United States Court of Appeals,
Fifth Circuit.
No. 93-1659.
Chester L. FRANTZ and Vera Frantz, Plaintiffs-Appellants,
v.
UNITED STATES of America, Defendant-Appellee.
Aug. 23, 1994.
Appeal from the United States District Court for the Northern
District of Texas.
Before WISDOM and JONES, Circuit Judges, and COBB,* District Judge.
COBB, District Judge:
Appellants, Chester and Vera Frantz, brought this medical
malpractice action against the United States under the Federal Tort
Claims Act.1 The Frantzes appeal the dismissal of their informed
consent claim for lack of subject matter jurisdiction, as well as
the district court's failure to allow them leave to designate an
expert witness after the presumptive deadline established by the
Northern District of Texas local rules. We reverse.
I.
The facts of this case are not in dispute. In January 1988,
Chester Frantz was admitted to the Veterans Administration Medical
Center [VA Medical Center] in Dallas, Texas, complaining of
difficulty in breathing through his nose. Dr. Craig J. Summers
operated on him in an attempt to correct a nasal airway septal
*
District Judge of the Eastern District of Texas, sitting by
designation.
1
See 28 U.S.C. §§ 1346, 2671-2680.
1
deviation. Following the surgery, Frantz experienced blurriness
and a temporary loss of vision in his left eye. Before his
discharge from the hospital, Frantz notified Dr. Sesi of his
blurred vision.
Frantz continued to experience breathing problems. He
returned to the VA Medical Center, where he was readmitted on
August 10, 1988. Dr. Thomas N. Morrish diagnosed Frantz as having
a nasal airway obstruction. The next day, Frantz again underwent
surgery. Dr. Summers, assisted by Drs. Morrish and Cameron D.
Godfrey, performed an open rhinoplasty with a cartilage graft.
Soon after the operation, Frantz experienced a loss of vision in
his left eye. On examination by Dr. Summers and an
ophthalmologist, Frantz was found to have a central retinal artery
occlusion which has caused permanent loss of vision in his left
eye.
Chester and Vera Frantz each filed a Standard Form 95 with the
Veterans Administration in an effort to recover damages for
Frantz's injury. The VA denied their administrative claim, and the
Frantzes filed this suit on April 20, 1990, alleging negligence in
the care and treatment of Frantz. In their Third Amended Original
Complaint, the Frantzes additionally claimed that the government
failed to obtain informed consent from Frantz prior to the second
surgery.
The government objected to the informed consent claim, arguing
that it was not properly presented in the administrative claim.
The district court agreed and dismissed the claim under FED.R.CIV.P.
2
12(b)(1) for lack of subject matter jurisdiction.
The court originally set the case for trial on December 7,
1992. On May 27, 1992, however, the case was transferred to a
different judge. After the transfer, the court directed the
parties to prepare a Joint Status Report on the case. In the
report, the parties requested a December 7, 1992 trial setting.
Thereafter, on October 21, 1992, the appellants moved to designate
Frantz's treating doctor, Thomas Morrish, as their expert witness.
Both parties had previously designated Dr. Morrish as a fact
witness and his deposition had been taken. The following day, the
court confirmed the December 7th trial setting.
After the confirmation of the trial setting, the government
objected to the designation of Dr. Morrish as untimely under
Northern District of Texas Local Rule 8.1(c)2 and moved for summary
judgment. This triggered a flurry of responses and replies,
including the Frantzes' submission of Dr. Morrish's deposition
testimony to the court.3 In his deposition, Dr. Morrish stated
that he would not have performed the second operation if he had
been aware of Mr. Frantz's temporary loss of vision following the
2
Northern District of Texas Local Rule 8.1(c) provides:
"Designation of Expert Witnesses. Unless otherwise directed by
the Presiding Judge, each party shall file a written designation
of its expert witnesses at least 90 days before trial."
Accordingly, September 8, 1992 was the last day to designate
expert witnesses.
3
The deposition was contained in the Plaintiffs' motion for
leave to file a supplemental response to Defendant's motion for
summary judgment.
3
earlier operation.4 Despite the submission of Dr. Morrish's
deposition, the district court granted the government's motion for
summary judgment on the Frantzes' remaining negligence claim.
Implicitly denying the motion for leave to designate Dr. Morrish,
the court apparently found the appellants had failed to provide any
evidence admissible at trial to defeat summary judgment.
II.
In their first point of error, the Appellants contend that the
district court erred in dismissing their informed consent claim.
Specifically, they urge that their administrative claim was
sufficient to put the government on notice of a possible claim for
lack of informed consent. We agree.
As a jurisdictional prerequisite to bringing a lawsuit under
the Federal Tort Claims Act, a plaintiff is required to "first
[present his or her] claim to the appropriate Federal agency ..."
28 U.S.C. § 2675(a). Congress instituted the presentation
requirement "to ease court congestion and avoid unnecessary
litigation, while making it possible for the Government to expedite
the fair settlement of tort claims asserted against the United
States." S.REP. NO. 1327, 89th Cong., 2d Sess. 6 (1966), reprinted
in 1966 U.S.C.C.A.N. 2515, 2516. Section 2675(a) is satisfied,
therefore, "if the claimant (1) gives the agency written notice of
his or her claim sufficient to enable the agency to investigate and
(2) places a value on his or her claim." Adams v. United States,
615 F.2d 284, 289, clarified, 622 F.2d 197 (5th Cir.1980).
4
Deposition of Thomas Morrish, at 18-19.
