Fuqua v. V.A. Hospital

Filing 61

MEMORANDUM OPINION: the court will grant the United States' Motion for Summary Judgment and enter summary judgment in the United States' favor. The court will enter a separate final judgment. Signed by Magistrate Judge Herman N Johnson, Jr on 11/4/21. (BJL)

FILED
2021 Nov-04 PM 12:07
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
RAY ANTHONY FUQUA,
Plaintiff
vs.
UNITED STATES OF AMERICA,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. 5:18-cv-00334-HNJ

MEMORANDUM OPINION
This medical malpractice action, filed pursuant to the Federal Tort Claims Act
(FTCA), proceeds before the court on the United States’ Motion for Summary
Judgment. (Doc. 55). As discussed herein, the United States prevails in its contention
that Plaintiff Ray Anthony Fuqua cannot succeed on his malpractice claim because he
has not offered expert testimony addressing the United States’ alleged breach of the
standard of care. Therefore, the court will grant the United States’ Motion for Summary
Judgment and enter summary judgment in the United States’ favor.
SUMMARY JUDGMENT STANDARD
Pursuant to the Federal Rules of Civil Procedure, “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The party seeking summary judgment bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions

of the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, which it believes demonstrate the absence of a
genuine issue of material fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.
1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
Rule 56 “mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. “In such a
situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure
of proof concerning an essential element of the nonmoving party’s case necessarily
renders all other facts immaterial.” Id. at 322-23.

Thus, if the nonmoving party will

bear the burden of proof at trial, “the moving party may discharge [its] ‘initial
responsibility’ [at summary judgment] by showing that there is an absence of evidence
to support the nonmoving party’s case.” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,
1260 (11th Cir. 2004) (citing United States v. Four Parcels of Real Property, 941 F.2d 1428,
1437-38 (11th Cir. 1991)). Or, the movant may sustain its initial summary judgment
burden by submitting “affidavits or other similar materials negating the opponent’s
claim,” Celotex, 477 U.S. at 323 (emphasis in original), that is, “by showing that the
nonmoving party will be unable to prove its case at trial.” Hickson Corp., 357 F.3d at
1260.

2

If the movant sustains its initial summary judgment burden, a non-moving party
demonstrates a genuine issue of material fact by producing evidence by which a
reasonable fact-finder could return a verdict in its favor. Greenberg v. BellSouth Telecomms.,
Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (citation omitted). The non-movant sustains
this burden by demonstrating “that the record in fact contains supporting evidence,
sufficient to withstand a directed verdict motion.” Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1116 (11th Cir. 1993). In the alternative, the non-movant may “come forward
with additional evidence sufficient to withstand a directed verdict motion at trial based
on the alleged evidentiary deficiency.” Id. at 1116-17; see also Doe v. Drummond Co., 782
F.3d 576, 603-04 (11th Cir. 2015), cert. denied, 136 S. Ct. 1168 (2016).
The “court must draw all reasonable inferences in favor of the nonmoving party,
and it may not make credibility determinations or weigh the evidence.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citations omitted). “‘Credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge.’” Id. (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986)). “Thus, although the court should review the
record as a whole, it must disregard all evidence favorable to the moving party that the
jury is not required to believe.” Reeves, 530 U.S. at 151 (citation omitted). “That is, the
court should give credence to the evidence favoring the nonmovant as well as that
‘evidence supporting the moving party that is uncontradicted and unimpeached, at least

3

to the extent that that evidence comes from disinterested witnesses.’” Id. (citation
omitted).
There exists no issue for trial unless the nonmoving party submits evidence
sufficient to merit a jury verdict in its favor; if the evidence is merely colorable or is not
significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249.
The movant merits summary judgment if the governing law on the claims or defenses
commands one reasonable conclusion, id. at 250, but the court should deny summary
judgment if reasonable jurors “could return a verdict for the nonmoving party.” Id. at
248. That is, a court should preserve a case for trial if there exists “sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249.
PROCEDURAL HISTORY
On March 1, 2018, Ray Anthony Fuqua filed this case pro se, asserting that the
Veterans Affairs (VA) Hospital in Birmingham, Alabama, performed a knee surgery on
him that did not adequately treat his problem and caused pain and a limp. (Doc. 1).
On October 29, 2018, this court denied Defendant’s motion to dismiss Fuqua’s case as
untimely (Doc. 24), and on November 13, 2018, the court referred the case to this
District’s Civil Pro Bono Panel. (Doc. 26). After the initial attorney randomly selected
from the panel declined to represent Fuqua, a second reviewing attorney from the pro
bono panel entered an appearance for Fuqua on December 7, 2018. (Doc. 28). On
March 20, 2019, that attorney filed a First Amended Complaint, asserting a medical

