Sterling Drew, a Minor Under the Age of Thirteen Years, by Guardian Ad Litem Martha Drew Martha Drew Jebediah Drew v. United States

WILLIAMS, Circuit Judge,

dissenting:

. “Depo-Provera injection given to claimant in early pregnancy.” The last three words of this statement clearly set forth the nature of the claimed injury — medical *204negligence arising from the injection of Depo-Provera during early pregnancy. This statement is notable because of what it says, as well as what it does not say. Nowhere does it forecast a claim of informed consent arising from actions occurring well before conception. Indeed, the words “in early pregnancy” form the logical time frame for a reasonable investigation of the Drews’ administrative claim, particularly once the investigation revealed the impossibility of the facts alleged in that claim.

Today, however, the majority fashions a rule under which an administrative claim constitutes sufficient notice under the FTCA even though it is only slightly related to- — and, indeed, offers a wholly different factual predicate than — the actual claim asserted before the district court. The majority’s rule is overly broad and inappropriate, both on the facts of this case and in its far-reaching implications. This rule also places an unreasonable burden of investigation upon the Government and encourages fishing expeditions for claimants to recover from the federal fisc. For these reasons, as well as those discussed below, I respectfully dissent.

I.

The starting point of the analysis is the claim itself, which, as noted above, contains three very important words: “in early pregnancy.” The majority, as part of its analysis, hypothesizes that were it not for these three words, which it characterizes as “a minor factual inaccuracy,” ante at 202, the administrative claim certainly would constitute sufficient notice to the Government of a potential informed consent claim. We need not deal with hypo-theticals in this case, however, because the Drews’ administrative claim speaks for itself.

Although an administrative claim need not enumerate each legal theory, it must, at least, provide sufficient information to enable the agency to conduct its own investigation. See Ahmed v. United States, 30 F.3d 514, 516-17 (4th Cir.1994). Thus, “a claimant must ... provide a sufficient factual predicate so that his claim can be investigated.” Richland-Lexington Airport Dist. v. Atlas Properties, Inc., 854 F.Supp. 400, 412 (D.S.C.1994) (Traxler, J.). In the present case, the Drews’ administrative claim specifically alleged that Mrs. Drew was given Depo-Provera while she was pregnant. Consistent with their administrative claim, the Drews’ initial complaint in district court alleged that “Depo-Provera injections were administered to the Plaintiff, Martha Drew ... when [she] was in fact pregnant.” (J.A. at 7 (emphasis added).) Indeed, all of the allegations in the Drews’ initial complaint relate specifically to the Government’s alleged negligence in injecting Mrs. Drew with Depo-Provera during her pregnancy. In amending their complaint to focus upon conduct that occurred well before pregnancy, the Drews did not simply assert a different legal theory based upon facts already alleged in the administrative complaint. Instead, they created, essentially from thin air, a factual predicate entirely different than that originally asserted and investigated. The most crucial fact in the Drews’ administrative complaint — that Air Force medical personnel took the affirmative act of injecting Drew with Depo-Provera while she was already pregnant — was entirely incorrect. Likewise, the most crucial fact in the Drews’ informed consent claim — that medical personnel negligently omitted to inform or misinformed her of the risks relating to future pregnancy while under Depo-Provera — is not suggested, raised or alluded to in the administrative claim at all. As the Seventh Circuit noted in Deloria v. Veterans Admin., 927 F.2d 1009 (7th Cir.1991), “a plaintiff cannot present one claim to the agency and then maintain suit on the basis of a different set of facts.” Id. at 1012 (internal quotation marks omitted).

II.

Adopting the broad rule of Frantz v. United States, 29 F.3d 222 (5th Cir.1994), *205the majority appears to conclude that by asserting a claim of medical negligence, the Drews necessarily placed the Government on notice of an informed consent claim because informed consent is a subset of medical negligence under South Carolina law.1 I cannot agree with the majority’s reliance upon Frantz, which itself relies upon a questionable premise. It' is true that under South Carolina law, similar to Texas law, a claim of informed consent is recognized as a subset of medical negligence theory. See Hook v. Rothstein, 281 S.C. 541, 316 S.E.2d 690, 696-97 (App.1984). It does not follow, however, that every claim of medical negligence automatically includes or gives notice of, an informed consent claim. Cf. Baxley v. Rosenblum, 303 S.C. 340, 400 S.E.2d 502, 508 (App.1991) (affirming trial court’s refusal to allow Baxley to amend his pleadings to include an informed consent claim at the close of evidence at trial where Baxley only offered evidence and expert testimony relating to Dr. Rosenblum’s alleged failure properly to diagnose and treat Baxley’s cancer).

