                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                    UNITED STATES COURT OF APPEALS                      May 1, 2018
                                                                    Elisabeth A. Shumaker
                                 TENTH CIRCUIT
                                                                        Clerk of Court


 HELEN BENALLY,

               Plaintiff - Appellant,
                                                         No. 16-2177
 v.                                          (D.C. No. 1:13-CV-00604-MV-SMV)
                                                           (D.N.M.)
 UNITED STATES OF AMERICA,

               Defendant - Appellee.


                           ORDER AND JUDGMENT *


Before HOLMES, PHILLIPS, and MORITZ, Circuit Judges.


      Following orthopedic surgery for a fractured femur at a federal medical

facility operated by the U.S. Department of Health and Human Services (“HHS”),

Helen Benally filed tort-claim notices with HHS—an initial form, followed by an

amended form—claiming that the facility “performed” the surgery “negligently”

and “below the standard of care.” HHS denied her administrative claim, and Ms.

Benally brought a medical-negligence suit for lack of informed consent, surgical

negligence, and negligent post-operative care. Asserting that Ms. Benally failed to



      *
              This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
raise the issues of informed consent and post-operative negligence in her

administrative notices, the government moved to dismiss those claims under the

presentation requirement of the Federal Tort Claims Act (“FTCA”), 28 U.S.C.

§ 2675(a). The district court subsequently dismissed the informed-consent and

post-operative negligence claims for lack of subject-matter jurisdiction, and Ms.

Benally appeals.

      Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district

court’s judgment dismissing Ms. Benally’s complaint for lack of subject-matter

jurisdiction.

                                           I

                                          A

      On November 23, 2008, Ms. Benally had “open reduction/internal fixation”

surgery at Gallup Indian Medical Center (“GIMC”), a medical facility that HHS

operates through the Indian Health Service (“IHS”).1 Aplt.’s App. at 14 (Compl.,

filed June 28, 2013). The surgery aimed to repair Ms. Benally’s fractured femur

by using “a plate and screws to hold the bone fragments in place and [to] give

proper alignment to the upper femur.” Id. Although Ms. Benally’s “pain and

other symptoms improved somewhat” after discharge, her condition rapidly

deteriorated shortly thereafter, id., and she ultimately received a “total hip


      1
             As a tribal member of the Navajo Nation, Ms. Benally accessed
healthcare through the IHS.

                                           2
replacement” from a different facility—the University of New Mexico Hospital

(“UNMH”), id. at 15.

      During this period of deterioration, Ms. Benally had at least five follow-up

appointments with Dr. David Poe (“Dr. Poe”), the GIMC surgeon who performed

her operation. 2 At her first follow-up appointment on December 16, 2008, Dr. Poe

reported apparently normal findings. However, by her second appointment on

March 30, 2009, Ms. Benally was complaining of increased pain. 3 Ms. Benally

had x-rays taken of her hip and pelvis; they revealed “a possible problem with

[the] alignment of the femur fragments that had been secured with a plate and

screws.” Id. Rather than provide a definitive diagnosis, however, Dr. Poe

instructed Ms. Benally to return in about eight weeks.

      After that, Ms. Benally received additional post-operative care from Dr. Poe

on three more occasions—August 8, 2009, March 18, 2010, and June 17, 2010.

Dr. Poe’s evaluative notes from these later appointments reference “failed

pinning” and “lots of pain,” but the notes contain no indication that Dr. Poe

discussed the need for further surgery. Id. at 116 (PCC Ambulatory Encounter

      2
              As detailed infra, Ms. Benally’s notices made no mention of Dr. Poe
or his role in her pre- or post-operative care.
      3
             Between these follow-up appointments, Ms. Benally raised additional
pain-related complaints to medical providers at Northern Navajo Medical Center
(“NNMC”), another facility that HHS operated. The record contains scant details
concerning these medical visits, but because Ms. Benally makes no claim about
NNMC’s care, her treatment at that facility has no impact on our disposition of
this appeal.

                                         3
Record, dated June 17, 2010); accord id. at 103 (PCC Ambulatory Encounter

Record, dated Aug. 6, 2009); id. at 115 (PCC Ambulatory Encounter Record, dated

Mar. 18, 2010). Rather, Dr. Poe prescribed pain medication, directed Ms. Benally

to take Vitamin D supplements, and scheduled regular follow-up appointments at

three-month intervals. See id. at 112–13 (Aff. of Helen Benally, dated Jan. 19,

2015).

         Nonetheless, the surgical hardware—a pin, a plate, and some screws—“had

[in fact] failed [completely], torn through the bone,” and ceased to “maintain[] a

proper alignment.” Id. at 15. And, due to that failure, Ms. Benally experienced “a

progressive movement of the two-large [femur] fragments from a fixed position to

a non-union condition.” Id. Consequently, after “approval from contract care,”

Ms. Benally received “a total left hip replacement” at UNMH on July 17, 2010.