4

malpractice claim against the United States of America pursuant to the FTCA. (Doc.
34).
The parties proceeded with discovery, but on March 25, 2021, Fuqua’s attorney
filed a motion to withdraw as his new employment with a Public Defender’s office
precluded him from continuing to provide pro bono representation to Fuqua in this civil
matter. (Doc. 51). Fuqua did not object to the motion to withdraw despite receiving
notice of it. Therefore, the court granted the motion to withdraw on April 15, 2021,
and directed the Clerk to again enter Fuqua as proceeding pro se. (Doc. 54). Afterwards,
the court referred Fuqua’s case to a pro bono veterans clinic at a law school for possible
representation, but the clinic declined to represent Fuqua.
On May 14, 2021, The United States filed its motion for summary judgment,
arguing that Fuqua cannot sustain his burden of proving medical malpractice without
medical expert testimony. (Doc. 55). On June 3, 2021, Fuqua filed a response to the
motion for summary judgment, stating only:
I the Plaintiff opposes [sic] the Defendant’s request for the court to order
summary judgment because my lawyer . . . has withdrawn from my case
and I do not have legal representation. I would ask the court to ap[p]oint
me a lawyer and give me more time for discovery so I can give my facts
and documents pertaining to this case.
(Doc. 60, at 1).
PLAINTIFF’S REQUEST FOR APPOINTMENT OF COUNSEL
No constitutional right to counsel exists in a civil case. Bass v. Perrin, 170 F.3d
1312, 1320 (11th Cir. 1999). The appointment of counsel in a civil matter constitutes a
5

privilege justified only by exceptional circumstances, such as novel or complex
litigation. Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir. 1990); Vickers v. Georgia, 567
Fed. App’x 744, 749 (11th Cir. 2014). As Fuqua’s claims do not present particularly
novel or complex issues, the Constitution does not require the court to appoint an
attorney to represent him. Even so, the court attempted to secure legal representation
for Fuqua through the district’s pro bono panel and a veterans assistance clinic. While
one attorney agreed to represent Fuqua during a portion of this litigation, he had to
withdraw his representation for valid professional reasons. Other attorneys and the pro
bono veterans clinic declined to assist Fuqua. For these reasons, the court concludes
requiring an attorney to represent Fuqua would not serve the ends of justice, and it
DENIES Fuqua’s request for appointment of counsel.
For similar reasons, the court declines to appoint an expert witness to assist
Fuqua. See Fed. R. Evid. 706(a) (“On a party’s motion or on its own, the court may
order the parties to show cause why expert witnesses should not be appointed . . . .”);
Steele v. Shah, 87 F.3d 1266, 1271 (11th Cir. 1996) (decision to appoint an expert witness
falls within the district court’s discretion); Rodriguez v. Powell, 853 F. App’x 613, 619 (11th
Cir. 2021) (quoting Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1348
(11th Cir. 2003)) (“‘Such an appointment is especially appropriate where the evidence or
testimony at issue is scientifically or technically complex.’”).

6

SUMMARY OF RELEVANT FACTS
Plaintiff, Ray Anthony Fuqua, served in the United States Army between 1988
and 1992, and he most recently worked as a commercial truck driver. (Doc. 55-1, at 5;
Doc. 55-2, at 1-2).

He sought treatment for knee pain at the VA Hospital in

Birmingham, Alabama.

