United States District Court, W.D. Washington, Tacoma
ORDER DENYING DEFENDANT'S MOTION TO
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant United States of
America's (“Government”) motion to dismiss.
Dkt. 27. The Court has considered the pleadings filed in
support of and in opposition to the motion and the remainder
of the file and hereby denies the motion for the reasons
PROCEDURAL AND FACTUAL BACKGROUND
Marguerite Walker (“Plaintiff”) filed her claims
based on the death of her husband George Walker. Mr. Walker
served approximately eight years in the United States Air
Force, which qualified him for medical care provided by the
United States Department of Veterans Affairs
(“VA”). Dkt. 1, ¶¶ 3.4, 3.5.
2012 and 2016, doctors at the American Lake Veterans Hospital
evaluated Mr. Walker at least five times. Dkt. 28-2 at 4. On
June 14, 2012, VA medical staff documented that Mr. Walker
had a heart murmur. Id. However, on subsequent
visits no medical staff noted or evaluated Mr. Walker for
this murmur. Id.
21, 2016, Mr. Walker “presented to the American Lake
urgent care . . . with a chief complaint of difficulty
breathing and chest pain with minimal activity.”
Id. Mr. Walker was subsequently transferred to the
Seattle VA Hospital by ambulance for evaluation. Id.
At the Seattle hospital, the cardiothoracic surgical team
recommended surgery. Id. at 5. Mr. Walker was
discharged on June 23, 2016, to await surgery scheduled for
July 11, 2016. Id. On July 1, 2016, Plaintiff found
her husband unresponsive in their front yard and called for
emergency medical attention. Id. When medical
personnel arrived, they were unable to resuscitated Mr.
Walker, and they “pronounced [him] dead at the scene
due to sudden cardiac death.” Id.
April 24, 2017, Plaintiff filed an administrative claim. Dkt.
21-2. Plaintiff stated the basis of the claim as follows:
On June 23, 2016 Mr. Walker was evaluated at the Seattle VA
hospital. He was diagnosed with critical aortic stenosis.
Instead of being admitted for emergent surgery, Mr. Walker
was discharged with an appointment for surgery scheduled for
July 12, 2016. Mr. Walker was also discharged on beta
blockers. Mr. Walker died at home on the morning of July 1,
2016 awaiting his heart surgery. Veteran died waiting for
care on a surgical wait list.
Id. The Government failed to act on the claim, and
Plaintiff filed this suit when the Government's allotted
time expired. Id.
November 7, 2017, Plaintiff filed a complaint against the
Government asserting claims for medical negligence,
negligence, informed consent, and corporate negligence. Dkt.
April 18, 2019, the Government filed a motion to dismiss.
Dkt. 27. The Government asserts that the first time Plaintiff
disclosed her claim for a failure to diagnose was in her
pretrial statement delivered on March 21, 2019. Id.
The Government argues that the Court lacks jurisdiction over
the claim because Plaintiff failed to give fair notice of the
claim in her administrative claim. Id. On May 6,
2019, Plaintiff responded. Dkt. 42. On May 10, 2019, the
Government replied. Dkt. 43.
sovereign, the Government is immune from suit unless it
consents to be sued. United States v. Mitchell, 445
U.S. 535, 538 (1980). Any waiver of immunity is to be
strictly construed in favor of the United States. United
States v. Nordic Villages, Inc., 503 U.S. 30, 33-34
(1992). The Federal Tort Claims Act (“FTCA”) is a
limited waiver of sovereign immunity that permits claims to
be brought against the United States for the “negligent
or wrongful act or omission of any employee of the Government
while acting within the scope of his office or
employment.” 28 U.S.C. § 1346(b)(1). In order to
bring an FTCA claim against the United States, a plaintiff
must have presented the claim to the appropriate federal
agency and then the claim must have been finally denied by
that agency. 28 U.S.C. 2675(a). Thus, exhaustion of the
administrative remedy is a jurisdictional prerequisite to
filing an FTCA action. McNeil v. United States, 508
U.S. 106, 113 (1993).
case, the parties dispute the specificity of Plaintiff's
administrative claim. The Government concedes that Plaintiff
filed an administrative claim but contends that the claim
form did not include a claim for failure to diagnose. Dkt. 27
at 7-11. “[T]he prerequisite administrative claim need
not be extensive.” Goodman v. United States,
298 F.3d 1048, 1055 (9th Cir. 2002). “[T]he notice
requirement . . . is minimal, and a plaintiff's
administrative claims are sufficient even if a separate basis
of liability arising out of the same incident is pled in
federal court.” Id. Beyond these standards,
the parties do not provide and the Court is unable to locate
any Ninth Circuit authority that provides further guidance to
the issue at hand, except for the Circuit's statement
that “[w]e have prior precedent supporting a generous
notice interpretation . . . .” Id. at 1056.
Looking outside this Circuit, in Goodman, the Ninth
Circuit cited Burchfield v. United States, 168 F.3d
1252 (11th Cir. 1999) with approval. Goodman, 298
F.3d at 1055. There, the Eleventh ...