[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals
For the Eleventh Circuit

____________________

No. 22

- 12733

Non

- Argument Calendar

____________________

KACI C. MYERS,

Plaintiff

- Appellant,

versus UNITED STATES OF AMERICA,

Defendant

- Appellee.

____________________ Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:19

- cv

- 02486

- CAP

____________________ USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 1 of 202 Opinion of the Court 22

- 12733

Before W ILSON , L UCK , and J ULIE C ARNES , Circuit Judges.

PER CURIAM:

Plaintiff in this pro se action asserts medical malpractice claims under the Federal Tort Claims Act (“FTCA”) arising fromher treatment at the Atlanta Veterans Administration Medical Center (“VAMC”). Specifically, Plaintiff cl aims she received inadequate care from doctors at the VAMC during a hysterectomy and emergency surgery in 2016 and follow

- up care in 2017. The Government moved for summary judgment on Plaintiff’s FTCA claims and the district court granted the motion, hold ing that Plaintiff failed to present evidence that the VAMC doctors named in her complaint breached the applicable standard of care or that any suchbreach proximately caused Plaintiff’s alleged injuries. After a careful review of the record and the brief ing submitted by the parties,

we AFFIRM

. BACKGROUNDIn her complaint, Plaintiff asserts numerous medical malpractice claims arising from her treatment by Drs. Jennifer Goedken and Alfredo Nieves 1 at the Atlanta VAMC. 2 The claims primarily relate t o a hysterectomy Dr. Goedken performed on Plaintiff in 2016 and follow

- up treatment for complications

1 Dr. Nieves is alternately referred to in the record as Dr. Nieves and Dr. Nieves

- Gonzalez. We refer to him in this opinion as Dr. Nieves.

2 The operative complaint is Plaintiff’s second verified pro se complaint. USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 2 of 2022

- 12733 Opinion of the Court 3

provided by Drs. Goedken and Nieves at the VAMC ER the week after the surgery.Plaintiff began treatment at the Atlanta VAMC clinic for various gynecolo gical problems in August 2010. Most relevant here, Dr. Goedken treated Plaintiff for pelvic and menstrual pain near the end of 2015. After several unsuccessful courses of treatment,Dr. Goedken recommended, and Plaintiff agreed to undergo, a laparoscopic

- assisted vaginal hysterectomy and labial cyst removal. Dr. Goedken performed the hysterectomy on June 7, 2016. Plaintiff claims Dr. Goedken perforated her bowel with a Veressneedle during the surgery, and that she failed to document the perforation in the surgical records. Plaintiff alleges further that Dr. Goedken improperly discharged her from the hospital the day aftersurgery despite a high white blood cell count indicating an infection. Plaintiff returned to the VAMC Emergency Room (“ER”) on June 15, 2016, complaining of a swollen abdomen, loss of appetite, fever, and chills. Plaintiff claims she arrived at the ER with sepsis,and the Government agrees that at some point during her treatment at the ER she met the criteria for sepsis, but not sept ic shock. Plaintiff was evaluated in the ER by Drs. Goedken and Nieves. Based on a pelvic and abdominal CT scan, Dr. Nieves determinedthat Plaintiff had a pelvic abscess. Plaintiff claims the CT scan indicated a bowel obstruction, but Dr. Nieves testifi ed that Plaintiff’s bowel was not obstructed but rather compromised externally due to infection. USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 3 of 204 Opinion of the Court 22

- 12733

Dr. Nieves performed surgery on June 16, 2016, to drain Plaintiff’s abscess. During the surgery, Dr. Nieves noted and removed a necrotic left ovary. He also oversewed a small indentation on a segment of Plaintiff’s bowel with dissolvable sutures, buthe did not document the suturing procedure in the surgical records. Dr. Nieves drained Plaintiff’s abscess during the surgery as planned, but Plaintiff claims h e negligently failed to submit a sample of the drainage to pathology.When Dr. Nieves spoke to Plaintiff the day after the drainage surgery, he advised her that she had an infection, but he denied that her bowel was perforated. In a subsequent patient c are meeting, however, Plaintiff was advised that Dr. Nieves had stitched over a small dimple in her bowel during the drainage surgery to ensure the bowel would not open. Plaintiff claims the size of the dimple is consistent with the size of a Veress needl e. Plaintiff had a slow recovery from the drainage surgery, but she was able to be discharged from the hospital on oral antibiotics on June 28, 2016. She claims her recovery was hindered by hermisdiagnosis with upper right stomach pain as her primary compla int instead of sepsis, abdominal abscesses, bowel injury, and necrotic left ovary. According to Plaintiff the failure to properly diagnose her caused additional damage, including difficulty with her follow

