Minimal FTCA Notice and Spousal Claims:
Ellsworth v. Dallas TX DVA and the Scope of Administrative Presentment

I. Introduction

Ellsworth v. Dallas TX Department of Veterans Affairs, No. 25‑40183 (5th Cir. Nov. 20, 2025), addresses two recurring and practically important issues under the Federal Tort Claims Act (FTCA):

When and how a spouse’s own claims (such as property damage, loss of consortium, or emotional distress) are properly presented to a federal agency for administrative exhaustion; and
When a medical‑malpractice claim “accrues” for limitations purposes—particularly where the patient suspects negligence before receiving a formal diagnosis of the ultimate injury (here, kidney disease).

The case arises from pro se claims by Howard and Theresa Ellsworth against the United States, the Dallas VA, and the Plano VA. Mr. Ellsworth alleged negligent treatment of his diabetes from 2016–2022 caused or contributed to his kidney disease and related harms. Mrs. Ellsworth alleged derivative injuries, including emotional distress, loss of consortium, and property damage (mattress, washer/dryer, linens) allegedly ruined by her husband’s incontinence.

The district court dismissed all claims: for Mrs. Ellsworth, on the ground that she failed to exhaust administrative remedies; and for both plaintiffs, as barred by the FTCA’s two‑year statute of limitations. It also denied further leave to amend. The Ellsworths appealed.

The Fifth Circuit affirms the dismissal, but partially corrects the district court’s reasoning. It holds that:

The district court erred in concluding that Mrs. Ellsworth entirely failed to exhaust; her property‑damage claim was sufficiently presented through her husband’s SF‑95.
However, both spouses’ claims are ultimately time‑barred because the FTCA claim accrued no later than February 2020, and administrative presentment in March 2022 came too late.
The denial of further leave to amend, and the dismissal with prejudice, were proper given the incurable limitations defect and prior opportunities to amend.

In the process, the opinion clarifies, for the first time at the circuit level, how far a single FTCA administrative claim can go in exhausting derivative or spousal claims, and it applies long‑standing accrual doctrine in a way that is particularly unforgiving to late‑filed medical‑malpractice claims.

II. Factual and Procedural Background

A. Underlying Medical Treatment and Alleged Injury

From 2016 to 2022, VA medical staff treated Mr. Ellsworth for diabetes. By late 2019 and early 2020, he experienced worsening symptoms: elevated A1C levels, extreme thirst, excessive urination, and nighttime incontinence.

Critically for the limitations analysis, the opinion notes that by September 2019 and February 2020:

Mr. Ellsworth believed his treatment was inadequate and explicitly confronted his VA doctor, accusing him of negligence and misdiagnosis.
He connected his symptoms (including uncontrolled urination and incontinence) to what he perceived as substandard medical care, telling the doctor that if the doctor “do[ne] his job the right way” and “actually act[ed] like a doctor,” he would not be experiencing these problems.

He later received a diagnosis of kidney disease in June 2022, and he argued that date should control claim accrual.

B. Administrative Claims

March 2022 – Inspector General complaint.
In March 2022, Mr. Ellsworth filed a written complaint with the VA Office of Inspector General (OIG) alleging negligent diagnosis and treatment of his diabetes at the Dallas and Plano VA facilities.
July 2022 – SF‑95 to VA General Counsel.
He then filed a Standard Form 95 (SF‑95) in July 2022 with the VA’s Office of General Counsel.
- He listed himself as “claimant.”
- He listed his wife as a witness and “property owner.”
- The narrative itemized property damages of $28,030.09 (mattress, washer/dryer, linens) attributable to his incontinence, and described her logistical role in his care.
- The personal injuries and claimed damages were directed to his own physical injury and suffering.
The OIG found no wrongdoing in June 2022, and VA General Counsel formally denied the SF‑95 in March 2023, advising Mr. Ellsworth of his right to sue in district court within six months.
August 2023 – Lawsuit filed.
In August 2023, within six months of the March 2023 denial, the Ellsworths filed a pro se FTCA action alleging negligent medical care causing Mr. Ellsworth’s kidney disease and associated harms.
June 2024 – Mrs. Ellsworth’s own SF‑95.
After suit was already pending, Mrs. Ellsworth filed her own SF‑95 in June 2024, asserting the same factual allegations and stating she held Mr. Ellsworth’s power of attorney.
- The VA denied this claim on two grounds: (a) it was duplicative of her husband’s earlier claim; and (b) the agency lacked jurisdiction because the couple had already elected the judicial remedy by suing.