Id. at 113. Although the hip-replacement operation proved successful, Ms.

Benally “continues to have problems related to the failed femur surgery.” Id. at

15.

                                            B

         Following these events, Ms. Benally filed two, highly similar tort-claim,

administrative notices with HHS: an initial, handwritten form submitted on March

8, 2011, and an amended, typed form submitted on May 7, 2012. In the first

notice, filed pro se, Ms. Benally stated:

               On November 23, or thereabouts, Helen Benally underwent

                                                4
              surgery at the Gallup Indian Medical Center in New Mexico. She
              had a total hip replacement (left hip). The new hip failed after
              some months passed. The hip replacement equipment gave way
              & separated, causing severe pain and serious mobility problems.
              The surgery at GIMC was performed negligently, below the
              standard of care. Further surgery became necessary. Permanent
              damage.

Id. at 271 (Form 95, signed Mar. 8, 2011). Ms. Benally’s attorney filed the second

(amended) notice, nearly fourteen months later. It described the basis for Ms.

Benally’s claim in similar terms, explaining:

              On November 23, 2008, or thereabout, Helen Benally underwent
              surgery on her left hip . . . at the Gallup Indian Medical Center in
              New Mexico. Ms. Benally’s left hip surgery was mishandled
              causing Ms. Benally severe pain and serious mobility programs.
              [sic] The surgery at GIMC was performed negligently and below
              the standard of care, causing permanent damage. Further surgery
              became necessary.

Id. at 272 (Form 95, submitted May 7, 2012). 4 Whether taken together or read in

isolation, 5 Ms. Benally’s notices narrowly focused on one event: her November 23,

       4
              Ms. Benally’s initial notice described the surgery as “a total hip
replacement (left hip),” Aplt.’s App. at 271, while her amended notice described
only “her left hip surgery,” id. at 272. Ms. Benally’s subsequent civil complaint
identified the operation as “an open reduction/internal fixation.” Id. at 14.
       5
                The parties’ appellate briefing draws no legal distinction between Ms.
Benally’s initial and amended notices, nor explains the effect of the amendment on her
initial notice. Rather, the parties’ briefing tacitly assumes that the initial and amended
notices should be ready together—viz., it tacitly assumes that they are both proper
subjects of our review in discerning whether Ms. Benally has satisfied the FTCA’s
presentation requirement. Their briefing simply offers competing interpretations of both
notices. At oral argument, in response to a question from the panel, the government
indicated that, as a matter of law, the amended notice superseded the initial one, but
acknowledged that there was not a “huge difference” between them. Oral Arg. at
                                                                                  (continued...)

                                               5
2008 surgery. Indeed, each notice explained that Ms. Benally had a hip operation

at GIMC that caused subsequent pain, and then asserted, based on that limited

factual universe, that “[t]he surgery was performed negligently” and “below the

standard of care.” Id. (emphasis added); accord id. at 271. Thus, despite Ms.

Benally’s extensive, nearly two-year treatment with GIMC, she made no mention

of pre-operative care, post-operative care, or Dr. Poe and his involvement in these

phases of her treatment. Rather, she expressed concerns only with the manner in

which GIMC performed her surgery. HHS reportedly denied Ms. Benally’s claim

by letter dated February 11, 2013. 6

                                              C

       Ms. Benally subsequently filed suit in federal court, and her civil complaint

painted a markedly different—and far broader—picture of her injuries and the

source of them. Ms. Benally’s complaint asserted a single count of negligence,

particularized by a lengthy series of allegedly “negligent actions and omissions”

by Dr. Poe—beginning with his pre-operative care and consultation, continuing to

his surgical techniques, and concluding with attacks on the scope of his post-

       5
        (...continued)
22:21–25. Given the shared approach of the parties’ briefing, we will assume without
deciding that our review properly extends in this case to both notices. The government’s
belated, oral-argument suggestion to the contrary does not persuade us to take a different
approach. See, e.g., Fed. Ins. Co. v. Tri-State Ins. Co., 157 F.3d 800, 805 (10th Cir. 1998)
(“Issues raised for the first time at oral argument are considered waived.”).
       6
              In their briefing, the parties agree on the date of the denial, but the parties
failed to include the denial letter as part of the record on appeal.