- up care in the fall of 2016 and her subsequent mi sdiagnosis and improper treatment with antibiotics when she returned to the ER in January 2017. USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 4 of 2022

- 12733 Opinion of the Court 5

Based on the alleged treatment errors described above, Plaintiff filed the pro se complaint in this case, asserting numerous medical malpractice claims under t he FTCA. Briefly summarizingher claims, Plaintiff alleges in her complaint that Dr. Goedken perforated her bowel with a Veress needle during the hysterectomy surgery and compounded the error by failing to document the complication, that she prematurely d ismissed Plaintiff from the hospital after her hysterectomy despite a high white blood cellcount indicating an infection, and that she failed to properly diagnose sepsis when Plaintiff returned to the VAMC ER the following week. As for Dr. Nieves, Plaint iff alleges that he misdiagnosed her when he treated her at the VAMC ER, that he failed to document the bowel suturing procedure he performed during the drainagesurgery, and that he failed to submit the drainage substance to pathology. 3 According to Pla intiff, these medical errors caused

3 Plaintiff’s statement of facts attac hed to her complaint also includes allegations related to a sexual assault allegedly inflicted by a male chaperone during a gynecology visit to the VAMC in 2012 and harassment by an off

- duty VA police officer in 2016. The district court held that Plaintif f had abandoned these claims. Plaintiff does not challenge that holding on appeal, and she does not present any substantive argument as to the claims in her appellate briefing, although she mentions in passing the sexual assault allegation. Accordingly,

w e find that Plaintiff has abandoned any sexual assault or harassment claims and we do not address those claims here. See Sapuppo v. Allstate Floridian Ins. Co. , 739 F.3d 678, 680 (11th Cir. 2014) (“When an appellant fails to challenge properly on appeal o ne of the grounds on which the district court based its judgment, he is deemed to have abandoned any challenge of that ground, and it follows that the judgment is due to be affirmed.”). USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 5 of 206 Opinion of the Court 22

- 12733

physical injury, pain and suffering, and emotional trauma compensable in the amount of $25 million in damages. The parties filed cross

- motions for summary judgment as to Plaintiff’s FTCA claims. In support of its motio n, the Government argued there was no competent evidence to establish (1) a breach of the applicable standard of care or (2) that Plaintiff’s injuries were proximately caused by such a breach

— both of which elements are essential to a medical malpractice cl aim under the legal standard that governs this case. Plaintiff, on the other hand, argued that the Government had admitted all the material facts underlying her claims and, consequently, that she was entitled to judgment on those claims as a matter of law

. The district court granted the Government’s motion for summary judgment. The court noted in its summary judgment order that FTCA claims are governed by the law of the state where the alleged tort occurred, here Georgia. As argued by the Government, t o prevail on a medical malpractice claim under Georgia law, a plaintiff must prove that (1) the medical professionals who are the subject of the claim breached a duty owed to the plaintiff by “failing to exercise the requisite degree of skill and care” in treating her and (2) the failure proximately caused the plaintiff’s alleged injury. See Zwiren v. Thompson , 276 Ga. 498, 499 (2003). Georgia law generallyrequires both elements to be proven through expert testimony because they involve “specialized expe rt knowledge beyond the ken of the average layperson.” See id. at 500. Because Plaintiff did not offer expert testimony as to either element, the district court USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 6 of 2022

- 12733 Opinion of the Court 7

agreed with the Government that she did not present sufficient evidence to survive summary ju dgment. Accordingly, the courtgranted the Government’s motion for summary judgment and denied Plaintiff’s cross