C. District Court Rulings

On the government’s Rule 12(b)(1) and 12(b)(6) motions, the magistrate judge recommended:

Dismissing Mrs. Ellsworth’s claims for lack of subject‑matter jurisdiction for failure to exhaust administrative remedies;
Dismissing both plaintiffs’ FTCA claims under Rule 12(b)(6) as time‑barred by the two‑year statute of limitations in 28 U.S.C. § 2401(b); and
Denying leave to amend as futile.

The magistrate also recommended dismissing alleged VA regulatory violations (sovereign immunity) and Bivens claims (failure to state a claim); those theories were abandoned on appeal. The district court adopted the recommendations in full and dismissed with prejudice. The Ellsworths appealed.

III. Summary of the Fifth Circuit’s Opinion

The Fifth Circuit (Judge Higginbotham writing, joined by Judges Ho and Douglas) affirms the judgment, but while correcting a key jurisdictional error.

Exhaustion (Mrs. Ellsworth).
The panel holds that the district court was wrong to say Mrs. Ellsworth entirely failed to exhaust:
- Her separate personal‑injury / emotional‑distress / loss‑of‑consortium claims were not exhausted by her husband’s SF‑95; simply naming her as “spouse,” “witness,” or “property owner” did not put the VA on notice of independent personal injuries.
- But the SF‑95 did give the VA sufficient notice of a property‑damage claim belonging to her, because:
  - She was listed as “property owner”; and
  - The form specifically described and quantified damage to household items (community property under Texas law) at the couple’s residence.
- Thus, at least a community‑property damage claim for both spouses was exhausted.
Statute of limitations (both plaintiffs).
Despite this exhaustion error, the Fifth Circuit affirms dismissal under Rule 12(b)(6) because all claims are time‑barred:
- An FTCA claim must be presented to the agency within two years after it accrues. 28 U.S.C. § 2401(b).
- In a medical‑malpractice case, accrual occurs when the plaintiff knows or should know both of the injury and its cause—not when the plaintiff later learns the precise medical label (here, kidney disease).
- Based on Mr. Ellsworth’s own allegations (including his explicit statements accusing VA doctors of negligence and misdiagnosis in early 2020), his claim accrued no later than February 2020.
- His earliest written administrative complaint in March 2022 fell outside the two‑year window, so his FTCA claim—and by extension his wife’s derivative property‑damage claim—are “forever barred.”
Leave to amend and prejudice.
The court upholds denial of further leave to amend:
- The plaintiffs had already amended twice, including once after seeing a motion to dismiss.
- No amendment could cure the untimely presentment problem; therefore amendment would be futile.
- Dismissal with prejudice was appropriate.

Thus, the Fifth Circuit clarifies FTCA presentment standards for spouses, but ultimately bars the Ellsworths’ claims on limitations grounds.

IV. Detailed Analysis

A. FTCA Administrative-Exhaustion and Spousal Claims

1. Statutory framework

The FTCA waives sovereign immunity for certain torts committed by federal employees acting within the scope of their employment, allowing injured parties to sue the United States as if it were a private party. But before suing, a claimant must:

Present a written claim to the “appropriate Federal agency,” and
Have that claim denied (or deemed denied after six months).

This requirement is codified at 28 U.S.C. § 2675(a). The Fifth Circuit reiterates that “failure to exhaust administrative remedies is a jurisdictional bar under the FTCA,” citing McNeil v. United States and its own decision in Coleman v. United States.

The Supreme Court and Fifth Circuit have described the notice requirement as “minimal”:

In Adams v. United States, the Fifth Circuit explained that a claim is sufficient if it states the “skeletal facts” and a “sum certain,” such that the agency can investigate and consider settlement.
Pleasant v. United States ex rel. Overton Brooks VA Hospital reiterates that the requirement is remedial and intended to facilitate fair resolution and reduce court caseloads, not to create technical traps for unwary claimants.

