                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                   PUBLISH
                                                                       OCT 24 2002
                   UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                            Clerk
                                 TENTH CIRCUIT



 BEVERLY HACEESA, individually,
 and FIRST FINANCIAL TRUST
 COMPANY, as Conservator for
 SHENOEL HACEESA, a minor,

       Plaintiffs - Appellees,                         No. 01-2252
 v.

 UNITED STATES OF AMERICA,

       Defendant - Appellant.


                 Appeal from the United States District Court
                       for the District of New Mexico
                      (D.C. No. CIV-99-0060 MV/RLP)


William G. Cole, Attorney, Appellate Staff, Civil Division, Department of Justice,
Washington, D.C. (Robert S. Greenspan, Attorney, Appellate Staff, Civil
Division, Department of Justice, Washington, D.C., Robert D. McCallum, Jr.,
Assistant Attorney General, and David C. Iglesias, United States Attorney, with
him on the briefs), for Defendant-Appellant.

James P. Lyle, Law Offices of James P. Lyle, P.C., Albuquerque, New Mexico
(Turner W. Branch, Branch Law Firm, Albuquerque, New Mexico, with him on
the brief), for Plaintiffs-Appellees.


Before EBEL, McKAY and BRISCOE, Circuit Judges.


EBEL, Circuit Judge.
      On the evening of Saturday, April 25, 1998, twenty-five year-old Hardy

Haceesa walked into a hospital emergency room complaining of a fever, difficult

and painful breathing, chest discomfort, and general achiness. He told the nurse

he thought his condition could be the result of exposure to mice. Haceesa was

sent home that night, diagnosed with bronchitis and told to check back at the local

clinic on Monday. By Tuesday evening, he was dead.

      Only after his death was Haceesa’s disease diagnosed correctly: he died of

hantavirus pulmonary syndrome, a rare, deadly disease caused by exposure to

airborne particles of the urine of infected mice and characterized in its early

stages by flu-like symptoms. Haceesa was a Navajo Indian, and the hospital

where he was first seen on April 25 – the Northern New Mexico Navajo Hospital

in Shiprock, New Mexico – is owned and operated by the Indian Health Service,

an agency of the United States Department of Health and Human Services. As the

district court observed, Shiprock Hospital stands “in the geographic center of the

world for” hantavirus.

      The present suit was brought by Haceesa’s widow Beverly Haceesa and his

four year-old daughter Shenoel, alleging medical malpractice in the failure to

diagnose Haceesa’s hantavirus. The suit was brought against the United States

under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq.

After a bench trial in federal district court for the District of New Mexico, the

                                         -2-
court found the Government liable and awarded the Plaintiffs damages of over

$2.1 million. 1 On appeal, the Government no longer disputes its liability, but

challenges the damages awarded on three distinct grounds. First, it argues that

New Mexico’s $600,000 statutory cap on medical malpractice recoveries applies

to the Plaintiffs’ suit. Second, the Government argues that its liability should be

reduced to reflect its comparative negligence relative to a subsequent health care

provider that also failed to diagnose Haceesa’s hantavirus. Third, it argues that

certain of the Plaintiffs’ claims are barred because they were not administratively

exhausted at the time suit was filed. The district court rejected all three

arguments. We conclude that the district court erred (1) in concluding that the

recovery cap did not apply; (2) in failing to calculate the Government’s liability

on the basis of New Mexico’s “loss of chance” approach; and (3) in concluding




      1
         The district court found that the Plaintiffs’ total damages were
approximately $3.3 million. Finding as fact that the Government’s negligence
resulted in the loss of a 65 percent chance that Haceesa would survive, the court
awarded damages in the amount of 65 percent of approximately $3.3 million or
approximately $2.15 million (citing Alberts v. Schultz, 975 P.2d 1279 (N.M.
1999)).
       On appeal, the Plaintiffs do not challenge the district court’s decision to
reduce the judgment to 65 percent of their damages. Additionally, the
Government did not argue below, and specifically disclaimed at oral argument an
intention of arguing here, that the damages awarded should have been offset by
the amount of a settlement between the Plaintiffs and another hospital that also
failed properly to diagnose Haceesa’s condition.

                                         -3-
that the Estate’s claim for wrongful death was timely filed. Accordingly, we

reverse and remand for further proceedings consistent with this opinion.



           I. APPLICATION OF THE FTCA TO NEW MEXICO’S
             CAP ON MEDICAL MALPRACTICE RECOVERIES

      The district court awarded the Plaintiffs over $2.1 million in damages. The

Government argues on appeal that this damages award should have been subject

to New Mexico’s $600,000 cap on medical malpractice recoveries. N.M. Stat.

§ 41-5-6(A) (“the recovery cap”). The district court rejected this argument:

                    The New Mexico cap on damages under the New
             Mexico Medical Malpractice Act does not apply in this case.
             The cap only applies to negligence by a “health care provider,”
             which is defined as a “person, corporation, organization,
             facility or institution licensed or certified by this state to
             provide health care or professional services as a doctor of
             medicine, hospital, outpatient health care facility, doctor of
             osteopathy, chiropractor, podiatrist, nurse anesthetist or
             physician’s assistant.” NMSA § 41-5-3(A). Plaintiffs’ claims
             against the hospital administrators who elected to provide
             absolutely no training to Nurse Rhodes, as well as their claims
             of negligence against Nurse Rhodes, are not capped under the
             statute.

