Stewart J. Smith v. United States
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Opinion
USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 1 of 58
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-11365 ________________________
D.C. Docket No. 5:18-cv-00277-TES
STEWART J. SMITH,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Middle District of Georgia ________________________
(July 29, 2021)
Before WILSON, ROSENBAUM and HULL, Circuit Judges.
HULL, Circuit Judge:
In 2018, Mr. Smith, a veteran, initiated this lawsuit in federal district court
against the United States, proceeding under the Federal Tort Claims Act USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 2 of 58
(“FTCA”), 28 U.S.C. § 1346(b). Mr. Smith claimed, in part, that various medical
professionals working for the Department of Veterans Affairs (the “VA”) breached
their legal duty to exercise ordinary medical care and negligently failed to diagnose
his throat cancer and immediately treat it. The district court granted the
government’s motion to dismiss Smith’s complaint for lack of subject matter
jurisdiction. The district court concluded that its judicial review of his claims was
precluded by the Veterans’ Judicial Review Act (“VJRA”), 38 U.S.C. § 511(a),
which restricts judicial review of “questions of law and fact necessary to a
decision by the Secretary under a law that affects the provision of benefits by the
Secretary to veterans.” 38 U.S.C. § 511(a).
After review, and with the benefit of oral argument, we conclude that the
district court did lack jurisdiction over some of Mr. Smith’s claims, but that it had
jurisdiction over his tort claims alleging medical negligence or malpractice. We
thus affirm in part and reverse in part the dismissal of Mr. Smith’s complaint.
I. SUBJECT MATTER JURISDICTION
All agree that the government’s attack on the district court’s subject matter
jurisdiction is a factual—as opposed to a facial—one. The parties submitted, and
the district court properly considered, evidence relevant to the court’s jurisdictional
inquiry. See Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003)
(“In resolving a factual attack, the district court may consider extrinsic evidence
2 USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 3 of 58
such as testimony and affidavits.” (citation omitted)). Therefore, in recounting the
basic facts, we rely on material outside the operative complaint, including
depositions, affidavits, and medical records.
II. VETERANS’ HEALTH CARE
The VA provides medical care to veterans through the Veterans Health
Administration (“VHA”). The Secretary of Veterans Affairs (the “Secretary”)
manages the provision of health benefits to eligible veterans. See Veterans Health
Administration, About VHA, https://www.va.gov/health/aboutvha.asp (last
accessed July 29, 2021). Dr. Robert Ferris, an expert witness retained by Mr.
Smith, testified that the standard of care for medical treatment received through the
VA is no different from the standard of medical care that applies throughout the
United States. 1 See Anestis v. United States, 749 F.3d 520, 527 (6th Cir. 2014)
(noting a veteran’s widow’s claims of malpractice by VA hospital staff were
“based on standards of care that govern medical professionals” generally).
The VA provides medical care to veterans by two means: (1) by providing
care directly through the VA’s own medical professionals and their supporting
personnel; and (2) by paying medical-care providers in the local community
outside the VA when veterans need care that cannot be provided within the VA
1 As part of the limited initial discovery in this case, Mr. Smith had expert reports prepared by a physician, Dr. Ferris, and a nurse, Karen Rose. The United States deposed both experts prior to filing its motion to dismiss the complaint.
3 USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 4 of 58
system. See Community Care, Veterans Overview, https://www.va.gov/
communitycare/programs/veterans/index.asp (last accessed July 29, 2021).
As to outside treatment, the medical care is arranged through a purchased-
care model where the VA must authorize the outside treatment in advance. See 38
U.S.C. § 1703. The VA’s approval process for outside care has two components:
(1) administrative review; and (2) clinical review. The process begins when a VA
provider (such as a doctor) completes, signs, and submits a non-VA care referral
through the VA’s Computerized Patient Record System. Members of the VA’s
Care Coordination Team then perform an administrative eligibility review to
determine whether to approve the outside care. The administrative review involves
determining whether the patient is eligible as a veteran to receive VA benefits.
The VA’s Care Coordination Team also performs a clinical review. That
clinical review—which cannot occur unless the patient is administratively
eligible—concerns whether, for example, the services are available within the VA
and whether the outside services are medically necessary. While the eligibility
review may be conducted by someone acting in a solely administrative role, the
clinical review is conducted often by a nurse, sometimes with the oversight of a
doctor. The “referral review process” is complete once the referral is approved or
denied.
4 USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 5 of 58
Here, both the administrative and clinical review were performed by Nurse
Nkechi Ekwueme (“Nurse Ekwueme”), who was the VA’s Care Coordinator for
Mr. Smith. After the outside medical care is approved, another VA employee
schedules the appointment with an appropriate outside care provider.
The VA’s Care Coordinator has another substantive role in a veteran’s
medical care. Nurse Karen Rose (“Nurse Rose”), another expert witness retained
by Mr. Smith, testified about the functions of a VA nurse care coordinator and
whether Nurse Ekwueme acted “within the standard of care for nursing care
coordination” throughout Mr. Smith’s care. 2 In particular, Nurse Rose, a
registered nurse with VA work experience, opined that one of the primary
functions of a VA care coordinator was to “[t]rack and monitor” the patient’s
medical care and treatments throughout the time he is receiving outside VA care.
According to Nurse Rose, Nurse Ekwueme was responsible for, among other
duties, managing, coordinating, and monitoring the medical consultation and
2 Nurse Rose’s past employment included positions as a “Nurse Case Manager” at Fort Bliss, Texas, a case manager for high-risk patients within the VA, and an “Alternate Traveling Veteran Care Coordinator.” In these positions, Nurse Rose was involved in coordinating care for soldiers and veterans, including “facilitating care .
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USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 1 of 58
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-11365 ________________________
D.C. Docket No. 5:18-cv-00277-TES
STEWART J. SMITH,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Middle District of Georgia ________________________
(July 29, 2021)
Before WILSON, ROSENBAUM and HULL, Circuit Judges.
HULL, Circuit Judge:
In 2018, Mr. Smith, a veteran, initiated this lawsuit in federal district court
against the United States, proceeding under the Federal Tort Claims Act USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 2 of 58
(“FTCA”), 28 U.S.C. § 1346(b). Mr. Smith claimed, in part, that various medical
professionals working for the Department of Veterans Affairs (the “VA”) breached
their legal duty to exercise ordinary medical care and negligently failed to diagnose
his throat cancer and immediately treat it. The district court granted the
government’s motion to dismiss Smith’s complaint for lack of subject matter
jurisdiction. The district court concluded that its judicial review of his claims was
precluded by the Veterans’ Judicial Review Act (“VJRA”), 38 U.S.C. § 511(a),
which restricts judicial review of “questions of law and fact necessary to a
decision by the Secretary under a law that affects the provision of benefits by the
Secretary to veterans.” 38 U.S.C. § 511(a).
After review, and with the benefit of oral argument, we conclude that the
district court did lack jurisdiction over some of Mr. Smith’s claims, but that it had
jurisdiction over his tort claims alleging medical negligence or malpractice. We
thus affirm in part and reverse in part the dismissal of Mr. Smith’s complaint.
I. SUBJECT MATTER JURISDICTION
All agree that the government’s attack on the district court’s subject matter
jurisdiction is a factual—as opposed to a facial—one. The parties submitted, and
the district court properly considered, evidence relevant to the court’s jurisdictional
inquiry. See Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003)
(“In resolving a factual attack, the district court may consider extrinsic evidence
2 USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 3 of 58
such as testimony and affidavits.” (citation omitted)). Therefore, in recounting the
basic facts, we rely on material outside the operative complaint, including
depositions, affidavits, and medical records.
II. VETERANS’ HEALTH CARE
The VA provides medical care to veterans through the Veterans Health
Administration (“VHA”). The Secretary of Veterans Affairs (the “Secretary”)
manages the provision of health benefits to eligible veterans. See Veterans Health
Administration, About VHA, https://www.va.gov/health/aboutvha.asp (last
accessed July 29, 2021). Dr. Robert Ferris, an expert witness retained by Mr.
Smith, testified that the standard of care for medical treatment received through the
VA is no different from the standard of medical care that applies throughout the
United States. 1 See Anestis v. United States, 749 F.3d 520, 527 (6th Cir. 2014)
(noting a veteran’s widow’s claims of malpractice by VA hospital staff were
“based on standards of care that govern medical professionals” generally).
The VA provides medical care to veterans by two means: (1) by providing
care directly through the VA’s own medical professionals and their supporting
personnel; and (2) by paying medical-care providers in the local community
outside the VA when veterans need care that cannot be provided within the VA
1 As part of the limited initial discovery in this case, Mr. Smith had expert reports prepared by a physician, Dr. Ferris, and a nurse, Karen Rose. The United States deposed both experts prior to filing its motion to dismiss the complaint.
3 USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 4 of 58
system. See Community Care, Veterans Overview, https://www.va.gov/
communitycare/programs/veterans/index.asp (last accessed July 29, 2021).
As to outside treatment, the medical care is arranged through a purchased-
care model where the VA must authorize the outside treatment in advance. See 38
U.S.C. § 1703. The VA’s approval process for outside care has two components:
(1) administrative review; and (2) clinical review. The process begins when a VA
provider (such as a doctor) completes, signs, and submits a non-VA care referral
through the VA’s Computerized Patient Record System. Members of the VA’s
Care Coordination Team then perform an administrative eligibility review to
determine whether to approve the outside care. The administrative review involves
determining whether the patient is eligible as a veteran to receive VA benefits.
The VA’s Care Coordination Team also performs a clinical review. That
clinical review—which cannot occur unless the patient is administratively
eligible—concerns whether, for example, the services are available within the VA
and whether the outside services are medically necessary. While the eligibility
review may be conducted by someone acting in a solely administrative role, the
clinical review is conducted often by a nurse, sometimes with the oversight of a
doctor. The “referral review process” is complete once the referral is approved or
denied.
4 USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 5 of 58
Here, both the administrative and clinical review were performed by Nurse
Nkechi Ekwueme (“Nurse Ekwueme”), who was the VA’s Care Coordinator for
Mr. Smith. After the outside medical care is approved, another VA employee
schedules the appointment with an appropriate outside care provider.
The VA’s Care Coordinator has another substantive role in a veteran’s
medical care. Nurse Karen Rose (“Nurse Rose”), another expert witness retained
by Mr. Smith, testified about the functions of a VA nurse care coordinator and
whether Nurse Ekwueme acted “within the standard of care for nursing care
coordination” throughout Mr. Smith’s care. 2 In particular, Nurse Rose, a
registered nurse with VA work experience, opined that one of the primary
functions of a VA care coordinator was to “[t]rack and monitor” the patient’s
medical care and treatments throughout the time he is receiving outside VA care.
