Stidham v. United States of America
OPINION AND ORDER granting 17 Motion for Summary Judgment. Signed by Judge Thomas W. Thrash, Jr on 1/5/15. (dr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
CONNIE BILL C.B. STIDHAM,
CIVIL ACTION FILE
UNITED STATES OF AMERICA,
OPINION AND ORDER
This is a medical malpractice case arising under the Federal Tort Claims Act.
It is before the Court on the Defendant’s Motion for Summary Judgment [Doc. 17].
For the reasons set forth below, the Defendant’s Motion for Summary Judgment [Doc.
17] is GRANTED.
On July 12, 2010, the Plaintiff Connie Bill Stidham was in a motor vehicle
accident.1 On July 16, 2010, the Plaintiff visited the Veterans Administration Medical
Center (“VAMC”) in Atlanta, Georgia to receive medical care for his injuries.2 A
Def.’s Statement of Facts ¶ 1.
Id. ¶ 2.
nurse practitioner – Deborah Wilson – assisted the Plaintiff, and informed him that he
would need to wear a knee brace.3 The events that followed gave rise to this action.
In his Complaint, the Plaintiff claimed that the VAMC unreasonably delayed
providing him with the required knee brace. In particular, the Plaintiff alleged that,
although the knee brace was prescribed on July 16, 2010, he did not receive it until
June 6, 2011.4 However, the Defendant’s Statement of Facts – which the Plaintiff did
not file a response to – refutes the Plaintiff’s narrative. According to the Defendant,
Wilson prescribed three different knee braces for the Plaintiff.5 The Plaintiff was then
immediately issued two of the prescribed knee braces by the VAMC’s
prosthetic-orthotics department.6 The third prescribed knee brace, however, was not
in stock on July 16, 2010.7 Thus, when the third prescribed knee brace was acquired
by the VAMC, it was mailed to the Plaintiff on August 10, 2010.8 The Defendant now
Id. ¶ 20.
Id. ¶¶ 5, 11.
Id. ¶ 20.
Id. ¶¶ 21-22.
Id. ¶ 24.
Id. ¶ 25.
moves for summary judgment. The Plaintiff has not submitted a response, a statement
of material facts, or any expert testimony.
II. Legal Standard
Summary judgment is appropriate only when the pleadings, depositions, and
affidavits submitted by the parties show that no genuine issue of material fact exists
and that the movant is entitled to judgment as a matter of law.9 The court should view
the evidence and any inferences that may be drawn in the light most favorable to the
nonmovant.10 The party seeking summary judgment must first identify grounds that
show the absence of a genuine issue of material fact.11 The burden then shifts to the
nonmovant, who must go beyond the pleadings and present affirmative evidence to
show that a genuine issue of material fact does exist.12 A “mere ‘scintilla’ of evidence
supporting the opposing party’s position will not suffice; there must be a sufficient
showing that the jury could reasonably find for that party.”13 Additionally, the Court
“cannot base the entry of summary judgment on the mere fact that the motion was
FED. R. CIV. P. 56(c).
Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970).
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990).
unopposed, but, rather, must consider the merits of the motion.”14 However, the Court
“need not sua sponte review all of the evidentiary materials on file at the time the
motion is granted, but must ensure that the motion itself is supported by evidentiary
Under the Federal Tort Claims Act, “the United States is liable for tortious
conduct in the same manner and to the same extent as a private individual under like
circumstances after applying the applicable law in the same jurisdiction.”16 Congress’
“chief intent in drafting the FTCA was simply to provide redress for ordinary torts
recognized by state law.”17 The Defendant “can only be found liable if a comparable
private party would likewise be liable under Georgia law.”18
The Plaintiff claims that the VAMC committed medical malpractice. Under
Georgia law, the Plaintiff must establish three elements to prevail on a medical
United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave.,
Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004).
Turner ex rel. Turner v. United States, 514 F.3d 1194, 1203 (11th Cir.
2008) (citing 28 U.S.C. § 2674) (internal quotation marks omitted).
Pate v. Oakwood Mobile Homes, Inc., 374 F.3d 1081, 1084 (11th Cir.
malpractice claim: “the doctor’s duty to his patient; the doctor’s breach of that duty
through the failure to exercise the requisite degree of skill and care; and an injury
proximately caused by the doctor’s failure.”19 The Georgia Supreme Court has made
clear that “[i]n an action brought by a patient against his physician or surgeon for
malpractice, the presumption is that the medical or surgical services were performed
in an ordinarily skil[l]ful manner, and the burden is on the one receiving the services
to show a want of due care, skill, and diligence.”20 The court further explained that “a
plaintiff ordinarily must present testimony from doctors as expert witnesses to
overcome the presumption of due care and establish a doctor’s negligence.”21
Here, based on the Defendant’s uncontested statement of facts, the Plaintiff was
in possession of the three knee braces within a month of receiving the prescription
from Wilson. The Plaintiff has submitted no expert testimony indicating that this
minor delay constituted a breach of the applicable standard of care, or that it
proximately caused any further injury. Because a rational trier of fact could not find
Haughton v. Canning, 287 Ga. App. 28 (2007).
Beach v. Lipham, 276 Ga. 302, 303 (2003) (internal quotation marks
for the Plaintiff based on the evidence in the record,22 the Defendant is entitled to
judgment as a matter of law.23
For these reasons, the Court GRANTS the Defendant’s Motion for Summary
Judgment [Doc. 17].
SO ORDERED, this 5 day of January, 2015.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge
See Zwiren v. Thompson, 276 Ga. 498, 500 (2003) (“In order to establish
proximate cause by a preponderance of the evidence in a medical malpractice action,
the plaintiff must use expert testimony because the question of whether the alleged
professional negligence caused the plaintiff’s injury is generally one for specialized
expert knowledge beyond the ken of the average layperson.”); Toombs v. Acute Care
Consultants, Inc., 326 Ga. App. 356, 358 (2014) (“In order to survive the Defendants’
motion for summary judgment on her medical malpractice claim, Toombs had to
present expert testimony that the Defendants deviated from the applicable standard of
See Celotex, 477 U.S. at 323 (“The moving party is ‘entitled to a
judgment as a matter of law’ [when] the nonmoving party has failed to make a
sufficient showing on an essential element of her case with respect to which she has
the burden of proof.”).
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