                                                                    FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                                May 23, 2016
                                   PUBLISH                  Elisabeth A. Shumaker
                                                                Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 LEONARD E. LOPEZ,

       Plaintiff - Appellant,
 v.                                                   No. 15-1169
 UNITED STATES OF AMERICA,

        Defendant - Appellee.



        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                  (D.C. No. 1:12-CV-02259-RPM)


Benjamin I. Sachs (Jim Leventhal with him on the briefs), of Leventhal & Puga,
P.C., Denver, Colorado, for Plaintiff-Appellant.

Robert Mark Russel, Assistant United States Attorney (John F. Walsh, United
States Attorney, with him on the brief), Denver, Colorado, for Defendant-
Appellee.


Before BRISCOE, McKAY and BALDOCK, Circuit Judges.


BRISCOE, Circuit Judge.



      Plaintiff Leonard Lopez appeals following a bench trial on his medical

negligence claims. Lopez underwent lower back surgery at the Veterans
Administration Medical Center of Denver, Colorado (VA Hospital), in order to

alleviate longstanding sciatic pain. Immediately following surgery, however,

Lopez began experiencing excruciating pain in his left foot. Lopez has since been

diagnosed with neuropathic pain syndrome and has to rely on a combination of

prescription pain medicine and a surgically-placed peripheral nerve stimulator to

deal with the pain.

      Lopez filed suit against the United States pursuant to the Federal Tort

Claims Act alleging, in pertinent part, that (1) Dr. Samuel Waller was negligent in

performing the surgery, and (2) that the hospital was negligent in credentialing

and privileging Dr. Glenn Kindt, the supervising physician involved in the

surgery. The case proceeded to a bench trial, and at the conclusion of the trial the

district court found in favor of the government on both claims. Lopez now

appeals. Exercising appellate jurisdiction pursuant to 28 U.S.C. § 1291, we

affirm the district court’s judgment in favor of the United States on Lopez’s claim

of medical negligence involving Waller, but reverse the district court’s judgment

on the negligent credentialing and privileging claim and remand with directions to

dismiss that claim for lack of jurisdiction.

                                          I

                                Factual background

      Lopez, a resident of Pueblo, Colorado, served as a military policeman and

was stationed with the National Guard in Iraq between 1989 and 1991. While on

                                          2
duty in Iraq, Lopez injured his lower back. After returning home and leaving the

service, Lopez continued to have lower back pain. In particular, he suffered from

intermittent sciatic pain on his left side that ran from his buttocks to his foot.

Lopez also experienced a “pins and needles” sensation in his left foot from time

to time. To relieve the symptoms, Lopez had to sit down and stretch out his leg.

      In early 2010, Lopez met with Kindt, a neurosurgeon employed by the

University of Colorado who had surgical privileges at the VA Hospital, but was

not a federal employee. Kindt, who was approximately 79 years old at the time,

told Lopez that he could surgically relieve Lopez’s sciatic pain and symptoms.

Kindt also allegedly told Lopez that he had performed thousands of similar

surgeries without issue.

      On March 5, 2010, Lopez underwent a surgical decompression of the

lumbosacral nerve root and disc excision at L5-S1. The surgery was performed at

the VA Hospital by Kindt, who was assisted by Waller, a second-year surgical

resident at the VA Hospital. The goal of the surgery was to remove bulging disc

material and thereby decompress the nerve root and alleviate the sciatic pain

Lopez had been experiencing. During the course of the procedure, as Kindt was

removing pieces of disc material with a surgical instrument called a Kerrison,

Kindt pulled out a small piece of tissue approximately an inch in length that,

according to Waller, “looked a little bit like a piece of angel hair pasta or

something along those lines.” App., Vol. 4 at 455. Kindt allegedly remarked to

                                           3
Waller that the tissue “must be nerve” and expressed his intention to send the

tissue to pathology for examination. 1 Id. According to Waller, “the tone of the

operation changed a little bit” at that point and Kindt “started looking for [a]

cerebrospinal fluid leak.” Id. at 455-56. No such fluid was found by Kindt and

Waller. Consequently, Kindt completed the removal of the bulging disc material

and, together, Kindt and Waller closed the incision. Due to the concerns raised

during the surgery, Kindt directed that Lopez lie flat overnight in order to prevent

or reduce any symptoms that might arise from a possible cerebrospinal fluid leak.

