Srader et al v. The United States of America et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
THE ESTATE OF JACKSON LEE SRADER,
a deceased minor, by and through co-personal
representatives, JENNIFER SRADER and
TIM SRADER, and as parent and next friend of
R.S., a minor, and JENNIFER SRADER
and TIM SRADER, individually,
Plaintiffs,
v. 	No. 23-CV-32 MV/SCY
THE UNITED STATES OF AMERICA,
ROBERT MILLS, RN and
RAQUEL R. RAMAL, RNC-MNN,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Defendant United States’ Motion to Dismiss
in Lieu of Answer (“Government’s Motion”) [Doc. 13] and Defendant Robert Mills, RN’s
Motion to Dismiss in Lieu of Answer (“Nurse Mills’s Motion”) [Doc. 50]. The Court, having
considered the motions, briefs, and relevant law, and being otherwise fully informed, finds that
the Government’s Motion is well-taken only in part and will be granted only in part, and Nurse
Mills’s Motion is well-taken and will be granted, although Plaintiffs will be given an opportunity
to file a motion seeking leave to amend as to Nurse Mills.
BACKGROUND
On May 12, 2020, Lisa Curtis, Esq., submitted three administrative tort claim forms to
the United States Department of Health and Human Services (“HHS”), on behalf of Jennifer
Srader, in her individual capacity, Timothy Srader, in his individual capacity, and Jennifer and
Timothy Srader, as Personal Representatives for the Estate of Jackson Lee Srader (“Jackson”).
Doc. 13-1. Each of the claims included a Standard Form 95 (“SF-95”). Id. On each SF-95, under
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“Amount of Claim,” in the box labeled “Wrongful Death,” an amount $15,000,000.00 was listed.
Doc. 13-2 at 2, 4, 6. In the box labeled, “Total,” the amount of $15,000,000.00 was again listed.
Id.
Each of the claims also included an attachment detailing the facts on which the claim was
based. Id. The attachments to the three SF-95s were identical and provided the following
recitation of events. Mrs. Srader originally sought prenatal care at Northern Navajo Medical
Center (“NNMC”) on May 11, 2020. At her visit, she had a fetal ultrasound, which established a
gestational age of 11 weeks, 1 day, with reassuring fetal status, and an estimated date of birth of
November 20, 2020. This was her third pregnancy. She had one living child and had suffered one
miscarriage.
Eight days later, on May 19, 2020, Mrs. Srader experienced light vaginal bleeding,
without clots but with lower abdominal cramping and lower back pain. As a result, Mrs. Srader
went to the Emergency Department at NNMC. Because of COVID restrictions, Mrs. Srader’s
husband, Mr. Srader, was unable to accompany her.
In the Emergency Department, Dr. Attebery examined Mrs. Srader and completed a
physical examination, which found minimal dark red blood in vaginal vault – cervix 1 cm dilated
and no active bleeding. Dr. Attebery did not order any laboratory tests or an ultrasound. Her
“medical decision-making and plan stated, ‘[Patient] with vag[inal] bleeding and open os,
inevitable miscarriage. She is very stressed and anxious and traumatized from her previous
miscarriage.” Dr. Atteberry then consulted with Dr. Moore from the OBGYN Department, who
“reviewed the patient’s chart and asked that the patient be sent to her clinic now and she will see
the patient.”
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Without confirming through an ultrasound that the fetus was dead or compromised, Dr.
Moore performed a manual vacuum aspiration of the uterus. After the procedure, she did not
order an ultrasound to confirm that the uterus was empty. Dr. Moore’s notes state, “uterine
contents evacuated, no active bleeding, uterus contracted. Doxycycline post procedure.”
Thereafter, Mrs. Srader’s vaginal bleeding became heavier and was accompanied by
cramping. On June 10, 2020, she called the OBGYN Department at NNMC and reported that she
was changing menstrual pads hourly. She spoke with Nurse Ramal, who advised her to monitor
her bleeding. Nurse Ramal did not advise Mrs. Srader to come in to be examined.
On July 7, 2020, Mrs. Srader’s abdominal pain intensified and radiated to her back. She
was nauseous and was experiencing green vaginal discharge. She returned, alone, to NNMC
Emergency Department. Mrs. Srader was found to be septic from chorioamnionitis, a life-
threatening uterine infection. An ultrasound was performed, which showed that her fetus was
still alive: there was a fetal heart rate, and the gestational age was determined to be between 17
weeks, 1 day, and 19 weeks, 4 days. Mrs. Srader was able to hear the fetal heartbeat. As a result
of the aspiration procedure that Dr. Moore had performed in May, however, the fetus had severe
oligohydramnios, or little amniotic fluid, a compressed thorax, and a deformed skull. Providers
at NNMC recommended that Mrs. Srader again undergo a procedure to terminate the pregnancy,
because of the irreparable damage that the fetus had suffered. After multiple requests, staff
allowed Mr. Srader to join Mrs. Srader at NNMC. Mr. Srader and Mrs. Srader requested a
second opinion and referral to a specialty service, hoping to save their baby.
The next day, Mrs. Srader was transported by American Medical Response to the
University of New Mexico Hospital in Albuquerque, New Mexico. She was admitted to the
Obstetrics Department for preterm previable rupture of membranes with a fetus with a heartbeat
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and complete oligohydramnios. She was presumed to be suffering from chorioamnionitis in the
context of maternal Systemic Inflammatory Response Syndrome (“SIRS”). Mrs. Srader had to
choose between being induced and giving birth to a previable fetus or having a dilation and
forced evacuation of the fetus, either of which would result in the death of the fetus. Mrs. Srader
elected to deliver the fetus. Thereafter, surgical management (dilation and curettage) was
required to remove the placenta because of the chorioamnionitis. She stayed in the hospital
overnight, and was discharged on July 10, 2020, distraught and in mourning. The body of her
baby, whom she named Jackson, was released on July 11, 2020.
As a result of the failure to conduct an ultrasound, a physical exam, or laboratory tests
before or after performing the manual aspiration of her uterus, Mrs. Srader suffered illness, pain
and suffering, the unnecessary loss of her child, and a compromised ability to have children in
the future. She subsequently sought and received grief counseling services to assist in coping
with her pregnancy loss and removal, failed removal of pregnancy, and subsequent life-threating
infection and a repeat loss of the pregnancy.
Because they were not signed, the administrative tort claims filed by Ms. Curtis on May
12, 2022, were defective. Doc. 13-1. Ms. Curtis and Melanie Ben, Esq., submitted three new tort
claims to HHS on May 18, 2022, with signed SF-95s that did not include, but incorporated by
reference, the attachments to the original claims. Id. Other than adding their clients’ signatures,
the SF-95 Forms were filled out in the same way as the original forms had been. Doc. 13-3 at 2,
4, 6.
When HHS failed to respond with a denial of these claims within the relevant time
period, Plaintiffs Jennifer Srader, Tim Srader, Jackson’s Estate (by Jennifer and Tim Srader as
Personal Representatives), and Jennifer and Tim Srader as parents and next friends of R.S., a
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minor, through their attorneys Ms. Curtis and Ms. Ben, commenced the instant medical
malpractice action under the Federal Tort Claims Act (“FTCA”). In their First Amended
Complaint to Recover Damages for Wrongful Death and Loss of Consortium Arising from
Medical Negligence (“FAC”), Doc. 3, Plaintiffs cite 28 U.S.C. § 1346(b)(1) as the source for this
Court’s jurisdiction over this action. That provision creates jurisdiction in the federal district
courts for damages claims against the United States for “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, under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of the place where the act or
omission occurred.” 28 U.S.C. §1346(b)(1).
Originally, Plaintiffs named as defendants NNMC, HHS, Indian Health Service (“IHS”),
the United States of America, Adrienne Moore, M.D., Suzanne J. Atterberry, DO, Reanne Irvin,
RN, Robert Mills, RN, and Raquel R. Ramal, RNC-MNN. Upon the United States’ Motion for
Order Dismissing Federal Hospital and Agency Defendants and Amending Caption, Doc. 14, the
Court entered an order dismissing NNMC, HHS, and IHS from this action. Doc. 65. Similarly,
upon the appropriate certification that Dr. Moore, Dr. Attebery, and Nurse Irvin were “federal
employees or federal contractors,” Doc. 12-1, Ex. A, and upon the United States’ Motion for
Order Upon Notice of Entry of Substitution of Adrienne Moore, M.D., Suzanne J. Attebery, DO,
and Reanne Irvin, Doc. 12, the Court entered an order substituting the United States as
Defendant in place of Dr. Moore, Dr. Attebery, and Nurse Irvin. Doc. 64. As there was no
similar certification as to Nurse Mills or Nurse Ramal, they remain as named defendants in this
matter. Notably, the FAC does not identify the claims against Nurse Mills and/or Nurse Ramal as
arising solely under state law, or as being supplemental in nature. Nonetheless, “governing
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authority supports the general proposition that a plaintiff may assert state-law claims pursuant to
28 U.S.C. § 1367 in a case where federal jurisdiction is premised upon claims against the United
States arising under the FTCA.” Ressel v. United States, 23-CV-627, 2025 WL 2810978, at *2
(W.D. Okla. Sept. 29, 2025). Accordingly, the Defendants currently in this action are the United
States, Nurse Mills, and Nurse Ramal, the claims against the United States arise under the
FTCA, and the claims against Nurse Mills and Nurse Ramal are pendent state law claims.
Plaintiffs’ FAC sets forth facts virtually identical to those detailed in the attachments to
their administrative claims. Id. ¶¶ 1-30. Accordingly, the FAC states in relevant part that Dr.
Attebery saw Mrs. Srader when she first came to NNMC on May 19, 2020, and that, after Dr.
Attebery consulted with Dr. Moore, Dr Moore performed the manual vacuum aspiration of Mrs.