But what if one spouse files the SF‑95 and the other spouse wants to maintain her own claim (for loss of consortium, emotional distress, or property damage)? Must she be named as a claimant, or is it enough to be mentioned somewhere on the form?

2. Conflicting district court approaches before Ellsworth

The Fifth Circuit candidly acknowledges that it had not yet “address[ed] this issue squarely,” and that district courts in the circuit (and elsewhere) had adopted differing rules.

a. Strict-presentment approach

Some courts required a separate, explicit administrative claim for each spouse, especially for loss of consortium or other derivative personal‑injury claims, reasoning that:

Under Texas law, a loss‑of‑consortium claim is a separate and independent cause of action belonging to the non‑injured spouse (Whittlesey v. Miller);
Listing a person merely as “spouse” or “witness” does not signal that they assert their own claim; and
FTCA waivers of sovereign immunity must be construed narrowly (Gomez-Perez v. Potter).

Examples include:

Wilke v. United States (S.D. Miss.): dismissing wife’s loss‑of‑consortium claim where husband’s SF‑95 merely identified her as spouse.
Storey v. United States and Poynter v. United States (N.D. Miss. and W.D. La.): similar results.
Chickaway v. United States (S.D. Miss.): father’s derivative wrongful‑death claim barred where mother’s administrative claim did not mention him, even though state law made him a statutory beneficiary.
Out of circuit, Pipkin v. U.S. Postal Serv. (10th Cir.): wife’s loss‑of‑consortium claim failed where she did not file her own administrative claim.

b. More relaxed “minimal notice” approach

Other courts emphasized the FTCA’s remedial purpose and its “minimal” notice standard, exercising greater flexibility. They found jurisdiction where:

The spouse was listed as a claimant or co‑claimant on the SF‑95;
The narrative clearly described the spouse’s independent injury (e.g., consortium damages); or
The nature of the claim and the amount sought unmistakably implied multiple claimants (for example, large wrongful‑death damages suggesting many statutory beneficiaries).

Illustrative cases (mostly from the Eastern District of Louisiana) include:

Eskine v. United States: wife’s consortium claim allowed where the SF‑95 identified her as a claimant and specified her consortium damages, even though she did not file a separate SF‑95.
Champagne v. United States: wrongful‑death claims of multiple plaintiffs permitted although not all signed the SF‑95, because they were listed as claimants and the agency was aware of their claims.
Green v. United States: siblings’ wrongful‑death claims allowed despite not being named as claimants on the SF‑95; the magnitude of damages alerted the government to multiple claimants.
Lightell v. United States: wife’s loss‑of‑consortium claim deemed exhausted where her address was listed and the government had already been sent a complaint from a related lawsuit including her claim.
Forrest v. United States: son’s wrongful‑death claim allowed where the amount of damages and circumstances gave adequate notice of his interest, even though he did not file a separate claim.

These decisions stress that the purpose of the requirement is to enable the government to investigate and settle, not to block meritorious claims on technicalities.

3. The Fifth Circuit’s synthesis and holding in Ellsworth

Ellsworth attempts to harmonize these strands under the overarching principle from Pleasant and Adams: minimal, fact‑specific notice sufficient to allow investigation and valuation.

The panel distills the presentment requirement into two core elements:

The writing must bring to the government’s attention facts sufficient to enable it to thoroughly investigate potential liability and conduct settlement negotiations; and
The claim must place a value (sum certain) on the claim.

Whether this is satisfied is “necessarily a fact-specific inquiry.”

a. No exhaustion for Mrs. Ellsworth’s personal-injury / consortium claims

The court begins with the Ellsworths’ own characterization on appeal: they insist that Mrs. Ellsworth suffered “her own distinct injury: emotional distress and loss of consortium.”

The panel finds that nothing in Mr. Ellsworth’s administrative filings:

Describes Mrs. Ellsworth as a victim or claimant;
Identifies any physical or emotional injury to her personally; or
Specifically mentions “loss of consortium,” “emotional distress,” or comparable harms.

Instead, the SF‑95 and OIG complaint:

List her as a witness and “property owner”;
Note her role in scheduling and managing her husband’s care; and
Describe damage to their property attributable to his incontinence.