According to Nurse Rose, Nurse Ekwueme was responsible for, among other
duties, managing, coordinating, and monitoring the medical consultation and
2 Nurse Rose’s past employment included positions as a “Nurse Case Manager” at Fort Bliss, Texas, a case manager for high-risk patients within the VA, and an “Alternate Traveling Veteran Care Coordinator.” In these positions, Nurse Rose was involved in coordinating care for soldiers and veterans, including “facilitating care . . . with outside facilities.” Nurse Rose based her opinions in part on the “Case Management Society of America Standards of Practice” (which lays out “standards of practice for all case managers who coordinate care”) as well as her education and work experience.
5 USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 6 of 58
treatment Mr. Smith received from an outside ear, nose, and throat (“ENT”)
specialist, Dr. Sanford Duke. 3 We now detail Mr. Smith’s medical care.
III. MR. SMITH’S CANCER
Mr. Smith is a veteran of the U.S. Army who served during the Vietnam era.
In 1972, he was honorably discharged, and, since then, he has received medical
care through the VA. Since 2004, Mr. Smith has received medical care at the Carl
Vinson VA Medical Center in Dublin, Georgia (the “VA Medical Center”). At the
relevant time, Mr. Smith’s primary care physician was Dr. Neelima Puppala, an
inside VA care provider.
A. October 2013: Emergency Room
On October 24, 2013, Mr. Smith called the nurse triage line at the VA
Medical Center and reported severe pain in the right side of his head, particularly
behind his ear and eye, accompanied by tongue swelling that caused his speech to
be slurred. A VA nurse relayed a message to Dr. Puppala and directed Mr. Smith
to the emergency room. That day, Mr. Smith sought care at the Coliseum Medical
Center Emergency Department (“ER”) in Macon, Georgia. The ER physician,
3 According to the VA’s “Process Guide” for Non-VA Care Coordination, “Non-VA Care Coordination activities . . . continue through the episode of non-VA care.” During this time, it may be necessary for the Care Coordinator to generate progress notes to “coordinate, facilitate, and document support services required by the Veteran.”
6 USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 7 of 58
believing Mr. Smith’s symptoms were an adverse reaction to Neurontin, instructed
him to stop taking Neurontin and to follow up with his VA physician.
The very next day, October 25, 2013, Mr. Smith contacted Dr. Puppala’s
office, but he was unable to secure a VA appointment with Dr. Puppala until
December 16, 2013—nearly two months later.
B. December 2013–January 2014: Diagnosis and CT Scans
At the December 16 appointment, Mr. Smith reported to Dr. Puppala, his
VA doctor, that his tongue had remained dry and swollen since the October 24 ER
visit and that the right side of his neck had begun to swell in the weeks prior to this
appointment. Dr. Puppala noted the ER evaluation, examined Mr. Smith, and
confirmed the right “submandibular gland swelling.” Dr. Puppala ordered CT
scans without contrast of Mr. Smith’s neck. The VA scans, however, did not occur
until over a month later, on January 14, 2014.
Predictably, the January 14 CT scans showed a tumor in Mr. Smith’s throat
at the base of his tongue. At that point, the tumor had spread to three lymph nodes
in his right neck. According to the VA radiologist’s report, the CT scans showed
“an enlarged mass or lymph node” in Mr. Smith’s right neck, “abnormally
enlarged and irregular appearing lymph nodes” also in his right neck, and
“[q]uestionable increased soft tissue density in the right base of [his] tongue.”
7 USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 8 of 58
Dr. Ferris testified that, given the extent of the swelling in Mr. Smith’s neck
and the undisputed presence of a mass in his neck, there was a “joint duty on the
part of the [VA] physician and radiology” teams to get Mr. Smith in for CT scans
“[w]ithin days, a week at the most” of his December 16 visit and to then assess the
results quickly to arrive at a diagnosis. According to Dr. Ferris, the urgency of Mr.
Smith’s condition ought to have been apparent, since “a neck mass in an adult is
cancer until proven otherwise.”4
Dr. Ferris opined that “Mr. Smith had initial symptoms of tongue
malignancy in October 2013 and there were obvious findings of his tongue cancer
on the CT scans on January 14, 2014.” Dr. Ferris also testified, based on his
review of the January 14 CT scans, that Mr. Smith “appeared to be clinical stage
IV,” given that there were “two or more metastatic lymph nodes” and also “a large
tumor at the primary site.” Even the VA radiologist noted that the January 14
scans were “worrisome for underlying head and neck malignancy”—cancer.
Despite all this, the VA radiologist, Dr. Matthew Dobbs, only recommended
an outside “ENT consultation and visual inspection and possible PET/CT for
biopsy of these nodes.” Dr. Ferris opined that, “[h]ad Mr. Smith’s malignancy
4 Dr. Ferris is a medical doctor licensed to practice medicine in the State of Pennsylvania. He holds a medical degree from the Johns Hopkins Medical School, and is board certified in otolaryngology. Since at least 2002, Dr. Ferris had been regularly engaged in the active practice and teaching of otolaryngology, immunology, and head and neck oncologic surgery.
8 USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 9 of 58
been diagnosed in January 2014, as it should have been, it is more likely than not
that the malignancy could have been resectable at the time.”
Upon receiving the CT scans on January 16, 2014, Dr. Puppala informed VA
personnel that Mr. Smith needed another appointment with Dr. Puppala “ASAP” to
discuss the results. Receiving this ASAP direction from Dr. Puppala, VA
personnel promptly scheduled Mr. Smith for an appointment a week later, on
January 22, 2014, with Dr. Puppala. Apparently, when the VA doctor orders it,
VA personnel can act and schedule quickly.
Even before seeing Mr. Smith for the January 22 follow-up, Dr. Puppala,
like the VA radiologist, recommended and ordered a “non-VA consult” for Mr.
Smith with an ENT specialist and entered a “Non-VA Care Coordination Note”
into Mr. Smith’s treatment record requesting the outside ENT consult. Although
there were “obvious findings of [Mr. Smith’s] tongue cancer on the CT scan[s]
[on] January 14, 2014,” no medical person on Mr. Smith’s medical team ordered,
requested, or tried to facilitate an immediate or expedited consult.
At the January 22 follow-up appointment, Dr. Puppala discussed the CT
scans with Mr. Smith. Although the primary purpose of the visit was to discuss the
scans, Dr. Puppala noted that Mr. Smith still had swelling on the right side of his
neck and that the swelling was now causing pain in his right ear. Given Mr.
Smith’s continued symptoms and the “worrisome” findings of “head and neck
9 USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 10 of 58
malignancy” on the CT scans, Dr. Puppala entered another Care Coordination Note
ordering an outside ENT consult.
As detailed above, once Dr. Puppala ordered the outside ENT consult, a VA
Clinical Care Coordinator, here Nurse Ekwueme, was responsible for conducting
an administrative and clinical review of Dr. Puppala’s ENT consult order to
determine Mr. Smith’s eligibility and approve the ENT consult. Mr. Smith’s
treatment record indicates that on January 24, 2014, two days after Dr. Puppala
entered the second Care Coordination Note, Nurse Ekwueme approved the ENT
consult. Specifically, Nurse Ekwueme made a note in Mr. Smith’s treatment
record that the ENT consult Dr. Puppala ordered was “authorized by Fee,” and the
consult was given to the Fee PSA (Program Support Assistant) for processing. On
the same day, the Fee PSA acknowledged receipt of Nurse Ekwueme’s
authorization note.
In short, as of January 24, 2014, the VA had completed its administrative
and clinical review and determined that Mr. Smith was eligible for an outside ENT
consult and that the consult was medically necessary. There was no benefits issue
as to the outside ENT consult then or at any time.
C. January 24–March 11, 2014: No Medical Follow Up on Outside ENT Care
Despite the obvious findings of tongue cancer shown in the January 14 CT
scans and the urgency of Mr. Smith’s cancer condition, the VA’s medical staff
10 USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 11 of 58
took no further action for almost a month. There is no indication in the record of
any management, coordination, monitoring, or follow-up as to Mr. Smith’s
medical care by any of his VA medical professionals or their supporting personnel.
It took until February 21, 2014, for the VA to even send information to the
ENT Center of Central Georgia, an outside private medical group. This one-month
delay was not due to any dispute about whether Mr. Smith was entitled to benefits.
To the contrary, once Nurse Ekwueme indicated in the treatment record on January
24 that Mr. Smith’s outside ENT care was approved, there were no concerns with
whether Mr. Smith was eligible for the outside medical care ordered by Dr.
Puppala or whether that outside medical care was medically necessary.
Meanwhile, the private clinic, the ENT Center of Central Georgia, informed
Mr. Smith that they were still awaiting notice of the VA’s approval for his visit. It
appears that despite the indications in the VA record that the outside care was
already approved, the ENT Center had not yet received anything from the VA.
Again, from January 24 to March 6, there appears to have been no medical follow
up or care coordination by any VA medical professionals or their supporting
personnel. So, on March 6, 2014, Mr. Smith contacted the VA Medical Center
about his outside ENT consult.
In response, VA Nurse Ekwueme, as Care Coordinator, intervened the
following day. On March 7, Nurse Ekwueme faxed an authorization to the private
11 USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 12 of 58
ENT Center and scheduled an appointment for March 11, 2014, almost two months
after the January 14 CT scans and almost three months after Dr. Puppala examined
Mr. Smith on December 16. The private ENT Center saw Mr. Smith promptly on
March 11. In fact, once the VA faxed the authorization on March 6, the ENT
specialist saw Mr. Smith a mere five days later (March 11). If anything, this again
demonstrates how the VA’s medical personnel are able to get a VA patient with
serious cancer seen immediately and are able to manage and coordinate medical
care.
At the March 11 appointment, Dr. Sanford Duke, the private ENT, examined
Mr. Smith and confirmed he had a palpable mass on his right neck and the base of
his tongue. Mr. Smith again presented with symptoms including dysphagia
(difficulty swallowing), dry mouth, mucous after drinking, and affected speech.
After reviewing the January 14 CT scans, Dr. Duke immediately performed a fine
needle aspiration of the mass for pathological examination. Predictably, the
pathology results indicated “Malignant Cells present, poorly differentiated
carcinoma”—cancer.