In other words, the district court concluded that (1) the recovery cap applies only

to suits against health care providers, and (2) that Haceesa’s suit against hospital

administrators and a nurse was not a suit against health care providers. On

appeal, the Government challenges each of these conclusions. The Plaintiffs,

meanwhile, argue for affirmance on the alternative ground that, under New

                                        -4-
Mexico law, the Government is not entitled to the benefit of the recovery cap.

After summarizing the relevant law, we address each of these three arguments

below. 2

       Under the FTCA, the United States is liable for its tortious conduct in the

same manner and to the same extent as a private individual under like

circumstances in that jurisdiction would be liable. 28 U.S.C. §§ 1346(b), 2674.

Here, our charge is to determine first the scope and applicability of the limits

New Mexico statutes impose on the medical malpractice liability of private

entities.

       New Mexico’s recovery cap provides: “Except for punitive damages and

medical care and related benefits, the aggregate dollar amount recoverable by all

persons for or arising from any injury or death to a patient as a result of

malpractice shall not exceed six hundred thousand dollars ($600,000) per

occurrence.” N.M. Stat. § 41-5-6(A). “A health care provider’s personal liability

is limited to two hundred thousand dollars ($200,000) for monetary damages and



       2
         The Government did not argue below, and conceded at oral argument that
it does not argue here, that Government liability for the actions of the hospital
administrators in failing to train hospital employees or implement appropriate
patient assessment protocols is barred by 28 U.S.C. § 2680(a) (stating that FTCA
waiver of immunity “shall not apply to – (a) Any claim . . . based upon the
exercise or performance or the failure to exercise or perform a discretionary
function or duty on the part of a federal agency or an employee of the
Government, whether or not the discretion involved be abused.”).

                                         -5-
medical care and related benefits . . . . Any amount due from a judgment or

settlement in excess of two hundred thousand dollars . . . shall be paid from the

patient’s compensation fund . . . .” Id. § 41-5-1(D). As the district court noted,

the statute defines “health care provider” as a “person, corporation, organization,

facility or institution licensed or certified by this state to provide health care or

professional services as a doctor of medicine, hospital, outpatient health care

facility, doctor of osteopathy, chiropractor, podiatrist, nurse anesthetist or

physician’s assistant.” N.M. Stat. § 41-5-3(A). “‘[M]alpractice claim’ includes

any cause of action arising in this state against a health care provider for medical

treatment, lack of medical treatment or other claimed departure from accepted

standards of health care . . . .” Id. § 41-5-3(C).

      Not all “health care providers,” however, are entitled to the benefit of the

recovery cap: “A health care provider not qualifying under this section shall not

have the benefit of any of the provisions of the Medical Malpractice Act in the

event of a malpractice claim against it.” Id. § 41-5-5(C). In order to be

“qualified,” a health care provider must “(1) establish its financial responsibility

by filing proof . . . of malpractice liability insurance . . . of at least two hundred

thousand dollars . . .; and (2) pay the [Patient’s Compensation Fund] surcharge.”

Id. § 41-5-5(A).




                                           -6-
      A. Whether the recovery cap applies to a suit against the Government

      The Plaintiffs argue that we need not reach the question of whether the

district court’s rationale for refusing to apply the recovery cap is correct, because

the Government is not “qualified” within the meaning of the Medical Malpractice

Act and therefore ineligible to benefit from the recovery cap. The Government

does not dispute that it has not filed proof of liability insurance and has not paid

any surcharge into the Patients’ Compensation Fund, and thus, by the terms of

section 41-5-5, is not “qualified.”

      Three circuits have considered arguments similar to that now offered by the

Plaintiffs, and all three circuits have held that the Government was entitled to the

recovery cap despite failure to file proof of financial responsibility and to

contribute to a compensation fund. See Carter v. United States, 982 F.2d 1141,

1143-44 (7th Cir. 1992); Lozada v. United States, 974 F.2d 986, 987 (8th Cir.

1992); Owen v. United States, 935 F.2d 734, 737-38 (5th Cir. 1991). The

rationale supporting these holdings is that (1) the FTCA refers to like

circumstances rather than identical circumstances, 3 (2) the financial responsibility


      3
         This reasoning is consistent with Tenth Circuit case law. See Nationwide
Mut. Ins. Co. v. United States, 3 F.3d 1392, 1396 (10th Cir. 1993) (“Recognizing
that the United States is seldom situated identically to private parties, however,
the ‘like circumstances’ inquiry requires only that the United States be analogized
to a similarly situated private party. Nice pieces of casuistry and hypersensitive
legalisms are to be avoided in interpreting this language.” (internal quotation
                                                                        (continued...)

                                         -7-
of the United States is assured, and (3) its failure to contribute to a compensation

fund is immaterial because (unlike qualified providers) it must pay its liabilities

without resort to the compensation fund. 4 This court has endorsed these holdings.

