other
official or by any court, whether by an action in the nature of mandamus
or otherwise.

38 U.S.C. § 511(a) (emphasis added).7 Section 511(a) does two things. First,

“once the Secretary has been asked to make a decision in a particular case” (e.g.,

whether a veteran is eligible for or entitled to benefits), it “imposes a duty on the

Secretary to decide all questions of fact and law necessary to a decision in that

case.” See Hanlin v. United States, 214 F.3d 1319, 1321 (Fed. Cir. 2000)

(emphasis added). Second, it precludes judicial review of those decisions.

The House Report on the VJRA gave examples of “questions of law and

fact” that might be “necessary to a decision by the Secretary” in a benefits case

apart from the substantive benefits decision itself. The Report explained that

where a veteran alleges, for example, “that a statute is unconstitutional, that VA

procedure deprives him or her of due process of law, or that a VA regulation is

inconsistent with a later-enacted statute,” the Secretary “must take a position with

respect to such a contention if it is necessary to a decision in a case.” H.R. Rep.

7
A VA regulation defines a “benefit” to include “any payment, service, commodity,
function, or status, entitlement to which is determined under laws administered by the
Department of Veterans Affairs pertaining to veterans and their dependents and survivors.” 38
C.F.R. § 20.3(e).

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No. 100-963, at 27 (1988), reprinted in 1988 U.S.C.C.A.N. 5782, 5809. By

including “necessary to a decision,” § 511(a) requires the Secretary not only to

make a substantive benefits determination, but also to decide all questions of law

or fact that bear on that benefits determination. In turn, the Secretary’s decision on

such “necessary” questions is not subject to outside judicial review. Instead, a

veteran’s only avenue for review of those questions is the VA’s administrative

appeals process.8

Next, we review how our Court and other circuits have interpreted § 511(a).

8
Under this process, a veteran may appeal a decision of the Secretary to the Board of
Veterans’ Appeals (the “Board”), whose ruling becomes the final decision of the Secretary. 38
U.S.C. § 7104(a). Decisions of the Board may then be reviewed exclusively by the U.S. Court of
Appeals for Veterans Claims, an Article I court established by the VJRA. Id. §§ 7251, 7252(a),
7266(a). Decisions of the Court of Appeals for Veterans Claims are in turn appealable only to
the U.S. Court of Appeals for the Federal Circuit, and only as to certain legal issues relied upon
by the Article I court. Id. § 7292(a), (c). The Federal Circuit’s judgment is subject to certiorari
review by the Supreme Court. Id. § 7292(c).
This appeal process is kicked off when the Secretary, “on a timely basis, provide[s] to the
claimant (and to the claimant’s representative) notice” of a decision “under section 511 . . .
affecting the provision of benefits to a claimant.” Id. § 5104(a). Such notice “shall include an
explanation of the procedure for obtaining review of the decision.” Id. A veteran initiates an
appeal of the Secretary’s decision by timely filing a “Notice of Disagreement” with the Board
“on any issue or issues for which the VA provided notice of a decision under 38 U.S.C. § 5104.”
38 C.F.R. § 20.4(a)(1).
A comprehensive review of the history of the VJRA and the administrative appeals
process it created can be found in the Ninth Circuit’s thorough en banc opinion in Veterans for
Common Sense v. Shinseki, 678 F.3d 1013, 1020–23 (9th Cir. 2012) (en banc).

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VIII. ELEVENTH CIRCUIT PRECEDENT

A. One Published Precedent

Our Court has analyzed § 511(a)’s limitation on judicial review of benefits

decisions in only one published opinion, Hall v. United States Department of

Veterans’ Affairs, 85 F.3d 532 (11th Cir. 1996).

That case involved plaintiff William Hall, who was a recipient of veterans’

disability benefits and a Florida state prisoner. Hall, 85 F.3d at 532. The VA

reduced his disability compensation pursuant to a regulation requiring that

compensation be diminished during periods of incarceration for felony convictions

in excess of 60 days. Id. at 532–33. The VA also sought the return of around

$15,000 due to overpayments to Hall during his incarceration. Id. at 533. Hall’s

lawsuit claimed that the regulation reducing benefits during incarceration was

unconstitutional and requested payment of his full disability benefits. Id.

This Court affirmed the dismissal of Hall’s lawsuit for lack of subject matter

jurisdiction. Id. at 533, 535. We stated that, “under the statutory scheme”

established by the VJRA, “a veterans’ entitlement to benefits” can be reviewed

only by appeal “to the Board [of Veterans Appeals], then to the Court of Veterans

Appeals, the Federal Circuit Court of Appeals, and the Supreme Court.” Id. at 534

(emphasis added). Because the constitutionality of the regulation at issue was a

question of law “necessary to a decision by the Secretary under a law affecting

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veterans’ benefits,” the district court lacked jurisdiction to decide that question. Id.

at 535.

Hall’s lawsuit did not challenge any medical care received through the VA.

Although he claimed that the reduction in his disability benefits “constituted a tort

in violation of numerous provisions of the constitution,” he alleged no medical

negligence by any VA professionals. Id. at 533. Rather, Hall alleged a

quintessential benefits claim: he was entitled to the full amount of his disability

benefits notwithstanding his incarceration. See id. at 532–33.

Further, because the VA had reduced Hall’s benefits in an adverse benefits

decision, Hall could appeal that benefits decision though the VA’s administrative

appeals process. Id. at 534–35. Hall presents a clear example of a case over which

a federal court lacks jurisdiction under the VJRA: a challenge to the

constitutionality of a statute providing for the provision of benefits. See H.R. rep.

No. 100-963, at 27. Unlike here, there was no medical negligence claim in Hall.

