Woods v. United States of America, No. 7:2016cv00299 - Document 27 (N.D. Ala. 2017)

Court Description: MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 1/9/2017. (PSM)
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Woods v. United States of America Doc. 27 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, Plaint if f, vs. UNITED STATES OF AMERICA, Defendant . ) ) ) ) ) ) ) ) ) 7: 16-cv-00299-LSC MEMORANDUM OF OPINION Before t he Court is t he Unit ed St at es of America’ s (“ USA” ) Mot ion t o Dismiss or in t he Alt ernat ive, for Summary Judgment (Doc. 19). On February 22, 2016, Plaint if f Marcus Geoward Woods (“ Woods” ) filed suit against t he Birmingham VA Hospit al (“ t he VA” ), Dr. Mulcahy, and Dr. Terry (collect ively “ t he doct ors” ) f or medical malpract ice based on inj uries he allegedly suf fered during a surgical procedure at t he VA. All claims against t he VA were dismissed on August 8, 2016, and USA was added as a defendant on August 12, 2016. On Oct ober 26, 2016, USA was subst it ut ed as a part y for Dr. Mulcahy and Dr. Terry pursuant t o 28 U.S.C. § 2679(d)(2). USA filed a Mot ion t o Dismiss, or in t he Alt ernat ive, for Page 1 of 12 Dockets.Justia.com Summary Judgment on August 19, 2016. Because bot h part ies have submit t ed mat t ers out side t he pleadings in support of t heir briefs, t he Court will t reat t his Mot ion t o Dismiss as a mot ion for summary j udgment under Rule 56. Fed. R. Civ. P. 12(e) & 56. For t he reasons st at ed below, USA’ s mot ion for summary j udgment is due t o be grant ed. I. BACKGROUND Woods is a vet eran who sought medical services at t he VA t o t reat an exist ing gunshot wound. (Doc. 1-1 at 14.) On November 3, 2011, he received surgery t o insert an inflat able penile prost hesis (“ IPP” ), which led t o severe pain. (Doc. 1-2 at 33.) The IPP was t hen replaced on April 13, 2012 wit h a malleable rod implant , which led t o complicat ions including swelling, fever, and pain. (Doc. 1-2 at 33.) Due t o t he malfunct ion of t he implant , on December 14, 2012, Woods had anot her surgery at t he VA. According t o Woods, t he doct ors “ change[d] t he original procedure of surgery wit hout [his] knowledge or consent ” and “ did not provide t he proper t reat ment f or [his] recovery.” (Doc. 1 at 2. ) He provides t est imony from Abreyanna Maxt ion (“ Maxt ion” ), who at t ended a pre-operat ive appoint ment at t he VA wit h him, during which Dr. Tann (“ Tann” ) explained t he procedure. (Doc. 1-1.) Maxt ion professes t hat at t his Page 2 of 12 meet ing, Tann underst ood and confirmed t hat Woods did not want — and would not get — anot her IPP because t he previous one had given him t rouble. (Id. at 2.) Inst ead, Maxt ion avers, Tann st at ed t hat t he surgery would repair t he harm from t he previous IPP and insert a semi-rigid penile prost hesis. (Id.) However, an addendum t o a Nurse Int raoperat ive Report st at es t hat t he surgery was changed “ from left corporal body reconst ruct ion wit h graft t o insert ion of [IPP], ” and Woods provides a copy of t he consent form for his surgery, which also list s t he procedure as “ left corporal body reconst ruct ion.” (Id. at 6 & 9.) Woods maint ains t hat he was not “ properly monit ored” or given any medicat ions f or pain or infect ion aft er t his surgery. (Doc. 1 at 5.) Inst ead, he recount s t hat “ t hey j ust let [him] lie t here and bleed,” despit e t he fact t hat he “ ask[ed] f or t he doct ors several t imes, ” and t hat he “ could barely get a nurse t o bring t owels and sheet s for t he blood. ” (Id.) Maxt ion claims t hat she “ changed his t owels as t hey become soaked wit h blood” as he bled profusely, and t hat t he nurses did not . (Doc. 1-1 at 3. ) She furt her professes t hat “ [n] ot hing was done t o st op t he bleeding” bef ore he was discharged from t he hospit al. (Id.) Page 3 of 12 Woods advances t hat t he doct ors t old him t hat he was bleeding because his “ uret hra t ube was cut ” because t hey changed t he procedure. (Doc. 1 at 