Petition for Writ of Certiorari — Drew ex rel. Drew v. United States

Supreme Court, U.S. =

|

001313FEB 15 2003

No. __ OFFICE OF THE CLERK

3n the

Supreme Court of the Anited States

STERLING DREW, a minor under the age of thirteen,

by guardian ad litem Martha Drew; MARTHA DREW;

JEBEDIAH DREW,

Petitioners,

Vv.

THE UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Or CERTIORARI

To Tue Unrrep States Court oF APPEALS

For Tue Fourts Circuit

PETITION FOR WRIT OF CERTIORARI

M. M. WEINBERG, JR.

Counsel of Record

M.M. WEINBERG, III.

109 NortH MAIN STREET

Post OFFice Box 1289

SumTeErR, SC 29151-1289

(803) 775-1274

Counsel for Petitioners

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

IG? ato S

QUESTION PRESENTED

DID THE FOURTH CIRCUIT COURT OF

APPEALS ERR IN RENDERING ITS

EVENLY DIVIDED EN BANC DECISION,

WHICH AFFIRMED A DECISION OF THE

UNITED DISTRICT COURT FOR THE

DISTRICT OF SOUTH CAROLINA, THAT

THE PETITIONERS’ FORM 95, AS

REQUIRED BY THE FEDERAL TORT

CLAIMS ACT AND SPECIFICALLY, 28

U.S.C. SECTION 2675 (a), DID NOT

PRESENT A SUFFICIENT FACTUAL

PREDICATE, TO CONFER SUBJECT

MATTER JURISDICTION UPON THE

DISTRICT COURT, TO CONSIDER THE

PETITIONERS’ TORT CLAIM FOR

MEDICAL MALPRACTICE BASED UPON

A FAILURE TO OBTAIN INFORMED

CONSENT RAISED BY THE PETITIONERS

IN THEIR AMENDED COMPLAINT IN

THIS ACTION?

PARTIES TO THE PROCEEDING

Petitioners

Sterling Drew, a minor under the age of thirteen years, by his

Guardian Ad Litem Martha Drew, and Martha Drew and

Jebediah Drew, personally. Sterling, Martha, and Jebediah

Drew are all individuals with no corporate affiliations.

Respondent

The United States of America.

lil

Yh eh COREL 5 ATER INE OO ETN UAE

TABLE OF CONTENTS

QUESTION PRESENTED ..........ccceeceees i

PARTIES TO THE PROCEEDING ............. ii

TABLE OF CONTENTS .......ccccccccccees ili

TABLE OF AUTHORITIES .........00000 008. vi

OPINIONS BELOW 2... cc ccccccccacccccces |

BASIS FOR JURISDICTION .................. 1

CONSTITUTIONAL AND STATUTORY

PROVISION INVOLVED . ... 0... ccc cccccccens 2

STATEMENT OF THE CASE ............-..-; 2

REASONS FOR GRANTING THE WRIT ......... 7

I. The Decision Of The United States Court Of

Appeals For The Fourth Circuit In This

Matter, To The Effect That The Verbiage Of

The Petitioners’ Administrative Claim Under

The Federal Tort Claims Act, Was Not

Sufficiently Factually Detailed To Preserve

Their Tort Claim Against The United States

For Medical Malpractice Based Upon Failure

To Obtain Informed Consent, Is In Conflict

With The Decisions Of The United States

Courts Of Appeal For The First, Second,

Sixth, Eighth, Ninth, Eleventh, And D.C.

Circuits On This Same Issue Of The

Sufficiency Of The Factual Predicate Stated In

ili

An Administrative Claim For Relief Under

The Federal Tort Claims Act.............. rs

II. The Decision Of The United States Court of

Appeals For The Fourth Circuit Wrongly

Decides The Instant Case, In That Under

Either Standard of Adjudication Of

Administrative Claims, The United States

District Court Had Subject Matter Jurisdiction

Over The Petitioner’s Claim Against The

United States For Medical Malpractice Based

Upon Failure To Obtain Informed Consent. ... 21

Ce cf cacao uk bake neh een 26

APPENDICES

Appendix A

Court of Appeals Opinion, 6/27/00 ......... la

Appendix B

Court of Appeals Order, 11/17/00 ......... 34a

Appendix C

Court of Appeals Order Granting Defendant’s

Petition for Rehearing, 9/8/00 ........... 36a

Appendix D

District Court Order, 12/1/98............ 38a

Appendix E

Plaintiffs’ Memorandum Of Law In Opposition

to Motion To Dismiss Or In The Alternative

For Summary Judgment, 11/25/98 ........ 42a

Appendix F

Amended Memorandum Of Law In Support Of

The United States’ Motion To Dismiss Or In

The Alternative Motion For Summary

Judgment, 11/12/98 .........- 2s eee eee 6la

Appendix G

Amended Motion To Dismiss Informed

Consent Claim Or In The Alternative Motion

For Summary Judgment, 10/30/98 ........ Tla

Appendix H

Amended Complaint, 10/30/98 ........... 73a

Appendix I

District Court Order, 10/15/98 ........... 80a

Appendix J

Plaintiffs’ Complaint, 6/22/98 ........... 83a

Appendix K

Deposition of Martha Drew, 9/4/98 ........ 90a

Appendix L

Letter From Eric S. Israel, 12/23/97 ...... 145a

Appendix M

Claim For Damage, Injury Or Death ...... 148a

TABLE OF AUTHORITIES

Cases

Bradley v. United States,

951 F.2d 268 (10" Cir. 1991)............. 18

Broudy v. United States,

722 F.2d 566 (9" Cir. 1983) ............. 13

Burchfield v. United States,

168 F.3d 1252 (11" Cir. 1999)... 2.2.0.2... 14

Douglas v. United States,

658 F.2d 445 (6" Cir. 1981) ............. 17

Farmer's State Savings Bank v.

Farmer's Home Administration,

866 F.2d 276 (8 Cir. 1989) ............. 17

Frantz v. United States,

20 P3622 OS Ce. MOOS passim

GAF Corporation v. United States,

SIS F.26 S60 D.C. Cor. WGA) occ cevcsccce 16

Hook v. Rothstein,

281 S.C. 541, 316 S.E. 2d 690,

(Ct. App. 1984) Cert. den’d.

283 S.C. 64, 320 S.E. 2d 35 (1984) .. 22, 23,25

Johnson by Johnson v. United States,

788 F.2d 845 (2™ Cir. 1986) ............. 11

Murrey v. United States,

73 F.3d 1448 (7" Cir. 1996) .......... 17, 24

Santiago-Ramirez v. Secretary ee

984 F.2d 16 (1" Cir. 1993) ........-.--45-

Tucker v. United States Postal Service,

676 F.2d 954 (3 Cir. 1982) ..........--- 17

Statutes

Federal Tort Claims Act .......- 6-0 ee eeues passim

y Sis Tom oko 7 See 4

SEU Be ci ciccsccccscascedads 4

, err ae 4, 24

SRG EE: ack cscncesceseescees 4

SURE, OE 6 wc cht veces etsceees 4

SOT ED wk caus ccc eed cee ween 4

PU BC. SAIS oc cicccccccsces passim

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i 8 1”) er 4

, (it ' > eee eee 4

, te > | re rere ee ard 4

, tf ot ene 4

Other Authorities

, toa Ss 0 eeerrrer eer eee 14

SERED SES 10.0.5 0c cccsctiorcievereces 24

Supreme Court Rule 10 (a) .....-----+-++eeeee> 19

1966 United States Code Congressional

and Administrative News at 2515-2516 .... 19, 21

vii

OPINIONS BELOW

The Order of the United States District Court for the

District of South Carolina, in Sterling Drew, et al. v. The

United States of America, is unreported and is set forth in

Appendix D at pages 38a through 41a.

The Opinion of the Hearing Panel of the United States

Court of Appeals for the Fourth Circuit in Sterling Drew, et.

al. v. United States of America, 217 F.3d 193 (4" Circuit

2000), is set forth in Appendix A at pages la through 33a.

The Order of the United States Court of Appeals for

the Fourth Circuit, granting the United States of America’s

Petition for Rehearing en banc, is unreported, and is set forth

in Appendix C at pages 36a through 37a.

The Order of the United States Court of Appeals for

the Fourth Circuit filed November 17, 2000, affirming the

United States District Court’s decision in this case referenced

above by an evenly divided vote, is unreported and is set forth

in Appendix B at pages 34a through 35a.

BASIS FOR JURISDICTION

The final judgment of the United States Court of

Appeals for the Fourth Circuit affirming the decision of the

United States District Court for the District Court for the

District of South Carolina was entered on November 17,

2000. This Petition for Writ of Certiorari is filed within 90

days from that date. 28 U.S.C. Section 2101 (c).

The jurisdiction of this Court is invoked pursuant to

the provisions of 28 U.S.C. Section 1254 (1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

28 U.S.C. SECTION 2675 (a)

An action shall not be instituted upon a claim against

the United States for money damages for injury cr 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 agency and his claim shall

have been finally denied by the agency in writing and sent by

certified or registered mail. The failure of an agency to make

final disposition of a claim within six months after it is filed

shall, at the option of the claimant any time thereafter, be

deemed a final denial of the claim for purposes of this section.

The provisions of this subsection shali not apply to such

claims as may be asserted under the Federal Rules of Civil

Procedure by third party complaint, cross-claim, or counterclaim.

STATEMENT OF THE CASE

Martha and Jebediah Drew are husband and wife.

(App. K at 95a.)

Jebediah Drew is an enlisted person on active duty

with the United States Air Force stationed at Shaw Air Force

Base, South Carolina. Between 1992-1995, Martha Drew

became pregnant on five (5) separate occasions even though

she was using traditional birth control medication such as

Ortho-Novum. (App. K at 95a-99a.) Of these five (5)

pregnancies, three resulted in live births and two (2) resulted

in miscarriages. (/d.) After having given birth to two (2)

children in her first and second pregnancies, and after having

2

undergone two (2) miscarriages in her third and fourth

pregnancies, despite the fact that she was on birth control

_- medication, Ms. Drew sought further birth control counseling

from the Respondent acting through its agents and servants in

the Department of the Air Force.

In the course of giving her birth control counseling,

she was encouraged by various medical personnel at Shaw Air

Force Base, South Carolina to try Depo-Provera by intra-

muscular injection, as a birth control device. According to her

testimony, she was told by these medical personnel that Depo-

Provera was 100% effective at preventing live births. (App.

K at 139a-140a.) She was told that their was a 0.1 percent

chance that she may become pregnant while on Depo-Provera

but if she did, the pregnancy would spontaneously abort. (/d.)

Pursuant to this information that was given to her by

the Department of the Air Force, she consented to undergo

Depo-Provera therapy for birth control purposes. She received

her first shot of Depo-Provera on July 28, 1994. (App. K at

103a.) She received her second shot of Depo-Provera on

October 24, 1994, and then again on or about February 1,

1995. (App. K at 104a-105a and 110a.)

Despite this Depo-Provera therapy, the Petitioner

Martha Drew became pregnant with the Petitioner Sterling

Drew, and was so diagnosed at the Shaw Air Force Base

hospital on May 30, 1995. (App. K at 119a-120a.) At that

time, a sonogram showed the Petitioner Martha Drew to have

been approximately five (5) weeks and four (4) days pregnant

as of May 30, 1995. (App. K at 120a.) Contrary to the

information that she had been given by the agents and servants

of the Respondent, the pregnancy did not spontaneously abort

but rather resulted in the live birth of the Petitioner Sterling

Drew. As a result of being exposed to Depo-Provera in utero,

3

Sterling Drew suffered numerous birth defects including an

imperforate anus and a ventricular septal defected in his heart

as well as genetic, developmental, glandular and mental

disorders.

After the Petitioner Sterling Drew was diagnosed with

these problems, the Petitioners, Martha and Jebediah Drew,

filed an administrative claim with the Department of the Air

Force, seeking damages. This administrative claim alleged

the following information as its factual predicate:

"Spontaneous delivery of male infant with imperforated anus,

ventricular septal defect, left facial palsey, umbilical hernia

and inguinal hernia at Shaw Air Force Base Hospital. Depo-

Provera injection given to claimant in early pregnancy."

(App. K at 148a.)

This administrative claim was subsequently denied by

the Department of the Air Force. (See, App. K at 145a-147a.)

The Petitioners then timely filed the original

Complaint in this action alleging that the Petitioner Martha

Drew was given Depo-Provera as a birth control device by the

Respondent when she was in fact pregnant with the Petitioner

Sterling Drew. (App. J at 83a-89a.) Subsequently, the

Petitioners moved to amend their Complaint to restate their

claim for medical negligence, as one based upon a lack of a

informed consent.'

' Subject matter jurisdiction in the United States District

Court for the District of South Carolina, which was the Court of

first instance in this case, was based upon the Federal Tort Claims

Act. See, 28 U.S.C. Sections 1346 (b) and 2671 - 2680.

4

_ This motion was granted by Order entered October 15,

1998, and leave to file the Amended Complaint was

reaffirmed by Summary Order of the District Court entered

on October 29, 1998. (See, App. H at 73a-79a and 80a-82a.)

The Respondent then moved to dismiss this Amended

Complaint contending that the Court lacked subject matter

jurisdiction to entertain the Petitioners’ informed consent

claim, claiming that it was not properly presented at the

administrative level pursuant to 28 U.S.C. Section 2675(a).

(App. F at 61a-72a.)

By Order dated and entered December 1, 1998, the

District Court granted Respondent's motion and dismissed the

Petitioners’ Amended Complaint with prejudice. (App. D at

38a-41a.) It is from this Order that they filed their appeal

with the United States Court of Appeals for the Fourth |

Circuit.

The Petitioner’s Appeal was heard by a three Judge

Panel of the Fourth Circuit Court of Appeals in January of

2000 (hereinafter “the Hearing Panel”).

By a two to one decision filed June 27, 2000, this

Hearing Panel reversed the District Court reasoning as

follows:

We accordingly conclude that the

administrative claim filed in this case provided

the Government with notice sufficient to

evaluate its liability for damages. The Air

Force was notified that a child suffering from

numerous physical defects had been born in

one of its base hospitals, and that these defects

had aliegedly resulted from the dispensing of

5

Depo-Provera by one of its employees. At this

point it was up to the Government to fully

investigate the matter and fill in the details by

asking the right questions beginning with,

‘Were the risks of selecting Depo-Provero as

a contraceptive reasonably and accurately

explained to Sterling’s Mother before we

embarked on that course of treatment?’ That

the claim form contained a minor factual

inaccuracy should not have deterred the

Government from acting reasonably by dotting

its I’s and crossing its T’s. (App. A at 19a-

20a.)

Upon receiving this decision, the United States timely

filed a Petition for Rehearing and Rehearing en banc. By

Order filed September 8, 2000, this Petition for Rehearing en

banc was granted and the case was calendared for oral

argument before the en banc panel of the United States Court

of Appeals for the Fourth Circuit. (See, App. C at 36a - 37a.)

On November 17, 2000, the Fourth Circuit entered a

Summary Order set forth in Appendix B at pages 34a- 35a,

which stated in pertinent part as follows:

It is Ordered by virtue of an equally divided

vote of the active members of the Court that

the Judgment appealed from be, and it is

hereby, affirmed. (App. B at 35a.)

In so doing, the Fourth Circuit vacated the Hearing

Panel’s majority opinion set forth in Appendix A at pages la

through 24a.

It is respectfully submitted that this was error, and that

this error should be corrected by this Court. In that regard,

the Petitioners have timely filed a Petition for Writ of

Certiorari with this Court within 90 days of the entry of the

Court of Appeals Order of November 17, 2000, referenced

above.