B. Unpublished Decisions

In two appeals in the same case, this Court later considered a pro se

veteran’s FTCA lawsuit involving an MRI. See Milbauer v. United States, 587

F. App’x 587, 588 (11th Cir. 2014) (Milbauer I); Milbauer v. United States, 636

F. App’x 556, 557 (11th Cir. 2016) (Milbauer II). The VA staff recommended an

MRI. But due to his claustrophobia, Milbauer wanted an “open” MRI, which

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required that the MRI be performed at a non-VA facility. Milbauer I, 587

F. App’x at 588. Milbauer’s complaint “alleged he was entitled to have an open

MRI performed at a non-VA facility at the VA’s expense, and he described the

numerous problems he had faced in attempting to obtain authorization for the

outside MRI.” Id. (emphasis added). He further alleged that the VA staff should

have authorized alternative imaging studies to assess his injury. Id. at 589.

In the first appeal, this Court concluded that “[t]he district judge could not

adjudicate Milbauer’s [MRI] claim ‘without determining first whether [Milbauer]

was entitled to a certain level of benefits,’ namely, whether he was entitled to an

outside MRI, paid for by the VA.” Id. at 591–92 (emphasis added) (quoting

Thomas v. Principi, 394 F.3d 970, 974 (D.C. Cir. 2005)). While this Court

acknowledged that the VA had not actually denied the request for an MRI

altogether, it observed in dicta that “there is no meaningful legal difference

between a delay of benefits [for approval of the outside MRI] and an outright

denial of benefits for purposes of the VJRA.” Id. (quoting Mehrkens v. Blank, 556

F.3d 865, 870 (8th Cir. 2009)) (quotation marks omitted). Specifically, the delay

between when the VA medical staff recommended the procedure and when

Milbauer “finally obtained . . . authorization and received an open MRI at a non-

VA facility” was ten months. Id. at 588. Milbauer alleged that the medical staff

had deviated from the appropriate standards of medical care by failing “to have the

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appropriate paperwork prepared to authorize the outside MRI for a period of ten

months.” Id. at 589 (emphasis added) (quotation marks omitted).

As for Milbauer’s alternative-diagnostic-procedures claim, our Court

similarly concluded, in the second appeal, that Milbauer had fundamentally

contended that “the VA was obligated to provide him with a particular benefit—an

alternative imaging procedure to diagnose his shoulder injury—and failure of the

VA to provide that benefit caused a delay in his diagnosis.” Milbauer II, 636

F. App’x at 561.

Beyond the non-binding nature of these decisions, 9 we note two points.

First, the Milbauer case is materially different. This Court said: “Milbauer’s

grievance was with the VA’s benefits procedure [for approving outside imaging],

not the medical treatment he received.” Milbauer I, 587 F. App’x at 589. In

contrast, in Mr. Smith’s case, the VA approved and never disputed his eligibility

for and entitlement to the benefits, both inside and outside the VA. Rather,

Mr. Smith alleges that the VA’s medical personnel negligently performed the

medical care that was approved and committed medical negligence.

Second, we recognize that the government cites our dicta in Milbauer I that

“there is no meaningful legal difference between a delay in benefits and an outright

9
Unpublished opinions are non-precedential. See Bonilla v. Baker Concrete Const., Inc.,
487 F.3d 1340, 1345 n.7 (11th Cir. 2007) (“Unpublished opinions are not controlling authority
and are persuasive only insofar as their legal analysis warrants.”).

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denial of benefits.” See Gov’t Br. at 9. But as shown above, the delay in benefits

in Milbauer I was getting an outside MRI approved—not a delay in conducting that

MRI after it was authorized and approved. See Milbauer I, 587 F. App’x at 588.

Our Court actually took that statement from an Eighth Circuit case, Mehrkens v.

Blank, involving an adverse denial of benefits that provides context for this

statement.

Specifically, in Mehrkens, a Vietnam War veteran brought a Bivens 10 action

against doctors and employees of the VA. Mehrkens, 556 F.3d at 866. He claimed

that “VA officials violated his due-process rights by withholding information from

him about his diagnosis of PTSD and preventing him from obtaining proper

treatment for that condition.” Id. at 867

Mehrkens alleged that VA officials “lie[d]to him and others about his Post-

Traumatic Stress Disorder (PTSD)” and “withheld treatment from him.” Id. at

866. Mehrkens filed a benefits claim for military service–connected PTSD, which

the VA denied. Id. at 867. The VA determined that “the diagnosis of PTSD was

not supported by the details of any service-connected stressor” and that the medical

evidence did not show symptoms of PTSD. Id. (quotation marks omitted). After

multiple failed attempts to reopen his case, Mehrkens filed a Notice of

10
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91
S. Ct. 1999 (1971).

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Disagreement, and the VA reversed its prior decisions, granting him “benefits” for

PTSD, retroactive to 1992. Id.

In rejecting Mehrkens’s Bivens claim, the Eighth Circuit noted that “[i]n this

case” there was no meaningful difference between a delay and a denial of benefits.

Id. at 870. But that was because “[i]n [that] case,” the delay in Mehrkens’s PTSD

benefits was the result of an adverse decision by the VA. The delay was between

the initial adverse benefits decision in 1992 and the later approval of PTSD

benefits in 2004. See Mehrkens, 556 F.3d at 870 (noting that, had Mehrkens “been

granted benefits in 1992 instead of 2004, he would not have brought the current

action”). As a result, any court tasked with adjudicating whether the VA personnel

violated Mehrkens’s rights would necessarily have to address whether the VA

acted properly in denying his PTSD benefits claim in the first instance. In contrast,

in Mr. Smith’s case, the VA approved and authorized his benefits, and there was

never an adverse benefits decision for a federal court to reexamine.

Because no authority from our Court resolves the issues before us, we

further review our sister circuits’ decisions cited by the parties.

IX. OTHER CIRCUITS’ DECISIONS

A. D.C. Circuit

In three cases, the D.C. Circuit has interpreted what constitutes a decision by

the Secretary on “questions of law and fact necessary to a decision . . . under a law

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that affects the provision of benefits to veterans.” 38 U.S.C. § 511(a). See Broudy

v. Mather, 460 F.3d 106 (D.C. Cir. 2006); Thomas v. Principi, 394 F.3d 970 (D.C.