- motion.Plaintiff appeals the district court’s summary judgment order. Plaintiff concedes in her appellate brief that she failed to provide expert testimony to support her medical malpractice claims, but she argues that expert testimony is not required because some of her claims are grounded in principles of ordinary negligence and admitted errors rather than professional negligence. In supp ort ofthis argument, Plaintiff relies on Dr. Nieves’s testimony acknowledging that he failed to diagnose her with sepsis or to document her sepsis, bowel obstruction, and bowel suturing. In addition to being negligent, Plaintiff claims Dr. Nieves’s docum entation errors constituted fraudulent concealment and falsification of medicalrecords and that they violated various state and federal laws, including O.C.G.A. §§ 16

- 10

- 94.1, 16

- 10

- 20, and 51

- 6

- 2 and 18 U.S.C. § 1035. Plaintiff also complains in her bri ef about discovery violations and procedural errors committed by the Government, including an untimely filed summary judgment motion. As discussed below, the documentation errors, procedural issues, and discovery violations alleged in Plaintiff’s appella te brief do not remedy her admitted lack of competent evidence to provethat any VAMC doctor or medical professional breached the applicable standard of care in treating her or that such a breach proximately caused the injuries for which she seeks to recov er in her USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 7 of 208 Opinion of the Court 22

- 12733

complaint. Contrary to Plaintiff’s argument on appeal, the claimsasserted in her complaint are for the most part grounded in professional negligence rather than ordinary negligence or admitted errors, and thus they require competent evidence pr oving professional negligence. To the extent Plaintiff arguably alleges ordinary negligence in the form of documentation errors, she still needs

— and admittedly has failed to provide

— expert testimony to show how the errors proximately caused her claimed in juries. Finally, Plaintiff did not assert a fraud or misrepresentation claim below,but even if she had, the statutes and regulations cited in her appellate briefing do not appear to give rise to a compensable claim under the FTCA, nor do they support her claimed damages in this case. Accordingly, we affirm the district court’s order granting summary judgment to the Government on Plaintiff’s FTCA claims and denying Plaintiff’s cross

- motion.

DISCUSSION

I. Standard of Review We review the district court’s summary judgment order de

novo , applying the same standard as the district court. Travelers Prop. Casualty Co. of Am. v. Ocean Reef Charters LLC , 71 F.4th 894, 904 (11th Cir. 2023). When conducting our review, we construe t hefacts and draw all inferences in the light most favorable to the nonmoving party. See Harrigan v. Metro Dade Police Dep’t , 977 F.3d 1185, 1192 (11th Cir. 2020). Viewing the evidence in that manner, summary judgment is appropriate when “there is no genuine dispute USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 8 of 2022

- 12733 Opinion of the Court 9

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

As a pro se litigant, Plaintiff’s pleadings “are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States , 148 F.3d 1262, 1263 (11th Cir. 1998). However, this leniency does not give a court “license to serve as de facto counsel for a party, or torewrite an otherwise deficient pleading in order to sustain an action.” GJR Invs., Inc. v. Cnty. of Escambia , 132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted), overruled on other grounds by Ashcroft v. Iqbal , 55 6 U.S. 662 (2009).

II. Analysis

A. Abandoned Claims and Irrelevant Allegations We note as an initial matter that Plaintiff abandoned manyof the claims asserted in her appellate brief by not raising them below, and that she likewise abandoned several of the cla ims she asserted below by not addressing them on appeal. With respect to the former category of claims

— claims that were abandoned below

— Plaintiff argues on appeal that the Government is liable for fraudulent concealment, misrepresentation, and falsificati on of hermedical records based on various documentation errors committed by Dr. Nieves. In support of these claims, Plaintiff cites state and federal laws governing medical record

- keeping, including O.C.G.A. §§ 16

- 10

- 20, 16

- 10

- 94.1, and 51

- 6

- 2 and 18 U.S .C. § 1035, USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 9 of 2010 Opinion of the Court 22