REASONS FOR GRANTING THE WRIT

I.

THE DECISION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT IN THIS MATTER,

TO THE EFFECT THAT THE VERBIAGE

OF THE PETITIONERS’

ADMINISTRATIVE CLAIM UNDER THE

FEDERAL TORT CLAIMS ACT, WAS

NOT SUFFICIENTLY FACTUALLY

DETAILED TO PRESERVE THEIR TORT

CLAIM AGAINST THE UNITED STATES

FOR MEDICAL MALPRACTICE BASED

UPON FAILURE TO OBTAIN

INFORMED CONSENT, IS INCONFLICT

WITH THE DECISIONS OF THE UNITED

STATES COURTS OF APPEAL FOR THE

FIRST, SECOND, FIFTH, SIXTH,

EIGHTH, NINTH, ELEVENTH, AND D.C.

CIRCUITS ON THIS SAME ISSUE OF

THE SUFFICIENCY OF THE FACTUAL

PREDICATE STATED IN AN

ADMINISTRATIVE CLAIM FOR RELIEF

UNDER THE FEDERAL TORT CLAIMS

ACT.

The Fourth Circuit Court of Appeals’ Summary Order

in this case, which affirmed the lower Court’s decision

without opinion, has the effect of placing the Fourth Circuit

in conflict with decisions of the First, Second, Fifth, Sixth,

Eighth, Ninth, Eleventh, and D.C. Circuits on the same issue

regarding the sufficiency of the factual predicate stated in an

administrative claim for relief under the Federal Tort Claims

Act, sufficient to confer jurisdiction on the United States

District Court.

There are two distinct schools of jurisprudential

thought on the subject of the sufficiency of the factual

presentment required for an administrative claim under the

_ Federal Tort Claims Act. One school of thought holds that as

long there is sufficient written notice in the Administrative

Claim Form 95, sufficient to enable the agency against whom

the claim is made to investigate the claim and uncover all

possible legal theories upon which any future lawsuit under

the Tort Claims Act might be based, then the Administrative

Claim is sufficient to confer subject matter jurisdiction on the

United States District Court, for any such claim that may be

raised in future litigation.

The Court of Appeals’ Opinion that is most closely

identified with this school of thought on the subject, is Frantz

v. United States, 29 F.3d 222 (5" Cir. 1994).

There, the Appellant underwent nose surgery at a

Veteran’s Administration Hospital in Dallas, Texas. 29 F.

3223.

In connection with this surgery, he experienced a loss

of vision in his left eye, which was found to have been caused

by a central retinal artery occlusion, which caused permanent

damage to the vision in his left eye. Jd.

8

Frantz then attempted to obtain damages for this injury

by filing an administrative claim under the Federal Tort

Claims Act pursuant to 28 U.S.C. Section 2675 (a). (See,

Page 2 of this Petition, Supra, .)

The Fifth Circuit Court of Appeals described this

Administrative Claim as follows: ;

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 the 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 “all medical personnel who

cared for Chester Frantz” as potential

witnesses. Finally, the Frantzes sought Two

Million Dollars for the injury. 29 F.3d at 224.

After this Administrative Claim was denied, Frantz

filed a lawsuit in the United States District Court alleging

negligence in his care and treatment. In a third amended

Complaint, Frantz additionally claimed that the Government

failed to obtain informed consent from Frantz prior to the

surgical procedure. 29 F.3d at 223.

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 for lack of subject matter jurisdiction. 29

F.3d at 223.

In reversing this decision, the Fifth Circuit reasoned

as follows:

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. Section 2675(a) . . . 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 the claim and (2) places a value on

his or her claim . . . This Court has not

required Plaintiffs to specifically enumerate

legal theories of recovery in their

Administrative claims . . . The purpose of

Section 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 conduct settlement

negotiations with the Claimant. Accordingly,

we think that if the government's investigation

of [the Plaintiff's] claim should have revealed

theories of liability other than those

specifically enumerated therein, those theories

can properly be considered part of the claim .

. . The government's investigation of the

Administrative claim should have revealed the

possibility of an informed consent claim.

Under Texas law, a suit for the failure of a

doctor to fully inform a patient of the risks of

surgery sounds in negligence . . . By its very

nature, the informed consent claim is included

in the Frantzes' allegation of negligence in

their Administrative claim. We therefore hold

10

ee ee...

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. 29 F.3d 224-25. (Emphasis added.)

Basically then, the Court in Frantz held that a factual

allegation of medical malpractice in an Administrative Claim

Form 95, addressed to the appropriate agency, was notice to

the agency sufficient to enable it to investigate the claim, and

uncover any possible theories upon which the claim could be

based, including the failure to obtain informed consent even

_ though no informed consent language, direct or indirect, was

used in the claim.

The Fifth Circuit’s view in this regard, as enunciated

by the Court in Frantz, has been accepted by the majority of

the Circuit Courts of Appeal that have addressed the issue.

The Second Circuit did so in a case entitled Johnson

by Johnson v. United States, 788 F.2d 845 (2™ Cir. 1986).

There, the Plaintiff brought an Administrative Claim pursuant

to the Federal Tort Claims Act against the United States

Postal Service contending that the Postal Service was liable

for sexual assaults committed against several children by one

of its letter carrier employees.

This claim was denied and the Plaintiff filed suit in the

U.S. District Court. The District Court dismissed the

Plaintiff's claim ruling that the actions of the Postal Service

employee were intentional acts, and therefore exempt from

suit under the Federal Tort Claims Act. The Court further

ruled that a claim for negligent supervision was not

appropriately presented on the Plaintiff's Administrative

11

Claim, and therefore, the Court did not have subject matter

jurisdiction to entertain it.

On Appeal, the Second Circuit reversed the District

Court on the issue of the adequacy of the Administrative

Claim reasoning as follows:

Appellants contend that the Administrative

claim filed with the Postal Service alleging

only sexual assault and injury stemming from

it was sufficient to enable them to maintain a

Court action against the United States for

negligent supervision . . . An Administrative

claim need not meet formal pleading

requirements. All that is necessary is that a

claim be specific enough to serve the purposes

intended by Congress in enacting Section )

2675(a)-‘to ease Court congestion and avoid

unnecessary litigation while making it possible

for the government to expedite the fair

settlement of the tort claims asserted against

the United States .. ." Toward this end, the

government requires all claimants to submit

standard Form 95, a one page claim form,

requesting a description of the accident and the

nature and extent of the injury. Appellants’

Administrative claim met these requirements.

By stating the cause of injury, the name of the

employee who committed the assault, and the

date and iocation of the attack, the claim

notified the agency of sufficient factual

circumstances to enable it to investigate the

matter. Although the claim supplied no facts

evidencing negligent supervision and did not

allege all the factual elements of such a theory

12

of liability, a reasonably thorough

investigation of the incident should have

uncovered any pertinent information in the

government's possession relating to the

agency's knowledge or lack of knowledge of

any prior sexual misconduct of its employee

Ojeda . . . . 788 F. 2d at 848-849. (Emphasis

added.)

The Ninth Circuit embraced this school of thought in

Broudy v. United States, 722 F.2d 566 (9 Cir. 1983).

There, the widow of a United States Marine brought an

Administrative Claim pursuant to Section 2675 (a),

contending that he had suffered a service related injury, when

he was exposed to above ground radiation testing while a

member of the Marine Corp. This exposure resulted in his

dying from a form of cancer related to radiation exposure.

The Administrative Claim did not specifically mention any

post service torts allegedly committed by the Government

against the appellant's decedent.

Ultimately, the United States District Court dismissed

the Plaintiff's claim, holding among other things, that because

her Administrative Claim pursuant to Section 2675 (a), did

not specify an independent post service tort, the District Court

had no jurisdiction to entertain it when brought by the

Appellant in her amended Complaint. 722 F.2d at 568. On

Appeal, the Ninth Circuit reversed reasoning as follows:

AS a prerequisite to maintaining suit under the

F.T.C.A., a Plaintiff must first present the

claim to the appropriate Federal agency. After

six months have passed or the agency has

denied the claim, the Plaintiff may bring suit

in Federal Court on the claim . . . Appellant's

13

claim to the Department of Energy complied

with the requirements of Section 2675(a) and

28 C.F.R. Section 14.2(a) as interpreted by

this Court. Her claim states the location and

date of the accident, the nature and extent of

the injury, the dollar amount of the claim, and

a description of how the accident occurred.

Appellant's completed standard Form 95 gave

the agency notice to commence investigation

by providing information concerning the

accident and injury. 7he government however

complains that the Appellant's Administrative

claim does not refer to the separate post-

service tort of the government's alleged failure

to warn. We see nothing in Section 2675(a) or

the regulations which require the claimant to

State with great specificity the legal theories to

be asserted in the eventual F.T.C.A. action

. . . In addition, Appellant's legal theories are

clearly set forth in her pleadings and are

accessible to an interested government agency.

Thus in keeping with the Congressional

purpose of ‘providing fair and equitable

treatment of private individuals and claimants

when they deal with the government, . . .’ we

hold that Appellant satisfied the requirements

of Section 2675(a), and the accompanying

regulations. 722 F.2d at 568-69. (Emphasis

added.)

The Eleventh Circuit Court of Appeals embraced this

same school of thought in Burchfield v. United States, 168

F.3d 1252 (11" Cir. 1999), reasoning as follows:

14

Congress . . . . enacted Section 2675 (a), not

to place procedural hurdles before potential

litigants, but to facilitate early disposition of

Claims . . . . We keep Section 2675 (a),’s

underlying purpose in mind when considering

the amount of information it requires from a

potential litigant. We have held that a Claimant

must give an Administrative agency only

enough information to allow the agency to

begin its own investigation of the alleged

events and explore the possibilities of

settlement . . . . We 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”

168 F.3d at 1255.

The First Circuit Court of Appeals indicated its assent

to this view in Santiago-Ramirez v. Secretary of the

Department of Defense, 984 F.2d 16 (1* Cir. 1993),

reasoning as follows:

We understand a Plaintiff to have satisfied the

notice requirement of Section 2675 if he or she

provides a claim form or “other written

notification” which includes (1) sufficient

information for the agency to investigate the

Claims and (2) the amount of damages sought

. . . . This Circuit approaches the notice

requirement leniently, “recognizing that

individuals wishing to sue the government

must comply with the details of the law, but

also keeping in mind that the law was not

15

intended to put up a barrier of technicalities to

defeat their claims.” . . . A flexible approach

to the notice requirement is in keeping with the

original purpose behind the filing of an

administrative claim: that of allowing the

efficient investigation of the Claim by the

agency without sacrificing the entitlement of a

claimant to his or her cause of action against

the government .. . . In the context of Section

2675, the emphasis is on the agencies’ receipt

of information: it must have enough

information that it may reasonably begin an

investigation of the claim. 984 F.2d at 19.

The D.C. Circuit Court of Appeals adopted a similar

position in GAF Corporation v. United States, 818 F.2d 901

(D.C. Cir. 1987), reasoning as follows:

Thus we hold with the Ninth Circuit and the

majority of Appellant Courts to have

considered the question that Section 2675 (a)

requires a Claimant to file (1) a written

statement sufficiently describing the injury to

enable the agency to begin its own

investigation, and (2) a sum certain damages

claim . . . notice of an injury will enable the

agency to investigate and ascertain the strength

of a claim; the sum certain statement of

damages will enable it to determine whether

settlement or negotiations to that end are

desirable. A presentment of this character

provides the agency all it needs and all to

which it is statutorily entitled, to make final

disposition of claims in accordance with

Section 2675 (a). Claimants who discharge this

16

obligation of notice have satisfied the

jurisdictional requirements of the act, and,

with the running of the six month period

Congress has provided the agencies to make

final disposition of claims presented, are

entitled to file suit. 818 F.2d at 919-920.

This view has also been embraced by the Courts of

Appeal in the Third, Sixth, and Eighth Circuits as well. See,

Tucker v. United States Postal Service, 676 F.2d 954, 958-

959 (3™ Cir. 1982), Douglas v. United States, 658 F.2d 445,

447 (6" Cir. 1981), Farmer’s State Savings Bank v. Farmer’s

Home Administration, 866 F.2d 276, 277 (8" Cir. 1989).

The alternate view, accepted in the Seventh and Tenth

Circuits, calls for a stricter interpretation of the factual

predicate stated in Administrative Claim under the Federal

Tort Claims Act, pursuant to the trained legal reader

requirement. ;

The leading Court of Appeals’ opinion embracing this

approach, is a decision from the Seventh Circuit Court of

Appeals entitled Murrey v. United States, 73 F.3d 1448 (7"

Cir. 1996). There, the Court held that in order to state an

appropriate factual predicate in an Administrative Claim under

the Federal Tort Claims Act, the claim form must contain

such facts as would enable a legally trained reader to infer

from the language of the claim form alone, that a specific

claim is potentially cognizable under the facts stated in the

claim form. 73 F.3d at 1452-1453. In so doing, the Seventh

Circuit specifically rejected the approach of the Fifth Circuit

in Frantz v. United States, Supra, stating as follows: “We do

not go so far as the Fifth Circuit, which in Frantz v. United

States ... . held that a claim of failure to obtain informed

consent is implicit when the Administrative Claim alleges

17

medical negligence and the investigation would turn up the

facts showing that failure.” 73 F.3d at 1453.

Only one other Circuit, the Tenth, has embraced this

stricter school of thought regarding the interpretation of

Administrative Claim forms under the Federal Tort Claims

Act. See, Bradley v. United States, 951 F.2d 268, (10" Cir.

1991). (“Because the F.T.C.A., constitutes a waiver of the

Government’s sovereign immunity, the notice requirement

established by the F.T.C.A., must be strictly construed. . .

.”) By vacating the Opinion of the Hearing Panel Majority in

this case, and affirming the decision of the trial Court, the

Fourth Circuit, in effect, joined the minority view embraced

by the Seventh and Tenth Circuits, without specifically saying

so at the Appellant level.

The difference in the two approaches is clear. Under

the majority view, typified by the Fifth Circuit’s decision in

Frantz, Supra, as long as there is sufficient information in the

Administrative Claim to put the agency on notice that a claim

is in fact being made, and to allow the agency to begin its

investigation of that claim, then the presentment requirements

of Section 2675 (a) are met, assuming a sum certain in actual

damages is demanded as well.

The stricter view, embraced by the Seventh and Tenth

Circuits, and, by implication, the Fourth Circuit, places the

burden upon the Claimant to state enough facts to establish

every part of every legal theory upon which the Claimant

could seek to file suit in U.S. District Court, should the

Administrative Claim be denied by the appropriate agency.

Put another way, under this stricter view, a trained legal

reader must be able to ascertain all claims later raised by the

Claimant in a civil action under the Federal Tort Claims Act,

18

from the factual statements set forth on the Form 95 itself,

without resorting to any further investigation.

It is respectfully submitted that this constitutes a

profound conflict among the Circuits on the vitally important

issue of what constitutes an Administrative Claim factually

sufficient to confer jurisdiction upon the United States District

Court for Tort Claims against the Government under the

Federal Tort Claims Act.

For this reason, it is respectfully submitted that

Certiorari should be granted in this case, pursuant to the

provisions of Supreme Court Rule 10 (a).

Upon this granting of Certiorari, this Court should

reverse the Fourth Circuit’s Summary Order in this matter of

November 17, 2000, and remand this action for trial. In so

doing, this Court should adopt as a national standard, the

approach to adjudging the factual sufficiency of a claimant’s

administrative presentment under Section 2675(a) used by the

~ Fifth Circuit in Frantz and by a majority of the other Circuit

Courts of Appeal.