Cir. 2005); Price v. United States, 228 F.3d 420 (D.C. Cir. 2000).

In Price, the plaintiff’s pro se complaint alleged the VA had “wrongfully

failed to reimburse him for certain medical expenses he incurred in October 1994

while hospitalized for an emergency colon cancer operation at a non-VA medical

facility.” 11 228 F.3d at 421 (emphasis added). Price sought $5 million in damages

for his medical expenses and emotional distress. Id. The VA determined that

Price had failed to satisfy the “eligibility criteria” for reimbursement. Id. Price

alleged that “the VA’s failure to pay his medical bills was wrongful because the

agency was under a legal obligation to make payment on account of Price’s veteran

status.” Id. The D.C. Circuit concluded that the district court lacked jurisdiction

because “underlying the claim is an allegation that the VA unjustifiably denied him

a veteran’s benefit.” Id.

The D.C. Circuit also noted that, assuming Price’s tort claim under the

FTCA for “negligent failure to pay medical bills” was even cognizable under

Florida law, “a necessary predicate of such a claim is a determination that the

insurer [the VA for veteran Price] acted in bad faith,” which would have required

11
Price also sued the Northeast Florida Credit Bureau, alleging it caused him harm when
it persistently sought to collect on Price’s unpaid medical bills. Price, 228 F.3d at 421.

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that the district court “determine first whether the VA acted properly in handling

Price’s request for reimbursement.” Id. at 422. That determination would require

the district court to rule first on whether the VA had applied its own “eligibility

criteria” correctly, and judicial review was therefore “foreclosed by 38 U.S.C.

§ 511(a).” Id. at 421–22. To summarize, the Price case involved a classic

veteran’s benefits claim about eligibility for reimbursement of expenses incurred at

a non-VA facility, a dispute over which the district court clearly lacked subject

matter jurisdiction under the VJRA.

Five years later, the D.C. Circuit interpreted the VJRA again, this time in a

veteran’s lawsuit to collect “mental and physical disability benefits.” Thomas, 394

F.3d at 972. The VA had denied Thomas disability benefits on the ground that no

final diagnosis that would entitle him to benefits had been made. Id. After years

of Thomas’s appeals and benefits claims, the VA in 1999 revealed that a VA

doctor in 1991 had diagnosed Thomas as having symptoms consistent with

schizophrenia. Id. Thomas filed a lawsuit, which the district court dismissed for

lack of jurisdiction. Id. at 972–73.

Reversing in part, the D.C. Circuit concluded that Thomas alleged at least

some VA actions in Counts III, V, and X that the district court could adjudicate.

Id. at 974, 976. Count III alleged intentional infliction of emotional distress caused

by the intentional coverup of the schizophrenia diagnosis. Id. Count V alleged

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gross negligence and medical negligence in failing to inform Thomas about his

schizophrenia diagnosis. Id. Count X alleged medical malpractice by not ensuring

Thomas knew, and taking time to communicate, that he had been diagnosed with

schizophrenia and had choices of whether to receive medical treatment. Id. The

D.C. Circuit reasoned that any “questions of law and fact” raised by the claims

“relate to whether the alleged withholding of the diagnosis states a tort claim, and

resolution of those questions is not ‘necessary’ to the benefits determination.” Id.

(quoting 38 U.S.C. § 511). And “no denial of benefits underl[ies] Thomas’s

failure-to-inform allegations.” Id. at 974–75 (alteration in original) (quotation

marks omitted).

The D.C. Circuit, however, concluded that other aspects of Thomas’s

claims—based on the VA’s “continuous and persistent” failure to render needed

medical care—would require the district court to first determine whether the VA

acted properly in denying Thomas benefits. Id. at 975. Indeed, the VA had not

disclosed the schizophrenia, had provided no medical treatment, and had denied

Thomas all disability benefits. See id. at 972. Thus, the Secretary’s denial of all

benefits did underlie those claims.

A year later in Broudy v. Mather, the D.C. Circuit again rejected a district

court’s decision that it lacked jurisdiction over the plaintiff veterans’ lawsuit under

the VJRA. 460 F.3d at 108. The veterans were exposed to atomic radiation but

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were denied disability benefits because they had not shown their illnesses resulted

from radiation exposure during their military service. Id. at 108, 110. In a putative

class action, the veterans filed constitutional Bivens claims against VA officials

and others for withholding radiation test results that revealed their exposure to

dangerous levels of atomic radiation. Id. at 109–10. Seeking money damages, the

veterans alleged that the withholding of the test results had prevented them from

successfully pursuing claims for disability benefits. Id. at 110.

In Broudy, the D.C. Circuit concluded that the district court had jurisdiction

over the veterans’ Bivens suit. Id. at 115. After reviewing Price and Thomas, the

D.C. Circuit reasoned that, “while the Secretary is the sole arbiter of benefits

claims and issues of law and fact that arise during his disposition of those claims,”

district courts maintain jurisdiction to consider questions arising under laws that

affect the provision of benefits “as long as the Secretary has not actually decided

them in the course of a benefits proceeding.” Id. at 114 (emphasis added). The

D.C. Circuit then analyzed “whether the Secretary had made an ‘actual decision’

on any issues that the parties [were] asking the District Court to decide here.” Id.

The government pointed to two such issues: (1) whether the withheld test

results impaired or foreclosed the veterans’ benefits claims; and (2) whether the

radiation exposure amount relied upon by the VA, in denying the veterans’ claims,

failed to consider relevant information in the government’s possession that the VA

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Secretary did not have. Id. The D.C. Circuit concluded the Secretary had not

decided those questions, nor were the resolution of those questions necessary to the

Secretary’s actual decision to deny the veterans disability benefits. Id. Therefore,

there was no jurisdictional bar in the VJRA to the district court’s consideration of

those issues. Id. at 114–15. In responding to the government’s attempt to “claim

the benefit” of Price and Thomas, the D.C. Circuit observed:

In Price and Thomas, if the District Court had exercised jurisdiction, it
would have needed to ‘review’ the Secretary’s ‘actual decisions’ that
veterans were not entitled to the benefits they sought. Here, by contrast,
no such ‘review’ is required. Unlike the plaintiffs in Price and Thomas,
the plaintiffs in this case are not asking the District Court to decide
whether any of the veterans whose claims the Secretary rejected are
entitled to benefits. Nor are they asking the District Court to revisit any
decision made by the Secretary in the course of making benefits
determinations.

