Woods v. Birmingham VA Hospital et al

Filing 27

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 1/9/2017. (PSM)

FILED
2017 Jan-09 PM 04:28
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
MARCUS GEOWARD WOODS,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.

)
)
)
)
)
)
)
)
)

7:16-cv-00299-LSC

MEMORANDUM OF OPINION
Before the Court is the United States of America’s (“USA”) Motion
to Dismiss or in the Alternative, for Summary Judgment (Doc. 19). On
February 22, 2016, Plaintiff Marcus Geoward Woods (“Woods”) filed suit
against the Birmingham VA Hospital (“the VA”), Dr. Mulcahy, and Dr.
Terry (collectively “the doctors”) for medical malpractice based on
injuries he allegedly suffered during a surgical procedure at the VA. All
claims against the VA were dismissed on August 8, 2016, and USA was
added as a defendant on August 12, 2016. On October 26, 2016, USA was
substituted as a party for Dr. Mulcahy and Dr. Terry pursuant to 28 U.S.C.
§ 2679(d)(2). USA filed a Motion to Dismiss, or in the Alternative, for
Page 1 of 12

Summary Judgment on August 19, 2016. Because both parties have
submitted matters outside the pleadings in support of their briefs, the
Court will treat this Motion to Dismiss as a motion for summary judgment
under Rule 56. Fed. R. Civ. P. 12(e) & 56. For the reasons stated below,
USA’s motion for summary judgment is due to be granted.
I.

BACKGROUND
Woods is a veteran who sought medical services at the VA to treat

an existing gunshot wound. (Doc. 1-1 at 14.) On November 3, 2011, he
received surgery to insert an inflatable penile prosthesis (“IPP”), which
led to severe pain. (Doc. 1-2 at 33.) The IPP was then replaced on April
13, 2012 with a malleable rod implant, which led to complications
including swelling, fever, and pain. (Doc. 1-2 at 33.) Due to the
malfunction of the implant, on December 14, 2012, Woods had another
surgery at the VA.
According to Woods, the doctors “change[d] the original procedure
of surgery without [his] knowledge or consent” and “did not provide the
proper treatment for [his] recovery.” (Doc. 1 at 2.) He provides testimony
from Abreyanna Maxtion (“Maxtion”), who attended a pre-operative
appointment at the VA with him, during which Dr. Tann (“Tann”)
explained the procedure. (Doc. 1-1.) Maxtion professes that at this
Page 2 of 12

meeting, Tann understood and confirmed that Woods did not want—and
would not get—another IPP because the previous one had given him
trouble. (Id. at 2.) Instead, Maxtion avers, Tann stated that the surgery
would repair the harm from the previous IPP and insert a semi-rigid
penile prosthesis. (Id.)
However, an addendum to a Nurse Intraoperative Report states that
the surgery was changed “from left corporal body reconstruction with
graft to insertion of [IPP],” and Woods provides a copy of the consent
form for his surgery, which also lists the procedure as “left corporal body
reconstruction.” (Id. at 6 & 9.)

Woods maintains that he was not

“properly monitored” or given any medications for pain or infection after
this surgery. (Doc. 1 at 5.) Instead, he recounts that “they just let [him]
lie there and bleed,” despite the fact that he “ask[ed] for the doctors
several times,” and that he “could barely get a nurse to bring towels and
sheets for the blood.” (Id.) Maxtion claims that she “changed his towels
as they become soaked with blood” as he bled profusely, and that the
nurses did not. (Doc. 1-1 at 3.) She further professes that “[n]othing was
done to stop the bleeding” before he was discharged from the hospital.
(Id.)

Page 3 of 12

Woods advances that the doctors told him that he was bleeding
because his “urethra tube was cut” because they changed the procedure.
(Doc. 1 at 5.) However, he does admit that he was given pain medications
and antibiotics when he was sent home from the VA—purportedly still
“bleeding uncontrollably.” (Id.) Further, the Surgical Information report
that Woods provides states that Woods was administered antibiotics
through irrigation on December 14, 2012. (Doc. 1-1 at 20.)
Woods charges that his pain and suffering from this surgery was
“beyond disregard of human life,” that he contracted E. coli during the
surgery, and that he had to undergo three other operations to correct the
damage it caused. (Doc. 1 at 5.) One of these surgeries occurred on
December 26, 2012, when he was admitted to UAB Hospital with “fever,
chills, increasing scrotal tenderness and bleeding” and physicians
conducted emergency surgery to remove his IPP, which was infected with
E. coli. (Doc. 1-1 at 22-23.) According to Woods, when he was admitted
to UAB on December 26, he was still bleeding from the December 14
surgery. (Doc. 1 at 5.) The record demonstrates another surgery was
performed on November 18, 2013, in order to insert a semi-rigid
prosthesis. (Doc. 1-2 at 21.) However, per the record, this surgery was