This Fifth Circuit approach is more logically

consistent with the legislative history of Section 2675(a). The

legislative history of Section 2675 (a) indicates that it was

promulgated in order to ease Court congestion while making

it possible for the Government to expedite the fair settlement

of tort claims brought against the United States by being able

to investigate them pre-suit. 1966 United States Code

Congressional and Administrative News at 2515-2516. It was

also instituted to . . . “provide more fair and equitable

treatment of private individuals and claimants when they deal

with the Government or are involved in litigation with their

Government.” /d.

When a claim for medical negligence is stated in an

administrative claim under Section 2675 (a), the Government

is then on notice that medical malpractice is being alleged,

and they then have the duty to investigate all facets of any

potential medical malpractice claim arising out of the facts

alleged, including that subset of medical malpractice claims

known as informed consent claims. As the Hearing Panel

noted:

A diligent investigation of a medical

negligence claim entails, at the very least, a

general review of the patient’s records with a

special regard to the chain of events leading to

the complained of injury. /ncluded within the

chain of events as the Frantz Court noted are

the circumstances underlying the patient’s

decision to embark on the particular course of

treatment. The overarching theme is the

alleged negligence of the Government’s

employees, and it is of little moment that the

instrument of the Plaintiff's misfortune can be

found in the initiation, planning or execution

of her therapy; regardless of which link proves

defective, the chain of causation remains

unbroken. (App. A at 13a-14a.) (Emphasis

added.)

It is therefore respectfully submitted that the approach

taken by the Fifth Circuit in Frantz, by the Hearing Panel

majority in this case and by the Courts of Appeal in the First,

Second, Third, Fifth, Sixth, Eighth, Ninth, Eleventh and

D.C. Circuits that have followed it, is more in keeping with

the purposes of Section 2675 (a), especially the purpose of

“... provid[ing] more fair and equitable treatment of private

individuals and claimants when they deal with the

20

Government or are involved in litigation with their

Government.” 1966 United States Code Congressional and

Administrative News at 2515-2516.

Il.

THE DECISION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT WRONGLY DECIDES

THE INSTANT CASE, IN THAT UNDER

EITHER STANDARD OF

ADJUDICATION OF ADMINISTRATIVE

CLAIMS, THE UNITED STATES

DISTRICT COURT HAD SUBJECT

MATTER JURISDICTION OVER THE

PETITIONER’S CLAIM AGAINST THE

UNITED STATES FOR MEDICAL

MALPRACTICE BASED UPON FAILURE

TO OBTAIN INFORMED CONSENT.

Under the laxer standard embraced by the Fifth Circuit

in Frantz, Supra, the Fourth Circuit clearly erred in vacating

the Hearing Panel’s majority decision, and in affirming the

United States District Court’s decision, ruling that it did not

have subject matter jurisdiction over the Petitioner’s claim

against the United States for medical malpractice based upon

failure to obtain informed consent.

As the Fourth Circuit’s Hearing Panel majority noted,

this case is almost identical to Frantz. Here, as in Frantz, an

administrative claim was filed pursuant to Section 2675 (a),

which stated a claim for medical malpractice. Therefore, here

as in Frantz, by its very nature, an informed consent claim is

included in this medical malpractice claim. This is especially

true given the fact that the State Law that was before the

21

Court in Frantz is almost identical on this issue to the State

law that was before the Hearing Panel in this case.

In Frantz, the Fifth Circuit relied on a Texas Statue

which brought medical malpractice claims and claims for

failing to obtain informed consent into one. 29 F.3d at 224

(noting that under Texas law, a suit for the failure of doctor

to fully inform a patient of the risks of surgery sounds in

negligence).

The same is true under the applicable provisions of

South Carolina law before the Court in this case.

Under South Carolina law, the Doctrine of Informed

Consent applies to physicians and, pursuant to it, a physician

must disclose to a patient all information that a reasonable

medical practitioner would make under the same or similar

circumstances. Hook v. Rothstein, 281 S.C. 541, 316 S.E. 2d

690, 695 and 698 (Ct. App. 1984) Cert. den’d. 283 S.C. 64,

320 S.E. 2d 35 (1984). The Court, in Hook, also noted as

follows:

An informed consent action is no different from

any other action for professional malpractice.

Underlying every medical malpractice action is

the basic principal that the physician departed

from a standard of reasonable medical care

. . As in other cases involving medical

malpractice, when a patient alleges that an

unrevealed hazard has caused them injury, the

jury must determine whether under the facts of

the case, the physician departed from the

standard of care of the _ reasonable

practitioner. 316 S.E. 2d at 696-97.

(Emphasis added.)

22

Therefore, the state of Texas, by statue, stated that a

claim for failure to give informed consent was in fact, a

medical malpractice claim sounding in negligence. In South

Carolina the same has been done by common law decision in

Hook v. Rothstein, Supra.

The Hearing Panel majority noted as much when it

stated “ ... . it is apparent that, in South Carolina, an

informed consent claim is a specific subset of the larger

universe of medical malpractice actions.” (App. A at 15a.)

Therefore, the Administrative claim in this case put

the Government on notice of a claim for medical negligence.

At this point, as the Hearing Panel majority noted, it

was up to the Government to fully investigate the matter and

fill in the details by asking the right questions beginning with

“Were the risks of selecting Depo-Provera as a contraceptive

reasonably and accurately explained to Sterling’s Mother

before we embarked on that course of treatment?” (App. A at

19a-20a.)

In other words, when the Government was placed on

notice of a medical malpractice claim, it had a duty to

investigate all possible theories under which such a medical

malpractice claim could have proceeded, including the theory

of informed consent. This is underscored by the fact that this

basis of the claim was uncovered by an assistant U.S. attorney

in a brief pre-answer Deposition of the Appellant, Martha

Drew. (See, e.g. App. K at 134a.)

As the Hearing Panel majority noted, the fact that the

Government did not ask these right questions, does not

deprive the Appellants in this case of a Federal remedy for the

alleged birth defects suffered by their child:

23

The Government in this case was neither

compelled by the Plaintiff's administrative

claim to peruse “voluminous records”, nor

forced to engage in a scavenger hunt for bases

of liability far afield from that easily gleaned

from the factual predicate. The Government

was, however, required to familiarize itself

with the available records and conduct a

reasonable investigation-one of adequate depth

to ascertain the likely sources of its liability, if

any. That it failed to do this in this case does

not deprive the Plaintiffs of a Federal remedy.

(App. A at 24a.)

Even under the trained legal reader standard, typified

by the Seventh Circuit’s decision in Murrey, Supra, the

District Court in this case still had subject matter jurisdiction

over the Petitioners’ claim for medical malpractice against the

United States, based upon an alleged failure to obtain

informed consent.

As the Court in Murrey noted, if, from the factual

statements in the Form 95 alone, a trained legal reader could

reasonably infer the presence of an informed consent claim,

then the District Court has jurisdiction over such a claim

when it is brought after denial by the agency of the

Administrative Claim. In fact, the Administrative Claim in

this case which stated a total claim in the amount of actual

damages of $15 million dollars, was required to be reviewed

by a trained legal reader, pursuant to Justice Department

regulations, and specifically 28 C.F.R. Section 14.5, which

provides as follows:

The authority to adjust, determine,

compromise and settle a claim under the

24

|

|

|

|

provisions of section 2672 of title 28 of the

United States Code, shall, if the amount of a

proposed compromise, settlement, or award

exceeds $5,000.00, be exercised by the head

of an agency or his designee only after review

by a legal officer of the agency.

_ Upon review by a trained legal reader, the language

set forth in Paragraph 8 of the Petitioner’s Form 95 in this

case, quite reasonably should have led such a trained legal

reader to infer that a claim for medical malpractice based

upon a failure to obtain informed consent was in fact there.

This is because such a trained legal reader is chargeable with

knowledge of the substantiative law of the state in which the

alleged federal tort claim arose given the fact that actions

under the FTCA apply the substantive tort law of the state in

which they originate. In this case, that state is South Carolina

and under South Carolina law informed consent claims are

just another basic type of claim for medical negligence. See,

Hook v. Rothstein, Supra. Therefore, when a trained legal

reader familiar with South Carolina law reads language in a

form 95, which states a claim for medical negligence, he or

she reasonably should ask, was the claimant fully informed of

the dangers of the procedure or the drugs that he or she claims

were negligently administered and caused him or her damage?

In other words, a claim for medical negligence should raise a

question in the mind of a legal reader well versed in South

Carolina medical negligence law as to whether or not

informed consent was obtained.

Hence, construing the Petitioner’s Form 95, under

either the majority or minority view, the conclusion should be

the same: that their factual predicate at Paragraph 8 of their

Form 95 was sufficient to confer jurisdiction of the United

States District Court to entertain their claim for medical

25

malpractice based upon a failure to obtain informed consent.

CONCLUSION

For all of the reasons set forth above, a writ of i

Certiorari should issue to review the Order of the United

States Court of Appeals for the Fourth Circuit which vacated

a majority decision of the Hearing Panel of that same court.

Ultimately, that Summary Order of the Fourth Circuit should

be reversed and this action should be remanded to the

jurisdiction of the United States District Court for the District

of South Carolina for trial.

=

Respectfully submitted,

WEINBERG, BROWN AND CURTIS

/s/

M. M. WEINBERG, Jr.

Counsel of Record

M. M. WEINBERG, III.

109 NORTH MAIN STREET

POST OFFICE BOX 1289

SUMTER, SOUTH CAROLINA 29151-1289

(803) 775-1274

Counsel for Petitioners

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

[Filed June 27, 2000]

No. 99-1009

STERLING DREW, a minor under

the age of thirteen years, by

guardian ad litem Martha Drew;

MARTHA DREW; JEBEDIAH

DREW,

Plaintiffs-Appellants,

Vv.

UNITED STATES OF AMERICA,

Defendant-Appellee.

ha? tae SO ay Cet Ne Ca a a a te

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

- Dennis W. Shedd, District Judge.

(CA-98-1817-3-19)

Argued: January 27, 2000

Decided: June 27, 2000

la

Court of Appeals Opinion - 6/27/00

Before WILLIAMS, MICHAEL, and KING, Circuit Judges.

OPINION

KING, Circuit Judge:

The infant Sterling Drew ("Sterling") and his parents

appeal the dismissal of their action under the Federal Tort

Claims Act ("FTCA") for injuries allegedly caused by birth

control medication administered by medical personnel of the

United States Air Force. The district court decided that it

lacked jurisdiction over the subject matter because the claim

had not been properly exhausted, as required by the FTCA.

More specifically, the court determined that the Drews’

administrative claim failed to provide the Air Force with

sufficient notice of its factual and legal bases. For tile reasons

explained below, we vacate the dismissal and remand for

further proceedings.

I.

A.

The plaintiffs filed suit against the Government,

seeking damages for prenatal injuries to Sterling. These

injuries were allegedly caused by the birth control drug Depo-

Provera, which had been administered to Sterling's mother,

Martha Drew, by physicians at Shaw Air Force Base in South

Carolina. Mrs. Drew's husband, Jebediah, is an enlisted

serviceman on active duty with the Air Force, and the family

lives on the base.

Court of Appeals Opinion - 6/27/00

In their initial complaint, the plaintiffs alleged that

Mrs. Drew was negligently given Depo-Provera while she

was pregnant with Sterling. The complaint alleged that, as a

result, Sterling was born with physical malformations

(including an imperforate anus and a ventricular septal defect

in his heart), and he will continue to suffer from various other

genetic and developmental disorders. The complaint sought

compensation for Sterling for his injuries, and it also sought

recovery by his parents of the expenses of Sterling's medical

care.

In discovery, it developed that Mrs. Drew was not

given Depo-Provera while pregnant, but rather became

pregnant after she had been administered Depo-Provera, while

the drug remained in her system. The plaintiffs thus amended

their complaint to conform to the evidentiary record, asserting

a cause of action for the negligent failure of Air Force

medical personnel to obtain Mrs. Drew's informed consent

prior to the administration of Depo-Provera.

Correspondingly, the Government moved to dismiss

the amended complaint, pursuant to Rule 12(b)(1) of the

Federal Rules of Civil Procedure. The Government contended

that the district court lacked subject matter jurisdiction to

entertain the informed-consent claim, asserting that it was not

encompassed within the administrative claim filed with the

Air Force, as required by 28 U.S.C. § 2675(a). The district

court, on December 1, 1998, granted the Government's

motion and dismissed the amended complaint with prejudice.

It is from this dismissal order that the plaintiffs appeal.

3a

Court of Appeals Opinion - 6/27/00

B.

Between 1992 and 1995, Mrs. Drew became pregnant

on five occasions while using traditional birth control

medications. Of these five pregnancies, three resulted in live

births and two terminated in miscarriages. After her fourth

pregnancy, Mrs. Drew sought birth control counseling at

Shaw Air Force Base. In the course of this counseling, Mrs.

Drew was encouraged by various medical personnel at Shaw

to use Depo-Provera as a means of birth control. According

to her testimony, Mrs. Drew was advised by the medical

personnel that Depo-Provera was one hundred percent

effective in preventing live births. She was further told there

was a mere one chance in one thousand that she might become

pregnant while on Depo-Provera, and that if she did, the

pregnancy would spontaneously abort.

Pursuant to this advice, Mrs. Drew consented to

Depo-Provera therapy for birth control purposes. She received

her first injection of Depo-Provera on July 28, 1994; a second

injection on October 24, 1994; and a third injection on or

about February 1, 1995. Despite this preventative regimen,

Mrs. Drew again became pregnant, and she was so diagnosed

at Shaw on May 30, 1995. Contrary to the representations

made by the Government’s medical personnel, the pregnancy

did not spontaneously abort, but culminated in the birth of

Sterling on December 30, 1995. The plaintiffs maintain that

Sterling's myriad birth defects are the result of being exposed

to Depo-Provera in utero.

On November 21, 1996, after Sterling was diagnosed

with his multiple problems, the Drews filed a claim for

damages with the Air Force, pursuant to the FTCA. This

4a

Court of Appeals Opinion - 6/27/00

administrative claim, submitted on a Standard Form 95 (“SF-

95"), alleged the following as its factual predicate:

Spontaneous delivery of male infant with

imperforate anus, ventricular septal defect, left

facial palsy, umbilical hernia and inguinal

hernia at Shaw Air Force Base Hospital. Depo-

Provera injection given to claimant in early

pregnancy.

J.A. 94 (emphasis added). Over a year later, on December

23, 1997, the claim was denied by the Air Force.

On June 22, 1998, the plaintiffs timely filed their

complaint in the district court, seeking compensation from the

Government for birth defects caused by Depo-Provera and

asserting, in accordance with the administrative claim, that

Mrs. Drew was given Depo-Provera while she was in fact

pregnant with Sterling. Thereafter, on October 30, 1998, the

plaintiffs amended the complaint to restate their claim for

medical negligence as one based upon lack of informed

consent.

Il.

The FTCA prohibits the filing of a civil action against

the Government unless the underlying claim is "first

presented" to the appropriate federal agency and subsequently

denied. 28 U.S.C. § 2675(a).'

' The pertinent portion of the statute at issue provides as

follows:

Sa

Court of Appeals Opinion - 6/27/00

Where such a claim is not first presented to the appropriate

agency, the district court must, pursuant to Fed. R. Civ. P.

12(b)(1), dismiss the action for want of subject matter

jurisdiction. See McNeil v. United States, 508 U.S. 106

(1993) (upholding dismissal of suit against Government where

plaintiff had not exhausted available administrative remedies);

see also Henderson v. United States, 785 F.2d 121, 123 (4th

Cir. 1986) (exhaustion requirements is "jurisdictional''). We

review de novo the district court's determination that the

plaintiffs failed to properly exhaust their claim under the

FTCA. Robb v. United States, 80 F.3d 884, 887 (4th Cir.

