Thompson v. United States of America et al

Filing 34

Opinion and Order signed by Judge James S. Gwin on 2/7/14 granting defendant's motion for summary judgment. (Related Doc. 29 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
------------------------------------------------------:
GERALD THOMPSON,
:
:
Plaintiff,
:
:
v.
:
:
UNITED STATES OF AMERICA,
:
:
Defendant.
:
:
-------------------------------------------------------

CASE NO. 1:13-CV-550.

OPINION & ORDER
[Resolving Doc. 29]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
In this medical malpractice case, Plaintiff Gerald Thompson says doctors employed by the
United States Department of Veterans Affairs failed to properly treat his right leg, which eventually
required amputation.1/ Defendant United States moved for summary judgment.2/ Plaintiff Thompson
failed to respond.3/ For the reasons that follow, the Court GRANTS Defendant’s motion for
summary judgment.
I. Background
In 1995, Plaintiff Gerald Thompson was diagnosed with Type II diabetes.4/ Since his
diagnosis, Thompson’s diabetes has been uncontrolled.5/ In addition to diabetes, Thompson has
numerous other medical problems, including high blood pressure, hepatitis C, cerebrovascular

1

Doc. 1.

2

Doc. 29.
Doc. 33.

3
4

Doc. 29-2 at 2.

5

See generally id.

Case No. 1:13-cv-550
Gwin, J.
disease, alcohol addiction, nicotine dependence, and drug abuse.6/
In 2007, Thompson went to the Cleveland VA Medical Center (“VA”) complaining about
pain when he walked along distances.7/ He had surgery on his left leg, which relieved his
symptoms.8/
Around 2009, Thompson began experiencing pain in his right leg.9/ In February 2010, he was
seen in the vascular surgery department at the VA, and doctors discovered he had poor circulation
in his right leg. To improve blood flow, doctors performed a common femoral artery
endarterectomy.10/
In early August 2010, Thompson returned to vascular surgery because of tissue loss to his
right ankle resulting in an ulcer.11/
On August 20, 2010, in order to salvage his foot, vascular surgeons performed a bypass
surgery to increase blood flow to his lower extremities.12/ Doctors explained to Thompson the signs
and symptoms of infection and told him to go to the emergency room if signs of infection
developed.13/
Thompson was referred to the podiatry department for the care of his ulcer.14/ Thompson
regularly had checkups every few weeks to monitor the ulcer and check for signs of infection.15/

6

Id. at 46.

7

Id. at 5-6.

8

Id. at 7.

9

Id. at 46.

10

Id. at 50. A femoral artery endarterectomy is a surgical procedure to remove plaque from the lining
of the artery.
11

Id. at 54.

12

Id. at 66.

13

Id. at 9, 15.
Id. at 54.

14
15

Id. at 21.

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Case No. 1:13-cv-550
Gwin, J.
On December 3, 2010, Thompson noticed the ulcer turned from pink to black.16/ Despite
having been previously instructed to go to the emergency room if he developed signs of infection,
Thompson decided to wait until his next podiatry appointment.17/
On December 6, 2013, when Thompson went to the vascular surgery clinic, doctors
discovered the ulcer was infected. It was entirely blackened, very foul smelling, and had exposed
bone.18/ Doctors determined that Thompson’s foot was unsalvageable and required amputation.19/
On March 14, 2013, Thompson filed a Complaint saying that the VA was negligent by failing
to “properly diagnose, t[]reat, refer, supervise and/or monitor Plaintiff Gerald Thompson’s
symptoms, complaints and medical conditions, and by otherwise providing substandard care.”20/
On December 19, 2013, Defendant United States moved for summary judgment,21/ to which
Plaintiff Thompson did not respond.22/
II. Legal Standard
Under Federal Rule of Civil Procedure 56, summary judgment is proper “if the pleadings,
the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a matter of law.”23/ The moving
party must demonstrate that there is an absence of a genuine dispute as to a material fact entitling
it to judgment.24/

16

Id. at 42.

17

Id. at 139.

18

Id.

19

Id. at 139-146.

20

Doc. 1 at 2.

21

Doc. 29.

22

Doc. 33.

23

Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir. 2008).

24

See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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Case No. 1:13-cv-550
Gwin, J.
Once the moving party has done so, the non-moving party must produce admissible
evidence—not allegations or denials in pleadings—showing a triable issue.25/ A court cannot grant
summary judgment in favor of the moving party simply because the non-moving party has not
responded.26/ The court must, at a minimum, examine the moving party’s motion for summary
judgment to ensure that he has met the initial burden imposed by Rule 56(c).27/
III. Analysis
Plaintiff Thompson brings this suit pursuant to the Federal Torts Claims Act (“FTCA”).
Under the FTCA, a plaintiff may sue the United States for damages caused by its employees acting
within the scope of their employment.28/ Courts refer to the law of the state where the alleged act or
omission occurred to determine FTCA liability.29/ Here, Thompson says that the purported
malpractice occurred in Ohio.30/
To make out a medical malpractice claim under Ohio law, a plaintiff must show: (1) the
applicable standard of medical care; (2) defendant’s negligent failure to meet that standard; and (3)
that the defendant’s negligence proximately caused the plaintiff’s injury.31/ Ohio law also requires
the plaintiff to show expert testimony to establish a breach of the standard of care and to show
proximate causation.32/ The Sixth Circuit has applied the expert testimony rule to actions brought

25

See Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986).
26

Miller v. Shore Fin. Servs., Inc., 141 F. App'x 417, 419 (6th Cir. 2005).

27

Id.

28

28 U.S.C. § 2674. See also Montez v. United States, 359 F.3d 392, 395 (6th Cir. 2004).

29

28 U.S.C. 1346(b). See also Rayonier Inc. v. United States, 352 U.S. 315, 318-319 (1957);
Flechsig v. United States, 991 F.2d 300, 303-304 (6th Cir. 1993).
30

Doc. 1 at 2.

31

Bruni v. Tatsumi, 346 N.E.2d 673, 677 (Ohio 1976).

32

Id. at 677-68.

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Case No. 1:13-cv-550
Gwin, J.
under the FTCA.33/
Here, Thompson has failed to show expert evidence that would establish the recognized
standard of care in the medical community. Thompson has also failed to give expert evidence that
establishes what injury resulted from the VA doctors’ care. The Court set December 2, 2013, as the
deadline for Thompson to identify his expert witnesses.34/ He failed to comply. He also failed to
oppose the Government’s motion for summary judgment. Because Thompson has failed to meet
Ohio’s expert testimony requirement, he has not met his burden of showing a triable issue.
IV. Conclusion
For the reasons above, the Court GRANTS Defendant’s motion for summary judgment.
IT IS SO ORDERED

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Dated: February 7, 2014

33

Lyons v. Brandly, 430 F. App’x 377, 381 (6th Cir. 2011), cert. denied, 132 S. Ct. 1721 (2012).

34

Doc. 25.

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