Id. at 115 (emphasis added).

At bottom, the D.C. cases differentiated between: (1) decisions by the VA

denying entitlement to disability benefits (Thomas) or medical-expense

reimbursement benefits (Price), which would require the district court to revisit a

benefits decision; (2) claims of medical negligence or malpractice (Thomas),

which are not decided in the course of benefits determinations; and (3) claims

challenging other VA conduct, which asked a court to decide questions that the

Secretary had not decided and were not necessary to a specific adverse benefits

decision (Broudy).

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B. Ninth Circuit

In two more recent cases, the Ninth Circuit interpreted the VJRA’s § 511(a).

See Tunac v. United States, 897 F.3d 1197 (9th Cir. 2018); Veterans for Common

Sense v. Shinseki, 678 F.3d 1013 (9th Cir. 2012) (en banc). In both, the Ninth

Circuit more clearly distinguished claims for medical negligence against the VA’s

medical professionals who provide the health care (medical diagnosis and

treatment) from claims of negligence by the VA’s administrative employees who

process benefits claims and schedule appointments.

In Shinseki, two non-profit organizations, on behalf of themselves, their

members, and a veteran class with PTSD, filed suit to challenge the VA’s internal

administrative procedures. 678 F.3d at 1017. They claimed the VA’s procedures

caused systemic delays in the processing of mental health care from the VHA and

the adjudication of claims for disability compensation benefits by the Veterans

Benefits Administration (“VBA”). Id. at 1016–17.

The plaintiffs alleged that the VA’s handling of mental health care and

disability claims deprived them of property (benefits) in violation of the

Constitution’s Due Process Clause and the VA’s statutory duty to provide timely

medical care and disability benefits. Id. at 1017. Specifically, the plaintiffs

challenged: (1) the lack of any VHA procedures to expedite the processing of

PTSD claims and, in turn, to expedite access to mental health care, including the

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lack of any procedures by which veterans might appeal the VA’s administrative

scheduling decisions; (2) the VBA’s delays in adjudication and resolution of

disability-compensation claims, which adjudication begins at one of the VA’s 57

regional offices and proceeds through the administrative appeals process

established by the VJRA; and (3) the constitutionality of various other VBA

practices and procedures, including the absence of trial-like adversarial procedures.

Id. at 1017–18, 1028.

As injunctive relief, the plaintiffs sought the implementation of new

procedures for handling mental health care requests, the creation of an accelerated

appeals process for such claims, and a conversion of the claims-adjudication

process into an adversarial proceeding. Id. at 1016, 1017.

After surveying and synthesizing other Circuits’ decisions, the Ninth Circuit

en banc announced this broad rule: Ҥ 511 precludes jurisdiction over a claim if it

requires the district court to review VA decisions that relate to benefits decisions,

including any decision made by the Secretary in the course of making benefits

determinations.” Id. at 1025 (quotation marks and citations omitted).

The Ninth Circuit then concluded that it lacked jurisdiction over the

plaintiffs’ systemic challenges to the VA’s internal procedures for processing

claims and scheduling treatments. Id. at 1026–29. Yet it also acknowledged that,

notwithstanding the VJRA, the FTCA “specifically confers jurisdiction on federal

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district courts to hear . . . claims” that “alleg[e] negligence against VA doctors,”

and that the VA even has “separate procedures for dealing with FTCA claims.” Id.

at 1023 & n.13. Thus, the Ninth Circuit “could consider a veteran’s [FTCA] claim

alleging negligence against VA doctors because doing so would not ‘possibly have

any effect on the benefits he has already been awarded.’” Id. at 1023 (quoting

Littlejohn v. United States, 321 F.3d 915, 921 (9th Cir. 2003)).

Subsequently, in Tunac v. United States, the Ninth Circuit further explained

the difference between claims of medical negligence against “healthcare

employees,” defined as “medical professionals and related support staff,” and

claims of negligence “in the VA’s operations,” such as negligence in scheduling

appointments and treatments. 897 F.3d at 1200. Veteran Tunac was diagnosed

with kidney inflammation during his Navy deployment. Id. After military

retirement, Tunac received treatment through the VA, but also saw a private

physician for other issues. Id. In 2009, Tunac’s blood tests showed signs of

kidney failure, and his private physician ordered he immediately make an

appointment with the VA. Id. Tunac was not seen at the VA until December 2,

2009, when a biopsy confirmed end-stage kidney disease, necessitating dialysis.

Id. The VA, however, could not schedule dialysis immediately and not until

December 30, 2009. Id. Tunac died on December 27, 2009. Id.

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Veteran Tunac’s widow brought an FTCA suit for wrongful death (Count I)

and negligent/medical malpractice (Count II). Id. Count I alleged that the VA and

its employees caused Tunac’s death by failing to provide him with “adequate

follow-up care and treatment to monitor [his] condition and identify any

potential relapses or adverse changes to his health”; “[f]ailing to schedule [Tunac]

for immediate (or even timely) treatment after the deterioration of his condition, as

evidenced by his blood work in 2009”; and “[f]ailing to schedule [Tunac] for

immediate dialysis after the results of his kidney biopsy in December 2009.” Id. at

1200–01 (second and third alterations in original) (quotation marks omitted).

Count II alleged that the employees and the VA breached their duty to Tunac “to

provide him with timely, quality healthcare.” Id. at 1201 (quotation marks

omitted).

The “question” before the Ninth Circuit was whether it had “jurisdiction

over a claim alleging that a medical center operated by the [VA] caused . . .