1996).

Il.

A.

1.

The plaintiffs rely on the principle that a district court

is not divested of jurisdiction under the FTCA where the

An 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

Agency and his claim shall have been finally

denied by the agency in writing and sent by

certified or registered mail.

28 U.S.C. § 2675(a) (emphasis added).

6a

Court of Appeals Opinion - 6/2700

claim presented in court is “reasonably related” to the claim

presented to the administrative agency. See Harris v. United

States, 797 F. Supp. 91 (D.P.R. 1992). Harris involved the

alleged assault and battery of two third-grade pupils by their

teacher at an elementary school located on a naval base. The

plaintiffs asserted in their administrative claim that the

Government-run school was liable in a supervisory capacity

for the torts of its employee; before the district court,

however, the plaintiffs shifted gears a bit, alleging in their

complaint that the school had breached an independent duty to

protect its students.

In denying the Government's motion to dismiss, the

district court observed:

Although a filing of an administrative claim

pursuant to 28 U.S.C. §2675(a) is a

jurisdictional prerequisite to judicial action, its

purpose is essentially to give notice to the

Government, to conduct a meaningful

investigation to adequately defend itself. It is

not bound by the standards applicable to court

proceedings.

Id. at 93 (footnote omitted). The court noted further that "the

legal basis for relief need not be specified . . . and alternate

theories of liability can be presented at judicial proceedings."

Id. (citing Broudy v. United States, 722 F.2d 566, 568-69 (9th

Cir. 1983), for the former proposition, and Johnson by

Ta

Court of Appeals Opinion - 6/27/00

Johnson v. United States, 788 F.2d 845, 849 (2d Cir. 1986),

for the latter).”

2.

In response, the Government reminds usthat, although

the FTCA is intended to waive the sovereign immunity of the

United States, Department of the Army v. Blue Fox, Inc., 525

U.S. 255, 260 (1999), such a waiver "will be strictly

construed, in terms of its scope, in favor of the sovereign."

Lane v. Pena, 518 U.S. 187, 192 (1996) (citing cases).

According to the Government, a strict construction of the

FTCA behooves us to parse the plaintiffs' complaint to

determine in what respect, if any, it deviates from their prior

administrative claim; to the extent that the court pleadings

arguably broaden the grounds for relief beyond those

previously stated, the Government urges that we reject the

corresponding claim as unexhausted.

2 In short, the essentials of a proper administrative claim

are even less exacting than the liberal notice-pleading standards

applicable to federal court complaints. Johnson, 788 F. - at tote

("[A]n administrative claim need not meet formal p

requirements... ."); Michels v. United States, 815 F.S Supp. 124

1257 n.16(S. D. lowa 1993) (citing Johnson); Harris, 7 Supp.

at 93 (quoting Johnson).

8a

Court of Appeals Opinion - 6/27/00

B.

1.

We repudiate the notion that the validity of a judicial

complaint under the FTCA depends on it having been cloned

from its predecessor, the administrative claim. We instead

agree with the Harris court that the proper focus is on

whether the administrative claim affords the Government with

adequate notice to properly investigate the underlying incident

so that it may either reasonably assess its liability or

competently defend itself. See Ahmed v. United States, 30

F.3d 514, 517 (4th Cir. 1994) ("Section 2675(a) of Title 28

and 28 C.F.R. § 14.2(a) require two elements for sufficient

presentment of a claim to an agency: 1) written notice

sufficient to cause the agency to investigate, and 2) a sum-

certain value on the claim.") (citation omitted).’

Under the initial prong of the presentment

requirement, then, the salient question is whether, in light of

> In enacting Section 2675, Congress sought "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. 2 (1966) ("S. Rep."), reprinted in 1966

U.S.C.C.A.N. 2515, 2516. Section 2675's requirement that a claim

be filed before instituting suit is designed to bring the claimants’

allegations to the immediate attention of the relevant agency. The

purpose of this notice is "to protect the [Government] from the

expense of needless litigation, give it an opportunity for

investigation, and allow it to adjust differences and settle claims

without suit." S. Rep. at 7; 1966 U.S.C.C.A.N. at 2517.

9a

Court of Appeals Opinion - 6/27/00

all the circumstances of a particular case, the notice afforded

the Government by the claimant is sufficient. In Richland-

Lexington Airport Dist. v. Atlas Properties, Inc., 854 F.

Supp. 400 (D.S.C. 1994), our distinguished colleague Judge

Traxler accurately noted that "[t}he sufficiency of the notice

requirement under § 2675(a) ‘is more than a question of

technical niceties.'" /d. at 409 (quoting Keene Corp. v. United

States, 700 F.2d 836, 842 (2d Cir. 1983)). He elaborated:

{[NJotice 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 provide a sufficient

factual predicate so that his claim can be

investigated.

Atlas Properties, 854 F. Supp. at 412 (quoting Keene

Corp., 700 F.2d at 842).*

* Judge Traxler concluded that the sufficiency of the notice

at issue (a series of letters between the plaintiff and the

Environmental Protection Agency) was "a close question,” but that

the plaintiff's claim had not been exhausted in any event because of

the failure of the second prong of the presentment requirement,

i.e., the omission from the correspondence of a demand for a sum

certain as damages arising from the claim. Atlas Properties, 854 F.

Supp. at 413.

10a

Court of Appeals Opinion - 6/27/00

We turn now to evaluate the circumstances of the case

before us. We must determine whether the factual predicate

alleged by the plaintiffs in their administrative claim afforded

sufficient notice to the Government to investigate the

underlying conduct, such that it could reasonably assess the

extent of its liability vis-a-vis the complaint that was

subsequently filed.’

In performing our evaluation, we find it helpful to first

consider a hypothetical claim -- one very similar to the actual

claim but with the last three words of the factual predicate

omitted:

Spontaneous delivery of male infant with

imperforate anus, ventricular septal defect, left

facial palsy, umbilical hernia and inguinal

hernia at Shaw Air Force Base Hospital.

Depo-Provera injection given to claimant.

The rationale for our approach is simple: if this hypothetical

predicate -- consisting solely of facts that we must presume to

be true -- is insufficient notice of an informed-consent claim,

then the further assertion that the injection occurred "in early

pregnancy," demonstrably incorrect, could not have remedied

5 There is no question that the second prong of the

presentment requirement was fulfilled here. The SF-95 filed by the

Drews claims damages for personal injury in the amount of $15

million.

lla

Court of Appeals Opinion - 6/27/00

the deficiency. Only if the hypothetical predicate passes legal

muster will we be constrained to examine whether the

additional words "in early pregnancy” would somehow render

it insufficient.

In Frantz v. United States, 29 F.3d 222 (Sth Cir.

1994), the court of appeals addressed the district court's

dismissal of an informed-consent claim that was nowhere

explicitly mentioned in the SF-95, which merely alleged

negligence in the care and treatment of the plaintiff at a

Veterans Administration hospital. The Fifth Circuit

nonetheless reversed, concluding that the notice afforded the

Government was sufficient:

The administrative claim provided the date,

location, and description of Mr. Frantz's

injury ... . Moreover, the claim named "{a]ll

medical personnel who cared for Chester

Frantz" as potential witnesses ... .

Furthermore, the Government's investigation

of the administrative claim should have

revealed the possibility of an informed consent

claim. Under Texas law, a suit for the failure

of a doctor to fully inform a patient of the risks

of surgery sounds in negligence... . By its

very nature, the informed consent claim is

included in the Frantzes' allegation of

negligence in their administrative claim. 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.

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Id. at 224-25 (citations and footnotes omitted) (emphasis

added). In essence, the Fifth Circuit held in Frantz that there

is an obligation on the part of the Government to conduct a

diligent investigation, once it has been notified that it may be

liable for the acts of its employees.

We would be hard-pressed to disagree. The

presentment requirement of the FTCA confers upon the

Government an advantage that most prospective tort

defendants lack: an opportunity for informal fact-gathering

and deliberate reflection. Once suit has been filed and the

battle joined, discovery proceeds within rigid parameters, and

pensiveness is a luxury not easily indulged.

In recognition of this freedom from litigation by

ambush on which Congress has conditioned the sovereign's

waiver of immunity, it is incumbent upon the courts to

encourage the sovereign's agents to proceed as its lawmakers

have evidently intended. Liability in a given situation cannot

be thoroughly and thoughtfully assessed without accurate and

complete information; the Government must therefore be

charged with the duty to reasonably pursue the relevant facts,

rather than being permitted to fall back on a few typed

sentences appearing on a pre-printed form.

A diligent investigation of a medical negligence claim

entails, at the very least, a general review of the patient's

records with especial regard to the chain of events leading to

the complained-of injury. Included within that chain of

events, as the Frantz court noted, are the circumstances

underlying the patient's decision to embark on the particular

course of treatment. The overarching theme is the alleged

negligence of the Government's employees, and it is of little

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moment that the instrument of the patient's misfortune can be

found in the initiation, planning, or execution of her therapy;

regardless of which link proves defective, the chain of

Causation remains unbroken.

Hence, what might appear at first blush to be distinct

claims are actually; little more than alternative legal theories

applicable to the same set of operative facts, akin to the

situation in Harris, discussed supra at Part III.A. 1. This is

the import of the Fifth Circuit's observation, set forth above,

that "[b]y its very nature,” an informed-consent "claim" is

included within a general allegation of negligent care and

treatment. The plaintiff in Frantz claimed "negligence in

surgery,” the Texas courts had previously held that an

informed-consent action sounds in negligence, and the Fifth

Circuit declined to limit the words "in surgery” to the narrow

procedure in which the treatment process culminated. Frantz,

29 F.3d at 224 & nn. 6-7.

South Carolina, like Texas, recognizes a cause of

action for negligence where a physician fails to “inform a

patient of the material risks inherent in a proposed treatment

or procedure.” Hook v. Rothstein, 316 S.E.2d 690, 698 (S.C.

Ct. App.), cert. denied, 320 S.E.2d 35 (1984).° And South

° The FTCA authorizes federal agency heads and the

Attorney General (or her designee) to settle claims against the

Government for money damages “under circumstances where the

United States, if a private person, would be liable to the claimant

in accordance with the law of the place where the act or omission

occurred[.]" 28 U.S.C. § 2672. Section 2674 confirms that "[t}he

United States shall be liable, respecting the provisions of this title

relating to tort claims, in the same manner and to the same extent

as a private individual under like circumstances... . " An

examination of the relevant state law, if any, is therefore necessary

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Carolina, in the context of discussing the evidence that the

plaintiff must adduce to prevail on an informed-consent claim,

has acknowledged the relatedness between the various actions

that might arise from the course of a patient's treatment:

An informed consent action is no different

from any other action for professional

malpractice. Underlying every medical

malpractice action is the basic principle that

the physician departed from a standard of

reasonable care . . . . Because the question of

whether the physician has acted unreasonably

often involves the exercise of medical

judgment, we feel that, in most cases, expert

medical testimony is just as necessary to

establish negligence in failing adequately to

disclose as it is to prove negligence in failing

to treat or diagnose properly.

Hook, 316 S.E.2d at 696-97. From this discussion by the

Court of Appeals of South Carolina in Hook, it is apparent

that, in South Carolina, an informed-consent claim is a

specific subset of the larger universe of “medical malpractice

actions."

In our view, the hypothetical predicate gives notice of

a "medical malpractice action," which includes the possibility

of an informed-consent claim. As was the case in Frantz, the

hypothetical claim describes the claimant's injuries and,

to determine the extent of the Government's liability in a particular

case.

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elsewhere in the SF-95, specifies the date and place of their

occurrence. Moreover, the hypothetical claim names as

potential witnesses "[aJll medical personnel related to this

specific case," in a fashion nearly identical to the claim at

issue in Frantz.

In light of the similarity of the hypothetical claim to

the one at issue in Frantz, it should come as no surprise that

our conclusion with respect to the former is the same as the

Fifth Circuit's concerning the latter: the information contained

within sufficed to compel the Government to thoroughly

investigate the possibility that some or all of the claimant's

injuries were attributable to an employee's breach of his duty

to obtain the patient's informed consent.

b.

Of course, we are not dealing with a hypothetical

claim in this case. We must therefore decide whether the

additional, incorrect information actually alleged -- that Mrs.

Drew was administered Depo-Provera "in early pregnancy" --

so narrowed the scope of a reasonable investigation that the

Government may be said to have been without notice, and

thus excused from failing to discover the essence of the

plaintiffs’ claim.

Although we can imagine a situation where a

misstatement in an SF-95 could affirmatively mislead the

Government such that an otherwise sufficient notice would be

nullified, this is not one of those situations. The Government

had complete access to Mrs. Drew's medical file at Shaw Air

Force Base; those records reflected that Mrs. Drew had

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received her last injection of Depo-Provera weeks or months

prior to Sterling's conception.’

Indeed, the Government was fully aware that Mrs.

Drew could not have been given Depo-Provera during her

pregnancy, as illustrated by the letter denying her

administrative claim:

There are several reasons for my denial. You

allege that Mrs. Drew received an injection of

Depo-Provera early in her pregnancy with

Sterling Drew, which caused Sterling's birth

defects. Sterling Drew was born on 29

December 1995 [sic]. The record Clearly

demonstrates that the last documented injection

was given on 24 October 1994, more than 14

months prior to Sterling's birth. Even if we

accept that the final injection was given on or

about 1 February 1995, as Mrs. Drew asserts,

that is still 11 months prior to Sterling's birth.

It does not appear possible that Mrs. Drew

could have received an injection of Depo-

Provera while she was pregnant with Sterling.

: According to Mrs. Drew's deposition testimony, she

received a subsequent injection of Depo-Provera from the Shaw

medical staff on or about February 1, 1995, see Part I-B, supra, but

this instance is not documented in the hospital records. Assuming

that Mrs. Drew's recollection is accurate, she still would have

received her final treatment well before the onset of her pregnancy,

which is acknowledged to have occurred in mid-to-late April.

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Injections of Depo-Provera are effective for

contraception for at least 12 weeks. This

makes it highly unlikely that Mrs. Drew

received an injection on 1 or 2 February, as

she claims. However, it is certainly possible,

as with any contraceptive method, for the

Depo-Provera to have failed to prevent

pregnancy. This hardly amounts to evidence

of negligence. It is also possible that if the

Depo-Provera had been injected in early

February, Sterling Drew may have been

exposed to progesterone pre-natally.

However, there is no scientific basis for

attributing any of his developmental anomalies

to intra-uterine hormone exposure. Thus, not

only is there no evidence of negligence in the

care rendered to Mrs. Drew, there is no

evidence that any act or omission relative to

her OB/GYN care causally contributed to

Sterling's unfortunate conditions.

Letter from Major Eric S. Israel, Chief, Medical Law Branch,

Tort Claims and Litigation Division, Air Force Legal Services.

Agency, to M.M. Weinberg, III, Attorney for the Drews

(Dec. 23, 1997) (emphasis added).*

® This letter was, rather inexplicably, omitted from the

record below. At our request, counsel for the parties have provided

us with a copy. Although our dissenting colleague chides us for

taking note of the letter, post at 23, we refer to it primarily to

demonstrate how far afield the Government's inquiry was from the

crux of the claim ultimately asserted, a point on which there

appears no dispute. We instead part ways with the dissent over the

likely reason for the miscue: while we take Judge Williams to argue

that the Government was affirmatively misled by the allegations of

18a

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The denial letter is interesting in several respects.

First, there is no mention of any investigation concerning

whether Mrs. Drew was properly informed of the risks of

Depo-Provera therapy. Second, even if such an investigation

had been undertaken, it is plain that the Government's

position regarding its liability would not have been different,

inasmuch as the letter contends that Sterling's injuries were

not caused by exposure to Depo-Provera. Lastly, if Mrs.

