Dixon v. United States of America
Filing
16
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)
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
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
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