Hill v. United States, 81 F.3d 118, 121 (10th Cir. 1996) (citing, inter alia, Carter,

Lozada, and Owen, and stating, “These cases stand for the proposition that where

there is a specific cap on tort liability, the United States government may benefit

from this limit although it did not otherwise participate in the statutory scheme

which provides the cap. . . .” 5




      (...continued)
      3

marks and alterations omitted, citations to Carter and others omitted)).
      4
        Here we hold that the Government’s liability is subject only to the
$600,000 cap and not to the individual $200,000 cap because the lower individual
cap assumes that the amount of damages in excess of $200,000 would be paid by
the compensation fund. The Government did not pay into the compensation fund
and hence cannot look to it to help pay the damage award.
      5
          Haceesa urges that Hill supports rather than undercuts his position by
highlighting its statement that “None of these cases [Carter, etc.] offers direct
support for the proposition that the United States may attempt to create a rough
equivalent to a state statute when they clearly are ineligible for the precise remedy
provided therein.” 81 F.3d at 121. Hill drew a distinction between state statutes
such as those in Carter, Lozada, and Owen “where there is a specific cap on tort
liability” with the situation where the United States was ineligible for a particular
remedy yet urged a court “to fashion a remedy that will further the intent and
approximate the outcome of a statute.” Id. at 120-21. The quoted language relied
upon by Haceesa does not support her position, because the statutory remedy at
issue here is substantially identical to the “specific cap on tort liability” that Hill
regarded the United States as “undoubtedly” eligible for. Id.

                                         -8-
      The Plaintiffs endeavor to distinguish Carter, Lozada, and Owen by arguing

that New Mexico law “require[s] the United States to attend a Medical Review

Panel hearing” and “grants plaintiffs the benefit of having a physician selected to

assist them in continuing to pursue their claims if they are found to have merit.”

In essence, Haceesa’s theory (offered without supporting authority) is that

participation in the medical review commission procedures amounts to a

qualification for purposes of section 41-5-5, and that New Mexico’s qualification

procedure thus is materially different from those at issue in Carter, Lozada, and

Owen. We disagree. The Medical Malpractice Act establishes two actions that a

health care provider “shall” perform “[t]o be qualified”: filing proof of insurance

and payment of a compensation fund surcharge. N.M. Stat. § 41-5-5. The

absence from section 41-5-5 of any requirement of participation in the

commission procedures demonstrates the error in the Plaintiffs’ argument. In any

event, we note the Plaintiffs are mistaken that health care providers are obligated

to attend panel hearings. Id. § 41-5-19(A) (providers and their attorneys “may”

attend).

      The Plaintiffs next argue that “private individual[s] under like

circumstances,” 28 U.S.C. § 2674, generally have not availed themselves of New

Mexico’s qualification procedures, and thus the Government should not be

regarded as having done so. (Aple B. 18 (“A review of reported New Mexico


                                        -9-
cases indicates that most cases brought against negligent hospitals are outside the

NMMMA.” (citations omitted)).) By contrast, in Carter, the Seventh Circuit

noted that “[a]ccording to the record, more than 90% of the private medical

providers” had satisfied analogous qualification procedures. 982 F.2d at 1143. It

is not apparent to us why the United States should be precluded from taking

advantage of a state liability cap just because a substantial majority of private

medical providers voluntarily chose not to qualify as a qualified health care

provider. In any event, the record before us is totally inadequate even to establish

Plaintiff’s factual premise. Accordingly, this argument fails.

      Finding persuasive the holdings of all of the other circuits to address this

issue, we conclude that the Government is not ineligible to invoke the recovery

cap merely because it did not satisfy the relevant state qualification procedures.

Therefore, we reject Haceesa’s proposed alternative grounds for affirmance, and

we turn to the grounds actually relied upon by the district court for concluding

that the recovery cap did not apply.



      B. Whether the $600,000 recovery cap applies only to health care providers.

      As noted above, the definition of health care provider does not include

nurses (except for nurse anesthetists, which the nurse here undisputedly was not)

or hospital administrators. On this basis, the district court concluded that the


                                        - 10 -
recovery cap did not apply in the present case. The Government argues, however,

that the $600,000 cap is not limited to actions against “health care providers,” but

instead applies to all malpractice defendants. By its terms, the Government

argues, section 41-5-6(A) limits how much “all persons” may recover “for or

arising from any injury or death to a patient as a result of malpractice.” Only

section 41-5-6(D)’s $200,000 cap on personal liability refers expressly to “health

care providers.” The New Mexico courts have not ruled on whether the recovery

cap applies to all malpractice actions or only those brought against health care

providers, so we must predict how they would resolve the issue.

       The Government’s argument assumes that the phrase “amount . . . for or

arising from any injury or death to a patient as a result of malpractice, ” § 41-5-

6(A), has a meaning distinct from “malpractice claim,” which is defined in

relevant part by the Act to “include[] any cause of action . . . against a health care

provider for . . . lack of medical treatment.” N.M. Stat. § 41-5-3(C) (emphasis

added). We need not decide this question because of our conclusion in the next

section that the United States is a qualified health care provider for purposes of

this suit.




                                         - 11 -
        C. Whether the Government is a health care provider for purposes of this
suit.