Drew's account of what she was told by the Shaw medical

staff is believed, i.e., that Depo-Provera was one hundred

percent effective in preventing live births, the admissions

contained in the last-quoted paragraph (not to mention

Sterling's very existence) belie the reasonableness of that

advice.

c.

We accordingly conclude that the administrative claim

filed in this case provided the Government with notice

sufficient to evaluate its liability for damages. The Air Force

was notified that a child suffering from numerous physical

defects had been born in one of its base hospitals, and that

these defects had allegedly resulted from the dispensing of

Depo-Provera by one of its employees. At this point, it was

up to the Government to fully investigate the matter and fill

in the details by asking the right questions, beginning with

"Were the risks of selecting Depo-Provera as a contraceptive

the administrative complaint, we believe that the Government

simply failed at the threshold to undertake an adequate

investigation. See infra Part III.B.2.c.

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reasonably and accurately explained to Sterling's mother

before we embarked on that course of treatment?" That the

claim form contained a minor factual inaccuracy should not

have deterred the Government from acting reasonably by

dotting its "i"s and crossing its "t"s.°

* The dissent, post at 23, is quick to point out that (1) the

complaint initially filed in the district court did not plead the

specifics of the informed-consent claim, inasmuch as its existence

was not made plain until Mrs. Drew was deposed by the

Government, see supra at 3; and (2) Mrs. Drew agreed to continue

Depo-Provera therapy in February 1996, about six weeks after

Sterling was bom. Neither of these circumstances persuade us that

we should reach a different result in this case.

Of course, anything that counsel for the Drews may (or

may not) have known about the details of his clients’ claims prior

to filing suit is of secondary importance to what the Government

was obliged to ascertain under the FTCA. Indeed, we daresay that

had the Government asked Mrs. Drew the same questions in its

initial investigation as it did during her deposition, there would

have been little need to litigate the question of notice.

As for Mrs. Drew's continued use of Depo-Provera, the

record does not reveal when she began to suspect that the drug may

have caused Sterling's birth defects (though we can surmise that it

was prior to her seeking the advice of counsel in August 1996, see

J.A. 61). Any significance that might be ascribed to Mrs. Drew's

actions in this regard, however, relates strictly to the merits of her

informed-consent claim; it is wholly irrelevant to the discrete issue

before us, i.e., whether the claim may be properly alleged to begin

with. In fact, although the dissent interprets Mrs. Drew's post-event

use of Depo-Provera as evidence that she accepted the risks

associated with the drug (thus relieving the Government of its

burden to investigate this aspect of its treatment), it seems to us just

as likely that her actions evidenced a misapprehension of the

magnitude of those risks.

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3.

We recognize that our decision today may be in some

tension with that in Murrey v. United States, 73 F.3d 1448

(7th Cir. 1996). In Murrey, as in Frantz and this case, the

Government argued for the dismissal of the plaintiff's

informed-consent claim on the ground that it had not been

alleged in the SF-95. Judge Posner began his analysis as

[T]o 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. The statute

requires a plaintiff to file his or her "claim"

with the relevant agency . . . in layman's

terms a legal basis for suit. The plaintiff has

two such bases. The main one . . . is

negligence in the treatment of Mr. Murrey

when, on the morning following the operation,

he began to hemorrhage internally. The

subordinate one is the failure to obtain his

informed consent to the operation. They are

therefore separate claims within the meaning

of the civil rules.

Murrey, 73 F.3d at 1451. Judge Posner acknowledged,

however, that "the fact that failing to file a timely

administrative claim has such a fell consequence argues for

greater liberality in determining whether the administrative

claim is adequate," id. at 1452, observing that "the claim

encompasses any cause of action fairly implicit in the facts."

Id. Judge Posner continued:

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We do not go so far as the Fifth Circuit, which

in Frantz v. United States . . . held that a

claim of failure to obtain informed consent is

implicit when the administrative claim alleges

medical negligence and investigation would

turn up the facts showing that failure. We

agree rather . . . that the administrative claim

must narrate facts from which a legally trained

reader would infer a failure to obtain informed

consent.

Murrey, 73 F.3d at 1453."°

It is fair to say, based on Judge Posner's opinion in

Murrey, that the Seventh Circuit, if faced with the question

before us, would likely conclude that the notice submitted in

this case was insufficient to confer jurisdiction on the district

court over the Drews' informed-consent claim. To the extent

that our sister circuit would require a more detailed exposition

than we approve today, we respectfully disagree that such is

10 Judge Posner ultimately concluded that the required

threshold had been met, noting that the document filed with the

Department of Veterans Affairs included the following statement:

On November 15, 1989, Tom [Murrey] entered

the Veterans Hospital in North Chicago to undergo

a radical prostatectomy. He was extremely fearful

of this surgery. However, V.A. physicians assured

him and his family that surgery was the onl

available therapy, and that it would extend his life

by 15 years.

Murrey, 73 F.3d at 1452 (brackets in original).

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necessary. We instead align ourselves with the view of the

Fifth Circuit as set forth in Frantz, in agreement with the

Eleventh Circuit's most recent pronouncement on the matter:

Congress . . . enacted section 2675(a) not to

place procedural hurdles before potential

litigants, but to facilitate early disposition of

claims. . . . We keep section 2675(a)'s

underlying purpose in mind when considering

the amount of information it requires from a

potential litigant. We have held that a claimant

must give an administrative agency only

enough information to allow the agency to

“begin its own investigation” of the alleged

events and explore the possibility of

settlement. . .. We 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."

Burchfield v. United States, 168 F.3d 1252, 1255 (llth Cir.

1999) (citations omitted). Mindful, however, that our decision

today not be construed to effectively vitiate the notice prong

of the FTCA's presentment requirement, we issue the same

caveat as did the Eleventh Circuit:

Our holding does not mean that agency

investigations must go beyond the scope of the

matters alleged in administrative claims.

Section 2675(a) does not require an agency to

undertake an independent search for injuries or

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theories of liability that are not closely related

to the matters described in the claim. . . . Nor

does our interpretation of the statute mean that

an agency will be on notice of all the facts

contained in voluminous records presented by

a claimant, if the claimant has not pointed to

specific sources of injury. . . . Finally, a claim

may be so vague or lacking in detail that the

agency cannot be expected to initiate any

investigation at all.

Id. at 1256-57 (citations omitted).

The Government in this case was neither compelled by

the plaintiffs’ administrative claim to peruse "voluminous

records,” nor forced to engage in a scavenger hunt for bases

of liability far afield from that easily gleaned from the factual

predicate. The Government was, however, required to

familiarize itself with the available records and conduct a

reasonable investigation -- one of adequate depth to ascertain

the likely sources of its liability, if any. That it failed to do so

in this case does not deprive the plaintiffs of a federal remedy.

IV.

For the foregoing reasons, the judgment of the district

court is vacated, and the case is remanded for further

proceedings consistent with this opinion.

VACATED AND REMANDED

WILLIAMS, Circuit Judge, dissenting:

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“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 negligence

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 14, the

administrative claim certainly would constitute sufficient

25a

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notice to the Government of a potential informed consent

claim. We need not deal with hypotheticals 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’

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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." Jd. at 1012 (internal

quotation marks omitted).

II.

Adopting the broad rule of Frantz v. United States, 29

F.3d 222 (Sth Cir. 1994), the 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.' I cannot agree with the

' In Frantz v. United States, 29 F.3d 222 (Sth 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." /d. 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. Jd. The court further

reasoned that the Government's investigation of the negligence

claim should have revealed the rere! 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." /d. 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." Jd.

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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, 316 S.E.2d 690, 696-97 (S.C. Ct. 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, 400 S.E.2d

502, 508 (S.C. Ct. 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.

Rosen-blum'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." Jd. at 1451. And, although the

Murrey court concluded that the administrative claim provided

sufficient facts to notify the Government of the informed

consent claim,’ it explicitly rejected Frantz, stating that "the

2 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

28a

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administrative claim must narrate facts from which a legally

trained reader would infer a failure to obtain informed

consent." /d. 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)).?

Here, unlike Murrey, there is absolutely no indication

in the administrative complaint that Drew was asserting an

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." /d. 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.'" /d. at 1255 (internal citations omitted).

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

i t search for injuries or theories of liability that are not

closely related to the matters described in the claim." Jd. at 1256

(emphasis added).

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informed consent claim.‘ 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 Murrey court would

reach the opposite conclusion.°

* 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.” /d. 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 14. This

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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 12, these records contaii an

important fact that would have further deterred the

Government from anticipating an informed consent claim

from the administrative complaint -- Mrs. Drew took

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.

3la

Court of Appeals Opinion - 6/27/00

additional doses of Depo-Provera after her child was born

with a defect.° 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?

Hil.

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.

® 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.

32a

Court of Appeals Opinion - 6/27/00

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 FI'CA's presentment requirement," ante at 17,

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 Drcws' 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.

33a

—_—_———— ee

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

[Filed November 17, 2000]

No. 99-1009

CA-98-1817-3-19

STERLING DREW, a minor under )

the age of thirteen years, by )

guardian ad litem Martha Drew; )

MARTHA DREW; JEBEDIAH )

DREW, )

Plaintiffs-Appellants, )

)

)

)

)

¥.

UNITED STATES OF AMERICA,

Defendant-Appellee.

RUN OER ARGON et Spe Oe

. were a Ss . =

)

sal

Before WILKINSON, Chief Judge, and WIDENER,

WILKINS, NIEMEYER, LUTTIG, WiLLIAMS,

MICHAEL, MOTZ, TRAXLER, and KING, Circuit Judges.

ORDER

This appeal having come on for oral argument before

the en banc Court on October 31, 2000, pursuant to Order of

September 8, 2000, by which the panel opinion of June 27,

2000, 217 F.3d 193, was vacated and en banc consideration

was granted,

IT IS ORDERED, by virtue of an equally divided vote

of the active members of the Court, that the judgment

appealed from be, and it is hereby, AFFIRMED.

For the Court,

/s/_Patricia S. Connor __

Clerk

35a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

[Filed September 8, 2000]

No. 99-1009

CA-98-1817-3-19

STERLING DREW, a minor under

the age of thirteen years, by

guardian ad litem Martha Drew;

MARTHA DREW; JEBEDIAH

DREW,

Plaintiffs - Appellants,

Vv.

UNITED STATES OF AMERICA,

Defendant - Appellee.

)

)

)

)

)

)

)

)

)

)

)

)

On Petition for Rehearing and Rehearing En Banc

The appellant's petition for rehearing and rehearing en t

banc was submitted to the Court. A majority of judges having :

voted in a requested poll of the Court to grant rehearing en

banc,

36a

IT IS ORDERED that rehearing en banc is granted.

IT IS FURTHER ORDERED that this case shall be

calendared for argument on October 31, 2000. Within ten

days of the date of this order, tweniy (20) additional copies of

appellant's brief, twenty (20) additional copies of appellee's

brief, twenty (20) additional copies of the appellant's reply

brief, if any, twenty (20) additional copies of amicus curiae

brief, if any, and twenty (20) additional copies of any

previously filed authorities pursuant to Rule 28(j), FRAP,

shall be filed. Counsel for amicus parties, if any, must file a

motion for leave to participate in oral argument should they

wish to be heard at argument.

Appellants will file twenty (20) additional copies of the

joint appendix.

For the Court,

s/_Patricia S.C

CLERK

37a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

[Filed December 1, 1998]

C.A. No. 3:98-1817-19

STERLING DREW, a minor under the

age of thirteen years, by guardian ad litem

Martha Drew; MARTHA DREW;

JEBEDIAH DREW,

Plaintiffs - Appellants,

¥.

THE UNITED STATES OF AMERICA,

)

)

)

)

)

)

)

)

)

Defendant - Appellee. )

)

ORDER

This is a Federal Tort Claims Act ("FTCA") case.

Plaintiffs filed an administrative claim and, subsequently, a

medical malpractice complaint based on their specific

contention that an agent of the United States administered a

Depo Provera (birth control) injection to Martha Drew

("Martha") while she was pregnant with Sterling Drew

38a

District Court Order - 12/1/98

("Sterling"), and this injection caused Sterling to be born with

birth defects.' However, contrary to this assertion, Martha

testified in her deposition that she did not receive a Depo

Provera injection while she was pregnant with Sterling.

Martha stated instead that her claim is actually based on the

fact that she became pregnant after receiving a Depo Provera

injection. It is unclear why plaintiffs’ original allegations

differ significantly from her testimony.

Based on Martha's testimony, the United States moved

for summary judgment. In response, plaintiffs moved to

amend their complaint to conform their allegations to

' In their administrative claim, plaintiffs set forth the

basis of their claim:

"Spontaneous delivery of male infant with

imperforated anus, ventricular septal defect, left

facial palsy, umbilical hernia and inguinal hernia at

Shaw Air Force Base Hospital. Depo-Provera

injection given to claimant in early, pregnancy."

(emphasis added). In their original complaint and answers to Local

Rule interrogatories, plaintiffs specifically asserted that United

States personnel administered Depo Provera injections to Martha

while she was pregnant.

39a

District Court Order - 12/1/98

Martha's testimony. The Court permitted the amendment.”

Plaintiffs thereafter filed an amended complaint setting forth

causes of action under an informed consent theory.

This case is now before the Court on the United

States' amended motion to dismiss or, alternatively, for

summary judment. The United States contends that the Court

lacks subject-matter jurisdiction over the informed consent

claims in the amended complaint because plaintiffs did not file

an administrative claim regarding those claims. See 28 U.S.C.

§ 2675(a). *Plaintiffs argue in opposition that their

administrative claim provided sufficient notice to the United

States to satisfy the FTCA's jurisdictional requirements.

The Court will grant the motion. Although plaintiffs

clearly stated facts in their administrative claim that placed the

United States on notice that they were pursuing a medical

malpractice claim, they expressly based their claim on the

2 The United States responded to the motion to amend by

stating that while it had no objection to allowing plaintiffs to

amend, it intended to contest whether the Court has subject-matter

jurisdiction over the amended complaint. Although the Court

permitted the amendment, it expressly indicated that it was not

reaching any opinion on the jurisdictional issue identified by the

United States.

> Section 2875(a) provides in pertinent part: "An action

shall not be instituted upon a claim against the United States for

money damages for . . . personal injury . . . 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 agency and his claim shall have been

finally denied by the agency in writing and sent by certified or

registered mail."

40a

ath ethene te

ro ae

Csasuhie Lie pS 4uahs uth Cie pega eT Ee

6 cache Ot aaa rE a

District Court Order - 12/1/98

United States’ alleged improper administering of Depo

Provera to Martha while she was pregnant. Plaintiffs

thereafter filed this lawsuit based on that specific allegation.

Of course, that allegation has now been discredited by

Martha's own testimony. Only after Martha testified did

plaintiffs first raise, or even appear to be aware of, their

informed consent claim. In this regard, plaintiffs seek to

impose an undue burden on the United States. On the one

hand, they believed as late as the time they filed this lawsuit

that their claims were based on Martha receiving a Depo

Provera injection while she was preg-nant. On the other hand,

they now argue that despite their own lack of knowledge, the

United States was placed on notice of the true nature of their

claims earlier when they filed the administrative claim. Under

the circumstances of this case, the Court cannot conclude that

plaintiffs' administrative claim is sufficient to provide the

Court with jurisdiction over the informed consent claims.‘

Based on the foregoing, the Court hereby ORDERS

on this the 30th day of November, 1998, at Columbia, South

Carolina, that the motion to dismiss be GRANTED.