Merely being listed, standing alone, is not enough to signal an independent claim for personal injury or consortium. On this point, the Fifth Circuit essentially adopts the stricter line of cases: an SF‑95 that names a spouse as a mere relation or witness, with no allegations of her own injuries and no specific claim for her damages, does not exhaust her independent personal‑injury or loss‑of‑consortium claims.

The court also rejects the argument that Mrs. Ellsworth’s power of attorney altered this analysis. Even assuming she had authority to act as her husband’s representative, that only enables her to present his claim; it does not, without more, give the VA notice that she asserts distinct injuries of her own.

b. Exhaustion of spousal property-damage claim

The court then draws a careful distinction: while the SF‑95 did not give notice of personal claims, it did give notice of property damage claims held by both spouses.

Key facts:

The SF‑95 lists damages of $28,030.09 for specific household items (mattress, washer/dryer, linens).
The property is associated with the address identified as their home.
Mrs. Ellsworth is listed on the form as a “property owner.”

Under Texas law, as the panel notes (citing Farmers Texas County Mutual Insurance Co. v. Okelberry), property acquired during marriage is presumed to be community property owned equally by both spouses. So, absent evidence to the contrary, damage to household goods at the marital residence affects both spouses’ ownership interests.

From that, the court reasons:

The SF‑95 put the government on notice that both Mr. and Mrs. Ellsworth asserted a property‑damage claim.
Thus, at least as to that community-property damage, Mrs. Ellsworth’s claim was administratively exhausted.

In this way, the court embodies the “minimal notice” concept: because the form specifically identifies her as a property owner, describes the property, and gives a specific dollar figure, the agency could investigate and evaluate potential liability to both spouses for that loss.

c. Timing defect of Mrs. Ellsworth’s later SF‑95

The court also briefly addresses, and rejects, the effect of her later, June 2024 SF‑95:

The FTCA requires presentment of the claim to the agency before filing suit. 28 U.S.C. §§ 2401(b), 2675(a).
Filing an SF‑95 after initiating a lawsuit cannot retroactively cure the failure to exhaust or extend the limitations period.
The Fifth Circuit cites Cook v. United States ex rel. U.S. Dep’t of Labor to confirm that presentment is a “jurisdictional prerequisite to filing suit.”

4. Practical guidance post-Ellsworth

From a practitioner’s perspective, Ellsworth yields several clear lessons:

For loss of consortium / emotional distress / other personal injuries of a spouse:
- Do not rely on being listed merely as “spouse,” “witness,” or “emergency contact” on another person’s SF‑95.
- The SF‑95 (or other written claim) must:
  - Identify the spouse as a claimant or person asserting a claim;
  - Describe the spouse’s own injuries in the narrative; and
  - Include a sum certain for those injuries.
For property‑damage claims owned jointly by spouses:
- Listing the spouse as a “property owner” and specifying damage to community property, with a total dollar amount, will likely be considered sufficient to exhaust a claim for both spouses, at least under Texas’s community‑property regime.
- That said, the safest course remains to:
  - Either list both spouses as claimants, or
  - File separate SF‑95 forms, particularly if there is any question about ownership or if separate damages are claimed.
Timing and sequence matter:
- All claims—primary and derivative—must be presented within two years of accrual, and before filing suit.
- Subsequent SF‑95s filed after suit commences cannot cure earlier failures.

B. Accrual and the FTCA Statute of Limitations in Medical Malpractice

1. Governing principles: Kubrick, Johnson, and MacMillan

The FTCA provides that “[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues.” 28 U.S.C. § 2401(b).

The Supreme Court’s leading case, United States v. Kubrick, holds that in the medical‑malpractice context, a claim accrues when the plaintiff:

Knows of the injury, and
Knows (or in the exercise of reasonable diligence should know) of its cause.

The plaintiff does not need to know that the treatment was legally negligent or have full understanding of the medical diagnosis; it is enough that he knows “the critical facts” of injury and causation.

The Fifth Circuit has followed this rule in prior cases:

Johnson v. United States: restates that a medical‑malpractice claim accrues when the plaintiff has enough information to discover both injury and cause.
MacMillan v. United States:
- Emphasizes that a plaintiff need not know the legal or medical significance of the injury.
- Accrual occurs when the plaintiff has “knowledge of facts that would lead a reasonable person (a) to conclude that there was a causal connection between the treatment and injury or (b) to seek professional advice, and then with that advice, to conclude that there was a causal connection.”