                                              6
operative care. Id. at 16–17. These “negligent actions and omissions” specifically

included:

              (a)    failing to present alternative choices, i.e., a total hip
                     arthroplasty, to Ms. Benally prior to her surgery on
                     November 23, 2008; [7]

              (b)    failing to include in the informed consent for surgery that
                     the fixation device could cut out of the bone, resulting in a
                     failure to heal and a need for further surgery;

              (c)    failing to employ proper surgical techniques when
                     attempting a fixation of the left femur fracture;

              (d)    failing to inform Ms. Benally of the potential failure of the
                     fixation when she met with Dr. Poe on December 16, 2008;

              (e)    failing to have Ms. Benally return within a reasonable
                     period of time following surgery to determine whether or
                     not there would be further collapse;

              (f)    failing to explain to Ms. Benally on March 30, 2009, that
                     the pin was more displaced and that there was further bone
                     destruction;



       7
               The government claims that the district court’s July 15, 2015, order entering
partial summary judgment on Ms. Benally’s “medical malpractice” claim disposed of this
allegation. See Aplee.’s Response Br. at 7 n.6; see also Aplt.’s App. at 246–60 (Mem.
Op. & Order, filed July 15, 2015). The government, however, misreads the relevant
aspect of the district court’s opinion. Importantly, the district court found the government
“entitled to judgment as a matter of law that the selection of femur surgery that Dr. Poe
performed on Benally did not breach the standard of care,” id. at 255, not on the issue of
whether Dr. Poe adequately informed Ms. Benally of alternative choices to femur
surgery. Indeed, the district court specifically declined to enter summary judgment on the
issue of informed consent, because although Ms. “Benally may have consented to the
procedure that Dr. Poe performed,” the record created the impression that “she did so
without a discussion of the relevant array of surgical alternatives, such as a total hip
replacement.” Id. at 256.

                                                7
             (g)   failing on March 30, 2009, to schedule Ms. Benally for
                   surgery, instead prescribing pain medication;

             (h)   failing on March 30, 2009, to schedule a return visit within
                   a reasonable amount of time to determine the further status
                   of the fixation failure and to decide upon a course of
                   action;

             (i)   failing on August 6, 2009, to refer Ms. Benally for a
                   second opinion at a facility better able to determine the
                   appropriate treatment for her nonunion and fixation failure;
                   [and]

             (j)   failing on March 18, 2010, to refer Ms. Benally for a
                   second opinion at a facility better able to determine the
                   appropriate treatment for her displaced bone fragments and
                   the bone destruction caused by the fixation device.

Id.

                                      D

      Following the district court’s entry of partial summary judgment in the

government’s favor on matters that are not currently before us,8 the government

filed motions to dismiss the informed-consent and post-operative-care aspects of

Ms. Benally’s complaint for failure to provide notice of these allegations as the

FTCA requires. Finding that Ms. Benally’s notices “d[id] not implicate the issue

of informed consent,” id. at 296 (Mem. Op. & Order, filed Oct. 22, 2015), and



      8
               On July 15, 2015, the district court found the government entitled to
summary judgment on Ms. Benally’s allegations “that the selection of femur
surgery . . . breach[ed] the standard of care,” Aplt.’s App. at 255, and that “Dr.
Poe employed [in]appropriate surgical techniques,” id. at 256 (capitalization
omitted). Ms. Benally mounts no challenge to these determination on appeal.

                                          8
“fail[ed] to state any facts . . . regarding her postsurgical care,” id. at 339 (quoting

the record) (Mem. Op. & Order, filed May 20, 2016), the district court dismissed

the remainder of her complaint for lack of subject-matter jurisdiction. Ms.

Benally’s appeal followed: it challenges only the sufficiency of her notices under

the FTCA’s presentation requirement. We review the district court’s ruling on this

sufficiency question de novo. See, e.g., Staggs v. United States ex rel. Dep’t

Health & Human Servs., 425 F.3d 881, 884 (10th Cir. 2005) (noting that

sufficiency “presents a question of law subject to de novo review”).

                                            II

      The FTCA’s jurisdictional statute, 28 U.S.C. § 2675(a), requires a would-be

tort plaintiff to file “(1) a written statement sufficiently describing the injury to

enable the agency to begin its own investigation, and (2) a sum certain damages

claim.” Lopez v. United States, 823 F.3d 970, 976 (10th Cir. 2016) (quoting Estate

of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852 (10th Cir. 2005)).

The FTCA’s “eminently pragmatic” written, claim-presentation requirement

requires that the written statement provide “due notice that the agency should

investigate the possibility of particular (potentially tortious) conduct.” Trentadue,

397 F.3d at 852 (emphases added) (quoting Dynamic Image Techs., Inc. v. United

States, 221 F.3d 34, 40 (1st Cir. 2000)).

      In other words, the notice must describe “the facts and circumstances

underlying a claim”—“rather than the exact grounds”—“upon which [the] plaintiff

                                            9
seeks to hold the government liable.” Id. at 853. Thus, it “should give notice of

the underlying facts and circumstances” that will form the fabric of the subsequent

civil suit, Staggs, 425 F.3d at 884 (emphases added).

      Reinforcing the facts-and-circumstances focus of the presentation

requirement, we recently endorsed a sibling circuit’s explanation that an FTCA

notice should be read to “encompass[] any cause of action fairly implicit in the

facts.” Lopez, 823 F.3d at 976 (emphasis added) (quoting Murrey v. United States,

73 F.3d 1448, 1452 (7th Cir. 1996)). Lopez underscores the long-held

understanding that courts should liberally construe the universe of facts that the

FTCA claimant provides. 9 That does not mean, however, that courts should

augment those facts to conform to the claimant’s subsequent civil complaint. See

Staggs, 425 F.3d at 885 (“We recognize the tragic circumstances of this case and

that our decision provides little solace . . . . However, the FTCA’s presentation

requirements are jurisdictional and cannot be waived.”).