On September 29, 2014, diagnostic imaging revealed

degenerative changes in both knees and evidence of a prior anterior cruciate ligament
(ACL) repair in the left knee. (Doc. 59-1, at 12, 722). On October 27, 2014, Fuqua
reported to his medical provider that he “has always been bow-legged” and had
developed bilateral knee pain. (Id. at 707).
Fuqua underwent a left knee replacement surgery on November 5, 2014. He
planned to pursue a right knee replacement later if the left knee surgery produced
satisfactory results. He discharged from the hospital in good condition three days after
the surgery. (Id. at 788-89). During a follow-up appointment on December 15, 2014,
Fuqua was “doing fairly well” and could ambulate without aid. (Id. at 578). Diagnostic
imaging from that same date reflected no changes in his left knee since the surgery, but
Fuqua did experience further degenerative changes in the right knee. (Id. at 10-11).
Fuqua attended another follow-up appointment in February 2015. Sometime
after that appointment, he fell, heard a “pop” in his knee, and began experiencing pain
and decreased range of motion. However, he did not return to the VA until August 17,
2015, his next scheduled appointment. On that date, the clinical examination revealed
reduced range of motion, warmth, swelling, quad atrophy, hamstring tightness, laxity in
7

flexion, and pain upon palpation. (Id. at 528, 554). On October 5, 2015, a CT scan
detected a patella fracture (Doc. 59-1, at 551), and on November 24, 2015, Fuqua
underwent a left revision patella replacement. (Id. at 787-88).
Fuqua reported good post-surgical progress the day of the surgery, on December
3, 2015, and on January 14, 2016. (Id. at 459, 481, 788). However, on March 10, 2016,
he reported increased pain and decreased function in his left knee. The attending
physician detected “[e]xtreme quad atrophy” and predicted Fuqua could not return to
work for at least three months. (Id. at 458).
On April 14, 2016, the examining physician observed Fuqua had experienced an
“event” two to three months earlier that caused decreased range of motion. The
physician predicted that Fuqua would never return to gainful employment as a
commercial truck driver. (Id. at 450). On June 16, 2016, the attending physician noted
Fuqua continued to experience stiffness in his left knee and remained unable to work,
and he stated Fuqua should “consider additional surgery.” (Id. at 448).
DISCUSSION
Fuqua’s Amended Complaint asserts he suffered injuries because of the medical
negligence of one or more employees or agents of the United States Department of
Veterans Affairs. (Doc. 34, ¶ 2). Specifically, Fuqua asserts those employees breached
the applicable standard of medical care when they failed to:
(1) insert a properly-sized and adequate prosthetic component during his
initial surgery on November 5, 2014; (2) properly care for Mr. Fuqua
following his November 2014 operation, including failure to timely sign
8

and execute orders for postoperative care and failure to recognize and
respond to the fracture of his patella; (3) properly assess, repair, and
resurface Mr. Fuqua’s left knee on November 19, 2015; and (4) properly
follow up on Mr. Fuqua’s complaints of pain, infection, and loss of
function at all times from November 5, 2014 to September 25, 2018.
(Id. ¶ 27).
Fuqua’s claim arises under the FTCA, which grants district courts
exclusive jurisdiction of civil actions on claims against the United States,
for money damages, accruing on and after January 1, 1945, for injury or
loss of property, or 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). Thus, the court determines liability in an FTCA case based
upon events occurring in Alabama “in accordance with” Alabama state law. See Stevens
v. Battelle Mem’l Inst., 488 F.3d 896, 899 n.3 (11th Cir. 2007) (citing Cole v. United States, 755
F.2d 873, 879 n. 16 (11th Cir. 1985); 28 U.S.C. § 1346(b)); Ross v. United States, 640 F.2d
511, 519 (5th Cir. 1981) (“[T]he law of Alabama, situs of the airplane crash, will be
determinative in the treatment of the legal issues in the case sub judice.”).1
The Alabama Medical Liability Act (AMLA) governs all medical malpractice
claims in the state of Alabama. See Ala. Code § 6-5-551 (“In any action for injury,
damages, or wrongful death, whether in contract or in tort, against a health care
provider for breach of the standard of care, whether resulting from acts or omissions