Tunac’s death by delaying urgently needed medical treatment.” Id. at 1200. The

Ninth Circuit concluded that (1) it lacked jurisdiction over “[t]he complaint’s

claims regarding negligence in VA operations,” but (2) it retained jurisdiction

under the FTCA “to the extent the complaint alleges negligence by VA healthcare

employees (defined as medical professionals and related support staff listed in 38

U.S.C. § 7316(a)(2)).” Id. (emphasis added).

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After reviewing Shinseki, the Ninth Circuit noted that, “[n]otwithstanding

the expansive scope of § 511’s preclusion of judicial review, [Shinseki]

acknowledged that we continue to have jurisdiction to hear some claims brought

by individual veterans under the FTCA.” Id. at 1203. Relying on Shinseki, the

Ninth Circuit announced a standard for discerning whether a claim is one for

medical negligence under the FTCA, instead of a claim that the VA acted

improperly in handling a veteran’s request for benefits: “[W]hen a plaintiff brings

an action against a VA health care employee (meaning the professionals and

related support staff listed in 38 U.S.C. § 7316(a)(2)) alleging injury from a

negligent medical decision, the action may proceed under the FTCA and is not

barred by the VJRA.” Id. at 1204–05.

Applying that standard, the Ninth Circuit concluded it had jurisdiction over

“certain claims that give rise to a ‘reasonable inference’ that VA medical

professionals breached their duty of care.” Id. at 1205. It then listed these

allegations in the complaint: (1) “[t]he VA failed to properly order tests and/or

evaluate [Tunac’s] recurring lupus condition”; and (2) “the VA and its employees

caused [Tunac’s] death through their wrongful acts and neglect” by “[f]ailing to

provide [Tunac] with adequate follow-up care and treatment to monitor [his]

condition and identify any potential relapses or adverse changes to his health.” Id.

(first and fourth alterations in original) (quotation marks omitted). The Ninth

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Circuit determined that, “[t]o the extent these allegations relate to claims of

medical negligence on the part of medical professionals, they do not relate to

benefits decisions.” Id. (emphasis added).

On the other hand, the Ninth Circuit also held that it lacked jurisdiction to

consider Mrs. Tunac’s claims that her husband’s “death was caused by the VA’s

failure ‘to schedule [Tunac] for immediate (or even timely) treatment after the

deterioration of his condition,’” the VA’s “failure ‘to schedule [Tunac] for

immediate dialysis after the results of his kidney biopsy in December 2009,’” or

“similar allegations relating to the negligence in scheduling appointments and

treatment.” Id. (emphasis added). These claims, the Ninth Circuit reasoned,

sought “relief for the type of administrative negligence in scheduling appointments

that must be channeled through the VJRA.” 12 Id. at 1205–06. The Ninth Circuit

explained that these allegations were better understood as complaints about

“whether the VA handled [Tunac’s] requests properly.” Id. at 1203 (quoting

Shinseki, 678 F.3d at 1028).

12
Although the Ninth Circuit concluded it retained jurisdiction over certain of Mrs.
Tunac’s claims, it nonetheless affirmed the district court’s dismissal of her complaint, as it
determined that her claims related to medical negligence were untimely. Tunac, 897 F.3d at
1206–07.

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C. Sixth Circuit

The Sixth Circuit has also emphasized that the VA’s medical team and

clinics have a legal duty to abide by ordinary standards of medical care,

irrespective of a veteran’s status. See Anestis v. United States, 749 F.3d 520, 526

(6th Cir. 2014). In Anestis, the Sixth Circuit reversed the district court’s dismissal

for lack of jurisdiction of an FTCA suit brought by a veteran’s widow. Id. at 522,

524.

Veteran Anestis committed suicide after he was turned away from two VA

clinics. Id. at 522. At the first VA clinic, the intake clerk recognized that Anestis

was in urgent need of treatment, but no mental health professional was available

that day. Id. at 523. So she sent him to another clinic. Id. That second VA clinic

turned Anestis away because: (1) he did not have his DD-214 (a document

reflecting a veteran’s deployment dates and other information) showing his

eligibility; and (2) his enrollment status in the VA’s electronic record was

“Rejected: Below Enrollment Group Threshold.” Id. at 521–23. Both parties

agreed Anestis was ineligible for VA benefits that day. Id. at 527.

In her FTCA lawsuit, Anestis’s widow alleged claims of medical

malpractice for failure to provide mental health treatment when her husband

needed emergency care. Id. at 524. The district court dismissed her claims,

concluding they necessarily challenged a VA benefits determination. Id.

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The Sixth Circuit acknowledged that the VJRA creates “a broad preclusion

of judicial review” of the Secretary’s decisions “regarding benefits.” Id. at 525

(quotation marks omitted). But the court rejected the government’s argument that

the VA clinics’ decisions not to provide Anestis medical care were benefits

determinations under the VJRA. Id. The Sixth Circuit focused particularly on the

fact that the plaintiff widow was “not challenging the VA’s decisions and actions

regarding [Anestis’s] application for benefits or his eligibility or enrollment

status.” Id. at 526. The plaintiff did not argue that Anestis “should have been

eligible for benefits.” Id. at 527. Instead, the widow argued that “the VA violated

standards of medical care and its own policies by refusing treatment when

[Anestis] presented himself at two VA facilities in a state of emergency.” Id. In

this way, “the VA violated its duty as a hospital, irrespective of [Anestis’s] status

as a veteran.” Id. at 526. Thus, the plaintiff’s claim “exist[ed] wholly

independently of a need for any benefits determination.” Id. at 527.

The Sixth Circuit hastened to add, however, that “simply characterizing a

claim as a ‘failure to treat’ claim does not preclude a benefits determination from

also being at issue.” Id. at 527. The “distinction,” the Sixth Circuit explained,

“lies in whether the failure or denial of treatment resulted from a decision by the

VA or was the result of the VA’s negligence in failing to abide by a legal duty.”

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Id. The plaintiff’s claim involved the latter, and the district court thus maintained

jurisdiction to adjudicate the FTCA claim. Id. at 528.

