Lеonard E. LOPEZ, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 15-1169.
United States Court of Appeals, Tenth Circuit.
May 23, 2016.
970
Benjamin I. Sachs (Jim Leventhal with him on the briefs), of Leventhal & Puga, P.C., Denver, CO, for Plaintiff-Appellant.
Robert Mark Russel, Assistant United States Attorney (John F. Walsh, United States Attorney, with him on the brief), Denver, CO, for Defendant-Appellee.
Before BRISCOE, MCKAY and BALDOCK, Circuit Judges.
Plaintiff Leonard Lopez appeals following a bench trial on his medical negligence claims. Lopez underwent lower back surgery at the Veterans Administration Medical Center of Denver, Colorado (VA Hospital), in order to alleviate longstanding sciatic pain. Immediately following surgery, however, Lopez began experiencing excruciating pain in his left foot. Lopez has since been diagnosed with neuropathic pain syndrome and has to rely on a combination of prescription pain medicine and a surgically-placed peripheral nerve stimulator to deal with the pain.
Lopez filed suit against the United States pursuant to the Federal Tort Claims Act alleging, in pertinent part, that (1) Dr. Samuel Waller was negligent in performing the surgery, and (2) that the hospital was negligent in credentialing and privileging Dr. Glenn Kindt, the supervising physician involved in the surgery. The case proceeded to a bench trial, and at the conclusion of the trial the district court found in favor of the government on both clаims. Lopez now appeals. Exercising appellate jurisdiction pursuant to
I
Factual background
Lopez, a resident of Pueblo, Colorado, served as a military policeman and was stationed with the National Guard in Iraq between 1989 and 1991. While on duty in Iraq, Lopez injured his lower back. After returning home and leaving the service, Lopez continued to have lower back pain. In particular, he suffered from intermittent sciatic pain on his left side that ran from his buttocks, to his foot. Lopez also experienced a “pins and needles” sensation in his left foot from time to time. To relieve the symptoms, Lopez had to sit down and stretch out his leg.
In early 2010, Lopez met with Kindt, a neurosurgеon employed by the University of Colorado who had surgical privileges at the VA Hospital, but was not a federal employee. Kindt, who was approximately 79 years old at the time, told Lopez that he could surgically relieve Lopez‘s sciatic pain and symptoms. Kindt also allegedly told Lopez that he had performed thousands of similar surgeries without issue.
On March 5, 2010, Lopez underwent a surgical decompression of the lumbosacral nerve root and disc excision at L5-S1. The surgery was performed at the VA Hospital by Kindt, who was assisted by Waller, a second-year surgical resident at the VA Hospital. The goal of the surgery was to remove bulging disc material and thereby decompress the nerve root and alleviate the sciatic pain Lopez had been experiencing. During the course of the procedure, as Kindt was removing pieces of disc material with a surgical instrument called a Kerrisоn, Kindt pulled out a small piece of tissue approximately an inch in length that, according to Waller, “looked a little bit like a piece of angel hair pasta or something along those lines.” App., Vol. 4 at 455. Kindt allegedly remarked to Waller that the tissue “must be nerve” and expressed his intention to send the tissue to pathology for examination.1 Id. Ac-
When Lopez awoke following the surgery, he experienced a significant amount of pain in his left foot. According to Lopez, the bottom of his left foot felt like “pins and needles,” and he felt a severe burning sensation in the rest of his left foot. Id., Vol. 3 at 399. When asked by hospital staff to rate his pain on a scale of 1 to 10, with 10 being the worst, Lopez responded that his pain was a “20.” Id. at 396-97. The pain in his left foot was so severe that Lopez could not put a sock or shoe on that foot. Lopez was classified as having allodynia.2
Loрez was discharged from the VA Hospital with a prescription for pain medication. After using all of his available sick and annual leave, Lopez returned to his job as a government security guard. The pain in his left foot had not subsided, however, and Lopez eventually quit his job because he felt that he could not perform the tasks required of him. In particular, the pain in his left foot made it difficult for Lopez to walk.
Due to the continuing pain and his reliance оn prescription medications, Lopez saw Dr. Giancarlo Barolat, a neurosurgeon with a private practice in Denver. Barolat diagnosed Lopez with “Neuropathic Pain Syndrome caused by damage to the L5 and S1 nerve roots” that occurred at some point during the surgery. Id., Vol. 6 at 836. To help alleviate some of the pain, Barolat surgically placed a peripheral nerve stimulator on the sciatic nerve in the back оf Lopez‘s left thigh (the device is powered by a battery that was placed in the front of Lopez‘s left thigh). The stimulator helps to reduce Lopez‘s pain by fifty to sixty percent, lessens his dependence upon prescription painkillers, and increases his ability to function. That said, Lopez still relies on prescription painkillers to help deal with the pain in his left foot.