Srader’s uterus, without first, or subsequently, performing a proper physical exam, an ultrasound,
or laboratory tests. Id. ¶¶ 5, 7-8, 10-13. The FAC further states that when Mrs. Srader called
NNMC on June 10, 2020, she spoke with Nurse Ramal, who advised her only to monitor her
bleeding instead of advising her to come in and be examined. Id. ¶¶ 16-17. The only individuals
at NNMC identified by Plaintiffs as having seen, spoken to, or treated Mrs. Srader are Dr.
Attebery, Dr. Moore, and Nurse Ramal. Plaintiffs do not allege any interactions between Mrs.
Srader and Nurse Mills, or any actions taken or omissions made by Nurse Mills; nor do they
provide any factual basis to establish his role in, or responsibility for, any part of the chain of
events on which Plaintiffs’ claims are based.
Plaintiffs assert that Dr. Moore, Dr. Attebery, Nurse Irvin, Nurse Ramal, and Nurse Mills
caused Mrs. Srader’s “traumatic pain [and] suffering” and the “unnecessary death of the Srader’s
unborn baby,” failed to “conduct any laboratory studies, fetal heart tones or ultrasound,” and
“did not possess or apply the knowledge and use the skill and care ordinarily used by reasonably
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well-qualified health care providers of the same field of medicine practicing under similar
circumstances, giving due consideration to the locality involved, thus breaching their duty to
their patients Mrs. Srader and Baby Jackson.” Id. ¶¶ 2, 9, 47. Although it contains numbered
paragraphs, the FAC does not identify Plaintiffs’ claims as separate counts or anywhere identify
the causes of action they seek to pursue through this action. Despite its lack of organization and
clarity, Plaintiffs appear to assert a wrongful death claim on behalf of Jackson’s Estate, a
personal injury claim on behalf of Mrs. Srader, loss of consortium claims on behalf of Mrs.
Srader, Mr. Srader, and R.S. (Mr. and Mrs. Srader’s son), and negligent hiring, training,
supervision, credentialing, and privileging claims on behalf of Mrs. Srader. The FAC also seeks
punitive damages against all Defendants and compensatory damages above the cap set by the
New Mexico Medical Malpractice Act (“NMMMA”), even as to the United States.
The Government’s Motion, which seeks dismissal of the FAC as against the United
States pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of jurisdiction
and denial of Plaintiffs’ requests for both punitive damages and compensatory damages above
the NMMMA cap, and Nurse Mills’s Motion, which seeks dismissal of the FAC as against Nurse
Mills pursuant to Rule 12(b)(6) for failure to state a claim, are now before the Court.
LEGAL STANDARD
I. 	Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction
“Federal courts are courts of limited jurisdiction; they are empowered to hear only those
cases authorized and defined in the Constitution which have been entrusted to them under a
jurisdictional grant by Congress.” Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th
Cir. 1994) (citations omitted). Plaintiffs bear the burden of establishing this Court’s jurisdiction
over their claims. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104 (1998). Before
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considering the merits of a case, the Court is responsible for ensuring that it has subject matter
jurisdiction. Daigle v. Shell Oil Co., 972 F.2d 1527, 1539 (10th Cir. 1992).
Under Rule 12(b)(1), a party may assert by motion the defense of the Court’s “lack of
subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). Motions to dismiss for lack of subject
matter jurisdiction “take one of two forms: (1) a facial attack on the sufficiency of the
complaint’s allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts
upon which the subject matter jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180
(10th Cir. 2002). On a facial attack, the Court considers the complaint’s allegations to be true. Id.
On the other hand, when the motion challenges the factual basis for an action, the Court “may
not presume the truthfulness of the complaint’s factual allegations.” Campos v. Las Cruces
Nursing Ctr., No. 11-CV-0096, 2011 WL 5238921, *4 (D.N.M. Sept. 30, 2011) (citation
omitted). Rather, the “court has wide discretion to allow affidavits, other documents, and a
limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id.
Reference to evidence outside the pleadings does not convert the motion to a summary judgment
motion. Id.
When jurisdictional issues raised in a Rule 12(b)(1) motion are intertwined with the
case’s merits, the Court looks to the Rule 12(b)(6) standard to resolve the motion. Franklin Sav.
Corp v. United States, 180 F.3d 1124, 1129-30 (10th Cir. 1999). The jurisdictional question is
considered intertwined with the merits of the case when the Court’s subject matter jurisdiction is
conditioned upon the same statute that provides the substantive claim in the case. See Trainor v.
Apollo Metal Specialties, Inc., 318 F.3d 976, 978 (10th Cir. 2002). The Tenth Circuit has held
that “the determination of whether the FTCA excepts the government’s action from its waiver of
sovereign immunity involves both jurisdiction and merits issues” and therefore should be
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resolved under Rule 12(b)(6). Bell v. United States, 127 F.3d 1226, 1228 (10th Cir. 1997).
II. 	Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim
Under Rule 12(b)(6), the Court may dismiss a complaint for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “The nature of a Rule 12(b)(6) motion
tests the sufficiency of the allegations within the four corners of the complaint.” Mobley v.
McCormick, 40 F.3d 337, 340 (10th Cir. 1994). When considering a Rule 12(b)(6) motion, the
Court must accept as true all well-pleaded factual allegations in the complaint, view those
allegations in the light most favorable to the plaintiff, and draw all reasonable inferences in the
plaintiff’s favor. Smith v. United States, 561 F.3d 1090, 1097 (10th Cir. 2009), cert. denied, 558
U.S. 1148 (2010).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citations omitted). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. “Where a complaint pleads facts that are ‘merely consistent
with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of
entitlement to relief.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
The Court in Iqbal identified “two working principles” in the context of a motion to
dismiss. Id. First, “the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. Accordingly, Rule 8 “does
not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id.
at 678-79. “Second, only a complaint that states a plausible claim for relief survives a motion to
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dismiss.” Id. at 679; see Twombly, 550 U.S. at 570 (holding that a plaintiff must “nudge” her
claims “across the line from conceivable to plausible”). Accordingly, “where the well-pleaded
facts do not permit the court to infer more than the mere possibility of misconduct, the complaint
has alleged – but it has not shown – that the pleader is entitled to relief.” Id. (citation omitted).
In keeping with these two principles, the Court explained,
a court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth. When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise
to an entitlement to relief.”
Id. at 679. In a complaint asserting “complex claims against multiple defendants, it is
‘particularly important’ to ‘make clear exactly who is alleged to have done what to whom, to
provide each individual with fair notice as to the basis of the claims against him or her, as
distinguished from collective allegations.’” Bristow Endeavor Healthcare, LLC v. Blue Cross &
Blue Shield Assoc., 691 F. App’x 515, 519 (10th Cir. 2017) (quoting Robbins v. Oklahoma ex
rel. Dep’t of Human Servs., 519 F.3d 1242, 1250 (10th Cir. 2008)).
I. 	The Government’s Motion
A. 	Personal Injury Claim
In the FAC, Mrs. Srader asserts a personal injury claim based on medical negligence,
alleging that Dr. Moore’s performance of a manual vacuum aspiration, after which “Mrs. Srader
was sent home without any examination or tests to verify the outcome,” “invariably led to Mrs.
Srader’s illness, pain and suffering.” Doc. 3 ¶¶ 29, 30. Plaintiffs state that Defendant NNMC,
“through its physician assistants, midwives, nurses, and healthcare providers, failed to use the
skill and care ordinarily used by reasonable well qualified physicians, physician assistants,
midwives, nurses, and healthcare providers in their area of specialty in their care, evaluation,
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treatment, diagnosis, and operating on Mrs. Srader . . . which resulted in . . . Mrs. Srader’s
injuries and damages,” and which “breach[ed] their duty” to their “patient” Mrs. Srader. Id. ¶¶
45, 47. As a result of this “negligence by Defendants,” Plaintiffs assert that they are entitled to
recover any “damages available by law.” Id. ¶ 49.
As asserted against the United States, this personal injury claim is “predicated on the
United States’ waiver of sovereign immunity under the FTCA.” Ayala v. United States, 49 F.3d
607, 610 (10th Cir. 1995). The FTCA “waive[s] the sovereign immunity of the United States for
certain torts[, including negligence resulting in injury or death,] committed by federal employees
acting within the scope of their employment.” Brownback v. King, 592 U.S. 209, 212 (2021)
(citations omitted). The FTCA waiver, however, contains notice requirements that “must be
strictly construed,” and “are jurisdictional and cannot be waived.” Estate of Trentadue v. United
States, 397 F.3d 840, 852 (10th Cir. 2005) (citation omitted). Specifically, 28 U.S.C. § 2675(a)
“requires that claims for damages against the government be presented to the appropriate federal
agency by 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.” Id. (citations omitted). The
purpose of the notice requirements is to provide the government with the “opportunity to settle []
potential claim[s] without litigation.” Lopez v. United States, 823 F.3d 970, 977 (10th Cir. 2016).
The Tenth Circuit has made clear that these “notice requirements should not be
interpreted inflexibly.” Trentadue, 397 F.3d at 853. Rather, the court must take a “pragmatic”
approach: “as long as the language of the administrative claim serves due notice that the agency
should investigate the possibility of particular (potentially tortious) conduct and includes a
specification of the damages sought, it fulfills the notice-of-claim requirement.” Id. (citations
omitted). The focus of the notice requirement thus is a “facts-and-circumstances” one: “the
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notice must describe the facts and circumstances underlying a claim rather than the exact
grounds upon which [the] plaintiff seeks to hold the government liable.” Benally v. United
States, 735 F. App’x 480, 485 (10th Cir. 2018). Accordingly, “an FTC notice should be read to
encompass[] any cause of action fairly implicit in the facts.” Id. (quoting Lopez, 823 F.3d at
977). Importantly, “no statement of legal theories is required by Form SF95, only facts plus a
demand for money.” Lopez, 823 F.3d at 977. Thus, “courts should liberally construe the universe
of facts that the FTCA claimant provides.” Benally, 735 F. App’x at 485.