                                         III

      Relying on the liberal construction of administrative claims,10 Ms. Benally

      9
             Ms. Benally points to United States v. Kwai Fun Wong, --- U.S. ----,
135 S. Ct. 1625 (2015) for the same general notion. See Aplt.’s Reply Br. at 10
(explaining that Ms. Benally “cited Wong for the proposition that overly narrow
construction of the FTCA is prohibited”). The parties, however, agree that the
principal, equitable-tolling holding of Wong has no relevance here.
      10
            Ms. Benally also underscores that we should consider “the small
amount of space” allotted on the government claim form to describe a
                                                                     (continued...)

                                         10
argues that her tort-claim notices sufficiently put the government (i.e., HHS) on

notice regarding her claims for negligent post-operative care and lack of informed

consent. We disagree. Accordingly, we uphold the district court’s dismissal of

these aspects of Ms. Benally’s complaint for lack of subject-matter jurisdiction.

                                          A

      Turning first to the issue of post-operative care, Ms. Benally raises two

arguments—one rooted in the substance of her notices, and the other based on her

view of the relevant legal landscape. More specifically, Ms. Benally first posits

that her description in the notices of “the hardware fail[ure] months after the

surgery[] clearly put[] the Government on notice and provid[ed] a factual basis”

for her post-operative care claim. Aplt.’s Opening Br. at 20; accord id. at 14;

Aplt.’s Reply Br. at 4. Second, Ms. Benally argues that, irrespective of whether

the notices explicitly detail a claim for post-operative care, “a medical negligence

claim” “encompasse[s],” as a matter of law, “both negligent surgery and negligent

aftercare.” Aplt.’s Reply Br. at 6 (emphasis added). The government argues, by

contrast, that Ms. “Benally failed to mention anything in her [tort-claim] forms


      10
        (...continued)
claim—labeling the form “skeletal”—and her initial pro se status. Aplt.’s Opening
Br. at 12; accord id. at 1 (discussing “the approximately 1.5 inch space provided
on the government form for the description of the basis of the claim”). However,
these fleeting assertions merit little response: the tort claim form plainly permits
claimants to “[u]se additional pages if necessary,” Aplt.’s App. at 271, and after
filing her initial notice, Ms. Benally has proceeded in this matter with counsel,
who filed an amended notice that we also consider here, along with the initial one.

                                         11
about the post-operative care, and as such[,] . . . failed to exhaust those claims,

depriving the district court of subject matter jurisdiction.” Aplee.’s Response Br.

at 26. Rejecting each of Ms. Benally’s arguments, we conclude that her notices

failed to exhaust her claim of negligent post-operative care.

                                           1

      Reciting her statements that the hip hardware “gave way & separated”

“some months” after the surgery, and that the “fail[ure]” “caus[ed] severe pain and

serious mobility problems,” Aplt.’s App. at 271; see also Aplt.’s Reply Br. at 3,

Ms. Benally reasons that she “told [HHS] the starting point and ending point for

the investigation” and “clearly convey[ed] that the failure of the hardware during

the post-operative care period needed to be part of the investigation.” Aplt.’s

Opening Br. at 15. In other words, Ms. Benally claims that she “causally

connected the surgery and the injury months later,” id., making it “‘fairly implicit’

that [her] claim covered negligence in the post-operative period . . . [and also]

from the surgery,” Aplt.’s Reply Br. at 4. We disagree.

      Ms. Benally’s position relies exclusively on her initial notice’s reference to

a “surgery and [then] injury months later,” Aplt.’s Opening Br. at 15, all while

ignoring the context—i.e., the facts and circumstances—surrounding that

assertion. Importantly, Ms. Benally’s notices emphasized only that GIMC

“performed” the “surgery” “negligently” and “below the standard of care,” Aplt.’s

App. at 271–72 (emphases added); it did not expressly convey that she intended to

                                           12
challenge the post-operative care that she received—specifically, from Dr. Poe.

Her notices, for example, made no reference to post-operative care or Dr. Poe,

much less suggested negligent conduct by Dr. Poe during that post-operative

period. Similarly, the notices included no mention of the various follow-up

appointments she attacks in her complaint, nor did they indicate any objection to

the medical opinions that she received from Dr. Poe during those visits.

      Nevertheless, Ms. Benally claims that her simple reference in her initial

notice to an equipment failure following her surgery gave the government ample

basis to divine that her administrative claim “covered negligence in the post-

operative period . . . [and also] from the surgery.” Aplt.’s Reply Br. at 4.

