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Crosby v. United States

August 25, 2010

EDWIN H. CROSBY, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

DECISION AND ORDER

I. INTRODUCTION

Plaintiff Edwin H. Crosby brings this action against Defendant United States of America under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680, asserting 11 distinct claims arising out of medical care and treatment he received from the U.S. Department of Veteran's Affairs. Defendant moves for dismissal of ten of Plaintiff's claims, alleging that this Court lacks subject-matter jurisdiction over them. In response, Plaintiff moves to strike Defendant's Motion to Dismiss and for Summary Judgment in his own favor. For the following reasons, Plaintiff's motions are denied and Defendant's Motion to Dismiss is granted.

II. BACKGROUND

A. Plaintiff's Complaint

Plaintiff Edwin H. Crosby is a veteran of the United States Air Force who has received medical treatment from the Department of Veterans Affairs ("VA") at several locations across the country.(Compl., Docket No. 1, ¶ 5). Plaintiff alleges that beginning in the late 1970's, he has been wholly reliant on the VA for his medical care. (Compl., ¶ 5). He alleges that, beginning with a hernia operation in October 1987, and then from 1993 to February 2007, he was the victim of negligence and malpractice by the VA. (Compl., ¶¶ 6-19).

In October 1997, Plaintiff underwent a hernia repair operation during which a granulomata was also removed from his abdomen. (Compl., ¶ 6). Plaintiff alleges that his left ureter was displaced during the operation. (Compl., ¶ 6). The consequences of this displacement, Plaintiff was told, would be the loss of his left kidney and an operation every few years to eliminate scar tissue accumulated in his abdomen. (Compl., ¶ 6).

Plaintiff's first three claims arise from this surgery. He first alleges that he suffered intense pain on his left side from the displaced ureter for five years following his surgery ("Claim 1"). (Compl. ¶ 7). Plaintiff's second claim is that the VA failed to detect that he had kidney stones, which may also have been the cause of his left-side pain ("Claim 2"). (Compl., ¶¶ 7, 8). Plaintiff's third claim, which appears related to his second, is that the VA failed to diagnose the cause of his hypertension, which it had diagnosed and treated with medication ("Claim 3"). (Compl., ¶ 8).

Plaintiff's fourth claim appears to be that medicine he received from the VA in Syracuse, NY, to treat his blood pressure was improperly prescribed because in July 1999, a doctor in the Mt. Vernon, MO, VA clinic changed his medication and told him to discard his old medicine ("Claim 4"). (Compl., ¶ 9). Plaintiff's fifth claim is that his treating doctor at the St. Louis, MO, VA Medical Center failed to conduct testing in or about March 2000, despite Plaintiff providing his medical history and complaints ("Claim 5"). (Compl., ¶ 10).

Plaintiff's sixth claim involves treatment he received in July 2001 at the Fort Harrison, MT, VA Medical Center, where he received a CT scan for the first time. (Compl., ¶ 11). Plaintiff alleges that the CT scan revealed that he had cysts or tumors on his left kidney and/or adrenal gland, as well as a tumor in his large intestine. (Compl., ¶ 11). A colonoscopy followed and revealed the tumor as well as polyps. (Compl., ¶ 11). Although doctors recommended surgery for the left kidney, they determined that surgery to remove the intestinal tumor was more urgent, so they delayed surgery on Plaintiff's left kidney ("Claim 6").(Compl., ¶ 11).

Plaintiff's seventh claim is that the VA withheld photographs taken during his colonoscopy, which he requested through the Freedom of Information Act. (Compl., ¶ 12). Plaintiff maintains that the report that the VA produced in response to his request lacked photographs, with an explanation that the camera had not been functioning during the colonoscopy. (Compl., ¶ 12, Ex. D). Yet, according to Plaintiff, the doctor who performed the surgery on his intestinal tumor in May 2003 showed him photographs from the colonoscopy. (Compl., ¶ 12). Plaintiff alleges that the report's lack of photos was the result of spoliation of the medical record, or a negligent failure to include the photographs ("Claim 7"). (Compl., ¶ 12).

Plaintiff's eighth claim stems from his post-surgical care. In July 2003, Plaintiff allegedly noticed a bulge in the area of the May 2003 surgery. (Compl., ¶ 14). Plaintiff told a nurse at the VA clinic in Billings, MT, about the bulge, and she indicated it was fluid buildup from the surgery. (Compl., ¶ 14). According to Plaintiff, however, the bulge was not a buildup of fluid, but an incisional hernia at the surgical site ("Claim 8"). (Compl., ¶ 14).

In October 2003, Plaintiff began seeking treatment at the VA Medical Center in Roseburg, OR. (Compl., ¶ 15). A little more than a year later, Plaintiff was diagnosed with diabetes.(Compl., ¶ 15). Plaintiff's ninth claim is that Agent Orange as well as malpractice by the VA caused his diabetes ("Claim 9"). (Compl., ¶ 15).

In March 2004, Plaintiff underwent surgery to repair the incisional hernia that resulted from the May 2003 surgery. (Compl., ΒΆ 15). Plaintiff's tenth claim is that he again developed incisional ...


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