5. ) However, he does admit t hat he was given pain medicat ions and ant ibiot ics when he was sent home from t he VA— purport edly st ill “ bleeding uncont rollably. ” (Id.) Furt her, t he Surgical Informat ion report t hat Woods provides st at es t hat Woods was administ ered ant ibiot ics t hrough irrigat ion on December 14, 2012. (Doc. 1-1 at 20.) Woods charges t hat his pain and suf fering from t his surgery was “ beyond disregard of human life, ” t hat he cont ract ed E. coli during t he surgery, and t hat he had t o undergo t hree ot her operat ions t o correct t he damage it caused. (Doc. 1 at 5.) One of t hese surgeries occurred on December 26, 2012, when he was admit t ed t o UAB Hospit al wit h “ fever, chills, increasing scrot al t enderness and bleeding” and physicians conduct ed emergency surgery t o remove his IPP, which was infect ed wit h E. coli. (Doc. 1-1 at 22-23. ) According t o Woods, when he was admit t ed t o UAB on December 26, he was st ill bleeding from t he December 14 surgery. (Doc. 1 at 5. ) The record demonst rat es anot her surgery was performed on November 18, 2013, in order t o insert a semi-rigid prost hesis. (Doc. 1-2 at 21.) However, per t he record, t his surgery was Page 4 of 12 conduct ed in order t o t reat erect ile dysfunct ion (“ ED” ) and not t o repair any damage from previous surgery. (Doc. 1-2 at 23. ) Woods also avers t hat despit e mult iple request s, he was unable t o obt ain his consent form f or t he original surgery because t he VA and one of it s represent at ives named Ronald Crook (“ Crook” ) wit hheld it from him. (Doc. 24. ) He furt her assert s t hat Crook convinced his at t orney t o drop t he case because it “ would t ake [$]20, 000 t o t ake t his case t o dist rict court ,” and t hat t he VA is cont inuing t o send him bills and charge him for t he December 14 surgery. (Id.) Woods filed an administ rat ive claim wit h t he Depart ment of Vet eran Aff airs (“ DVA” ) based on t his surgery on January 4, 2013. (Doc. 19 at 24. ) In t his claim, Woods alleged t hat t he doct ors had performed a procedure he had not consent ed t o. (Id.) This claim was denied by a let t er dat ed July 11, 2013, which st at ed t hat Woods could eit her inst it ut e a t ort act ion wit h t he dist rict court wit hin six mont hs of t hat dat e or wit hin t hose same six mont hs, file a request for reconsiderat ion wit h t he DVA. (Id. at 28.) Woods filed a request f or reconsiderat ion by a let t er from his at t orney dat ed December 10, 2013. (Id. at 32. ) DVA once again denied t his request , assert ing t hat Woods could choose t o file a suit in t he dist rict court wit hin six mont hs of Page 5 of 12 August 27, 2014. (Id. at 35.) Woods subsequent ly filed t his lawsuit on February 22, 2016, alleging negligence by t he doct ors and t he VA. II. STANDARD OF REVIEW Summary j udgment is appropriat e “ if t he movant shows t hat t here is no genuine disput e as t o any mat erial f act and t he movant is ent it led t o j udgment as a mat t er of law.” Fed. R. Civ. P. 56(a). A f act is “ mat erial” if it “ might af fect t he out come of t he suit under t he governing law.” Anderson v. Libert y Lobby, Inc., 477 U.S. 242, 248 (1986). There is a “ genuine disput e” as t o a mat erial fact “ if t he evidence is such t hat a reasonable j ury could ret urn a verdict for t he nonmoving part y. ” Anderson, 477 U.S. at 248. The t rial j udge should not weigh t he evidence but must simply det ermine whet her t here are any genuine issues t hat should be resolved at t rial. Id. at 249. In considering a mot ion for summary j udgment , t rial court s must give deference t o t he nonmoving part y by “ considering all of t he evidence and t he inferences it may yield in t he light most f avorable t o t he nonmoving part y. ” McGee v. Sent i nel Of f ender Servs., LLC, 719 F.3d 1236, 1242 (11t h Cir. 2013) (cit at ions omit t ed). In making a mot ion f or summary j udgment , “ t he moving part y has t he burden of eit her negat ing an essent ial element of t he nonmoving