Procedural background
On August 24, 2012, Lopez filed a complaint in federal district court against Kindt and Waller. The сomplaint alleged that Lopez was seeking relief under the Federal Tort Claims Act (FTCA),
On June 17, 2013, Lopez moved to amend his complaint “to add claims against the United States ... for negligent credentialing and privileging related to ... Kindt ... at the [VA Hospital].” Id. at 63. In support, Lopez alleged that “Kindt‘s credentialing file produced by the United States in discovery reveal[ed] the [VA Hospital] failed to follow its own bylaws in failing to ensure ... Kindt was competent to continue performing neurosurgical procedures.” Id. at 64.
The district court grantеd Lopez leave to amend on July 11, 2013, and Lopez‘s first amended complaint was filed that same day. The first amended complaint alleged three claims for relief: Count One alleged a claim of medical negligence arising from the conduct of Kindt; Count Two alleged a claim of medical negligence arising from the conduct of Waller; and Count Three (misnamed in the first amended complaint as the “Fourth Claim“) alleged a claim of negligent privileging аnd credentialing. Id. at 110.
On August 12, 2013, Lopez and Kindt filed a joint stipulation dismissing all claims against Kindt with prejudice; this action was the result of a settlement between Lopez and Kindt. App., Vol. 2 at 148. This left two surviving claims: the medical negligence claim arising from the conduct of Waller and the negligent credentialing and privileging claim relating to Kindt.4
The case proceeded to a multi-day bench trial beginning on December 15, 2014. On March 6, 2015, the district court issued a written memorandum of decisiоn concluding that Lopez “ha[d] failed to prove his claims by a preponderance of the evidence.” App., Vol. 9 at 1237. In reaching this conclusion, the district court stated:
The reasonable probability is that the angel hair pasta sized tissue that came out with disc material was one of the fibers that coalesce into the L-5 nerve root but was not in the nerve root itself. Removal of it was accidental given the patient‘s anatomy and it is not probable that it would have been seen and avoided even with greater illumination and magnification. The unfortunate outcome of this surgery has not been shown to be caused by a failure to perform this surgery within the standard of care expected of a neurosurgeon in 2010.
The plaintiff has attempted to show that the VA should not have permitted Dr. Kindt to be the attending surgeon in this case. There has been post-trial briefing on the applicability of negligent credentialing as a claim under the FTCA. Assuming that there may be such liability, the evidence does not support that claim. This was not a complex surgical procedure and this Court is persuaded by the testimony of Dr. Brega [an associate professor of neurosurgery at the University of Colorado] that Dr. Kindt was competent to perform it. The failure of the VA to follow proper protocol in 2009 does not establish a claim thаt Dr. Kindt was not competent to perform this type of surgery in 2010. Id. at 1236.
Judgment in the case was entered on March 6, 2015. Lopez filed a post-judgment motion asking the district court to reconsider its conclusion that Lopez “failed to meet his burden of proving his claim involving the negligent removal of the L5 nerve root,” and in turn asking the district court to “make additional findings, and award damages to [Lopez] on his negligent credentialing claim.” Id. at 1317. The district court summarily denied Lopez‘s motion.
II
The medical negligence claim arising from the conduct of Waller
In his first issue on appeal, Lopez challenges the district court‘s resolution of his medical negligence claim arising from the conduct of Waller. Specifically, Lopez argues that the district court erred (a) in relying on the testimony of the government‘s expert witness, neurosurgeon Dr. Jeffrey Arle, regarding the precise cause of Lopez‘s injury, (b) in relying on Arle‘s testimony to reject Lopez‘s claim that Waller was negligent for failing to use a loupe (a small magnification device, essentially a microscope, that is worn on the head) or a headlight during the surgery, and (c) by making inadequate findings on Lopez‘s claim that Waller failed to properly mitigate the nerve injury suffered by Lopez. We agree with the government, however, that these claims are moot.
