
USCA1 Opinion

	




                                [Not For Publication]                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-1702                             MARIA M. LOPEZ-DE ROBINSON,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jaime Pieras, Jr., U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Raul  Barrera  Morales  with  whom  Jesus  Hernandez  Sanchez  and            ______________________              _________________________        Hernandez Sanchez Law Firm were on brief, for appellant.        __________________________            Fidel  A.  Sevillano  Del Rio,  Assistant United  States Attorney,            _____________________________        with  whom Guillermo  Gil, United  States Attorney,  was on  brief for                   ______________        appellee.                                 ____________________                                     MAY 13, 1997                                 ____________________                      Per Curiam.   Plaintiff, a widow,  appeals from the                      Per Curiam.                         __________            district court's award of $50 thousand under the Federal Tort            Claims Act (FTCA),  28 U.S.C.    2671  et seq., to compensate            her for pain and suffering due to the failure of the Veterans            Administration Hospital in San Juan  to admit her ill husband            a few days prior to his death.  She seeks additional damages,            arguing that several of the district court's factual findings            are clearly erroneous.  She  takes particular issue with  the            court's  finding that prompt  hospitalization would  not have            saved her husband's  life.   She also argues  that the  court            erred  in concluding that  her late husband's  estate was not            entitled  to any recovery because it was not properly a party            to the suit.                                          I                      We recite the facts as found by the  district court            after the three-day bench trial. In May 1989, Vance Robinson,            a 64-year-old veteran, visited  Dr. Luis Marrero, who ordered            laboratory  tests.   The  tests suggested  that Robinson  had            liver cancer.                      On  Friday, July 7,  1989, Robinson went  to the VA            Hospital  in San  Juan  complaining of  a  host of  symptoms,            including  a  grossly enlarged  abdomen  (ascites)  and acute            stomach  pains.   The intake  physician, Dr.  Sylvia Fuertes,            diagnosed Robinson as having  ascites and an occult neoplasm,            but did not note the ascites on his medical record.   She did                                         -2-                                          2            not believe that  Robinson's case was  an emergency, but  she            recommended that  he be  admitted immediately as  an elective            admission.  There were no available beds, however, and so she            told Robinson to return on Monday.                      Robinson  went to  the  admissions  office  of  the            hospital on Monday at 9:00 a.m.   He was not re-examined.  He            waited  there  all  day, but  was  told  there  were no  beds            available.  The same thing happened on Tuesday. That evening,            Robinson  was taken  to  the  emergency  room  at  San  Pablo            Hospital,  where he was admitted as a patient.  The diagnosis            was  ascites, suspected liver cancer, anemia and hepato-renal            syndrome.   A  CT  scan revealed  an  enlarged liver  due  to            lesions suggestive of metastatic cancer.                      On July  18, Robinson  discharged himself  from the            hospital.   He  died  the  next  day.   No  biopsy  was  ever            performed to confirm the diagnosis of suspected liver cancer,            and no autopsy  was performed at  the time  of death.   Liver            cancer  was listed  as  the  cause  of  death  on  the  death            certificate.                      Robinson's  widow,  the  plaintiff  here,  filed an            administrative claim  in her  name against the  United States            with  the  Department of  Veterans  Affairs.   The  claim was            denied, and she filed a complaint in federal court within six            months.                                         -3-                                          3                      Over  two years  after Robinson's  death, plaintiff            had the body exhumed so that Dr. Yocasta Brugel could prepare            a  forensic report.  Dr.  Brugel indicated that  she found no            evidence  of liver  cancer  and  that  Robinson had  died  of            myocarditis,  a  rare heart  ailment  which  seldom leads  to            death.    The  autopsy  was admitted  into  evidence  without            objection.   However, Dr. Brugel  did not appear  at trial to            testify.   The district  court found that  either the autopsy            report was  totally unreliable, or, in  the alternative, that            the  autopsy  had  been   performed  on  someone  other  than            Robinson.  The court also found  that the slides of the liver            on  which the report was  based were not  those of Robinson's            liver.                      The  district court  concluded that  the hospital's            failure  to admit Robinson on Friday  evening did not violate            acceptable  medical  standards.    However,  it   found  that            Robinson should have been re-examined when he returned to the            hospital on  Monday, to  ensure that  his  condition had  not            deteriorated  to emergency  status, and  concluded  that this            omission did violate acceptable  medical standards and caused            pain  and suffering to Robinson and his wife.  The court also            found  that admitting  Robinson  to the  hospital on  Friday,            Monday or Tuesday  would not  have saved his  life but  would            have  permitted palliative  treatment  to ease  his pain  and            suffering.                                         -4-                                          4                      The court awarded  plaintiff $50  thousand for  her            pain  and suffering  as she  watched her  husband's condition            deteriorate  during  the three  days  before  he was  finally            admitted to a  hospital.  The  district court also  indicated            that it  would have  awarded an  additional $50  thousand for            Robinson's pain and suffering if his estate had been named as            a plaintiff.                      Plaintiff appeals on  several grounds.  She  argues            that  the district  court's  finding that  the VA  Hospital's            failure  to  admit Robinson  was not  the  cause of  death is            clearly erroneous,  as was the district  court's finding that            the autopsy report  was totally unreliable.   