[DO NOT PUBLISH]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 20
2 Opinion of the Court 22-12733

Before WILSON, LUCK, and JULIE CARNES, Circuit Judges.

PER CURIAM:

Plaintiff in this pro se action asserts medical malpractice 

claims under the Federal Tort Claims Act (“FTCA”) arising from 

her treatment at the Atlanta Veterans Administration Medical Center (“VAMC”). Specifically, Plaintiff claims 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, holding that Plaintiff 

failed to present evidence that the VAMC doctors named in her 

complaint breached the applicable standard of care or that any such 

breach proximately caused Plaintiff’s alleged injuries. After a careful review of the record and the briefing submitted by the parties, 

we AFFIRM. 

BACKGROUND

In her complaint, Plaintiff asserts numerous medical malpractice claims arising from her treatment by Drs. Jennifer 

Goedken and Alfredo Nieves1 at the Atlanta VAMC.2 The claims 

primarily relate to 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 20
22-12733 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 gynecological 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 Veress 

needle 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 after 

surgery 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 septic shock. 

Plaintiff was evaluated in the ER by Drs. Goedken and Nieves.

Based on a pelvic and abdominal CT scan, Dr. Nieves determined 

that Plaintiff had a pelvic abscess. Plaintiff claims the CT scan indicated a bowel obstruction, but Dr. Nieves testified 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 20
4 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, but 

he did not document the suturing procedure in the surgical records. Dr. Nieves drained Plaintiff’s abscess during the surgery as 

planned, but Plaintiff claims he 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 care 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 needle. 

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 her 

misdiagnosis with upper right stomach pain as her primary complaint 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 misdiagnosis 

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 20
22-12733 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 the FTCA. Briefly summarizing 

her 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 dismissed Plaintiff from the 

hospital after her hysterectomy despite a high white blood cell 

count 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, Plaintiff 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 drainage 

surgery, and that he failed to submit the drainage substance to pathology.3 According to Plaintiff, these medical errors caused 

3 Plaintiff’s statement of facts attached 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 Plaintiff 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, 

we 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 one 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 20
6 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 motion, 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 claim 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, to 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 generally 

requires both elements to be proven through expert testimony because they involve “specialized expert 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 20
22-12733 Opinion of the Court 7

agreed with the Government that she did not present sufficient evidence to survive summary judgment. Accordingly, the court 

granted 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 support of 

this 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 documentation errors 

constituted fraudulent concealment and falsification of medical 

records 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 brief 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 appellate brief 

do not remedy her admitted lack of competent evidence to prove 

that 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 recover in her 

USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 7 of 20
8 Opinion of the Court 22-12733

complaint. Contrary to Plaintiff’s argument on appeal, the claims 

asserted 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 proving 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 injuries. 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 the 

facts 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 20
22-12733 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 to 

rewrite 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, 556 U.S. 662 (2009).

II. Analysis

A. Abandoned Claims and Irrelevant Allegations

We note as an initial matter that Plaintiff abandoned many 

of the claims asserted in her appellate brief by not raising them below, and that she likewise abandoned several of the claims 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 falsification of her 

medical 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 20
10 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 excludes 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 misrepresent 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 

willful 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 benefits or services.

USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 10 of 20
22-12733 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 question of law or if its proper resolution 

is beyond any doubt). Because the district court did not have an 

opportunity 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 appellate 

brief 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 the 

claims 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 negligence 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 she 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 20
12 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 an 

ordinary, 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 abandonment.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 challenge 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 testimony 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. Goedken testified that the timing of Plaintiff’s discharge was within 

the standard of care set out by the American College of Obstetricians and Gynecologists, that it is not unusual for a patient to have a blood cell count in the 

range 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 20
22-12733 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 the 

Government 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 apparent, 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 and 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

As mentioned above, Plaintiff’s argument on appeal relies 

entirely on Dr. Nieves’s failure to diagnose her with sepsis in the 

VAMC ER, as well as his alleged documentation errors with respect to her sepsis, bowel obstruction and perforation, and bowel 

suturing. 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 20
14 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 under the FTCA 

for 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 undisputed 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 occurred.” 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 failing to 

exercise 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 ordinarily 

skillful manner and the plaintiff has the burden of proving otherwise. Beach, 276 Ga. at 303 (reaffirming the presumption of due 

care that applies in Georgia medical malpractice cases). Expert testimony generally is required to meet that burden. 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 20
22-12733 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 marks omitted). 

Plaintiff concedes that she failed to provide expert testimony 

to 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 argues the district 

court erred when it granted summary judgment to the Government because her claims are (1) grounded in ordinary negligence 

rather than professional negligence, and thus exempt from the expert testimony requirement or (2) supported by admissions 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 out 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 still 

would need expert testimony to show that the negligence proximately caused the medical injuries claimed 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 20
16 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 claim 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 concluding that an ordinary negligence instruction 

was 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 claim 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 a 

claim based on “[a]dministrative, clerical, or routine acts demanding no special expertise fall[s] in the realm” of ordinary negligence. 

Id. Choosing the correct diagnosis based on the array of symptoms 

presented 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 appellate brief. 

USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 16 of 20
22-12733 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 of 

care 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 treated 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 Plaintiff, 

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 20
18 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 was 

perforated, although he did see a dimple or indentation on a segment of the bowel that needed to be oversewn 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 he 

concluded 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 documentation error that possibly could 

qualify as admitted or ordinary negligence is Dr. Nieves’s failure to 

note in the surgical records the bowel suturing he performed during the drainage surgery. As Plaintiff points out, Dr. Nieves, in his 

deposition, characterized 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. We 

also 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 medical 

condition, 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 20
22-12733 Opinion of the Court 19

breach of a professional duty to inform [the plaintiff] of his medical 

condition and thus must be considered classic medical malpractice 

claims”). 

Nevertheless, and even assuming Dr. Nieves’s failure to document Plaintiff’s bowel suturing qualifies as ordinary negligence or 

an admitted error, Plaintiff’s FTCA claim still cannot survive summary judgment because she has not 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 negligence either proximately caused or contributed to cause plaintiff harm.” Zwiren, 276 Ga. at 500 (quotation 

marks omitted). Further, causation must be proven by expert testimony establishing a causal connection that is “more than mere 

chance or speculation.” 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 of 

care when he failed to document Plaintiff’s bowel suturing procedure, there 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 20
20 Opinion of the Court 22-12733

failure to document the bowel suturing and Plaintiff’s alleged injuries 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