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IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Monty D. Murphy

7506 Shawnee Lane #265

West Chester, OH 45069

Plaintiff,

v.

United States of America

c/o Jeff Sessions

U.S. Attorney General

950 Pennsylvania Avenue, NW

Washington, DC 20530-0001

Please also serve:

 Benjamin C. Glassman

 United States Attorney for the

 Southern District of Ohio

 Cincinnati Branch Office

 221 East 4th Street, Suite 400

 Cincinnati, OH 45202 

Defendant.

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COMPLAINT FOR DAMAGES

CLAIM OF 

UNCONSTITUITONALITY

Case No. 

Judge:

COMES NOW, Monty D. Murphy, hereinafter “Plaintiff,” and files the 

following complaint, directed to the United States of America as follows:

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I. INTRODUCTION 

1. This is an action by Plaintiff pursuant to the Federal Tort Claims 

Act, 28 U.S.C. § 2671, et seq. and 28 U.S.C. § 1346(b)(1) for money damages 

as compensation for personal injuries that were caused by negligent and 

wrongful acts and omissions of agents and/or employees of the United States 

Government while acting within the scope their employment, under 

circumstances where the Defendant, if a private person, would be liable to 

the Plaintiff in accordance with the laws of the State of Ohio. 

II. PARTIES 

2. Plaintiff, Monty D. Murphy, is a resident of Butler County, Ohio, 

located in the Southern District of Ohio. 

3. The Defendant is the United States of America. 

III. JURISDICTION AND VENUE. 

 

4. This Court has jurisdiction over this action pursuant to 28 U.S.C. 

§ 1346.

5. All or a substantial part of the acts and omissions forming the 

basis of these claims occurred in the Southern District of Ohio, and arose 

from the negligent medical care received by Plaintiff. 

6. Venue is proper in the Southern District of Ohio pursuant to 28 

U.S.C. § 1402. 

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7. Plaintiff has fully complied with the provisions of 28 U.S.C. § 

2675 of the Federal Tort Claims Act. 

8. Plaintiff timely served notice of his claim on the U.S. 

Department of Veterans Affairs in August of 2015.

9. The Department of Veterans Affairs issued a final denial of the 

claim on September 7, 2016. 

IV. FACTUAL ALLEGATIONS 

 

10. Plaintiff incorporates the allegations in the foregoing paragraphs 

as though fully set forth herein.

11. At all times relevant to this Complaint, Defendant, acting 

through the Department of Veterans Affairs, owned and/or operated a 

hospital/medical system known as the Cincinnati VA Medical Center. 

12. At all times relevant to this Complaint, various licensed 

physicians and/or technicians and/or employees were practicing within the 

course of their employment with Defendant, and administered medical care 

and treatment to Plaintiff at the Cincinnati VA Medical Center. 

13. The Plaintiff is a veteran of the United States Air Force who 

received medical care and treatment at the Cincinnati VA Medical Center

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14. The Plaintiff currently receives disability compensation for a 

service connected bilateral knee disability. 

15. On or about November 18, 2013, the Plaintiff entered the 

Cincinnati VA Medical Center for a scheduled right knee replacement 

surgery.

16. Following this surgery, the Plaintiff experienced continuous 

problems with his right knee and leg.

17. Following surgery in November of 2013, the Plaintiff had a fever 

and an elevated white blood cell count. 

18. Despite these indications of an infection, the Plaintiff was 

discharged by the Cincinnati VA Medical Center on or about November 22, 

2013.

19. Following discharge, the Plaintiff continued to have a fever and 

his knee/leg was in extreme pain. 

20. On or about November 25, 2013, the Plaintiff reported to the 

Cincinnati VA Medical Center Emergency Department with increasing right 

knee pain, fever, and a feeling of liquid sloshing around in his right knee.

21. On or about November 26, 2013, the Plaintiff had a swollen right 

knee, fever, and extreme pain. 

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22. The Plaintiff was again discharged by the Cincinnati VA Medical 

Center on or about November 27, 2015.

23. At the time of this discharge, the Cincinnati VA Medical Center 

again determined that there was no concern of any infection in the surgical 

site. 

24. Following his discharge, the Plaintiff continued to have severe 

pain, fever, swelling, chills, numbness, and a feeling of liquid in the right 

knee.

25. On or about December 11, 2013, a home health care nurse 

referred the Plaintiff to an orthopedic consult due to concerns of infection in 

the right knee. 