The government argues that Plaintiffs failed to provide adequate notice of Mrs. Srader’s
personal injury claim because her SF-95 did not include an amount in the box labeled, “Personal
Injury.” Doc. 13 at 8-10. Mrs. Srader’s SF-95 listed a damages amount of $15,000,000.00 in the
box labeled, “Wrongful Death,” and listed that same amount in the box labeled, “Total,” but did
not list any amount in the box labeled, “Personal Injury.” Doc. 13-1. According to the
government, because she “only included a sum certain for wrongful death,” Mrs. Srader failed to
meet the jurisdictional notice requirements as to her personal injury claims, warranting their
dismissal. Doc. 13 at 8, 10.
The government’s argument calls on the Court to take an inflexible, rather than a
pragmatic, approach to interpreting the notice requirements, and thus runs contrary to controlling
precedent. The Tenth Circuit has made clear that the FTCA requires only “facts plus a demand
for money.” Lopez, 823 F.3d at 977. Mrs. Srader’s SF-95, read together with the attachment
thereto, provides both.
First, the attachment “provides the facts and circumstances underpinning her subsequent
federal-court [personal injury] claim.” Benally, 735 F. App’x at 488. Specifically, the attachment
provides a detailed account of the treatment decisions made and procedures performed by
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medical staff at NNMC when Mrs. Srader sought care for “light vaginal bleeding.” The
attachment explains how, without first ordering blood tests or an ultrasound, Dr. Moore
performed a manual vacuum aspiration of the uterus, which caused life-threatening trauma to
Mrs. Srader’s fetus but did not actually remove it from her uterus. Dr. Moore was unaware of
this, however, because she sent Mrs. Srader home without performing an ultrasound to confirm
that the uterus was empty. The attachment further explains that, having been left with a damaged
fetus inside her uterus, Mrs. Srader experienced heavy bleeding and cramping, which she
reported to NNMC; no one there advised her to come to the clinic to be examined. Finally, the
attachment explains that, as a result of Dr. Moore’s treatment decisions, Mrs. Srader became
incredibly ill with a life-threatening uterine infection and ultimately delivered a previable fetus
who was unable to survive.
These facts, which are the same facts alleged in the FAC, support Mrs. Srader’s claim
that NNMC and its providers breached their duty to her to “conform to the recognized standard
of medical practice in the community,” proximately causing her injuries. Bruton v. United States,
No. 11-CV-330, 2014 WL 12479990, at *2 (D.N.M. July 2, 2014). Accordingly, the language of
Mrs. Srader’s administrative claim “gave DOJ notice of the facts and circumstances surrounding
[her medical negligence] claim.” Trentadue, 397 F.3d at 853. “[M]oreover, this language “is
consistent with Plaintiffs’ subsequent allegations in their [FAC].” Id. “Thus, a government
investigator would have had [an adequate] basis to inquire into the quality of [Mrs. Srader’s]
care.” Id. Because a cause of action for medical negligence unquestionably is “fairly implicit in
the facts” recited in the attachment to Mrs. Srader’s SF-95, this Court, as it must, reads her
administrative claim to encompass such an action. Lopez, 823 F.3d at 977.
Next, Mrs. Srader’s SF-95 contains “a request for a sum certain in damages,” namely,
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$150,000,000, which is noted in both the “Wrongful Death” box and the “Total” box. Id. The
Court is perplexed as to why Mrs. Srader’s attorneys, experienced medical malpractice litigators,
provided the factual basis for a personal injury claim in the attachment but did not note the
$150,000,000 sum certain sought by Mrs. Srader in the “Personal Injury” box. Nonetheless, her
notice both describes the facts and circumstances underlying her personal injury claim and
makes clear that Mrs. Srader seeks a total amount of $150,000,000. Accordingly, “[i]n its
totality, [Mrs. Srader’s] SF-95 gave Defendants notice of the basis of the underlying tort claims
and the potential value of the claims.” Salas v. United States, 787 F. Supp. 3d 799, 812 (W.D.
Tex. 2025). Under these circumstances, the fact that the “Personal Injury” box was left blank
does not render legally inadequate the notice of her personal injury claim. See Salas, 787 F.
Supp. 3d at 811-12 ((holding that leaving the “Personal Injury” box of an SF-95 blank but
including a sum certain in the “Total” box did not constitute a waiver of personal injury damages
in an FTCA claim, where SF-95 “contained a narrative that included claims that [plaintiff]
suffered ‘pain and mental anguish’” and noted “that the total sum certain sought was
$15,000,000”); Carlo v. Bazing, No. 22-CV-188, 2024 WL 964237, at *6-7 (D.N.M. Mar. 6,
2024) (finding sufficient exhaustion on loss of consortium claims where the only sum provided
by plaintiffs was in the wrongful death section of their SF-95, but plaintiffs notified the
government of the specific facts required for their loss of consortium claims); see also McDonald
v. United States, 582 F. Supp. 3d 682, 688-89 (D. Ariz. 2022) (rejecting government’s argument
that plaintiff could recover only the total of the amounts listed in each category on his SF-95, as
opposed to the larger amount listed in the “Total” box, stating that “what matters is that the
plaintiff sufficiently put the Federal agency on notice of the types of injuries and the claims at
issue, and that the plaintiff provided a sum certain amount that indicates to the Federal agency its
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maximum potential exposure to liability”); Lopez v. United States, 758 F.2d 806, 809-10 (1st Cir.
1985) (finding that administrative claim that asked for the sum of $850,000 for personal injuries
but did not explicitly claim “mental damages” was sufficient to put the government on notice of
mental injuries, thus allowing him to pursue a claim of mental injuries in his later federal
complaint, where his administrative claim stated that he had experienced a brain concussion and
post traumatic headache).
The cases cited by the government do not counsel a different conclusion, as they restate
and rely upon the very principle applied here, namely that the salient question in determining the
validity of an SF-95 is whether “the form [] give[s] constructive notice sufficient to warrant
government investigation of each claim.” Haceesa v. United States, 309 F.3d 722, 734 (10th Cir.
2002). Further, unlike Mrs. Srader’s SF-95, in each of the cases cited by the government, the
notice failed to set forth the facts underlying the challenged claim or describing the injury that a
particular plaintiff had suffered. See McNeese v. United States, No. 10-CV-107, 2012 WL
1288644, at *3-4 (D.N.M. Jan. 23, 2012) (holding that the plaintiff’s SF-95 form “would not
have put the government on notice to investigate any loss of consortium claim” where the form
“described the medical negligence suffered by her wife” but “did not describe her own injury”
and thus failed to set forth any facts relevant to her own claim and, in addition, did not “claim a
sum certain for personal injury damages”); Skeet v. United States, No. 10-CV-107, 2012 WL
12884644, at *3 (D.N.M. Jan. 23, 2012) (holding that, where administrative claims “made no
reference whatsoever to loss of consortium, they did not serve to exhaust such a claim”); Dukert
v. United States, No. 14-CV-506, 2016 WL 10721258, at *5-6 (D.N.M. Jan. 5, 2016) (finding
failure to exhaust loss of consortium claim where there were “no facts” on the SF-95 that “could
be construed to support an individual claim for loss of consortium, and the form did not allege
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any personal injury money damages); Staggs v. United States, 425 F.3d 881, 884 (10th Cir.
2005) (finding administrative claim insufficient to implicate lack of informed consent where
nothing in her claim suggested that she “consented to a course of treatment or remained on such
a course without being informed of her options and the risks”). Accordingly, none of the cases
cited by the government supports the proposition that leaving the “Personal Injury” box blank is
alone sufficient to deprive this Court of jurisdiction, where the government has been put on
notice of the facts and circumstances of Mrs. Srader’s medical negligence claim and of its
maximum potential exposure to liability.
For these reasons, Mrs. Srader’s SF-95 provided sufficient notice of her personal injury
claim to meet the requirements of § 2675(a). The Court thus has subject matter jurisdiction over
that claim. Accordingly, the Court will allow Mrs. Srader’s personal injury claim to proceed
against the United States.
B. 	Wrongful Death Claim
In the FAC, Plaintiffs assert that Jackson, “a previable baby” with a gestational age of
“12 weeks 2 days” at the time that Mrs. Srader first went to NNMC on May 19, 2020, “suffered a
wrongful death” “as a direct and proximate result of [Defendants’] negligence and breaches of
the standard of care . . . to properly care for, evaluate and treat” both Mrs. Srader and Jackson.
Doc. 3 ¶¶ 7, 26, 39, 43. As a result, Plaintiffs assert that they “are entitled to recover damages
leading up to and resulting in [] Jackson [] Srader’s wrongful death.” Id. ¶ 40.
As with Mrs. Srader’s personal injury claim, the Estate of Jackson’s wrongful death
claim as asserted against the United States “is predicated on the United States’ waiver of
sovereign immunity under the FTCA.” Ayala, 49 F.3d at 610. Relevant here, the FTCA waiver
applies only in “circumstances where the United States, if a private person, would be liable to the
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claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C.
§ 1346(b)(1); see also 28 U.S.C. § 2674 (stating that the United States is liable under the FTCA
“in the same manner and to the same extent as a private individual under like circumstances”).