1

All decisions of the former Fifth Circuit handed down prior to September 30, 1981, constitute
binding precedent in this Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).
9

in providing health care, or the hiring, training, supervision, retention, or termination
of care givers, the Alabama Medical Liability Act shall govern the parameters of
discovery and all aspects of the action.”). Under the AMLA, a medical malpractice
plaintiff must prove “(1) the appropriate standard of care, (2) the doctor’s deviation
from that standard, and (3) a proximate causal connection between the doctor’s act or
omission constituting the breach and the injury sustained by the plaintiff.” Hauseman v.
Univ. of Alabama Health Servs. Found., 793 So. 2d 730, 734 (Ala. 2000) (citing Looney v.
Davis, 721 So. 2d 152, 157 (Ala. 1998); Complete Family Care v. Sprinkle, 638 So. 2d 774
(Ala. 1994); Bradford v. McGee, 534 So. 2d 1076 (Ala. 1988); Ala. Code § 6-5-484).
“To defeat a properly supported motion for a summary judgment on a medicalmalpractice claim, the nonmovant ordinarily must present testimony from a ‘similarly
situated’ medical expert.” Hauseman, 793 So. 2d at 734 (citing Levesque v. Regional Med.
Ctr. Bd., 612 So. 2d 445, 449 (Ala. 1993)); see also Pruitt v. Zeiger, 590 So. 2d 236, 238 (Ala.
1991) (citing Rosemont, Inc. v. Marshall, 481 So. 2d 1126 (Ala. 1985)) (“The failure of an
expert to establish the standard of care results in a lack of proof essential to a medical
malpractice plaintiff’s case.”). Such testimony satisfies the nonmovant’s burden to
present substantial evidence creating a genuine issue of material fact once the movant
makes a prima facie showing that no material fact issues exist. Harris v. Health Care
Auth. of City of Huntsville, 6 So. 3d 468, 477 (Ala. 2008).
In the present case, the United States supported its motion for summary
judgment by demonstrating that Fuqua lacks the medical expert testimony necessary to
10

prove his case at trial. See Hickson Corp., 357 F.3d at 1260 (citing Four Parcels of Real
Property, 941 F.2d at 1437-38). Consequently, to defeat the United States’ motion for
summary judgment, Fuqua needed to present medical expert testimony to define the
standard of care and establish the VA’s breach of that standard.2 Because Fuqua offered
no such expert testimony, he failed to sustain his summary judgment burden of
demonstrating disputed material facts, and his malpractice claim cannot survive the
United States’ motion for summary judgment.
None of the exceptions to the general rule that a medical malpractice plaintiff
must present expert medical testimony applies. A plaintiff may forego expert testimony
when “the lack of care is so apparent as to be within the ken of the average layman,”
such as when a surgeon leaves a sponge or other instrumentality inside the patient’s
body or operates on the wrong limb. Peterson v. Triad of Alabama, LLC, – So. 3d – , No.
1190982, 2021 WL 2678098, at *3 (Ala. June 30, 2021) (citing Jones v. Bradford, 623 So.
2d 1112, 1114-15 (Ala. 1993)). Other exceptions exist if the plaintiff relies upon an
authoritative medical treatise, or if the plaintiff himself qualifies as a medical expert. Id.
at *4 (citing Collins v. Herring Chiropractic Center, LLC, 237 So. 3d 867, 871 (Ala. 2017)).
Here, Fuqua does not claim to possess medical expertise, and he has not
2

The court notes that even if Fuqua could prove his surgeries failed to successfully treat his symptoms
and conditions, that failure, standing alone, would not support a medical malpractice claim. See Ala.
Code § 6-5-484(b) (“Neither a physician, a surgeon, a dentist nor a hospital shall be considered an
insurer of the successful issue of treatment or service.”); McGill v. Szymela, – So. 3d – , No. 1190260,
2020 WL 7778222, at *7 (Ala. Dec. 31, 2020) (citations omitted) (“Consistent with [§6-5-484(b)], it is
well established in Alabama that a poor medical outcome alone does not give rise to medicalmalpractice liability.”).
11