      When Lopez awoke following the surgery, he experienced a significant

amount of pain in his left foot. According to Lopez, the bottom of his left foot

felt like “pins and needles,” and he felt a severe burning sensation in the rest of

his left foot. Id., Vol. 3 at 399. When asked by hospital staff to rate his pain on a

scale of 1 to 10, with 10 being the worst, Lopez responded that his pain was a

“20.” Id. at 396-97. The pain in his left foot was so severe that Lopez could not

put a sock or shoe on that foot. Lopez was classified as having allodynia. 2

      1
        According to the evidence in the record, Kindt placed the piece of tissue
in a cup along with multiple pieces of disc fragments. Although the cup and its
contents were sent to the pathology department, there is no evidence that Kindt or
anyone else involved in the surgery notified the pathologist of the possibility of
nerve tissue in the cup. The resulting pathology report mentioned only the
existence of disc tissue.
      2
        Allodynia is commonly defined as “[p]ain from stimuli which are not
normally painful.” Definition of Allodynia, MedicineNet.com,
http://www.medicinenet.com/script/main/art.asp?articlekey=25197 (last visited on
                                                                   (continued...)

                                          4
      Lopez was discharged from the VA Hospital with a prescription for pain

medication. After using all of his available sick and annual leave, Lopez returned

to his job as a government security guard. The pain in his left foot had not

subsided, however, and Lopez eventually quit his job because he felt that he could

not perform the tasks required of him. In particular, the pain in his left foot made

it difficult for Lopez to walk.

      Due to the continuing pain and his reliance on prescription medications,

Lopez saw Dr. Giancarlo Barolat, a neurosurgeon with a private practice in

Denver. Barolat diagnosed Lopez with “Neuropathic Pain Syndrome caused by

damage to the L5 and S1 nerve roots” that occurred at some point during the

surgery. Id., Vol. 6 at 836. To help alleviate some of the pain, Barolat surgically

placed a peripheral nerve stimulator on the sciatic nerve in the back of Lopez’s

left thigh (the device is powered by a battery that was placed in the front of

Lopez’s left thigh). The stimulator helps to reduce Lopez’s pain by fifty to sixty

percent, lessens his dependence upon prescription painkillers, and increases his

ability to function. That said, Lopez still relies on prescription painkillers to help

deal with the pain in his left foot.

                                  Procedural background

      On August 24, 2012, Lopez filed a complaint in federal district court


      2
      (...continued)
May 9, 2016).

                                           5
against Kindt and Waller. The complaint alleged that Lopez was seeking relief

under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et seq., and “ha[d]

satisfied the jurisdictional prerequisite of 28 U.S.C. § 2675(a) by timely filing an

administrative claim against the United States,” which was denied on August 15,

2012. App., Vol. 1 at 13. The complaint further alleged that Kindt and Waller

were both employees of the United States who were acting within the course and

scope of their employment at the time of the events in question. More

specifically, the complaint alleged that both Kindt and Waller performed each

aspect of the operation on Lopez. The complaint in turn alleged claims for

medical negligence arising from the conduct of both Kindt (Claim One) and

Waller (Claim Two).

      The United States filed an answer substituting itself as defendant in place

of Waller and denying that Kindt was a federal employee. Kindt filed an answer

on his own behalf also denying that he was an employee of the United States. 3

Kindt admitted that “he was the attending surgeon for the procedure being

performed on . . . Lopez, and was assisted during this surgery by . . . Waller.” Id.

at 23. Kindt alleged “that during the removal of the disc material following the

exposure and retraction of the dura and other surrounding tissue, a small piece of


      3
        It was ultimately determined that Kindt was not a federal employee, but
rather an employee of the University of Colorado. Consequently, the district
court exercised supplemental jurisdiction pursuant to 28 U.S.C. § 2671 over
Lopez’s negligence claim against Kindt. App, Vol. 9 at 1217.

                                          6
nerve root was found to be contained within the disc material after it was removed

by the surgeons, and that this aberrant anatomical finding was not visible or

otherwise known to them prior to removal.” Id.

      On June 17, 2013, Lopez moved to amend his complaint “to add claims

against the United States . . . for negligent credentialing and privileging related to

. . . Kindt . . . at the [VA Hospital].” Id. at 63. In support, Lopez alleged that

“Kindt’s credentialing file produced by the United States in discovery reveal[ed]

the [VA Hospital] failed to follow its own bylaws in failing to ensure . . . Kindt

was competent to continue performing neurosurgical procedures.” Id. at 64.