Two days later, on March 13, 2014, Dr. Duke saw Mr. Smith again, at which
point he advised Mr. Smith that he needed immediate surgery for his cancer.
Dr. Duke noted the need for a set of scans with contrast and a PET scan before he
could surgically remove Mr. Smith’s tumor. VA policies and procedures,
12 USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 13 of 58
however, required that the scans be performed back at a VA facility. Again, there
is no dispute that Mr. Smith was eligible for these scans and that they were
medically necessary.
D. March 13–April 24, 2014: No Medical Follow-Up on PET Scan
Despite the urgency and seriousness of Mr. Smith’s cancer diagnosis and the
need for immediate surgery on March 13, the VA medical team did not manage,
coordinate, monitor, or follow-up as to Mr. Smith’s medical care. Rather, it took
weeks to do the new scans. The CT scans with contrast were not performed until
March 28, 2014, over two weeks after they were ordered, and the PET scan was
not done until April 7, 2014, over three weeks after it was ordered.
The CT scans with contrast showed enlarged nodes in the right neck and a
questionable soft tissue density in the base of the tongue. But, as of April 14, 2014
(a month after the scans were ordered), Mr. Smith still did not have the results
from the PET scan, so he called the VA Medical Center.
On April 24, 2014, Mr. Smith emailed Dr. Puppala about his “serious
malignancy,” stating that he had not received the results of the April 7 PET scan:
I am very concerned about the cancer on my neck and tongue that you and the radiologist diagnosed in January 2014. I had experienced symptoms of ear pressure, headache, and problems with movement of my tongue since about October 2013. It is now almost May, and I have not been contacted by . . . [the VA Medical Center] . . . with an interpretation of my PET scan results . . . . And since Dr. Dukes’ [sic] office has informed me that VA has not authorized him to provide further care (presumably surgery and radiation), I have a serious
13 USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 14 of 58
malignancy but do not yet have a plan of care from any medical professional at VA. Am I missing something here, or is treatment of my cancer not an urgent matter?
E. April 25, 2014: PET Scan Results
On April 25, 2014, apparently in response to Mr. Smith’s email, Dr. Puppala
noted the findings of Mr. Smith’s PET scan and stated that Mr. Smith needed to
“follow up with [his] ENT . . . who requested the PET scan.” Consistent with the
January 14 CT scans, the PET scan showed evidence of a primary malignancy of
the tongue, as well as evidence of right cervical lymph node metastases.
That very same day, Dr. Puppala also called and emailed the VA’s fee
department to gain approval for Mr. Smith’s follow-up care—including surgery to
remove his throat tumor—with Dr. Duke. According to the notes in Mr. Smith’s
patient record, Dr. Puppala was unsure why Mr. Smith’s follow-up with Dr. Duke
needed approval, since “[u]sually the consutls [sic] we submit are approved for a
year.” Dr. Puppala herself stated that the VA (specifically the “fee dep[artmen]t”
where Nurse Ekwueme worked) should have been coordinating with the private
ENT center to set up Mr. Smith’s follow-up appointments with Dr. Duke.
Unfortunately for Mr. Smith, this apparently did not occur between March 13 and
May 13.
14 USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 15 of 58
F. May 19, 2014: Surgery
It was not until Mr. Smith obtained legal counsel who contacted
Congressman John Barrow, who in turn contacted the VA on May 12, 2014, that
Mr. Smith’s surgery and other follow-up care was approved on May 13, 2014. The
treatment record reflects that on May 13, 2014, the VA’s Acting Chief of Staff,
Dr. Shauna S. Kincheloe-Zaren, entered a note in response to Congressman
Barrow’s letter stating that “[a] new consult [order] was required to evaluate and
treat the patient and it was placed on 5/12/201[4],” and that “the appointment [was]
scheduled with the ENT on 5/13/2014.” Apparently, this VA doctor knew how to
order, or have someone enter an order for, an immediate ENT consult and have it
occur the next day.
By the time Mr. Smith’s surgery was approved on May 13, 2014, it had
been five months since he saw Dr. Puppala on December 16, 2013, with symptoms
and swelling that Dr. Ferris says indicated adult cancer, and four months since the
January 14, 2014 CT scans had confirmed the malignant mass in Mr. Smith’s
throat. Once the VA’s Dr. Kincheloe-Zaren intervened, Dr. Duke was able to
perform the surgery six days later.
On May 19, 2014, Mr. Smith underwent surgery to remove the tumor mass
in his neck. By that time (five months after his December 16 visit) the tumor had
grown, and, because it now involved Mr. Smith’s carotid artery, Dr. Duke was
15 USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 16 of 58
unable to remove the entire mass through surgery. As a result, Mr. Smith was
required to undergo a more intensive chemotherapy and radiation regimen, thereby
reducing his chances of survival.
According to Dr. Ferris, Mr. Smith’s medical expert, “there is a standard of
care for an adult with a mass in the neck,” regardless of whether the medical care is
within or outside the VA. Dr. Ferris opined that, given the symptoms Mr. Smith
presented with during his December VA appointment, a reasonable timeframe
from when he “walk[ed] in the door” to “getting on the OR table” would have been
a “two-to-three month timeframe.” Dr. Ferris added that Mr. Smith’s care was
“below the standard of [medical] care.”
Additionally, Nurse Rose opined, based on her experience as an RN and a
VA care manager, her education, and her professional knowledge on the standards
of care for nurse care managers, that “Mr. Smith’s care was mismanaged from the
beginning” and that, “had Mr. Smith’s medical condition been properly managed
and [his] care coordinated early on and through his illness, his outcome” would
have been better.
G. Subsequent Developments
On May 29, 2014, Dr. Duke, along with Mr. Smith’s oncologists, confirmed
a plan of care, which was to begin a few days later on June 3. It was only after
Mr. Smith and his counsel held a press conference that the VA finally started his
16 USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 17 of 58
treatments on June 25. Mr. Smith then underwent chemotherapy and radiation
treatments.
By early 2015, Mr. Smith’s doctors believed his cancer was in remission,
and for the next two and a half years, Dr. Duke continued to see and monitor
Mr. Smith. A routine PET scan in September 2017 revealed a nodule on
Mr. Smith’s lung, which was the same type of cancer as in his throat. In May
2018, Mr. Smith had surgery to remove the new tumor and a portion of his left
lung.
IV. PROCEDURAL HISTORY OF FTCA CLAIM
A. Exhaustion of FTCA Claim
Prior to filing this lawsuit, Mr. Smith had to exhaust his FTCA claim
through the VA. Specifically, Mr. Smith filed a “tort claim” under the FTCA,
alleging that his “VA healthcare providers negligently failed to timely diagnose
and treat [his] tongue cancer.”
In a December 2015 letter, the VA’s Office of Regional Counsel denied
Mr. Smith’s claim. The Regional Counsel’s letter stated that the VA had
“thoroughly investigated the facts and circumstances surrounding [Mr. Smith’s]
administrative tort claim” and concluded “there was no negligent or wrongful act
on the part of” any VA employee. The VA, at least at that point, seemingly
conceded that medical negligence or malpractice was the proper lens through
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which to view Mr. Smith’s claims.5 That same letter informed Mr. Smith that if he
were “dissatisfied,” he could “file a request for reconsideration of [his] claim with
the VA General Counsel.”6 Mr. Smith did that.
In a February 2018 letter, the VA’s Office of the General Counsel responded
that it had reconsidered Mr. Smith’s FTCA claim. The General Counsel “found no
evidence of any negligent or wrongful act or omission on the part of a [VA]
employee acting within the scope of his or her employment that caused or
contributed to any injury to Mr. Smith.” The General Counsel’s letter informed
Mr. Smith that if he wished to pursue his claim further, he could file suit in a
federal court.
B. District Court Proceedings
Mr. Smith then filed this suit against the United States (“the government”),
pursuant to the FTCA, 28 U.S.C. § 1346(b). He alleged, inter alia, that “various
personnel at the VA[] were negligent in regards to the care and treatment of” his
5 The letter acknowledged that Mr. Smith had framed his grievance as an FTCA negligence claim: The Federal Tort Claims Act (FTCA), . . . under which you filed your claim, provides for monetary compensation when a Government employee, acting within the scope of employment, injures another by a negligent or wrongful act or omission. Medical negligence means there was a breach in the standard of care and that breach proximately caused an injury. The standard of care is the level at which similarly qualified medical professionals, including doctors and nurses, would have managed the care under the same or similar circumstances. 6 The letter also informed Mr. Smith that, alternatively, he could “file suit directly under the FTCA.”
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cancer by “[f]ailing to timely act in the face of Smith’s concerning symptoms and
test results, resulting in inexcusable delay in the diagnosis, at a time when his
cancer was treatable and curable,” and thereby failed to meet the applicable and
appropriate medical standard of care. Compl. ¶ 38.
The government moved to dismiss Mr. Smith’s complaint for lack of subject
matter jurisdiction under the VJRA, 38 U.S.C. § 511, which precludes judicial
review of VA benefits decisions. The government acknowledged that Mr. Smith
framed his FTCA claim as sounding in medical negligence but argued that his
claims actually turned on the fact that his medical care was delayed and thus “he
was denied benefits.”
The district court agreed and dismissed Mr. Smith’s complaint without
prejudice. This appeal followed.
V. STANDARD OF REVIEW
We review de novo the dismissal of a complaint for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Hall v. U.S.
Dep’t of Veterans’ Affairs, 85 F.3d 532, 533 (11th Cir. 1996); see also
McElmurray v. Consol. Gov’t of Augusta-Richmond Cnty., 501 F.3d 1244, 1250
(11th Cir. 2007).
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VI. VETERANS’ MEDICAL NEGLIGENCE CLAIMS
Before discussing the VJRA, we review how Congress has provided two
separate mechanisms by which a veteran may recover for the VA’s medical
negligence: (1) filing a tort suit for money damages against the United States
pursuant to the FTCA; and (2) filing a disability benefits claim with the VA itself.
A. The FTCA: Damages Caused by Medical Negligence of VA Personnel
Veterans injured by the negligence of the VA’s medical professionals and
their supporting personnel can bring suit against the United States in federal
district court for medical negligence under the FTCA, 28 U.S.C. § 1346(b)(1). See
United States v. Brown, 348 U.S. 110, 110–13, 75 S. Ct. 141, 142–44 (1954)
(concluding that a veteran’s lawsuit for medical negligence at a VA hospital, which
was authorized by the FTCA, was not barred by the Feres doctrine); McCullough
v. United States, 607 F.3d 1355, 1358 (11th Cir. 2010); see also 38 U.S.C.