        Ultimately, whether the recovery cap applies to the Plaintiffs’ present suit

turns on whether this FTCA suit against the United States, arising from the

actions of a nurse and health care administrators, is a suit against a “health care

provider” within the meaning of the recovery cap statute. To answer this

question, we begin with the text of the statutory provisions governing FTCA

liability. Under 28 U.S.C. § 1346(b), “the district courts . . . shall have exclusive

jurisdiction of civil actions on claims against the United States . . . for injury . . .

caused by the negligent or wrongful act or omission of any employee of the

Government while acting within the scope of his office or employment, under

circumstances where the United States, if a private person, would be liable.”

Under 28 U.S.C. § 2674, “the United States shall be liable . . . in the same

manner and to the same extent as a private individual under like circumstances.”

Finally, as already noted, New Mexico’s statutory recovery cap applies only to

suits against “health care providers,” a term that includes hospitals but does not

include either nurses or hospital administrators.

        The issue before us is one of statutory interpretation. If “private person,”

§ 1346(b), and “private individual,” § 2674, includes employers, then the recovery

cap applies here because the private employer analogous to a government hospital

is a private hospital. Section 1346(b) unmistakably is couched in the language of

                                          - 12 -
an employer’s respondeat superior liability, creating jurisdiction over actions

“against the United States . . . for injury . . . caused by the . . . wrongful act . . . of

any employee . . . while acting within the scope of his office or employment.”

§ 1346(b). See, e.g., Restatement (Second), Agency § 219(1) (“A master is

subject to liability for the torts of his servants committed while acting in the

scope of their employment. ”) Further, § 1346(b) refers to “circumstances where

the United States, if a private person, would be liable.” Because in reality the

United States is not an individual employee but only an employer, this phrasing

suggests that the only shoes that the Government stands in under the FTCA are

those of private employers.

       We think the text of the FTCA best supports the Government’s employer

interpretation, a conclusion buttressed by our rule that any waiver of sovereign

immunity “‘must be construed strictly in favor of the sovereign and not enlarged

beyond what its language requires.’” United Tribe of Shawnee Indians v. United

States, 253 F.3d 543, 547 (10th Cir. 2001) (quoting United States v. Nordic

Village, Inc., 503 U.S. 30, 34 (1991)) (internal quotation marks and alteration

omitted).

       To the extent that this issue is not resolved by the text of the statute, we

look to legislative intent, and we conclude that Congress has spoken to this

question. In enacting the Federal Employees Liability Reform and Tort


                                           - 13 -
Compensation Act of 1988, Congress found that “ [t]he United States, through the

Federal Tort Claims Act, is responsible to injured persons for the common law

torts of its employees in the same manner in which the common law historically

has recognized the responsibility of an employer for torts committed by its

employees within the scope of their employment.” § 2(b), 102 Stat. 4564, 28

U.S.C. § 2671 note. Cf. H.R. Rep. 100-700 at 5 (1988), reprinted in 1988

U.S.C.C.A.N. 5945, 5949 (describing government’s FTCA liability as

“vicarious”).

      Accordingly, we conclude that the Government’s liability under the FTCA

is limited to that of a private employer under like circumstances. Our conclusion

is consistent with that of at least two other circuits. See St. John v. United States,

240 F.3d 671, 676 (8th Cir. 2001) (“The FTCA is a limited waiver of sovereign

immunity, allowing the federal government to be sued for the actions of ‘any

employee of the Government while acting within the scope of his office or

employment’ under circumstances where the United States would be liable if it

were a private employer. 28 U.S.C. § 1346(b) and 2674.”); Johnson v. Sawyer,

47 F.3d 716, 730 (5th Cir. 1995) (“All FTCA liability is respondeat superior

liability. . . . Under the FTCA, the United States is not liable if the private

employer would not be liable pursuant to local law.”); see also Bryant v. United

States, 126 F. Supp. 2d 1227, 1234 (2000); cf. Gutierrez de Martinez v.


                                         - 14 -
Lamagno, 515 U.S. 417, 420 (1995) (“Generally, [FTCA] cases unfold much as

cases do against other employers who concede respondeat superior liability.”).

The only circuit to reach a contrary conclusion did so in a split decision.

Knowles v. United States, 91 F.3d 1147, 1150 (8th Cir. 1996) (2-1 decision).

The issue in Knowles was similar to the one that we face, namely whether an

FTCA suit against the United States arising from the alleged malpractice of

medical specialists employed by the government was subject to South Dakota’s

$1 million cap on medical malpractice damages. The Knowles majority

concluded that the recovery cap did not apply, reasoning as follows:

             Under the FTCA, the United States will be held liable to the
             same extent as a private party. It is standing in the shoes of
             the medical service specialists. Therefore, the United States
             shares in the protection of the statute to the same extent the
             individuals would if they were sued directly. It follows, then,
             that if medical services specialists, individually, are not
             protected by the statute, neither is the United States shielded
             from the consequences of their negligence.

91 F.3d at 1150 (internal quotation marks and alterations omitted). In dissent,

Judge Beam reasoned that “the ‘hypothetical private party’ is analogous to a

private employer,” Id. at 1153, and “[t]he government cannot stand in the shoes of

a negligent federal employee, individually, because the employee is immune from

suit.” Id. at 1154. Ultimately, the dissent concluded that the government has

waived immunity and hence “is liable only under a statutorily-imposed respondeat

superior theory.” Id.

