

                    [Not For Publication]                            United States Court of Appeals
                    For the First Circuit
                                         

No. 96-1702

                 MARIA M. LOPEZ-DE ROBINSON,

                    Plaintiff, Appellant,
                              v.

                  UNITED STATES OF AMERICA,
                     Defendant, Appellee.

                                         
         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jaime Pieras, Jr., U.S. District Judge]                                                                
                                         

                            Before
                    Selya, Circuit Judge,                                                    

                Coffin, Senior Circuit Judge,                                                        

                  and Lynch, Circuit Judge.                                                                                                           

Raul  Barrera  Morales  with  whom  Jesus  Hernandez  Sanchez  and                                                                         
Hernandez Sanchez Law Firm were on brief, for appellant.                                  

Fidel  A.  Sevillano  Del Rio,  Assistant United  States Attorney,                                         
with  whom Guillermo  Gil, United  States Attorney,  was on  brief for                                 
appellee.

                                         

                         MAY 13, 1997
                                         

          Per Curiam.   Plaintiff, a widow,  appeals from the                      Per Curiam.                                   

district court's award of $50 thousand under the Federal Tort

Claims Act (FTCA),  28 U.S.C.    2671  et seq., to compensate

her for pain and suffering due to the failure of the Veterans

Administration Hospital in San Juan  to admit her ill husband

a few days prior to his death.  She seeks additional damages,

arguing that several of the district court's factual findings

are clearly erroneous.  She  takes particular issue with  the

court's  finding that prompt  hospitalization would  not have

saved her husband's  life.   She also argues  that the  court

erred  in concluding that  her late husband's  estate was not

entitled  to any recovery because it was not properly a party

to the suit.

                              I

          We recite the facts as found by the  district court

after the three-day bench trial. In May 1989, Vance Robinson,

a 64-year-old veteran, visited  Dr. Luis Marrero, who ordered

laboratory  tests.   The  tests suggested  that Robinson  had

liver cancer.

          On  Friday, July 7,  1989, Robinson went  to the VA

Hospital  in San  Juan  complaining of  a  host of  symptoms,

including  a  grossly enlarged  abdomen  (ascites)  and acute

stomach  pains.   The intake  physician, Dr.  Sylvia Fuertes,

diagnosed Robinson as having  ascites and an occult neoplasm,

but did not note the ascites on his medical record.   She did

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not believe that  Robinson's case was  an emergency, but  she

recommended that  he be  admitted immediately as  an elective

admission.  There were no available beds, however, and so she

told Robinson to return on Monday.

          Robinson  went to  the  admissions  office  of  the

hospital on Monday at 9:00 a.m.   He was not re-examined.  He

waited  there  all  day, but  was  told  there  were no  beds

available.  The same thing happened on Tuesday. That evening,

Robinson  was taken  to  the  emergency  room  at  San  Pablo

Hospital,  where he was admitted as a patient.  The diagnosis

was  ascites, suspected liver cancer, anemia and hepato-renal

syndrome.   A  CT  scan revealed  an  enlarged liver  due  to

lesions suggestive of metastatic cancer.

          On July  18, Robinson  discharged himself  from the

hospital.   He  died  the  next  day.   No  biopsy  was  ever

performed to confirm the diagnosis of suspected liver cancer,

and no autopsy  was performed at  the time  of death.   Liver

cancer  was listed  as  the  cause  of  death  on  the  death

certificate.

          Robinson's  widow,  the  plaintiff  here,  filed an

administrative claim  in her  name against the  United States

with  the  Department of  Veterans  Affairs.   The  claim was

denied, and she filed a complaint in federal court within six

months.

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          Over  two years  after Robinson's  death, plaintiff

had the body exhumed so that Dr. Yocasta Brugel could prepare

a  forensic report.  Dr.  Brugel indicated that  she found no

evidence  of liver  cancer  and  that  Robinson had  died  of

myocarditis,  a  rare heart  ailment  which  seldom leads  to

death.    The  autopsy  was admitted  into  evidence  without

objection.   However, Dr. Brugel  did not appear  at trial to

testify.   The district  court found that  either the autopsy

report was  totally unreliable, or, in  the alternative, that

the  autopsy  had  been   performed  on  someone  other  than

Robinson.  The court also found  that the slides of the liver

on  which the report was  based were not  those of Robinson's

liver.

          The  district court  concluded that  the hospital's

failure  to admit Robinson on Friday  evening did not violate

acceptable  medical  standards.    However,  it   found  that

Robinson should have been re-examined when he returned to the

hospital on  Monday, to  ensure that  his  condition had  not

deteriorated  to emergency  status, and  concluded  that this

omission did violate acceptable  medical standards and caused

pain  and suffering to Robinson and his wife.  The court also

found  that admitting  Robinson  to the  hospital on  Friday,

Monday or Tuesday  would not  have saved his  life but  would

have  permitted palliative  treatment  to ease  his pain  and

suffering.

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          The court awarded  plaintiff $50  thousand for  her

pain  and suffering  as she  watched her  husband's condition

deteriorate  during  the three  days  before  he was  finally

admitted to a  hospital.  The  district court also  indicated

that it  would have  awarded an  additional $50  thousand for

Robinson's pain and suffering if his estate had been named as

a plaintiff.