§ 515(a)(1) (“[T]he Secretary may settle a claim for money damages against the
United States cognizable under section 1346(b) . . . of title 28 . . . .”).
The FTCA provides, in relevant part, that district courts “shall have
exclusive jurisdiction of civil actions on claims against the United States for
money damages . . . for . . . personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government” under certain
circumstances. 28 U.S.C. § 1346(b)(1). Further, as to tort claims related to
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negligence by VA personnel specifically, § 7316(a)(1) of Title 38 provides that
the FTCA will provide the remedy for “damages for personal injury, including
death, allegedly arising from malpractice or negligence of a health care employee
of the [VA] in furnishing health care treatment,” a remedy that is “exclusive of
any other civil action or proceeding by reason of the same subject matter.” 38
U.S.C. § 7316(a)(1) (emphasis added). Section 7316(a)(2) goes on to define
“health care employee” to mean a “physician, dentist, podiatrist, chiropractor,
optometrist, nurse, physician assistant, expanded-function dental auxiliary,
pharmacist, or paramedical (such as medical and dental technicians, nursing
assistants, and therapists), or other supporting personnel.” Id. § 7316(a)(2). The
standards of care that govern medical professionals (which are set forth in the tort
law of each state) are incorporated into the FTCA. See Anestis, 749 F.3d at 527.
Before filing an FTCA lawsuit, an individual must “have first presented the
claim to the appropriate Federal agency and his claim shall have been finally
denied by the agency in writing.” 28 U.S.C. § 2675(a); see also 28 C.F.R. § 14.9.
This is what Mr. Smith did. He filed what the VA referred to as an
“Administrative Tort Claim” in order to exhaust his FTCA claim. And after his
claim was denied, the VA’s General Counsel wrote him that if he wished to pursue
his claim further, he should file suit “in Federal district court within six months”
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and “should name the United States as the defendant.” This is what Mr. Smith also
timely did.
B. Section 1151(a): Disability Benefits Resulting from Medical Negligence
Separate from seeking money damages for negligence under the FTCA,
there is another, independent track for recovery that veterans can pursue
simultaneously. A veteran may also seek “[b]enefits” under 38 U.S.C. § 1151(a)
for disability or death resulting from negligence on the part of VA medical
professionals or occurring in a VA facility. 38 U.S.C. § 1151(a)(1). Section
1151(a)(1) provides, in relevant part, that “[c]ompensation” will be awarded for
disability or death “if the disability or death was not the result of the veteran’s
willful misconduct” and
(1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran . . . and the proximate cause of the disability or death was—
(A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination . . . .
38 U.S.C. § 1151(a)(1); see also Viegas v. Shinseki, 705 F.3d 1374, 1378 (Fed.
Cir. 2013). Any disability or death benefits received pursuant to § 1151(a) must be
offset against any money damages a veteran might receive via an FTCA tort suit.
38 U.S.C. § 1151(b). We now turn to the VJRA.
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VII. THE VJRA
A. History Before 38 U.S.C. § 511(a)
Initially, the limitation on judicial review of VA benefits decisions was
located in former 38 U.S.C. § 211(a). Section 211(a) precluded judicial review of
the VA Administrator’s decisions under “any law administered by the [VA]
providing benefits for veterans,” as follows:
[T]he decisions of the Administrator on any question of law or fact under any law administered by the Veterans’ Administration providing benefits for veterans and their dependents or survivors shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise.
See 38 U.S.C. § 211(a) (1982) (emphasis added).
Then, in 1988, the Supreme Court in Traynor v. Turnage held that a district
court properly exercised jurisdiction over two veterans’ suits challenging the VA’s
decision that they were ineligible for out-of-time educational-assistance benefits
under the GI Bill. 485 U.S. 535, 538–39, 108 S. Ct. 1372, 1376–77 (1988). The
GI Bill allowed veterans to obtain an extension of the 10-year eligibility period for
educational assistance “if they were prevented from using their benefits earlier by
‘a physical or mental disability which was not the result of [their] own willful
misconduct.’” Id. at 538, 108 S. Ct. at 1376 (quoting former 38 U.S.C. § 1661
(alteration in original)). The VA denied the veterans educational benefits,
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determining their alcoholism disability was the result of their own willful
misconduct. Id.
Filing suit in federal court, the veterans claimed, inter alia, that the VA’s
educational-benefits denial violated § 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794, which bars discrimination against handicapped individuals solely
because of their handicap. Id. at 537, 539. In Traynor, the Supreme Court held
that § 211(a) did not preclude judicial review of the VA’s educational-benefits
decision. The Supreme Court reasoned that, while the veterans’ entitlement to
educational benefits under the GI Bill was a question of law or fact “under any law
administered by the [VA],” the case also “involve[d] the issue whether the law
sought to be administered is valid in light of a subsequent statute whose
enforcement is not the exclusive domain of the Veterans’ Administration”—
namely, the Rehabilitation Act. Id. at 543–45, 108 S. Ct. at 1379–80.
B. Text of § 511(a)
In response to Traynor and other decisions by lower courts, Congress
amended § 211 via the VJRA, and the relevant provision was later relocated to
§ 511(a). See Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 101, 102
Stat. 4105, 4105 (1988); Dep’t of Veterans Affairs Codification Act, Pub. L. No.
102-83, § 2, 105 Stat. 378, 388–89 (1991). The limitation on judicial review of
benefits decisions, located in § 511(a), now reads:
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The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. . . . [T]he decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.
38 U.S.C. § 511(a) (emphasis added).7 Section 511(a) does two things. First,
“once the Secretary has been asked to make a decision in a particular case” (e.g.,
whether a veteran is eligible for or entitled to benefits), it “imposes a duty on the
Secretary to decide all questions of fact and law necessary to a decision in that
case.” See Hanlin v. United States, 214 F.3d 1319, 1321 (Fed. Cir. 2000)
(emphasis added). Second, it precludes judicial review of those decisions.
The House Report on the VJRA gave examples of “questions of law and
fact” that might be “necessary to a decision by the Secretary” in a benefits case
apart from the substantive benefits decision itself. The Report explained that
where a veteran alleges, for example, “that a statute is unconstitutional, that VA
procedure deprives him or her of due process of law, or that a VA regulation is
inconsistent with a later-enacted statute,” the Secretary “must take a position with
respect to such a contention if it is necessary to a decision in a case.” H.R. Rep.
7 A VA regulation defines a “benefit” to include “any payment, service, commodity, function, or status, entitlement to which is determined under laws administered by the Department of Veterans Affairs pertaining to veterans and their dependents and survivors.” 38 C.F.R. § 20.3(e).
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No. 100-963, at 27 (1988), reprinted in 1988 U.S.C.C.A.N. 5782, 5809. By
including “necessary to a decision,” § 511(a) requires the Secretary not only to
make a substantive benefits determination, but also to decide all questions of law
or fact that bear on that benefits determination. In turn, the Secretary’s decision on
such “necessary” questions is not subject to outside judicial review. Instead, a
veteran’s only avenue for review of those questions is the VA’s administrative
appeals process.8
Next, we review how our Court and other circuits have interpreted § 511(a).
8 Under this process, a veteran may appeal a decision of the Secretary to the Board of Veterans’ Appeals (the “Board”), whose ruling becomes the final decision of the Secretary. 38 U.S.C. § 7104(a). Decisions of the Board may then be reviewed exclusively by the U.S. Court of Appeals for Veterans Claims, an Article I court established by the VJRA. Id. §§ 7251, 7252(a), 7266(a). Decisions of the Court of Appeals for Veterans Claims are in turn appealable only to the U.S. Court of Appeals for the Federal Circuit, and only as to certain legal issues relied upon by the Article I court. Id. § 7292(a), (c). The Federal Circuit’s judgment is subject to certiorari review by the Supreme Court. Id. § 7292(c). This appeal process is kicked off when the Secretary, “on a timely basis, provide[s] to the claimant (and to the claimant’s representative) notice” of a decision “under section 511 . . . affecting the provision of benefits to a claimant.” Id. § 5104(a). Such notice “shall include an explanation of the procedure for obtaining review of the decision.” Id. A veteran initiates an appeal of the Secretary’s decision by timely filing a “Notice of Disagreement” with the Board “on any issue or issues for which the VA provided notice of a decision under 38 U.S.C. § 5104.” 38 C.F.R. § 20.4(a)(1). A comprehensive review of the history of the VJRA and the administrative appeals process it created can be found in the Ninth Circuit’s thorough en banc opinion in Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1020–23 (9th Cir. 2012) (en banc).
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VIII. ELEVENTH CIRCUIT PRECEDENT
A. One Published Precedent
Our Court has analyzed § 511(a)’s limitation on judicial review of benefits
decisions in only one published opinion, Hall v. United States Department of
Veterans’ Affairs, 85 F.3d 532 (11th Cir. 1996).
That case involved plaintiff William Hall, who was a recipient of veterans’
disability benefits and a Florida state prisoner. Hall, 85 F.3d at 532. The VA
reduced his disability compensation pursuant to a regulation requiring that
compensation be diminished during periods of incarceration for felony convictions
in excess of 60 days. Id. at 532–33. The VA also sought the return of around
$15,000 due to overpayments to Hall during his incarceration. Id. at 533. Hall’s
lawsuit claimed that the regulation reducing benefits during incarceration was
unconstitutional and requested payment of his full disability benefits. Id.
This Court affirmed the dismissal of Hall’s lawsuit for lack of subject matter
jurisdiction. Id. at 533, 535. We stated that, “under the statutory scheme”
established by the VJRA, “a veterans’ entitlement to benefits” can be reviewed
only by appeal “to the Board [of Veterans Appeals], then to the Court of Veterans
Appeals, the Federal Circuit Court of Appeals, and the Supreme Court.” Id. at 534
(emphasis added). Because the constitutionality of the regulation at issue was a
question of law “necessary to a decision by the Secretary under a law affecting
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veterans’ benefits,” the district court lacked jurisdiction to decide that question. Id.
at 535.
Hall’s lawsuit did not challenge any medical care received through the VA.
Although he claimed that the reduction in his disability benefits “constituted a tort
in violation of numerous provisions of the constitution,” he alleged no medical
negligence by any VA professionals. Id. at 533. Rather, Hall alleged a
quintessential benefits claim: he was entitled to the full amount of his disability
benefits notwithstanding his incarceration. See id. at 532–33.
