F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
October 4, 2005
UNITED STATES COURT OF APPEALS
Clerk of Court
TENTH CIRCUIT
KIMBERLY STAGGS, individually
and as mother and next friend of
Baylee Staggs, a minor,
Plaintiff-Appellant, No. 04-7138
v.
UNITED STATES OF AMERICA, ex
rel. The Department of Health and
Human Services; UNITED STATES
OF AMERICA, ex rel. Public Health
Services; UNITED STATES OF
AMERICA, ex rel. Indian Health
Services; UNITED STATES OF
AMERICA, ex rel. W.W. Hastings
Indian Hospital,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. No. CV-03-340-WH)
Submitted on the briefs:
Bill D. Reynolds, Nolan, Caddell & Reynolds PA, Fort Smith, Arkansas, for
Plaintiff-Appellant.
Sheldon J. Sperling, United States Attorney, and Susan Stidham Brandon,
Assistant United States Attorney, Muskogee, Oklahoma, for Defendants-
Appellees.
Before EBEL, HARTZ, and McCONNELL, Circuit Judges.
McCONNELL, Circuit Judge.
Appellant Kimberly Staggs challenges the district court’s ruling in her
medical negligence case that it lacked subject matter jurisdiction to consider lack
of informed consent. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm. *
I. B ACKGROUND
Staggs filed with the Department of Health and Human Services (DHHS) a
Standard Form 95 “Claim for Damage, Injury, or Death,” describing the basis for
her claim:
This is an action for medical malpractice against W.W.
Hastings Indian Hospital in Tahlequah, Oklahoma by virtue of the
negligent management of Kimberly D. Staggs’ pregnancy, labor
management and negligent treatment of her infant daughter, Baylee
R. Staggs upon delivery on March 20, 1999. . . .
Kimberly Staggs was admitted to W.W. Hastings for
evaluation of preeclampsia. At this point in time and after the
amniocentesis, Ms. Kimberly Staggs should have been slated for a
C-section. However[,] the staff violated the standard of care by
trying to ripen the cervix and induce labor. Under no circumstances
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
-2-
should this have been done given her condition. In any event, the
decision to ripen the cervix and induce labor was made. Multiple
and obvious warning signs were present which included the late
deceleration on the fetal heart monitor tapes, her blood pressure, and
Meconium staining. The staff and physicians failed to take any of
these warning signs into consideration and order a C-section which
would have prevented the brain injury that Baylee Staggs has
suffered. All of these warning signs were blatant and obvious and
included early warning signs of moderate deceleration with very light
contractions. In spite of these multiple warning signs the staff
continued to be negligent in their management of Ms. Kimberly
Staggs’ labor.
The management was so grossly deviant that an emergency
C-section had to be done; was not even done within the standard of
care; and proceeded without general anesthesia or a spinal block. . . .
Subsequently, Baylee Staggs was born in a severely depressed
hypoxic state and upon delivery the staff further depressed Baylee
Staggs by continuing to do harm to her. As a result, Baylee Staggs is
permanently brain damaged which was caused by the negligence of
the staff of W.W. Hastings Indian Hospital. There is a substantial
departure from the standard of care in the monitoring of Kimberly
Staggs[’] labor and delivery and a severe violation of the standard of
care in the attending of Baylee Staggs upon delivery.
Aplt. App. at 35.
After DHHS denied Staggs’ administrative claim, Staggs sued the United
States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-80.
Staggs alleged at least ten deviations from the standard of care, but never
mentioned lack of informed consent. 1 Prior to trial, the district court granted the
1
Staggs listed as examples of negligent conduct: providing incompetent and
unqualified medical personnel; inducing labor; continuing to induce labor using
Pitocin and Cytotec in the absence of labor progression; failing to recognize or
(continued...)
-3-
government’s motion to exclude any evidence of lack of informed consent,
reasoning that the theory “was not raised in the administrative claim or the very
detailed complaint.” Aplt. App. at 87-88.
Despite the district court’s exclusionary ruling, however, Staggs did
provide some lack-of-informed-consent testimony after the government opened
the door to that issue on cross-examination. 2 Following the bench trial, the
district court entered findings, conclusions, and judgment against Staggs. In a
footnote, the court stated that it lacked subject matter jurisdiction to consider the
informed consent issue because it was not raised administratively or in the
complaint. Staggs appealed.
II. A NALYSIS
Under the FTCA, federal jurisdiction over damages suits against the United
States depends upon a claimant presenting to the appropriate federal agency “(1) a
written statement sufficiently describing the injury to enable the agency to begin
1
(...continued)
treat Baylee’s “nonreassuring fetal heart patterns”; allowing a nurse mid-wife to
continue managing Staggs’ labor; delaying calling a physician; using induction
agents “without sufficient orders and protocols”; using Cytotec “in absence of
FDA approval”; improperly intubating Baylee; and performing a cesarean section
under local anesthetic. Aplt. App. at 20-22.
2
We decline the government’s invitation to explore the merits of Staggs’
lack of informed consent claim as an alternative basis for affirmance. See Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 101-02 (1998) (rejecting the
doctrine of hypothetical jurisdiction).
-4-
its own investigation, and (2) a sum certain damages claim.” Cizek v. United
States, 953 F.2d 1232, 1233 (10th Cir. 1992) (quotation marks omitted). We are
concerned here with only the first jurisdictional requirement, which presents a
question of law subject to de novo review, Estate of Trentadue ex rel. Aguilar v.