However, Ms. Benally’s initial notice—even under the most generous

reading—described only the consequences of the negligent surgery that formed the

basis of her claim; it did not express a distinct concern regarding the nature or

adequacy of her post-operative care. The text of her initial notice confirms this

conclusion. Ms. Benally’s notice included the following narrative: that she

“underwent [hip] surgery,” that “[t]he new hip failed after some months passed,”

and that “[t]he hip replacement equipment gave way & separated, causing severe

pain and serious mobility problems.” Aplt.’s App. at 271. Conspicuously absent

from this account is any mention of Dr. Poe or, more generally, any conduct

amounting to post-operative negligence committed by anyone. Significantly, there

is no assertion that post-operative negligence caused any of the alleged adverse

                                          13
events (e.g., the equipment failure or the mobility problems). Rather, Ms. Benally

simply offered in her initial administrative notice the assertion that “[t]he surgery .

. . was performed negligently, below the standard of care.” Id. (emphasis added).

      Moreover, her amended notice did nothing to alter the foundation for her

claim. It omitted any indication of the subsequent equipment failure, stressing

instead only that GIMC “mishandled” and “negligently” “performed” Ms.

Benally’s “surgery,” causing “permanent damage.” Id. at 272. That omission

further underscores the fact that Ms. Benally’s notices reflected a laser-like focus

on how GIMC performed her surgery. Against this backdrop, we discern no basis

to conclude that Ms. Benally’s notices—explicitly or implicitly—presented to the

government any concerns related to her post-operative care. And, given the

absence of these allegations, the government reasonably could have concluded that

Ms. Benally did not intend to assert a claim of negligent post-operative care and

that, consequently, no investigation into post-operative matters was necessary.

      Ms. Benally resists this result, asserting that her position is supported by our

decision in Trentadue. Ms. Benally, however, misreads Trentadue, and then

overstates the force of Trentadue’s application here. We first introduce Trentadue,

and then explain our reasoning.

      In Trentadue, Mr. Trentadue’s “estate filed an administrative claim with the

DOJ,” after his death in the Federal Transfer Center in Oklahoma City, Oklahoma.

Trentadue, 397 F.3d at 851. “The claim generally was based on the belief that

                                          14
prison guards had murdered [Mr.] Trentadue, and included a claim for damages for

intentional infliction of emotional distress based on prison officials’ attempt to

conceal the manner of his death.” Id. After the DOJ denied the administrative

claim, Mr. Trentadue’s estate brought, inter alia, “a claim against the government

under the FTCA for intentional infliction of emotional distress.” Id. The matter

proceeded to trial, and the district court ultimately “entered judgment against the

government for intentional infliction of emotional distress, and awarded plaintiffs

$1.1 million in damages.” Id.

      The government appealed, arguing that “the [administrative] claim was

insufficient [for notice purposes] in that it was based on a theory that prison

officials had murdered Trentadue and did not discuss the specific grounds relied

on by the district court in awarding damages, namely, the government’s treatment

of the Trentadue family in the aftermath of his death and its actions in conducting

an autopsy after claiming that no autopsy would be performed without prior

approval.” Id. at 852. We disagreed.

      Addressing the government’s notice analysis, we emphasized “that the

FTCA’s notice requirement should not be interpreted inflexibly,” and interpreted

that “provision to require notice of the facts and circumstances underlying a claim

rather than the exact grounds upon which [the] plaintiff seeks to hold the

government liable.” Id. at 853. We then stated that the “administrative claim in

th[at] case included an intentional infliction of emotional distress claim[,]

                                          15
specified the damages sought,” id. at 852, and “was based on the same underlying

conduct that supported the[] amended [i.e., operative] complaint,” id. at 853.

Given those circumstances, we concluded that the administrative claim in

Trentadue was sufficient to provide the government with adequate, statutory

notice. See id.

      Notably, the administrative claim in Trentadue was based on both

antemortem and postmortem facts. And, significantly, some of the latter facts

related to the emotional-distress claim—that is, they related to “a claim for

damages for intentional infliction of emotional distress based on prison officials’

attempt to conceal the manner of [Mr. Trentadue’s] death.” Id. at 851. Thus, the

court in Trentadue essentially held that, though the operative complaint did not

replicate the same theory of emotional distress found in the administrative claim,

that claim provided the government with adequate notice that it should investigate

postmortem agency conduct that arguably could give rise to emotional distress.

More specifically, the court tacitly reasoned that the administrative claim gave the

government adequate notice that it should investigate a universe of causes of the

alleged postmortem emotional distress that included matters that the operative

complaint generally referenced and the district court relied on. See id. at 853. In

this case, by contrast, Ms. Benally never identified post-operative agency conduct

as the basis for her claimed injury. Rather, she only referenced a post-operative

matter—i.e., equipment failure—that was a consequence of her initial operation.

                                         16
Thus, a government investigator would have had no basis to inquire into the

quality of her post-operative care.