In short, suspicion of a causal connection between treatment and harm can be enough to start the clock—even if the plaintiff has not yet received a formal diagnosis of the ultimate condition.

2. Application in Ellsworth: accrual by February 2020

The central factual question is when Mr. Ellsworth had sufficient information to:

Recognize his symptoms as an “injury”; and
Link those symptoms to what he believed to be negligent medical care.

The Fifth Circuit accepts the government’s argument that this threshold was crossed no later than February 2020, based largely on Mr. Ellsworth’s own allegations:

He experienced uncontrolled urination and nighttime incontinence.
He knew his A1C levels were elevated, and he knew these symptoms were serious.
He confronted his doctor, accused him of misdiagnosis and poor care, and stated that he would not be in this condition if the doctor had properly treated him.
He believed the doctor had admitted misdiagnosis in September 2019 after Mr. Ellsworth confronted him about “gross negligence.”

From these facts, the court concludes:

Mr. Ellsworth had “knowledge of facts that would lead a reasonable person” to suspect a causal connection between the treatment and his injury, within the meaning of MacMillan.
He had, by February 2020 at the latest, sufficient knowledge to trigger accrual, even though he did not yet know that his injury could be labeled “kidney disease.”

Thus:

His claim accrued in February 2020.
The two‑year limitations period expired in February 2022.
His first written administrative complaint (OIG complaint) in March 2022, and his SF‑95 in July 2022, were untimely.

The same accrual date applies to Mrs. Ellsworth’s property‑damage claim because, as the court notes, their property was damaged by his incontinence during the same time period. Her claim, too, accrued in February 2020 and is therefore also barred.

3. “Jurisdictional” characterization and Wong

The panel describes the FTCA’s two‑year time limits as “jurisdictional,” citing Flory v. United States (5th Cir. 1998) and then affirms dismissal under Rule 12(b)(6). That terminology is somewhat in tension with the Supreme Court’s later decision in United States v. Wong (2015), which held that § 2401(b)’s FTCA time bar is nonjurisdictional and subject to equitable tolling.

Because the opinion is based solely on the record and the panel did not discuss equitable tolling, it appears to:

Continue to treat compliance with § 2401(b) as effectively mandatory and fatal if not met; but
Channel the dismissal through Rule 12(b)(6), consistent with a nonjurisdictional limitation (as in many post‑Wong cases).

Whatever the label, the practical effect for the Ellsworths is the same: limitations is a complete bar. The panel did not find, and the plaintiffs did not meaningfully assert, any basis for equitable tolling, and the pro se status and internal complaints to the VA did not stop the clock.

For practitioners, the key takeaway remains: do not rely on continuing treatment, delayed diagnosis, or ongoing internal complaints to delay accrual once the patient suspects malpractice. The operative date is when the plaintiff knows of the injury and reasonably suspects the government’s role in causing it.

C. Leave to Amend and Dismissal With Prejudice

Under Federal Rule of Civil Procedure 15(a)(2), courts should “freely give leave” to amend when justice so requires, but they may deny leave where:

Amendment would be futile (i.e., could not cure the legal defect), or
The plaintiff has repeatedly failed to cure deficiencies despite prior opportunities (Stripling v. Jordan Prod. Co.; United States ex rel. Willard v. Humana Health Plan of Tex.).

In Ellsworth:

The plaintiffs had already amended twice:
- Once as a matter of course, and
- Once after the government filed a motion to dismiss, giving them notice of the limitations issue.
The central defect—untimely presentment more than two years after accrual—cannot be cured by any additional factual allegations.

Consequently, the Fifth Circuit concludes there was no abuse of discretion in denying further leave to amend or in dismissing with prejudice. The policy favoring liberal amendment has no purchase where the underlying problem is an immutable statute-of-limitations bar.

D. Treatment of Pro Se Litigants

The opinion reiterates that pro se filings must be “liberally construed,” citing Erickson v. Pardus, and applies that principle in two ways:

By reading the SF‑95 charitably to recognize that it did put the government on notice of a property‑damage claim held by both spouses; and
By thoroughly recounting and considering the plaintiffs’ own narrative of events, including their informal confrontations with VA doctors.