26. This orthopedic consult at the Cincinnati VA Medical Center 

again found no suspicion of infection in the knee. 

27. On or about January 7, 2014, a physical therapy note described 

the Plaintiff as possibly having an infection in his right knee. 

28. On or about January 7, 2014, the Veteran again reported fever, 

swelling, numbness, chills, and pain to the medical providers at the 

Cincinnati VA Medical Center.

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29. Throughout January and February of 2014, the Plaintiff made 

repeated reports of swelling, pain, fever, chills, and a feeling of sloshing in his 

knee to numerous medical professionals at the Cincinnati VA Medical Center. 

30. On or about March 11, 2014, an orthopedic note from the 

Cincinnati VA Medical Center described a warm swollen knee and the 

Plaintiff reported severe pain and fever. 

31. Following inaction on the part of the Cincinnati VA Medical 

Center, the Plaintiff sought treatment from private medical providers and 

orthopedic specialists. 

32. On or about March 27, 2014, the Plaintiff saw a private 

orthopedic specialist. 

33. An aspiration of the right knee was performed by the private 

specialist on or about April 7, 2014 to determine whether there was an 

infection of the knee. 

34. Following this procedure, the Plaintiff was ordered to receive 

antibiotic treatment to combat the infection. 

35. On or about May 16, 2014, the private physician performed a 

right knee arthroplasty debridement on the Plaintiff and a total knee cement 

spacer was placed,

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36. On or about July 8, 2014, a revision surgery was performed on 

the Plaintiff which included a further right knee arthroplasty. 

37. The Plaintiff was terminated from his career and his further 

military service due to his knee condition.

38. The Plaintiff currently suffers pain and almost complete loss of 

functionality of his right knee and leg. 

V. CAUSES OF ACTION 

COUNT I 

39. Plaintiff incorporates the allegations in the foregoing paragraphs 

as though fully set forth herein.

40. The Defendant operated the Cincinnati VA Medical Center by 

and through its agents, servants and employees and ostensible agents. 

41. The Cincinnati VA Medical Center held itself out as a medical 

facility and hospital that employed physicians, technicians and employees 

that possessed the requisite degree of care, skill and knowledge to safely 

treat patients, including but not limited to Plaintiff. 

42. The Defendant is vicariously responsible for the acts and/or 

omissions on the part of its employees and is ostensible responsible under the 

theory of agency by estoppel for any and all acts and/or omissions on the part 

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of any physician or other healthcare providers that provided care and services 

to Plaintiff at the Cincinnati VA Medical Center. 

43. The treatment received by the Plaintiff at the Cincinnati VA 

Medical Center failed to comply with the accepted standards of medical care.

44. The employees and/or agents of the Defendant failed to comply 

with the accepted standards of care in one or more of the following respects:

a. Failure to properly perform a right knee surgery on the Plaintiff.

b. Failure to properly diagnose the Plaintiff with an infection 

following surgery.

c. Failing to properly diagnose and timely treat an infection which 

the Plaintiff developed following surgery. 

45. Due to this inadequate care the Plaintiff has suffered extensive 

damage, pain and suffering, permanent disability, loss of normal enjoyment 

of life, loss of employment, loss of income, and loss of future income. 

46. An affidavit of merit from a medical professional will be 

submitted within 90 days of this filing and Plaintiff respectfully requests this 

time to submit an affidavit of merit in accordance with Ohio Civ. R. 10(D). A 

separate Motion for an Extension of Time to file the Affidavit of Merit is 

being filed contemporaneously with this Complaint. 

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47. Plaintiff further states that the caps on noneconomic damages 

found in R.C. § 2323.43 do not apply and, if found to apply, are 

unconstitutional. 

 

PRAYER FOR RELIEF 

WHEREFORE, Plaintiff respectfully prays that this honorable court 

grants the following relief for the injuries suffered by Plaintiff:

1. Assume jurisdiction of this cause and find proper venue;

2. Find that the Defendant is liable to Plaintiff for damages in the 

amount of five million dollars ($5,000,000) plus costs, interest and any 

other relief recognized by the law of the State of Ohio and this Court. 

Respectfully submitted,

/s/ Maxwell D. Kinman

Maxwell D. Kinman (0086725)

423 Reading Rd.

Mason, OH 45040

(513) 228-1100

(513) 228-1550 – Fax

Max@AWKLegal.com

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