4
This court has not required plaintiffs to specifically
enumerate legal theories of recovery in their administrative
claims. As we stated in Rise v. United States, 630 F.2d 1068 (5th
Cir.1980), the purpose of § 2675
will be served as long as a claim brings to the Government's
attention facts sufficient to enable it thoroughly to
investigate its potential liability and to conduct settlement
negotiations with the claimant. Accordingly, we think that if
the Government's investigation of [the plaintiffs'] claim
should have revealed theories of liability other than those
specifically enumerated therein, those theories can properly
be considered part of the claim. Rise, 630 F.2d at 1071.
In the present case, the administrative claim provided
sufficient facts to enable the government to investigate its
potential liability and to conduct settlement negotiations with the
Frantzes. The administrative claim provided the date, location,
and description of Mr. Frantz's injury. In response to the
instructions to state the nature and extent of injury and to
provide a description of the accident, the Frantzes stated
"negligence in surgery causing blindness" and "negligence in nasal
surgery on husband causing him to be blind." Moreover, the claim
named "[a]ll medical personnel who cared for Chester Frantz" as
potential witnesses. Finally, the Frantzes sought $2 million for
the injury.
Furthermore, the government's investigation of the
administrative claim should have revealed the possibility of an
informed consent claim. Under Texas law,5 a suit for the failure
5
Under the Federal Tort Claims Act, the law of the state in
which the alleged tort occurred controls. 28 U.S.C. § 1346(b);
See Richards v. United States, 369 U.S. 1, 6-8, 82 S.Ct. 585,
589-90, 7 L.Ed.2d 492 (1962).
5
of a doctor to fully inform a patient of the risks of surgery
sounds in negligence. TEX.REV.CIV.STAT.ANN. art. 4590i § 6.02
(Vernon Supp.1994);6 McKinley v. Stirpling, 763 S.W.2d 407, 409
(Tex.1989). By its very nature, the informed consent claim is
included in the Frantzes' allegation of negligence in their
administrative claim.7
We therefore hold that the administrative claim provided the
government with sufficient information to conduct a full
investigation and to put it on notice of the possibility of the
informed consent claim. Consequently, we reverse its dismissal.
The government argues that Bush v. United States, 703 F.2d 491
(11th Cir.1983) suggests an opposite conclusion. In Bush, the
Eleventh Circuit summarily affirmed the district court's dismissal
of the plaintiff's informed consent claim. The court's skeletal
description of the administrative claim and its contents makes
6
Section 6.02 provides: "In a suit against a physician or
health care provider involving a health care liability claim that
is based on the failure of the physician or health care provider
to disclose or adequately to disclose the risks and hazards
involved in the medical care or surgical procedure rendered by
the physician or health care provider, the only theory on which
recovery may be obtained is that of negligence in failing to
disclose the risks or hazards that could have influenced a
reasonable person in making a decision to give or withhold
consent." TEX.REV.CIV.STAT.ANN. art. 4590i § 6.02 (Vernon
Supp.1994).
7
Furthermore, in light of the caselaw and Congressional
purpose of § 2675(a), the court refuses to limit the word "in,"
as used in the administrative claim, to the actual surgical
procedure. The term "[i]n ... is synonymous with expressions "in
regard to,' "respecting,' [and] "with respect to,' ..." BLACK'S
LAW DICTIONARY, at 683 (5th ed. 1979).
6
application of the case troublesome.8 Furthermore, application of
Bush to the present case runs counter to the minimal notice
requirement announced in Rise and Adams, supra.9 In light of these
cases, as well as the statutory purpose of Section 2675(a), we
decline the government's invitation to follow Bush.
III.
Our disposition of appellants' first point of error pretermits
review of the denial of the appellants' motion to designate expert
witnesses and the district court's resulting grant of summary
judgment. On remand, the district court will presumably establish
a revised trial timetable. Because such a plan will necessarily
include a revised deadline for the designation of expert witnesses,
the district court's grant of summary judgment based on the
appellants' failure to produce admissible expert opinion evidence
will become moot. For the above reasons, the case is
REVERSED and REMANDED.
8
Moreover, Bush was apparently based in part on Florida
informed consent law. See note 5, supra. The Florida Medical
Consent statute formerly provided: "A consent which is evidenced
in writing ... shall, if validly signed by the patient or another
authorized person, be conclusively presumed to be a valid
consent." FLA.STAT.ANN. § 768.46(4)(a), amended by, §
766.103(4)(a). However, three years after the decision in Bush,
the Florida Supreme Court held that the consent must also be
"informed" before the presumption of validity will attach.
Parikh v. Cunningham, 493 So.2d 999, 1001 (Fla.1986).
9
See also Mellor v. United States, 484 F.Supp. 641 (D.Utah
1978) (administrative claim which alleged "[n]egligent care and
treatment by medical and hospital personnel resulting in damage
to [plaintiff]" properly presented informed consent claim).
7