                                        - 15 -
      We find the Knowles dissent more persuasive. The panel majority made no

effort to come to grips with the language of § 1346(b), which, as noted above,

supports the view that FTCA constitutes respondeat superior liability. Nor did it

acknowledge Congress’s statement of intent in the note to § 2671. Finally, the

majority did not purport to construe strictly Congress’s FTCA waiver of sovereign

immunity.

      D. Conclusion

      For the foregoing reasons, we conclude that the district court’s ruling that

New Mexico’s $600,000 recovery cap is inapplicable to the present suit is

erroneous. We hold that, because an analogous suit against a private hospital

based on the actions of employees who are not themselves health care providers

would be subject to the recovery cap, the Plaintiff’s present FTCA suit against the

Government is also subject to the $600,000 cap.



             II. CONCURRENT/SUCCESSIVE TORTFEASORS

      During trial, the Government attempted to prove that physicians at San Juan

Regional Medical Center (San Juan Regional), where Haceesa visited and was

treated on April 27 and 28 (after his visit to Shiprock Hospital on April 25), were

negligent in failing to accurately diagnose Haceesa’s illness. The Government

further argued that damages should be apportioned between it and San Juan


                                       - 16 -
Regional. In its post-trial decision, the district court made no factual findings

regarding Haceesa’s treatment at San Juan Regional, nor did it reach any

conclusions regarding San Juan Regional’s alleged negligence. Instead, it

concluded that “[u]nder New Mexico law, . . . the negligence of the [Government]

[wa]s successive, and not concurrent with, any negligence of San Juan Regional

Medical Center on April 27th and 28th, 1998,” and that, accordingly, the

Government was liable for all damages incurred by plaintiffs. Aplt. App. at 125.

      On appeal, the Government contends that the district court erred in labeling

it and San Juan Regional as successive rather than concurrent tortfeasors. The

Government further argues that the district court should have quantified the fault

of the Government relative to that of San Juan Regional and reduced the damages

to be paid by the Government. For the reasons outlined below, we agree with the

district court that the Government and San Juan Regional were successive

tortfeasors, but we reject the district court’s conclusion that the Government is

responsible for all damages incurred by the plaintiffs.

      Joint tortfeasor liability in New Mexico is governed by section 41-3A-1 of

the New Mexico Statutes, entitled “Several liability.” This provision in effect

defines two distinct categories of cases. One category involves cases “[w]here a

plaintiff sustains damage as the result of fault of more than one person which can

be causally apportioned on the basis that distinct harms were caused to the


                                        - 17 -
plaintiff.” N.M. Stat. Ann. § 41-3A-1(D). As to cases in this category, each

tortfeasor “is severally liable only for the distinct harm which that person

proximately caused.” Id. The other category involves “any cause of action to

which the doctrine of comparative fault applies,” id. § 41-3A-1(A), which

category implicitly consists of all joint tortfeasor cases not covered by § 41-3A-

1(D). As to cases in this category, each tortfeasor who establishes that the fault

of another is a proximate cause of a plaintiff’s injury “shall be liable only for that

portion of the total [damages] . . . that is equal to the ratio of such defendant’s

fault to the total fault attributed to all persons.” Id. § 41-3A-1(B). These two

categories have come to be identified in New Mexico case law respectively as

cases involving “successive” tortfeasors and those involving “concurrent”

tortfeasors. See, e.g., Lujan v. Healthsouth Rehab. Corp., 902 P.2d 1025, 1028-

29 (N.M. 1995) (“[Defendants] are not concurrent tortfeasors; they are successive

tortfeasors by reason of divisible and causally-distinct injuries.”).

      In Lujan, the court listed several factors that are relevant in determining

whether tortfeasors are successive or concurrent. These factors include:

      1) the identity of time and place between the acts of alleged negligence; 2)
      the nature of the cause of action brought against each defendant; 3) the
      similarity or differences in the evidence relevant to the causes of action; 4)
      the nature of the duties allegedly breached by each defendant; and 5) the
      nature of the harm or damages caused by each defendant.




                                         - 18 -
Id. at 1029. Although those factors have since been criticized, see Lewis v.

Samson, 992 P.2d 282, 299-300 (N.M. Ct. App. 1999) (Hartz, J., concurring in

part, dissenting in part), they remain valid. See Lewis v. Samson, 35 P.3d 972,

984 n.3 (N.M. 2001) (noting criticism of factors but declining to engage in further

examination of distinction between concurrent and successive tortfeasors).

      Although several factors perhaps could be construed either way, we

conclude that the first and fifth factors strongly support the district court’s

conclusion that the Government and San Juan Regional were successive

tortfeasors. It is uncontroverted that the acts of alleged negligence committed by

Shiprock Hospital and San Juan Regional occurred days apart from one another

and in different locations. In light of the fact that hantavirus is a rapidly

progressing disease, and that Haceesa presented to San Juan Regional with more

severe symptoms than he did when he visited Shiprock Hospital, we conclude that

the alleged negligent acts of Shiprock Hospital and San Juan Regional, though

similar in type (i.e., failure to properly diagnose and treat), were distinct.