/s/

DENNIS W. SHEDD

UNITED STATES DISTRICT JUDGE

* See, e.g., Bush v. United States, 703 F.2d 491,495 (11th

Cir. 1983) (district court lacked jurisdiction over FTCA informed

consent cause of action which was not set forth in administrative

claim).

4la

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

[Filed November 25, 1998]

C/A No. 3:98-1817-19

Sterling Drew, a minor under the

age of thirteen years, by Guardian ad

Litem Martha Drew and Martha and

Jebediah Drew Personally,

Plaintiffs - Appellants,

Vv.

THE UNITED STATES OF AMERICA,

Defendant - Appellee.

i i a i

PLAINTIFFS’ MEMORANDUM OF LAW IN

OPPOSITION TO MOTION TO DISMISS OR IN THE

ALTERNATIVE FOR SUMMARY JUDGEMENT

INTRODUCTION

By their original Complaint in this action, the

Plaintiffs alleged that the Plaintiff Martha Drew was given

Depo-Provera as a birth control device by the Defendant,

42a

District Court Memo of Law - 11/25/98

acting through its agents and servants including its duly

constituted agency, the Department of the Air Force when the

Plaintiff Martha Drew was in fact pregnant with the minor,

Sterling Drew.

This Complaint went on to allege that as a direct and

proximate result of these delicts, the Plaintiff, Sterling Drew,

suffered grievous and permanent physical injury including,

but not limited to, an imperforate anus, and a ventricular

septal defect in his heart together with genetic, developmental,

glandular and mental disorders as well as other damages. The

Complaint also alleged a cause of action for the Plaintiffs

Jebediah and Martha Drew, seeking recovery for the minor

Plaintiff, Sterling Drew's, medical bills related to these

problems, as the minor's parents.

On September 4, 1998, the deposition of the Plaintiff

Martha Drew was taken by stipulation of the parties.

In this deposition, she testified that her complaint was

not that she was given Depo-Provera while pregnant, but

rather, that she became pregnant when she should not have

because she was using Depo-Provera. (Martha Drew

deposition at page 39, lines 1-9).

In light of this testimony, together with other

deposition testimony of the Plaintiff quoted more fully below,

the Plaintiffs moved to amend their Complaint to conform to

this evidentiary record and state a cause of action based upon

failure of the Defendant acting through its agents and servants

in the Department of the Air Force to obtain the Plaintiff

Martha Drew's informed consent prior to the administration

of Depo-Provera. The particulars of this claim are set forth

43a

District Court Memo of Law - 11/25/98

more fully in the Amended Complaint, and are discussed

more fully below.

This Motion to Amend was granted by order entered

on 10/15/98, and leave to file the Amended Complaint was

reaffirmed by Summary Order of the Court entered on

10/29/98.

The Defendant has moved to dismiss this Amended

Complaint, contending that the Court lacks subject matter

jurisdiction to entertain the Plaintiff's informed consent claim,

claiming that it was not properly presented at the

Administrative level pursuant to 28 U.S.C. SECTION

2675(a).

It is respectfully submitted that this Motion should be

denied.

LEGAL ISSUES AND DISCUSSION

THE DEFENDANT'S MOTION TO

DISMISS SHOULD BE DENIED IN THAT

THE DISTRICT COURT RETAINS

SUBJECT MATTER JURISDICTION

OVER THE ALLEGATIONS OF THE

AMENDED COMPLAINT. |

The original Complaint of the:Plaintiffs contends that

the Plaintiff, Martha Drew, received an injection of Depo-

Provera while she was, in fact, pregnant with the minor

Plaintiff, Sterling Drew, and as a result thereof, the minor

Plaintiff Sterling Drew was born with several birth defects

which are enumerated in paragraph 11, of the amended

District Court Memo of Law - 11/25/98

Complaint. The Plaintiffs seek damages for the minor

Plaintiff, Sterling Drew, and in their second cause of action,

for his parents, Jebediah and Martha Drew, for the medical

expenses which have been and which will be incurred for the .

treatment of the problems and damages suffered by Sterling

Drew.

In her deposition which was taken by stipulation of the

parties in this case on September 4, 1998, Martha Drew

testified as follows:

Q. Your Complaint is not that they gave you a shot

while you were pregnant. Is it your testimony that

they did not give you a shot while you were pregnant

with Sterling.

A. Yes.

Q. But rather that you became pregnant when you

Should not have because you were using Depo-

Provera. Is that your testimony?

A. Yes, it is.

(Deposition of Martha Drew at page 39, lines 1-9)

The Plaintiff also testified in this deposition that she

was mislead as to the effectiveness of Depo-Provera, and was

given Depo-Provera without her informed consent as follows:

Q. When you were told about the risks of Depo-

Provera -- let me ask you this: Why did you decide to

choose Depo-Provera as a birth control device?

District Court Memo of Law - 11/25/98

A. Because I originally wanted to have my tubes

tied, and I was told that Depo-Provera would be the

next most effective thing to having your tubes tied.

Q. What were you led to believe about the

effectiveness of Depo-Provera and by who?

A. Captain Miller told me that here was a 99.9

percent effectiveness rate. In other works, it's like

.1 percent that you would get pregnant and there is not

at all any percent that the haby would survive.

Q. Tell me what you mean by that, not at all percent

that the baby would survive.

A. That if there is that .1 that you do get pregnant,

the you would have a miscarriage. The baby would

die.

Q. So as far as live birth is concerned, you were

told that the Depo-Provera was a hundred percent

effective, right?

A. Right, yes.

Q. And why didn't you get your tubes tied?

A. Because they told me that I needed to either be

25 or have three children.

Q. How old were you at the time?

A. Iwas 20.

District Court Memo of Law - 11/25/98

Q. How old are you now?

A. Twenty-four.

(Martha Drew Deposition at page 47, lines 10-25,

page 48, lincs 1-15)

She also testified as follows:

Q. ...Okay. I think I'm understanding now. What

you're saying is that you were using Depo-Provera as

you sole birth control method and you became

pregnant?

A. Yes.

Q. That it didn't work?

A. Yes. |

Q. It did not work?

A. Yes.

(Martha Drew Deposition at page 50, lines 20-25,

page 51, lines 1-3)

This testimony, gives rise to the allegations of the

Plaintiffs' Amended Complaint to the effect that the Plaintiff

Martha Drew was given the drug Depo-Provera without her

informed consent, . because she was misled as to its

effectiveness in preventing live births.

47a

District Court Memo of Law - 11/25/98

Therefore, her claim is one based upon failure to give

informed consent as required by South Carolina law. In that

regard, the Memorandum of the Defendant in support of its

Motion to Dismiss mischaracterizes the Plaintiff's claim as

one for wrongful birth. (See, Memorandum of Defendant in

Support of Motion to Dismiss at page 3, n. 2). This is an

erroneous characterization of the claim stated by the Plaintiffs

in their Amended Complaint. Rather, they contend that the

Plaintiff Martha Drew was given Depo-Provera without her

informed consent, which resulted in the injuries to the minor

child and the expenses incurred by the adult Plaintiffs in this

case, as alleged in the Amended Complaint.

Stated another way, Martha Drew was told, according

to her testimony, that Depo-Provera was 100% effective in

preventing live births. There was a .1 percent chance of

getting pregnant, but even if she did get pregnant, the fetus

would spontaneously abort prior to viability according to what

the Defendant told her.

This was not true, and as a result, she was given

Depo-Provera based upon misleading information and

therefore without her informed consent. As a result of this,

she became pregnant with the minor Plaintiff, Sterling Drew,

while the Depo-Provera was still in her system, which in turn

resulted in the damages to Sterling Drew, and to herself and

to her husband as Sterling Drew's parents.

Under South Carolina Law, the doctrine of informed

consent applies to physicians, and pursuant to it, a physician

must disclose to a patient all information that a reasonable

medical practitioner in the same branch of medicine would

make under the same or similar circumstances. Hook vs.

48a

District Court Memo of Law - 11/25/98

Rothstein, 281 S.C. 541, 316 S.E. 2d 690, 695 and 698 (Ct.

App. 1984) cert. den'd. 283 S.C. 64, 320 S.E. 2d 35 (1984).

It is submitted that it will be an issue for the Court

Sitting as the trier of fact in this case to determine whether or

not Ms. Drew was, in fact, mislead by false information

concerning the effectiveness of Depo-Provera to the point that

her informed consent was vitiated. It is further submitted that

it will be an issue for the Court sitting as the trier of fact, as

to whether the information concerning the effectiveness of

Depo-Provera concerned communications that a reasonable

medical practitioner in the same branch of medicine would

make under the same or similar circumstances. Hook, supra,

316 S.E. 2d at 698.

In its Memorandum in Support of its Motion to

Dismiss, the Defendant argues that the Court lacks subject

matter jurisdiction to hear and decide this informed consent

claim on its merits because it was not adequately presented in

the administrative claim previously filed in this case.

The gravamen of the Defendant's motion is that

because precise informed consent language was not used in

the administrative claim submitted to the Department of the

Air Force in this case, the Court is now without jurisdiction

to hear the claims and causes of action set forth in the

amended complaint.

This position is erroneous.

It appears to be well settled that a failure to raise a

claim at the administrative level, does not divest the District

Court of jurisdiction to entertain that claim under the Federal

49a

District Court Memo of Law - 11/25/98

Tort Claims Act where the claim that the Plaintiffs attempt to

present at the District Court level was reasonably related to

assertions presented to the administrative agency. See Harris

vs. United States, 797 F. Supp. 91 (D.P.R. 1992). The Harris

Court went on to reason as follows:

Government, to conduct a meaningful

investigation to adequately defend itself. It is

not bound by the standards applicable to court

proceedings. [A]n administrative claim need

not meet formal pleading requirements. All

that is necessary is that a claim be specific

enough to serve the purposes intended by

Congress in enacting SECTION 2675(a)-- "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."

Johnson by Johnson v. United States, 788 F.

2d 845, wragtes _ Cir. 1986). . _ Allihatis

crknennealld: Avery v. United States, 680

F. 2d 608 (9th Cir. 1982). The legal basis for

relief need not be specified, Broudy v. United

States, 722 F. 2d 566, 568-69 (9th Cir. 1983)

presented at judicial prooceedings. Johnson,

788 F. 2d at 849.

District Court Memo of Law - 11/25/98

797 F. Supp at 93. (Emphasis added and in the original).

Hence, the key issue in a situation such as this is

notice and if the administrative agency was reasonably placed

on notice by the administrative claim as to the nature of the

Plaintiffs' claim, and the same result: a baby born with birth

defects as a result of being exposed to Depo-Provera in utero.

In that both of these claims involve medical

negligence, the administration of the same substance, and the

Same outcome, it is submitted that they are reasonably related

to the point that this Court does have jurisdiction to hear this

Case on its merits.

A situation similar to the instant case was faced by the

United States Court of Appeals for the Fifth Circuit in Frantz

y. United States, 29 F. 3d 222 (Sth Cir. 1994),

There, the District Court dismissed the Plaintiff's

informed consent claim, holding that the Plaintiff did not

present that claim at the Administrative level pursuant to 28

U.S.C. SECTION 2675 (a) .

On appeal, the Fifth Circuit reversed holding that the

Plaintiff's stated claim for medical malpractice was sufficient

to give the Court jurisdiction to entertain the Plaintiff's

informed consent claim on its merits. In so doing, the Court

reasoned as follows:

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.

S5la

District Court Memo of Law - 11/25/98

28 U.S.C. SECTION 2675(a) . . . 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 the claim and (2) places a value on

his or her claim. . .This Court has not required

Plaintiffs to specifically enumerate legal

theories of recovery in their Administrative

claims. . .The purpose of Section 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 conduct settlement negotiations

with the Claimant. Accordingly, we think that

if Vv Vv

Plainti laim shoul Vv

a

District Court Memo of Law - 11/25/98

consent claim. 29 F. 3d 224-25. (Emphasis

added).

This case is almost identical to Frantz. Here, an

Administrative claim was stated for medical malpractice

pursuant to Section 2675(a) . Therefore, by its very nature, an

informed consent claim is included in this medical malpractice

claim because under South Carolina law as well, a suit for the

failure of a doctor to fully inform a patient of the risks of a

certain medical procedure sounds in negligence. Hook v.

Rothstein, supra, 316 S.E. 2d at 696-97.

In its Memorandum in Support of its Motion to

Dismiss, the Defendant attempts to distinguish Frantz by

noting that the Fifth Circuit relied on a Texas statute which

brought medical malpractice claims and claims for failing to

obtain informed consent into one. (See, Defendant's

Memorandum at page 6, n. 3).

South Carolina has done the same by common law.

In the decision that recognized a cause of action for

failure to obtain informed consent, Hook v. Rothstein, supra,

the South Carolina Court of Appeals noted as follows:

malpractice. Underlying every medical

malpractice action is the basic principal that

the physician departed from a standard of

reasonable medical care. . . As in other cases

District Court Memo of Law - 11/25/98

ee ee he f T "appear

departed from the standard of care of the

reasonable practitioner. 316 S.E. 2d at 696-97

(Emphasis added).

Put another way, the State of Texas, by statute, stated

that a claim for failure to give informed consent was in fact a

medical malpractice claim sounding in negligence. In South

Carolina, the same has been done by common law decision in

Hook v. Rothstein, supra. Therefore, here as in Frantz, the

Court is faced with state law which brings medical

malpractice claims and claims for failing to obtain informed

consent into one. Thus, the Administrative claim of the

Plaintiffs complies with Section 2675(a), and this Court

therefore has jurisdiction to entertain the Plaintiff's informed

consent claim on its merits. For this reason, the Motion to

Dismiss should be denied. Accord: Rise v. United States, 630

F.2d 1068 (Sth Cir. 1980).

A situation analogous to this one was faced by the

Ninth Circuit in Broudy v. United States, 722 F. 2d 566 (9th

Cir. 1983). There, the widow of a United States Marine

brought an Administrative claim pursuant to Section 2675(a),

contending that he had suffered a service related injury, when

he was exposed to above ground radiation testing while a

member of the Marine Corps. This exposure resulted in his

dying from a form of cancer related to radiation exposure.

The Administrative claim did not specifically mention any

post-service torts allegedly committed by the government

against the Appellant's decedent.

District Court Memo of Law - 11/25/98

After a flurry of litigation, including an inter

appeal to the Ninth Circuit (See, i ;

[Broudy I] 661 F. 2d 125 (9th Cir. 1981)), the United States

District Court ultimately dismissed the Appellant's claim

holding, among other things, that because her Administrative

claim pursuant to Section 2675(a), did not specify an

independent post-service tort, the District Court had no

jurisdiction to entertain it when brought by the Appellant in

her Amended Complaint. 722 F. 2d at 568.

On appeal in Broudy II, the Ninth Circuit reversed

reasoning as follows:

As a prerequisite to maintaining suit under the

F.T.C.A., a Plaintiff must first present the

claim to the appropriate Federal agency. After

six months have passed or the agency has

denied the claim, the Plaintiff may bring suit

in Federal Court on the claim. . .Appellant's

claim to the Department of Energy complied

with the requirements of Section 2675(a) and

28 CFR Section 14.2(a) as interpreted by this

Court. Her claim states the location and date

of the accident, the nature and extent of the

injury, the dollar amount of the claim, and a

description of how the accident occurred.

Appellant's completed standard Form 95 gave

the agency notice to commence investigation

by providing information concerning the

accident and injury. The government however

lains that the Appellant's Administrat

; ~

claim_does_not_refer_to the separate post- T 's alleged fail

District Court Memo of Law - 11/25/98

ions. 722 F. 2d at 568-69. (Emphasis

added.)