Importantly, too, the Sixth Circuit rejected the government’s argument that

the plaintiff’s claim necessarily involved a benefits determination because her

claim challenged “numerous aspects of VA medical-benefits decision-making,”

since she claimed the VA “failed to adhere to their internal policies when [Anestis]

sought treatment.” Id. at 527–28 (quotation marks omitted). The Sixth Circuit

reasoned that the government’s interpretation of “benefits determination” was so

broad as to effectively bar suit against the VA “under any circumstances for failure

to provide medical treatment,” which would have been at odds with the VJRA,

which, after all, “only specifies that the Secretary must decide all questions

affecting ‘provision[] of benefits.’” Id. at 528 (quoting 38 U.S.C. § 511).13

With the distinctions drawn in these circuit decisions in mind, we now apply

the VJRA to Mr. Smith’s case.

13
The Sixth Circuit also addressed how the case before it fit into the then-extant precedent
from the D.C. and Ninth Circuits. Anestis, 749 F.3d at 525–27. The Sixth Circuit favorably
compared the claims before it to the claims that the D.C. Circuit allowed to go ahead in Thomas,
noting that, “[l]ike the claims in Thomas, [the plaintiff’s] claim is based on standards of care that
govern medical professionals.” Id. at 527.
As for the Ninth Circuit’s precedent, the Sixth Circuit acknowledged Shinseki, but noted
that the Ninth Circuit’s holding in that case was that the veterans’ claim—challenging delays in
the VA’s adjudication of veterans’ mental health care—“clearly” would have required the district
court “to review [a] benefits determination in order to reach a decision.” Id. at 526–27. No such
review was needed in Anestis. Id. at 527.

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X. DISCUSSION

A. Issue on Appeal

On appeal, Mr. Smith argues that the district court erred in dismissing his

case because: (1) his complaint adequately stated claims of medical negligence or

malpractice by VA personnel, properly brought under the FTCA; (2) his claims

raise questions of law and fact relating to breach of the legal duty to exercise the

medical standard of care applicable to all doctors, nurses, and health care

employees, irrespective of his veteran status; (3) no denial of benefits or any

adverse benefits decision underlies his medical negligence or malpractice claims;

and (4) therefore, § 511(a) does not apply and the district court had jurisdiction to

adjudicate his claims under the FTCA.

The government responds that Mr. Smith’s claims concern only “delays in

the approval and provision of veterans’ benefits,” and, therefore, the district court

lacked jurisdiction over them. The government acknowledges that certain aspects

of his claims may sound like medical malpractice but contends his allegations still

relate to the VA’s delay “in approving and scheduling him for medical care.” The

government also argues that even a complete failure to treat, or an inordinate delay

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in treatment, by the VA would not form the basis of an FTCA negligence claim

over which a federal court might exercise jurisdiction.14

The sole issue on appeal is a jurisdictional question: Whether Mr. Smith’s

claims present, and require a federal court to review, “questions of law and fact

necessary to a decision by the Secretary under a law that affects the provision of

benefits”? See 38 U.S.C. § 511(a). If they do, the court lacks jurisdiction. If they

do not, the court has jurisdiction. We start with the text of § 511(a).

B. Text of § 511(a)

Section 511(a)’s limitation on judicial review includes two key phrases. The

first key phrase is “a decision by the Secretary under a law that affects the

provision of benefits . . . to veterans.” Id. Numerous federal statutes and hundreds

of federal regulations govern a veteran’s eligibility for benefits, entitlement to

benefits, and the scope of those benefits, and thereby “affect[] the provision of

benefits . . . to veterans.” Therefore, any and all determinations by the Secretary as

to eligibility, entitlement, or the scope of benefits (including health care benefits) is

“a decision by the Secretary under a law that affects the provision of benefits.”

14
At oral argument, the government’s counsel was asked whether she agreed that “at
some point, if the VA, which has sole responsibility for scheduling . . . appointments,” takes an
inordinate amount of time—say five years—to get a veteran needed treatment, the VA “commits
malpractice.” In response, the government’s counsel conceded that such a delay could constitute
malpractice, but insisted it was “still malpractice that must be channeled through the VJRA.”
Under this view, any issue a veteran had in not receiving necessary medical care could be
addressed only through the administrative appeals process established by the VJRA—a process
designed to address a veteran’s entitlement to benefits, not tort claims.

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The second key phrase is “questions of law and fact” by the Secretary

“necessary to” that benefits decision. 38 U.S.C. § 511(a). It is obvious that any

type of substantive benefits decision itself is unquestionably shielded from judicial

review by § 511(a). But in addition to precluding judicial review of any

substantive benefits determination by the Secretary, the VJRA also precludes

judicial review of “any decision made by the Secretary in the course of making [a]

benefits determination[].” See Tunac, 897 F.3d at 1202; see also Broudy, 460 F.3d

at 115 (identifying the relevant inquiry under the VJRA as whether the plaintiffs

were asking the district court either “to decide whether any of the veterans whose

claims the Secretary rejected are entitled to benefits” or “to revisit any decision

made by the Secretary in the course of making benefits determinations”). The

VJRA thus serves to prevent judicial second-guessing of decisions made by the

Secretary in the course of making a benefits determination.

While the text is plain, its application to Mr. Smith’s claims is more

difficult. Are Mr. Smith’s claims, in whole or in part, tort claims viable under the

FTCA, or has Mr. Smith dressed up benefits claims as tort claims in order to seek

impermissible judicial review of a decision of the Secretary? See Anestis, 749

F.3d at 528 (addressing whether a veteran’s claim was one “involving benefits

masked in tort language”). Below, we divide Mr. Smith’s FTCA claims into two

types and explain why the district court can adjudicate some, but not all, of them.