presented any authoritative medical treatises to establish the applicable standard of care.
Moreover, the evidence does not depict a situation in which an average layperson would
understand, without the benefit of expert testimony, that Fuqua’s medical providers
breached the standard of care, or that any breach of care caused his alleged damages.
In addition to classic examples involving leftover surgical instrumentality or
operations on the wrong limb, case law interpreting the AMLA eschews the necessity
of expert testimony only when providers make obvious errors or omissions, like leaving
a cold pack on the patient’s skin long enough to cause frostbite, Collins, 237 So. 3d at
871-72, failing to fill an open tooth cavity for fourteen months, Vieux v. Fed. Bureau of
Prisons, No. 112CV00017MHHHGD, 2016 WL 4070138, at *8 (N.D. Ala. July 29,
2016), failing to ensure a metal bar heated to 270 degrees during sterilization had cooled
sufficiently before attaching it to a patient’s arm, McGathey v. Brookwood Health Servs., Inc.,
143 So.3d 95 (Ala. 2013), or ignoring a recent back surgery patient’s calls for ambulation
assistance for 30 minutes. Ex parte HealthSouth Corp., 851 So. 2d 33, 38 (Ala. 2002).
In contrast, when “there are numerous possible explanations for how the
incident occurred . . . , expert medical testimony from a similarly situated health-care
provider is necessary to establish the applicable standard of care, a deviation from that
standard, and proximate causation linking the defendant’s actions to the plaintiff’s
injury.” Fletcher v. Health Care Auth. of City of Huntsville, – So. 3d – , No. 1190706, 2021
WL 2678100, at *5 (Ala. June 30, 2021) (citing Lyons v. Walker Regional Medical Center,
791 So. 2d 937, 942 (Ala. 2000)).
12

Here, the evidence depicts a complex medical situation, not an obvious error or
omission. Fuqua experienced bilateral knee pain and arthritis before his left knee
replacement surgery at the VA, and he described his stance as “bow-legged.” He even
underwent a prior reconstructive surgery on his left ACL. Fuqua presented for a single
follow-up visit after his November 5, 2014, knee replacement surgery. That visit
produced positive findings, and he did not return to the VA until August 17, 2015,
when he reported left knee pain and decreased range of motion after experiencing a
“pop” in his knee from a possible fall in February 2015. Doctors discovered Fuqua
fractured his left patella, necessitating an additional surgery on November 24, 2015.
Fuqua initially recovered well after that procedure, but by March 10, 2016, he reported
increased pain and decreased range of motion, which his examining physician attributed
to an “event” occurring approximately two to three months earlier.
As the United States points out, those facts raise multiple questions, including:
- Whether either of Fuqua’s two arthroplasties at the VA were
conducted within the applicable standard of care;
- Whether Fuqua’s apparent fall in or about February 2015 caused or
exacerbated the condition necessitating the second knee surgery;
- Whether the pain and degeneration in Fuqua’s right knee was
associated in any way with Fuqua’s left knee surgeries, as Fuqua alleges,
or existed independently thereof, as a result of the natural aging
process and his existing arthritis;
- Whether Fuqua’s fall in February 2015 and his failure to visit the
doctor in the six months between that fall, when he first noticed a
“pop” in his knee and decreased [range of motion] therein, was in fact
the actual or proximate cause of his need for a second surgery; and
13

- Whether the subsequent surgeries Fuqua alleges to have had
conducted on his right knee were necessitated by medical malpractice
with respect to his left knee surgeries or whether such surgeries would
have been necessary independent of his left knee surgeries or any
medical malpractice allegedly associated therewith.
(Doc. 55, at 20).
As an ordinary layperson could not adequately answer those questions without
professional assistance, Fu qua needed to present expert testimony.

See McGill v.

Szymela, No. 1190260, 2020 WL 7778222, at *6 (Ala. Dec. 31, 2020) (expert testimony
required to establish the standard of care for a complex surgery to place a prosthesis).
CONCLUSION
As discussed herein, because Fuqua has not presented expert medical testimony
establishing a breach of the applicable standard of care, he cannot sustain his burden of
demonstrating genuine disputes of material facts remain for trial on his FTCA medical
malpractice claim.

Accordingly, the court will grant the United States’ Motion for

Summary Judgment and enter summary judgment in the United States’ favor. The court
will enter a separate final judgment.
DONE this 4th day of November, 2021.

____________________________________
HERMAN N. JOHNSON, JR.
UNITED STATES MAGISTRATE JUDGE

14