- 12733

as well as VA guidelines. 4 According to Plaintiff, Dr. Nieves’s failure to keep accurate medical records in her case violated these laws and thus gives rise to a claim for recovery. Relatedly, Plaintiff argues on appeal that Dr. Nieves had a history of malpractice that could not be uncovered because he was registered under the name Dr. Nieves with the Georgia Medical Board but referred to himself
as Dr. Nieves

- Gonzalez while practicing at the VAMC, and that the discrepancy violated O.C.G.A. § 43

- 34A

- 3(c), a Georgia statute governing the creation and contents of physician profiles by the Georgia Composite Medical Board. Even assuming Dr. Nieves violated the cited statutes and guidelines, Plaintiff makes no plausible argument that the violation is cognizable under the FTCA. See Smith v. United States , 14 F.4th 1228, 1232 n.1 (11th Cir. 2021) (noting that the FTCA “does not cover breaches of federal statutory or regulatory duties that do not apply to private parties” and that it expressly exclude s claims for “misrepresentation [and] deceit” (citation and quotation marks omitted)). But in any event, Plaintiff abandoned her claims for fraud, misrepresentation, or falsification of records by failing to

4 O.C.G.A. §§ 16

- 10

- 20 and 16

- 10

- 94.1 make it a crime to misrepres ent or falsify statements in a document within the jurisdiction of the State government or to intentionally conceal, destroy, alter, or falsify a patient’s health record, respectively. Although O.C.G.A. § 51

- 6

- 2 creates a private cause of action for willf ul misrepresentation of a material fact, it does not establish a private cause of action for mere concealment except in certain circumstances. Finally, 18 U.S.C. § 1035 makes it a crime to misrepresent or falsify a fact related to payment for healthcare b enefits or services. USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 10 of 2022

- 12733 Opinion of the Court 11

assert those claims below. 5 See Access Now v. Sw. Airlines Co., Inc.

, 385 F.3d 1324, 1332 (11th Cir. 2004) (explaining that this Court will entertain an argument raised for the first time on appeal only in exceptional circumstances that do not apply here, for example, if the issue involves a pure que stion of law or if its proper resolution is beyond any doubt). Because the district court did not have anopportunity to rule on Plaintiff’s fraud, misrepresentation, and falsification claims, we do not consider those claims on appeal. See id.

at 1332

– 33

. As to the claims abandoned on appeal, Plaintiff’s appellatebrief focuses solely on Dr. Nieves’s failure to diagnose her with sepsis in the VAMC ER and his various alleged documentation errors. It does not identify as an issue or otherwise address any of theclaims in the operative complaint related to: (1) Dr. Goedken’s alleged negligence, including the perforation of Plaintiff’s bowel with a Veress needle and her discharge from the hospital with a high white blood cell count, (2) Dr. Nieves’s failure to submit the substances from Plaintiff’s drainage surgery to pathology, or (3) treatment errors during Plaintiff’s follow

- up visit in January 2017. Plaintiff presumably abandoned these claims because they so obviously fall into the category of medical n egligence rather than ordinary negligence and, as such, they cannot survive summary judgment

5 Although Plaintiff made a vague and passing reference to “fraud” in her summary judgment brief below, all the claims in her complaint are grounded in negligence. She did not seek to amend her complaint to add such claims, nor did s he otherwise suggest in her complaint that there was any basis for her to recover against the Government for fraud. USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 11 of 2012 Opinion of the Court 22

- 12733

given Plaintiff’s admitted failure to produce any expert testimony. See Beach v. Lipham , 276 Ga. 302, 304 (2003) (“The proof required to rebut th[e] presumption [ medical services were performed in anordinary, skillful manner] must come from expert medical witnesses.” (quotation marks omitted)). Nevertheless, we affirm the district court’s order granting summary judgment as to these claims on the ground of abandon ment. 6 See Sapuppo v. Allstate Floridian Ins. Co. , 739 F.3d 678, 680 (11th Cir. 2014) (“When an appellant fails to challenge properly on appeal one of the grounds on which the district court based its judgment, he is deemed to have abandoned any challeng e of that ground, and it follows that the judgment is due to be affirmed.”).

