United States District Court, S.D. Georgia, Augusta Division
JANICE LYNETTE ALLEN, as Successor in Interest, and as Administrator of the Estate of Timothy Lional Allen, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
RANDAL HALL, CHIEF JUDGE
the Court is Defendant's motion for summary judgment.
(Doc. 32.) The Clerk of Court gave Plaintiff timely notice of
Defendant's summary judgment motion and the summary
judgment rules, of the right to file affidavits or other
materials in opposition, and the consequences of default.
(Doc. 33.) Therefore, the notice requirements of Griffith
v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per
curiam), have been satisfied. Plaintiff filed a response and
sur-reply in opposition, and Defendant filed a reply and
sur-reply in support. (Docs. 38, 40, 44, 46.) The time for
filing materials in opposition has expired, and the motion is
ripe for consideration. Upon consideration of the record,
relevant law, and the parties' respective briefs,
Defendant's motion for summary judgment is
to his death, Timothy Lional Allen ("Decedent"), a
veteran of the United States Army, received treatment from
the Charlie Norwood VA Medical Center in Augusta, Georgia
(the "VA"). (Defendant's Statement of Material
Facts as to Which There is No Dispute ("DSMF"),
Doc. 32-8,  ¶ 2; Doc. 29, ¶ 6.) Decedent was
referred to the VA's urology clinic *'after a
[prostate specific antigen ("PSA")] screening test
revealed elevation of his PSA'" level between
September 2010 and June 21, 2011. (DSMF ¶ 6 (quoting
Doc. 32-1, at 31).) At an appointment at the VA's urology
clinic on June 22, 2011, Decedent was prescribed
antibioticswx for possible prostatitis, one
possible cause of his increasing PSA'" and
"advised to follow up in four to six weeks for an
additional PSA screen." (Id. (quoting Doc.
32-1, at 32).) At this follow-up visit on July 20, 2011,
Decedent's PSA level was tested and he was advised to
return for another follow-up in six months. (Id.
¶ 7 (citing Doc. 32-1, at 29-30).) During his next
follow-up visit on January 18, 2012, Decedent's PSA level
was tested again and he was advised to return for a follow-up
visit in July 2012. (Id. ¶ 8 (citing Doc. 32-1,
at 24-25) .)
follow-up visit to the VA's urology clinic on July 25,
2012, Decedent's PSA level was tested again and he was
scheduled for another follow-up visit six months later.
(Id. ¶ 10 (citing Doc. 32-1, at 20-21).) The
results of the July 25, 2012 PSA screen - apparently obtained
after Decedent had already left the clinic - were noted to
bexxxthe highest value yet'" and,
"given their persistent elevation, " it was decided
that Decedent should be instructed to return to the clinic
and schedule a preoperative evaluation for a biopsy of his
prostate. (Id. (citing Doc. 32-1, at 21); Doc. 32-1,
at 21.) Accordingly, on July 26, 2012, a medical student
called Decedent at his phone number of record. (DSMF ¶
11 (citing Doc. 32-1, at 21-22; and Doc. 32-4, ¶¶
4-5).) When Decedent did not answer, however, the medical
student left a message advising Decedent of his elevated PSA
level and requesting that he contact the VA's urology
clinic to schedule a biopsy of his prostate. (Id.)
Nevertheless, Decedent did not schedule the biopsy or return
to the VA's urology clinic until January 22, 2013, where
his PSA level was tested again and a biopsy of his prostate
was scheduled for March 11, 2013. (Id.¶ 12
(citing Doc. 32-1, at 18-19).) Based on the results of this
biopsy, Decedent was diagnosed with prostate cancer.
(Id. ¶ 13 (citing Doc. 32-1, at 16); see
also Doc. 28, at 1 ("In March 2013, [Decedent] was
diagnosed with prostate cancer and began treatment at the
a visit to the VA's hematology and oncology clinic on May
16, 2014, the physicians attending to Decedent noted that he
had developed bone metastasis (i.e., cancer had spread to
several of his bones). (Id. ¶ 23 (citing Doc.
32-1, at 8-9).) These physicians recommended that Decedent
receive Zometa (zoledronic acid) to treat his bone
metastasis. (Id.) Decedent's kidney
function was also evaluated during this visit. (Id.
(citing Doc. 32-1, at 6).) On May 23, 2014, Decedent's
kidney function was checked again and he was subsequently
administered 4 mg of Zometa by intravenous infusion by a
registered nurse at the VA. (Id. ¶¶ 24-26
(citing Doc. 32-1, at 2-4) .)
kidney function was checked again at the VA on June 12, 2014.
