Dixon v. United States of America, No. 1:2014cv00205 - Document 16 (S.D. Ga. 2015)
Court Description: ORDER denying Defendant's 6 Motion to Dismiss for Lack of Jurisdiction; and, denying Plaintiff's 11 Motion for Hearing. Signed by Judge J. Randal Hall on 02/23/2015. (jah)
Download PDF
<![CDATA[
Dixon v. United States of America Doc. 16 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION KENNETH K. DIXON, * * Plaintiff, * v. * CV 114-205 * UNITED STATES OF AMERICA, * * Defendant. * ORDER During his military ("Plaintiff") was required him to Veterans Affairs rendered seek service a Iraq, paraplegic, extensive Medical in care Center a with ("VAMC") Kenneth R. condition the in Dixon that Charlie Augusta, has Norwood Georgia. After seeking outside medical assistance for an infection in his left hip, Plaintiff became aware that an old gauze sponge was left in his body, at the required which he alleges occurred during a surgery performed VAMC. by Plaintiff the ultimately denied. Federal filed Tort an administrative Claims Following the Act denial, Court for negligence and negligence per se. is the Government's Motion to Dismiss, Court lacks subject matter claim, ("FTCA")/ he which filed suit in is was this Now before the Court wherein it avers that this jurisdiction because Plaintiff to administratively exhaust his claim under the FTCA. More specifically, as failed (Doc. 6.) the Government contends that Plaintiff referred Dockets.Justia.com to a 2011 or 2012 surgery as Complaint reasons Court in this stated Court herein, additionally refers the finds unnecessary and therefore 11) to a 2010 Government's that a while his operation. motion hearing in Plaintiff's motion is For DENIED. this for a treatment matter hearing is (doc. BACKGROUND at a the forty-six-year-old VAMC in Augusta, disabled Georgia veteran, following spinal injury sustained while deployed in Iraq. 1111 5-9.) Plaintiff alleges that following his received a (Compl., severe Doc. 1, spinal injury, he became susceptible to pressure sores in his hip and heels, required "extensive medical treatment at the VA[.]" To treat these sores, Specifically, (Id. which HH 10- Plaintiff appears to have undergone a number of surgeries between 2010 and 2012.2 A.) The Plaintiff's Medical Treatment1 Plaintiff, 11.) the is DENIED. I. A. the source of his injury, Plaintiff alleges (Id. 1f 12; Doc. 6, Ex. that following a 2010 surgery, he "had continuous problems with his left" hip, which was *at least partially open, oozing liquid, 1 As will be discussed below, no presumptive Plaintiff's allegations in this factual attack on and not properly truthfulness attaches to jurisdiction. The Court relies on Plaintiff's allegations in his Complaint for contextual purposes only. Nothing in this Court's Order should be construed as accepting, or rejecting, the truth of these allegations. 2 Plaintiff's complaint refers to a 2010 surgery and a 2011 hospital stay. (Compl. m 12, 16.) Additionally, as discussed in greater detail below, Plaintiff's SF-95 form and attached letter from counsel referred to surgeries in 2011 and 2012. (Doc. 6, Ex. A.) healing." (Compl. H 14.) In 2011, Plaintiff spent six weeks' at the VAMC for treatment for his right hip and heels. At that time, K 16.) examined and noted to be "his left hip was (Id. oozing liquid from what was assumed to be an infection[.]" On December 31, to 2012, Plaintiff address the (Id.) underwent issues with his surgery at left hip. a private hospital (Id. H 19.) Prior to this surgery, Plaintiff had suffered fevers for months and lost over twenty-five percent of his body weight. U 20.) During the operation, the surgeon discovered 6, Ex. B.) Until this December 2012 a gauze (Id. sponge inside the old surgical site in the left hip. Doc. H 22; surgery, Plaintiff alleges that the VAMC performed all procedures on his hip, no other medical providers in control of that area. 23.) have Plaintiff additionally contends that his indicated to him that his amputated at the hip area[.]" B. leg will leaving (Compl. H "medical providers likely have to be (Id. U 32.) Procedural History On February 5, 2014, 95") left (Id. Plaintiff filed a Standard Form 95 ("SF- with the Department of Veterans Affairs alleging negligence and medical malpractice. (Doc. 6, Ex. A.) In his claim, On the SF-95 form, listed his damages as $10 million. Plaintiff alleges the following: Claimant Charlie is a veteran Norwood sustained while performed on his that VA in on duty was Augusta, in left hip. being GA Iraq. During treated for A this he at injuries surgery surgery the he was in August of 2011 gauze was left in his body. The gauze was discovered on a second surgery in Dec 31, 2013 [sic] . He was not made aware of the February 13, 3 013 [sic] . This is negligence and medical malpractice. (Id.) Thus, surgery as was a the source of his injury. In from that Plaintiff's doctors, Joseph letter, surgeries, nurses and T. Mr. until per se Esq., Rhodes stated all other