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Dixon v. United States

United States District Court, S.D. Georgia, Augusta Division

February 23, 2015

KENNETH K. DIXON, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant

Page 1365

For Kenneth K. Dixon, Plaintiff: David Mitchell Stewart, Kenneth D. Crowder, LEAD ATTORNEYS, Crowder Stewart, LLP, Augusta, GA; Joseph T. Rhodes, LEAD ATTORNEY, Joseph Rhodes Law Firm, Augusta, GA.

For United States of America, Defendant: Sanjay S. Karnik, U.S. Attorney's Office - Savannah, Savannah, GA; Shannon Heath Statkus, U.S. Attorney's Office - AUG, Augusta, GA.

Page 1366

ORDER

HONORABLE J. RANDAL HALL, UNITED STATES DISTRICT JUDGE.

During his military service in Iraq, Kenneth R. Dixon (" Plaintiff" ) was rendered a paraplegic, a condition that has required him to seek extensive care with the Charlie Norwood Veterans Affairs Medical Center (" VAMC" ) in Augusta, Georgia. After seeking outside medical assistance for an infection in his left hip, Plaintiff became aware that an old gauze sponge was left in his body, which he alleges occurred during a surgery performed at the VAMC. Plaintiff filed an administrative claim, as is required by the Federal Tort Claims Act (" FTCA" ), which was ultimately denied. Following the denial, he filed suit in this Court for negligence and negligence per se. Now before the Court is the Government's Motion to Dismiss, wherein it avers that this Court lacks subject matter jurisdiction because Plaintiff failed to administratively exhaust his claim under the FTCA. (Doc. 6.) More specifically, the Government contends that Plaintiff referred to a 2011 or 2012 surgery as the source of his injury, while his Complaint in this Court refers to a 2010 operation. For the reasons stated herein, the Government's motion is DENIED. The Court additionally finds that a hearing in this matter is unnecessary and therefore Plaintiff's motion for a hearing (doc. 11) is DENIED.

I. BACKGROUND

A. Plaintiff's Medical Treatment[1]

Plaintiff, a forty-six-year-old disabled veteran, received treatment at the VAMC in Augusta, Georgia following a severe spinal injury sustained while deployed in Iraq. (Compl., Doc. 1, ¶ ¶ 5-9.) Plaintiff alleges that following his spinal injury, he became susceptible to pressure sores in his hip and heels, which required " extensive medical treatment at the VA[.]" (Id. ¶ ¶ 10-11.) To treat these sores, Plaintiff appears to have undergone a number of surgeries between 2010 and 2012.[2] (Id. ¶ 12; Doc. 6, Ex. A.) Specifically, Plaintiff alleges that following a 2010 surgery, he " had continuous problems with his left" hip, which was " at least partially open, oozing liquid, and not properly healing." (Compl. ¶ 14.) In 2011, Plaintiff spent six weeks' at the VAMC for treatment for his right hip and heels. (Id. ¶ 16.) At that time, " his left hip was examined and noted to be oozing liquid from what was assumed to be an infection[.]" (Id.)

On December 31, 2012, Plaintiff underwent surgery at a private hospital to address the issues with his left hip. (Id. ¶ 19.) Prior to this surgery, Plaintiff had suffered fevers for months and lost over twenty-five percent of his body weight. (Id. ¶ 20.) During the operation, the surgeon discovered a gauze sponge inside the old surgical site in the left hip. (Id. ¶ 22; Doc. 6, Ex. B.) Until this December 2012

Page 1367

surgery, Plaintiff alleges that the VAMC performed all procedures on his hip, leaving no other medical providers in control of that area. (Compl. ¶ 23.) Plaintiff additionally contends that his " medical providers have indicated to him that his left leg will likely have to be amputated at the hip area[.]" (Id. ¶ 32.)

B. Procedural History

On February 5, 2014, Plaintiff filed a Standard Form 95 (" SF-95" ) with the Department of Veterans Affairs alleging negligence and medical malpractice. (Doc. 6, Ex. A.) In his claim, he listed his damages as $10 million. On ...


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