(Id.¶ 30 (citing Doc. 32-2, at
On June 13, 2014, Decedent left the VA against medical
advice. (Id. ¶ 31 (citing Doc. 32-1, at 2).)
Later that same day, Decedent was admitted to Doctors
Hospital of Augusta ("DHA") for symptomatic anemia.
(Id. ¶ 32 (citing Doc. 32-3, at 18).) During an
oncology consult at DHA on June 16, 2014, the physician
attending to Decedent noted that Decedent was due for an
infusion of Zometa but - because Zometa was not available at
DHA - he received Aredia (pamidronic acid)
instead. (Id. ¶ 34 (citing Doc. 32-3,
at 27).) Decedent was discharged from DHA on June 18, 2014.
(Id. ¶ 36 (citing Doc. 32-3, at 33).) Notably,
during the course of his admission to DHA between June 13 and
18, 2014, Decedent's kidney function was evaluated four
times. (Id. ¶ 33 (citing Doc. 32-3, at 23, 30,
36, 40).) Decedent was readmitted to DHA on June 21, 2014 and
diagnosed with acute renal failure on June 22, 2014.
(Id. ¶¶ 37-38, 40 (citing Doc. 32-3, at 2,
9, 13).) Decedent was discharged from DHA to hospice care on
June 26, 2014. (Id. ¶ 37 (citing Doc. 32-3, at
2); Doc. 32-3, at 4.) Decedent passed away in February 2015
at the age of 51. (Doc. 29, ¶ 5.)
- as Decedent's successor in interest and administrator
of his estate - initiated this action on September 15,
2015. (Doc. 1.) On April 11, 2016, Defendant
filed a motion to dismiss this action for insufficient
service of process. (Doc. 7.) On October 11, 2016, Plaintiff
filed her amended complaint. (Doc. 23.) On November 29, 2016,
Plaintiff furnished the expert witness report of Daniel E.
Buffington, Pharm.D., MBA. (Doc. 28.) On March 27, 2017,
Defendant filed its present motion for summary judgment.
(Doc. 32.) On June 1, 2017, the Court denied as moot
Defendant's motion to dismiss. (Doc. 43.)
SUMMARY JUDGMENT STANDARD
judgment is appropriate only if "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a). The
"purpose of summary judgment is to pierce the pleadings
and to assess the proof in order to see whether there is a
genuine need for trial." Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(internal citation omitted).
party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of the [record
before the court] which it believes demonstrate the absence
of a genuine issue of material fact." Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). If - and only if -
the movant carries its initial burden, the non-movant may
avoid summary judgment by demonstrating that there is indeed
a genuine issue as to the material facts of its case.
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991). Facts are "material" if they
could affect the outcome of the suit under the governing
substantive law. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A dispute of those material facts
"is 'genuine' . . . [only] if the evidence is
such that a reasonable jury could return a verdict for the
non-moving party." Id.
ruling on the motion, the Court must view all the evidence in
the record in the light most favorable to the non-moving
party and resolve all factual disputes in the non-moving
party's favor. Matsushita, 475 U.S. at 587. The
Court must also avoid weighing conflicting evidence.
Anderson, 477 U.S. at 255; McKenzie v.
Davenport-Harris Funeral Home, 834 F.2d 930, 934 (11th
Cir. 1987). Nevertheless, the non-moving party's response
to the motion for summary judgment must consist of more than
conclusory allegations, and a mere "scintilla" of
evidence will not suffice. Walker v. Darby, 911 F.2d
1573, 1577 (11th Cir. 1990); Pepper v. Coates, 887
F.2d 1493, 1498 (11th Cir. 1989). "The non-moving party
cannot create a genuine issue of material fact through
speculation, conjecture, or evidence that is 'merely
colorable' or 'not significantly
probative.'" Bryant v. Dougherty Cty. Sch.
Sys., 382 Fed.Appx. 914, 917 (11th Cir. 2010) (quoting
Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir.
2008); and Anderson, 477 U.S. at 249-50).
amended complaint, Plaintiff alleges two medical malpractice
claims pursuant to the Federal Tort Claims Act
("FTCA") against Defendant for the alleged acts or
omissions of the "physicians, nurses, and other staff of
the [VA]." (Doc. 23, ¶¶ 20-27.) More
specifically, Plaintiff's first count alleges that these
staff members committed malpractice "by negligently
prescribing [Decedent] renal toxic medications that caused
him kidney failure after having previously diagnosing him
with early stage renal failure multiple times and instructing
him not to take any renal toxic medications"
(hereinafter, the "Improper Treatment Claim").
(Id. ¶¶ 20-23.) Plaintiff's second
count alleges that Defendant's staff also committed
malpractice "by negligently failing to follow up with