6 Although we rest our affirmance on abandonment grounds, we note that Plaintiff did not present any evidence in response to the testimon y of Drs. Goedken and Nieves that they complied with the applicable standard of care throughout the course of her treatment. Specifically, Dr. Nieves testified that he inspected Plaintiff’s entire bowel during the drainage surgery and did not see evidence of a perforation during the hysterectomy. As to her subsequent

care, Dr. Goedk e n testified that the timing of Plaintiff’s discharge was within the standard of care s et out by the American College of Obstetricians and Gynecologists , that it is not unusual for a patient to have a blood cell count in therange Plaintiff experienced one day after surgery, and that discharge was appropriate given Plaintiff’s measures on other benchmarks. Dr. Nieves stated that he and Dr. Goedken believed Plaintiff’s symptoms at the ER were related to a postoperative pelvic abscess, which was not caused or exacerbated by medical negligence, and which was best treated by the interventions provided to her

— antibiotics and drainage surgery. According to Dr. Nieves, he was unable to draw a culture from the drainage substance to send to pathology. USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 12 of 2022

- 12733 Opinion of the Court 13

Finally, Plaintiff includes in her appellate brief a lengthy discussion of the Government’s alleged procedural errors and discovery violations below. For example, Plaintiff notes that the Government’s motion for summary judgment was untimely and that theGovernment improperly sought to change its responses to Plaintiff’s requests for admissions as to certain matters. Plaintiff does not explain, and it is not readily apparen t, how the procedural errors and discovery violations noted in her appellate brief are relevant to the district court’s summary judgment decision. Importantly, the errors and violations do not supply the evidence that is essential to Plaintiff’s claims an d that is missing from the record:expert testimony indicating that the doctors named in her complaint or other medical personnel at the VAMC breached the standard of care in treating her or that any such breach proximately caused her to suffer an injury. Nor does Plaintiff argue that the errors or violations prevented her from producing such evidence. Plaintiff’s arguments concerning these issues are thus irrelevant to her appeal, and we do not consider them further.

B. Plaintiff’s Remaining FTCA Claims

A s mentioned above, Plaintiff’s argument on appeal relies entirely on Dr. Nieves’s failure to diagnose her with sepsis in theVAMC ER, as well as his alleged documentation errors with respect to her sepsis, bowel obstruction and perforation, and bowel

sutur ing. Again, Plaintiff seeks to recover from the Government for injuries allegedly caused by these errors pursuant to the FTCA. As relevant here, the FTCA authorizes a plaintiff to pursue “claims against the [Federal Government] seeking money damages for USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 13 of 2014 Opinion of the Court 22

- 12733

injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of a federal employee acting within the scope of his employment.” Smith , 14 F.4th at 1232 (quotation marks omitted). The Government is liable unde r the FTCAfor such a wrongful act or omission “if a private person” in like circumstances “would be liable to the [plaintiff] in accordance with the law of the place where the act or omission occurred.” Id. (citing 28 U.S.C. § 1346(b)(1)). It is undispu ted that Dr. Nieves was a federal employee acting within the scope of his employment when he treated Plaintiff. In the context of the FTCA, “the law of the place where the act or omission occurred refers to the law of the state where the alleged tort occu rred.” Id. (quotation marks omitted). Here, that state is Georgia.As set out in her complaint, Plaintiff’s claims sound in medical malpractice. To prevail under Georgia law on a medical malpractice claim, a plaintiff must prove: (1) a duty arising from the doctor

- patient relationship, (2) a breach of that duty by faili ng toexercise the requisite degree of skill and care in providing treatment, and (3) that the failure proximately caused the plaintiff injury. Zwiren , 276 Ga. at 499. As to the second element, Georgia law presumes medical services have been provided in an ordinarilyskillful manner and the plaintiff has the burden of proving otherwise. Beach , 276 Ga. at 303 (reaffirming the presumption of duecare that applies in Georgia medical malpractice cases). Expert testimony generally is required to meet that bu rden. Id. at 304 (“The proof required to rebut [the] presumption [of due care in a medical malpractice case] must come from expert medical witnesses.” USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 14 of 2022