Further, because the VA had reduced Hall’s benefits in an adverse benefits
decision, Hall could appeal that benefits decision though the VA’s administrative
appeals process. Id. at 534–35. Hall presents a clear example of a case over which
a federal court lacks jurisdiction under the VJRA: a challenge to the
constitutionality of a statute providing for the provision of benefits. See H.R. rep.
No. 100-963, at 27. Unlike here, there was no medical negligence claim in Hall.
B. Unpublished Decisions
In two appeals in the same case, this Court later considered a pro se
veteran’s FTCA lawsuit involving an MRI. See Milbauer v. United States, 587
F. App’x 587, 588 (11th Cir. 2014) (Milbauer I); Milbauer v. United States, 636
F. App’x 556, 557 (11th Cir. 2016) (Milbauer II). The VA staff recommended an
MRI. But due to his claustrophobia, Milbauer wanted an “open” MRI, which
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required that the MRI be performed at a non-VA facility. Milbauer I, 587
F. App’x at 588. Milbauer’s complaint “alleged he was entitled to have an open
MRI performed at a non-VA facility at the VA’s expense, and he described the
numerous problems he had faced in attempting to obtain authorization for the
outside MRI.” Id. (emphasis added). He further alleged that the VA staff should
have authorized alternative imaging studies to assess his injury. Id. at 589.
In the first appeal, this Court concluded that “[t]he district judge could not
adjudicate Milbauer’s [MRI] claim ‘without determining first whether [Milbauer]
was entitled to a certain level of benefits,’ namely, whether he was entitled to an
outside MRI, paid for by the VA.” Id. at 591–92 (emphasis added) (quoting
Thomas v. Principi, 394 F.3d 970, 974 (D.C. Cir. 2005)). While this Court
acknowledged that the VA had not actually denied the request for an MRI
altogether, it observed in dicta that “there is no meaningful legal difference
between a delay of benefits [for approval of the outside MRI] and an outright
denial of benefits for purposes of the VJRA.” Id. (quoting Mehrkens v. Blank, 556
F.3d 865, 870 (8th Cir. 2009)) (quotation marks omitted). Specifically, the delay
between when the VA medical staff recommended the procedure and when
Milbauer “finally obtained . . . authorization and received an open MRI at a non-
VA facility” was ten months. Id. at 588. Milbauer alleged that the medical staff
had deviated from the appropriate standards of medical care by failing “to have the
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appropriate paperwork prepared to authorize the outside MRI for a period of ten
months.” Id. at 589 (emphasis added) (quotation marks omitted).
As for Milbauer’s alternative-diagnostic-procedures claim, our Court
similarly concluded, in the second appeal, that Milbauer had fundamentally
contended that “the VA was obligated to provide him with a particular benefit—an
alternative imaging procedure to diagnose his shoulder injury—and failure of the
VA to provide that benefit caused a delay in his diagnosis.” Milbauer II, 636
F. App’x at 561.
Beyond the non-binding nature of these decisions, 9 we note two points.
First, the Milbauer case is materially different. This Court said: “Milbauer’s
grievance was with the VA’s benefits procedure [for approving outside imaging],
not the medical treatment he received.” Milbauer I, 587 F. App’x at 589. In
contrast, in Mr. Smith’s case, the VA approved and never disputed his eligibility
for and entitlement to the benefits, both inside and outside the VA. Rather,
Mr. Smith alleges that the VA’s medical personnel negligently performed the
medical care that was approved and committed medical negligence.
Second, we recognize that the government cites our dicta in Milbauer I that
“there is no meaningful legal difference between a delay in benefits and an outright
9 Unpublished opinions are non-precedential. See Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 n.7 (11th Cir. 2007) (“Unpublished opinions are not controlling authority and are persuasive only insofar as their legal analysis warrants.”).
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denial of benefits.” See Gov’t Br. at 9. But as shown above, the delay in benefits
in Milbauer I was getting an outside MRI approved—not a delay in conducting that
MRI after it was authorized and approved. See Milbauer I, 587 F. App’x at 588.
Our Court actually took that statement from an Eighth Circuit case, Mehrkens v.
Blank, involving an adverse denial of benefits that provides context for this
statement.
Specifically, in Mehrkens, a Vietnam War veteran brought a Bivens 10 action
against doctors and employees of the VA. Mehrkens, 556 F.3d at 866. He claimed
that “VA officials violated his due-process rights by withholding information from
him about his diagnosis of PTSD and preventing him from obtaining proper
treatment for that condition.” Id. at 867
Mehrkens alleged that VA officials “lie[d]to him and others about his Post-
Traumatic Stress Disorder (PTSD)” and “withheld treatment from him.” Id. at
866. Mehrkens filed a benefits claim for military service–connected PTSD, which
the VA denied. Id. at 867. The VA determined that “the diagnosis of PTSD was
not supported by the details of any service-connected stressor” and that the medical
evidence did not show symptoms of PTSD. Id. (quotation marks omitted). After
multiple failed attempts to reopen his case, Mehrkens filed a Notice of
10 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971).
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Disagreement, and the VA reversed its prior decisions, granting him “benefits” for
PTSD, retroactive to 1992. Id.
In rejecting Mehrkens’s Bivens claim, the Eighth Circuit noted that “[i]n this
case” there was no meaningful difference between a delay and a denial of benefits.
Id. at 870. But that was because “[i]n [that] case,” the delay in Mehrkens’s PTSD
benefits was the result of an adverse decision by the VA. The delay was between
the initial adverse benefits decision in 1992 and the later approval of PTSD
benefits in 2004. See Mehrkens, 556 F.3d at 870 (noting that, had Mehrkens “been
granted benefits in 1992 instead of 2004, he would not have brought the current
action”). As a result, any court tasked with adjudicating whether the VA personnel
violated Mehrkens’s rights would necessarily have to address whether the VA
acted properly in denying his PTSD benefits claim in the first instance. In contrast,
in Mr. Smith’s case, the VA approved and authorized his benefits, and there was
never an adverse benefits decision for a federal court to reexamine.
Because no authority from our Court resolves the issues before us, we
further review our sister circuits’ decisions cited by the parties.
IX. OTHER CIRCUITS’ DECISIONS
A. D.C. Circuit
In three cases, the D.C. Circuit has interpreted what constitutes a decision by
the Secretary on “questions of law and fact necessary to a decision . . . under a law
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that affects the provision of benefits to veterans.” 38 U.S.C. § 511(a). See Broudy
v. Mather, 460 F.3d 106 (D.C. Cir. 2006); Thomas v. Principi, 394 F.3d 970 (D.C.
Cir. 2005); Price v. United States, 228 F.3d 420 (D.C. Cir. 2000).
In Price, the plaintiff’s pro se complaint alleged the VA had “wrongfully
failed to reimburse him for certain medical expenses he incurred in October 1994
while hospitalized for an emergency colon cancer operation at a non-VA medical
facility.” 11 228 F.3d at 421 (emphasis added). Price sought $5 million in damages
for his medical expenses and emotional distress. Id. The VA determined that
Price had failed to satisfy the “eligibility criteria” for reimbursement. Id. Price
alleged that “the VA’s failure to pay his medical bills was wrongful because the
agency was under a legal obligation to make payment on account of Price’s veteran
status.” Id. The D.C. Circuit concluded that the district court lacked jurisdiction
because “underlying the claim is an allegation that the VA unjustifiably denied him
a veteran’s benefit.” Id.
The D.C. Circuit also noted that, assuming Price’s tort claim under the
FTCA for “negligent failure to pay medical bills” was even cognizable under
Florida law, “a necessary predicate of such a claim is a determination that the
insurer [the VA for veteran Price] acted in bad faith,” which would have required
11 Price also sued the Northeast Florida Credit Bureau, alleging it caused him harm when it persistently sought to collect on Price’s unpaid medical bills. Price, 228 F.3d at 421.
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that the district court “determine first whether the VA acted properly in handling
Price’s request for reimbursement.” Id. at 422. That determination would require
the district court to rule first on whether the VA had applied its own “eligibility
criteria” correctly, and judicial review was therefore “foreclosed by 38 U.S.C.
§ 511(a).” Id. at 421–22. To summarize, the Price case involved a classic
veteran’s benefits claim about eligibility for reimbursement of expenses incurred at
a non-VA facility, a dispute over which the district court clearly lacked subject
matter jurisdiction under the VJRA.
Five years later, the D.C. Circuit interpreted the VJRA again, this time in a
veteran’s lawsuit to collect “mental and physical disability benefits.” Thomas, 394
F.3d at 972. The VA had denied Thomas disability benefits on the ground that no
final diagnosis that would entitle him to benefits had been made. Id. After years
of Thomas’s appeals and benefits claims, the VA in 1999 revealed that a VA
doctor in 1991 had diagnosed Thomas as having symptoms consistent with
schizophrenia. Id. Thomas filed a lawsuit, which the district court dismissed for
lack of jurisdiction. Id. at 972–73.
Reversing in part, the D.C. Circuit concluded that Thomas alleged at least
some VA actions in Counts III, V, and X that the district court could adjudicate.
Id. at 974, 976. Count III alleged intentional infliction of emotional distress caused
by the intentional coverup of the schizophrenia diagnosis. Id. Count V alleged
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gross negligence and medical negligence in failing to inform Thomas about his
schizophrenia diagnosis. Id. Count X alleged medical malpractice by not ensuring
Thomas knew, and taking time to communicate, that he had been diagnosed with
schizophrenia and had choices of whether to receive medical treatment. Id. The
D.C. Circuit reasoned that any “questions of law and fact” raised by the claims
“relate to whether the alleged withholding of the diagnosis states a tort claim, and
resolution of those questions is not ‘necessary’ to the benefits determination.” Id.
(quoting 38 U.S.C. § 511). And “no denial of benefits underl[ies] Thomas’s
failure-to-inform allegations.” Id. at 974–75 (alteration in original) (quotation
marks omitted).
The D.C. Circuit, however, concluded that other aspects of Thomas’s
claims—based on the VA’s “continuous and persistent” failure to render needed
medical care—would require the district court to first determine whether the VA
acted properly in denying Thomas benefits. Id. at 975. Indeed, the VA had not
disclosed the schizophrenia, had provided no medical treatment, and had denied
Thomas all disability benefits. See id. at 972. Thus, the Secretary’s denial of all
benefits did underlie those claims.
