The opinion of the court was delivered by: Savage, J.
In this wrongful death and survival action alleging medical malpractice under the Federal Tort Claims Act ("FTCA"), the defendant United States of America*fn1 has moved to dismiss claims for wrongful death and loss of consortium. Relying on a strict interpretation of the FTCA notice requirement,*fn2 it contends that the Standard Form 95 submitted to the Department of Veteran Affairs ("VA") presented only a survival claim. It argues the wrongful death and consortium claims must be dismissed for lack of subject matter jurisdiction.
We conclude that the VA had notice of both the wrongful death and survival actions. Because a loss of consortium claim cannot be asserted in addition to the wrongful death claim, it must be dismissed. Therefore, we shall grant the motion to the extent it seeks dismissal of the consortium claim, and deny it as to the wrongful death claim.
Michael Keating was admitted to the Veterans Administration Medical Center in Coatesville, Pennsylvania for treatment for post traumatic stress disorder. During his in-patient stay, he became unresponsive and never regained consciousness. He was transferred to Brandywine Hospital where he died on December 1, 2008, after spending months in a coma.
In February 2009, Marie Keating, Michael's wife, filed a Standard Form 95 notifying the VA of Michael's death and her intent to hold the VA liable. The VA did not act on the claim within six months. As the duly appointed executrix of her husband's estate, Marie Keating instituted this wrongful death and survival action alleging that Michael's death was caused by the VA doctors' medical malpractice.
Motion to Dismiss Standard
A motion to dismiss under Fed. R. Civ. P. 12(b)(1) attacking the court's jurisdiction is treated the same as a Rule 12(b)(6) motion. Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). However, a jurisdictional motion challenging the factual underpinnings of a court's jurisdiction under Rule 12(b)(1) requires less deference to the plaintiff's complaint. CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008). Because a "factual attack" in a Rule 12(b)(1) motion to dismiss addresses the court's power to hear the case, there is no presumption of truthfulness and we may consider materials outside the complaint to satisfy ourselves that the exercise of federal jurisdiction is proper. Id. at 139 and 145. The plaintiff has the burden of persuading the court that it has jurisdiction. Gould, 220 F.3d at 178.
As a prerequisite to filing an action under the FTCA, the claimant must file an administrative claim with the appropriate agency within two years of accrual of the cause of action; and, the agency must deny the claim. 28 U.S.C. § 2675(a). The failure of the agency to accept or deny the claim within six months is deemed a denial. Id.
If a claimant fails to exhaust this administrative remedy, the district court lacks subject matter jurisdiction. Lightfoot v. United States, 564 F.3d 625, 626-27 (3d Cir. 2009). The exhaustion requirement cannot be waived. Id. at 627 (quoting Bialowas v. United States, 443 F.2d 1047, 1049 (3d Cir. 1971)).
The purpose of the exhaustion requirement is to afford the agency the opportunity to investigate and settle claims. Owen v. United States., 307 F. Supp. 2d 661, 665 (E.D. Pa. 2004) (citations omitted). Consequently, the notice must be sufficient to apprise the agency of the nature and the amount of the claim. Jensen v. United States, No. 09-2977, 2009 WL 4117357, at *4 (E.D. Pa. Nov. 24, 2009).
There is no dispute that Marie Keating timely filed a Standard Form 95*fn3 notifying the VA that she was bringing an action on behalf of Michael's estate. The issue is whether the form encompassed causes ...