Accordingly, “the government is not liable under the FTCA unless state law recognizes a
comparable liability for private persons.” Ayala, 49 F.3d at 611. The court therefore must “look
to the law of the state in which the alleged tortious activity occurred to resolve questions of
liability under the FTCA,” id., which here is New Mexico. Doc. 3 ¶ 63. If the alleged tortious
activity has no “private person analogue under New Mexico law,” the federal court lacks subject
matter jurisdiction over the claim. Poncho-Alderete v. United States, 22-CV-153, 2024 WL
2132394, at *11-12 (D.N.M. May 8, 2024) (citing Brownback, 592 U.S. at 217-18; United States
v. Agronics, 164 F.3d 1343, 1346 (10th Cir. 1999)); see also Murphy v. United States, 20-CV-
557, 2020 WL 6939716, at *3 (D.N.M. Nov. 25, 2020) (“Determining whether the alleged facts
in Plaintiff’s complaint establish the requisite private person analog for jurisdiction requires the
Court to resolve whether New Mexico law would hold a private person similarly situated to the
[government employees] negligent based on the alleged facts.”).
In determining whether this Court has subject matter jurisdiction over Plaintiffs’
wrongful death claim, the Court thus must determine whether New Mexico law would allow
such a claim to proceed against a private person similarly situated to NNMC and its doctors and
nurses based on the facts alleged in the FAC. “The [Wrongful Death] Act is the exclusive
remedy governing wrongful death actions in New Mexico.” Romero v. Byers, 872 P.2d 840, 845
(N.M. 1994). Under that Act, an action for damages may be maintained if “the death of a
person” was “caused by the wrongful act, neglect or default of another” and such “wrongful act,
neglect or default “would, if death had not ensued, have entitled the party injured to maintain an
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action and recover damages in respect thereof.” N.M. Stat. Ann. § 41-2-1 (emphasis added). In
Miller v. Kirk, the New Mexico Supreme Court addressed the specific question of “whether a
nonviable fetus is a ‘person’ within the meaning of the Act.” 905 P.2d 194, 195 (N.M. 1995).
The Court answered that question in the negative, holding “that no cause of action exists for the
wrongful death of a nonviable fetus.” Id. at 197. Rather “[a]n independent wrongful death action
for the death of a fetus requires a showing of viability at the time of injury.” Id. “Viability is
defined as ‘[t]hat stage of fetal development when the life of the unborn child may be continued
indefinitely outside the womb by natural or artificial life-supportive systems.’” Id. (quoting
Black's Law Dictionary 1565 (6th ed. 1990)). “Thus, a fetus is nonviable if it is incapable of
sustaining life outside the mother’s womb.” Id.
Here, the facts as alleged by Plaintiffs establish that Jackson was “previable,” or
“nonviable,” on May 19, 2020, when Mrs. Srader sought medical care at NNMC, Dr. Moore
performed the manual aspiration of Mrs. Srader’s uterus, and Mrs. Srader was sent home without
further tests. Doc. 3 ¶ 7 (“Mrs. Srader was then 12 weeks 2 days pregnant”); ¶¶ 25-26
(describing Jackson as “previable”). At the time of the injuries caused by NNMC and its staff,
Jackson was not at a “stage of fetal development when his life might have been continued
indefinitely outside the womb by natural or artificial life-supportive systems.” Miller, 905 P.2d at
195. It is undisputed that Jackson was “incapable of sustaining life outside [Mrs. Srader’s]
womb” at that time and, accordingly, was not a viable fetus. Id. Under Miller, Jackson thus
would not qualify as a “person” within the meaning of the Wrongful Death Act. New Mexico
law thus would not allow for a wrongful death action to be brought against a private person
similarly situated to NNMC and its doctors and nurses.
Despite this clear New Mexico authority, Plaintiffs contend that they may pursue their
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wrongful death action because, in Dobbs v. Jackson Women’s Health Org., the Supreme Court
stated that legitimate state interests for laws regulating abortions include “respect for and
preservation of prenatal life at all stages of development.” 597 U.S. 215, 301 (2022). This
statement, made in the entirely different and unrelated context of giving states the authority to
regulate abortions, does not change the fact that New Mexico law does not allow a wrongful
death action for a nonviable fetus. Plaintiffs provide no explanation for how this statement could
or would upend binding New Mexico precedent as to the reach of its Wrongful Death Act.
Indeed, in a state action brought by Plaintiffs herein against two of the Defendants herein, Nurse
Mills and Nurse Ramal, the court addressed and rejected this very argument. Estate of Jackson
Lee Srader, et al. v. Mills, et al., No. D-117-CV-2023-00171 (1st Judicial Dist. Ct. Dec. 21,
2023). Citing Miller, the court found that “Plaintiffs cannot state a wrongful death cause of
action for a non-viable fetus.” Id. The court then specifically held that “Dobbs [] did not change
the result required under New Mexico law.” Id. The court thus dismissed with prejudice
Plaintiffs’ claim for wrongful death. Id. Plaintiffs provide no basis for this Court to reach a
different conclusion.
Because no cause of action exists under New Mexico law for the wrongful death of a
nonviable fetus, and because Jackson was a nonviable fetus at the time of the injury he suffered,
Plaintiffs’ wrongful death claim has no private person analogue under New Mexico law. Without
a private person analogue, this Court lacks subject matter jurisdiction over Plaintiffs’ wrongful
death claim. Plaintiffs’ wrongful death claim against the United States thus must be dismissed
pursuant to Rule 12(b)(1).
C. 	Loss of Consortium Claims
Mr. Srader, Mrs. Srader, and R.S. assert loss of consortium claims based on Jackson’s
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tragic death. The FAC states that Mrs. Srader, Mr. Srader, and R.S. “have suffered a devastating
loss from the wrongful death of their unborn child and brother,” and are entitled to damages for
the “loss of consortium” “attendant” to his “wrongful death.” Doc. 3 ¶¶ 50, 49. As with the
personal injury and wrongful death claims, these loss of consortium claims as asserted against
the United States are “predicated on the United States’ waiver of sovereign immunity under the
FTCA.” Ayala, 49 F.3d at 610.
As explained above, the FTCA’s jurisdictional notice provision requires that a plaintiff
exhaust administrative remedies before pursuing a federal court action. This requirement applies
to each plaintiff individually: “[i]f there are multiple claimants in an FTCA case, each claimant
must individually satisfy the jurisdictional prerequisite of filing a proper claim.” Haceesa, 309
F.3d at 734. Here, Ms. Curtis and Ms. Ben submitted three administrative claim forms to HHS:
one on behalf of Mrs. Srader in her individual capacity, one on behalf of Mr. Srader in his
individual capacity, and one on behalf of Mr. and Mrs. Srader as Personal Representatives for
Jackson’s Estate. Puzzlingly, no administrative claim form was filed on behalf of R.S.
Accordingly, R.S. did not meet the jurisdictional prerequisite of filing a proper claim. Pipkin v.
United States Postal Service, 951 F.2d 272, 273 (10th Cir. 1991) (finding that plaintiff
“completely failed to exhaust her administrative remedies” where she “never asserted any
administrative claim on her own behalf”). His loss of consortium claim thus must be dismissed
for lack of jurisdiction.
As to Mrs. and Mr. Srader, on whose behalf administrative claims were filed, the Court
must determine whether their SF-95s provided sufficient notice of their loss of consortium
claims. Loss of consortium is a “direct injury . . . to a relational interest with another who was
physically injured [or died],” separate from the physical injury to [or death of] another.”
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Thompson v. City of Albuquerque, 397 P.3d 1279, 1284 (N.M. 2017); see also Haceesa, 309
F.3d at 734 (holding that relative of decedent must bring cause of action in her own individual
capacity to recover loss of consortium damages). An action for loss of consortium is “to
compensate [claimants for] an injury to a relationship they shared with the injured or deceased
person.” Fitzjerrell v. City of Gallup, 79 P.3d 836, 841 (N.M. Ct. App. 2003). To state a loss of
consortium claim, the claimant must show “that the claimant and the injured party shared a
sufficiently close relationship,” and that the “tortfeasor owe[d] a duty of care to the claimant
where it [was] foreseeable that the harm inflicted upon the injured party would damage the
relationship between the injured party and the claimant.” Wachocki v. Bernalillo Cty. Sheriff’s
Dep’t, 265 P.3d 701, 703 (N.M. 2011).
The government argues that Plaintiffs failed to provide adequate notice of Mrs. and Mr.
Srader’s loss of consortium claims, both because the SF-95s did not include an amount in the
box labeled, “Personal Injury,” and because the attachment thereto “failed to describe facts that
could have put the agency on notice of their individual claim of loss of consortium.” Doc. 13 at
8-10, 11. As noted above, the SF-95s listed a damages amount of $15,000,000.00 in the box
labeled, “Wrongful Death,” and listed that same amount in the box labeled, “Total,” but did not
list any amount in the box labeled, “Personal Injury.” Doc. 13-1. According to the government,
because they “only included a sum certain for wrongful death,” and because they failed to set
forth facts underlying a loss of consortium claim, Mrs. and Mr. Srader failed to meet the
jurisdictional notice requirements as to their loss of consortium claims, warranting their
dismissal. Doc. 13 at 11-12.
As explained above in the context of Mrs. Srader’s personal injury claim, the FTCA
requires only “facts plus a demand for money.” Lopez, 823 F.3d at 977. Mrs. and Mr. Srader’s
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SF-95s, read together with the attachments thereto, provide both.
First, the facts included in the attachment to the SF-95s submitted on behalf of Mrs. and
Mr. Srader are sufficient to demonstrate a direct and foreseeable injury to the universally
recognized relational interest between them, as parents, and Jackson, the child they were
expecting. The attachment clearly and repeatedly refers to the sense of loss that they suffered due
to the untimely and tragic death of their unborn child. Indeed, the attachment specifically states
that Mrs. Srader “requested and received grief counseling services to assist her in coping with
pregnancy loss and removal, failed removal of pregnancy, and subsequent life-threatening
infection and a repeat loss of pregnancy.” Doc. 13-2. The attachment further indicates that Mr.
and Mrs. Srader “were stunned by the reality” that their baby was fatally wounded by the
unnecessary and improperly performed manual aspiration procedure, and “went through [the]
traumatic experience” of losing him because of that procedure. Id. These facts are sufficient to
establish both that Mrs. and Mr. Srader shared a sufficiently close relationship with Jackson, and
that it was foreseeable to NNMC and its medical staff that the harm inflicted on Jackson would
damage the relationship between Jackson and his parents. Wachocki, 265 P.3d at 703.