to be staff a gauze Plaintiff's that in that sponge during 2011 or one 2012, participated inside Mr. counsel. of the in said Dixon's left (Id.) On August 15, claim. (Doc. 6, 2014, the VA denied Plaintiff's administrative Ex. Court on October 28, C.) Plaintiff then initiated suit 2014 under the FTCA. leaving the gauze sponge inside him; in this Plaintiff makes claims of negligence and negligence per se based on (1) of Attached to the SF-95 form Rhodes, "believed surgery negligently left hip." incident case the SF-95 form refers specifically to an August 2011 letter (Id.) a (2) three allegations: failing to properly treat his surgical site; and (3) failing to discover and diagnose the foreign object as the cause of his condition. (Compl. H 28.) Pursuant 12(b)(1), Government to Federal has moved Rule to of dismiss Civil Procedure Plaintiff's complaint, the arguing that he did not exhaust his administrative remedies because he did not properly present notice to the VA prior to bringing suit. II. There subject are two matter types court of STANDARD challenges jurisdiction under and factual attacks. the LEGAL merely Rule to a district 12(b)(1): facial A facial attack on a complaint to look and see if court's [the] attacks "require[s] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the the allegations in his complaint purposes of the motion." (11th Cir. 1990) alteration in "challenge[s] fact, original). pleadings, of and On existence irrespective taken Lawrence v. Dunbar, (citation the are the the of as subject pleadings, quotation hand, a matter and for 919 F.2d 1525, internal other true 1529 omitted, factual attack jurisdiction matters outside such as testimony and affidavits, are considered." in the Id. (internal quotation marks and citation omitted). Here, the Government makes a factual attack, Plaintiff's FTCA claims administrative remedies. jurisdiction, weigh the a court's evidence jurisdiction also action." F.3d 1261 for on Cir. findings whether the merits Copenhaver, failure factual attack of power to make depends (11th barred "On a implicates Garcia v. 1256, are contending that the When the exhaust subject matter of facts M.D.'s, facts and to attack factual of plaintiff's Bell & Assocs., 1997) . to on cause of P.A., related 104 to jurisdiction do not implicate the merits of the plaintiff's legal claim, then "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id. (internal related proper to quotation marks jurisdiction course of do action omitted) . implicate for the But the district when merits, the facts then court ... is "[t]he to find that jurisdiction exists and deal with the objection as a direct attack on the merits Id. (internal whether Plaintiff of the plaintiff's case [.]" quotation marks omitted). Here, the Court finds that the question exhausted his administrative remedies implicates only the adequacy of notice, not the merits of his tort claims. Thus, the Court will review and weigh the evidence presented to determine whether subject matter established. jurisdiction over Accordingly, "no the challenged presumptive claims has truthfulness been attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." (quoting Williamson 1981)).3 Plaintiff v. Tucker, bears the jurisdiction exists challenge subject matter States, 3 to 285 F.3d 947, Decisions of the in the face Court of See Bonner v. Prichard, F.2d 404, burden of the jurisdiction. 951 (11th Cir. announced prior to October 1, Circuit. 645 Lawrence, Appeals 1981, of 919 F.2d at 412-13 (5th establishing Government's OSI, Inc. 1529 Cir. that factual v. United 2002). for the Fifth Circuit are binding precedent 661 F.2d 1206, 1209 (11th Cir. that were in the Eleventh 1981). III. The of FTCA creates a the United States, for 460 States F.3d limited waiver of to 1318, liability under DISCUSSION suits 1324 in tort. (11th Cir. the Act is a the sovereign immunity Dalrymple 2006) . "negligent v. United The prerequisite or wrongful act or omission of any employee of the Government while acting within the scope of United his office or employment, States, if a private under circumstances person, would be where liable to the the claimant in accordance with the law of the place where the act or omission against occurred." a private administrative allows the 28 person, procedure agency U.S.C. § 1346(b)(1). however, claimants involved to Congress must receive Unlike has exhaust. a claim, Section 2675(a) provides that created This suit an procedure investigate, perhaps settle the dispute before a suit is filed. § 2675. a and See 28 U.S.C. "[a]n action shall not be instituted upon a claim against the United States . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency[.]" the Failure appropriate to timely file an administrative agency results in dismissal of the claim with plaintiff's claim because this filing is a jurisdictional prerequisite. v. United States, 630 F.2d 1068, 1071 (5th Cir. 1980). Pursuant to § 2675, an administrative claim shall be agency deemed to receives have been presented when a from a claimant, his duly Federal authorized Rise agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident; and the title or legal capacity of the person signing, and is accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative. 