      The district court granted Lopez leave to amend on July 11, 2013, and

Lopez’s first amended complaint was filed that same day. The first amended

complaint alleged three claims for relief: Count One alleged a claim of medical

negligence arising from the conduct of Kindt; Count Two alleged a claim of

medical negligence arising from the conduct of Waller; and Count Three

(misnamed in the first amended complaint as the “Fourth Claim”) alleged a claim

of negligent privileging and credentialing. 4 Id. at 110.

      On August 12, 2013, Lopez and Kindt filed a joint stipulation dismissing

all claims against Kindt with prejudice; this action was the result of a settlement

between Lopez and Kindt. App., Vol. 2 at 148. This left two surviving claims:


      4
       Lopez subsequently filed a second amended complaint revising his
negligent privileging and credentialing claim. App., Vol. 2 at 196, 204-05.

                                           7
the medical negligence claim arising from the conduct of Waller and the negligent

credentialing and privileging claim relating to Kindt.

      The case proceeded to a multi-day bench trial beginning on December 15,

2014. On March 6, 2015, the district court issued a written memorandum of

decision concluding that Lopez “ha[d] failed to prove his claims by a

preponderance of the evidence.” App., Vol. 9 at 1237. In reaching this

conclusion, the district court stated:

          The reasonable probability is that the angel hair pasta sized tissue
      that came out with disc material was one of the fibers that coalesce
      into the L-5 nerve root but was not in the nerve root itself. Removal
      of it was accidental given the patient’s anatomy and it is not probable
      that it would have been seen and avoided even with greater
      illumination and magnification. The unfortunate outcome of this
      surgery has not been shown to be caused by a failure to perform this
      surgery within the standard of care expected of a neurosurgeon in
      2010.

          Assuming that negligence has been shown, liability of the
      Government depends upon finding that the removal of nerve tissue
      was done by Dr. Waller. The testimony of Dr. Waller on this issue
      [i.e., that Dr. Kindt performed the surgery and removed the nerve
      tissue and that Dr. Waller simply assisted Dr. Kindt] is accepted as
      more credible than that of Dr. Kindt, who, in the end [of his
      deposition testimony] said he would accept what Dr. Waller said.
      The attempt to impeach Dr. Waller by suggesting medical reports
      showing him as the surgeon was not persuasive.

         The plaintiff has attempted to show that the VA should not have
      permitted Dr. Kindt to be the attending surgeon in this case. There
      has been post-trial briefing on the applicability of negligent
      credentialing as a claim under the FTCA. Assuming that there may
      be such liability, the evidence does not support that claim. This was
      not a complex surgical procedure and this Court is persuaded by the
      testimony of Dr. Brega [an associate professor of neurosurgery at the

                                         8
      University of Colorado] that Dr. Kindt was competent to perform it.
      The failure of the VA to follow proper protocol in 2009 does not
      establish a claim that Dr. Kindt was not competent to perform this
      type of surgery in 2010.

Id. at 1236.

      Judgment in the case was entered on March 6, 2015. Lopez filed a

postjudgment motion asking the district court to reconsider its conclusion that

Lopez “failed to meet his burden of proving his claim involving the negligent

removal of the L5 nerve root,” and in turn asking the district court to “make

additional findings, and award damages to [Lopez] on his negligent credentialing

claim.” Id. at 1317. The district court summarily denied Lopez’s motion.

                                          II

         The medical negligence claim arising from the conduct of Waller

      In his first issue on appeal, Lopez challenges the district court’s resolution

of his medical negligence claim arising from the conduct of Waller. Specifically,

Lopez argues that the district court erred (a) in relying on the testimony of the

government’s expert witness, neurosurgeon Dr. Jeffrey Arle, regarding the precise

cause of Lopez’s injury, (b) in relying on Arle’s testimony to reject Lopez’s claim

that Waller was negligent for failing to use a loupe (a small magnification device,

essentially a microscope, that is worn on the head) or a headlight during the

surgery, and (c) by making inadequate findings on Lopez’s claim that Waller

failed to properly mitigate the nerve injury suffered by Lopez. We agree with the


                                          9
government, however, that these claims are moot.

      Lopez’s medical negligence claim arising from the conduct of Waller rested

on the theory that it was Waller, a federal employee, who actually performed all

or most of the surgery, under the supervision of Kindt, and damaged Lopez’s

nerve roots. Indeed, Lopez’s counsel emphasized this issue during his opening

statement to the district court: “One of the issues and the Court is well aware of

this is who did the surgery. And so what we have is significant evidence,

overwhelming evidence that the procedure was performed by Dr. Waller.” App.,

Vol. 3 at 237. At the conclusion of the trial proceedings, the district court found

in its written memorandum of decision that it was Kindt, who was not a federal

employee, who actually performed the surgery and removed the nerve tissue.