A year later in Broudy v. Mather, the D.C. Circuit again rejected a district
court’s decision that it lacked jurisdiction over the plaintiff veterans’ lawsuit under
the VJRA. 460 F.3d at 108. The veterans were exposed to atomic radiation but
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were denied disability benefits because they had not shown their illnesses resulted
from radiation exposure during their military service. Id. at 108, 110. In a putative
class action, the veterans filed constitutional Bivens claims against VA officials
and others for withholding radiation test results that revealed their exposure to
dangerous levels of atomic radiation. Id. at 109–10. Seeking money damages, the
veterans alleged that the withholding of the test results had prevented them from
successfully pursuing claims for disability benefits. Id. at 110.
In Broudy, the D.C. Circuit concluded that the district court had jurisdiction
over the veterans’ Bivens suit. Id. at 115. After reviewing Price and Thomas, the
D.C. Circuit reasoned that, “while the Secretary is the sole arbiter of benefits
claims and issues of law and fact that arise during his disposition of those claims,”
district courts maintain jurisdiction to consider questions arising under laws that
affect the provision of benefits “as long as the Secretary has not actually decided
them in the course of a benefits proceeding.” Id. at 114 (emphasis added). The
D.C. Circuit then analyzed “whether the Secretary had made an ‘actual decision’
on any issues that the parties [were] asking the District Court to decide here.” Id.
The government pointed to two such issues: (1) whether the withheld test
results impaired or foreclosed the veterans’ benefits claims; and (2) whether the
radiation exposure amount relied upon by the VA, in denying the veterans’ claims,
failed to consider relevant information in the government’s possession that the VA
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Secretary did not have. Id. The D.C. Circuit concluded the Secretary had not
decided those questions, nor were the resolution of those questions necessary to the
Secretary’s actual decision to deny the veterans disability benefits. Id. Therefore,
there was no jurisdictional bar in the VJRA to the district court’s consideration of
those issues. Id. at 114–15. In responding to the government’s attempt to “claim
the benefit” of Price and Thomas, the D.C. Circuit observed:
In Price and Thomas, if the District Court had exercised jurisdiction, it would have needed to ‘review’ the Secretary’s ‘actual decisions’ that veterans were not entitled to the benefits they sought. Here, by contrast, no such ‘review’ is required. Unlike the plaintiffs in Price and Thomas, the plaintiffs in this case are not asking the District Court to decide whether any of the veterans whose claims the Secretary rejected are entitled to benefits. Nor are they asking the District Court to revisit any decision made by the Secretary in the course of making benefits determinations.
Id. at 115 (emphasis added).
At bottom, the D.C. cases differentiated between: (1) decisions by the VA
denying entitlement to disability benefits (Thomas) or medical-expense
reimbursement benefits (Price), which would require the district court to revisit a
benefits decision; (2) claims of medical negligence or malpractice (Thomas),
which are not decided in the course of benefits determinations; and (3) claims
challenging other VA conduct, which asked a court to decide questions that the
Secretary had not decided and were not necessary to a specific adverse benefits
decision (Broudy).
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B. Ninth Circuit
In two more recent cases, the Ninth Circuit interpreted the VJRA’s § 511(a).
See Tunac v. United States, 897 F.3d 1197 (9th Cir. 2018); Veterans for Common
Sense v. Shinseki, 678 F.3d 1013 (9th Cir. 2012) (en banc). In both, the Ninth
Circuit more clearly distinguished claims for medical negligence against the VA’s
medical professionals who provide the health care (medical diagnosis and
treatment) from claims of negligence by the VA’s administrative employees who
process benefits claims and schedule appointments.
In Shinseki, two non-profit organizations, on behalf of themselves, their
members, and a veteran class with PTSD, filed suit to challenge the VA’s internal
administrative procedures. 678 F.3d at 1017. They claimed the VA’s procedures
caused systemic delays in the processing of mental health care from the VHA and
the adjudication of claims for disability compensation benefits by the Veterans
Benefits Administration (“VBA”). Id. at 1016–17.
The plaintiffs alleged that the VA’s handling of mental health care and
disability claims deprived them of property (benefits) in violation of the
Constitution’s Due Process Clause and the VA’s statutory duty to provide timely
medical care and disability benefits. Id. at 1017. Specifically, the plaintiffs
challenged: (1) the lack of any VHA procedures to expedite the processing of
PTSD claims and, in turn, to expedite access to mental health care, including the
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lack of any procedures by which veterans might appeal the VA’s administrative
scheduling decisions; (2) the VBA’s delays in adjudication and resolution of
disability-compensation claims, which adjudication begins at one of the VA’s 57
regional offices and proceeds through the administrative appeals process
established by the VJRA; and (3) the constitutionality of various other VBA
practices and procedures, including the absence of trial-like adversarial procedures.
Id. at 1017–18, 1028.
As injunctive relief, the plaintiffs sought the implementation of new
procedures for handling mental health care requests, the creation of an accelerated
appeals process for such claims, and a conversion of the claims-adjudication
process into an adversarial proceeding. Id. at 1016, 1017.
After surveying and synthesizing other Circuits’ decisions, the Ninth Circuit
en banc announced this broad rule: Ҥ 511 precludes jurisdiction over a claim if it
requires the district court to review VA decisions that relate to benefits decisions,
including any decision made by the Secretary in the course of making benefits
determinations.” Id. at 1025 (quotation marks and citations omitted).
The Ninth Circuit then concluded that it lacked jurisdiction over the
plaintiffs’ systemic challenges to the VA’s internal procedures for processing
claims and scheduling treatments. Id. at 1026–29. Yet it also acknowledged that,
notwithstanding the VJRA, the FTCA “specifically confers jurisdiction on federal
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district courts to hear . . . claims” that “alleg[e] negligence against VA doctors,”
and that the VA even has “separate procedures for dealing with FTCA claims.” Id.
at 1023 & n.13. Thus, the Ninth Circuit “could consider a veteran’s [FTCA] claim
alleging negligence against VA doctors because doing so would not ‘possibly have
any effect on the benefits he has already been awarded.’” Id. at 1023 (quoting
Littlejohn v. United States, 321 F.3d 915, 921 (9th Cir. 2003)).
Subsequently, in Tunac v. United States, the Ninth Circuit further explained
the difference between claims of medical negligence against “healthcare
employees,” defined as “medical professionals and related support staff,” and
claims of negligence “in the VA’s operations,” such as negligence in scheduling
appointments and treatments. 897 F.3d at 1200. Veteran Tunac was diagnosed
with kidney inflammation during his Navy deployment. Id. After military
retirement, Tunac received treatment through the VA, but also saw a private
physician for other issues. Id. In 2009, Tunac’s blood tests showed signs of
kidney failure, and his private physician ordered he immediately make an
appointment with the VA. Id. Tunac was not seen at the VA until December 2,
2009, when a biopsy confirmed end-stage kidney disease, necessitating dialysis.
Id. The VA, however, could not schedule dialysis immediately and not until
December 30, 2009. Id. Tunac died on December 27, 2009. Id.
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Veteran Tunac’s widow brought an FTCA suit for wrongful death (Count I)
and negligent/medical malpractice (Count II). Id. Count I alleged that the VA and
its employees caused Tunac’s death by failing to provide him with “adequate
follow-up care and treatment to monitor [his] condition and identify any
potential relapses or adverse changes to his health”; “[f]ailing to schedule [Tunac]
for immediate (or even timely) treatment after the deterioration of his condition, as
evidenced by his blood work in 2009”; and “[f]ailing to schedule [Tunac] for
immediate dialysis after the results of his kidney biopsy in December 2009.” Id. at
1200–01 (second and third alterations in original) (quotation marks omitted).
Count II alleged that the employees and the VA breached their duty to Tunac “to
provide him with timely, quality healthcare.” Id. at 1201 (quotation marks
omitted).
The “question” before the Ninth Circuit was whether it had “jurisdiction
over a claim alleging that a medical center operated by the [VA] caused . . .
Tunac’s death by delaying urgently needed medical treatment.” Id. at 1200. The
Ninth Circuit concluded that (1) it lacked jurisdiction over “[t]he complaint’s
claims regarding negligence in VA operations,” but (2) it retained jurisdiction
under the FTCA “to the extent the complaint alleges negligence by VA healthcare
employees (defined as medical professionals and related support staff listed in 38
U.S.C. § 7316(a)(2)).” Id. (emphasis added).
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After reviewing Shinseki, the Ninth Circuit noted that, “[n]otwithstanding
the expansive scope of § 511’s preclusion of judicial review, [Shinseki]
acknowledged that we continue to have jurisdiction to hear some claims brought
by individual veterans under the FTCA.” Id. at 1203. Relying on Shinseki, the
Ninth Circuit announced a standard for discerning whether a claim is one for
medical negligence under the FTCA, instead of a claim that the VA acted
improperly in handling a veteran’s request for benefits: “[W]hen a plaintiff brings
an action against a VA health care employee (meaning the professionals and
related support staff listed in 38 U.S.C. § 7316(a)(2)) alleging injury from a
negligent medical decision, the action may proceed under the FTCA and is not
barred by the VJRA.” Id. at 1204–05.
Applying that standard, the Ninth Circuit concluded it had jurisdiction over
“certain claims that give rise to a ‘reasonable inference’ that VA medical
professionals breached their duty of care.” Id. at 1205. It then listed these
allegations in the complaint: (1) “[t]he VA failed to properly order tests and/or
evaluate [Tunac’s] recurring lupus condition”; and (2) “the VA and its employees
caused [Tunac’s] death through their wrongful acts and neglect” by “[f]ailing to
provide [Tunac] with adequate follow-up care and treatment to monitor [his]
condition and identify any potential relapses or adverse changes to his health.” Id.
(first and fourth alterations in original) (quotation marks omitted). The Ninth
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Circuit determined that, “[t]o the extent these allegations relate to claims of
medical negligence on the part of medical professionals, they do not relate to
benefits decisions.” Id. (emphasis added).
On the other hand, the Ninth Circuit also held that it lacked jurisdiction to
consider Mrs. Tunac’s claims that her husband’s “death was caused by the VA’s
failure ‘to schedule [Tunac] for immediate (or even timely) treatment after the
deterioration of his condition,’” the VA’s “failure ‘to schedule [Tunac] for
immediate dialysis after the results of his kidney biopsy in December 2009,’” or
“similar allegations relating to the negligence in scheduling appointments and
treatment.” Id. (emphasis added). These claims, the Ninth Circuit reasoned,
sought “relief for the type of administrative negligence in scheduling appointments
that must be channeled through the VJRA.” 12 Id. at 1205–06. The Ninth Circuit
explained that these allegations were better understood as complaints about
“whether the VA handled [Tunac’s] requests properly.” Id. at 1203 (quoting
Shinseki, 678 F.3d at 1028).
