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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

EDDIE MARCELLE WHEELER,

Plaintiff,

vs. CASE NO. 1:03CV140-MMP/AK

UNITED STATES OF AMERICA,

Defendants.

 /

THIRD REPORT AND RECOMMENDATION

Plaintiff brings this cause pro se and pursuant to the Federal Torts Claims Act, 28

U.S.C. §2674, et seq., alleging medical malpractice by doctors at the Veterans Hospital. 

Defendants have filed motions for summary judgment (docs. 40, 44 and 46), and

Plaintiff has responded. (Docs. 49, 53, 55, 58, 59, 60, 65, 77 and 78).

I. Allegations of the second amended complaint (doc. 14).

Plaintiff contends that he injured his jaw on November 21, 1999, and went to the

emergency room at Doctors Memorial Hospital in Perry, Florida. X-rays were taken, but

the doctors said that there was not a fracture and he should seek treatment from

Hamdan Ear, Nose & Throat Center. At this appointment, Dr. Hamdan told him he

should get an MRI from Doctors Memorial and that he would need surgery as soon as

possible. Apparently Dr. Hamdan identified four fractures in the jaw. Dr. Hamdan

arranged with Dr. Wilt at the Veterans Hospital for a transfer that afternoon, but Dr. Wilt

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was gone when Plaintiff arrived and he was not admitted until the next day, December

4, 1999. For reasons Plaintiff did not understand he was discharged and rescheduled

for surgery on December 9, 1999. During this delay, Plaintiff developed an infection. 

Plaintiff complains that his jaw did not come together right after the surgery, and he

could not open it well enough to eat. He saw Dr. Graper at the Facial Institute, where

he learned that he would require reconstruction surgery which was done on November

23, 2001, and was not completely successful because of scar tissue from the first

surgery at the VA hospital. 

Plaintiff claims that the doctors at the VA caused him to have scar tissue which

has interfered with his recovery, they extracted teeth unnecessarily, they left his jaw

dislocated, and left loose screws and hardware at the repair site, all of which caused

him two and one half years of pain and suffering. Plaintiff seeks 2 million dollars in

damages, past and future medical bills, and compensation for the 8% disability rating

assigned to him by Dr. Graper.

II. Standard of Review 

A district court should grant summary judgment when, “after an adequate time for

discovery, a party fails to make a showing sufficient to establish the existence of an

essential element of that party’s case.” Nolen v. Boca Raton Community Hospital, Inc.,

373 F.3d 1151, 1154 (11th Cr. 2004), citing Celotex Corporation v. Catrett, 477 U.S. 317,

322 (1986). All issues of material fact should be resolved in favor of the Plaintiff or nonmoving party before the Court determines the legal question of whether the defendant is

entitled to judgment as a matter of law under that version of the facts. Durruthy v.

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Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003); Skrtich v. Thornton, 280 F.3d 1295, 1299

(11th Cir. 2002). The Plaintiff has the burden to come forward with evidentiary material

demonstrating a genuine issue of fact for trial. Celotex, 477 U.S. at 322-23. Plaintiff

must show more than the existence of a "metaphysical doubt" regarding the material

facts, Matsushita Electric Industrial Co., LTD. v. Zenith Radio Corporation, 475 U.S.

574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986), and a "scintilla" of evidence is

insufficient. There must be such evidence that a jury could reasonably return a verdict

for the party bearing the burden of proof. Anderson v. Liberty Lobby, 477 U.S. 242,

251, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986). “For factual issues to be

considered genuine, they must have a real basis in the record.” Mize v. Jefferson City

Board of Education, 93 F.3d 739, 742 (11th Cir. 1996).

"Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by

his own affidavits, or by the 'depositions, answers to interrogatories, and admissions on

file,' designate 'specific facts showing that there is a genuine issue for trial.' " Owen v.

Wille, 117 F.3d 1235, 1236 (11th Cir. 1997), cert. denied 522 U.S. 1126 (1998), quoting

Celotex, 477 U.S. at 324, 106 S. Ct. at 2553 (quoting Fed. R. Civ. P. 56(c), (e)). The

nonmoving party need not produce evidence in a form that would be admissible as Rule

56(e) permits opposition to a summary judgment motion by any of the kinds of

evidentiary materials listed in Rule 56(c). Owen v. Wille, 117 F.3d at 1236; Celotex, 477

U.S. at 324, 106 S. Ct. at 2553.

While a moving party is not required to support his motion for summary judgment

with affidavits, Celotex, supra at 323, the facts stated in uncontradicted affidavits or

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other evidentiary materials must be accepted as true for purposes of summary

judgment. Gauck v. Meleski, 346 F.2d 433, 436 (5th Cir. 1965).