App., Vol. 9 at 1236. In making this finding, the district court stated that it found

Waller’s trial testimony on this issue “more credible” than the deposition

testimony of Kindt. Id. On appeal, Lopez has not challenged as clearly erroneous

the district court’s finding on this fundamental point. 5 Consequently, it is

unnecessary for us to address the other challenges that Lopez has mounted to the

district court’s resolution of his medical negligence claim pertaining to the

conduct of Waller.



      5
        Having carefully examined the record on appeal, we are doubtful that
Lopez could establish that the district court’s finding on this issue was clearly
erroneous in any event.

                                          10
                 The negligent credentialing and privileging claim

      Lopez also challenges the district court’s resolution of his negligent

credentialing and privileging claim. The district court addressed and rejected this

claim on the merits, and Lopez now argues that the district court erred in failing

to grant relief on the claim. We agree with the government, however, that the

district court lacked jurisdiction over the claim.

      The administrative claim that Lopez filed with the government described

the “Basis of Claim” in the following manner:

      This is a claim for medical malpractice arising from substandard
      medical care provided to Leonard Lopez during a surgical procedure
      on March 5, 2010 at the VA Medical Center. During the left L5-S1
      decompression/discectomy procedure, Glenn W. Kindt, M.D., and
      Samuel Waller, M.D., cut and removed part of a nerve. Dr. Kindt’s
      and Dr. Waller’s cutting and removal of this nerve was a breach of
      the standard of care and caused Mr. Lopez injuries, damages and
      losses.

      As a result of Dr. Kindt’s and Dr. Waller’s cutting and removal of
      the nerve from Mr. Lopez’s body, he developed permanent injuries
      including CRPS Type II and exacerbation of his post-traumatic stress
      disorder.

App., Vol. 1 at 78.

      When Lopez sought to amend his complaint to include a claim for negligent

credentialing and privileging, the government opposed that request, arguing that

Lopez’s administrative claim did not include such a claim. The district court

rejected the government’s argument, stating:

      It is apparent that counsel for the plaintiff had no information about

                                          11
      the competence of Dr. Kindt at the time of the filing of the
      administrative claim and first obtained that information through the
      discovery process in this civil action. The amendment does not
      present a new claim and is based on information known to the VA
      hospital and is well within the scope of the claim that the surgery
      was performed negligently causing damage to the plaintiff.

App., Vol. 2 at 124.

      In its appellate response brief, the government argues that the district court

erred in making this ruling and asserting jurisdiction over the negligent

credentialing and privileging claim. 6 “Whether the district court has subject

matter jurisdiction over a claim is a question of law we review de novo.” Estate

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

      “The [FTCA] is a limited waiver of sovereign immunity, making the

Federal Government liable to the same extent as a private party for certain torts of

federal employees acting within the scope of their employment.” United States v.

Orleans, 425 U.S. 807, 813 (1976). “This unequivocal waiver of immunity must

be construed narrowly and the ‘limitations and conditions upon which the

Government consents to be sued must be strictly observed and exceptions thereto

are not to be implied.’” Miller v. United States, 463 F.3d 1122, 1123 (10th Cir.

2006) (quoting In re Franklin Savings Corp., 385 F.3d 1279, 1289-90 (10th Cir.



      6
        Although the government did not file a cross-appeal, we can consider this
issue because it concerns the district court’s subject matter jurisdiction. See
Sebelius v. Auburn Reg. Med. Ctr., 133 S. Ct. 817, 824 (2013) (“Objections to a
tribunal’s jurisdiction can be raised at any time.”).

                                         12
2004)).

      “The FTCA bars claimants from bringing suit in federal court until they

have exhausted their administrative remedies.” McNeil v. United States, 508 U.S.

106, 113 (1993). Specifically, the FTCA states, in pertinent part, that

      [a]n action shall not be instituted upon a claim against the United
      States for money damages for injury or loss of property or personal
      injury or death 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, unless the claimant shall have first
      presented the claim to the appropriate Federal agency and his claim
      shall have been finally denied by the agency in writing and sent by
      certified or registered mail.

