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SURRATT v. UNITED STATES

March 15, 1984

WARNER D. SURRATT, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Prentice H. Marshall, District Judge;

  MEMORANDUM OPINION

Defendant has moved for summary judgment in this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), 2401(b), 2671-80 (1976). Plaintiff alleges that he was the victim of medical malpractice at the Veteran's Administration ("VA") hospital at Downey in North Chicago, Illinois. The complaint alleges that plaintiff went to the hospital because of urethral bleeding and a deformity of his penis. He underwent surgery on the advice of VA physicians in October 1981. Allegedly as a result of the treatment plaintiff received at the hospital, he is now unable to achieve an erection or engage in sexual intercourse, he has suffered a loss of tissue in his penis and loss of feeling in a part of his penis, he has difficulty in urination, and he has sustained physical disfigurement and emotional trauma.

The United States asserts two grounds for summary judgment: plaintiff's failure to file a proper administrative complaint under 28 U.S.C. § 2675(a), and the absence of a factual basis for the lawsuit. In addition, plaintiff has moved for reconsideration of an order we entered on October 6, 1983 granting the United States' motion that it be substituted as sole defendant in place of the VA and three VA physicians, whom plaintiff had named as defendants.

Plaintiff initially submitted a claim to the VA in April 1982 and amended it in May 1982. The claim was filed on a standard government form. Motion for Summary Judgment, Ex. A. It gives plaintiff's name, identifies the date, time, and place of the occurrence, and under the heading "description of accident" states "[m]edical malpractice — post surgical error." Under "nature and extent of injury," plaintiff states "[i]njury to penis." As "witnesses," plaintiff identifies the three physicians he alleges committed malpractice. Plaintiff identifies the amount of his claim as $2 million.*fn1

On July 26, 1982, an attorney with the VA sent plaintiff's attorney a letter acknowledging receipt of the claim. The letter went on to state that the VA was authorized by 28 C.F.R. § 14.4 and 38 C.F.R. § 14.607 to request additional information to assist it in investigating plaintiff's claim. The VA attorney requested records of and bills for all non-VA treatment for the condition since January 1979; documentation of any claim for lost wages or income; a detailed statement outlining the basis for the claim for $2 million; "[a] medical statement explaining why you believe the medical care provided was negligent"; and any other evidence that might bear on the United States' responsibility for plaintiff's injury. Motion for Summary Judgment, Ex. B. It is undisputed that plaintiff's attorney did not send the VA any information pursuant to this request.

On September 24, 1982, plaintiff's attorney contacted the VA attorney handling the claim, Dennis Kokinda. According to plaintiff's attorney, he told Kokinda that he needed some of the VA's records concerning plaintiff. He further states that he invited Kokinda to visit his office to discuss the case and examine plaintiff's attorney's file; Kokinda responded that he would wait to obtain the opinion of the VA physician then investigating the claim. Affidavit of Louis S. Goldstein ¶¶ 5-8. According to Kokinda, plaintiff's attorney told him that an expert had evaluated the care provided to plaintiff; Kokinda states that he instructed plaintiff's attorney to submit the expert's evaluation to the VA. Affidavit of Dennis A. Kokinda ¶ 3; Motion for Summary Judgment, Ex. C-1 (handwritten memorandum prepared by Kokinda apparently at the time of the telephone conversation). It is undisputed that plaintiff did not send the VA any additional information as a result of the September 24 phone conversation.

On December 6, 1982, the VA denied plaintiff's claim. The letter of denial stated that the VA's investigation "ha[d] failed to reveal any negligence or wrongful act or omission" on the part of any VA employee acting within the scope of his employment. Motion for Summary Judgment, Ex. D. The denial did not mention plaintiff's failure to complete the documentation of his claim.

The government did not submit to the court the reverse side of plaintiff's claim form. Plaintiff has submitted it as part of a surreply memorandum. The reverse of the form contains spaces for information relating to insurance coverage of the claimant. Plaintiff stated in the pertinent part of the form that he had filed a claim with his medical insurer "for payment to University of Chicago Hospital for surgical work to repair penis." Plaintiff's Sur-Reply, Ex. E at 2.

An FTCA action may not be commenced unless the claimant presents a claim to the appropriate federal agency and the agency denies the claim. 28 U.S.C. § 2675(a) (1976).*fn2 The administrative claim requirement is jurisdictional. Best Bearing Co. v. United States, 463 F.2d 1177, 1179 (7th Cir. 1972). Here, of course, plaintiff filed a claim; the issue is whether it was sufficiently detailed.

The government argues that the VA's request for additional information was authorized by 28 C.F.R. § 14.4 (1982) and 38 C.F.R. § 14.607 (1983). The former regulation was promulgated by the Department of Justice under the FTCA and the latter by the VA. The regulations are essentially identical. Both identify the types of information the agency may require a tort claimant to provide in support of a claim.*fn3 According to the government, the failure to document a claim pursuant to a request under these regulations renders the claim deficient.

Assuming for the present that Kokinda correctly recalls his September 24, 1982 conversation with plaintiff's attorney, plaintiff did not comply with the VA's request for additional information and documentation. The first issue we must address is whether this failure serves as a bar to plaintiff's action.

The government relies on Swift v. United States, 614 F.2d 812 (1st Cir. 1980) and a number of other cases of similar effect. In Swift the claimant, the representative of a person killed in an automobile accident with a United States Forest Service employee, sent a letter to the Forest Service stating a claim for $2 million. The agency provided her with a claim form and asked her to provide it with the necessary evidence needed in support of the claim. Four months later, the claimant filed the claim form without documentation. The agency again wrote her, detailing its need for information before it could process her personal injury claim. The claimant's counsel ignored the letter. The agency sent two more similar letters, warning that it could not process the claim without the necessary supporting information. Once six months passed, counsel deemed the claim denied under § 2675(a), see n. 2 supra, and filed a lawsuit.

The court of appeals in Swift accepted the district court's finding that plaintiff's failure to document her claim "prevented the agency from further evaluating the claim for settlement purposes, the very reason for the stringent claim requirements" in § 2675(a). Id. at 814. The agency was authorized under the FTCA regulations and its own regulations to request supporting information, the court noted. Id. The agency would have been authorized to deny the claim, the court stated, since this was "a case . . . where counsel's neglect prevented the agency from acting on the claim." Id.*fn4

In Lovell v. Unknown Federal Correctional Officers, 595 F.2d 281 (5th Cir. 1979) (per curiam), the court rejected an FTCA claim by an inmate who had failed to place a value on his lost property claim in response to an agency request. "[T]here was no way the government could act to pay his claim if it felt it should be paid. [Plaintiff] gave no values, not even his own estimate, but ...


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