She also argues            that  the court erred in refusing to award pain and suffering            damages  to the  decedent's estate:  she contends  that under            Puerto  Rico law, when a man dies intestate (as did Robinson)            his widow and children are his heirs.  She concludes that she            and  her  sons  should  have received  the  $50  thousand the            district court indicated it would have awarded for Robinson's            pain and suffering.                                          II            Factual Findings            ________________                      We review the district court's findings of fact for            clear error.  Irving v. United States, 49 F.3d  830, 835 (1st                          ______    _____________            Cir. 1995);  see also Fed. R.  Civ. P. 52(a).   In this case,                         ________            there  is a significant amount  of support in  the record for                                         -5-                                          5            the  district court's factual determinations, which therefore            are not clearly erroneous.                      The  district court's  finding that  the hospital's            failure to  admit Robinson was not the  cause of his death is            supported by  the testimony  of Dr. Figueroa,  the government            expert  in cardiology.  He testified that, in his opinion, at            the time Robinson went  to the VA  Hospital on July 7,  there            was nothing that could have  been done to prevent  Robinson's            death on the 18th; at that point the hospital could have done            nothing more than to have made him comfortable.                      There is  also evidence in support  of the district            court's conclusion that  the autopsy report was  not based on            an examination of Robinson's liver.  The liver from which the            slides were taken was of  normal size, while Robinson's liver            had  been  enlarged.   The  slides  of  the  liver showed  no            evidence of  severe liver disease such  as metastatic cancer.            Instead,  they indicated a  fatty liver, a  much less serious            condition.   However, all of the clinical data indicated that            Robinson was suffering from severe liver  disease at the time            he died.    The  testimony  of  Dr.  Marrero  indicates  that            Robinson  likely had  severe liver  disease as  early as  May            1989.    Dr. Ramirez,  the  government  expert in  pathology,            testified that  there  was ample  clinical, radiological  and            laboratory evidence that Robinson suffered from severe  liver            disease,  but that  there was  no indication  of this  in the                                         -6-                                          6            autopsy  slides.   Furthermore,  Dr.  Ramirez  testified that            descriptions in the  autopsy report of other organs  were not            what  one  would  have  expected  given  Robinson's   medical            history.   For example,  Robinson  had dilated  veins in  his            esophagus butthere wasno mention ofthis in theautopsy report.            Exhaustion of Administrative Remedies            _____________________________________                      The  district court  held that  it could  not award            damages for Robinson's pain  and suffering because his estate            did not present a  claim to the proper administrative  agency            and therefore  did not exhaust  its administrative  remedies.            Review of this  legal conclusion is de novo.   Roche v. Royal                                                           _____    _____            Bank of Canada, 109 F.3d 820, 827 (1st Cir. 1997).            ______________                      The  Federal  Tort  Claims Act  provides  that  "no            action shall  be instituted upon  a claim against  the United            States . . .  unless the claimant shall  have first presented            the claim  to the  appropriate Federal  agency and his  claim            shall have been finally denied . . . ."  28 U.S.C.   2675(a).            In this case the  appropriate agency is the Veterans  Affairs            Department.                      The  determination  of  when   a  claim  is  deemed            presented  is made  pursuant  to  federal regulations,  which            require  the  submission  of  written   notification  of  the            incident and a claim for money damages in a  specific sum. 28            C.F.R.    14.2(a).  The  purpose is to  encourage settlement:                                         -7-                                          7            if the agency knows exactly what the claimant seeks, there is            more likely to be a settlement.                      Plaintiff  filed an  administrative claim  with the            Department  of  Veterans  Affairs  in  which  she  identified            herself  but not her late husband's estate as claimant.1  She            now  argues that  this satisfied  the exhaustion  requirement            with  respect to both her claims and  those of the estate.  A            similar argument was rejected in  Estate of Santos v.  United                                              ________________     ______            States, 525 F. Supp. 982, 986 (D.P.R. 1981).  The court there            ______            held that each person seeking personal damages under the FTCA            must file an individual claim, and  that a claim must put the            agency on notice of  who was actually pursuing the  claim and            the amount  of the  claim.   Id.; see also  Adames Mendez  v.                                         ___  ________  _____________            United States,  652 F. Supp.  356, 358 (D.P.R.  1987), aff'd,            _____________                                          _____            873 F.2d 1432  (1st Cir.  1989) (tbl.); Del  Valle Rivera  v.                                                    _________________            United States, 626 F. Supp. 347, 348-49 (D.P.R. 1986).            _____________                      We agree.   Allowing one claimant's   exhaustion of            her  administrative   remedies  to  satisfy   the  exhaustion            requirement  for  other  possible  claimants  would  make  it            extremely difficult for the  agency to know the value  of the            suit, thus making settlement less  likely.  Del Valle Rivera,                                                        ________________            626 F. Supp. at 348-49.                      The decision of the district court is affirmed.                                                            ________                                            ____________________            1.  The  administrative   claim  was  not  included   in  the            appellate record, but counsel  conceded at oral argument that            Robinson's estate was not named as a claimant.                                         -8-                                          8