These facts, which are the same facts alleged in the FAC, support Mrs. and Mr. Srader’s
claim that they “have suffered a devastating loss from the wrongful death of their unborn child.”
Doc. 3 ¶ 50. Accordingly, the language of Mrs. and Mr. Srader’s administrative claims “gave
DOJ notice of the facts and circumstances surrounding [their loss of consortium] claim.”
Trentadue, 397 F.3d at 853. “[M]oreover, this language “is consistent with Plaintiffs’ subsequent
allegations in their [FAC].” Id. “Thus, a government investigator would have had [an adequate]
basis to inquire into” the injury to Mrs. and Mr. Srader’s bond with Jackson. Id. Because a cause
of action for loss of consortium is “fairly implicit in the facts” recited in the attachment to Mrs.
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and Mr. Srader’s SF-95s, this Court, as it must, reads their administrative claims to encompass
such an action. Lopez, 823 F.3d at 977.
Next, as discussed in the context of Mrs. Srader’s personal injury claim, Mrs. and Mr.
Srader’s SF-95s contain “a request for a sum certain in damages,” namely, $150,000,000, which
is noted in both the “Wrongful Death” box and the “Total” box. Id. As noted above, the Court is
perplexed as to why their attorneys, experienced medical malpractice litigators, provided the
factual basis for a loss of consortium claim, which falls under the umbrella of personal injury
claims, in the attachment but did not note the $150,000,000 sum certain sought by Mrs. and Mr.
Srader in the “Personal Injury” box. Nonetheless, their notices both describe the facts and
circumstances underlying their loss of consortium claim and make clear that Mrs. and Mr. Srader
seek a total amount of $150,000,000. Accordingly, “[i]n [their] totality, [the] SF-95[s] gave
Defendants notice of the basis of the underlying tort claims and the potential value of the
claims.” Salas, 787 F. Supp. 3d at 812. Under these circumstances, the fact that the “Personal
Injury” box was left blank does not render legally inadequate the notice of their loss of
consortium claims.
The cases cited by the government do not counsel a different conclusion. As described
above, those cases restate and rely upon the very principle applied here, namely that the salient
question in determining the validity of an SF-95 is whether “the form [] give[s] constructive
notice sufficient to warrant government investigation of each claim.” Haceesa, 309 F.3d at 734.
Further, unlike Mrs. and Mr. Srader’s SF-95s, in each of the cases cited by the government, the
notice failed to set forth the facts underlying the challenged claim or describing the injury that a
particular plaintiff had suffered. See supra. Accordingly, none of the cases cited by the
government supports the proposition that leaving the “Personal Injury” box blank is alone
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sufficient to deprive this Court of jurisdiction, where the government has been put on notice of
the facts and circumstances of Mrs. and Mr. Srader’s loss of consortium claims and of its
maximum potential exposure to liability.
For these reasons, Mrs. and Mr. Srader’s SF-95s provided sufficient notice of their loss of
consortium claims to meet the requirements of § 2675(a). The Court thus has subject matter
jurisdiction over those claims. Accordingly, the Court thus will allow Mrs. and Mr. Srader’s loss
of consortium claims to proceed against the United States.
D. 	Negligent Hiring, Training, Supervision, Credentialing, and Privileging Claims
In the FAC, Plaintiffs assert that the government breached its duty to Plaintiffs “by
failing to properly operate the hospital in training and supervising their physicians and health
care providers,” namely, Dr. Moore, Dr. Attebery, Nurse Mills, Nurse Irvin, and Nurse Ramal.
Doc. 3 ¶ 54. Plaintiffs similarly assert that the government breached its duty to Plaintiffs “in their
failure of properly credentialing and privileging” Dr. Moore, Dr. Attebery, Nurse Mills, Nurse
Irvin, and Nurse Ramal. Id. ¶ 55. As with the personal injury, wrongful death, and loss of
consortium claims, these claims as asserted against the United States are “predicated on the
United States’ waiver of sovereign immunity under the FTCA.” Ayala, 49 F.3d at 610.
Relevant here, the FTCA’s waiver is limited by the discretionary function exception.
Under the discretionary function exception, the government retains its immunity from claims
“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.” 28 U.S.C. §
2680(a). In Berkovitz v. United States, 486 U.S. 531 (1988), the Supreme Court established a
two-part test for determining whether the challenged conduct falls within the discretionary
function exception. Knezovich v. United States, 82 F.4th 931, 936 (10th Cir. 2023).
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Under the first step of the Berkovitz test, the Court determines “whether the challenged
conduct involves an element of judgment or choice, in which case it is discretionary and falls
within the language of the exception.” Id. at 937 (citations omitted). If, instead, the court finds at
step one that “a federal statute, regulation, or policy specifically prescribes a course of action for
an employee to follow,” the exception does not apply. Kiehn v. United States, 984 F.2d 1100,
1102 (10th Cir. 1993) (citation omitted). If, at step one, the court determines that the conduct
involves discretionary judgment, the court must move on to step two “to determine whether that
judgment is the kind that the discretionary function exception was designed to shield,” as this
exception “protects only those discretionary actions or decisions which are based on
considerations of public policy.” Id. Whether the exception applies to discretionary actions thus
turns on whether the nature of those actions can be said to “implicate public policy concerns or
[be] susceptible to public policy analysis.” Knewzovich, 82 F.4th at 937. The Court must
“presume that a government agent’s discretionary actions are grounded in policy, and it is up to
the challenger to allege facts showing that the actions were actually not policy-oriented.”
Hardscrabble Ranch, L.L.C. v. United States, 840 F.3d 1216, 1222 (10th Cir. 2016).
Notably, the discretionary function exception applies “whether or not the discretion
involved be abused.” 28 U.S.C. § 2680(a). Accordingly, “in applying the discretionary function
exception, [the Court does] not consider whether the decision or nondecision was negligent or
wrong.” Duke v. Dep’t of Agriculture, 131 F.3d 1407, 1410 (10th Cir. 1997). “[T]he question of
negligence is irrelevant” when considering whether the discretionary exception applies. Hurst v.
United States, No. 17-CV-189, 2018 WL 10529521, at *1 (E.D. Okla. Apr. 12, 2018).
Finally, “[t]he discretionary function exception poses a jurisdictional prerequisite to suit,
which the plaintiff must ultimately meet as part of [its] overall burden to establish subject matter
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jurisdiction.” Aragon v. United States, 146 F.3d 819, 823 (10th Cir. 1998); accord Knewzovich,
82 F.4th at 927 (“Application of the discretionary function exception presents a threshold
jurisdictional determination.”). “If the challenged decision implicates [public policy] concerns,
the discretionary function exception applies, and the district court lacks jurisdiction to consider
the claim.” Id.
1. 	Negligent Hiring, Supervision, and Training
To support Plaintiffs’ negligent hiring, supervision, and training claims, the FAC does
not identify any “discretion-constraining regulation or policy” applicable to NNMC’s hiring,
supervision, or training of its medical staff; nor do Plaintiffs present evidence of any such
regulation or policy in response to the Government’s Motion. Sydnes v. United States, 523 F.3d
1179, 1185 (10th Cir. 2008). In fact, although Plaintiffs include a heading in their Response that
reads, “Negligent Hiring, Supervision and Training should not be Covered under the
Discretionary Function Exception,” the text that follows this heading addresses their
credentialing and privileging claims, and makes no mention of their hiring, supervision, or
training claims. Doc. 29 at 28-31. It is clear that “the burden under our case law to present
evidence of a discretion-constraining regulation or policy resides with the plaintiffs.” Sydnes,
523 F.3d at 1185. Plaintiffs have not met this burden and, accordingly, have failed to establish at
step one of the Berkovitz test that NNMC’s hiring, supervision, and training decisions were non-
discretionary.
Nor do Plaintiffs attempt to demonstrate that the nature of NNMC’s hiring, supervision,
and training decisions were not “the kind of conduct that can be said to be grounded in the policy
of the regulatory regime.” United States v. Gaubert, 499 U.S. 315, 329-30 (1991). Indeed, the
Tenth Circuit has “previously and unqualifiedly held that decisions regarding employment . . .
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are precisely the types of administrative action the discretionary function exception seeks to
shield.” Sydnes, 523 F.3d at 1185-86; see also Richman v. Straley, 48 F.3d 1139, 1146-47 (10th
Cir. 1995) (“Decisions regarding employment and termination are inherently discretionary,
especially where, as here, the relevant statutes provide no guidance or restrictions.”); Hurst v.
United States, No. 17-CV-189, 2018 WL 10529521, at *2 (E.D. Okla. Apr. 12, 2018) (“Federal
appellate courts stand in agreement that decisions relating to the hiring, training, and supervision
of employees are inherently a discretionary function,” including “in the context of alleged
medical malpractice”). The Tenth Circuit explained that “employment and termination decisions
are, as a class, the kind of matters requiring consideration of a wide range of policy factors,
including budgetary constraints, public perception, economic conditions, individual
backgrounds, office diversity, experience and employer intuition.” Sydnes, 523 F.3d at 1186.
In contexts analogous to the one here, “courts have held that staffing and operating
procedures of an IHS clinic are administrative decisions grounded in economic, social, or
political policies that are shielded by the discretionary function exception.” Two Eagle v. United
States, No. 20-CV-5054, 2022 WL 1243883, at *10 (D.S.D. Jan. 5, 2022); Archambault v.