Yet the court also makes clear that liberal construction does not override:

Jurisdictional requirements of administrative presentment; or
Statutory time bars for accrual and presentment.

Pro se litigants, particularly in FTCA and medical-malpractice contexts, remain bound by rigid timing rules and technical prerequisites. Ellsworth thus illustrates both the modest benefit and the sharp limits of liberal construction.

V. Complex Concepts Simplified

The following explanations are geared to readers without specialized legal training.

1. Federal Tort Claims Act (FTCA)

Normally, you cannot sue the federal government for negligence because of “sovereign immunity.” The FTCA is a law that partially waives this immunity. It allows people to sue the United States when a federal employee, acting in the scope of their job, commits negligence that would make a private person liable under state law.

2. Administrative Presentment and SF‑95

Before you can file an FTCA lawsuit in court, you must:

Send a written claim to the responsible federal agency (for example, the VA);
Explain what happened and why you think the government is responsible; and
State how much money you want in damages (“sum certain”).

The government uses a standardized form, SF‑95, but any written notice with the right information can work. This step—“presenting” the claim—is supposed to give the agency a fair chance to investigate and potentially settle without going to court.

3. Derivative Claims, Loss of Consortium, and Emotional Distress

A “derivative” claim is a claim that depends on someone else’s injury. Common examples:

Loss of consortium: a spouse claims that because of the injured spouse’s condition, they lost companionship, support, and marital relations.
Emotional distress (derivative): a spouse suffers emotional harm because of what happened to the injured spouse.

Under Texas law, a spouse’s loss‑of‑consortium claim is a separate legal claim belonging to that spouse. That means it usually must be clearly asserted and valued on the SF‑95 to be preserved.

4. Community Property vs. Separate Property (Texas)

In Texas, most property acquired during marriage is “community property,” owned equally by both spouses. Damage to community property (like household goods) can therefore give both spouses a claim. Personal injury damages, however, are usually considered the injured spouse’s separate property.

Ellsworth leverages this distinction:

Damage to household items was treated as a community property loss, exhausted for both spouses by Mr. Ellsworth’s SF‑95; but
Loss of consortium and emotional distress belonged solely to Mrs. Ellsworth and were not adequately presented on the form.

5. Accrual of a Claim

“Accrual” means the moment when the law treats a claim as starting for purposes of deadlines. For FTCA medical cases, the claim accrues when:

You know you have been injured (you are experiencing harmful symptoms or effects); and
You know, or reasonably suspect, that the injury is connected to medical treatment you received.

You do not have to know:

The exact medical name of your condition (e.g., “kidney disease”); or
That the doctor was legally negligent, as opposed to just unlucky or imperfect.

In Ellsworth, the court held that once Mr. Ellsworth had severe symptoms and directly told his VA doctor he believed the doctor’s poor care caused them, the claim had accrued—even though he was not yet formally diagnosed with kidney disease.

6. Jurisdictional vs. Nonjurisdictional Rules

A “jurisdictional” rule goes to the court’s basic power to hear a case. If a requirement is jurisdictional and not met, the court must dismiss, and parties cannot waive or excuse it.

A “nonjurisdictional” or “claim-processing” rule can still be mandatory, but may be waived, forfeited, or sometimes excused by doctrines like equitable tolling (stopping the clock in extraordinary circumstances).

While the panel loosely calls the FTCA time limits “jurisdictional,” modern Supreme Court precedent (United States v. Wong) treats them as nonjurisdictional but still strict. Either way, the Ellsworths’ delayed filing is fatal to their claims.

VI. Likely Impact and Future Significance

1. Clarifying FTCA Presentment for Spousal and Derivative Claims

The most concrete doctrinal contribution of Ellsworth is its clarification—now binding within the Fifth Circuit—of when a spouse’s claims are exhausted by another spouse’s SF‑95.

Simply being named on the form as a spouse, witness, or helper is not enough to preserve independent personal‑injury or consortium claims.
But being listed as a property owner, combined with a narrative and valuation of community‑property damage, can be enough to preserve a property‑damage claim for both spouses.