      More importantly, we conclude that the nature of the harm caused by each

of the hospitals was different. In Alberts v. Schultz, 975 P.2d 1279 (N.M. 1999),

the court recognized the loss-of-chance-of-survival theory. In describing the

theory, the court noted that “[a] claim for loss of chance is predicated upon the

negligent denial by a healthcare provider of the most effective therapy for a


                                         - 19 -
patient’s presenting medical problem,” and “[t]he negligence may be found in

such misconduct as an incorrect diagnosis, the application of inappropriate

treatments, or the failure to timely provide the proper treatment.” Id. at 1282.

The court further noted that “[e]very patient has a certain probability that he or

she will recover from the presenting medical problem,” and “[u]nder the loss-of-

chance theory, the health provider’s malpractice has obliterated or reduced those

odds of recovery that existed before the act of malpractice.” Id. (emphasis

added). The court emphasized that “the patient does not allege that the

malpractice caused his or her entire injury,” but rather claims “that the health care

provider’s negligence reduced the chance of avoiding the injury actually

sustained.” Id. at 1283 (emphasis added). Consistent with these statements, the

court noted: “We see no reason at this time to limit lost-chance claims to those

cases in which the chance of a better result has been utterly lost.” Id. at 1285.

      Here, the Government concedes that “Haceesa’s [condition] was far more

serious when he visited [San Juan Regional] on April 27 and 28, 1998,” than

when he first visited Shiprock Hospital on April 25, 1998. Govt. Br. at 23-24.

This admission, in our view, acknowledges that Haceesa had lost a significant

chance of survival between his visit to Shiprock Hospital and his subsequent

visits to San Juan Regional. Stated differently, we conclude that the

Government’s failure to properly diagnose and treat Haceesa on April 25 reduced


                                        - 20 -
his chance, to some degree, of recovering from his illness, and that San Juan

Regional’s subsequent failure to properly diagnose and treat Haceesa on April 27

and 28 further reduced his chances, thus resulting in separate and divisible

injuries. 6

       The remaining question is whether the Government is responsible for all of

the plaintiffs’ damages, including those emanating from San Juan Regional’s

alleged negligent treatment. Plaintiffs assert that the Government was an

“original tortfeasor”and thus liable for San Juan Regional’s subsequent medical

negligence. In support of their assertion, plaintiffs point to the following

statement by the court in Lewis: “the original tortfeasor is jointly and severally

liable for the entire harm to the plaintiff, including the original injury and any

foreseeable enhancement of the injury by medical negligence.” 35 P.3d at 985.

       We reject plaintiffs’ arguments. Lewis involved an original tortfeasor who

stabbed the plaintiff, and a subsequent tortfeasor who committed medical

malpractice while endeavoring to treat the injuries resulting from the original tort.

In discussing the liability of the original tortfeasor, the court was careful to


       6
         For example, assume that Haceesa had a 65% chance of survival at the
time he was seen and treated at Shiprock Hospital. Further assume that when he
was seen at San Juan Regional a few days later, he only had a 20% chance of
survival. Under New Mexico law, the failure of Shiprock Hospital to correctly
diagnose and treat Haceesa’s illness resulted in a loss of chance of survival of
45%. San Juan Regional’s subsequent failure to diagnose, assuming it was
negligent, would have resulted in a separate loss of chance of survival of 20%.

                                         - 21 -
emphasize that its discussion was limited to the “narrow class of cases” involving

“an initial injury caused by tortious conduct and a subsequent enhancement of the

initial injury caused by foreseeable medical negligence occurring during the

course of medical treatment for the initial injury.” Id. at 984 (emphasis added).

Here, in contrast, Haceesa’s initial injury was not caused by the Government, but

rather by the hantavirus. In other words, the medical negligence allegedly

committed by San Juan Regional occurred during an attempt to treat the condition

caused by the hantavirus, not during an attempt somehow to treat the injury (loss

of chance) caused by the Government’s own medical negligence. 7 Thus, Lewis is

distinguishable from the instant case, and the district court erred in characterizing

the Government as an original tortfeasor responsible for all of plaintiffs’

damages. On remand, it will be necessary for the district court to make findings

of fact regarding the loss of chance of survival caused by the Government’s




      7
         This point becomes more clear if we hypothesize a third potential
defendant in the present case, a party whose negligence caused Haceesa’s
exposure to hantavirus. Assume, for example, that his employer negligently
provided an unsafe workplace by ordering Haceesa to work in conditions posing a
high hantavirus infection risk. This hypothetical defendant would be an “original
tortfeasor” within the ambit of Lewis, and would be responsible not only for
injuries resulting from his own tortious conduct but also for injuries caused by the
subsequent medical negligence of the Government and San Juan Regional.
Removal of the hypothetical original tortfeasor from the picture does not
transform the first medical provider into an original tortfeasor as those terms are
used in Lewis.

                                        - 22 -
medical negligence and the amount of damages associated exclusively with that

loss of chance.



           III. JURISDICTION OVER CLAIMS OF THE ESTATE

      The Government contends the district court lacked jurisdiction over the

claim asserted by the Estate of Haceesa (the Estate). According to the

Government, the Estate failed to file its claim in federal district court within six

months of the denial of its administrative claim by the Government. Accordingly,

the Government argues, “the district court’s award must be limited to claims

properly filed by [Haceesa’s] wife and daughter.” Aplt. Br. at 16.