In Broudy, the Court in essence held that the statement

of a negligence claim at the Administrative level was

sufficient to put the government on notice that there is also a

claim embodied therein for failure to warn of the danger

brought about by the negligent conduct.

That is the case here. The Plaintiffs’ Administrative

claim contends that the Defendant committed medical

negligence in the administration to the Plaintiff Martha Drew

of Depo-Provera.

Therefore, a claim based upon a negligent failure to

warn of the dangers of Depo-Provera and in fact, the giving

of misinformation regarding its effectiveness, is also

embodied in those basic allegations of negligence contained in

the Administrative claim.

District Court Memo of Law - 11/25/98

For this reason also, the government's Motion should

be denied.

The Second Circuit dealt with an issue similar to this

one in Johnson by Johnson v. United States, 788 F. 2d. 845

(2nd Cir. 1986).

There, the Plaintiffs brought an Administrative claim

pursuant to the Federal Tort Claims Act against the United

States Postal Service, contending that the Postal Service was

liable for sexual assaults committed against several children

by one of its letter carrier employees.

This claim was denied and the Appellant filed suit in

U. S. District Court. The District Court dismissed the

Appellant's claim ruling that the actions of the Postal Service

employee were intentional acts, and therefore exempt from

suit under the Federal Tort Claims Act, and further, that a

claim for negligent supervision was not appropriately

presented on the Plaintiff's Administrative claim, and

therefore, the Court did not have subject matter jurisdiction

to entertain this claim.

On appeal, the Second Circuit reversed the District

Court on the issue of the adequacy of the Administrative claim

reasoning as follows:

Appellants contend that the Administrative

claim filed with the Postal Service alleging

only sexual assault and injury stemming from

it was sufficient to enable them to maintain a

Court action against the United States for

negligent supervision. . .An Administrative

57a

District Court Memo of Law - 11/25/98

claim need not meet formal pleading

requirements. All that is necessary is that a

claim be specific enough to serve the purposes

intended by Congress in enacting Section

2675(a)-"to ease Court congestion and avoid

unnecessary litigation while making it possible

for the government to expedite the fair

settlement of the tort claims asserted against

the United States. . ." Toward this end, the

government requires all claimants to submit

standard Form 95, a one page claim form,

requesting a description of the accident and the

nature and extent of the injury. Appellants’

Administrative claim met these requirements.

B iis F ini

Ojeda... 788 F. 2d at 848-49. (Emphasis

added.)

Here, as in Johnson, the Plaintiff's Administrative

claim did not allege an informed consent theory of liability

58a

District Court Memo of Law - 11/25/98

per se. However, a reasonably thorough investigation of the

incident alleged in the Administrative claim should have

uncovered any pertinent information in the government's

possession relating to what consent was obtained, and the

information given prior to the obtaining of that consent.

Therefore, here as in Johnson, the Court retains

subject matter jurisdiction to hear this case.

In summary, if a claimant gives notice of the manner

and general circumstances of the injury and the harm suffered

in a sum certain representing the damages, then the claimant

has complied with Section 2675(a) regarding the adequacy of

the Administrative claim sufficient to confer subject matter

jurisdiction on the District Court when and if that claim is

denied and suit is filed. See, Avery v. United States, 680 F.

2d 608, 611 (9th Cir. 1982).

CONCLUSION

This Court does, in fact, have jurisdiction over the

allegations of the amended complaint. This is because the

claim that the Plaintiffs present in that amended pleading is

reasonably related to the claim that they presented at the

administrative level.

For this reason, it is respectfully submitted that the

Defendant's motion to dismiss should be denied; -——

District Court Memo of Law - 11/25/98

WEINBERG AND BROWN

BY: /s/

M. M. WEINBERG, III.

Federal ID No.: 4570

109 North Main Street

Post Office Box 1289 —y.

Sumter, South Carolina 29151-1289

(803) 775-1274

ATTORNEYS FOR PLAINTIFFS

Sumter, South Carolina

November 24, 1998

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

[Filed November 12, 1998]

Civil Action No. 3:98-1817-19

Sterling Drew, a minor under the age

thirteen years, by his Guardian ad Litem

Martha Drew and Martha and Jebediah

Drew,

Plaintiff,

va

United States of America, -

)

)

)

)

)

)

)

)

)

Defendant. )

)

AMENDED MEMORANDUM OF LAW

IN SUPPORT OF THE UNITED STATES' MOTION

TO DISMISS OR IN THE ALTERNATIVE MOTION

FOR SUMMARY JUDGMENT

OVERVIEW OF THE CASE

On October 15, 1998, this Court issued an Order

granting Plaintiffs’ motion to file an amended complaint. The

6la

Amended Memorandum of Law - 11/12/98

Order required the Plaintiffs to file and serve the amended

complaint" no later than October 26, 1998." The Order

further directed to Clerk of Court to moot the summary ©

judgment motion of the United States without further Order

of the Court if the Plaintiffs filed the amended complaint

without further order of the Court. If, however, the Plaintiffs

failed to "file and serve the amended complaint by October,

26 the Court will consider the summary judgment motion."

Plaintiffs’ attorney mailed the amended complaint to

the Clerk of Court and to the United States Attorney's office

on October 26, 1998. The United States Attorney's office

received’ the amended complaint on October 27, 1998. On

October 28, 1998, Plaintiffs’ counsel filed a "Motion for

Leave to File Amended Complaint” and attached an affidavit

of counsel. This Court granted that motion on October 29,

1998. The United States offers this memorandum in support

of the United States' motion to dismiss and alternatively for

summary judgment.

FACTS

Attached as Exhibit 1 to this memorandum is a copy

of the administrative complaint filed by Plaintiffs. The

administrative complaint alleges as follows:

' The United States does not have information as to when

the clerk's office received the amended complaint for filing, but

upon information, the United States believes that the clerk's office

received the amended complaint on October 27, 1998, the same day

it was received by the United States Attorney's Office.

62a

Amended Memorandum of Law - 11/12/98

Spontaneous delivery of male infant with

imperforated anus, ventricular septal defect,

left facial palsy, umbilical hernia and inguinal

hernia at Shaw Air Force Base Hospital.

Depo-Provera injection given to claimant in

early pregnancy.

This is the same factual predicate that the Plaintiff,

Martha Drew, admitted was untrue. See Memorandum of

United States in Support of Summary Judgment. It is also the

same factual predicate that formed the basis of the first

complaint filed in this action. The amended complaint

significantly alters the facts. The amended complaint contends

that rather than injecting Martha-Drew with Depo Provera

during the early months of pregnancy causing birth defects in

the resulting infant, that Martha Drew became pregnant while

using Depo Provera as her sole birth control.

The inference from the administrative claim is that the

United States was negligent in failing to assure that Martha

Drew was not administered Depo Provera while pregnant.

The complaint now is that the United States failed to inform

Martha Drew that Depo Provera was not "100% effective in

preventing live births" and failing to advise Martha Drew

concerning the "risks and dangers of the use of Depo-Provera

to any unborn child.”’ Thus the administrative claim alleges

? This is a curious allegation in that Martha Drew testified

that, prior to using Depo Provera as a birth control method, she

was told birth defects could result from the use of Depo Provera.

Drew Deposition P. 41, Ln. 7-11; P. 46 (Ln 17-25)- P. 41(Ln. 1).

Her complaint t necessarily must be that Sterling was born alive or

wrongful birth. Further, in February 1996 Martha Drew again used

63a

ee

Amended Memorandum of Law - 11/12/98

pregnancy. The amended complaint, however, alleges totally

separate acts of failing to properly inform Martha Drew of the

risks involved in her choice of birth control during her pre-

pregnancy period.

malpractice during pre-natal care or early months of

:

The Federal Tort Claims Act, as amended, provides,

in pertinent part,:

(a) An action shall not be instituted upon a

claim against the United States for money

damages for injury or loss of property or death

caused by the negligent or wrongful or

omission of any employee of the Government |

while acting within the scope of his office or |

employment, unless the claimant shall first |

have presented the claim to the appropriate

rr eee ae ee ee Ne ee eR a ee

Depo Provera as her birth control method: (1) after Sterling's birth,

(2) with knowledge of Sterling's birth defects, (3) according to her,

after having been informed that Depo Provera causes birth defects,

and (5) aware that she became pregnant while using Depo Provera

as her sole birth control method. See Martha Drew Deposition,

Exhibit 18.

64a

Amended Memorandum of Law - 11/12/98

Federal agency and his claim shall have been

finally denied by the agency.

28 U.S.C. § 2675. Section 2676 deprives the District Court

of subject matter jurisdiction over of any tort claim unless the

claimant establishes that an administrative tort claim has been

filed with the appropriate Federal agency. McNeil v, United

States, 508 U.S. 106, 113 S.Ct. 1980, 124 L.Ed.2d 21

(1993); see also Henderson v. United States, 785 F.2d 121

(4th Cir. 1986); Kielwein v, United States, 540 F.2d 676, 679

(4th Cir.), cert. denied, 429 U.S. 979 (1976). Only after the

claim has been denied or six months have passed may a

plaintiff bring suit in federal court on the claim. 28 U.S.C.

§ 2675(a).

In enacting the notice requirement, Congress sought

“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 (hereinafter

cited as S.Rep.), reprinted in (1966) U.S.Code Cong. &

Admin. News, pp. 2515, 2516. Section 2675's requirement

of filing a claim before instituting suit sought to bring the

claimants’ allegations to the immediate attention of the

relevant agency. S.Rep. at 8, reprinted in (1966) U.S:Code

Cong. & Admin. News at 2518. The purpose of this notice is

"to protect the (government) from the expense of needless

litigation, give it an opportunity for investigation, and allow

it to adjust differences and settle claims without suit.”

Id.S.Rep. at 7, U.S.Code Cong. & Admin. News at p. 2517.

The "notice" provision of Section 2675 requires that the

plaintiff present to the agency "a written and signed statement

setting out the manner in which the injury was received"

65a

Amended Memorandum of Law - 11/12/98

sufficient for the agency to investigate the claim. Adams v.

United States, 615 F.2d 284 (Sth Cir. 1980).

No courts have held sufficient a claim where, as here,

the plaintiff presented to the agency one set of facts and then

subsequently sued on a different set of facts. Courts have

consistently barred claims that were never asserted before the

agency. Mary Doe v. United States, 769 F.2d 174, 175 (4th

Cir. 1985) ("Plaintiffs other theories of recovery [see Mary

Doe v. United States, 618 F.Supp. 503 (D.S.C. 1984)] either

were not raised administratively in satisfaction of the

condition precedent to suit. . ."); John Doe v. United States

of America, 618 F.Supp. 71, 75 (D.S.C. 1985) (Plaintiffs

alleged medical malpractice claims were not presented in the

administrative claim and thus were barred by 28

U.S.C.§ 2675.) (Hamilton, J.)(Mary Doe).

In Bush v. United States, 703 F.2d 491, 495 (9th Cir.

1983) the plaintiffs surviving spouse filed a lawsuit under the

Federal Tort Claims Act for (1) negligence in performing

unnecessary cancer surgery, (2) failure to obtain the

decedent's informed consent and (3) negligent post-operative

care. With regard to the informed consent cause of action as

to whether it was addressed administratively, the court ruled

as follows:

Neither the claim nor the attached medical

evaluation contained any challenge to the

consent form signed by Mr. Bush prior to the

surgery. There was no allegation that the

doctors failed to disclose the risks involved in

the medical procedures. Thus, the VA was not

66a

Amended Memorandum of Law - 11/12/98

requirement of § 2675 mandating presentation

Surict court thet-it laches! juciadiction over : ‘ficati Mitten Comahasls

added.

Bush, 703 F.2d at 495; see also Sullivan v. United States, 777

F.Supp. 695, 701 (N.D.Ind. 1991) (following Bush, barring

widow's claim of negligent infliction of emotional distress);

Murrey v. United States, 73 F.3d 1448, 1453 (7th Cir. 1996);

Deloria v. United States, 927 F.2d 1009, 1012 (7th Cir.

1991); contra Frantz v. U.S.A., 29 F.3d 222 (Sth Cir. 1994).

Even Frantz,’ in rejecting the Bush notion that

informed consent was not subsumed in the medical

malpractice claim on the same medical procedure the court

noted "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." Unlike

Bush and Franz, in the case at bar, the "informed consent"

claim is not related to the same factual allegations set out in

the administrative claim.

> Franz relied on a Texas statute which brought medical

malpractice claims and claims for failing to obtain informed consent

into one.

67a

Amended Memorandum of Law - 11/12/98

The facts presented in the administrative claim were

that Martha Drew received Depo Provera injections during the

early months of pregnancy. Instead of making claims

regarding "informed consent" related to the act of injecting

her with Depo Provera after she became pregnant, Plaintiffs

now claim Martha Drew was not informed regarding the

effectiveness of Depo Provera in preventing “live births" and

the possibility of birth defects if the product failed as a

contraceptive.‘

Where, as here, the administrative claim does not

fairly place the agency on notice that certain facts require

investigation, allegations in a subsequent FTCA action which

relate to those facts must be stricken. Emch v. United States,

630 F.2d 523, 526-528 (7th Cir. 1980) (the claims that

defendant was negligent at the operational level were not

expressed in the administrative claim that was filed, and the

Court did not have jurisdiction to consider it in a FTCA

lawsuit); Bembenista v. United States, 866 F.2d 493 498-499

(D.C. Cir. 1989), aff'd in relevant part, 676 F.Supp. 18, 22

(D.D.C. 1988) (the administrative claim solely alleged the

sexual molestation concluded that this was not the type of fair

notice that Congress envisioned when it fashioned the

presentment requirement); Adames Mendez v. United States,

652 F.Supp. 356, 358 (D.P.R. 1987) ("the relevant criteria

for a correct administrative claim was whether the agency was

fully aware of who were the individuals actually pursuing a

* As with the factual allegations in the first complaint,

Martha Drew admits that she was informed that Depo Provera

could cause birth defects. Drew Deposition P. 41, Ln. 7-11; P. 46

(Ln 17-25)- P. 41 (Ln. 1).

68a

Amended Memorandum of Law - 11/12/98

claim and the nature of the total claim"); Hagmeyer v. United

States Treasury, 647 F.Supp. 1300, 1304 (D.D.C. 1986) (it

is quite apparent to the Court that plaintiffs previously filed

administrative claims do not mirror the claims encompassed

in Count I of his complaint); Hogan v. United States, C/A

No.: 3:92-1663-17, 3:92-1664-19 (claims of (1) inadequate

hospital space and facilities and (2) inadequate nursing staff

not administratively raised were barred as not included in

claim that "death was proximately caused by . . . discharging

Mr. Hogan and leaving him fled in a wheel chair unattended.)

(Exhibit 2); Caldwell v. United States, C/A No.: 3:87-650-0,

3:87-651-0) (claim for consortium not raised administratively

and barred where only wife signed form) (Exhibit 3);

Rainwater_v. United States, C/A No.: 2:87-2032-1

(administrative claim for negligently installed and serviced

smoke dector alarms did not include claim for negtigently and

improperly failing to install additional smoke detector alarms)

(Exhibit 4); Uhal v. United States, C.A. 2:87-0034-8 (D.S.C.

Jan. 20, 1989) (Plaintiffs claim alleged that her surgical

operation was negligently performed; additional allegations in

the complaint of failure to obtain informed consent dismissed

as not presented in the administrative claim)(Exhibit 5). Even

courts requiting "minimal notice” require that the claim

"inform[] the relevant agency of the circumstances of the

accident so that it may investigate the claim and respond

either by settlement or by defense." Adams v. United States,

615 F.2d 284, 289 (Sth Cir. 1980).

Simply put, the Drews submitted an administrative

claim on one set of facts which occurred at different time

periods. They now seek to file suit of a wholly different set of

facts. Section 2675 allows jurisdiction on the claim filed only.