Page 4 of 12

conducted in order to treat erectile dysfunction (“ED”) and not to repair
any damage from previous surgery. (Doc. 1-2 at 23.)
Woods also avers that despite multiple requests, he was unable to
obtain his consent form for the original surgery because the VA and one
of its representatives named Ronald Crook (“Crook”) withheld it from
him. (Doc. 24.) He further asserts that Crook convinced his attorney to
drop the case because it “would take [$]20,000 to take this case to
district court,” and that the VA is continuing to send him bills and charge
him for the December 14 surgery. (Id.) Woods filed an administrative
claim with the Department of Veteran Affairs (“DVA”) based on this
surgery on January 4, 2013. (Doc. 19 at 24.) In this claim, Woods alleged
that the doctors had performed a procedure he had not consented to.
(Id.) This claim was denied by a letter dated July 11, 2013, which stated
that Woods could either institute a tort action with the district court
within six months of that date or within those same six months, file a
request for reconsideration with the DVA. (Id. at 28.) Woods filed a
request for reconsideration by a letter from his attorney dated December
10, 2013. (Id. at 32.) DVA once again denied this request, asserting that
Woods could choose to file a suit in the district court within six months of

Page 5 of 12

August 27, 2014. (Id. at 35.) Woods subsequently filed this lawsuit on
February 22, 2016, alleging negligence by the doctors and the VA.
II.

STANDARD OF REVIEW
Summary judgment is appropriate “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). A fact is
“material” if it “might affect the outcome of the suit under the governing
law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). There is
a “genuine dispute” as to a material fact “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. The trial judge should not weigh the evidence
but must simply determine whether there are any genuine issues that
should be resolved at trial. Id. at 249.
In considering a motion for summary judgment, trial courts must
give deference to the nonmoving party by “considering all of the
evidence and the inferences it may yield in the light most favorable to
the nonmoving party.” McGee v. Sentinel Offender Servs., LLC, 719 F.3d
1236, 1242 (11th Cir. 2013) (citations omitted). In making a motion for
summary judgment, “the moving party has the burden of either negating
an essential element of the nonmoving party’s case or showing that there
Page 6 of 12

is no evidence to prove a fact necessary to the nonmoving party’s case.”
Id. Although the trial courts must use caution when granting motions for
summary judgment, “[s]ummary judgment procedure is properly regarded
not as a disfavored procedural shortcut, but rather as an integral part of
the Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317,
327 (1986).
III.

DISCUSSION
The Federal Tort Claims Act (“FTCA”) gives United States district

courts “exclusive jurisdiction over claims for damages against the United
States arising from personal injury ‘caused by the negligence or wrongful
act or omission of any employee of the Government while acting within
the scope of his office or employment.’” Swafford v. United States, 839
F.3d 1365, 1369 (11th Cir. 2016) (quoting 28 U.S.C. § 1346(b)(1)). It
functions as a “limited waiver of the United States’ sovereign immunity,”
and

also

sets up

a

requirement

that

“the

claimant

file[]

an

‘administrative claim with the appropriate agency’ . . . within two years
from the time the claim accrues.” Dalrymple v. United States, 460 F.3d
1318, 1324 (11th Cir. 2006) (quoting Suarez v. United States, 22 F.3d
1064, 1065 (11th Cir. 1994). A prospective plaintiff must then file the
action against the United States “within six months after the date of
Page 7 of 12

mailing . . . of notice of final denial of the claim by the agency,” or the
claim “shall be forever barred.” 28 U.S.C. § 2401.
Here, the charged negligence occurred on December 14, 2012, and
Woods filed an administrative claim with the DVA on January 4, 2013,
well within the two-year statutory deadline. However, the DVA sent
Woods a final denial of the claim on August 27, 2014, but he did not file
this action in federal district court until February 22, 2016, almost
eighteen months after the denial letter was mailed. The untimeliness of
this suit, however, does not strip this court of jurisdiction over the
action. See United States v. Kwain Fun Wong, _ U.S. _, 135 S. Ct. 1625,
1628 (2015) (§ 2401(b) is “a mere claims-processing rule” and is not
jurisdictional, and therefore, the limitations period may be tolled “when
circumstances warrant.”).
The Court interprets Woods’s Motion to Stay as an argument that
the statute of limitations should be tolled because of “concealment of
evid[e]nce by the VA hospital and intentional misrepresentation of VA rep
Ronald Cook.” (Doc. 24 at 1). Woods cites to Alabama law which tolls
actions when “the cause of action . . . could not reasonably have been
discovered within such period.” Ala. Code § 6-5-482. However, state
tolling provisions are not applicable to § 2401(b) because “the accrual of
Page 8 of 12