      In order to address the Government’s arguments, it is necessary to outline,

in some detail, the chain of events surrounding the filing of the Estate’s

administrative claim and its action in federal district court. Following Haceesa’s

death, three separate administrative claims were filed with the Government (more

precisely, with the Indian Health Service). The first two claims, one by plaintiff

Beverly Haceesa and the other by the conservator for Shenoel Haceesa, were filed

on July 2, 1998. The third administrative claim, by the Estate, was filed on

October 26, 1998. On January 15, 1999, prior to any formal resolution of any of

the administrative claims by the Government, plaintiffs Beverly Haceesa,

appearing individually, and the conservator for Shenoel Haceesa filed this FTCA


                                        - 23 -
action against the Government. On April 28, 1999, the Government sent a formal

notice denying all three administrative claims. 8 On December 3, 1999, plaintiffs

filed a motion to amend their complaint by interlineation to (1) add Beverly

Haceesa as personal representative of the Estate, and (2) to add claims for

Haceesa’s loss of enjoyment of life, pain and suffering, and emotional distress.

On March 6, 2000, the district court granted plaintiffs’ motion to amend. On

April 20, 2000, plaintiffs formally filed their amended complaint.

      The FTCA sets forth the following parameters for filing suit. After a tort

claim against the Government accrues, a claimant has two years to present that

claim in writing to the appropriate federal agency for consideration. See 28

U.S.C. § 2401. Following submission of a written claim, a federal agency

generally has six months to reach a final disposition on the claim. If the federal

agency denies the claim, the claimant has six months thereafter to file suit in

federal court. 9 See id. If the federal agency fails “to make a final disposition of

      8
         The caption of the letter specifically refers to all three administrative
claims. Aplt. App. at 147. Plaintiffs nevertheless contend that the letter
addresses only the first two administrative complaints since, in its body, it refers
only “to the administrative claims which [were] filed on behalf of Beverly
Haceesa and Sheldon Wright, as Conservator for Shenoel Haceesa.” Id.
Plaintiffs’ contention in this regard is erroneous. Given the caption of the letter,
it is apparent that the letter’s subsequent references to claims filed on behalf of
Beverly Haceesa refer to both her individual claims and her claims as
representative of the Estate.
      9
          A tort claim against the Government is “forever barred” if it is not filed
                                                                       (continued...)

                                        - 24 -
[the] claim within six months,” the claimant may deem the agency’s failure “a

final denial of the claim” and may proceed with his or her suit under the FTCA

(again within the six-month period previously noted). 28 U.S.C. § 2675(a). A

district court must dismiss a claim under the FTCA if it was filed before the claim

was denied by the federal agency (either expressly or implicitly). McNeil v.

United States, 508 U.S. 106, 113 (1993).

      Applying these principles, we conclude the Estate’s claims were not filed

within the requisite time parameters. As noted, the Estate filed its administrative

claim with the Government on October 26, 1998. That claim was officially

denied by the Government on April 28, 1999. Plaintiffs did not thereafter act

within six months to either add the Estate as a party or to file a separate action on

behalf of the Estate. Instead, plaintiffs filed their motion to amend the complaint

to add the Estate as a party and to add the Estate’s claims for relief on December

3, 1999, more than a month after the six-month time period for filing suit on

behalf of the Estate had expired. Assuming that the amendments to plaintiffs’

complaint related back to the date of the original complaint, see Fed. R. Civ. P.

15(c) (discussing relation back of amendments), the Estate’s claims would be

premature under McNeil. More specifically, the original complaint was filed on



      9
       (...continued)
within the requisite time period. 28 U.S.C. § 2401(b).

                                        - 25 -
January 15, 1999, before the Estate’s administrative claim was denied and fewer

than six months after the Estate’s administrative claim was filed.

      The only way that the Estate’s claims could be considered valid would be if

the administrative claims filed on July 2, 1998, by Haceesa’s wife and daughter

were sufficient to place the Government on notice that they were seeking to assert

a wrongful death claim on behalf of the Estate. If there are multiple claimants in

an FTCA case, “each claimant must ‘individually satisfy the jurisdictional

prerequisite of filing a proper claim.’” Muth v. United States, 1 F.3d 246, 249

(4th Cir. 1993) (quoting Frantz v. United States, 791 F. Supp. 445, 447 (D. Del.

1992)). Although it appears permissible for multiple claims to be asserted on a

single claim form, to be valid “the form must give ‘constructive notice’ sufficient

to warrant [government] investigation of each claim.” Frantz, 791 F. Supp. at

447-48; see Barrett v. United States, 845 F. Supp. 774, 783 (D. Kan. 1994)

(holding that “plaintiff must show that it gave specific notice of the claimants and

the nature of the injury as to both causes of action [asserted in complaint], or face

dismissal for lack of jurisdiction”). In the circumstances here, the question is

whether the administrative forms filed on July 2, 1998, gave the Government

specific notice that the claimants intended to assert causes of action on their own

behalf (e.g., a claim by Beverly Haceesa on her own behalf for loss of

consortium) and on behalf of the Estate.


                                        - 26 -
      To decide this question, we first turn to New Mexico tort law. Under the

New Mexico Wrongful Death Act, the personal representative of a deceased

person may bring a tort action for wrongful death. N.M. Stat. Ann. § 41-2-3.

