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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,

Defendant.

 /

REPORT AND RECOMMENDATION

Plaintiff, a non-prisoner proceeding pro se and in forma pauperis, bring this

cause of action pursuant to the Federal Tort Claims Act, 28 U.S.C. §2674, et seq. 

Defendant has filed a motion to dismiss (doc. 20), which included evidentiary material,

and the motion was construed as a motion for summary judgment. (Doc. 23). Plaintiff

was advised of his obligations in responding to a motion for summary judgment, and he

has filed responses. (Docs. 22, 24, and 25).

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

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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

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, unnecessarily extracted teeth, left his jaw dislocated,

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 

In reviewing this case, the Court anticipated considering the matters which have

been attached by Defendants to the motion to dismiss. Thus, under Rule 12(b), Federal

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Rules of Civil Procedure, the motion to dismiss was converted into a Rule 56 motion for

summary judgment.

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.

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

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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

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. Defendants’ Rule 56(e) evidence

a) Claim for Damage, Injury, or Death (doc. 20, exhibit 1)

Plaintiff filed an administrative claim on April 29, 2002, alleging that the VA

operated on him on December 9, 1999, and pulled teeth that did not need to be pulled,

left Plaintiff unable to chew, eat or open his mouth properly, which caused weight loss

and damage to his appearance causing depression and low self-esteem. Plaintiff

claims that he did not become aware of the negligence of these doctors until he sought

a second opinion from Dr. Graper between October and November 2001.

b) Affidavit of Sue Meyer (doc. 20, exhibit 2)

Ms. Meyer is Regional Counsel for this area for the Department of Veterans

Affairs and she has searched her files and found that Plaintiff did not file an

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administrative claim until May 2, 2002. This claim was denied on April 7, 2003, and his

request for reconsideration was denied on June 27, 2003.

The letter dated April 7, 2003, denied Plaintiff’s claim because it was filed over

two years after his surgery and because there was lack of evidence of negligence in

providing medical care to him. Specifically, the letter stated:

The severe nature of the injury that you presented to the VA, and the

delay before your presenting to the VA, were formidable challenges to

your treatment course. 

The letter denying his request for reconsideration dated June 27, 2003, also

stated: 

Our review did not reveal that an employee of the Department of Veterans

Affairs (VA) acting withn the scope of his or her employment caused injury

to you by a negligent or wrongful act. Specifically, your alleged less than

optimal outcome of the repair of your mandible fractures was not caused

by VA substandard surgical or medical care. Therefore, this claim is

denied.

IV. Plaintiff’s evidence

a) Court Order dated June 8, 2004

Plaintiff argues that this Court has already determined the issue of timeliness and

has attached the Court’s order remanding this cause to the undersigned for further

consideration. (Doc. 22, Exhibit A). The undersigned initially recommended that this

matter be dismissed because Plaintiff failed to timely file his administrative claim. 

However, Plaintiff objected to the recommendation of dismissal claiming that he did not

know about the negligence of the VA doctors until he sought and received a second

opinion in November 2001. The district judge thus remanded this cause to the

undersigned to determine “when Plaintiff realized that his continued problems were the

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result of scar tissue from the initial surgery instead of residual injuries from his initial

accident. The date of that realization will mark the accrual of his medical malpractice

claim.” 

b) Affidavit of Eddie Wheeler (doc. 24)

Plaintiff has filed a sworn affidavit that “on the occasion of November 23, 2001,

plaintiff submitted to reconstructive surgery. At this time plaintiff learned and realized

that this need for surgery was a direct and proximate result of scar tissue from the initial

surgery performed by the defendants herein.”

c) Plaintiff’s motion for summary judgment (doc.25)

The Court advised the parties that it would treat the motion as an additional

response to Defendant’s motion. It has considered the motion and Defendant’s

response (doc. 27), which adds nothing to the determination at hand.

V. Analysis

a) Limitations Period

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

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1

 Presumably, Plaintiff’s VA medical records are available to the Defendant and

could have been submitted with this motion if they supported Defendant’s contention

that Plaintiff should have been aware of his claim prior to the second surgery.

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(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). 

Defendant should have been on notice by the Court’s previous ruling that the

issue of when Plaintiff knew or should have known that the initial surgery may have

caused his additional pain and jaw dysfunction was a crucial point for determination. 

Yet, the only “evidence” submitted by the Defendant on this point is an affidavit from

Sue Meyer attesting to what the Court already knew, i.e. that Plaintiff filed his

administrative claim over two years after the initial surgery. 

Plaintiff has countered with his own affidavit that he did not know the defendant’s

actions were the cause of his continued pain and suffering until he underwent the

second surgery in November 2001. Plaintiff has not provided any details about the two

years following the surgery such as what his condition was specifically, whether he

sought follow up treatment with the VA, or whether he was seen by any medical source

until he visited Dr. Graper.1

 From the facts provided by the Plaintiff, it is entirely feasible

that Plaintiff did not know that there was hardware left in his jaw or that his jaw

remained dislocated until he had a second surgery, and he would therefore not have

connected his injury (the continued pain and dysfunction, not the original fractures) to

anything that had been done previously by the Defendant. Thus, the undersigned finds

that Plaintiff’s affidavit is sufficient to raise a genuine issue of material fact as to when

his claim accrued and to preclude summary judgment on this point.

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2

 Defendant makes this argument only generally and has wholly failed to explain

why the VA doctors did not owe Plaintiff a duty of care. It is not otherwise apparent to

the Court under what possible factual scenario would a doctor not owe a duty of care to

his patient. 

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b) Failure to state a claim

Defendant argues that Plaintiff has failed to state two of the elements of a

negligence claim, specifically that he has failed to show that a duty of care was owed to

him or that it was breached.2 On the contrary, the undersigned is of the opinion that

Plaintiff has stated a prima facie case of medical malpractice. To establish a cause of

action for medical malpractice/negligence the plaintiff must show that the defendant

owed a duty of care to the plaintiff, that the defendant breached the duty, that the

breach caused plaintiff's injury, and that damages are owed. See Ewing v. Sellinger,

758 So.2d 1196, 1997 (Fla. 4th DCA 2000); Miller v. Foster, 686 So.2d 783, 783 (Fla.

4th DCA 1997); see also Cato v. West Florida Hosp., Inc., 471 So.2d 598, 600 (Fla. 1st

DCA 1985). 

Plaintiff alleges that he was referred to the VA by a private physician, Dr.

Hamdan, who allegedly talked with Dr. Wilt at the VA and was told to send Plaintiff that

afternoon. Plaintiff presented that afternoon with a broken jaw and was told to return

the next day because the physician had already left. Plaintiff alleges that he returned

the following day, was admitted, and then abruptly discharged, and the surgery delayed

for nearly a week. Plaintiff claims that he was in severe pain and developed an infection

during this delay. Plaintiff then claims that he had continued pain and difficulty with

using his jaw and sought additional treatment nearly two years later from a private

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physician, Dr. Graper, who performed a second surgery. Plaintiff claims that Dr. Graper

told him that problems with the initial surgery prevented him from fully correcting his jaw

and presumably told him that screws and hardware had been left in the jaw, that he did

not have to have certain teeth removed to perform the prior surgery, and that the jaw

had been left dislocated. Taking Plaintiff’s version of the facts as true, he has clearly

stated the elements of a negligence claim and Defendant is not entitled to judgment as

a matter of law.

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

motion (doc. 20) be DENIED, and this cause remanded to the undersigned for entry of a

scheduling order so that discovery can proceed and this matter can be set for trial. 

IN CHAMBERS at Gainesville, Florida, this 18th day of May, 2005.

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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