part y’ s case or showing t hat t here Page 6 of 12 is no evidence t o prove a f act necessary t o t he nonmoving part y’ s case. ” Id. Alt hough t he t rial court s must use caut ion when grant ing mot ions for summary j udgment , “ [ s]ummary j udgment procedure is properly regarded not as a disf avored procedural short cut , but rat her as an int egral part of t he Federal Rules as a whole. ” Cel ot ex Corp. v. Cat ret t , 477 U.S. 317, 327 (1986). III. DISCUSSION The Federal Tort Claims Act (“ FTCA” ) gives Unit ed St at es dist rict court s “ exclusive j urisdict ion over claims for damages against t he Unit ed St at es arising from personal inj ury ‘ caused by t he negligence or wrongful act or omission of any employee of t he Government while act ing wit hin t he scope of his of fice or employment .’ ” Swaf f ord v. Unit ed St at es, 839 F. 3d 1365, 1369 (11t h Cir. 2016) (quot ing 28 U.S.C. § 1346(b)(1)). It funct ions as a “ limit ed waiver of t he Unit ed St at es’ sovereign immunit y,” and also set s up a requirement t hat “ t he claimant file[] an ‘ administ rat ive claim wit h t he appropriat e agency’ . . . wit hin t wo years from t he t ime t he claim accrues.” Dal rympl e v. Unit ed St at es, 460 F.3d 1318, 1324 (11t h Cir. 2006) (quot ing Suarez v. Unit ed St at es, 22 F. 3d 1064, 1065 (11t h Cir. 1994). A prospect ive plaint iff must t hen file t he act ion against t he Unit ed St at es “ wit hin six mont hs aft er t he dat e of Page 7 of 12 mailing . . . of not ice of final denial of t he claim by t he agency,” or t he claim “ shall be f orever barred. ” 28 U. S.C. § 2401. Here, t he charged negligence occurred on December 14, 2012, and Woods filed an administ rat ive claim wit h t he DVA on January 4, 2013, well wit hin t he t wo-year st at ut ory deadline. However, t he DVA sent Woods a final denial of t he claim on August 27, 2014, but he did not file t his act ion in federal dist rict court unt il February 22, 2016, almost eight een mont hs af t er t he denial let t er was mailed. The unt imeliness of t his suit , however, does not st rip t his court of j urisdict ion over t he act ion. See Unit ed St at es v. Kwain Fun Wong, _ U.S. _, 135 S. Ct . 1625, 1628 (2015) (§ 2401(b) is “ a mere claims-processing rule” and is not j urisdict ional, and t herefore, t he limit at ions period may be t olled “ when circumst ances warrant .” ). The Court int erpret s Woods’ s Mot ion t o St ay as an argument t hat t he st at ut e of limit at ions should be t olled because of “ concealment of evid[e]nce by t he VA hospit al and int ent ional misrepresent at ion of VA rep Ronald Cook. ” (Doc. 24 at 1). Woods cit es t o Alabama law which t olls act ions when “ t he cause of act ion . . . could not reasonably have been discovered wit hin such period.” Ala. Code § 6-5-482. However, st at e t olling provisions are not applicable t o § 2401(b) because “ t he accrual of Page 8 of 12 a cause of act ion under sect ion 2401(b) is a mat t er of federal law. ” Phil l ips v. Unit ed St at es, 260 F. 3d 1316, 1318-19 (11t h Cir. 2001). Furt her, Woods cannot claim t hat he did not discover t he purport ed t ort ious conduct before February of 2016, because he filed an administ rat ive complaint based on t his inj ury in January of 2013. Therefore, he knew of t he conduct by, at t he lat est , January 2013. However, t he limit at ions period may be t olled “ where t he plaint if f is prevent ed from filing a t imely cause of act ion because of some act ion of t he defendant . ” Price v. Unit ed St at es, 775 F. 2d 1491, 1494 (11t h Cir. 1985) (cit ing Wait s v. Unit ed St at es, 611 F. 2d 550 (5t h Cir. 1980)). In Wai t s, t he plaint if fs made various effort s t o obt ain medical records beginning in July of 1974, but t he hospit al did not comply wit h t hese request s unt il Oct ober of 1974. The Court held t hat t he act ion did not accrue unt il t he plaint iff obt ained t he records because “ [p]rior t o t hat t ime, [t he plaint iff] knew only t hat his t reat ment at t he VA Hospit al had