       Indeed, Ms. Benally’s notices raised only surgical concerns, and her

challenges to her post-operative care came to light only in her subsequent civil

complaint. Thus, Trentadue offers little succor to Ms. Benally, because, unlike

that case, her administrative notices simply failed to provide the facts and

circumstances underpinning her subsequent federal-court claim.11

      For all of the foregoing reasons, we reject the notion that Ms. Benally’s



      11
              Notably, in Trentadue, we contrasted the administrative claim filed by
Mr. Trentadue’s estate with the claim deemed insufficient by our sibling circuit in
Dynamic Image Technologies, Inc. v. United States, 221 F.3d 34 (1st Cir. 2000).
In Dynamic Image, the “plaintiff filed an administrative claim for damages with
the United States Postal Service following his forcible removal from a postal
service trade show.” Trentadue, 397 F.3d at 853. The plaintiff’s administrative
claim alleged “negligent misrepresentation, libel, slander, intentional interference
with contractual relations, and discrimination under 42 U.S.C. § 1983,” id.
(quoting Dynamic Image, 221 F.3d at 36), while his later civil suit “brought claims
under the FTCA for false arrest, intentional infliction of emotional distress and
negligent supervision,” id. “Because those causes of action were based on an
incident not mentioned in plaintiff’s administrative claim, the First Circuit held
that the agency was not put on notice that it should investigate the potentially
tortious conduct, and dismissed the complaint for lack of subject matter
jurisdiction.” Id. In contrast, we explained, “the plaintiffs’ administrative claim
[in Trentadue] specifically included a claim for intentional infliction of emotional
distress and was based on the same underlying conduct that supported their
amended complaint.” Id. We conclude that Ms. Benally’s case closely resembles
Dynamic Image, because as there, Ms. Benally’s subsequent civil complaint
asserted a claim (negligent post-operative care) nowhere mentioned in her
administrative notices (which focused only on the way in which GIMC performed
the surgery). Accordingly, as with the plaintiff in Dynamic Image, Ms. Benally’s
case is distinguishable from Trentadue; that case does not avail her.

                                         17
administrative notices were sufficient to satisfy the FTCA’s presentation

requirement with respect to her civil claim of negligent post-operative care.

Therefore, we conclude that Ms. Benally’s first argument related to such care is

without merit.

                                          2

      Turning then to Ms. Benally’s alternative argument, she claims that “[t]he

standard of reasonable care in the medical profession treats the surgery and the

post-operative care period as a unified whole necessary to a successful surgery.”

Aplt.’s Opening Br. at 22. Ms. Benally thus theorizes that a “medical negligence

claim” inherently consists of “negligence during surgery and negligence during the

post-operative period.” Aplt.’s Reply Br. at 5 (emphasis added). Ms. Benally,

however, cites no authority to support her view under the substantive law of New

Mexico, which is controlling here. See, e.g., In re Franklin Savings Corp., 385

F.3d 1279, 1288 (10th Cir. 2004) (explaining that “state law determines whether

there is substantive liability under the FTCA”). And the few authorities from

other jurisdictions upon which she relies are unpersuasive. 12 Accordingly, because

      12
             Specifically, Ms. Benally relies on three non-binding and easily
distinguishable federal district court decisions. See Aplt.’s Opening Br. at 16–17.
She first focuses on Hartmann v. United States, No. 10-4012, 2011 WL 1542102
(W.D. Mo. Apr. 22, 2011) (unpublished). There, the court referenced the
dictionary definition of “surgery,” and found that the administrative claim
provided adequate notice to support civil claims of negligent surgical performance
and post-operative care. See id. at *11. The Hartmann court’s determination,
however, relied on the plaintiff’s identification of his post-operative providers on
                                                                         (continued...)

                                         18
it lacks legal substance, we reject Ms. Benally’s second argument.

                             ***********************

       In sum, given the clear laser-like focus of Ms. Benally’s administrative

notices on the allegedly negligent performance of her surgery, we conclude that

Ms. Benally’s notices lacked the facts and circumstances sufficient to raise the

possibility of a claim for negligent post-operative care. Accordingly, we affirm

the district court’s dismissal of her claim for negligent post-operative care.