United States, 82 F. Supp. 3d 961, 965-66 (D.S.D. Jan. 5, 2015) (while “there is a broad
mandate” to “provide health care to Native Americans,” “[i]mplementation of that mandate,”
including “staffing and operating procedures,” are “left to the discretion of the agencies charged
with delivering the health care”). In an FTCA case alleging medical negligence at NNMC (the
same facility at issue here), another court in this District held that NNMC’s supervision of its
medical staff was discretionary. Begay v. United States, No. 15-CV-0358, 2016 WL 6394925, at
*30 (D.N.M. Sept. 30, 2016). The court explained that “while IHS has a mission to raise the
physical, mental, social, and spiritual health of American Indians to the highest possible level,”
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“IHS regularly finds it difficult to retain physicians to serve in the Navajo area.” Id. For this
reason, “IHS’s local procurement officials [] must weigh a variety of financial, social,
organizational, and logistical considerations when deciding which of is probationary physicians
to retain.” Id. The court applied the same reasoning to the negligent hiring claims before it,
agreeing with the “[m]any district courts in all corners of the country [that] have come to the
conclusion that a physician hired as an independent contractor falls within the scope of the
discretionary-function exception.” Id. at *31. Similarly, in an FTCA case involving the Gallup
Indian Medical Center, the court found that the discretionary function exception barred the
plaintiffs’ negligent training claim, “because the manner in which a hospital trains its medical
staff to care for premature babies generally appears to be a function that carries with it a large
measure of discretion, and the plaintiffs have not identified . . . any statutes or regulations to the
contrary.” Tolbert v. Gallup Indian Medical Center, 555 F. Supp. 3d 1133, 1169 (D.N.M. 2021).
The court explained that, “[i]n general, a hospital’s training of its doctors and nurses involves
substantial policy considerations,” and in the case before it, “Gallup Medical may have
considered several factors, including cost, the training their existing staff had received elsewhere,
how regularly premature babies are born in the area that the hospital services, and how regularly
full term babies are born in the area which the hospital services, when deciding what training
regarding premature babies to provide its medical staff.” Id. at 1170.
Given this precedent, coupled with their complete failure to address whether NNMC’s
hiring, supervision, and training decisions implicate public policy concerns, the Court finds that
Plaintiffs have failed to meet their burden of establishing at step two of the Berkovitz test that the
discretionary judgment inherent in those decisions is not “the kind that the discretionary function
exception was designed to shield.” Kiehn, 984 F.3d at 1102. Because the discretionary function
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exception thus applies, this Court lacks jurisdiction to consider Plaintiffs’ claims of negligent
hiring, supervision, and training.
2. 	Negligent Credentialing and Privileging
In their response brief in opposition to the Government’s Motion, Plaintiffs argue that
NNMC’s credentialing and privileging decisions are not discretionary, but instead are “strictly
regulated by federal statutes, regulations, and policy” that “impose mandatory requirements
which allow no room for discretion.” Doc. 29 at 20-21. While Plaintiffs cite and/or attach to their
response brief various sources that they argue mandate non-discretionary conduct, none of those
sources contain specific and mandatory directives that NNMC is alleged to have violated here.
First, Plaintiffs cite to and attach the Indian Health Manual (“IHM”). Doc. 29-6. The
version of the IHM that they attach is not the version that was in effect during the relevant
period, but rather a draft that was never implemented, and thus does not have the force and effect
of a mandatory federal policy. See Doc. 32-1 ¶¶ 9-11. The version that was in effect during the
relevant time-period contains the following mandatory language regarding privileging:
“Members of the medical staff and others who must apply for clinical privileges must hold an
active and unrestricted State license, certification, or registration, as applicable to practice in
their professional field.” Doc. 32-2 at 6 ((I.H.M. § 3-1.4(C)(5)). While this provision indicates
that, “[i]n general, providers with any restrictions on any State license, certification, or
registration will not be granted medical staff membership or clinical privileges,” it qualifies this
general rule, indicating that “exceptions may be granted on a case-by-case basis by the Area
Director.” Id.
In Begay and Tolbert, another court in this district interpreted this provision as a
mandatory regulation, as it “does not leave those making [] credentialing decisions with an
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element of choice or judgment.” Begay, 2016 WL 6394925, at * 31; Tolbert, 555 F. Supp. 3d at
1171. As Begay notes, under this provision, “if a physician-applicant has a restricted license,
then he or she is not to be hired without an exception from the Area Director.” Begay, 2016 WL
6394925, at * 31. Although dismissing the remainder of the plaintiffs’ credentialing claims under
the discretionary function exception, the court in Begay allowed the plaintiffs to proceed on “a
very narrow claim based on [this] one section of the IHM.” Id.; accord Tolbert, 555 F. Supp. 3d
at 1171.
The fact that § 3-1(4)(C)(5) allows for the Area Director to make an exception on a case-
by-case basis – ostensibly using their judgment to do so – calls into question the mandatory
nature of this credentialing rule. It is not evident that a rule can be considered mandatory when,
rather than being applied uniformly across the board, it is subject to the judgment of an
individual director on a case-by-case basis. Even assuming, however, that this provision imposes
a mandatory, non-discretionary policy as to who may be granted staff membership or clinical
privileges, this provision cannot provide the evidence necessary for Plaintiffs to succeed at step
one of the Berkovitz test. Plaintiffs have unequivocally alleged that “[a]t all material times,
Defendants Suzanne Attebery, D.O., Robert Mills, RN, Reanne Irvin, RN, and Raquel R. Ramal,
RNC-MNN were licensed to practice in their specialties at Northern Navajo Medical Center.”
Doc. 3 ¶ 59. Accordingly, there is no allegation here that NNMC’s negligence in privileging and
credentialing its medical staff involved a violation of § 3-1(4)(C)(5). Because Plaintiffs do not
refute that the doctors and nurses at issue here possessed valid licenses, they have not stated a
negligent privileging and credentialing claim based on § 3-1(4)(C)(5).
Beyond § 3-1(4)(C)(5), the IHM contains no provisions regarding privileging and
credentialing that give specific direction in a way that would make those acts non-discretionary.
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Hurst, 2018 WL 10529521, at *2. Specifically, the IHM directs that “[c]linical privileges are
granted by the governing body after consultation with discipline-specific staff or consultants, as
appropriate . . . The granting of privileges must reflect the training, experience, and
qualifications of the applicant as they relate to the staffing, facilities, and capabilities of the
facility.” Doc. 32-2 at 6 ((I.H.M. § 3-1.4(F)). Although this provision uses the word, “must,” it
does not mandate any method by which NNMC is to ensure that the granting of privileges
reflects the enumerated criteria. In other words, “it leaves the decision of how to implement this
goal to the individual entity,” and thus “involves an element of judgment or choice.” Blackburn,
2021 WL 4440475, at *5. Save for the inapplicable § 3.1(4)(C)(5), the provisions of the IHM
relating to privileging and credentialing “give[] hiring and retention guidance, [but] those
decisions remain a matter of judgment and choice with the health facility.” Hurst, 2018 WL
10529521, at *2. 1
Plaintiffs also cite to 42 U.S.C. § 233(h)(1), which establishes a requirement that clinics
“implement appropriate policies and procedures to reduce the risk of malpractice and the risk of
lawsuits arising out of any health-related functions performed by the entity.” This provision,
however, “is not a specific and mandatory directive,” as it “leaves the decision of how to
implement this goal to the individual entity.” Blackburn, 2021 WL 4440475, at *5.
Further, Plaintiffs cite to and attach a September 2005 edition of the Indian Health
Service Medical Credentialing and Privileging Guide (“IHS Guide”). Doc. 29-7. The IHS Guide,
1 Further, even accepting as true Plaintiffs’ allegation that NNMC “negligently performed” the
credentialing and privileging of its medical staff, Doc. 29 at 24, this fact is irrelevant to the
applicability of the discretionary function exception. This exception applies “whether or not the
discretion involved be abused.” 28 U.S.C. § 2680(a). Thus, the Court may not consider whether
NNMC performed its credentialing and privileging decisions negligently in deciding whether the
discretionary function exception applies. Duke, 131 F.3d at 1410.
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however, contains the following language: “This guidebook is meant to be a resource manual,
not a statement of IHS policy.” Doc. 32-2 at 2. Moreover, the IHS Guide contains the following
non-mandatory language regarding privileging: “Contract, consultant, and locum tenens
providers should be privileged by the same mechanisms as other providers when they practice
inside the IHS facility.” Doc. 29-6 at 2. Thus, the IHS Guide provides no specific and mandatory
directives that Defendants allegedly violated in privileging and credentialing its medical staff.
Nor do the federal statutory and regulatory provisions cited by Plaintiffs provide any such
specific and mandatory directives. See 42 C.F.R. § 482.22(c)(6) (requiring medical staff to adopt
and enforce bylaws that include “criteria for determining the privileges to be granted to
individual practitioners and a procedure for applying the criteria,” but leaving discretion as to the
text of the bylaws, the criteria to be set, and the procedure for the application thereof); 42 C.FR.
§ 482.12(a)(6) (requiring the governing body of the medical staff to “ensure the criteria for
selection are individual character, competence, training, experience, and judgment,” but leaving
to the governing body discretion to evaluate those subjective criteria); 42 U.S.C. § 482.12(a)(6)
(requiring that patient care be “provided by or in accordance with the orders of a practitioner
who meets the medical staff criteria and procedures or the privileges granted, who has been
granted privileges in accordance with those criteria by the governing body, and who is working
within the scope of those granted privileges,” but not mandating how privileges are to be granted
or the criteria therefor). Under Tenth Circuit precedent, the “broad statutory duties” set forth in
these statutory provisions do not “prescribe a specific and mandatory course of conduct.”
Blackburn, 2021 WL 4440475, at *5.
Plaintiffs cite to the deposition testimony of an individual provided in a separate,
unidentified legal matter, to support their otherwise unsupported argument as to the mandatory
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nature of these statutes and regulations. But “Plaintiffs have not provided, nor has the Court
found, any case in which a court has concluded from only deposition testimony that a mandatory
directive prescribed—or proscribed—certain conduct by a Government actor.” Jahr v. United
States, 259 F. Supp. 3d 1158, 1164 (W.D. Wash. 2017) (emphasis in original).