The facts alleged in the amended complaint have never been

69a

Amended Memorandum of Law - 11/12/98

presented to the agency via administrative claim. The

amended complaint must, therefore, be dismissed.

Respectfully submitted,

J. RENE JOSEY

UNITED STATES ATTORNEY

i

By: /s/

FRANCES C. TRAPP (#6376)

Assistant United States Attorney

1441 Main Street, Suite 500

Columbia, South Carolina 29201

(803) 929-3000

BY: /s/

R. EMERY CLARK (#1184)

Assistant United States Attorney

1441 Main Street, Suite 500

Columbia, South Carolina 29201

Attorney for Defendants

November 12, 1998.

70a

APPENDIX G

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

[Filed October 30, 1998]

Civil Action No. 3:98-1817-19

Sterling Drew, a minor under the age

thirteen years, by his Guardian ad Litem

Martha Drew and Martha and Jebediah

Drew,

Plaintiff,

Vv.

United States of America,

Defendant.

er Nee ee eee

The United States of America, by and through its

attorney, J. René Josey, hereby moves the Court to dismiss

the amended complaint for lack of subject matter jurisdiction

or in the alternative grant the United States summary

judgment. Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 56.

Tla

The defendant respectfully moves this Court for an Order

dismissing Plaintiffs' amended complaint or alternatively

granting the United States summary judgment.

Respectfully submitted,

J. RENE JOSEY

UNITED STATES ATTORNEY

By: /s/

R. Emery Clark (#1184)

Assistant U.S. Attorney

1441 Main Street, Suite 500

Columbia, South Carolina 29201

72a

APPENDIX H

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

[Filed October 30, 1998]

Civil Action No. 3:98-1817-19

Sterling Drew, a minor under the age of

thirteen years, by his Guardian ad Litem

Martha Drew and Martha and Jebediah

Drew Personally

Plaintiff,

Vv.

The United States of America,

)

)

)

)

)

)

)

)

)

Defendant. )

)

AMENDED COMPLAINT

(FEDERAL TORT CLAIMS ACT)

The Plaintiffs for a Complaint against the Defendant

above named would respectfully show unto this Honorable

Court as follows:

73a

District Court Amended Complaint - 10/30/98

FORA N

1. That the Plaintiff, Martha Drew, is a citizen

and resident of the County of Sumter, State of South Carolina,

and is the mother, natural guardian, as well as the duly

appointed Guardian Ad Litem, of the minor Plaintiff, Sterling

Drew.

ya That the Plaintiff, Jebediah Drew, is likewise

a citizen and resident of the County of Sumter, State of South

Carolina, and is the natural father of the minor, Sterling

Drew, and is the co-natural and legal guardian of Sterling

Drew, together with the Plaintiff, Martha Drew.

2. That the minor Plaintiff, Sterling Drew, is a

citizen and resident of the County of Sumter, State of South

Carolina, and brings this action through his duly appointed

Guardian Ad Litem, Martha Drew.

4. That the Defendant, the United States of

America, was at all times pertinent hereto, acting through its

agents and servants, in the course and scope of their agency

and employment, and through its duly constituted agency, the

Department of the Air Force, from Shaw Air Force Base,

South Carolina.

5. That the Court has subject-matter jurisdiction

over the claims and causes of actions set forth herein,

pursuant to the provisions of the Federal Tort Claims Act, and

specifically, 28 U.S.C. SECTION 1346 (b), and SECTIONS

2671-2680.

74a

District Court Amended Complaint - 10/30/98

6. That at all times pertinent hereto, the Plaintiff,

Jebediah Drew was, and still is as of the date of this amended

Complaint, an active member of the United States Air Force,

and the Plaintiff, Martha Drew, as his dependent, received

medical treatment from the hospital located at Shaw Air Force

Base, South Carolina. :

Ws That as part of this treatment, Martha Drew

received birth control counselling, and birth control

medication, in the form of intra-muscular injections of Depo-

Provera.

8. That prior to administering these Depo-Provera

injections to the Plaintiff, Martha Drew, the Defendant, acting

through its agents and servants and its duly constituted

agency, the Department of the Air Force at Shaw Air Force

Base, South Carolina, toid the Plaintiff, Martha Drew, that

Depo-Provera was 100% effective in preventing live births.

9. That this information concerning the

effectiveness of Depo-Provera was false in that while she was

using Depo-Provera as her sole birth control devise, the

Plaintiff Martha Drew became pregnant with the Plaintiff

Sterling Drew.

10. That the Defendant was negligent, reckless,

willful, and wanton in the administration of Depo-Provera to

the Plaintiff, Martha Drew in the following particulars:

A. _ In failing to appropriately supervise its

personnel;

75a

District Court Amended Complaint - 10/30/98

B. In giving the Plaintiff false and

misleading information concerning the effectiveness of Depo-

Provera in preventing live births

C. In failing to provide appropriate

counselling and/or information concerning the risks and

dangers of the use of Depo-Provera to any unborn child;

D. In failing to disclose to the Plaintiff

Martha Drew all information concerning all of the risks

associated with the use of Depo-Provera as a birth control

devise that a reasonable medical practitioner providing birth

control counseling and services would have made under the

same or similar circumstances.

E. In failing to use the degree of care and

caution that a reasonable and prudent provider of obstetrical

and gynecological health care should have used under the

circumstances then and there prevailing.

All of which were the direct and proximate cause of

the injuries and damages suffered by the Plaintiffs, herein, all

of said acts and delicts being in violation of applicable legal

principles.

11. That as a direct and proximate result of the

above set forth delicts, the Plaintiff, Sterling Drew, suffered

grievous and permanent physical injury, including but not

limited to, an imperforate anus, a ventricular septal defect in

his heart, as well as genetic, developmental, glandular, and

mental disorders.

76a

District Court Amended Complaint - 10/30/98

1? That as a further direct and proximate result of

the above set forth delicts, the Plaintiff, Sterling Drew,

suffered, continues to suffer, and will suffer the following

additional injuries and damages:

A. Pretrial medical expenses;

B. Post-trial future medical expenses;

C. Loss of earning capacity;

a Pretrial physical pain and suffering,

mental pain and suffering, mental anguish and shock;

E. Post-trial physical pain and suffering,

mental pain and suffering, mental anguish and shock;

F. Disabled condition and loss of

enjoyment of life.

13. That the Plaintiffs have exhausted their

administrative remedies under the Federal Tort Claims Act in

that they timely filed an administrative Claim with the

Department of the Air Force and said claim was denied in a

letter from the Department of the Air Force mailed to

Plaintiffs’ Counsel on December 23, 1997.

14, That the Plaintiff, Sterling Drew, is therefore

informed and believes that he is entitled to a judgement

against the Defendant in accordance with the provisions of the

Federal Tort Claims Act.

77a

District Court Amended Complaint - 10/30/98

FOR A SECOND CAUSE OF ACTION

15. That the preceding allegations of this

Complaint are incorporated by reference as fully as set forth -

verbatim herein.

16. That as a direct and proximate result of the

delicts of the Defendant, as alleged more fully in Paragraph

10, Subparagraphs A through E, hereinabove, the minor child

of the Plaintiffs, Martha and Jebediah Drew, Sterling Drew,

suffered grievous and permanent harm and injury as alleged

more fully in Paragraphs 10 and 11, hereinabove, all of which

has and will in the future and permanently cause the Plaintiffs,

Martha Drew, and Jebediah Drew, to be jointly and severally

obligated and compelled to expend large and considerable

sums of money for physician services, drugs, X-rays, hospital

expenses, genetic counselling, therapy, and further costs and

expenses to be paid to health care professionals for tests to

determine additional problems with the minor Plaintiff,

Sterling Drew.

17. That the Plaintiffs, Martha Drew and Jebediah

Drew, are therefore informed and believe that they are

entitled to a judgement against the Defendant in accordance

with the Federal Tort Claims Act.

WHEREFORE, the Plaintiffs pray as follows:

l. On the First Cause of Action, for a judgment

against the Defendant and in favor of the Plaintiff, Sterling

Drew, in an appropriate amount of actual and damages to be

determined by the Court in accordance with the Federal Tort

Claims Act.

78a

District Court Amended Complaint - 10/30/98

2. On the Second Cause of Action, for a

judgement in favor of the Plaintiffs, Martha and Jebediah

Drew, and against the Defendant, in an appropriate amount to

be determined by the Court in accordance with the Federal

Tort Claims Act.

3. That each Plaintiff be awarded his/her costs in

this action.

4. That each Plaintiff be awarded such other and

further relief as the Court may deem just and proper.

WEINBERG AND BROWN

BY: /s/

M. M. WEINBERG, III.

Federal ID No.: 4570

109 North Main Street

Post Office Box 1289

Sumter, South Carolina 29151-1289

(803) 775-1274

ATTORNEYS FOR PLAINTIFFS

Sumter, South Carolina

October 26, 1998

79a

_ APPENDIX I

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

[Filed October 15, 1998]

Civil Action No. 3:98-1817-19

STERLING DREW, a minor under the

age of thirteen years, by guardian ad litem

Martha Drew; MARTHA DREW; and

JEBEDIAH DREW,

Plaintiff,

Vv.

THE UNITED STATES OF AMERICA,

)

)

)

)

)

)

)

)

)

Defendant. )

)

ORDER

Plaintiffs filed an administrative claim and,

subsequently, this medical malpractice lawsuit based on their

specific contention that an agent or employee of the United

States administered a Depo Provera (birth control) injection

to Martha Drew ("Martha") while she was pregnant with

Sterling Drew ("Sterling"), and this injection caused Sterling

to be born with birth defects. The United States has moved for

80a

District Court Order - 10/15/98

summary judgment based on Martha's deposition testimony,

in which she stated that she did not receive a Depo Provera

injection from any United States employee or agent while she

was pregnant with Sterling.’ The United States argues that

Martha's testimony is directly contrary to the allegation upon

which plaintiffs’ case is premised and, consequently, their

claim necessarily must fail as a matter of law.

After the United States moved for summary judgment,

plaintiffs filed a motion to amend the complaint. Essentially,

plaintiffs seek to conform their allegations to Martha's

testimony.” The United States has responded to the motion to

amend by stating that while it has no objection to allowing

plaintiffs to amend, it intends to contest whether the Court has

subject-matter jurisdiction over the amended complaint.’

‘In their complaint and answers to Local Rule

interrogatories, plaintiffs specifically assert that United States

personnel administered Depo Provera injections to Martha while

she was pregnant. In her contrary deposition testimony, however,

Martha admits that this allegation is inaccurate, and she states that

her claim is actually based on the fact that she became pregnant

after receiving a Depo Provera injection.

It is unclear why plaintiffs’ Original allegations differ

significantly from her testimony.

> The United States anticipated that plaintiffs would seek

to amend, arguing in its Summary judgment memo that an

amendment would raise a jurisdictional problem. Plaintiffs

addressed this issue in their memorandum in support of the motion

to amend.

8la

District Court Order - 10/15/98

The Court will grant the motion to amend.‘ Plaintiffs

shall file and serve the amended complaint by no later than

October 26, 1998. Upon the filing of the amended complaint,

the Clerk of Court shall (without further Order) moot the

motion for summary judgment. If plaintiffs fail to file and

serve the amended complaint by October 26, the Court will

consider the summary judgment motion.°

IT IS SO ORDERED on this the 15th day of October,

1998, at Columbia, South Carolina.

/s/

DENNIS W. SHEDD

UNITED STATES DISTRICT JUDGE

* Although the Court is permitting this amendment, it

expresses no opinion on the jurisdictional issue identified by the

United States.

> After the Court had reviewed and considered the motion

for summary judgment, the parties consented to proceed before a

United States Magistrate Judge. The Court finds that until the

jurisdictional or summary judgments are resolved, it would be a

waste of judicial resources to refer this file, with which the Court

is now familiar, to another judicial officer.

82a

:

x

=

APPENDIX J

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

[Filed June 22, 1998]

Civil Action No. 3:98-1817-19

Sterling Drew, a minor under the age of

thirteen years, by his Guardian ad Litem

Martha Drew and Martha and Jebediah

‘Drew Personally

Plaintiff,

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The United States of America,

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Defendant. )

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The Plaintiffs for a Complaint against the Defendant

above named would respectfully show unto this Honorable

Court as follows:

FOR A FIRST CAUSE OF ACTION

E That the Plaintiff, Martha Drew, is a citizen

and resident of the County of Sumter, State of South Carolina,

and is the mother, natural guardian, as well as the duly

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District Court Complaint - 6/22/98

appointed Guardian Ad Litem, of the minor Plaintiff, Sterling

Drew.

2. That the Plaintiff, Jebediah Drew, is likewise

a citizen and resident of the County of Sumter, State of South

Carolina, and is the natural father of the minor, Sterling

Drew, and is the co-natural and legal guardian of Sterling

Drew, together with the Plaintiff, Martha Drew.

3. That the minor Plaintiff, Sterling Drew, is a

citizen and resident of the County of Sumter, State of South

Carolina, and brings this action through his duly appointed

Guardian Ad Litem, Martha Drew.

4. That the Defendant, the United States of

America, was at all times pertinent hereto, acting through its

agents and servants, in the course and scope of their agency

and employment, and through its duly constituted agency, the

Department of the Air Force, from Shaw Air Force Base,

South Carolina.

5. That the Court has subject-matter jurisdiction

over the claims and causes of actions set forth herein,

pursuant to the provisions of the Federal Tort Claims Act, and

specifically, 28 U.S.C. SECTION 1346 (b), and SECTIONS

2671-2680.

6. That at all times pertinent hereto, the Plaintiff,

Jebediah Drew, was and still is an active member of the

United States Air Force, and the Plaintiff, Martha Drew, as

his dependent, receive medical treatment from the hospital

located at Shaw Air Force Base, South Carolina.

District Court Complaint - 6/22/98

7. That as part of this treatment, Martha Drew

received birth control counselling, and birth control

medication, in the form of intravenous injections of Depo-

administered to the Plaintiff, Martha Drew, by the Defendant.

acting through its agents and servants and its duly constituted

agency, the Department of the Air Force at Shaw Air Force

Base, South Carolina, when the Plaintiff, Martha Drew, was

in fact pregnant with the minor Plaintiff, Sterling Drew.

9. That the Defendant was negligent, reckless,

willful, and wanton in the administration of Depo-Provera to

the Plaintiff, Martha Drew in the following particulars:

A. In failing to appropriately supervise its

personnel;

B. In failing to adopt appropriate policies

and procedures to ensure that Depo-Provera would not be

given to women who were in fact pregnant;

: C. In giving her Depo-Provera as a birth

control device without first administering a pregnancy test;

D. In failing to follow the appropriate

standard of care for the administration of Depo-Provera, in

that she was given Depo-Provera after the’ first five (5) days

of her menstrual cycle;

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District Court Complaint - 6/22/98

E. In failing to receive appropriate

counselling and/or information concerning the risks and

dangers of the use of Depo-Provera to any unborn child;

F. In failing to use the degree of care and

caution that a reasonable and prudent provider of obstetrical

and gynecological health care should have used under the

circumstances then and there prevailing.

All of which were the direct and proximate cause of

the injuries and damages suffered by the Plaintiffs, herein, all

of said acts and delicts being in violation of applicable legal

principles.

10. That as a direct and proximate result of the

above set forth delicts, the Plaintiff, Sterling Drew, suffered

grievous and permanent physical injury, including but not

limited to, an imperforate anus, a ventricular septal defect in

his heart, as well as genetic, developmental, glandular,

This text is long and has been trimmed here. Open the source document for the complete record.