Lopez‘s medical negligence claim arising from the conduct of Wallеr rested on the theory that it was Waller, a federal employee, who actually performed all or most of the surgery, under the supervision of Kindt, and damaged Lopez‘s nerve roots. Indeed, Lopez‘s counsel emphasized this issue during his opening statement to the district court: “One of the issues and the Court is well aware of this is who did the surgery. And so what we have is significant evidence, overwhelming evidence that the procedure was performed by Dr. Waller.” App., Vol. 3 at 237. At the conclusion of the trial proceedings, the district court found in its written memorandum of decision that it was Kindt, who was not a federal employee, who actually performed the surgery and removed the nerve tissue. App., Vol. 9 at 1236. In making this finding, the district court stated that it found Waller‘s trial testimony on this issue “more credible” than the deposition testi-
The negligent credentialing and privileging claim
Lopez also challenges the district court‘s resolution of his negligent credentialing and privileging claim. The district court addressed and rejected this claim on the merits, and Lopez now argues that the district court erred in failing to grant relief on the claim. We agree with the government, however, that the district court lacked jurisdiction over the claim.6
The administrative claim that Lopez filed with the government described the “Basis of Claim” in the following manner:
This is a claim for medical malpractice arising from substandard medical care provided to Leonard Lopez during a surgical procedure on March 5, 2010 at the VA Medical Center. During the left L5-S1 decompression/discectomy procedure, Glenn W. Kindt, M.D., and Samuel Waller, M.D., cut and removed part of a nerve. Dr. Kindt‘s and Dr. Waller‘s cutting and removal of this nerve was a breach of the standard of care and caused Mr. Lopez injuries, damages and losses.
As a result of Dr. Kindt‘s and Dr. Waller‘s cutting and removal of the nerve from Mr. Lopez‘s body, he developed permanent injuries including CRPS Type II and exacerbation of his post-traumatic stress disorder.
App., Vol. 1 at 78.
When Lopez sought to amend his complaint to include a claim for negligent credentialing and privileging, the government opposed that request, arguing that Lopez‘s administrative claim did not include such a claim. The district court rejected the government‘s argument, stating:
It is apparent that counsel for the plaintiff had no information about the competence of Dr. Kindt at the time of the filing of the administrative claim and first obtained that information through the discovery process in this civil action. The amendment does nоt present a new claim and is based on information known to the VA hospital and is well within the scope of the claim that the surgery was performed negligently causing damage to the plaintiff.
App., Vol. 2 at 124.
In its appellate response brief, the government argues that the district court erred in making this ruling and asserting jurisdiction over the negligent credentialing and privileging claim. “Whether the district court has subject matter jurisdiction over a claim is a question of law we review de novo.” Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852 (10th Cir. 2005).
“The [FTCA] is a limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their
“The FTCA bars claimants from bringing suit in federal court until they hаve exhausted their administrative remedies.” McNeil v. United States, 508 U.S. 106, 113, 113 S. Ct. 1980, 124 L. Ed. 2d 21 (1993). Specifically, the FTCA states, in pertinent part, that
[a]n action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agеncy and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.
We have statеd that the jurisdictional statute can be satisfied by a claimant “filing (1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain damages claim.” Trentadue, 397 F.3d at 852 (quoting Bradley, 951 F.2d at 270). That is, we have effectively construed the term “claim,” as employed in
Applying these principles to the case at hand, we conclude that the facts alleged in Lopez‘s administrative claim were not sufficient to encompass and give the government notice of his negligent credentialing and privileging claim. To be sure, a negli-
In concluding otherwise, the district court focused primarily on irrelevant factors. Specifically, rather than examining whether Lopez‘s administrative claim provided the government with notice of the relevant facts, the district court instеad noted that Lopez‘s counsel “had no information about the competence of Dr. Kindt at the time of the filing of the administrative claim,” and that the claim was “based on information known to the VA hospital.” App., Vol. 2 at 124. While both of these facts may be true, nothing in Lopez‘s administrative claim would have caused the government to investigate whether Kindt was properly credentialed. Further, simply because an agency is in possession of information relevant to a claim does not mean that the agency is aware of the claim itself. To excuse a claim from the FTCA‘s administrative exhaustion requirements for the reasons stated by the district court would undermine the very purpose of those exhaustion requirements (i.e., to give the agency notice of the claim, an opportunity to investigate, and a chance to settle the claim prior to litigation), and could effectively and improperly extend the FTCA‘s statute of limitations.
For these reasons, we conclude that the district court lacked subject matter jurisdiction over Lopez‘s negligent credentialing and privileging claim.
III
We AFFIRM the district court‘s entry of judgment in favor of the United States on Lopez‘s claim of medical negligence involving Waller. We REVERSE the district court‘s judgment in favor of the United States on Lopez‘s negligent credentialing and privileging claim and REMAND with directions to dismiss that claim for lack of jurisdiction.
Geri Siano CARRIUOLO, on her own behalf and on behalf of all others similarly situated, Peter Bracchi, Plaintiffs-Appellees, v. GENERAL MOTORS COMPANY, Defendant-Appellant.
No. 15-14442
Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
May 17, 2016.