                                           B

(...continued)
the face of his FTCA claim and his reference to specific post-operative treatment.
See id. We find no such references here in Ms. Benally’s administrative notices.
In particular, Ms. Benally’s notices are silent regarding the role of Dr. Poe in
providing care to her. Next, Ms. Benally seeks support from Mejia v. United
States, No. 13-1789, 2016 WL 4579084 (S.D.N.Y. Aug. 31, 2016) (unpublished).
There, a district court stated that “a general medical malpractice allegation
includes the hospital’s and/or treating physician’s whole response to the medical
issue, including care prior to and after the specific treatment alleged,” id. at *5,
and found adequate notice for claims concerning the plaintiffs’ “entire course of
treatment,” id. As in Hartmann, however, the Mejia court predicated its ultimate
finding (at least in part) on the plaintiffs’ specific reference in her administrative
claim to “continuing care” after the initial operation. Id. Ms. Benally included no
similar mention of her post-operative care in her initial and amended
administrative notices. Finally, Ms. Benally casts her gaze toward Coffey v.
United States, 906 F. Supp. 2d 1114 (D.N.M. 2012), to buttress her theory that
courts “routinely treat claims for negligent aftercare as part of a negligent surgery
claim.” Aplt.’s Opening Br. at 16. But Coffey did not involve a surgical or post-
operative care claim, and as in Hartmann and Mejia, the Coffey court premised its
finding (at least in part) on the plaintiff’s inclusion of specific facts related to each
of the subsequent civil claims. See Coffey, 906 F. Supp. 2d at 1154–56. There is
no such inclusion of specific, relevant facts in Ms. Benally’s administrative
notices. In sum, Ms. Benally’s notices—which contain no reference to any post-
operative care or provider—hardly resemble those deemed sufficient in Hartmann,
Mejia, and Coffey. Thus, Ms. Benally’s reliance on these cases is unavailing.

                                           19
      Finally, we turn to the issue of informed consent. Ms. Benally submits that

“New Mexico [law] treats a claim [for] lack of informed consent in connection

with medical care as part of a medical negligence claim.” Aplt.’s Opening Br. at

25–26; accord Aplt.’s Reply Br. at 8 (“[U]nder the New Mexico state law defining

the parameters of a medical negligence claim, which is the applicable law in this

case, lack of informed consent is considered part of a negligent surgery claim.”).

From that premise, Ms. Benally argues that the district court erred in its dismissal,

because her notices “‘allude[d]’ to lack of informed consent” by “describing an

alleged negligent surgery below the standard of care and failed hip hardware.”

Aplt.’s Reply Br. at 9–10. The government retorts that Ms. “Benally’s

administrative claims failed to articulate any claim based upon lack of informed

consent,” Aplee.’s Response Br. at 19, and notes that, in Staggs, we squarely

addressed—and rejected—the notion “that an administrative claim for medical

negligence necessarily includes lack of informed consent when the underlying

state law treats lack of informed consent as negligence.” 425 F.3d at 885. The

government’s response is thus sound. We conclude that Ms. Benally’s

administrative notices failed to adequately present her informed-consent claim to

the government (i.e., HHS).

      As a preliminary matter, we observe that the plain text of Ms. Benally’s

notices contained no indication that her claim of surgical negligence involved a

lack of informed consent. Nothing in Ms. Benally’s notices suggested, for

                                          20
example, that GIMC left her unaware or misinformed on the direction, scope, or

potential consequences of her operation, or that GIMC proceeded to surgery

without informing Ms. Benally of alternate options. Indeed, Ms. Benally

described her injury—i.e., stemming from her negligently performed

surgery—without mentioning“consent,” her pre-operative consultations at GIMC,

or any alleged deficiency in the nature or quality of the consent that Dr. Poe

obtained. No aspect of her notices could reasonably have prompted the

government to investigate a negligence claim based upon lack of informed

consent. See Lopez, 823 F.3d at 976–77 (noting that a tort claim notice must

“describ[e] the injury in sufficient detail to allow the agency to begin an

investigation into the possibility of potentially tortious conduct,” and concluding

that the plaintiff’s “administrative claim did not reasonably encompass his

negligent credentialing and privileging claim”).

      Now, cutting to the heart of the issue, we conclude that Ms. Benally cannot

escape the inexorable force of our Staggs decision, which fatally undermines her

contention that references in her administrative notices to negligently performed

surgery and medical-equipment failure sufficiently presented (or even alluded to) a

claim for lack of informed consent. In Staggs, the plaintiff filed an administrative

claim accusing an HHS medical facility of a “substantial departure from the

standard of care” and the “negligent management of [the plaintiff’s wife’s]

pregnancy [and] labor.” 425 F.3d at 884. The plaintiff “assert[ed] that failure to

                                          21
obtain informed consent was inherent in this language and other language

indicating that during [the wife’s] care, a decision had to be made about changing

the course of treatment.” Id. We disagreed. In doing so, we first noted that

“[n]othing in [the] administrative claim suggest[ed] that [the plaintiff’s wife]

consented to a course of treatment or remained on such a course without being

informed of her options and the risks,” id., or that she received misinformation

concerning the nature of her treatment, see id. at 885. In light of this, we

concluded “that [the plaintiff’s] administrative claim lack[ed] facts and

circumstances sufficient to raise the possibility of lack of informed consent.” Id.

      We then explicitly rejected “the Fifth Circuit’s view that an administrative

claim for medical negligence necessarily includes lack of informed consent when

the underlying state law treats lack of informed consent as negligence.” Id.

Rather, we reiterated that the sufficiency of a tort claim notice must be

“examined” on a “case-by-case” basis, according to the facts-and-circumstances

analysis that we espoused in Trentadue and its progeny. Id.