Plaintiffs’ reliance on the Joint Commission on Accreditation of Healthcare
Organizations (“Joint Commission”) is also unavailing. The Joint Commission is “an
independent, not-for-profit organization,” and “health care organizations, programs, and services
voluntarily pursue accreditation and certification.” Doc. 32 at 9 n.4. The version of the IHM in
effect during the relevant period provides that “[e]ach medical staff member who provides
medical services must meet the medical staff credentialing and privileging standards of a
nationally recognized accrediting/certifying body such as the Joint Commission, the American
Association for Ambulatory Health Care, or the Centers for Medicare and Medicaid Services.”
Doc. 32-1 at 5 (IHM § 3-1.3(A)) (emphasis added). Accordingly, the IHM does not specifically
require compliance with the Joint Commission’s standards. In any event, Plaintiffs do not point
to any standards of the Joint Commission that NNMC violated in credentialing and privileging
its medical staff.
Finally, Plaintiffs cite to a provision of the New Mexico Administrative Code. Plaintiffs,
however, can overcome the discretionary function exception at step one of the Berkovitz test only
where “a federal statute, regulation, or policy specifically prescribes a course of action for an
employee to follow.” Kiehn, 984 F.2d at 1102 (emphasis added). New Mexico statutory
provisions thus are not a proper basis to challenge the discretionary nature of the government’s
privileging and credentialing decisions. See Miller v. United States, 992 F.3d 878, 886 (9th Cir.
2021) (holding that Berkovitz makes clear that “a plaintiff cannot rely on the premise that state
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law specifically prescribes a course of action for an employee to follow” in challenging the
application of the discretionary function exception).
In summary, Plaintiffs have not identified any “discretion-constraining regulation or
policy” that NNMC violated in privileging and credentialing the medical staff at issue in this
case. Sydnes, 523 F.3d at 1185; accord Tolbert, 555 F. Supp. 3d at 1171 (finding, in medical
malpractice case analogous to the instant one, that the statutes and regulations to which plaintiffs
cited, other than IHM § 3-1(4)(C)(5), “do not avoid the discretionary-function exception,
because they involve the consideration of alternatives, the weighing of factors, or the application
of policy priorities bounded by practical concerns, such that the language leaves to the
decisionmaker’s discretion how best to fulfill the regulations”). Plaintiffs thus fail to establish at
step one of the Berkovitz test that NNMC’s privileging and credentialing decisions were non-
discretionary.
Plaintiffs do not address the second step of the Berkovitz test in their response brief and
thus do not provide any basis for the Court to find at this second step that the nature of NNMC’s
privileging and credentialing decisions were not “the kind of conduct that can be said to be
grounded in the policy of the regulatory regime.” Gaubert, 499 U.S. at 329. As noted above, this
Court must presume that NNMC’s discretionary privileging and credentialing decisions are
“grounded in policy” unless Plaintiffs come forward with “facts showing that the [decisions]
were actually not policy-oriented.” Hardscrabble Ranch, 840 F.3d at 1222. Plaintiffs have not
met this burden. Decisions as to what privileges and credentials to grant to medical staff at an
IHS facility fall easily within the category of employment decisions that the Tenth Circuit has
held to be “precisely the types of administrative action the discretionary function exception seeks
to shield.” Sydnes, 523 F.3d at 1185-86; see also Two Eagle, 2022 WL 1243883, at *10
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(“[S]taffing and operating procedures of an IHS clinic are administrative decisions grounded in
economic, social, or political policies that are shielded by the discretionary function exception.”).
The Court thus finds that Plaintiffs have failed to meet their burden of establishing at step two of
the Berkovitz test that the discretionary judgment inherent in NNMC’s privileging and
credentialing decisions is not “the kind that the discretionary function exception was designed to
shield.” Kiehn, 984 F.3d at 1102. Because the discretionary function exception thus applies, this
Court lacks jurisdiction to consider Plaintiffs’ claims of privileging and credentialing.
E. 	Punitive Damages
In the FAC, Plaintiffs seek punitive damages for Defendants’ “reckless disregard for the
safety of Baby Jackson [] and Mrs. Srader.” Doc. 3 ¶ 41. The FTCA, however, explicitly states
that the United States “shall not be liable for interest prior to judgment or for punitive damages.”
28 U.S.C. § 2674. The Supreme Court has interpreted this provision to bar the recovery of “what
are legally considered ‘punitive damages’ under traditional common-law principles,” i.e.,
damages whose “recoverability [] depend[s] upon [] proof that the defendant has engaged in
intentional or egregious misconduct” and where the purpose is “to punish.” Molzof v. United
States, 502 U.S. 301, 312 (1992) (emphasis in original). “Under New Mexico law, punitive
damages may be awarded only when the conduct of the defendant may be said to be malicious,
willful, reckless, wanton, fraudulent or in bad faith and are ‘awarded for the limited purposes of
punishment and to deter others from the commission of like offenses.’” Hernandez v. United
States, No. 21-CV-0738, 2022 WL 376318, at *2 (D.N.M. Feb. 8, 2022) (quoting UJI 13-1827
NMRA). Accordingly, punitive damages under New Mexico law – and the punitive damages
Plaintiffs seek for Defendants’ “reckless disregard” – fall squarely within the category of
punitive damages barred by § 2674.
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Plaintiffs concede that “the FTCA does not allow punitive damages to be paid by a
federal entity.” Doc. 29 at 32-33. Nonetheless, Plaintiffs insist that the government “should be
subject to punitive damages for its utter indifference in properly staffing and managing its Indian
Health Service hospitals, including NNMC.” Id. Without explanation or analysis, Plaintiffs
contend that § 2674’s prohibition on punitive damages is “an unconstitutional limitation on the
United States’ liability.” Id. at 33. “Plaintiffs neither cite which constitutional provision 28
U.S.C. § 2674 allegedly violates, nor provide any supporting caselaw.” Tolbert, 555 F. Supp. 3d
at 1173 (addressing and rejecting identical argument made by counsel for Plaintiffs herein in a
similar FTCA case). Further, “[p]unitive damages have their critics and, if anything, the
Constitution restrains punitive damages rather than protecting [them].” Id. (collecting cases).
In any event, this Court cannot accept Plaintiffs’ invitation to commit reversible error.
Because the FTCA, as interpreted by the Supreme Court, expressly prohibits recovery for
precisely the punitive damages requested here, this Court lacks subject matter jurisdiction over
Plaintiffs’ request to recover punitive damages from the government. To the extent that the FAC
seeks such damages against the Unites States, it must be dismissed pursuant to Rule 12(b)(1).
F. 	Applicability of the NMMMA Damages Cap
In the FAC, Plaintiffs assert that the NMMMA damages cap should not be applied to
damages recovered from the government for the negligence of its employees at NNMC. Doc. 3
¶¶ 68-70. Plaintiffs acknowledge that this assertion is “contrary” to “applicable case law.” Doc.
29 at 33. Indeed, in Haceesa, the Tenth Circuit reversed this Court’s ruling that New Mexico’s
$600,000 recovery cap was inapplicable to a suit brought against the government under the
FTCA for the negligence of a nurse and health care administrators at the Northern New Mexico
Navajo Hospital in Shiprock. 309 F.3d at 729-30. In finding this Court’s decision erroneous, the
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Tenth Circuit held 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.” Id.
Haceesa is indistinguishable from the instant case. Accordingly, this Court would commit
reversible error if it acceded to Plaintiffs’ request that it find the NMMMA recovery cap
inapplicable here.
The Court is required by Haceesa to apply the $600,000 recovery cap to any damages
recovered from the government. Accordingly, to the extent that the FAC seeks damages above
that cap from the Unites States, it must be dismissed for lack of jurisdiction pursuant to Rule
12(b)(1).
II. 	Nurse Mills’s Motion
Given the absence of enumerated counts or causes of action in the FAC, it is difficult to
determine with certainty which claims Plaintiffs intend to assert against Nurse Mills, who is “a
contract nurse working at NNMC.” Doc. 50 at 4 n.1. Based on the allegations and assertions in
the FAC, the Court interprets the FAC to assert against Nurse Mills a wrongful death claim on
behalf of Jackson’s Estate, loss of consortium claims on behalf of Mrs. Srader, Mr. Srader, and
R.S., and a personal injury claim on behalf of Mrs. Srader, and to seek to recover punitive
damages from him. Id. at 4. As noted above, the government did not move to substitute the
United States as a defendant for Nurse Mills as it did for Dr. Moore, Dr. Attebery, and Nurse
Irwin. Accordingly, Plaintiffs’ claims are asserted against Nurse Mills as pendent state law
claims. Nurse Mills seeks dismissal of these claims on the basis that the FAC fails to meet the
fair notice standard set by Rule 8(a) of the Federal Rules of Civil Procedure. Nurse Mills also
seeks dismissal of the wrongful death claim for the additional reason that the FAC fails as a
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matter of law to state a wrongful death claim.
First, as to the wrongful death claim, the Court agrees that Plaintiffs have not, and cannot,
state a claim upon which relief can be granted. As explained above, New Mexico’s Wrongful
Death Act is “the exclusive remedy governing wrongful death actions in New Mexico.” Romero,
872 P.2d at 845. Also as explained above, under that Act, “no cause of action exists for the
wrongful death of a nonviable fetus.” Miller, 905 P.2d at 195. Rather “[a]n independent wrongful
death action for the death of a fetus requires a showing of viability at the time of injury.” Id.