Instead, I am convinced that Murrey v. United States, 73 F.3d 1448 (7th Cir.1996), provides the better rule. In Murrey, Judge Posner addressed whether an administrative claim asserting medical negligence during surgery gave sufficient notice of an informed consent claim. Even though the Murrey court recognized that informed consent is a species of negligence, it nevertheless observed that “to base a suit on lack of informed consent Murrey’s estate was required to include, or at least to allude to, the issue of informed consent in the administrative claim.” Id. at 1451. And, although the Murrey court concluded that the administrative claim provided sufficient facts to notify the Government of the informed consent claim,2 it explicitly rejected Frantz, stating that “the administrative claim must narrate facts from which a legally trained reader would infer a failure to obtain informed consent.” Id. at 1453; see also Bush v. United States, 703 F.2d 491, 495 (11th Cir.1983) (concluding that the district court lacked jurisdiction to consider informed consent claim because “[njeither the claim nor the attached medical evaluation contained any challenge to the consent form.... There was no allegation that the doctors failed to disclose the risks involved in the medical procedures. Thus, the V.A. was not properly apprised of its potential liability on this ground, and had no opportunity to investigate the claim.” (footnote omitted)).3

*206Here, unlike Murrey, there is absolutely no indication in the adminstrative complaint that Drew was asserting an informed consent claim.4 Indeed, the facts as alleged in the administrative complaint are inconsistent with such a claim because the duty of informed consent, as now alleged, would have arisen months before Mrs. Drew’s pregnancy. There is no doubt that faced with these facts, the Mur-rey court would reach the opposite conclusion.5

The rule of Murrey, and its emphasis on the legally trained reader, is particularly apt to the present facts. I find it particularly notable that the Drews’ counsel, an experienced litigator in medical negligence law, was apparently unaware of the possibility that the Drews might have an informed consent claim based upon the facts as alleged in their administrative complaint. Only after discovery did Mrs. Drew completely change her version of the facts from those contained in the administrative complaint, prompting counsel to move in district court to amend the Drews’ complaint to include the informed consent claim. Yet, the majority would inexplicably place the burden upon the Government to anticipate facts and theories that the Drews’ own counsel could not.

Moreover, although the majority notes that “[t]he Government had complete access to Mrs. Drew’s medical file at Shaw Air Force Base,” ante at 200, these records contain an important fact that would have further deterred the Government from anticipating an informed consent claim from the administrative complaint— Mrs. Drew took additional doses of Depo-Provera after her child was born with a *207defect.6 If the idea behind informed consent is that the injured party would not have taken the drug had she known about its risks, how can we expect the Government to forecast an informed consent claim in light of records that clearly show that Mrs. ■ Drew continued to take the drug even after becoming aware of those risks?

III.

The majority also relies upon a letter from Major Eric S. Israel to the Drews’ counsel denying the Drews’ administrative claim. At the outset, I question the propriety of relying upon a letter that was never raised before the district court. (,See Letter from the Drews’ counsel to this Court of 2/1/00 supplying copy of the denial letter and stating that “[u]pon review of this matter and conferring with opposing counsel, it appears that [this letter] was not presented at the lower Court level, either on its own or as an Exhibit to any document that was filed which appears on the docket sheet”). I am unaware of any other instances where we have considered evidence on appeal that was not presented below. See, e.g., United States v. Hastings, 126 F.3d 310, 316 (4th Cir.1997) (stating that the court of appeals should not consider evidence that was not presented to the district court). But, even ignoring the irregularity of considering this evidence, the denial letter does little to support the Drews’ position. The letter does not disclose that the Government had any idea that informed consent would be an issue in this case. To the contrary, the denial letter is more reasonably read as showing that the Government, quite sensibly, examined the records and concluded that the facts as alleged by the Drews in their administrative complaint could not be reconciled with reality, and, therefore, that the Drews’ claim as alleged was meritless. (See Letter from Israel to the Drews of 12/23/97, at 1 (“It does not appear possible that Mrs.. Drew could have received - an injection of Depo-Provera while she was pregnant with Sterling.”).) It is simply untenable to require the Government, in the face of wholly meritless assertions of fact, ■ to envision unasserted facts under which a claimant could recover if the administrative claim were written differently.

IV.

In conclusion, although the majority asserts that its decision should not be read to “effectively vitiate the notice prong of the FTCA’s presentment requirement,” ante at 203, this is exactly the effect of the rule that the majority adopts. The majority’s approach to this case places an undue burden upon the Government to anticipate facts that a chameleon-like claimant might assert once the original set of facts becomes unsuitable. Because the facts underlying the Drews’ informed consent claim are only slightly implicated by the facts as alleged in their administrative complaint, because even experienced medical malpractice counsel could not forecast an informed consent claim, from the facts contained in the administrative complaint, because the better rule articulated in Murrey mandates the opposite result, and because the majority’s decision, in effect, creates an exception to the notice requirement that wholly eviscerates the rule, I cannot agree with the majority’s decision. For these reasons, I respectfully dissent.