III. Defendant’s Relevant Rule 56(e) evidence (doc. 40, exhibit)

Defendant has attached Plaintiff’s medical and dental records which show that he

was seen at the VA Hospital on December 2, 1999, reporting a fall two weeks prior

when he hit his face. He said that he was pushing his vehicle when he slipped and hit

his chin on the vehicle. X-rays taken at the ER in Perry, Florida, reportedly showed no

fractures, but Plaintiff reported continued pain and that his teeth did not “fit right.” A CT

scan showed bilateral mandible fractures. Notes show that Plaintiff left on 12/2/99 at

8:00 p.m. without being seen because he was tired of waiting, but was admitted when

he returned the next day. However, he was discharged the next day with pain pills and

antibiotics to return on 12/6/99 for “short stay surgery.” Another note says “we

attempted to have surgery scheduled, however, for various reasons the surgery was

postponed. At time of discharge, 12/04/99, it was rescheduled for 12/09/99.” On

12/09/99, he underwent surgery. “Arch bars” and “intermaxillary fixation screws” were

placed with a follow up scheduled for two to three weeks where the arch bars would be

removed and elastics would replace the fixation screws. It was anticipated that after the

elastics were removed the “IMF hardwares” would be removed also. Surgical notes

show that he tolerated the procedure well, was scheduled for discharge the next day,

and was to return to the clinic for removal of his IMF wires in 2 to 3 weeks. Notes

indicate one tooth, a “loose left lower premolar was extracted.” On January 24, 2000,

he returned for wire removal and arch bar removal. He was to return on February 25 for

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hardware removal. The removal was actually conducted on February 17, 2000. A

follow-up appointment on March 6, 2000, showed him improving. However, on April 5,

2000, he presented with “significant dental malocclusion.” Complaints indicate that he

had multiple fractures and multiple teeth extracted and would be getting a lower partial

denture. Two more teeth were extracted, partial plates were made, and an occlusal

adjustment was made. After this procedure, Plaintiff was told to follow up with his family

dentist and the case was deemed completed and closed.

IV. Plaintiff’s Rule 56(e) evidence (doc. 65)

a) Letter from Dr. Charles E. Graper

In a letter “To Whom It May Concern” dated April 26, 2002, Dr. Graper states:

Mr. Wheeler was first seen by our office on 10-24-01. He had a chief

complaint of inability to bring his jaws together and restricted jaw

movement. He had previously fallen and hit his face sustaining a bilateral

complicated mandibular fracture. He was seen by another practitioner

who did a unilateral reduction leaving the opposite side still dislocated. He

came to our office approximately 1 1⁄2 years later with a shortening of the

posterior facial height and significant restricted jaw movement. X-rays

demonstrated arthritic conylar problems and loose screws and hardware

in the repair site. 

Dr. Graper opined that Plaintiff suffered a permanent disability of 8%. 

b) Treatment Notes and Referral Letter from Dr. Firas Hamdan

Dr. Hamdan first examined Plaintiff on 12/1/99 and found “open bite deformity,”

“septal deviation with turbinate hypertrophy.” He reviewed the x-rays taken by the ER

on the date of the accident and found them “not optimal” and ordered a CT scan and a

fluoroscopy. In a letter dated November 29, 2000, to an attorney named Silas Eubanks,

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Dr. Hamdan recited the history of the case and noted his expertise with these type of

mandible fractures and the importance of early treatment. 

c) MRI results dated November 5, 2001 

Impression was:

1. Advanced degenerative changes of the temporal mandibular joint

bilaterally.

2. Post-surgical and post-traumatic changes to the right condylar head as

described above with a possible loose screw trapped within the joint. 

Anterior translocation of the condylar heads bilaterally in the closed mouth

position as described above.

d) Surgical notes of Dr. Graper dated November 23, 2001

Dr. Graper performed surgery on Plaintiff to remove the hardware from his

previous fracture repair and to correct a bilateral malunion. It appears that the operation

went well.

e) Dental notes from the VA (doc. 77)

Treatment notes dated May 2000 through May 2001 show teeth extraction and

fitting of a partial denture.

V. Lack of Subject Matter Jurisdiction (doc. 44)

Defendant once again moves to dismiss the complaint for Plaintiff’s failure to

exhaust administrative remedies within two years of the date of injury, December 9,

1999. Defendant contends, and now provides medical evidence to show that Plaintiff

sought treatment from the VA following his surgery on December 9, 1999, and reported

continued problems with his jaw, which it contends shows that he knew of the elements

of a medical malpractice claim at this time or certainly before his second surgery in

November 2001.

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The Federal Tort Claims Act (FTCA) provides that a tort claim against the United

States “shall be forever barred unless it is presented in writing to the appropriate

Federal agency within two years after such claim accrues....” 28 U.S.C. § 2401(b). In a

medical malpractice action under the FTCA, a claim accrues “when the plaintiff knows

both the existence and cause of his injury, and not at a later time when he also knows

that the acts inflicting the injury may constitute medical malpractice.” United States v.

Kubrick, 444 U.S. 111 (1979). See also Price v. United States, 775 F.2d 1491, 1494

(11th Cir. 1985) (under FTCA claim for medical malpractice accrues when the Plaintiff is

aware of both his injury and its connection with some act or omission of the defendant). 