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C. Negligence Claims as to Approval, Authorization, and Scheduling

The first type includes Mr. Smith’s claims that VA personnel were negligent

in: (1) “[f]ailing to timely schedule medical appointments, diagnostic testing, and

treatment”; (2) “[f]ailing to timely approve and/or authorize medical treatment that

was ordered by [Mr.] Smith’s treating medical providers”; (3) “[f]ailing to timely

approve and/or authorize payment of” those same medical treatments; and

(4) “[f]ailing to follow its own policies, procedures, and protocols for timely

scheduling and approving medical appointments and authorizing payment of non-

VA services.” See Compl. ¶ 38 (emphasis added).

The approval and authorization of a particular treatment or the payment

thereof are quintessential benefits determinations. So too is whether any such

approval or authorization occurred in a timely manner. In order to adjudicate these

claims, the district court would first need to determine whether and to what extent

Mr. Smith was eligible for and entitled to certain tests or treatments.

Accordingly, to the extent that Mr. Smith alleges that any delay in his receipt

of needed medical care was a result of the VA’s failure “to timely approve and/or

authorize” his care or payments therefor, the district court could not review those

allegations without second-guessing a decision by the VA “necessary to” a benefits

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determination—when to grant the requested benefit. 15 See Mehrkens, 556 F.3d at

870; Thomas, 394 F.3d at 974 (“[W]e must determine whether adjudicating

[plaintiff’s] claims would require the district court to determine first whether the

VA acted properly in handling [his] benefits request.” (quotation marks omitted)).

The same is true for purely ministerial acts of the VA’s non-medical

operations personnel in scheduling approved doctor visits and scans. While the

scheduling process took place after the substantive approval and authorization of

Mr. Smith’s doctor visits and scans, those decisions still are fairly characterized as

decisions made “in the course of making [a] benefits determination[].” See Tunac,

897 F.3d at 1202, 1204–06. Mr. Smith’s claims alleging negligence in the

scheduling of his various visits and scans ultimately seek “relief for the type of

administrative negligence in scheduling appointments that must be channeled

through the VJRA.” Tunac, 897 F.3d at 1205–06.

As for Mr. Smith’s allegations related to the VA’s failure to follow its own

policies, procedures, and protocols, if the district court lacks jurisdiction to review

the VA’s approval, authorization, and scheduling decisions, it must also lack

15
We also note, as a factual matter, that it does not appear from the record before us that
the delay in Mr. Smith’s tests and/or treatments was really a result of some delay in the
authorization or approval of benefits. It appears that, in most instances, he was quickly deemed
eligible for and entitled to the requested care.

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jurisdiction to determine whether the VA followed its own internal procedures in

making those decisions.

D. Medical Negligence or Malpractice Claims

The second type includes Mr. Smith’s claims that the VA’s medical

personnel negligently failed to diagnose his cancer, recognize the severity of his

medical condition, properly treat his cancer by immediate surgery, and to generally

manage, coordinate, and monitor his medical care.

Specifically, Mr. Smith alleged that “various personnel at the VA[] were

negligent in regards to [his] care and treatment” by: (1) “[f]ailing to timely act in

the face of [Mr.] Smith’s concerning symptoms and test results, resulting in

inexcusable delay in the diagnosis, at a time when his cancer was treatable and

curable”; and (2) “failing to meet the appropriate and applicable medical standards

of care.” Compl. ¶ 38. These allegations are strikingly similar to those over which

the Ninth Circuit exercised jurisdiction in Tunac. See Tunac, 897 F.3d at 1205

(holding that allegations the VA failed to “properly order tests and/or evaluate

[Tunac’s] recurring lupus condition,” and that the VA and its employees “caused

[Tunac’s] death through their wrongful acts and neglect” by failing to provide

Tunac “with adequate follow-up care and treatment to monitor [his] condition”

were not related to a benefits determination to the extent they “relate[d] to claims

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of medical negligence on the part of medical professionals” (emphasis added)

(quotation marks omitted)).

In other words, Mr. Smith’s claims, in effect, are that the VA’s medical

professionals and their supporting personnel owed him a legal duty of standard

medical care and breached that duty by (1) failing to recognize and diagnose the

dire nature of his cancer condition, and then (2) failing to manage, coordinate, and

monitor his care to ensure that he timely received the necessary and urgently

needed medical treatment that he was eligible for and that had already been

authorized. 16 Thus, Mr. Smith’s allegations of medical negligence (in both

diagnosis and treatment) do not require the district court to decide whether

Mr. Smith was “‘entitled to benefits,’” nor do they “require the court to ‘revisit any

decision made by the Secretary in the course of making benefits determinations.’”

See Shinseki, 678 F.3d at 1025 (quoting Broudy, 460 F.3d at 115). The delay in

diagnosis and treatment was not due to an adverse benefits decision. And there is

16
Notably, too, this sort of professional negligence claim has been recognized under
Georgia law. See Howard v. City of Columbus, 219 Ga. App. 569, 573, 466 S.E.2d 51, 56 (Ga.
Ct. App. 1995). In Howard, the Georgia Court of Appeals held that Georgia’s pleading
requirements for medical malpractice were satisfied where an expert testified that medical staff
at a jail failed to (1) provide the plaintiff with “timely investigation and proper health care
attention necessary for the treatment of his . . . condition,” (2) “recognize and treat [the
plaintiff’s] . . . condition,” (3) “exercise those procedures and protocols critical to the providing
of necessary and proper health care treatment to [plaintiff],” and (4) “recognize and properly
provide medical treatment for” the plaintiff’s condition. Id. (quotation marks omitted). The
expert opined that it was “below the requisite standard of care for medical professionals such as
defendants not to recognize, diagnose or treat a person displaying” the symptoms that the
plaintiff presented with. Id. at 574, 466 S.E.2d at 56.

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no adverse benefits decision, or a question necessary to that decision, for a federal

court to reexamine. See Tunac, 897 F.3d at 1202; Broudy, 460 F.3d at 115.

It is certainly true, as the government notes, that Mr. Smith acknowledged in

the complaint that his cause of action “primarily” raises claims of ordinary

negligence, and not professional negligence. Compl. ¶ 43. But this does not alter

the facts that: (1) the complaint also includes claims that the VA’s medical

personnel failed to meet the appropriate and applicable medical standard of care;

and (2) Mr. Smith attached an affidavit to the complaint from Dr. Ferris “setting

forth at least one negligent act or omission claimed to exist and the factual basis for

each such claim,” in compliance with Georgia’s pleading requirements for medical

malpractice claims. Compl. ¶ 43 (citing O.C.G.A. § 9-11-9.1).