.In Frantz v. United States, 29 F.3d 222 (5th Cir.1994), the Fifth Circuit addressed whether the Frantzes had sufficiently put the Government on notice of an informed consent claim that arose from negligent eye surgery. The Frantzes’ administrative claim had asserted “negligence in surgery causing blindness” and "negligence in nasal surgery on husband causing him to be blind.” Id. at 224. The court concluded that the Frantzes’ claim provided sufficient facts because it "provided the date, location, and description of Mr. Frantz’s injury,” and listed as potential witnesses ”[a]ll medical personnel who cared for” Mr. Frantz. Id. The court further reasoned that the Government's investigation of the negligence claim should have revealed the possibility of an informed consent claim because under Texas law, "a suit for the failure of a doctor to fully inform a patient of the risks of surgery sounds in negligence.” Id. The court concluded, therefore, that ”[b]y its very nature, the informed consent claim is included in the Frantzes’ allegation of negligence in their administrative claim.” Id.

. In Murrey v. United States, 73 F.3d 1448 (7th Cir.1996), unlike the present case, the administrative complaint gave clear notice of the informed consent claim. The administrative complaint in Murrey included an attachment that stated that Murrey was fearful of the surgery and that the doctors "assured him and his family that surgery was the only available therapy, and that it would extend his life by 15 years.” Id. at 1452.

. The majority cites the Eleventh Circuit’s more recent decision in Burchfield v. United States, 168 F.3d 1252 (11th Cir.1999), in which the court stated that "[w]e do not require the claimant to provide the agency with a preview of his or her lawsuit by reciting every possible, theory of recovery, or every factual detail that might be relevant. In short, the amount of information required is 'minimal.' ” Id. at 1255 (internal citations *206omitted). Notably, the Burchfield court cited Bush v. United States, 703 F.2d 491 (11th Cir.1983), among other cases, for the proposition that ''[s]ection 2675(a) does not require an agency to undertake an independent search for injuries or theories of liability that are not closely related to the matters described in the claim.” Id. at 1256 (emphasis added).

. Richland-Lexington Airport Dist. v. Atlas Properties, Inc., 854 F.Supp. 400 (D.S.C.1994), an opinion written by then-district Judge Traxler, also sets forth standards that are inconsistent with the majority’s decision. In Atlas Properties, Judge Traxler stated that § 2675(a)'s notice requirement "is more than a question of technical niceties.” Id. at 409 (internal quotation marks omitted). He also clarified that

notice must do more than cause "the government to sift through the record.” Rather, notice must be sufficiently detailed so that the United States can "evaluate its exposure as far as liability is concerned.” Therefore, in addition to requiring a sum certain, a claimant must also provide a sufficient factual predicate so that his claim can be investigated.

Id. at 412 (quoting Keene Corp. v. United States, 700 F.2d 836, 842 (2d Cir.1983)) (internal citations omitted). Although the majority cites the standards set forth in Atlas Properties, it apparently finds no guidance in them because it fails to apply these standards to the present case. Had the majority applied these standards, its rationale would fail. The majority's decision effectively imposes upon the Government a duty to "sift through the record” in the face of an evolving factual predicate in order to anticipate facts that a plaintiff might have alleged, but did not. The majority’s approach places too much of a burden upon the Government and gives too great a reward to a chameleon-like claimant.

. The majority characterizes the factual discrepancy between the administrative complaint and the Drews' informed consent claim as "a minor factual inaccuracy.” Ante at 202. This characterization might be true if the proper standard of measurement for the level of inaccuracy is the number of words rather than the meaning of those words. To the contrary, "a minor factual inaccuracy” might be alleging that a car is blue when in fact it is teal. The inaccuracy in this case, however, goes to the very factual basis upon which the Drews’ newly asserted legal theory rests. Surely, there is more than a "minor” difference between an allegation that a doctor injected a contraceptive during pregnancy — an affirmative act that, on its face, may be inappropriate and that itself suggests the basis of liability — and an injection of a contraceptive months before pregnancy, when use of a contraceptive is generally appropriate, and where the basis of liability is not the use of the drug itself, but rather an omission that accompanies its injection.

. Sterling Drew was born on December 30, 1995. On February 15, 1996, Mrs. Drew signed an informed consent form to receive additional injections of Depo-Provera.