This nuanced holding harmonizes the stricter and more lenient district court lines by:

Requiring explicit or at least clearly implied notice for independent injuries; while
Recognizing that detailed property-damage descriptions and community‑property principles can suffice to notify the government of multiple claimants.

Practitioners in the Fifth Circuit will need to ensure that each spouse’s distinct injuries and damages are clearly spelled out on the administrative claim, especially for consortium or emotional distress, to avoid exhaustion challenges.

2. Reinforcing a Strict Accrual Standard in Medical Malpractice

By finding accrual as early as February 2020 based on the plaintiff’s suspicion and confrontation of his doctor, the Fifth Circuit sends a strong, perhaps unforgiving, message:

Once a patient believes they have been harmed by negligent medical care and expresses that belief, the limitations clock is likely running.
A subsequent, more precise diagnosis (kidney disease) does not restart the clock.
Ongoing treatment and internal complaints within the VA do not pause the clock either.

This may particularly impact veterans and other recurring patients of federal medical systems who may:

Live with chronic or evolving conditions;
Initially attribute symptoms to the underlying disease rather than negligent care; or
Attempt to resolve issues internally before resorting to legal action.

In practice, attorneys advising such patients must be vigilant: when a client reports that they told their doctor “you misdiagnosed me” or “you are neglecting my care,” that conversation might mark claim accrual for FTCA purposes.

3. Pro se litigants and procedural traps

Ellsworth underscores the difficulty pro se litigants face navigating FTCA requirements:

They are held to technical exhaustion and limitations rules even when they have no legal training.
The VA’s own internal complaints mechanisms (Inspector General, patient advocates, etc.) do not substitute for a timely SF‑95 or equivalent written presentment.
Repeated amendment of a complaint cannot cure an earlier failure to timely present the claim.

The tension between the FTCA’s supposed “remedial” nature and its strict procedural prerequisites is especially sharp in a case like this, where the plaintiffs alleged serious and ongoing harms but mis‑timed their administrative filings.

4. Potential areas of future litigation

While Ellsworth resolves a specific subset of questions, it also leaves room for further disputes:

Other family members’ claims. How will the presentment rule apply to children, parents, or other relatives in wrongful‑death or serious‑injury contexts? Must each be listed as a claimant, or can some be inferred from context and amount of damages?
Community property in other states. The opinion relies on Texas community‑property presumptions. Other states’ marital property rules could affect whether joint property‑damage claims are implied from a single SF‑95.
Equitable tolling post‑Wong. The opinion does not address tolling, but future litigants may test whether extraordinary circumstances (such as misleading agency communications or severe incapacity) can save late‑filed FTCA complaints in the Fifth Circuit.

VII. Conclusion

Ellsworth v. Dallas TX DVA is significant both for what it holds and for how it applies existing FTCA principles.

On the exhaustion front, the decision:

Clarifies that a spouse’s independent personal‑injury or loss‑of‑consortium claims are not exhausted merely by being named as a “spouse” or witness on another person’s SF‑95.
Recognizes, however, that where the SF‑95 lists a spouse as a property owner, describes damage to community property, and states a specific dollar amount, the government has sufficient notice of that spouse’s property‑damage claim.

On the limitations front, the opinion:

Faithfully applies Kubrick, Johnson, and MacMillan to hold that accrual turns on knowledge of injury and suspected cause, not on the later formal diagnosis of a particular disease; and
Confirms that untimely presentment under § 2401(b) is fatal to FTCA claims, even for pro se litigants and even where medical treatment was ongoing.

Practitioners should view Ellsworth as a warning and a guide:

File FTCA administrative claims early—within two years of when the client first suspected malpractice, not when the diagnosis was finally confirmed.
Spell out each claimant’s specific injuries and damages on the SF‑95, including spouses’ loss‑of‑consortium and emotional‑distress claims.
Do not assume that being named tangentially on someone else’s form will preserve a separate cause of action.

Although the Ellsworths ultimately lose their case on timeliness grounds, the Fifth Circuit’s detailed treatment of administrative presentment and accrual provides important guidance for future FTCA litigants and courts within the circuit, shaping the contours of government liability for medical negligence—especially in the VA healthcare system—for years to come.

Minimal FTCA Notice and Spousal Claims: Ellsworth v. Dallas TX DVA and the Scope of Administrative Presentment