      At bottom, then, we directly confronted and rejected in Staggs a position

virtually identical to the one that Ms. Benally advances here—namely, that a

state’s purported treatment under its law of a claim for lack of informed consent as

part and parcel of a medical-negligence claim obviates the need for a plaintiff to

adequately present in the text of its medical-negligence administrative claim facts

and circumstances regarding a lack of informed consent. Consequently, as in

                                          22
Staggs, we reject Ms. Benally’s position. To be sure, Ms. Benally attempts to

distinguish Staggs, but her arguments are unpersuasive. Ms. Benally argues that

“Staggs does not control” because “Staggs involved Oklahoma law, not New

Mexico law.” Aplt.’s Reply Br. at 9. However, the unique contours of Oklahoma

law had no bearing on our Staggs holding. Rather, we generally rejected the idea

“that an administrative claim for medical negligence necessarily includes lack of

informed consent when the underlying state law treats lack of informed consent as

negligence.” 425 F.3d at 885 (emphasis added). Therefore, Staggs’s holding

governs regardless of the source of the underlying state substantive law. 13


      13
              To bolster her informed-consent argument, Ms. Benally also relies on the
Ninth Circuit’s decision in Goodman v. United States, 298 F.3d 1048 (9th Cir. 2002),
which she tells us “explains the circumstances when an informed consent claim is part of
a medical negligence claim, as was true here.” Aplt.’s Opening Br. at 29. In Goodman,
the Ninth Circuit found that an administrative notice’s allegations that “‘things . . .
were overlooked in [a] procedure’ and [that claimant’s] wife ‘should not have
died,’” fairly “impl[ied] that the claimant’s wife agreed to a procedure involving a
greater standard of care than what she received,” id. at 1056–57—viz., fairly
implied an informed-consent claim. In finding these allegations sufficient for
presentation purposes, the Ninth Circuit noted that it had “strong reason to think
the government well understood the general scope of [the plaintiff’s] claim”
because HHS’s denial of the administrative claim “expressly addressed the issue of
informed consent.” Id. Based partially on the indicium of notice in the HHS’s
denial, the Ninth Circuit “conclude[d] that the government was fairly on notice
that the informed consent claim was before it.” Id. at 1057. In concluding that
Goodman does not aid Ms. Benally, we begin with the obvious: coming out of the
Ninth Circuit, it is not controlling precedent. Furthermore, at the very least, the
reasoning of Goodman appears to be in tension with our precedent because, as in
Staggs, the plain terms of the administrative claim there appeared to have “no
allegations . . . that [the plaintiff] was unaware or misinformed as to the direction,
scope or potential consequences” of her treatment, 425 F.3d at 884–85, and
                                                                            (continued...)

                                           23
      Thus, under Staggs, Ms. Benally’s legal contentions regarding the nature of

medical-negligence claims under New Mexico law cannot save her informed-

consent claim. That claim is doomed because, as noted, Ms. Benally’s

administrative notices failed to raise the possibility that she would pursue such a

claim. We thus uphold the district court’s dismissal of Ms. Benally’s informed-

consent claim.



                                         IV



      13
         (...continued)
seemingly did not “describ[e] the injury in sufficient detail to allow the agency to
begin an investigation into the possibility of potentially tortious conduct,” Lopez,
823 F.3d at 976. Lastly, even if we found the reasoning of Goodman persuasive,
our record would not permit us to meaningfully apply it here. That is because
HHS’s February 11 denial is not part of the record on appeal; accordingly, unlike
Goodman, we cannot discern whether HHS divined an informed-consent
contention among the facts and circumstances of Ms. Benally’s administrative
notices. Any adverse consequence of this record deficiency must fall squarely on
the shoulders of Ms. Benally. See Travelers Indem. Co. v. Accurate Autobody,
Inc., 340 F.3d 1118, 1120 (10th Cir. 2003) (“We are unwilling to reverse the
decision of the district court based on a guess . . . . The party appealing a district
court ruling has the burden to relieve us of such guesswork by providing the
necessary documents.”); Rios v. Bigler, 67 F.3d 1543, 1553 (10th Cir. 1995) (“It is
not this court’s burden to hunt down the pertinent materials. Rather, it is
Plaintiff’s responsibility as the appellant to provide us with a proper record on
appeal.”); see also Burnett v. S.W. Bell Tel., L.P., 555 F.3d 906, 908 (10th Cir.
2009) (collecting cases). In any event, tellingly, neither in her Goodman-based
argument nor elsewhere does Ms. Benally contend that the HHS’s denial letter
evinced an understanding that she was alleging lack of informed consent in her
initial or amended administrative notices. Accordingly, for the foregoing reasons,
Goodman offers Ms. Benally no aid.


                                          24
      Based on the foregoing, we AFFIRM the district court’s judgment

dismissing Ms. Benally’s complaint for lack of subject-matter jurisdiction.



                                ENTERED FOR THE COURT



                                Jerome A. Holmes
                                Circuit Judge




                                        25
