# Petition for Writ of Certiorari — Drew ex rel. Drew v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0824%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2001 - **Citation:** 532 U.S. 1037 ## Text 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 , [ii tof) aro 4 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. 12a Court of Appeals Opinion - 6/27/00 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 13a Court of Appeals Opinion - 6/27/00 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 l4a Court of Appeals Opinion - 6/27/00 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. 15a Court of Appeals Opinion - 6/27/00 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 16a Court of Appeals Opinion - 6/27/00 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. 17a Court of Appeals Opinion - 6/27/00 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 a Court of Appeals Opinion - 6/27/00 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. 19a Court of Appeals Opinion - 6/27/00 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. 20a Court of Appeals Opinion - 6/27/00 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: 2la Court of Appeals Opinion - 6/27/00 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). 22a Court of Appeals Opinion - 6/27/00 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 23a Court of Appeals Opinion - 6/27/00 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: 24a Court of Appeals Opinion -'6/27/00 “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 Court of Appeals Opinion - 6/27/00 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’ 26a Court of Appeals Opinion - 6/27/00 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. 27a Court of Appeals Opinion - 6/27/00 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 Court of Appeals Opinion - 6/27/00 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). 29a Court of Appeals Opinion - 6/27/00 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 30a Court of Appeals Opinion - 6/27/00 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0824%3A1. Public record. Not legal advice.