- 12733 Opinion of the Court 15

(quotation marks omitted)). Likewise, a plaintiff must present expert testimony to establish causation in a medical malpractice case, and the proffered expert “is required to express some basis for both the confidence with which his [causation] conclusion is formed, and the probability that his conclusion is accurate.” Zwiren , 276 Ga. at 501 (quotation mar ks omitted). Plaintiff concedes that she failed to provide expert testimonyto show either a breach of the standard of care by the VAMC doctors who treated her or that any such breach proximately caused her claimed injuries. Nevertheless, Plaintiff argu es the districtcourt erred when it granted summary judgment to the Government because her claims are (1) grounded in ordinary negligencerather than professional negligence, and thus exempt from the expert testimony requirement or (2) supported by admissi ons of negligence made by the VAMC doctors. It is true that a Georgia plaintiff is not required to present expert testimony if her claim against a medical professional involves ordinary negligence rather than professional negligence, but the claims set ou t in the operative complaint overwhelmingly

— and clearly

— involve professional negligence. See Se. Pain Specialists, P.C. v. Brown , 303 Ga. 265, 271 (2018) (“Medical malpractice exists . . . where the act or omission by a professional requires the exercise of expert medical judgment.” (quotation marks omitted)). To the extent any of Plaintiff’s claims arguably raise an issue of ordinary negligence, she stillwould need expert testimony to show that the negligence proximately caused the medical injuries clai med in her complaint, which she admittedly does not have. Likewise, because of the lack of USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 15 of 2016 Opinion of the Court 22

- 12733

competent evidence to establish causation, the admissions cited in Plaintiff’s appellate brief do not save her FTCA claims in this case.
First, Plaintiff’s clai m that Dr. Nieves negligently failed to diagnose her with sepsis based on the symptoms she presented in the VAMC ER clearly is grounded in medical negligence rather than ordinary negligence. See id. at 266 (holding that the lower court “erred in concludin g that an ordinary negligence instructionwas authorized by evidence that a doctor . . . responded inadequately to medical data provided by certain medical equipment during a medical procedure”). As the Georgia Court of Appeals has explained, whether a cl aim alleges professional or ordinary negligence “depends on whether the . . . alleged negligence required the exercise of professional judgment and skill.” Giddens v. Med. Ctr. of
Central Ga. , 353 Ga. App. 594, 604 (2020) (citation omitted). A claim that “calls into question the conduct of the professional in his area of expertise” is grounded in professional negligence whereas aclaim based on “[a]dministrative, clerical, or routine acts demanding no special expertise fall[s] in the realm” of ordinary ne gligence.
Id. Choosing the correct diagnosis based on the array of symptomspresented by a patient in the ER is a quintessentially medical decision rather than an administrative or clerical act. See Se. Pain Specialists, P.C. , 303 Ga. at 266. As such, Plaintiff must present expert testimony to show that Dr. Nieves’s failure to diagnose sepsis breached the applicable standard of care.Nor can Plaintiff rely on an admission of negligence with respect to the sepsis diagnosis, as she argues in her appella te brief. USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 16 of 2022

- 12733 Opinion of the Court 17

Plaintiff claims in her brief that Dr. Nieves admitted he failed to diagnose her with sepsis in the VAMC ER and, consequently, that she does not need expert testimony to establish that fact. Presumably the admission Plaintiff is referring to is the Government’s statement of undisputed material fact indicating that Plaintiff “met the criteria for sepsis but not septic shock” when Dr. Nieves treated her at the VAMC ER. That statement establishes that Plaintiff displayed symptoms of sepsis at some point during her treatment at the VAMC ER, but it does not constitute an admission that Dr. Nieves or any other VAMC employee breached the standard ofcare in response to Plaintiff’s symptoms, nor does any such admission appear anywhere else in the record . On the contrary, Dr. Nieves testified that based on Plaintiff’s symptoms and a CT scan,he and Dr. Goedken believed she was suffering from a postoperative pelvic abscess, which was not caused or exacerbated by medical negligence, and which was best trea ted by the interventions provided to her: antibiotics and drainage surgery. In other words, Dr. Nieves did not admit negligence, but rather testified that his care met the applicable standard of care in diagnosing and treating Plaintiff’s symptoms in the ER.Several of Dr. Nieves’s alleged documentation errors similarly call into play his medical judgment and expertise. For example, Plaintiff argues Dr. Nieves negligently failed to document her bowel obstruction and perforated bowel. According to Plaint iff,such documentation is an administrative or clerical act that requires no special expertise, and Dr. Nieves’s failures in this regard thus qualify as ordinary negligence. The problem with Plaintiff’s USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 17 of 2018 Opinion of the Court 22