Further, according to Dr. Ferris’s deposition testimony, given Mr. Smith’s

initial symptoms, the standards of medical care required that the VA’s medical

team: (1) promptly obtain CT scans within days; (2) given the obvious findings of

cancer from the CT scans, quickly diagnose cancer; and (3) perform surgery soon

thereafter. In Dr. Ferris’s opinion, had the cancer been more quickly diagnosed

and treated, it was more likely than not that the malignancy would have been

resectable when surgery was performed. And Nurse Rose, an expert on VA patient

care coordination, identified several deficiencies with the management and

coordination of Mr. Smith’s medical care and treatment by the care coordination

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team professionals, opining that “Mr. Smith’s care was mismanaged from the

beginning.”

At the end of the day, the question—or at least a question—fairly presented

by the complaint here is whether the failure to adequately and timely diagnose and

treat Mr. Smith’s cancer was attributable to negligence on the part of any VA

medical professionals and their supporting personnel. The district court maintains

jurisdiction under the FTCA to adjudicate questions of law and fact related to those

claims. See 28 U.S.C. § 1346(b)(1); 38 U.S.C. § 7316(a) (stating that the FTCA

provides the remedy for injury arising from the “malpractice or negligence of a

health care employee” of the VA, including physicians, nurses, and “other

supporting personnel”).

We hasten to add, however, that whether particular medical professionals or

their supporting personnel within the VA were provably negligent—that is, owed

Mr. Smith a duty of care that they then violated—is not a relevant inquiry at this

juncture, and we express no opinion on that question. “In the end, whether or not

[Mr. Smith] has a viable ‘medical malpractice claim’ is irrelevant to the

jurisdictional question. The district court dismissed this case on a [Rule] 12(b)(1)

motion to dismiss for lack of jurisdiction.” See Anestis, 749 F.3d at 528. Our

focus is not on the substantive merit of Mr. Smith’s allegations but, rather, the

nature of those allegations. Whether any particular VA medical professional or his

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or her supporting personnel owed a legal duty of care to Mr. Smith and whether

that duty was violated is an improper question to consider at this stage in the

litigation. 17

Our recognition of Mr. Smith’s claims is consistent with the way the VA’s

counsel apparently viewed those same claims during the administrative-exhaustion

phase of this case. In both its initial denial of Mr. Smith’s “Administrative Tort

Claim” and its denial of reconsideration, the VA informed Mr. Smith that if he was

dissatisfied with the decision, he could file suit against the United States as

defendant under the FTCA. In rejecting Mr. Smith’s claim, the VA clearly

conceptualized that claim as one alleging negligence on the part of VA medical

professionals with respect to the health care Mr. Smith received. For example, in

its initial denial of Mr. Smith’s claim, the VA’s counsel explained that “[m]edical

negligence means there was a breach in the standard of care and that breach

proximately caused an injury,” before concluding that no such negligence

17
It appears that in certain situations the VA uses care coordinators to manage,
coordinate, and monitor a veteran’s medical care, and that care coordinators may be medical
professionals (like nurses). For clarification, we distinguish between (1) purely ministerial acts
by VA operations personnel in scheduling appointments, and (2) the overall management,
coordination, and monitoring of Mr. Smith’s medical care by such care coordination
professionals, which allegedly includes ensuring that Mr. Smith timely received the urgent
consults, tests, and treatments for which he had been approved. On the record before us, we
cannot determine who (apart from Nurse Ekwueme) all of the members of Mr. Smith’s care
coordination team might have been. Nor can we define the scope of any legal duty VA care
coordination professionals owed to Mr. Smith. Instead, we conclude only that the district court
has jurisdiction to adjudicate whether any care coordination professionals or their supporting
personnel had a legal duty of care to Mr. Smith, the scope and extent of that duty, and whether it
was violated.

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occurred. And in its decision rejecting Mr. Smith’s request for reconsideration, the

VA’s counsel noted that it had “a primary care physician, an oncologist and an

otolaryngologist” review Mr. Smith’s case.

Regardless of whether the VA’s medical professionals and their supporting

personnel responsible for providing, coordinating, and managing Mr. Smith’s care

chose to treat Mr. Smith’s condition within or without the VA, they had a duty to

adhere to the standard of medical care for diagnosing, treating, and managing a

patient with Mr. Smith’s serious condition, and Mr. Smith’s complaint alleges that

they did not do so. See Tunac, 897 F.3d at 1205 (“[W]e have jurisdiction over

certain claims that give rise to a ‘reasonable inference’ that VA medical

professionals breached their duty of care.” (quoting Ashcroft v. Iqbal, 556 U.S.

662, 678, 129 S. Ct. 1937, 1949 (2009)). It defies both common sense and the

plain language of the VJRA to frame Mr. Smith’s case as one in which he seeks

solely to have an Article III court review a benefits determination by the

Secretary. 18

18
At oral argument, the government’s counsel mentioned that Mr. Smith had stipulated
during Dr. Puppala’s deposition that Mr. Smith was not alleging medical negligence on the part
of Dr. Puppala or her nurse, Patsy Pepper. The government did not raise this point in its brief,
and we need not address it here to resolve the jurisdictional issue with which we are presented.
See Anestis, 749 F.3d at 528. Whether an enforceable stipulation was made during discovery
and what effect such a stipulation might have on the merits of Mr. Smith’s FTCA claims for
medical negligence is for the district court to address if and when it is raised in an appropriate
motion.

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XI. CONCLUSION

For the reasons discussed above, we affirm in part and reverse in part the

district court’s dismissal of Mr. Smith’s complaint for lack of subject matter

jurisdiction

AFFIRMED in part, REVERSED in part, AND REMANDED.

58