12 Although the Ninth Circuit concluded it retained jurisdiction over certain of Mrs. Tunac’s claims, it nonetheless affirmed the district court’s dismissal of her complaint, as it determined that her claims related to medical negligence were untimely. Tunac, 897 F.3d at 1206–07.
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C. Sixth Circuit
The Sixth Circuit has also emphasized that the VA’s medical team and
clinics have a legal duty to abide by ordinary standards of medical care,
irrespective of a veteran’s status. See Anestis v. United States, 749 F.3d 520, 526
(6th Cir. 2014). In Anestis, the Sixth Circuit reversed the district court’s dismissal
for lack of jurisdiction of an FTCA suit brought by a veteran’s widow. Id. at 522,
524.
Veteran Anestis committed suicide after he was turned away from two VA
clinics. Id. at 522. At the first VA clinic, the intake clerk recognized that Anestis
was in urgent need of treatment, but no mental health professional was available
that day. Id. at 523. So she sent him to another clinic. Id. That second VA clinic
turned Anestis away because: (1) he did not have his DD-214 (a document
reflecting a veteran’s deployment dates and other information) showing his
eligibility; and (2) his enrollment status in the VA’s electronic record was
“Rejected: Below Enrollment Group Threshold.” Id. at 521–23. Both parties
agreed Anestis was ineligible for VA benefits that day. Id. at 527.
In her FTCA lawsuit, Anestis’s widow alleged claims of medical
malpractice for failure to provide mental health treatment when her husband
needed emergency care. Id. at 524. The district court dismissed her claims,
concluding they necessarily challenged a VA benefits determination. Id.
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The Sixth Circuit acknowledged that the VJRA creates “a broad preclusion
of judicial review” of the Secretary’s decisions “regarding benefits.” Id. at 525
(quotation marks omitted). But the court rejected the government’s argument that
the VA clinics’ decisions not to provide Anestis medical care were benefits
determinations under the VJRA. Id. The Sixth Circuit focused particularly on the
fact that the plaintiff widow was “not challenging the VA’s decisions and actions
regarding [Anestis’s] application for benefits or his eligibility or enrollment
status.” Id. at 526. The plaintiff did not argue that Anestis “should have been
eligible for benefits.” Id. at 527. Instead, the widow argued that “the VA violated
standards of medical care and its own policies by refusing treatment when
[Anestis] presented himself at two VA facilities in a state of emergency.” Id. In
this way, “the VA violated its duty as a hospital, irrespective of [Anestis’s] status
as a veteran.” Id. at 526. Thus, the plaintiff’s claim “exist[ed] wholly
independently of a need for any benefits determination.” Id. at 527.
The Sixth Circuit hastened to add, however, that “simply characterizing a
claim as a ‘failure to treat’ claim does not preclude a benefits determination from
also being at issue.” Id. at 527. The “distinction,” the Sixth Circuit explained,
“lies in whether the failure or denial of treatment resulted from a decision by the
VA or was the result of the VA’s negligence in failing to abide by a legal duty.”
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Id. The plaintiff’s claim involved the latter, and the district court thus maintained
jurisdiction to adjudicate the FTCA claim. Id. at 528.
Importantly, too, the Sixth Circuit rejected the government’s argument that
the plaintiff’s claim necessarily involved a benefits determination because her
claim challenged “numerous aspects of VA medical-benefits decision-making,”
since she claimed the VA “failed to adhere to their internal policies when [Anestis]
sought treatment.” Id. at 527–28 (quotation marks omitted). The Sixth Circuit
reasoned that the government’s interpretation of “benefits determination” was so
broad as to effectively bar suit against the VA “under any circumstances for failure
to provide medical treatment,” which would have been at odds with the VJRA,
which, after all, “only specifies that the Secretary must decide all questions
affecting ‘provision[] of benefits.’” Id. at 528 (quoting 38 U.S.C. § 511).13
With the distinctions drawn in these circuit decisions in mind, we now apply
the VJRA to Mr. Smith’s case.
13 The Sixth Circuit also addressed how the case before it fit into the then-extant precedent from the D.C. and Ninth Circuits. Anestis, 749 F.3d at 525–27. The Sixth Circuit favorably compared the claims before it to the claims that the D.C. Circuit allowed to go ahead in Thomas, noting that, “[l]ike the claims in Thomas, [the plaintiff’s] claim is based on standards of care that govern medical professionals.” Id. at 527. As for the Ninth Circuit’s precedent, the Sixth Circuit acknowledged Shinseki, but noted that the Ninth Circuit’s holding in that case was that the veterans’ claim—challenging delays in the VA’s adjudication of veterans’ mental health care—“clearly” would have required the district court “to review [a] benefits determination in order to reach a decision.” Id. at 526–27. No such review was needed in Anestis. Id. at 527.
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X. DISCUSSION
A. Issue on Appeal
On appeal, Mr. Smith argues that the district court erred in dismissing his
case because: (1) his complaint adequately stated claims of medical negligence or
malpractice by VA personnel, properly brought under the FTCA; (2) his claims
raise questions of law and fact relating to breach of the legal duty to exercise the
medical standard of care applicable to all doctors, nurses, and health care
employees, irrespective of his veteran status; (3) no denial of benefits or any
adverse benefits decision underlies his medical negligence or malpractice claims;
and (4) therefore, § 511(a) does not apply and the district court had jurisdiction to
adjudicate his claims under the FTCA.
The government responds that Mr. Smith’s claims concern only “delays in
the approval and provision of veterans’ benefits,” and, therefore, the district court
lacked jurisdiction over them. The government acknowledges that certain aspects
of his claims may sound like medical malpractice but contends his allegations still
relate to the VA’s delay “in approving and scheduling him for medical care.” The
government also argues that even a complete failure to treat, or an inordinate delay
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in treatment, by the VA would not form the basis of an FTCA negligence claim
over which a federal court might exercise jurisdiction.14
The sole issue on appeal is a jurisdictional question: Whether Mr. Smith’s
claims present, and require a federal court to review, “questions of law and fact
necessary to a decision by the Secretary under a law that affects the provision of
benefits”? See 38 U.S.C. § 511(a). If they do, the court lacks jurisdiction. If they
do not, the court has jurisdiction. We start with the text of § 511(a).
Section 511(a)’s limitation on judicial review includes two key phrases. The
first key phrase is “a decision by the Secretary under a law that affects the
provision of benefits . . . to veterans.” Id. Numerous federal statutes and hundreds
of federal regulations govern a veteran’s eligibility for benefits, entitlement to
benefits, and the scope of those benefits, and thereby “affect[] the provision of
benefits . . . to veterans.” Therefore, any and all determinations by the Secretary as
to eligibility, entitlement, or the scope of benefits (including health care benefits) is
“a decision by the Secretary under a law that affects the provision of benefits.”
14 At oral argument, the government’s counsel was asked whether she agreed that “at some point, if the VA, which has sole responsibility for scheduling . . . appointments,” takes an inordinate amount of time—say five years—to get a veteran needed treatment, the VA “commits malpractice.” In response, the government’s counsel conceded that such a delay could constitute malpractice, but insisted it was “still malpractice that must be channeled through the VJRA.” Under this view, any issue a veteran had in not receiving necessary medical care could be addressed only through the administrative appeals process established by the VJRA—a process designed to address a veteran’s entitlement to benefits, not tort claims.
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The second key phrase is “questions of law and fact” by the Secretary
“necessary to” that benefits decision. 38 U.S.C. § 511(a). It is obvious that any
type of substantive benefits decision itself is unquestionably shielded from judicial
review by § 511(a). But in addition to precluding judicial review of any
substantive benefits determination by the Secretary, the VJRA also precludes
judicial review of “any decision made by the Secretary in the course of making [a]
benefits determination[].” See Tunac, 897 F.3d at 1202; see also Broudy, 460 F.3d
at 115 (identifying the relevant inquiry under the VJRA as whether the plaintiffs
were asking the district court either “to decide whether any of the veterans whose
claims the Secretary rejected are entitled to benefits” or “to revisit any decision
made by the Secretary in the course of making benefits determinations”). The
VJRA thus serves to prevent judicial second-guessing of decisions made by the
Secretary in the course of making a benefits determination.
While the text is plain, its application to Mr. Smith’s claims is more
difficult. Are Mr. Smith’s claims, in whole or in part, tort claims viable under the
FTCA, or has Mr. Smith dressed up benefits claims as tort claims in order to seek
impermissible judicial review of a decision of the Secretary? See Anestis, 749
F.3d at 528 (addressing whether a veteran’s claim was one “involving benefits
masked in tort language”). Below, we divide Mr. Smith’s FTCA claims into two
types and explain why the district court can adjudicate some, but not all, of them.
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C. Negligence Claims as to Approval, Authorization, and Scheduling
The first type includes Mr. Smith’s claims that VA personnel were negligent
in: (1) “[f]ailing to timely schedule medical appointments, diagnostic testing, and
treatment”; (2) “[f]ailing to timely approve and/or authorize medical treatment that
was ordered by [Mr.] Smith’s treating medical providers”; (3) “[f]ailing to timely
approve and/or authorize payment of” those same medical treatments; and
(4) “[f]ailing to follow its own policies, procedures, and protocols for timely
scheduling and approving medical appointments and authorizing payment of non-
VA services.” See Compl. ¶ 38 (emphasis added).
The approval and authorization of a particular treatment or the payment
thereof are quintessential benefits determinations. So too is whether any such
approval or authorization occurred in a timely manner. In order to adjudicate these
claims, the district court would first need to determine whether and to what extent
Mr. Smith was eligible for and entitled to certain tests or treatments.
Accordingly, to the extent that Mr. Smith alleges that any delay in his receipt
of needed medical care was a result of the VA’s failure “to timely approve and/or
authorize” his care or payments therefor, the district court could not review those
allegations without second-guessing a decision by the VA “necessary to” a benefits
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determination—when to grant the requested benefit. 15 See Mehrkens, 556 F.3d at
870; Thomas, 394 F.3d at 974 (“[W]e must determine whether adjudicating
[plaintiff’s] claims would require the district court to determine first whether the
VA acted properly in handling [his] benefits request.” (quotation marks omitted)).