- 12733

argument is that Dr. Nieves testified that, in his opinion: (1) Plaintiff’s bowel was not obstructed but rather externally compromised due to infection and (2) there was no evidence Plaintiff’s bowel wasperforated, although he did see a dimple or indentation on a segment of the bowel that needed to be ov ersewn during surgery. Plaintiff did not present any expert testimony to challenge Dr. Nieves’s opinion that she did not have an obstructed or perforated bowel, so the only inference that can be drawn from the record is that Dr. Nieves failed to document these conditions because heconcluded Plaintiff did not suffer from them. That again is a medical determination, the diagnosis and documentation of which cannot be considered ordinary negligence. See Giddens , 353 Ga. App.

at 604. The only alleged doc umentation error that possibly could qualify as admitted or ordinary negligence is Dr. Nieves’s failure tonote in the surgical records the bowel suturing he performed during the drainage surgery. As Plaintiff points out, Dr. Nieves, in his deposition, ch aracterized this documentation failure as a “lapse.” We will assume, though we do not decide, that this testimony shows a breach of the standard that applies to documentation. Wealso will assume that Dr. Nieves’s documentation error can be considered an administrative or clerical error, albeit the error is similar to a doctor’s breach of the duty to inform a patient of her medicalcondition, which under Georgia law constitutes medical negligence. See Piedmont Hosp., Inc., v. D.M. , 335 Ga. App. 442, 447(2015) (holding that the plaintiff’s claims based on his doctor’s failure to notify him of positive HIV test results arose “out of the USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 18 of 2022

- 12733 Opinion of the Court 19

breach of a professional duty to inform [the plaintiff] of his medical condition and thus must be considered classic medi cal malpractice claims”).Nevertheless, and even assuming Dr. Nieves’s failure to document Plaintiff’s bowel suturing qualifies as ordinary negligence oran admitted error, Plaintiff’s FTCA claim still cannot survive summary judgment because she has n ot presented any competent evidence that the error proximately caused her to suffer an injury. Under Georgia law, “a plaintiff cannot recover for medical malpractice, even where there is evidence of negligence, unless [she] establishes . . . that the negl igence either proximately caused or contributed to cause plaintiff harm.” Zwiren , 276 Ga. at 500 (quotationmarks omitted). Further, causation must be proven by expert testimony establishing a causal connection that is “more than mere chance or speculati on.” Id. at 501 (quotation marks omitted). Plaintiff admits she failed to present such expert testimony in this

case. In short, even assuming Dr. Nieves breached the standard ofcare when he failed to document Plaintiff’s bowel suturing procedure, ther e is no competent evidence in the record to show that the breach proximately caused Plaintiff’s claimed injuries. Plaintiff claims Dr. Nieves’s documentation error made it difficult for her to get proper follow

- up care and caused her to experience mental struggles and PTSD, as well as kidney injury, irritable colon, and adhesions. But without expert testimony to substantiate and explain it further, the claimed connection between Dr. Nieves’s USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 19 of 2020 Opinion of the Court 22

- 12733

failure to document the bowel suturing and Plaintiff’s alleged i njuries is “mere . . . speculation.” Id. As such , the district court correctly granted the Government’s motion, and denied Plaintiff’s

cross

- motion, for summary judgment as to the FTCA claims asserted in this case.

CONCLUSION For the foregoing reasons, we AFFIRM the district court’s order granting the Government’s motion for summary judgment on Plaintiff’s FTCA claims and denying Plaintiff’s cross

- motion. USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 20 of 20