28 C.F.R. mandate § 14.2(a). to mean Courts that to amount of 289 investigate damages (5th Cir. respect States, (1) the Circuit and Adams v. In addition, legal claim. 514 F.3d 1194, 1200 have provide construed this written notice (2) a sum certain United States, notice must be Turner (11th Cir. ex rel. 2008). for requested $10 million in damages. whether his administrative the 615 F.2d 284, satisfied with Turner v. United There is no dispute that Plaintiff properly stated a sum certain in his SF-95 form: is to sufficient information to enable the claim, sought. 1980) . each to this a plaintiff must the agency that includes agency of he The question before the Court filing sufficiently notified the Government of the nature of his legal claims. A. Administrative Notice The notice Standard requirement serves a number benefiting claimants, agencies, and the courts. intended litigation, "to ease while court making congestion it and possible for of purposes, First, notice is avoid the unnecessary Government to expedite the fair settlement of tort claims asserted against the United States." Adams, 615 F.2d at 8 288 (quoting S. Rep. No. 89- 1327 (1966), addition reprinted to this "provid[es] for individuals and in 1966 efficiency more fair claimants U.S.C.C.A.N. purpose, and when the equitable they deal 2515, notice with the ("Congress, United States, therefore, procedural hurdles 168 F.3d 1252, enacted section before potential 1255 of private Government or Id. ; see also (11th Cir. 2675(a) litigants, In requirement treatment are involved in litigation with their Government." Burchfield v. 2516). not 1999) to but to the FTCA, place facilitate early disposition of claims."). When a claimant informational sues asymmetry the exists rectify this asymmetry. with an assess opportunity its bargaining as between under the parties. That is, notice provides to potential table Government conduct an liability an informed party Notice can investigation, and so clear the Government independent exposure, a approach that the settlement negotiations may begin in earnest before an action is ever filed in court, must if do more desired. But to achieve Suarez v. United States, 1994), simply agencies, refer to an 22 F.3d 1064, attachment of purpose, notice of a "potential 1066 (11th Cir. medical records — like courts, cannot be forced to dig for material facts "like pigs, F.2d 955, dual than merely inform the Government lawsuit," or its hunting for truffles." 956 (7th Cir. 1991); see United States v. Dunkel, Burchfield, 168 F.3d at 927 1257 ("Nor does our interpretation of the statute mean that an agency will be on notice of all the facts contained in voluminous records presented specific by a claimant, sources of if the injury."). claimant has Likewise, a not pointed to cannot be claimant obligated to prove his claim or provide a detailed preview of his lawsuit 1255. at this preliminary After all, stage. See Burchfield, 168 the Government will often have better access many of the details surrounding the underlying incident. especially true F.3d at where, as here, the claim centers error conducted in the midst of a surgery. to This is on an alleged Moreover, it certainly would not be "fair and equitable" to private claimants if federal agencies the private were allowed claimants "to while shift retaining burden only of the investigation responsibility evaluating the information supplied by the claimant." F.2d at Adams, to of 615 290 n.9. Under this Circuit's generous reading of § 2675(a), a claimant need not state every material fact underlying every legal claim. See Burchfield, 168 F.3d at 1256 ("An agency cannot use an overly technical reading of the language of a claim as a reason to turn a blind eye to facts that become obvious when it investigates the alleged events."); see also Brown v. United States, 1157, 1161 (11th Cir. 1988) 838 F.2d ("Compelling a claimant to advance all possible causes of action and legal theories is *overly technical' and may frustrate requirement." the (internal purpose of quotations 10 the section and 2675(a) citation notice omitted)). Instead, it suffices if the material facts pertinent to the claim are either expressly set out or so closely related to those stated that the agency may reasonably be expected to uncover them in the course of its investigation. see also Rise, See Burchfield, 63 0 F.2d at transfer between hospitals 1071 168 F.3d at 1256-57; (finding that mere mention of a in claimant's administrative claim was sufficient to notify the Army of possible liability for negligent referral because an produced . . . evidence inadequate"). "investigation . . . should that have [other] been facilities may have "The test is an eminently pragmatic one: as long as the language of an administrative claim serves due notice that the agency should investigate (potentially tortious) claim requirement." 