The same is true for purely ministerial acts of the VA’s non-medical
operations personnel in scheduling approved doctor visits and scans. While the
scheduling process took place after the substantive approval and authorization of
Mr. Smith’s doctor visits and scans, those decisions still are fairly characterized as
decisions made “in the course of making [a] benefits determination[].” See Tunac,
897 F.3d at 1202, 1204–06. Mr. Smith’s claims alleging negligence in the
scheduling of his various visits and scans ultimately seek “relief for the type of
administrative negligence in scheduling appointments that must be channeled
through the VJRA.” Tunac, 897 F.3d at 1205–06.
As for Mr. Smith’s allegations related to the VA’s failure to follow its own
policies, procedures, and protocols, if the district court lacks jurisdiction to review
the VA’s approval, authorization, and scheduling decisions, it must also lack
15 We also note, as a factual matter, that it does not appear from the record before us that the delay in Mr. Smith’s tests and/or treatments was really a result of some delay in the authorization or approval of benefits. It appears that, in most instances, he was quickly deemed eligible for and entitled to the requested care.
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jurisdiction to determine whether the VA followed its own internal procedures in
making those decisions.
D. Medical Negligence or Malpractice Claims
The second type includes Mr. Smith’s claims that the VA’s medical
personnel negligently failed to diagnose his cancer, recognize the severity of his
medical condition, properly treat his cancer by immediate surgery, and to generally
manage, coordinate, and monitor his medical care.
Specifically, Mr. Smith alleged that “various personnel at the VA[] were
negligent in regards to [his] care and treatment” by: (1) “[f]ailing to timely act in
the face of [Mr.] Smith’s concerning symptoms and test results, resulting in
inexcusable delay in the diagnosis, at a time when his cancer was treatable and
curable”; and (2) “failing to meet the appropriate and applicable medical standards
of care.” Compl. ¶ 38. These allegations are strikingly similar to those over which
the Ninth Circuit exercised jurisdiction in Tunac. See Tunac, 897 F.3d at 1205
(holding that allegations the VA failed to “properly order tests and/or evaluate
[Tunac’s] recurring lupus condition,” and that the VA and its employees “caused
[Tunac’s] death through their wrongful acts and neglect” by failing to provide
Tunac “with adequate follow-up care and treatment to monitor [his] condition”
were not related to a benefits determination to the extent they “relate[d] to claims
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of medical negligence on the part of medical professionals” (emphasis added)
(quotation marks omitted)).
In other words, Mr. Smith’s claims, in effect, are that the VA’s medical
professionals and their supporting personnel owed him a legal duty of standard
medical care and breached that duty by (1) failing to recognize and diagnose the
dire nature of his cancer condition, and then (2) failing to manage, coordinate, and
monitor his care to ensure that he timely received the necessary and urgently
needed medical treatment that he was eligible for and that had already been
authorized. 16 Thus, Mr. Smith’s allegations of medical negligence (in both
diagnosis and treatment) do not require the district court to decide whether
Mr. Smith was “‘entitled to benefits,’” nor do they “require the court to ‘revisit any
decision made by the Secretary in the course of making benefits determinations.’”
See Shinseki, 678 F.3d at 1025 (quoting Broudy, 460 F.3d at 115). The delay in
diagnosis and treatment was not due to an adverse benefits decision. And there is
16 Notably, too, this sort of professional negligence claim has been recognized under Georgia law. See Howard v. City of Columbus, 219 Ga. App. 569, 573, 466 S.E.2d 51, 56 (Ga. Ct. App. 1995). In Howard, the Georgia Court of Appeals held that Georgia’s pleading requirements for medical malpractice were satisfied where an expert testified that medical staff at a jail failed to (1) provide the plaintiff with “timely investigation and proper health care attention necessary for the treatment of his . . . condition,” (2) “recognize and treat [the plaintiff’s] . . . condition,” (3) “exercise those procedures and protocols critical to the providing of necessary and proper health care treatment to [plaintiff],” and (4) “recognize and properly provide medical treatment for” the plaintiff’s condition. Id. (quotation marks omitted). The expert opined that it was “below the requisite standard of care for medical professionals such as defendants not to recognize, diagnose or treat a person displaying” the symptoms that the plaintiff presented with. Id. at 574, 466 S.E.2d at 56.
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no adverse benefits decision, or a question necessary to that decision, for a federal
court to reexamine. See Tunac, 897 F.3d at 1202; Broudy, 460 F.3d at 115.
It is certainly true, as the government notes, that Mr. Smith acknowledged in
the complaint that his cause of action “primarily” raises claims of ordinary
negligence, and not professional negligence. Compl. ¶ 43. But this does not alter
the facts that: (1) the complaint also includes claims that the VA’s medical
personnel failed to meet the appropriate and applicable medical standard of care;
and (2) Mr. Smith attached an affidavit to the complaint from Dr. Ferris “setting
forth at least one negligent act or omission claimed to exist and the factual basis for
each such claim,” in compliance with Georgia’s pleading requirements for medical
malpractice claims. Compl. ¶ 43 (citing O.C.G.A. § 9-11-9.1).
Further, according to Dr. Ferris’s deposition testimony, given Mr. Smith’s
initial symptoms, the standards of medical care required that the VA’s medical
team: (1) promptly obtain CT scans within days; (2) given the obvious findings of
cancer from the CT scans, quickly diagnose cancer; and (3) perform surgery soon
thereafter. In Dr. Ferris’s opinion, had the cancer been more quickly diagnosed
and treated, it was more likely than not that the malignancy would have been
resectable when surgery was performed. And Nurse Rose, an expert on VA patient
care coordination, identified several deficiencies with the management and
coordination of Mr. Smith’s medical care and treatment by the care coordination
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team professionals, opining that “Mr. Smith’s care was mismanaged from the
beginning.”
At the end of the day, the question—or at least a question—fairly presented
by the complaint here is whether the failure to adequately and timely diagnose and
treat Mr. Smith’s cancer was attributable to negligence on the part of any VA
medical professionals and their supporting personnel. The district court maintains
jurisdiction under the FTCA to adjudicate questions of law and fact related to those
claims. See 28 U.S.C. § 1346(b)(1); 38 U.S.C. § 7316(a) (stating that the FTCA
provides the remedy for injury arising from the “malpractice or negligence of a
health care employee” of the VA, including physicians, nurses, and “other
supporting personnel”).
We hasten to add, however, that whether particular medical professionals or
their supporting personnel within the VA were provably negligent—that is, owed
Mr. Smith a duty of care that they then violated—is not a relevant inquiry at this
juncture, and we express no opinion on that question. “In the end, whether or not
[Mr. Smith] has a viable ‘medical malpractice claim’ is irrelevant to the
jurisdictional question. The district court dismissed this case on a [Rule] 12(b)(1)
motion to dismiss for lack of jurisdiction.” See Anestis, 749 F.3d at 528. Our
focus is not on the substantive merit of Mr. Smith’s allegations but, rather, the
nature of those allegations. Whether any particular VA medical professional or his
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or her supporting personnel owed a legal duty of care to Mr. Smith and whether
that duty was violated is an improper question to consider at this stage in the
litigation. 17
Our recognition of Mr. Smith’s claims is consistent with the way the VA’s
counsel apparently viewed those same claims during the administrative-exhaustion
phase of this case. In both its initial denial of Mr. Smith’s “Administrative Tort
Claim” and its denial of reconsideration, the VA informed Mr. Smith that if he was
dissatisfied with the decision, he could file suit against the United States as
defendant under the FTCA. In rejecting Mr. Smith’s claim, the VA clearly
conceptualized that claim as one alleging negligence on the part of VA medical
professionals with respect to the health care Mr. Smith received. For example, in
its initial denial of Mr. Smith’s claim, the VA’s counsel explained that “[m]edical
negligence means there was a breach in the standard of care and that breach
proximately caused an injury,” before concluding that no such negligence
17 It appears that in certain situations the VA uses care coordinators to manage, coordinate, and monitor a veteran’s medical care, and that care coordinators may be medical professionals (like nurses). For clarification, we distinguish between (1) purely ministerial acts by VA operations personnel in scheduling appointments, and (2) the overall management, coordination, and monitoring of Mr. Smith’s medical care by such care coordination professionals, which allegedly includes ensuring that Mr. Smith timely received the urgent consults, tests, and treatments for which he had been approved. On the record before us, we cannot determine who (apart from Nurse Ekwueme) all of the members of Mr. Smith’s care coordination team might have been. Nor can we define the scope of any legal duty VA care coordination professionals owed to Mr. Smith. Instead, we conclude only that the district court has jurisdiction to adjudicate whether any care coordination professionals or their supporting personnel had a legal duty of care to Mr. Smith, the scope and extent of that duty, and whether it was violated.
56 USCA11 Case: 20-11365 Date Filed: 07/29/2021 Page: 57 of 58
occurred. And in its decision rejecting Mr. Smith’s request for reconsideration, the
VA’s counsel noted that it had “a primary care physician, an oncologist and an
otolaryngologist” review Mr. Smith’s case.
Regardless of whether the VA’s medical professionals and their supporting
personnel responsible for providing, coordinating, and managing Mr. Smith’s care
chose to treat Mr. Smith’s condition within or without the VA, they had a duty to
adhere to the standard of medical care for diagnosing, treating, and managing a
patient with Mr. Smith’s serious condition, and Mr. Smith’s complaint alleges that
they did not do so. See Tunac, 897 F.3d at 1205 (“[W]e have jurisdiction over
certain claims that give rise to a ‘reasonable inference’ that VA medical
professionals breached their duty of care.” (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S. Ct. 1937, 1949 (2009)). It defies both common sense and the
plain language of the VJRA to frame Mr. Smith’s case as one in which he seeks
solely to have an Article III court review a benefits determination by the
Secretary. 18
18 At oral argument, the government’s counsel mentioned that Mr. Smith had stipulated during Dr. Puppala’s deposition that Mr. Smith was not alleging medical negligence on the part of Dr. Puppala or her nurse, Patsy Pepper. The government did not raise this point in its brief, and we need not address it here to resolve the jurisdictional issue with which we are presented. See Anestis, 749 F.3d at 528. Whether an enforceable stipulation was made during discovery and what effect such a stipulation might have on the merits of Mr. Smith’s FTCA claims for medical negligence is for the district court to address if and when it is raised in an appropriate motion.
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XI. CONCLUSION
For the reasons discussed above, we affirm in part and reverse in part the
district court’s dismissal of Mr. Smith’s complaint for lack of subject matter
jurisdiction
AFFIRMED in part, REVERSED in part, AND REMANDED.
Related
Cite This Page — Counsel Stack
7 F.4th 963, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-j-smith-v-united-states-ca11-2021.