United States, 397 F.3d 840, 852 (10th Cir. 2005).
In Trentadue, we followed the First Circuit’s test, which asks whether the
claim’s language “‘serves due notice that the agency should investigate the
possibility of particular (potentially tortious) conduct.’” 397 F.3d at 852 (quoting
Dynamic Image Techs., Inc. v. United States, 221 F.3d 34, 40 (1st Cir. 2000)). In
accordance with the test’s pragmatic purpose, we added that a claim should give
notice of the underlying facts and circumstances “rather than the exact grounds
upon which [the claimant] seeks to hold the government liable.” Id. at 853.
Staggs argues that her administrative claim was sufficient to implicate lack
of informed consent. Specifically, she refers to language in her claim that
accused the hospital of a “substantial departure from the standard of care” and the
“negligent management of [her] pregnancy [and] labor.” Aplt. App. at 35. Staggs
asserts that failure to obtain informed consent was inherent in this language and
other language indicating that during her care, a decision had to be made about
changing the course of treatment. We disagree. As stated by the Oklahoma
Supreme Court, the informed consent doctrine “imposes a duty on a physician or
-5-
surgeon to inform a patient of his options and their attendant risks. If a physician
breaches this duty, [the] patient’s consent is defective, and [the] physician is
responsible for the consequences.” Scott v. Bradford, 606 P.2d 554, 557 (Okla.
1979). 3 Nothing in Staggs’ administrative claim suggests that Staggs consented to
a course of treatment or remained on such a course without being informed of her
options and the risks. 4 There are no allegations, for instance, that Staggs was
unaware or misinformed as to the direction, scope or potential consequences of
her and Baylee’s treatment. And given the length and factual specificity of
Staggs’ description of her claim without a mention of “consent” or a suitable
synonym, DHHS could have reasonably concluded that a claim of lack of
informed consent was not intended and that an investigation into lack of informed
consent was unnecessary. 5 We also deem it noteworthy that Staggs’ complaint is
3
Under the FTCA, we apply the law of the state in which the allegedly
tortious act or omission occurred. 28 U.S.C. § 1346(b)(1).
4
Nor is there any indication that Staggs withheld consent from a particular
treatment or that she retracted such consent, so as to raise a battery theory, see
Scott, 606 P.2d at 557 (distinguishing between lack of informed consent as a
negligence theory and lack of any consent as an intentional tort theory). In any
event, the FTCA’s waiver of sovereign immunity would not have covered medical
battery. See 28 U.S.C. § 2680(h).
5
We are not persuaded that a contrary conclusion is mandated by the fact
that Staggs and Baylee’s medical records were attached to the claim form. Staggs
does not intimate how a review of those medical records, either singularly or in
conjunction with the description of Staggs’ claim, would have disclosed the
possibility of lack of informed consent. We will not “manufacture a party’s
(continued...)
-6-
silent regarding lack of informed consent. See Fed. R. Civ. P. 8(a)(2) (requiring
that a complaint contain “a short and plain statement of the claim showing that
the pleader is entitled to relief”).
In reaching our conclusion that Staggs’ administrative claim lacks facts and
circumstances sufficient to raise the possibility of lack of informed consent, we
decline to adopt the Fifth Circuit’s view that an administrative claim for medical
negligence necessarily includes lack of informed consent when the underlying
state law treats lack of informed consent as negligence, Frantz v. United States,
29 F.3d 222, 224 (5th Cir. 1994). Every other circuit that has examined the issue
employs a case-by-case approach, 6 which we find consistent with the FTCA’s
5
(...continued)
argument on appeal when it has failed in its burden to draw our attention to the
error below.” Scott v. Hern, 216 F.3d 897, 910 n.7 (10th Cir. 2000) (quotation
marks omitted).
6
See, e.g., Goodman v. United States, 298 F.3d 1048, 1055-56 (9th Cir.
2002) (stating that “the Frantz rule is too broad and may give inadequate respect
to the values of fair notice”); Murrey v. United States, 73 F.3d 1448, 1453 (7th
Cir. 1996) (rejecting Frantz in favor of reviewing the claim for “facts from which
a legally trained reader would infer a failure to obtain informed consent”);
Bush v. United States, 703 F.2d 491, 495 (11th Cir. 1983) (holding that the
district court had no jurisdiction to consider lack of informed consent because
there was no allegation that the doctors failed to disclose risks and because there
was no challenge to the patient’s signed consent form). Although the Fourth
Circuit in Drew v. United States, 217 F.3d 193, 199-200 (4th Cir. 2000), agreed
with the Fifth Circuit’s Frantz decision, the Fourth Circuit later vacated its
opinion upon granting en banc consideration, and summarily affirmed the district
court’s dismissal for lack of jurisdiction, Drew ex rel. Drew v. United States,
231 F.3d 927, 927-28 (2000).
-7-
waiver of sovereign immunity and underlying purpose 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,”
Bradley v. United States ex rel. Veterans Admin., 951 F.2d 268, 271 n.3 (10th Cir.
1991) (quotation marks omitted).
We recognize the tragic circumstances of this case and that our decision
provides little solace to the Staggs family. However, the FTCA’s presentation
requirements are jurisdictional and cannot be waived. Trentadue, 397 F.3d at
852.
The judgment of the district court is affirmed.
-8-