a cause of action under section 2401(b) is a matter of federal law.”
Phillips v. United States, 260 F.3d 1316, 1318-19 (11th Cir. 2001).
Further, Woods cannot claim that he did not discover the purported
tortious conduct before February of 2016, because he filed an
administrative complaint based on this injury in January of 2013.
Therefore, he knew of the conduct by, at the latest, January 2013.
However, the limitations period may be tolled “where the plaintiff
is prevented from filing a timely cause of action because of some action
of the defendant.” Price v. United States, 775 F.2d 1491, 1494 (11th Cir.
1985) (citing Waits v. United States, 611 F.2d 550 (5th Cir. 1980)). In
Waits, the plaintiffs made various efforts to obtain medical records
beginning in July of 1974, but the hospital did not comply with these
requests until October of 1974. The Court held that the action did not
accrue until the plaintiff obtained the records because “[p]rior to that
time, [the plaintiff] knew only that his treatment at the VA Hospital had
been unsuccessful. . . . [D]issatisfaction . . . however, is not to be
equated with knowledge of negligence. . . . To recover damages, the
patient must prove that the disappointing outcome of the surgery
resulted from a breach of care.” Waits, 611 F.2d at 553. Further, the
Court held that the hospital was to blame for failing to provide the
Page 9 of 12

records in a timely fashion, therefore keeping the plaintiff from
discovering and filing the cause of action at an earlier time, and that “no
. . . attorney could advise him of the merits of his claim while the facts
of the . . . negligence remained lost in inaccessible hospital files.” Id. 1
In the case at hand, Woods maintains that he could not file the
instant action without the consent form for his December 14, 2012
surgery, because the negligence of the doctors consisted of changing the
surgical procedure at the last minute, therefore subjecting him to surgery
which he had not consented to. Woods cannot claim that he was not
aware of this conduct before he obtained the form, because he filed an
administrative claim based on that conduct in January of 2013. (Doc. 19
at 25.) Unlike the Plaintiff in Waits, Woods knew exactly what conduct he
was basing his legal claim on—he described it in his administrative claim—
and therefore did not need this form to present “the facts of the . . .
negligence” to an attorney. Waits, 611 F.2d at 553.
In McCullough v. United States, the plaintiff argued that “he could
not have known about the . . . cause [of the injury] until he had

1

Waits analyzes the accrual of an action under the first clause of § 2401, and
does not mention equitable tolling. However, in Price, the Eleventh Circuit
interpreted Waits as discussing equitable tolling of the limitations period, and this
Court will follow that interpretation.
Page 10 of 12

reasonable opportunity to obtain his medical records.” 607 F.3d 1355,
1360 (11th Cir. 2010). The court disagreed, holding that “[h]e did not
need his medical records to learn the ‘critical facts’ indicating that he
had been hurt and who had inflicted the injury.” Id. (quoting United
States v. Kubrick, 444 U.S. 111, 122 (1979)). Even Mr. McCullough’s
“commendable diligence in requesting his records” did not save him from
the statute of limitations because he had the facts he needed to file suit.
Id. at 1361.
Woods advances that he was unable to successfully maintain legal
representation because of USA’s affirmative misconduct in refusing to
give him his consent form, and in intimidating his attorney. Yet, he fails
to show that he needed his medical records in order to file a viable
action, as he clearly knew the “critical facts” of his case. He also fails to
allege any facts that demonstrate that the alleged “intimidation” of his
attorney prevented him from timely filing this action. The only conduct
that Woods seems to allege “intimidated” his attorney was statements
about the cost of maintaining this action. There is no support in Eleventh
Circuit precedent for Woods’s argument that a misstatement about the
price of litigation—even when it leads to the withdrawal of an attorney—
should result in equitable tolling. Therefore, as Woods has shown no
Page 11 of 12

reason why the statue of limitations should be tolled, summary judgment
based on the untimeliness of this suit is due to be granted.
IV. CONCLUSION
For the reasons stated above, summary judgment in USA’s favor is due
to be GRANTED. A separate order consistent with this opinion will be
entered. Further, Plaintiff’s Motion to Stay (Doc. 24) is DENIED AS MOOT.
A separate order consistent with this opinion will be entered.
DONE and ORDERED this 9th day of January 2017.

_____________________________
L. Scott Coogler
United States District Judge

186291

Page 12 of 12