*District Judge of the Eastern District of Texas, sitting by

designation. 

 

1See 28 U.S.C. §§ 1346, 2671-2680. 

1

United States Court of Appeals,

Fifth Circuit.

No. 93-1659.

Chester L. FRANTZ and Vera Frantz, Plaintiffs-Appellants,

v.

UNITED STATES of America, Defendant-Appellee.

Aug. 23, 1994.

Appeal from the United States District Court for the Northern

District of Texas.

Before WISDOM and JONES, Circuit Judges, and COBB,* District Judge.

COBB, District Judge:

Appellants, Chester and Vera Frantz, brought this medical

malpractice action against the United States under the Federal Tort

Claims Act.1 The Frantzes appeal the dismissal of their informed

consent claim for lack of subject matter jurisdiction, as well as

the district court's failure to allow them leave to designate an

expert witness after the presumptive deadline established by the

Northern District of Texas local rules. We reverse.

I.

The facts of this case are not in dispute. In January 1988,

Chester Frantz was admitted to the Veterans Administration Medical

Center [VA Medical Center] in Dallas, Texas, complaining of

difficulty in breathing through his nose. Dr. Craig J. Summers

operated on him in an attempt to correct a nasal airway septal
2

deviation. Following the surgery, Frantz experienced blurriness

and a temporary loss of vision in his left eye. Before his

discharge from the hospital, Frantz notified Dr. Sesi of his

blurred vision.

Frantz continued to experience breathing problems. He

returned to the VA Medical Center, where he was readmitted on

August 10, 1988. Dr. Thomas N. Morrish diagnosed Frantz as having

a nasal airway obstruction. The next day, Frantz again underwent

surgery. Dr. Summers, assisted by Drs. Morrish and Cameron D.

Godfrey, performed an open rhinoplasty with a cartilage graft.

Soon after the operation, Frantz experienced a loss of vision in

his left eye. On examination by Dr. Summers and an

ophthalmologist, Frantz was found to have a central retinal artery

occlusion which has caused permanent loss of vision in his left

eye.

Chester and Vera Frantz each filed a Standard Form 95 with the

Veterans Administration in an effort to recover damages for

Frantz's injury. The VA denied their administrative claim, and the

Frantzes filed this suit on April 20, 1990, alleging negligence in

the care and treatment of Frantz. In their Third Amended Original

Complaint, the Frantzes additionally claimed that the government

failed to obtain informed consent from Frantz prior to the second

surgery.

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 under FED.R.CIV.P.
 

2Northern District of Texas Local Rule 8.1(c) provides: 

"Designation of Expert Witnesses. Unless otherwise directed by

the Presiding Judge, each party shall file a written designation

of its expert witnesses at least 90 days before trial." 

Accordingly, September 8, 1992 was the last day to designate

expert witnesses. 

 

3The deposition was contained in the Plaintiffs' motion for

leave to file a supplemental response to Defendant's motion for

summary judgment. 

3

12(b)(1) for lack of subject matter jurisdiction.

The court originally set the case for trial on December 7,

1992. On May 27, 1992, however, the case was transferred to a

different judge. After the transfer, the court directed the

parties to prepare a Joint Status Report on the case. In the

report, the parties requested a December 7, 1992 trial setting.

Thereafter, on October 21, 1992, the appellants moved to designate

Frantz's treating doctor, Thomas Morrish, as their expert witness.

Both parties had previously designated Dr. Morrish as a fact

witness and his deposition had been taken. The following day, the

court confirmed the December 7th trial setting.

After the confirmation of the trial setting, the government

objected to the designation of Dr. Morrish as untimely under

Northern District of Texas Local Rule 8.1(c)2 and moved for summary

judgment. This triggered a flurry of responses and replies,

including the Frantzes' submission of Dr. Morrish's deposition

testimony to the court.3 In his deposition, Dr. Morrish stated

that he would not have performed the second operation if he had

been aware of Mr. Frantz's temporary loss of vision following the
 

4Deposition of Thomas Morrish, at 18-19. 

4

earlier operation.4 Despite the submission of Dr. Morrish's

deposition, the district court granted the government's motion for

summary judgment on the Frantzes' remaining negligence claim.

Implicitly denying the motion for leave to designate Dr. Morrish,

the court apparently found the appellants had failed to provide any

evidence admissible at trial to defeat summary judgment.

II.

In their first point of error, the Appellants contend that the

district court erred in dismissing their informed consent claim.

Specifically, they urge that their administrative claim was

sufficient to put the government on notice of a possible claim for

lack of informed consent. We agree.

