Although medical malpractice suits against the VA are often complicated by the specialized requirements under the Federal Torts Claims Act or the unique rules for medical malpractice actions pursuant to Georgia state law, sometimes the issue holding a case back is simply the theory of liability, the evidence provided, or failing to proactively litigate. These more commonplace issues are at the center of the U.S. District Court for the Northern District of Georgia’s recent opinion in Stidham v. U.S., which involved the alleged failure of the VA to provide a patient with a necessary medical apparatus within a reasonable period of time.
As alluded to above, the plaintiff in the case was a patient at the VA Medical Center in Atlanta. The plaintiff had gone to the VA for medical care, and during the course of that care he was informed by a nurse practitioner employed at the VA that he would need to wear a knee brace. Although he was required to wear a knee brace and his prescription for the brace was made on July 16, 2010, the plaintiff claims that he did not receive the brace for nearly a year. He avers he received the brace on June 6, 2011. The VA refutes these facts and claims instead that the prescription was actually for three different braces, two of which the plaintiff received at the time and the third which was not in stock at the VA at the time the plaintiff received his prescription. However, the VA maintains that the third brace was mailed to the plaintiff on August 10, 2010, slightly less than a month after he received the prescription. The plaintiff then brought a medical malpractice action against the VA, alleging that the delay in delivery of the knee brace was unreasonable. Following some discovery, the VA made a motion for summary judgment, to which the plaintiff did not respond, submit a statement of material facts, or provide opposing expert testimony.
Given the plaintiff’s failure to challenge the motion for summary judgment, the court’s decision was quite short. Although this case was in federal court, Georgia state law governed the plaintiff’s medical malpractice claim. In order to succeed on a medical malpractice claim, a plaintiff must prove the existence of the following: “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.” Haughton v. Canning, 287 Ga. App. 28 (2007). With respect to the second prong of this test, the Supreme Court of Georgia has held “the presumption is that the medical or surgical services were performed in an ordinarily [skillful] manner” and the burden, accordingly, is on the plaintiff to “to show a want of due care, skill, and diligence.” Beach v. Lipham, 276 Ga. 302, 303 (2003). Furthermore, as we have noted in prior posts, when the facts underlying the alleged negligence fall beyond the knowledge or experience of a typical juror, the plaintiff is generally required to “present testimony from doctors as expert witnesses to overcome the presumption of due care and establish a doctor’s negligence.” Id.
First, since the plaintiff failed to contest the factual submissions provided by the VA in the motion to dismiss, the trial court needed simply to “review the motion and the supporting papers to determine whether they establish the absence of a genuine issue of material fact.” United States v. One Piece of Real Prop., 363 F.3d 1099, 1102 (11th Cir. 2004). As a result, the trial court accepted the defendant’s uncontested statement of facts regarding when delivery of the knee brace was made, which the VA claimed was only one month following the date the prescription was made. Second, the plaintiff also failed to show that this uncontested one-month delay was an unreasonable breach of the medical provider’s standard of care by providing expert testimony concerning the standard of care for delivery of such medical apparatuses. Accordingly, the court found that there did not exist a question of material fact regarding either breach or causation and granted the VA’s motion for summary judgment.
Although there are many niceties that make litigating claims for medical malpractice under the Federal Torts Claims Act difficult, one must first and foremost be proactive about litigating his or her claim. Indeed, had the plaintiff in this action contested the facts proffered by the VA and provided expert testimony, he would have been in a far better position to get his case before a jury. When considering whether to bring a claim to get recovery for one’s injuries, one should find counsel both experienced in the applicable law and ready to zealously pursue the claim. The Atlanta medical negligence attorneys at the Law Office of Terrence R. Bethune are both experienced and zealous, and they are prepared to assist you with a possible claim. Feel free to contact us if you are interested in a free case consultation to discuss your injuries and possible entitlement to relief.