Here, the facts as alleged by Plaintiffs establish that Jackson was a “previable,” rather than a
viable, fetus on May 19, 2020, when Mrs. Srader sought medical care at NNMC and Dr. Moore
performed the manual aspiration of Mrs. Srader’s uterus. Doc. 3 ¶¶ 7, 25-26. Accordingly, as a
matter of law, Plaintiffs cannot assert a wrongful death claim based on Jackson’s death.
Plaintiffs contend that Dobbs allows them to pursue their wrongful death action against
Nurse Mills. But as explained above, the Supreme Court’s statement in Dobbs that legitimate
state interests for laws regulating abortions include “respect for and preservation of prenatal life
at all stages of development,” 597 U.S. at 301, made in the entirely different and unrelated
context of giving states the authority to regulate abortions, does not change the fact that New
Mexico law does not allow a wrongful death action for a nonviable fetus. As noted above,
Plaintiffs provide no explanation for how this statement could or would upend binding New
Mexico precedent as to the reach of its Wrongful Death Act. Indeed, also as noted above, the
state court has already addressed and rejected this very argument in a state case brought by
Plaintiffs against Nurse Mills and Nurse Ramal. Estate of Jackson Lee Srader, et al. v. Mills, et
al., No. D-117-CV-2023-00171 (1st Judicial Dist. Ct. Dec. 21, 2023). Plaintiffs provide no basis
for this Court to reach a different conclusion on the same claim against the same Defendant
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under the same controlling law.
No cause of action exists under New Mexico law for the wrongful death of a nonviable
fetus. Jackson was a nonviable fetus at the time of his injury. Accordingly, Plaintiffs’ wrongful
death claim asserted against Nurse Mills fails as a matter of law and must be dismissed pursuant
to Rule 12(b)(6).
Next, the Court agrees with Nurse Mills that the FAC fails to meet the Rule 8 pleading
standard with regard to his alleged liability. Rule 8 requires “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This requirement
ensures that “the defendant [has] fair notice of what the . . . claim is and the grounds upon which
it rests.” Twombly, 550 U.S. at 555. As noted above, the Tenth Circuit has interpreted Rule 8 to
require that a complaint “make clear exactly who is alleged to have done what to whom.”
Robbins, 519 F.3d at 1248. Thus, a complaint must state “the facts that support the claims,”
making clear “what each Defendant did to Plaintiff, when each Defendant did it, [and] how each
Defendant’s actions harmed . . . Plaintiff.” Martinez v. ABQ Code Enforcement, 25-CV-600,
2025 WL 3754135, at *3 (D.N.M. Dec. 29, 2025). Allegations that “do not properly allege
personal participation of the individual defendants [] do not provide sufficient ‘fair notice’ of
what the . . . claim is against them ‘and the grounds upon which it rests.’” Cohen v. Howard, No.
23-CV-2104, 2024 WL 2137944, at *8 (D. Colo. Apr. 2, 2024) (quoting Twombly, 550 U.S. at
555).
Here, the FAC fails to include any allegations of personal participation by Nurse Mills in
the events underlying Plaintiffs’ claims. There are no factual allegations describing what Nurse
Mills did, to whom he did it, when he did it, or the harms to Plaintiffs that he caused. As
described above, the only individuals at NNMC identified by Plaintiffs as having seen, spoken
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to, or treated Mrs. Srader are Dr. Attebery, Dr. Moore, and Nurse Ramal. Plaintiffs do not allege
any interactions between Mrs. Srader and Nurse Mills, or any actions taken or omissions made
by Nurse Mills; nor do they provide any factual basis to establish his role in, or responsibility
for, any part of the chain of events on which Plaintiffs’ claims are based. In short, the FAC
attributes no specific conduct to Nurse Mills. See Cohen, 2024 WL 2137944, at *8. Accordingly,
the FAC provides no factual basis to support Plaintiffs’ claims that Nurse Mills was one of the
employees and contractors of NNMC who caused Mrs. Srader’s “traumatic pain [and] suffering”
and the “unnecessary death of the Srader’s unborn baby,” failed to “conduct any laboratory
studies, fetal heart tones or ultrasound,” and “did not possess or apply the knowledge and use the
skill and care ordinarily used by reasonably well-qualified health care providers of the same field
of medicine practicing under similar circumstances, giving due consideration to the locality
involved, thus breaching their duty to their patients Mrs. Srader and Baby Jackson [].” Doc. 3 ¶¶
2, 9, 47. The FAC thus fails to provide Nurse Mills with fair notice as to basis of the claims
asserted against him and, accordingly, runs afoul of Rule 8.
In their response brief filed in opposition to Nurse Mills’s Motion, Plaintiffs attempt to
cure these pleading deficiencies by stating that Nurse Mills “treated Jennifer Srader on May 19,
2020,” and that he “noted Jennifer Srader arrived with a possible miscarriage” and complained
“of mild to moderate lower abdominal pain and vaginal bleeding.” Doc. 53 at 2. The Court need
not decide whether these statements would be sufficient to cross the line between possibility and
plausibility of entitlement to relief, as Plaintiffs’ “attempt to remedy [their] pleading deficiencies
through a response to a motion to dismiss is futile.” Walz v. California, No. 25-CV-00004, 2025
WL 1685798, at *5 (D. Utah May 30, 2025) “[I]t is a ‘well-established’ principle ‘that in
determining whether to grant a motion to dismiss, the district court . . . [is] limited to assessing
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the legal sufficiency of the allegations contained within the four corners of the complaint.’” Id.
(quoting Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995)). Accordingly, “[i]t is axiomatic
that the complaint may not be amended by the briefs in opposition to a motion to dismiss.” Id.
(citations omitted). Plaintiffs’ attempt to describe, in their response brief, Nurse Mills’s
involvement in the events underlying Plaintiffs’ claims thus does not serve to remedy the
pleading deficiencies described herein.
Dismissal of the FAC as to Nurse Mills under Rule 12(b)(6) for failure to comply with
Rule 8 thus is appropriate. Nonetheless, the Court will allow Plaintiffs 60 days to file a motion
for leave to amend Mrs. Srader’s personal injury claim and Plaintiffs’ loss of consortium claims
against Nurse Mills, which motion must attach a proposed amended complaint. If Plaintiffs
choose to file a motion for leave to amend, and Nurse Mills does not consent in writing thereto, it
will be “within the discretion of the Court to grant or deny leave to amend.” Foman v. Davis, 371
U.S. 178, 182 (1962). While the Court should “freely give leave when justice so requires,” Fed.
R. Civ. P. 15(a)(2), the Court may refuse leave to amend “upon a showing of undue delay, bad
faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party, or futility of amendment.” Castleglen, Inc. v. Resolution Tr.
Corp., 984 F.2d 1571, 1585 (10th Cir. 1993) (citing Foman, 371 U.S. at 182). Notably, “[a]
proposed amendment is futile if the complaint, as amended, would be subject to dismissal.”
United States ex rel. Barrick v. Parker-Migliorini Int’l, LLC, 878 F.3d 1224, 1230 (10th Cir.
2017) (quoting Barnes v. Harris, 783 F.3d 1185, 1197 (10th Cir. 2015)).
If their proposed amended complaint contains the same deficiencies identified herein,
Plaintiffs’ motion for leave to amend will be denied. Plaintiffs are reminded that an amended
complaint must provide factual allegations regarding Nurse Mills’s personal participation in the
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events underlying Mrs. Srader’s personal injury claims and Plaintiffs’ loss of consortium claims,
identifying what Nurse Mills did, when he did it, and how his actions caused the specific harms
suffered by each Plaintiff. If Plaintiffs continue to assert that Nurse Mills “did not possess or
apply the knowledge and use the skill and care ordinarily used by reasonably well-qualified
health care providers of the same field of medicine practicing under similar circumstances,
giving due consideration to the locality involved,” they must set forth factual allegations to
support this assertion. If Plaintiffs do not timely file a motion to amend, Nurse Mills will be
dismissed as a Defendant from this matter.
CONCLUSION
Mrs. Srader’s personal injury claim and Mrs. and Mr. Srader’s loss of consortium claims
against the United States will not be dismissed and they may pursue those claims against the
United States. The remainder of Plaintiffs’ claims against the United States will be dismissed for
lack of subject matter jurisdiction, for the reasons set forth above. Plaintiffs’ claims against
Nurse Mills will be dismissed for failure to state a claim, for the reasons set forth above. With
respect to Mrs. Srader’s personal injury claim and Plaintiffs’ loss of consortium claims, Plaintiffs
will be given 60 days within which to file a Rule 15 motion for leave to amend as against Nurse
Mills.
IT IS THEREFORE ORDERED that Defendant United States’ Motion to Dismiss in
Lieu of Answer [Doc. 13] is GRANTED in part and DENIED in part, as follows: (1) Mrs.
Srader’s personal injury claim is not dismissed and may proceed; (2) the Estate of Jackson Lee
Srader’s wrongful death claim is dismissed pursuant to Rule 12(b)(1); (3) Mrs. Srader and Mr.
Srader’s loss of consortium claims are not dismissed and may proceed; (4) R.S.’s loss of
consortium claim is dismissed pursuant to Rule 12(b)(1); (5) Plaintiffs’ negligent hiring, training,
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supervision, credentialing, and privileging claims are dismissed pursuant to Rule 12(b)(1); (6)
Plaintiffs may not recover punitive damages from the government; and (7) the NMMMA
damages cap applies to any recovery from the government.
IT IS FURTHER ORDERED that Defendant Robert Mills, RN’s Motion to Dismiss in
Lieu of Answer [Doc. 50] is GRANTED, as follows: (1) Plaintiffs’ claims against Nurse Mills
are dismissed in their entirety pursuant to Rule 12(b)(6); and (2) Plaintiffs have 60 days within
which to file a Rule 15 motion for leave to amend, but their proposed amended complaint may
contain only a personal injury claim on behalf of Mrs. Srader and loss of consortium claims.
DATED this 27th day of April 2026.
MARTHA VÁZQUEZ
Senior United States District Judge
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