United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.
the Court is the United States of America's partial
motion to dismiss. (Dkt. No. 35.) For the reasons set forth
below, the motion is denied.
bring this medical malpractice claim against the United
States of America (the "Government") pursuant to
the Federal Tort Claims Act ("FTCA"), 28 U.S.C.
§§ 2671-2680, for alleged personal injuries
sustained by Paul Holliday relating to a May 2015 prostate
surgery conducted at the Ralph H. Johnson VA Medical
Center-Charleston. (Dkt. No. 1 ¶¶ 11-22.) The
Government now moves to dismiss for lack of subject-matter
jurisdiction "some of the theories of relief
alleged" as found in paragraph 24 of the Complaint. At
issue is whether Plaintiffs satisfied the administrative
exhaustion requirement of the FTCA before bringing suit by
first sufficiently presenting the claim to the Veterans
Motion to Dismiss Pursuant to Rule 12(h)(3)
the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action."
Fed.R.Civ.P. 12(h)(3); see also Arbaugh v. Y&H
Corp., 546 U.S. 500, 506 (2006) ("The objection
that a federal court lacks subject-matter jurisdiction . . .
may be raised at any stage in the litigation, even after
trial and the entry of judgment, Rule 12(h)(3)."). The
determination of subject-matter jurisdiction "may be
based on the court's review of the evidence."
Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir.
1999). The plaintiff has the burden of proving that
subject-matter jurisdiction exists. Evans v. B.F. Perkins
Co., a Div. of Standex Intern. Corp., 166 F.3d 642, 647
(4th Cir. 1999).
Exhaustion of the FTCA Presentment Requirement
Government enjoys sovereign immunity from suits for damages
at common law, and the FTCA constitutes a limited waiver of
this immunity. Perkins v. United States, 55 F.3d
910, 913 (4th Cir. 1995). Specifically, the FTCA provides
that the Government cannot be sued for money damage arising
from personal injury allegedly caused by the negligence of a
Government employee acting within the scope of his or her
employment, "unless the claimant shall have first
presented the claim to the appropriate Federal agency"
for an administrative determination. 28 U.S.C. §
2675(a). This "requirement of filing an administrative
claim is jurisdictional and may not be waived."
Henderson v. United States, 785 F.2d 121, 123 (4th
is presented "when a Federal agency receives
from a claimant ... an executed Standard Form 95 or other
written notification of an incident, accompanied by a claim
for money damages in a sum certain for injury to or loss of
property, personal injury, or death." 28 C.F.R. §
14.2(a). The "claimant meets his burden if the notice
(1) is sufficient to enable the agency to investigate and (2)
places a sum certain value on her claim." Ahmed v.
United States, 30 F.3d 514, 517 (4th Cir. 1994)
(internal quotation marks omitted). In other words, "no
particular form or manner of giving such notice is required
as long as the agency is somehow informed of the fact of
and amount of the claim." Id. (quoting Williams
v. United States, 693 F.2d 555, 557 (5th Cir. 1982)
(emphasis in original). Because "no statement of legal
theories is required [on a Standard Form 95], only facts plus
a demand for money, the claim encompasses any cause of action
fairly implicit in the facts." Murrey v. United
States, 73 F.3d 1448, 1452 (7th Cir. 1996); see also
Adkins v. United States, 896 F.2d 1324, 1326 (11th Cir.
1990). "In short, the amount of information required is
'minimal.'" Burchfield v. United
States, 168 F.3d 1252, 1255 (11th Cir. 1999) (quoting
Adams v. United States, 615 F.2d 284, 289 (5th Cir.
1980)); see also GAF Corp. v. United States, 818
F.2d 901, 919 (D.C. Cir. 1987) (holding that § 2675(a)
requires a claimant to file "a written statement
sufficiently describing the injury to enable the agency to
begin its own investigation").
Government argues that paragraph 24 of the Complaint contains
theories of relief that must be dismissed because they were
not encompassed by the Standard Forms 95 ("SF-95")
that Mr. Holliday presented to the Veterans Administration
prior to bringing suit.
Holliday submitted two Standard Forms 95 ("SF-95")
to the Veterans Administration. The first SF-95, dated June
16, 2016, provided:
Basis of Claim: Mr. Holliday was a patient at the Ralph H.
Johnson VA Medical Center. He was being treated for a P.E.
[pulmonary embolus] that occurred following prostate surgery
6 days earlier. He was given an enema, resulting in a fistula
between the ...