Lopez v. United States, 823 F.3d 970

Background

Lopez, a veteran, underwent L5–S1 discectomy at the Denver VA on March 5, 2010; postoperatively he developed severe left-foot neuropathic pain (CRPS Type II) attributed to intraoperative removal/damage of nerve tissue.
Surgery was performed by neurosurgeon Glenn Kindt (attending, University of Colorado physician with VA privileges) with Dr. Samuel Waller (second-year VA surgical resident) assisting; Lopez sued under the FTCA after administrative claim denial.
Lopez originally sued both Kindt and Waller; he later settled and dismissed Kindt, leaving (1) an FTCA claim for medical negligence based on Waller’s conduct and (2) an FTCA claim for negligent credentialing/privileging of Kindt by the VA.
After a bench trial the district court found Lopez failed to prove negligence by Waller (finding Kindt, a non-federal physician, performed the operative acts) and rejected the negligent-credentialing claim on the merits.
On appeal the Tenth Circuit affirmed the judgment for the United States on the Waller negligence claim (plaintiff did not challenge the district court’s credibility finding that Kindt performed the surgery) but reversed the denial of the credentialing claim on merits grounds and remanded with directions to dismiss that claim for lack of subject-matter jurisdiction due to failure to exhaust administrative remedies.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was Waller negligent in performing the surgery (FTCA claim against U.S.)?	Lopez argued Waller performed the surgery and negligently cut nerve tissue; Waller failed to use loupe/headlight and failed to mitigate injury.	Government argued record supports district court finding that Kindt (non-federal) performed the operative acts; Waller not liable.	Affirmed — district court’s credibility finding that Kindt performed the surgery stands; other challenges moot.
Did Lopez adequately exhaust administrative remedies for negligent credentialing/privileging claim?	Lopez argued his administrative SF-95 alleging negligent removal of nerve and naming Kindt/Waller fairly encompassed negligent credentialing discovered later in litigation.	Government argued the administrative claim did not put the VA on notice to investigate credentialing/privileging; exhaustion is jurisdictional.	Reversed (for different reason): district court lacked subject-matter jurisdiction over credentialing claim because administrative claim did not reasonably encompass it; claim must be dismissed.
Whether district court could treat hospital possession of credentialing info as substitute for claimant’s administrative notice?	Lopez asserted counsel lacked early info and credentials were known to VA; amendment arose from discovery; thus claim within scope.	Government said agency possession of facts is not the same as notice of a claim; FTCA requires claimant present claim facts.	Held that agency possession alone doesn’t satisfy §2675; district court erred to excuse exhaustion.
Standard for construing FTCA exhaustion (what constitutes a claim)?	Lopez relied on broad reading that factual development in litigation can supply new theories tied to initial injury claim.	Government relied on precedent requiring administrative claim to provide facts sufficient to allow agency investigation of the particular theory.	Court applied settled test: administrative claim must describe injury facts sufficient to allow agency investigation and demand a sum certain; negligent-credentialing was not reasonably encompassed.

Key Cases Cited

United States v. Orleans, 425 U.S. 807 (1976) (FTCA is a limited sovereign-immunity waiver to be construed narrowly)
McNeil v. United States, 508 U.S. 106 (1993) (FTCA’s administrative-exhaustion requirement is jurisdictional)
Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840 (10th Cir. 2005) (administrative claim requires facts to enable agency investigation and a sum certain)
Bradley v. United States ex rel. Veterans Admin., 951 F.2d 268 (10th Cir. 1991) (FTCA exhaustion is jurisdictional)
Miller v. United States, 463 F.3d 1122 (10th Cir. 2006) (narrow construction of government’s waiver of sovereign immunity)
In re Franklin Savings Corp., 385 F.3d 1279 (10th Cir. 2004) (limitations on waivers of sovereign immunity must be strictly observed)
Smoke Shop, LLC v. United States, 761 F.3d 779 (7th Cir. 2014) (agencies should have opportunity to settle disputes before litigation; notice requirement of administrative claim emphasized)
Sebelius v. Auburn Regional Medical Center, 133 S. Ct. 817 (2013) (jurisdictional objections may be raised at any time)