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. § 2675(a). Congress instituted the presentation

requirement "to ease court congestion and avoid unnecessary

litigation, while making it possible for the Government to expedite

the fair settlement of tort claims asserted against the United

States." S.REP. NO. 1327, 89th Cong., 2d Sess. 6 (1966), reprinted

in 1966 U.S.C.C.A.N. 2515, 2516. 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 and

(2) places a value on his or her claim." Adams v. United States,

615 F.2d 284, 289, clarified, 622 F.2d 197 (5th Cir.1980).
 

5Under the Federal Tort Claims Act, the law of the state in

which the alleged tort occurred controls. 28 U.S.C. § 1346(b); 

See Richards v. United States, 369 U.S. 1, 6-8, 82 S.Ct. 585,

589-90, 7 L.Ed.2d 492 (1962). 

5

This court has not required plaintiffs to specifically

enumerate legal theories of recovery in their administrative

claims. As we stated in Rise v. United States, 630 F.2d 1068 (5th

Cir.1980), the purpose of § 2675

will be served as long as a claim brings to the Government's

attention facts sufficient to enable it thoroughly to

investigate its potential liability and to conduct settlement

negotiations with the claimant. Accordingly, we think that if

the Government's investigation of [the plaintiffs'] claim

should have revealed theories of liability other than those

specifically enumerated therein, those theories can properly

be considered part of the claim. Rise, 630 F.2d at 1071.

 In the present case, the administrative claim provided

sufficient facts to enable the government to investigate its

potential liability and to conduct settlement negotiations with the

Frantzes. 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 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 "[a]ll medical personnel who cared for Chester Frantz" as

potential witnesses. Finally, the Frantzes sought $2 million for

the injury.

Furthermore, the government's investigation of the

administrative claim should have revealed the possibility of an

informed consent claim. Under Texas law,5 a suit for the failure
 

6Section 6.02 provides: "In a suit against a physician or

health care provider involving a health care liability claim that

is based on the failure of the physician or health care provider

to disclose or adequately to disclose the risks and hazards

involved in the medical care or surgical procedure rendered by

the physician or health care provider, the only theory on which

recovery may be obtained is that of negligence in failing to

disclose the risks or hazards that could have influenced a

reasonable person in making a decision to give or withhold

consent." TEX.REV.CIV.STAT.ANN. art. 4590i § 6.02 (Vernon

Supp.1994). 

 

7Furthermore, in light of the caselaw and Congressional

purpose of § 2675(a), the court refuses to limit the word "in,"

as used in the administrative claim, to the actual surgical

procedure. The term "[i]n ... is synonymous with expressions "in

regard to,' "respecting,' [and] "with respect to,' ..." BLACK'S

LAW DICTIONARY, at 683 (5th ed. 1979). 

6

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

sounds in negligence. TEX.REV.CIV.STAT.ANN. art. 4590i § 6.02

(Vernon Supp.1994);6 McKinley v. Stirpling, 763 S.W.2d 407, 409

(Tex.1989). By its very nature, the informed consent claim is

included in the Frantzes' allegation of negligence in their

administrative claim.7

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. Consequently, we reverse its dismissal.

The government argues that Bush v. United States, 703 F.2d 491

(11th Cir.1983) suggests an opposite conclusion. In Bush, the

Eleventh Circuit summarily affirmed the district court's dismissal

of the plaintiff's informed consent claim. The court's skeletal

description of the administrative claim and its contents makes
 

8Moreover, Bush was apparently based in part on Florida

informed consent law. See note 5, supra. The Florida Medical

Consent statute formerly provided: "A consent which is evidenced

in writing ... shall, if validly signed by the patient or another

authorized person, be conclusively presumed to be a valid

consent." FLA.STAT.ANN. § 768.46(4)(a), amended by, §

766.103(4)(a). However, three years after the decision in Bush,

the Florida Supreme Court held that the consent must also be

"informed" before the presumption of validity will attach. 

Parikh v. Cunningham, 493 So.2d 999, 1001 (Fla.1986). 

 

9See also Mellor v. United States, 484 F.Supp. 641 (D.Utah

1978) (administrative claim which alleged "[n]egligent care and

treatment by medical and hospital personnel resulting in damage

to [plaintiff]" properly presented informed consent claim). 

7

application of the case troublesome.8 Furthermore, application of

Bush to the present case runs counter to the minimal notice

requirement announced in Rise and Adams, supra.9 In light of these

cases, as well as the statutory purpose of Section 2675(a), we

decline the government's invitation to follow Bush.

III.

Our disposition of appellants' first point of error pretermits

review of the denial of the appellants' motion to designate expert

witnesses and the district court's resulting grant of summary

judgment. On remand, the district court will presumably establish

a revised trial timetable. Because such a plan will necessarily

include a revised deadline for the designation of expert witnesses,

the district court's grant of summary judgment based on the

appellants' failure to produce admissible expert opinion evidence

will become moot. For the above reasons, the case is

REVERSED and REMANDED.