28 U.S.C. § 2675(a). This exhaustion requirement is “jurisdictional and cannot be

waived.” 7 Bradley v. United States ex rel. Veterans Admin., 951 F.2d 268, 270

(10th Cir. 1991). “In other words, the FTCA bars would-be tort plaintiffs from

bringing suit against the government unless the claimant has previously submitted

a claim for damages to the offending agency, because Congress wants agencies to

have an opportunity to settle disputes before defending against litigation in



      7
          The FTCA also includes a statue of limitations that states:

      A tort claim against the United States shall be forever barred unless
      it is presented in writing to the appropriate Federal agency within
      two years after such claim accrues or unless [the] action is begun
      within six months after the date of mailing, by certified or registered
      mail, of notice of final denial of the claim by the agency to which it
      was presented.

28 U.S.C. § 2401(b).

                                          13
court.” Smoke Shop, LLC v. United States, 761 F.3d 779, 786 (7th Cir. 2014)

(citing McNeil, 508 U.S. at 112 & n.7).

      We have stated that the jurisdictional statute can be satisfied by a claimant

“filing (1) a written statement sufficiently describing the injury to enable the

agency to begin its own investigation, and (2) a sum certain damages claim.”

Trentadue, 397 F.3d at 852 (quoting Bradley, 951 F.3d at 270). That is, we have

effectively construed the term “claim,” as employed in § 2675, as encompassing

two requirements: (1) a written statement describing the injury in sufficient detail

to allow the agency to begin an investigation into the possibility of potentially

tortious conduct, and (2) a request for a sum certain in damages. That pragmatic

interpretation is consistent with Form SF95, the form typically used for filing

administrative claims. As the Seventh Circuit noted long ago, “no statement of

legal theories is required” by Form SF95, “only facts plus a demand for money.”

Murrey v. United States, 73 F.3d 1448, 1452 (7th Cir. 1996). Thus, the “claim”

asserted “encompasses any cause of action fairly implicit in the facts.” Id.

      Applying these principles to the case at hand, we conclude that the facts

alleged in Lopez’s administrative claim were not sufficient to encompass and give

the government notice of his negligent credentialing and privileging claim. To be

sure, a negligent credentialing and privileging claim under Colorado law requires

proof that the plaintiff was injured by the negligent acts of the improperly

credentialed and privileged physician. See Braden v. Saint Francis Hosp., 714

                                          14
P.2d 505, 507 (Colo. App. 1983) (“In extending staff privileges to a doctor, a

hospital does not generally expose itself to liability for the doctor’s negligence

unless it knows or should know of a propensity on the doctor’s part to commit

negligent acts.”) (quoting W. Ins. Co. v. Brochner, 682 P.2d 1213 (Colo. App.

1983) (emphasis added)). But such a claim also requires proof that the

hospital/employer breached a legal duty by credentialing and privileging the

physician. See id. Nothing in Lopez’s administrative claim provided the

government with notice that it needed to investigate whether the VA Hospital was

negligent in credentialing and privileging Kindt, and it was in turn deprived of

any opportunity to settle this potential claim without litigation. Consequently, we

conclude that Lopez’s administrative claim did not reasonably encompass his

negligent credentialing and privileging claim.

      In concluding otherwise, the district court focused primarily on irrelevant

factors. Specifically, rather than examining whether Lopez’s administrative claim

provided the government with notice of the relevant facts, the district court

instead noted that Lopez’s counsel “had no information about the competence of

Dr. Kindt at the time of the filing of the administrative claim,” and that the claim

was “based on information known to the VA hospital.” App., Vol. 2 at 124.

While both of these facts may be true, nothing in Lopez’s administrative claim

would have caused the government to investigate whether Kindt was properly

credentialed. Further, simply because an agency is in possession of information

                                          15
relevant to a claim does not mean that the agency is aware of the claim itself. To

excuse a claim from the FTCA’s administrative exhaustion requirements for the

reasons stated by the district court would undermine the very purpose of those

exhaustion requirements (i.e., to give the agency notice of the claim, an

opportunity to investigate, and a chance to settle the claim prior to litigation), and

could effectively and improperly extend the FTCA’s statute of limitations.

      For these reasons, we conclude that the district court lacked subject matter

jurisdiction over Lopez’s negligent credentialing and privileging claim.

                                          III

      We AFFIRM the district court’s entry of judgment in favor of the United

States on Lopez’s claim of medical negligence involving Waller. We REVERSE

the district court’s judgment in favor of the United States on Lopez’s negligent

credentialing and privileging claim and REMAND with directions to dismiss that

claim for lack of jurisdiction.




                                          16
