U.S. Court of Appeals Affirms Dismissal of Medical Malpractice Case for Failure to Exhaust Administrative Remedies Under Federal Tort Claims Act

The U.S. Court of Appeals for the Seventh Circuit in Chicago has affirmed the dismissal of a Federal Tort Claims Act lawsuit sounding in medical malpractice filed by plaintiff Anna Chronis. She claimed that in June 2015, when she visited the University of Illinois Mile Square Health Center for her annual physical examination, the pap smear procedure did not detect cervical cancer. However, the procedure allegedly caused an injury, pain and bruising, she claimed.

After her Pap smear procedure, she claimed she tried to follow up with her physician, Dr. Tamika Alexander, but was unable to reach her. The complaint stated that the Health Center did not return Chronis’s calls or allow her to make a follow-up appointment. Chronis filed a written complaint with the health center’s grievance committee, requesting $332 for the expenses that she incurred because of the pap smear injury. But after reviewing her letter complaint, the Health Center rejected her request.

The lawsuit filed in the U.S. District Court for the Northern District of Illinois in Chicago under the Federal Tort Claims Act (FTCA) was dismissed when the district court judge found that Chronis had decided not to exhaust her administrative remedies because she had chosen not to make a sum certain demand to the appropriate federal agency before filing her lawsuit.

Chronis argued on appeal that she had exhausted her administrative remedies by submitting a letter to the Centers for Medicare and Medicaid Services (CMS), but the U.S. Court of Appeals found that her letter, which contained a 63-page appendix, sought only advice about how to file an administrative claim. The appeals court ruled that it contained, at best, a vague request for help in receiving “restitution,” which was insufficient to exhaust her remedies or put the federal agency on notice that she was making an actual claim.

For those reasons, the U.S. Court of Appeals affirmed the district court’s dismissal order. There was a dissent filed opposing the majority’s opinion and decision.

Under the Federal Tort Claims Act, a plaintiff may bring a medical malpractice claim against the United States only after exhausting administrative remedies. 28 U.S.C. ¶¶ 2401(b), 2675. To exhaust administrative remedies, the plaintiff must “have first presented the claim to the appropriate Federal agency,” Id. ¶ 2675, so that the agency has an opportunity to meaningfully consider and address the claim prior to suit, see Kanar v. United States, 118 F.3d 527, 528 (7th Cir. 1997); Mader v. United States, 564 F.3d 794, 801 (8th Cir. 2011) (en banc) (explaining that the agency [government] must have “a fair opportunity to meaningfully consider, ascertain, adjust, determine, compromise, deny, or settle FTCA claims prior to suit”). The court of appeals also stated that a claim has been presented to a federal agency once the plaintiff submits “an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain.” 28 C.F.R. ¶ 14.2(a).

Federal courts have stated that there are four elements that must be satisfied: (1) notification of the incident; (2) demand for a sum certain; (3) title or capacity of the person signing; and (4) evidence of the person’s authority to represent the claimant. Kanar, 118 F.3d at 528. In conclusion, the appellate court stated that Chronis’s letter elected not to satisfy the second element of the presentment requirement.

Accordingly, the court of appeals affirmed the order dismissing the lawsuit.

Chronis v. United States, No. 17-3093 (July 29, 2019) N.D. Ill., E. Div.

Kreisman Law Offices has been handling medical malpractice lawsuits, Federal Tort Claims Act cases, nursing home abuse lawsuits and birth trauma injury cases for individuals, families and loved ones who have been injured, harmed or killed by the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including River Forest, Rosemont, Schaumburg, Schiller Park, Glendale Heights, Elmhurst, Evergreen Park, Arlington Heights, Park Ridge, Chicago (Wicker Park, Austin, Englewood, North Lawndale, South Shore, Kenwood, Hyde Park, Little Italy, Little Village, Back of the Yards, Pullman, Pilsen, Roscoe Village, Logan Square), Bensenville, Joliet, Waukegan, Aurora, Geneva, Wauconda, Grayslake, Crystal Lake, South Holland, Worth and Blue Island, Ill.

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