221 F.3d 34, 40 the possibility conduct . . . , it Dynamic Image Techs., (1st Cir. 2000); accord of particular fulfills the notice-ofInc. Rise, v. United States, 630 F.2d at 1071 (holding that notice is adequate if it "brings to the Government's attention facts sufficient to enable it its potential liability with the claimant"). and to conduct thoroughly to investigate settlement negotiations In sum, an FTCA claimant is required only to provide such rudimentary details as to allow for a proper agency investigation, and the Government is deemed to be on notice of any legal This claim reasonably flexible approach suggested following "is in keeping with 11 that investigation. the original purpose behind the v. B. filing of an administrative Sec'y of Dep't of Defense, Plaintiff's The reason 984 F.2d 16, 19 review of Defendant's cannot Plaintiff's exact injury. earlier of is medical that details as he was or 2012." no because it unconscious sponge was expected to know at the time of the the letter from Plaintiff's counsel attached to to the date it refers to a surgery "believed to be in 2011 as (Doc. 6, Ex. A (emphasis added).) Bearing in mind that under the FTCA's minimal Plaintiff had Plaintiff acknowledges form clearly indicates some uncertainty as the injury, it records but asserts that he cannot be Moreover, the SF-95 1993) . identify specifically who or when the left in his body, those (1st Cir. challenge was only notified of surgeries after 2011. that he Santiago-Ramirez Claim gravamen to claim." need only sufficient to "bring[] enable it liability," Rise, 630 Plaintiff's notice was Plaintiff's notice makes to the Government's thoroughly F.2d at to 1071, adequate. no Defendant mention of attention facts investigate the a requirements its Court is surgery potential finds that correct that in 2010, but exhaustive fact pleading is not the standard by which the notice is to be judged. Here, Plaintiff's SF-95 and accompanying letter clearly refer the to injury as a foreign object Plaintiff's body during one of his previous difficult for the Court to imagine that 12 being surgeries. left in It is the Government could not adequately the investigate date. If the his claim, even Government with chose to confusion ignore regarding any previous surgeries knowing that Plaintiff would not be conscious during the alleged injury, Burchfield, that F.3d 168 fault at does 1256 not ("An lie agency with Plaintiff. cannot use an See overly technical reading of the language of a claim as a reason to turn a blind eye to facts that become obvious when it investigates the alleged events.") accompanying This letter is simply especially referred to so given the that the as one surgery "believed to be" during a particular date range. The uncertainty of that language demonstrates that the exact date was unknown, Defendant should have reviewed notice Plaintiff's clearly relevant and surgical records. Plaintiff's informed undergone a number of surgeries at was found in the surgical site, of a severe infection. records would have alleged injury. such an "overly the VAMC, VA that he had that a gauze sponge and that the gauze was the source Even a basic investigation of Plaintiff's set The the sight on Court will technical" the not potential dismiss reading of source this the of his case based on notice statute, particularly where it pertains to a plaintiff who could not — even with excessive diligence — say with any degree of certainty which surgery caused frustrate one the of injury. the dual A contrary purposes 13 of holding the would notice clearly statute: to "provid[e] for more fair individuals and claimants and equitable when they treatment deal with the are involved in litigation with their Government." of private Government See Adams, or 615 F.2d at 288 (quoting S. Rep. No. 89-1327 (1966), reprinted in 1966 U.S.C.C.A.N. 2515, 2516). IV. CONCLUSION This simply is not the type of case intended to be dismissed for inadequate notice. Government of voluminous medical Burchfield, Plaintiff's a Plaintiff potential lawsuit records. Cf. 168 F.3d at 1257. notice did and more did Suarez, not 22 Accordingly, contained than sufficient apprise simply F.3d refer at 1066 the Court finds factual the to and that context to adequately alert the Government of the legal claims waged in this action. Therefore, over those claims. (doc. 6) matter is DENIED. is this Court has subject matter jurisdiction The Government's motion to dismiss, Moreover, unnecessary and therefore, Court finds that a hearing in this therefore Plaintiff's motion for a hearing (doc. 11) is DENIED. ORDER February, ENTERED at Augusta, Georgia, this ^^is^^aay of 2015. HALL UNITED STATES DISTRICT JUDGE 7HERN DISTRICT OF GEORGIA 14
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