This Court has decided this issue and the question of exhaustion is closed. (See

Doc. 31). Further, as Plaintiff points out in his response (doc. 53), Defendant has

stipulated to the jurisdiction of this Court. (Doc. 38).

VI. Partial summary judgment (doc. 46)

Defendant contends that Dr. Raj Purush Terkonda was not an employee of the

VA, he was an independent contractor, and as such all claims related to his alleged

negligence should be dismissed. In support of this contention, the contract between the

VA and the University of Florida and the Affidavit of the Contracting Specialist, Donna J.

Nelson, has been submitted, which establishes that UF College of Medicine contracted

to provide surgical services during the relevant time period and “contractor personnel

shall not be considered VA employees for any purpose.” Anthony Muschera, Executive

Assistant to the Chief of Staff at the VA, attests in his affidavit that Dr. Terkonda was a

contract specialist as described in the contract and not a federal employee at the time

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the surgery was performed. Dr. Terkonda performed the initial surgery on Plaintiff’s jaw

on December 9, 1999. Plaintiff named him in the original and amended complaints, but

based on the Court’s mistaken belief that this was a “VA doctor,” as Plaintiff alleged, it

did not have him or any of the individuals served and substituted the United States as

the sole defendant pursuant to 28 U.S.C. §2679. (See Doc. 15). 

The Court has read the contract materials submitted by Defendant and the case

on point, Lurch v. United States, 719 F.2d 333 (10th Cir. 1983), and finds that Terkonda

is indeed not an employee of the federal government for purposes of the Federal Tort

Claims Act. Thus, Defendant’s motion for partial summary judgment should be granted,

and any claims against the government under the FTCA for medical care provided by

Dr. Terkonda should be dismissed.

It is not clear how dismissing this claim affects the present lawsuit. Plaintiff has

named other physicians in his amended complaint (doc. 14), Drs. Darby Marshall, John

Westine, and Sivetha Collins, whom Defendant has not asserted are independent

contractors, and it is not clear from either the Plaintiff or the Defendant what each of

these physicians did or did not do with regard to his surgery. The medical evidence

provides no clarity. In its Statement of Facts attached to the motion (doc. 47),

Defendant asserts only that “Dr. Terkonda was the attending surgeon who performed

surgery to repair the plaintiff’s jaw fractures.” Narrowing Plaintiff’s general claim of

malpractice to specific medical personnel and attaching liability to the Defendant can

only be accomplished by extensive and complicated discovery procedures far above the

abilities of this pro se Plaintiff. For this reason and others set forth below, if this case

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goes forward it would be appropriate to appoint Plaintiff counsel in the opinion of the

undersigned.

VII. Defendant’s Motion for Summary Judgment (doc. 40).

In this motion, Defendant contends that Plaintiff has failed to disclose a medical

expert to testify to the prevailing standard of care and under Florida law expert

testimony is generally required to establish this standard. 

The Court finds that Plaintiff’s letter from Dr. Graper, who states his opinion that

the previous practitioner “did a unilateral reduction leaving the opposite side still

dislocated,” is sufficient to raise an issue of material fact regarding the standard of care

and for purposes of this motion constitutes a contrary expert opinion. Thus, insofar as

Defendant seeks summary judgment on this ground, the motion is denied.

However, the undersigned agrees that experts will be necessary to effectively

present the facts at issue in this lawsuit. Plaintiff has attempted to engage in discovery

without the aid of counsel, and to his credit, has now avoided three efforts to dismiss his

case. (Docs. 20, 40, 44). However, this lawsuit has reached a juncture where it

appears that it can only go forward with appointed counsel. Once counsel makes an

appearance, new pleadings will need to be filed, and a new scheduling order entered, at

which point expert witnesses will be named. This case is old and what is herein

recommended will essentially start the proceedings over. However, it has only been

with the submission of the medical records that the Court has had an opportunity to

address the merits of the case and finds that a viable claim has been made, albeit

inartfully, and the nature of this suit is too complex to be managed pro se. 

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The parties are again encouraged to consent to the jurisdiction of the magistrate

judge to facilitate an earlier trial setting, but in any event the magistrate judge can be

utilized for a settlement conference at the parties earliest convenience and upon their

mutual consent. If the parties wish to discuss settlement they are strongly encouraged

to file a joint motion for this relief and should do so as soon as practicable. 

In light of the foregoing, it is respectfully RECOMMENDED that Defendant’s

motion for partial summary judgment (doc. 46) be GRANTED, and that Plaintiff’s claims

against the government under the FTCA for medical care provided by Dr. Terkonda

should be dismissed. Defendant’s other motions (docs. 40 and 44) should be DENIED,

and this cause remanded to the undersigned for further proceedings consistent with the

recommendations set forth above.

IN CHAMBERS at Gainesville, Florida, this 27th day of June, 2006.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party’s objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.

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