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Downs v. United States

August 24, 2009


The opinion of the court was delivered by: Scullin, Senior Judge



On March 28, 2006, Plaintiff filed this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., for injuries that he sustained on or about October 8, 2003, when his right ankle fracture was allegedly repaired in a negligent manner.

Currently before the Court is Defendants' motion for summary judgment on the ground that, because Plaintiff failed to identify an expert witness, he will not be able to establish the acceptable standards of care for mending a right ankle fracture. In addition, Defendants have cross-moved to strike the affidavit of Michael Boucher, which Plaintiff submitted in opposition to Defendants' motion for summary judgment.


On October 6, 2003, Plaintiff fell from a tree approximately six feet, injuring, primarily, his right ankle and left shoulder. See Complaint at ¶ 5. On October 8, 2003, Plaintiff underwent an initial surgery at the Veteran's Administration Medical Center in Syracuse, New York ("SVAMC") to repair a right ankle fracture. Mark Wilson was the attending physician; Shylaja Maini administered the anesthesia. See id. at ¶ 7. No complications were reported, and a Synthes 1/3 tubular plate was placed along the posterolateral aspect of the fibula. See id. Plaintiff was discharged on October 16, 2003, with instructions to maintain non-weightbearing on the right ankle. See id. at ¶ 8.

On November 4, 2003, Plaintiff went to Defendant SVAMC's clinic where he saw Dr. Shahnaz Punjani, who indicated that there was no evidence of loosening of the hardware and removed the sutures. See id. at ¶ 9.

On December 19, 2003, Plaintiff went to Defendant SVAMC's emergency room when his right ankle became inflamed, swollen and painful. See id. at ¶ 10. A review of an x-ray taken on November 17, 2003, indicated a medial malleolar fracture fragment, widened syndesmosis, loosening of the hardware along distal fibula, and osteolyis reaction around the screws in the plate. See id. This was not discovered until December 19, 2003, and Plaintiff states that Dr. Wilson told him that they had put the plate in incorrectly. See id. On December 23, 2003, Plaintiff was admitted to Defendant SVAMC for a second surgery. See id.

X-rays taken on January 7, 2004, showed new, longer surgical plates extending along the lateral aspect of the distal femur held in place by seven screws. See id. at ¶ 11. Plaintiff did not want to be discharged from Defendant SVAMC because he was physically unable to take care of himself and he felt that the early discharge and failure to treat the fractures properly in the first surgery led to the complication in the second treatment. See id. at ¶ 13.

On January 19, 2004, Plaintiff was treated at Defendant SVAMC's emergency department for burning pain in his right ankle. See id. The x-ray appeared unchanged. See id. On January 22, 2004, Plaintiff was admitted and treated for burning pain of the right lateral calf with an open wound 4-5 centimeters long with serosanguineous discharge. See id. The attending note of John Stetson stated that Plaintiff had an opening of an incision laterally in the midsection of the lateral incision right over the metal plate. See id. Plaintiff was admitted to the hospital for aggressive wound care and wet to dry dressing, whirlpool therapy to prevent complete dehiscence of his wound. See id. The January 29, 2004 discharge notes state that his wound appeared with a good amount of fibrinous material with a clean base. See id. Thereafter, Plaintiff was transferred to TCU for continuing wound care and whirlpool therapy, and his wound showed very slow improvement. See id. On March 29, 2004, he was treated at Defendant SVAMC's orthopedic clinic, and his open wound was examined and an x-ray was taken showing widening of the medial mortis and not many signs of healing. See id. Dr. Bennet suspected an infection in the fibula and a diagnosis of an infected nonunion. See id.

Plaintiff alleges that the medical and surgical care, diagnosis and treatment that Defendant SVAMC rendered was performed in a negligent manner resulting in severe and permanent personal injury to him. See id. at ¶ 17. He further asserts that Defendant SVAMC was careless in its employment, training and supervision of doctors, nurses, and paramedical personnel and failed to render proper medical care, diagnosis, treatment and discharge instructions. See id. at ¶ 18.

On April 7, 2004, Plaintiff filed a Form 95 - Administrative Claim ("Form 95") with the Department of Veteran's Affairs to seek compensation for his repeated surgeries and improper care. Prior to receiving a decision regarding his Form 95 filing, Plaintiff filed the instant action under the FTCA, alleging (1) that Defendant SVAMC was responsible for the negligent, careless and reckless acts and/or omissions of its employees, agents and/or servants and the failure to care for Plaintiff properly; (2) that Defendant SVAMC was negligent by failing to properly hire, train and supervise its employees; and (3) that Defendant SVAMC, through its agents, acted negligently when it failed to provide medical services in accordance with acceptable medical standards, resulting in the failure to diagnose, treat and care for Plaintiff properly.


A. Subject Matter Jurisdiction*fn1

"A claimant's failure to satisfy the FTCA's presentment requirement precludes subsequent litigation of those claims." Donahue v. United States of Am., Transp. Sec. Admin., 457 F. Supp. 2d 137, 141 (E.D.N.Y. 2006) (citations omitted). Therefore, a district court lacks subject matter jurisdiction if a plaintiff fails to exhaust his administrative remedies under the FTCA. See Romulus v. United States, 160 F.3d 131, 132 (2d Cir. 1998) (citation omitted).

To comply with the FTCA's requirements, "a Notice of Claim filed pursuant to the FTCA must provide enough information to permit the agency to conduct an investigation and to estimate the claim's worth." Id. (citing Keene Corp. v. United States, 700 F.2d 836, 842 (1983)). "A claim must be specific enough to serve the purpose of the FTCA to enable the federal government to expedite the fair settlement of tort claims." Id. (citing Johnson v. United States, 788 F.2d 836, 842-43 (2d Cir. 1986)). In Lopez v. Zenk, No. 06-CV-4601, 2008 WL 3285895 (E.D.N.Y. Aug. 8, 2008), the court analyzed Johnson and explained that the presentment requirement did not require a plaintiff to allege specific facts to support a distinct cause of action. See id. at *3. "So long as the basic information is provided, the question is 'whether a reasonably thorough investigation should have uncovered any pertinent information in the government's possession . . . .'" Id. (citation ...

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