Damages may be awarded in such an action for, among other things, the

decedent’s conscious pain and suffering and medical and related care between the

date of injury and death. See generally N.M. Stat. Ann. § 41-2-1. In such an

action, the finder of fact may also consider a claim by the decedent’s minor child

for loss of guidance and counseling. See Romero v. Byers, 872 P.2d 840, 846

(N.M. 1994); see also Otero v. City of Albuquerque, 965 P.2d 354, 357 (N.M. Ct.

App. 1998) (indicating that it is unclear under New Mexico law whether a minor

child may bring a separate cause of action, aside from a wrongful death action, to

recover for loss of guidance and counseling). However, loss of consortium

damages may not be awarded in such an action to the spouse of the decedent. See

Romero, 872 P.2d at 842. Instead, the spouse of the decedent must bring a

separate cause of action in his or her individual capacity to recover such damages.

See id.

      Turning to the administrative claims, the claim filed by Beverly Haceesa on

July 2, 1998, briefly described Haceesa’s visit to Shiprock Hospital and the events

leading to his death. Aplt. App. at 162. When asked on the form to “STATE

[the] NATURE AND EXTENT OF EACH INJURY OR CAUSE OF DEATH


                                       - 27 -
WHICH FORMS THE BASIS OF THE CLAIM,” Beverly Haceesa stated: “Mr.

Haceesa died due to failure to properly diagnose and treat. Beverly Haceesa, his

wife, makes a [claim] for loss of spousal support, loss of consortium, loss of love

and affection, emotional distress and mental anguish.” Id. Later on the same

form, Beverly Haceesa indicated that she was seeking $4 million in damages for

“PERSONAL INJURY.” Id. Based upon these responses, we conclude that

Beverly Haceesa was asserting claims only on her own behalf (e.g., a claim for

loss of consortium) and was not seeking to recover on behalf of the Estate.

      The remaining claim is the one submitted by the conservator of Shenoel

Haceesa on July 2, 1998. Aplt. App. at 164. This claim was identical to the

claim submitted by Beverly Haceesa with one exception. When asked to “STATE

[the] NATURE AND EXTENT OF EACH INJURY OR CAUSE OF DEATH

WHICH FORMS THE BASIS OF THE CLAIM,” the conservator stated: “Hardy

Haceesa died due to failure to properly diagnose and treat. Shenoel Haceesa, his

four (4) year old daughter, lost her father and hereby makes a claim for loss of

parental guidance and support; loss of his love affection, emotion distress and

mental anguish.” Id. In our view, these claims were focused solely on the loss

suffered by Shenoel Haceesa. Although, as previously noted, New Mexico law

requires such claims (loss of parental guidance) to be asserted in a wrongful death

action, nothing in the claim indicates that the conservator was acting on behalf of


                                        - 28 -
the Estate, or was otherwise seeking to recover damages for the damages

personally incurred by Haceesa.

      This conclusion is bolstered when the October 26, 1998 claim filed by the

Estate is examined. Although the Estate’s claim is substantially similar to the two

claims filed on July 2, 1998, it differs in two important respects. First, when

asked to “STATE [the] NATURE AND EXTENT OF EACH INJURY OR CAUSE

OF DEATH WHICH FORMS THE BASIS OF THE CLAIM,” the claim stated:

“Hardy Haceesa died due to failure to properly diagnose and treat. The Estate of

Hardy Haceesa makes a claim for loss of enjoyment of life, pain and suffering,

emotional distress and mental anguish.” Aplt. App. at 163. Second, when asked

to state the amount of damages sought, the claim indicated the Estate was seeking

$1 million for “PERSONAL INJURY” and $4 million for “WRONGFUL

DEATH.” Id.

      In an attempt to salvage the Estate’s claims, plaintiffs argue that the

Government’s attorneys led them to believe that the Government would not object

to plaintiffs’ amending their complaint to add claims on behalf of the Estate. A

review of the plaintiffs’ supporting evidence, however, suggests that Government

counsel did nothing wrong and there is no basis for applying equitable tolling in

this case. In late September 1999, a paralegal working for plaintiffs’ counsel sent

to Government counsel a draft copy of plaintiffs’ proposed motion to amend.


                                        - 29 -
Aplt. App. at 44. On October 6, 1999, Government counsel contacted the

paralegal and stated “she was not opposed to amendment of the Complaint to

include the claims of the Estate, but did not believe that the Complaint could be

amended by interlineation.” Id. Obviously, at the time Government counsel

agreed in principle to the complaint being amended, the six-month time period for

the Estate to file suit had not expired (the Estate had until approximately October

28, 1999, to do so).

      For these reasons, we conclude that the claim of the Estate was not filed

within the requisite time periods set forth by the FTCA and is thus “forever

barred.” 28 U.S.C. § 2401(b). On remand, the district court is directed to dismiss

the Estate’s claims.



                               IV. CONCLUSION

      We AFFIRM the district court’s finding of liability against the Government

and in favor of Beverly and Shenoel Haceesa, but VACATE the district court’s

damage award in favor of those plaintiffs and REMAND for recalculation of

damages consistent with this opinion. We REVERSE the judgment of the district

court in favor of the Estate of Hardy Haceesa and REMAND with directions to

dismiss the Estate’s claims.




                                        - 30 -