          Plaintiff appeals on  several grounds.  She  argues

that  the district  court's  finding that  the VA  Hospital's

failure  to  admit Robinson  was not  the  cause of  death is

clearly erroneous,  as was the district  court's finding that

the autopsy report  was totally unreliable.   She also argues

that  the court erred in refusing to award pain and suffering

damages  to the  decedent's estate:  she contends  that under

Puerto  Rico law, when a man dies intestate (as did Robinson)

his widow and children are his heirs.  She concludes that she

and  her  sons  should  have received  the  $50  thousand the

district court indicated it would have awarded for Robinson's

pain and suffering.

                              II

Factual Findings                            

          We review the district court's findings of fact for

clear error.  Irving v. United States, 49 F.3d  830, 835 (1st                                                 

Cir. 1995);  see also Fed. R.  Civ. P. 52(a).   In this case,                                 

there  is a significant amount  of support in  the record for

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the  district court's factual determinations, which therefore

are not clearly erroneous.

          The  district court's  finding that  the hospital's

failure to  admit Robinson was not the  cause of his death is

supported by  the testimony  of Dr. Figueroa,  the government

expert  in cardiology.  He testified that, in his opinion, at

the time Robinson went  to the VA  Hospital on July 7,  there

was nothing that could have  been done to prevent  Robinson's

death on the 18th; at that point the hospital could have done

nothing more than to have made him comfortable.

          There is  also evidence in support  of the district

court's conclusion that  the autopsy report was  not based on

an examination of Robinson's liver.  The liver from which the

slides were taken was of  normal size, while Robinson's liver

had  been  enlarged.   The  slides  of  the  liver showed  no

evidence of  severe liver disease such  as metastatic cancer.

Instead,  they indicated a  fatty liver, a  much less serious

condition.   However, all of the clinical data indicated that

Robinson was suffering from severe liver  disease at the time

he died.    The  testimony  of  Dr.  Marrero  indicates  that

Robinson  likely had  severe liver  disease as  early as  May

1989.    Dr. Ramirez,  the  government  expert in  pathology,

testified that  there  was ample  clinical, radiological  and

laboratory evidence that Robinson suffered from severe  liver

disease,  but that  there was  no indication  of this  in the

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autopsy  slides.   Furthermore,  Dr.  Ramirez  testified that

descriptions in the  autopsy report of other organs  were not

what  one  would  have  expected  given  Robinson's   medical

history.   For example,  Robinson  had dilated  veins in  his

esophagus butthere wasno mention ofthis in theautopsy report.

Exhaustion of Administrative Remedies                                                 

          The  district court  held that  it could  not award

damages for Robinson's pain  and suffering because his estate

did not present a  claim to the proper administrative  agency

and therefore  did not exhaust  its administrative  remedies.

Review of this  legal conclusion is de novo.   Roche v. Royal                                                                         

Bank of Canada, 109 F.3d 820, 827 (1st Cir. 1997).                          

          The  Federal  Tort  Claims Act  provides  that  "no

action shall  be instituted upon  a claim against  the United

States . . .  unless the claimant shall  have first presented

the claim  to the  appropriate Federal  agency and his  claim

shall have been finally denied . . . ."  28 U.S.C.   2675(a).

In this case the  appropriate agency is the Veterans  Affairs

Department.

          The  determination  of  when   a  claim  is  deemed

presented  is made  pursuant  to  federal regulations,  which

require  the  submission  of  written   notification  of  the

incident and a claim for money damages in a  specific sum. 28

C.F.R.    14.2(a).  The  purpose is to  encourage settlement:

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if the agency knows exactly what the claimant seeks, there is

more likely to be a settlement.

          Plaintiff  filed an  administrative claim  with the

Department  of  Veterans  Affairs  in  which  she  identified

herself  but not her late husband's estate as claimant.1  She

now  argues that  this satisfied  the exhaustion  requirement

with  respect to both her claims and  those of the estate.  A

similar argument was rejected in  Estate of Santos v.  United                                                                         

States, 525 F. Supp. 982, 986 (D.P.R. 1981).  The court there                  

held that each person seeking personal damages under the FTCA

must file an individual claim, and  that a claim must put the

agency on notice of  who was actually pursuing the  claim and

the amount  of the  claim.   Id.; see also  Adames Mendez  v.                                                                     

United States,  652 F. Supp.  356, 358 (D.P.R.  1987), aff'd,                                                                        

873 F.2d 1432  (1st Cir.  1989) (tbl.); Del  Valle Rivera  v.                                                                     

United States, 626 F. Supp. 347, 348-49 (D.P.R. 1986).                         

          We agree.   Allowing one claimant's   exhaustion of

her  administrative   remedies  to  satisfy   the  exhaustion

requirement  for  other  possible  claimants  would  make  it

extremely difficult for the  agency to know the value  of the

suit, thus making settlement less  likely.  Del Valle Rivera,                                                                        

626 F. Supp. at 348-49.

          The decision of the district court is affirmed.                                                                    

                                                    

1.  The  administrative   claim  was  not  included   in  the
appellate record, but counsel  conceded at oral argument that
Robinson's estate was not named as a claimant.

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