been unsuccessful. . . . [D]issat isf act ion . . . however, is not t o be equat ed wit h knowledge of negligence. . . . To recover damages, t he pat ient must prove t hat t he disappoint ing out come of t he surgery result ed from a breach of care. ” Wait s, 611 F.2d at 553. Furt her, t he Court held t hat t he hospit al was t o blame for f ailing t o provide t he Page 9 of 12 records in a t imely fashion, t herefore keeping t he plaint iff from discovering and filing t he cause of act ion at an earlier t ime, and t hat “ no . . . at t orney could advise him of t he merit s of his claim while t he f act s of t he . . . negligence remained lost in inaccessible hospit al files.” Id. 1 In t he case at hand, Woods maint ains t hat he could not file t he inst ant act ion wit hout t he consent form for his December 14, 2012 surgery, because t he negligence of t he doct ors consist ed of changing t he surgical procedure at t he last minut e, t herefore subj ect ing him t o surgery which he had not consent ed t o. Woods cannot claim t hat he was not aware of t his conduct before he obt ained t he form, because he filed an administ rat ive claim based on t hat conduct in January of 2013. (Doc. 19 at 25. ) Unlike t he Plaint iff in Wai t s, Woods knew exact ly what conduct he was basing his legal claim on— described it in his administ rat ive claim— he and t herefore did not need t his f orm t o present “ t he fact s of t he . . . negligence” t o an at t orney. Wai t s, 611 F.2d at 553. In McCul l ough v. Unit ed St at es, t he plaint iff argued t hat “ he could not have known about t he . . . cause [of t he inj ury] unt il he had 1 Wait s analyzes t he accrual of an act ion under t he f irst clause of § 2401, and does not ment ion equit able t olling. However, in Price, t he Elevent h Circuit int erpret ed Wait s as discussing equit able t olling of t he limit at ions period, and t his Court will follow t hat int erpret at ion. Page 10 of 12 reasonable opport unit y t o obt ain his medical records.” 607 F. 3d 1355, 1360 (11t h Cir. 2010). The court disagreed, holding t hat “ [h]e did not need his medical records t o learn t he ‘ crit ical f act s’ indicat ing t hat he had been hurt and who had inflict ed t he inj ury.” Id. (quot ing Unit ed St at es v. Kubrick, 444 U.S. 111, 122 (1979)). Even Mr. McCullough’ s “ commendable diligence in request ing his records” did not save him from t he st at ut e of limit at ions because he had t he f act s he needed t o file suit . Id. at 1361. Woods advances t hat he was unable t o successfully maint ain legal represent at ion because of USA’ s affirmat ive misconduct in refusing t o give him his consent form, and in int imidat ing his at t orney. Yet , he fails t o show t hat he needed his medical records in order t o file a viable act ion, as he clearly knew t he “ crit ical f act s” of his case. He also f ails t o allege any f act s t hat demonst rat e t hat t he alleged “ int imidat ion” of his at t orney prevent ed him from t imely filing t his act ion. The only conduct t hat Woods seems t o allege “ int imidat ed” his at t orney was st at ement s about t he cost of maint aining t his act ion. There is no support in Elevent h Circuit precedent for Woods’ s argument t hat a misst at ement about t he price of lit igat ion— even when it leads t o t he wit hdrawal of an at t orney— should result in equit able t olling. Therefore, as Woods has shown no Page 11 of 12 reason why t he st at ue of limit at ions should be t olled, summary j udgment based on t he unt imeliness of t his suit is due t o be grant ed. IV. CONCLUSION For t he reasons st at ed above, summary j udgment in USA’ s favor is due t o be GRANTED. A separat e order consist ent wit h t his opinion will be ent ered. Furt her, Plaint iff ’ s Mot ion t o St ay (Doc. 24) is DENIED AS MOOT. A separat e order consist ent wit h t his opinion will be ent ered. DONE and ORDERED t his 9t h day of January 2017. _____________________________ L. Scot t Coogler Unit ed St at es Dist rict Judge 186291 Page 12 of 12